text:
    Donald Monroe OBER v. The STATE of Louisiana, Through the LOUISIANA DEPARTMENT OF CORRECTIONS, the Jefferson Parish Sheriff's Office, Parish of Jefferson, the Jefferson Parish Corrections Center, Parish of Jefferson and Andrew George, as Sheriff of Jefferson Parish.
    No. 5-233.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Lewis & Caplan, Pete Lewis, New Orleans, for plaintiff-appellant.
    Cronvich, Wambsgans & Michalczyk, A.W. Wambsgans, Metairie, for Andrew H. George, Jefferson Parish Corrections Center and Jefferson Parish Sheriff’s Office, defendants-appellees.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

Donald Monroe Ober filed suit for injuries allegedly sustained while he was an inmate of Jefferson Parish Correctional Center on March 27, 1979. He asserts that he was sexually molested and raped by three other inmates over a three-hour period while the guard on duty watched. He named as defendants the State of Louisiana, through the Louisiana Department of Corrections; the Jefferson Parish Sheriff’s Office; the Jefferson Parish Corrections Center; and Andrew George as sheriff of Jefferson Parish.

The State of Louisiana was dismissed from the suit on an exception of no cause of action from which Ober did not appeal. Subsequently the Jefferson Parish Sheriff’s Office, the Jefferson Parish Corrections Center and Andrew George also filed an exception of no cause of action, which was upheld by the district court. Plaintiff has appealed from the judgment maintaining this second exception.

On appeal, Ober concedes that the Jefferson Parish Sheriff’s Office and the Jefferson Parish Corrections Center are not legal entities capable of being sued. He also admits that Andrew George was incorrectly made a defendant because George had not yet taken office as sheriff at the time of the incident made the basis of the suit. Ober contends, however, that his petition otherwise states a cause of action and he should be allowed leave to amend his petition to name as defendant Alwynn Cronvich, who was sheriff at the time in question.

Under LSA-C.C.P. art. 931, no evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action; the exception is triable solely on the face of the petition and any annexed documents. Article 931 thus limits the availability of such an objection as a vehicle for affirmative defenses to those which are disclosed by the petition itself. Haskins v. Clary, 346 So.2d 193 (La.1977).

We find the exception was properly maintained based on the allegations of the petition, for these allegations were insufficient to state a cause of action against these defendants.

The only facts alleged in Ober’s petition are the following: that on or about March 27, 1979, the petitioner was placed in the Jefferson Parish Correctional Center; that as petitioner had recently been in a hospital and did not feel physically capable of taking care of himself, he asked for protection but was denied same; that petitioner was placed in a cell with ten other inmates; that on the second night of his detention, from approximately 6 p.m. until 9 p.m., petitioner was sexually molested and raped by three unknown inmates in his cell while the guard on duty watched; and that petitioner was taken to the prison hospital, where he received treatment for this attack.

Although Ober alleges “negligence and derelection of duty on the part of the defendants,” he alleges no facts to establish any legal relationship between the prison guard and the defendants under which he could establish vicarious liability on the part of the defendants. Nor does he allege any facts under which he could prove defendants to be independently liable. In addition, in order for a criminal sheriff to be required to respond to allegations that he is responsible for the wrongful action of a deputy, the petition must allege that the deputy’s act was committed while he was performing an official duty and must have resulted from the wrongful manner in which such official duty was performed. Andry v. Parish of Orleans, 309 So.2d 814 (La.App. 4th Cir.1975). See also, Foster v. Hampton, 352 So.2d 197 (La.1977); Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91 (La.App. 4th Cir.1970).

These defects, however, may be cured by amendment or supplementation of plaintiff’s petition. Pursuant to the mandate of LSA-C.C.P. art. 934, therefore, we remand the case and order the trial court to allow plaintiff time within which to amend his petition.

For the foregoing reasons, the judgment of the district court is affirmed insofar as it maintained the exception of no cause of action; it is reversed insofar as it failed to allow plaintiff leave to amend his petition; and the case is remanded for further proceedings consistent with this opinion. Assessment of costs for this appeal is to await final determination of the lawsuit.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


source: Caselaw Access Project

author:
      LOBRANO, Judge.
      SCHOTT, Judge,

license: Public Domain

text:
    Karen T. VILLAVASO v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 13320.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1982.
    Edward P. Lobman, Alice M. Lewis, Lob-man & . Carnahan, Metairie, for defendant/appellant.
    Frank J. D’Amico, and Vincent J. Glorio-so, Jr., New Orleans, for plaintiff/appellee.
    Before SCHOTT, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

This lawsuit for damages was brought by Karen T. Villavaso against State Farm Mutual Automobile Insurance Company (hereinafter State Farm), Westside Oil Company, and Milton Retif, for injuries allegedly sustained in an automobile accident on January 17, 1980. At the time of the accident, Milton Retif, who was an employee of Westside Oil Company, was driving a vehicle owned by Westside Oil Company and insured under a policy issued by State Farm. Prior to trial, State Farm stipulated liability, and plaintiff agreed that any judgment would not exceed policy limits of $250,000.00. All of State Farm’s insured were dismissed with prejudice. Therefore, the only issues presented to the trial court were the extent of injuries sustained in the January 17, 1980 accident, and the amount of damages assessable.

After a trial on the merits judgment was rendered in favor of the plaintiff in the amount of $250,000.00, the policy limits. From this judgment appellant, State Farm, appeals, contending that plaintiff (appellee) was injured in a subsequent accident on March 18, 1980 and that she failed to bear the burden of proving the extent of her injury in the January, 1980 accident.

Appellee testified that the impact of the first accident caused her to be thrown forward, backwards and side to side. Although she did not seek emergency medical care immediately thereafter, she began to feel a slight aching in the neck on the evening of January 17th which gradually grew worse with each passing day until she sought medical attention January 22nd.

Dr. Frank Gomila, a general practitioner, examined the plaintiff on January 22nd for complaints of head and neck pain radiating down into her right arm. His initial diagnosis was that plaintiff was suffering from an acute cervical strain, muscle spasms, possible ruptured cervical disc, loss of posterier lordotic curve, and headaches. He prescribed a cervical collar, medication, rest and treated plaintiff with ultrasonic phys-cotherapy. The ultrasonic treatments confirmed Dr. Gomila’s diagnosis of a possible ruptured cervical disc when taken together with the radiculopathy and thus he referred her to Dr. Donald Richardson, a neurosurgeon for further diagnosis and treatment.

On January 25, 1980, Dr. Richardson examined plaintiff and diagnosed her injuries as a ruptured cervical disc, resulting from the January 17th accident. He initiated conservative treatment in conjunction with Dr. Gomila to which plaintiff responded favorably. His examination of March 10, 1980, revealed improvement and he requested that she return in six weeks. However, on March 18, 1980, she was involved in the second automobile accident and returned to Dr. Richardson on March 21, 1980. Dr. Richardson testified that plaintiff complained of cloudiness of thinking, blurred vision, nervousness, light headedness, unsteadiness, and a sensation of pressure behind her eyes all which were typical of post-concussion syndrome. According to Dr. Richardson, although she had probably sprained her neck in the second accident, that really wasn’t her primary problem. He stated: “She was having symptoms primarily related to a head injury. She had a post-concussion syndrome.”

Plaintiff’s pain in her neck and right arm continued and on June 13,1980 she consulted Dr. David Jarott another neurosurgeon. He examined her and ordered a myelogram and a discogram which revealed a C-5-6 ruptured cervical disc, which was subsequently surgically confirmed and removed at Touro Infirmary in August 1980.

Unfortunately, appellee’s symptoms did not disappear, and a further examination in January, 1981 indicated another ruptured disc at C-4-5 which went undetected in the prior exam because of a “technically inadequate discogram”. Dr. Jarrott testified that although she probably could benefit by additional surgery because of the frustrating experiences of pain after the first operation, he would recommend that she consider a second operation as a last resort only if symptoms are severe, continue or become intractable.

All three medical experts testified unequivocally that plaintiff’s cervical disc injuries resulted from the January 17th accident. This medical evidence was not contradicted.

Dr. Gomila testified, “At this time I feel that she undoubtedly suffered a cervical disc rupture as a consequence of the January accident. Therefore, Dr. Richardson and Dr. Jarrott both concur with my opinion that the initial damage to her neck was done in January and the March accident only served to exacerate all pre-existing symptoms, plus the possibility of further damage to her neck.”

“Q. Did she exhibit more neck symptoms in the January 1980 accident or the March 1980 accident?”
“A. In the first accident, the one in January.”
“Q. As a matter of fact, the cervical examination was rather normal when you examined her on March 21, 1980?”
“A. That’s correct.”

Similarly Dr. Jarrott testified, “I felt that the January accident was the original injury and that it had been an injury of the cervical disc ... she had undoubtedly sustained a cervical disc rupture as a consequence of the January accident.”

“The jurisprudence pertaining to the burden of proof in instances involving multiple accidents is well settled. A tortfeasor is liable only for the direct and proximate results of his wrongful act.”
* * * * * *
“The burden of proving both the existence of the injuries and the casual connection between them and the accident rests with the plaintiff. Such proof must be shown to a legal certainty and by a reasonable preponderance of the evidence. A mere possibility is insufficient.” Stevens v. Gulf American Fire & Casualty Co., 317 So.2d 199 (La.App. 1st Cir.1975) at p. 200.

In a personal injury suit, the test for determining whether the plaintiff proved the casual relationship between the accident and subsequent operations was whether the plaintiff showed through medical testimony that more probable than not subsequent operations were necessitated by trauma suffered in the accident. Polman v. Mohasco Corp., 371 So.2d 838 (La.App. 4th Cir.1979).

In the case at bar, appellant did not introduce any medical evidence to controvert or rebut appellee’s proof of causation. As the trial judge wrote in a very well reasoned opinion “The plaintiff produced her three treating medical experts, whose testimony was unrebutted and uncontradicted by the defendant.” Reasons for Judgment p. 1.

It is a well established rule in this jurisprudence that a witness’ testimony which has not been controverted, nor contradicted and which has been accepted by the trial court as true must be accepted by the appellate court as true. B. Segall Co., Inc. v. Trahan, 290 So.2d 854, 857 (La.1974); Sentry Ins. v. Marks, 398 So.2d 24 (La.App. 4th Cir.1981).

Appellant argues that plaintiff is bound by her attorney’s correspondence to Travelers Ins. Co., her uninsured motorist carrier for the second accident as an admission against interest. They contend that his correspondence admits that the second accident caused her ruptured discs. The only letter of significance is dated October 30, 1980, which states:

“As you can see from the medical reports of Drs. Richardson and Jarrott, although Karen was involved in two automobile collisions, one on January 17, 1980 and the second on March 19, 1980, the more serious one and the one which caused her ruptured intervertebral disc, was the March 19, 1980 accident. Accordingly, we feel that a settlement demand of $45,-000.00 upon Travelers is realistic, based upon the special damages, the degree of severity of the injuries sustained and the fact that liability is clear.”
“Please review these medical reports and we would most appreciate your contacting us immediately upon having done so, in order that we may hopefully conclude amicable disposition.”

Extra-judicial admissions made by a party’s attorney are clearly admissible as an exception to the hearsay rule. The trial court concluded that those extra-judicial statements of an attorney pursuing the advocacy of his client were not binding in this litigation. We agree for the following reasons cited by the trial Judge:

“The issue is whether or not the extra-judicial conclusions of counsel to a third party are binding on his client.
All lawyers are partisans. With great emotions, they choose sides, and when the choice is made, arguments, phrases and conclusions are marshalled to serve their purposes. The advocate is the client’s representative. He gives to his client the benefit of his learning, his talents and judgment, but it is for the Court to decide the facts.
His function is to argue and ethically present the evidence. He is an officer of the Court, assisting in the administration of justice, and acting under the theory that the truth is best discovered by forceful statements on both sides of the question.
Lawyers toil in the adversary system. Each side presents their evidence to the opposing party which is examined, distilled and evaluated. After evaluation, each side determines the merits of their respective positions and then has the option for many valid reasons to settle or have their defenses determined by a court.
When Travelers agreed to terminate the litigation by settlement, for whatever reasons, all of which are irrelevant, that settlement did not adjudicate the factual issues before the court: The Court is the exclusive finder of fact.
Therefore, the statements of plaintiff’s counsel are merely the representations and conclusions of her attorney, made extrajudicially and are without weight. They are not binding upon the court as determinative of the issue, nor can they be used against his client as an admission against interest.”

Civil Code Article 1934(3) provides that in assessing general damages, “much discretion must be left to the trial judge or jury.” Before this Court will disturb an award made by a trial court the record must clearly 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.” Reck v. Stevens, 373 So.2d 498 (La.1979) at p. 505.

In the case at bar, plaintiff, Karen Villa-vaso, is a 29 year old female, formerly employed by Corey Coffee Company as a customer representative/salesperson, earning more than $300.00 per week. Her daily duties included extensive driving and lifting approximately twenty pounds. She was discharged from her employment because of her inability to perform those duties on July 12, 1980. She has undergone multiple hospitalizations, painful diagnostic tests and dangerous general surgery.

Presently, she has an undisputed permanent thirty percent anatomical disability and a permanent fifty percent functional disability, which will substantially restrict her social, recreational and domestic activities as well as interfering with her ability to drive, lift or climb. She has recurring headaches, severe neck pain and other ailments related to the accident, for which she regularly takes medicine. Further medical treatment is reasonably certain to occur.

Given these facts and the record as a whole we cannot say the trial court abused its great discretion in awarding plaintiff $250,000.00.

For the above and foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal to be borne by Appellant.

AFFIRMED.

SCHOTT, J., concurs.

SCHOTT, Judge,

concurring:

In McCreary v. Commercial U. Ins. Co., 372 So.2d 745 (La.App. 4th Cir.1979) we were confronted with the same issue of causation from the first of two accidents (including a settlement with the second tort feasor for the aggravation he caused) and concluded that the trial court’s finding of causation was not manifestly erroneous and was supported by the record. In the instant case I reach the same conclusion although the evidence is even less convincing than it was in the cited case.

We know that Dr. Jarrott, who first saw plaintiff in June, 1980, ultimately performed a discectomy at C5-C6 in August and in January, 1981, found still another ruptured disc at C4-C-5. Plaintiff had two accidents, on January 17, 1980, and March 18, 1980, both of which caused injuries to her neck and either of which could have caused one or both cervical disc ruptures. The trial court’s award was based on his conclusion that both ruptures which already led to one discectomy and will probably lead to a second, along with a fusion in order to protect the disc at C6-C7, with all the pain and disability accompanying this condition, were the proximate result of the first accident.

This conclusion is supported primarily by the opinions of Drs. Gomila and Jarrott that the ruptures resulted from the first accident. As to Dr. Gomila, he suspected a ruptured disc on his initial examination of plaintiff on January 22 and for that reason he referred her to the neurosurgeon, Dr. Richardson. Thereafter, Dr. Gomila had little to do with the patient and could not recall what transpired on her four subsequent visits (February 16, March 5, May 20, and May 31). In December, 1980, Dr. Gomi-la issued a report from which he was allowed to read over defendant’s objection the following excerpt:

“A. At this time I feel that she undoubtedly suffered a cervical disc rupture as a consequence of the January accident. Therefore, Dr. Richardson and Dr. Jarrott both concur with my opinion that the initial damage to her neck was done in January, and the March accident only served to exacerbate all pre-ex-isting symptoms, plus the possibility of further damage to her neck.”

Dr. Jarrott was convinced that the January accident caused the cervical disc rupture based on Dr. Gomila’s initial findings of brachial plexus tenderness and radiation of pain into the right arm. He testified that the initial disc rupture “responded to conservative measures until she was rein-jured in March, at which time she sustained a cerebral concussion and an aggravation of symptoms.”

The most important medical witness, in my judgment, was Dr. Richardson, the neurosurgeon who treated plaintiff on January 25, eight days after the first accident, March 10, eight days before the second accident, March 21, March 31 and April 25. Initially he thought plaintiff sustained a ruptured disc, but by March 10, she had responded so well that he changed his opinion and diagnosed her problem as a cervical sprain. On this date she exhibited no evidence of nerve root irritation or brachial plexus tenderness. He maintained his diagnosis of cervical sprain even after the accident after examining her on three occasions. He never testified in retrospect that the disc ruptures were caused by the first accident. He offered that only as an initial impression which he later changed. But neither did he testify that the second accident caused the ruptured discs. He would only say that she had a cervical sprain all along and that her problem was aggravated by the second accident.

Our task on appellate review is not completed simply by locating the opinions of Drs. Gomila and Jarrott in the record that the disc ruptures were caused by the first accident. We are charged with the onerous responsibility of determining that this finding by the trial court is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

After a painstaking review of this record I have made that determination despite what I perceive to be a refusal on the part of Dr. Richardson, who was in the best position to know, to furnish the trial court with an unqualified opinion on the question. My impression is that Dr. Richardson didn’t know one way or another and, because subsequent events proved that plaintiff had the ruptured discs which he didn’t diagnose even after the second accident, he felt constrained to avoid expressing an opinion. However, he did supply one very important piece for this puzzle when he gave the following testimony on redirect examination by plaintiff’s attorney:

“Q. Isn’t it — and I may have asked you this question — but it’s not uncommon, is it, for disc injury, including rupture, to go into periods of remission when the patient takes care of him or herself and is managed conservatively and rests and does the thing the doctor recommends?
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THE WITNESS:

No, it’s the rule rather than the exception that people improve with disc ruptures. Most of the patients that we operate on for cervical disc rupture had intermittent symptoms for long periods of time. They may go for several months without any symptoms and have an episode of symptoms that will last for several weeks or months and they finally become more persistent until they finally decide they want something done, but cervical disc ruptures are rarely acute and immediate. That’s unusual, in my experience.”

When this testimony is considered together with the totality of the testimony of Drs. Gomila and Jarrott I feel compelled to determine that the trial court’s finding of causation for the ruptured discs by the first accident is not clearly wrong.


author: GRISBAUM, Judge.

text:
    Rodney Stephen MORGAN v. June Valley, wife of Rodney Stephen MORGAN.
    No. 5-383.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 1982.

      Harry C. Cabral, Jr., Metairie, for plaintiff-appellee.
    George H. Jones, New Orleans, for defendant-appellant.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

In this divorce proceeding, June Valley Morgan appeals the trial court’s finding that she is not free of fault and therefore not entitled to permanent alimony. The issue involves relitigation of fault in a divorce proceeding based on living one year separate and apart when the judgment dismissing the fault issue in the separation proceeding is being appealed.

On January 30, 1980, Rodney Stephen Morgan filed suit against his wife, June Valley Morgan, seeking a legal separation on the grounds of cruel treatment or alternately mutual fault between the parties. Mr. Morgan later stipulated as to this fault. Mrs. Morgan reconvened seeking a separation on the grounds of abandonment. On October 31, 1980, Judge Collins tried the separation suit and dismissed it for lack of sufficient evidence to prove fault. On January 6,1981, the dismissal was suspensively appealed by Mrs. Morgan. On February 5, 1981, Mr. Morgan filed for divorce on the grounds of living separate and apart for one year. La.R.S. 9:301. Mrs. Morgan reconvened for adultery. The divorce was tried before Judge Kamo on January 7, 1982 and judgment was signed the next day granting a divorce and finding Mrs. Morgan not free of fault. On February 9,1982, the Fourth Circuit Court of Appeal reversed the trial judge’s dismissal of the separation action and granted the separation based on the husband’s abandonment. On January 15, 1982, the divorce was appealed to this court.

The first issue is whether the trial court must wait until a separation suit is appealed and becomes final before hearing a divorce sought on La.R.S. 9:301. There is no such statutory requirement. La.R.S. 9:302 does have such a requirement. La. R.S. 9:302 states that if an appeal is taken from a judgment of separation, a suit for divorce may not be commenced until the day after the judgment becomes definitive. La.R.S. 9:302 is grounded on non-reconciliation for one year from the judgment of separation. However, a divorce based on § 301, as in the instant case, does not depend on a separation judgment. There is, therefore, no corresponding requirement to delay the suit pending an appeal of a separation judgment.

Appellant, Mrs. Morgan, also claims that the court of appeal’s ruling of appellee, Mr. Morgan, at fault on the grounds of his abandonment bars relitigation of the issue of fault at the divorce hearing. It is true a definitive judicial determination in a separation proceeding of the party at fault bars relitigation of the issue in a subsequent divorce proceeding. Fulmer v. Fulmer, 301 So.2d 622 (La.1974). This is so even when a divorce is sought based on La.R.S. 9:301, living separate and apart, rather than a divorce based on the separation decree. Fulmer v. Fulmer, supra; Schillaci v. Schillaci, 339 So.2d 532 (La.App. 4th Cir.1976). However, at the time the trial judge heard the divorce proceeding, the fault issue had been dismissed by the trial judge in the separation suit and was on appeal. Therefore, there was no determination of the party at fault much less a definitive judgment. There was, therefore, no jurisprudential bar to litigating the fault issue.

However, the status of the fault issue is presently in a different posture. Subsequent to the trial on the divorce, the Fourth Circuit Court of Appeal rendered a judgment in the separation suit reversing the trial court and determining the husband to be at fault for abandonment. This implicitly holds the wife to be free of fault because it is only when the abandoned spouse is given no lawful cause for the abandonment that he or she may secure judgment. Broussard v. Broussard, 275 So.2d 410 (La.App. 3d Cir.1973). The Fourth Circuit judgment has since become definitive. This court is thus presented with a definitive judgment of fault.

The holding of Fulmer v. Fulmer, supra that a judicial determination in the separation proceeding of the party at fault bars relitigation in the divorce proceeding is based on an interpretation of the legislative intent of La.C.C. art. 160. The Supreme Court stated in Fulmer it perceived the legislative choice to be “based on the judicial economy and consistency represented by having the separation-causing fault determined once and in the separation proceedings itself, rather than litigating (or re-litigating) it in the much later divorce proceedings — where, with different testimony or less recent recollection, the separation-causing fault might even be determined contrary to that determined at an earlier well-tried and hotly-contested separation adjudication.”

Judicial economy is not served in the instant case by adhering to the separation suit determination of fault. The issue of fault has already been relitigated in the divorce proceeding as the judge was confronted with no judgment determining fault. The problem of consistency is however illustrated in this ease. The holding of the court of appeal in the separation suit and the trial judge in the divorce proceeding are contrary. We must determiné which judgment to recognize. To uphold the finding of fault by the trial judge in the divorce proceeding would set a precedent for allowing the losing party in the separation suit to file a divorce based on one year living separate and apart and relitigate the question of fault as long as the separation judgment was not yet final. An issue as important as fault should not be determined by a race through the appellate system to see whether the separation or divorce judgment becomes final first.

Had the appellate court agreed with the trial court in the separation suit that there was not sufficient evidence to prove fault in that case and that judgment had become definitive, then we would recognize the finding of fault by the judge in the divorce proceeding and decide accordingly. However, because there is a final judgment determining fault in the separation proceeding, we feel it best serves the interest of the parties and the judicial system to recognize that definitive judgment.

Although we recognize the final judgment of fault from the separation proceeding which held the husband to be at fault for abandonment, the wife has not proven the essential element under La.C.C. art. 160 of necessitous circumstances. For that reason, we do not award permanent alimony.

Recognizing the definitive finding of fault in the separation suit, we affirm the judgment of divorce and set aside the finding of fault in the divorce judgment.

AFFIRMED IN PART, SET ASIDE IN PART.


text:
    Alfred RAYMOND, Jr., et al. v. Rudolph and Wilhelminia SIMMONS.
    No. 5-308.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 1982.
    Leon C. Vial, III, Hahnville, for plaintiffs-appellees.
    Steven F. Griffith, Sr., Destrehan, for defendants-appellants.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

In this petitory action, a default judgment was rendered against appellant, Ber-trice Lindsey. The issues on appeal are the failure to notify Ms. Lindsey of the signing of the default judgment and the sufficiency of the evidence.

On October 6, 1980, appellee, Alfred Raymond, Jr., et al., filed a petitory action against Rudolph and Wilhelmina Simmons alleging the Simmons were in possession of the property. Upon discovering that the Simmons merely leased the premises from Bertrice Lindsey, appellee filed a supplemental and amended petition on December 26,1980 to add Ms. Lindsey as a defendant. On December 29, 1980, the court appointed a curator ad hoc, Mr. Deckelman, to represent the non-resident absentee, Ms. Lindsey. Mr. Deckelman contacted Ms. Lindsey and informed her of the nature of the suit against her. She was advised to file a request in the court for all notices in the proceeding to be sent to her. On March 10, 1981, Ms. Lindsey’s handwritten letter was filed in the clerk’s office requesting all notices be sent to her at her address on Josephine Street in New Orleans, Louisiana. On March 11, 1981, the court dismissed Mr. Deckelman as a curator ad hoc. On July 23, 1981, a judgment of default was confirmed against Ms. Lindsey and appellees were declared to be the owners of the property in dispute. Ms. Lindsey did not receive any notice of the judgment. She learned of the default judgment after retaining her present counsel. On February 5, 1982, appellant’s attorney filed a motion for a new trial which was denied on February 16, 1982. An appeal was filed on February 24, 1982.

This court finds although the motion for a new trial was filed over six months after the default judgment was rendered, the motion was timely. The record reveals that the judgment of default was handed to Mr. Deckelman, the curator ad hoc, who had been dismissed by the court four months prior to the judgment. La.C.C.P. art. 1913 requires that:

“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service ..."

The record does not reveal that appellant was served notice of the default judgment as required by La.C.C.P. art. 1913, and she denies having ever been so served. She was entitled to service of the notice of the signing of the default judgment as she was not personally served in this case. La.C.C.P. art. 1974 states the delays for applying for a new trial in pertinent part:

“When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

Therefore, the delay for applying for a new trial would commence to run on the day after the sheriff had served Ms. Lindsey with the notice of the default judgment. Because such notice was never served, the time for applying for a new trial had not commenced to run when appellant applied for a new trial on February 5,1982. It follows that the delay for applying for either a suspensive or devolutive appeal herein did not commence running until February 16, 1982, the date on which appellant’s motion for new trial was denied. Therefore, the appeal in this case is timely.

Addressing the second issue, a judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La.C.C.P. art. 1702.

The demand in this case, a petitory action, is one brought by a person who claims the ownership, but who is not in possession of immovable property or of a real right therein against another who is in possession or claims the ownership thereof adversely to obtain judgment recognizing the plaintiff’s ownership. La.C.C.P. art. 3651. La.C.C.P. art. 3653 states:

“To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof ...”

Through her lessee, appellant was in possession of the property. La.C.C. art. 3433. The Louisiana Supreme Court in Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974), stated that where defendant is in possession, plaintiff in a petitory action must make out his title good against the world, meaning a showing of title by an unbroken chain commencing with a separation from the sovereign, regardless of the character or quality of defendant’s title. Freeman Baptist Church v. Herman Dempsey Hillen, 345 So.2d 74 (La.App. 1st Cir.1977).

Under the rule, the appellee in the present case failed to establish a prima fa-cie case by proving his title good against the world. He has not traced his title back to the sovereign. Weaver v. Hailey, 416 So.2d 311 (La.App. 3d Cir.1982).

There is a presumption that a default judgment is supported by sufficient evidence, but this presumption does not attach when the record upon which the judgment is rendered indicates otherwise. Holbrook v. Palermo, 352 So.2d 419 (La.App. 3d Cir.1977). The transcript of the proceedings at the default judgment and the supporting evidence are in the record before us. Appellee traces his title back to a judgment of possession rendered in 1944. That judgment refers to an act of sale in December of 1892 but not from the sovereign. Such proof falls short of the burden on a plaintiff in a petitory action.

Because appellee failed to establish a pri-ma facie case by proving title back to separation from the sovereign the judgment denying the motion for new trial is reversed. We order a new trial be granted.

REVERSED AND REMANDED.


author: ROY NOBLE LEE, Justice, HAWKINS, Justice,

text:
    Bobby F. KING, M.D. v. Jack C. MURPHY.
    No. 53429.
    Supreme Court of Mississippi.
    Nov. 17, 1982.
    Rehearing Denied Jan. 14, 1983.
    Price, Krohn & McLemore, Robert G. Krohn, Corinth, for appellant.
    William S. Lawson, Tupelo, for appellee.
   ROY NOBLE LEE, Justice,

for the Court:

Jack Murphy filed a malpractice suit against Bobby F. King, M.D., in the Circuit Court of Tishomingo County, Honorable Fred Wicker, presiding. The jury returned a verdict in the sum of four hundred thousand dollars ($400,000) damages for loss of Murphy’s left leg, judgment was entered in that amount, and Dr. King has appealed here.

THE HISTORY

Murphy, age sixty-one (61) years, has been a logger most of his life. On Saturday morning, February 11, 1978, at about 8:30 a.m., he and his employer were working near Cairo, Mississippi. As Murphy trimmed limbs off a fallen tree, the chainsaw blade caught in a bush and was thrown into the calf area of his inside lower left leg, cutting a gash approximately sixteen (16) inches long and one and one-half (lVfe) inches deep. The wound bled profusely, and Murphy was rushed to the Tishomingo County Hospital in Iuka, Mississippi, where a registered nurse began initial treatment by applying pressure until the bleeding stopped, and then cleaning the wound with an accudine solution.

Appellant was called to the emergency room and attended Murphy. He is forty-eight (48) years old, a graduate of the University Medical School in Jackson, Mississippi (second in his class), and has been practicing general medicine in Iuka, Mississippi, since 1958. Upon examination by appellant, Murphy’s pulse was found to be weak, and his blood pressure was dropping due to considerable blood loss. Fluids were given, which increased the blood volume and elevated the pressure, but it soon dropped again. Murphy’s blood type was A-negative, a comparatively rare type. The hospital had no blood of that type, and appellant ordered some from the Birmingham Red Cross. In order to prevent Murphy from going into shock, appellant prescribed the minimum recommended dosage of the drug Aramine, a vascoconstrictor, which reduces the blood supply in the extremities and concentrates it in the vital organs. This procedure stabilized Murphy’s blood pressure.

Appellant began cleaning the wound and injected the drug Carbocaine, a local anesthetic, which enabled him to clean it without causing pain. Appellant then debrided the wound by cutting away and removing dead and injured tissue. The “standard laceration tray,” comprised of surgical instruments, was used by appellant in debrid-ing the wound, and it then was sutured in layers. A drain tube was not inserted. One grain of codeine intramuscularly or by mouth every two or three hours was prescribed by pain. Cleaning, debriding and repairing the wound consumed approximately forty-five (45) minutes.

Murphy was checked at twelve noon, and again at 1:30 p.m. At 2:10 p.m., his blood pressure began dropping, and appellant increased the Aramine. The dressing was changed at 2:30 p.m., appellant saw appel-lee again at 3:45 p.m., and his condition was stable throughout the day. The dressing was changed again at 5:30 p.m., and additional absorbent material was used to care for drainage. The Aramine drip was stopped at approximately 11:00 or 12:00 p.m. That night, the blood ordered from Birmingham Red Cross arrived, and appellant elected not to give a transfusion immediately since Murphy’s condition was stable. At 2:00 a.m., Sunday, February 12, Murphy had developed a temperature of 102°, but it dropped to 101° at 6:00 a.m., and was normal at appellant’s 8:00 a.m. rounds. Appellant noticed that Murphy’s white count and hemoglobin were not at normal levels and he prescribed Amcill, an antibiotic, and prescribed blood for him. Murphy complained of pain in his leg during the day and at 3:30 p.m., there was a noticeable swelling in the left ankle. By 4:30 p.m., the entire leg was swollen, Murphy’s temperature was 102.8°, and he was talking incoherently. Appellant believed the patient was experiencing a reaction to the blood, which had been given earlier, and ordered that the blood be stopped and tests run. He considered the possibility of cellulitis, a common infection which sometimes causes high fever.

At 6:00 p.m. (Sunday, February 12) the patient was still incoherent, and his temperature was 104.6°. His pulse was rapid, with blood in the urine, and appellant ordered another antibiotic, Calflin, to be started. He examined appellee about 7:15 p.m., and found his leg to be swollen. Appellant removed some of the stitches, but found no evidence of any infection (pus). He ordered a culture test to be done on the wound, and prescribed another antibiotic, Garamycin, to be started instead of Amcill.

About 8:00 p.m. Sunday night, appellant called in Dr. Thomas E. Goyer of Iuka for consultation. He was a general surgeon with twenty-two (22) years experience. After being informed of the case history and the treatment prescribed by appellant, Dr. Goyer agreed with those procedures. By 8:00 a.m., Monday morning, February 13, Murphy’s temperature was again at 102°. His pulse was up, he was jaundiced and a crepitance (gas in the tissue) was noticed in the sole of the foot. Dr. Goyer examined him around 8:30 a.m., and detected increased swelling, eccymosis (spots of blood in the skin) and hemorrhagic bullae (blisters filled with blood). Murphy was monitored up to 3:00 p.m. when he was transferred to the Veterans’ Administration Hospital in Memphis.

Dr. Freddie Barron treated Murphy at the Veterans’ Administration Hospital and, upon examination of the wound, he discovered an estimated 500 cc. of escaping gas and an extensive amount of necrotic (dead) debris and fluid. After making surgical incisions, Dr. Barron found the infection to be so extensive in the leg that he decided amputation above the knee was necessary. On February 29, Murphy was returned to surgery for revision of the stump, and an additional four (4) inches of the leg was removed, together with a portion of his buttock.

A pathologist, Dr. Joseph Young, examined specimens of tissue taken from Murphy’s leg wound, and found marked swelling of the tissues, various forms of bacteria and microscopic particles of wood. In particular, he found a type of bacteria, clostri-dial perfringens, commonly known as “gas gangrene.” Such bacteria has two unusual characteristics: (1) it is ubiquitous, i.e., seemingly it can be found everywhere in everything, and (2) it is anaerobic, meaning that it dies on exposure to oxygen and only can grow in the absence of air.

THE QUESTION

The threshold question, which may be dispositive of the case, is whether or not the locality or neighborhood rule should be applied here. The standard by which physicians are measured in their skills and practice is divided into three (3) separate groups, viz, the locality or neighborhood rule, the similar locality rule, and the universal (national) rule. Mississippi has followed the locality or neighborhood rule for many years. That rule, as stated in appellant’s brief, follows:

A physician is bound to bestow such reasonable and ordinary care, skill, and diligence as physicians and surgeons in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases. Copeland v. Robertson, 236 Miss. 95, 112 So.2d 236 (1959); DeLaughter v. Womack, 250 Miss. 190, 164 So.2d 762 (1964); Hill v. Stewart, 209 So.2d 809 (Miss.1968); Dazet v. Bass, 254 So.2d 183 (Miss.1971).

Approximately twenty-three (23) states follow the locality or neighborhood rule. In Copeland v. Robertson, 236 Miss. 95, 112 So.2d 236 (1959), this Court stated it was in accord with the rule, and quoted:

As to the general standards of skill and care required of physicians and surgeons, 41 Am.Jur., Physicians and Surgeons, Section 82, pp. 200-201, says: “It is the universal rule that a physician is liable to his patient for a failure to exercise requisite skill and care. By that it is meant that a physician must possess that reasonable degree of learning, skill, and experience which ordinarily is possessed by others of his profession, and that he must exercise reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge, and exert his best judgment as to the treatment of the case intrusted to him — in short, a physician is bound to bestow such reasonable and ordinary care, skill, and diligence as physicians and surgeons in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases. The terms ‘physician’ and ‘surgeon’ here are used interchangeably, the courts making apparently no attempt, so far as this point is concerned, to distinguish their respective liabilities; and the practitioner is equally responsible in either case, whether the injury results from want of skill or want of care.” See also 70 C.J.S., Physicians and Surgeons, Section 41, pp. 946-949. (Emphasis supplied.) [236 Miss. at 110-11, 112 So.2d at 241].

The Court discussed application of the locality rule in Dazet v. Bass, 254 So.2d 183 (Miss.1971). While not deciding the question of extending the locality rule, the Court indicated that the rule should be extended and said:

The plaintiff assigns as error the refusal of the trial court to allow Dr. Joseph E. Dugas, Jr., a New Orleans physician, to testify for the plaintiff. Dr. Dugas qualified as an expert witness but the trial court refused to admit his testimony because he had no knowledge of the standard of skill and care exercised by physicians in the Jackson area. Plaintiff contends with a great deal of force that the so-called “locality rule” is no longer valid for the reason that physicians now attend the same colleges, receive the same post graduate courses in their specialties, and go to the same seminars; that the standards of care for a specialist should be and are the same throughout the country, and that geographical conditions or circumstances are no longer valid as controlling the standards of a specialist’s care or competence. Conceding that there is considerable force in the argument on this question, we are not convinced that the “locality rule” should be entirely abolished, although that question is not necessarily reached for the reason that Dr. Dugas was dismissed from the stand and no offer was made to take his testimony in the absence of the jury, nor was the substance of his testimony dictated into the record. [254 So.2d at 187].

We are of the opinion that the locality or neighborhood rule in the State of Mississippi should not be abolished, but it should be extended and expanded. Therefore, we hold that the standard of care by which the acts or omissions of physicians, surgeons or specialists are to be judged shall be that degree of care, skill and diligence practiced by a reasonably careful, skillful, diligent and prudent practitioner in such field of practice or specialty in this state, and for a reasonable distance adjacent to state boundaries. An expert witness who is knowledgeable of, and familiar with, the state-wide standard of care shall not have his testimony excluded on the ground that he does not practice in this state.

THE RESULT

Murphy called to the stand, as his expert witness, Dr. Richard Gardner, an orthopedic surgeon from Ft. Myers, Florida. The case depends upon the testimony of Dr. Gardner. According to his testimony, practically every procedure used by appellant was improper and constituted negligence, such as, the wound should not have been sutured, Aramine should not have been administered, Carbocaine should not have been administered, emergency room equipment was inadequate, gram stains and cultures should have been taken in the emergency room before touching the wound, prophylactic antibiotics should have been administered, a drain should have been inserted, the wound should have been left open, failure to diagnose gas gangrene, and inadequate debridement.

On the other hand, appellant and three (3) to four (4) other witnesses, all local physicians in Tishomingo County, testified that the treatment, procedures and techniques used by appellant in the treatment of Murphy were proper and in accordance with the skills and standards of the medical profession.

In qualifying Dr. Richard Gardner, Murphy showed that Dr. Gardner received his M.D. degree at Tufts University School of Medicine in Boston, completed five (5) years of residence at the hospital for bone and joint diseases at Bellevue Medical Center in New York and was Chief of Orthopedics and Hand Surgery at a military hospital in Champlain, Illinois, which was a major transfer center for Vietnam casualties. In 1969, he moved to a suburb of Boston, Massachusetts, and had staff privileges at six (6) hospitals in the Boston area where he practiced orthopedics and hand surgery. In 1975, he moved to Ft. Myers, Florida, which has approximately 162,000 to 180,000 population. Four (4) hospitals are situated in Lee County, Florida (Ft. Myers), which range in size from fifty (50) to four hundred (400) beds. Seven (7) orthopedic surgeons, general surgeons, neurosurgeons, anesthesiologists, and radiologists practice in the area.

Dr. Gardner has never practiced in Mississippi, and has never examined or treated a patient in Mississippi, except he examined Murphy the night before trial. He has never been in the Tishomingo County Hospital or its emergency room, and has never consulted with any physician in Tishomingo County. He has no knowledge of the extent of the blood bank in the Tishomingo County Hospital, and does not know the manner in which patients have been treated in Tishomingo County, other than appellant, and has no knowledge of how other lacerations have been repaired in Tishomingo County.

The lower court extended the Mississippi locality rule to the similar locality rule and permitted Dr. Gardner to testify, although expressing some doubt as to whether or not Dr. Gardner qualified, stating, he “did not make out a real strong case of being familiar with similar localities.”

We are of the opinion that Dr. Gardner did not qualify under the locality rule, the similar locality rule, or the new rule adopted by the Court here. Therefore, the lower court erred in admitting his testimony, and such error requires the case to be reversed and remanded for a new trial.

REVERSED AND REMANDED.

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

ON PETITION FOR REHEARING

HAWKINS, Justice,

concurring in part and dissenting in part:

In my view the so called “locality rule”, or “similar locality rule”, insofar as it is applied to the competency of an expert to even testify, is subject to serious flaws, and contrary to our general rule on allowing experts to testify. My observations here are limited to the application of the “locality rule”.

On the question of the competency of a witness to give an opinion as an expert, this Court has been quite liberal. In King v. King, 161 Miss. 51, 134 So. 827 (1931), we were faced with an attorney who testified as an expert on handwriting. We stated:

It is not necessary to introduce a definition of an “expert” .... Usually it is sufficient if a witness possesses peculiar knowledge, wisdom, skill, or information regarding the subject-matter under consideration, which is acquired by study, investigation, observation, practice, or experience, and is not likely to be possessed by the ordinary layman or any inexperienced person or one who is incapable of understanding the subject without the aid or opinion of some person who possesses such knowledge or experience.

Id. at 62, 134 So. at 829.

In Glenn Falls Insurance Co. v. Linwood Elevator, 241 Miss. 400, 130 So.2d 262 (1961), we held that a municipal fire chief of Yazoo City was competent to express an opinion that spontaneous combustion was the cause of a fire. We stated:

This Court has pointed out in the case of King v. King, 161 Miss. 51, 134 So. 827, that a witness need not be infallible or possess the highest degree of skill to testify as an expert. It is generally sufficient that the witness possess knowledge peculiar to the matter involved, not likely to be possessed by ordinary laymen.

241 Miss. at 417, 130 So.2d at 268.

See also Capital Transport Co. v. Segrest, 254 Miss. 168, 188-189, 181 So.2d 111, 120 (1965).

I concur that the standard of care which a physician is obligated to exercise in treating his patient should be that degree of care and skill which is exercised by the average practitioner in the class to which he belongs, acting in the same or similar circumstances. That, however, is a far cry from holding that a medical expert may not give a medical opinion as to a proper standard of care in his medical speciality unless he first determines how medicine is practiced in the same or “similar” localities where the lawsuit arose, a determination which could only be made by practicing medicine in such locality or by making some kind of investigative survey.

In lawsuits our search should be for accuracy and truth.- It seems incongruous to me that a medical specialist from the Mayo Clinic, the Ochsner Clinic, the Menninger Foundation, or the Sloan-Kettering Institute could not express opinions within his field of knowledge on what constitutes good medical practice in any court in the United States, or this entire planet, for that matter.

It is my belief, and certainly my hope, that inevitably all courts will reach this view of the matter. In my opinion, our present rule will result in considerable confusion.

The original rationale and reason for the abolition of the locality rule is well stated in Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967):

The original reason for the “locality rule” is apparent. When there was little inter-community travel, courts required experts who testified to the standard of care that should have been used to have a personal knowledge of the practice of physicians in that particular community where the patient was treated. It was the accepted theory that a doctor in a small community did not have the same opportunities and resources as did a doctor practicing in a large city to keep abreast of advances in his profession; hence, he should not be held to the same standard of care and skill as that employed by doctors in other communities or in larger cities....
The “locality rule” had two practical difficulties: first, the scarcity of professional men in the community who were qualified or willing to testify about the local standard of care; and second, the possibility of a small group, who, by their laxness or carelessness, could establish a local standard of care that was below that which the law requires. The fact that several careless practitioners might settle in the same place cannot affect the standard of diligence and skill which local patients have a right to expect. Negligence cannot be excused on the ground that others in the same locality practice the same kind of negligence. No degree of antiquity can give sanction to usage bad in itself.
Broadening the rule to include “similar localities” or “similar communities” alleviated, to a certain extent, the first practical difficulty of the “locality rule” — additional witnesses might be available; but it did little to remove the deficiencies springing from the second....
Now there is no lack of opportunity for a physician or surgeon to keep abreast of the advances made in his profession and to be familiar with the latest methods and practices adopted.
The comprehensive coverage of the Journal of the American Medical Association, the availability of numerous other journals, the ubiquitous “detail men” of the drug companies, closed circuit television presentations of medical subjects, special radio networks for physicians, tape recorded digests of medical literature, and hundreds of widely available postgraduate courses all serve to keep physicians informed and Increasingly to establish nationwide standards. Medicine realizes this, so it is inevitable that the law will do likewise. Louisell and Williams, The Parenchyma of Law (Professional Medical Publications, Rochester, N.Y. 1960) p. 183.
We have found no better statement of existing conditions. The “locality rule” has no present-day vitality except that it may be considered as one of the elements to determine the degree of care and skill which is to be expected of the average practitioner of the class to which he belongs. The degree of care which must be observed is, of course, that of an average, competent practitioner acting in the same or similar circumstances. In other words, local practice within geographic proximity is one, but not the only factor to be considered. No longer is it proper to limit the definition of the standard of care which a medical doctor or dentist must meet solely to the practice or custom of a particular locality, a similar locality, or a geographic area.

72 Wash.2d at 77-79, 431 P.2d at 977-78 (emphasis in original).

See also King v. Williams, 276 S.C. 478, 279 S.E.2d 618 (1981); and Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166 (1973).

Because of the history of the “locality rule” and its long acceptance in this state, I think its abolition should be applied prospectively, and therefore concur in the reversal of this case.

BOWLING, J., joins this dissent.

      . We have considered statutes and decisions of other states, including Arizona Revised Statutes Annotated § 12-563 (1976) and Virginia Code § 8.01-581.20 (1979).

      . Most assuredly, small town practitioners whose daily practice requires them to treat patients in what might be deemed less than ideal circumstances should not be penalized or obligated to exercise the same degree of skill and care or utilize the same equipment of a medical specialist in a metropolitan hospital. However, the competency test under a so called “locality” rule is the wrong medicine for this particular problem.


author: HAWKINS, Justice,

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. CITY OF COLUMBUS LIGHT & WATER DEPARTMENT, et al.
    Nos. 53408, 53410-53418, 53508 and 53630.
    Supreme Court of Mississippi.
    Dec. 1, 1982.
    Rehearing Denied Dec. 15, 1982.
    Fred J. Lotterhos, Jackson, for appellant.
    Gholson, Hicks & Nichols, Lydia Quarles, Columbus, Jacobs, Griffith, Pearson, Eddins & Povall, Benjamin E. Griffith, L. Ellis Griffith, Cleveland, James M. Hood, Jr., Houston, William B. Compton, Wither-spoon, Compton & Mason, Meridian, for ap-pellees.

      Before SUGG, P.J., and PRATHER and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court.

Before us are the consolidated appeals of the Mississippi Employment Security Commission from judgments of the Circuit Court of the First Judicial District of Hinds County reversing the commission’s assessment of charges against political subdivisions of this state for unemployment benefits paid former employees of the subdivisions.

In all except two of the cases the issue is whether the political subdivision is liable for unemployment benefits paid unemployed workers eligible for benefits under state law. We hold they are, and reverse and render as to these cases.

In two of the cases on appeal unemployment benefits were erroneously paid by the commission, and in these cases we hold the political subdivisions are not liable and affirm.

HISTORICAL AND LEGAL BACKGROUND

For a number of years this state has had a Mississippi Employment Security Law to promote employment security in job placement and to provide through the accumulation of reserves for the payment of compensation to unemployed individuals. Miss. Code Ann. § 71-5-1 (1972). The public policy of this state has been to require employers, with certain exceptions, to pay a certain amount of each employee’s wages to the Employment Security Administration fund of the state treasury. Miss.Code Ann. §§ 71-5-3, 71-5-111 (1972). This law and the programs thereunder have been administered by the Mississippi Employment Security Commission. Miss.Code Ann. § 71— 5-101 et seq. (1972).

Under formulas and rates set by law, employers have paid a certain percentage of each employee’s wages to the fund. Unemployment benefit records are kept on all employees, and provision is also made whereby employers who have a low “experience-rating record” will be charged “modified rates.” Thus, employers periodically will have their required contributions modified based upon the unemployment benefits which have been paid during a previous set period of time, or “base period.” Miss.Code Ann. §§ 71-5-351 to -355 (Supp.1981).

In determining the modified rates to an employer, § 71—5—355(2)(b)(ii) provides that benefits paid to an eligible individual shall be charged against the experience-rating record during the base period, but benefits will not be charged to the employer’s experience-rating record if the commission finds that the individual:

1. Voluntarily left the employ of such employer without good cause attributable to the employer,
2. Was discharged by such employer for misconduct connected with his work,
3. Refused an offer of suitable work by such employer without good cause, and the commission further finds that such benefits are based on wages for employment for such employer prior to such voluntary leaving, discharge or refusal of suitable work, as the case may be, or
4. Had base period wages which included wages for previously uncovered services as defined in section 71-5-511(e) to the extent that the unemployment compensation fund is reimbursed for such benefits pursuant to section 121 of P.L. 94-566, ...

In 1977, the Mississippi Employment Security Law was expanded to include political subdivisions of this state as employers. 1977 Laws ch. 497 (codified at Miss.Code Ann. § 71-5-359 (Supp.1981)). As a result, they joined nonprofit organizations and state boards and instrumentalities. See Miss.Code Ann. §§ 71-5-357 (prior to amendment, 1971 Laws ch. 519), 71-5-359 (Supp.1981). These organizations as employers were not required to make contributions, however, but were afforded the option to reimburse the state unemployment fund for benefits paid to unemployed workers attributable to service in that respective organization. Miss.Code Ann. § 71-5-359 (Supp.1981). Hence, those electing this option are termed “reimbursing employers,” rather than “contributing employers.”

In carrying out the purpose of the Mississippi Employment Security Law, this state is not completely autonomous. The United States Government has an impact upon its existence and administration. See 26 U.S.C.A. §§ 3301-3311, the “Federal Unemployment Tax Act,” and in particular, §§ 3304-3305, 3309. Within the parameters and guidelines of this Federal Act and regulations thereunder, however, our state law controls.

In order for any unemployed worker to be entitled to unemployment benefits there are certain requirements. A “base period” is first considered. Fifteen months, or five quarter years, are counted. The “base period” is the first four calendar quarters of a completed five calendar quarters, computed as of the first day of the week when a claimant filed for benefits. Miss.Code Ann. § 71-5-11 (Supp.1981). See Appendix for illustration.

Eligibility for benefits requires the claimant to have earned wages in insured work equal to 36 times his weekly benefit amount, and he must have been paid wages in insured work during at least two of the quarters in his base period. Miss.Code Ann. § 71-5-511 (Supp.1981).

The claimant is entitled to be paid a weekly benefit of l/26th of the total wages he was paid in the highest quarter of his base period, provided he was paid at least $160 in such quarter. Further, the claimant must receive at least $10 in weekly benefits, and cannot be paid more than $90 a week. Miss.Code Ann. § 71-5-503 (Supp.1981). He can receive no more than 26 unemployment benefit payments over a benefit year, defined in Miss.Code Ann. § 71-5-11 C., supra.

Miss.Code Ann. § 71-5-513 (Supp.1981) provides for circumstances which will disqualify an otherwise eligible unemployed claimant. Subparagraph A. (1) of this section provides that if a worker voluntarily without good cause leaves a job, he cannot qualify for benefits until he has thereafter earned for personal services by an employer an amount equal to at least eight times his weekly benefit amount. Subparagraph A. (2) of this section provides that in the event the worker has been discharged for misconduct connected with his work, he may be disqualified, as prescribed by the commission, for not exceeding twelve weeks following such discharge.

FACTS AND LAW

In ten of the cases before us the individual employees voluntarily left or were discharged for cause from the employ of political subdivisions, “reimbursing employers,” and subsequently secured employment in jobs with “contributing employers,” where they were employed for a sufficient period of time to qualify for unemployment benefits under § 71-5-513, supra. Thereafter, the second job with the contributing employer played out and they became unemployed.

These unemployed workers were clearly entitled to unemployment benefits under our statutes. The question before us as to these unemployed workers is whether the political subdivisions should be required to pay the pro rata share of unemployment benefits dollar for dollar, based upon these individuals’ length of employment with them. Or, should the unemployed workers be paid from the unemployment fund, without resort to these subdivisions for reimbursement?

To answer these questions it is necessary for us to discern the legislative intent of Miss.Code Ann. § 71-5-357, supra. The pertinent portions of this statute read:

§ 71-5-357. Regulations governing nonprofit organizations.
Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this section. ...
(a) Any nonprofit organization which ... is or becomes subject to this chapter .. . shall pay contributions under the provisions of sections 71-5-351 to 71-5-355 unless it elects ... to pay to the commission for the unemployment fund an amount equal to the amount of regular benefits and of one half (V2) of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization, to individuals for weeks of unemployment which begin during the effective period of such election; ...
(b) Payments in lieu of contributions shall be made in accordance with the provisions of paragraph (i) of this subsection.
(i) At the end of each calendar quarter, or at the end of any other period as determined by the commission, the commission shall bill each nonprofit organization (or group of such organizations) which has elected to make payments in lieu of contributions, for an amount equal to the full amount of regular benefits plus one half (%) of the amount of extended benefits paid during such quarter or other prescribed period that is attributable to service in the employ of such organization....
(iv) Payments due by employers who elect to reimburse the fund in lieu of contributions as provided in this subsection may not be non-charged under any condition. The reimbursement must be on a dollar for dollar basis (one dollar ($1.00) reimbursement for each dollar paid in benefits) in every case....
(c)Each employer that is liable for payments in lieu of contributions shall pay to the commission for the fund the amount of regular benefits plus the amount of one half (Vs) of extended benefits paid that are attributable to service in the employ of such employer. If benefits paid to an individual are based on wages paid by more than one (1) employer and one or more of such employers are liable for payments in lieu of contributions, the amount payable to the fund by each employer that is liable for such payments shall be determined in accordance with the provisions of paragraph (i) or paragraph (ii) of this subsection.
(i) If benefits paid to an individual are based on wages paid by one or more employers that are liable for payment in lieu of contributions and on wages paid by one or more employers who are liable for contributions, the amount of benefits payable by each employer that is liable for payments in lieu of contributions shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers.
(ii) If benefits paid to an individual are based on wages paid by two (2) or more employers that are liable for payments in lieu of contributions, the amount of benefits payable by each such employer shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers.

The first paragraph of this section states that benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this section.

Paragraph (a) following requires the nonprofit organization to pay to the commission an amount equal to the amount of the regular benefits and one half of the extended benefits paid, that is attributable to the service in the employ of such nonprofit organization.

Paragraphs (c)(i), (ii) provide that reimbursement payments to the commission for unemployment benefits in cases such as these, “... shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers.”

In our view it appears clear that the Legislature intended, in such cases as these, that reimbursing employers shall pay to the commission their proportionate share of unemployment benefits based upon the length of time the unemployed worker had worked for the political subdivision in the base-period. To the extent the unemployment benefits are attributable to the worker’s period of employment with the political subdivision, the subdivision is obligated to reimburse the commission a commensurate amount of the unemployment benefits paid. There is no exception to this requirement.

Moreover, this view is fortified by sub-paragraph (b)(iv) above quoted which requires the reimbursement to be on a dollar for dollar basis in every case, and that the payments due by employers who elect to reimburse the fund in lieu of contributions may not be “non-charged” under any condition.

The appellee subdivisions argue that they are excluded from any obligation under the section because the payments paid these unemployed workers were not “due by” the political subdivisions as required in subpara-graph (b)(iv). This argument ignores the plain provisions of the remainder of the statute, which requires reimbursement for the benefits paid which are attributable to the period of service while in the employ of the political subdivision.

The law provides the period and amount of unemployment benefits which are authorized to be paid unemployed workers. Such entitlement benefits to the unemployed worker must come from somewhere: (1) the contributing employers, (2) the reimbursing employer, or (3) the general taxpayer. We can glean no legislative intent that it should come from any source other than the reimbursing employer, the political subdivisions. The legislature could not have intended that nonprofit organizations and political subdivisions have a free ride in cases such as these, with the burden of payment shifted elsewhere.

In this interpretation we agree with the courts of Oregon and Georgia. See Mann Home v. Morgan, 19 Or.App. 853, 529 P.2d 964 (1974); Caldwell v. Hospital Authority of Charlton County, 248 Ga. 887, 287 S.E.2d 15 (1982). In the case of Wilmington Medical Center v. Unemployment Insurance Appeal Board, 346 A.2d 181 (Del.Super.Ct.1975), aff’d, 373 A.2d 204 (Del.1977), it appears the Superior Court of Delaware, in a factually analogous case, held otherwise, but we note the Delaware statute is not as comprehensive as our Mississippi statutes, and moreover, we believe the view adopted by the Delaware court is not as sound as that of the Oregon and Georgia courts.

The commission has also appealed in two cases in which the circuit court rendered judgment for the political subdivisions where the commission had erroneously paid benefits to unemployed workers. The commission seeks to secure judicial approval of liability to a political subdivision for unemployment benefits paid an unemployed worker where none were due, arguing the political subdivisions by the terms of § 71-5-357 are not excepted from a duty to reimburse the fund even under these conditions. Although the commission cites cases from other jurisdictions supporting this view, we reject such an argument. We can see - no requirement by statute or common sense which would require a nonprofit organization or a political subdivision to pay for mistakes made by the commission.

We, therefore, affirm the circuit court judgment in those cases wherein unemployment benefits which were not due under the law were paid by the commission to workers. As to all remaining cases we reverse and render judgment here in favor of the commission.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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

BOWLING and DAN M. LEE, JJ., took no part.

APPENDIX

Benefit Year

Q) CD %. ° 0 3 3 B Ql w3 < o> oj z: Q_ CD < OJ (P 3 ’ ■ CP O" 7T -h CP — O 1 < -s rr CP Q_ _Q 0) 03 to "U c ro E ro O (D JZ _ (D cn £ ÍO — < $ CD CD CD CL to %■ w (D 03 to _C — 4-» 03 CD 0) C > O CL <+ zr CD i cr cr > CD CD □ cr CD^ CD^ CD r+ r+ CD to -h CD 3 o c 13 L, 'i O) 3 C C C c — O Ü) o

      . No. 53,408—Mississippi Employment Security Commission v. City of Columbus Light and Water Department; No. 53,410—Mississippi Employment Security Commission v. City of Columbus Light and Water Department; No. 53,411—Mississippi Employment Security Commission v. Bolivar County, Mississippi; No. 53,412—Mississippi Employment Security Commission v. Board of Education of Bolivar County, Mississippi; No. 53,413—Mississippi Employment Security Commission v. City of Columbus Light and Water Department; No. 53,414—Mississippi Employment Security Commission v. City of Columbus Light and Water Department; No. 53,415—Mississippi Employment Security Commission v. Town of New Houlka, Mississippi; No. 53,416—Mississippi Employment Security Commission v. Chickasaw County, Mississippi; No. 53,417—Mississippi Employment Security Commission v. Board of Education of Bolivar County; and No. 53,418—Mississippi Employment Security Commission v. City of Columbus Light and Water Department.

      . § 71-5-359 makes the provisions of § 71-5-357 quoted herein applicable to state boards, instrumentalities, and political subdivisions.
      While not involved in the cases before us, we observe the Legislature in 1982 amended § 71— 5-357 to authorize another method for nonprofit organizations to contribute. See 1982 Laws ch. 480, section 1, par. (b)(iv).

      . No. 53,508—Mississippi Employment Security Commission v. Lauderdale County Board of Education; and No. 53,630—Mississippi Employment Security Commission v. Chickasaw County, Mississippi.


text:
    Eugene FOUCHÉ v. Bobby Ray RAGLAND.
    No. 53791.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Blackmon & Smith, Edward Blackmon, Jr., Canton, for appellant.
    Satterfield & Allred, Thomas L. Kirkland, Jr., Jackson, for appellee.

      . Portions of the petition were struck after proper motion, and the case proceeded as to the remainder.

   HAWKINS, Justice,

for the Court:

Eugene Fouché appeals from a county supervisor’s election contest decision by the Circuit Court of Yazoo County.

On November 6, 1979, a statewide general election was held in Mississippi. Eugene Fouché, appellant, and Bobby Ray Ragland were the candidates for District Three Supervisor of Yazoo County. Fouché was the Democratic party’s nominee; Ragland ran as an Independent. The vote totals of this race, as certified by the Yazoo County Election Commission, showed Ragland winning by a margin of twenty-one (21) votes (981-960). Fouché filed a petition in the Circuit Court of Yazoo County contesting the district three supervisor’s election. A jury trial was held. At the conclusion of the appellant’s case in chief, the circuit court judge sustained a motion to exclude all of the appellant’s evidence and directed a verdict in favor of the appellee.

The issues we address concern the validity of absentee ballots and other procedures followed in connection with the election. We find no error in the judgment of the circuit court. We affirm.

The facts in this case are undisputed and the lower court was correct in deciding the issues of law without a jury. We will give the pertinent facts during discussion of each of the assignments of error.

Fouché first assigns as error that the trial judge erred in refusing to count eighteen (18) absentee ballots signed by a notary, but not signed in the attesting witness space thereunder. Fouché contends that since the notary and the attesting witness may be the same person under the statute, the failure to comply with the statute was at most a mere technical violation.

Mississippi Code Annotated § 23-9-409 (Supp.1981) provides, in pertinent part:

(C) After marking the ballot, fill out and sign the “Elector’s Certificate” on back of the envelope so that the signature shall be across the flap of the envelope so as to insure the integrity of the ballot. Have the attesting witness sign the “Attesting Witness Certificate” on back of the envelope. Place necessary postage on the envelope and deposit it in the post office or some government receptacle provided for deposit of mail so that the absent elector’s ballot, excepting presidential absentee balloting, will reach the registrar in which your precinct is located not later than twelve noon on the day preceding the date of the election or by personally delivering such ballot to the registrar’s office not later than 5:00 p.m. on the second day immediately preceding the election.
Any notary public, United States postmaster, assistant United States postmaster, United States postal supervisor, clerk in charge of a contract postal station, or any officer having authority to administer an oath or take an acknowledgment may be an attesting witness. If a postmaster, assistant postmaster, postal supervisor, or clerk in charge of a contract postal station acts as an attesting witness, his signature on the elector’s certificate must be authenticated by the cancellation stamp of their respective post offices. If one or the other officers herein named acts as attesting witness, his signature on the elector’s certificate, together with his title and address, but no seal, shall be required. Any affidavits made by an absent elector who is in the armed forces may be executed before a commissioned officer, warrant officer, or non-commissioned officer not lower in grade that sergeant rating, or any person authorized to administer oaths.

Furthermore, Mississippi Code Annotated § 23-9-413 (Supp.1981) requires the following:

The form of the attesting witness certification on the back of the envelope shall be as follows:
“CERTIFICATE OF ATTESTING WITNESS
“Personally appeared before me, the above-named voter, known by me to be the person named, who after being duly sworn or having affirmed, subscribed the foregoing oath or affirmation. That said voter exhibited to me his blank ballot; that said ballot was not marked or voted before the said voter exhibited the ballot to me; that said voter then retired out of my presence, but within my sight, and voted his ballot so that I could not see how he voted; that no one was present with said voter as he marked his ballot; that the said voter was not solicited or advised by me to vote for any candidate, question, or issue, and that the voter, after marking his ballot, placed it in the envelope, closed and sealed the envelope in my presence, and signed and swore or affirmed the above certificate.

An examination of the voter’s affidavit and certificate of attesting witness on the outside of the absentee ballot serve importantly distinct purposes.

The voter makes oath that the ballot was made by himself; he authorizes the registrar to place the envelope in the ballot box on his behalf and authorizes the managers to open the envelope and place his ballot among the other ballots as though he were present when voting; he also makes affidavit that he marked the ballot in secret.

The certificate, on the other hand, in addition to certifying that the voter executed the affidavit, certifies the voter first exhibited a blank ballot which was not marked or voted before it was exhibited to the witness, and that the voter then retired out of the witness’ presence but within his sight so that he could see that he voted but not how he voted, that no one was present as he marked his ballot, that the voter was not solicited or advised in voting, and, finally, that after marking his ballot in secret, the voter placed it in the envelope, closed and sealed the envelope in the certifying officer’s presence, and then signed and made affidavit to the first certificate.

It is thus clear that the Legislature intended both signatures to be on the envelope because there were subsequent requirements to best ensure the integrity of an absentee ballot.

Anders v. Longmire, 226 Miss. 215, 83 So.2d 828 (1955), is distinguishable from the instant case; a different statute, § 3196-10 of the 1942 Mississippi Code, was involved, and furthermore, the certifying officer did affix his official title to the certificate which was all that was required by the statute.

Fouché next assigns as error the refusal of the circuit judge to deduct twenty-nine (29) absentee ballots which had not been printed as required by Mississippi Code Annotated § 23-5-125 (1972). A sample of the back of these ballots is as follows:

Section 23-5-125 provides:

On the back and outside of the ballot shall be printed the words, “official ballot,” the name of the election district or place for which the ballot is prepared, and the date of the election.

Section 23-9-427 (Supp.1981) provides:

For all elections, there shall be prepared and printed by the officials charged with this duty with respect to the election, as soon as the deadline for the qualification of candidates has passed or thirty days of the election, whichever is later, official ballots for each election district to be known as absentee voter ballots, which ballots shall be prepared and printed in the same form and shall be of the same size and texture as the regular official ballot except that they shall be printed on tinted paper of a tint different from that of the regular official ballot.

It can be observed that all which was left blank on these absentee ballots was the name of the precinct.

Fouehé neither alleged nor offered proof that these votes resulted from fraud or wrongdoing or that they did not express the public will. To the contrary, his objection is purely téchnical. He seeks to vitiate these absentee ballots simply because the precinct name was left blank. We do not consider this defect, if any, to affect the validity of these votes. In Walker v. Smith, 213 Miss. 255, 56 So.2d 84 (1952), this Court, in discussing absentee ballots, stated:

It must be kept in mind that the legislature was endeavoring to provide means for absent voters to exercise their right of suffrage. The result, therefore, ought not to be lightly tossed aside, unless the irregularity has prevented a full, fair and free expression of the public will. Especially is this true when the special tribunal found as a fact that there was no fraud or intentional wrongdoing in this regard. Gregory v. Sanders, 195 Miss. 508, 15 So.2d 432.

213 Miss. at 259, 56 So.2d at 87.

The omission of a certificate by a certifying officer is far different than the failure to print the name of the election district or precinct on the back of an absentee ballot. Furthermore, Mississippi Code Annotated § 23-9-419 (Supp.1981) contains a mandatory requirement that a ballot should be rejected if there is a defect in the execution of the outside of the envelope containing an absentee ballot and that such vote shall not be allowed.

Fouché’s third assignment of error asserts the circuit judge should have invalidated the entire Satartia box. Since Yazoo County uses voting machines in conducting elections, there was a voting machine in the Satartia Precinct. When the polling was closed on election day, the managers of this precinct duly filled in certificates of election giving the total vote for each candidate as shown on the machine, the total vote for each candidate by absentee ballot, and the grand total of votes cast for each candidate. They did not, however, sign the certificate which was turned in to the election commission. This oversight was corrected approximately one week later on November 14, 1979, when three managers dated and signed the certificate. The election commission checked the voting machine and found the count as shown on the certificate of election to be accurate. Again, there is no charge of fraud or intentional wrongdoing, and since the will of the electors was fairly and accurately expressed, this technical oversite does not invalidate the votes cast at this precinct. See In re Validation $250,000 School Bonds, Greene County School District, 248 Miss. 762, 161 So.2d 169 (1964); and Necaise v. Lott, 226 Miss. 286, 83 So.2d 837 (1955).

Because the remaining assignments of error represent an insufficient number of votes to change the outcome of the election, we do not address them on this appeal.

AFFIRMED.

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

DAN M. LEE, J., takes no part.

APPENDIX

      . Attached as an appendix is a sample of 1 of the 18 ballots.


text:
    Thomas Q. BRELAND v. Loretta V. Morgan BRELAND.
    No. 53887.
    Supreme Court of Mississippi.
    Jan. 5, 1983.
    John C. Johnson, Gulfport, for appellant.
    Parsons & Matthews, Jack Parsons, Wiggins, for appellee.
    Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.
   Appeal from Chancery Court, Perry County; Michael Sullivan, Chancellor.

AFFIRMED.


author: SUGG, Presiding Justice,

text:
    R.E. KEMP & Pat McKay Brister v. The FERN HOUSE, INC.
    No. 54021.
    Supreme Court of Mississippi.
    Jan. 5, 1983.
    Montgomery, Smith-Vaniz & Stater, C.R. Montgomery, Canton, for appellants.
    Bennett, Lotterhos & Sulser, Joseph E. Lotterhos, Jackson, for appellee.
   ON MOTION TO REINSTATE APPEAL

SUGG, Presiding Justice,

for the Court:

The Fern House, Inc. has filed a motion to reinstate this appeal on the ground that it perfected a cross-appeal and the dismissal of the appeal has deprived it of the right to assert its claim to this Court. Kemp and Brister respond to the motion by asserting that Fern House has failed to comply with the provisions of Supreme Court Rule 18 in that they failed to set forth probable error in the proceedings and good cause for reinstatement.

This case was begun by filing a declaration in the Circuit Court of Madison County by Fern House demanding damages in the amount of $363,237.64 from Kemp and Bris-ter. A trial before the judge without a jury resulted in a judgment in favor of Fern House against Kemp and Brister for $7,900. Time was granted for filing post trial motions and a motion for a new trial was filed on February 16, 1982 and overruled on March 4, 1982. Kemp and Brister filed a petition for appeal, apparently on March 8, 1982. The date on the filing stamp is blurred, but most of the instruments appear to have been filed on that date although they were dated March 4,1982. Kemp and Brister also filed a notice to the court reporter dated March 4, 1982. These instruments were filed by Kemp and Brister on the same date that Fern House filed a petition for appeal, a notice of appeal, and notice to the court reporter. The petition for appeal designated the appeal of Fern House as a cross-appeal. The costs have been paid, and although there is no showing as to who made the payment, we presume that the costs were paid by Kemp and Bris-ter since they took the original appeal.

The appeal was dismissed on motion of Kemp and Brister on August 25, 1982. Fern House filed its motion to reinstate on September 3, 1982. Fern House admits that it did not respond to the motion to dismiss because it had no objection to the appellants dismissing their appeal; however, Fern House upon learning that the dismissal carried with it a dismissal of its cross-appeal, Fern House filed its motion to reinstate the appeal.

Since Fern House filed a petition for appeal as authorized by section 11-51-15 Mississippi Code Annotated (Supp.1982), we are of the opinion that Fern House should not be deprived of its right to appeal simply because the original appellants dismissed their appeal.

We therefore reinstate the appeal but with the parties realigned to show Fern House, Inc. as appellant and Kemp and Brister as appellees. This reinstatement is on condition that Fern House furnish evidence to this Court by January 10, 1983, evidence that it has paid all costs by reimbursing Kemp and Brister for the cost which they paid to perfect the original appeal, in case Kemp and Brister in fact paid the cost. However, if Fern House paid the costs of the original appeal it shall furnish evidence of such payment.

We further hold that the reinstatement shall be without prejudice to Kemp and Brister to file a cross-appeal at the appropriate time as provided by Supreme Court Rule 6.

APPEAL REINSTATED.

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

      . Fern House’s petition was designated as a petition for cross-appeal, but should have been simply a petition for an appeal.