author: SWIFT, Judge.

text:
    LIBERTY LOAN CORPORATION, Plaintiff-Appellee, v. Joe W. STANLEY and Doris Stanley, Defendants-Appellants.
    No. 7808.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, III, Alexandria, for defendant-appellant.
    Edward A. Kaplan, Alexandria, for plaintiff-appellee.

      Gold, Little, Simon, Weems & Bruser, Donald R. Sharp, Alexandria, for defendant-appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

On September 15, 1978, the defendants, Joe W. and Doris Stanley, purchased a 1975 Oldsmobile Cutlass from Big A Auto Sales, Inc. (Big A Sales) for $3250.00, of which $450.00 was paid in cash. The balance, $2800.00, was financed through a loan from Liberty Loan Corporation (Liberty Loan) evidenced by a retail installment contract, a note and a chattel mortgage.

In the section of the installment contract entitled “DISCLOSURES MADE IN COMPLIANCE WITH FEDERAL LAW” these cost factors appear:

In order for the Stanleys to obtain the loan, Big A Sales paid $344.40 which the Stanleys owed another finance company. This was repaid shortly thereafter, except for $191.00.

Two or three days after the purchase the Stanleys noticed a small pool of oil or transmission fluid under the automobile and also complained of two or three other minor faults. The car was returned to the seller, who had it checked by a transmission specialist that had worked on the transmission previously. He found nothing wrong with the transmission, but noticed a small oil leak from the engine which he did not think was significant. The Stanleys contended the leak continued and returned the car to Big A Sales for repair one or two more times. Not being satisfied, the defendants left the automobile at Big A Sales where it remained until the time of the trial.

When the Stanleys failed to make the first payment on their note, Liberty Loan filed this suit to recover $3538.69 (allegedly the balance owed less unearned interest of $1493.58), plus 27% interest from maturity for one year and 8% interest thereafter and 25% of principal and interest as attorneys fees. The plaintiff also sought judicial recognition of its chattel mortgage.

The Stanleys answered denying liability and later filed a reconventional demand against Liberty Loan seeking damages for several violations of the Truth in Lending Act (the Act), 15 U.S.C. § 1601 et seq., and Regulation Z (Reg.Z), 12 C.F.R. § 226, promulgated by the Board of Governors of the Federal Reserve System, and also LSA-R.S. 6:956. Included in this pleading was a third party demand against Big A Sales to rescind the sale on the ground of redhibition and recover the monies paid and also an attorney’s fee. Additionally, the Stanleys sought to annul the retail installment contract with Liberty Loan for failure of consideration by reason of the alleged redhibi-tory vice in the automobile. Big A Sales and Liberty Loan filed additional pleadings seeking indemnification from each other and also made other demands.

Following a trial on the merits, the judge found that some oil leaked from the vehicle shortly after the sale, but no more than would be expected from a 3V2 year old vehicle that had been driven 59,123 miles. He concluded this defect was not of “such major character” as to require rescission of the contract. Instead, he decreed a $191.00 reduction of the purchase price, which was offset by the balance owed by the Stanleys to Big A Sales for the payment it made on their behalf to the other finance company at the time of the sale. He also found that the Stanleys were entitled to credits of $262.80 for disability insurance that had been cancelled and $315.36 for credit life insurance which had not been taken out by Liberty Loan. He deducted these items from the $776.22 total of the “Other Charges” reflected in the disclosures. This left $198.06, which he added to the $2800.00 “Unpaid Balance of Cost Price” and arrived ' at $2998.06 as the total amount financed (except for the interest “FINANCE CHARGE”).

The trial judge also stated in his written reasons for judgment that some deficiencies in the detailed disclosures on the face of the loan agreement appeared to exist, but he felt that any damages suffered by the Stan-leys as a result would be compensated by reducing Liberty Loan’s recovery from the original amount sued for to $2998.06 with 7% interest from December 1, 1979, until paid. Liberty Loan’s chattel mortgage was recognized, but the various other demands asserted by the parties were denied. Formal judgment was rendered accordingly.

The Stanleys have appealed specifying that the trial court erred in (1) not awarding penalties and attorneys fees under the Truth in Lending Act and Regulation Z, (2) recognizing the chattel mortgage and (3) failing to void the retail installment contract between Liberty Loan and the Stan-leys.

Both Liberty Loan and Big A Sales have answered the appeal. Liberty Loan seeks to have the judgment in its favor increased to the demands originally prayed for and reversed insofar as it cast this appellee for one-half of the court costs. Big A Sales asks that the judgment be affirmed insofar as it denied rescission of the sale but reversed as to its denial of that appellee’s reconventional demand against the Stanleys for $191.00.

Joe and Doris Stanley obtained a loan from Liberty Loan in order to purchase jointly an automobile for their personal use. Thus, they were extended “consumer credit” within the meaning of the Act. Liberty Loan is a creditor who regularly extends credit which is payable by agreement in more than four installments and requires payment of a finance charge in connection with its loans. Big A Sales, however, is not such a creditor. It does not regularly extend consumer credit in the ordinary course of business. Although the trial judge correctly found that Big A Sales assisted the Stanleys in obtaining this loan, Big A Sales did not arrange for the extension of credit as that phrase is used in Reg. Z. The evidence reflects that Big A Sales did not receive a fee, compensation or other consideration for referring the Stanleys to Liberty Loan. Gerasta v. Hibernia National Bank, 411 F.Supp. 176 (E.D.La.1976); Munson v. Orrin E. Thompson Homes, Inc., 395 F.Supp. 152 (D.Minn.1974). Further, even though Big A Sales may have had knowledge of the loan terms, it did not participate in the preparation of the contract documents required in connection therewith. Consequently, the duty to disclose the information required by the Act and Reg. Z and penalties for any failure to do so fall solely on Liberty Loan. With this in mind we will now determine whether or not the latter violated the Act.

Among other things, both the Act and Reg. Z specifically require individual itemization of all charges included in the loan which are not a part of the finance charge.

In Young v. Ouachita Nat. Bank in Monroe, 428 F.Supp. 1323 (W.D.La.1977) the court stated the following in this regard:

“Consequently, it is clear that lending institutions must choose, as plaintiff argues, either to include the various expenses in the finance charge, or itemize them in detail; merely summarizing or categorizing fees and expenses is not adequate disclosure.” [Emphasis added]

The loan agreement in the instant case discloses a charge of $158.00 which is listed as “Registration Fees” in (4)(e) of the cost factors. The manager of Liberty Loan when the transaction occurred testified that this item actually consisted of three charges: sales tax, title and transfer fees. These individual charges were not itemized or disclosed anywhere else in the loan agreement. Although they may have been included in the finance charge under 12 C.F.R. § 226.4, this was not done. Therefore, the failure to individually itemize these charges in the disclosures clearly violated 15 U.S.C. § 1639(a)(2) and 12 C.F.R. § 226.8(d)(1). Starks v. Orleans Motors, Inc., 372 F.Supp. 928 (E.D.La.1974), affirmed 500 F.2d 1182 (5th Cir. 1974); Grant v. Imperial Motors, 539 F.2d 506 (5th Cir. 1976); Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511 (5th Cir. 1976), cert. denied, 431 U.S. 929, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977).

The Stanleys have asserted other disclosure violations, some of which appear to have merit. However, we need not consider them because a single infraction will permit a consumer to recover the statutory damages and attorneys fees under 15 U.S.C. § 1640. Young v. Ouachita Nat. Bank in Monroe, supra.

The trial judge attempted to do justice for what appeared to him to be “some deficiencies” in the disclosures on the loan agreement by reducing Liberty Loan’s recovery. This was an error.

There is no discretion as to imposition of the penalty and attorney’s fee. If the trier of fact finds a violation, no matter how seemingly small or technical, he must impose the statutory liability. Grant v. Imperial Motors, supra; Owens v. Magee Finance Service of Bogalusa, Inc., 476 F.Supp. 758 (E.D.La.1979).

Both Mr. and Mrs. Stanley signed the loan agreement and the promissory note. Consequently, they are liable as soli-dary obligors. Liberty Loan owed to each obligor the duty to disclose.

This provision and the reference in 15 U.S.C. § 1640(a) to “any person” indicate that a creditor who fails to disclose credit provisions to solidary obligors is liable for the penalty to each solidary obligor. Therefore, in our opinion Liberty Loan owes both Joe Stanley and Doris Stanley the statutory penalties. Twice the finance charge involved in this case exceeds the $1000.00 maximum due to each consumer under the Act. Therefore, the total penalty to be imposed in this suit is $2000.00. Davis v. United Companies Mortgage and Investment of Gretna, 551 F.2d 971 (5th Cir. 1977), rehearing denied, 554 F.2d 1065 (5th Cir. 1977); Cody v. Community Loan Corp. of Richmond County, 606 F.2d 499 (5th Cir. 1979), rehearing denied, 608 F.2d 1373 (5th Cir. 1979), Mirabal v. General Motors Acceptance Corporation, 537 F.2d 871, 881-883 (7th Cir. 1976), appeal after remand, 576 F.2d 729 (7th Cir. 1978), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 699 (1978).

We recognize that there exists a difference of opinion on this question among the United States Courts of Appeals. For example, see Powers v. Sims and Levin, 542 F.2d 1216, 1219-20 (4th Cir. 1976); Milhollin v. Ford Motor Credit Company, 588 F.2d 753 (9th Cir. 1978), reversed on other grounds, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980). However, our view on the subject coincides with that of the Fifth Circuit.

We turn now to the assignments of error concerning the avoidance of the consumer loan and the chattel mortgage.

The retail installment contract expressly provides:

“Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of the goods or services obtained pursuant hereto or with the proceeds hereof.... ”

The Stanleys contend that since the 1975 Cutlass purchased with the proceeds of the loan possessed a redhibitory defect which rendered it useless, the sale should have been rescinded. In such case there was a failure of consideration for the loan and the security.

As stated hereinabove, the trial judge found that the small amount of leakage established was insignificant and should have been expected from a vehicle of such age and use. Consequently, he concluded it was not such a defect as would give rise to rescission of the sale, but simply a reduction of the purchase price. From our review of the record we cannot say that the trial judge’s findings in these essentially factual matters were clearly wrong. We therefore affirm the judgment in this respect.

Since the Stanleys are not entitled to a rescission of the sale because of a redhibito-ry vice, their contention that there was a failure of consideration for the loan and chattel mortgage is without merit. Also, we are unable to find in the Truth in Lending Act or Regulation Z any provision for the avoidance of this transaction because of a failure to disclose violation. Therefore, it is enforceable against the Stanleys, subject to the penalties provided by the Act.

We also agree with the trial judge’s determination that the amount financed was actually $2,998.06 in view of the Stanleys’ timely cancellation of the disability insurance premium of $262.80 and Liberty Loan’s failure to expend the $315.36 charge for credit life insurance.

Both Liberty Loan and the Stanleys are entitled to recover from the other a reasonable attorney’s fee, the former under the terms of the retail installment contract and the latter under 15 U.S.C. § 1640(a)(3). From our review of the record the services provided by their respective attorneys appear to have been relatively the same and we believe each side is entitled to an equal award for this item. However, as they would offset each other our decree will not contain any provision for attorneys’ fees.

For the foregoing reasons, the judgment of the district court is amended and its decree recast as follows:

It is Ordered, Adjudged and Decreed that judgment be rendered herein in favor of the plaintiff, Liberty Loan Corporation, and against the defendants, Joe W. Stanley and Doris Stanley, in solido, in the full sum of $2,998.06, with interest thereon from September 15, 1978, until paid at the rate of 27% per annum for the first year and 8% per annum interest thereafter; subject to a credit in the sum of $2,000.00 as of date of judicial demand therefor.

It is further Ordered, Adjudged and Decreed that the chattel mortgage affecting the vehicle in this litigation be and it is hereby recognized by this Court.

It is further Ordered, Adjudged and Decreed that all demands of Big A Auto Sales, Inc. be denied and that the demands of Liberty Loan Corporation against Big A Auto Sales, Inc. be denied.

It is further Ordered, Adjudged and Decreed that the demands of Joe W. Stanley and Doris Stanley against Aetna Casualty & Surety Company be denied.

It is further Ordered, Adjudged and Decreed that all costs of Court be paid one-half by Liberty Loan Corporation and one-half by Joe W. Stanley and Doris Stanley.

The costs of appeal are also assessed in the proportions of one-half to plaintiff-ap-pellee, Liberty Loan Corporation, and one-half to defendants-appellants, Joe W. Stanley and Doris Stanley.

AMENDED AND AFFIRMED.

      . “The adjective “consumer”, used with reference to a credit transaction, characterizes the transaction as one in which the party to whom' credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, household, or agricultural purposes.” 15 U.S.C. § 1602(h)
      “ ‘Consumer credit’ means credit offered or extended to a natural person, in which the money, property, or service which is the subject of the transaction is primarily for personal, family, household, or agriculural (sic) purposes. ‘Consumer loan’ is one type of ‘consumer credit’.” 12 C.F.R. § 226.2(p)

      . “The term ‘creditor’ refers only to creditors who regularly extend, or arrange for the extension of, credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise. * * * ” 15 U.S.C. § 1602(f)
      “ ‘Creditor’ means a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit, or offers to extend or arrange for the extension of such credit, which is payable by agreement in more than four instalments, or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise. * * * ” 12 C.F.R. § 226.2(s)

      .“ ‘Arrange for the extension of credit or for lease of personal property’ means to provide or offer to provide consumer credit or a lease which is or will be extended by another person under a business or other relationship pursuant to which the person arranging such credit or lease

        “(1) Receives or will receive a fee, compensation, or other consideration for such service, or
      “(2) Has knowledge of the credit or lease terms and participates in the preparation of the contract documents required in connection with the extension of credit or the lease. * * ” 12 C.F.R. § 226.2(h)

      . “Any creditor making a consumer loan . . . shall disclose each of the following items, to the extent applicable:
      * * * * * *
      “(2) All charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge. * * * ” 15 U.S.C. § 1639(a)(2)
      “In the case of a loan ... in addition to the items required to be disclosed under paragraph (b) of this section, the following items, as applicable, shall be disclosed:
      “(1) The amount of credit . . . which will be paid to the customer or for his account or to another person on his behalf, including all charges, individually itemized, which are included in the amount credit extended but which are not part of the finance charge, using the term ‘amount financed.’ ” 12 C.F.R. § 226.-8(d)(1)

      . “(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part or part D or E of this subchapter with respect to any person is liable to such person in an amount .equal to the sum of—
      * * * * * * “(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, .. ., except that the liability under this subparagraph shall not be less then $100 nor greater than $1,000;
      “[and] (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1640

      . “Each creditor shall disclose clearly and conspicuously, in accordance with the regulations of the Board, to each person to whom consumer credit is extended, the information required under this part or part D of this subchapter.” 15 U.S.C. § 1631(a)


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Michael Don KEYS, Plaintiff-Appellant, v. SAMBO’S RESTAURANT, INC. et al., Defendants-Appellees.
    No. 7775.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Writ Granted Dec. 15, 1980.

      Kramer & Laird, James M. Buck, Alexandria, for plaintiff-appellant.
    Bolen & Erwin, John Honeycutt, Alexandria, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

Plaintiff sued defendants, claiming damages for unlawful restraint, false imprisonment, and personal injuries. A jury found in favor of defendants and plaintiff’s suit was dismissed. Plaintiff has appealed and argues that the trial court erred by (1) giving “reasonable man” and “proximate cause” instructions to the jury; (2) failing to give certain other instructions proposed by plaintiff which related to unlawful restraint and false imprisonment; and (3) denying plaintiff’s motion for directed verdict with respect to the issue of liability.

We find that the testimony of the various witnesses, although sometimes conflicting or contradictory, establishes the following facts:

During the late evening hours of Saturday, December 9, 1978, plaintiff Michael Don Keys and his friend, John Wells, entered a Sambo’s Restaurant in Alexandria, Louisiana. They sat on adjacent stools at the counter and each ordered a chicken dinner, french fries and coffee. Before their food was served, Wells became ill and left the counter area. Although plaintiff did not know it, Wells left the restaurant, went to his car in the parking lot, and fell asleep.

Terry Ramone Smith, the assistant manager at the restaurant and one of the defendants (hereafter referred to as “defendant”), was notified of the departure of Wells by one of his waitresses. He proceeded to the counter area where he questioned plaintiff as to the whereabouts of his buddy. Where Wells was Keys did not know, but he assured defendant that he, plaintiff, would pay for Wells’ meal if Wells did not return. With that assurance, defendant returned to the cook stand where he was preparing meals.

When the chicken dinners arrived, plaintiff ate all of his meal and some of Wells’ meal, because Wells had not returned. Plaintiff then took a piece of chicken from Wells’ plate, put it in his (plaintiff’s) pocket, and walked away from the counter without paying for either meal. It is unclear whether plaintiff first went to the bathroom after leaving the counter, but it is clear that he attempted to leave the restaurant without paying for either meal and without explaining to the waitress who requested payment, or any other employee, why he intended to leave without paying.

Informed by a waitress of plaintiff’s departure from the restaurant, defendant hurriedly proceeded to the exit through which plaintiff was leaving, and requested that he return to pay for the two meals which had been recorded on one ticket. Plaintiff, who had completed his exit through the first of two sets of double doors, did return and offered to pay $5.00. This amount, though sufficient to pay for the meal plaintiff first ordered, was insufficient to cover the cost of both meals, so defendant refused payment knowing that he would be liable to his employer for the balance if he allowed plaintiff to pay the $5.00 and leave.

After defendant refused the $5.00 offer, plaintiff again attempted to leave the restaurant without further explanation. Defendant prevented this escape by holding the doors shut. He told plaintiff that he would have to remain in the restaurant until the police (who had been called by defendant or another employee) arrived to resolve the situation.

Apparently infuriated by his inability to leave, plaintiff began cursing defendant and the waitresses who were nearby, and began swinging his arms, striking defendant in the chest. Fearful that plaintiff’s increased belligerence would endanger the safety of other restaurant patrons, defendant, a big man at 6'1", 295 lbs., escorted the plaintiff to the restroom area, put him in the restroom, and leaned against the door from outside the restroom. This action prevented plaintiffs escape from the restroom and assured that no harm would result to others on plaintiff’s account.

When two policemen arrived minutes later, they found plaintiff in the restroom in a seated position. When told by the policemen to stand, he began cursing the officers in language most foul. One officer struck plaintiff in the face when it appeared that plaintiff was about to strike one of them. Thus subdued, plaintiff was helped to his feet by the officers when it became evident that he could not walk on his own. With one of plaintiff’s arms around the shoulders of each officer, the three walked to the police car and drove to the police station. There plaintiff was charged with disturbing the peace, failure to pay for a meal, and resisting arrest.

Shortly after his incarceration, and in the wee hours of Sunday morning, December 10th, plaintiff was bailed out by his father. Later, he was .taken to Huey P. Long Memorial Hospital where it was determined that plaintiff had suffered a broken ankle. Thereafter plaintiff brought this suit.

Plaintiff argues that the trial court erred in giving certain jury instructions. The disputed portions of the lengthy jury instructions given by the trial court appear as follows, with emphasis added to those portions complained of particularly:

In a civil action such as this that you have heard, the burden is upon the Plaintiff to prove his case by a preponderance of the evidence. To establish a preponderance of evidence the Plaintiff must prove that each essential fact is more probably true than not. The law of Louisiana provides that every act, whatever, of a man which causes damage to another obliges him by whose fault it happened to repair it. Now that’s very important in considering this case. Liability is therefore founded upon fault or conduct and whether or not fault exists depends upon the facts and circumstances presented in each particular case. In the determination of fault, as respecting iiability for damages, a common sense test is to be applied. That is, how would a reasonably prudent man or woman have acted or what precautions would he or she have taken if faced with similar conditions and circumstances. The degree of care to be exercised must always be commensurate with the foreseeable danger or consequences confronting the alleged wrongdoer. A lack of this care is also called negligence or fault, which is defined as follows: Negligence or fault is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do; when prompted by considerations which ordinarily regulate the conduct of human affairs.
The proximate cause of an accident or an incident is that which, in a natural and continuous sequence, unbroken by any intervening or outside cause, produces the injury and without which the results would not have occurred. It is the direct cause of an accident or an incident. Fault or negligence is a proximate cause of an incident when, under the circumstances, the incident may have been reasonably foreseen by a person of ordinary intelligence. To be deemed a legal cause, the act must be a substantial factor without which the incident would not have occurred.
For the Defendants to be held liable in this case, you must believe from a preponderance of the evidence that the fault of the Defendant, if any, was a substantial cause of the incident and resulting injury. The mere fact that an incident has happened or occurred is not proof of negligence or fault. Fault is a question of fact and it is fundamental in the law that those who allege negligence or fault must prove it. Therefore, the question of whether Defendant was at fault is a question of fact which you must decide in light of all of the evidence, keeping in mind the legal principles which I shall explain to you and which may or may not be applicable, depending upon your determination of the facts.
Now in this particular case, I instruct that a proprietor or employee of an establishment-in this ease a restaurant-is entitled to make an effort to collect a bill or a meal ticket by employing reasonable means under the circumstances. A proprietor or an employee of an establishment-a restaurant in this case-is entitled to take reasonable steps to protect other patrons and to help maintain peace and order on the premises. If you, the jury, feel that the conduct of Terry Smith and/or any employee of Sambo’s Restaurant toward the Plaintiff Mr. Keys was reasonable under all of the circumstances then you should find in favor of the Defendants Terry Smith and Sambo’s Restaurant Incorporated. If, on the other hand, you feel that the conduct of Terry Smith and/or any employee of Sambo’s Restaurant toward the Plaintiff Mr. Keys exceeded the bounds of reasonable care and consideration under all of the circumstances then you should find in favor of the Plaintiff Mr. Keys.”

Plaintiff urges that these instructions were erroneously given because principles of reasonableness and proximate cause do not apply in a false imprisonment/unlawful restraint case. Instead, plaintiff argues, the trial court should have instructed the jury as follows:

“The offense that plaintiff, MICHAEL KEYS, was detained by defendant, SMITH at SAMBO’S was beating a board bill. That offense is defined as a felony by R.S. 21:21.
The law of Louisiana permits a private citizen to make a felony arrest only when it has been committed. Code of Criminal Procedure, Article 214.
A private citizen may make a felony arrest, but he must show that the person arrested has committed a felony. Code of Criminal Procedure Article 214; Dun-son v. Baker, 80 So. 238 (La.S.Ct., 1918) and cases cited therein; Banks v. Food Town, 98 So.2d 719 (La.App.1957).
A false arrest (an arrest without legal authority), is one means of committing a false imprisonment. Banks v. Food Town supra; 35 CJS “False Imprisonment" Section 2.
Any party who commits, procures or instigates a false arrest and imprisonment is responsible in damages for all injuries and harms caused thereby. Fon-tenot v. Lavergne, 365 So.2d 1168 (La. App.1978).
It is not a defense to a false detention that the person causing the detention acted without malice or ill will. Fontenot v.
Lavergne supra.
An employer or employee who commits, procures or instigates a false arrest or detention is responsible for the damage caused thereby if the employer was acting in furtherance of his employer’s business or preserving and protecting the employer’s property. Blickhan v. American Brewing Co., 171 So. 865 (La.App.1937), and 35 CJS “False Imprisonment", Section 40(4).”

Plaintiff’s argument has some merit. The instructions administered by the trial court, although not necessarily incorrect, are by no means complete because they fail to instruct the jury that defendant may have committed an unlawful arrest or that plaintiff’s injuries may have been caused by a reasonable attempt to resist an unlawful arrest, in which case the defendants may have to respond in damages. The jury could not have applied the unlawful arrest principles to the facts because those principles were not part of the court’s charge to the jury. Failure to instruct the jury on these essential legal principles constituted error. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

We note that the jury made no findings of fact, other than that the defendant acted reasonably under all the circumstances. In the absence of the jury’s findings, and because their verdict was reached by applying incorrect or, at best, incomplete principles of law, we are authorized to make our own findings of fact from the record before us, instead of remanding the case for a new trial. Gonzales v. Xerox Corporation, supra; Bond v. Jack, 387 So.2d 613 (La.App. 3rd Cir. 1980); Louisiana Constitution of 1974, Article 5, Section 10; La. C.C.P. Article 2164. This is true even though we do not have the advantage of viewing the witnesses firsthand. Gonzales v. Xerox Corporation, supra.

Our findings of fact have already been set out, beginning with the second paragraph of this opinion. These findings were made only after a meticulous review of the testimony given by the plaintiff, the defendant, Wells, two eye-witness waitresses, and the two police officers. Based on the facts as above stated, we find that defendant’s detention of plaintiff was legal and that plaintiff’s efforts to resist this lawful arrest resulted in his own injuries, which were not caused by the fault of either of defendants.

A private citizen is legally permitted to detain or arrest someone in only two instances. C.Cr.P. Article 215 (commonly referred to as the shoplifting statute) permits “a .. . merchant, or a specifically authorized employee of a merchant” to use reasonable force to detain a person when there is reasonable cause to believe the person has committed a theft of goods held for sale by the merchant. Article 215 specifically declares that this detention does not constitute an arrest. C.Cr.P. Article 214 (the citizen’s arrest statute), the second instance, authorizes a private citizen to make a legal arrest. Since we decide that the arrest of Michael Don Keys was a valid citizen’s arrest under Article 214, we do not reach the issue of whether Article 215 might also have applied.

C.Cr.P. Article 214: Citizen’s Arrest C.Cr.P. Article 214 reads in its entirety:
“A private person may make an arrest when the person arrested has committed a felony, whether in or out of his presence.”

The Louisiana Supreme Court has held that a private citizen must show that the person he arrested has committed a felony before his actions will be excused as proper. Dunson v. Baker, 144 La. 167, 80 So. 238 (1918); State v. Jones, 263 La. 164, 267 So.2d 559 (1972). While proof of the arrested person’s conviction of the felony would facilitate the arresting party’s burden of proving the commission of the felony, proof of conviction does not seem to be a requirement. Were it otherwise, the defendant-arrester in a false arrest suit would be at the mercy of a prosecutor who might elect not to try the arrested party because a plea bargain had been struck, or because he thought his case was too weak, or because of some other reason. In such situations, the defendant-arrester should not be denied the opportunity to prove the arrest was legal because a felony had been committed. Thus, we conclude that commission of the felony may be proved during the civil trial as a defense to charges of false imprisonment or arrest.

As plaintiff pointed out in his suggested instructions, the only applicable felony is found in La.R.S. 21:21 and provides in part as follows:

“No person shall:
(1) Obtain accommodations at any hotel, inn, boarding house or restaurant or procure food without paying therefor, with intent to defraud, except when credit is given by express agreement.
sfc % sf: * sj«
(6) Obtain accommodations, food, property or services by other than the use of a credit card from any hotel, inn, boarding house or restaurant by the use of deception knowing he is without sufficient means to pay for them.
Whoever violates any provision of this Section shall be fined not more than five hundred dollars, or imprisoned, with or without hard labor, for not more than two years, or both.” (Emphasis added).

La.R.S. 14:2(4) defines “felony” as “any crime for which an offender may be sentenced to death or imprisonment at hard labor.” (Emphasis added). Thus, one whom the evidence shows has committed the crime defined in R.S. 21:21 has committed a felony since the statute provides that the offender may be sentenced to imprisonment at hard labor. Since the record indicates that plaintiff had not been criminally tried on the failure to pay for a meal charge, and, hence, had been adjudged neither guilty nor innocent of that charge at the time of this trial, we must decide whether the facts show that the crime had actually been committed. If the facts so show, the arrest was legal.

As the facts demonstrate, plaintiff initially ordered one meal, later agreed to pay for two meals, ate two meals, and then proceeded to walk out of the restaurant without explanation and without paying for either meal.

Plaintiff’s departure from the restaurant with no explanation for his non-payment constituted prima facie evidence of intent to defraud under La.R.S. 21:22, and thus satisfied the elemental requirements for proof of the crime of fraudulently procuring food from a restaurant without paying the amount due. Plaintiff, of course, could have rebutted the prima facie evidence of intent to defraud which was established by his unexplained departure.

The best opportunity for plaintiff to rebut the prima facie evidence occurred when he returned to the restaurant at defendant’s behest. However, plaintiff did not then explain to defendant the reason for his departure. He merely produced $5.00, offered to pay that amount only, and flatly refused to pay for the second meal. When this offer was refused, plaintiff again attempted to leave without further explanation. Never did plaintiff simply protest the amount alleged to be due, and he never offered to explain his behavior to defendants prior to his arrest by the police.

Plaintiff testified at trial that he was merely seeking the whereabouts of his friend, John Wells, when he left the restaurant. Wells, he said, had agreed to pay for both meals beforehand. Wells’ testimony corroborated plaintiff’s explanation. Sam-bo’s, however, did not know of this plan (if, in fact, it did exist), and plaintiff never apprised Sambo’s or Terry Smith of his arrangement with Wells. Plaintiff also claimed at trial that he did not have sufficient funds to pay for both meals. However, this would further demonstrate a knowing intent on his part to defraud the restaurant since he agreed to pay for both meals, even though he must have known at that time that he could pay for no more than one.

We are persuaded by the evidence that plaintiff committed the felony proscribed by La.R.S. 21:21. We are unmoved by his hindsighted efforts to explain his unusual behavior of leaving the restaurant without first paying for the meals he ordered.

Even if it could be said that plaintiff did not actually leave the premises within the meaning of R.S. 21:22, so that the presumption of intent to defraud was never created, we would have no difficulty in deciding that plaintiff had committed the crime of an attempt to fraudulently procure food from a restaurant without paying therefor. Attempt is defined at La.R.S. 14:27:

“A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;
(2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft or receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” (Emphasis added).

Under 14:27 D(3) an attempt to fraudulently procure food from a restaurant would be a felony just like the parent offense because the offender would be fined or imprisoned “in the same manner as for the offense attempted” except that the fine or imprisonment would not exceed one-half of the maximum fine or imprisonment prescribed for the offense attempted. State v. Patterson, 259 La. 508, 250 So.2d 721 (1971). Since R.S. 21:21 provides that the offender may be imprisoned at hard labor, one guilty of an attempt may be imprisoned in the same manner-at hard labor. Here, plaintiff would be guilty of an attempt to fraudulently procure food from a restaurant if we assume, arguendo, that his departure had not been fully completed because, by his words and actions before and after the initial restraint, he demonstrated a specific intent to commit the offense and he would have been guilty of a crime if his intentions had been fully consummated.

We also find that plaintiff’s personal injuries were the result of his doomed attempt to resist a lawful arrest. Defendant used only that force which was necessary to secure plaintiff’s presence on the premises while at the same time assuring that neither he, his customers, nor his employer’s property, were harmed. Plaintiff’s injuries were the products of his own misbehavior, for which the defendants cannot be held accountable.

For the above and foregoing reasons, the judgment in favor of defendants, Terry Ra-mone Smith and Sambo’s Restaurant, Inc., dismissing plaintiff’s suit is affirmed. All costs are assessed against plaintiff.

AFFIRMED.

      . The pair had been drinking alcoholic beverages for much of the evening while celebrating Wells’ birthday. According to his testimony, Wells’ illness was the product of his drinking and the smell of Sambo’s food.

      . The other defendant is Sambo’s Restaurant, Inc., on whose behalf Terry Smith was acting. For convenience sake, though, “defendant” shall refer only to Terry Smith unless indicated otherwise.

      . Defendant explained that if Wells did not intend to return to pay for his meal, then he had the right to throw Wells’ order away.

      . The total cost of the two meals was never established but there is no dispute that the amount exceeded $5.00.

      . We do not mean to imply that all, or even any, of plaintiff’s proposed instructions should have been given. We do think, considering the facts, that some instructions on the principles of unlawful arrest should have been given.

      . La.R.S. 21:22 provides:
      “The failure of any person to pay the proper charges due for any food, lodging, beverages, or anything of value due to any hotel, inn, boarding house or restaurant before departing from the premises, without first personally appearing before the room clerk or other agent of the establishment before departing and protesting the amount alleged to be due, or without working out satisfactory credit arrangements for the payment thereof, is prima facie evidence of intent to defraud, within the meaning of R.S. 21:21; .”


author: CULPEPPER, Judge.

text:
    Josephine SIMON, Plaintiff and Appellee, v. COMMERCIAL UNION ASSURANCE COMPANY, Defendant and Appellant.
    No. 7779.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Brame, Bergstedt & Brame, David Fraser, Lake Charles, for defendant and appellant.
    McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

This is an action for workmen’s compensation benefits. Plaintiff, Josephine Simon, was granted judgment against American Employers Insurance Company, awarding benefits at the rate of $70.63 a week from May 24, 1978 to December 31, 1978, with statutory penalties and attorney’s fees in the amount of $2,500. Defendant appeals. We affirm.

There is no dispute that plaintiff suffered a work-related injury on March 22, 1978. While working as a cook at a motel restaurant, she fell and injured her back. The issues on appeal are: (1) Did plaintiff recover from the work-related injury by June 6,1978 and then suffer a second accident at home, causing any subsequent disability? (2) Was defendant arbitrary and capricious for failing to pay weekly benefits or medical expense? (3) Is the award of $2,500 in attorney’s fees excessive?

The testimony of plaintiff’s treating physician, Dr. William F. Foster, a neurosurgeon, established plaintiff suffered a lumbar straining injury with nerve root irritation on March 22, 1978. As a result of the accident, she was unable to work in her usual employment as a cook. Dr. Foster described plaintiff’s type of injury as being characterized by remissions and exacerba-tions of pain. Based on office records kept by him and Dr. Moore, a medical associate, Dr. Foster gave the opinion plaintiff’s condition improved after hospitalization from May 5 to May 12, 1978. He believed plaintiff was able to work at that time. Plaintiff was treated again, however, in June, July and September, when stronger medications were prescribed to relieve intermittent pain in her back and leg. Dr. Foster stated the cause of treatment shown by his records indicated plaintiff had aggravated the condition she had and was not over her complaints. He further testified plaintiff was unable to work in September and recommended further treatment by a specialist in Houston, Texas. Defendant was notified of this recommendation in October of 1978.

Plaintiff testified she was feeling much better after the May hospitalization, but her condition worsened during the month of June after her child’s birthday party. On that occasion her child came up behind her and frightened her. She made a quick jump, experiencing an immediate sharp pain in the leg. She continued to see Drs. Moore and Foster and depended on family and friends to assist her in household chores. Plaintiff estimated she became pain-free sometime in January 1979.

Dr. Jerome W. Ambrister, an orthopedic surgeon, examined plaintiff on behalf of the defendant insurance company on June 5, 1978. Dr. Ambrister reported plaintiff had incurred a straining type of injury, but at the time of the examination he found plaintiff’s condition normal. At trial, Dr. Ambrister acknowledged the described incident with plaintiff’s child could have caused a flare up of plaintiff’s condition.

In his written reasons for judgment, the trial court found as follows:

“The Court’s opinion is that plaintiff’s testimony and the testimony of her attending physicians, Drs. Moore and Foster, prevail over Dr. Ambrister’s, and that she suffered temporary total disability until the end of December, 1978.
“Defendant paid weekly compensation at the rate of $70.63 for nine weeks, a total of $635.67. The last payment was indicated to cover the period ending June 8, 1978. However, the total payments paid only through May 24. Defendant owes compensation at the weekly rate of $70.63 from May 24, 1978 through December 31, 1978.
“Turning now to a consideration of the medical bills, paid and unpaid, the stipulations reflect that the only bills that have been paid by the insurer were the $217 and $25 bills of St. Patrick Hospital, the $50 bill of Dr. Ambrister for his examination for the insurer, and the $55 bill of Holston Ambulance Service for taking the plaintiff to the hospital after the accident. The following bills have never been paid:
“St. Patrick’s Hospital $284 physical therapy April & May 1978
Diagnostic Radiology Association 36.75 X rays May 1978
Lake Charles Memorial Hospital 726.99 hospitalization May 1978
Lake Charles Neurological Associates 185.00 Drs. Moore & Oct. 1978 Foster
Drug hills 82.67 prior to Oct. 3,1978
* 5k Sfc * *
“Due to defendant’s acknowledgment that the bills are due and the total absence of any defense or explanation as to why they were not paid, the court has no alternative except to draw the conclusion that the defendant was arbitrary and capricious in failing to pay the medical expenses. The court also believes that the defendant was arbitrary and capricious in failing to resume compensation benefits after the receipt in October of evidence that plaintiff remained disabled.”
We agree with the trial judge that plaintiff’s disability which continued to December 31, 1978 was causally related to the work-caused injury on March 22,1978. We also agree that the defendant was arbitrary and capricious in failing to pay the medical expense which was clearly due. However, we are unable to agree with the trial judge that the defendant was arbitrary and capricious in failing to resume weekly benefits after the receipt by defendant’s attorney on October 18, 1978 of the report of plaintiff’s attending physician that she remained disabled.
As regards penalties and attorney’s fees for failure to resume weekly compensation payments, the sequence of events is that plaintiff’s own physicians released her to return to work on May 31, 1978. Dr. Am-brister’s report dated June 6,1978 also stated that plaintiff was fully recovered and could return to work. It was on the basis of these reports that the defendant terminated workmen’s compensation payments. On June 6,1978, plaintiff suffered the rein-jury while playing with her child at home. She went back to see her attending physicians on June 29, 1978 and July 27, 1978, and they found she had aggravated her original work-related injury and remained disabled. However, defendant did not receive medical reports of the continued disability until October 18, 1978. Meanwhile, plaintiff had filed this suit on August 31, 1978.

There is no question that defendant was justified in terminating weekly compensation on the basis of reports from both plaintiff’s own attending physicians and from Dr. Ambrister. When plaintiff filed suit on August 31, 1978, these were still the only reports defendant had in its files. When defendant received the new reports on October 18,1978 of the continuing disability, it still had in its files the conflicting reports that plaintiff had recovered back in May of 1978. Clearly, defendant was not arbitrary in deciding that it was entitled to a judicial determination on the issues of whether plaintiff continued to be disabled and whether the present disability, if any, was related to the original work-related accident. See Levine v. Liberty Mutual Insurance Company, 305 So.2d 665 (La.App.3rd Cir.1974) and Broussard v. Subsurface Completion Service, Inc., 338 So.2d 1217 (La. App.3rd Cir.1976).

Of course, plaintiff is entitled to penalties and attorney’s fees on the unpaid medical expenses as fixed by statute. We assess attorney’s fees of $1250.

For the reasons assigned, the judgment appealed is amended to delete the award for penalties and attorney’s fees for failure to pay weekly compensation. The award of penalties on the unpaid medical expense is affirmed and the attorney’s fees for failure to pay medical expense is fixed at the sum of $1,250. Otherwise the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant.

AFFIRMED, AS AMENDED.

      . It was stipulated at trial that plaintiff named Commercial Union Assurance Company as defendant in error and that American Employers Insurance Company is the proper defendant.


author: CHEHARDY, Judge.

text:
    Eddie GREEN v. MOTORS INSURANCE CORPORATION.
    No. 11233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Nov. 17, 1980.
    Norman Mopsik, New Orleans, for plaintiff -appellee.
    Donald P. Schwarz, Metairie, for defendant-appellant.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   CHEHARDY, Judge.

Defendant, Motors Insurance Corporation (MIC), appeals from a city court judgment awarding plaintiff, Eddie Green, damages for the defendant’s breach of contract in the amount of $999 together with interest from the date of judicial demand, defendant to pay all costs of the proceedings.

The record reflects that the plaintiff purchased a Pontiac automobile from General Motors Acceptance Corporation (GMAC) in May of 1974, and there was a chattel mortgage on the car held by MIC.

The plaintiff testified his down payment for the vehicle was $1,500, and his monthly notes, which commenced in July, of 1974, were $184. It is uncontroverted that the plaintiff made these payments timely until the theft of the vehicle in May of 1975. Plaintiff also testified he was living at 1517 Admiral Street in Morrero, Louisiana, at the time of the purchase and that he continued to reside there until August or September of 1974.

Mrs. Betty Landry testified that during 1974 she was employed by MIC as an underwriting clerk and that on June 28, 1974, she mailed a notice to the plaintiff of cancellation of his double interest insurance coverage on the vehicle, to become effective on July 8, 1974.

Defendant also produced a copy of the cancellation letter sent to Green dated June 27, 1974, and a copy of the application for registration stamped by the post office, on which Green’s name and the Admiral Street address appeared, dated June 28, 1974. Although Landry testified no return receipt was requested from the post office she stated MIC’s return address appeared on its envelope of correspondence and, furthermore, that Green’s notice of cancellation was never returned to MIC.

Larry R. Miele testified he was an employee of GMAC in June of 1974 and that his records reflected the company received notice of the cancellation of Green’s insurance effective July 8, 1974. He testified the company then notified Green on July 12,1974 that unless he acquired other insurance GMAC would be forced to buy single coverage insurance on the vehicle. Miele also explained that single coverage (covering only the lien holder’s interest) was ultimately purchased by GMAC and a new payment book was later sent to Green at the Admiral Street address. He stated that although Green’s payments remained the same, they ended in February of 1977 rather than June of 1977 due to the reduced insurance coverage.

Green testified at trial that he never received a letter of cancellation from MIC and that he moved from the Admiral Street address to California in August or September of 1974.

Defendant contends the trial court erred in stating, “The court will rule in favor of the Plaintiff on the basis of MIC and GMAC stating return receipt was not requested,” and in not finding that the defendant had carried its burden of proof as to the mailing of the cancellation notice.

LSA-R.S 22:636 entitled “Cancellation by insurer” states:

“A. Cancellation by the insurer of any policy which by its terms is cancellable at the option of the insurer, or of any binder based on such policy, may be effected as to any interest only upon compliance with either or both of the following:
(1) Written notice of such cancellation must be actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than five days prior to the effective date of the cancellation.
(2) Like notice must also be so delivered or mailed to each mortgagee, pledgee, or other known person shown by the policy to have an interest in any loss which may occur thereunder.
“B. The mailing of any such notice shall be effected by depositing it in a sealed envelope, directed to the addressee at his last address as known to the insurer or as shown by the insurer’s records, with proper prepaid postage affixed, in a letter depository of the United States Post Office. The insurer shall retain in its records any such item so mailed, together with its envelope, which was returned by the Post Office upon failure to find, or deliver the mailing to the addressee.
“C. The affidavit of the individual making or supervising such a mailing, shall constitute prima facie evidence of such facts of the mailing as are therein affirmed.
“D. The portion of any premium paid to the insurer on account of the policy, unearned because of the cancellation and in amount as computed on the pro rata basis, must be actually paid to the insured or other person entitled thereto as shown by the policy or by any endorsement thereon, or be mailed to the insured or such person as soon as practicable following such cancellation. Any such payment may be made by cash, or by check, bank draft, or money order.
“E. This Section shall not apply to temporary life insurance binders nor to contracts of life or health and accident insurance which do not contain a provision for cancellation prior to the date to which premiums have been paid, nor to the contracts provided in Part XV of this Chapter.”

In the case of Harang v. Sparacino, 257 So.2d 785 (La.App. 4th Cir. 1971), this court addressed the present issue, stating at pages 791-792:

“We have been referred to a number of cases involving the interpretation of the provisions of LSA-R.S. 22:636 concerning the mailing and non-receipt of notices of cancellation. The statute itself does not mention receipt, but provides that cancellation may be effected only upon compliance with the requirement of written notice of cancellation either actually delivered or mailed to the insured. An examination of the jurisprudence to which we have been referred discloses that there is no case in which our appellate courts have held that it was necessary that the insured actually receive the mailed notice, although lack of receipt has been considered as evidence which could rebut an affidavit of mailing, which, if rebutted, is ‘evidence’ of mailing. Townzen v. Allstate Insurance Company, supra [188 So.2d 474 (La.App.)]. [Emphasis in the original.]
“Of course, it has been presumed that the actual mailing of a document causes its delivery and receipt in due course by the addressee. Upon this basis our courts have held, in some factual situations, that the trial court may consider that the proven failure of receipt could apparently lead to the equally as plausible presumption that the document was never actually mailed. Yet where proof of mailing is strong, as in Breckenridge [v. Dalon, 229 So.2d 221 (La.App.)] supra, the mere denial of receipt by the insured is not sufficient to invalidate the cancellation which is effective if ‘actually delivered or mailed’ as set out in section 636. * * *
“ * * * But neither section 686 nor section 636.1 requires proof of receipt of the notice, but only proper mailing. A holding that the insured was not aware of the notice of cancellation is insufficient to prevent the effectiveness of the cancellation. * * * ” (Emphasis ours.)

Moreover, this court also stated in the case of Dufrene v. Dixie Auto Ins. Co., 376 So.2d 507, 509 (La.App. 4th Cir. 1979), referring to Harang v. Sparacino, supra:

“ ‘R.S. 22:636.1(E) [22:636.1(f)] states “proof of mailing of Notice of Cancellation, or of intention not to renew or of reasons for cancellation, to the name insured at the address shown on the policy, shall be sufficient proof of notice.” Receipt of that notice is not required. * *’”

A review of the record in the present case reveals that the defendant has proven mailing sufficient to satisfy the requirements of LSA-R.S. 22:636. The plaintiff’s denial of receipt is not sufficient to invalidate the cancellation.

Accordingly, the judgment of the trial court is reversed. It is now ordered that there be judgment in favor of defendant, Motors Insurance Corporation, and the suit of the plaintiff, Eddie Green, is dismissed at his costs.

REVERSED AND RENDERED.

      . Motors Insurance Corporation was erroneously designated as Motors Insurance Company in the district court judgment.


author: BARRY, Judge.

text:
    DEUTSCH, KERRIGAN & STILES v. Joseph M. RAULT, Jr.
    No. 11274.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Nov. 17, 1980.
    Deutsch, Kerrigan & Stiles, Stephen F. Vogel, New Orleans, for plaintiff-appellee.
    Leach, Paysse & Baldwin, Richard C. Baldwin, and Ford J. Dieth, New Orleans, for defendant-appellant.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

Deutsch, Kerrigan & Stiles, a law partnership, filed suit for attorneys’ fees for services rendered to Joseph M. Rault, Jr. in a federal lawsuit filed in 1970 entitled “Clay L. Shaw v. Jim Garrison, et al”. The District Court entered judgment for plaintiff in the sum of $27,489.23 with legal interest from judicial demand and for costs. The defendant does not deny the legal representation but filed this appeal raising the following questions:

(1) Does the evidence prove that the legal services rendered by the plaintiff were to be charged and paid by Rault in the Shaw damage suit?
(2) If attorney fees are due to plaintiff was the amount awarded proper considering mitigating circumstances?

Appellee’s answer to the appeal asked that the trial court’s award of interest be modified to provide that legal interest be calculated from the date of appellee’s various fee statements rather than from the date of judicial demand.

The threshold question is the factual determination if there was an expressed or implied contract for payment of the legal services. LSA-C.C. Art. 1811 provides:

The proposition as well as the assent to a contract may be express or implied: Express when evinced by words, either written or spoken;
Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.

This scenario began in February, 1970 when Clay Shaw brought suit in Federal District Court against the Orleans District Attorney, Rault, and several other defendants. Shaw sought over $5 million for alleged violations of his civil rights as a result of his arrest and prosecution for conspiracy to assassinate President Kennedy.

Shortly after Shaw’s damage suit was filed Eberhardt Deutsch, one of plaintiff’s senior partners, invited several of the defendants to a luncheon meeting. Among those present were the District Attorney, Willard Robertson, Malcolm Monroe (a partner in the law firm), and appellant. Appellant testified that Deutsch stated at the luncheon meeting that services of his law firm would be rendered without pay because of his personal interest in the litigation and because of his involvement in a co-defendant organization whose purpose was to raise money to assist in the assassination investigation. Deutsch and Monroe testified that the agreement was for the defendants to each pay a percentage of the total bill for attorneys’ fees.

That Rault was a co-defendant in a serious tort lawsuit involving unique law' is undisputed. Nor does Rault deny the extensive legal work done or its adequacy on his behalf. It is interesting to note that in appellant’s original answer he admitted his agreement to be responsible to appellee for legal fees and costs. Appellant subsequently filed a supplemental answer denying liability for any expenses.

Appellee’s first statement for legal services was rendered approximately two years after the Shaw litigation began. A total of six bills were submitted to Rault up to January, 1977 as follows:

January 17, 1972 $11,790.88
May 23, 1973 4,063.25
August 5, 1974 January 17, 1975 210.00 5,015.37
July 18, 1975 5,705.94
January 31, 1977 1,614.32
$28,399.76
Contribution on Rault's behalf by a co-defendant 910.53
DUE $27,489.23

The legal work was rendered over a seven year period and documents in the record show that 1,769 hours of attorneys’ time was billed. Plaintiff’s billing was apportioned 50% to the District Attorney, 25% to Robertson and 25% to Rault. The litigation was extensive, including three appeals to the United States Fifth Circuit Court of Appeal and two petitions to the United States Supreme Court. The Highest Court eventually ruled in favor of the various defendants causing dismissal of the Shaw lawsuit and Rault’s exoneration from liability.

Appellant testified that he never wrote protesting any of the six fee statements nor did he respond to letters requesting payment of past due amounts. Extensive exhibits show that Rault was constantly informed of the status of the litigation and provided copies of legal documents. Consent to an agreement can be shown by action, inaction, or silence. There is ample evidentiary proof to conclude by a preponderance the existence of an implied contract. Salim v. Louisiana State Board of Education, 289 So.2d 554 (La.App., 3rd Cir. 1974), writ denied 293 So.2d 177 (1974); Nebiett v. Placid Oil Co., 257 So.2d 167 (La.App., 3rd Cir. 1972), writ denied 258 So.2d 376 (1972).

The trial judge listened to each witness and appraised the many exhibits in support of appellee’s position. The lower court’s determination of each witness’ credibility and its evaluation of the conflicting testimony should not be disturbed in the absence of a clear abuse of discretion. Canter v. Koehring, 283 So.2d 716 (La., 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978). Our review fails to find manifest error or any abuse of discretion.

We do not find mitigating circumstances which would reduce the amount of the judgment. The trial judge was in a position to establish value for attorneys’ fees based on the evidence and his own knowledge. Appellant’s 25% of the total bill was $27,489.23; the 1,769 hours billed amounts to $62.00 per hour, including costs. This is a reasonable hourly charge for the type and extent of legal work expended.

The last question involves whether appel-lee’s answer on appeal was timely filed in order to consider if the judgment should be modified to provide that legal interest commences from the date of each fee statement rendered to appellant rather than from the date of judicial demand.

LSA-C.C.P. Art. 2133 requires an answer to an appeal to be filed not later than fifteen days after the return date or the lodging of the record, whichever is later. This record consists of three volumes: two were filed January 24,1980 and the third on April 2, 1980. Appellee’s answer was filed April 7, 1980.

We interpret Art. 2133 to mean that the fifteen day period to file an answer commences after the entire record is lodged. To hold otherwise would require an appellee to answer based upon an incomplete record. A record on appeal should contain all of the proceedings and all documents filed in the trial court unless the appellant designates otherwise. LSA-C.C.P. Art. 2128. No designation was requested and the record was lodged in its entirety on April 2, 1980. Therefore, appellee’s answer filed April 7, 1980 was within the provisions of LSA-C. C.P. Art. 2133.

The trial court erred in awarding legal interest from date of judicial demand. Appellee properly prayed for interest from the date each fee statement was rendered. See LSA-C.C. Art. 1938 and LSA-C.C.P. Art. 1921. We therefore amend the lower court judgment to provide that legal interest be awarded from the date of each fee statement submitted by appellee to appellant. LSA-C.C.P. Art. 1921; James, Robinson, Felts & Starnes v. Powell, 303 So.2d 229 (La.App., 2nd Cir. 1974).

Accordingly, the judgment of the District Court is hereby amended to provide legal interest from the date of each fee statement until paid, and in all other respects the District Court judgment is affirmed. Appellant to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . There is evidence that the law firm had represented Rault on several other occasions, but no indication if these services were by a written or oral contract.

      . The contribution credit of $910.53 was on 9/17/75. This credit should be deducted from the 7/18/75 statement to calculate legal interest due.


author: FORET, Judge.

text:
    Janet Hamrick DONALDSON, Plaintiff-Appellant, v. Holmam Elwood DONALDSON, Defendant-Appellee.
    No. 8044.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 1980.
    Writ Refused Nov. 26,1980.

      Woodley, Barnett, Cox, Williams & Fen-et, James E. Williams, Lake Charles, for plaintiff-appellant.
    Hunt, Godwin, Painter & Roddy, Fred R. Godwin, Lake Charles, for defendant-ap-pellee.
    Before GUIDRY, FORET and STOKER, JJ.
   FORET, Judge.

MOTION TO DISMISS

The plaintiff-appellant appeals from a judgment of the trial court denying her alimony pendente lite. This court ex pro-prio motu issued a rule to show cause why the appeal should not be dismissed as being untimely under LSA-C.C.P. Art. 3943.

The judgment of the trial court was signed and notice of judgment mailed on March 25, 1980. A motion for new trial was timely filed, but was denied on April 30, 1980. This appeal was perfected on June 26, 1980, more than 30 days, but less than 60 days from the denial of a new trial.

The delay for taking an appeal from a judgment awarding custody or alimony is 30 days. LSA-C.C.P. Art. 3943. The plaintiff contends that LSA-C.C.P. Art. 3943 only applies to a judgment awarding custody or alimony and not a judgment denying custody or alimony. This contention is without merit.

This issue was squarely dealt with by the Supreme Court in Malone v. Malone, 282 So.2d 119 (La.1973). In Malone the Court concluded:

“. . . we hold that appeals from judgments awarding, denying, modifying or terminating alimony or custody are governed by the provisions of C.C.P. 3943.”

The plaintiff relies on Derussy v. Derussy, 173 So.2d 544, (La.App. 4th Cir., 1965) to support her argument that LSA-C.C.P. Art. 3943 should only apply to judgments awarding alimony or custody. However, the Court in Malone, supra, disapproved of the decision in Derussy and held LSA-C.C.P. Art. 3943 applied to all judgments concerning alimony or custody. The holding in Malone, supra, has been uniformly followed by the Courts of Appeal. See: Matherne v. Matherne, 331 So.2d 55 (La.App. 1st Cir., 1976); Entrekin v. Entrekin, 325 So.2d 775 (La.App. 4th Cir., 1976); Langley v. Langley, 316 So.2d 868 (La.App. 2nd Cir., 1975).

For the above and foregoing reasons, this appeal is dismissed at the plaintiff-appellant’s cost.

APPEAL DISMISSED.


author: CUTRER, Judge.

text:
    Anita AINSWORTH et vir., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8086.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 1980.

      J. P. Mauffray, Jr., Jena, Stafford, Stewart & Potter, Larry A. Stewart, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee. '
    Before GUIDRY, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

MOTION TO REMAND

The defendant-appellee, State Farm Mutual Automobile Insurance Company, moves to remand this suit to the trial court to enable it to traverse the right of the plaintiffs-appellants, Anita Ainsworth and Travis L. Ainsworth, to proceed with their appeal in forma pauperis. The motion is unopposed.

Judgment was rendered in this case on July 17, 1980.

By motion filed September 15, 1980, and order signed that date, both plaintiffs, Anita Ainsworth and Travis L. Ainsworth, were granted a devolutive appeal to this court. The appeal order further granted the plaintiffs-appellants the right to prosecute the appeal in forma pauperis.

The defendant-appellee, State Farm Mutual Automobile Insurance Company, alleges that the motion for appeal filed by the plaintiffs-appellants on September 15th was the first effort by the plaintiffs to proceed in forma pauperis and, therefore, the defendant-appellee has not had an opportunity to traverse the plaintiffs’ right to proceed in forma pauperis.

The jurisprudence is well settled that where a devolutive appeal had been taken in forma pauperis without allowing the appellee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefor, remand the cause to give the ap-pellee the opportunity to do so. Oldham v. Hoover, 140 So.2d 417 (La.App. 1st Cir. 1962).

Under the facts of this case, the mover has had insufficient opportunity to traverse in the district court, and thus is clearly entitled to an opportunity to do so. Shepard v. Shepard, 349 So.2d 1026 (La. App. 3rd Cir. 1977); Darby v. Travelers Insurance Company, 272 So.2d 798 (La.App. 3rd Cir. 1973); Ross v. Hatchette, 247 So.2d 399 (La.App. 3rd Cir. 1971).

The matter is hereby remanded to the trial court for the purpose of allowing the defendant-appellee, State Farm Mutual Automobile Insurance Company, to traverse the appellants’ right to proceed with their appeal in forma pauperis.

APPEAL REMANDED.


author: BROOM, Justice, for the Court:

text:
    Gloria LEASY v. Paul ZOLLICOFFER and Delta Electric Power Association.
    No. 52159.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    As Modified On Denial of Rehearing Dec. 3,1980.
    W. E. McLellan, III, Jackson, for appellant.
    Arnold F. Gwin, Lott, Sanders & Gwin, Greenwood, for appellees.
    Before WALKER, BROOM and COFER, JJ.
   BROOM, Justice, for the Court:

Garnishment of a judgment debtor’s wages by a writ served upon the debtor’s employer (appellee/garnishee Delta Electric Power Association-Delta herein) forms the background to this suit appealed from the Circuit Court of Sunflower County. The issue is: Upon this record should Delta, the garnishee, have continued withholding funds from the wages of the judgment debtor after the return date of the writ? The lower court ruled in favor of Delta, and we affirm.

The record shows that in October 1978, in a tort action, Gloria Leasy (appellant) obtained a $601.85 default judgment upon a writ of inquiry against Paul Zollicoffer. On or about December 18, 1978, Leasy filed a suggestion for issuance of a writ of garnishment naming Delta (Zollicoffer’s employer) as garnishee. The writ was issued and in due course served upon Delta on a later date. At the return date of the February 1979 term of Circuit Court of Sunflower County, Mississippi, Delta’s office manager, Mr. Seward, filed Delta’s (garnishee’s) answer admitting that Delta was indebted to its employee, judgment debtor Zollicoffer for wages earned by Zollicoffer. In its sworn answer, Delta stated that it had thus far withheld $196.62 from Zollicoffer and added:

In addition there may be an additional amount subject to this garnishment which is not now due or owing to the defendant. When and if due, said amount will be paid into court.

On or about September 21, 1979, Leasy’s attorney wrote a letter to Delta’s Mr. Seward inquiring as to the exact status of the garnishment. Delta’s attorney responded by letter stating: (1) Delta had only withheld funds from Zollicoffer’s salary from and after the date the writ was served; (2) Delta only honored garnishments from time of service of the writ until the return date and was not required to withhold money past the writ’s return date. Leasy then filed a motion to cite and require Delta to show cause why it should not be held in contempt for failure to withhold from Zolli-coffer’s wages pursuant to a garnishment in accordance with Mississippi Code Annotated § 85-3-1 (1972), and why Delta should not also be required to pay Leasy a reasonable amount of attorney’s fees. Delta demurred on the ground that the motion failed “to state any cause of action against the garnishee, Delta Electric Power Association.” The demurrer was sustained, and Leasy elected to appeal rather than amend her declaration.

Leasy contends that Delta is required to withhold funds from its employee’s wages not only until the writ’s return date but thereafter. She relies upon Mississippi Code Annotated § 85-3-l(10)(a) (1972), which states in pertinent parts:

The following property shall be exempt from seizure under execution or attachment, to-wit:
Tenth, (a) The wages, salaries or other compensation of laborers or employees residents of this state, for personal services in an amount equal to seventy-five per cent (75%) of such wages, salary or other compensation, due or to become due to such laborers or employees, and the levy as to such percentage of their wages, salaries or other compensation shall be void. The court issuing any writ of garnishment or levy shall show thereon the amount of the claim of the plaintiff and the court costs in the proceedings and should at any time during the pendency of said proceedings in the court a judgment be rendered for a different amount, then the court shall notify the garnishee of the correct amount due by the defendant under said writ or levy. The garnishee shall retain twentv-five per cent (25%) of the wages, salary or other compensation of the laborer or employee during such period of time as it is necessary to accumulate a sum equal to the amount shown as due the court on the writ or lew, at which time the garnishee shall pay the same into the court. Should the employment of the defendant for any reason be terminated with the garnishee, then the garnishee shall not later than fifteen (15) days after the termination of such employment, report such termination to the court and pay into the court all sums as have been withheld from the defendant’s wages, salaries, or other compensation. If the plaintiff in garnishment contest the answer of the garnishee, as now provided by law in such cases, and proves to the court the deficiency or untruth of the garnishee’s answer, then the court shall render judgment against the garnishee for such amount as would have been subject to the order of condemnation had the said sum not been released to the defendant.
(Emphasis added).

Leasy argues that § 85-3-l(10)(a):

[Rjequires the garnishee to withhold funds from the judgment debtor’s salary for however long it takes to accumulate the amount of the judgment, even . . . [if] . . . past the return term of the writ of garnishment.

There is no doubt that under our previous case law, our garnishment statutes bound a judgment debtor’s property in the hands of a garnishee only until the return date provided in the writ. Columbus Insurance and Banking Company v. Hirsh, 61 Miss. 74, 77 (1883) held that:

It is true that the service of the writ binds any money belonging to the defendant that he may receive between the time of service and the return day of the writ. . . .

To the same effect are Mississippi Cottonseed Products Co. v. Champion, 200 Miss. 460, 27 So.2d 684 (1946); Peoples Bank v. Gore, 178 Miss. 216, 172 So. 506 (1937); and Brondum v. Rosenblum, 151 Miss. 91, 117 So. 363 (1928).

Having in mind our previous case law, we must decide what effect, if any, the 1966 amendment to § 85-3-1, supra, (§ 307 in our 1942 Code) and in particular the language underlined above, had on garnishment procedures. Delta points out that it is a mere stakeholder and as held by us in Brondum v. Rosenblum, supra, at 98, 117 So. at 364.

[M]ust not voluntarily do anything to the prejudice of the parties. [It] must let the law take its course, except [it] may protect [it]self from unauthorized acts and proceedings.

Delta correctly argues that garnishment statutes and other statutes having any effect upon it as to garnishment procedures “should be construed most strongly in favor of the garnishee” (Delta) because of its status as a mere stakeholder. In making our decision here we are mindful that garnishment is a creature of statute and therefore must be strictly construed. Quick Shops of Miss., Inc. v. Bruce, 232 So.2d 351 (Miss.1970).

Both Leasy and Delta agree here that statutes dealing with the same subject matter, in pari materia, will be harmoniously construed. Chapman v. Berry, 73 Miss. 437, 442, 18 So. 918 (1895) stated:

The chapter on garnishment and the independent chapter on exemptions must be so construed as to give harmonious effect to both.

Another point argued by Leasy is that Delta estopped itself from not withholding wages from Zollicoffer’s salary under § 85-3-l(10)(a) by indicating in its answer that it would continue to withhold at applicable rates. What Delta stated in its answer and which is at issue here is:

In addition, there may be an additional amount subject to this garnishment which is not now due or owing to the defendant. When and if due said amount will be paid into court.

The important words in the answer of the garnishee are: “subject to this garnishment.” Under Delta’s view, no funds which were due to the defendant-employee (Zolli-coffer) after the return day were funds which were “subject to this garnishment.” Leasy’s argument on this point is lacking in logic.

Applying these rules of construction, the only way to harmonize the exemption statute as amended in 1966 and the garnishment statutes, Mississippi Code Annotated § 11-35-1, et seq. (1972), is to rule that the 1966 amendment of the exemption statute means only that the garnishment writ requires the garnishee (Delta) to withhold funds from the employee’s wages up until the return day of the writ or until the full amount of the judgment has been collected, whichever occurs first. Analysis of these statutes causes us to conclude that § 85-3-l(10)(a) was intended by the legislators to allow a 75% exemption (rather than the previous $100 per month) from garnishment of a laborer’s wages. In enacting the amendment of § 85-3-l(10)(a), the legislature used absolutely no language indicating any intent to change the garnishment procedure. Had they intended to change such procedure, it would have been a simple thing for them to have done so by appropriate language or to have stated that such was their purpose. In our opinion, in order to read the statutes relating to exemption and the statutes relating to garnishment and logically to give them meaning, we must reach the conclusion that the legislators did not intend to change the garnishment procedure as it had previously existed. Therefore affirmance is required.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.

PATTERSON, C. J., takes no part.

      . New statutory provisions on debtor-creditor relationship are set forth in Mississippi Code Annotated § 85 3 A (Supp.1980) and by amendment to § 85 3 1 (Supp.1980), which became effective on July 1, 1980. The new procedures are not germane to this opinion because the facts of this case transpired prior to July 1, 1980.


text:
    Charles JONES v. BENTON COUNTY BOARD OF EDUCATION.
    No. 51787.
    Supreme Court of Mississippi.
    Nov. 12, 1980.
    Lem Adams, III, Johnston, Adams & Younger, Brandon, for appellant.
    John B. Farese, Farese, Farese & Farese, Ashland, for appellee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Charles Jones has appealed from the decree of the Chancery Court of Benton County filed December 12, 1978, finding and adjudging that Jones was entitled to $8,037 damages because the Benton County Board of Education did not give him notice in writing of its intention not to renew his contract of employment as co-principal of the Old Salem School for the school .year July 1, 1975 to June 30, 1976.

The stipulation of facts (signed by the attorney for Charles Jones and by the attorney for Benton County School Board on December 11, 1978) was included in the abstract of the record, prepared by the attorney for Jones, and filed in this Court. According to the stipulation, Jones and the School Board agreed:

“That during the school term of 1975 and 1976 had Mr. Jones been employed, his contract salary together with all supplements would have been $14,050.00.
“That during the school year 1975-76, Mr. Jones was employed by the DeSoto County School System and during that period of time he earned a total of $7425.00.
“That the difference between what Mr. Jones would have been paid by the Benton County Board of Education for the school year 1975-76 and what he earned in DeSoto County amounted to $6625.00, plus agreed interest to date of $1,412.80 making total amount of $8,037.00.”

The decree of December 12, 1978, provides:

“The Court finds that a computation has been made of the difference between what Mr. Jones would have been paid by the Benton County Board of Education and what he earned in DeSoto County plus interest at the rate of eight per cent (8%) and that said amount totalled $8037.00 which the Court finds is the just compensation due Mr. Jones as entitled to under the renewal of the contract ordered by the Supreme Court.
“NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Complainant, Charles H. Jones be, and he is hereby awarded a judgment in the amount of $8037.00 with interest at the rate of 8% from the date of this Decree until paid. The Board of Education of Benton County, Mississippi, upon payment of said sum is hereby relieved of any further responsibility relative to the employment of Mr. Jones.”
Appellant has assigned as error:
1. The decision of the Chancery Court of Benton County, Mississippi, should be reversed because the Chancellor wrongfully considered earnings of Appellant in reduction or mitigation of damages and wrongfully limited the damages to the school year 1975-76.

This case first appeared before us as cause No. 49,979, styled “Charles Jones v. Benton County Board of Education ”. In an unpublished opinion deciding this case, this Court said:

“We have held in two cases that, (1) the notice required by the Public School Fair Dismissal Act is mandatory and (2) failure to give notice to a teacher by the date specified in the Act that he would not be rehired automatically renews his contract for the ensuing year at the compensation specified therein. McDonald v. East Jasper County School District, 351 So.2d 531 (Miss.1977); Jackson v. Board of Education of Oktibbeha County, 349 So.2d 550 (Miss.1977).
“Jones was not given the written notice required by the Act; therefore, his contract was automatically renewed for the ensuing year.”

The chancellor was correct in holding that Jones’ contract was automatically renewed for the ensuing year (1975-1976) only, in accordance with our holding in Jackson v. Board of Education of Oktibbeha County, 349 So.2d 550 (Miss.1977).

Jones next contends that “the Chancellor wrongfully considered earnings of appellant in reduction or mitigation of damages” because “mitigation of damages is an affirmative defense that must be alleged.”

In Grayson v. Brooks, Neely & Co., 64 Miss. 410, 1 So. 482 (1886), an action for breach of a written contract, this Court said:

“Matters in mitigation of damages merely should be given in evidence under the general issue, for by that plea the defendant puts upon the plaintiff not only the proof of his injury, but its extent. Hopple v. Higbee, 3 Zabriskie 343.” 64 Miss, at 417, 1 So. at 483. (Emphasis added).

This exact language was repeated and approved in Yazoo and Mississippi Valley Railroad Company v. Sultan, 106 Miss. 373, 386, 63 So. 672, 674 (1913).

In Pelican Trucking Co. v. Rossetti, 251 Miss. 37, 43, 167 So.2d 924, 927 (1964), a suit for damages to Rossetti’s automobile, this Court said: “One suing for damages is required to minimize his loss.” See also Bridges v. Land, 252 So.2d 209, 211 (Miss.1971) for a similar ruling in a breach of contract suit.

In view of the stipulation of facts signed and agreed to by both parties, on which stipulation the chancellor based his opinion and decree, we think that the chancellor was eminently correct in finding and adjudging that Jones suffered damages in the amount of $8,037, with interest at the rate of 8% per annum from December 12, 1978. The judgment of the lower court is, therefore, affirmed.

This ease was considered by a conference of the judges en banc.

AFFIRMED.

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


text:
    Toy Calvin PHILLIPS and Anita C. Phillips v. William E. JENKINS, Jessie Cox and Sharon Cox.
    No. 52294.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    A. L. Sage, III, University, for appellants.
    Dwight N. Ball, Oxford, for appellees.
   Appeal from Chancery Court, Lafayette County; William H. Anderson, Chancellor.

Before SMITH, P. J., and SUGG and LEE, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM and BOWLING, JJ.


text:
    The BANK OF THE DELTA et al. v. PEOPLES BANK OF INDIANOLA and Planters Bank & Trust Company.
    No. 52268.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    P. J. Townsend, Jr., Townsend, McWil-liams & Holladay, Drew, John H. Fox, III, Fox, Gowan & Biggers, Jackson, for appellants.
    Frank 0. Crosthwait, Jr., Crosthwait, Terney, Noble & Eastland, Indianola, Robert L. Crook, Ruleville, for appellees.
   Appeal from Chancery Court, Sunflower County; Nat W. Bullard, Chancellor.

Before SMITH, P. J., and SUGG and LEE, JJ.

REVERSED AND ORDER OF THE STATE BANKING BOARD REINSTATED.

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


text:
    Chester Lee ALLEN v. STATE of Mississippi.
    No. 52350.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    Hugh L. Bailey, Sr., Bailey & Bailey, Winona, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

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

Affirmed.


text:
    Winfred E. AUSTIN et al. v. MISSISSIPPI POWER & LIGHT COMPANY.
    No. 52253.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    W. Dean Belk, Clark, Davis & Belk, Indi-anola, for appellants.
    J. Leray McNamara and Charles T. Ozier, Wise, Carter, Child & Caraway, Jackson, Frank 0. Crosthwait, Jr., Crosthwait, Ter-ney, Noble & Eastland, Indianola, for appel-lee.
   Appeal from Circuit Court, Sunflower County; B. B. Wilkes, Judge.

Before SMITH, P. J., and SUGG and LEE, JJ.

AFFIRMED.

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


author: WALKER, Justice, for the Court:

text:
    Jack GRAY v. STATE of Mississippi.
    No. 52196.
    Supreme Court of Mississippi.
    Nov. 12, 1980.

      Harry L. Kelley, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   WALKER, Justice, for the Court:

Jack Gray was convicted in the Circuit Court of the First Judicial District of Hinds County of aggravated assault, and received a sentence of ten years in the penitentiary, five years suspended on supervised probation.

Taking as true the testimony most favorable to the State’s case, there was sufficient evidence to support the jury’s verdict. The victim of the assault, Deb Lee Riley, Jr., testified that he was sitting at a table at a local bar, the Recovery Room, when Gray walked towards his table with a pistol in his belt. Immediately prior to this, Gray had exchanged some unpleasant words with the four men at the table. As Gray approached the table, one of the four men stood up and grabbed his T-shirt. Gray stepped back and pulled out the pistol, firing two shots in the general direction of the men at the table. The victim’s three friends immediately dove for cover, and were fortunate to escape without any injuries. Riley, however, approached Gray and asked him to give up the gun. After a short conversation Gray struck Riley on the head with the pistol, knocking Riley to the floor. Riley testified that when he looked up he saw Gray standing over him with the pistol aimed directly at his stomach, and that he heard the pistol click.

Although Gray denied that he pointed the pistol at Riley, and other witnesses testified they did not see Gray standing over Riley with the pistol, Riley’s testimony presented a question for the jury to resolve. It should be noted here also that Riley sustained no serious bodily injury, but only a small cut behind the ear which required no medical attention.

Of the errors assigned, only one merits. comment. Gray complaints about the granting of the following instruction:

The Court instructs the Jury that if you believe from the evidence in this case, beyond a reasonable doubt that the Defendant, Jack Gray, on April 5, 1979, did attempt to cause or purposely, recklessly or knowingly caused serious bodily injury to Deb Lee Riley, Jr., a human being, under circumstances manifesting extreme indifference to the value of human life, then Jack Gray is guilty of Aggravated Assault. .. .

This instruction tracks the language of the statute on aggravated assault, Mississippi Code Annotated section 97-3-7 (Supp. 1979), which reads, in part, as follows:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.. ..

In his brief the defendant makes the following argument:

Counsel has diligently research (sic) the law and can find no incident in which a Court has given an instruction that predicates the guilt of the defendant upon him committing a crime purposely [or] knowingly and at the [same] time doing it recklessly, which must mean culpable negligence.

Neither the State nor the defendant has cited any controlling authority concerning this proposition, either in their briefs or on oral argument. However, given the facts in this record, we need not answer the question raised by the appellant.

There is no evidence in this record that Gray caused any serious bodily injury to Riley, either purposely, recklessly or knowingly. The State’s case rested upon proof that Gray attempted to cause such injury under circumstances manifesting extreme indifference to the value of human life. The words “purposely, recklessly or knowingly” in the instruction and the statute can only apply in an instance where the defendant has, in fact, caused serious bodily injury to the victim. An attempt, on the other hand, implies that there was an intent to cause serious bodily injury, and requires some overt act which goes beyond the mere preparation or planning. Smith v. State, 279 So.2d 652 (Miss.1973).

Since there was no evidence on which the jury could find that Gray did cause serious bodily injury to Riley, either intentionally or recklessly, the jury’s finding that Gray committed an’aggravated assault is necessarily a finding that Gray attempted to cause serious bodily injury to Riley, and that the manner in which he did so manifested extreme indifference to the value of human life. It is clear that the inclusion in the instruction of the words “were purposely, recklessly or knowingly caused,” if error, was harmless error.

There being no prejudicial error, the conviction and sentence are affirmed.

AFFIRMED.

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