author: GARRISON, Judge. GULOTTA, Judge,

text:
    Carmen BALONEY v. Dr. Warren K. CARTER et al.
    No. 11174.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.

      Daniel E. Becnel, Reserve, for plaintiff-appellant.
    Adams & Reese, Edward J. Rice, Jr., New Orleans, for defendants-appellees.
    Henderson, Hanemann & Morris, Robert L. Morris, Houma, for defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing plaintiff’s ■ suit against East Jefferson General Hospital, Doctors Warren K. Carter and Ronald Har-dey, who have an exclusive contract to provide medical services to the emergency room at East Jefferson Hospital, and Hartford Fire Insurance Co., the insurer of Carter and Hardey.

Carmen Baloney was injured in a head-on collision on 1-10 on September 29, 1974, when a vehicle driven by Michael Frilot was traveling in the wrong direction on 1-10. Carmen Baloney was a guest passenger in the vehicle driven by Herman Clayton, Jr. Officers from Troop B of the State Police Force ordered a rescue unit and Carmen Baloney and Herman Clayton were taken to the East Jefferson Emergency Room for treatment. Michael Frilot was pronounced dead on arrival.

The Emergency Room record states:

“History:
Patient brought in by Kenner Fire Unit from 1-10 and Loyola. Auto accident. Police at the scene. Patient complains of pain in both legs — laceration right elbow. Diagnosis:
Laceration and contusions left knee.
Full Range of Motion:
All joints — x-ray, no fracture.
Blood Pressure: 138/90
Pulse: 108
Respiration: 28
Treatment:
X-ray Left Knee.
* * * * * *
“Recommendation and/or instructions to patient: See Guevara (lined out and added) “Meharry Hospital” in one week, /signed/ R.A. Hardey, M.D. 9/24/74”

On October 2, plaintiff was admitted to Oschner Hospital at the request of Dr. F. J. Padua, an orthopedist whom she had consulted in the interim. At Oschner, she underwent treatment for a fractured pelvis and a fractured right leg. She was treated at Oschner, where she was placed in traction, for a period of approximately three weeks.

Carmen Baloney filed the instant suit in tort alleging negligence on the part of the defendants in failing to properly diagnose the injuries, failing to properly x-ray Carmen Baloney, failing to refer plaintiff to a specialist, failing to hospitalize the plaintiff after she had so requested and failing to properly equip and/or supervise the operation of the emergency room.

After trial on the merits, the district court rendered judgment reading in part as follows:

“. . . the Court being of the opinion that while defendants were negligent in the premises, that said negligence was in no way responsible for any damage to Plaintiff, and that said case is a classi example of ‘injuria absque damnun’ ”

From the judgment of dismissal, which we reverse, Carmen Baloney appealed.

At trial, Carmen Baloney testified as follows:

“Q: And, when you got to the emergency room, did you make any complaint?
A: Yes, I did. My knee — well, my knee was cut. I complained about that and my hip, that my right hip was hurting. It was hurting. It was very painful and I couldn’t stand on it at all, not alone. I needed help. Somebody had to be on both sides of me to hold me up. I couldn’t put pressure on it at all.
Q: Did you ask for the hip to be X-rayed?
A: Yes, I did.
Q: Did you ask for any other x-rays to be taken?
A: No. My concern was the hip. That’s where I was paining. But, the only x-rays that was taken was the one of the knee that was cut. So, they had to take x-rays to see if they had any debris, any debris in my knee.
Q: Now, did you see Dr. Hardey, at the emergency room?
A: Yes, I did.
Q: What did he tell you and what did he do for you?
A: He sutured my knee and I had — the arm wasn’t bad enough to have stiches, so, they just bandaged it up. And, I complained about my hip. So, he said he checked it and say it most probably was a sprain. So, I asked him could he give me some kind of pain pill to help it because it was hurting real bad. So, he said well, I’ll give you a prescription for some pain pills. So, he gave me the pain pills and told me that the only thing I had to do was like rub my leg down real good with either some alcohol or something to help the sprain.
Q: Now, did you, Carmen, at that time, tell the physician that you had been unconscious after the accident?
A: Yes. He asked what happened. I told him that I had — that I was sleeping and that I was knocked unconscious.
Q: Did you tell that to the nurse also when she asked you and took a history?
A: Yes.
Q: Were you next to Mr. Clayton, being treated in the emergency room?
A: Yes. The only thing they had separating us was the curtains. (Tr. pp. 99-101).
‡ $ ‡ $ Hi $
“Q: Now, after you were released from the hospital, were you able to walk down to the car?
A: No. I couldn’t get off the table alone. It was painful. Like the nurse told me, she said, you can walk now. You just put pressure on this other leg that has the suture, you walk — like they have the little stool you usually step on to get on, I tried, but I couldn’t, and I told her. So, my brother put me in the wheelchair and he brought me down and he had to carry me to the car and out of the car after we got home.
* sfs * 4c * *
“Q: Now, after you went home, did you have any further problems with your hip?
A: It got worse. I was beginning to stiffen up. Like, it was after I got home from the hospital, by the time it took us to get home I was stretched out on the back seat, and I was beginning to stiffen up. Then, when we got home my brother carried me and put me in the bed and I was all stiff and everything then. And it was hurting and as the days passed on it got worse.
Q: Were you in bed the entire time, from the period before you saw a physician?
A: Yes, I was.” (Tr. pp. 101-102)
* * * * * *
“Q: When you got to the Oschner Foundation Hospital, did you tell the physician that admitted you what had happened and what was hurting?
A: Yes, I did.
Q: Did you tell the admit clerk that you were asleep when the crash took place and that you were awakened and alert when you reached the hospital? Did you tell them that?
A: Yes, I did.
Q: Did you also tell them that you had pain in your hip and that you were treated at the East Jefferson Hospital for your elbow, your left knee and you were x-rayed?
A: Yes.
Q: And, that’s what you had told the admit clerk when you arrived there, four days after the accident occurred, at Oschner?
A: Yes.
Q: Did you ever tell any other physicians at Oschner that the pain in your hip didn’t start until two or three days after the accident?
A: No, because it started that same night of the accident, right after the accident. At least I became alert — that’s when I started feeling the pain.” (Tr. pp. 106-107)
* * * * * *
“Q: Did you ask Dr. Hardey to have you hip x-rayed?
A: Yes, I did.
Q: Why did you ask him that?
A: Because it was hurting and I figured something was wrong with it because of the way it was hurting.
Q: Did you ask him to have your hip x-rayed before or after your knee was x-rayed?
A: I don’t know whether it was before or after but I know I asked him.
Q: You don’t remember when?
A: No.
Q: When you asked the doctor that your hip be x-rayed, according to your testimony, was that before your family arrived?
A: Yes, it was before they arrived.
Q: Did you ask Dr. Hardey that the x-rays be taken of your head?
A: I didn’t ask him anything about my head, no.” (Tr. p. 116)
* * * * * *
“Q: I believed you testified, Ms. Baloney, that Dr. Hardey told you that you had a sprain?
A: Yes.
Q: And, he used that term?
A: Yes.
Q: You had a sprain?
A: Yes.
Q: And, that was with reference to pain in your hip?
A: Right.
Q: Did he specifically examine you hip area?
A: Just kind of felt it and just said well I think it’s just a sprain.
Q: But, he didn’t try to move your hip or anything like that or bend it?
A: No.
Q: Is that right?
A: No, he didn’t. (Tr. p. 121)
* * * * * *
“Q: So, that it’s your testimony that he did not either flex, move up and down, or turn, rotate your hip?
A: No.
Q: Didn’t check for hip movement at all, is that right?
A: No.
Q: Did he check for movement of any other part of your body?
A: No.
Q: Did he check your knee?
A: The knee was cut. He checked it to see if anything was in it and kind of felt around it and got ready to stitch it up.
Q: And, what about your ankle?
A: No.
Q: What about your arms? Did he check your arms?
A: He checked where I had the little cut. That was it.
Q: Did he move your arm around at all?
A: No.
Q: Did he check your abdomen or your stomach?
A: No.
Q: Did he examine you abdomen or your stomach at all, even through your clothing.
A: No.
Q: So, basically, the only thing he did do on the initial examination, was look at your two cuts, one on your knee?
A: And one on my elbow
Q: And, that's all he did, is that right?
A: That’s all. My leg, my right leg, he just felt it up on my thigh part. He just felt it and says, most probably a sprain.
Q: Did he feel it just on one side or did he feel on both sides?
A: Right in the center part.
Q: Just on your right leg?
A: Just the right leg.
Q: Didn’t push on your left side and you right side?
A: No.
Q: Didn’t try to push your hips together?
A: Not at all.
Q: And, didn’t pick up your leg and move it in any way and didn’t ask you to do it, is that right?
A: No, he didn’t. (Tr. pp. 122-123)
* * * * * *
“Q: And, you also asked Dr. Hardey, at that time, since you were going to have an x-ray of your knee, if they would also x-ray your right hip, is that right?
A: Yes.
Q: And, what did he say?
A: I don’t recall what he said. He just ordered to do an x-ray of the knee. That was it. I asked him because the leg was hurting, you know, it was hurting real bad, and that undoubtedly something was wrong with it. I know they usually can tell if something is wrong if they take an x-ray. They can usually tell something broken.
Q: Did he tell you he was not going to have an x-ray?
A: He didn’t do it. He just didn’t do it. He took an x-ray of the knee and told me it was sprained.
Q: When you came back after having your knee x-rayed, did you ask again why your hip wasn’t x-rayed?
A: No, I did not ask him. He told me it was sprained. So, I believed him that it was sprained.” (Tr., pp. 123-124)

Carmen Baloney’s testimony that she complained of hip pain and that she asked to have her hips x-rayed is corroborated by several other people. Herman Clayton, Jr., the other injured party who survived the accident, testified that he heard the plaintiff complain of hip pain:

“Q: Were you placed in a room next to Ms. Baloney?
A: I was placed in the same room with her but there was a curtain between the two of us.
Q: Did you overhear anything in connection with her treatment?
A: Her complaining about the pain in different areas, the legs, the hips.
Q: What was she complaining about?
A: Pain in the legs, hips, arms — at the time she was talking to whoever it was in the room with her and they were asking the different areas that it hurt and how she was feeling or just what she was saying her legs, her hip, her elbow — a list of what was actually paining her, and she was constantly saying because they kept asking about it . . .” (Tr. p. 44).
* # * * * #
“Q: And, you specifically remember her stating that she had pain in her hips, is that correct?
A: Legs and elbow, yes.
Q: Hips?
A: Yes, yes.
Q: You specifically remember the word hips, is that right?
A: Yes.
Q: Do you recall whether or not she or anyone else made any mention that she was unable to move her legs or her hips?
A: We had to carry her from the car. She couldn’t walk . . (Tr. p. 53)
******
“Q: You indicated that Ms. Baloney complained specifically of pain , in the hip. Were you in a position to see whether or not Dr. Hardey was there at the time she made those complaints?
A: I do not remember Dr. Hardey, so, I couldn’t say whether the man was around or not. I was next door to Ms. Baloney and all I heard was her telling someone. It could have been even Dr. Hardey. It was about the pain in different areas that were already mentioned.
Q: But you don’t know for a fact that Dr. Hardey was there at the time that she mentioned any problem with her hip, is that correct?
A: No, I don’t know who was in the room with her.” (Tr. pp. 55-56)

Herman Clayton further corroborated the allegation by Earl Baloney, Sr., Carmen’s father, that he had requested that Carmen be admitted to the hospital.

“Q: Were you present when a request was made by anyone from Ms. Baloney’s family, to keep her in the hospital?
A: I did hear her father, outside the x-ray room, ask someone. I was on by back — I don’t know who it was, but, ask someone to admit her to the hospital or if they would admit her to the hospital.
Q: And, you don’t know what occurred after that?
A: No, I don’t. I was rolled into the x-ray room.
******
“Q: Did you ever hear anyone ask or tell Dr. Hardey that Ms. Baloney should be admitted to the hospital?
A: Again, I couldn’t tell whether it was Dr. Hardey, because I didn’t recall seeing the man himself. Again, I do remember Mr. Baloney asking someone to admit his daughter to the hospital. Other than that, I don’t know if he asked Mr. Hardey or if anyone did.” (Tr. pp. 46-A7).

Earl Baloney, Sr., the plaintiff’s father, testified that he was summoned to the emergency room by the hospital staff. When he arrived at the emergency room, Carmen complained to him about pain in her hip:

“Q: Did she make any complaint to you, about her legs, her hips, her elbow, her knee?
THE WITNESS: The main problem was her hip. She was showing me the cuts, the lacerations where she had sutures but her main complaint, statement, was her hip was hurting her and the one they failed to x-ray. She didn’t x-ray her hip and she asked them to x-ray it, they never did.” (Tr. p. 81)
******
Q: You asked her?
A: Yes. She kept telling her what was hurting her and they never x-rayed — her main complaint was not the laceration on the elbow, her main complaint was her hip, and that’s what she told me about. They didn’t x-ray it. She told me.” (Tr. p. 90)

Additionally, Earl Baloney sought to have his daughter hospitalized, but was refused:

“Q: What did you ask. the nurse?
A: I asked her to, don’t she think she should be admitted to the hospital and she said that the doctor don’t think it’s necessary. She only is going to be stiff for a few days and I told her I am very much concerned that my daughter or anyone else, child, involved in a head-on collision, will be concerned and after knowing that she was practically knocked unconscious for four or five minutes, that is serious enough right there to be admitted, regardless of the hip, and she stated she would only be stiff. I wasn’t so much concerned about her being stiff, but, her being knocked out in the accident, and had a head injury.
Q: And you were told that it was not necessary for her to be admitted?
A: The nurse told me — she said the doctor said it’s not necessary, she will only be stiff three or four days.
Q: Then, what did you do with your daughter?
A: I carried her from the wheelchair to the car and we carried her back home and placed her in the bed. (Tr. pp. 81-82)
* # * * * *
“Q: Carmen was conscious?
A: Right.
Q: You spoke to her?
A: I did.
Q: Who was with her at the time you spoke to her?
A: The nurse was right there.
Q: Was the doctor?
A: I didn’t see no doctor.
Q: Did you see, at this time, if Carmen had already had her left knee stitched up?
A: Right. She had had her clothes on. Undoubtedly, she is sutured, being undressed from the accident or the x-rays or what'happened, but, she was ready to go home when we got there.
Q: She was ready to go home?
A: She was sutured and she was sitting in a wheelchair.
Q: You heard Carl testify that he asked you to speak to the nurse about admitting her to the hospital.
A: I did.
Q: Is that correct?
A: Right. I say it because I was very concerned. I wanted her admitted not too much about the knee or hip, but being knocked out for four or five minutes, is a serious condition, in my estimation. Head injuries are — they are the most important since in an accident, if the head injury is involved as she said she was — I wasn’t at the scene, but, there was a statement she was knocked out.
Q: So, you are concerned at this time about wanting her to be admitted?
A: For evaluation.
* * * * * *
“Q: And, what was the nurse’s reply to you?
A: The doctor said she was going to be stiff for a few days and not necessary to be admitted to the hospital, just rub her down with alcohol. So, I was very relieved about that, thinking it would be— that’s all it would be, and, we find out it turns out just the opposite.” (Tr. pp. 87-88)

Carl Baloney, the son of Earl Baloney and the brother of the plaintiff, accompanied his father to the emergency room. Carl Baloney also testified that his sister complained of hip pain while she was at the emergency room:

“Q: Was she making any complaint at that time, sir? •
A: She was complaining that she had complaints about her hip and knee.
Q: Why couldn’t she walk?
A: Well, my question was in making preparations to leave, you know, did she really need the wheelchair or was she just placed in it for convenience. She stated — she complained about her hip and— but, I asked her to walk because she could put pressure on her right but she didn’t have any stitches on the other, so, she could hop to any car. But, she said she couldn’t put pressure on the right leg because she was in pain. (Tr. p. 64)
* * * * # *
“Q: And, you are positive your sister was complaining that day, that night, in the hospital or that early morning in the hospital of pain to her hips, her legs, knees, and elbows?
A: I’m definite because I had to carry her from the wheelchair to the car, from the car to the bed, you know. She was not able to put any pressure at all on her leg.” (Tr. p. 66)

Carl Baloney also testified that his father had sought to have Carmen admitted, but was refused:

“Q: Did you and your father ask that she be admitted to the hospital?
A: Well, I questioned him. I said, let’s see about getting her admitted, examined further. My father, I think, spoke with one of the nurses to see about having her admitted and what the nurse told him when he came back is that it was not serious, that she would probably be stiff for a couple of days because of probably a sprain in her leg. (Tr. p. 64-65)
******
“Q: Did you specifically request that your sister be admitted to the hospital?
A: I was concerned, I asked my father— I’m a pre-med student. So, I have some basic knowledge as far as her injury. I was concerned of her being, my sister, and concerned because of just knowledge of the accident. I thought it was severe because I had seen the condition of Clayton and I knew first-hand that there was a fatality. And, I felt that she should have been examined further.
Q: Did you ask this of the nurses?
A: I requested my father to talk to them to see if she could be admitted.
Q: Did your father then in turn request this of the nurses?
A: He did.
Q: Was anything done?
A: No. He was reassured that her injuries were not serious enough to warrant any admission. (Tr. pp. 65-66)
***** *
Q: Now, this nurse, was this a female nurse?
A: Yes.
Q: And, what was her reply to your father?
A: That she had been examined and they have taken x-rays, because he asked for the x-rays. I had questioned Carmen myself, as to had they taken x-rays of the hip, which she had not taken. The nurse advised my father that x-rays had been taken and she had been checked by the doctor and that she would probably be stiff for a couple of days and that the hip — and, that the leg would probably, the leg was probably sprained.” (Tr. pp. 69-70)

In contrast to the testimony of the previous witnesses, Dr. Hardey testified that the plaintiff made no complaints of hip pain to him, although she did complain of pain in both legs:

“Q: . . . Would you explain for us, what the entry, under the brief history section, particularly, patient complained of pain in both legs, would indicate to you as a physician?
A: Pain in the legs, anatomically, the leg is the portion of the lower extremity, between the knee and the ankle. Now, the portion between the knee and hip is referred to as the thigh, but, lay people generally don’t make the distinction. So, that the leg means anything below the hips. (Tr. p. 162)
******
“Q: With regard to that entry, what did you do in the particular history in which you took with this patient?
A: When the patient complains of pain in both legs, then I check the mobility of all the joints in both legs, both lower extremities. You flex the ankle, flex the knee, flex the hip, rotate the hip.
Q: Would you explain to the Court how you would accomplish that with the patient on a stretcher such as Ms. Baloney testified that she was at the time of your examination?
A: You would first check for active mobility, ask the patient to move the part. If the patient is unable to move the part, either unable or unwilling, because pain might intervene, then you raise the part yourself. You would have to raise — extend the leg from the table — check it at the knees. Next, check it at the ankle and rotate it to check for hip mobility.
Q: What is the effect of flexing the knee of a patient lying on a stretcher?
A: Well, you can’t flex the knee without also flexing the hip.
Q: What is the effect of rotating the knee with a patient on a stretcher?
A: Well, a normal knee doesn’t rotate. The rotation motion is transferred to the hip. The hip would rotate.
Q: If in fact you would not have been able to flex this, without complaint of pain, would any notation have been made on this chart?
A: I don’t follow that.
Q: If you had not been able to flex the knee, and rotation of her joints, particularly the hip joint, would any notation to that effect have been made on this particular chart?
A: If such a manipulation had induced pain in the patient, a pain response in the patient, then you would have suspected injury at the level that the pain occurred, and consequently would x-ray that part.
Q: Was any complaint, of pain, made to you, either by the patient or by any of the hospital personnel, about Ms. Baloney’s hip or the pelvic area?
A: No complaint was ever registered concerning the hip.” (Tr. pp. 163-164)

Dr. Hardey also testified that no one requested of him that x-rays be taken of the hip area and that no one asked to admit Carmen Baloney to the hospital.

“Q: Ms. Baloney has stated that she asked you to have her hip x-rayed. Do you recall that?
A: No. I do not recall that she asked anything concerning the hip or mentioned the hip in my presence.
* # * * H¡ %
“Q: Did either Ms. Baloney or anyone in her family request or suggest hospitalization for her on that evening?
A: Not at any time.” (Tr. p. 168)

Our review of the record indicates to this court, as it did to the trial judge, that the defendants were negligent. However, we find results of the judgment to be erroneous as a matter of law.

The theory of damnun absque injuria is one rarely seen in the jurisprudence of Louisiana. In McFarlain v. Jennings-Heywood Oil Syndicate, 118 La. 537, 43 So. 155, 156 (1907), the Louisiana Supreme Court reasoned that damnum absque injuria could not be asserted as a defense to plaintiff’s allegations that his property had been damaged by oil field waste overflow, because the defense was predicated upon the assumption that there existed a servitude of drain on the lower estate owned by plaintiff, whereas Civil Code Art. 660 provided only for a natural servitude of drain, not created by the industry of man.

In Helmer v. Colorado Southern, N.O. & P.R. Co., 122 La. 141, 47 So. 443 (1908), the Louisiana Supreme Court cited, prior to reversing, its own prior ruling in McMahon v. Railroad Co., 41 La.Ann. 827, 6 So. 640, 641 (1889) wherein the court held that:

“(m)ere consequential damage to property, when the property itself was not taken, was not recoverable, and much less any damages resulting to individual owners in the way of discomfort, inconveniences, loss of business, and the like. All such injuries, inasmuch as they resulted only from the exercise by another of his legal right were damna absque injuria." (emphasis added).

In Helmer, the court reversed itself finding:

“. . . that noise, smoke, vibrations, etc. incident to the operation of defendant’s trains in front of plaintiff’s property are elements of damage to be considered, if the market value of plaintiff’s property is thereby diminished, the amount of damages to be determined by the difference between the market value before the road was built and the market value afterwards.” (47 So. at 444).

In Jarnagin v. La. Hwy. Comm., 5 So.2d 660 (La.App. 2nd, 1942), the Second Circuit, failing to cite Helmer, above, cited the McMahon case above for the proposition that in expropriation cases under Art. I § 2 of the Constitution of 1921 which provided just compensation for property taken “or damaged,” the language “or damaged” was not intended to cover damages to property where the damage, if any, “is general to all property in the neighborhood of plaintiff, and not specially sustained by her property; that if any consequential damage has been suffered because of the improvement, such falls within the realm of damnum absque injuria.” (emphasis added). At 663.

In Dupont v. Thibodo, 5 So.2d 383 (Orl.La.App., 1942), the court found that plaintiff’s loss of business and stock in trade, resulting from draining and sewerage work done in front of his business, which forced him to close, were not recoverable stating:

“. . . In any event, the inconvenience and loss which plaintiff suffered was necessarily incident to the execution of defendant’s contract with the Sewerage District for the installation of sewerage pipe, a public improvement which could not be effected without inconvenience to adjacent property holders and since we find no negligence on the contractor’s part, the damage which plaintiff has suffered is damnum absque injuria.” (emphasis added). At 385.

In Evans v. Dugan, 205 La. 398, 17 So.2d 562 (1944), the Supreme Court again relied upon the theory of damnum absque injuria:

“Plaintiff, as a riparian proprietor, has no right to appropriate to his exclusive use the shore of Lake Bistineau lying in front of his land, nor has he any private property right in the use thereof, which is public and under the administration and control of the state agencies designated in the legislative acts. Unless manifestly abused, the discretion of the Lake Bisti-neau State Game and Fish Commission and Department of Conservation in determining what are suitable and needed facilities to promote the public use and enjoyment of the area embraced within the Preserve is not a proper subject for judicial control or interference. The authority of the Commission and the Department of Conservation in this respect is not restricted by Article 455 of the Civil Code which declares that “the use of the banks of navigable rivers or streams is public,” and that “accordingly every one has a right freely to bring his vessels to land there,” etc. This general right must yield to the specific right granted the Lake Bistineau State Game and Fish Commission and the Department of Conservation to control and supervise the territory embraced within the Lake Bisti-neau State Game and Fish Preserve as established by Act No. 43 of 1930 and Act No. 64 of 1942. Whatever incidental damage may result to plaintiff or to other proprietors of lands bordering on the shore of the lake within the Preserve from the exercise by the designated agencies of their right to control and supervise the Preserve is damnum absque injuria . ” (emphasis added). At 566.

In Gliptis v. Fifteen Oil Co., 204 La. 896, 16 So.2d 471 (1943), the Louisiana Supreme Court allowed plaintiff to recover damages sustained as a result of subsurface trespass which occurred when the defendant slant drilled into a pool of oil to which plaintiff alone possessed mineral rights. In rejecting a defense of damnum absque injuria, the court specifically cited R.C.C. Art. 21 and stated:

“Furthermore, the Revised Civil Code confers upon judges broad and sweeping equity powers in cases where there is no express law to guide them, and ‘Equity will not suffer a right to be without a remedy.’ ” (emphasis added). 16 So.2d at 478.

The court additionally rejected the doctrine on a theory of negligence:

“This is not a case of “damnum absque injuria.” That is a phrase used to describe a loss arising from actions or conditions which do not create a ground of legal remedy. (See 11 Words and Phrases, Permanent Edition, Damnum Absque Injuria, page 59.) The acts done by defendant — if it did them — constituted a trespass upon the property of plaintiff, a wrong for which the law provides a remedy. Revised Civil Code, Article 2315.” 16 So.2d at 478.

The most recent case to mention the theory is Harvey v. Great American Indemnity Co., 110 So.2d 595 (La.App. 2d, 1959). In Harvey, the court applied proximate cause analysis to an automobile accident. In differentiating between “proximate cause” and “remote cause” the court cited Cyclopedia of Automobile Law and Practice, Section 2531 for the following proposition:

“The remote cause is that cause which is behind the proximate cause, which produces the injury, and those damages which are the result of a remote cause form a part of that large mass of resulting losses styled ‘damnum absque injuria,’ for which the law permits no recovery.” At 600.

As is indicated by the caselaw discussed above, where a valid, even if conflicting, exercise of a superior legal right gives rise to only consequential damages, or is merely a remote cause as opposed to a proximate cause, then those damages are non-recoverable under damnum absque in-juria. But where that exercise of a right creating consequential damages is incurred by specific allegation in tort and the damages are incurred by specific persons as opposed to the public generally, then the theory of damnum absque injuria will not defeat an action in tort.

Although the trial judge did not provide written reasons for judgment, in order for him to have applied damnum abs-que injuria, he must have erroneously concluded that the four day delay in obtaining treatment, resulting from defendants’ failure to diagnose the fracture or heed plaintiff’s and plaintiff’s family’s complaints and request, did not result in an aggravation of the injury incurred in the accident; but this is not the harm for which damages are sought. The harm is the four additional days of pain and inconvenience suffered by Carmen Baloney, who testified that as soon as she was placed in traction, the pain ceased. “Pain, although unaccompanied by objective signs of injury, is compensable because it is ‘damage’ to the person suffering such pain.” Nelson v. Hawkins, 244 So.2d 656, 547 (La.App. 2d, 1971).

Pretermiting a discussion of medical malpractice, we note that the trial judge found that the defendants were negligent in the premises. The evidence presented also convinces this court that such negligence indeed occurred and that the trial court’s reasons for judgment on this issue should be allowed to stand.

Turning now to the question of quantum, we note the peculiar nature of the damages to be awarded. Although plaintiff’s cause of action in the instant appeal is different from the cause of action which gave rise to the various fractures, the majority of the damage suffered by plaintiff was resultant from the automobile accident, which suit was concluded by a prior settlement. As all special damages were incurred as a result of the suit previously settled, this court seeks to award only general damages for the period of Sunday, September 29 through Wednesday, October 2, in hours, roughly three days. Unfortunately, our reported cases are not so neatly broken down. A review of recent awards of general damages for hip, pelvic, and leg fractures, however, reveal the following:

1. Monnerjahn v. Aetna Life & Cas. Co., 350 So.2d 1249 (La.App. 4th, 1977), $25,000.00 general damages;

2. Chmurka v. Southern Farm Bureau Ins. Co., 357 So.2d 1207 (La.App. 4th, 1978), $15,000.00 general damages;

3. Fowler v. Western Union Tel. Co., 357 So.2d 1305 (La.App. 3rd, 1978), writ refused, 359 So.2d 196 (La.), $200,000.00 general damages;

4. Anding v. Southwestern Ins. Co., 358 So.2d 690 (La.App. 3rd, 1978), writ refused, 360 So.2d 1179 (La.), $200,000.00 general damages;

5. Sansonni v. Jefferson Parish School Board, 344 So.2d 42 (La.App. 4th, 1977), writ refused, 346 So.2d 209 (La.), $45,000.00 general damages;

6. Rheams v. McCray, 346 So.2d 834 (La.App. 1st, 1977), writ refused, 351 So.2d 154 (La.), $7,500.00 general damages;

7. Bevil v. Heath Timber Co., 347 So.2d 889 (La.App. 3rd, 1977), $20,000.00 general damages;

8. Teal v. Allstate Ins. Co., 348 So.2d 83 (La.App. 4th, 1977), writ refused, 351 So.2d 164 (La.), $15,000.00 general damages;

9. Witherwax v. Boys Village, Inc., 350 So.2d 196 (La.App. 3rd, 1977), $15,000.00 general damages;

10. Jenkins v. Ferguson, 357 So.2d 39 (La.App. 3rd, 1978), $10,000.00 general damages;

11. Smith v. Castle, 361 So.2d 303 (La.App. 1st, 1978), rev’d 360 So.2d 795 (La.), $10,000.00 general damages.

In light of the applicable range of damages, an award of $12,000.00 would be neither inadequate nor excessive.

For the reasons assigned, the judgment of the district court is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the Plaintiff, Carmen Baloney, and against the Defendants, Dr. Warren K. Carter, Dr. Ronald Hardey, Hartford Fire Insurance Co., and East Jefferson General Hospital, individually, severally, and in soli-do, in the sum of SIX THOUSAND and NO/100 ($6,000.00) DOLLARS with legal interest from the date of demand until paid and all costs of the proceedings.

REVERSED AND RENDERED.

GULOTTA, J., concurs.

GULOTTA, Judge,

concurring.

I concur with the judgment awarding damages to plaintiff. However, I am of the opinion that the $6,000.00 award is somewhat high. I would render judgment awarding a substantially lower amount.

      . Although the case is captioned “Hartford Accident and Indemnity Co.,” the corporate name is Hartford Fire Insurance Co. See Answer filed Nov. 2, 1977, T. Vol. I, p. 49.

      . “premises — That which is put before; that which precedes; the foregoing statements . in pleading, the expression ‘in consideration of the premises means in consideration of the matters herein stated . . Black’s Law

        Dictionary, (West Publishing Co., 4th Ed., 1968) p. 1343.

      . “injuria absque damno — Injury or wrong without damage. A wrong done, but from which no loss or damage results, and which, therefore, will not sustain an action.” Black’s Law Dictionary, supra, p. 24.

      . ' Tr. p. 108.


source: Caselaw Access Project

author: CHEHARDY, Judge. GARRISON, Judge,

license: Public Domain

text:
    Donald PITTS v. GULF SOUTH DIVERS, INC.
    No. 11215.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    George Scariano, Metairie, for plaintiff-appellee.
    Klein & Rouse, Henry L. Klein, New Orleans, for intervenor-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Ronald Treadway, intervenor, appeals from a trial court judgment rendered September 24,1979 and signed October 1,1979, ordering judgment in favor of plaintiff, Donald Pitts, and against defendant, Gulf South Divers, Inc., and further ordering the clerk of court to pay attorney fees to George Scariano, attorney for Donald Pitts, in the sum of $4,000 and all costs of the proceedings.

Plaintiff petitioned the trial court on March 21, 1979 for executory process as holder of a note made by Gulf South Divers, Inc., and signed by Ronald Treadway in the amount of $20,000. The note recited that the signer promised to pay this amount “two years after date” with interest at the rate of 8% per annum from maturity until paid and stated:

“ * * * [I]f it becomes necessary to place note in the hands of an attorney for collection of same or any part thereof, including interest, whether with or without suit to pay attorney’s fees which are hereby fixed at 25% per cent, on the amount collected or sued for. The makers, endorsers and sureties on this note, jointly and severally waive, presentment for payment, protest and notice of protest for non-payment. Payments as made shall be imputed first to the payment of interest and the balance thereof to payment on principal; this process to continue until payment of the entire obligation.”

The note was signed only by Ronald Tread-way under the name “Gulf South Divers, Incorporated.”

Additionally, a conventional mortgage was executed on October 20, 1976, in connection with the above-described note, encumbering a piece of immovable property in Belle Chasse in the parish of Plaquemines. The following corporate resolution was attached to the mortgage and mentioned therein:

“BE IT RESOLVED by the board of Directors of GULF SOUTH DIVERS, INCORPORATED at a regularly held meeting of the Corporation on October 12, 1976 that this Corporation hereby authorizes Ronald Treadway to purchase Real Estate hereinafter described on Exhibit 1 attached hereto and made part hereof from Donald E. Pitts on the basis of $56,000.00 sale price, $16,000.00 of which shall be cash and for the balance thereof of $40,000.00 the corporation will assume that certain vendor’s lien and mortgage of Donald E. Pitts in favor of Security Homestead Association in the amount of $42,000.00 dated May 1974 recorded at MOB 76, folio 712 of the Plaquemines Parish records.
“Ronald Treadway is further authorized to execute a mortgage on the property to be acquired from Donald E. Pitts in the amount of $20,000.00 payable to the order of holder or holders bearing interest at the rate of 8.00% percent per an-num from maturity and payable to [sic] years after date and said mortgage to be executed by Ronald Treadway and the note given to holder or holders to obtain funds for payment of the cash portion of the sale price.”

Attached to the above resolution was a description of the property involved in this transaction.

Contained in the trial court record is also a copy of the following letter, dated February 26, 1979:

“Mr. Ronald Treadway
Gulf South Divers, Inc.
P.O. Box 490
Belle Chase [sic], Louisiana 70039
Dear Mr. Treadway:
Please be advised that Don Pitts has turned over to me for collection the mortgage nóte of Gulf South Divers, Inc., dated October 20, 1976, in the amount of $20,000.00. Please let this serve as formal demand for payment in full of the sum of $20,000.00, principal; $533.33, interest; and $5,133.33, attorney’s fees. If payment is not made within the next ten (10) days, I have been instructed to begin legal proceedings in order to enforce foreclosure on the mortgage.
Additionally, as you know, the $16,-000.00 in cash that was suppose [sic] to be paid to Mr. Pitts at the time of the sale was not paid and please let this serve as formal demand for payment of that money to him within the same period of time.
Very truly yours,
ARMENTOR & WATTIG-NY
Gerard B. Wattigny”

On March 21, 1979, Pitts filed a petition for executory process against Gulf South Divers, Inc., asking for a writ of seizure and sale of the subject property, petitioner to be paid the amount of his claim in preference over all other persons.

On June 5, 1979, Wayne C. Giordano, liquidator of Gulf South Divers, Inc., asked the court by answer to enjoin the executory process with a temporary restraining order and injunctive relief.

On June 14,1979, the trial court rendered the following judgment:

“By way of a joint stipulation in open court of Mr. George Scariano, attorney for Plaintiff, Donald Pitts, and Mr. Wayne Giordano, attorney, Liquidator of Gulf South Divers, Inc.:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the interest on the note dated October 20,1976, in the amount of $20,000.00 maturing on October 20,1978, be and is hereby waived from the date of maturity.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Mr. Allen Lobrano, Clerk of Court, in and for the Parish of Plaquemines, issue to Mr. Donald Pitts, the holder of said note, a check in the sum of $20,000.00, to be paid out of the fund on deposit in the Registry of the Court in this case.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Mr. Allen Lobrano, Clerk of Court, in and for the Parish of Plaquemines, issue to Mr. Wayne Giordano, Liquidator of Gulf South Divers, Inc., a check for $10,000.00 to be paid out of the fund on deposit in the Registry of the Court in this case.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the remaining $5,000.00 on deposit in the Registry of the Court be left in escrow until such time as a Rule is heard to determine attorney’s fee and court cost, excluding legal interest, is due and owing on said note.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Mr. Allen Lobrano, Clerk of Court, in and for the Parish of Plaquemines, cancel the mortgage recorded in MOB 86, Folio 762 and the Notice of Seizure recorded in MOB 100, Folio 701.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the issuance of a Permanent Injunction in this matter is moot and that the sale of said property be and is hereby canceled.”

The October 1, 1979 judgment, which in-tervenor Treadway now appeals, states:

“The rule to show cause why defendant should not pay attorney’s fees and court costs in these proceedings was had before this Court on September 24, 1979.
“PRESENT: George Scariano, attorney for Donald Pitts; Wayne C. Gior-dano, liquidator of Gulf South Divers, Inc.
“After hearing the evidence and argument of counsel, and the Court being of the opinion that the law and evidence is in favor of mover;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the rule be made absolute and accordingly that there be judgment herein in favor of Donald Pitts and against defendant, Gulf South Divers, Inc., ordering that the Clerk of Court pay attorney’s fees to George Scariano, attorney for Donald Pitts, in the sum of Four Thousand and 00/100 ($4,000.00) Dollars and pay all costs of these proceedings including the cost due the Clerk of Court and the Sheriff of Plaquemines Parish and the balance in the Registry of the Court to be paid to Wayne Giordano, Liquidator of Gulf South Divers, Inc.”

We cannot agree with appellee’s argument that the appellant, Treadway, had no right to intervene in this case at the appellate level. Plaintiff cites the case of Dawson Engineers, Inc. v. Lemel Iron Works, Inc., 307 So.2d 771 (La.App. 1st Cir. 1975), where a corporation’s president was held as lacking sufficient interest to intervene on the appellate level in a suit brought against the corporation as defendant; however, we hold, due to the fact that Gulf South Divers, Inc., is a closed corporation, wherein Pitts and Treadway are both 50% shareholders, and this corporation is now in liquidation, Treadway has sufficient interest to intervene in the present suit for review before this court. In support of this holding, we refer to the case of Andrus v. Police Jury of Parish of Lafayette, 266 So.2d 535 (La.App. 3d Cir. 1972), wherein the court stated the general legal principles involved in intervention at page 538:

“Any person who could have intervened in the trial court may appeal whether or not any other appeal has been taken. C.C.P. Article 2086. In providing for intervention in Louisiana, the redactors of the Code of Civil Procedure adopted the civil law theory of intervention because it is more suited to the implementation of our substantive law. This civil law theory requires a connexity between the right asserted by the interve-nor and the original suit and allows a third person to enforce through the intervention, the right of one or more of the original litigants when his own rights would be prejudiced by the non-enforcement thereof.
“Thus, C.C.P. Article 1091 states that: ‘A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
‘(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
‘(2) Uniting with defendant in resisting the plaintiff’s demand; or
‘(3) Opposing both plaintiff and defendant.’
The sole object of an appeal is to give an aggrieved party to a suit recourse to a superior tribunal for the correction of a judgment of an inferior court, and such right is exended [sic] not only to the parties to the suit in which the judgment is rendered, but also to a third party when such third party is allegedly aggrieved by the judgment. * * * ”

We can find no merit, however, in Treadway’s argument that the note he signed indebting Gulf South Divers, Inc., contained a potestative condition, which was defined thusly in the case of Martin-Parry Corp. v. New Orleans Fire Detection S., 221 La. 677, 60 So.2d 83, 85 (1952):

“A potestative condition is stated by Article 2024 of the LSA-C.C. to be one <* * * which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.’ Hence, the nature of the condition is such that it depends upon the occurrence of an event, uncertain in that only one party to the contract is given the right, through whim or caprice, to either bring about the event or hinder it; that is why such a condition, which is purely potestative, renders the obligation null as to the obligor.”

The signer of the note was Treadway, and, obviously, he was obligating not only the corporation to pay the amount of the note when it came due, but also himself to sign a corporate check in payment of the amount at that future date specified in the note. In our opinion this transaction did not contain a potestative condition.

Jefferson Bank and Trust Company v. Post, 312 So.2d 907 (La.App. 4th Cir. 1975), sets forth the rights of attorneys to fees when employed to collect on promissory notes wherein provision is made for attorney fees. In Jefferson, supra, the court held at page 909:

“It is clear from a reading of W. K. Henderson Iron Wks. & S. Co. v. Meriwether S. Co., 178 La. 516, 152 So. 69 (1934) that attorney’s fees become due whenever the obligation is not paid and the note is placed in the hands of an attorney for collection. In the instant case, no dispute exists that the debtors did default on the note, that the note was placed in the attorneys’ hands for collection, and that the attorneys instituted executory process against the debtors resulting in the seizure and sale of the property. We fail to find relevance in the fact that the attorney’s fees were collected through a subsequent sale of the property rather than through a deficiency judgment. Once the note is placed in the hands of attorneys for collection, the attorney’s fees stipulated for belong to the attorney so employed. * * * ” (Emphasis ours.)

We affirm the trial court’s judgment awarding George Scariano, attorney for Donald Pitts, $4,000 attorney fees. Defendant, Gulf South Divers, Inc., is to pay all costs of the proceedings.

AFFIRMED.

GARRISON, Judge,

dissenting.

This is an appeal from two judgments of the district court. The first judgment dated June 14, 1979 upheld the joint stipulations of the plaintiff, Donald Pitts and the defendant, Gulf South Divers, Inc. as follows:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the interest on the note dated October 20,1976, in the amount of $20,000.00 maturing on October 20,1978, be and is hereby waived from the date of maturity.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Mr. Allen Lobrano, Clerk of Court, in and for the Parish of Plaquemines, issue to Mr. Donald Pitts, the holder of said note, a check in the sum of $20,000.00 to be paid out of the fund on deposit in the Registry of the Court in this case.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Mr. Allen Lobrano, Clerk of Court, in and for the Parish of Plaquemines, issue to Mr. Wayne Giordano, Liquidator of Gulf South Divers, Inc., a check for $10,000.00 to be paid out of the fund on deposit in the Registry of the Court in this case. “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the remaining $5,000.00 on deposit in the Registry of the Court be left in escrow until such time as a Rule is heard to determine attorney’s fee and court cost, excluding legal interest, is due and owing on said note.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Mr. Allen Lobrano, Clerk of Court, in and for the Parish of Plaquemines, cancel the mortgage recorded in MOB 86, Folio 762 and the Notice of Seizure recorded in MOB 100, Folio 701.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the issuance of a Permanent Injunction in this matter is moot and that the sale of said property be and is hereby canceled.”

The second judgment, dated October 1,1979 made absolute the rule on attorney’s fees as follows:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the rule be made absolute and accordingly that there be judgment herein in favor of Donald Pitts and against defendant, Gulf South Divers, Inc., ordering that the Clerk of Court pay attorney’s fees to George Scariano, attorney for Donald Pitts, in the sum of Four Thousand and 00/100 ($4,000.00) Dollars and pay all costs of these proceedings including the cost due the Clerk of Court and the Sheriff of Plaquemines Parish and the balance in the Registry of the Court to be paid to Wayne Giordano, Liquidator of Gulf South Divers, Inc.”

Treadway intervenes on appeal seeking to have the entire transaction at issue declared a nullity. The plaintiff-appellee, Donald Pitts, filed a brief with this court alleging that Treadway could not intervene. Although the liquidator filed a petition for appeal on the question of attorney’s fees, he did not file a brief on this issue.

The facts of this case are as follows. Donald Pitts and Ronald Treadway were each 50% stockholders of Gulf South Divers, Inc., as well as Directors and Officers of the closely-held corporation. On October 12, 1976 the corporation issued the following resolution:

“BE IT RESOLVED by the board of Directors of GULF SOUTH DIVERS, INCORPORATED at a regularly held meeting of the Corporation on October 12, 1976 that this Corporation hereby authorizes Ronald Treadway to purchase Real Estate hereinafter described on Exhibit 1 attached hereto and made part hereof from Donald E. Pitts on the basis of $56,000.00 sale price, $16,000.00 of which shall be cash and for the balance thereof of $40,000.00 the corporation will assume that certain vendor’s lien and mortgage of Donald E. Pitts in favor of Security Homestead Association in the amount of $42,000.00 dated May, 1974 recorded at MOB 76, folio 712 of the Plaquemines Parish records.
“Ronald Treadway is further authorized to execute a mortgage on the property to be acquired from Donald Pitts in the amount of $20,000.00 payable to the order of holder or holders bearing interest at the rate of 8.00% percent per annum from maturity and payable to (sic) years after and said mortgage to be executed by Ronald Treadway and the note given to holder or holders to obtain funds for payment of the cash portion of the sale price.” (emphasis added)

Exhibit 1 referred to in the resolution does not contain any acquisitive information in the property description, as reflected below:

“ONE CERTAIN LOT OF GROUND, together with all the buildings and improvements thereon and all the rights, ways, privileges, servitudes, advantages and appurtenances thereunto belonging or in anywise appertaining, situated in the Parish of Plaquemines in Belle Chasse in that part thereof known as Highland Subdivision being a re-subdivision of a portion of Concession subdivision as shown on plan by W. C. Hunter, C. E., dated October 12, 1954 and also on plan of R. P. Rordam dated April 21, 1959, duly approved on May 22,1959 by John C. DeArmas, Jr., Parish Engineer and E. C. Marshall, President of the Police Jury, duly recorded June 8, 1959 in COB 216, folio 524. Accordingly to which said plan said lot is designated as Lot Seventy (70) of Square “G” which said Lot Seventy (70) is more fully described as follows: Said Lot No. Seventy (70) of Square “G” measures eighty five (85') feet front on the westerly right of way of Louisiana State Highway No. 23 with a like width in the rear by a depth of one hundred fifty (150') feet between equal and parallel lines. Said Lot Seventy (70) of Square “G” is bounded on the southerly side by property now of formerly belonging to Raymone Guidroz and on the northerly side by property belonging to Milton Stockfleth.”

Additionally, the property description in the mortgage does not have complete acquisitive information:

“ONE CERTAIN LOT OF GROUND, together with all the buildings and improvements thereon and all the rights, ways, privileges, servitudes, advantages and appurtenances thereunto belonging or in anywise appertaining, situated in the Parish of Plaquemines in Belle Chasse in that part thereof known as Highland Subdivision being a re-subdivision of a portion of Concession subdivision as shown on plan by W. C. Hunter, C. E., dated October 12, 1954 and also on plan of R. P. Rordam dated April 21, 1959, duly approved on May 22,1959 by John C. DeArmas, Jr., Parish Engineer and E. C. Marshall, President of the Police Jury, duly recorded June 8, 1959 in COB 216, folio 524. Accordingly to which said plan said lot is designated as Lot Seventy (70) of Square “G” which said Lot Seventy (70) is more fully described as follows: Said Lot No. Seventy (70) of Square “G” measures eighty five (85') feet front on the westerly right of way of Louisiana State Highway No. 23 with a like width in the rear by a depth of one hundred fifty (150') feet between equal and parallel lines. Said Lot Seventy (70) of Square “G” is bounded on the southerly side by property now of formerly belonging to Raymond Guidroz and on the northerly side by property belonging to Milton Stockfleth.
“Being the same property acquired from Donald Pitts at Conveyance Book_, folio_of the Paquemines (sic) Parish records.”

Curiously enough, a copy of the act of sale is not contained in the record and all other pleading refer to the description contained in Exhibit one and also fail to carry any acquisitive data. Whether the homestead holding the vendor’s lien and mortgage on the property was ever apprised of or acquiesced in the sale is not reflected in the record.

The note matured on October 20, 1978 and no payment was ever made. Hence, on February 26, 1979 demand was made upon Ronald Treadway for the principal amount of $20,000.00 plus $533.33 interest and $5,133.33 attorney’s fees. The demand letter also contained the following language:

“Additionally, as you know, the $16,-000.00 in cash that was suppose(d) to be paid to Mr. Pitts at the time of the sale was not paid and please let this serve as formal demand for payment of that money to him within the same period of time.”

On March 21,1979, Donald Pitts filed suit for executory process against Gulf South Divers, Inc. praying that the property be seized and sold “free and clear of any homestead rights and exemptions." On that same day, Donald Pitts placed the corporation into liquidation proceedings. Accordingly the liquidator represented the interests of Gulf South Divers throughout the rest of the suit. As discussed above, judgment was rendered in accordance with the joint stipulations of Pitts and the liquidator.

In passing, I note that Treadway could intervene for the first time at the appellate court level by virtue of C.C.P. Articles 2086 and 1091:

“A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” (C.C.P. Art. 2086)
“A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff’s demand; or
(3) Opposing both plaintiff and defendant.” (C.C.P. Art. 1091).

However, this issue is not the basis of my decision. As there is nothing in the record to show that the homestead had no interest in the property, the trial court could not render judgment without joining Security Homestead, as it is an indispensable party to the action:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
“No adjudication of an action can be made unless all indispensable parties are joined therein.” (C.C.P. Art. 641)

I note that nonjoinder of an indispensable party may be raised for the first time by an appellate court on its own motion:

“The objections which may - be raised through the peremptory exception include, but are not limited to, the following:
(1) Prescription;
(2) Res judicata;
(3) Nonjoinder of an indispensable party;
(4) No cause of action; and
(5) No right of action, or no interest in the plaintiff to institute the suit.
“The court cannot supply the objections of prescription and res judicata, which must be specially pleaded. The nonjoin-der of an indispensable party, or the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court of its own motion.” C.C.P. Art. 927.

When it is noted on appeal that an indispensable party was not joined in the action, the case must be remanded for joinder and retrial. State, Dept. of Highways v. Lamar Advertising Co. of Louisiana, 279 So.2d 671 (La.1973); Guice v. Modica, 337 So.2d 302 (La.App.2nd, 1976).

The judgments appealed from should therefore be annulled and the case be remanded to the district court for further proceedings consistent with the views expressed herein and in accord with the law.


author: CHEHARDY, Judge.

text:
    Henry WILSON v. EVANS COOPERAGE COMPANY, INC.
    No. 11390.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Tooley, Waldmann & Weidner, Lester J. Waldmann, Gretna, for plaintiff-appellant.
    Normann & Normann, Christopher Kos-ciuk, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Henry Wilson, appeals from a trial court decision granting the motion for summary judgment of defendant, Evans Cooperage Company, Inc., and dismissing the plaintiff’s suit for workmen’s compensation benefits. The judgment further ordered the parties each to pay their own costs.

On April 25, 1978, at approximately 1:03 p. m., Wilson, an employee of Evans Cooperage, was struck by a truck on Peters Road as he was returning to work from his lunch hour.

The police report, one of the exhibits before the trial court, indicated that Wilson was walking north on the shoulder of the 1500 block of Peters Road when he suddenly turned left into the street and the oncoming vehicle.

Plaintiff’s affidavit alleged that his supervisors asked him to do various tasks during his lunch hour, that he had to leave the premises in order to eat his lunch, and that the only means of leaving the premises was by way of walking alongside or crossing Peters Road.

He further averred that Peters Road has no sidewalks or pedestrian safeguards and that the general public does not walk alongside of Peters Road, which is frequented by heavy industrial traffic. Wilson also stated the accident occurred in the immediate vicinity and adjacent to Evans Cooperage and its plant facilities located on Peters Road.

Robert G. Evans, president of Evans Cooperage, also filed a sworn affidavit with the trial court stating that the lunch period for employees of Wilson’s job classification normally extends from 12 noon to 1 p. m., that employees are required to punch out and in on the time clock during their lunch periods, and that employees are not compensated for their lunch periods.

Evans further said that during lunch period Evans Cooperage does not supervise, control or limit an employee’s actions or activities, does not provide food for the employees, and does not require the employees to eat on the business premises.

Plaintiff now argues, on appeal, that the trial court erred in granting a motion for summary judgment, contending that Wilson was in the course and scope of his employment at the time of the accident and that the accident arose out of his employment.

The plaintiff cites the case of Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932), as holding that the accident must only “arise out of” the employment (which the court defined as meaning that the accident must be the result of some risk to which the employee is subjected in the course of his employment) and to which he would not have been subjected had he not been so employed.

However, the court in Kern, supra, also said 141 So. at page 21 that, additionally, the employee’s accident must be shown to have “occurred in the course of his employment” meaning “nothing more than that it must have taken place during the hours of employment and not at any other time.” The court added that this must be determined by time, place and circumstances. In Kern, supra, the plaintiff satisfied the court test for employer liability in workmen’s compensation because he was directed by his employer to do some outside work and then return to the regular employment premises. It was on this return that he stepped from a streetcar into the path of an automobile and was struck down. That case, however, is distinguishable on the facts from the instant one, because in Kern, supra, the plaintiff, who was paid a weekly rather than an hourly wage, was not on his lunch hour and was in the course of his employment.

Plaintiff further cites the case of Clark v. Employers Liability Assur. Corp., 27 So.2d 464 (La. App. 1st Cir. 1946), as having allowed recovery by an employee who was on his lunch hour and as holding that, due to the particular facts of the case, the plaintiff was in the course and scope of his employment at the time of his injury and that the accident arose out of his employment.

Once again, however, we find the facts of Clark, supra, distinguishable from those in the present case, because the court found in Clark that although the employee was on his way to lunch when the accident occurred, he would have had the right to include the time spent getting lunch in his work day. The court reasoned, therefore, that since the accident happened during a time for which he would have been paid by his employer, the accident “arose out of” the employment. Moreover, the plaintiff’s eating habits, in that case, were dictated by the nature of his work, and his meals were taken under special circumstances to suit the employer’s convenience rather than the employee’s.

In the present case, however, the record reflects (from the plaintiff’s own testimony, a copy of his time card, and the affidavit of his employer) that plaintiff would not have been paid for the time spent on his lunch hour during which period the accident occurred, that he had a regular daily time for lunch, and that he was not under the supervision and control of his employer during his lunch period.

Wilson also contends that the courts have held compensation coverage for a reasonable time span during which the employee is going to or coming from lunch, citing Huett v. Insurance Company of North America, 329 So.2d 222 (La. App. 4th Cir. 1976), while averring the applicability of the reasonable exit and entry theory. However, in explaining that theory this court said at pages 224-226:

“As argued by plaintiff and pointed out by Professor Malone in Louisiana Workmen’s Compensation Law and Practice, §§ 169, 193, 194, coverage is extended within a reasonable interval before and after working hours when the injury occurs on the employer’s premises. Section 169 states:
‘The observation has been made in previous sections that an employee is engaged in the course of his employment while he is actually engaged in his employer’s work even before or after working hours. Furthermore, even if he has finished the day’s work and is preparing to leave, or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment. The working day embraces these intervals just as it includes reasonable periods for rest, relaxation or the attendance of personal needs. This applies also to periods prior to the actual beginning of work under similar circumstances.
* Sjc ifc * * Sfc
‘The extension of compensation protection to periods prior to and after working hours under the circumstances described above does not reach beyond the premises of the employer. It should be borne in mind that as a general rule an accident that occurs while the employee is going to or returning from work is outside the course of employment, and we are faced with the arbitrary proposition that an employee who is injured while proceeding directly from his work may have compensation if the accident occurred at a place one foot within the employer’s gate, or compensation would be denied if he were injured outside on the public highway. This seemingly arbitrary distinction is entirely justifiable from an administrative viewpoint. Unless the employee is to be protected during the entire journey to and from work, a line must be drawn at some point, and the boundary of the employer’s premises is as definite as any that can be devised.’ ”

Accordingly, although the court in Huett, supra, allowed the plaintiff recovery for an injury she received on her way to lunch, after leaving the store where she worked, the court also specifically found:

“ * * * Huett testified that the place where she fell was near the back entrance to the store, close to the corner of the building, and on Puglia’s property. The fact that plaintiff fell on the employer’s premises was uncontradicted and, therefore, must be accepted as true. See Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967).” 329 So.2d at 225.

The court in Huett, supra, also distinguished circumstances of that case from those of Brooks v. Cal-Metal Pipe Corporation of Louisiana, 81 So.2d 462 (La. App. 1st Cir. 1955) (which denied a plaintiff recovery for a lunch-hour accident which happened three-quarters of a mile from the employer’s premises), and Smith v. Orleans Management Corporation, 242 So.2d 288 (La. App. 4th Cir. 1970) (wherein the court denied coverage to an employee who was injured while attempting to cross a canal on his way to a nearby cafe to have lunch).

We find, moreover, the facts of Chancellor v. Schwegmann Bros. Giant Super Markets, Inc., 363 So.2d 1282 (La. App. 4th Cir. 1978), applicable to the instant case. In Chancellor, supra, although the plaintiff was not on her lunch hour, she had finished work, punched out, and was returning home. While attempting to cross Airline Highway (on which the store where she worked fronted), she was struck by an automobile. In denying the plaintiff coverage, this court said at page 1283:

“Considering the facts in this case we cannot find that the employee faced any unusual, peculiar or greater hazard than the general public encountered. While it may be said that the crossing of a major thoroughfare such as the Airline Highway exposes one to a special risk that an individual would not encounter in crossing a less important and less used thoroughfare, there is no evidence in this case to show that the situs of the accident has any particular dangers not encountered in other portions of the highway or comparable thoroughfares. * * * ”

Nor do we find that plaintiff offered any affidavits, depositions or exhibits sufficient to establish that some material fact is still at issue and to be resolved. Accordingly, we find no error in the trial court’s decision granting a summary judgment in favor of defendant.

For the foregoing reasons the summary judgment in favor of defendant, Evans Cooperage Company, Inc., and against plaintiff, Henry Wilson, dismissing his suit is affirmed; all costs to be paid by plaintiff.

AFFIRMED.


text:
    STATE of Louisiana in the Interest of Troy Dexter WRIGHT (three cases).
    Nos. 11462-11464.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Writ Granted in part and Denied in part Sept. 19, 1980.

      Steven Scheckman, New Orleans Legal Assistance Corp., New Orleans, for appellant.
    Harry F. Connick, Dist. Atty., Mary L. Beck, Asst. Dist. Atty., New Orleans, for appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Troy Dexter Wright appeals a decision of the Orleans Parish Juvenile Court granting a motion of the assistant district attorney to modify a judgment of disposition which resulted in a sentence to petitioner of three years at the Department of Corrections and one year at the Department of Corrections to run concurrently.

On January 27, 1979, Wright was arrested for violation of LSA-R.S. 14:67 relative to the theft of three hams from a food store, and subsequently pleaded guilty to an amended charge of attempted theft.

Upon recommendation of the probation department, he was placed on probation for one year, specially conditioned on a 9 p. m. curfew, regular church attendance and attendance at school every day it was in session.

On June 8, 1979, petitioner was arrested and later pleaded guilty to a charge of receiving stolen things, pursuant to LSA-R.S. 14:69. The court ruled on July 25, 1979, that Wright, having been found delinquent in that matter, was committed to the Department of Corrections for three years. Sentence was suspended, however, and Wright was placed on probation for a period of three years, to run concurrently with sentencing in the above case.

Conditions of probation were:

“ * * * [T]hat the said juvenile stay away from any places where he has. committed a crime unless accompanied by his mother; that he receive mental health treatment; that he attend school daily and submit a copy of his report card to the Court; that the mother of the juvenile submit to therapy and that a report to the Court on her progress be submitted to the Court; that the juvenile attend Church every Sunday and that he stay away from bad company. Troy Wright is further placed in the custody of the Louisiana Department of Health and Human Resources for placement at Volunteers of America. * * * ”

On June 18, 1979, petitioner was arrested for violation of LSA-R.S. 14:37 relative to aggravated assault. He subsequently pleaded guilty to the charge and was sentenced to the Department of Corrections'for three years, sentence suspended, and placed on probation for three years, sentence to run concurrently with that in the above case. Conditions of probation were identical to those listed supra.

The Orleans Parish District Attorney’s Office, in its Motion to Modify Judgment of Disposition, filed on November 16, 1979, charged that:

“(3) * * * Troy Wright was placed in a group Home, The Volunteers of America, an [sic] on October 31, 1979, Troy Wright was arrested for Theft. Mr. David Horn, the group parent advised this office that Troy Wright has not been attending School on a regular basis, and that this is his second encounter with the authorities.
“(4) It is therefore necessary that the Court hold a hearing to determine the necessity for modification of disposition pursuant to Articles 91 through 94 of the 1979 Louisiana Code of Juvenile Procedure.”

On November 16, 1979, a hearing was held on the Motion to Modify Judgment of Disposition.

LSA-C.J.P. art. 91 states in part:

“A. On its own motion or on motion of the district attorney, the child, his parents or the probation officer, the court may modify a judgment of disposition.
“B. A motion to modify a judgment of disposition may be denied without a contradictory hearing. A motion to modify to impose more restrictive conditions may not be granted without a contradictory hearing unless the parties consent.”

LSA-C.J.P. art. 93 provides:

“A judgment of disposition may be modified if the court finds that the condition and circumstances justify the modification.
“In delinquency proceedings, if a judgment of disposition places a child on probation, the judgment may not be modified to assign the child to the custody of the Department of Corrections unless the court finds that a condition of probation has not been observed.”

The only parties who testified at the hearing were Andrew Schiro, probation officer, and David Horn, the Volunteers of America group home parent.

Petitioner now argues that in allowing testimony regarding his behavior in the group home and his association with bad company the State went beyond the scope of their motion to modify, thereby denying him the minimum requirements of due process of law. In support of this argument he cites Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); State v. Davis, 375 So.2d 69 (La.1979); State v. Harris, 368 So.2d 1066 (La.1979); and State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976).

Petitioner further avers that neither his arrests subsequent to probation nor hearsay statements of criminal activity by his probation officer were sufficient to revoke probation, citing State v. Sussmann, 374 So.2d 1256 (La.1979); State v. O’Conner, 312 So.2d 645 (La.1975); and State v. Harris, supra.

An additional assignment of error claimed by Wright is that the State only proved that he had missed two periods of class, and that this is an insufficient basis for revoking parole, noting State v. Sussmann, supra, and State in Interest of Bellanger, 357 So.2d 634 (La.App. 1st Cir. 1978).

Wright further argues that the trial court erred in qualifying David Horn as an expert in behavior modification because he did not have the requisite special training or experience within the meaning of LSA-R.S. 15:464 nor the requisite knowledge within the meaning of LSA-R.S. 15:466 to qualify as an expert.

The assistant district attorney admitted at the revocation that there had been no convictions of Wright since the disposition placing him on probation was handed down; and the only evidence of arrests presented was in the form of oral testimony on the parts of Schiro and Horn.

We must agree that the arrests of Wright, subsequent to his being placed on probation, would not, alone, revoke his suspended sentence without proof that an actual crime had been committed. As the court explained in State v. Sussmann, supra:

“1. At the hearing Sussmann admitted that he had been arrested and charged with attempted simple burglary in Jefferson Parish, but the charges were dropped. This evidence was not sufficient to establish that Sussmann violated the condition of probation that he not engage in criminal conduct because Sussmann was only arrested for, but not convicted of, this criminal charge. State v. Harris, 368 So.2d 1066 (La.1979). At a revocation hearing, a violation of the conditions of probation may be shown by establishing a criminal conviction or by actual proof of the commission of a crime, apart from conviction. State v. Davis, 375 So.2d 69 (La.1979), citing State v. O'Conner, 312 So.2d 645 (La.1975) and State v. Harris, 312 So.2d 643 (La.1975). As this court explained in State v. Harris, 368 So.2d 1066 (La.1979), the holding of these decisions is that in those instances in which the State does not prove that defendant was convicted of a crime which would form the basis of a revocation, it must present actual proof that the defendant has engaged in such criminal conduct. Proof of an arrest alone indicates only that a crime may be charged, not that a crime has been committed.” 374 So.2d at 1257.

Since at the time of the revocation hearing the petition had not yet been tried for the October 31, 1979 theft charge, and the prosecution did not try to show any details concerning the actual commission of that crime, we must hold that evidence of this arrest alone was an insufficient basis for revocation of probation.

The Louisiana Supreme Court has also reversed decisions where probation was revoked for a relatively minor offense. In State ex rel. Robertson v. Maggio, supra, a probationer’s delay in reporting a change of address to the probation officer was held not sufficient violation to warrant revocation. In referring to the Louisiana Code of Criminal Procedure Article 900 (which gives the authority to revoke probation, as does LSA-C.J.P. art. 93), the court said:

“ * * * This article gives the judge wide latitude in responding to probation violations, and calls for the sound exercise of judicial discretion.
“It is not without reason that the legislature provided for the exercise of judicial discretion in dealing with probation violations — they can be minor and ephemeral, as here, or serious. A single, inflexible policy for dealing with all violations would not serve the legislatively desired goal of rehabilitation. Cf. Wilson, The Louisiana Criminal Code: Making the Punishment Fit the Criminal, 5 La.L.Rev. 53, 56 (1942). * * *” 341 So.2d at 369-370.

In the present case petitioner argues that, although his probation was conditioned on, among other things, attendance of school every day it was in session, and there was proof offered at trial that Horn actually observed Wright’s absence during only two class periods, we can find no error in the juvenile court’s acceptance of Horn’s testimony that he had knowledge the petitioner had in fact missed a total of four days of school. It must be noted that'Horn was the proper party to be notified by school authorities of petitioner’s absences. Therefore, revocation of probation on that ground alone would have been within the discretion of the juvenile judge.

In regard to the petitioner’s claim that testimony regarding his behavior in the group home and regarding his association with bad company should not have been allowed (because there was no mention of these probation violations in the assistant district attorney’s Motion to Modify Judgment of Disposition), we refer to the case of State v. Davis, supra, where the court said:

“At the revocation hearing, a violation of the conditions of probation may be shown by establishing a criminal conviction or by actual proof of the commission of a crime, apart from conviction. State v. O’Conner, 312 So.2d 645 (La.1975); see also State v. Harris, 312 So.2d 643 (La.1975). In the first instance, the hearing judge looks to the record of a criminal prosecution, but in the latter he looks to the actual conduct of the defendant that violates the conditions of his probation. State v. O’Conner, supra.
“In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court adapted the minimum requirements of due process that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held applicable to parole revocation hearings, and applied them to probation revocation hearings. As established by the Court, these minimum requirements of due process are:
‘(a) Written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.’ 411 U.S. 786, 93 S.Ct. at 1761.
“Morrissey and Gagnon both recognized that the revocation decision has two analytically distinct components: the wholly retrospective factual question of whether the probationer has in fact acted in violation of one or more conditions of his parole, and if so, should the probationer be committed to prison or should other steps be taken to protect society and improve chances of rehabilitation. The court in Gagnon further noted the critical differences between criminal trials and probation revocation hearings, among them that formal procedures and rules of evidence are not employed. The court specifically held that: ‘Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty.’ 411 U.S. 782, 93 S.Ct. at 1159.” 375 So.2d at 71-72.

The reference in the motion to modify to subsequent arrests should have been adequate notice to Wright that his behavior in the Volunteers of America group home would be testified to by Horn. Moreover, since one of the arrests alleged in the assistant district attorney’s motion involved a person whom Wright had been specifically advised he should consider bad company, we hold that there was adequate notice given to satisfy Louisiana and United States constitutional due process mandates that evidence of his association with “bad company” would be presented at the hearing. Furthermore, we find the State’s proof that Wright was no longer able to stay in the group home and that he was still associating with “bad company” was adequate to establish he was in violation of two specific conditions of his probation.

We can find no merit in Wright’s argument that he did not have to respect the Volunteers of America home as a condition of probation. Part of the court’s order in its original disposition was that Wright “is further placed in the custody of the Louisiana Department of Health and Human Resources for placement at Volunteers of America.” The fact that he could no longer, according to Horn’s testimony, remain in that agency’s custody is certainly adequate grounds for revocation of his probation.

Neither can we find merit in Wright’s contentions that the trial court erred in admitting the testimony of Horn as an expert in “behavioral modification.” The issue was addressed in State v. Stahl, 107 So.2d 670, 674-675 (La.1958), when the court determined:

“As shown by the trial judge’s per cu-riam, the witness was qualified to the judge’s satisfaction. The rule is well settled that whether a witness is entitled to be heard in the capacity of expert is within the trial judge’s province to decide, and his ruling will not be disturbed where no error appears. Moreover, under Article 464 of the Code of Criminal Procedure the opinions of a qualified expert are admissible on matters in the field in which he has qualified. * * * ”

Horn was held by the juvenile judge to have adequate learning and experience to testify as an expert, and we can find no error in that ruling.

Further reason for allowing testimony of Horn can be found in LSA-C.J.P. art. 90, which states in part:

“B. Any institution or agency to which a child is assigned, upon request, shall provide the court any information concerning the condition, supervision, treatment, or rehabilitation program of the child.”

Petitioner’s final contention: that his sentence in this case should not have exceeded six months, and that, therefore, since he was sentenced on November 21, 1979, his commitment to the Department of Corrections expired on May 21, 1980, we find equally without merit. Wright’s violation of LSA-R.S. 14:67, 14:69 and 14:37 cumulatively amount to a proper sentence of three years under LSA-C.J.P. art. 89, which states in part:

“B. If the child is adjudicated a delinquent and assigned to the custody of the Department of Corrections, the judgment shall not remain in force for a period exceeding the maximum term of imprisonment for the offense forming the basis for the adjudication.”

This court also considered the assistant district attorney’s motion to dismiss this appeal on grounds that petitioner had not applied for supervisory writs and, therefore, this court lacked jurisdiction for review.

Although LSA-C.J.P. art. 97 gives the right to appeal from a judgment of disposition, it is our opinion that by implication, this article also gives the right to appellate review of a modification of judgment of disposition, as demanded by LSA-Const. Art. 5, § 10, which grants courts of appeal jurisdiction in all matters appealed from family and juvenile courts. Moreover, although LSA-Const. Art. 5, § 10 also grants supervisory jurisdiction to appellate courts, it does so only over cases in which an appeal would also lie.

Accordingly, the juvenile court’s judgment of disposition, sentencing Troy Dexter Wright to three years at the Department of Corrections and one year at the Department of Corrections, to run concurrently, is affirmed in all respects.

AFFIRMED.


author: WALKER, Justice,

text:
    Lamar G. SALTER v. STATE of Mississippi.
    Nos. 51773, 51786.
    Supreme Court of Mississippi.
    July 30, 1980.
    C. A. Henley, Jr., Jackson, Henry L. Rodgers, Louisville, Laurel G. Weir, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

These two cases are so interrelated that they have been consolidated for disposition on the Court’s own motion.

NO. 51,773

This is an appeal by Lamar G. Salter from a denial of a petition for writ of error coram nobis by the Circuit Court of Nesho-ba County, Mississippi.

Appellant, former administrator of the Neshoba County General Hospital and Nursing Home, was indicted on ten charges of embezzlement: three in the September 1977 Term, and seven in the February 1978 Term.

On February 20, 1978, appellant was to go to trial on the three original September 1977 indictments. However, when he appeared on that - date for trial, the state offered to allow him to plead guilty to any two of the ten pending indictments and receive a three-year suspended sentence and pay a fine of $10,000. In return for appellant’s agreement to plead guilty, the district attorney agreed to enter a nolle prosequi on the remaining eight indictments.

The appellant agreed to enter a plea of guilty, and the following exchanges took place before the trial judge in his chambers:

BY MR. WILLIAMSON:
Your Honor, the State would recommend a plea of guilty on two of the ten indictments.
BY THE COURT:
Which two?
BY MR. WILLIAMSON:
We haven’t—
BY THE COURT:
Any two of the ten indictments.
BY MR. WILLIAMSON:
Any two of the ten indictments. We would recommend a fine of $10,000.00 be imposed upon the Defendant. That he serve a sentence of three years in the State Penitentiary, provided, however that that be suspended, three years on each of them to run concurrent. That those three years on each be suspended on this Defendant’s good behavior, under probation. That the other eight simply be passed to the files.
BY THE COURT:
No sir. This is the end of it. They will all be nol prossed. You can make your recommendation and I will have the final word. If this is your trade, if this is what it is, it will be a three year sentence on any two to run concurrently, and the balance will be nol prossed. There are ten indictments on this book, and if you are going to settle it among yourselves in this type situation, I will go along with it, but this is the end of it as far as this Court is concerned.

Following the out-of-court proceeding the appellant was rearraigned before the court at 11:55 a. m., Monday, February 20, 1978. The trial judge interrogated the appellant and appellant’s attorney in great detail as to whether the defendant knowingly, understandingly, freely and voluntarily desired to withdraw his pleas of not guilty. Whereupon, the appellant withdrew his pleas of not guilty and entered pleas of guilty as charged to causes numbered 7491 and 7492 in that court. The trial court accepted the guilty pleas as being voluntarily and understandingly given and sustained the district attorney’s motion that the remaining eight indictments, then pending, be nol prossed. The appellant was sentenced to three years imprisonment, said sentence being suspended, and to pay a fine of $10,-000.

Ten months later, on December 21, 1978, appellant filed his petition for a writ of error coram nobis in the Circuit Court of Neshoba County. The petition alleged numerous grounds for setting aside the guilty pleas in causes 7491 and 7492. The appellant urged, among other things, that his pleas of guilty were not free and voluntary and that he was unable to fully understand and appreciate the nature and quality of his acts on February 20, 1978. He further requested that he be allowed to withdraw his pleas of guilty and be discharged from any prosecution thereon, or, in the alternative, be given a speedy trial on the charges. The state answered the petition, denying all allegations set forth. A hearing was held on January 17, 1979, towards the conclusion of which the district attorney moved to reinstate the eight indictments on which he had entered a nolle prosequi in the event the trial court granted the writ of error coram nobis. The trial court heard evidence by both sides and ruled that the petition would be denied; but then, in a surprise move and on the court’s own motion, ordered appellant to stand trial on all eight of the previously nol prossed indictments and set all eight for trial on the first Monday of the next term of court. The trial judge ordered the previous indictments revived by whatever procedure the district attorney felt appropriate and mandated there would be no plea bargaining on those indictments.

On appeal to this Court, the appellant assigns as error that the lower court erred in failing to sustain his petition for writ of error coram nobis.

After a careful examination of the record and testimony presented to the trial judge on the issues involved in the proceedings on the petition, we are of the opinion that the trial court properly refused to set aside the former guilty pleas and sentences and grant the petitioner a new trial.

However, a more serious question is presented relative to appellant’s second assignment that the lower court erred in reinstating the eight nol prossed indictments against appellant and ordering appellant to stand trial thereon.

We will discuss this assignment along with the appeal in cause No. 51,786.

NO. 51,786

This is an appeal from a conviction of embezzlement and sentence of twelve years in the Mississippi State Penitentiary.

Subsequent to the trial court’s order that the eight nol prossed indictments be reinstated as discussed above, the Neshoba County grand jury, which was convened at the February 1979 Term, returned three indictments identical to three of the eight indictments that had been nol prossed in accordance with the plea bargain but ordered revived by the court on January 17, 1979. (The date of the error coram nobis hearing).

On February 5, 1979, the appellant was brought to trial .under one of these three new indictments in cause no. 7561, which charged appellant with embezzlement of $20,249.37 from Neshoba County General Hospital. Following a jury verdict of guilty, appellant was sentenced to serve a term of twelve years in the Mississippi State Penitentiary.

The appellant urges, inter alia, that his conviction and sentence on this charge should be vacated for the reason that he was tried thereon in violation of the plea bargain agreed to by the prosecutor and the circuit judge.

The facts are not in dispute. The defendant was indicted on ten charges of embezzlement. A plea bargain was agreed upon between himself, the district attorney and the trial judge that he would plead guilty to two of the indictments and the other eight would be nol prossed. He entered his plea of guilty to the two indictments as agreed and was sentenced thereon. The other eight indictments were nol prossed. He later filed a petition for a writ of error coram nobis contending that his pleas were not understandingly and voluntarily entered. This petition was properly denied. (We affirmed that court’s denial in the petition in cause no. 51,773 above). The judge then ordered the district attorney to revive the remaining eight indictments by “whatever means appropriate.” This was done by reindicting appellant on three of the eight indictments. He was brought to trial in this cause on one of them, found guilty and sentenced to twelve years in the penitentiary. This was error.

The state, whether it be through the prosecutor, the trial judge, or both, is bound by its plea-bargain agreement with a defendant who pleads guilty pursuant to the agreement. This is true even though the defendant unsuccessfully attempts to have his plea vacated. However, if he is successful in having his plea vacated, then the state would be restored to its original position without prejudice to proceed as if no agreement had ever been reached.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), it was said:

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463 [1470-1471, 25 L.Ed.2d 747, 758] (1970).
[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. (404 U.S. at 260, 92 S.Ct. at 498, 30 L.Ed.2d at 432-433).

On this record, Lamar Salter and the state negotiated and agreed upon a particular plea, the defendant has been unsuccessful in his attempt to set that plea aside and is held to it. Consequently, the state is also bound by its part of the agreement to nolle prosequi eight of the indictments, which includes this charge.

Therefore, in Cause No. 51,786 the judgment of conviction of embezzlement and sentence of twelve years in the penitentiary are vacated, and the appellant, Lamar G. Salter, discharged.

In Cause No. 51,773 the judgment of the lower court denying Lamar G. Salter’s petition for a writ of error coram nobis is affirmed, but the sentence is modified.

The appellant was sentenced under section 97-11-31 which provides that upon conviction “he shall be imprisoned in the penitentiary not more than ten years, or in the county jail not more than one year, or be fined.”

The Circuit Court of Neshoba County sentenced the appellant in Cause No. 7491 and Cause No. 7492 to serve three years in the penitentiary and to pay a fine of $10,-000, with the sentences to run concurrently. This was error since the two methods of sentence under section 97-11-31 are alternative methods. Salter could be fined in one case and given a penitentiary sentence in the other, but not fined and sentenced in both. See Bass v. State, 328 So.2d 665 (Miss.1976).

Therefore, the sentence in Cause No. 7491 in the Circuit Court of Neshoba County is modified to delete the fine of $10,000. The sentence in Cause No. 7492 is modified to delete the sentence of three years. This in effect leaves the agreement in full effect. In Cause No. 7491, the appellant is left to serve three years in the penitentiary but the sentence suspended according to the court’s order. In Cause No. 7492, the appellant is left with a sentence to pay the agreed fine of $10,000.

Therefore, in Cause No. 51,773 before this Court, the judgment and sentences of the trial court are affirmed as modified.

IN NO. 51,786, THE CASE IS REVERSED AND DEFENDANT DISCHARGED; IN NO. 51,773, THE JUDGMENT AND SENTENCES ARE AFFIRMED AS MODIFIED.

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

      . Section 97-11-31: “If any officer, or other person employed in any public office, shall commit any fraud or embezzlement therein, he shall be imprisoned in the penitentiary not more than ten years, or in the county jail not more than one year, or be fined.”