author: DOUCET, Judge.

text:
    Sara ALEXANDER, Plaintiff-Appellant, v. DEPARTMENT OF CULTURE, RECREATION AND TOURISM and Rockwood Insurance Company, Defendants-Appellees.
    No. 8593.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      James H. Galloway, Jr., Alexandria, for plaintiff-appellant.
    W. Miguel Swanwick, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

This is a workmen’s compensation case wherein plaintiff appeals from the judgment of the trial court insofar as it denied penalties and attorney’s fees. We reverse in this regard.

In March of 1979, Mrs. Alexander, plaintiff-appellant, began work at Hot Wells Resort near Boyce, Louisiana, as a cook. Shortly thereafter, on May 11, 1979, while working in the course and scope of her employment, she slipped on a tomato peel and fell, causing injuries to her back. Following the injury she consulted Dr. Donovan Purdue, an orthopaedic surgeon, complaining of low back pain with radiation down the back of the left thigh and calf, into the heel and great toe. She related that she had broken her back six or seven years previously, and received some type of lumbar surgery, however, her back had not been too bad since then. Dr. Purdue noted a total laminectomy of the fifth lumbar vertebra, diagnosed a low back strain, advised Mrs. Alexander to go home and stay in bed, and prescribed medications. She continued to visit and receive treatment from Dr. Purdue until late July 1979. Meanwhile, Mrs. Alexander had been receiving workmen’s compensation benefits, which commenced on May 20, 1979.

On July 23, 1979, plaintiff again visited Dr. Purdue, at which time the physician cautiously released her to return to work on a trial basis upon the condition of her doing only light duty work. He thought she should be able to return to work if they had some type of light duty available where she would not have to do a lot of bending, stooping, lifting, etc. Mrs. Alexander acted upon his suggestion that she try resuming work, and returned to Hot Wells in mid-August, at which time her compensation payments terminated. She attempted working for two days when her condition flared up and made continued work unbearable. She was then requested to sign a resignation in order that she receive her paycheck for the brief period worked.

Thereafter Mrs. Alexander returned to Dr. Purdue with worsened back pains and problems. She explained to him how returning to work had aggravated her situation, and that there had been no intervening injury, and she received medication. She later became displeased with the symptomatic treatment she was receiving from Dr. Purdue and consulted Dr. John Weiss. After being examined by Dr. Weiss, she was placed in a Jewitt brace for conservative treatment. When this treatment failed to produce any significant improvement, Dr. Weiss felt a spinal fusion was necessary and referred her to Dr. Henry LaRocca who subsequently performed the fusion and is still treating Mrs. Alexander.

In the meantime, Mrs. Alexander’s attorney sent a letter, dated October 9, 1979, to the employer, Department of Culture, Recreation and Tourism, and its workmen’s compensation insurer, Rockwood Insurance Company, requesting the previously terminated workmen’s compensation be reinstated. This formal demand complied with the requirements of LSA-R.S. 23:1293, 1294. When no payments followed, suit was filed and the plaintiff was subsequently awarded benefits but penalties and attorney’s fees were denied.

Although plaintiff had suffered a back injury some seven years prior to the present accident, defendants concede, as they must, that aggravation of a pre-existing condition is compensable. Equally clear is that the defendants were justified in ceasing payments upon plaintiff’s return to her employment as the employer’s conduct in discontinuing payments must be judged on the facts as they appeared at the time payments were discontinued. Thus, the sole issue on appeal is whether compensation was arbitrarily and capriciously withheld, after plaintiff’s demand, so as to warrant imposition of penalties and attorney’s fees upon appellees.

The applicable statute authorizing such awards is LSA-R.S. 23:1201.2, which provides:

§ 1201.2 Failure to pay claims; discontinuance; penalties and attorney’s fees
A. Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due, and all reasonable attorney’s fees for the prosecution and collection of such amount. Any such employer who at any time discontinues payment of claims due and arising under the provisions of this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the penalties set forth above, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney’s fees shall not apply in cases wherein the employer is found liable for penalties and attorney’s fees under the provisions of this Section.
B. The notice required by the provisions of this Section may be given or made by any person claiming to be entitled to compensation, or by any one on his behalf, and shall contain the information and signature required by R.S. 23:1293 and shall be given as required by R.S. 23:1294.

Similar provisions can be found in LSA-R.S. 22:658.

Whether the plaintiff’s return to work was necessitated by economic survival or an attempt to mitigate damages, her failure in this regard became clear upon her termination. The evidence indicates the employer was well aware of her inability to continue her normal duties at the time of her resignation. Certainly both defendants were aware of the reasons for her disability upon receipt of notice and demand by her attorney.

Where subsequent to an initial optimistic report, an employer receives information indisputably showing a claimant to be disabled, the employer and/or insurer cannot rely upon the early report and solely on its basis avoid penalty and attorney’s fees for arbitrary nonpayment of compensation benefits indisputably due the disabled claimant. Walker v. Wilson & Son Inc., 340 So.2d 985 (La.1976); Carter v. American Mutual Liability Insurance Co., 386 So.2d 1072 (La.App. 3rd Cir. 1980); Hebert v. Loffland Bros., 363 So.2d 969 (La.App. 3rd Cir. 1978); Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3rd Cir. 1979); Turner v. American Mutual Insurance Co., 375 So.2d 113 (La.App. 3rd Cir. 1979), reversed on other grounds, 390 So.2d 1330 (La.1980). The fact that injured employees may not be denied compensation on the basis of inconclusive medical reports is also well established. Wiley v. Southern Casualty Insurance Co., 380 So.2d 214 (La.App. 3rd Cir. 1980); Horn v. Vancouver Plywood Co., 322 So.2d 816 (La.App. 3rd Cir. 1975); Norris v. Southern Casualty Insurance Co., 342 So.2d 874 (La.App. 3rd Cir. 1977) writ refused, 344 So.2d 670 (La.1977). Commencing with plaintiff’s return to work, the symptoms of the disabling condition reappeared, worsened, and continually manifested themselves afterwards. The situation is analagous to those in which the presumption of causal connection between the accident and ensuing disability is available to ease the injured employee’s burden of proof. Allor v. Belden Corp., supra at footnote 5; Adams v. New Orleans Public Service, Inc., 400 So.2d 1123 (La.1981) and cases cited therein, and we believe the presumption applicable to the present case. The plaintiff’s resignation was wholly consistent with her physician’s initial diagnosis and his cautious release to work on a trial basis.

The record is totally devoid of any investigative efforts on behalf of defendants, such as a request directed to plaintiff to submit to a medical examination, which would have revealed a contrary diagnosis. In choosing a course of inaction following plaintiff’s demand preceded by medical reports evidencing compensable disability, the defendants proceeded at their own peril. The very purpose of the penalty provision of the statute is to discourage such an attitude of indifference toward the injured employee. A similar result was reached in Poindexter v. South Coast Corp., 204 So.2d 615 (La.App. 4th Cir. 1967) wherein the court held the insurer acted arbitrarily and capriciously because it neglected or refused to inquire into the cause of the plaintiff’s disability and requested no examination nor took any steps to determine the cause of the disability. Similarly, in Adams v. Travelers Insurance Co., 345 So.2d 987 (La.App. 2nd Cir. 1977) it was held that the workmen’s compensation insurer was not justified in refusing to pay benefits by reliance on statements allegedly made by the employee, who had suffered a herniated disc, that his pain was caused by arthritis, without obtaining a medical report which would support the employee’s statement. And in Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977) the defendant discontinued payments because he believed plaintiff was able to return to work and it was held that defendant should not have ceased payments without making further inquiry and securing a medical opinion. See also: Lee v. National Tea Co., 378 So.2d 134 (La.App. 3rd Cir. 1980).

Under the circumstances recited herein, we deem the defendant’s actions to be arbitrary and capricious within the meaning of LSA-R.S. 23:1201.2, thereby necessitating the award of penalties and attorney’s fees. Accordingly, we hereby award appellant penalties in the sum of 12% of the amount of compensation withheld. We believe an award of $3,500 will be sufficient to compensate plaintiff’s attorney for services provided in connection with the trial and appeal of this case.

For the reasons assigned, the judgment appealed is reversed insofar as it denies penalties and attorney’s fees, and it is now ordered, adjudged, and decreed that there be a judgment herein in favor of the plaintiff, Mrs. Sara Alexander, and against defendants-appellees for penalties as provided in LSA-R.S. 23:1201.2 in the amount of 12% of the amount of compensation withheld. It is further ordered, adjudged and decreed that there be a judgment in favor of the plaintiff and against defendants in the sum of $3,500 as attorney’s fees. In all other respects the judgment appealed is affirmed. All costs of this appeal are assessed against appellees.

REVERSED AND RENDERED IN PART; AFFIRMED IN PART.

LABORDE, J., concurs in the result.

      . Although the trial judge did not make a determination as to the length of plaintiffs return to work, the preponderance of evidence indicates she did so for two days whereas defendants claim she did so for six days. However, the duration of her return is of little relevance to resolution of the issue presented on appeal, and appellees, in their brief, concede two days is correct.

      . The characterization of her termination and whether she was required to sign the resignation was disputed at the trial level, but the above representation of the situation has been conceded to as accurate on appeal by defendants.

      . The letter sent by plaintiffs original attorney, and entered into evidence, read as follows:
      Mr. J. Larry Crain, Secretary
      Department of Culture, Recreation & Tourism P. O. Box 44361
      Baton Rouge LA 70804
      Re: Workmen’s Compensation Claim — Sara Alexander
      Dear Mr. Crain:
      This office represents Mrs. Sara Alexander, a former employee of the Hot Wells Resort, Boyce, Louisiana. Mrs. Alexander was employed at the Hot Wells Resort as a cook and in the course and scope of her employment she suffered injury on May 11, 1979 when she slipped and fell on a tomato. As a result of this injury Mrs. Alexander received workmen’s compensation payments commencing on May 20, 1979 and continuing through August 11, 1979. Mrs. Alexander returned to work on August 12, 1979 and worked 4.5 hours; she also worked on August 13, 1979 for 6 hours. On both August 12, 1979 and August 13, 1979 Mrs. Alexander experienced substantial pain and discomfort and consequently did not return to work on August 15, 1979 or thereafter. Mr. Malcolm Ingram, manager of Hot Wells Resort required Mrs. Alexander to sign a resignation before he would permit her to take possession of her paycheck for wages earned on August 12 and 13.
      The Department of Culture, Recreation & Tourism terminated workmen’s compensation payments to Mrs. Alexander effective August 11, 1979 even though representatives of the Department were aware of her inability to perform her normal job duties. There has also been no further payments for medical expenses incurred as a result of the May 11, 1979 injury.
      Mrs. Alexander is entitled to continuation of workmen’s compensation benefits and to payment of medical expenses related to the May 11, 1979 injury. This letter constitutes formal demand that the Department of Culture, Recreation & Tourism resume workmen’s compensation payments to Mrs. Alexander retroactive to August 12, 1979 and that the Department provide payment for all medical expenses associated with the May 11, 1979 injury. If, within ten (10) days after receipt of this letter, suitable arrangements have not been made for satisfaction of Mrs. Alexander’s entitlements under the law, this office will institute legal proceedings to recover full workmen’s compensation benefits, penalties, and attorney’s fees.
      Yours very truly,
      Gold, Little, Simon, Weems & Bruser
      By-
      Robert G. Nida
      A copy of the letter was sent to defendant insurance company by separate cover on the same date.

      . § 1293. Contents of notice
      The notice provided for in R.S. 23:1291 shall be made in writing and shall contain the name and address of the employee; shall state in ordinary language the time, place, nature and cause of the injury; and shall be signed by the person giving or making same. The notice may include the claim.
      § 1294. Persons upon whom notice made
      Any notice or claim under this Chapter shall be given to the employer. If the employer is a partnership, then the notice may be given to any one of the partners. If the employer is a corporation, then the notice may be given to any agent of the corporation upon whom process may be served, or to any officer or agent in charge of the business at the place where the injury occurred. If the employer is a body politic then the notice may be given to the person connected with said body politic upon whom process may be served. Provided, that in any case the notice may be given to the person designated in the notice posted in accordance with R.S. 23:1292. Any such notice shall be given by delivering it or by sending it by mail by registered letter addressed to the employer or officer or agent at his or its last known residence or place of business.

      . Berry v. Livingston Roofing Co., 403 So.2d 1247 (La.1981); Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976); Spillers v. Cities Service Co., 406 So.2d 269 (La.App. 3rd Cir. 1981).


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Russell NOEL, Plaintiff-Appellant, v. Rickey DEMOUCHETTE, et al., Defendants-Appellees.
    No. 8595.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Olivier & Brinkhaus, John L. Olivier, Sunset, for plaintiff-appellant.
    McHugh & Guidry, George W. McHugh, Jr., Martinville, for defendants-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

The plaintiff, Russell Noel, brought this suit against defendants, Rickey Demou-ehette, Linda Demouchette, and Bobby Be-noit, a minor made defendant herein through his father, Harold Benoit, Sr., to recover damages for personal injuries he sustained on September 7, 1977, when he was injured by a shotgun blast to his right eye, right arm, and chest. The trial judge held in favor of the plaintiff and against defendant Rickey Demouchette, and awarded plaintiff judgment in the amount of $15,000.00. Plaintiff’s demands against the other two defendants were dismissed. Prom this judgment plaintiff has appealed.

On appeal plaintiff suggests that the trial court erred in:

(1) rejecting plaintiff’s demands against the dismissed defendants;
(2) awarding only $15,000.00 covering both general and special damages; and
(3) failing to recognize in its judgment that the shooting of plaintiff was done intentionally and not negligently or accidentally.

The defendant, Rickey Demouchette, has answered plaintiff’s appeal and contends that the judgment rendered by the district court is not supported by the evidence.

On September 7,1977, at approximately 6 P.M., plaintiff was accousted by Rickey De-mouchette, Bobby Benoit, and David Batiste at Arnaud’s Grocery Store in St. Martin Parish, during which he was struck by one of these three men. Approximately one hour later, while plaintiff was standing in front of the home of Sylvester Car-mouche, a truck belonging to defendant Rickey Demouchette, and occupied by defendants Linda Demouchette and Bobby Benoit, drove past the Carmouche residence, turned, and stopped. Rickey Demou-chette exited the vehicle and shot plaintiff with a shotgun. Pellets from the shotgun blast struck plaintiff in his chest, right arm, and right eye.

Following the shooting plaintiff was taken to Lafayette Charity Hospital and immediately transferred to New Orleans Charity Hospital where he remained until his release on September 27, 1977. Plaintiff brought this suit seeking to recover damages for the injuries he sustained as a result of this shooting.

Plaintiff contends that the trial court erred by dismissing his claim against defendants Linda Demouchette and Bobby Benoit. Plaintiff’s contention is premised upon his belief that the defendants conspired to shoot him, and therefore under La.C.C. Art. 2324 they should be solidarily liable for the damages he has sustained. The record, however, simply does not support a finding that any conspiracy existed.

La.C.C. Art. 2324 provides in part:

“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”
* * * * * *

The record lacks any proof tending to show that Linda or Bobby caused Rickey to shoot the plaintiff, or that they assisted or encouraged, in any way, in the commission of this act. The evidence reveals that there was clearly bad blood between Rickey and the plaintiff for quite some time, and while it is true that Rickey, Bobby, and one of their companions struck plaintiff approximately one hour prior to the shooting, it was not established by whom this was done. There is no evidence indicating that Linda or Bobby provoked, encouraged, or participated in the shooting to any extent. All of the eye witnesses to the shooting, including the plaintiff, testified that both Linda and Bobby remained seated in the truck while Rickey exited the vehicle and opened fire upon the plaintiff. In view of the above, we find no manifest error on the part of the trial judge concluding that plaintiff failed to establish any liability on the part of Linda and Bobby in connection with the shooting episode.

The trial judge, without distinguishing which portion of the award represented special or general damages, awarded plaintiff $15,000.00 for the damages he sustained as a result of his injuries. The plaintiff contends, and we think rightfully so, that, in light of the circumstances surrounding his shooting, coupled with the amount of special damages proven at trial, the trial judge abused his discretion by giving an insufficient award.

Plaintiff, at trial and on appeal, has outlined the various alleged expenses comprising his special damages. We have closely reviewed the record to determine which of these alleged expenses are properly recoverable.

Plaintiff asks for medical expenses in the amount of $3,971.00. This amount represents a $3,657.55 bill from Charity Hospital which was stipulated to by the defendants. The remaining $313.55 represents an E.K.G. test performed at Charity Hospital some two years after the shooting, and has no relation to the injuries received as a result thereof. Therefore, only $3,657.55 are recoverable as medical expenses.

Both plaintiff’s and his former employer’s uncontradicted testimony reveals that at the time of the shooting plaintiff was making $125.00 per week. As a result of his injuries plaintiff missed five months of work totalling $2,500.00. Accordingly, we find the loss of wages are properly recoverable.

Plaintiff’s sister, Rena Noel, testified that she and her three sisters, Mary Ann, Shirley, and Lou Ann, alternated sitting with plaintiff during his stay in the hospital. For their services plaintiff seeks to recover $2.50 per hour for the 580 hours and 20 minutes that his sisters stayed by his bedside. In view of the fact that at the time of these alleged services plaintiff was a patient in the hospital under the care and supervision of the hospital staff, and since the record failed to indicate that the additional supervision was mandated, we find that these alleged expenses are not properly recoverable.

Mary Ann Noel also testified and submitted with her testimony a list of alleged expenses for automobile rentals during and after plaintiff’s stay in the hospital. The majority of these expenses arose during plaintiff’s stay in the hospital. On nine separate occasions two or more cars were rented, evidently to travel from St. Martin Parish to New Orleans, at $30.00 per car. On two other occasions, while plaintiff still remained hospitalized, Mary Ann contends that she used her own automobile for the trips. On one such trip she “broke” two tires, costing $118.00. On another occasion she broke her crankshaft costing $250.00. These charges are listed in addition to Mary Ann’s charge of $30.00 per trip to travel to New Orleans. In “March or April of 1978” Mary Ann alleges that plaintiff incurred expenses of $280.00 representing $250.00 to fix her transmission, and $30.00 to drive plaintiff to the doctor. Aside from Rena’s and Mary Ann’s testimony and the two lists purporting to represent these charges, plaintiff failed to produce any other receipts to support his incurring these alleged expenses.

Absent some prearranged agreement between the plaintiff and members of his family that he would reimburse them for their compensable personal services, plaintiff is not allowed to recover for these expenses. Additionally, we feel that plaintiff has fallen short of the proof required to establish the legitimacy of these alleged special damages. Accordingly, the alleged expenses incurred for having his family members by his bedside in a time of need, and the alleged travelling expenses incurred by family members to get to plaintiff’s bedside are denied, leaving a total sum of recoverable special damages of $6,157.55.

The trial judge awarded plaintiff $15,-000.00 of which $6,157.55, as we have outlined above, represents special damages, leaving $8,842.45 presumably representing the award for general damages.

For the reasons hereinafter assigned we find that the trial judge abused his discretion in awarding general damages.

The facts are essentially undisputed. On September 7, 1977, as plaintiff stood in front of his friend’s home, the defendant, Rickey Demouchette, stopped his truck and without provocation deliberately shot plaintiff with a shotgun, striking him in his arm, chest, and eye. Immediately following the incident plaintiff was rushed to Charity Hospital in New Orleans where he remained for some twenty days.

On the evening of admission to the hospital plaintiff was operated on to remove shotgun pellets from his arm and chest. Thirteen days later on September 20, 1977, plaintiff underwent surgery to remove a pellet which had lodged in his eye the day of the shooting, but was not removed until later because of excess swelling. Plaintiff’s sister, Rena Noel, testified that for almost three days after the shooting plaintiff was unable to sleep due to pains in his chest and eye.

The only doctor’s report submitted at trial reveals that on the day of plaintiff’s discharge from the hospital, seven days after surgery, his vision in his right eye was limited to light perception only. The introduction of this report was stipulated to by the defendants. Additionally, plaintiff testified at trial, January 27, 1981, that his right eye still hurt him at times, and vision of his right eye, as a result of the shooting, is reduced to a blur.

As a result of all of this tragedy, plaintiff runs the risk of being functionally blind in his right eye for the remainder of his life, and should he later, accidentally or otherwise, lose sight of his left eye, he has lost the opportunity to rely on his right eye for vision. As such we find that the trial judge erred by limiting recovery for general damages to approximately $8,800.00 where circumstances dictated a much higher award.

Our Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979), established the test to be followed in order to alter the trial court’s award of general damages. Only after articulated analysis of the facts discloses an abuse of discretion, may the award on appellate review for articulated reasons, be considered insufficient. In order to determine an appropriate award for general damages the appellate court should apply the test of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and we quote:

“We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must dearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

We have closely reviewed the jurisprudence insofar as it relates to the quantum on eye injuries arguably similar to the one before us. Whereas there are many cases dealing with the partial to total loss of sight in one eye, they all involve circumstances quite different from those confronted here. Upon studying the awards granted in these cases, which awards range from $25,000.00 to $150,000.00, and considering the mitigating or aggravating circumstances in each compared to the ease before us, we feel that the lowest point which is reasonably within the discretion afforded this Court for the above described injuries is $25,-000.00 for general damages.

Finally, plaintiff asks this court to amend the trial court’s judgment to include in said judgment wording which indicates the intentional or deliberate nature of this tort. In the first paragraph of the judgment the trial judge specifically adopts the reasons for judgment contained in his written opinion dated January 28, 1981, as amended March 11,1981. In his amended reasons for judgment the trial judge added the following sentence to his findings of fact, to-wit:

“The shooting of plaintiff by Rickey De-mouchette was done intentionally and not negligently or accidentally.”

We conclude, because of the circumstances set out in the preceding paragraph that the judgment, by referring to the judge’s written reasons, in effect, recognizes the intentional nature of the tort in this case, and inasmuch as we reach the same conclusion as the district judge concerning the intentional nature of this tort, we see no reason to order a recasting of the judgment as suggested by appellant.

For the above and foregoing reasons the judgment of the trial court is amended to increase the award of $15,000.00 granted below to $31,157.55, this award representing the total of general and special damages outlined above. In all other respects the judgment of the trial court is affirmed. Costs at trial and on appeal are to be taxed against defendant Rickey Demouchette.

AFFIRMED AS AMENDED.

      . Fairchild v. Brian, 354 So.2d 675 (La.App. 1st Cir. 1977); Walker v. Champion, 288 So.2d 44 (La.1973); Outlaw v. Bituminous Insurance Co., 357 So.2d 1350 (La.App. 4th Cir. 1978), writ denied, 359 So.2d 1293 (La.1978); Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976); Sistrunk v. Aetna Casualty and Surety Company, 267 So.2d 784 (La.App. 2nd Cir. 1972).

      . See cases cited in footnote 1.

      . When determining the range in which a proper award will fall, proper evaluation mandates that consideration be given to any aggravating or mitigating circumstances. We feel that it is significant that the injury inflicted upon plaintiff was done intentionally, deliberately, and without justification.

      . Plaintiffs request arises out of his wish to avoid discharge of this indebtedness should the defendant, Rickey Demouchette, subsequently file for bankruptcy.


author: BYRNES, Judge. GULOTTA, Judge,

text:
    AUDUBON PARK COMMISSION v. CIVIL SERVICE COMMISSION of the City of New Orleans, et als.
    No. 12466.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Ralph D. Dwyer, Jr., Many, Lo Coco & Dwyer, New Orleans, for defendant-appellant Civil Service Commission of the City of New Orleans.
    Henry W. Kinney, New Orleans, for plaintiff-appellee.
    Before GULOTTA, BYRNES and WILLIAMS, JJ. Judge JAMES C. GULOTTA, respectfully dissents and assigns reasons.
   BYRNES, Judge.

This is an appeal from a ruling, granting injunctive relief in favor of the Audubon Park Commission (hereinafter called APC) prohibiting the Civil Service Commission for the City of New Orleans (hereinafter called the CSC) from requiring the APC to issue its payroll checks through the city wide resource allocation management system (hereinafter called RAMS).

The issues presented on this appeal are whether the CSC is impowered under Article X of the Louisiana Constitution of 1974 to control the payroll fund and disbursements to the employees of the APC and whether the CSC has promulgated the appropriate rules that would authorize them to require the APC to become a part of the RAMS system.

Louisiana Constitution of 1974 Article X, Sec. 10(A)(1)
Provides; each commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualification, political activities, employment conditions, compensation, and disbursements to employees and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and of the merit system of civil service herein established. It may make recommendations with respect to employee training and safety. Nothing herein shall prevent the legislators from enacting laws supplementing these uniform pay plans for sworn, commissioned law enforcement officers of the Division of State Police, Department of Public Safety and regularly commissioned officers of the Enforcement Division of the Department of Wildlife and Fisheries.

It is clear to this court that Art. X does indeed give the CSC powers to adopt rules controlling the disbursement of the City Agencies payrolls. Article X’s broad language gives each commission broad and general powers to administer and regulate the classified service including the power to adopt rules for regulating compensation and disbursements to employees, and other personnel matters and transactions.

Pursuant to this broad rule making power granted by the Constitution, the CSC has a set of rules pertaining to independent agencies of the City of New Orleans.

Rule X of the CSC, entitled “Records”, is a generalized statement of the respective duties of the director of the CSC as well as the various appointing authorities of the various agencies.

Section 1.1 of Rule X states, “It shall be the duty of each appointing authority to install a system of payroll and attendance records. It shall be the duty of the Director to advise and assist appointing authorities in establishing systems of payroll and attendance records. Rather than submit his payroll records to the RAMS system, the Director of the Audubon Park Zoo, the appointing authority, submits his payroll to APC’s own private accounting firm. From this, is generated the payroll checks for the APC employees as well as a tally sheet which is forwarded to the Director of the CSC, after each pay period. The Director of the CSC, in a laudable attempt to streamline the record keeping of the CSC, has instituted the RAMS system.

Ostensibly under Rule X, Sec. 1.1 of the CSC rules, the words advise and assist read in the context of the Rule do not mean mandate. However, we must note that the CSC has the right to promulgate or amend Rule X, and once done, it would be enforceable as to the APC. In light of this, we find no authority in these rules, either express or implied, which currently gives the CSC powers to mandate that APC relinquish their payroll functions to the RAMS system.

Accordingly, we affirm the lower court decision.

GULOTTA, J., respectfully dissents and assigns reasons.

GULOTTA, Judge,

dissents.

I respectfully dissent.

As pointed out in the majority opinion, Louisiana Constitution of 1974, Article X, Section 10(A)(1) empowers the Civil Service Commission with rule making power in connection with “disbursements” to employees. Unlike the majority, I conclude the rules adopted by the Commission (rules 1.1, 1.2, 1.3, 2.1 and 4.1) are sufficient to require the Audubon Park Commission to come under the umbrella of centralized payroll implementation.

The Civil Service Commission has the responsibility to monitor payroll disbursements to Audubon Park Commission employees, and the present rules adopted by the Civil Service Commission seek to satisfy that responsibility. I fail to understand why the APC has refused to come under the RAMS system while apparently acknowledging that a rule can be adopted by the Civil Service Commission in language acceptable to the APC. I would reverse the judgment of the trial court and order compliance by the APC.

      . State Civil Service Commission v Audubon Park Commission, 99 So.2d 920.
      This court held that the Audubon Park Commission was an independent agency of the City of New Orleans, and therefore the Audubon Park Commission falls under the jurisdiction of the Civil Service Commission.

      . Rule X CSC. Sec. 1.1, 1.2, 1.3, 2.1, 4.1,
      1.1,It shall be the duty of each appointing authority to install a system of payroll and attendance records. Each payroll shall show the name of the employee, the official class title, the period for which payment is proposed, the rate of pay, and the amount of proposed payment. Such system or systems shall be so designed as to facilitate the maintenance of adequate personnel records and to eliminate duplication of accounting and reporting to the fullest extent practicable. It shall be the duty of the Director to advise and assist appointing authorities in establishing systems of payroll and attendance records.
      1.2, The appointing authority shall certify on each payroll or subsidary document, which shall be made available to the Director of Personnel, the fact of continuance of authorization, employment of a person in a position, the fact of the actual rendering of service in the position or absence of duty with pay on duly authorized leave, the actual number of hours of attendance on duty or other satisfactory way of describing the time worked in the payroll period.
      1.3, No payment for personal services shall be made by any department or fiscal officer thereof to any employee in the classified civil service of the City until after certification by the Director that such payment is authorized and is in conformity with these rules. The Director constitutes certification within the meaning of this rule.
      2.1, The Director shall prescribe forms on which appointing authorities shall certify the fact of lawful creation of a position. The Director shall also indicate on these forms the proper allocation of the position and the rate of pay at which payment is to be made. When submitted to the Director of Finance, in the case of those departments where the Director of Finance prepares departmental payrolls are not prepared by the Director of Finance, these forms shall constitute authorization for the initial placement of the name of the person on a payroll. No person shall then be removed from a payroll, except in accordance with the Law and Rules.
      4.1, The Director may, from time to time, examine departmental payrolls and related records to determine whether of not the persons on such payrolls have been appointed, transferred, reinstated, continued or otherwise employed in violation of any provision of the Law and Rules or are being paid at a rate other than the duly authorized rate.


author: GUIDRY, Judge.

text:
    Lorris Ann ARDOIN, Plaintiff-Appellee, v. Kennith Rayburn DUPREE, Defendant-Appellant.
    No. 82-67.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 24, 1982.

      Norman L. Williams, Lake Charles, for defendant-appellant.
    Nathan A. Cormie, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, FORET and STOKER, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

Kennith Rayburn Dupree, defendant-appellant, appeals from a judgment condemning him to pay $350.00 per month child support to plaintiff-appellee Lorris Ann Ar-doin. We dismiss the appeal as not being timely filed.

This action was tried on August 11, 1981. On August 13, 1981, judgment was read, rendered and signed in favor of plaintiff-appellee and rejecting defendant-appellant’s demands. Appellant did not apply for a new trial. On November 9, 1981 the appellant submitted a new judgment to the trial court to have signed contending the judgment of August 13, 1981 was not approved as to form by the attorneys for both parties. On December 9, 1981, appellant applied for and was granted a devolutive appeal. Under these circumstances, we dismiss the appeal ex proprio motu.

When an appellant fails to timely take and perfect his appeal, the appellate court lacks jurisdiction to hear the appeal. In such instances, the appellate court may, on its own motion, recognize its lack of authority to entertain the appeal and dismiss same. Siracusa v. Kramer, 271 So.2d 546 (La.App. 1st Cir. 1972).

Article 1951 of the Code of Civil Procedure provides for permissible amendments to judgments by the trial court.

Art. 1951.
A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

The amendment made in the judgment signed on November 9, 1981 was one permitted by LSA-C.C.P. art. 1951 authorizing an amendment of the final judgment signed on August 13, 1981. The judgment of November 9, 1981 altered the phraseology by qualifying that child support was being increased from the sum of $100.00 per month to the sum of $350.00 per month, as opposed to1 the judgment of August 13, 1981 which stated that appellant would pay increased child support in the amount of $350.00 per month. Therefore, it is clear to this court that the substance of the two judgments, the award of $350.00 per month child support, has not been altered.

The time delays for taking an appeal for a judgment involving child support are provided in LSA-C.C.P. Articles 2087, 3942 and 3943 which provides as follows:

Art; 2087. Delay for taking devolutive appeal
Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.
Art. 3942. Appeal from judgment granting or refusing annulment, separation, or divorce
An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1) — (3).
Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.
Art. 3943. Appeal from judgment awarding custody or alimony
An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.

No motion for a new trial was filed by plaintiff-appellant. The seven days for that application and the thirty (30) days for perfecting a devolutive appeal elapsed before any action was taken by appellant. Since the order of appeal was obtained after applicable delays, the appeal must be dismissed.

APPEAL DISMISSED.


author: HAWKINS, Justice

text:
    Patsilu Sheely REEVES v. Carl Montgomery REEVES.
    No. 53241.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Rehearing Denied March 31, 1982.
    Harlon H. Varnado, Eddie H. Bowen, Jackson, for appellant.
    Richard E. Stratton, III, Brookhaven, for appellee.
    Before SUGG, P. J., and WALKER and HAWKINS, JJ.
   HAWKINS, Justice

for the Court.

Patsilu Sheely Reeves appeals from a final decree of the Chancery Court of the First Judicial District of Hinds County granting her a divorce from her husband, Carl Montgomery Reeves, but only allowing her $6,000.00 lump sum alimony, and decreeing sole ownership in Mr. Reeves of certain certificates of deposit in both their names.

Her appeal has the following assignments of error:

(1) The trial court erred in awarding appellant an insufficient amount in lump sum alimony;
(2) The lower court erred in not awarding appellant a monthly sum for support;
(3) The trial court erred in not awarding the appellant one-half (lA) of the certificates of deposits jointly owned by appellant and appellee.
There is no cross appeal. We reverse.

Mr. and Mrs. Reeves married July 23, 1972, and finally separated October 23, 1980. They have no children. Her bill of complaint for divorce on the ground of habitual cruel and inhuman treatment was filed October 24, 1980. She was 31 at the time of the trial in March, 1981. Following their marriage in Starkville, they moved to a one-room apartment in Jackson. Mr. Reeves was employed with the Prudential Insurance Company. When they married, neither owned any realty in Jackson. From their marriage until March, 1973, Mrs. Reeves assisted her husband in his insurance business, typing letters and insurance proposals, looking up numbers in the daily credit report, calling people about mortgage insurance, and taking clients’ messages. Mr. Reeves remained with Prudential until the middle of 1978.

Mrs. Reeves worked as a social hostess for Mrs. William Waller from March, 1973, until December, 1974. She then got a job at Hinds Junior College, and eventually taught the hotel-motel-restaurant management program. While employed with Hinds County Junior College, her annual salary increased from $11,555.52 in 1976 to $16,850.00 in 1979. During this time, she attended courses in Business Education one or two nights a week at Mississippi College in 1978. With her salary, she made contributions to the household, paying the utility, grocery and cleaning bills. In December, 1979, she quit her employment, and thereafter worked full-time for her husband.

They purchased in their own names and moved into a house on Glen Mary Street. The house was in poor condition, and Mrs. Reeves worked with her husband, as well as the carpenter, laying tile, renovating the bathroom, removing a ceiling, painting and doing general repair work to the house. The purchase money for the house was financed from funds from Mr. Reeves’ father. After improvements were made, Mr. Reeves had an opportunity to sell the property at a profit, and he asked Mrs. Reeves to sign the deed and split the profit of approximately $9,000.00. She signed the deed, but never received any of the profit. Mr. Reeves used the profit to invest in a savings account in the name of his mother and himself. At the time of their separation, the parties owned in their joint name a residence on 5890 Ferncreek Drive in Jackson. Although he did not leave Prudential Insurance Company until 1978, Mr. Reeves formed a company called “Carl Monty Reeves Properties” in September, 1977, and he and Mrs. Reeves started buying houses through a joint bank account. Mrs. Reeves assisted by writing checks, reconciling bank statements, picking up building materials, keeping track of materials, collecting rents, and doing whatever she or her husband felt was necessary to promote the business. She worked from an office they had at their home until December, 1979, when she quit her job. Thereafter she worked full-time at the business office, and did manual labor repairing one of the rental properties. She had her own office in the business office, and helped in collecting rent, preparing leases, paying bills, keeping records, and in generally assisting her husband in the conduct of the business.

Mrs. Reeves received no salary or financial remuneration for any of the work she did during their marriage. All properties were purchased in the sole name of Mr. Reeves, with the exception of their home. He told her that by their working together they could build for their future.

When the parties married, Mr. Reeves told his wife they should save as much as they could and invest it so that they would be able to do what they wanted in later years.

The first property purchased by Mr. Reeves consisted of 35 acres in Lincoln County. Joint funds of the parties were used to make payments on the property, and there were three payments which came from funds Mrs. Reeves had earned or borrowed, namely: November 23, 1975 — $1,-000.00; November, 1976 — $1,455.00; and May 27,1977 — $1,430.00. Unknown to Mrs. Reeves, Mr. Reeves deeded this property to his mother, Mrs. Clyde M. Reeves, and there is evidence that Mrs. Reeves intended to execute a deed of this property back to her son, but never did.

After the parties separated in October, 1980, Mrs. Reeves was unable to secure employment, and went to Monroe County to live with her mother. Her mother had to support her, and even loaned her the money to pay her attorney’s fees in the litigation. Mrs. Reeves was unemployed at the time of the trial.

Mrs. Reeves ground of habitual cruel and inhuman treatment was supported by corroborating evidence, including photographs.

At the trial, the chancellor awarded a final divorce to Mrs. Reeves, but was of the opinion she was able to support herself, and should not receive any permanent alimony. The chancellor was of the opinion she should receive lump sum alimony in the amount of $6,000.00, payable over a six-month period.

The record reflects that Mr. Reeves accumulated a great deal of property, and that his wife materially assisted him in his business, and in his investment practices. She invested some of her own money, as well as funds from their joint account. Additionally, Mrs. Reeves paid the grocery, utility and cleaning bills, which enabled Mr. Reeves to invest additional funds in properties.

On August 31, 1979, Mr. Reeves filed a financial statement with a local bank showing his net worth to be $1,338,500.00. On September 30, 1980, he filed another financial statement with the same bank showing his net worth to be $2,529,800.00. He had certificates of deposit with the Rankin County Bank totaling $106,436.00 which were in force and effect at the time of the trial. In addition to this, Mr. Reeves owned a Lincoln automobile and several other motor vehicles, and there was a great deal of jewelry, gold, silver, and rare coins which had been accumulated during their marriage.

All of the property was in the name of Mr. Reeves, with the exception of the home of the parties at the time of their separation, and five certificates of deposit. Specifically, the five certificates of deposit in the names of both the parties were:

(1) Certificate No. 3300AR dated March 13, 1978, in the principal sum of $2,000.00 with the Rankin County Bank payable to Carl M. Reeves and Patsilu S. Reeves, either of them or the survivor thereof;

(2) Certificate No. 3301AR dated March 13, 1978, in the principal sum of $2,000.00 with the Rankin County Bank payable to Mr. and Mrs. Reeves, either of them or the survivor thereof;

(3) Certificate No. 3302AR dated March 13, 1978, in the principal sum of $2,000.00 with the Rankin County Bank payable to Mr. and Mrs. Reeves, either of them or the survivor thereof;

(4) Certificate No. 3304AR dated March 13, 1978, in the principal sum of $2,000.00 with the Rankin County Bank payable to Mr. and Mrs. Reeves, either of them or the survivor thereof; and

(5) Certificate No. 1050BC dated August 22, 1980, in the principal sum of $11,117.95 with the Rankin County Bank, payable to Carl Monty Reeves or Patsilu S. Reeves.

The chancellor decreed that the sole ownership of these certificates in the joint names of the parties was in Mr. Reeves, and that Mrs. Reeves had no right, title or interest in them.

Mrs. Reeves complains on appeal that she should have been awarded a larger sum in lump sum alimony, permanent alimony, and adjudged the owner of a one-half interest in the certificates of deposit enumerated above.

In Clark v. Clark, 293 So.2d 447 (Miss.1974), we held that where the wife has, without salary or remuneration, worked in her husband’s business and contributed to the accumulation of assets, she is entitled to some share therein. This is such a case. Indeed, in this case Mrs. Reeves contributed her personal funds towards her husband’s entrepreneurial ventures. We agree with the appellant that the award of only $6,000.00 lump sum alimony was so low as to shock the conscience.

This Court would not have considered a lump sum award of $100,000.00 or ten percent (10%) of the husband’s net estate unreasonable or unfair under the undisputed facts in this case. We are not suggesting a ceiling or the actual amount the chancellor should award, but we do intend to signal some sense of proportion in cases of this nature. In Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973), we recognized the propriety of a substantial lump sum award where the husband had accumulated considerable property and the wife’s contribution was doing her part as housewife. These holdings, as we stated in Clark, do not make Mississippi a community property state, but further delineate the serious responsibility of a chancellor to make intelligent and fair provision for the wife.

Although Mrs. Reeves was unemployed from the time of her separation through the trial, and also testified that she had been unable to find employment, she offered no evidence as to her future financial needs in the way of support from her husband. The proof showed that she had held responsible and well-paying jobs, and that she is trained and educated to find adequate employment. The chancellor was not in error in failing to provide for permanent or continuing alimony. A reasonable lump sum alimony award can make adequate provision for Mrs. Reeves and do equity in this case.

As to the ownership of the certificates of deposit in the names of both parties, in the case of Drummonds v. Drum-monds, 248 Miss. 25, 156 So.2d 819 (1963), this Court adopted the majority rule that joint accounts are presumed to be vested in the names as given on the deposit as equal contributors and owners in the absence of evidence to the contrary, but that the intention of the parties is the controlling factor. We further held that where a controversy arose as to the ownership, evidence is admissible to show the true situation. Mr. Reeves did not testify in this case, and there is no proof in the record showing an intention by the parties to vest ownership in any manner other than that which is shown on the face of the certificates. While the cross-examination of Mrs. Reeves might indicate, without complete persuasion, that the funds for the purchase of the certificates came from receipts or income of Mr. Reeves, this in no way rebuts the presumption of ownership in them both.

We therefore reverse and remand this case for a hearing on the amount which should be awarded as lump sum alimony, and reverse and render judgment for Mrs. Reeves as to ownership of a one-half (V2) interest in the five certificates of deposit held jointly.

Mrs. Reeves will be awarded an attorney’s fee of $1,250.00 for the services of her attorney on this appeal.

REVERSED AND RENDERED AS TO FIVE JOINTLY OWNED CERTIFICATES OF DEPOSIT; REVERSED AND REMANDED AS TO LUMP SUM ALIMONY.

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

      . It might even be observed that one of the best justifications for lump sum alimony awards is the fact we are not a community property state.


author: WALKER, Justice, BOWLING, Justice,

text:
    CONSOLIDATED AMERICAN LIFE INSURANCE COMPANY v. William R. TOCHE, Sr.
    No. 52934.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Rehearing Denied March 31, 1982.

      Heidelberg, Woodliff & Franks, Sam E. Scott, Keith R. Raulston, Jackson, for appellant.
    Levi & Denham, Dempsey M. Levi, Ocean Springs, for appellee.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of Jackson County wherein William R. Toche, Sr., the appellee, filed his declaration against the defendant, Consolidated American Life Insurance Company, demanding damages, both actual and punitive. Consolidated answered, denying liability. The matter was submitted to a jury which returned a verdict for $10,000 in actual damages and $20,000 in punitive damages against the insurance company.

Thereafter, Consolidated filed its motion for J.N.O.V. or a new trial. The court ordered a new trial on damages only unless Toche consented to a reduction of the verdict for actual damages from $10,000 to $1,094.65. Toche consented to the reduction and was granted a judgment in the amount of $1,094.65 actual damages and punitive damages in the amount of $20,000 against the appellant, Consolidated American Life Insurance Company.

Feeling aggrieved, Consolidated American Life Insurance Company has appealed.

We affirm the judgment as to actual damages in the amount of $1,094.65, but reverse and render as to punitive damages.

This case involves the question of whether the action of the insurance company in initially denying benefits to Mr. Toche and then, after allowing the claim, erroneously refused to pay an additional $29.71 per month which was due to him and for which he had paid a premium, acted with some element of aggression or some color of insult, malice or gross negligence, evidencing a ruthless disregard for the rights of others so as to take the case out of the ordinary rule. Generally, punitive damages are not recoverable for the breach of a contract unless such breach is attended by intentional wrong, insult, abuse or such gross negligence as to consist of an independent tort. Standard Life Ins. Co. of Indiana v. Veal, 354 So.2d 239 (Miss.1977).

We have attempted to make it clear that since punitive damages are assessed as an example and warning to others, they should be allowed only with caution and within narrow limits. If an insurance com-’ pany has a legitimate reason or an arguable reason for failing to pay a claim, punitive damages will not lie. Neither will they lie in cases of simple negligence involving miscalculation of premiums or benefits. For an excellent discussion of when punitive damages are allowable against an insurance company for failure to pay benefits, see Standard Life Insurance Company of Indiana, supra.

The underlying question here is whether the evidence in this case supports an award for punitive damages?

On December 5, 1978, Toche obtained a loan from the First Mississippi National Bank in the amount of $2,965.92. At the same time he obtained, through the bank, credit life and disability insurance covering the loan and paid a premium of $88.97 for disability and $59.31 for credit life. Consolidated American Life Insurance Company was the insurer. Mr. Toche also had two other loans outstanding at that time, one dated September 26,1977, in the amount of $6,884.44, and another dated March 24, 1978, in the amount of $1,126.80. On December 5, 1978, the same day that he applied for the loan of $2,965.92, Toche visited a Dr. Alexander for what he thought was a chest cold that had been bothering him for the past five days. Thereafter, he experienced chest pain and inflammation of the throat intermittently until December 29, 1978 (approximately three weeks after his last loan was obtained from the bank), when he visited another physician, Dr. Grace, who ordered chest x-rays. When Toche’s symptoms persisted, Dr. Grace referred him to a third physician, Dr. Heitz-man.

After a surgical diagnostic procedure, Mr. Toche was advised on January 22, 1979, forty-eight days after his last loan application, that he had melanoma (a form of cancer) of the lungs. On January 23, 1979, surgeons removed Mr. Toche’s lung. Mr. Toche remained in the hospital approximately one and one-half weeks, and received chemotherapy treatments. It was necessary for Mr. Toche to quit his job as a senior scheduler at Ingalls Shipyard, and he also became inactive in the daily operation of the grocery store which he owned. The record also reveals that Mr. Toche suffered from malignant melanoma several years earlier, which required the surgical removal of one of his eyes. Mr. Toche’s claims for benefits directed to the insurance company arrived in the Consolidated offices in Jackson on May 9, 1979. Upon receipt of the claims, Mr. John W. Emory, Jr., Vice President of Consolidated in charge of credit insurance, pursuant to an authorization by Mr. Toche, ordered medical records immediately from the Ocean Springs Hospital as well as the bank.

Upon receipt of the medical information on May 21, 1979, Mr. Emory personally reviewed it and based upon this review, on May 22,1979, he was of the opinion that the claims based on the September 26, 1977, loan and the March 24, 1978, loan should be allowed, but was of the opinion that the claim with respect to the loan of December 5, 1978, should be denied. Mr. Emory was of the opinion that Mr. Toche’s lung cancer preexisted the inception date of the policy (December 5, 1978) and, therefore, was excluded from coverage under the terms of the policy.

The appellant promptly paid the installments on the first two loans, although it was not the disability insurance company which had written the original credit disability insurance. These notes were paid pursuant to an internal agreement between the bank and appellant. John W. Emory, Jr. explained that the bank “can put us out effective August 1,1980 and put in another company, simply by notifying us.” In that event Toche’s claim would be picked up by a new company. Emory went on to say that when the company picks up the insurance of another carrier, they do not go back and research to see if anyone is in good health or bad health. Whatever the note is, the company picks it up subject to the limitations.

Mr. Emory’s decision to decline payment of the December 5, 1978, note was based upon his prior dealings with claims for twenty-five (25) years or more and his honest opinion that the cause of disability in all probability had its beginning prior to December 5, 1978, and therefore was not covered under the terms of Toche’s policy.

Thereafter, supplemental medical information was supplied to Emory. On or about July 16, 1979, the bank urged Emory to pay the December 5, 1978, loan, stating that Toche had been a good customer of the bank.

On October 11, according to the testimony of Emory, he made the decision to pay the December 5, 1978, note installments subject to a limitation of $300.00 per month being placed on the total amount of the notes due each month on all three loans. This had the effect of reducing the payment made by the insurance company on the third loan from $123.58 — the amount due each month to the bank, to $93.87 per month. This left the sum of $29.71 per month for Toche to pay on the December 5, 1978, installment loan.

Based upon the facts presented by this record — where the very onset of Mr. Toche’s illness was traceable to the very day that he obtained the last loan, it can hardly be contended that the insurance company did not have an arguable reason for initially denying Toche’s claim of benefits involving the third loan, even though it was ultimately determined that the benefits should be paid. Certainly, there is no element of aggression, insult, malice or gross negligence which would evince a ruthless disregard for the rights of Toche by his insurance company.

In appellee’s brief, he states:

It is the contention of the Appellant that it acted in good faith and your Appellee agrees that the Appellant acted in good faith up to a point. The Appellant committed bad faith at that point in time when it realized that the disease of Toche did not come about on a specific date and when it elected to pay the claim of Toche but imposed a limitation which by the clear and unambiguous language of the policy had no right to impose. As stated, even after Appellant had decided to pay the claim of Toche, it then committed an additional wrongful and wanton act constituting gross negligence as it applied to Toche. Emory had testified ... that Toche had only ©he loan with an effective date after the commencement of the master policy. He was therefore not subject to the limitation as set forth in the master policy....

Assuming that the insurance company erroneously applied the $300.00 per month limitation on the amount of the total installments which it would pay on Mr. Toche’s loan, this record does not indicate, nor does the appellee argue that this error was even brought to the attention of the insurance company until after suit was filed. At most, this appears to be no more than a clerical error or honest mistake on the part of the agent of the insurance company. There is nothing about this conduct which would warrant the imposition of punitive damages.

For the foregoing reasons, the judgment of the circuit court is affirmed as to actual damages in the amount of $1,094.65, but is reversed and judgment is rendered here for the defendant, Consolidated American Life Insurance Company, on the question of punitive damages.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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

BOWLING, J., dissents.

HAWKINS and DAN LEE, JJ., take no part.

BOWLING, Justice,

dissenting:

In my opinion the question of punitive damages was properly submitted to the jury. There are some facts that need to be brought out that are not related in the majority opinion. Appellant company was engaged in selling what is commonly known as “credit life and disability insurance.” It was handled in the following manner: the company issued a policy to the bank only with the bank being specifically named as the insured and the policyholder. In addition to this, the banker handling the selling of the credit life insurance was specifically licensed by the insurance department as an insurance salesman, although he admittedly acted in a dual purpose; that is, as agent both for the insurer [appellant herein] and the bank. Both the insurance company and the bank received part of the premiums collected. It is admitted that when appel-lee secured his loan, it was handled in the same way it had been handled in the past many years. Admittedly appellee was a good customer of the bank, as the record clearly reveals the only reason the claim was partially paid five months after claim was because of the business relationship between appellant insurance company and the bank. This was testified to positively by the appellant’s agent.

According to the majority opinion, the appellant’s claims manager had an “honest opinion that the cause of disability in all probability had its beginning prior to December 5,1978.” This is amazing to say the least. At the time this opinion was formed, the record is undisputed that the claims manager had reports from doctors who examined and treated appellee that stated there was no way for them to have known that appellee had cancer until January 19, 1979. He was treated for only cold and bronchitis prior to that time. Furthermore, according to the claims manager, the company had a full-time medical director, who was not consulted or shown any of the claim forms or reports and was not asked to give any medical advice to anyway contradict the reports of the treating physician.

When the licensed insurance salesman acting for appellant company and its policyholder, the bank, completed the application for and the actual preparation of the installment note on December 5, 1978, it is undisputed that the only mention of credit disability insurance was the appellant’s agent asking appellee if he wished such insurance. Undisputedly, all appellee said was “handle it as you always have.” Whereupon appellant’s agent and the bank policyholder’s agent added a full credit disability premium to the installment note, “as he always had done.” Nothing whatever was mentioned as to appellee’s health. He was not required to make any type of statement either written or oral pertaining to his health then or at anytime in the past. His health condition had nothing whatever to do with the loan or the credit disability insurance for which, as stated above, appel-lee was charged the full premium beginning the day the note was executed.

As hereinbefore stated, the insurance contract was between appellant insurance company and the bank. Appellee knew nothing whatever about its terms and was given no information whatever about its terms. This brings me to the glaring error in the majority opinion. Appellant’s agent and the bank’s agent, who was one and the same person, at the time the note was executed, charged appellee the full insurance premium for the entire amount of the note, knowing full well at that time, that in the event of disability, the company would not pay that amount. He knew, but appellee did not know, of the $300 limit in the policy. Appellee was forced to pay for something beginning that day that the agent knew he would not get.

With deference, the majority opinion slides over this situation by saying that this “appears to be no more than a clerical error or honest mistake.” We have read this record several times and there is not one word or one indication whatever that the positive action of the agent in charging the full premium was an error. In this connection, it is important that no one with the bank, including the agent, testified. If an error had been made, would it not have been a simple matter for the banker and agent who dealt with Toche to have run down to the courthouse and said it was an error. The only defense witness, the claims manager from Jackson, made no indication of error in his testimony. If it had ever crossed the minds of appellant’s management, the bank or their attorneys that an error had been committed, would that not have been set out in the pleadings? With deference, the majority is acting solely on supposition and speculation. In every jury case that is tried the court instructs the jury that its verdict cannot be based on supposition and speculation. How in the world can we now affirm that rule that has been in effect ever since there have been courts, and then decide an appeal here on supposition and speculation?

In my opinion the deliberate charging of the extra premium, when the agent knew the benefit would not be paid and without saying anything whatever to appellee, constituted a willful, deliberate and independent tort that required that the jury receive the punitive damages instruction. We have to bear in mind that what we are deciding here is whether or not the lower court was correct in instructing the jury that it “could” in its discretion return a verdict for punitive damages. There was no legal determination by the court that such damages were applicable.

I would affirm the punitive damage award and direct that a remittitur be entered because of its amount.

      . Since the opinion of Standard Life Insurance Company of Indiana v. Veal, supra, this Court has decided several cases involving the issue of punitive damages in insurance contracts. Punitive damages were allowed in the following: Travelers Indem. Co. v. Wetherbee, 368 So.2d 829 (Miss. 1979). Punitive damages were denied in the following: Bellefonte Ins. Co. v. Griffin, 358 So.2d 387 (Miss. 1978); Gulf Guaranty Life Ins. Co. v. Kelley, 389 So.2d 920 (Miss. 1980); State Farm Mut. Auto. Ins. Co. v. Roberts, 379 So.2d 321 (Miss. 1980); Aetna Cas. & Sur. Co. v. Steele, 373 So.2d 797 (Miss. 1979); New Hampshire Ins. Co. v. Smith, 357 So.2d 119 (Miss. 1978).


author: ROY NOBLE LEE, Justice,

text:
    James CUTRER and Royce Doyle Lewis v. STATE of Mississippi.
    No. 53188.
    Supreme Court of Mississippi.
    Feb. 24, 1982.
    Rehearing Denied March 31, 1982.
    Harry L. Kelley, Jackson, for appellants.
    Bill Allain, Atty. Gen., by Wayne Snuggs Asst. Atty. Gen., Jackson, for appellee.

      Before BROOM, ROY NOBLE LEE, and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

James Cutrer and Royce Doyle Lewis were indicted, tried and convicted in the Circuit Court of Forrest County, Honorable Jack B. Weldy, presiding, for the possession of a controlled substance, methamphetamine. Cutrer was sentenced to serve a term of three years with the Mississippi Department of Corrections, the last two years suspended, and fined $3000, and Lewis was sentenced to serve a term of three years with the Mississippi Department of Corrections and fined $3000. Both have appealed to this Court.

The appellants assign five errors in the trial below, but the only assignment of error which merits discussion is whether or not the lower court erred in declining to direct a verdict of not guilty for the appellants.

On the night of September 18, 1980, between 1:30 and 2:00 a.m., Officers Stan Kittrell and Lesley Jones of the Hatties-burg Police Department were riding in Officer Jones’ patrol car. He stopped at a convenience store where Officer Kittrell had left his own patrol car and Officer Kittrell got out and started toward his vehicle. Officer Kittrell noticed a brown Ford station wagon without a license plate near the gas pumps of the convenience store and, as the station wagon moved out into U. S. Highway No. 49 proceeding south, he followed the station wagon and turned on the blue emergency lights. The station wagon pulled over, stopped, and Officer Kittrell got out of his patrol car, met and talked with Cutrer at the rear of the station wagon.

Cutrer said, “Well, I know why you stopped me ... for no tag.” Officer Kitt-rell asked Cutrer for his driver’s license, but he was unable to produce one, and could not prove ownership of the vehicle. Officer Kittrell directed Cutrer to the front of the station wagon, had him place his hands upon the hood and the officer then conducted a pat-down search.

Shortly thereafter, Officer Jones, who had followed Officer Kittrell, drove in behind Kittrell’s patrol car and, as Cutrer was being taken to the front of the station wagon, Officer Jones walked to the passenger side of the station wagon. He saw Lewis squirming around in the vehicle, opened the door and asked Lewis to step out and identify himself. As Lewis got out, Officer Jones noticed that he tried to kick something under the seat. Lewis produced a social security card and Officer Jones directed him to the front of the station wagon. Officer Jones then reached down to the floorboard of the station wagon on the passenger side and picked up a small gray plastic film container with a black top. It was found in the area where Lewis had attempted to kick with his right foot. Officer Jones opened the container and found two plastic bags containing a powdery substance.

Before Lewis got out of the station wagon, Officer Jones noticed a green glass between his legs, which later turned out to be vodka and orange juice. Officer Jones had seen Lewis taking a drink from the glass when the station wagon pulled out into the highway. Officer Kittrell turned to run a check on appellant’s station wagon to discover whether or not it had been stolen and Cutrer told him there was a pistol in the glove compartment. The glove compartment was locked, Officer Jones took the keys from the ignition, opened the glove compartment, and found a loaded Smith & Wesson 9-MM automatic pistol, which he confiscated. A narcotics team was summoned and they conducted a field test of the substance found in the film container, which test proved positive for drugs.

The general rule of law which applies in considering motions for directed verdicts and requests for peremptory instructions in criminal cases has been stated so many times as to be elementary. It was restated recently in Mosley v. State, 396 So.2d 1015 (Miss.1981), where the Court said:

On request for peremptory instruction, the court considers all evidence introduced which is favorable to the State, along with reasonable inferences, and, if they are sufficient to support a verdict of guilty, the request for peremptory instruction of not guilty will be denied. Warn v. State, 349 So.2d 1055 (Miss.1977). (396 So.2d at 1017)

Upon the facts stated, the threshold question is whether or not the evidence is sufficient to support the conviction of the appellants, and, since neither appellant had the contraband on his person, whether or not the evidence is sufficient to establish constructive possession against them. In Powell v. State, 355 So.2d 1378 (Miss.1978), the Court said:

The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So.2d 608 (Miss.1974). (355 So.2d at 1379)

See also Cherry v. State, 386 So.2d 203 (Miss.1980), and Curry v. State, 249 So.2d 414 (Miss.1971).

In Hamburg v. State, 248 So.2d 430 (Miss. 1971), four young boys, Bonnie and Gary Hamburg, James Smith and Mike Mitchell, went to a local nightclub in Hattiesburg. Gary Hamburg showed Mike Mitchell, who had remained in the car, an aluminum box and said, “This is LSD, said I done made one sale, I'm going in and sell it again.” Shortly afterward, all the boys left together in a Mercury automobile owned and driven by Rodney Hamburg. Gary Hamburg was seated on the front passenger side and the others were in the rear. The automobile was stopped by officers, the car was searched, and several LSD tablets were found on the floor of the automobile on the side where Gary Hamburg was sitting. The Hamburg brothers were indicted, tried and convicted for possession of LSD. In overturning the conviction of Rodney Hamburg and discharging him, the Court said:

We find no evidence in this case that connects Rodney Hamburg, the driver of the automobile, with the possession of the contraband (LSD). We are cognizant of the rule that one who is the owner in possession of the premises, or the vehicle in which contraband is kept or transported, is presumed to be in constructive possession of the articles found in or on the property possessed. Hill v. State, 234 Miss. 64, 105 So.2d 478 (1958); Bolin v. State, 229 Miss. 798, 91 So.2d 847 (1957); Shumpert v. State, 229 Miss. 730, 91 So.2d 745 (1957); Chinn v. State, 218 Miss. 724, 67 So.2d 384 (1953); Quick v. State, 192 Miss. 789, 7 So.2d 887 (1942); Williamson v. State, 191 Miss. 643, 4 So.2d 220 (1941).
The presumption of a constructive possession, however, is a rebuttable presumption and must give way to the facts proven. Pope v. State, 242 Miss. 454, 135 So.2d 819 (1961); Foster v. State, 49 So.2d 258 (Miss.1950). Moreover, the re-buttable presumption of constructive possession does not relieve the State of the burden to establish defendant’s guilt as required by law and the defendant is presumed to be innocent until this is done. Sellers v. City of Picayune, 202 Miss. 741, 32 So.2d 450 (1947).
In the instant case the State not only failed to connect the driver with the possession of the contraband (except by the presumption of constructive possession), but the witness for the State identified the person in possession of the LSD to be Gary Hamburg and not Rodney Hamburg, the driver. Thus, the State denied the presumption of constructive possession by showing facts of actual possession to be in another other than the owner and operator of the vehicle. The motion for a directed verdict as to Rodney Hamburg should have been sustained when made at the close of the State’s testimony.
(248 So.2d at 432-33)

We are of the opinion that the evidence was sufficient to support the conviction of appellant Lewis but was not sufficient to withstand a motion for directed verdict in favor of the appellant Cutrer. Therefore, the judgment of the lower court is affirmed as to Lewis and reversed as to Cutrer and Cutrer is discharged.

AFFIRMED AS TO LEWIS; REVERSED AS TO CUTRER AND CUTRER DISCHARGED.

SMITH and SUGG, P. JJ., and WALKER, BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Robert J. BERDAMI v. MISSISSIPPI STATE TAX COMMISSION.
    No. 53074.
    Supreme Court of Mississippi.
    March 10, 1982.
    Richard L. Stradley, Corvallis, Mont., for appellant.
    Bobby R. Long, James H. Haddock, Joe D. Gallaspy, Gary Stringer, Jackson, for appellee.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

Before WALKER, BROOM and DAN M. LEE, JJ.

AFFIRMED.


text:
    BYRNE, RICE & TURNER, INC. v. PEMCO, INC., et al.
    No. 53102.
    Supreme Court of Mississippi.
    March 10, 1982.
    Raymond L. Brown, David C. Frazier, MeGehee, Brown, Williams & Mestayer, Pascagoula, for appellant.
    Bryan, Nelson, Allen, Schroeder & Black-strom, Vincent J. Castigliola, Jr., Robert Dambrino, Pascagoula, for appellees.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Before WALKER, BROOM and DAN M. LEE, JJ.

AFFIRMED.


text:
    Wesley DELLAPENNA v. Paula Joan DELLAPENNA.
    No. 53346.
    Supreme Court of Mississippi.
    March 10, 1982.
    E. Michael Marks, Rufus Creekmore, Jackson, for appellant.
    Mary Lou Payne, Wilkins, Ellington & James, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before SMITH, P. J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Gaston W. BARRETT, et al. v. Garry HUGHES, et al.
    No. 53046.
    Supreme Court of Mississippi.
    March 10, 1982.
    Rehearing Denied March 31, 1982.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellants.
    Alford, Mars, Thomas & Kilgore, Herman Alford, Philadelphia, Charles L. Lewis, Jr., Deramus, Lewis & Tucker, Louisville, W. Timothy Jones, Brunini, Grantham, Grower & Hewes, Jackson, for appellees.
   Appeal from Chancery Court, Neshoba County; Edward C. Prisock, Chancellor.

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

APPEAL DISMISSED.

PATTERSON, C. J., SMITH, P. J., and WALKER, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


text:
    FIRST AMERICAN NATIONAL BANK OF IUKA, Mississippi v. Reese SENTER, Clint M. Reed and Don Kirk.
    No. 53023.
    Supreme Court of Mississippi.
    March 10, 1982.
    Douglas C. Wynn, Wynn, Bogan & Mitchell, Greenville, for appellant.
    J. Price Coleman, Smith, Downs, Ross, Trapp & Coleman, Corinth, for appellees.
   Appeal from Circuit Court, Alcorn County; Neal Biggers, Judge.

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

REVERSED AND REMANDED FOR TRIAL.

PATTERSON, C. J., SMITH, P. J., and BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.