author: STOKER, Judge. PER CURIAM.

text:
    Mrs. Jean Tannis STEELE, wife of and Gene Steele, Plaintiffs-Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY and Dr. Richard J. Clement, Defendants-Appellees.
    No. 6910.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      Raymond D. Fuljenz, Lake Charles, for plaintiffs-appellants.

      Wiedemann & Fransen, by A. Remy Fransen, Jr., New Orleans, for defendants-appellees.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a medical malpractice action brought by a patient and her husband against her doctor and his insurer. The doctor performed a hysterectomy for plaintiff, Jean Steele. In the course of trial, the charge of malpractice was limited to the allegation that plaintiff’s doctor, Dr. Richard J. Clement, led her to believe the surgery was imperatively necessary without informing her of an alternative procedure through which she could retain her ability to conceive and bear a child and in failing to disclose the results of a negative pap smear. The case was tried before a jury and upon the conclusion of its deliberations, the jury returned a general verdict in favor of the defendants dismissing plaintiff’s suit. We reverse. The four issues presented by this appeal are:

(1) Did the jury commit manifest error in failing to find that the defendant-doctor breached his duty of informed consent and that had it not been for this breach then the plaintiff-wife would not have undergone the operation?
(2) Did the trial court commit reversible error in instructing the jury on the “locality rule” in a malpractice case against a medical specialist?
(3) Did the trial court err in granting defendants’ “Motion In Limine To Exclude Prejudicial Evidence”?
(4)Assuming the plaintiffs have a right of recovery against the defendants, what are the damages to which they are entitled?

In view of our action reversing the jury verdict, issues numbered 2 and 3 are not significant.

FACTS

As this is a case involving the performance of an allegedly unnecessary operation, a detailed statement of the facts which led up to the operation will be necessary for a proper determination of the defendant’s alleged negligence. The record reflects that those facts are as follows. In June 1970, at a time when plaintiff, Jean Steele, was pregnant for the first and only time in her life, Mrs. Steele consulted Dr. W. E. Hunt, a physician who specializes in obstetrics and gynecology. At that time, a pap smear was taken from Mrs. Steele which tested out to be class 1 negative. Mrs. Steele subsequently had her child on January 2, 1971, in what was an apparently normal operation.

On October 13, 1972, Mrs. Steele returned to Dr. Hunt’s office for a checkup. As a part of that checkup, Dr. Hunt took another pap smear from Mrs. Steele’s cervix. The result of this pap smear was class 3, which is indicative of either dysplasia or cancer in situ. (See footnote 1, supra) This result, raised the suspicions of Dr. Hunt and necessitated further diagnostic and therapeutic measures on his part. Dr. Hunt decided that the proper measure to take was to perform a dilation and curettage (hereinafter referred to as D&C) and a cold conization (cold cone). From the tissue obtained from these operations, the laboratory performed a frozen section and paraffin section which are tests used in determining the nature of a problem indicated by a positive pap smear.

The frozen section was performed while Mrs. Steele was still on the operating table. The results of this test indicated that Mrs. Steele was only stricken with dysplasia, and thus did not have a malignancy. However, two or three days later, Dr. Hunt received the results of the paraffin test. These results showed conclusively that the tissue removed from Mrs. Steele contained “foci” of carcinoma in situ.

After conferring with Dr. Stevens, the pathologist who performed the diagnostic tests, subsequent to the operation, Dr. Hunt informed Mrs. Steel that he believed that he had removed all of the cancerous cells. Dr. Hunt instructed Mrs. Steele to return every three months for a pap smear in order to check the possibility of a recurrence of problems. On March 8, 1973, approximately three months subsequent to her operation, Mrs. Steele returned for another pap smear. This pap smear came back class 1 negative and seemed to confirm Dr. Hunt’s opinion that he had removed all of the cancerous tissue.

In October 1973, Mrs. Steele again saw Dr. Hunt for the purpose of having a pap smear taken. The result of this pap smear was also class 1 negative. Mrs. Steele was told by Dr. Hunt to return in six months for another pap smear. Hence, in April, 1974, Mrs. Steele called Dr. Hunt’s office several times over a period of a week in an attempt to set up an appointment. However, no one answered the phone on any of these occasions. Since no one answered the phone, and Mrs. Steele had heard rumors that Dr. Hunt had retired, she concluded that Dr. Hunt had done so. As a result, Mrs. Steele decided to consult another specialist in obstetrics and gynecology in order to have a pap smear taken. The doctor with whom she did consult for this purpose was the defendant, Dr. Richard J. Clement.

Mrs. Steele visited Dr. Clement’s office on April 29, 1974. At that time she gave him her medical history, including the facts that she had been diagnosed to have cancer in situ, that Dr. Hunt had performed a D&C and a cold cone on her to treat the cancer, and that two subsequent pap smears had come back negative.

At this point, the testimony as to what actually took place begins to vary. Mrs. Steele testified that Dr. Clement, upon learning of the fact that she had been found to have cancer in situ and that Dr. Hunt had only performed a D&C and a cold cone to treat it, “wheeled around and told me that there is no way what Dr. Hunt did to me could get the cancer out of me.” (Tr. p. 557) Dr. Clement, on the other hand, testified that he explained the previously mentioned study (see footnote 5) to her and recommended that she undergo a hysterectomy. He also testified that he had explained to her that in some cases the patient is given a one year grace period in which to have a child, but since it had been sixteen months since the discovery of her cancer, this could not be done in her case.

In any event, Dr. Clement convinced Mrs. Steele of the need for the performance of a hysterectomy and told her that it would be performed in two weeks. In connection with this operation, Mrs. Steele signed an act of consent. The total abdominal hysterectomy was actually performed by Dr. Clement on May 22, 1974, approximately three weeks subsequent to the office consultation on April 29th. The operation was a procedural success. The tissue report made from the removed uterus showed that Mrs. Steele did not have cancer.

CONCLUSIONS OF FACT

After a review of the record we reach conclusions contrary to those of the jury in this case. Our factual conclusions are as follows:

1. With the exception of Dr. Harry Snatic, all doctors who testified, including Dr. Clement himself, made the following clear. There was an alternative procedure which could be followed in Mrs. Steele’s case. That alternative was the one which had been pursued by Dr. Hunt, namely, following Mrs. Steele’s condition with periodic pap smears and thus preserving her ability to conceive and bear a child.

2. As we appreciate the testimony of defendants’ doctors, performing a hysterectomy on a woman with Mrs. Steele’s history is a very prudent course. From our own appreciation of the matter, relying on the experts, the advice given by Dr. Clement to have the hysterectomy was sound and proper advice. Having the hysterectomy would substantially reduce the risk of cancer, or development of cancer, in Mrs. Steele, which risk unquestionably existed.

3. Although the risk of cancer, or future development of cancer existed, it was not certain. Dr. Hunt’s later pap smears which showed class 1 and Dr. Clement’s test just weeks before the hysterectomy which showed class 1, indicated through very reliable tests that Mrs. Steele was not then in demonstrable danger.

4. Consequently, although Mrs. Steele’s past history established that having a hysterectomy was prudent, and possibly the wisest course, it was not absolute dictated. There was an acceptable alternative. All doctors agreed that some doctors actually followed the alternative procedure. Even Dr. Snatic, who refuses to follow the alternative procedure, agreed that it was done by some doctors. (Tr. p. 717)

5. We find as a fact that Dr. Clement did not inform Mrs. Steele, prior to the hysterectomy, that the pap smear he made was class 1.

6. We find as a fact that Dr. Clement did not inform plaintiffs of the alternative procedure. More specifically, it was not explained that, with such risks as were involved, Mrs. Steele could elect for some period of time to be treated' conservatively, having frequent periodic pap smears on a follow-up basis during which time she could hope for pregnancy to result and that the risks thus involved, though calculated, were not unreasonable.

7. If Dr. Clement explained the L.S.U. Medical School Study he referred to in his testimony, a study giving statistical findings, it is our belief that the recitation on this study was more calculated to alarm the plaintiffs than to convey any idea that there was an alternative procedure available.

ISSUES

As stated earlier, the issues under our resolution of facts which must be addressed in this court are:

(1) Did the jury commit manifest error in failing to find that the defendant-doctor breached his duty of informed consent and that had it not been for this breach then the plaintiff-wife would not have undergone the operation?
(2) Assuming the plaintiffs have a right of recovery against the defendants, what are the damages to which they are entitled?

INFORMED CONSENT

Plaintiff’s petition alleges that Dr. Clement was negligent in the following respects:

(1) In not performing the necessary and adequate pre-operative tests;
(2) In failing to procure an informed consent;
(3) In removing healthy organs and tissues;
(4) In performing a totally unnecessary operation.

Specifications 1, 3 and 4 all involve allegations of malpractice which must be tested according to the duty of a medical specialist, i. e., to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised and possessed by physicians within his medical specialty. LSA — R.S. 9:2794; Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331 (La.1978). However, plaintiffs’ allegation that the defendant-doctor was negligent in failing to obtain the “informed consent” of his patient is based upon a duty set by law rather than one determined by the medical specialty in which the physician practices under the well-reasoned decision in Percle v. St. Paul Fire and Marine Insurance Co., 349 So.2d 1289 (La.App. 1st Cir. 1977), writ denied 350 So.2d 1218 (La.1977). In other words, the physician’s duty in an “informed consent” case is one of disclosure and not one based upon any lack of skill or expertise in his specialty. Of course, in some cases, expert testimony will need to be adduced in order to determine if certain information is within the duty of disclosure. Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3rd Cir. 1978), writ denied 360 So.2d 1178 (La.1978). As will be later developed, this is one of those cases where expert testimony is necessary.

In this case, the jury was improperly instructed that a medical specialist’s duty is governed by the standard of care which exists in the locality. See Ardoin v. Hartford Accident & Indemnity Co., supra. However, since negligence based upon lack of “informed consent” is not grounded upon any allegation of lack of skill, the improper jury instructions would not have any bearing on this part of plaintiffs’ case. Under the holdings of Percie and Hanks, the jury was properly instructed according to law applicable to allegations of a lack of informed consent. Hence, this court can determine from a review of the record whether the jury manifestly erred in finding against the plaintiffs on this part of their case.

Under Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), this court is mandated to give a thorough review of the factual findings of the jury. Even if there is some evidence to support a finding of fact by the jury, we must reverse if the record reflects that the jury was clearly wrong. When a jury returns a general verdict as it did in this case, it must be presumed that the jury resolved all conflicts in testimony in favor of the prevailing party. Bolden v. New Orleans Public Service, Inc., 349 So.2d 377 (La.App. 4th Cir. 1977). Thus the question becomes this: Assuming that the jury resolved all conflicts in testimony in favor of the defendants, is there substantial evidence in the record to support a verdict for the defendants?

In “informed consent” cases, such as the present case, the duty of a physician is to disclose all known information material to a patient’s intelligent decision to undergo a particular operation or therapeutic procedure. Percle v. St. Paul Fire and Marine Insurance Co., supra; Hanks v. Drs. Ranson, Swan & Burch, Ltd., supra. The information which the doctor has a duty to adequately disclose includes “the proposed diagnostic, therapeutic or surgical procedure contemplated; the material risks involved; and the alternatives available, if any.” Percle at page 1299.

While the duty of a defendant in a negligence action is created by law, the question as to the breach of that duty must be answered in accordance with the facts and circumstances of each particular case. Jones v. Robbins, 289 So.2d 104 (La.1974); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Since the breach of duty issue involves a factual determination, the decision by a trier of fact will not be disturbed absent a showing of “manifest error”. Arceneaux v. Domingue, supra. In the present case, it must be presumed that the jury concluded that Dr. Clement did not breach his duty of informed consent, since it returned a verdict for the defendants.

The relevant factors to be considered in determining whether the jury was “clearly wrong” in concluding that Dr. Clement did not breach his duty of disclosure in this case are: (1) the failure of Dr. Clement to inform Mrs. Steele that other obstetricians and gynecologists considered the procedure followed by Dr. Hunt to be an effective treatment of cancer in situ; and (2) the failure of Dr. Clement to inform Mrs. Steele that the pap smear which he had taken on April 29, 1974, indicated that Mrs. Steele was then free of cancer. If we conclude that this was information “material” to a decision by a patient of ordinary understanding and that Dr. Clement knew of and failed to disclose this information to Mrs. Steele, then we would be mandated to find a breach of Dr. Clement’s duty to disclose.

As noted above, in order for the doctor to be under a duty to disclose information to his patient, the patient must show that the information was “material” to the patient’s decision in regard to undergoing the operation. In order to show that the alternative procedure in this case was “material” information, the patient would have to prove that it is an accepted medical treatment. A physician, of course, would be under no duty to disclose alternative procedures which were not accepted as feasible. Hence, expert medical testimony was necessary in this case to establish the feasibility of the procedure. Hanks, supra. In this regard, the following should be noted.

Dr. Hunt testified that he had on many occasions followed the procedure of treating cancer in situ by performing a D&C and cold cone and then following this up with periodic pap smears to test the operation’s success. He also testified that it was a procedure followed by other specialists in the field of obstetrics and gynecology. Dr. Charles M. Anderson, an expert in family practice, and Dr. Harry Snatic, an expert in general surgery, who were both called on behalf of the defendant also testified that Dr. Hunt’s procedure was an accepted form of treatment. (Tr. pp. 669 and 723) In fact Dr. Clement testified that he knew that this form of treatment was followed by certain doctors in the treatment of cancer in situ. (Tr. p. 705)

Hence, the situation which exists is that every physician testifying at trial stated that the procedure followed by Dr. Hunt was one which many doctors considered to be adequate. It is also free from conflicting testimony that Dr. Clement failed to instruct plaintiff-wife that such a procedure is successful in many instances in treating cancer. It was further proven that the pap smear taken by Dr. Clement was class 1 negative and that Dr. Clement failed to inform Mrs. Steele of this result. The testimony of Dr. Stevens establishes that the pap smear has an extremely high degree of accuracy in detecting cancer and would thus show that the pap smear was “material” information which the doctor should have disclosed.

Considering the above, we must conclude that Dr. Clement breached his duty to disclose “material” information known to him by failing to inform the plaintiff that other physicians believe the alternative procedure followed by Dr. Hunt to be effective. In reaching this conclusion, we hold that the jury manifestly erred in finding to the contrary because the essentially uncontradicted evidence clearly shows a failure of adequate disclosure. This holding is not based upon Dr. Clement's failure to inform Mrs. Steele of the alternative procedure, since she obviously knew of it. However, this holding is instead grounded in Dr. Clement’s failure to instruct Mrs. Steele — and in fact implying the contrary— that Dr. Hunt’s operation could have been successful in eliminating the cancer. The fact that Mrs. Steele had received three consecutive negative pap smears only enforces the conclusion that Dr. Hunt’s operation could have been successful in freeing Mrs. Steele of cancer.

We must also conclude that Dr. Clement breached his duty of disclosure by failing to inform Mrs. Steele of the pap smear which he took on April 29, 1974. The testimony by Mrs. Steele that Dr. Clement did not inform her of the result of the pap smear must be accepted, since the doctor was unable to state with certainty that he did so inform her.

The result of this pap smear was class 1 negative. As noted earlier, this result indicates, that there is a strong probability that the patient does not have cancer. Dr. Stevens testified that the percentage of error decreases in proportion to the number of pap smears taken. In this case, if Dr. Clement had informed Mrs. Steele of the April 29th pap smear, then she would have known that she had had three consecutive negative pap smears. This certainly would have been “material” to Mrs. Steele’s decision regarding whether to undergo the total abdominal hysterectomy.

Having concluded that Dr. Clement did breach his duty of disclosure, we must next determine whether the risk of harm which Mrs. Steele suffered was within the scope of that duty. Jones v. Robbins, supra; Hill v. Lundin & Associates, Inc., supra. The harm Mrs. Steele suffered in this case was the removal of a healthy organ of her body, i. e., her uterus and the unnecessary loss of her childbearing potential. The very risk which the duty of disclosure of a physician is designed to cover is to prevent the performance of operations which the patient would not consent to if fully informed. In this instance, the risk of harm was within the scope of Dr. Clement’s duty.

While we have found that the jury was “clearly wrong” in concluding that Dr. Clement was free of negligence and that Mrs. Steele’s risk of harm was within the scope of his duty, it is still necessary to determine if the negligence was a substantial cause of Mrs. Steele’s harm. LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978). In Percle, the court adopted an objective test of the causation issue in an informed consent case. The causation test adopted by the court in Percle can be stated as follows:

Would a prudent person in the patient’s position have reasonably been expected to decline the proposed treatment if he had been fully informed of all relevant information?

In Percle, the patient was faced with the decision of whether to undergo an operation to remove a possibly malignant mass from his right cheek. The information which the physician failed to disclose was the risk of injury to facial nerves and the possibility of the severance of the parotid duct. The court weighed the possible risks against the consequences of an untreated malignancy and concluded that a reasonable person would have still undergone the operation. On this basis the physician was relieved of liability.

In this case, Mrs. Steele also faced a slight possibility of residual cancer at the time she underwent the hysterectomy. However, the testimony of Dr. Stevens as to the accuracy of pap smears proves that the chance of malignancy was indeed slight, especially in view of Mrs. Stevens having had three consecutive class 1 negative results.

Contrasted with the slight possibility of residual cancer was the fact that Mrs. Steele was losing her childbearing capacity. While she was made aware of the risk, she was not made aware of other material information necessary in making a decision to give up her ability to bear children. Mrs. Steele was only 28 years of age at the time of the hysterectomy. She testified that she wanted more children. Mrs. Steele further testified that had she known that the alternative procedure was effective and that her last pap smear indicated that she probably did not have cancer, then she would have refused to undergo the operation. Considering all of the above, we conclude that the jury manifestly erred in finding that Mrs. Steele would not have declined to have undergone the operation.

Irrespective of Mrs. Steele’s testimony in this regard, we must apply an objective standard to establish causation as pointed out in the Percle case. In Percle, although the surgeon did not disclose the risk which did occur, causation was lacking because the court concluded, objectively, that the plaintiff-patient would have consented to the surgery even if he had been informed of the risk. On the contrary, it is our conclusion here that by objective standards Mrs. Steele would have elected to forego immediate surgery for a hysterectomy had she been properly informed. In Percle the risk of severance of facial nerves or the parotid duct was the risk to be faced. Although the Percle court felt the surgeon should have informed the patient of these risks, it felt that the failure to inform had no causal connection because it believed “a reasonable person, aware of such a risk, would have consented to the treatment.” The reason it felt so was because the risks were slight.

In contrast to the situation in Percle, Mrs. Steele was faced with surgery the very object of which, among others, was to remove forever her capacity to have children. The risk of malignancy was slight. The information not disclosed was an alternative course, the validity of which could not be characterized as either remote or slight. Hence, the cases are distinguished on the strength of probabilities. The probability of occurrence of the risk in Percle was remote or slight. Loss of Mrs. Steele’s reproductive capacity was certain — it was not a risk at all. Knowledge of an alternative, however, was what was not disclosed to her. Nor can we say that the risks involved in the alternative were exceptional or likely to deter her from electing that course. Therefore, from an objective point of view, it is our belief, that had she been informed, she would have decided to accept the risks inherent in the alternative and she would have foregone the hysterectomy. On this basis we find a causal connection between Dr. Clement’s failure to inform and the complaints of Mrs. Steele.

Hence, for the above reasons, we hold that Dr. Clement was negligent in failing to disclose all material facts to his patient and that this negligence was the legal cause of the harm suffered by Mrs. Steele. In so holding, we of necessity find the defendants liable for damages in this case. Hence, we now undertake a consideration of those damages.

DAMAGES

Inasmuch as the jury did not reach the issue of damages, we must therefore make a determination of damages as they are reflected in the record.

1. Damages Claimed By Mrs. Jean Tan-nis Steele

In the petition, Mrs. Steele claimed damages for pain and suffering, mental anguish, inability to bear future children and permanent disability.

There is little evidence in the record to reflect the amount of pain and suffering which Mrs. Steele underwent as a result of this operation. However, the operation was procedurally a success and there were no complications. We must assume, therefore, that any pain which Mrs. Steele may have suffered was minimal.

With regard to Mrs. Steele’s other claims of harm, it should be noted that Mrs. Steele was taking birth control pills since the birth of her only child in 1972. Mrs. Steele testified she was taking birth control pills because they had been prescribed by Dr. Hunt to treat excess bleeding. However, the record reflects that Dr. Hunt had not directed her to take the pills for any particular period of time. Mrs. Steele’s testimony ■ indicates that she never asked Dr. Hunt if she could stop taking the pills and have another child. Apparently, Mrs. Steele continued to take the pills at her own volition. While Mrs. Steele testified that she and her husband wanted to have more children, no evidence supported that contention. On the other hand, her options in that regard are now forever closed.

Therefore, the damages Mrs. Steele sus-, tained in mental anguish and inability to bear future children are not clearly evident or demonstrable. Nevertheless, it remains a fact that Mrs. Steele did sustain a substantial loss in having undergone the unnecessary removal of her uterus. It is also certain that Mrs. Steele will never be able to have children again. Mrs. Steele obviously underwent some degree of mental suffering as a result.

Considering all the circumstances reflected in the record, we feel that an award of $50,000.00 will adequately compensate Mrs. Steele for all her damages.

2. Damages Claimed By Mr. Gene Steele

In the petition, Mr. Steele claims damages for mental anguish and his wife’s inability to bear future children. Louisiana jurisprudence is settled to the effect that a person may not recover for the mental anguish which he suffered as the result of the injury to another person. McFarland v. Cathy, 349 So.2d 486 (La.App. 3rd Cir. 1977); Bourg v. Redden, 351 So.2d 1300 (La.App. 1st Cir. 1977). The bar against recovery of damages for mental anguish applies to cases where the husband is suing as a result of his wife losing her unborn child. Wascom v. American Indemnity Corp., 348 So.2d 128 (La.App. 1st Cir. 1977); Newman v. City of Baton Rouge, 260 So.2d 52 (La.App. 1st Cir. 1972). While the situation presented in this case is different from Wascom and Newman, the cases are certainly analogous. Hence, we hold that Mr. Steele is not entitled to damages for mental anguish because of his wife’s pain and suffering.

Assuming that Mr. Steele desired to have additional children by Mrs. Steele, it cannot be gainsaid that he has suffered a loss. However, we have not found any specific guidance in our law as to the com-pensability of such a loss. However, a somewhat related question was considered by this court in Bourque v. American Mutual Liability Insurance Co., 345 So.2d 237 (La.App. 3rd Cir. 1977). There a wife sought to recover damages for loss of consortium when her husband had been rendered impotent through the fault of another. Recovery for loss of consortium was denied. Inasmuch as we have been cited to no authority supporting a right to recovery under the circumstances of this case, we follow the reasoning applied to the Bourque case and deny recovery to Mr. Steele for his loss of his wife’s ability to bear him additional children.

For the foregoing reasons, the judgment of the district court is affirmed insofar as it denies the claim of plaintiff, Mr. Gene Steele, for damages. The portion of the judgment denying the claim for Mrs. Jean Tannis Steele is reversed and IT IS ORDERED, ADJUDGED, AND DECREED that she be granted judgment in the sum of $50,000.00. The costs of both courts to be borne by the defendants.

AFFIRMED IN PART,. REVERSED IN PART AND RENDERED.

ON APPLICATION FOR REHEARING

The application for rehearing by defendants-appellees is denied.

PER CURIAM.

Plaintiffs-appellant have filed a motion to amend and correct judgment. They urge that our decree should be amended to provide for legal interest on the amount awarded Mrs. Steele in the judgment from date of judicial demand until paid. They are correct in their contention and she is entitled to such interest. LSA-R.S. 13:4203 provides that legal interest shall attach from date of judicial demand on all judgments sounding in damages ex delicto. This provision has been construed to mean that interest attaches automatically until the judgment is paid in actions ex delicto whether prayed for in the petition or mentioned in the judgment. Davis v. LeBlanc, 149 So.2d 252 (La.App. 3rd Cir. 1963) and cases therein cited. Hence, plaintiff-appellant, Jean Tannis Steele, is entitled to be paid legal interest accordingly without the necessity of formal amendment of our decree. Therefore, the motion is denied.

      . It was brought out at trial that a pap smear is a method of diagnosing cancer in the cervix in its earliest stages. It is performed by obtaining cells from the cervix and testing them under a microscope. It was also shown that the particular pathologist employed in this case, Dr. Leh-rue Stevens, used the most common method of classifying the results of the test. In this classification system, there are five classifications which are (Tr. pp. 355-359):
      Class I — This indicates a perfectly normal pap smear with no abnormalities.
      Class 2 — This indicates an inflammation or an infection in the cervix.
      Class 3 — This indicates the possibility of dys-plasia (a pre-cancerous change in the cells) or carcinoma in situ (cancer at its earliest stage).
      Class 4 — This indicates a stronger probability of cancerous cells.
      Class 5 — This indicates definite cancer in the cervix and possibly other areas of the female reproductive system.

      . A scraping out of the lining of the uterus. Its purpose is to make sure that there is nothing abnormal in the uterus. (Tr. p. 508)

      . This is an operation where a large portion of the cervical canal including its epithelium or lining tissue is cut out.

      . For discussion of the nature of these tests, see Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3rd Cir. 1978).

      . Foci translates into layman’s terms as localized areas. (Tr. p. 388)

      . Dr. Stevens, a pathologist, testified that while a pap smear was not absolutely infallible, it has a very high degree of accuracy in young women. Dr. Stevens also testified that if more than one pap smear is taken that turns out to be negative, then the incidence of error decreases. (Tr. pp. 405-406) Dr. Clement, on the other hand, testified as follows. He participated in the performance of a study while he was at the L.S.U. Medical School. This study dealt with instances where patients were first treated for cancer by the performance of a D&C and cold cone and subsequently by a hysterectomy. Dr. Clement stated that the tissue removed during the hysterectomies showed that 30 per cent of the patients still had cancer after the performance of the D&C and cold cone.

      . The rationale behind having the law set the standard in cases of failure of informed consent rather than the medical specialty is that this duty to disclose arises from criteria apart from medical custom and practice.

      . While the court in Percie implies at one point that only the “material” risks of the proposed therapy need be disclosed, the reasoning of the court convinces us that they intended to include the other information within that duty. In any event, we can see no cogent reason to limit the duty only to disclosure of “material” risks.

      . There was a dispute as to whether Dr. Clement knew of the two negative pap smears performed by Dr. Hunt due to a mix up at the pathology lab. However, it was proven that Mrs. Steele did include the information in the history which she gave to Dr. Clement. Hence, if Dr. Clement did not know, he should have known and thus had constructive knowledge.


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    WEST CENTER APARTMENTS LIMITED, and First National Bank of Jackson v. Earl KEYES.
    No. 51167.
    Supreme Court of Mississippi.
    May 30, 1979.

      Watkins & Eager, William F. Goodman, Jr., Michael W. Ulmer, Arlin C. Ruthven, Thompson, Alexander & Crews, Thomas R. Crews, Jackson, for appellant.
    McDavid, Edmonson, Bennett, Lotterhos & Sulser, Richard T. Bennett, Craig M. Geno, Earl Keyes, Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Earl Keyes filed suit in the Chancery Court of the First Judicial District of Hinds County, Mississippi, Honorable J. C. Sten-nett, presiding, against Windsor Park Limited Partnership (subsequently West Center Apartments, Ltd.) [Windsor], First National Bank of Jackson, Mississippi, [FNB], Kinder Care Learning Centers, Inc., and approximately two hundred ninety (290) individual tenants of the apartment complex, seeking attorney’s fees in the sum of twenty-nine thousand three hundred seventy-eight dollars twenty cents ($29,378.20). The chancellor entered a decree for said amount, together with pre-judgment interest on same, and, in addition, held that Keyes was entitled to collect the judgment from an escrow account in the amount of thirty thousand dollars ($30,000) established by First National Bank. Windsor and FNB appeal from that judgment.

Without detailing the many ramifications and business dealings involved, briefly, the facts are that Windsor Park Apartments, consisting of two hundred seventy-nine (279) residential apartments located on a seventeen-acre lot in Jackson, was owned by Windsor Park, Inc., a Mississippi corporation. That corporation was wholly owned by National Building Corporation [NBC], a Tennessee corporation, whose president was Henry Sender. Appellee is an attorney in Jackson and represented the apartment project. His representation began in about November, 1972, and from that time until, or just prior to, December, 1975, he performed considerable legal services for Windsor Park, Inc., and later for Windsor Park Limited Partnership, which subsequently purchased all the assets of Windsor Park, Inc.

Windsor Park, Inc. ran into substantial financial difficulties and in December, 1974, Windsor Park Limited Partnership was formed for the purpose of bringing in new investors to the project, the two general partners being National Building Corporation and Barnmiss Properties, Inc. Windsor Park Limited Partnership entered into an agreement with Windsor Park, Inc. for the purchase of, and it did purchase, all of the assets of Windsor Park, Inc., the purchase price being “an amount equal to the actual costs directly incurred in the construction of the apartment complex,” and the sale was subject to the outstanding mortgages, which amounted to approximately four and one-half million dollars. ($4,500,000). The partnership continued to use the same bank account in FNB as that used by the corporation. In December, 1975, appellee submitted to Windsor Park Limited Partnership his bill for legal services rendered as follows:

Incorporating Windsor Park, Inc. $ 350.00
Closing the $2,975,000 loan and other services -1% of loan 29,750.00
Piling fee and expenses 278.20
Subtotal 30,378.20
Less credit for concrete from
the project used by Keyes - 4,500.00
Total $25,878.20

The bill was not paid and in August, 1976, appellee wrote Mr. Sender and stated that it was necessary, because of the statute of limitations, to have the claim reduced to writing, and he enclosed a promissory note in the above amount which he requested Sender to. sign on behalf of the limited partnership and NBC. Appellee received no response to that letter. However, Danny R. Poland, Financial Vice President and Treasurer of NBC, wrote him that the note would not be signed on behalf of the limited partnership but offered to sign same on behalf of Windsor Park, Inc. Upon receipt of that letter, appellee filed suit.

The appellants assign ten (10) errors in the trial below, but the questions presented by the assignments of error will be discussed in different forms.

I.

Did the limited partnership assume Windsor Park, Inc.’s liability to Keyes for attorney’s fees?

18 Am.Jur.2d Corporations § 19, at 568 (1965) states:

“A corporation organized to take over the business of a partnership or of an individual may assume the liability of the partnership or the individual and thereupon become liable to the partnership creditors. The assumption may, according to some authorities, be either express, or implied from the circumstances, and proved by any competent evidence which will establish it.”

The purchase agreement between Windsor Park, Inc. and the limited partnership provided:

“(8) Purchase price.
The purchase price for the premises shall be an amount equal to the actual costs directly incurred in the construction of the apartment complex on the premises as of the closing date as certified to the partnership by seller and as audited by the firm of Craft Bros., Eastman, Patent, Harold and Wheby.”

Mr. Sender, president of NBC and Windsor Park, Inc., testified that he approved appellee’s bill for services. We are of the opinion that, at least, there was an implied assumption by the limited partnership of Windsor Park, Inc.’s liability for appellee’s fee.

II.

Was the sale of Windsor Park, Inc.’s assets to the limited partnership a bona fide sale?

In Mayes v. Thompson, 128 Miss. 561, 91 So. 275 (1922), elements for a bona fide sale were expressed as follows:

“The bona fide purchase for value rule had its origin in equity and is:
‘that a purchaser in good faith for a valuable consideration and without notice of the prior adverse claims is protected against certain suits brought by the holders of such claims. The essential elements which constitute a bona fide purchase are therefore three — a valuable consideration, the absence of notice, and the presence of good faith.’ ” 128 Miss. at 573, 91 So. at 276.

The record reflects that the limited partnership had knowledge of the fact that Keyes had not received payment for his services. In Vicksburg & Yazoo City Telephone v. Citizens’ Telephone, 79 Miss. 341, 30 So. 725 (1901), the complainant sought to subject the property of Citizens’ Telephone Company, which had been conveyed to Cumberland Telephone Company, to damages suffered by the complainant for breach of contract by Citizens’ Telephone Company. The bill of complaint charged that all property of every kind which had belonged to the Citizens’ Telephone Company, except its corporate franchises, had been transferred to the Cumberland Telephone Company and that the Citizens’ Telephone Company had gone out of existence and was defunct and that such was the purpose of the transfer. The Court said:

“And where there has been neither a consolidation nor a merger, but a mere sale by one corporation of its property to another, that sale, if permitted by the constitution and the laws as not being against public policy or otherwise illegal, and if made for a valuable consideration in good faith, will pass the property of the selling corporation to the purchasing corporation free from claims of mere simple contract creditors. In every such case the same rule obtains as obtains in the case of a sale by an individual to another individual. ... It would be necessary in such case that the complainant should state in his bill that there was fraud, or that the transfer was not made for a valuable consideration, or that the defendant was not a bona fide purchaser. The property here has not passed into the hands of a bona fide purchaser from the consolidated company, and is therefore chargeable in equity with the debt (if any shall be established) here asserted. . . The Citizens’ Telephone Company could not give away its property to the prejudice of the complainant; and an attempted sale by it of this property to the Cumberland Telephone Company, the latter not being a bona fide purchaser, cannot' avail to defeat the equitable rights of the complainant asserted in this bill, the property being still in the possession of the Cumberland Telephone Company, not sold to a bona fide purchaser from it.” (Emphasis added) 79 Miss. at 353-354, 30 So. at 727-728.

In Mississippi Cottonseed Products Co. v. Planters’ Mfg. Co., 159 Miss. 153, 132 So. 96 (1930), the Court stated:

“In the Meridian Light & Railway Co. v. Josie Catar, 103 Miss. 616, 60 So. 657, it was held (in the first syllabus): ‘Neither law nor equity will permit one corporation to take all the property of another, deprive it of the means of paying its debts, enable it to dissolve its corporate existence, and place itself practically beyond the reach of creditors, without assuming its liabilities.’ It was further held that persons who acquire the property of the old corporations other than at a foreclosure sale are not purchasers for value without notice.
In Mahaffey Co. et al. v. Russell & Butler, 100 Miss. 122, 54 So. 807, 945, it was held: ‘A corporation cannot, to the prejudice of its creditors, give away its assets to another corporation, nor can one corporation defeat the creditors of another by the purchase of its assets even for value, unless such purchase is bona fide; but in either case a purchasing corporation is only liable for the debts of the selling corporation to the extent of the value of the assets actually received.’ ” 159 Miss. at 165, 132 So. at 99.

After transfer of assets to the limited partnership an account was maintained in the name of Windsor Park, Inc. in FNB. The partnership never opened an account of its own and made use of that account, and the inference is that the limited partnership owned same.

We are of the opinion that the limited partnership was not a bona fide purchaser for value and that it assumed the liabilities of Windsor Park, Inc.

III.

Is there no liability on the limited partnership because the apartments had no net value, above liabilities, at the time of the transfer?

As stated, one corporation cannot prejudice its creditors by giving away or selling its assets to another corporation to the detriment of the creditors, the purchasing corporation is only liable for the value of the assets actually received by it from the selling corporation. Mahaffey Co. v. Russell & Butler, 100 Miss. 122, 54 So. 807 (1911).

Appellant FNB claims that the apartments had no net value at the time of the transfer in December, 1974, and for that reason is not liable for payment of the attorney’s fees. FNB further contends that the outstanding indebtedness by Windsor Park, Inc. exceeded the value of the apartments. Mr. Sender testified that, at the time of the transfer, the assets exceeded the liabilities. There is no merit in this contention.

IV.

Is the fee claimed by appellant fair, reasonable and justified?

Appellee had no specific understanding with Windsor Park, Inc., or Mr. Sender, as to the amount of his attorney’s fee for services rendered and to be rendered. He submitted a bill for services based upon one percent (1%) of a loan from FNB to Windsor Park, Inc. in the amount of $29,750.00. In Jones Bayou Drainage District v. Sillers, Clark & Sillers, 129 Miss. 13, 91 So. 693 (1922), a suit for collection of an attorney’s fee where there had been no express agreement for samé, the Court said:

“Here the district was created, the services and advice of plaintiffs were used by the temporary commissioners, and it was understood, we think, by all parties concerned, that proper compensation would be made for these services. At any rate, the services were rendered and accepted, and were necessary and valuable, and the district ought to pay for such services. The declaration called for $2,500, with interest, and testimony shows this amount is reasonable.” 129 Miss, at 24, 91 So. at 694.

The chancellor was not manifestly wrong in fixing the attorney’s fees and the amount thereof.

V.

Did the trial court err in awarding prejudgment interest?

The bill of complaint did not charge that appellee was entitled to pre-judgment interest and the prayer for relief did not specifically ask for same. Appellee contends that the general prayer for relief was sufficient to authorize the trial court’s award of such interest.

In Rutland v. McIntosh, 121 Miss. 437, 83 So. 635 (1919), the Court said:

“The relief granted the appellee, who was the complainant in the court below, was not that specifically prayed for by him in his bill of complaint, and should not have been granted under the general prayer therein for the reason that it is not supported by any allegation in the bill of complaint.” 121 Miss. at 438, 83 So. at 635.

We are of the opinion that the trial court erred in awarding pre-judgment interest.

VI.

Was FNB entitled to priority over appellee insofar as the rent moneys held in escrow ($30,000) were concerned under the terms of the agreement between it and appellant?

As stated, approximately 290 tenants of the apartment complex were made defendants in the bill of complaint. There was confusion, concern and misunderstanding on the part of those tenants as to why they should be sued, and, in order to alleviate the situation, FNB agreed to place ten thousand dollars ($10,000) per month received from the tenants as rent into an escrow account for a period of three (3) months until the sum reached $30,000. A pertinent part of the agreement [See Appendix] follows:

“These funds are to be held in the Special Escrow Account until the lawsuit is settled by the parties or upon final adjudication by the Court, and First National Bank of Jackson agrees that it will not attach or use any of the escrow account as a set-off against any amount owing to it by Windsor Park Limited Partnership.”

Appellee contends that such part of the agreement, which was incorporated in the order of the trial court on August 31, 1976, precludes FNB from claiming any prior rights to said fund. The agreement is plain and unambiguous and it does not indicate that FNB waived any of its rights to, or claims in, the escrow funds. Under its deeds of trust, FNB was entitled, as a priority, to all rents received from the apartment complex. Appellee does not dispute the fact that without a waiver on the part of FNB he would have no prior claim to the escrow funds. The chancellor erred in holding that the judgment in favor of appellee had priority to the escrow funds.

The other questions raised and not discussed here have been thoroughly considered, and we find that there is no merit in them.

The judgment of the lower court is affirmed except insofar as it awards pre-judgment interest and grants appellee priority to the escrow account, as to which items it is reversed and judgment is rendered here.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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

BOWLING, J., took no part.

APPENDIX

AGREEMENT

THIS AGREEMENT made and entered into this the 30th day of August . 1976, by and between EARL KEYES, WINDSOR PARK LIMITED PARTNERSHIP, and the FIRST NATIONAL BANK OF JACKSON,

WITNESSETH:

WHEREAS, on August 26, 1976, Earl Keyes, Complainant, filed a Bill of Complaint for Attachment in Chancery in the Chancery Court of the First Judicial District of Hinds County, Mississippi, against Windsor Park Limited Partnership, for services rendered to them as their attorney, and against attachment defendants First National Bank of Jackson, Kinder Care Learning Centers, Inc. and tenants of Windsor Park Apartments,

NOW, THEREFORE, in consideration of the premises, it is mutually agreed between the undersigned parties as follows:

Earl Keyes, Complainant in the Attachment in Chancery suit, agrees to release all attachment defendants except First National Bank of Jackson on the condition that rental income from tenants in the Windsor Park Apartments be placed in a Special Escrow Account at the First National Bank of Jackson in the amount of $10,000.00 on September 1,1976; $10,000.00 on October 1, 1976; and $10,000.00 on November 1, 1976, until a total of $30,000.00 is attained. These funds are to be held in the Special Escrow Account until the lawsuit is settled by the parties or upon final adjudication by the Court, and First National Bank of Jackson agrees that it will not attach or use any of the escrow account as a set-off against any amount owing to it by Windsor Park Limited Partnership.

IN TESTIMONY WHEREOF, this Agreement has been duly executed by the parties hereto, this the 30th day of August . 1976.

/s/ EARL KEYES_

EARL KEYES

WINDSOR PARK LIMITED PARTNERSHIP

/s/ CALVIN A. BUCHMAN, V. PRES.

BY: /a/ BETTYE MAY. A. V. P._

National Building Corporation,

General Partner

FIRST NATIONAL BANK OF JACKSON

BY: /a/ T. HARRIS COLLIER. III_

T. Harris Collier, III,

Assistant; Vice President


author: COFER, Justice,

text:
    Mrs. Jackie L. YOUNG v. Mrs. Lila YOUNG.
    No. 51259.
    Supreme Court of Mississippi.
    June 6, 1979.

      Mitchell, Rogers, Eskridge, Voge & Clayton, William M. Beasley, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Wade H. Lagrone, Tupelo, for appellee.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   COFER, Justice,

for the Court:

Plaintiff-appellant, Mrs. Jackie L. Young, brought this suit in the Circuit Court of Lee County, against defendant-appellee Mrs. Lila Young. The suit was brought for the alleged wrongful death of Susan Renee Young, under Mississippi Code Annotated, section 11-7-13 (1972), for the benefit of appellant and her husband, parents of the child and the only persons entitled to damages, if any, under that statute. Defendant was the paternal grandmother of the child and is the mother-in-law of appellant. From a jury verdict for the defendant-ap-pellee, appellant has appealed, and assigns two errors:

1. Refusal of peremptory instruction requested by plaintiff on the issue of liability; and
2. Refusal of plaintiff’s motion for judgment non obstante veredicto.

Our examination of the appeal record compels us to the conclusion that the peremptory instruction on liability should have been granted and we so hold.

On June 23, 1977, appellee was about to go to a fried chicken dispensing place, and the child, Susan, then six years old, wanted to go with her but refused to ride in the cab of the appellee’s pickup insisting instead on riding in the pickup’s bed. Although the record is conclusive that Susan’s parents had protested, prior thereto, against appel-lee’s letting Susan ride in the pickup bed, appellee permitted her to take position on the right side of the pickup bed, another granddaughter eight years old, taking location on the left side thereof. Appellee’s brother went with appellee, occupying the passenger side of the cab. On the day and occasion of the accident, the road was dry and the weather was fair.

As they were returning going in a northerly direction on Highway No. 45, and descended into a long straight stretch of the highway, appellee was following behind an automobile. A pickup truck entered the highway ahead of the car and stalled, causing the car to come to a stop.

Appellee’s brother, seeing the situation ahead, suddenly said to appellee, “look out,” and she tried to stop her pickup to avoid collision with the lead car, and the back end of her vehicle swerved to the right and part of the rear end left the pavement and went onto the right shoulder of the highway. She pulled the steering wheel toward the left, trying to stop the vehicle, to keep from going further on the right shoulder, and to get around the vehicles in front of her, and in doing so, she crossed over and went off the left highway embankment some ten feet deep and turned all the way over, the pickup coming to rest again on its wheels.

She testified that she had come to a complete stop, either on the highway pavement or shoulder or down the embankment, and heard a “loud bang,” and “it went over.”

It developed that her left front tire blew out, probably the “bang” she heard. The tire had blown out before, and, although advised by a repairman that the tire could not be repaired, it was patched nevertheless. The record is silent as to whether the blow-out on the present occurrence was in that patch or not.

The area of testimony most nearly amounting to a conflict is that wherein appellee either told a law enforcement officer that her foot slipped off the brake and landed on the accelerator or asked him if that might have happened. She said she knew that she was addled and might have made an affirmative statement to the officer.

In the accident Susan was thrown from the pickup bed and from injuries thereon received by her, she died.

The proof detailed herein was almost entirely given by appellee as an adverse witness or on direct testimony. There was no conflict for the jury to resolve, and the proof established that appellee was negligent as a matter of law in permitting Susan to ride in the pickup bed on the occasion, in driving with the patched tire, in not so operating her vehicle as to have and to keep a proper lookout, and to maintain an awareness of the presence of other vehicles on the road. Ulmer v. Pistole, 115 Miss. 485, 76 So. 522 (1917); Terry v. Smylie, 161 Miss. 31, 133 So. 662 (1931); Cinderella Foods v. Miller, 52 So.2d 641 (Miss.1951); Hankins v. Harvey, 248 Miss. 639, 160 So.2d 63 (1964); Tippit v. Hunter, 205 So.2d 267 (Miss.1967); Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952); Avery v. Collins, 171 Miss. 636, 157 So. 695 (1934); and numerous other decisions digested in 3 Miss.Digest, Automobiles, section V., “Injuries from Operation, or Use of Highway.”

Mississippi Code Annotated, section 11 — 7— 17 (1972), provides that “All questions of negligence and contributory negligence shall be for the jury to determine.”

In cases where there is no issue of fact as to negligence, the court determines its existence as a matter of law. McGee v. Bolen, 369 So.2d 486, 493 (Miss.1979), and decisions there cited.

The cause is reversed and judgment will be entered here in appellant’s favor on ap-pellee’s liability and remanded for a new trial on the issue of damages only.

REVERSED AND RENDERED AS TO LIABILITY AND REMANDED FOR TRIAL AS TO DAMAGES.

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

BOWLING, J., took no part.


author: WALKER, Justice,

text:
    Lorene Hood COLE v. Freddy Wayne HOOD.
    No. 51185.
    Supreme Court of Mississippi.
    June 6, 1979.

      Stanley G. Cole, Tupelo, for appellant.
    Parker, Averill & Butts, Roy 0. Parker, Tupelo, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the Chancery Court of Lee County, Mississippi, where the chancellor refused to hold the appellee, Freddy Wayne Hood, in contempt of court for failure to pay child support allegedly in arrears and refusing to enter a decree in favor of appellant, Lorene Hood Cole, for $15,140, the sum allegedly past due.

The record reveals that Lorene Hood Cole and Freddy Wayne Hood were divorced by decree of the Chancery Court of Lee County on July 6, 1967. The final decree awarded the care, custody and control of the two minor children of the marriage, Shelia Hood, age five and one-half years and Frederick Hood, age one and one-half years, to the appellant, Lorene Hood Cole. The decree also provided that Freddy Wayne Hood was to have reasonable visitation rights at all times and was to have Shelia Hood with him during each summer for two months beginning June 1 through August 1. He was also to have his son, Frederick Hood, visit with him for two months in the summer when the child reached the age of four years, beginning June 1 through August 1 of each year. The decree further provided that Freddy Wayne Hood was to pay to Lorene Hood the sum of $30.00 per week as child support, except when he had the children with him during the summer months.

At the conclusion of the hearing on the petition for contempt, the chancellor stated in his opinion:

Under the facts of this case, which are unusual, it appears that there was a period from May, 1969, until August, 1977 that the father of these children had no rights of visitation whatever, and during this time he was completely deprived of visitation privileges.
The record shows that he made numerous, numerous attempts to locate these children and to visit with them and provide for them. The conduct on the part of the mother of these children, shows that she willfully and deliberty [sic] concealed these children from him, her reason being that she was afraid of him. The record shows quite clearly that the delay on the part of Mrs. Cole to bring this suit, and to hide these children has resulted in injury, embarrassment, and disadvantage to Mr. Hood.

The chancellor further found that after the Hoods were divorced in 1967, that they nevertheless lived together off and on for a period of time, and that from the date of the divorce in 1967 until May 19, 1969, Freddy Wayne Hood, from time to time, had custody of the children. In fact, the record reveals that he had custody of them by mutual consent from December 7, 1968 until May 19, 1969, at which time Mrs. Lorene Hood Cole entered into a preconceived plan with her present husband, Stanley Cole, in which she came to Tupelo, leading Freddy Wayne Hood to believe she had obtained a divorce. After “having obtained the confidence of Wayne Hood,” Mrs. Lorene Hood Cole took the children, on the pretense of taking them to Sunday School. According to her, after Sunday School she parked Mr. Hood’s car at a local school where she was picked up by her present husband and they left with the children. Mr. Hood did not see his children again until August 1977, eight years later. The appellant’s husband, Stanley Cole, admitted on cross-examination that he and Mrs. Cole had purposely concealed the children from their father. The record also discloses that the children had been reared under the name of “Cole” rather than “Hood” — further alienating them from their father.

There is substantial evidence in the record that from May 19, 1969 until August 1977, the appellant and her present husband contumaciously, willfully and through deliberate design concealed the children from their father, Freddy Wayne Hood, for the purpose of preventing him from exercising his rights under the divorce decree to visit his children at all reasonable times and to have their custody for two months during the summer of each year; that there were no extenuating circumstances to justify such action; that Freddy Wayne Hood made numerous and repeated efforts to locate his children but was prevented from doing so by the Coles who moved from place-to-place throughout the country secreting their address from him; and that since locating the Coles and his children in Oxford, Mississippi, in August 1977, he has exercised his visitation rights and at the time of the hearing was current with all child support payments which came due after August 1977.

Almost immediately after Freddy Wayne Hood discovered the whereabouts of his children, the appellant, Lorene Hood Cole, made demand upon him for child support payments allegedly amounting to $15,140.

The lower court dismissed Lorene Hood Cole’s petition for citation for contempt and for money judgment on the grounds that the petitioner was guilty of laches and in violation of other equitable principles with which the court was familiar. In their briefs, appellant and appellee have cited numerous cases and offered much argument as to why laches should or should not be applicable. However, we do not reach the question of whether laches is applicable since this case is controlled by the age-old maxim that “He who comes into equity must come with clean hands.” In discussing that maxim in Griffith, Mississippi Chancery Practice, section 42 (2d ed. 1950), it is said:

§ 42. He who comes into equity must come with clean hands. — It is the meaning and purpose of this maxim to declare that no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity, or illegality. It does not exclude a party because in some other matter his conduct may have been reprehensible; it refers only to the subject matter of the particular suit in hand. The wrongful conduct which will bar the complainant need not be so gross as to be a crime punishable as such, nor so positive as within itself to form the basis of a legal action. It may be described as such wilful misconduct, inequity or fraud with respect to the immediate transaction as would be condemned and pronounced wrongful by honest and fair-minded men. It is not necessary that it be pleaded by the defendant, — although it will require a plainer ease if it is not so pleaded, — for if at any time during the progress of the case it becomes evident that the facts exist which call the maxim into use, it is the duty of the court to apply it, on the basis of a sound public policy. Courts of equity do not countenance iniquity nor give it sanctuary, and to do so will not be forced upon the court because the defendant fails to raise the question.

See also Taliaferro v. Ferguson, 205 Miss. 129, 38 So.2d 471 (1949) and Vockroth v. Vockroth, 200 So.2d 459 (Miss.1967).

The conduct of Mrs. Cole fits squarely within the principle stated above. By willfully hiding the children for a period of eight years and keeping secret her address, she effectively prevented the children’s father, Freddy Wayne Hood, from not only seeing his children and exercising his rights of visitation and custody as provided by the decree, but she also prevented him from sending the monthly child support payments as they came due. Such willful misconduct is to be condemned as wrongful by honest and fair-minded men. Courts of equity do not countenance inequity nor give it sanctuary and the lower court was eminently correct in not holding Freddy Wayne Hood in contempt and in not granting a money judgment against him. A court of equity will not lend its aid to enforce such an unjust and inequitable claim brought about by the willful misconduct of the complaining party.

The children have been well cared for during the period of time in question at the expense of the Coles, who by their own willful misconduct, elected to have it that way. By her conduct, Mrs. Cole waived her right to reimbursement for the child support payments as each payment came due.

The judgment of the lower court dismissing the petition of Lorene Hood Cole is therefore affirmed.

AFFIRMED.

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

BOWLING, J., took no part.

      . The maxim as to “clean hands” is applicable to subjects within the jurisdiction of the chancery court other than those strictly in equity. Griffith, Mississippi Chancery Practice, § 42a (2d ed. 1950); Vockroth v. Vockroth, 200 So.2d 459 (Miss.1967); Teliaferro v. Ferguson, 205 Miss. 129, 38 So.2d 471 (1949).


author: SUGG, Justice,

text:
    WESTERN ELECTRIC, INC. v. Betty Ann FERGUSON and minor dependents of Chester Ray Ferguson.
    No. 51082.
    Supreme Court of Mississippi.
    June 6, 1979.

      Butler, Snow, O’Mara, Stevens & Canna-da, Dan McCullen, Jackson, for appellant.
    Crawley & Ford, Michael H. Steele, Kosciusko, for appellees.
    Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

This Workmen’s Compensation case involves two questions (1) Did Chester Ray Ferguson meet his death under conditions constituting an exception to the going and coming rule? (2) If Ferguson’s death is compensable, was the employer entitled to credit for the sum paid his dependents under the company’s pension and disability plan?

The administrative judge ruled that Ferguson’s death arose out of and in the course of his employment and ordered Western Electric, Inc. to pay death benefits to claimants without allowing credit for the year’s salary paid under the disability and pension plan of Western Electric. The full Commission reversed the order of the administrative judge holding that Ferguson was not a traveling employee, he was not being paid travel expense by the employer at the time of his death, and his death did not arise out of and in the course of his employment. On appeal to the Circuit Court of Winston County the order of the Commission was reversed and the order of the administrative judge was reinstated. Western Electric appealed.

I

DID FERGUSON MEET HIS DEATH UNDER CONDITIONS CONSTITUTING AN EXCEPTION TO THE GOING AND COMING RULE?

Chester Ray Ferguson was employed by Western Electric for fourteen years as an installer for Western Electric. At the time of his death, Ferguson’s base location was Meridian. The Meridian territory for Western Electric covered most of the east central portion of Mississippi. Although Ferguson’s designated base location was Meridian, he elected to reside with his family in Ethel. Before January 16, 1976, Ferguson had been temporarily transferred to Macon to complete an installation project for South Central Bell Telephone Company. After completing his day’s work at 4:15 p. m. on January 16, Ferguson traveled in his privately owned motor vehicle from Macon toward his home when he was involved in a collision which resulted in his death.

Although Ferguson resided at Ethel, his base location was Meridian and he commuted to Meridian in his own vehicle at his expense. As an installer, Ferguson’s duty was to install telephone central office equipment wherever assigned by his employer. Western Electric was engaged in a contract installation for South Central Bell Telephone Company at Macon which commenced December 8, 1975, with an estimated completion date of April 18, 1976. Ferguson was transferred on temporary assignment to Macon on December 22, 1975, to Louisville on January 8, 1976, and on January 14, was transferred back to Macon. While working on temporary transfers his work schedule was from 7:30 a. m. to 4:15 p. m. with a 45 minute lunch period. Following the completion of his day’s work at 4:15 p. m. he did not have any responsibility as far as service for Western Electric and was free to do whatever he wanted to until 7:30 a. m. the next day, unless called out on an emergency.

During the year 1975, Ferguson was assigned duties at his base location in Meridian for six months and seven days. During the remaining portion of the year he was on temporary transfer to Durant, Kosciusko, Starkville, Forest, Macon and Louisville. Before his death in 1976, Ferguson was not assigned any duties in Meridian, but was on temporary assignment. When Ferguson was initially transferred on each temporary assignment, he was allowed 13$ per mile to cover travel expense on the initial transfer and an additional 13$ per mile when reassigned to. another location.

Section 1.10 of the CWA Installation Contract defines a temporary transfer as the transfer of an employee from one work location to another work location without a change in the employee’s base location. Section 4.31 of the contract provided for per diem allowances for employees working on temporary transfer. The amount of the daily allowance was based on the distance between the base location and the place of the temporary assignment. At the time Ferguson was killed the per diem allowance was as follows: Up to 50 road miles— $10.25; 50 up to 150 road miles — $15.50; 150 road miles and over — $22.50.

The manner in which Ferguson spent the per diem allowance was not restricted by Western Electric. Although he was paid a per diem allowance for 7 days each week while on temporary transfer, he only worked 5 days per week. Ferguson returned to his home at the end of each work day where he spent the time with his wife and children. Ferguson was subject to numerous transfers during the course of his employment with Western Electric having been transferred nine times in 1975 and two times in 1976 before his death on January 16. While Ferguson’s hours of employment were regular and his place of employment was fixed while on temporary assignment, traveling was a substantial part of his employment responsibility. Western Electric contends that the per diem paid Ferguson was not reimbursement for travel expenses, but only for board, lodging and laundry while on temporary transfer. This is an unrealistic view because the per diem allowance was based on the distance from Ferguson’s base location to the place of his temporary assignment, and this payment was at least in part in the nature of a travel allowance.

Western Electric argues that Ferguson’s death is not compensable because: (1) he was not being paid travel expenses on the date of his death, (2) he was traveling to his home in his privately owned vehicle after working hours, (3) he was not on his employer’s premises or on his employer’s business when he was killed, (4) his travel did not come within one of the exceptions to the going and coming rule.

In support of its argument, Western Electric relies on Edward Hyman Co. v. Rutter, 241 Miss. 301, 130 So.2d 574 (1961) and Phillips Contracting Co. v. Adair, 245 Miss. 365, 148 So.2d 189 (1963) where compensation was not allowed for the death of employees under the going and coming rule. The facts in these cases are distinguishable.

In Phillips, the deceased employee was paid by the hour, he was not reimbursed for travel expenses, and his use of the employer’s vehicle in making a mid-week visit to his home was contrary to company policy.

In the Hyman case, Rutter was employed as plant manager for Hyman Company at Prentiss. On January 1, 1959, Rutter lived in Covington, Louisiana where he owned a home in which he resided with his wife and two children. The children were attending school in Covington and Rutter’s wife was expecting another child in April, 1959. Rutter was paid a salary of $200 per week and $100 per month for living expenses while he remained in Prentiss during the week. Rutter was paid 8c per mile for use of his automobile while traveling on company business. The company was reluctant to hire a manager who did not live in Prentiss, but agreed that claimant’s family could stay in Covington until the school year ended. Rutter was required to reside in Pren-tiss during the work week and the $100 per month living expenses was for his living expenses in Prentiss.

Instead of residing in Prentiss, however, and unknown to his employer, Rutter commuted daily to Covington to stay with his family. He was injured in an automobile wreck while enroute from Prentiss to his home and contended that his per diem expense made his travel work connected and therefore compensable. We held that the facts did not bring Rutter within any of the exceptions of the going and coming rule.

The facts in Hyman are unlike the facts in Ferguson because Rutter was required to live in Prentiss, but commuted home daily contrary to company policy. In our case, Ferguson was not required to live in Macon and his per diem allowance was based at least in part on mileage between his base location and the site of his temporary assignment. We can discern no reason for paying Ferguson a per diem allowance of different amounts based entirely on the distance between his base location and the place of his temporary transfer unless the allowance was based in part on the expectation that it would be used to defray travel expense to Ferguson’s home when he was not on duty.

In Aetna Finance Co. v. Bourgoin, 252 Miss. 852, 174 So.2d 495 (1965), we stated:

This Court is firmly committed to the general rule that the hazards encountered by employees while going to or returning from their regular place of work and off the employer’s premises are not incident to employment and accidents arising therefrom are not compensable. Wallace v. Copiah County Lumber Company, 223 Miss. 90, 77 So.2d 316 (1955); Dunn, Mississippi Workmen’s Compensation § 103 (1957). And an employee who claims an exception to this general rule has the burden of proving that he comes within one of the exceptions. Edward Hyman Co. v. Rutter, 241 Miss. 301, 130 So.2d 574 (1961). (252 Miss. at 858, 174 So.2d at 497).

In Pace v. Laurel Auto Parts Co., Inc., 238 Miss. 421, 118 So.2d 871 (1960), we held that an exception to the general rule arises when the employer furnishes the means of transportation or remunerates the employee to help defray his transportation cost. The employee in that case was given $3 per week in cash to help pay transportation to and from his work. The accident occurred when the employee was using his own vehicle from the employer’s premises to his home and compensation was allowed.

Compensation was allowed by the New York Supreme Court in a case where the facts are very similar to our case. Fisher v. Otis Elevator Co., 28 A.D.2d 598, 279 N.Y.S.2d 769 (1967). In Fisher a construction worker was employed at a job site about 78 miles from his home in Syracuse, New York. Under the union agreement he was paid mileage for his original trip to the job site and on his final trip home after completion of the project, plus an additional per diem allowance of $7.50 per day. The New York Court held that the death of the worker in an automobile accident while returning home for a visit, arose out of and in the course of his employment, and stated:

The manner in which the employee spent the per diem allowance was not restricted by the employer. Although claimant was paid a per diem allowance for a seven-day week, he and the other employees worked but five days per week. At the end of a work week, he returned to his home in Syracuse on Friday, May 28, and was not expected to return until Monday. He spent the weekend visiting his children and upon his return to the job site he was killed in an automobile accident.
The record clearly establishes that there were no restrictions on the use of the $7.50 allowance and that the employer knew, expected and impliedly acquiesced in the practice of periodic trips home made by such employees. There was substantial evidence to sustain the board’s finding that this payment was at least in part in the nature of a travel allowance. (279 N.Y.S.2d at 770).

We find the reasoning of the New York Court persuasive. The facts in our case are not in dispute, and show that the per diem allowance paid Ferguson was, at least in part, in the nature of a travel allowance. We hold that the Commission erred as a matter of law when it reversed the administrative judge and held that Ferguson’s death was not compensable.

II

IS THE EMPLOYER ENTITLED TO CREDIT FOR THE SUMS PAID FERGUSON’S DEPENDENTS UNDER ITS PENSION AND DISABILITY PLAN?

Western Electric contends that if it is determined that Ferguson’s death is com-pensable, then it is entitled to a credit of $14,428.08 paid by it under its plan for employee’s pension, disability benefits and death benefits. Western Electric is a self insurer under the Mississippi Workmen’s Compensation Act, and also afforded its employees sickness benefits, disability benefits, accidental death benefits, and pension benefits in accord with a pension plan funded solely by Western Electric. Section 8, paragraph 27 of the plan provides in part:

In case any benefit or pension, which the Committee shall determine to be of the same general character as a payment provided by the Plan, shall be payable under any law now in force or hereafter enacted to any employee of the Company, to his beneficiaries or to his annuitant under such law, the excess only, if any, of the amount prescribed in the Plan above the amount of such payment prescribed by law shall be payable under the Plan; .

The pension plan was designed to provide a continuity of income to the employee or his dependents in the event of disability or death. Paragraph 27 was designed to prevent duplicate payments for the same injury or death.

While we do not have any Mississippi cases involving credit for death benefits paid by employers, we held in Koestler’s Bakery, Inc. v. Boland, 299 So.2d 205 (Miss.1974) and in Taylor Construction Co. v. Harlow, 269 So.2d 337 (Miss.1972), that payment of claimant’s salary under the facts in those cases would be considered as having been made in lieu of, and as having included, the compensation payments, and credit should have been allowed for the payments.

Western Electric, through its pension plan, affords immediate continuity of income to an injured employee or to his dependents in the case of his death. Employers who willingly adopt this practice should be commended and encouraged rather than penalized. Employers should be permitted to claim the benefits of payments made voluntarily. To refuse credit would inevitably cause employers to be less generous.

If Western Electric cannot receive credit for the death benefits paid to the dependents of Ferguson in this case, it will result in employees or their dependents being penalized because employers would seek a determination of compensability in order to avoid double payments for the same injury or death.

Appellee responds to the argument of Western Electric by stating that a decision of this question is premature and would require this Court to make a decision on a matter that was neither dealt with nor developed fully below. We note that Western Electric in its answer to the motion to controvert raised the question before the administrative judge who denied credit for the death benefits paid by Western Electric.

Appellee also responds by stating:

In addition, Western Electric’s argument on this point completely ignores the role that a labor union might play in forcing, through arms-length bargaining, the provisions of such benefits as are provided in the Western Electric employees’ pension disability and death benefits plan. The plan was one hammered out in the open marketplace between a corporation and a union and Mrs. Ferguson respectfully submits that it would be beyond the scope of the record, the issues, the facts to issue a decision on this point raised by the appellant.

This argument is not persuasive because in Koestler’s Bakery, Inc. and Taylor Construction Co., supra, we considered the matter of credits when employers had made payments to injured employees. Further, Section 8, paragraph 27 of the disability and pension plan of Western Electric prevents duplicate payments for the same injury or death.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED TO THE WORKMEN’S COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

BOWLING, J., took no part.

      . See the following cases in other states allowing credit for payments to employees. Cowan v. Southwestern Bell Telephone Company, 529 S.W.2d 485 (Mo.1975); Strohmeyer v. Southwestern Bell Telephone Company, 396 S.W.2d 1 (Mo.1965); Poole v. E. I. DuPont DeNemours & Co., 227 S.C. 232, 87 S.E.2d 640 (1955); Sharp v. Esso Standard Oil Co., 72 So.2d 601 (La.App.1954); Lion Oil Company v. Reeves, 254 S.W.2d 450 (Ark.1952).


text:
    Homer ATKINSON v. STATE of Mississippi.
    No. 51126.
    Supreme Court of Mississippi.
    June 6, 1979.
    Wright & Phillips, Morris C. Phillips, Jr., A. R. Wright, Jr., Carthage, for appellant.
    A. F. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

Homer Atkinson was convicted of manslaughter by culpable negligence arising from an automobile collision and sentenced to a term of 20 years by the Circuit Court of Leake County.

Defendant filed a motion for a new trial on the ground that one of the jurors failed to respond to the following question asked on voir dire examination: “Has any member of your family died as the result of an automobile accident?”

Several prospective jurors answered the same question in the affirmative and none served on the jury. After the trial, defendant discovered that two close relatives of one of the jurors were killed in separate automobile accidents. He immediately filed a bill of exceptions, an amended motion for a new trial, and made a record on the issue. The juror was called as a witness on the motion and testified that she was on the jury, that her stepson and step-grandson were killed in separate automobile accidents. The juror also testified that if she heard the question she did not understand it because she was on the back row.

In Dase v. State, 356 So.2d 1179 (Miss.1978) and Odom v. State, 355 So.2d 1381 (Miss.1978), we held that where a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial determine whether the question propounded to the juror was:

(1) relevant to the voir dire examination;
(2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. (355 So.2d at 1383).

In this case the answers to the three inquiries were all affirmative. The following question and answer was propounded to and given by the juror:

Q. I want to ask you did those deaths have any influence on your decision as a juror?
A. Well, I think it did.

An objection to the question and answer was interposed by the state which was properly sustained; however, if a similar question had been asked the juror during the jury selection process and the same answer given, the question would not have been objectionable and the juror should have been excused. Therefore, we are of the opinion that prejudice is inferable from the juror’s failure to reveal the information that two of her close relatives had been killed in automobile accidents before the trial of this case. If defendant’s attorney had been in possession of this information at the time the jury was selected, in all probability, the juror would have been excused either peremptorily or for cause.

Defendant also assigns as error the inflammatory argument of the prosecuting attorneys, but because we are reversing the case we make no comment on this assignment of error except to state that the prosecuting attorneys, in arguing the case at a new trial, should refrain from making deliberate, inflammatory statements.

REVERSED AND REMANDED.

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

BOWLING, J., took no part.


author: SUGG, Justice, for the Court:

text:
    STATE of Mississippi et al. v. HANSON PROPERTIES, INC., a Delaware Corporation.
    No. 51265.
    Supreme Court of Mississippi.
    June 6, 1979.

      A. F. Summer, Atty. Gen. by William James Cole, III, Sp. Asst. Atty. Gen., Jackson, Melvin Mitchell, Carl A. Megehee, Pas-cagoula, for appellants.
    Karl Wiesenburg, Pascagoula, for appel-lee.
    Before SUGG, BROOM and COFER, JJ.
   SUGG, Justice, for the Court:

Hanson Properties, Inc. filed a bill of complaint in the Chancery Court of Jackson County to confirm title to land claimed by it which was a part of the “Lowry Island Lands.” The chancery court overruled a demurrer and an interlocutory appeal was granted.

In International Paper Co. v. Mississippi State Highway Dept., 271 So.2d 395 (Miss.1972) and Money v. Wood, 152 Miss. 17, 118 So. 357 (1928), we held that the Land Commissioner could not sell Lowry Island Lands under the provisions of Miss.Gen.Laws ch. 17 (1884), [now section 29-1-65 Mississippi Code Annotated (1972)]. Under the authority of these cases we hold that the chancellor erred in overruling the demurrer.

Complainant also alleged that its predecessors in title were in actual occupancy of the land before 1875 and claimed ownership by virtue of such occupancy and possession. The state had not attempted to divest itself of title to the Lowry Island Lands before the Act of 1884, neither had it set up a procedure for this purpose; therefore, possession, absent such authority, did not ripen into title.

The bill of complaint contained a prayer for alternate relief in the following language:

Alternatively, that Complainant is entitled to have a patent issued to it by the Land Commissioner of the State of Mississippi under the provisions of Chapter 398 of the Laws of 1954 (Senate Bill 1536) and to have its title quieted and confirmed as against all of the defendants.

The bill does not show that complainant has applied to the Land Commissioner under the provisions of Miss.Gen. Laws ch. 398 (1954); therefore, it has not exhausted its administrative remedies with respect to this prayer for alternate relief. Scott v. Lowe, 223 Miss. 312, 78 So.2d 452 (1955). In addition if complainant applies for a patent under Chapter 398, two additional questions would arise: (1) Is Chapter 398 subject to the same interpretation as the Lowry Island Act of 1884 set forth in International Paper Co. and Money, supra? (2) Has Chapter 398 been repealed by implication because it was not included in the Mississippi Code of 1972?

Complainant also prayed for the following relief:

If Complainant be held to be not entitled to any of the relief prayed for here-inabove, then Complainant prays that in equity it be granted the first priority to lease said lands in the manner prescribed by law from either the Pascagoula Port Commission by the authority granted such Port Commission pursuant to Section 9 of Chapter 199 of the Laws of 1956, or from the State Land Commissioner with the approval of the Governor, under the provision of Sec. 29-1-107, Miss.Code of 1972, and the Court will adjudicate and determine which of said public agencies has the right to lease such lands to the Complainant, so that there may be no question as to the validity of such lease.

The bill does not allege that complainant has attempted to lease the land from either the Pascagoula Port Commission or the State Land Commissioner under the statutes cited in its bill of complaint; therefore, it has not exhausted its administrative remedies with respect to this prayer for alternative relief.

Complainant also prayed:

Alternatively, decree that the Complainant, so long as it uses such land for purposes consistent with the public trust for which such lands are held by the State of Mississippi and not in contravention thereof, it may continue to occupy and use such lands to the exclusion of any other private firm or corporation but not against any paramount interest asserted by the State of Mississippi.

The judicial department is without power to grant this prayer for relief because tidelands may only be disposed of as authorized by the legislature within the narrow confines of our holding in Treuting v. Bridge and Park Com’n. of City of Biloxi, 199 So.2d 627 (Miss.1967).

We therefore conclude that the demurrer should have been sustained and the bill of complaint dismissed.

REVERSED AND RENDERED.

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

BOWLING, J., took no part.