text:
    Wilbert TABB, Sr., Plaintiff-Appellant v. LOUISIANA HEALTH SERVICES & INDEMNITY CO., Defendant-Appellee.
    No. 6199.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Granted Feb. 17, 1978.

      J. Minos Simon and Gerald J. Block, Lafayette, for plaintiff-appellant.
    Cooper & Sonnier by Paul J. Hebert, Abbeville, for defendant-appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   FORET, Judge.

From a summary judgment dismissing his demands, plaintiff, Wilbert Tabb, Sr., appeals. Appellant cites the following as errors of the trial court:

1. The trial judge erred in considering appellee’s affidavits and attachments when appellee’s affidavits failed to meet the requirements of LSA-C.C.P. Arts. 966 and 967.
2. The trial judge was in error in apparently determining that no genuine issue of material fact existed in this litigation.
3. The trial judge erroneously ruled that appellee was entitled to summary judgment as a matter of law.

I.

AFFIDAVITS AND ATTACHMENTS

Plaintiff-appellant Tabb alleges that the affidavits and accompanying documents filed by defendant Blue Cross, in support of its motion for summary judgment, should not have been considered by the trial judge because some of the affidavits were untimely filed, and the attachments thereto were not certified as true and correct copies of that which they purported to be.

The first allegation, that of untimeliness, is moot. The hearing on the motion for summary judgment was originally scheduled for February 7, 1977. However, the hearing was postponed until March 7, 1977, upon agreement between appellant and ap-pellee. Thus, the affidavit of Jude R. Ger-vais, dated February 4, 1977, although perhaps untimely for the first schedule hearing, was not untimely for the second. LSA-C.C.P. Art. 966.

Appellant Tabb contests the trial judge’s consideration of the letter attached to the February 4, 1977, affidavit of Jude R. Ger-vais, and the copy of the insurance contract annexed to the December 30,1976, affidavit of Hampton R. White. Appellant cites LSA-C.C.P. Art. 967 as authority for his proposition that documents attached to an affidavit must be certified or verified in order to be used at a hearing on a motion for summary judgment.

LSA-C.C.P. Art. 967 specifies the conditions under which documents can be used to support, or contradict, a motion for summary judgment. It provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other orders as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt. As amended Acts 1966, No. 36, § 1.

The February 4, 1977, affidavit of Jude R. Gervais was used to show that the Lafayette Parish Sheriffs Department, rather than Blue Cross, had terminated the group hospitalization and medical policy which existed as between them. The affidavit was made on personal knowledge: Mr. Gervais was the finance officer of the Lafayette Parish Sheriff’s Department, and was familiar with the contract of insurance. In his affidavit, Mr. Gervais swore that the attached letter was a true and correct copy of that letter which he mailed to Blue Cross on March 27, 1972.

“. . .On March 27, 1972, he wrote a letter, a copy of which is attached hereto and made a part hereof, which effectively terminated the coverage of this group hospitalization and medical policy as of March 31, 1972.” (Tr., pg. 46)

The December 30, 1976, affidavit of Hampton R. White was submitted to introduce a sworn copy of the contract of insurance as between Blue Cross and the Lafayette Parish Sheriff’s Department. It fulfilled all of the requirements of LSA-C.C.P. Art. 967. It was an affidavit of one attesting to his personal knowledge. White was the staff attorney and head of the Contracts Maintenance Department of Blue Cross. In his affidavit, White swore that the attached insurance policy was a true and correct copy of the one over which this litigation arose.

“. . . That the attached is what the Company’s records show to be a true and correct copy of the kind of Hospital and Surgical-Medical Group Contract No. 4113, and any riders and endorsements issued to Lafayette Parish Sheriff Department by Blue Cross of Louisiana/Louisiana Health and Indemnity Company.” (Tr., pg. 48)

We find that the affidavits and accompanying documents were both timely filed and were executed in compliance with LSA-C. C.P. Art. 967. The trial judge properly admitted and considered same in his determination.

II.

SUMMARY JUDGMENT

LSA-C.C.P. Art. 966 specifies under what instances the summary judgment may validly be rendered. It provides:

“. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis added.)

The jurisprudence thereunder has announced the following rules of law to govern the disposition of motions for summary judgment.

“All doubt concerning disputes as to a material fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Summary judgment is not to be used as a substitute for trial. Odom v. Hooper, 273 So.2d 510 (La., 1973).” Walker v. Graham, 343 So.2d 1171 (La.App. 3 Cir. 1977). “The fact that a litigant is unlikely to prevail on the merits is not sufficient to sustain a motion for summary judgment. Warden v. Southwest Louisiana Hospital Ass’n., 300 So.2d 590 (La.App. 3 Cir. 1974).” Wick v. Sellers, 301 So.2d 744, 746 (La.App. 3 Cir. 1974).

A. QUESTION OF MATERIAL FACT

In this case, appellant Tabb, in his petition, alleged that on November 7, 1970, while performing his duties as a sheriffs deputy in investigating a burglary, he was shot; that he became a paraplegic as a result; that on the day of the shooting, he was a designated beneficiary under an accident and health insurance policy issued by Blue Cross; that on March 31, 1972, Blue Cross terminated said insurance policy; that the claims sought originated from the November 7, 1970, shooting, and that Blue Cross is thus liable therefor. In answer to a request for admission of facts, Blue Cross admitted that appellant Tabb was the beneficiary of an accident and health insurance policy issued by it to the Lafayette Parish Sheriff's Department, and that the said Sheriff’s Department itself terminated the policy on March 31, 1972.

Appellant Tabb argues that a question existed as to which party, Blue Cross or Lafayette Parish Sheriff’s Department, terminated the policy, and that there is therefore a dispute as to material fact. Appellant Tabb was an insured because he was an employee of the Lafayette Parish Sheriff’s Department. He did not personally execute the insurance contract with Blue Cross. He did not have personal knowledge of the identity of the party terminating the policy. His affidavit thus could not be used. That of Jude R. Gervais, the finance officer of the Sheriff’s Department, was the only sworn statement of personal knowledge as to which party terminated the policy.

The only issues existing were those of law. Appellant and appellee agreed that Blue Cross had formerly issued an accident and health insurance policy to the Lafayette Parish Sheriff’s Department; that said insurance contract was terminated on March 31,1972, and that Blue Cross refused to pay for any hospital services rendered after that date. The only question remaining was whether or not the insurance policy covered the claim of appellant Tabb. A determination of same required only a review of the provisions of the policy and a construction to be placed thereupon.

B. JUDGMENT AS A MATTER OF LAW.

Plaintiff-appellant Tabb contends that as the accident for which the hospital services, for which he seeks compensation, occurred during the term of the insurance contract, the subsequent cancellation by defendant-insurer, Blue Cross, can have no effect as regards those services. As authority for that proposition, he cites the case of Militello v. Bankers Life & Cas. Co., 141 So.2d 454 (La.App. 4 Cir. 1962). In the alternative, he alleges that Article XI(d) of the insurance contract was against public policy and should not be considered as a part of the insurance contract.

There are two provisions of the insurance policy which require construction so that a disposition of this case can be made. The first is Article IV, wherein are enumerated those services for which Blue Cross was obligated to its insured. Those services included:

(a) Room and Board allowance;
(b) Use of operating room;
(c) Anesthesia material;
(d) Laboratory examinations;
(e) Oxygen and its administration;
(f) Basal metabolism tests;
(g) Medical and surgical supplies;
(h) Surgical dressings, plaster casts and ordinary splints;
(i) All drugs and medicines .
(j) Electrocardiograms;
(k) X-ray examinations and X-ray therapy;
(7) Physical therapy;
(m) Administration of anesthesia by hospital employee;
(n) Intravenous injections and solutions;
(o) Transfusion fee and equipment;
(p) Electroencephalograms;
(q) Electroshock therapy;
(r) Traction;
(s) Use of intensive care unit, heart unit and burn unit. . . . (Tr., pp. 55, 77)

The other was Article XI(d) which provided:

“The benefits under this Contract shall be provided to the extent practicable in the form of services, and payment therefor by or on behalf of the Company shall constitute a complete discharge of the obligation of the Company to the extent of the services rendered in accordance with the terms and conditions of this contract.
(D) No Subscriber shall be entitled to benefits for any services received after termination of individual coverage or of this Contract regardless of the cause of termination.” (Emphasis added.) (Tr., pg. 60)

The language of the above two provisions of the insurance contract is clear and unambiguous. The services included within the insurance policy are specifically stated. Most of them would be provided to a patient as they were prescribed by his treating physician. The term “received”, according to its usual and ordinary definition, means “taken”, “acquired”, or “experienced”. Article XI(d) means that the insurance policy covers those services received by the patient. Blue Cross would only be responsible for those services provided to the patient during the existence of the policy.

The case of Militello v. Bankers Life & Cas. Co., supra, cited by appellant, is inappropriate for the disposition of this case. In that case, suit was instituted for benefits provided under a hospital indemnity, and a preferred family hospital-surgical, insurance contract. The former insurance policy covered indemnity for sickness contracted during the existence of the policy; the latter insured against certain hospital and surgical expenses caused by

“sickness, illness, or disease which is contracted and begins and causes loss beginning while the policy is in force. . .”

The Fourth Circuit Court of Appeal ruled that a cancellation, effective after the date of illness or disease, would not affect an already-existing claim.

In the case of Oceanonics, Inc. v. Petroleum Distributing Co., La., 292 So.2d 190 (1974), the Louisiana Supreme Court was confronted with a general liability insurance policy in which a provision similar to Article XI(d) in this case was included. The Court held:

“. . .we cannot say that public policy dictates a judicial declaration that general liability insurance policies providing completed operations and products liability coverage cannot exclude coverage for damage arising from an occurrence (which is defined as an accident “which results, during the policy period, in bodily injury or property damage”) after the policy period, although the delictual act which gave rise to the occurrence took place during the policy period.” Oceanonics, Inc. v. Petroleum Distributing Co., supra, at page 192.

Costs of this appeal are assessed against plaintiff-appellant, Wilbert Tabb, Sr.

AFFIRMED.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    Barbara Castille VIDRINE, Individually, etc., Plaintiff-Appellee, v. Marion Overton WHITE et al., Defendants-Appellants.
    No. 6200.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Feb. 17, 1978.

      White & Pitre, Joshua J. Pitre, Opelousas, for defendants-appellants.
    Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Defendant, Marion Overton White, has appealed from a jury verdict awarding plaintiff, Barbara Castille Vidrine, $3,000 individually, and $7,000 as natural tutrix of the minor, Ricky Hebert. Ricky, then ten years old, was bitten by a Boxer dog in the White yard on June 1, 1973.

The matter has been to the Supreme Court twice in the interim on ancillary matters. The trial court granted summary judgment in favor of defendant, Allstate Insurance Company, on the issue of coverage, affirmed by this court, 306 So.2d 465, and reversed summarily by the Supreme Court, which found a material issue of fact, 309 So.2d 679. There has also been a Supreme Court ruling in regard to the adequacy of White’s suspensive appeal bond. See 328 So.2d 375. A devolutive appeal has now been perfected.

The material factual issue of coverage under the Allstate policy has now been resolved by a jury against White. Allstate was not cast in judgment. White contends that this is erroneous.

In answers to interrogatories, Allstate admitted issuing policy no. 45 355 547 to White. White’s undated check for the premium of $213 was endorsed for deposit by Allstate on July.3, 1972. The term of the policy is May 30, 1972, through May 30, 1973. The policy covered “homeowners Bldrs. Risk” on a residence under construction by White in Plaisance and the contents of a residence White rented on North Court Street in Opelousas. The dog-bite .took place at North Court Street. Allstate contends that the policy expired by its terms on May 30, 1973, just prior to the dog-bite. Confusing the issue are two affidavits by Allstate employees stating that the policy was cancelled January 14, 1973, for nonpayment of premium. White testified that this was the first basis on which Allstate denied his coverage, and Allstate furnished him no defense to the suit. Plaintiff White’s check stubs indicate the premium check to Allstate was written June 23,1972. White testified in deposition that he sent the check on the same day that he talked to Allstate’s agent, Paul Jones, about securing the insurance and stated in an affidavit that he talked to Jones around June 20, 1972. White said the premium was sent directly to Allstate. Agent Jones testified that he issued an oral binder to White on the telephone at 2:00 p. m. on May 29,1972. White and his secretary, Emily Rose Richard, testified that White was in court in New Iberia that day, leaving before lunch and arriving back after five. Jones said he mailed an application for coverage to the Allstate regional office in Jackson, Mississippi, and the policy was issued. Henry Denton of the Allstate Jackson office testified that White’s policy was approved by the Allstate underwriters on May 30, 1972. The policy was written “COD”, which meant that the premium was due when it was delivered to the insured. Denton testified that the policy was never renewed by White. White admitted in deposition that he was only interested in coverage for one year, while his new home was under construction and unoccupied. White testified that construction of the new house did not start until June and he did not need or request insurance prior to that time.

Mary Jane Papillion Joury testified that she was employed in White’s office as secretary to attorney Joshua Pitre. White’s secretary was on vacation, and Ms. Joury typed out the Allstate check and placed a local call for White to Allstate’s representative the same day.

_ There is an evidentiary basis for the jury’s conclusion that there was no coverage under the Allstate policy at the time of the accident because it had expired. The jury’s decision is free of manifest error.

Appellant White contends that Ricky was a trespasser to whom no duty was owed; that the jury erred in casting White in judgment when the fault, if any, was that of his wife; and that the dog-bite resulted from Ricky’s fault, contributory negligence, and assumption of the risk, which make Holland v. Buckley, 305 So.2d 113 (La.1974) inapplicable. In the alternative, it is urged that the award is excessive in view of White’s ability to respond in damages.

The White family now resides in the Plai-sance community near Opelousas, where they moved June 2, 1973, the day after the accident, which occurred while they were living on North Court Street, Opelousas, in a house rented from James Brown. The lot of the rental house, which measures approximately 200 X 220 feet, was surrounded by a six-foot hurricane fence. The only gate which was used was one in the front, although there were two others in the back. The Whites owned a mixed German Shepherd and a Boxer dog, both grown animals acquired as puppies for protection. The Boxer was not as friendly as the Shepherd. There is no sign warning of the dogs’ presence.

The circumstances surrounding the incident are reasonably reflected by the testimony of the various witnesses, as follows:

Mrs. Doris Morain White testified that she saw Ricky Hebert come to the door from her kitchen window and immediately went to meet him because the dogs were at his heels. When she opened the door, Ricky ran inside. She offered to walk Ricky out and told him the dogs would not hurt him as long as he was with her. Ricky appeared frightened. After they walked down the steps, Ricky ran toward the gate and was bitten by the Boxer. Mrs. White was recuperating from a serious illness and could not keep up with him. When Mrs. White reached Ricky she kicked the Boxer in the head and got the boy out of the gate. There were chains at the side of the house which could be used to secure the dogs after they were caught. They did not always come on command.

Both Mr. and Mrs. White admitted that there had been previous complaints about their dogs biting a Mrs. Boutte and an unidentified man.

Mrs. Elizabeth Pitre was driving her husband, Raphael, and Ricky Hebert on their rounds to sell cantaloupes. Mrs. Pitre said that Ricky would not listen or mind. Both Mr. and Mrs. Pitre said they hollered at Ricky not to go in this fenced yard. Raphael said he had cautioned Ricky not to enter any fenced yards. Mrs. Pitre said Ricky and the lady with him were almost to the gate when the dog bit Ricky as he was trying to get out.

Ricky testified that Mr. and Mrs. Pitre came to his mother’s home the day of the accident to get him to go peddling with them. Ricky assisted in selling cantaloupes and onions and said he had been told to go to every house. Ricky testified that he did not see the dogs until he knocked on the White front door and they came running from under the house. Mrs. White said she did not want any cantaloupes and would escort him to the gate. According to Ricky, he was still with Mrs. White when he was bitten.

Barbara Castille Vidrine testified that she was separated from Ricky’s stepfather, Joseph K. Vidrine. Ricky is one of six children born of her marriage to Simon Hebert, Jr., now deceased. She and the children are supported by social security. Ricky had not had any previous experience in selling door-to-door. Mrs. Vidrine says that Ricky receives poor grades in school because he doesn’t pay attention in class. She and her grown daughter alternated in staying with Ricky 24 hours a day during his first week in the hospital. Ricky was unable to walk and was in a wheelchair for approximately two weeks after the accident and then started receiving therapy.

Social worker Lona Bourg testified that Ricky’s test scores from school showed a below normal intelligence. The figure given in the records for his I.Q. is 55; his grades and achievement scores are commensurately low. He failed the first grade.

Lona Bourg, Elizabeth Calais and James Harris testified that one could not enter the White yard without being greeted by the dogs at the gate.

Paul Son testified that he witnessed Ricky’s accident. He saw Ricky open the gate and enter the yard while the dogs were barking at him. According to Son, Ricky was being escorted back to the gate when he broke away and was bitten.

Celeste Young testified that she had known White all his life and visited the White residence frequently. Each time she visited, she had to blow the horn to get someone to escort her into the yard because of the dogs. It was stipulated that the testimony of Ricky Shaw, the Rev. Shaw and Mrs. Paul Son would be substantially the same as that of Celeste Young.

Ardina Jones, approximately 12 years old at the time of the accident, testified that her home was across the street from the Whites. According to this witness, Ricky broke loose from Mrs. White before he was bitten.

Mrs. Amy Jones, another resident of North Court Street, said the dogs were barking at Ricky when he entered the White gate. She testified that the dogs did not go after Ricky until he left Mrs. White’s side.

Sister Ann Catherine Bizilion testified that she visited the White residence on North Court Street frequently and the dogs always jumped up and barked at the gate when she arrived.

Photographs in evidence show a large wounded area on the inside of Ricky’s left calf. The Pitres took Ricky to the hospital after the accident. Examination showed puncture bite wounds in the left chest and a 12-inch long laceration on the inner aspect of the left calf with complete loss of tissue in an area approximately 6 inches by 3 inches. Surgery was performed under general anesthesia. The wounds were closed with nylon and wire sutures. A plastic splint was placed on the leg. Ricky remained in the hospital for 20 days receiving physical therapy to help him extend his leg and walk better. Dr. J. G. Patton discharged Ricky with instructions for soap and water scrubs and an office appointment in a week. Dr. Patton noted the possibility of a skin graft being necessary in the future. Dr. Seldon J. Deshotels reported in August, 1973 that Ricky had recovered but had residual scar tissue approximately six inches long and a quarter inch in width which should be watched for keloid formation. Ricky’s hospital bill totaled $1729.55 and his doctors’ bills $588.

White testified about his debts, including a mortgage of $60,000 on the Plaisance house and property, two loans of $25,000 and $15,000, $1800 on a car, $2,000 on his office and $5,000 or $6,000 in miscellaneous debts, as well as a mortgage on his farm equipment. The Whites have three minor children. Mr. White’s net income for 1974 was $6,988.35.

The jury was charged with the duties owed to trespassers, licensees and invitees, respectively. However, Ricky’s status as trespasser, licensee, or invitee is not determinative of the duty owed him by the Whites. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La., 1976).

LSA-C.C. art. 2321 provides in pertinent part that:

“The owner of an animal is answerable for the damage he has caused; . . . ”

Holland v. Buckley, 305 So.2d 113 (La., 1974) holds that, when a domesticated animal harms another, the owner of that animal is presumed to be at fault under this article. Defendant White is the owner of the Boxer which injured Ricky and can rebut this presumption only by showing that the harm resulted from some independent cause. The three possibilities are: a fortuitous event; the fault of the victim, Ricky; or the fault of a third person.

There was no fortuitous event.

The evidence indicates that Mrs. White acted reasonably and tried to the best of her ability to keep Ricky from being bitten. No fault on her part has been shown.

According to Mr. and Mrs. Pitre’s testimony, they had cautioned Ricky about entering fenced yards and specifically told him not to enter the White yard. While it might have been better for them to employ a boy of greater age and understanding, there is no showing that they were aware that his judgment might be less than that of the average ten-year-old boy. Ricky was, to some extent, being supervised by the Pitres and fault on their part has not been established.

In considering the question of fault on Ricky’s part, the rule is that a child of 10 has reached the age of reason and can be expected to follow instructions. Dotson v. Continental Insurance Co., 322 So.2d 284 (La.App. 1 Cir. 1975); writ denied, 325 So.2d 606 (1976). Here, as in Dotson, the dogs were contained in a fenced yard. They were not running loose, as in Holland, supra. In Dotson the dogs were in the back yard and there was unhindered access in the front; here, the fence enclosed the front yard as well. However, in both situations, there was testimony that the child bitten had been instructed not to go inside the fence. Ricky’s action in going into the White yard in defiance of instructions and warnings, if the dogs were present and barking, might constitute negligence or fault for the average 10-year-old child. However, even if Ricky’s action was faulty for one of normal understanding [Compare Parker v. Hanks, 345 So.2d 194 (La.App. 3 Cir. 1977), writ denied 346 So.2d 224], it must be considered in light of his age, maturity, intelligence and knowledge. Gremillion v. State Farm Mutual Insurance Co., 331 So.2d 130 (La.App. 3 Cir. 1976). Ricky was new to the business of selling door-to-door. He was incapable, perhaps because of mental disability, of heeding instructions given to him and had the mentality of a much younger child. Louisiana courts have generally presumed incapacity in the case of children seven and under. Jackson v. Jones, 224 La. 403, 69 So.2d 729 (1954). Ricky cannot be regarded as a child of ordinary prudence. Whether one is capable of understanding and appreciating a danger is a factual question and the jury here may have concluded that Ricky was not capable of legal fault. The jury may have found that any victim fault on the part of Ricky in entering the yard was not a cause of his injury. He had reached a place of safety inside the house and was bitten as he was being escorted from the yard by Mrs. White. The jury may also have believed Ricky’s testimony that he had been instructed to go to every house, fenced yard or not, and that the dogs were under the house when he entered the yard, in spite of the testimony of disinterested witnesses to the contrary. It is certainly more consistent with usual experience to find that he would not have entered the yard if the large dogs were barking at him.

The jury found that contributory negligence, assumption of risk or fault on the part of Ricky, was not proven, and there is a reasonable basis for this conclusion.

It is true that the yard in this case belonged to the dogs, and Ricky, according to the testimony, was not welcome on the premises. However, the Whites’ animals, although not vicious, were at least dangerous, and the Whites were on notice from past complaints that there was a possibility of their biting one on the premises. See the discussion in Vredenburg v. Behan, 33 La. Ann. 627 (1881).

Under these circumstances, defendant White, as head and master of the community owning the dogs, must be considered responsible for the damage inflicted, by the Boxer. LSA-C.C. art. 2404.

The remaining issue is White’s contention that the award is excessive in view of his ability to respond in damages. The award by the jury can, of course, be reduced only if an abuse of its much discretion is shown. LSA-C.C. art. 1934.

Defendant White has shown considerable indebtedness and a limited annual income. However, a total award of $10,000 is not so disproportionate to White’s income as to constitute an abuse of the jury’s much discretion. Compare Smith v. Girley, 242 So.2d 32 (La.App. 1 Cir. 1970).

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of defendant-appellant, Marion Over-ton White.

AFFIRMED.

      . Ricky had his 11th birthday on June 4, 1973, shortly after the accident.


author: DOMENGEAUX, Judge.

text:
    LILLIEDAHL & MITCHEL, INC., Plaintiff-Appellee, v. AVOYELLES TRUST & SAVINGS BANK, Defendant-Appellant.
    No. 6202.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.

      McCollister, Belcher, McCleary, Fazio, Mi-kon, Holliday & Jones by Donna D. Fraiche, Baton Rouge, Lee & Lee, James N. Lee, Bunkie, for defendant-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Joseph One-bane, Lafayette, Harold J. Brouillette, Marksville, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This case involves the proceeds from four certificates of deposit, numbers 22, 363, 458, and 499, issued by the defendant, Avoyelles Trust & Savings Bank (Bank) to the plaintiff, Lilliedahl & Mitchel, Inc. (Corporation).

Plaintiff Corporation is engaged in the construction business. Its now deceased president and principal stockholder, Marvin Lilliedahl, was authorized by resolution of the Board of Directors to manage the financial and business affairs of the corporation. As such, Lilliedahl dealt with the defendant Bank as agent for the Corporation. Lillie-dahl also dealt with the Bank on a personal basis.

Over a period of years Lilliedahl made personal loans from the Bank. Apparently, the proceeds of these loans would be deposited into the corporate account and the personal liability account of Lilliedahl on the corporate books would be credited. The Corporation then would purchase a certificate of deposit and the Bank’s account on the corporate books would be debited. These certificates of deposit would then be pledged as security for Lilliedahl’s loans at the Bank.

The pledges of the certificates of deposit were not reflected on the corporate books and were unknown to the auditor of the Corporation, the bookkeeper of the Corporation, and the other stockholder and current president of the Corporation, Roland Mitchel.

The present controversy arose when it was discovered after the death of Lilliedahl that the corporation was in financial difficulty. It was then revealed that four certificates of deposit owned by the corporation were cancelled by the Bank. The Corporation alleges that the proceeds from these certificates were used to pay the personal indebtedness of Lilliedahl to the Bank.

The Bank’s records revealed that certificates of deposit in the following amounts were cancelled on the following dates:

CERTIFICATE OF DATE DEPOSIT NUMBER AMOUNT CANCELLED
22 $15,000.00 July 15,1975
363 $40,000.00 Dec. 27,1974.
458 $50,000.00 Dec. 27,1974
499 $50,000.00 Jan. 28,1975

The Bank’s records also indicate that personal notes of Lilliedahl in the following amounts were paid on the following dates:

NOTE NUMBER AMOUNT DATE PAID
1572 $15,000.00 July 15,1975
7535 $40,000.00 Dec. 30, 1974
4202 $50,000.00 Dec. 30,1974
1571 $50,000.00 Jan. 28,1975

The Corporation filed suit seeking payment from the Bank from the proceeds of the certificates of deposit. The trial court found the Bank liable on certificates of deposit numbers 363, 458, and 499, because the proceeds from these certificates were never paid to the Corporation. The trial court refused to find liability on certificate of deposit number 22 because the proceeds from this certificate had been deposited in the corporate account. The trial court awarded judgment for the principal amount of the certificates of deposit numbers 363, 458, and 499 and for the stated interest on these certificates from the time of the Bank’s cancellation to the date of judicial demand, for a total amount of $152,846.55. The Bank appealed. The Corporation has answered the appeal requesting recovery on certificate of deposit number 22.

The Bank specifies five errors upon appeal:

1. The trial court erred in failing to sustain various exceptions;

2. The trial court erred in finding that the certificates of deposit were never paid to the Corporation;

3. The trial court erred in failing to find that the Bank has a legal right and authority to apply the proceeds of the certificates of deposit to payment of Lilliedahl’s personal notes to the Bank upon the instructions of Lilliedahl because of the general power and written authority given by the corporation to its president;

4. The trial court erred in failing to credit interest accrued on the certificates of deposit to the judgment; and

5. The trial court erred in adding interest to the principal sums of certificate of deposit numbers 363, 458, and 499.

I. PROCEDURAL ISSUES

Defendant Bank raised the exception of prescription in the trial court and reurges its plea on appeal. The trial court referred the plea to the merits. Defendant argues that this suit arises ex delicto for the wrongful act of the Bank. As such the action prescribes in one year.

Defendant’s argument is unavailing. This is a suit arising ex contractu. Its purpose is to recover on the contracts between the Bank and its depositor, the Corporation. When the Bank issued the certificate of deposit it acknowledged a receipt of money from the Corporation and promised to repay the money to the Corporation with interest at a later date. This suit is merely to enforce the promise to pay and the claim has not prescribed under any of the Codal provisions governing the prescriptive period for contracts. C.C. Arts. 3538, 3540, and 3544.

Defendant also reurges on appeal its exceptions of no cause of action and no right of action. These exceptions were overruled by the trial court.

Defendant cannot seriously contend that the Corporation has no right of action. The certificates were purchased by the Corporation and made payable to the Corporation. The Corporation was therefore the primary party to bring suit. Consequently, the exception is without merit. The exception of no cause of action is also without merit. The petition alleged sufficient facts to give rise to a cause of action for recovery on the contract of the certificate of deposit.

Defendant urges for the first time on appeal that the suit is defective for failure to join an indispensable party. Louisiana Code of Civil Procedure Article 641 provides:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.”

Defendant argues that in order for plaintiff to recover, Lilliedahl would have to be found a mismanager of corporate funds, converter, or a breacher of fiduciary duties. It concludes that the succession representative of Lilliedahl is indispensable to a complete and equitable adjudication of the controversy.

Defendant’s argument is unavailing. A party is indispensable only when his absence necessarily would result in an impairment of substantial rights. State, Department of Highways v. Lamar Advertising Company of Louisiana, 279 So.2d 671 (La.1973). Defendant has failed to show how these proceedings would necessarily impair the rights of Lilliedahl’s succession.

II. PAYMENT OF THE CERTIFICATES OF DEPOSIT TO THE CORPORATION

Defendant Bank urges in its brief that the trial court erred in finding that the proceeds of the certificates of deposit numbers 363, 458, and 499 were not paid to the Corporation. The court in its written reasons stated as a finding of fact that when the certificates became due and payable, the Bank, by mutual consent between it and Lilliedahl, applied the proceeds directly towards payment of Lilliedahl’s personal notes. The Bank argues, however, that in actuality it paid the proceeds of the certificates to the Corporation.

Looking to the record in this case we find that certificates of deposit numbers 363 and 458 were combined to make a cashier’s check in the amount of $90,000.00 at the direction of Lilliedahl. This check was made payable to the order of “Selves” and used by the Bank, again at the direction of Lilliedahl, to satisfy a personal note. Thus, defendant apparently maintains that the making of the cashier’s check constituted payment on paper to the Corporation and once the corporate funds were delivered to the corporate president, the Bank was relieved of liability.

This argument seems appealing but we reject it on the following basis. The cashier’s check was not made payable to the Corporation. The corporate account was never credited with any amount reflecting the proceeds of these certificates. Furthermore, we do not see how the corporation ever had actual or constructive possession of the proceeds. Lilliedahl simply instructed the Bank to apply the money owed by the Bank to the Corporation to his personal indebtedness. Absent express or implied authorization from the Corporation, it is difficult to justify any finding that the proceeds were in fact paid to the Corporation.

With regard to certificate of deposit number 499, defendant contends that since Lilliedahl was authorized to endorse instruments and since certificate of deposit number 499 was apparently endorsed by Lillie-dahl on behalf of the Corporation, the Corporation received the proceeds of the certificate. This is so even though, as part of the same transaction, Lilliedahl directed the Bank to apply the proceeds to his loan. Again, the corporate account was never credited with the proceeds nor did the Corporation have actual or constructive possession of the funds. Under these circumstances we cannot find that the trial court erred in finding that the proceeds from the certificate of deposit were paid to the Corporation.

III. AUTHORITY OF LILLIEDAHL TO USE FUNDS OWED TO THE CORPORATION TO PAY PERSONAL DEBTS

Lilliedahl had been given extensive powers by resolution of the Board of Directors to manage the financial affairs of the Corporation. This resolution provided, inter alia, that Lilliedahl could deal without restriction in any movable or immovable property in which the Corporation may have an interest. It allowed Lilliedahl to take out loans on behalf of the Corporation and to give security for these loans in the best interest of the Corporation. It also allowed Lilliedahl to deal with banks.

The Bank argues in its brief that this resolution either gave Lilliedahl actual authority or gave the bank justification to believe that Lilliedahl had apparent authority to direct application of the proceeds of the certificates of deposit to his personal indebtedness.

In regard to Lilliedahl’s authority to deal with banks on behalf of the Corporation, the resolution states:

“BE IT FURTHER RESOLVED that the following named officer of this Corporation, namely: MARVIN N. LILIE-DAHL, President, be and he is hereby authorized to carry bank accounts for LILLIEDAHL & MITCHEL, INC. in such banks as he may deem best and to make the profits of money belonging to LILIEDAHL & MITCHEL, INC. in such accounts, and disburse monies on his signature for any purpose in connection with the purpose of the Corporation.” [Italics by the court]

We do not feel that this provision granted Lilliedahl actual authority to apply the proceeds from corporate certificates of deposit to his personal indebtedness. This provision allowed Lilliedahl to disburse corporate funds in the bank for any purpose “in connection with the purpose of the Corporation”. It is almost too elementary to state that the personal indebtedness of a corporate officer has nothing to do with the purposes of a corporation. We have searched other provisions of the resolution for some indication that Lilliedahl actually did have this authority, but we could find no authorization. We therefore find that Lilliedahl did not have actual authority to direct funds due the Corporation to reduce his personal indebtedness.

We also find that there was no apparent authority to justify the Bank’s action. „ Apparent authority is a doctrine created by the courts to protect persons dealing in good faith with corporate officials where the corporation has taken such action or inaction as to justify a belief that the official has acted with authority. The doctrine has two requirements: (1) The principal must make some form of manifestation to an innocent third party; and (2) The third party must rely reasonably on the purported authority of the agent as a result of the principal’s manifestations. Krautkramer Ultrasonics, Inc. v. Port Allen Marine Services, Inc., 248 So.2d 336 (La.App. 4th Cir. 1971). The reasonableness of the reliance is determined from all the facts and circumstances of the case. Analab, Inc. v. Bank of the South, 271 So.2d 73 (La.App. 4th Cir. 1972).

Looking to the facts and circumstances of this case, we note at the outset that this is a suit against a bank involving large sums of money. Banks stand in a peculiarly unique place in the business world. They are entrusted with huge sums of money by their depositors and must proceed cautiously when dealing with deposited sums. We also note that it is axiomatic that a corporation can only act through individuals and these individuals must be given legal power to act on behalf of a corporation. Furthermore, the resolution in this case was very detailed as to the type of transactions in which Lilliedahl was authorized to act. We feel that the Bank should proceed cautiously when applying corporate funds entrusted to the Bank to the personal debt of a corporate officer, especially when large sums of money are involved, and that some form of specific corporate authorization should be required.

In this regard, we also quote with approval the following language of the trial judge in his written reasons:

“The Bank takes the position that because of the general power or written authority given by the corporation to Lil-liedahl, the Bank had the legal right and authority, on the instructions of Lillie-dahl, to apply the proceeds of the certificates of deposit toward payment of his personal loans and notes to the Bank. The court is unable to accept this view by the Bank. To accept this, it would have to ignore that a corporation is a separate legal entity, such as another person, different and separate from the officers and stock owners. An authority by a corporation to its officer or officers, while necessary and customary, is always construed to mean actions for and in behalf of the corporation. The court knows of no law or jurisprudence which would allow an officer, having general powers to act for the corporation to use such powers to take and use the assets of the corporation for his personal use and enrichment. The Bank knew the notes he signed represented his personal debts. It knew the certificates were for and in the name of the corporation; the bank’s applying these non-negotiable assets of the corporation to his personal benefit and use was a breach of contract and duty which the bank owed to the corporation. To adhere to the bank’s view would be to say that its own president, because of his general powers and authority, could take over and transfer non-negotiable securities and pledges of the bank for gambling debts in the Las Vegas Casinos, and it, the bank, would have no recourse against the transferees thereof.”

Thus we find that the Bank’s belief that Lilliedahl had apparent authority to use corporate funds to satisfy personal debts was unreasonable.

The proposition that a person receiving corporate funds in satisfaction of an officer’s personal debt is bound to restore them is not without authority. In Roney v. Peyton, 159 So. 469 (La.App. 2nd Cir. 1935), the president of a corporation gave a personal creditor a mortgage note held by the corporation in payment of a personal debt. The court found that the creditor could not rely on the mere assertions of the interested officer that the transaction was in furtherance of corporate business. The court compelled the creditor to repay the sum of money collected on the note to the corporation’s receivers. See Bryceland Lumber Company Ltd. v. Kerlin, 143 La. 242, 78 So. 482 (1918).

IV. CREDITING ACCRUED INTEREST TO THE AMOUNT OF THE FINAL AWARD

The Bank has assigned error on the part of the trial court because it did not credit interest paid to the corporation on the certificates of deposit to the final amount of the judgment. We find no merit to this contention. The interest specified on the certificates was part of the agreement between the Bank and the Corporation. The Bank owed the interest as well as the principal to the Corporation. Thus no setoff was due to the Bank and the trial judge was correct in not granting such a credit.

V. AWARDING INTEREST ON THE CERTIFICATES OF DEPOSIT FROM THE DATE OF CANCELLATION TO THE DATE OF JUDICIAL DEMAND

The Bank ceased crediting interest on the certificates on the date of cancellation. The trial judge awarded interest according to the terms of the instruments from these dates to the date of judicial demand. The Bank contends that no interest was due on certificates because they were cancelled. We find no merit to this contention. Although Lilliedahl could have cashed the certificates on behalf of the Corporation, the evidence is to the effect that he “cashed” the certificates in his personal capacity. As between the Bank and the Corporation, the certificates were never actually cashed and were therefore still viable. Thus the interest on the certificates still accrued until the date of judicial demand. There was no error on the part of the trial court in including this interest in its award.

VI.PLAINTIFF’S ANSWER TO THE APPEAL

The trial court refused to allow recovery on certificate of deposit number 22. The trial court in its written reasons found that the proceeds from this certificate were deposited into the corporate checking account, thus the Corporation actually received payment. When this occurred the proceeds from the certificate became comingled with other corporate funds. Lilliedahl wrote a corporate check on this account, payable to the Bank. This check was used toward payment of Lilliedahl’s personal debt.

The Corporation contends that the trial judge should have awarded the amount due on certificate number 22. We disagree and affirm the trial judge’s reasons. The instrument was properly credited to the Corporation’s account and the Bank’s obligation of payment thereby extinguished.

For the above reasons we affirm the judgment of the district court at appellant’s costs.

AFFIRMED.

      . December 27, 1974, was a Friday and December 30, 1974, was a Monday. Testimony revealed that the Bank would close its records at some time on a Friday afternoon and all transactions occurring on a Friday after that time would be shown on the Bank’s records as occurring on the following Monday.

      . Certificate of deposit number 22 was a nonnegotiable, automatic time renewing certificate purchased July 15, 1970, and automatically renewed thereafter until cashed July 15, 1975. Certificate of deposit number 458 was also a non-negotiable, automatic time renewing certificate purchased December 26, 1973, and automatically renewed until cashed on December 27, 1974. Certificate of deposit number 363 was likewise a non-negotiable, automatic time renewing certificate purchased September 27, 1974, and automatically renewed until cashed on December 27, 1974. Finally, certificate of deposit number 499, also a non-negotiable, automatic time renewal certificate was purchased on January 1, 1974, and automatically renewed until cashed on January 28, 1975. The Corporation had no knowledge of the cashing until after Lilliedahl’s death on September 7, 1975. Suit was filed August 30, 1976. Thus, the claim has not prescribed.

      . The resolution is contained in the record, however, we cannot find where it was introduced into evidence at trial. The resolution is relied upon heavily by the Bank in its brief. No issue is made of its presence in the record by the Corporation on appeal. In any event, we have reviewed the resolution and found that it does not alter our final determination.

      . We note that a bank will be liable when it accepts a check drawn on a fiduciary account at the bank in payment of a personal debt under the Uniform Fiduciaries Act, La.R.S. 9:3801 et seq. See Guaranty Bank & Trust Company of Alexandria v. C. & R. Development Company, Inc., 260 La. 1176, 258 So.2d 543 (1972).

      . We note that this suit was to recover on the certificate of deposit, not the amount of the check used to pay Liliiedahl’s personal debt. We express no opinion regarding the Corporation’s recovery on the check under the Uniform Fiduciary Act. La.R.S. 9:3805 and 3808. See Guaranty Bank & Trust Company of Alexandria v. C & R Development Company, Inc., supra.


author: CULPEPPER, Judge.

text:
    Thomas J. PROVOST, Plaintiffs and Appellants, v. CITY OF LOREAUVILLE et al., Defendants and Appellees.
    No. 6207.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Feb. 10, 1978.

      J. Minos Simon and Gerald J. Block, Lafayette, for plaintiff and appellant.
    Stephen F. Mestayer of Mestayer & Simon, New Iberia, Davidson, Meaux, Sonnier & Roy by V. Farley Sonnier, Lafayette, for defendants-appellees.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for burns sustained when an explosion and fire occurred while he was dumping trash at a garbage disposal site allegedly operated by defendants. The trial judge pretermitted the issue of defendants’ negligence. He found that the plaintiff was guilty of contributory negligence which bars his recovery. Plaintiff appeals.

The issues presented on appeal are: (1) Was either the Village of Loreauville or the Iberia Parish Police Jury guilty of negligence which was a legal cause of plaintiff’s injuries? (2) Was Thomas Provost guilty of contributory negligence? (3) Was the operation of the dump in question a joint venture between the Iberia Parish Police Jury and the Village of Loreauville?

The dump where this accident occurred was maintained by the City of Loreauville and the Iberia Parish Police Jury. It is approximately 300 feet long, north and south, and 30-40 feet wide. Access is from the north by a road which runs along the east edge of the dump.

On February 28,1975, plaintiff visited his aunt in Loreauville, and he agreed to dispose of garbage she had accumulated over the past two weeks. They testified the "garbage, stored in paper grocery bags, was a soggy mess with nothing flammable, and that Provost transferred it to fresh paper bags, which he placed in the back of his pickup truck. Other witnesses testified the garbage included bottles and one gallon cans of unknown contents.

Plaintiff approached the dump from the north. Two other vehicles, dumping trash, were near the north end of the dump within about 15 feet of each other. Mr. Provost drove down the narrow road which traverses the full length of the dump, passed both vehicles, and backed his pickup to the pit area about 15-20 feet from the southernmost vehicle.

There were several smoldering fires in the north end of the dump. The 150 feet to the south had no fires. The testimony is in conflict as to just how close Mr. Provost was to the fire in question, when he began unloading the garbage, as well as whether or not he threw garbage directly on the fire. However, plaintiff admits he was standing in the back of his truck throwing garbage into the pit when the flames suddenly engulfed him.

There was no finding by the trial judge as to what it was that actually exploded into flames. The court did find the fire near Mr. Provost’s truck had been started the night before by unknown persons and had burned down considerably by the time of the accident. The court also found that something combustible in the existing fire would have already ignited, and that it was more probable than not that something Mr. Provost threw on the fire caused the sudden explosion and flames which resulted in his injuries.

The trial judge did not decide the issue of the defendants’ negligence. He held that Mr. Provost, by throwing something combustible directly on a fire at the dump, was guilty of contributory negligence and therefore barred from recovery.

Plaintiff contends that the city and the parish were negligent in permitting burning at the dump without any systematic inspection of the nature of the waste material burned and that it was material left by someone else which exploded. Plaintiff also contends that the doctrine of res ipsa loquitur, as set out in Alexander v. St, Paul Fire & Marine Insurance Company, 312 So.2d 139, 143, (La.App. 1st Cir. 1975) is applicable.

Appellant correctly notes that our Supreme Court has abolished the categories of invitee, licensee and trespasser in determining the duty owed by owners and occupiers of premises under LSA-C.C. 2315 and 2316. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The test established in Cates is whether the possessor of land acted as a reasonable man in the management of his property in view of the probability of injury to others.

In Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406, 410 (La.1976) our Supreme Court stated:

“The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner.”

We find that the defendants met the standard of reasonableness required of the owner or manager of a public dump. The supervisor of the dump admitted that he would sometimes light fires to reduce the amount of flammable material. He also stated that he always did so at night, and only at one end of the dump, so that the public could safely dispose of trash at the other end. Neither of these governmental agencies can be held negligent per se merely for permitting fires at the dump. This is a recognized method of garbage disposal. Badeaux v. Patterson Truck Line, Inc., 247 So.2d 875 (La.App. 3rd Cir. 1971).

Nor do we find it necessary that the defendants have a guard at the dump whose job it would be to sort through the trash brought in by the public to make sure it is free of combustibles. Any reasonable person using the dump should have seen the fires and should have realized the obvious danger of throwing explosive or combustible materials onto a fire. The supervisor of the dump testified that in the two years he had worked there, he had never seen an explosion like the one of February 28, 1975.

We also note that the plaintiff failed to prove it was something already at the dump which exploded rather than something the plaintiff himself threw on the fire. In fact, the trial court found that the latter situation was more probable than not. The doctrine of res ipsa loquitur is not applicable under the facts of this case. The conduct of the plaintiff was very much a factor to be considered as a cause of the injury.

Having decided defendants are free of negligence, we do not reach the equally meritorious defense that plaintiff was con-tributorily negligent.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff appellant.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Anthony J. LIVACCARI, Jr. and Ronald L. Livaccari v. Francis J. DEMAREST, Recorder of Mortgages for the Parish of Orleans, and Matthew J. Hill, Jr.
    No. 9074.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Jan. 30, 1978.
    Marshall J. Favret, New Orleans, for relator.
    Leo W. Rousselle, New Orleans, Robert B. Chopin, Metairie, for respondent.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Anthony J. Livaccari, Jr. and Ronald L. Livaccari, alleging they are owners of certain real property by virtue of a judgment of possession in the succession of their mother and father, sought a writ of mandamus against Francis J. Demarest, Recorder of Mortgages for the Parish of Orleans, seeking to cancel from the mortgage records an inscription under Mortgage Office Book 2278, Folio 577, a lien and privilege for attorney’s fees asserted by Matthew J. Hill, Jr., attorney at law, bearing against the real property. The attorney intervened. The trial court refused the cancellation and dismissed plaintiff’s petition for mandamus. Plaintiffs have applied to this court for supervisory writs. We granted a writ of certiorari based on allegations of the urgency of immediate hearing.

The respondent, Hill, has filed a motion to dismiss, contending that the urgency no longer exists because the real property which was encumbered by the prescription has been sold. While that has removed a considerable portion of the urgency, nevertheless we are still faced with the effect of the inscription upon the property in the hands of the third parties or upon the proceeds of the sale. Since the matter is now before us on the writ of certiorari, the justice of the situation requires our consideration.

A secondary basis of the motion to dismiss is an allegation that the plaintiffs herein are not the true owners, that because of alleged errors in the succession proceedings, the judgment of possession is illegal. Frankly, we do not understand the respondent’s position at this late stage of the proceedings. Admittedly, the attorney was hired by these plaintiffs and whatever claim he has against the succession or the property can only come through their employment. We find no basis for entertaining the motion to dismiss and we deny it.

In considering the merits of the proceedings before us, we first point out that we are only concerned with the right of the attorney to record his privilege in the mortgage records bearing against immovable property. We do not consider the value of the work done by the attorney, or whether he does have a privilege against the movable property of the succession. There is another suit in existence filed by the attorney against these parties and others for his fees. As we stated in the case of 1 — 10, Inc. v. Justice, La.App., 260 So.2d 89 (1972) at page 91:

“The merits of this case which surrounds the issues presented are not before this court. We are only concerned as to whether or not defendant has a color of right to assert a lien and privilege on plaintiff’s property.”

The question thus presented is whether an attorney, who has been employed and who has done work prior to the filing of the succession proceedings, may inscribe his claim of privilege in the mortgage records as a lien against immovable property of the succession. The only provisions of law under which a privilege is granted against immovables of a succession are the “judicial charges” found in Civil Code Article 3252. The privilege set out in Revised Statutes 9:5001 is not relative to this case but applies only to cases in which judgments are obtained. The privilege that arises under Article 3191 of the Civil Code is not relevant because that privilege is granted for “law charges” only on the movable property of a succession. Hence it cannot be recorded in the Mortgage Records encumbering immovable property. Accordingly, this inscription must stand or fall on the basis that it is a judicial charge under Article 3252 which would encompass “lawyers’ fees for settling the succession” stated in C.C. Article 3276.

We note some confusion created in the jurisprudence as to the extent to which attorney’s fees are privileged against a succession. C.C. Article 3191 speaks of “law charges”, Article 3252 speaks of “judicial charges” and Article 3276 speaks of privileged charges as being “law charges, lawyer’s fees for settling the succession,”. Law charges are defined in C.C. Article 3195:

“Law charges are such as are occasioned by the prosecution of a suit before the courts. But this name applies more particularly to the costs, which the party cast has to pay to the party gaining the cause. It is in favor of these only that the laws [law] grants the privilege.”

There is no definition of judicial charges, but it could be said that the enumeration in Article 3276 would indicate that judicial charges are law charges with the addition of lawyer’s fees for settling the succession. We refer to the case of Succession of Ford, La.App., 91 So.2d 71 (1957), which would seem to treat law charges or judicial charges to be the same thing, including attorney’s fees and recognizing a privilege for them under Articles 3191, 3252 and 3254. A privilege for attorney’s fees has also been recognized in several old cases such as Succession of Wells, 24 La.Ann. 162 (1872); Succession of Negueloua, 52 La. Ann. 1495, 27 So. 962 (1900) and Succession of Thompson, 12 Orl.App. 24 (1914).

We thus conclude that attorney’s fees are included within the privileged debts encompassed by the judicial charges of Article 3252, but we believe that the privilege extends only to such charges as occur judicially, that is, by prosecution of the suit judicially. We note that the definition of law charges in Article 3195 states that they are “such as are occasioned by the prosecution before the courts.” This interpretation is also consistent with Article 3276 granting the privilege for law charges and lawyer’s fees for settling the succession, considering the settling of a succession to be the same as the filing and prosecution of the succession proceedings. At the same time, we note that the charges in the Succession of Ford were all for the prosecution of the prior interdiction suit therein and the succession itself.

We conclude that the respondent attorney has not done work encompassed within the judicial charges specified in Article 3252, that is, file the succession proceeding or take part in any steps after its filing as succession attorney. Whatever he did was done before the succession proceedings were opened, and his fees are not privileged upon the immovable property of the succession and cannot support the inscription of a lien against the immovable property in the mortgage records.

Accordingly, the judgment of the trial court is reversed and judgment is herein rendered ordering the Writ of Mandamus to be made peremptory, directing and ordering the Honorable Francis J. Demarest, Recorder of Mortgages for the Parish of Orleans, to cancel and erase from the Mortgage Records of his office the inscription of the lien and privilege of Matthew J. Hill, Jr. in Mortgage Office Book 2278, Folio 577, dated June 14, 1977. All costs are assessed against intervenor, Matthew J. Hill, Jr.

REVERSED AND RENDERED.


author: SUGG, Justice,

text:
    James H. THOMPSON v. JONES COUNTY COMMUNITY HOSPITAL.
    No. 50054.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Holifield & Harper, Matthew Harper, Jr., Laurel, for appellant.
    Odom & Parrish, William Harold Odom, Maxey & Clark, George D. Maxey, Laurel, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

The plaintiff, James H. Thompson, filed his declaration against the defendant, Jones County Community Hospital, for breach of contract. Plaintiff alleged in his declaration that the defendant employed him as executive director of the Jones County Hospital and Annex at an annual salary of $44,000 for a term of four years from December 1,1975 to December 1,1979. Plaintiff also alleged that he performed his contract until April 3, 1976, at which time he was summarily discharged and the contract breached by the defendant. Plaintiff demanded judgment in the amount of $160,-764.80 plus legal interest which is the full amount of the unpaid salary claimed by plaintiff.

The circuit judge sustained a motion to dismiss because the contract was not entered on the minutes of the board of trustees and enough of the substance'of the contract was not contained in the minutes for a determination of the liabilities and obligations of the contracting parties without evidence dehors the minutes.

The only entries pertaining to the contract appear in the minutes of the August 28,1975 and November 18,1975 meetings of the board of trustees. The August 28 minutes recite:

Following a discussion, Mr. Gibson moved, seconded by Mr. Purvis, that Mr. Jim Thompson be given a four-year contract as Executive Director of the hospital and that Mr. Holifield draw up the terms of such an agreement for approval by the Board of Trustees at its next meeting. The motion passed unanimously-

The November 18 minutes, with reference to the contract, are as follows:

Mr. Myers advised the Board that action should be taken to award a contract to Mr. Thompson since this was unanimously approved by the Board of Trustees at its meeting of August 28,1975. A proposed contract was reviewed by each member of the Board and appropriate discussions were held. Mr. Gibson moved, seconded by Mr. Purvis, that the minutes of the Board meeting of August 28, 1975 be approved and that Mr. Thompson be awarded the four-year contract which had been reviewed by the Board and that Mr. Myers as President and Mr. Gibson as Secretary be authorized and directed to execute the contract on behalf of the Board. The motion passed with members voting as follows: For — Jack Myers, C. E. Gibson, Benton J. Ryals, Jack Purvis, V. B. Hudson and J. W. Fagan. Against — Ernest J. McCraw, M. D.

We have held in many cases that boards of supervisors and other public boards speak only through their minutes and their actions are evidenced solely by entries on the minutes. Mississippi State Highway Commission v. Sanders, 269 So.2d 350 (Miss. 1972); Cheatham v. Smith, 229 Miss. 803, 92 So.2d 203 (1957); Board of Supervisors of Adams County v. Giles, 219 Miss. 245, 68 So.2d 483 (1953); Thornhill v. Ford, 213 Miss. 49, 56 So.2d 23 (1952); Martin v. Newell, 198 Miss. 809, 23 So.2d 796 (1945); Smith County v. Mangum, 127 Miss. 192, 89 So. 913 (1921); Bridges & Hill v. Board of Supervisors of Clay County, 58 Miss. 817 (1881).

One reason requiring the acts of public boards to be evidenced by an entry on its minutes is cogently stated in Smith et al. v. Board of Supervisors, 124 Miss. 36, 86 So. 707 (1920) as follows:

We also think it was error for the court to permit individual members of the board of supervisors to testify what the board did, and what the board understood, and what the board had authorized to be done in the premises. A board of supervisors can act only as a body, and its act must be evidenced by an entry on its minutes. The minutes of the board of supervisors are the sole and exclusive evidence of what the board did. The individuals composing the board cannot act for the county, nor officially in reference to the county’s business, except as authorized by law, and the minutes of the board of supervisors must be the repository and the evidence of their official acts. (124 Miss, at 41, 86 So. at 709).

Additional reasons for the rule are set forth in Lee County v. James, 178 Miss. 554, 174 So. 76 (1937) wherein the Court stated:

When official authority is conferred upon a board or commission consisting of three or more members, the authority so conferred must be exercised by a legal quorum, and, as a general rule, the decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at a lawfully convened session, and the proceedings must be entered upon the minutes, of the board or commission. The reasons for the requirements aforesaid are: (1) That when authority is conferred upon a board, the public is entitled to the judgment of the board after an examination of a proposal and a discussion of it among the members to the end that the result reached will represent the wisdom of the majority rather than the opinion or preference of some individual member; and (2) that the decision or order when made shall not be subject to the uncertainties of the recollection of individual witnesses of what transpired, but that the action taken will be evidenced by a written memorial entered upon the minutes at the time, and to which all the public may have access to see what was'" actually done. See upon the general principles stated, State ex rel Baria v. Alexander, 158 Miss. 557, 562, 130 So. 754, and the recent case, State Highway Department v. Duckworth, 178 Miss. 35, 172 So. 148, 150. (178 Miss, at 558, 559, 174 So. at 77).

It is also well established that each person, firm or corporation contracting with a board of supervisors is responsible to see that the contract is legal and properly recorded on the minutes of the board. Burt v. Calhoun, 231 So.2d 496 (Miss.1970); Martin v. Newell, 198 Miss. 809, 23 So.2d 796 (1945); Jackson Equipment and Service Co. v. Dunlop, 172 Miss. 752, 160 So. 734 (1935).

Some of our cases indicate that it is necessary for the entire contract to be placed upon the minutes of a public board; however, in Cheatham v. Smith, 229 Miss. 803, 92 So.2d 203 (1957), the minutes did not contain the entire contract between Mrs. Cheatham and the Neshoba County Board of Education. The minutes reflected that the superintendent of education was authorized to enter into a contract with a large number of persons as teachers in the public schools of Neshoba County, “at the place and salaries as indicated below.” Following this statement the minutes of the board listed the names of a large number of teachers in twelve different schools in Neshoba County. Under the House school district, the following appeared: “Mrs. Ella K. Smith, $1800.00 per year.” After the meeting a written contract of employment was signed with Mrs. Smith and the court held that the minutes of the county board of education were sufficient to constitute an approval of the election of teachers by the board of trustees of the House school district. It held that Mrs. Smith had a valid contract as a teacher and affirmed the action of the trial court directing the county superintendent of education to issue salary warrants to her.

We have also held that plans and specifications for the construction of public works, when on file in the office of the clerk, may be made a part of a contract by reference. In Dixon v. Greene County, 76 Miss. 794, 25 So. 665 (1899) the Court stated:

The plans and specifications were on file and were referred to, from which all detailed information could have been obtained. The only express contract made by the board was to be found in the order on its minutes, and the plans and specifications made part thereof by reference. (76 Miss, at 809, 25 So. at 666).

In commenting on Dixon in Marion County v. Foxworth, 83 Miss. 677, 36 So. 36 (1903) the Court held that the “papers” (plans and specifications) specially referred to in the order of the board, and constituting a part of the same transaction, were in fact acts of the board. The Court then stated:

If any other rule applied, the contractor could not be held at all to any compliance with the plans and specifications of the work awarded to him, for the reason that architect’s plans and specifications, from their very nature, cannot conveniently be entered on the minutes, yet they are invariably and rightly considered an integral part of the contract awarded thereon. (83 Miss, at 690, 36 So. at 38).

We therefore conclude that a contract with a public board may be enforced if enough of the terms and conditions of the contract are contained in the minutes for determination of the liabilities and obligations of the contracting parties without the necessity of resorting to other evidence.

In the case before us the parties stipulated that the contract was not recorded on the minutes of the board of trustees of the Jones County Community Hospital, and that the quoted portions of the minutes constitute the only reference to any contract between the plaintiff and the defendant. The minutes of August 28 reflect that defendant was to be given a four year contract as executive director of the hospital and directed Mr. Holifield to draw up the terms of the agreement for approval by the board at its next meeting. At the next meeting of the board on November 18 the minutes reflect that a proposed contract was discussed and reviewed by the board, and the president and secretary were authorized to execute a contract with plaintiff on behalf of the board. The minutes contain no reference to the salary to be paid plaintiff for his services. We therefore conclude that because the minutes do not reflect the amount of the salary to be paid to plaintiff, the Court may not determine the amount of the salary. It was the responsibility of the plaintiff to see that the contract was properly recorded on the minutes.

AFFIRMED.

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


text:
    J. V. RICKS, Jr., John P. Ricks and Mrs. J. V. Ricks, d/b/a Ricks’ Motor Service Company v. BANK OF DIXIE.
    No. 49689.
    Supreme Court of Mississippi.
    Nov. 23, 1977.

      Brewer, Deaton & Evans, Norman C. Brewer, Jr., Gray Evans, Greenwood, for appellants.
    Odom, Odom & McCain, Talbot 0. McCain, Greenwood, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   SUGG, Justice,

for the Court:

The Bank of Dixie, a Louisiana Corporation, as plaintiff, sued J. V. Ricks and others for collection of a promissory note in the Circuit Court of Leflore County. The court granted a peremptory instruction for plaintiff and the only issue argued on appeal is that the trial judge erred by granting a peremptory instruction for plaintiff.

A decision of the issue requires determination of this threshold question, did J. V. Ricks, Jr. sign the note on behalf of the defendants because of misrepresentation which induced him to sign the note with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms?

Plaintiff filed suit for recovery on a promissory note payable to the order of Dixie Machine Works and plaintiff which was endorsed to plaintiff by Dixie Machine Works. Defendants asserted as affirmative defenses the following:

1.The signature on the note sued on by plaintiff is the signature of J. V. Ricks, Jr., but defendants will offer proof to show as an affirmative defense that the signature of J. V. Ricks, Jr., was obtained by fraud on the part of Dixie Machine Works and Bank of Dixie; that said paper was not signed by J. V. Ricks, Jr., as a note, but was signed upon representation of Dixie Machine Works and Bank of Dixie that it was an order for additional materials and equipment which was sold on open account.
2. That the signature of J. V. Ricks, Jr., on the note sued on was obtained by Dixie Machine Works and Bank of Dixie by conspiracy between Dixie Machine Works and Bank of Dixie, in that Dixie Machine Works and Bank of Dixie conspired to obtain the signature of J. V. Ricks, Jr., to an instrument that was not intended to be a promissory note, and in a conspiracy to defraud defendants by asserting said instrument as a promissory note when they knew full well that the instrument was not, and was not intended to be, a promissory note.
3. That Bank of Dixie is not a holder in due course of said note; that they did not purchase said note in good faith for value and without any notice of any infirmity in the instrument; that Bank of Dixie was an original payee in the note as is fully shown by Exhibit “A” attached to the declaration herein and is fully subject to and had full knowledge of all defenses existing between the parties hereto; that under no circumstances can Bank of Dixie be considered a bona fide holder for value without notice; that Bank of Dixie had full notice of the defenses of Ricks’ Motor Service and was not a holder in good faith.

Plaintiff filed an answer specifically denying every allegation of the defendants in their affirmative defenses. Defendants’ first affirmative defense would relieve them from liability on the note, if supported by a preponderance of the evidence, under section 75-3-305 Mississippi Code Annotated (1972) which follows:

To the extent that a holder is a holder in due course he takes the instrument free from
(1) all claims to it on the part of any person; and
(2) all defenses of any party to the instrument with whom the holder has not dealt except
(a) infancy, to the extent that it is a defense to a simple contract; and
(b) such other incapacity, or duress, or illegality of the transaction as renders the obligation of the party a nullity; and
(c) such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms; and
(d) discharge in insolvency proceedings; and
(e) any other discharge of which the holder has notice when he takes the instrument.

The first affirmative defense was based on subsection (2) part (c) which permits defenses to be asserted against a holder in due course which were not available under the Uniform Negotiable Instruments Act. It allows the maker of an instrument to assert as a defense, “[S]uch misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms.”

The defense authorized by section 75-3-305(2)(c) is a limited defense and may be asserted against a holder in due course only if a party was induced to sign an instrument because of misrepresentation coupled with the fact that the party signing the instrument had neither, (1) knowledge of its character or its essential terms, nor (2) reasonable opportunity to obtain knowledge of its character or essential terms. The comment pertaining to this defense found in Anderson’s Uniform Commercial Code, section 3-305:(1) p. 598 (1961) states:

7. Paragraph (c) of subsection (2) is new. It follows the great majority of the decisions under the original Act in recognizing the defense of ‘real’ or ‘essential’ fraud, sometimes called fraud in the essence or fraud in the factum, as effective against a holder in due course. The common illustration is that of the maker who is tricked into signing a note in the belief that it is merely a receipt or some other document. The theory of the defense is that his signature on the instrument is ineffective because he did not intend to sign such an instrument at all. Under this provision the defense extends to an instrument signed with knowledge that it is a negotiable instrument, but without knowledge of its essential terms.
The test of the defense here stated is that of excusable ignorance of the contents of the writing signed. The party must not only have been in ignorance, but must also have had no reasonable opportunity to obtain knowledge. In determining what is a reasonable opportunity all relevant factors are to be taken into account, including the age and sex of the party, his intelligence, education and business experience; his ability to read or to understand English; the representations made to him and his reason to rely on them or to have confidence in the person making them; the presence or absence of any third person who might read or explain the instrument to him, or any other possibility of obtaining independent information; and the apparent necessity, or lack of it, for acting without delay.
Unless the misrepresentation meets this test, the defense is cut off by a holder in due course.

In our opinion the above comment correctly states the factors to be considered by a trial court when it is called on to determine if a defendant is to be released from liability for signing an instrument. In order to determine if the defense in this case meets the above test, we must consider the evidence which was before the trial court.

The evidence shows without conflict that J. V. Ricks, Jr. signed a promissory note on October 7,1974 payable to the order of Dixie Machine Works and plaintiff on behalf of all the defendants. The original note was introduced in evidence and is a negotiable instrument under the requirements of section 75-3-104 Mississippi Code Annotated (1972). Plaintiff purchased the note from Dixie Machine Works for a valuable consideration on October 21, 1974 and the note was negotiated on that date in accord with section 75-3-202 Mississippi Code Annotated (1972). Plaintiff met the requirements of section 75-3-302 and became a holder in due course.

The only witness offered by defendants was J. V. Ricks, Jr., who testified that, on the date the note was executed, he signed numerous purchase orders and he thought the note was a verification of terms. He signed all documents presented to him on that day without reading any of them. The witness has a college education and is a businessman with many years of experience. J. V. Ricks, Jr. did not use ordinary care when he signed the note without reading it and putting it into circulation; he was not prevented from reading the note; therefore, defendants’ claim of misrepresentation has no legal substance. His testimony fails to establish that he was induced to sign the note, “[WJith neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms.”

Defendants did not offer any evidence in support of their second affirmative defense that the signature of J. V. Ricks, Jr. on the note was obtained as a result of a conspiracy between Dixie Machine Works and plaintiff.

Neither did the defendants offer any evidence in support of their third affirmative defense that the plaintiff did not purchase the note for value in good faith without any notice of any infirmity of the instrument. The fact that plaintiff was named as original payee along with Dixie Machine Works in the note does not destroy its status as a holder in due course. Section 75-3-302(2) Mississippi Code Annotated (1972).

Defendants argue that the case should have been submitted to a jury and that the trial court erred when it granted a peremptory instruction for the plaintiff. They rely on a line of Mississippi cases which indicate that the trial court, when determining whether a peremptory instruction should be granted, should look solely to the evidence on behalf of the party against whom the directed verdict is requested. The correct rule for governing the granting or refusal of a peremptory instruction is stated in Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975). Paymaster clears up some of the confusion which has apparently existed with reference to the evidence a trial court may consider when a peremptory instruction is requested, collates the holdings of earlier cases, and states a definite and clear rule. When a peremptory instruction is requested, the evidence of both parties, which is not in conflict, may be considered to determine whether a peremptory instruction should be granted. In Paymaster we stated:

The motions, which preclude a new trial if sustained, of course arise at different stages of a case: the motion for a directed verdict at the conclusion of the plaintiff’s evidence, a request for a peremptory instruction at the conclusion of the plaintiff’s and defendant’s case and a motion for a judgment n. o. v. upon the jury’s verdict, but prior to judgment. These motions necessarily contemplate a consideration of different evidence and inferences arising during the course of trial. A motion for a directed verdict encompasses testimony of the plaintiff and its favorable inferences, whereas, the evidence considered on a request for a peremptory instruction or a judgment n. o. v. embraces the testimony on behalf of the plaintiff as well as that of the defendant, there being no difference between that considered for a peremptory instruction and a judgment n. o. v. since the latter is entertained only to correct the court’s error in refusing a requested peremptory instruction. Floyd v. Lusk, 190 So.2d 451 (Miss.1966); and Palmer v. Gardner, 226 Miss. 123, 83 So.2d 800 (1955).
An incongruity, however, arises from our decisions since we have held the test for a directed verdict is the same as that for a peremptory instruction or a judgment n. o. v. This has been compounded by our language indicating that the consideration of a peremptory instruction or judgment n. o. v. is restricted to the ‘sole’ evidence of the plaintiff when in fact there is other evidence. This is illustrated, we think, by the posture of this case. If we look solely to the evidence of the plaintiff, a written confirmatory contract of purchase, a breach of its terms and resultant damages, the defendant is not entitled to a directed verdict.
On the other hand, if not so restricted and permitted to consider the uncontra-dicted testimony of the defendant in conjunction with the written confirmatory contract introduced by the plaintiff, the entire contract emerges with a different legal result, entitling the defendant to a peremptory instruction. In General Tire & Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969), we applied, in considering a judgment n. o. v., the following:
The established rule is that when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed. 221 So.2d at 105.
The quotation above, we believe, expresses the better rule for a peremptory instruction or a judgment n. o. v. since it permits the court to examine the evidence of both parties that is not in conflict, as here, in order to reach a legal conclusion; or stated differently, the jury resolves conflicts of fact — the court resolves issues of law arising from noncon-flicting facts. (319 So.2d at 656, 657).

In this case the trial court had before it testimony which was not in conflict on the issues to be resolved. It properly considered the evidence, not in conflict, of both plaintiff and defendants in arriving at its decision to grant the peremptory instruction, and correctly decided the issues of law from nonconflicting facts.

In sum, the defendants executed a promissory note through their partner, the partner was an educated businessman who signed the note without reading it, the note was negotiated to plaintiff for a valuable consideration, plaintiff became a holder in due course, and defendants did not establish their affirmative defenses. The trial court correctly granted the peremptory instruction for the plaintiff.

AFFIRMED.

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

      . The Uniform Negotiable Instruments Act, being sections 42 to 237, inclusive, Mississippi Code Annotated (1942), recompiled, as amended, was repealed by Chapter 316 § 10-102, Mississippi General Laws of 1966 [now section 75-10-102 Mississippi Code Annotated (1972)]. The repeal was effective March 31, 1968, the same day the Uniform Commercial Code took effect.


text:
    Dello YOUNG v. MILLERS OF JACKSON, MEADOW-BROOK ROAD, INC.
    No. 49766.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Agnew, Agnew & Crawford, Lee B. Agnew, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Thomas H. Suttle, Jr., Jackson, Terry R. Levy, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

AFFIRMED.


text:
    Classie Lee STEVENSON v. STATE of Mississippi.
    No. 50055.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Ellis J. Farris, John B. Gee, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

AFFIRMED.


text:
    S. L. BURKS v. STATE of Mississippi.
    No. 50021.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Smith, O’Hare & Atkinson, Boyd P. Atkinson, Houghton F. Elias, Jr., Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

Before SMITH, P. J. and LEE and BOWLING, JJ., and RUFUS H. BROOME, Commissioner.

AFFIRMED.

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


text:
    Rudolph COOPER v. STATE of Mississippi.
    No. 49990.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Dan A. McIntosh, III, Collins, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Covington County; George B. Grubbs, Judge.

Before INZER, P. J., and WALKER and BROOM, JJ.

AFFIRMED.

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


text:
    William Stephen Shirley HARRISON v. STATE of Mississippi.
    No. 49999.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Moore, Epps & Selph, Julie Ann Epps, Jackson, Mitchell M. Lundy, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before INZER, P. J., and WALKER and BROOM, JJ.

AFFIRMED AS TO CONVICTION BUT REMANDED FOR RESENTENCING.

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


text:
    James PENSON v. STATE of Mississippi.
    No. 50022.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Richard E. Burdine, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Calhoun County; William R. Lamb, Judge.

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

REVERSED AND APPELLANT DISCHARGED.

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