text:
    STATE of Louisiana ex rel. Robert E. PAUL v. Charlton P. ROZAND, Sheriff, Terrebonne Parish, et al.
    No. 64757.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Robert E. Paul applying for writ of habeas corpus. Parish of Terrebonne. Number 86622.

Writ denied. Transfer of relator from Lafourche Parish to Terrebonne Parish mooted issues raised in relator’s habeas petition filed January 9, 1979, in Lafourche Parish.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. William J. FORBES, Jr. v. Honorable Henry L. YELVERTON, Judge, Fourteenth Judicial District Court.
    No. 64848.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re William J. Forbes, Jr., applying for writs of certiorari, prohibition, and mandamus. Parish of Calcasieu. No. 8791-78.

Writ denied.


text:
    STATE of Louisiana ex rel. Cleveland G. WILLIAMS v. Frank G. SHEA, Judge, Criminal District Court, Section G, Parish of Orleans, State of Louisiana.
    No. 64647.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Cleveland G. Williams, applying for writ of mandamus or a writ of prohibition. Orleans Parish. No. 231-287.

Writ denied. The application is moot because the trial judge has now acted on the petition filed in his court.


text:
    STATE of Louisiana v. Pleasant H. HOWARD.
    No. 64618.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Pleasant H. Howard, applying for writ of habeas corpus. Orleans Parish. No. 266-122.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Harry LOVELL v. CLERK OF COURT, 24TH JUDICIAL DISTRICT COURT.
    No. 64594.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Harry Lovell applying for writ of mandamus. Parish of Jefferson. No. 77-886.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Charles W. EZEB, Jr. v. The Honorable Elmo E. LEAR, 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana.
    No. 64352.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Charles W. Ezeb, Jr., applying for writ of mandamus. Parish of East Baton Rouge. No. 62,799.

Writ denied. Moot.


text:
    Paul L. ALBARES, Bonnie B. Batt, Charles W. Baldock and Bernard A. Ray v. Major Earl P. SANTOS, State Equal Opportunity Officer, La Army National Guard, etc. et al.
    No. 64900.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Albares, Batt, Baldock and Ray applying for writ of certiorari. Parish of Orleans. No. 79-1378.

Writ not considered. Relators should first seek timely review in the court of appeal.


text:
    STATE of Louisiana ex rel. John VINCENTE v. Frank C. BLACKBURN, Warden, et al., Louisiana State Penitentiary, 24th Judicial District Court, Parish of Jefferson, State of Louisiana.
    No. 64852.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re John Vincente, applying for writ of mandamus. Parish of Jefferson.

Writ granted. The trial judge is ordered to take action on relator’s application forthwith.


text:
    STATE of Louisiana v. Ricky A. BURKHART.
    No. 64851.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Ricky A. Burkhart, applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. 7414-77.

Writ granted. It is ordered that this matter be tried forthwith.


text:
    STATE of Louisiana ex rel. Erick BAREFIELD v. Larry ROBERTS.
    No. 64761.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Erick Barefield, applying for writ of habeas corpus. East Baton Rouge Parish.

Writ granted. The relator alleges he has filed a request for preliminary examination which has not been acted upon, although he has been held in prison since December 17, 1978. We transfer this writ to the trial court for appropriate action.


text:
    Timothy Todd MILLER v. LAKE FOREST, INCORPORATED and ABC Insurance Company.
    No. 64951.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Timothy Todd Miller, applying for extension of time to file writs. 4th Circuit Court of Appeal. Orleans Parish. 370 So.2d 647.

Relief denied. The motion for extension of June 14th cannot be allowed to extend the statutory delay within which to apply for writs, and it cannot be considered as a writ application. Therefore, the pleading filed June 20th was untimely.

DENNIS, J., would grant the writ.


text:
    Vicki Lynn Lane ROUSSEL v. Paul Daniel ROUSSEL.
    No. 64902.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Paul Daniel Roussel, applying for remedial writs of certiorari, prohibition and mandamus. Jefferson Parish. No. 207-115.

Writ denied.


text:
    Leon JONES v. Irwin J. ROUSSEAU and Travelers Insurance Company.
    No. 64883.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Irwin J. Rousseau and Travelers Insurance Co. applying for writ of certiora-ri, Fourth Circuit Court of Appeal. Parish of Orleans. 370 So.2d 600.

Writ denied.

SUMMERS, C. J., and MARCUS, J., would grant the writ.


text:
    WILLSWOOD PLANTATION, INC., and Estate of E. G. Robichaux v. Clarence P. FORET.
    No. 64864.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Clarence P. Foret, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 370 So.2d 607.

Writ denied. Result is correct.

SUMMERS, C. J., and BLANCHE, J., would grant the writ.


text:
    Carol Johnson TOTH v. INTERSTATE FIRE & CASUALTY CO.
    No. 64850.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Carol Johnson Toth, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 370 So.2d 605.

Writ denied.


text:
    STATE of Louisiana v. Louis W. BOYD, Jr.
    No. 64563.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Louis W. Boyd, Jr., applying for writs of certiorari, prohibition and mandamus. Jefferson Parish. No. 77-1799.

Denied.


text:
    Leon JONES v. Irwin J. ROUSSEAU and Travelers Insurance Company.
    No. 64361.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Leon Jones, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 370 So.2d 600.

Writ denied.

SUMMERS, C. J., and MARCUS, J., would grant the writ.


text:
    Walter ROBERTSON et al. v. Leroy PERRY et al.
    No. 64867.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Walter Robertson, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 370 So.2d 596.

Writ not considered. Not timely. Thirtieth day was June 7. Postmark was June 8. Filed June 11.


text:
    STATE of Louisiana v. Kendle L. FULLER.
    No. 64869.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Kendle L. Fuller applying for writ of certiorari, prohibition or mandamus. Parish of Avoyelles. No. 40,972.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ issue herein, and that the Honorable James N. Lee, Judge, and the 12th Judicial District Court for the Parish of Avoyelles transmit to the Supreme Court of Louisiana on or before the 9th day of July, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    STATE of Louisiana v. Fred J. NETTLES.
    No. 64359.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Orleans Parish. No. 78936 Magistrate.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ issue herein, and that the Honorable Gerard J. Hansen, Judge, and the Criminal District Court for the Parish of Orleans transmit to the Supreme Court of Louisiana on or before the 9th day of July, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    STATE of Louisiana ex rel. Leonard JOHNSON v. CLERK, CRIMINAL DISTRICT COURT.
    No. 64598.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Leonard Johnson applying for writ of mandamus. Parish of Orleans.

Writ denied.

SUMMERS, C. J., absent.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Arthur GARDNER v. COURT REPORTER, 2ND JUDICIAL DISTRICT COURT.
    No. 64719.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Arthur Gardner applying for writ of mandamus. Parish of Bienville. No. 77-2827.

Writ denied.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana v. Gregory KITT.
    No. 64733.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Gregory Kitt, applying for writ of mandamus. Orleans Parish.

Writ denied. Appeal pending. Trial transcript is available to defendant’s counsel.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana v. Roy Edward SEGERS (Versie Segers, Jr., Surety).
    No. 64741.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Versie Segers, Jr., Surety applying for remedial writ. Parish of Tensas. No. 22,303.

Treating relator’s appeal as a writ, the application is denied. Relator’s motion to reinstate as an appeal is also denied.

SUMMERS, C. J., absent.

DIXON, J., would grant and docket as an appeal.


text:
    STATE of Louisiana ex rel. Leo JACKSON v. Hon. Oliver P. SCHULINGKAMP, Judge, Section “F”, Criminal District Court, Parish of Orleans.
    No. 64759.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Leo Jackson, applying for supervisory and remedial writs. Orleans Parish.

Writ denied. The matter is moot. Information form Clerk of Criminal District Court has been received instructing that the appeal is being processed and will be shortly filed in this Court.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. John E. PIERRE v. Hayden J. DEES, Warden.
    No. 64760.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re John E. Pierre, applying for writ of mandamus. Orleans Parish. Nos. 211-713 and 211-714.

Writ denied. Mandamus moot. Trial court acted June 29, 1979.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Almeca BARRETT v. Honorable Frank J. SHEA, Judge.
    No. 64773.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Almeca Barrett applying for writ of mandamus. Parish of Orleans. No. 246-819.

Denied, on the representation by the trial Judge that he will rule on the matter on July 5, 1979, the writ is denied.

SUMMERS, C. J., absent.


text:
    C. Ellis HENICAN v. Modesta THOMPSON, wife of/and Angelo D. Marsalone.
    No. 64865.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Modesta Thompson, wife of/and Angelo D. Marsalone, applying for writ of certiorari. Parish of Orleans. No. 77-4287.

Writ denied. Inadequate showing for the exercise of our supervisory jurisdiction. The relator has an adequate remedy by review in the event of adverse judgment below.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Steve WHATLEY v. Frank C. BLACKBURN, Warden.
    No. 64884.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Steve Whatley applying for writ of mandamus. Parish of Orleans. Number 236-161.

Writ denied. Moot.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana v. Jerry L. GAUDET.
    No. 64967.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Jerry Gaudet, applying for writs of certiorari, prohibition and mandamus and for a stay order. Jefferson Parish. No. 78-2434.

Writ denied. Adequate remedy by review in event of conviction.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. David BURCH v. ORLEANS CRIMINAL DISTRICT COURT.
    No. 64592.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re David Burch applying for writ of mandamus. Parish of Orleans.

Denied. Trial judge has scheduled a hearing on July 23, 1979.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Carl SINGLETON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64034.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Carl Singleton, applying for writ of certiorari and/supervisory writs. Plaque-mines Parish. No. 27-877.

Writ denied on basis of the evidentiary hearing of June 19, 1978.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Elijah McGinnis v. CLERK OF COURT.
    No. 64991.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Elijah McGinnis applying for writ of mandamus. Parish of Orleans.

Not considered; relator must first apply to court of appeal, Fourth Circuit.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. James H. FORREST v. Frank BLACKBURN, Warden.
    No. 64401.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re James H. Forrest, applying for motion for reconsideration. Parish of Livingston. No. 2003.

Motion for reconsideration granted. On reconsideration, the writ is granted and an evidentiary hearing is ordered. The District Court is ordered to appoint a lawyer to represent applicant.

SUMMERS, C. J., absent.

MARCUS and BLANCHE, JJ., dissent from order.


text:
    STATE of Louisiana v. Larry NETTLETON and Terry Nettleton.
    No. 65009.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Larry and Terry Nettleton, applying for writ of certiorari and review. Parish of Terrebonne. Nos. 68,404 and 68,407.

Writ granted. Trial judge ordered to have clerk apportion costs relative to each case for which defendants were convicted and then to assess each defendant only for the costs of the case for which he was convicted.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana v. John BOUDREAUX, Jr.
    No. 64998.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re John Boudreaux, Jr., applying for remedial writ. Parish of Jefferson. No. 77-2546.

Writ granted. Application remanded to trial judge to resolve claim of inadequate record without delaying appeal pending in ⅛⅛ court

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Wilford YOUNG v. CLERK OF COURT, SECTION “B”, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 64995.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Wilford Young, applying for writ of mandamus. Orleans Parish.

Writ granted. Trial court ordered to furnish copy of Boykin Transcription, if it has not done so already.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Douglas Ray LEVERETT v. Frank C. BLACKBURN, Warden.
    No. 64992.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Douglas Ray Leverett applying for remedial writs. Parish of St. Mary. No. 83,819.

Writ granted. Evidentiary hearing ordered.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana v. Harold James JACKSON.
    No. 64948.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Harold James Jackson, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. Nos. 111,471 and 111,027.

Writ granted. Since written response and transcript have not been filed here by the district attorney’s office, as requested, and since nothing new has been presented to us since the first preliminary hearing, at which time no probable cause was shown, the ruling of the trial judge on the preliminary hearing is reversed, and the defendant is ordered released from custody and bail on the homicide charge.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Wayne D. THOMAS v. Hon. Frank J. SHEA.
    No. 64845.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Wayne D. Thomas applying for writ of mandamus and review. Parish of Orleans. No. 264-958.

Writ granted. Considering this application as a motion for new trial, we transfer it to district court for action upon it.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Norris Leroy VESSELL v. Hon. Matthew BRANIFF, Judge, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 64807.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Norris Leroy Vessell, applying for writ of mandamus. Orleans Parish. No. 257-212.

Granted; hearing ordered without undue delay.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Oscar MARTIN v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 64575.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Oscar Martin, applying for writ of certiorari. Parish of Tangipahoa. No. 43,-131.

Writ granted. Evidentiary hearing ordered.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana v. Ernest Chatman CHELETTE.
    No. 65048.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Ernest Chatman Chelette, applying for writs of certiorari, prohibition, mandamus and review. Grant Parish. No. 33451.

Writ granted. The crime charged, La. R.S. 14:42 (1978), is not capital, and the accused is constitutionally entitled to be admitted to bail. La.Const. of 1974, art. 1, section 18. The trial court is ordered to hold a contradictory bail hearing forthwith.


text:
    STATE of Louisiana ex rel. Carlie PIERCE, Jr. v. Chief Deputy Wayne SANDERS.
    No. 64993.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Carlie Pierce, Jr. applying for remedial writs. Parish of Livingston.

Writ denied. Application does not state grounds for relief in this court.

SUMMERS, C. J., absent.


text:
    Paula THAMES v. CITY NATIONAL BANK OF BATON ROUGE et al.
    No. 65003.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Paula Thames, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 370 So.2d 892.

Writ denied.

SUMMERS, C. J., absent.


text:
    E. M. IRONSMITH, III, Edward J. O’Brien, Jr., et al. v. COUNTRY PLACE, INC., et al.
    No. 65008.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Country Place, Inc., et al., applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. Parish of Bossier. 371 So.2d 290.

Writ denied.

SUMMERS, C. J., absent.

TATE and MARCUS, JJ., would grant the writ. This interlocutory order, requiring a class action, is of a nature to cause irreparable injury, if erroneous, and therefore should be appealable.


text:
    Jefferson Davis WILLIAMS v. SENTRY INSURANCE COMPANY et al.
    No. 65000.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Jefferson Davis Williams, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 370 So.2d 901.

Writ denied.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. Albert DOUGLAS, Jr. v. PARISH OF JEFFERSON.
    No. 65022.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Albert Douglas, Jr. applying for remedial writ. Parish of Jefferson. No. 75-750.

Writ denied.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana v. Gary JEFFERSON.
    No. 64996.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Gary Jefferson, applying for remedial writs. Orleans Parish.

Writ denied.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana v. Gerald SIBLEY.
    No. 64994.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans. No. 254-613.

Writ denied.

SUMMERS, C. J., absent.


text:
    Eula Marie GUIDRY v. Conrad SERIGNY, d/b/a Leeville Seafood Restaurant and Lounge.
    No. 65004.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Eula Marie Guidry, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 370 So.2d 904.

Writ granted.

SUMMERS, C. J., absent.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for all parties be notified.


text:
    Harrell LINDSEY v. H. A. LOTT, INC., Contractors & Engineers.
    No. 64999.
    Supreme Court of Louisiana.
    July 3, 1979.
   In re Harrell Lindsey, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 371 So.2d 301.

Granted.

SUMMERS, C. J., absent.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for all parties be notified.


author: LANDRY, Judge.

text:
    Irwin CROWE et al. v. Dr. Richard R. HOWARD et al.
    No. 12522.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Garic K. Barranger, Covington, Wendell E. Tanner, Slidell, for appellants.
    W. K. Christovich, Steven R. Plotkin, New Orleans, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   ON MOTION TO DISMISS

LANDRY, Judge.

On motion of defendants (Appellees) we ruled plaintiffs (Appellants) to show cause why this appeal should not be dismissed for Appellants’ failure to pay certain court costs taxed against Appellants and billed to Appellants both before and after Appellants were granted an appeal in forma pau-peris. We recall the rule and deny the motion to dismiss upon finding that Appellants are not required to pay any costs whatsoever as a condition precedent to prosecute an appeal in forma pauperis.

Appellants did not initially sue in forma pauperis, but, after trial, were granted an appeal as indigents. The issue thus posed is whether a litigant who did not initially invoke indigent privileges is required to pay costs which accrued prior to his having been granted an appeal in forma pauperis, in order to perfect his appeal as an indigent.

Following a unanimous jury verdict returned July 1,1977, judgment was rendered herein in favor of Appellees on July 7, 1977, dismissing Appellants’ claims with prejudice, at Appellants’ cost. Correspondence of records shows that on July 11, 1977, the clerk of the trial court billed Appellants for accrued costs aggregating $2,206.59. On September 6,1977, Appellants were granted a devolutive appeal returnable to this court on November 6, 1977. Simultaneously, Appellants obtained an order allowing their appeal in forma pauperis pursuant to LSA-C.C.P. Article 5181, et seq.

On October 13,1977, Appellees moved for a remand of this matter to the trial court to permit a traverse of Appellants’ asserted right to proceed as indigents. We granted the order of remand on October 26, 1977.

Appellees’ motion to traverse was heard by the trial court on May 8, 1978. In the interval between our remand and the hearing of Appellee’s motion to traverse, five extensions of the return date were granted upon request of the clerk of the trial court. The last extended return date was May 26, 1978. The record has not yet been lodged in this court.

On May 8, 1978, after hearing Appellees’ motion to traverse the trial court denied the motion and reaffirmed Appellants’ right to appeal in forma pauperis, but conditioned the right of appeal upon Appellants’ payment of all accrued costs. On May 9, 1978, a second itemized statement of costs was mailed to Appellants’ counsel; it showed a balance of $1,865.34, exclusive of stenographer’s fees estimated at $4,125.00. Payment was requested within fifteen days. On October 18, 1978, a third statement was mailed to Appellants’ counsel requesting payment of $5,990.34 which included estimated stenographer’s fees.

Appellees’ motion to dismiss was filed in this court on November 1,1978. It is based on the premise that the failure to lodge the record in this court by the last extended return date was due to Appellants’ fault in failing to pay the court costs for which Appellants had been billed.

LSA-C.C.P. Article 2161 provides that an appeal shall not be dismissed for an error, irregularity or defect unless the error, irregularity or defect is imputable to appellant. The article lists certain exceptions which are not germane to the matter at hand.

The clerk of a trial court is not required to lodge the record on appeal until appellant has paid all costs for which appellant has been cast. Bensel v. Goitia, 329 So.2d 233 (La.App. 4th Cir. 1976); Landry v. Landry, 230 So.2d 317 (La.App. 4th Cir. 1978).

Failure to timely lodge an appeal because of appellant’s failure to timely pay all costs and fees due in connection with the appeal is a fault imputable to appellant. Landry v. Landry, supra.

It is appellant’s duty to ascertain and timely pay all costs and fees due in connection with this appeal. Bensel v. Goitia, supra.

From the foregoing, it follows that if Appellants are required to pay costs which accrued prior to their obtaining leave to appeal in forma pauperis, this appeal must be dismissed because the record is clear beyond doubt that the failure of the clerk of court to timely lodge the record in his court was due to Appellants’ failure to pay the statement of costs rendered. We find no merit whatsoever in Appellants’ contention that the costs were not paid because Appellants were not able to obtain a statement of costs, and, alternatively, that the amount of costs was in dispute. If Appellants are required to pay costs, it was their duty to pay at least the undisputed amount of the statements rendered.

Our research fails to disclose precedent for the issue presented. The purpose of our indigent statute is to insure that no person shall be deprived of the opportunity to have his claim fully adjudicated in a court of law because his indigency prevents him from satisfying cost and bond requirements of litigating and appealing his cause of action. Hollier v. Broussard, 220 So.2d 175 (La.App. 3d Cir. 1969).

It is well settled that a litigant may request indigent status at any stage of litigation, even after judgment on the merits against him. Brumfield v. Community Mobile Homes, Inc., 315 So.2d 901 (La.App. 1st Cir. 1975); Malveaux v. Buller, 131 So.2d 571 (La.App. 3d Cir. 1961).

LSA-C.C.P. Article 5185 pertinently provides, in part:

“When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:
(1) All services required by law of a sheriff, clerk of court, court reporter, notary, or other public officer in, or in connection with, the judicial proceeding, including but not limited to the filing of pleadings and exhibits, the issuance of certificates, the certification of copies of notarial acts and public records, the issuance and service of subpoenas and process, the taking and transcribing of testimony, and the preparation of a record of appeal;
(2) The right to the compulsory attendance of witnesses for the purpose of testifying, either in court or by deposition, without the payment of the fees, mileage, and other expenses allowed these witnesses by law;
(3) The right to a trial by jury and to the services of jurors, when allowed by law and applied for timely; and
(4) The right to a devolutive appeal, and to apply for supervisory writs. . . ”

Also applicable herein is the rule that the codal provisions authorizing indigents to sue in forma pauperis are remedial in nature and must therefore be liberally construed in favor of affording a litigant his full day in court. T & S Feed Co., Inc. v. Meaux, 339 So.2d 421 (La.App. 1st Cir. 1976); Brumfield v. Community Mobile Homes, Inc., supra; Hollier v. Broussard, supra. In Hollier v. Broussard, above, it was noted:

“[t]he fundamental legislative purpose is to assure that no person is deprived of the opportunity to have his claim adjudicated because his unfortunate financial circumstances prevent him from satisfying the bond and cost requirements of litigation. Gilmore v. Rachl, 202 La. 652, 12 So.2d 669; Crawford v. Government Employers’ Insurance Co., La.App. 3d Cir., 219 So.2d 241 (Rendered February 14, 1959); Dilley v. Phillips Petroleum Co., La.App. 1st Cir., 24 So.2d 209.”

The purpose of LSA-C.C.P. Article 5181, and the rules of interpretation applicable thereto, dictate that it must be construed to mean that the legislature did not intend to require payment of costs accruing prior to an indigent appeal as a condition precedent to such an appeal, in the case of a litigant who did not initially sue in forma pauperis. Any other interpretation of the applicable statute would make an indigent appeal an empty, meaningless remedy. We judicially note that the cost of appeal in the form of filing fees for lodging the appeal in this court are insignificant in comparison to the costs which accrued herein prior to Appellants’ appeal. We think it would be a travesty on justice to exempt Appellant from insignificant appellate costs because of inability to pay such a minimal sum, and by the same token deny his right of appeal by requiring his payment of a vastly greater sum in the. form of prior accrued costs. In our judgment such an anomaly is not contemplated by LSA-C. C.P. Article 5181.

We believe our conclusion is supported by the well established rule that appeals are favored in law and should not be dismissed unless our statutory and jurisprudential rules clearly so require. Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La.1973); Smith v. Board of Commissioners of Port of New Orleans, 262 La. 96, 262 So.2d 383 (1972).

Since Appellants are not required to pay any costs as a condition precedent to appeal herein, Appellants were not at fault in failing to pay the statements rendered. It follows that the failure to timely lodge the transcript in this court was not a defect, error or irregularity imputable to Appellants, and that the motion to dismiss must be denied.

We point out that Appellants, as indigents, are not relieved of all liability for costs. It is well settled that an indigent may be cast for costs in the event he is unsuccessful in prosecuting his demand. LSA-C.C.P. Article 5188.

The rule to show cause issued herein is recalled and set aside and Appellees’ motion to dismiss this appeal is denied.

Motion denied.


text:
    Fannie GODWIN et al. v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
    No. 12451.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied May 1, 1979.
    Writ Refused June 15, 1979.

      Woodrow W. Wyatt, Baton Rouge, of counsel, for plaintiffs-appellants Fannie Godwin, et al.
    John F. Ward, Jr., Baton Rouge, of counsel, for defendants-appellees East Baton Rouge Parish School Board, et al. •
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiffs (Appellants), citizens-taxpayers of East Baton Rouge Parish, instituted this action against the East Baton Rouge Parish School Board (School Board), the School Board’s members individually and certain School Board staff and supervisory personnel, for a declaratory judgment decreeing defendants in violation of La.Const.1974, Article XI, Section 4 (which prohibits use of public funds to urge support of or opposition to any political candidate or proposition) and for a judgment ordering reimbursement to the public fisc of such funds found to have been thus illegally expended. The trial court sustained an exception of no cause of action by all individual defendants, from which judgment Appellants have appealed. We reverse and remand this matter to the trial court for further proceedings.

An exception of no cause of action, also based on a plea of governmental immunity, was filed on behalf of defendant School Board as an agency of the state. The trial court sustained this exception and plaintiffs applied to the Supreme Court for supervisory writs. Upon granting writs, the Supreme Court reversed the judgment sustaining the School Board’s exception of no cause of action and remanded for trial as against the School Board. See Godwin v. East Baton Rouge Parish School Board, 342 So.2d 867 (La.1977).

La.Const.1974, Article XI, Section 4, provides:

“Section 4. No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization. This provision shall not prohibit the use of public funds for dissemination of factual information relative to a proposition appearing on an election ballot.”

Appellants allege that on January 27, 1977, the School Board, as governing authority, School District Number 1, East Baton Rouge Parish, called an election to be held March 8, 1977, for the purpose of submitting to the electorate two separate tax proposals for school purposes. Assertedly, the School Board Superintendent, the School Board, individual members of the School Board, members of the Superintendent’s staff and certain employees, entered into a concerted plan of action to promote, encourage and achieve passage of the proposals submitted. In achieving such alleged illegal activity, defendants are charged with improperly using public funds, using public facilities such as printing equipment, computers and telephones, and employing the time of employees on duty. Defendants are expressly charged with issuing brochures, utilizing billboards, conducting a public opinion poll, employing the services of approximately 60 School Board employees to assist in taking the public opinion poll, requiring teachers to attend promotional sessions concerning the proposed taxes, and engaging School Board staff members during working hours to urge other employees and electors to support the proposals. These and other alleged illegal activities are asserted to have been engaged in by defendants without due care and reasonable diligence and with knowledge of and reckless disregard for the constitutional prohibition against expending public funds in the promotion of elections.

LSA-CCP Article 927(4) provides for the peremptory exception of no cause of action. The purpose of such an exception is to test whether plaintiff’s allegations entitle him to any remedy whatsoever at law. For purposes of deciding such an exception, all well pleaded allegations of the petition, as well as those appearing from annexed documents, must be taken as true. Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (La.1961). Any doubt as to the sufficiency of the petition must be resolved in favor of plaintiff. Geiger v. State, Department of Institutions, 242 So.2d 606 (La.App. 1st Cir. 1970).

Historically and traditionally our jurisprudence has held that there is no personal liability on the individual members of a public body or agency, who are public officials or officers, when they act in good faith and without malice, as the official action of the members becomes merged in the official body as an entity. Strahan v. Fussell, 218 La. 682, 50 So.2d 805 (1951); Tucker v. Edwards, 214 La. 560, 38 So.2d 241 (1948); Monnier v. Godbold, 116 La. 165, 40 So. 604 (1906). The apparent rationale of this line of jurisprudence is that members of state agencies are immune when acting in their official capacities in good faith and without malice, because in such instances their actions merge with that of the represented agency which itself is immune and that, for public policy reasons, members of public bodies should not be held liable in the absence of malice or bad faith. Monnier v. Godbold, supra.

Strahan v. Fussell, supra, involved a suit against a police juror, individually, for allegedly illegal activity in negligently spending funds improperly allocated to him by the police jury of which he was a member. The official was held amenable to suit on the ground that he acted illegally, outside the scope of his authority, thus usurping the authority of the agency represented. Under such circumstances, he was held to be without immunity as a public official.

In LaFleur v. Roberts, 157 So.2d 340 (La.App. 3rd Cir. 1963), a mayor appealed from judgment mandating the dismissal of an illegally appointed Director of Public Works. The question was whether the appointee possessed certain qualifications required by municipal charter. The court found the appointee lacking in qualifications. In sustaining the injunction to dismiss the employee, the court noted that a mayor must be accorded wide discretion in administering the affairs of a municipality and that the proper exercise thereof will be presumed in the absence of a showing to the contrary. It was also noted that courts cannot and should not interfere with the exercise of such discretion absent a clear showing of illegality or abuse thereof. Another issue in LaFleur was whether the mayor could be required to reimburse the City the full sum paid as salary to the invalidly appointed Director of Public Works. The court held the mayor could not be so required because there was no showing that either the municipality suffered any pecuniary damage or that the mayor was in bad faith. In effect, LaFleur, supra, held that where a public official acts contrary to express statutory provision, such action is illegal and personal liability may result if the official is found to be in bad faith.

Defendants, School Board members and supervisory personnel, maintain there can be no personal liability on their part because La.Const.1974, Article XI, Section 4 is not self-operative and requires legislative implementation. Alternatively, they contend they cannot be held guilty of wrongdoing because the constitutional provision is vague and uncertain such that it is impossible to determine with accuracy the type of conduct proscribed.

We find no merit in the argument that the provision is not self-operative. It was obviously intended to protect the public fisc by prohibiting expenditure of public funds for expressly proscribed purposes, namely, to promote or oppose any candidate for office, to promote or oppose the cause of any political organization, or to promote or oppose passage of any proposition submitted to the electorate. Additionally, the provision is designed to prevent public officials from using public funds to support or oppose candidates, parties or propositions. We note particularly that the provision does not prohibit public officials from supporting or opposing candidates, parties or propositions with their personal funds and resources, which admittedly they have a right to do. It only prevents their doing so with public funds.

Nor do we find substance in Ap-pellees’ contention that the constitutional article requires legislative implementation because it is vague and uncertain in that it is not clear what is prohibited by the clause “urge any elector to vote for or against any candidate or proposition,” or what is permitted expenditure for “the dissemination ■ of factual information relative to a proposition appearing on an election ballot.” We find “urge” to be readily understood by an ordinarily informed and reasonable individual. According to Webster’s Third New International Dictionary, Unabridged (1963), “urge” means . . to insist upon — to advocate or demand with importunity — to prosecute vigorously — solicit—be a compelling . . influence upon. . ” We believe the average individual understands “urge" to mean promote, take a position favorable or opposed to a particular candidate or proposition, or openly and publicly seek the election or defeat of a particular candidate, or the passage or defeat of a proposition submitted to the electorate.

In our view, the authority to disseminate factual information relative to a proposition appearing on an election ballot encompasses all empirical data required by the public to intelligently decide whether to vote for or against the issue. Included in such information would of course be tax rates, if any, interest rates on bonds or other evidence of indebtedness purported to be issued and the term and provisions thereof, and an explanation of the expenditures contemplated. Such information may be disseminated in brochures or otherwise, provided they are purely factual and suggest no position for or against and make it clear that the data is published and disseminated solely and only for informational purposes.

We find that defendants herein possess no sovereign immunity for the basic reason that the state, its agencies and subdivisions no longer enjoy such immunity. We deem the pivotal issue to be, therefore, not one of immunity but rather what duty of care is owed by public officials in the exercise of their official duties. In this regard, we deem our historical and traditional concepts of liability, as set forth in the hereinabove cited authorities, set reasonable and practical standards which afford ample protection to public officials performing their duties in good faith and without malice. We can readily understand the need for such protection in order to attract qualified persons to public office and thus promote efficient and orderly performance of governmental activities and public services. For these imperative reasons, we apply these established principles to determine whether Appellants’ petition states a cause of action herein.

Appellants’ petition alleges acts on the part of defendants which, if true, are in violation of the express prohibitory terms of a constitutional provision. It is also alleged that these violations were engaged in by defendants without due care and reasonable diligence and with reckless disregard for the constitutional provision they contravened. In our judgment such conduct, if established, must be deemed in bad faith and with malice. If conduct on the part of the mayor in appointing a municipal employee contrary to a municipal ordinance is actionable if done with malice or in bad faith, LaFleur v. Roberts, supra, we have no hesitancy in holding that a knowing violation of an express constitutional provision also subjects a public official to vulnerability to legal action if done with malice or in bad faith.

The judgment sustaining the exception of no cause of action filed herein on behalf of the individual defendants A. Bridger Eglin, Eileen Armstrong, J. 0. Claudel, Randall Goodwin, L. L. Hines, Donald D. Hunt, Martial J. LaFleur, Jr., T. H. Montgomery, B. H. Peabody, George H. Richard, Pat Screen, W. W. Wells, Clyde Lindsey, Pat McCoy, Arthur Lamb, Graydon Walker and Richard Faether, is hereby reversed and set aside and judgment rendered herein in favor of plaintiffs overruling said exception of no cause of action and remanding this matter to the trial court for further proceedings consistent with the views herein expressed, costs of this present appeal to be paid by defendants-exceptors.

Reversed and remanded.


author: SARTAIN, Judge.

text:
    James Donald BUCHANAN, Plaintiff-Appellant, v. The STATE CIVIL SERVICE COMMISSION, Defendant-Appellee.
    No. 12707.
    Court of Appeal of Louisiana, First Circuit.
    May 10, 1979.
    W. Luther Wilson, Baton Rouge, for plaintiff-relator.
    R. Gray Sexton, Baton Rouge, for defendant-respondent.
    Before CHIASSON, EDWARDS and SARTAIN , JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

This proceeding was initiated by James Donald Buchanan (petitioner) to temporarily restrain and preliminarily enjoin the State Civil Service Commission (Commission) from holding an “ . Executive Session to discuss the Division of Administration matter at 11:00 a. m. on February 20, 1979. ...”

In his petition he averred inter alia that the proposed meeting was in violation of specific provisions of R.S. 42:4.1 et seq. (Louisiana’s Public Meetings Law), namely, that the closed meeting was not for a purpose set forth in Section 6.1 and that the Commission had not taken a public vote to determine to hold a closed meeting and to declare its purpose as required by Sec. 6.

The Commission’s amenability to the Public Meetings Law was raised in its peremptory exception of no cause of action.0

Following a hearing on the rule for a preliminary injunction, the trial judge for written reasons assigned sustained the Commission’s exception of no cause of action, vacated the previously issued temporary restraining order, and denied petitioner’s request for a preliminary injunction.

On petitioner’s application to this court for supervisory writs, we reversed and directed the district judge to grant the preliminary injunction and ordered the parties to show cause in this court by briefs why the relief prayed for should not be maintained or denied as their respective interests may appear.

Almost simultaneously with the lodging of the record in this court the Commission filed a motion to dismiss these proceedings on the basis that the issues raised in the district court are now moot. Attached to its motion is an affidavit of the Secretary to the Commission stating that at its regularly scheduled meeting of March 7, 1979, the Commission “ . . . abandoned any intention of holding a private meeting to discuss the issues surrounding the Division of Administration case and, to the contrary, that day did in fact discuss, deliberate and to the extent necessary decide the issues and questions raised surrounding the Division of Administration controversy. . . ” The concluding paragraph of the affidavit states:

“That the Commission as of this date [March 21, 1979] has no intention of ever rescheduling a private meeting to discuss the Division of Administration or any other matter and that there is not now pending any proposed, scheduled or unscheduled private meeting to discuss either the Division of Administration matter or any other matter within its jurisdiction.”

Since the facts which are offered in support of the Commission’s motion to dismiss occurred after the hearing in the district court and the granting of our writ, they are not reflected in the record now before us. However, since they are not denied in petitioner’s rebuttal brief we accept them as true. South Central Bell Telephone Company v. Dempster, 303 So.2d 278 (La.App. 1st Cir. 1973); State ex rel. Payne v. Irion, 163 La. 1019, 113 So. 360 (1927); RDM Corporation v. Macaluso, 134 So.2d 127 (La.App. 4th Cir. 1961).

It is well settled that the courts will not rule on questions of law which become moot since its decree will serve no useful purpose and can give no practical relief. State ex rel. Preston v. Henderson, 283 So.2d 230 (La.1973).

In the instant proceedings the only relief asked for was a restraining order and preliminary injunction against the Commission holding the above designated closed meeting. Since the Commission has already held the meeting and did so in a public manner, petitioner has in effect obtained the relief he sought. Any ruling now by us relative to the legality of the proposed closed meeting would be purely advisory, a practice the courts have consistently declined to follow. Taylor v. Louisiana Com’n on Governmental Ethics, 340 So.2d 1021 (La.App. 1st Cir. 1976); State ex rel. Preston v. Henderson, above.

Based on the language contained in the above quoted affidavit of the Secretary to the Commission, petitioner asserts that he has no assurance that the Commission will not later call another closed meeting on other matters under circumstances that he (petitioner) considers violative of the Public Meetings Statutes and that he will again be put to the task of obtaining judicial relief. He therefore urges that we rule on the basic legal question of whether the Commission is subject to the statutes. This we choose not to do as we consider the matter as between these parties moot.

Any further pronouncement by us would be in the nature of declaratory relief which cannot be granted. The present proceedings are purely summary. There has been no hearing on the merits and under the present pleadings there can not be one.

For the above reasons, the judgment of the district court granting the preliminary injunction at our direction is vacated and the writ heretofore issued herein is recalled and set aside. All costs permitted by law are assessed against the Commission.

JUDGMENT OF DISTRICT COURT VACATED AND WRIT RECALLED.

      . § 6.1 Exceptions to open meetings
      A. A public body may hold a meeting closed to the public pursuant to R.S. 42:6 for one or more of the following reasons:
      (1) Discussion of the character, the professional competence, or physical or mental health of a single individual provided that such individual may require that such discussion be held at an open meeting;
      (2) Strategy sessions or negotiations with respect to collective bargaining or litigation, when an open meeting would have a detrimental effect on the bargaining or litigating position of the public body;
      (3) Discussion regarding the report, development, or course of action regarding security personnel, plans, or devices;
      (4) Investigative proceedings regarding allegations of misconduct;
      (5) Cases of extraordinary emergency, which shall be limited to natural disaster, threat of epidemic, civil disturbances, suppression of insurrections, or the repelling of invasions, or other matters of similar magnitude; * * *

      . § 6. Closed meetings; administrative conferences
      A. A public body may hold a meeting closed to the public upon an affirmative vote, taken at an open meeting for which notice has been given pursuant to R.S. 42:7, of two-thirds of its voting members present. A meeting closed to the public shall be limited to matters allowed to be exempted from discussion at open meetings by R.S. 42:6.1; provided, however, that no final or binding action shall be taken during such a closed meeting and that the closed meeting shall not be used as a subterfuge to defeat the purposes of this Chapter.
      The reason for holding a meeting closed to the public, and the vote of each member on the question shall be stated in open meeting. Nothing in this Section or R.S. 42:6.1, shall be construed to require that any meeting be closed to the public. * * * ”


author: FORET, Judge.

text:
    Cecil F. EASLEY, Plaintiff-Appellant-Appellee, v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Defendant-Appellant-Appellee.
    No. 7041.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.

      Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendant-appellant-appellee.
    Thomas & Dunahoe by G. F. Thomas, Jr., Whitehead & McCoy, Charles F. Whitehead, Jr., Natchitoches, for plaintiff-appellant-ap-pellee.
    Before WATSON, FORET and CUTRER, JJ.
   FORET, Judge.

This is an action on an insurance policy brought by the insured against his insurer. The district court, upon interpretation of the provisions of the policy, granted plaintiff recovery of the sum sought but held that the insurance company was not liable for any penalties or attorney fees. From such judgment, defendant has perfected this appeal. Plaintiff has answered, and, additionally, seeks the previously denied penalties and attorney fees.

The factual circumstances of this case are, for the purposes here present, basically undisputed. On December 28, 1977, the trailer of a tractor-trailer rig was struck broadside by a Kansas City Southern train as it was crossing certain railroad tracks in the Village of Goldonna, Natchitoches Parish, Louisiana. The trailer was destroyed in the accident, which also resulted in the derailment of the train and the explosion of a tank car(s) carrying combustible materials. Plaintiff, Cecil F. Easley, a pedestrian-bystander on his own property adjacent to the train tracks, was burned by the “gigantic fireball” (trial ct., reasons for judgment) which erupted from the damaged tank car(s). Various other persons and property near the scene were also damaged and/or destroyed by fire or explosion.

Easley demanded payment from his personal automobile liability insurer (defendant, Firemen’s) under the medical payments provision of the policy; subsequently this suit was filed.

The three issues presented to the trial court and on appeal are:

1. Is the plaintiff entitled to recovery under the medical payments provision of his insurance policy?
2. If he is entitled to a recovery, in what amount (i. e. can he “stack” the medical payments provisions of the two automobiles on the policy)?
3. Is he entitled to penalties and attorney fees?

The trial court rendered judgment in favor of plaintiff on the first two issues but denied the third. The same three issues are before us on appeal. We affirm.

COVERAGE

The first legal issue involves an interpretation of the policy language contained in the policy of insurance issued by defendant to plaintiff. The “medical payments” provision requires the insurance company:

“To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury”, caused by accident,
(a) while occupying the owned automobile,
(b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or
(c) through being struck by an automobile or by a trailer of any type;”

Plaintiff, who was a pedestrian at the time of the accident, claims coverage under sub-section (c). Initially, it must be stated that plaintiff was not physically struck by either the train or truck or any parts thereof, but was burned in the explosion.

In the interpretation of insurance policies, the vast majority of jurisdictions hold that to recover under this provision, an injured person need not be actually physically struck by a motor vehicle, but may recover if injured by a motor vehicle. With one exception (which will be discussed later in this opinion), Louisiana is included in this majority.

The first Louisiana case to deal with this issue was Blanchard v. Hanover Insurance Co., 260 So.2d 484 (La.App. 1 Cir. 1971). In that case, the injured plaintiff, driving his employer’s truck, collided with another vehicle. The other vehicle did not physically contact him. The court, in a comprehensive review of the law in other jurisdictions, and Louisiana, granted him recovery, holding that actual physical contact was not a prerequisite.

This ruling was affirmed by the First Circuit in Landry v. State Farm Mutual Automobile Insurance Company, 298 So.2d 291 (La.App. 1 Cir. 1974), writ refused, a factually similar case.

This Circuit, in Leger v. Allstate Insurance Co., 252 So.2d 186 (La.App. 3 Cir. 1971), followed the majority rule in a situation where a motorcyclist was injured when his bike struck a slowly moving automobile. We noted there that “Since the automobile was moving and provided part of the force for the blow, there can be no question that the insured was ‘struck by’ the automobile within the contemplation of the policy provisions”. 252 So.2d at pg. 188.

In Vallot v. All American Insurance Co., 302 So.2d 625 (La.App. 3 Cir. 1974), this Court, citing Blanchard, Landry, and Leger, held that there was coverage for plaintiff when her husband was killed when his tractor was struck from the rear by an overtaking truck, which did not physically touch decedent’s person.

As noted above, the vast majority of states no longer require any actual physical contact of the injured person by a motor vehicle. In addition to those cases cited and quoted with approval by the First Circuit in Blanchard, we note the following cases whose factual circumstances are somewhat closer to our instant case:

In Black v. Hanover Insurance Co. (1961), 30 Misc.2d 1081, 220 N.Y.S.2d 168, the plaintiff left an automobile which the driver was trying to park and was injured when the rear of the automobile hit a pole which in turn struck the plaintiff. The New York court granted recovery for the plaintiff, finding that the apparent purpose of the clause was to compensate a policy holder in the event he incurred expenses in connection with an automobile accident.

In McKay v. Travelers Indemnity Company (1963 App.), 27 Ohio Op.2d 76, 94 Ohio L.Abs. 1, 193 N.E.2d 431, the Ohio court gave judgment for a plaintiff who was seated on a stool inside a building when a truck struck the building, canned goods fell on her, and she fell from the stool to the floor, suffering injuries.

In DeBerry v. American Motorists Insurance Co., 33 N.C.App. 639, 236 S.E.2d 380 (1977), the North Carolina court granted recovery to a plaintiff who was injured when a rope barrier, tied across a city street for crowd control purposes, was struck by an automobile, causing the rope to break and strike the plaintiff.

These cases are but a few examples of foreign jurisprudence. Those cases cited by defendant which require actual physical contact are in the decided minority and generally not very recently decided. The apparently leading case for this view, Johnston v. Maryland Casualty Co., 22 Wash.2d 305, 155 P.2d 806 (1945) has been specifically criticized in many jurisdictions (including Louisiana in Blanchard) and we decline to follow it at this late date.

As noted earlier in this opinion, there is one Louisiana case the defendant has cited in support of its position. In Bowab v. St. Paul Fire & Marine Ins. Co., 152 So.2d 66 (La.App. 3 Cir. 1963), the ruling was against the plaintiff. In that case the plaintiff had removed a wheel and tire from his boat trailer and was attempting to replace a missing bolt in the wheel, when the tire exploded, causing the tire and a part of the wheel to strike plaintiff. As we noted in Leger, where the defendant also attempted to rely on Bowab, “the majority rule [is] that if the automobile is moving this satisfies the requirement that the insured be ‘struck by’ the automobile . . . where the offending automobile is in motion there is no question that the insured was ‘struck by’ the automobile”.

In the instant case, the tractor trailer was in motion (if too slowly) across the railroad tracks when it was hit by the train. As we noted in Leger, this fact is sufficient; the entire force and momentum of the blow need not come from the motor vehicle. Accordingly, we find that plaintiff is entitled to recover under the medical payments provision of his insurance policy.

STACKING

Plaintiff insured two automobiles under his Firemen’s automobile insurance policy. Each vehicle coverage contained a medical payments provision of $2,000 for which the plaintiff was charged separate premiums. As the plaintiff’s medical expenses are in excess of $2,000, he sought to have the coverages for the two vehicles combined (“stacked”) to reach a total coverage of $4,000, which demand was granted by the trial court.

A review of the insurance policy shows the following language which, Firemen’s argues, acts to limit any liability under medical payments provision to $2,000 (the amount of coverage on one automobile);

Limit of Liability
The limit of liability for medical payments stated in the declarations as applicable to “each person” is the limit of the company’s liability for all expenses incurred by or on behalf of each person who sustains bodily injury as the result of any one accident.

We also note another provision of the policy:

4. Two or More Automobiles Parts I, II and III
When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each but an automobile and a trailer attached thereto shall be held to be one automobile as respects limits of liability under Part I of this policy, and separate automobiles under Part III of this policy, including any deductible provisions applicable thereto.

Despite the apparent ambiguity between these two provisions of the insurance policy, defendant argues merely that the courts of appeal of Louisiana have rejected “stacking” of medical payments benefits and that this Court should do likewise. The cases cited are: Guillory v. Grain Dealers Mutual Insurance Co., 203 So.2d 762 (La.App. 3 Cir. 1967), writ refused, 251 La. 687, 205 So.2d 605 (1968); Odom v. American Insurance Co., 213 So.2d 359 (La.App. 3 Cir. 1968), writ refused, 252 La. 955, 215 So.2d 127 (1968); Bost v. Hartford Acc. & Indemnity Co., 242 So.2d 355 (La.App. 2 Cir. 1970); Bourgeois v. Government Employees Ins. Co., 316 So.2d 804 (La.App. 1 Cir. 1975), writ refused, 320 So.2d 914 (La.1975); Lane v. Fireman’s Fund Ins. Co., 344 So.2d 702 (La.App. 4 Cir. 1977).

While several of these cases are at least partially distinguishable from our present situation, we do not find such distinctions to be of ultimate importance in deciding the instant case.

In Odom, there is an interesting and enlightening discussion of “stacking” of medical payment benefits written by Judge (now Justice) Tate in “Concurring in Denial [of rehearing]”. While concurring with the other two members of the Court of Appeal panel (both of whom had been on the panel which authored Guillory) in their decision, he specifically stated that he did so only out of deference to his fellow judges’ “reluctance to overrule at this time so recent a decision of our Court without first affording our high court an opportunity for a full-scale study of the issue involved”.

In the ten years since Justice Tate wrote those words, our Supreme Court has not seen fit to undertake a “full-scale study of the issue involved”. In Guillory, Odom and Bourgeois, the Supreme Court refused writs. In Bost and Lane, apparently writs were not applied for. Thus, the only guidance this Court has is three “writs refused” which, of course, does not indicate that the Supreme Court approved the decisions of the courts of appeal, but only that, in these cases, writs were refused.

“. . . such ruling does not reflect such a prior adjudication on the merits of the issues as would preclude a consideration and a determination of the questions presented on a subsequent review.” State, Dept. of Highways v. Beaird-Pou-
lan, Inc., 292 So.2d 842, at 848 (La.App. 2 Cir. 1974).
And as this Court has stated previously: “Our Supreme Court has held many times that their refusal to grant writs, although persuasive, does not establish legal precedent since the Supreme Court is not bound by its refusal of writs, to adopt law expressed in appellate court opinions. Garlington v. Kingsley, 289 So.2d 88 (La.1973); Colonial Pipeline Co. v. Agerton, 289 So.2d 93 (La.1974).” Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061, at 1069 (La.App. 3 Cir. 1977).

Without such mandatory guidance from the Supreme Court, we have undertaken our own study of the issues involved and, upon such study, decline to follow the rulings of the courts of appeal in the above cited cases, but instead follow the path shown by Justice Tate’s reasoning as set forth in Odom.

It is horn book law that whenever ambiguity is found in the provisions of an insurance contract, such ambiguity will be resolved in favor of the insured so as to provide him with the broadest coverage consistent with a reasonable interpretation of the contract. As noted above, such ambiguity exists in the present contract with regard to the stacking of medical payments benefits. While the insurance company quotes its language to the effect that its liability is limited to that set forth in the declaration as applicable to “each person” ($2,000 in this instance), there also appears the clause, quoted above, requiring the sev-erability of the policy when two or more automobiles are insured under it (as here present).

The second mentioned clause gives support to plaintiff’s argument that there are, in effect, two separate medical payments policies extant, both of which he has been billed for and paid for.

“The medical payments provisions of the insurance contract is a separate and distinct contractual arrangement between the parties which serves the purpose of providing additional protection to the insured without the issue of fault becoming involved.”
Odom, 213 So.2d at 362 (Tate, concurring in denial)

If the plaintiff had purchased two separate medical payments policies, there would be no doubt that he could combine the benefits. In the present case he has placed these two coverages in one contract; he should not be made to lose benefits he has paid for merely because of this fact.

The plaintiff should be entitled to combine his two medical payments provisions either simply because he has bought and paid for two coverages or due to the irreconcilable nature the two aforementioned clauses.

Such a result is in accordance with the majority jurisprudence of other states which have considered this question.

In Government Employees Insurance Co. v. Sweet, 186 So.2d 95 (1966 Fla.App.), the plaintiff’s wife was injured in an accident while in one of two automobiles covered by a single policy of insurance. Both automobiles had medical payments provisions for which separate premiums were charged. The insurance company, conceding “that ambiguity exists only in the event there had been injury of the named insured while occupying an automobile neither owned by the named insured nor furnished for the regular use of the named insured, conceding that in that event it would be impossible to determine which automobile afforded coverage”, argued that since her injuries were incurred while occupying one of the two owned vehicles, there was coverage under medical payments benefits only as to the occupied vehicle. The Florida court refused this argument noting that plaintiff had paid for two coverages and that the limitations of liability clause was made ambiguous by the two or more automobiles clause so as to require construction of the contract to provide the maximum coverage.

The court also noted that:

“. .it makes no difference whether the injuries were sustained while the named insured was occupying or struck by either one or the other of the automobiles described in the policy or by an automobile not described in the policy. There is no way to relate coverage to either, and, therefore, the limit of liability for medical payments of the named insured for bodily injury sustained as a result of any one accident is applied separately to the terms of the policy as to each automobile described.”
186 So.2d at 97.

Note the cases cited by Justice Tate in Odom ; and also Dyer v. Nationwide Mutual Fire Ins. Co. (Fla.1973), 276 So.2d 6; Allstate Ins. Co. v. Leviss, 71 Misc.2d 628, 336 N.Y.S.2d 757.

Sullivan v. Royal Exchange Assurance, 181 Cal.App.2d 644, 5 Cal.Rptr. 878 (1960) is to the contrary but has been rejected by most other jurisdictions (as it is apparently based on a California rule of contractual construction). See also the Annotation at 21 A.L.R.3d 900, et seq.

We thus hold that plaintiff is entitled to combine the medical payments coverages for each automobile to reach a $4,000 limit.

PENALTIES AND ATTORNEY FEES

Plaintiff seeks, on appeal, 12% penalties and attorney fees for Firem.en’s “failure to pay in the face of firm jurisprudence” (Pi’s brief, pg. 4). While both the trial court and this Court have found in favor of the plaintiff, this does not require that penalties and attorney fees be assessed against the defendant for refusing to pay this claim. We affirm the decision of the trial court refusing to order such payment, not finding the actions of defendant to be “arbitrary and capricious”.

The judgment of the trial court is affirmed, at appellant’s costs.

AFFIRMED.

WATSON, J., concurs in result.

      . See also Bates v. United Security Ins. Co., 163 N.W.2d 390 (Iowa, 1968); Maness v. Life & Casualty Ins. Co. of Tennessee, 161 Tenn. 41, 28 S.W.2d 339 (Sup.Ct. of Tennessee); Hale v.

        Allstate Ins. Co., 345 S.W.2d 346 (Ct. of Civil App. of Texas); State Farm Mutual Automobile Ins. Co. v. Johnson (1961), 242 Miss. 38, 133 So.2d 288. See also the Annotation on this issue in 33 A.L.R.3rd 962, et seq.

      . In Guillory, the plaintiff was injured while driving one of two automobiles covered by the policy. Medical payment coverage was sought under sub-section (a) (operating an owned vehicle) not under sub-section (c) (“struck by” an automobile as in our present case). In Odom, the plaintiffs wife was driving one of the named automobiles when struck by another automobile. This Court found coverage under either sub-section (a) or (c) and refused to stack medical payment provisions of the several automobiles on the policy. In Bourgeois, apparently the insurance policy had different wording than here present, containing under “limits of liability” the phrase contained in Mr. Easley’s policy plus . . Regardless of the number of automobiles or trailers to which this policy applies”. In Lane, coverage was found under sub-section (b) (occupying a non-owned automobile).

      . Guillory was decided October 27, 1967, rehearing was denied November 27, 1967, and writs were refused January 18, 1968. Odom was decided July 29, 1968, rehearing was denied August 20, 1968, writs were refused November 12, 1968.


author: SUGG, Justice,

text:
    John W. ROBINSON, Jr., et al. v. HOWARD BROTHERS OF JACKSON, INC. and Mark S. Pace.
    No. 51093.
    Supreme Court of Mississippi.
    May 9, 1979.
    Rehearing Denied July 25, 1979.
    Perry, Crockett, Morrison & Starling, Robert E. Perry, Lester F. Smith, Tommy E. Furby, Jackson, James H. Herring, Canton, for appellants.
    Heidelberg, Woodliff & Franks, George F. Woodliff, Charles G. Copeland, C. A. Henley, Jr., Watkins & Eager, Hassell H. Whitworth, John L. Low, IV, Jackson, for appellees.
    Before SMITH, SUGG and BROOM, JJ.
   SUGG, Justice,

for the Court:

On September 20, 1975, John P. Alexander, II, purchased a pistol and on September 21, 1975, purchased 50 rounds of ammunition from Howard Bros, of Jackson, Inc. Mark Pace, a clerk in the store, filled out the bottom half of the firearms registration form after Alexander had completed the top portion of the form which included the birthdate of Alexander. Alexander presented his drivers license to Pace, which showed his birthdate as December 30, 1954. Howard’s sales policy for firearms required a member of the management to authorize the sale of a firearm. Pace received approval for the sale from the manager of Howard’s automotive department. Alexander certified and signed a statement that he was at least 21 years of age and that he would only use the ammunition for lawful purposes.

. On September 29, 1975, Alexander purchased an additional 50 rounds of ammunition. He again certified that he was at least 21 years of age and that he would only use the ammunition for lawful purposes.

Distraught over the circumstances surrounding his love affair with Harriet Robinson, Alexander murdered Mrs. Robinson with the pistol and ammunition purchased from Howard Bros.

Plaintiffs filed suit against Howard’s and Pace for the wrongful death of Mrs. Robinson. The declaration alleged that the death of Mrs. Robinson resulted from the sale of the pistol and ammunition to Alexander, a minor, in violation of the Gun Control Act of 1968, 18 U.S.C. § 922(b)(1) and Mississippi Code Annotated section 97-37-13 (1972). Defendants admitted negligence in selling a firearm and ammunition to a minor but denied liability for the death of Mrs. Robinson. Defendants moved for a directed verdict which was granted by the trial court.

Plaintiffs argue that the murder of Mrs. Robinson is an example of acts sought to be prevented by the statutes. Plaintiffs argue that sale of the pistol was a contributing cause to the death of Mrs. Robinson and liability was established as a matter of law. If we accept appellants’ position, one who sells a pistol to a minor in violation of the above statutes would be absolutely liable for any damages inflicted by a minor with the pistol. Stated differently, the seller would be an insurer of the safety of any person injured by a pistol sold to a minor.

We are unable to accept such an unrestricted view. We held in Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243 (1956) that an actor who violated a statute was not responsible for the damages that occurred as a result of a third party’s negligence. Milner Chevrolet Co. violated the statute prohibiting leaving the key in the ignition of an unattended automobile. The automobile was stolen and Permenter sustained personal injuries when an automobile in which he was riding was struck by the stolen automobile. We denied recovery and held that, although the defendant was guilty of negligence by violating the statute, the reckless driving of the thief was an independent intervening agency which caused the accident and superseded the original act of negligence.

Also, in Bufkin v. Louisville and N. R. Co., 161 Miss. 594, 137 So. 517 (1931), Bufkin was injured when a passenger on defendant’s train knocked him down and against the moving train. The train was exceeding the speed limit established by statute. Plaintiff argued that the excessive speed of the train was the proximate cause of his injury, rather than the act of the passenger in knocking him down. We held that the excessive speed of the train was not the proximate cause of the plaintiff’s injury, and stated:

A wrongdoer is responsible for the consequences of his own wrongful act, but he is not responsible for what others, acting independently of him, and for themselves, did, even though his act may be the occasion of their act. They are independent actors, and each is responsible for his own act. “Consecutive wrongs, done by independent agents, cannot be conjoined to increase or enlarge the responsibility of one of them.” One person is negligent on a particular subject-matter; another person, moving independently, comes in, and either negligently or maliciously so acts as to make the negligence of the other injurious to a third person. In such a case the person so interfering “acts as a nonconductor and insulates” the negligence of the other person .
The negligence of appellee was harmless in itself, but was rendered harmful by the negligent act of the passenger. The proximate cause of the injury, therefore, was not the negligence of the appellee, but that of the passenger. [161 Miss. at 598, 599, 600; 137 So. at 518].

In Munford, Inc. v. Peterson, et al., 368 So.2d 213 (Miss.1979), we held that an injured party is entitled to recover against one who violates a statute if the negligent violation of the statute proximately caused or contributed to the injury. The action was based on Mississippi Code Annotated section 67-3-53(b) (1972), which prohibits the sale of beer to any person under the age of 18 years. Three minors purchased beer from the Majic Market on three different occasions during a single night. The operator of the store asked the first purchaser if he was 18 years of age, but did not require proof of age or identity. Later, another one of the minors purchased a six-pack of beer without any questions being asked about his age. After the final six-pack was consumed, an automobile accident occurred in which one of the minors was killed. The declaration charged negligence for the unlawful sale of beer to persons under the age of 18 years who became intoxicated as a result of consuming the beer. Defendant argued that the plaintiffs failed to state a cause of action and that the trial court erred in instructing the jury that Munford was negligent as a matter of law. We held that violation of the statute was negligence per se and the trial court properly instructed the jury that plaintiffs were entitled to recover if the negligence of the defendant proximately caused or contributed to the death of the passenger in the automobile.

This case is distinguishable from the facts in Munford because in this case the purchaser of the pistol committed a premeditated murder whereas Munford dealt with the negligent operation of an automobile.

The question of foreseeability is important in our case because there is less reason to anticipate premeditated and malicious acts as opposed to acts which are merely negligent. A clear statement on this question of foreseeability appears in Prosser, Law of Torts, 4th Ed. pp. 173, 174 where the author states:

There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law .

Pace, the employee of Howard’s, who sold the pistol to Alexander, had known Alexander when they were in school together, and there was no evidence to indicate that Alexander had a previous criminal record or exhibited the propensity to handle firearms in a dangerous manner. We do not feel that the murder of Mrs. Robinson by Alexander was within the “circle of reasonable foreseeability” stated in Mauney v. Gulf Refining Co., 193 Miss. 421, 8 So.2d 249 (Miss.1942).

The act of Alexander in murdering Mrs. Robinson was an independent intervening agency which superseded the negligence of defendants. The proximate cause of the death of Mrs. Robinson was not the negligence of the defendants but the premeditated murder of Mrs. Robinson by Alexander. Under the facts in this case we do not believe that the defendants could have reasonably foreseen that Alexander would commit a murder with the pistol and ammunition which he purchased more than two weeks earlier.

Plaintiffs rely on Franco v. Bunyard, 547 S.W.2d 91, (Ark.1977), which involved the failure of a gun dealer to comply with the identification requirements of the federal gun control law. An escapee from the state penitentiary purchased a gun from the defendant but was not required to furnish any identification. The next day, using the firearm, the purchaser robbed a grocery store and fatally wounded two hostages. Suit was filed against the gun dealer for the wrongful deaths of the hostages. As to proximate cause, the court held that the tragedies would not have occurred if the federal rules had been obeyed.

Although persuasive, we decline to follow the Arkansas case because the facts in our case are entirely different in that there was no showing that Alexander had a previous criminal record or a propensity for violence. In the Arkansas case the purchaser of the firearm was an escaped convict with a previous criminal record.

In sum, the intentional criminal act of Alexander was an independent intervening cause that broke the causal connection between defendants’ negligent act and the death of Mrs. Robinson. The criminal act cannot be said to have been within the realm of reasonable foreseeability because the defendants, although negligent per se, could reasonably assume that Alexander would obey the criminal law. We hold that plaintiffs failed to prove a cause of action upon which relief could be granted and the court correctly directed the verdict for defendants.

AFFIRMED.

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

BOWLING and COFER, JJ., took no part.

      . Section 33-5-1 Mississippi Code Annotated (1972) provides that the militia of the State of Mississippi shall consist of all able-bodied male citizens of the state between the ages of 18 and 45 years who are not exempt by law of this state or of the United States. The possible effect of this statute considered in conjunction with the Second Amendment of the United States Constitution and Section 214 of the Mississippi Constitution of 1890 was not argued and is not before the Court for decision in this case.


text:
    Clyde Willie STEWART v. STATE of Mississippi.
    No. 51128.
    Supreme Court of Mississippi.
    May 16, 1979.
    Rehearing Denied July 25, 1979.
    Robert N. Brooks, Carthage, for appellant.
    A. P. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


author: BOWLING, Justice,

text:
    Melvin Junior CLARK v. MISSISSIPPI POWER COMPANY.
    No. 51247.
    Supreme Court of Mississippi.
    May 23, 1979.
    Rehearing Denied July 25, 1979.

      Ingram & Matthews, Jolly W. Matthews, Aultman & Aultman, Hattiesburg, for appellant.
    Heidelberg, Sutherland & McKenzie, R. Web Heidelberg, Rowland W. Heidelberg, Hattiesburg, Eaton, Cottrell, Galloway & Lang, Gulfport, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Melvin Junior Clark, appeals from a jury verdict for appellee, Mississippi Power Company, in the Circuit Court of Forrest County. The sole assignment of error is that the trial judge erroneously sustained appellee’s objection to the admission of testimony offered by appellant from an expert electrical engineer.

On March 16, 1976, appellant filed his declaration against appellee, alleging that he received serious injuries due to the negligence of appellee. An appliance appellant was using to attach a sign to an outdoor billboard came in contact with a nearby electrically charged line owned and operated by appellee. The principal allegations of negligence set out in the declaration were that the electrical distribution line was too close to the billboard sign; that appellee did not follow the proper standards of care and safety in the location, operation and maintenance of the line, knowing that appellant or others would be working on the sign; and that appellee was negligent in failing properly to insulate or otherwise protect the line from injury to persons coming in contact therewith.

On September 7, 1976, appellee propounded interrogatories to appellant pursuant to the provisions of Mississippi Code Annotated sections 13-1-226 and 13-1-233 (1972 as amended). Answers to the interrogatories were filed by appellant on December 28, 1976. Three of the interrogatories and answers are material to the issue in this case. The interrogatories and answers to each were as follows:

Defendant’s Interrogatory No. 34:
In paragraph 5(b) of your declaration you charge the defendant, as an alleged act of negligence, with failing to comply with the standards of care and safety of the power distribution industry in the location, operation and maintenance of its power distribution line in close proximity to said outdoor sign. With respect to this allegation, please state the following:
(a) Please state in detail, using precise engineering or other technical terms, the specific and particular standards of care and safety you contend were violated and precisely the manner, nature and extent of such alleged violation.
(b) What is the source or authority of the standard of care and safety you contend was violated? If said standard of care and safety is set forth in any rule, regulation or other publication, please identify the publication in detail and cite the precise section, paragraph, page or other specific provision containing the standard of care and safety for which you contend. In addition, please identify the names, occupations and addresses of all persons having custody of the same and where the same may be inspected.
Plaintiff’s Answer to Interrogatory No. 34:
Plaintiff is unable to answer this interrogatory in precise engineering detail, but will file supplemental answer at a later date.
Defendant’s Interrogatory No. 35:
In paragraph 5(d) of your declaration you charge the defendant, Mississippi Power Company, as an alleged specific act of negligence, with failing to equip its power distribution line located in close proximity to said outdoor sign with proper insulation and other protective devices required by the standards of safety established by the electric power distribution industry and/or required for due care. With respect to this allegation, please state as follows:
(a) Please state in detail, using precise engineering and other technical terms, the type, kind and manner of insulation which you contend would be proper.
(b) Please state in detail, using precise engineering and other technical terms, each and every protective device which you contend were required.
(c) Please state in detail, using precise engineering and other technical terms, the specific and precise standards of safety which you contend are established by the electrical power distribution industry, or which you contend are required for due care, and state precisely the source and authority for said standard. If said standard of care and safety is set forth in any rule, regulation or other publication, please identify the publication in detail and cite the precise section, paragraph, page or other specific provisions containing the standard of care and safety for which you contend. In addition, please identify the names, occupations and addresses of all persons having custody of the same and where the same may be inspected.
Plaintiff’s Answer to Interrogatory No. 35:
Plaintiff is unable to answer this interrogatory in precise engineering detail, but will file supplemental answer at a later date.
Defendant’s Interrogatory No. 37:
Please give the full name, address, occupation and specialty of each person whom you expect to call as an expert witness at the trial of this case; state the subject matter on which each expert is expected to testify; state the substance of the facts and opinions as to which each expert is expected to testify and give a summary of the grounds for each such opinion.
Plaintiff’s Answer to Interrogatory No. 37:
None, at the present time, but there will be an expert; name will be furnished later.

It is readily seen that interrogatories numbers 34 and 35 were authorized by Code sections 13-l-226(a)(b) and 13-1-233. These are the general discovery statutes whereby any party to the cause may secure from the other party information which would clarify all issues in the cause prior to trial so that neither party would have an undue advantage and justice would prevail.

Interrogatory No. 37 was filed pursuant to Code section 13-l-226(b)(4)(A)(i), which provides that “[a] party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” It is readily seen that this enlarges on the general authority of any party to file interrogatories for the purpose of having an “open” trial with no secrets as provided for in section 13-1-233. Even though there is much opposition to this provision, in considering this appeal, it is in the Code and therefore “the law of the land.”

The case was set for trial in April, 1977. The plaintiff had not filed supplemental answers to the three above set out interrogatories. Thereupon on March 24, 1978, the attorney for appellee, pursuant to section 13-l-226(e)(3), filed a demand to plaintiff to supplement answers to interrogatories. Listed on this demand were Interrogatories Numbers 34, 35 and 37. No response was made thereto at any time prior to or during the trial. On the morning the trial started, attorney for appellant introduced an electrical engineer, stating that he would be used at the trial. Attorney for appellee at that time and prior to the start of the trial announced that if the expert was offered as a witness, objection thereto would be made. On the second day of the trial the expert was presented as a witness, and upon objection, the lower court ruled that he could not testify due to the failure of appellant to conform to the above discussed discovery rules.

Appellant and appellee, in very excellent briefs, cite many authorities and arguments on whether or not under the circumstances set out above, the lower court erroneously sustained appellee’s objection to the testimony of appellant’s offered expert. A study of these authorities clearly reveals that the lower court should be cautious in either dismissing a suit or pleadings or refusing to permit testimony as was done here. The reason for this is obvious. Courts are courts of justice and not of form. The parties should not be penalized for any procedural failure that may be handled without doing violence to court procedures. The authorities, however, all boil down to the simple proposition that the trial court has wide discretion so long as it is not abused. This was clearly set out in the recent case of Harkins et al. v. Paschall, 348 So.2d 1019 (Miss.1977), which opinion quoted Paulk v. Housing Authority of City of Tupelo, 228 So.2d 871 (Miss.1969), which said:

[T]he trial court has considerable discretion in matters relating to discovery and its order will not be disturbed unless there has been an abuse of that discretion.

In the present case the record shows that about six weeks prior to the trial date, during a conversation between attorneys for appellant and appellee, the attorney for appellant advised the name and address of the expert in question who would testify at the trial. The question now is whether or not, taking all the foregoing occurrences and pleadings into consideration, this Court can say that the trial court abused its discretion. There are two paramount considerations that in our opinion make this decision. In the first place, appellant gave no answer to any of the three interrogatories in question except to say that he was un: able to answer each at that time but would file supplemental answers at a later date. This was not done. In addition to this, as before stated, on March 24, 1978, approximately three months after the original answers were filed, appellee filed a demand for its answers. These were not given.

In analyzing the position of the lower court when the expert was offered, we are confident he had in mind the fact that no answers were given to the original interrogatories and it was specifically stated they would be given later, and the fact that they were still not given after written demand made and filed in the cause. The lower court had justification then to reason that the information related to appellee’s attorney as to the name and address of the expert was not sufficient to make a substantial compliance with the discovery statute requirements. Had answers to Interrogatories Numbers 34 and 35 been made and not to Number 37, the information related to appellee’s attorney as to the name and address of the person who would prove the answers to Numbers 34 and 35, in all probability, would have been sufficient for a substantial compliance with the discovery rules requiring the lower court to permit the testimony of the expert. Without the above from appellant, we have no choice but to hold that the lower court did not abuse its discretion.

Appellant advances the argument that the lower court could exclude the expert’s testimony only on “motion” of appel-lee under the provisions of Code section 13- 1 -237. It is contended that the “objection” to the evidence was not sufficient for the court to act. A study of Section 13-1-237 shows it to be styled “Failure to make discovery: Sanctions,” and is in four principal parts. The first part provides for the filing of a motion by a party to compel discovery and provides for disposition of that motion by the court. The second part is styled “Failure to comply with order.” This refers, of course, to an order signed by the court pursuant to a motion filed by a party under the first part of the section. The third part of the Sanctions section provides for expenses to be adjudged against a defaulting party on order of the court. The fourth and last part of the section, styled “Failure of party to serve answers to interrogatories,” provides that if a party fails to serve answers or objections to interrogatories submitted under section 13-1-233,

[T]he court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (A), (B) and (C) of subsection (b)(2) of this section.

Referring back to subsection (B), it is provided that the court may issue “an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.’’ (Emphasis supplied). It is clear that the words “on motion” include oral objection, in the nature of a motion, to the adverse party’s actions as was done here and would not require a recess of court for the moving party to go and prepare a written “motion.” Appellee did everything that was legally required of it to preserve its rights for the failure of appellant to answer the interrogatories.

We reiterate that in problems as here presented questions should be decided on a case by case basis.

AFFIRMED.

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


text:
    PINELAND MOBILE HOMES, INC., et al. v. Eddie SKIFFER.
    No. 50929.
    Supreme Court of Mississippi.
    May 23, 1979.
    Rehearing Denied July 25, 1979.
    Butler, Snow, O’Mara, Stevens & Canna-da, Dan McCullen, Jackson, for appellants.
    Cupit & Maxey, John L. Maxey, II, Jackson, for appellee.
   Appeal from Circuit Court, Simpson County; George B. Grubbs, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

REVERSED AND REMANDED TO THE WORKMEN’S COMPENSATION COMMISSION.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ.