text:
    Emma Williams FREEMAN, Ind., et al., Plaintiffs-Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants-Appellees.
    No. 8768.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1982.
    Preston Aucoin and Gilbert Aucoin, Fusilier & Chapman, J. Wendel Fusilier, Ville Platte, for plaintiffs-appellants.
    Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Edward Taulbee, IV, Lafayette, Guglielmo & Lopez, Peter Caviness, Opelousas, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

The issue in this and companion cases is whether plaintiff’s petitions set forth “intentional torts” committed by Martin E. Guillory which are not subject to the exclusive remedy provision of the Louisiana Workmen’s Compensation Law, particularly LSA-R.S. 23:1032. Plaintiffs in various cases with which this case is consolidated brought personal injury, survival, and wrongful death actions resulting from an automobile accident. In one consolidated judgment the trial court granted motions for summary judgment as to defendants Martin E. Guillory and South Louisiana Contractors, Inc., and dismissed the actions as to them. Motions for summary judgment as against Insurance Company of North America were denied. The plaintiffs in each of the cases appealed the judgment as to the defendants dismissed. Separate opinions are being rendered on this date in the companion cases. The accident occurred while Martin E. Guillory (Guillory) was driving a truck belonging to South Louisiana Contractors, Inc. (SOLOCO). The latter was the employer of Guillory. The petitions named as defendants Guillory, SOLOCO, and Insurance Company of North America (INA). Motions for summary judgment were filed by Guillory, SOLOCO, and INA. The motions were granted as to Guillory and SOLOCO but denied as to INA. Appeals were taken by the various plaintiffs from the judgment dismissing the suits as to Guillory and SOLOCO. We affirm the judgment in this case brought by Emma Williams Freeman individually and on behalf of her minor children.

Emma Williams Freeman alleges that her children were born of her marriage with Jeff Freeman and that Jeff Freeman was killed as a result of the accident mentioned above on May 28, 1979. Freeman was riding in the truck driven by Guillory. The passengers included Gerard C. Lavigne and Jimmy Roy Bushnell who were injured and who have brought separate suits mentioned in footnote 1. After the appeal was lodged, SOLOCO was voluntarily dismissed on motion of appellant, Emma Williams Freeman, and an order to that effect was granted by the court on December 7, 1981. The petition alleges that INA issued a policy of public liability insurance on the truck owned by SOLOCO and driven by Guillory. As a result of the denial of the motion as against INA and the dismissal as against SOLOCO, this appeal involves Guillory only.

The various petitions in the cases consolidated in these appeals set forth allegations that the accident occurred as a result of enumerated acts on the part of Guillory which plaintiffs also allege were intentional acts. These appeals pose the question of whether plaintiffs may present Guillory’s negligence as “intentional acts” in their petitions by the simple expedient of couching allegations so as to state that Guillory (1) intended to cause injury or death through various negligent acts and (2) desired the accident to result in injury or death.

By framing their petitions in such a manner plaintiffs seek to avoid the prohibition contained in the Louisiana Workmen’s Compensation Law prohibiting suits against co-employees. LSA-R.S. 23:1032. As an example in this particular case, the third supplemental and amending petition of Emma Williams Freeman contains, among others, the following allegations:

“3.
“Alternatively, reference is made to plaintiff Emma Williams Freeman, et als’ original petition, particularly paragraph six, and to their second amending and supplemental petition, particularly paragraph one and to Gerard C. Lavigne’s original petition, particularly paragraph six; it is seen that there the negligence and/or intentional acts of defendant Martin E. Guillory and South Louisiana Contractors, Inc. (respondeat superior) are set forth as follows:
a) Failing to maintain a proper lookout;
b) Failing to maintain proper control of the vehicle in which Jeff Freeman and Gerard C. Lavigne were riding;
c) Being inattentive or distracted;
d) Crossing center line into opposing lane;
e) Failing to negotiate the curve;
f) Driving at an excessive rate of speed at the time of the accident;
g) Failing to slow down or stop in time to avoid the accident;
h) Failing to do what he should have done;
i) Failing to see what he should have seen.
“4.
“In connection with the above negligent acts and omissions and/or intentional acts of the defendants (especially the intentional acts) particularly Martin E. Guillory’s, plaintiffs Emma Williams Freeman, et ais and Gerard C. Lavigne, specifically amplify their contention that besides Martin E. Guillory’s acts and omissions being negligent, they were also intentional, and allege that:
a) Defendant Martin E. Guillory intended to fail to maintain a proper lookout, and desired the accident to result because of his failure to maintain a proper lookout, and either desired or was substantially certain that the occupants of the vehicle, including the late Jeff Freeman and Gerard C. Lavigne, would be killed and/or injured;
b) Defendant Martin E. Guillory intended to fail to maintain proper control of the vehicle in which Jeff Freeman and Gerard C. Lavigne were riding, and desired the accident to result because of his failure to maintain proper control of the vehicle in which Jeff Freeman and Gerard C. Lavigne were riding, and either desired or was substantially certain that the occupants of the vehicle, including the late Jeff Freeman and Gerard C. Lavigne, would be killed and/or injured;”

Martin E. Guillory filed his motion for summary judgment on March 30, 1981. Tr. 293. Affidavits attached to an exception of no cause or right of action and alternative motion for summary judgment filed July 23, 1979 (Tr. 28) establish that:

1. On May 28, 1979, at the time of the accident involved in this case Jeff Freeman was employed by SOLOCO.

2. At the time of the accident Jeff Freeman was riding in the doghouse of a 1977 GMC truck owned by SOLOCO and being driven by Martin E. Guillory.

3. The truck was being driven along Louisiana Highway 389 when the vehicle failed to negotiate a turn and Jeff Freeman was fatally injured.

4. Jeff Freeman and Guillory had worked earlier in the day at Bancroft, Louisiana, and were on their way from the job site to SOLOCO’s Eunice yard in the company vehicle when the accident took place.

An affidavit on file at Tr. 54 establishes that at the time of the accident both Freeman and Guillory were being paid as evidenced by SOLOCO time sheets attached. The factual matters set forth in affidavits referred to above were not opposed by any counter affidavits or other items setting forth contrary facts. Therefore, we conclude that there is no genuine issue as to the material facts establishing that Freeman and Guillory were co-employees of SOLOCO at the time of the accident in question and were in the course and scope of their employment. Under the circumstances we conclude that the suit of Emma Williams Freeman and her children against Guillory based on Freeman’s death caused by the accident is barred by the workmen’s compensation exclusive remedy contained in LSA-R.S. 23:1032.

Plaintiffs urge in this appeal that they have met the test of Bazley v. Tortorich, 397 So.2d 475 (La.1981) in their allegations setting forth that the acts of Guillory which caused the SOLOCO truck to overturn were “intentional torts” exempted from the workmen’s compensation exclusive remedy provision. Plaintiffs urge that they are free to pursue their tort remedy against Guillory for damages. We hold otherwise. The issue has been thoroughly deliberated. See the comments of Professor Alston Johnson concerning the “intentional torts” exclusion in 42 La.Law Rev. 630 et seq. The issue has recently been well considered by this court in an opinion by Judge Culpepper in Shores v. Fidelity & Casualty Co. of N. Y., et al., 413 So.2d 315 (La.App. 3rd Cir. 1982). The opinion reiterates the proposition which has been established in other cases that courts may disregard allegations which are not facts but are mere conclusions of the pleader.

It is clear beyond any question that the allegations of the petition of Emma Williams Freeman to the effect that the acts of Martin E. Guillory forming the basis of this claim in tort are mere conclusions of the pleader. Therefore, for the reasons given above and the discussion contained in the Shores case and others we affirm the action of the trial court dismissing the suit of Emma Williams Freeman and her children on motion for summary judgment as against Martin E. Guillory. Appellants are assessed with the costs of this appeal.

AFFIRMED.

      . The other cases consolidated with this case in which separate opinions are being rendered are Gerard C. Lavigne v. Insurance Co. of North America, et al., 413 So.2d 695 (La.App. 3rd Cir. 1982), number 8769 on our docket; Joann Doucet Freeman v. Insurance Co. of North America, et al., 413 So.2d 689 (La.App. 3rd Cir. 1982), number 8770 on our docket; and Jimmy Roy Bushnell v. Insurance Co. of North America, et al., 413 So.2d 691 (La.App. 3rd Cir. 1982), number 8771 on our docket.

      . The names of the minor children of Emma Williams Freeman and the decedent, Jeff Freeman, as listed in the petition are Barbara Freeman, Rachael Freeman, Tessie Freeman, Floyd Freeman, and Effrey Freeman, and of Lilly Mae . Freeman, Diana Freeman, Janella Freeman Thomas, Sonny Freeman and Davis Freeman.

      . The trial court overruled the exceptions and rejected the motion for summary judgment on December 17, 1979, in reasons for judgment signed December 17, 1979, (Tr. 34), but the court appears to have based its ruling in consideration of automobile insurance coverage.

      . For this proposition Shores v. Fidelity & Casualty Co. of N. Y., et al., supra, cites the following cases: Nugent v. Executive Officers of Harter Oil Company, 396 So.2d 537 (La.App. 3rd Cir. 1981); Lott v. Haley, 363 So.2d 1270 (La. App. 4th Cir. 1978), affirmed in pertinent part 370 So.2d 521 (La.1979); McDonald v. Boh Bros. Construction Co., Inc., 397 So.2d 846 (La. App. 4th Cir. 1981). See also Reagan v. Olinkraft, Inc., 408 So.2d 937 (La.App. 2nd Cir. 1982) and Gonzales v. Kilgore, 396 So.2d 411 (La.App. 4th Cir. 1981), the latter case being one dismissed on a motion for summary judgment, and cases cited by Professor Alston Johnson in footnote 43 in 42 La.L.Rev. 630 on page 633.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Gerard C. LAVIGNE, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants-Appellees.
    No. 8769.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1982.
    Preston Aucoin and Gilbert Aucoin, Fusilier & Chapman, J. Wendel Fusilier, Ville Platte, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & . Roy, M. Candice Hattan, Edward Taulbee, IV, Lafayette, Guglielmo & Lopez, Peter Caviness,. Opelousas, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

For the reasons stated in the companion cases of Emma Williams Freeman, Ind., et al v. Insurance Company of North America, et al, 413 So.2d 692 (La.App. 3rd Cir. 1982), in which a separate decision is being rendered by us this day, the judgment of the district court in the present case dismissing plaintiff’s suit as against Martin E. Guillory is affirmed.

As noted in the opinion relative to the case of Emma Williams Freeman, plaintiff-appellant Gerard C. Lavigne was a passenger in the truck driven by Martin E. Guillo-ry owned by SOLOCO when it was involved in the accident on May 28, 1978. Lavigne alleges in a petition in tort filed by him against Guillory and SOLOCO that he sustained injuries. Lavigne joined with Emma Williams Freeman in the latter’s third supplemental and amending petition quoted in part in the opinion in that case. Hence, the allegations as to “intentional torts” of Guil-lory are the same as those discussed in the opinion in the Emma Williams Freeman case. This joint supplemental and amending petition is found in the record in the Emma Williams Freeman case at transcript page 223. The voluntary dismissal of SO-LOCO mentioned in the opinion in the Emma Williams Freeman case was a joint motion and the order dismissed both suits. Therefore, the two cases are in the same procedural posture.

Appellant Gerard C. Lavigne is assessed with the costs of this appeal.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    Morris B. PHILLIPS, et al. v. EQUITABLE LIFE ASSURANCE COMPANY OF THE UNITED STATES, et al.
    No. 12439.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1982.
    Rehearing Denied May 19, 1982.

      Milton E. Brener, Garon, Brener & McNeely, New Orleans, for plaintiffs-appellants.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellee.
    Wilton E. Bland, III, Hebert & Abbott, New Orleans, for third party defendants-appellants.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiffs-appellants have appealed from a decision of the trial court finding Equitable Life Assurance Society of the United States [“Equitable”] not negligent in the death of Mrs. Shirley F. Phillips. Defendant-appellant Equitable has appealed the trial judge’s decision requiring it to indemnify Winn-Dixie of Louisiana, Inc. [“Winn-Dixie”] for the amount Winn-Dixie paid in settlement to the plaintiffs.

FACTS

On April 2, 1979, Mrs. Shirley F. Phillips was shot during an armed robbery attempt in the parking lot of the Winn-Dixie Food Store in the Carrollton Shopping Center in New Orleans. She died during surgery several hours later at Touro Infirmary.

Mrs. Phillips’s assailant was Yule Smith. The day before the shooting he had robbed another woman in a parking lot. One-half hour after shooting Mrs. Phillips, he robbed a woman at another grocery store at gunpoint and stole her ear. The next day he committed an armed robbery on the employees of a bakery store and exchanged gunfire with the police officers pursuing him after the robbery. Smith was wounded and apprehended. He was tried for the first degree murder of Mrs. Phillips and was found guilty and sentenced to life imprisonment.

Morris B. Phillips, husband of Mrs. Phillips, and Sydnee and Morris H. Phillips, children of Mrs. Phillips, filed suit against Equitable, the owner of the shopping center, and Winn-Dixie alleging that their negligence in failing to provide adequate security in the parking lot was the proximate cause of Mrs. Phillips’s death.

Before trial, Winn-Dixie and the plaintiffs entered into a settlement agreement. Trial was held on October 12, 1980, and a twelve-person jury, in response to interrogatories, found neither Equitable nor Winn-Dixie negligent.

I. NEGLIGENCE

The plaintiffs have argued that Equitable, as owner of the shopping center, owed a duty to protect its patrons from crimes such as the one involved in the instant case. The plaintiffs assert that the verdict reached by the jury is manifestly erroneous and should be overturned.

At trial, extensive testimony was adduced as to the number and types of crimes occurring within the shopping center or in the area immediately adjacent to it. The plaintiffs argued that the crimes occurring in the area were of sufficient number to place Equitable on notice that a similar crime might occur in the area and to take precautions against it. The plaintiffs specifically have argued that Equitable breached its duty to Mrs. Phillips by failing to provide: (1) adequate warnings of the possible danger, i.e. criminal activity, in the area; (2) sufficient lighting; and (3) adequate security.

In Louisiana, there are few guidelines to be found in decisions involving similar facts. Nevertheless, the trial court instructed the jury that the defendant should be held to the following standard:

“An owner or occupier of land who used his property as the location for a business establishment which the public is invited to patronize owes his customers and prospective customers the duty of exercising ordinary care to maintain the premises in a reasonably safe condition. This responsibility for seeing to the safety of the premises includes an obligation to protect patrons from criminal attacks by third parties if such criminal acts under the circumstances prevailing are reasonably foreseeable.”

Tr. at 554. The jury, after considering this charge and the evidence adduced at trial, found that the defendant was not negligent.

It is well established that a store owner is under a duty to take reasonable care for the safety of its patrons, but is not the insurer of the patrons’ safety. Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4th Cir. 1979). The proprietor of a public place has a duty to protect its patrons from injuries caused by third parties when it is within his power to do so. E.g. Cooper v. Ruffino, 172 So.2d 717 (La.App. 4th Cir. 1965). This duty is not inconsistent with the standards set forth by other jurisdictions. See, e.g. Winn-Dixie v. Johnstoneaux, 395 So.2d 599 (Fla.Dist.Ct.App.3d Cir. 1981).

In Roberts v. Tiny Tim Thrifty Check, supra, the parents of a teenager, a patron who was killed during an armed robbery at a convenience store, sued the storeowner claiming that the storeowner’s negligence resulted in their son’s death. The court considered the following facts in finding that the defendant had not breached its duty to the decedent: (1) the defendant had hired an armed guard who travelled between the particular store in which the killing occurred and another store ten blocks away; (2) the defendant had requested the police to regularly patrol his stores, which was done; and (3) there was no evidence that there was a high possibility that the store would be robbed or that the store frequently had been robbed in the past.

In the instant case, Equitable undertook to provide security in the parking lot (Tr. at 173-92) and had signs posted in the parking lot and stores to that effect.

A. Security

Harold M. Wheelahan, Jr. was manager of the Carrollton Shopping Center for Equitable at the time of the murder. He was in charge of security for the shopping center. He testified at trial that he first hired a security guard in 1977 after consulting with most of the merchants in the area. He hired Dale Bonura, a member of the New Orleans Police Department who was responsible for hiring off-duty police officers as the security guards. The guard initially patrolled only from 5:00 p. m. until 9:00 p. m., Monday through Saturday, but the program later expanded from 10:00 a. m. until 9:00 p. m. Wheelahan testified that the change occurred after a consultation with Bonura.

When questioned about specific crimes that had been committed in the shopping center area, Wheelahan was unaware that they had been committed and admitted that there was no system for reporting all of the crimes in the shopping center.

Wheelahan testified that he had thought of hiring more than one guard but after consulting with other merchants, determined that one was sufficient. Wheelahan testified that if business were down he would consider expanding the security measures.

In the instant case, thirty-two police reports on crimes that had been committed in the immediate area were introduced into evidence. Of these crimes, twelve were burglaries of stores in the shopping center, nine were armed robberies; five were simple robberies; two were batteries; and an attempted murder, two simple batteries and a theft that arose from one incident at the Winn-Dixie. These crimes had been committed within the twelve months preceding the death of Mrs. Phillips. The shopping center in which these crimes took place is approximately seventeen and one-half acres located on both sides of a four lane street and drainage canal. There were thirty-seven stores in the shopping center in April, 1979.

At the time that the incident occurred, an off-duty member of the New Orleans Police Department was on duty patrolling the parking lot of the shopping center. Usually, this security guard patrolled the area in a small three-wheeled vehicle similar to a golf cart in which the uniformed police officer was clearly visible. On the night that the killing took place, the vehicle regularly used for patrol was being repaired and the guard was using his own, unmarked car.

The security guard was hired to patrol the parking lot area, but was inside of the Western Auto Store, adjacent to the Winn-Dixie, at the time of the shooting. He was with the manager of the store, who was counting the money taken in that day. Testimony at trial revealed that although the purpose of the security guard was to patrol the parking area, Wheelahan had requested the guards to check in with the stores periodically so that the storeowners would know that they were “getting their money’s worth,” because the storeowners paid a percentage of the security costs.

The plaintiffs argued that the system of security utilized by Equitable was completely ineffective on the night in question in the shopping center. The plaintiffs point out that on the night in question, the policeman on duty was: (1) patrolling in an unmarked vehicle, and (2) inside of another store, at Wheelahan’s direction, when the incident occurred.

The defense had two expert witnesses testify that the security as it existed on April 2,1979 was adequate. These witnesses pointed out that there were five off-duty New Orleans Police Department officers in various stores in the shopping center, including the Winn-Dixie, and that there was an additional officer on patrol in the parking facilities. These officers had a very good communication system with one another. There were also five private security officers in the shopping center. These private security officers could communicate with each other by use of the telephone and with the patrolling officer by using a “beeper-phone”. In addition, the New Orleans Police Department regularly patrolled the area. One of the experts stated that the number of crimes reported for the Carroll-ton Shopping Center was 27% lower than the average for similar areas. Both expert witnesses called by the defense stated that three or four patrolmen could not have prevented the crime, especially in light of the subsequent actions of Yule Smith.

B. Lighting

The plaintiffs also argue that the lighting in the area in which Mrs. Phillips was killed was not working at the time of the crime and that this failure to provide adequate lighting contributed to Smith’s ability to perpetrate the crime.

It was uneontested at trial that the lighting in the section of the parking lot where Mrs. Phillips was killed was not working. The parties are in disagreement, however, as to the actual effect of the absence of lighting.

The plaintiffs questioned Wheelahan about the lighting. He stated that a photocell in the light was not working and had not been adjusted at the time. The plaintiffs introduced into evidence a marketing survey done by Gordon L. Joseph & Associates in Spring of 1978. One of the firm’s recommendations on improving the center was the installation of more lighting.

Martin Venezia, a member of the New Orleans Police Department investigating the murder, testified that on the night in question the lights in the area of the parking lot where Mrs. Phillips was killed were not on and that the only light available was the light from inside of the Winn-Dixie and Western Auto stores. Venezia stated that it was difficult to describe the lighting, but felt that if he knew someone in the parking lot that he would probably recognize them, although he would have difficulty later identifying someone unknown to him.

Craig Peterson was an off-duty member of the New Orleans Police Department working as a security guard inside of the Winn-Dixie at the time of the incident. He testified that the lighting in the parking area was good and that the only reason he had not seen the crime was because of his station inside of the store, not the lighting.

Robert Boylan, a commercial photographer, took photographs of the Winn-Dixie parking lot at the request of the defense. Boylan appeared as a witness at trial, and the photographs were admitted into evidence. Boylan testified that the photographs were taken in the end of April or early May at 8:00 p. m. (rather than 7:00 p. m., when the crime occurred, because Daylight Savings Time had not been in effect at the time of the incident.) Boylan took light meter readings with the parking lot lights on and off and testified that there was very little difference in the results of the readings. He stated that when the overhead lights were not visible in the photographs, It was almost impossible to tell which ones had been taken with the lights on and which ones had been taken with the lights off.

At trial, the defense also presented the testimony of Ben Z. Siegel, an expert in the field of electrical engineering. At the request of the defense, Siegel had performed a series of tests where the killing had occurred, measuring the light intensity at that location. The witness’s conclusion was that there was adequate lighting available in the area in question at the time of the incident.

C. Signs

The plaintiffs have argued that Equitable was in error in not placing patrons on notice that the shopping area was potentially dangerous because of the crime that occurred in the area.

At trial, Wheelahan explained that the stores were each supplied with signs stating that the parking area was patrolled by New Orleans Police Department. Wheelahan testified that it was up to the individual merchants whether to display them, but that he had seen them on display in various stores in the shopping center and throughout the parking lot. He stated that the purpose of the signs was to let the general public know that there was a policeman patrolling the parking area.

After reviewing the evidence adduced at trial we find that the decision of the jury was not manifestly erroneous. Although had we been the triers of fact we might have reached a different conclusion, in light of the evidence we are unable to hold that the jury was so in error that its decision warrants reversal. There is evidence in the record to support a finding that the security in the parking lot was adequate in consideration of the situation as a whole and further that the crime might have occurred notwithstanding a vast increase in the security force.

Due to the very nature of this case the decision made by the jury was difficult. In view of the record, however, we are bound to affirm the decision of the jury. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

II. INDEMNITY

Both Equitable and Winn-Dixie filed Third-Party demands against one another seeking indemnification and/or contribution should they be cast in 'lability.

During the course of the trial, Winn-Dix-ie settled with the plaintiffs for $15,000.00 and did not participate in the trial. The parties agreed that the question of negligence on the part of Winn-Dixie should be included on the jury interrogatories.

Winn-Dixie and Equitable stipulated that the issues raised in the Third-Party complaints were to be tried separately from the main complaint and that they were to be decided by the trial judge. The judge ruled in favor of Winn-Dixie in the amount of $15,000.00 together with interest from the date of payment of that amount to the plaintiffs, plus attorneys’ fees and costs of the proceedings.

Winn-Dixie had claimed that it was entitled to indemnification based upon provisions contained in the lease agreement between the parties. The lease between Equitable and Winn-Dixie provides in pertinent part:

“. .. Landlord shall indemnify and save Tenant harmless from any claims or loss by reason of an accident or damage to any person or property happening on or about the streets, driveways, sidewalks and parking area of Squares 618 and 619...” (Lease at 13).

Pursuant to this provision of the lease, Winn-Dixie tendered the defense of the action to Equitable, who refused to accept the defense on the basis that it was not required by the lease to indemnify Winn-Dix-ie from its own negligence.

Absent a specific contractual obligation, an indemnitor is not required to indemnify its indemnitee against its own negligence. See Elephant, Inc. v. Hartford Acc. & Indemn. Co., 216 So.2d 837 (La.App. 1st Cir. 1968) (contractual provision providing for indemnification for “any liability” does not require indemnification for indem-nitee’s own negligence.)

Because, however, the jury found Winn-Dixie not to be negligent, and we find no manifest error in that decision, the trial court was not in error in requiring Equitable to indemnify Winn-Dixie for the money paid in settlement.

For the foregoing reasons the decision of the trial court is affirmed.

AFFIRMED.

      . This was done so that any verdict against Equitable could be reduced by one-half should the jury find defendants jointly liable.


author: KLEES, Judge. WARD, Judge,

text:
    Emile SMITH v. BORDEN, INC., and XYZ Insurance Company.
    No. 12959.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 1982.
    Rehearing Denied May 19, 1982.

      George J. Richaud, Young, McMahon & Levert, New Orleans, for defendants-appellants.
    Benjamin J. Birdsall, Jr., Birdsall & Rodriguez, Walter A. Robelot, III, New Orleans, for plaintiffs-appellees.
    Before SCHOTT, KLEES and WARD, JJ.
   KLEES, Judge.

This is an appeal from a judgment awarding the plaintiff worker’s compensation benefits, penalties and attorney’s fees.

Plaintiff was employed as a mechanic/operator at the Borden, Inc., Metairie facility. As part of his duties the plaintiff was required to check the various engines in the engine room for ammonia leaks.

The plaintiff alleged that he had been constantly exposed to ammonia three days a week for a period of 14 or 15 months and that on November 20, 1979 he was exposed to a large dosage of the chemical and developed a “singer’s nodule” at the front of his right vocal chord causing him pain, irritation and hoarseness.

The plaintiff filed suit against Borden, Inc., and the Insurance Company of North America. The latter was dismissed on a motion for summary judgment and after a trial on the merits the trial judge found that the plaintiff “is found to be temporarily partially disabled in that he has lost the use of a physical function” and awarded him compensation benefits, penalties and attorney’s fees.

The defendant-appellant argues that the nodule on the plaintiff’s vocal chord is not work related and therefore not compensa-ble. It also avers that the plaintiff is not disabled and that the trial court erred in awarding penalties and attorney’s fees. The plaintiff answered the appeal and seeks an increase in the award of attorney’s fees for defending his rights on appeal.

The appellant argues that the nodule is the result of the plaintiffs smoking habits and his musical background as the “backup” singer in a band. However, at the trial the plaintiff testified that he only smoked three or four cigarettes a day and any singing on his part was minimal and relegated to a sort of humming. He also testified that his voice was fine until he was exposed to the large ammonia leak on November 20, 1979 and that after this episode his voice became hoarse. This fact was corroborated by Ora Thomas, his female friend and John Talbert, Jr., a longtime friend.

In addition to these facts Dr. A. Foster Hebert testified that a chemical such as ammonia was an irritant which could indirectly cause such a nodule on the vocal chord. Furthermore, the chief engineer for Borden, William A. Fendt, testified that some ammonia was present in the engine room ninety percent (90%) of the time; thereby lending support to the plaintiff’s story.

Here the causal connection between the exposure to various amounts of ammonia for fourteen or fifteen months, as well as the significantly high exposure on November 20, 1979 and plaintiffs’ condition is supported by the various medical evidence.

Where there is proof of an accident and the following disability without an intervening cause it is assumed that the accident caused the disability. Clofer v. Pratt Farnsworth, Inc., 407 So.2d 1295 (La.App. 4th Cir. 1982), Adams v. New Orleans Public Service, Inc. (La.1981) No. 81-C-0784.

In this case the trial judge concluded that the plaintiff was truthful and he accepted his version as the most logical version of how the nodule developed. The facts above provide ample support for the trial court’s conclusion. Furthermore, this Court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though this court might feel that its own evaluations and inferences are as reasonable. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978).

We now consider whether the trial court erred in finding the plaintiff to be disabled.

Appellee cites to the court Cardona v. Lykes Bros. Steamship Co., 311 So.2d 594 (La.App. 4th Cir. 1975). There, plaintiff developed a small pea-sized nodule on the inside of his upper left lip. The employer conceded the accident but denied that the condition was a permanent impairment of a physical function- within the meaning of R.S. 23:1221(4)(p). This Court affirmed the trial court and its award of disability pursuant to the section. The Court concluded that the speech dysfunction was serious, and stated that the Trial Judge has great discretion in this area due to the fact that speech was involved.

We are in agreement with the conclusion of the trial court that appellee has lost the use of a physical function within the meaning of the Louisiana Workmen’s Compensation Act.

Applying this holding to the present case we find that the trial judge correctly concluded that the plaintiff was entitled to disability payments within the perview of R.S. 23:1221(4)(p). But, under the provisions of that section appellee is only entitled to compensation payments for a maximum of 100 weeks.

The next issue is whether the trial judge erred in awarding plaintiff penalties and attorney’s fees. La.R.S. 23:1201 provides that where an employer fails to pay workmen’s compensation benefits within sixty days after demand, the employer shall be liable for penalties and attorney’s fees where such failure to pay is found to be “arbitrary, capricious, or without probable cause... ”. Jurisprudence has construed this statute to mean that where there is a bona fide factual dispute as to whether the employee’s disability was work-related, the employer has “probable cause” to refuse to pay workmen s compensation benefits. Wright v. Red Ball Motor Freight, Inc., 315 So.2d 344 (La.App. 1st Cir. 1975). Also applicable here is the rule that the statute, being penal in nature, must be strictly construed, Gros v. Le Blanc, 304 So.2d 49 (La.App. 1st Cir. 1974); and that the issue of whether the refusal to pay compensation benefits was arbitrary, capricious or without probable cause is a factual determination which must be determined’ upon the merits of each case. Moreau v. Houston General Insurance Company, 386 So.2d 151 (La.App. 3rd Cir. 1980).

After being exposed to the large ammonia leak the plaintiff did not report the incident to his employer. The first notice of the incident and the plaintiff’s claim, of disability was by receipt of his lawsuit. In addition, the medical evidence in the possession of the defendant provides a reasonable basis for the belief that the disability of the plaintiff was not work related.

In Dr. T. Sterling Dunn’s report dated December 20, 1979 he indicated that the plaintiff said his hoarseness dated back one year and in his diagnosis he stated that he believed the plaintiff was suffering from a common cold. Dr. Frank Normann, who later examined the plaintiff, indicated in his report that he found it difficult to believe that a causative relation existed between the plaintiff’s job and his condition. He cited the fact that the lesion appeared to be in existence prior to November of 1979 when the large ammonia leak occurred and that the plaintiff’s musical background, smoking habits and speaking characteristics were more likely the cause of the nodule on his vocal chords.

Applying the rules above to the facts we find that there was “probable cause” to doubt that the plaintiff’s disability was work related. Accordingly, the action of the defendant in refusing to provide worker’s compensation benefits was not arbitrary, capricious or without probable cause, and the plaintiff is not entitled to penalties and attorney’s fees.

Finally, the appellee, in answer to the appeal, seeks an increase in attorney’s fees for defending his rights on appeal but since we have concluded that the plaintiff was not entitled to penalties and attorney’s fees this issue has been rendered moot.

For the reasons assigned above the decision of the trial court awarding the plaintiff worker’s compensation benefits in the full sum of $149.00 per week is affirmed but amended to not exceed 100 weeks. That part of the awarding appellee attorney’s fees and penalties is reversed. In all other respects the judgment is affirmed. Costs of the appeal are to be shared equally by the parties.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART.

WARD, J., concurring with assigned reasons.

WARD, Judge,

concurring.

I concur in the result, but not for the reasons stated by the majority. I disagree with conclusions reached by the majority as to what has been proved by the plaintiff, Emile Smith, during the course of this case. The issue is one of causation: did either inhalation of ammonia fumes over a fourteen-month period of employment or a massive dose of ammonia on the date of the accident cause the nodule on Smith’s vocal chords? If Smith proved this by a preponderance of the evidence, he is entitled to workers’ compensation benefits. To prove his case, Smith and two witnesses, his friends, testified there was a sudden onset of hoarseness after he received a massive dose of the fumes because of an ammonia leak at the Borden plant where he worked. Smith was examined at the Eye, Ear, Nose and Throat Hospital shortly after the accident; hoarseness was confirmed; swelling of the larynx was observed; however, a nodule did not exist. Four months later, an examination by the same medical doctors revealed swelling was resolved, but there was a nodule of the vocal chords. Smith offered expert testimony of a specialist, Dr. Hebert, who testified that inhalation of ammonia would not be expected to produce this nodule; that it was indirectly, but remotely possible. That evidence does not establish that there is a link between the swelling of the vocal chords and the lesion; rather, it negates it. On the other hand, the defense offered the testimony of Dr. Normann, a specialist, who testified that it was difficult to believe that a causative relationship exists. Considering both experts’ testimony, the evidence falls far short of proving causation by a preponderance of the evidence.

The majority makes a leap in the chain of causation, without evidence to support it, based on post hoc reasoning: the accident happened, swelling of the vocal chords occurred, therefore the lesion observed four months after the accident must be a result of the accident. Of course, this logic is fallacious; intervening factors such as smoking or singing may be the cause.

Although this is a claim for workers’ compensation, the rules of evidence nevertheless should require Smith to prove causation by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). However, “accident” has been defined as the immediate onset of illness, and causation appears to be presumed if there is disability, Adams v. New Orleans Public Service, Inc., 395 So.2d 470 (La.App. 4th Cir.), writ granted 399 So.2d 607 (La.1981), rev. - So.2d - (1981), No. SIC-0784, and there is no reason to distinguish those cases where disability is claimed from this case, where there is no disability but there is loss of a physical function. When interpreting that decision of the Supreme Court, this court in Clofer v. Farnsworth, 407 So.2d 1295 (La.App. 4th Cir. 1981), held that causation must be presumed, and placed upon defendants the burden of proving by a preponderance of the evidence that intervening factors were the cause of the injuries, relieving the plaintiff of the burden of proving each link of causation. Because defendants have failed to prove any intervening cause, and because the Adams case indicates causation must be presumed, we must affirm the award. I agree, however, that penalties and attorney’s fees should not be awarded.


author: ROY NOBLE LEE, Justice, for the Court:

text:
    William E. McLELLAN, III v. MISSISSIPPI STATE BAR ASSOCIATION.
    Conf. Misc. No. 61.
    Supreme Court of Mississippi.
    April 21, 1982.
    Watkins & Eager, Hassell H. Whitworth, John L. Low, IV, Jackson, for appellant.
    Jimmy Miller, Jackson, for appellee.
   ROY NOBLE LEE, Justice, for the Court:

The Committee on Complaints of the Mississippi State Bar filed a formal complaint against William E. McLellan, III, for violation of the Mississippi Code of Professional Responsibility. The matter was heard by a Complaint Tribunal on stipulated facts and disciplinary action was adjudged against him. McLellan has appealed to this Court as provided by law. •

The complaint stated the following charges against appellant:

V.
Respondent caused to be run in the yellow pages of the Jackson, Mississippi, telephone book an advertisement which set out, among other things, that consultations were available between certain hours on certain days of the week and that the first conference was free. A true and- correct copy of that advertisement is attached hereto and incorporated herein by reference as Exhibit 2. [See Appendix I],
VI.
Upon information and belief, which Complainant verily believes to be true, Complainant alleges the facts to be that Respondent’s running of the above mentioned advertisement attached as Exhibit 2 violated the Code of Professional Responsibility approved by the Supreme Court of Mississippi, called hereafter DR, to wit: DR 2-101[B] which prohibits advertising through magazines or displays in city telephone directories except as permitted by DR 2-102[A][7 & 8]; DR 2-102[A][8] which allows advertising in newspapers of the availability of routine legal services and fees; and DR 2-101[A] which prohibits the use or participation in any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients.

Appellant answered the complaint and admitted the fact of publishing the advertisement in the “Yellow Pages” of the Jackson telephone directory. He set up as affirmative defenses that, if he was found to have violated any of the sections of the Code of Professional Responsibility set forth in the formal complaint, such sections were violative of his constitutional rights.

The Complaint Tribunal found that appellant’s advertisement violated three (3) sections of the Code of Professional Responsibility. The pertinent parts of those sections are:

(1) DR 2-101[A]
A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; ...
(2) DR 2-101[B]
A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper (except as provided in DR 2-102[A][7] and [8]) or magazine, advertisements, radio or television announcements, display advertisements in city- or telephone directories or other means of commercial publicity, ...
(3) DR 2-102[A][8]
Publication of a notice in a newspaper having general circulation in the county where the advertising attorney maintains an office advertising the availability of routine legal services as defined herein and the fees to be charged therefor. The advertisement must include the following and only the following: Name, including name of law firm, office address and telephone number; one or more routine legal services, as defined herein, which are offered and the fixed fee to be charged therefor. Said notice may also include the names of lawyers in the firm. (3) DR 2-102[A]
A lawyer or law firm shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form.
******
A listing of the office of a lawyer or law firm in the alphabetical and classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer resides or maintains offices or in which a significant part of his clientele resides and in the city directory of the city in which his or the firm’s office is located; but the listing may give only the name of the lawyer or law firm, the fact he is a lawyer, addresses, and telephone numbers. The listing shall not be in distinctive form or type. . . .

The sections from the Code of Professional Responsibility set out above are the only restrictions on an attorney’s use of the classified section of the telephone directory for advertisement purposes. They clearly prohibit all “Yellow Page” advertisements except those which contain no information beyond the attorney’s name, firm’s name, address and telephone number. The findings of fact and ruling of the Tribunal amounted to total suppression of any other form of telephone directory advertising.

Appellant contends that DR 2-102[A] is unconstitutional in its restriction and limitation of an advertisement to a statement of an attorney’s name, firm’s name, address and telephone number.

In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), which involved advertising in a newspaper by a member of the Arizona State Bar, the Court, in holding that the newspaper advertisement involved [See Appendix II] could not be prohibited by the Bar Association, said:

Advertising that is false, deceptive, or misleading of course is subject to restraint. . ..
As with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place, and manner of advertising. . . . Advertising concerning transactions that are themselves illegal obviously may be suppressed. And the special problems of advertising on the electronic broadcast media will warrant special consideration. [433 U.S. at 383-84, 97 S.Ct. at 2709, 53 L.Ed.2d at 835-36],

The Bates decision involved a newspaper advertisement, but its scope was narrow. The only advertising media singled out for special treatment or different consideration was “the electronic broadcast media.” However, the Court shed light upon any distinction which it considered to exist between newspapers and telephone directories with the following footnote in the opinion:

Moreover, we see nothing that is misleading in the advertisement of the cost of an initial half-hour consultation. The American Bar Association’s Code of Professional Responsibility, DR 2-102(A)(6) (1976), permits the disclosure of such fee information in the classified section of a telephone directory. See n. 18, supra. If the information is not misleading when published in a telephone directory, it is difficult to see why it becomes misleading when published in a newspaper. [Fn. 26, 433 U.S. at 372, 97 S.Ct. at 2703, 53 L.Ed.2d at 828-29],

Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706 (3d Cir. 1978) discussed the possibility of the existence of any distinction between various classes of printed media and extended full protection of the First Amendment to telephone directory advertisement.

The case of Kentucky Bar Assn. v. Stuart, 568 S.W.2d 933 (Ky.1978), involved a form of “print media” where the accused attorney prepared a direct mail campaign relating to legal services to be performed regarding real estate transactions. He was found .in violation of the Kentucky disciplinary rules and on appeal to the Supreme Court of Kentucky the judgment was reversed. The Court made the following observation:

It is now beyond dispute that advertising by attorneys is constitutionally protected unless the [Bar] Association can justify prohibition of such speech by an interest which will outweigh individual and societal interests in the commercial speech.. . . Because the letters are a form of advertisement and not “in-person solicitation,” they are protected, unless the Association can demonstrate sufficient justification for prohibition. [568 S.W.2d at 934],

In its finding the Complaint Tribunal, sub judice, specifically found:

It is not contended or even suggested that the respondent [appellant McLellan] is guilty of any misconduct including misrepresentations, overreaching or asserting any undue influence upon clients or prospective clients.

It is clear that the advertisement under consideration in Bates v. State Bar of Arizona, supra, was larger in size, and more aggressive than that of appellant here. Since the Bates decision, the United States Supreme Court decided the case of In Re R. M. J., - U.S. -, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982), on appeal from the Missouri Supreme Court. The advertisement involved there set out the name and address of the attorney, together with various branches of law he practiced, and stated he had been admitted to practice before the U. S. Supreme Court and was licensed in Missouri and Illinois. [See Appendix III].

After discussing the Bates v. State Bar of Arizona decisions, supra, and its implications, the Court said:

We now turn to apply these generalizations to the circumstances of this case.
* * * * * *
Appellant was reprimanded for deviating from the precise listing of areas of practice included in the Advisory Committee addendum to Rule 4. The Advisory Committee does not argue that appellant’s listing was misleading. The use of the words “real estate” instead of “property” could scarcely mislead the public. Similarly, the listing of- areas such as “contracts” or “securities,” that are not found on the Advisory Committee’s list in any form, presents no apparent danger of deception. Indeed, as Chief Justice Bard-gett explained in dissent, in certain respects appellant’s listing is more informative than that provided in the addendum. Because the listing published by the appellant has not been shown to be misleading, and because the Advisory Committee suggests no substantial interest promoted by the restriction, we conclude that this portion of Rule 4 is an invalid restriction upon speech as applied to appellant’s advertisements.
Nor has the Advisory Committee identified any substantial interest in a rule that prohibits a lawyer from identifying the jurisdictions in which he is licensed to practice. Such information is not misleading on its face. Appellant was licensed to practice in both Illinois and Missouri. This is factual and highly relevant information particularly in light of the geography of the region in which appellant practiced.
Somewhat more troubling is appellant’s listing, in large boldface type, that he was a member of the bar of the Supreme Court of the United States. See Appendix A. The emphasis of this relatively uninformative fact is at least bad taste. Indeed, such a statement could be misleading to the general public unfamiliar with the requirements of admission to the bar of this Court. Yet there is no finding to this effect by the Missouri Supreme Court. There is nothing in the record to indicate that the inclusion of this information was misleading. Nor does the Rule specifically identify this information as potentially misleading or, for example, place a limitation on type size or require a statement explaining the nature of the Supreme Court bar.
* * * * * *
We emphasize, as we have throughout the opinion, that the States retain the authority to regulate advertising that is inherently misleading or that has proven to be misleading in practice. There may be other substantial state interests as well that will support carefully drawn restrictions. But although the states may regulate commercial speech, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests. The absolute prohibition on appellant’s speech, in the absence of a finding that his speech was misleading, does not meet these requirements. [-U.S. at-, 102 S.Ct. at 938-39].

While we recognize, as was held in Bates and In Re R. M. J., supra, that the Bar may regulate advertising and impose discipline where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has proved to be deceptive in the past, we are of the opinion that the complete elimination and blanket prohibition of advertising in the “Yellow Pages” of a telephone directory are constitutionally impermissible, and the sections of the Code of Professional Responsibility so prohibiting same here are held to be so.

The appellee contends that Section DR 2-101 was violated because appellant’s ad was “self-laudatory.” We think the advertisements in Bates and In Re R. M. J. are far more susceptible of being self-laudatory than the advertisement published by appellant here. Even though the appellant may have attempted to draw attention to himself through the advertisement (which is the purpose of all advertisements), a general condemnation of it and all advertisements may not be had under Bates. Each case has to be examined, and must stand, on its own facts. We do not consider the advertisement to be self-laudatory of appellant, and we hold there is no merit in that finding.

For the reasons stated, the order of the Complaint Tribunal is reversed, judgment is rendered here in favor of the appellant, and the complaint filed against him is dismissed.

This case was considered by a conference of the justices en banc.

REVERSED AND RENDERED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING and DAN M. LEE, JJ., concur.

HAWKINS and DARDEN, JJ., took no part.

APPENDIX I

APPENDIX IT

APPENDIX III

      . Public reprimand in accordance with Mississippi Code Annotated Section 73-3-319 (Supp. 1981).

      . We recognize that advertising of any kind was/is repulsive to attorneys of the so-called “Old School.”


author: DAN M. LEE, Justice,

text:
    FISHBOATS, INC. v. Henry Thomas WELZBACHER.
    No. 53051.
    Supreme Court of Mississippi.
    April 21, 1982.

      Bryan, Nelson, Allen, Schroeder & Black-strom, Vincent J. Castigliola, Jr., John A. Banahan, Pascagoula, for appellant.
    Cumbest, Cumbest & Hunter, David O. McCormick, John L. Hunter, W. Harvey Barton, Pascagoula, for appellee.
    Before SMITH, WALKER and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This appeal arises from the Circuit Court of Jackson County wherein Henry Thomas Welzbacher, plaintiff/appellee, instituted suit against Fishboats, Inc., defendant/appellant, for damages sustained due to injuries received while employed as a cook-fisherman aboard the Nuevo, a fishing vessel owned and operated by Fishboats, Inc. The basis of Welzbacher’s claim stemmed from the Nuevo’s failure to provide him with a reasonably safe place to perform his duties as well as failure of the ship’s captain to transport Welzbacher to shore for medical attention following the accident. Welz-bacher injured his knee on board the Nuevo, during rough seas, when he went on deck to. obtain food from a styrofoam ice chest used to store perishable items prior to their cooking. Following this injury, the meniscus was removed from Welzbacher’s knee. Complications subsequently developed and approximately one year later Welzbacher underwent surgery for a partial hip replacement. The jury returned a verdict in favor of Welzbacher and assessed his damages at $200,000. We affirm.

Henry Thomas Welzbacher was employed as a cook on board the vessel Nuevo, a 20-year-old snapper fishing boat. The Nue-vo left port on or about December 29, 1978, piloted by Captain A1 Krantze. Captain Krantze asserted the weather was not very bad. However, another crew member and Welzbacher testified there was serious question about whether or not to leave port. The weather forecast from Appalachicola to Biloxi, and from Biloxi to Morgan City, and out- fifty miles, indicated a small-craft advisory was in effect from December 27 until December 31 with winds varying from fifteen to twenty-five knots and seas ranging from five to ten feet.

Krantze stated that after leaving port, the Nuevo anchored on the bay side of Petit Bois Island for the night and departed therefrom the following morning around seven or eight o’clock. George Edge, a crew member of the Nuevo, stated the Nue-vo anchored behind Horn Island on December 27 and left the following morning. Welzbacher agreed the ship left port December 27 and anchored behind Horn Island, but, he asserted, it remained anchored at Horn-Island for two days. Both Welz-bacher and Edge agreed the injury occurred on December 30. However, according to Krantze and Welzbacher, the ship was running at the time of the accident, while Edge testified the ship was at anchor.

The Nuevo, apparently like most other fishing vessels, was not equipped with electrically-powered refrigeration. The ship was loaded with an average of 32,000 pounds of ice to preserve fish as well as perishable food to be consumed by the crew. To traverse from the galley to the hold where the perishable food was stored, it was necessary to go out on the open deck. For the cook’s convenience, an ice chest was used to save the cook from making quite as many trips to the hold for food items. Welzbacher asserted the styrofoam ice chest used during the particular trip was located on the deck of the Nuevo as it had always been since he began working on the Nuevo.

Welzbacher’s injury occurred when he went on deck to secure some chickens from the ice chest. When he removed the lid, the wind caught it and blew it into his face, causing him to fall to his knee. Although Captain Krantze did not actually see the fall, he looked back after hearing a noise and saw Welzbacher down on the deck with his knees in the air, holding the lid to the ice chest.

Welzbacher was transported to Galveston, Texas, where he was admitted to the U. S. Public Health Service Hospital on January 7, 1979. There was some testimony concerning the captain’s failure to secure medical attention at Welzbacher’s request.

Dr. Malcom Wall removed the meniscus from Welzbacher’s injured knee, finding numerous signs of erosion on the articulus cartilage both at the femur and tibia as well as signs of degenerated meniscus with frayed edges, and evidence of a large tear in the meniscus that had probably lodged within the joint and caused the knee to lock. Dr. Wall opined the history given by Welzbacher concerning his accident could have produced this injury. Normal recovery from this type of surgery is five months. Welzbacher was started on physical therapy and subsequently discharged February 7, 1979, with an infection, and referred to Dr. Daniel Enger at Pascagoula, Mississippi, for post-surgery therapy.

On February 9, 1979, Welzbacher was treated by Dr. Horn at the Singing River Hospital in Pascagoula. Dr. Enger, an orthopedic surgeon, first saw Welzbacher on February 12, 1979. He was subsequently-referred to the U. S. Public Health Hospital in New Orleans where he was admitted March 2, 1979, and diagnosed as having a staphyloccocal infection (staph) of the knee and thigh following surgery. He remained hospitalized until May 1, 1979.

Welzbacher entered the U. S. Public Health Hospital in New Orleans again on May 14,1979, with pain and swelling in his knee. There was evidence of prior infection which extended into the thigh musculature. An anthrotomy was performed and Welz-bacher was subsequently discharged on July 6, 1979. There was no evidence of any femoral neck fracture at this time.

Dr. Douglas Holford saw Welzbacher in November 1979 regarding fusion of his knee. Dr. Holford saw Welzbacher again in December 1979 concerning an increase in pain in his knee and hip. Welzbacher was again admitted to the U. S. Public Health Hospital in New Orleans in January 1980 for a femoral neck fracture. He related his hip cracked shortly after Christmas of 1979 when he stepped off a stair, putting too much weight on his leg.- A bone scan revealed no blood had been getting to the head of the right femur, indicating the head was probably not viable. A partial hip replacement was performed. Welzbacher had surgery four times during 1979 and once in 1980 and spent more than 135 days in various hospitals.

All medical experts asserted Welzbacher would never be able to return to his duties as a seaman. However, Dr. Enger, who rated Welzbacher’s disability at 100% loss of the use of the leg, asserted he could perform some type of employment and earn at least minimum wage.

The jury returned a verdict in favor of Welzbacher, assessing his damages at $200,-000.

I. Did the trial court err in refusing to admit into evidence the complete hospital records of appellee?

Appellant’s first proposition revolves around certain hospital records concerning an injury to appellee which occurred on December 23, 1978, just prior to the fishing expedition when appellee injured his knee. From the Singing River Hospital records, it is apparent appellee was admitted to the emergency room, apparently intoxicated, after having been found passed out, with a contusion to the lateral parietal area and to the superior portion of the left ear. He was admitted for observation for a possible cerebral concussion. However, he left the hospital before being seen by a doctor, against medical advice. Laboratory studies showed a blood alcohol content of .4%. Final diagnosis was listed as acute alcohol intoxication, probable cerebral concussion syndrome, mild.

Although there is really no dispute that this fall had anything to do with appellee’s knee injury, appellant offered this evidence to show that appellee was more prone to fall following a cerebral concussion. Also, the evidence would have served for some impeachment value because appellee denied he was injured or hospitalized on this date. An objection to the admission of the records was sustained on medical privilege grounds as well as being irrelevant and immaterial to the lawsuit.

Communications between a patient and physician are privileged by Mississippi Code Annotated section 13-1-21 (Supp.1981). A waiver may occur at the instance of the patient or his personal representative following his death. A waiver of the privilege also occurs where a plaintiff in a personal injury suit voluntarily exhibits the injured portions of his body to the jury for inspection. In Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747 (1938), this Court stated:

Appellee says, however, that the court was in error in ordering the examination and that the testimony of the specialist should, therefore, be disregarded; that the order is not sustained by the holding of this court in Dixie Greyhound Lines, Inc., v. Matthews, 177 Miss. 103, 170 So. 686. In that case, at page 115 of 177 Miss., 170 So. 686, 688, the court quoted, with approval, as follows: “An examination of the cases will show that the courts have uniformly held that, where a plaintiff in a personal injury suit voluntarily exhibits the injured part of his body to the jury for inspection, the portion of his body so exhibited becomes an exhibit in the case, like any other object or thing introduced in evidence, and the opposite party has the right to make such inspection of it as will enable him to explain, criticize, or impeach its value as evidence, and to that end have it examined by experts.” The other approved quotations in the opinion are to the same effect. That opinion was prepared after a long and most thorough consideration by the entire court, and we will not take it to pieces by technical refinement of argument in subsequent cases. (183 Miss, at 647-48, 179 So. at 749)

See also Dennis v. Prisock, 254 Miss. 574, 181 So.2d 125 (1965); and Greyhound Lines, Inc. v. Matthews, 177 Miss. 103, 170 So. 686 (1936).

By exhibiting his knee to the jury, appellee waived any medical privilege as to that portion of his body. However, no such waiver occurred as to any treatment appel-lee may have received to other portions of his body.

When the records were proffered and Dr. Enger was questioned by the court, the following colloquy transpired:

BY THE COURT: I am asking him, though, can he testify as to the probability that the head injury on December 23rd had anything to do with the subsequent fall or alleged fall and injury on the 30th. Is there any way you could testify to that?
BY THE WITNESS: I could not give it in a real percentage ... to make it a real possibility.
(emphasis added.)

Any connection between the two incidents was very speculative. Therefore, the admission of the records would have been more prejudicial than probative in value. Furthermore, appellee was not examined by a physician on December 23, 1978, but left the hospital before being treated, against medical advice. The hospital records concerning the December 23,1978, injury were, therefore, properly excluded.

II. Did the trial court err in refusing appellant’s instruction D-25?

Instruction D-25 provided:

The Plaintiff may invoke the medical privilege and prevent any physician who has treated him from testifying or prevent the introduction into evidence of records of said treatment. When the Plaintiff claims this medical privilege, the Defendant cannot compel a treating physician to testify or introduce into evidence records of that treatment.
The Plaintiff has invoked the medical privilege in this case and prevented the testimony of Dr. Charles Allen and Dr. J. S. Weatherall and also the Plaintiff has prevented the introduction into evidence of records of the Plaintiff’s medical records regarding medical treatment which the Plaintiff Henry Thomas Welzbacher, may have received on December 23, 1978.
As the Plaintiff has so used the medical privilege, you as jurors are warranted in inferring that the testimony of Dr. Allen and Dr. Weatherall and the medical records regarding such treatment would have been unfavorable to the Plaintiff should the doctors had (sic) been permitted to testify or the records introduced into evidence.

An objection to the instruction was interposed and sustained on the grounds that the instruction was a misstatement of the law and that the December 23, 1978, records were not admitted into evidence.

In Killings v. Metropolitan Life Insurance Co., 187 Miss. 265, 192 So. 577 (1940), this Court first upheld the granting of the following instruction:

In that state of case the court, at the instance of appellee, instructed the jury that under the law it could not introduce as a witness “any doctor to testify to anything learned by him of the plaintiff’s physical condition while the relation of physician and patient existed between him and plaintiff”, and further instructed the jury that the fact that appellant failed to introduce as a witness one of his physicians, Dr. Waldrup, would justify the jury in inferring that his testimony would have been unfavorable to the appellant. . ..
(187 Miss, at 271, 192 So. at 578).

However, the instruction in the present case goes farther than what was contemplated in the Killings decision. In McCay v. Jones, 354 So.2d 1095 (Miss.1978), this Court stated:

In our case the defendant obtained an instruction that plaintiff had the right to claim as privileged the communication between her and the two physicians sought to be called as witnesses, but when she claimed the privilege, the jury could infer that, if the physicians were permitted to testify, their testimony would have been adverse to the interest of the plaintiff. This instruction was first authorized by our decision in Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577 (1940).
We hold that it was error to sustain the motion in limine because the privileged communication statute between physicians and patients does not make a physician incompetent as a witness for all purposes, but only prevents the physician from testifying as to any privileged communication. There are competent questions, which may be asked of an attending physician, which fall outside the prohibition of the statute. When the court denied defendants the right to subpoena and introduce otherwise competent witnesses, this extended the privileged communication statute more than the legislature intended.
(354 So.2d at 1100)

See also Gulf, Mobile & Ohio R. Co. v. Smith, 210 Miss. 768, 50 So.2d 898, 899 (1951).

The instruction in the present case incorrectly informed the jury that appellant could not compel appellee’s physician to testify. Neither Dr. Charles Allen or Dr. J. S. Weatherall actually treated Welzbacher because he left the hospital before they had the opportunity. Furthermore, neither was called as a witness. It appears as though the appellant wanted to elicit testimony concerning appellee’s state of intoxication on December 23, 1978. Although no testimony concerning privileged communication could have been elicited, the physician was not an incompetent witness for all purposes. In fact, appellant could have used the physician to impeach appellee’s testimony that he was not admitted to the hospital on December 23, 1978. The instruction was properly refused as a misstatement of the law.

III. Was the jury verdict excessive?

46 U.S.C.A. section 688, authorizes recovery of damages for personal injuries received by a seaman in the course of his employment. 2 Norris, The Law of Seamen section 690 (3d Ed. 1970), provides:

§ 690. Negligence. — The seaman’s calling is a hazardous one in which he faces on the one hand the dangers of the natural elements, and on the other, the requirements of ship’s discipline which may expose him to those elements by requiring him to obey orders against perhaps his better judgment.
Recognizing the peculiar hazards of the seaman’s vocation and having in mind the purpose for which the Jones Act was enacted, the United States Supreme Court avoided giving “negligence” a narrow, restricted and technical meaning. It left the interpretation of negligence to the courts to construe that word liberally so as to include all the meanings given to it in the light of the peculiar hazards of the seafaring profession.
Any negligence on the part of an employer under the Jones Act which plays any part, however slight, in producing an injury to an employee is sufficient to fix liability for such injuries.
The mere fact that a seaman has suffered an injury does not per se call for Jones Act liability, if employer negligence has not been found to exist.
There are two requirements that must be satisfied in order to maintain a Jones Act suit; (a) there must have been a negligent action on the part of the employer; and (b) the act must have contributed to the injury provided first that the injured party was a “seaman” and that the negligent defendant or respondent was the seaman’s employer.
Negligence is the gravamen of a suit under the Jones Act, and that negligence must be alleged and proved by the seaman.
The seaman must prove the existence of a duty, the negligent violation of this duty by his employer, and finally, a causal relationship of the violation to the injury sustained.
The jury plays a pre-eminent role in a Jones Act case.

Liability of a shipowner under the act may be predicated upon negligent conduct of its officers, agents or employees, or from defects in the ship, or its equipment or appliances, attributable to the owner’s negligence. 32 Am.Jur.2d, Federal Employer’s Liability Act § 54 (1982). There must be a causal relationship between the owner’s failure to exercise due care and the resulting injury. In Rogers v. Missouri-Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), the test of a causation was espoused as:

Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal, and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due “in whole or in part” to its negligence. (Emphasis added.)
(352 U.S. at 506-07, 77 S.Ct. at 448-49, 1 L.Ed.2d at 499-500) (emphasis added.)

In the case at bar, it was undisputed that appellee fell and injured his knee in the course of his employment on board the Nuevo. Although one doctor asserted that the meniscus ordinarily locks and causes the fall, Dr. Wall testified that if appellee’s history was true, his injury could have resulted from the fall. Marine forecasts indicated inclement weather conditions when the Nuevo left port as well as leading up to the time of appellee’s injury. There was expert testimony that the Nuevo was not reasonably safe on December 30, 1978, regarding the installation of the ice cooler on the deck of the vessel. In fact, the only major controverted issues were the length of time that elapsed following appellee’s injury before he was brought in for medical attention and the connection between the original knee injury and the subsequent hip replacement. Submission of Jones Act claims requires a very low evidentiary threshold; even marginal claims are properly left for jury determination. Smith v. Massman Const. Co., 607 F.2d 87 (5th Cir. 1979); and Leonard v. Exxon Corp., 580 F.2d 522 (5th Cir. 1978).

Following appellee’s injury and subsequent hip surgery, it is clear that appellee is precluded from sea duty or any activity which requires climbing. Although Dr. En-ger asserted appellee would be able to find gainful employment for at least minimum wage, appellee’s disability to his injured leg was rated at 100% loss of use of that leg. This disability was broken down into 60% disability due to the knee injury and 40% disability due to the hip injury.

According to Dr. Holford, the infection in appellee’s knee spread into his thigh causing a weakness of all tissue. Dr. Hol-ford, who performed the hip replacement, opined that the nonviability of the hip bone was due to a lack of blood supply in that area. Dr. Enger succinctly summed up the appellee’s condition following his initial injury when he testified:

If there has been no other factor involved, I would say that there is a . .. it’s almost like the domino theory where one thing starts to go wrong and then everything seems to happen in this case. Certainly not saying that it does not happen to a surgeon that he gets a post-operative wound infection, these things will happen in the operating room. Then you get a fibrosis, a scarring in there. And then you come along with the man who is not ambulatory and, if he’s been taking care of himself and everything else and there is no other factors which can be established, then it’s just an unfortunate situation which develops. But, it’s almost like Murphy’s law — -if there’s a weak spot in the system, it’s going to find it and it’s all going to come up.

Other doctors denied that the hip replacement was caused by the initial knee injury. All the experts seemed to agree that appel-lee’s knee was degenerated to some extent prior to the injury and that the future condition of appellee’s hip uncertain.

The jury was instructed to consider damages to appellee’s hip if it believed from a preponderance of the evidence that the original knee injury predisposed appellee to infection and disease to the hip. The jury evidently so found as evidenced by the size of its award.

Subsequent to appellee’s knee injury, he spent 95 days during 1979 and 45 days during 1980 in various hospitals. There was evidence of personality changes as well as pain and suffering following the accident. Appellee is no longer able to resume sea duty but is now confined to light work.

The jury, based upon conflicting expert testimony as to the causation of the hip replacement, awarded appellee $200,000. Based upon this record, we cannot say this verdict was excessive so as to evidence passion, bias and prejudice.

IV. Did the trial court err in denying appellant’s defense of limitation of disability?

46 U.S.C.A. section 183, provides:

(a)The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
(b) In the ease of any seagoing vessel, if the amount of the owner’s liability as limited under subsection (a) of this section is insufficient to pay all losses in full, and the portion of such amount applicable to the payment of losses in respect of loss of life or bodily injury is less than $60 per ton of such vessel’s tonnage, such portion shall be increased to an amount equal to $60 per ton, to be available only for the payment of losses in respect of loss of life or bodily injury. If such portion so increased is insufficient to pay such losses in full, they shall be paid therefrom in proportion to their respective amounts.
(c) For the purposes of this section the tonnage of a seagoing steam or motor vessel shall be her gross tonnage without deduction on account of engine room, and the tonnage of a seagoing sailing vessel shall be her registered tonnage. Provided, that there shall not be included in such tonnage any space occupied by seamen or apprentices and appropriated to their use.
(d) The owner of any such seagoing vessel shall be liable in respect of loss of life or bodily injury arising on distinct occasions to the same extent as if no other loss of life or bodily injury had arisen.
(e) In respect of loss of life or bodily injury the privity or knowledge of the master of a seagoing vessel or of the superintendent or managing agent of the owner thereof, at or prior to the commencement of each voyage, shall be deemed conclusively the privity or knowledge of the owner of such vessel.
(f) As used in subsections (b), (c), (d), and (e) of this section and in section 183b of this title, the term “seagoing vessel” shall not include pleasure yachts, tugs, towboats, towing vessels, tank vessels, fishing vessels or their tenders, self-propelled lighters, nondescript self-propelled vessels, canal boats, scows, car floats, barges, lighters, or nondescript non-self-propelled vessels, even though the same may be seagoing vessels within the meaning of such term as used in section 188 of this title. R.S. § 4283; Aug. 29, 1935, c. 804, § 1, 49 Stat. 960; June 5, 1936, c. 521, § 1, 49 Stat. 1479.

Testimony as to the value of the Nuevo and its cargo was offered outside the presence of the jury. The fair market value of the Nuevo was established at $35,000. The cargo or fish at the time of the accident was valued at $800. A motion, subsequent to the verdict of the jury concerning the limitation of liability defense, was heard by the trial judge.

Ralph Douglas Horn, part owner of Fish-boats, Inc., admitted he knew the ice box was placed on the deck and allowed it to remain there. He also admitted that a seaman was more likely to be injured if he went on board during bad weather. Horn testified the captain of the Nuevo worked for Fishboats, Inc., and Fishboats could control whether or not he left port. He qualified his statement by saying he left it to the captain’s discretion as to whether or not the boat left port.

In Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363 (1943), the Supreme Court held the burden was upon the party seeking to invoke limitation of liability. In Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151 (2d Cir. 1978), the Second Circuit Court of Appeals stated:

In a limitation proceeding such as this, the burden of proof as to the absence of privity or knowledge is on the petitioners, Red Star. Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363 (1943). It is the owner’s duty to use due and proper care to provide a competent master and crew and to see that the ship is seaworthy; any loss occurring by reason of fault or neglect in these particulars is within his privity. Terracciano v. McAlinden Construction Co., 485 F.2d 304 (2d Cir. 1973); Re Reichert Towing Line, 251 F.2d 214 (2d Cir.), cert. denied, 248 U.S. 565, 39 S.Ct. 9, 63 L.Ed. 424 (1918).
Seaworthiness is a relative term depending upon its application to the type of vessel and the nature of the voyage. The general rule is that the vessel must be staunch, strong, well equipped for the intended voyage and manned by a competent and skillful master of sound judgment and discretion. The Niagara v. Cordes, 62 U.S. (21 How.) 7, 16 L.Ed. 41 (1859); The Framlington Court, 69 F.2d 300, 304 (5th Cir.), cert., denied, 292 U.S. 651, 54 S.Ct. 860, 78 L.Ed. 1500 (1934); Adams v. Bortz, 279 F. 521 (2d Cir. 1922); Northern Commercial Co. v. Lindblom, 162 F. 250 (9th Cir. 1908). The burden to prove seaworthiness and the exercise of due diligence to make the ship seaworthy is upon the vessel owner or operator. Terracciano v. McAlinden Construction Co., supra. Red Star had a non-delegable duty to provide a qualified master and crew for the intended voyage. Boudoin v. Lykes Brothers Steamship Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955); Petition of the United States, 178 F.2d 243, 252 (2d Cir. 1949). See, Admiral Towing Co. v. Woolen, 290 F.2d 641, 646 (9th Cir. 1961); Navegacion Castro Riva v. The M. S. Nordholm, 178 F.Supp. 736, 741, n. 19 (E.D.La.1959), aff’d, 287 F.2d 398 (5th Cir. 1961). If then, the Ocean Prince was manned by an inadequate crew, Red Star’s duty as shipowner was breached on either the theory of negligence or that of unseaworthiness. Incompetence of the navigator makes the vessel unseaworthy. Empire Seafoods, Inc. v. Anderson, 398 F.2d 204 (5th Cir.), cert. denied, 393 U.S. 983, 89 S.Ct. 449, 21 L.Ed.2d 444 (1968).
(584 F.2d at 1155-56)

The Fifth Circuit Court of Appeals has also ruled on limitation of liability in In Re Brasea, Inc., 583 F.2d 736 (5th Cir. 1978), wherein it stated:

We cannot agree. In ascertaining whether a shipowner is entitled to limitation, the Court must first determine which act or acts of negligence or conditions of unseaworthiness caused the injury. The Court then determines whether the shipowner had knowledge or privity of these specific acts or conditions. Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir. 1976). (583 F.2d at 738)

See also Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir. 1976).

The trial judge made a factual finding denying the limitation of liability defense on the ground that the owners of the Nuevo had general knowledge of the condition aboard the ship which rendered the vessel unseaworthy. After reviewing the record, we are unable to say the trial judge’s findings on the issue are unsupported by substantial evidence. There is no merit in this argument.

V. Did appellee’s expert invade the province of the jury?

Appellant contends the trial court erred in allowing John Kern to express an opinion as to the reasonable safeness of the vessel on the day the injury occurred.

In Ford Motor Co. v. Dees, 223 So.2d 638 (Miss.1969), a products liability case, this Court stated:

We feel that Alvin Doyle was qualified by his thirty years experience as part owner and manager of a large automotive repair shop to testify as an expert on the construction and working of the steering mechanism of a pickup truck and also the manner in which the cab was bolted to the chassis. He was qualified to point out to the jury how the steering column would separate and cause the steering mechanism to fail if there was play between the cab and chassis.
He did aid the jury with his expert knowledge, but he did not invade the province of the jury and furnish them the ultimate answer. He did offer, and we think rightly so, some light on the subject of the actual assembly and working of the steering mechanism.
(223 So.2d at 641)

This Court has also held that opinion testimony of one who has acquired special knowledge of a subject, either by study, training or practical experience, may impart to the jury such acquired knowledge so as to aid it in determining an issue with which the jury is not familiar. Bynum v. Mandrel Industries, Inc., 241 So.2d 629 (Miss.1970).

The hypothetical question propounded to John Kern as well as the answer given in response thereto did not invade the province of the jury. The ultimate issue to be determined by the jury was the seaworthiness of the vessel and not the condition and location of the ice chest on board the ship. John Kern’s opinion was merely to the effect that the installation of the ice chest aboard the Nuevo was not reasonably safe. It was for the jury to determine whether the condition and installation of the ice chest rendered the vessel unseaworthy, and such condition contributed to the injury of the appellee. We find no error in the propriety of the hypothetical question and answer.

VI. Did the trial court err in limiting appellant’s right to cross-examination?

Although as a general rule great latitude is permissible on cross-examination, the scope thereof is not without limitation. Questions intended to embarrass or humiliate a witness as well as those extending to irrelevant matters, are not permissible. The scope of examination is largely within the sound judicial discretion of the trial court and it has the inherent power to limit examination to relevant factual issues. Hankins v. State, 288 So.2d 866 (Miss.1974). Aimless repetition and references to immaterial and inflammatory matters should also be avoided. Isaacks v. State, 337 So.2d 928 (Miss.1976).

The record in the present case does not support appellant’s contention that its right of cross-examination was limited by the trial court. In all the instances complained of, valid objections were interposed and ruled upon by the trial judge. Appellant does not complain of the trial judge’s rulings on the admissibility of these matters. We find no merit in this argument.

For the foregoing reasons, the judgment of the Circuit Court of Jackson County should be and the same is hereby affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


text:
    AL’S FISH CAMP, INC., A Corp., D/B/A The Fisherman Restaurant & Lounge and Louis Johnson v. Jess H. DICKINSON & Harry A. Crumpler.
    No. 53170.
    Supreme Court of Mississippi.
    May 5, 1982.
    Guy, Dowdy & Whittington, Ronald L. Whittington, B. Calvin Cosnahan, McComb, for appellant.
    Jackson & Hammond, S. Robert Hammond, Jr., Hattiesburg, for appellee.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

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

AFFIRMED.

SUGG and WALKER, P. JJ., ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    In the Matter of Michael Allen PARKER (Diamond), A Minor: Harold & Lois Parker v. Liza Lynn PARKER (Diamond).
    No. 53496.
    Supreme Court of Mississippi.
    May 5, 1982.
    Dulin, Dulin & Cobb, Tommy Dulin, Gulf-port, for appellant.
    Parlin & Murphy, Billy Parlin, Ocean Springs, for appellee.
   Appeal from Chancery Court, Jackson County; Robert H. Oswald, Chancellor.

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

AFFIRMED.

SUGG and WALKER, P. JJ., ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Amy Hester WEBB (Nee Amy Hester) v. Sammy HESTER.
    No. 53153.
    Supreme Court of Mississippi.
    May 5, 1982.
    Carnathan & Malski, Tim Ford, Tupelo, for appellant.
   Appeal from Chancery Court, Lee County; George F. Adams, Chancellor.

Smith, Elliott & Fortier, Robert W. Elliott, William R. Fortier, Ripley, for appel-lee.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    James Edward SMITH v. Sue Dossett SMITH.
    No. 53501.
    Supreme Court of Mississippi.
    May 5, 1982.
    Graves, Riley, Meadows & Walker, Joseph R. Meadows, Gulfport, for appellant.
    Sekul, Hornsby, Wallace & Teel, Walter W. Teel, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Leon OWENS v. Hattie CHESS.
    No. 53391.
    Supreme Court of Mississippi.
    May 5, 1982.
    Bob Owens, Denise Sweet, Jackson, for appellant.
    No brief filed for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

REVERSED AND RENDERED.

PATTERSON, C. J., SUGG, P. J., and BROOM, ROY NOBLE LEE, DAN M. LEE and DARDEN, JJ., concur.


text:
    R. C. JONES & DeElla Jones v. Jessie BATES & Lillie Bates.
    No. 53516.
    Supreme Court of Mississippi.
    May 5, 1982.
    F. W. Stratton, Liberty, H. E. Horne, Jr., Centerville, for appellant.
    Larry F. Harold, McComb, for appellee.
   Appeal from Chancery Court, Amite County; Bert H. Jones, Chancellor.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    Miriam ODUM, A Minor, by and through her Father and Next Friend, Lewis Odum v. Tracie Lynn Gingrich GLOVER, et al.
    No. 53100.
    Supreme Court of Mississippi.
    May 5, 1982.
    Roland Lewis, J. Dewayne Thomas, W. Joseph Kerley, Jackson, Dan A. McIntosh, III, Collins, for appellant.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, Watkins & Eager, John L. Low, IV, Heidelberg, Woodliff & Franks, George F. Woodliff, Keith R. Raulston, Jackson, John K. Keyes, Collins, for appel-lee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Paul ROBINSON v. STATE of Mississippi.
    No. 53350.
    Supreme Court of Mississippi.
    May 5, 1982.
    John Cotter, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

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

AFFIRMED.

SUGG and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Robert WREN v. STATE of Mississippi.
    No. 53470.
    Supreme Court of Mississippi.
    May 5, 1982.
    Wilson & Hinton, Phil R. Hinton, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Neal Biggers, Judge.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Fred DOWDY v. Charles W. DOUELL, et al.
    No. 53474.
    Supreme Court of Mississippi.
    May 5, 1982.
    Charles D. Thomas, Pontotoc, William K. Duke, Oxford, for appellant.
    Ford & Cornelius, Robert T. Cornelius, New Albany, for appellees.
   Appeal from Chancery Court, Pontotoc County; James E. Bost, Chancellor.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    Doyle HAMM v. STATE of Mississippi.
    No. 53174.
    Supreme Court of Mississippi.
    May 5, 1982.
    J. B. Garretty, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Fred Wicker, Judge.

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

AFFIRMED.


text:
    Billy Ray KING v. Winnie Pearl EAKES and James Melton Eakes.
    No. 53517.
    Supreme Court of Mississippi.
    May 5, 1982.
    Clayton Taylor Lewis, Philadelphia, for appellant.
    Carol F. Thweatt, Edward A. Williamson, Philadelphia, for appellees.
   Appeal from Chancery Court, Neshoba County; John C. Love, Jr., Chancellor.

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

AFFIRMED.


text:
    Felecia PENDLETON, a Minor, by M. C. Pendleton, her father and next friend v. Alton STUBBS & Sammy Ivey.
    No. 53302.
    Supreme Court of Mississippi.
    May 5, 1982.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Charles M. Merkel, Clarks-dale, Neblett, Bobo & Chapman, Fincher G. Bobo, Shelby, for appellant.
    Luckett, Luckett, Luckett & Thompson, Kay Farese Luckett, Clarksdale, for appel-lees.
   Appeal from Circuit Court, Washington County, Arthur B. Clark, Judge.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    Lester HARRIS v. STATE of Mississippi.
    No. 53667.
    Supreme Court of Mississippi.
    May 5, 1982.
    Lester Harris, pro se.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before WALKER, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Larry Michael ODOM v. STATE of Mississippi.
    No. 53437.
    Supreme Court of Mississippi.
    May 5, 1982.
    F. Kent Stribling, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C. J., WALKER, P. J., and BROOM, BOWLING, HAWKINS and DARDEN, JJ., concur.


text:
    CITY OF JACKSON v. Wade FLETCHER.
    No. 53509.
    Supreme Court of Mississippi.
    May 5, 1982.
    David L. Love, Asst. City Atty., Jackson, for appellant.
    Marc E. Brand, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; L. Breland Hilburn, Acting Judge.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Robert Leslie BRADLEY v. STATE of Mississippi.
    No. 53278.
    Supreme Court of Mississippi.
    May 5, 1982.
    Donald J. Steighner, Columbus, Darryl C. Thomas, J. Terry Davis, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before SMITH and WALKER, P. JJ., and DAN M. LEE, J.

MURDER CONVICTION REVERSED, AND CASE REMANDED FOR RESEN-TENCING ON MANSLAUGHTER.

All Justices concur.