text:
    Carolyn Simoneaux VICCINELLI v. Ronald L. CAUSEY.
    No. 14144.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Guy A. Módica, Baton Rouge, for plaintiff-appellee Carolyn Simoneaux Viccinelli.
    Michael R. Wheeler, Baton Rouge, for defendant-appellee Lawrence Dale Simo-neaux.
    Ralph M. Kelton, Baton Rouge, for defendant-appellant Ronald L. Causey.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-Movant, Carolyn Simoneaux Viccinelli, seeks to have the suspensive appeal of defendant, Ronald L. Causey, dismissed because of his failure to furnish a valid appeal bond. Movant contends that since the defendant signed the bond as his own surety, no valid appeal bond was timely filed.

On April 18, 1980, plaintiff had obtained a judgment in the trial court which was amended on June 4, 1980, to include the defendant. A motion for a new trial by defendant was denied on June 30, 1980. Defendant applied to the trial court for a suspensive appeal which was granted on July 14, 1980.

On July 28, 1980, defendant filed what purported to be an appeal bond. In November, 1980, plaintiff filed a motion in the trial court testing the sufficiency of the bond and pointing out the failure of the defendant to file affidavits with the appeal bond. She asked that the bond be declared insufficient or invalid due to the defendant being his own surety and his failure to file the applicable affidavits under La.C.C.P. art. 5122.

After a hearing on the matter on December 4, 1980, the trial court allowed defendant four days, exclusive of legal holidays, “to furnish and/or correct the defect existing in the bond as filed on July 28, 1980.” The following day, December 5, 1980, defendant filed a bond with a separate surety and accompanied by the required affidavits.

In her Motion to Dismiss, plaintiff contends that the jurisdiction of this court never attached because of the failure of defendant to furnish a valid bond. Plaintiff relies on the case of Guilliot v. City of Kenner, 326 So.2d 359 (La.1976). In that case the appellant filed a document purporting to be an appeal bond, but neither the principal nor the surety had signed the document. The Supreme Court stated in that case:

“* * * While the appellate court does not have jurisdiction to consider the form, substance and sufficiency of an appeal bond, it does have the authority to determine whether what purports to be a bond is in fact a bond, and whether it was timely filed, for only then does its jurisdiction attach. * * *
“Whether the Court of Appeal in the instant case properly dismissed the appeal, therefore, depends upon whether the bond relied upon by the plaintiff is such that it is subject to objections as to form, substance or sufficiency; or whether the defects of the alleged bond are so glaring and so numerous that it forms no bond at all. If no bond at all was furnished the appellate court properly dismissed the appeal.
“If what purports to be a bond complies substantially with the requirements of the law, objections as to its form, substance or sufficiency are properly resolved by the trial court, which retains jurisdiction for that purpose as of the date of its filing or subsequently. La. Code of Civ.P. art. 2088. The trial court is authorized to cure these objections. La.Code of Civ.P. arts. 5123, 5124, 5125. “On the other hand, if what purports to be a bond is nothing but blank unsigned paper it cannot be cured and it does not meet the requirements of a bond. The filing of such a document is not a ‘timely filing’ of security which gives jurisdiction to an appellate court. * * *”
Citations omitted. Guilliot, supra, pgs. 362-363.

The bond in the Guilliot case can be distinguished from the bond in this case and has been distinguished by two other cases which are similar to this one. Dolhonde v. Dolhonde, 345 So.2d 596 (La.App. 1st Cir. 1977); Tufaro v. Methodist Hospital, Inc., 365 So.2d 619 (La.App. 4th Cir. 1978).

In the Dolhonde case, supra, the plaintiff as security pledged his share of a savings account in a bank to the clerk of the trial court. We therein stated that “(T)he contention of the appellee in the instant case addresses itself to the validity and sufficiency of the appeal bond, not the failure to file bond.” Dolhonde, supra, 349 So.2d pg. 596. The Tufaro decision is on all fours with our facts. Appellants therein had signed the bond as their own sureties. Therein our learned colleagues of the Fourth Circuit explained:

“In this case the appeal bond is much more than ‘blank unsigned paper’; arguably, it is a valid bond. Therefore, we are without jurisdiction to consider movers’ objection to the bond. The trial court alone has that jurisdiction under the applicable Code of Civil Procedure Articles 2088(5), 5123, 5124, and 5126.” Tufaro, supra 365 So.2d pg. 620.

The trial court in our case ruled on the sufficiency of the bond and gave the defendant four days to furnish and/or correct the bond that was issued on July 28, 1980. Under La.Code of Civil Procedure Article 5124:

* * *
“The new or supplemental bond is retroactive to the date the original bond was furnished, and maintains in effect the order, judgment, writ, mandate, or process conditioned on the furnishing of security.”

Under this article, the new bond furnished on December 5, 1980, is retroactive to July 28,1980. Thus, the bond was timely filed for perfection of a suspensive appeal by the defendant.

For these reasons, the Motion to Dismiss is denied.

MOTION TO DISMISS DENIED.


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    Succession of Richard Alvin FLOOD et al., v. FIDELITY & GUARANTY LIFE INSURANCE COMPANY.
    No. 13904.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Thomas L. Wright and Edward L. Duffy, Houma, for plaintiffs and appellees.
    Daniel Lund, Edward A. Rodrigue, Jr., New Orleans, for defendant and appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Fidelity & Guaranty Life Insurance Company (hereinafter called Fidelity), the defendant-appellant, seeks reversal of the decision of the lower court which upheld the validity of a life insurance policy issued on the life of the late Richard Alvin Flood which, appellant contends, was fraudulently procured. The estate of decedent, Flood, instituted these proceedings to recover the proceeds of the policy of life insurance. The estate is now postured as plaintiff-ap-pellees.

In 1971, Richard Alvin Flood resided with his wife and family in Houma, Louisiana. Mr. Flood was employed by the Transcontinental Gas Pipeline Corporation. Ellen Flood, his wife, was employed by Houtz Insurance Agency as an underwriter of personal casualty insurance.

In February, 1971, defendant, Fidelity, received an application for life insurance purportedly bearing the signature of Richard Flood. A policy of life insurance was issued, and Ellen Flood was designated as the beneficiary. In August, 1971, a change of ownership form was submitted to defendant-appellant purportedly bearing the signature of Richard Flood and changing the ownership of the policy to Ellen Flood.

Subsequent to these events, Richard Alvin Flood was murdered (in 1972) at the hands of his wife, Ellen Flood. The details of the homicide and the findings and adjudications of the guilt of Ellen Flood are found in State v. Flood, 301 So.2d 637 (La.1974). Suffice it to say that Richard Flood was poisoned by the use of arsenic. His wife was tried for his murder and convicted in 1973.

Fidelity denied Mrs. Flood’s request for payment of the insurance policy based upon her being charged with her husband’s death. It returned all premiums to Mrs. Flood.

In 1977, a demand for payment of the policy was brought on behalf of the estate of Richard Flood or in the alternative for the benefit of the minor child of Richard and Ellen Flood. It was denied by Fidelity which reasoned that the policy had been obtained through the forgery and fraud of Mrs. Flood. This suit followed.

Plaintiff’s evidence consisted of the certificate of death, the application and insurance policy and its demand letter. The theory of plaintiff’s case was that the policy of insurance is valid because the insurer is estopped from denying coverage when, as here, its agent has signed the application purporting to witness the signature of the insured (Richard Flood).

The defendant, in an effort to prove forgery and fraud, called several witnesses. The agent, David Coignet, testified that Mrs. Flood presented him with an application which she represented was signed by her husband. Acting upon that representation, he testified that he signed his name as a witness to the signature. He further admitted that the change of ownership form, which changed ownership of the policy from Mr. Flood to Mrs. Flood, bore a signature purporting to be that of Mr. Flood which wasn’t in fact witnessed by him; that all transactions concerning the policy of life insurance herein complained of were handled by Mrs. Flood.

Defendant-appellant also adduced evidence to establish the handwriting style of Mr. Flood and called as a witness Mr. Gilbert J. Portier, Jr. of New Orleans, Louisiana. Mr. Portier was qualified as an expert in handwriting identification. He testified that the known signature of Mr. Flood was not the same as the signature on the insurance policy nor that found on the change of ownership form. Finally, appellant offered without objection the opinion of the Louisiana Supreme Court, rendered in State of Louisiana v. Ellen Flood, and reported at 301 So.2d 637.

The lower court rendered judgment in favor of plaintiff in the amount of $9,000.00. In his written reasons for judgment, the trial judge concluded that it would be sheer speculation on the part of the court to conclude that Mr. Flood had no knowledge of the application and policy of insurance and did not approve and authorize the action taken by his wife in obtaining the said insurance. It further found that there was no direct provable evidence to establish the wife’s motive at the time the policy was applied for and, finally, construed defendant’s failure to call Mrs. Flood as a factor militating against defendant’s claim.

We must decide whether or not the policy of insurance was fraudulently obtained and, if so, whether such fraud voids the contract under Louisiana law.

The case at bar involves a calculated attempt by Ellen Flood to subvert the laws of Louisiana in order to realize a pecuniary gain. Life insurance policies are procured because life is, indeed precarious and uncertain. But our law does not and cannot sanction any scheme which has as its purpose the certain infliction of death for, inter alia, financial gain through receipt of the proceeds of life insurance.

The genesis of this litigation is the escalating criminal action of Ellen Flood, bent on taking the life of her lawful husband. Our courts have previously adjudicated (1) the issue of the cause of death of Richard Flood, (2) the culprit in that death, and (3) the motives for the death. Under the peculiar circumstances of the case, it was unreasonable of the trial court not to consider and to assign great weight to the mountain of circumstantial evidence tending to prove Mrs. Flood’s scheme to defraud both the insurer, Fidelity, and the insured, Mr. Flood.

Louisiana follows the majority rule which holds, as a matter of public policy, that a beneficiary named in a life insurance policy is not entitled to the proceeds of the insurance if the beneficiary feloniously kills the insured. American Nat. Life Ins. Co. v. Shaddinger, 205 La. 11, 16 So.2d 889 (1944).

Article 1881 of our Civil Code provides that contracts made through fraud are voidable by the parties. Article 1847(7) defines, in pertinent part, fraud and an instance in which its invocation will nullify a contract.

Additionally, Title 22 of the Revised Statutes, Section 619(B) governs the standard for life insurance applications:

“B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”

It is clear to us that the entirety of the transaction here reviewed is tainted with the intendment of Ellen Flood to contravene the prohibitory law. The fact that plaintiff seeks to install in her stead a contingent beneficiary is of no consequence. To sanction this policy in any way would surely shackle the spirit, letter and life of our laws.

For the foregoing reasons, the decision of the lower court is reversed, and judgment is entered in favor of defendant-appellant, Fidelity & Guaranty Life Insurance Company, dismissing the suit of plaintiff-appellee, Succession of Richard Alvin Flood, all costs to be paid by the plaintiff-appellee.

REVERSED.

      . We have excerpted the pertinent part of the findings of the Supreme Court per Justice Marcus:
      “Richard and Ellen Flood were married in 1965. At the time of Richard’s death on June 2, 1972, he was about 27 years old. Richard was described as a healthy robust man about 5'-10", weighing about 190 pounds with a ‘fantastic build.’ Defendant was described as goodlooking. Mr. Flood was employed at Transcontinental Gas Pipeline Company as a maintenance man earning an annual salary of $8,745.00. Defendant was employed at Houtz Insurance Agency as an underwriter of personal casualty insurance, with a salary of $475.00 per month. The couple lived in a house trailer. The evidence is that defendant was unhappy in marriage and was having sexual relations with other men. There is further evidence that, during April of 1972 (about two months prior to Richard’s death), defendant made inquiry in regard to obtaining a $100,000.00 life insurance policy on the life of her husband. The inquiry included questions by her as to whether her husband would have to be apprised of the policy. She was given an affirmative answer to this line of questioning. The evidence reveals that thereafter no further action was taken by her in regard to the policy.
      “Richard Flood had two life insurance policies. One was a group policy through his employment calculated at three times his annual base pay ($8,745.00), or about $25,000.00. The other policy was a $5,000.00 whole life type policy with a $5,000.00 declining term rider, under which policy, the beneficiary would receive approximately $9,300.00 at the time of Flood’s death. The ownership of this latter policy was changed from Richard Flood to Ellen Flood on August 2, 1971. Defendant was the beneficiary under both of these policies.”
      “Without attempting to point out the significance of the aforesaid evidence, we simply say that there is some evidence upon which the jury could reasonably conclude that defendant murdered her husband by arsenic poisoning. The motive was there. She was unhappy and going out with other men. There was some evidence that she was fearful of her husband. Further, her attempt to take out a large life insurance policy on his life without his knowledge is certainly evidence which indicates a motive, as well as the fact that she would receive about $35,000.00 as the beneficiary under the other two policies then in effect. There is also some evidence upon which the jury could conclude that she did, in fact, administer the arsenic. The evidence that six medicine bottles found in her trailer contained arsenic is revealing. This is particularly significant in view of the fact that the medicines called for by the labels on these bottles would not have contained any arsenic. Two of the medicines in these bottles, tylenol and paregoric, are the types which the jury could infer that Flood was taking for relief of headaches and diarrhea, some of the symptoms of his illness. Also noteworthy is the evidence of defendant feeding Richard ice at the hospital when no feeding had been ordered. At that time, his condition had been improving; however, from then on, he deteriorated and died several hours later. Finally, there is no dispute that he died of arsenic poisoning. The remaining evidence is also directed at proving the crime charged.”

      . C.C. Art. 12:
      “Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.”

      . C.C. Art. 1881:
      “Engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, fraud, violence or menace, or by the representatives of such parties.”

      . C.C. Art. 1847(7):
      “Art. 1847. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other. From which definition are drawn the following rules: ******
      “7. The artifice must be designed to obtain either an unjust advantage to the party for whose benefit the artifice is carried on, or a loss or inconvenience to him against whom it is practiced, although attended with advantage to no one.”


text:
    Talmadge D. BICKHAM, Jr. et al. v. J. Randolph OGDEN, consolidated with Talmadge D. BICKHAM, Jr. v. J. Randolph OGDEN.
    Nos. 13917, 13918.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Curtis K. Stafford, Jr., Baton Rouge, for plaintiffs-appellees Talmadge Bickham, Jr., and Marie McCauley Bickham.
    Gerard E. Kiefer, Baton Rouge, for defendant-appellant J. Randolph Ogden.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

J. Randolph Ogden appeals from adverse summary judgments entered below in these consolidated suits on notes totaling $134,-360.00. Talmadge D. Bickham, Jr. and his wife, Marie McCauley Bickham, plaintiffs-appellees, instituted these actions alleging that defendant-appellant, Ogden, purchased from them on November 16,1978, a tract of land situated in East Feliciana Parish measuring 230 acres more or less for the price of $225,681.00. Ogden paid $45,996.00 in cash, and, for a portion of the purchase price, namely, $77,625.00, he agreed to hold Talmadge Bickham, Jr. free and harmless from the payment of the balance due on three certain promissory notes made and executed by Talmadge Bicham, Jr., to the order of Thomas Woodside, Bickham’s ancestor in title to the above described estate. The three notes bore maturity dates of November 10, 1979, November 10, 1980, and November 10,1981, and were payable in the amounts of $32,300.00, $32,300.00 and $13,-025.00, respectively. These notes, though payable to Thomas Woodside, did not designate a place of payment. Ogden assumed the obligation to pay and further executed a promissory note in the amount of $102,-060.00, bearing an interest rate of 8Vi% per annum. This amount was payable in four annual installments of $25,515.15. The first payment was due on November 16, 1979.

On October 30, 1979, plaintiff-appellee, Bickham, wrote to defendant-appellant, Ogden, to remind him of the maturity date of the notes described above. Ogden was out of town, but responded through his secretary on November 13, 1979, assuring Bick-ham that payment would be made upon Ogden’s return and requesting the exact amount due so that the checks could be made out. As per the letter, Ogden returned on November 19, 1979, and immediately sent two checks to Bickham in care of his attorneys.

Bickham made no reply to the letter, but apparently instructed his attorneys to institute legal action against Ogden. Suits were filed on November 20, 1979, one day after payment was mailed by Ogden.

Motions for summary judgment were filed and were opposed by defendant-appellant, Ogden. The trial court, nevertheless, granted summary judgment in favor of Bickham.

Appellant urges that the trial court erred in granting summary judgment for several reasons, to-wit: No place of payment was specified on the note and because tender had been made prior to legal demand.

Plaintiffs-appellees attempted to establish their case through affidavits. We have examined the pleadings and affidavits and because we are of the opinion that several issues of material fact remain to be tried, we find that the case is one inappropriate for summary judgment. Therefore, we reverse and remand.

Appellant was faced primarily with two obligations in the month of November, 1979: (1) Payment of the November 10, 1979, note in the principal sum of $32,300.00 plus interest to Thomas Woodside and (2) payment of the November 16, 1979, installment note in the principal sum of $25,515.15 plus interest to Talmadge and Marie Bick-ham.

Appellant raises a serious question about the November 10, 1979, obligation which clearly raises a genuine issue yet to be tried. A review of the record places squarely at issue the place of payment of the note. The resolution of this issue affects materially the ultimate issue of whether or not appellant was in default on his obligation. Edwards v. Standard Oil Company of Louisiana, 175 La. 720, 144 So. 430 (La.1932). Appellee’s allegations that Woodside had demanded payment of the November 10, 1979, obligation is also a material issue which appellant is entitled to try.

The November 16, 1979, obligation was preceded by appellant’s letter of November 13, 1979, clearly evincing an intendment to pay. Appellant is deprived of his right to adduce evidence to show that he was perhaps lured into a false sense of security by the failure of appellees to communicate a rejection of the contents of the letter. These nuances are not capable of being distilled and weighed through the medium of summary judgment.

Finally, even if appellees should prevail after trial on the merits, appellants have raised serious questions about the measure of attorney’s fees under the circumstances of this case and in light of Guaranty Bank & Trust Company v. Quad Drilling Corp., 284 So.2d 351 (La.App. 1st Cir. 1973), writs refused 284 So.2d 767 (La.1973). We pre-termit any discussion thereof at this time, in view of our decision to reverse and remand.

For the foregoing reasons, the decision of the lower court is reversed and the cause is remanded for further proceedings. Plaintiff-appellees are to pay all costs of these proceedings.

REVERSED AND REMANDED.

      . Civil Code Article 2157 provides:
      “The payment must be made in the place specified in the agreement. If the place be not thus specified, the payment, in case of a certain and determinate substance, must be made in the place where was, at the time of the agreement, the thing which is the object of it.
      “These two cases excepted, the payment must be made at the dwelling of the debtor.”


text:
    Rhonda WATSON v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 14187.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Mary E. Howell, New Orleans, for plaintiff-relator.
    Sidney Hall, D.H.H.R., Baton Rouge, for defendant-respondent.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Rhonda Watson works in the Department of Health and Human Resources (D.H.H. R.), Office of Human Development, as a welfare worker. She is a permanent employee in the state civil service system.

On March 14, 1979, the appointing authority notified Mrs. Watson that she was being terminated at 4:30 p. m., March 16, 1979, listing the reasons as follows:

“1. On March 7,1979, you failed to comply with a specific directive from your supervisor that you were to consult with the Crowley City Judge or his secretary before taking further action on case number FS 36847.
“2. On March 7,1979, you failed to comply with a specific directive from your supervisor to the effect that you were not to discuss fraud or Food Stamps with anyone in relation to case number FS 36847 in that you did, on that same date, file an affidavit charging the client with Food Stamp fraud.
“3. You failed to comply with a specific directive from your supervisor on March 8, 1979, to complete dictation on cases numbered FS 13623, FS 19601, and FS 33265.”

On April 12, 1979, she appealed, alleging, inter alia, that if she did fail to comply with the directives it was because of inadequate supervision and not due to any intentional acts of insubordination. She further contended that the disciplinary action was imposed not for legal cause but because of a personality conflict between her and her superiors. She also sought to justify her action in case number FS 36847 on the basis that the physical safety and well being of a young child were in serious jeopardy and that she had a moral and legal duty to take the actions which she did. Additionally, she contended that the severity of the discipline imposed is arbitrary, selectively enforced and unduly harsh.

Then, she moved for summary disposition, contending that case number FS 36847 involves allegations of child abuse, that such records are confidential and that it is unlawful for her to disclose them, or the information contained in them to outside sources. LSA-R.S. 46156(A). Ms. Watson further states that although “outside sources” defined to include “governmental authorities, the court and law enforcement agencies” may be made privy to the records if the applicant, client or his legal representatives gives a written waiver of the confidentiality rule, the statute prohibits any waiver of bhat rule to outside sources not connected with the department's program in cases involving “foster care of children, investigations of abuse or neglect of children or other welfare services.” R.S. 46:56(F)(1). She also contends that no waiver is authorized in case records furnished to law enforcement agencies or courts to aid in the prosecution of criminal offenses related to any family services program. In substance, Ms. Watson says that in order to defend herself certain confidential information would have to be communicated to the commission, and that the commission is not one of those agencies authorized to receive such information. Therefore, she contends, she cannot defend herself without subjecting herself to statutory penalties, including a fine of not more than $2,500.00 or not more than two years in jail or both, nor less than $500.00 or ninety days on each count. LSA-R.S. 46:56-I. She also states that she believes that cases FS 13623, FS 19601 and FS 33265, referred to in her letter of termination, also involve child abuse cases and that evidence cannot be presented before the commission for the same reasons as stated above.

She contends that she is in a position where she cannot adequately defend herself without disclosing the information, but if she does disclose such information she would be subjecting herself to severe penalties — a “Catch 22” situation.

On December 4, 1979, the Civil Service Commission heard her motion for summary judgment and denied it. From that denial, Ms. Watson applied for writs.

One alleged reason for Ms. Watson’s apprehension is the action taken against another of Ms. Howell’s clients, Mrs. Spoto. However, in that case, the reason given for the termination was that Mrs. Spoto and Ms. Howell allegedly violated the confidentiality rules by openly discussing the contents of memoranda in which the child’s name and other names, instead of being deleted, were freely used, thus violating R.S. 46:56 and the Family Security Manual of Rules and Regulations.

The commission contends that since the Civil Service Commission is an agency of the State of Louisiana, designed to ensure and protect employees’ rights and privileges, it is essential to the operation and administration of D.H.H.R. and that, with deletion of names and identifying dates, supplying the commission with the data necessary to exercise its quasi-judicial function would not constitute a violation of the prohibitory language of the statute.

We agree.

If we were to adopt the theory of Ms. Watson, both an appointing authority and an employee could be thwarted in presenting the case before a reviewing forum.

The writ was improvidently issued. Therefore, it is now recalled, the stay order is vacated, and the case is remanded to the Civil Service Commission for hearing in a manner not inconsistent with the views expressed herein.

WRIT RECALLED; STAY ORDER VACATED.

      . § 56. Applications and client case records; definitions; confidentiality; waiver; penalty
      A. Applications for assistance and information contained in case records of clients of the Department of Health and Human Resources shall be confidential and, except as otherwise provided, it shall be unlawful for any person to solicit, disclose, receive, make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of applications or client case records or the information contained therein for any purpose not directly connected with the administration of the programs of the department.

      . § 56 — (F)
      F. The following information shall not be subject to waiver, and shall not be released to applicants, recipients, or outside sources, except those outside sources engaged in the administration of the programs of the department:
      (1) Records pertaining to foster care of children, investigations of abuse or neglect of children, and other child welfare services.

      . § 56 — (I)
      I. Any person who violates any of the provisions of this Section shall be fined not more than two thousand five hundred dollars or imprisoned for not more than two years in the parish jail, or both, nor less than five hundred dollars or ninety days on each count.


author: ELLIS, Judge.

text:
    Helen SCIACCA v. Louis POLIZZI, M.D. and Julius Schmid Company, a/k/a Schmid Laboratories, Inc.
    No. 13878.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Mark Alan Jolissaint, Slidell, for plaintiff-appellant.
    Jerry L. Saporito, Jos. S. Palermo, Jr., Metairie, Carey J. Guglielmo, Baton Rouge, for defendant-appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a suit by Helen Sciacca against Dr. Louis A. Polizzi and Julius Schmid Company, also known as Schmid Laboratories, for damages for personal injuries arising out of the insertion of an intrauterine device into the uterus of Ms. Sciacca. The petitions and supplemental petitions filed herein allege in effect that, relying entirely on the advice of Dr. Polizzi, plaintiff permitted the insertion of a “Saf-T Coil” IUD, manufactured by defendant Schmid. The procedure was performed on April 18,1972. It is further alleged that Dr. Polizzi specifically warranted the IUD to be totally harmless.

It is further alleged that plaintiff began to experience severe abdominal pain in January, 1974, and on February 9, 1974, had the IUD surgically removed. It is alleged that the IUD had perforated plaintiff’s uterus, causing the difficulty and other subsequent surgical procedures.

She alleges that her injuries resulted from improper insertion of the IUD by Dr. Polizzi, and/or from defects in the design or manufacture of the IUD. Basically, Ms. Sciacca is alleging a cause of action based on either a breach of his service contract by Dr. Polizzi, or a breach of warranties extended by Dr. Polizzi to plaintiff or by Schmid to plaintiff through Dr. Polizzi.

The suit was filed on May 13, 1976, over two years after the operation of February 7, 1974. Both defendants have filed exceptions of prescription. Since the cause of action arose prior to the effective date of R.S. 9:5628, which makes the one year prescriptive period applicable to malpractice suits against physicians whether in tort or contract, the former law is applicable. Lott v. Haley, 370 So.2d 521 (La.1979).

Authority on the prescriptive period applicable to medical malpractice suits is divided. The Second and Third Circuits have held that the prescription of one year is applicable in medical malpractice cases, unless there is a contract guaranteeing a specific result, in which case the prescription of 10 years is applicable. Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974), writ denied 315 So.2d 144 (La.1975); Sumerall v. St. Paul Fire & Marine Ins., 366 So.2d 213 (La.App. 2nd Cir. 1978). These courts based their holdings on the Supreme Court case of Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963).

However, this court and the Fourth Circuit, distinguishing the Phelps case, supra, have found that a negligent act of malpractice by a physician can constitute either an offense or a breach of the contract for services entered into between the doctor and his patient. An action for negligent breach of this service contract can be brought within ten years, even though a tort action for the same offense may be barred by the prescription of one year. Creighton v. Karlin, 225 So.2d 288 (La.App. 4th Cir. 1969); Henson v. St. Paul Fire & Marine Ins. Co., 354 So.2d 612 (La.App. 1st Cir. 1977). Writs were granted in the latter case, and the judgment was affirmed, without the Supreme Court reaching the issue of the applicable prescriptive period. 363 So.2d 711 (La.1978).

We still adhere to the views expressed in the Henson case, supra, and find that the prescription of ten years is applicable to the alleged breach of contract by Dr. Polizzi.

With respect to Schmid, there is a different result. The record shows that Schmid sold the IUD to Dr. Polizzi, who implanted it in plaintiff and charged her a standard professional fee. The cost of the IUD was absorbed by Dr. Polizzi. There is, therefore, no privity of contract between plaintiff and Schmid. In Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970), the court said:

“While there are numerous appellate court decisions providing, ‘A manufacturer or seller of a product which involves a risk or injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part sustains an injury caused by a defect in the design or manufacture of the article, if the injury might have been reasonably anticipated,’ the fact remains that such action is one in tort and not in contract. There existing no privity of contract between the plaintiff and defendants in this suit, the mere allegations of breach of warranty is not enough to change the character of the action into one arising out of contract and bring it within the ten year prescriptive period.”

We find the Cartwright case to be controlling and the plaintiff’s action against Schmid to be barred by the prescription of one year.

The judgment appealed from is therefore reversed insofar as it dismisses plaintiff’s suit against Dr. Polizzi, the exception of prescription is overruled as to him, and the case remanded to the trial court for further proceedings, according to law; the judgment is affirmed insofar as it dismisses the suit as to Schmid. Costs of this appeal shall be shared equally by plaintiff and Dr. Poliz-zi. All other costs await final disposition hereof on the merits.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


text:
    A. L. BRYAN, Jr., and First of Georgia Insurance Company v. Therman C. VARNADO, d/b/a ABC Heating and Cooling Company and Fireman’s Fund Insurance Company.
    No. 13881.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Carolyn Pratt Perry, Baton Rouge, for plaintiffs-appellants A. L. Bryan, Jr., and First of Georgia Ins. Co.
    Ronald A. Seale, Baton Rouge, for defendants-appellees Therman C. Varnado d/b/a ABC Heating & Cooling Co., and Fireman’s Fund Ins.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

On January 18, 1977, plaintiff A. L. Bryan, Jr., called defendant Therman C. Varnado, doing business as ABC Heating and Cooling Company, to do some repair work on his heating unit. Mr. Varnado came to plaintiff’s house and inspected the unit, and determined that a new fan limit control switch was needed. On the next day, the switch was installed, and the unit run through several cycles to see if it was functioning properly.

About 20 minutes after Mr. Varnado left, plaintiff’s wife heard an explosion. She ran to the entranceway and saw black smoke and flame at the return air duct, about halfway up the stairs to the second floor. She noticed that the stair railing had been blown off the wall by the explosion.

As a result of the fire, the house was damaged to the extent of $48,993.46. This suit is by Mr. Bryan and his fire insurance carrier, First of Georgia Insurance Company, against Mr. Varnado and his insurer, Fireman’s Fund Insurance Company, for the amount of the loss. Trial on the merits was held, and, after plaintiffs rested, defendants moved for a directed verdict. The motion was granted, and plaintiffs’ suit dismissed. Plaintiffs have appealed.

Mr. Varnado stated that he had serviced the Bryans’ unit several times, but never the heating part of it. He had worked on the cooling part and on the fan. He further testified that when he answered the call on January 18, he found that the fan limit control switch had been tampered with, and determined that it had to be replaced. Not having one with him, he re-set the old switch, which seemed to operate properly, and ran the heater through about three cycles. The next afternoon he returned, and installed the new switch. He checked the burners and found them all to be burning properly, with a blue flame. He ran the heater through three cycles and found it to be operating properly.

After the fire, the heater was examined, while still in place, by Dr. Gerald D. White-house, a Professor of Mechanical Engineering, who testified as an expert witness. He did not inspect the burners. After his inspection, Dr. Whitehouse expressed the opinion that the fire was probably caused by a failed gas control valve. He also stated in his report that the servicing of the heater by Mr. Varnado could not be directly related to the fire, and that there would have been no indication at the time of the servicing that the failure of the gas control valve was going to occur. Dr. Whitehouse also testified that, if the burners were clogged, a delayed ignition would occur, which could have caused an explosion.

Harold Myers, a mechanical engineer, also testified as an expert witness. He inspected the unit about one year after the fire. It was found upside down on some boards in Mr. Bryan’s back yard, covered with Visqueen. He removed the burners from the unit, looked at them, turned them upside down and shook them, and then replaced them in the unit. He found rust all over the unit, and rust on the burners. He found a small amount of rust in the burners.

He was of the opinion that, at the time of the explosion, there must have been a large amount of rust in the burners which fell off when the unit was moved out of the house and turned upside down. The amount of rust he found at the time of his inspection was insignificant, and would not have interfered with the operation of the burners. He had initially been of the opinion that the explosion was caused by late ignition resulting from clogged burners. However, he further said that an explosion resulting from late ignition would not normally be of sufficient force to blow the stair railing off the wall. He also stated that if the burners were burning with a steady blue flame, they would not have been clogged. Ultimately, he stated that he was unable to testify that the fire resulted from delayed ignition. He had no opinion as to the most probable cause of the fire, but did testify that it was not caused by the installation of the fan limit control switch.

Charles O’Brien, an expert heater mechanic, testified as to the procedure to be followed in checking a unit of the type and age involved in this suit. He testified that it would be necessary to clean the burners, but later testified that this would not be necessary if the burners were burning with a steady blue flame.

The trial judge found no facts which indicated any negligence on the part of the defendant, and dismissed plaintiffs’ suit. In this court, plaintiffs contend that the trial court erred in failing to apply the doctrine of res ipsa loquitur and in failing to apply Article 2317. It is further contended that the findings of fact by the trial court were manifestly erroneous, and that the evidence was not properly reviewed in rendering a directed verdict.

The doctrine of res ipsa loquitur is a rule of evidence, applicable in circumstances when the cause of the accident by which the damage was inflicted is more properly within the knowledge of the defendant. When the doctrine is applicable, the accident itself makes out a prima facie case, and the burden is on the defendant to show that he is free from negligence. If the doctrine is to be applied, all of the facts and circumstances of the case must indicate that the negligence of the defendant, rather than the other factors, is the most likely explanation of the accident. If, however, it appears that other explanations of the accident are as reasonable as defendant's negligence, the doctrine of res ipsa loquitur does not apply. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); Aetna Casualty & Surety Co. v. Rothman, 331 So.2d 81 (La.App. 1st Cir. 1976).

In this case, plaintiffs ask us to apply the doctrine of res ipsa loquitur, because, it is claimed, the record shows that defendant had serviced and repaired the heating unit only 20 minutes before the fire and because there was no other reasonable cause for the fire.

Of the two experts who testified for plaintiffs, one had expressed the opinion that the fire was due to a failed automatic gas valve, an occurrence of which defendant would have had no indication; and the other was unable to give an explanation for the explosion. Neither of them thought that the switch installed by defendant was in any way connected with the fire. No witness was able to point to any substandard conduct on the part of defendant in the procedures followed by him in servicing the heater.

The trial judge, in his reasons for judgment, stated that he did not know what caused the explosion and fire, but that under all of the circumstances, he did not believe that defendant’s negligence was the most probable cause. We think his conclusion is fully supported by the evidence, and that he properly refused to apply the doctrine of res ipsa loquitur.

Nor do we find Article 2317 of the Civil Code to be applicable to this case. As interpreted by Loescher v. Parr, 324 So.2d 441 (La.1975), liability attaches to one if another is injured by a defective thing of which one has custody, and which creates an unreasonable risk of harm. The heater in this case was serviced by defendant, but he was never its custodian. The article has no application.

Plaintiffs further allege that the defendant was negligent in failing to warn that the burners on the heater should have been cleaned periodically, and that rust accumulating in the burners could cause a delayed ignition explosion and a resultant fire, and that the trial judge was manifestly erroneous in finding otherwise. We find no ■ error in the factual conclusion of the trial judge. The expert who advanced the opinion relative to the delayed ignition theory changed his opinion on the witness stand, and there was no other evidence to support this theory.

Finally, plaintiffs claim that the trial judge applied an improper standard for review to the evidence in granting the motion for a directed verdict. It is urged that, under Article 1810(B) of the Code of Civil Procedure, the judge should view the evidence in the light most favorable to plaintiff in ruling on a motion for a directed verdict. This is a standard of review applicable in jury trials. See Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979); Ragas v. Argonaut Southwest Ins. Co., 379 So.2d 822 (La.App. 4th Cir. 1980). However, in judge-tried cases, a different standard is applied, and the judge may render a judgment based on the preponderance of evidence. Sevin v. Shape Spa for Health & Beauty Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980). This is the standard properly applied by the judge in this case.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Paul J. MELLA v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.
    No. 13900.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Raymond J. Salassi, Jr., New Orleans, for defendant and appellant.

      Lelia M. Ray, Houma, for plaintiff and appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a suit by Paul J. Mella for benefits allegedly due under a disability income policy written by The Mutual Life Insurance Company of New York. From a judgment in favor of plaintiff, Mutual has appealed.

Plaintiff claims that he is totally disabled as the result of a conversion reaction precipitated by an accident which happened on December 28, 1977. At that time, plaintiff pulled a groin muscle while getting out of his car. Plaintiff had had back surgery some years before the accident, but testified that he had had no back trouble thereafter and prior to the accident. Shortly after the accident, plaintiff began having back pain which prevented him from working. On January 12, 1978, he saw Dr. Christopher Cenac, an orthopedist, about the problem. Dr. Cenac treated plaintiff conservatively, then placed him in the Ter-rebonne General Hospital. Plaintiff was admitted there on January 27, 1978, and discharged on March 29, 1978. Neither Dr. Cenac nor Dr. George Cary, who consulted on the case, were able to find any physical explanation for Mr. Mella’s back problem.

Plaintiff was then referred to the Mercy Pain Center in New Orleans, headed by Dr. Richard A. Morse, a psychiatrist. The Pain Center is designed for treatment of those suffering with chronic pain of physical origin complicated by emotional factors. Mr. Mella remained in the Pain Center for five weeks, and participated in their entire multidisciplinary program.

Dr. Morse concluded, at the end of the program, that there was no physical basis for plaintiff’s complaints of pain. He was of the opinion that plaintiff was suffering from a mild case of conversion hysteria, and that his physical symptoms had an emotional basis. It was his opinion that Mr. Mella’s continued rehabilitation could best be furthered by having him return to his job, and become a more active person. He felt that the emotional basis underlying plaintiff’s pain was of long standing, and not connected with the accident in which plaintiff suffered the groin pull.

After his discharge from the pain center, Mr. Mella returned to Dr. Cenac, who certified him as no longer disabled on May 10, 1978. Mr. Mella, however, did not return to work, and continued to see Dr. Cenac from time to time until he was fully discharged in November, 1979.

On July 12, 1978, plaintiff was seen and evaluated by Dr. Thomas Moore, a psychiatrist. Dr. Moore saw plaintiff again in August, 1978, and March, 1979. In late 1979, plaintiff began seeing Dr. Moore on a weekly basis. Dr. Moore testified at the trial that plaintiff’s back problems resulted from conversion reaction which was caused by the accident, and which disabled him completely.

Plaintiff was paid $900.00 in benefits under the policy, but payment was terminated when plaintiff was certified as no longer disabled by Dr. Cenac.

The policy provides a total disability monthly income of $300.00. It also contains the following relevant provision:

“Total Disability: Total disability means a disability which wholly prevents the Insured from engaging in his regular occupation and during which the Insured is under the regular care and attendance of a legally qualified physician other than himself.”

A rider attached to the policy reads as follows:

“1. If the Insured becomes totally disabled due to accident before age 65; and
“2. If the Company, in accordance with the Disability Insurance Provisions on Page 2, has paid a disability income benefit at the basic monthly income rate for the entire period there specified as the maximum applicable for such disability; and
“3. If at the end of such period the Insured is totally disabled, directly and independently of all other causes, as the result of the same accidental bodily injuries which had caused his total disability due to accident, so that he is wholly prevented from engaging in any occupation for remuneration or profit for which he is, or may be, reasonably fitted by education, training, or experience,

the Company will continue to pay a disability income benefit at the basic monthly income rate during the further continuance of the disability described in paragraph (3) above, provided that:

“(a) such disability requires the Insured to be under the regular care and attendance of a legally qualified physician other than himself; and
“(b) such disability was not caused or contributed to by disease or bodily or mental infirmity (i) which existed before the accident or (ii) which was contracted or developed after the accident other than as the direct and sole consequence of the accidental bodily injuries sustained in such accident; and
“(c) the disability was not the result of an injury self-inflicted while insane.”

The trial court accepted the testimony of Dr. Moore, and found that plaintiff was disabled; that the disability resulted from an accident, and that plaintiff’s disability was permanent. The judge further stated in his reasons for judgment that the chances of plaintiff returning to work were remote, and that the provisions of the policy requiring periodic notices of continuing disability, and being under the regular care of a physician were not enforceable. In this court, defendant complains of the findings of the trial judge in all of the above respects.

Defendant argues that the testimony of Drs. Cenac and Morse, who were treating physicians, is entitled to greater weight than that of Dr. Moore. We note, however, that by the time of trial Dr. Moore was seeing plaintiff on a weekly basis, and was himself a treating physician. The matter is one of weight and credibility to be given to the witnesses, and the opinion of the trial judge in this respect is entitled to great weight. After a careful reading of the record, we can find no manifest error in the conclusion of the trial judge; and cannot say that he is clearly wrong in reaching his conclusions relative to plaintiff’s disability and its causation.

However, we find that plaintiff’s disability is not of such a nature as to relieve him of the responsibility of complying with the provisions of the policy relative to notification of his continuing disability. The policy requires such notice once every six months. Defendant has the right to have plaintiff examined at reasonable intervals, at its expense. Plaintiff is bound by these and other provisions of the policy.

It was stipulated by the parties hereto that defendant paid $900.00 rather than the $600.00 credited on the judgment as rendered, and the judgment will be amended in that respect.

The judgment appealed from is affirmed, insofar as it orders payments of benefits under the policy; the judgment is amended so as to require compliance with the notice of continuing disability and other provisions of the policy relative to future payments; the judgment is further amended so as to give a credit of $900.00 for benefits already paid. Defendant shall pay all costs of the appeal.

AMENDED AND AFFIRMED.


text:
    Alain R. SELIGMAN v. Darryl J. TSCHIRN.
    No. 13964.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      John N. Gallaspy, Bogalusa, for plaintiff-appellee.
    Jack A. Blossman and John M. Robin, Covington, for defendant-appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

In the early 60’s, plaintiff Alain R. Selig-man acquired a piece of property fronting on the Bogue Falaya River, the front portion of which was low and swampy. He excavated a semi-circular canal or slip, about 60 to 80 feet wide entirely on his own property, leaving a small island in the center at the original bank of the river. He also built a bridge from his property across the canal to the island, and on the bridge he put a sign reading “Keep Out.”

Several years later, Mr. Seligman’s neighbor to the north, Lomis Stewart, was having a pond dug on the low part of his property, and asked permission to connect it to the canal by digging across Mr. Selig-man’s property. Mr. Seligman and Mr. Stewart reached an agreement, whereby Mr. Stewart was to be permitted to use Mr. Seligman’s canal and dig across Mr. Selig-man’s property to do so. There were certain restrictions on the use of the canal, which were to be expressed in a written instrument. Unfortunately Mr. Stewart died before the instrument could be con-fected, but after the pond and the connecting canal across Mr. Seligman’s property had been dug.

The Stewart property was later sold to Darryl J. Tschirn, who is the defendant herein. Shortly after Mr. Tschirn acquired the property, there was an exchange of correspondence between him and Mr. Selig-man. Mr. Seligman then filed this suit to enjoin Mr. Tschirn from using his canal for access to the pond.

After trial on the merits, judgment was rendered permanently enjoining the defendant, his agents and assigns from trespassing over the land and waterway owned by plaintiff. Defendant has appealed.

We affirm. It is clear that the slip dug by plaintiff was dug entirely on his own property, and with his own funds. Both our courts and the United States Supreme Court have held that navigable waterways constructed with private funds on private property remain private things, and neither the title nor the use thereof become vested in the public. Kaiser Aetna v. United States, 444 U.S. 164, 62 L.Ed.2d 332, 100 S.Ct. 383 (1979); National Audubon Society v. White, 302 So.2d 660 (La. App. 3rd Cir. 1974).

Defendant argues that the servitude of use of the banks of navigable streams, granted to the public by Article 456 of the Civil Code, permits his use of the slip. The use to which the public is entitled is “ ‘incidental’ to the navigable character of the stream and its enjoyment as an avenue of commerce.” See Comment to Article 456 and authorities therein cited. We find that the use granted to the public does not include the unlimited use of private canals entering navigable waterways.

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.


text:
    James Bernard JENKS v. Bobbie GULLA.
    No. 14084.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Ralph Brewer, Baton Rouge, for plaintiff-appellant James Bernard Jenks.
    Donn Moss, Baton Rouge, for defendant-appellee Bobbie Gulla.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

ON MOTION TO DISMISS

Judgment in favor of defendant was rendered from the bench, in the presence of counsel for both parties, without taking the case under advisement. Judgment was signed on May 14,1980. No notice of judgment was sent. Plaintiff’s order of appeal was filed and signed by the judge on August 21, 1980, 99 days after the judgment was signed.

Plaintiff claims that he was entitled to a notice of judgment because he requested it, although admittedly the request is not of record. Article 1913 of the Code of Civil Procedure provides, in part, as follows:

“If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
“Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.”

Clearly, plaintiff is not entitled to notice of judgment unless the request is made of record. The delays for new trial therefore began to run on the day after judgment was signed, and plaintiff’s appeal is not timely.

The appeal is dismissed, at plaintiff’s cost.

APPEAL DISMISSED.


author: COLE, Judge.

text:
    Charles WALLACE v. LAFOURCHE PARISH SCHOOL BOARD.
    No. 13901.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Frank T. Salter, Jr., Stephen R. Streete, Lake Charles, for plaintiffs-appellants Mr. & Mrs. Charles Wallace.
    Sidney A. Ordoyne, Jr., Asst. Dist. Atty., Thibodaux, for defendant-appellee La-fourche Parish School Bd.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This is a suit for the specific performance of a contract of sale. The issue presented is whether or not there has been a meeting of the minds concerning the thing to be sold so as to afford appellant the right to seek specific performance of the contract under La.Civil Code art. 2462.

The facts are as follows: On February 6, 1979, Mrs. Betty Wallace, wife of Charles Wallace, delivered a letter written by her husband to the Lafourche Parish School Board. The letter was addressed to the School Board and stated Wallace was offering an eight acre tract of land for the price of $250,000. Wallace stated in the letter if the Board accepted his offer of the eight acre tract he would donate an adjoining two acre tract. The letter did not include a legal description of the land but referred to an “enclosed map.”

The School Board met on February 7, 1979. A discussion concerning the selection of a site for an elementary school in Larose, Louisiana was held in an executive session. The board reconvened in an open session and a motion was made to “accept the offer of Charles T. Wallace in the amount of $250,000 for an 8-acre tract....” The motion was seconded and passed by a vote of eleven to four. Mrs. Wallace was present at the meeting and later obtained a copy of the minutes of the meeting. Pursuant to La.R.S. 43:143 the minutes were also published in the School Board’s official journal, the Thibodaux’s The Daily Comet on February 16, 1979.

On February 28, 1979, the Board met in special session to reconsider the action taken on selecting the site for the Larose school. A motion was made to rescind the action taken by the Board concerning the acceptance of the Wallace offer. District Attorney Francis Dugas presented a formal statement in which he advised that the resolution accepting the Wallace property was the product of an illegally constituted executive session. He stated he could not recommend the execution of the Wallace contract. Appellant then filed suit for specific performance.

The trial court rendered judgment in favor of the School Board and against Wallace. The court reasoned there had been only a preliminary motion toward forming a contract rather than a real acceptance of the offer, hence the promise to purchase was not enforceable.

Art. 2462 of the La.Civil Code provides the rule concerning the right to specific performance of a promise to sell an immovable. The article reads in part as follows:

“A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.”

The inquiry must always be whether or not there existed a reciprocal consent, i. e., a meeting of the minds, as to the thing which was to be sold. After carefully examining the record, we conclude we need not decide if there was an acceptance of the offer because we find there was no meeting of the minds as to the thing to be sold. This lack of mutuality of consent is clearly evidenced by Charles Wallace’s testimony concerning the mineral rights.

The letter offering the eight acre tract contained no mention of the mineral rights. Unless specifically reserved, the mineral rights pass with the ownership of the land. La.Civ.Code art. 490, La.R.S. 31:5 and 6. Yet Mr. Wallace testified at trial this was not his intent.

“Q. There is nothing in writing between you and the school board as to whether or not you would convey title to the minerals to the property also, is that correct?
A. No. I really didn’t have any intention to sell the minerals with the property anyway. You don’t need minerals to build a school on.
Q. I beg your pardon?
A. You don’t need the mineral rights if you’re going to build a school on a piece of land.
Q. I understand that.
A. I didn’t own the mineral rights.”

Mr. Wallace continued to testify, stating he had not intended to include the mineral rights when he had previously donated the land. He felt that since no questions had been raised at the time of the donation, there was no need to be concerned about the mineral rights at the time of his offer to sell. (The record shows the 1973 act of donation does specify the minerals were not included.)

Regardless of Mr. Wallace’s intentions and his presumptions concerning the School Board’s knowledge of the exclusion of the mineral rights, the offer to sell the land is phrased in terms that include the mineral rights. Since Mr. Wallace does not own the mineral rights it is apparent he could not transfer them even if he so desired. There is obviously some confusion about “the thing” which is the object of the sale. The School Board accepted the unqualified offer to sell the land, so by law is entitled to the mineral rights. These facts lead us to the conclusion there was no reciprocal consent as to the thing being sold, therefore appellant is not entitled to specific performance of the contract. La.Civ.Code art. 2462.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . The record shows Wallace had previously donated this land (or a tract similar to it) to the School Board in December 1973. The donation contained a five year reversionary period. Since the Board did not begin to use the land for school purposes by the end of the five year period, the land reverted back to Wallace as of January 1979.

      . Testimony at trial was inconclusive as to whether or not the map was actually attached to the letter. The evidence showed several maps were delivered at a later date.


author: WATKINS, Judge.

text:
    Charles Freddie MORRIS, Jr. v. HUNTER CHEMICAL et al.
    No. 13877.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Otha Curtis Nelson, Baton Rouge, for plaintiff-appellant Charles Freddie Morris, Jr.
    G. Thomas Arbour, Baton Rouge, for defendant-appellee Hunter Chemical and Liberty Mutual Ins. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for workmen’s compensation for injuries sustained by Charles F. Morris, Jr., in the course of his employment with Hunter Chemical while either lifting a sack of chemicals or using a pallet pusher. The trial court rendered judgment for defendants, assigning written reasons for judgment, which we quote in full, and adopt as our decision:

“This is a workmen’s compensation suit. The plaintiff, Charles Freddie Morris, Jr., claims that on February 26, 1979, he hurt his back while working for his employer Hunter Chemicals. He asserts that he is now presently totally disabled to do any work and will experience a partial permanent disability if his back heals. The defendants deny that he was injured or that he is disabled.
“The court finds that there are a number of inconsistencies between the plaintiff’s allegations in his petition and his testimony. First, he contends in Paragraph 4 of his petition that he ‘suffered an injury to his back ... when he was lifting a heavy sack of chemicals or merchandise weighing more than 300.’ Yet in his testimony he stated that the injury resulted when a ‘pallet pusher’ he was using slipped causing him to fall and cut his wrist and injure his upper right shoulder. Morris testified that he thereupon told his supervisor, Randy Polk about the injury. To the contrary, Polk who was called by the plaintiff on direct examination denied that Morris told him that he got hurt. Polk said that Morris was fired on the day in question because of incompetency. While it may be true Polk still works for Hunter Chemical and that fact may influence his testimony, nonetheless the plaintiff called him as his witness and therefore he vouched for the accuracy of his testimony. There was no hint of surprise such as could be the foundation of impeachment. Moreover, the court has scrutinized the testimony of both of the doctors who examined the plaintiff following the alleged injury and neither found any objective signs of injury. The court is inclined to think that there is a strong probability that the injuries suffered by the plaintiff in an earlier automobile accident are being used by him as a foundation for this claim. In the final analysis, the evidence casts a serious doubt concerning whether an injury was suffered by the plaintiff in the fashion described by him.
“Accordingly, the court finds that he has not established his claim sufficiently to recover and his suit is dismissed at his cost. The expert witness fees of Drs. L. J. Messina, Wyman Walker, and Richard Bolton are set at $50.00 each and are ■taxed as costs.

“Judgment will be signed accordingly.”

We have carefully reviewed the pleadings, the transcript of testimony and exhibits and have come to the conclusion that the trial court is correct in its analysis of the testimony and its weighing of the credibility of witnesses. See Arceneaux v. Dominque, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

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

AFFIRMED.


text:
    Ernest Roy GRIMES v. Dr. Alvin STANDER et al.
    No. 13880.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant Ernest Roy Grimes.
    Donald S. Zuber, Baton Rouge, for defendant-appellee Dr. Alvin Stander.
    Frank M. Coates, Jr., Baton Rouge, for defendant-appellee A. Faye Cooper.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Ernest Roy Grimes against Dr. Alvin Stander, Alice Faye Cooper, Dr. Stander’s office nurse, and St. Paul Fire & Marine Insurance Co., their professional liability insurer. This suit alleges defamation and medical malpractice. The case was tried before a jury. Upon the completion of plaintiff’s presentation of his case, defendants moved for a directed verdict, which was granted. Plaintiff appeals. We affirm.

The granting of a directed verdict in a civil case tried before a jury is governed by Paragraph A of LSA-C.C.P. art. 1810, which reads as follows:

“A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

The background and principles for application of that paragraph of art. 1810 are well set forth in Campbell v. Mouton, 373 So.2d 237 (La.App.3d Cir. 1979), from which we quote:

“Moreover, since the source of LSA-C. C.P. article 1810A is the Federal Rules of Civil Procedure, we believe that the correct standard is that applied in the Federal Courts. See Madison v. Travelers Insurance Company, 308 So.2d 784 (La.1975). This standard is succinctly stated in the following language penned by the U.S. Fifth Circuit Court of Appeal in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969):
‘On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.’ ” (373 So.2d 237, 239)

We find that the trial court correctly applied the principles set forth in Campbell.

As was stated in Campbell, we must view and interpret the facts in the light most favorable to plaintiff. Interpreted most favorably to plaintiff, the facts relevant to a possible theory of recovery are as follows:

Plaintiff was operated upon for a calcium deposit in the knee joint by Dr. Stander on January 21, 1976. Thereafter, plaintiff made several follow-up visits to Dr. Standees office to permit Dr. Stander to determine the extent of his progress and to obtain recommendations for treatment, including physical therapy. On some occasions, Dr. Stander was absent from the office. On Grimes’ last visit, Grimes, according to his testimony, was told Dr. Stander was out of the office. Grimes made several inquiries to Mrs. Cooper about his condition, which he thought she attempted to brush off. Finally, Grimes handed Mrs. Cooper a note to Dr. Stander, in which he complained of Mrs. Cooper’s supposed indifference to him and asked Dr. Stander to telephone him. He testified he saw Mrs. Cooper read the note, and then saw her pointing to her neck and leg in the presence of a man and a woman, and then pointing to Grimes, and all laughing heartily. Mrs. Cooper denied this ever happened. He then saw the woman leave and look closely at his neck and heard her say, “Nice day, isn’t it?” After this alleged incident, Dr. Stander never telephoned Grimes although Grimes testified that he telephoned Dr. Stander’s office at least fifteen additional times and asked to speak to Dr. Stander. Grimes’ purpose in wanting Dr. Stander to telephone him was that he wanted to make another appointment.

Because he was in pain and his knee was stiff, Grimes saw several other doctors after that time and finally was operated upon for removal of scar tissue by Dr. Charles Strange of Baton Rouge. Dr. Strange’s testimony interpreted most favorably to Grimes could be taken to indicate it was possible that the scar tissue would not have developed had Grimes continued to undergo the proper physical therapy.

Grimes was at intervals a mental patient, who constantly suffers from paranoid schizophrenia, which is a condition that produces erroneous perceptions or delusions of persecution. The only witness who testified that Dr. Stander did not telephone him with respect to making future appointments was Grimes. Mrs. Cooper, the receptionist, and the telephone operator at the clinic where Dr. Stander worked all denied that Grimes called, and Dr. Stander denied that he failed to telephone Grimes.

To prevail in an action for defamation, plaintiff must establish the following elements: (1) defamatory words, (2) publication, (3) falsity, (4) malice, actual or implied, and (5) resulting injury. Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir. 1979). In the present case there is absolutely no showing that any words or actions defamatory of Grimes were spoken or done by Mrs. Cooper, and almost no showing that plaintiff suffered any real injury, unless we impute psychological injury to him, which was not established by the testimony with respect to his mental condition. Thus, no reasonable person could find that Grimes had been defamed, and the jury could not properly find there had been defamation.

With respect to malpractice we have only the testimony of Grimes, who psychiatric testimony established had delusions of persecution, that would tend to establish that Dr. Stander did not speak to Grimes on the telephone or return his calls. Opposed to that testimony, we have the testimony of four witnesses, Dr. Stander, Mrs. Cooper, the receptionist, and the telephone operator, that Grimes never telephoned, and that Dr. Stander never failed to return his call. If it had been shown that Dr. Stander had failed to speak to Grimes, and thereby abandoned his patient, and that there had been resultant injury to Grimes, evidence of malpractice sufficient to go to the jury or to prevent the granting of a directed verdict upon plaintiff’s conclusion of his presentation of his case, might have been present, and we would reverse the trial court’s holding. However, applying the reasoning dictated by the holding in Campbell, we find that reasonable and fair-minded men in the exercise of impartial judgment could not differ, but would agree, that Dr. Stander had not been telephoned, and had not failed to return Grimes’ calls that he alone claimed were made, and that Grimes’ testimony to the contrary, especially in light of his mental condition (paranoid schizophrenic), was unworthy of belief. There is thus no substantial evidence of malpractice to go to the jury. The trial court, we therefore find, properly granted the motion for a directed verdict.

The judgment of the trial court is affirmed. All costs to be paid by plaintiff-ap-pellee.

AFFIRMED.


author: ROBERTSON, Presiding Justice,

text:
    James Russell MOORE v. STATE of Mississippi.
    No. 52398.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Rehearing Denied March 25, 1981.
    Franklin J. George, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

By his petition for writ of error coram nobis in the Circuit Court of Grenada County, James Russell Moore sought a vacation of his plea of guilty to the charge of burglary and a three-year sentence imposed, or, in the alternative, the withdrawal of his three year sentence and the imposition of an eleven-month sentence, as recommended by the district attorney.

Moore’s position is that his plea bargaining agreement with the district attorney, which he contends induced him to change his plea from “not guilty” to “guilty” should have been carried out by the trial judge. From a denial of his petition, Moore appeals and assigns as error:

The Circuit Court of Grenada County, the Honorable Niles McNeel presiding, erred in overruling the motion to withdraw guilty plea. The basis of the change of plea was that James Russell Moore would be sentenced to eleven (11) months in the county jail with credit being given for the eleven (11) months already served. The recommendation was not followed. James Russell Moore was sentenced to three (3) years at the State Penitentiary. The court erred in overruling the petition for writ of error coram nobis.

Moore was indicted for the February 7, 1979, burglary of the Printer Office Supply Store in Grenada County. At his arraignment, he pleaded “not guilty” but changed his plea to “guilty”, because the district attorney advised defense counsel that he would recommend a sentence of eleven months in the county jail with credit for the eleven months already served by the defendant.

On February 8, 1980, Moore changed his plea to “guilty” to the charge of burglary. The circuit judge carefully questioned defense counsel as to whether he had informed Moore of his legal and constitutional rights, the maximum penalty for burglary, and that the court did not have to follow the recommendation of the district attorney.

Defense counsel answered all these questions in the affirmative, and stated that he was satisfied that the defendant understood all of his rights, and that his change of plea was free and voluntary. The court then turned its attention to defendant Moore. To questions asked by the court, the defendant answered that his legal and constitutional rights had been explained to him, that he understood that the maximum penalty for burglary was seven years, that no one had abused or mistreated him or offered him any hope of reward to change his plea. Defendant Moore, under further questioning by the court, stated that he was pleading “guilty” freely and voluntarily, that he was pleading “guilty” because he did in fact break into the Printer Office Supply Store building with the intent to steal therein. Moore stated that he understood that the court did not have to accept the recommendation of the district attorney and that the court could sentence him to a maximum of seven years in the state penitentiary.

After this specific and detailed questioning of the defendant, the court announced that the change of plea would be accepted and then asked the district attorney for his recommendation. The district attorney recommended eleven months in the county jail, with credit for time already served. The court refused to accept the recommendation of the district attorney and sentenced Moore to three years in the Mississippi State Penitentiary.

We are of the opinion that the trial judge was correct in denying the petition for writ of error coram nobis. Defendant Moore and his attorney were carefully and fully advised that the district attorney’s recommendation was just that — a recommendation only — and that the court was in no wise bound by it. This Court has said many times that it would not review the sentence if it is within the limit prescribed by statute. Ainsworth v. State, 304 So.2d 656 (Miss.1975).

The case at bar is clearly distinguishable from Boyington v. State, 389 So.2d 485 (Miss.1980). In Boyington, the trial judge had participated in the plea bargaining and had led Boyington to believe that, if he would serve as a confidential informant in other cases, he would give him a lighter sentence, as recommended by the district attorney. After that, Boyington performed his part of the bargain and served as a confidential informant in ten other cases. In the case at bar, the trial judge took no part in the plea bargaining, held himself completely aloof, and Moore clearly understood that the judge was not bound in any way by the recommendation of the district attorney.

The trial judge did not abuse his discretion when he denied the defendant the right to withdraw his “guilty" plea, or, in the alternative, sentence him to eleven months in the county jail with credit being given for the eleven months already served.

The order of the circuit judge denying the petition for writ of error coram nobis is, therefore, affirmed.

AFFIRMED.

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


author: LEE, Justice,

text:
    Jacob STEWART v. STATE of Mississippi.
    No. 52495.
    Supreme Court of Mississippi.
    March 4, 1981.

      M. Charles May, C. Eiland Harris, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Karen Annette Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, P. J., and LEE, and BOWLING, JJ.
   LEE, Justice,

for the Court:

The armed robbery conviction of Jacob Stewart was affirmed by this Court on May 2, 1979, petition for rehearing was denied July 11, 1979, and the case was remanded to the Circuit Court of Hinds County for imposition of a term reasonably expected to be less than life. The original sentence of appellant was seventy-five (75) years with the Mississippi Department of Corrections.

In the resentencing hearing, three (3) witnesses were introduced. One identified and gave testimony concerning a mortality table which indicated the life expectancy of appellant to be 50.37 years. The second witness testified that, from the information in hand, appellant was in reasonably good physical and mental health. A third witness, an employee of the Hinds County Circuit Clerk’s Office, identified certain records pertaining to the sentences received by appellant’s accomplices.

After the hearing, the lower court resen-tenced appellant to thirty-five (35) years with the Mississippi Department of Corrections. He has appealed from that sentence and contends that (1) the sentence was excessive when compared to the sentences of his accomplices in the crime, and (2) the mortality table was incorrectly admitted into evidence because it did not deal with the class of persons of which appellant was a member.

The court records indicate the following dispositions of the case against appellant’s accomplices:

(1) Robert Flax was indicted but has not been tried. A bench warrant has been issued for his arrest.

(2) Oliver Alfred Walker was sentenced to five (5) years in the Mississippi Department of Corrections. However, those five years were suspended, and he was placed on five (5) years probation.

(3) Robert Earl Lewis was sentenced to fifteen (15) years with twelve (12) years suspended, and placed on five (5) years probation.

(4) Raymond Thomas, Jr. was sentenced to fifteen (15) years with twelve (12) years suspended, and placed on five (5) years probation.

Pleas of guilty were entered by Walker, Lewis and Thomas, and there is no record here as to the extent of their participation in the crime. Suffice it to say, the sentence imposed upon appellant was within the limits prescribed by the statute, and, in our opinion, was within the mandate of Stewart v. State, supra, since the sentence was for a definite term reasonably expected to be less than life.

Generally, the Court may take judicial notice of mortality tables. Tucker v. Gurley, 179 Miss. 412, 176 So. 279 (1937). In this case, a qualified insurance agent testified and there was introduced in evidence by him the Commissioners’ 1958 Standard Ordinary Mortality Table, indicating the life expectancy of a person twenty (20) years of age (the age of appellant) to be 50.37 years. Mortality tables are used by courts as aids in arriving at the reasonable life expectancy of persons in reasonably good health and in occupations not unduly hazardous or likely to impair the health. We hold that it was not necessary for a mortality table relating only to persons sentenced to imprisonment in correctional institutions or penitentiaries to be used and that the mortality table introduced here was competent as an aid to the court in determining the reasonable life expectancy of the defendant.

The judgment of the lower court is affirmed.

AFFIRMED.

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

      . Stewart v. State, 372 So.2d 257 (Miss.1979).


text:
    Frank TOWNSEND, Jr. v. STATE of Mississippi.
    No. 52450.
    Supreme Court of Mississippi.
    March 4, 1981.
    Stephen L. Beach, Beach, Luckett & Ross, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.

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


text:
    Thelma N. SAVELL, Administratrix of the Estate of H. J. Savell, Deceased v. Paul E. ABIDE and George V. Abide.
    No. 52514.
    Supreme Court of Mississippi.
    March 11, 1981.
    John Kirkham Povall, Jacobs, Griffith, Pearson, Eddins & Povall, Cleveland, for appellant.
    Lawrence D. Wade, Campbell & DeLong, Greenville, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

Affirmed.

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


text:
    R. P. ROBERSON and Thomas Robison a/k/a Tommy Roberson v. STATE of Mississippi.
    No. 52466.
    Supreme Court of Mississippi.
    March 11, 1981.
    William B. Kirksey, Binder, Kirksey & DeLaughter, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

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

Affirmed.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: HAWKINS, Justice

text:
    Sylvester SMITH v. STATE of Mississippi.
    No. 52562.
    Supreme Court of Mississippi.
    March 11, 1981.
    Sidney J. Martin, John C. Webb, Green-ville, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice

for the Court:

The appellant Sylvester Smith appeals from a conviction for armed robbery in the Circuit Court of Washington County and a sentence of 20 years. We affirm.

Smith was indicted at the January Term, 1980, of that court for armed robbery.

On January 23, 1980, two days after the indictment was recorded, he filed a motion for a speedy trial.

On February 4, 1980, the record reveals he was handed a copy of the indictment and entered a plea of not guilty.

On April 29, 1980, at the April Term he filed a demurrer to the indictment “because the same was never presented unto the court as mandated by Section 99-7-9 of the Miss.Code of 1972.” The demurrer did not allege in what manner the indictment was never presented to the court.

On April 30, 1980, the court entered an order sustaining the motion of the district attorney to amend the indictment, stating therein “the date and month of filing having been omitted at the time of recording of the original indictment.” Also on the same date the court over-ruled the demurrer.

From this record, the only deficiency in the indictment was the omission of the month “January,” and the date, “21,” which the court authorized to be supplied. In this record it is to be noted the bottom portion of the indictment reads as follows:

“Filed 21 day of January, 1980
Recorded 21 day of January, 1980.
Erwin Henderson, Clerk
By: E. Pryor, D. C.”

We can only conclude from the record that prior to the order authorizing the amendment, “21” and “January” had been omitted from the line beginning with the word “Filed.”

Appellant cites Stanford v. State, 76 Miss. 257, 24 So. 536 (1899) in support of his assignment of error the demurrer should have been sustained. In Stanford the indictment was not even marked filed by the clerk, there was a total omission of any notation by the clerk upon which the defendant could know an indictment had been returned against him.

In this case only the month and day were omitted from one line. The defendant clearly had the indictment before him when he made a motion for a speedy trial on January 23, 1980. Also, at the January Term, on February 4, 1980, the defendant was served a copy of the indictment and entered a plea of not guilty. For reasons unknown to this Court the defendant made no objection to the indictment until April 29, 1980.

He clearly was not prejudiced in any way. The court had authority to order an amendment, the only effect of which was to supplement an incomplete date on the face of the indictment.

We therefore hold this assignment of error is not well taken. The other assignment of error was an insufficiency of evidence to warrant a conviction, which we find to be without merit.

The judgment of conviction and sentence is affirmed.

AFFIRMED.

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