text:
    Samuel DUNCAN, Jr., Plaintiff-Appellee, v. J. C. PENNEY LIFE INSURANCE COMPANY, Defendant-Appellant.
    Nos. 14236-14238.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    En Banc. Rehearing Denied Sept. 29,1980.

      Breazeale, Sachse & Wilson by John B. Noland, Baton Rouge, Watson, Murchison, Crews, Arthur & Corkern by Ronald E. Corkern, Jr., Natchitoches, for defendant-appellant.
    Sanders & Castete, Ltd. by Herman A. Castete, Winnfield, for plaintiff-appellee.
    Before MARVIN, FRED W. JONES, Jr., and JASPER E. JONES, JJ.
   MARVIN, Judge.

Defendant’s insurance policy provides monetary benefits for each day an insured “. . . shall be necessarily confined to a hospital as a result of injury, and if such confinement commences within ninety days of the accident causing the injury . .”

Policy benefits, penalties, and attorney’s fees were awarded the plaintiffs, a husband and wife, in these consolidated cases. The insurer appeals, contending that the issue should be stated as whether the respective hospitalization was medically necessary. The insurer argues that necessary, the adjective form of the adverb necessarily, means “. . . of an inevitable nature, inescapable, logically unavoidable . absolutely needed, required . . . ” We amend to disallow penalties and attorney’s fees, and affirm.

The wife was hospitalized by the family doctor for 19 days in February for a bruise of her arm and a sprain of her shoulder sustained in a fall. The husband was hospitalized by the family physician for 20 days beginning in April for a soft tissue injury to his arm and neck sustained when he lost control of his automobile and it went into a spin.

The family doctor in Winnfield saw Mrs. Duncan 3-4 days after she fell. He testified that she complained of pain and had some decreased range of motion in her shoulder and arm. He hospitalized her, prescribing oral medication for pain and twice-a-day physical therapy. He admitted this treatment could have been administered without hospitalization but emphasized that since she had 3-4 small children at home, he could not expect her to remain inactive at home.

This doctor saw Mr. Duncan shortly after Mr. Duncan was injured. For Mr. Duncan’s complaints of pain in the neck and elbow, the doctor hospitalized him and prescribed ice packs and pain medication, followed three days afterward by hydropacks, moist heat, and physical therapy. The family doctor said he thought hospitalization was necessary because Mr. Duncan had muscle spasms in his neck and pain of some severity. The doctor admitted that he did not hospitalize all patients with cervical muscle spasms, “[i]t depends on my judgment and medical opinion at that time.” We interpret the family physician’s testimony in both instances to the effect that the length of hospitalization was determined by him on the basis of each patient’s response to therapy that was administered by a qualified physical therapist at the hospital.

Mr. Duncan received two injections for nausea and for pain on the 14th day of his hospitalization after he fell in the hospital bathtub. Otherwise he and Mrs. Duncan, in the opinion of other physicians, could have been treated at home. Neither patient was limited by the doctor as to physical activity while in the hospital and the nurses’ notes show that Mr. Duncan was up and about and generally not complaining of pain during his stay. Mr. Duncan temporarily checked out of the hospital for about two hours on his first day to obtain personal belongings and on the second day he was temporarily excused for about eight hours to drive to and from Shreveport to attend to personal business.

Five other doctors, three of whom practiced in Winnfield, testified. The Winnfield doctors generally agreed, from a review of the medical and hospital records, that they probably would not have hospitalized either patient and certainly not for more than 4-5 days, if at all. One of these doctors referred to Mrs. Duncan’s stay as “prolonged and excessive”, “not necessary.” Another was somewhat more equivocal, while the third thought Mrs. Duncan’s hospitalization was “questionable” and agreed that Mr. Duncan’s stay for some 20 days was not medically necessary.

The remaining two doctors, non-residents of Winnfield, were unequivocal in stating that it was not necessary for these patients to have been hospitalized.

The trial court preferred the testimony of the family doctor [“the best evidence”] over that of the other doctors who “. saw only the bare bones of the hospital records or testified in answer to hypo-thetpcal questions]”, and concluded that each hospitalization was “necessary” within the meaning of the policy. The insurer contends that the trial court erred in this respect, especially because these plaintiffs were shown to have daily indemnity benefits with nine other insurers which would make them eligible to receive $418 for each day they were hospitalized. The policies in question here provide Mr. Duncan with $115, and Mrs. Duncan with $75, per day. In addition to the claim here presented, the insurer shows that Mr. and Mrs. Duncan have been hospitalized for more than four months (88 days for Mr. Duncan and 38 days for Mrs. Duncan) during the period 1975 through May, 1978, and that they have claimed in some nine lawsuits against these companies during that time, over $15,000. We agree that these facts, the nebulous nature of the claimed accidents here, and the absence of objective symptoms of injury other than his muscle spasms and her bruise, strongly indicate a motive on the part of the Duncans to use their positions as insureds under the several policies to reap financial gain.

The ultimate question, however, concerns the interpretation of the language, necessarily confined to a hospital as a result of an injury, and the action of the Duncan’s family physician in hospitalizing the Dun-cans. The insurer pleaded no affirmative defense such as fraud, but merely denied the allegations of each plaintiff. The family physician is not accused of any wrongdoing and it is shown that he does not share in any of the hospital’s revenues. The insurer argues that the reason Mr. and Mrs. Duncan caused themselves to be hospitalized is indirectly important to the central issue of whether the hospitalizations were [medically] necessary. In this context the insurer persuasively argues that the overwhelming weight of the evidence shows that the hospitalizations were not medically necessary because there were no facts known to the family doctor which were not revealed in the medical and hospital records to the other doctors who testified.

The term medically necessary is used as a condition of recovery in some policies, but that term is defined in those policies. See and compare the language of the policy in Franks v. Louisiana Health Service and Indemnity, 382 So.2d 1064 (La.App.2d Cir. 1980) where that term was applied to deny coverage. Even should we agree here that the language of this policy somehow requires that the hospitalization be “medically necessary”, we do not have, as we did in Franks, a policy definition for the word. Necessary is a word susceptible of many meanings. It may mean merely that which is “useful or convenient”, or it may mean that which is absolutely compelling, “. . . of an inevitable nature, inescapable, logically unavoidable . . . absolutely needed, required . . .” Black’s Law Dictionary, 5th Edition.

This insurer chose to define the words hospital and injury in these policies, but did not choose to employ the Franks' policy language requiring the hospitalization to be medically necessary. Neither the law nor the policy permits us to stretch or to construe the language of this policy, necessarily confined to a hospital, to mean that the hospitalization must be medically necessary in the Franks’ context. If the language of this policy is ambiguous, we are not at liberty to construe this language to the detriment of the insured, but liberally in favor of the insured and strictly against the insurer. Bankston v. Mutual Ben. Health & Accident Assoc., 245 So.2d 59 (La. 1945).

We are not without some guidance, however. The term necessarily confined to has been construed in several Louisiana cases which involved disability policies. See Manuel v. American Income Life Insurance Company, 212 So.2d 169 (La. App.3d Cir. 1968). In three of these cases discussed there, Lewis v. Liberty Industrial Life Insurance Co., 185 La. 589, 170 So. 4, 107 A.L.R. 286 (1936); Powell v. Liberty Industrial Life Insurance Co., 197 La. 894, 2 So.2d 638 (1941); and Newton v. National Life Insurance Co., 161 La. 357, 108 So. 769 (1926), the language in the policy was necessarily confined to bed. Our appreciation of the holding of these cases is that this policy language, necessarily confined to . , is designed to denote the existence of the risk insured against and not to relegate literally the insured to a particular confinement.

The risk insured against here is an insured being necessarily confined to a hospital as a result of an accidental injury. The terms hospital and injury are defined in the policy. The other words remain to be construed ordinarily and in the context of the risk insured against. In the ordinary sense, necessary confinement in a hospital (as that term is defined in the policy) can only be directed by a medical doctor who is authorized by a particular hospital to admit patients. The risk exists or attaches when an insured is “necessarily confined to a hospital [as hospital is defined in the policy] as a result of injury [as injury is defined in the policy] . . within ninety days of the accident causing the injury . . . ”

In some practical instances, hospitalization may be necessary because of a life and death matter. In other practical instances, hospitalization for treatment and observation, which could be done without hospitalization, may be necessary because it is more convenient to either or both, the doctor and those who treat at his direction, and the patient. In finding ambiguous the term necessarily confined, and in construing it against the insurer and in favor of the insured as the law directs, we are not abdicating our responsibility to legally construe the insurance contract and we are not relegating resolution of a coverage dispute to the family physician.

Under the policy as written, the insurer has defenses. Any fraud on the part of the insured would defeat coverage. The occurrence of an accident is a condition of coverage. An “intentionally self-inflicted injury”, and an injury resulting from the use of a drug not prescribed by a physician, are express exclusions of the policy. Yet the insurer here asserts no affirmative defenses, but suggests that the factual evidence which might have been used with other evidence to prove one or more affirmative defenses, should be used by the court to legally construe necessarily confined to a hospital to mean medically necessary as that term is defined in the Franks’ policy. In this instance, we cannot do what the insurer has failed to do for itself. The insurance code authorizes an insurer to incorporate provisions in a policy of insurance to limit its liability. See e. g. L.R.S. 22:213(B).

We do agree, however, with the insurer’s alternative contention that attorney fees and penalties should not have been awarded the insureds under the circumstances of this case. The insurer’s refusal to pay benefits was not based on the existence of the other policies which provided similar benefits to the insured but was based on an arguable construction of the policy, which although found without merit, is not unreasonable. L.R.S. 22:657.

Judgment in each case is amended to delete the award of penalties and attorney fees, and in all other respects and at the cost of appellant, is affirmed.

AMENDED and AFFIRMED.

      . “Basic and Supplemental Benefits are NOT provided for the following types of hospital admissions or portions of admissions-
      Not medically necessary-i. e., when in the judgment of the Carrier the medical services did not require the acute hospital bedpatient (overnight) setting, but could have been provided in a physician’s office, the outpatient department of a hospital, or in a lesser facility without adversely affecting the patient’s condition or the quality of medical care rendered. Some examples are:
      Admissions primarily for observation or evaluation and/or diagnostic studies that could have been provided safely and adequately on an outpatient basis.
      Admissions to control or change the patient’s environment.

      THE FACT THAT A PHYSICIAN MAY PRESCRIBE, ORDER, RECOMMEND, OR APPROVE A SERVICE OR SUPPLY DOES NOT, OF ITSELF, MAKE IT MEDICALLY NECESSARY OR MAKE THE CHARGE AN ALLOWABLE EXPENSE, EVEN THOUGH IT IS NOT SPECIFICALLY LISTED AS AN EXCLUSION.” 382 So.2d at 1066.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Donald L. YARBOROUGH, et ux., Plaintiffs-Appellants, v. Ann Powell LEWIS, Defendants-Appellees.
    No. 14240.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Conway & Stratton by Robert W. Strat-ton, Baker, for plaintiffs-appellants.
    Fish, Montgomery & Robinson by Roy Fish, Springhill, for defendant-appellee, Ann Powell Lewis.
    Kitchens, Benton, Kitchens & Pearce by Paul Kitchens, Minden, for third party defendant-appellee, Gold Coin, Inc.
    Bradley & Wall, Ltd. by William C. Bradley, Baker, for third party defendant-appel-lee, Norman E. Heine.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this redhibition action, the purchasers of a home appeal a judgment rejecting their demands against the seller for a reduction in price because of defective central heating and air conditioning.

This defect would be usually categorized as a latent one, which would give rise to redhibition, and the sale of this residence “as is” would not relieve the vendor of his implied warranty of fitness or of his express warranty made in an agreement to purchase “that all heating/air conditioning . included in the sale are to be in working order at the time of the sale.” CC 2476, 2520, 2521, 2541. See Bermes v. Facell, 328 So.2d 722 (La.App. 1st Cir. 1976); Daly v. Abramson, 117 So.2d 772 (La.App. 2d Cir. 1959); Meyer v. Mack Motor Trucks, Inc., 141 So.2d 427 (La.App. 4th Cir. 1962), writs denied.

Here, however, the central unit in the home was irreparably defective and the home had been heated and cooled by two window units (heat pumps) for more than six years before these purchasers bought the home in 1978. When this seller bought the home in 1972 and when she sold the home in 1978, the window units were operable and the central unit was not. When the seller listed the home for sale, she told a realtor, who was not the selling agent, of this circumstance. The seller’s attorney-in-fact, who signed the deed, testified that he told these purchasers of this circumstance when the sale occurred.

After the purchasers moved furniture into the home and three of four days before the actual purchase, they discovered that the wall thermostat would not turn on the central unit. They visually examined the central unit and attempted to start it by installing new fuses. Other testimony established that the central unit then was obviously dilapidated and inoperable (dusty, rusty, wires disconnected, panels removed, and return air vent disconnected). The trial court resolved credibility issues against the purchaser.

The purchasers do not complain that the window units are defective. The purchasers knew the central unit was inoperable before the sale even though they may not have known that it was irreparable.

Under these circumstances, the implied warranty of fitness of the home for residential purposes and the express warranty have not been breached. The home is not affected by a redhibitory vice. We find no clear error, and at appellants’ cost,

AFFIRM.


author: PRICE, Judge.

text:
    Joe Will PERKINS, Plaintiff-Appellee, v. Shirley Faye PERKINS, Defendant-Appellant.
    No. 14244.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Rankin, Yeldell, Herring & Katz, by Stephen J. Katz, Bastrop, for defendant-appellant.
    Woodrow Wilson, Bastrop, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Shirley Perkins filed a rule against her former husband, Joe Perkins, to increase the amount of child support he was paying from $200 per month to $750 per month. The trial court rendered judgment increasing the child support award to $300 per month until such time the minor child, Regina Perkins, turned eighteen years old. At that time the award would be reduced to $175 per month for the benefit of the remaining minor child.

Plaintiff in rule has appealed the judgment contending the trial court erred in increasing the support award by only $100 per month and further erred by reducing it to $175 per month at a future date. We affirm the judgment as rendered.

The parties were divorced by judgment dated September 30, 1976. This judgment awarded to the wife custody of two of the parties’ three minor children, Regina and Jo Ellen Perkins, and awarded to the husband the custody of the parties’ minor son. The judgment further provided that Mr. Perkins pay $200 per month to the wife as child support together with all medical and dental expenses.

The record shows that subsequent to that judgment both parties remarried and their financial situations substantially improved.

Appellant first assigns as error the increase of only $100 in the support award. She complains the cost of supporting her two daughters has greatly increased since the original award was made and she further complains that since appellee’s annual income has increased from $17,000 in 1976 to $25,000 in 1979 he is now in a position to contribute substantially more for support of the children.

Although her expenses for the children have risen since the 1976 judgment, the record shows that appellant’s present husband earns a substantial salary and when combined with appellant’s earnings, their household has an annual income of $45,000 and likewise she is in a better position to support the children. Furthermore, the judgment ordering appellee to pay child support is in addition to him paying all medical and dental bills. The evidence shows he pays $45 a month just for Jo Ellen’s orthodontist expenses.

. The law is settled that a trial judge is vested with much discretion in fixing the amount of an alimony award. Such an award will not be disturbed by a reviewing court absent a clear showing of an abuse of said discretion. Holloway v. Holloway, 296 So.2d 435 (La.App. 1st Cir. 1974); Guilbeau v. Latour, 270 So.2d 328 (La.App. 3rd Cir. 1972). .

Brown v. Brown, 348 So.2d 699 (La.App. 1st Cir. 1977).

Given the broad discretion afforded the trial court in awarding child support and in consideration of the parties financial situations we cannot say the trial judge abused its discretion in raising the award by only $100 a month.

Appellant’s second complaint pertains to the trial judge reducing the $300 award to $175 per month effective once Regina Perkins reached the age of majority. Appellant argues that because a reduction based on Regina’s majority was not pleaded in reconvention to her rule, the trial court erred in including such a reduction in the judgment. Appellant does not deny that the general obligation of a parent to support his child under statutes governing parental support and education of children is terminated when the child reaches the age of majority. (See C.C. Art. 227.) However, she contends in order for a parent to modify or terminate a judgment awarding child support he must first file a suit. Appellant cites the case Halcomb v. Halcomb, 352 So.2d 1013 (La.1977) as authority. Although we agree with the reasoning of Hal-comb, we find it inapplicable to the instant case. In the Halcomb case the father proportionately reduced the in globo award in favor of children as they attained majority without his right to do so ever being decreed in a judgment. In the present case appellant’s rule asked to show cause why the child support award should not be increased in favor of the two children in her custody. Testimony of both parties at the hearing revealed that Regina Perkins, then a minor and a college student, would become eighteen years old in just twenty-four days. On this basis the trial court phrased the judgment so as to reduce the award once this occurred.

A rule to show cause is a summary proceeding, C.C.P. 2592(3), which obliges one only to show, and not to plead cause: “An answer is not required, except as otherwise provided by law,” C.C.P. 2593. It is in an “answer” that affirmative defenses are required to be pleaded, C.C.P. 1005. Cookmeyer v. Cookmeyer, 354 So.2d 686 (La. App. 4th Cir. 1978).

We find the fact Regina was on the threshold of becoming eighteen years old was pertinent to the rule and that the trial judge was not manifestly erroneous in considering this evidence in his determination of the award.

For the above reasons we affirm the judgment appealed at appellant’s cost.

      . Appellee testified that he wanted to help his daughter directly with her college expenses, but did not want to be forced to do so through his ex-wife.


text:
    OUACHITA EQUIPMENT RENTAL COMPANY, INC., Plaintiff-Appellant, v. BAKER BRUSH COMPANY, INC., Defendant-Appellee.
    No. 14250.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Pipes & Pipes, by William F. Pipes, Jr., Monroe, for plaintiff-appellant.
    James M. Dozier, Jr., Farmerville, for defendant — appellee.
    Before PRICE, HALL, and MARVIN, JJ.
   PRICE, Judge.

Plaintiff filed suit for damages under a lease contract with defendant. The trial court rendered judgment in favor of plaintiff and both parties appeal. We affirm.

On April 22, 1977, plaintiff, Ouachita Equipment Rental Company, Inc., by written contract, leased to defendant, Baker Brush Company, Inc., a 1977 Royal Bond Copier machine for a term of five years at a monthly rental of $170.40. The contract provided that in case of default by defendant, plaintiff would have the option to exercise several remedies, which included the right to terminate the lease; take possession of the leased equipment; sell it at a public or private sale; and recover from defendant the cost of taking possession, storing, repairing, and reselling the equipment and the unpaid rent for the entire term plus an additional 10%, less the net proceeds of the sale. The contract also provided plaintiff the right to recover reasonable attorney fees and 15% interest on all sums payable from the date they become due.

Defendant stopped making the monthly rental payments in April 1978. After failing to receive the payments due for the months of April to August, plaintiff notified defendant by certified mail that the lease was terminated and demanded return of the copier. Defendant refused to return the machine and plaintiff proceeded by rule to obtain a court order directing defendant to relinquish it. Subsequently plaintiff was allowed to take possession of the copier and sold it at private sale for $1,200. It then filed suit to recover damages under the default provisions mentioned above totaling $10,170.75.

Defendant filed an exception of no right or cause of action alleging: (1) that by terminating the lease and repossessing the copier, plaintiff forfeited the right to sue for future rentals; (2) that since the private sale was made without benefit of appraisal, plaintiff was barred from recovering additional damages under the Deficiency Judgment Act; and (3) that plaintiff should be estopped from recovery because it failed to minimize its damages by leasing the copier to another party. Decision on this exception was deferred by the court until after trial on the merits of the case.

After trial, the court held defendant was in default under the terms of the lease and that under La.R.S. 9:3261-3271 governing the lease of movables, plaintiff was entitled to cancel the lease and in addition seek judicial enforcement of its rights thereunder, including its right to sell the equipment at private sale and to claim liquidated damages under the default provisions. Consequently, defendant’s exception was overruled.

The court also held that while plaintiff may cancel the lease and in addition seek liquidated damages, the court, under R.S. 9:3267, may only award such damages to the extent it finds them to be reasonable. Finding that full recovery under the default provisions of the lease would be unreasonable, the court calculated plaintiff’s damages on the following basis:

$7,344.75 135.00 $7,479.75 Less $2,044.80 1,200.00 3,244.80 $4,234.95 purchase price of copier cost of repossession and reconditioning total investment by plaintiff 12 months rent paid by defendant received by plaintiff from sale of copier total credit net loss to plaintiff Judgment was rendered in plaintiff’s favor for the amount of this net loss plus 15% interest from judicial demand and 25% of the total as attorney fees.

Upon plaintiff’s motion, the court granted a new trial limited solely to the issue of damages, after which the judgment was amended to award an additional $500. Plaintiff appeals contending the trial court’s award is inadequate.

Defendant answers the appeal seeking reversal primarily on the grounds set forth in its exception of no cause or right of action. It also contends plaintiff failed to prove the damages awarded.

La.R.S. 9:3261 allows a lessor, upon default by the lessee, the option of suing to enforce its rights under the contract, including any provision for acceleration of future rentals, or canceling the lease and exercise the rights provided in the succeeding statutes. Among those rights are the right to demand surrender of the leased property (R.S. 9:3263); the right to enforce the terms of the contract regarding cancellation (R.S. 9:3266); and the right to recover liquidated damages if provided for in the lease, to the extent the court finds them reasonable (R.S. 9:3267).

Plaintiff chose to cancel the lease, take possession of the property, and exercise one of the rights provided it by the contract in the event of default and cancellation, i.e. to sell the property at private sale. It then sued to recover the liquidated damages stipulated in the lease. The trial court found the damages stipulated to be unreasonable and awarded damages based on its own calculations. We find this to be a proper application of the governing statutes and a valid exercise of the discretion afforded the court in awarding damages thereunder.

Defendant contends the Deficiency Judgment Act (R.S. 13:4106-7) should be applicable by analogy to bar plaintiff’s recovery as contrary to public policy. It contends that allowing recovery of liquidated damages over and above the net proceeds of a private sale without appraisement will allow lessors the same unfair advantage denied other creditors by the act, namely, the ability to purchase the property involved at a nominal price and still obtain a judgment against the lessee for the balance. It also asserts that this result will encourage creditors to disguise other transactions in the form of a lease of movables in order to frustrate the purpose of the act.

In Executive Car Leasing Company of New Orleans v. Alodex Corporation, 279 So.2d 169 (La.1973), the court held the Deficiency Judgment Act is not applicable to bar additional recovery following a non-judicial sale of property under the cancellation and stipulated damage provisions of the lease. Furthermore, the discretion afforded the trial court to make its own determination of damages when it finds those stipulated in the lease to be unreasonable provides ample protection from the abuses envisioned by defendant.

Regarding defendant’s claim that plaintiff failed to prove the damages awarded, we note that where the parties to a contract stipulate the measure of damages in case of default, our courts generally do not inquire whether the actual damage suffered equals or approximates the agreed amount. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970); Amacker v. Wedding, 363 So.2d 223 (La.App. 4th Cir. 1978). While R.S. 9:3267 apparently authorizes the court to make such an inquiry in determining the reasonableness of the amount claimed, it did not change the law to require proof of actual damage as prerequisite to recovery.

We further find that plaintiff has not shown that the trial court awarded an inadequate amount for reasonable damages. Plaintiff was allowed $500 over and above its net cost for a total of $4,734.95 and 25% of this amount for attorney fees. Although the sum allowed for overhead and profit is minimal, we cannot say the trial court’s determination was manifestly erroneous.

For the foregoing reasons the judgment is affirmed. Costs of this appeal are assessed equally to plaintiff and defendant.

      . In the event of default by the lessee, the lessor of movable property has the option to enforce judicially all of his rights under the lease contract, including, if the lease so provides, his right to accelerate all rentals that will become due in the future for the full base term of the lease, or to cancel the lease and to exercise the rights granted him under this chapter.

      . We note that the copy machine was originally purchased by plaintiff for $7,344.75 and was sold a little more than a year later at the private sale for only $1,200. Although this fact was not specifically mentioned by the trial court in its reasons for judgment, it was most likely an important factor in the determination that the amount sought by plaintiff was unreasonable.


author: BOUTALL, Judge.

text:
    Floyd A. SINCLAIR and Thomas J. Ward v. Earl BANFIELD d/b/a Globe International, a/k/a Westbank Distributors.
    No. 11548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 1980.
    Daniel R. Martiny, Lee, Martiny & Carac-ci, Metairie, for plaintiffs-appellees.
    Michael Silvers, New Orleans, for defendants — appellants.
    Before BOUTALL, BARRY and SAR-TAIN, (Assigned), JJ.
   ON MOTION TO DISMISS

BOUTALL, Judge.

Appellees have moved to dismiss this sus-pensive appeal from a judgment of preliminary injunction on the grounds of mootness.

Appellees brought suit against appellant alleging alteration of a lease and illegal use of the property, seeking, among other things, a preliminary injunction and a permanent injunction enjoining the defendants from use of the leased property. After hearing, a preliminary injunction issued enjoining defendants from use of the leased property and the defendants were granted a suspensive appeal, which is the matter now before us. In due course the case progressed to trial on the merits and a judgment on the merits was rendered on June 3, 1980, issuing a permanent injunction enjoining the defendants from any and all business operations for any purpose whatsoever at the leased premises.

Appellees contend that the rendition of the judgment of injunction on the merits of the case has caused the appeal from the judgment of preliminary injunction to become moot. The appellant has made no response to the motion and there is no indication in the record that a suspensive appeal has been taken from the final injunction judgment of June 3rd.

The writ of preliminary injunction was designed to preserve rights pending a trial of issues of the case on the merits, either by preserving the existing status or by preventing a party from engaging in activity which may cause irreparable injury. After the parties’ rights have been adjudicated on the merits, ordinarily there is no further necessity for the existence of the preliminary injunction, since the rights of the parties will be governed by the judgment on the merits. In this case the injunction rendered on the merits is basically the same as the preliminary injunction issued on the rule to show cause. No suspensive appeal has been taken and the judgment is now executory. We must therefore recognize that whatever our decision may be on this appeal of the preliminary injunction, it can have no effect because the parties’ rights are now controlled by the permanent injunction. We further point out that there is no showing before us that there is any motion to dissolve the preliminary injunction or other pleading which may call for imposition of damages or attorneys’ fees. Code of Civil Procedure Articles 3607 and 3608.

For these reasons we are of the opinion that the issues which may be raised on this appeal are moot, and accordingly we dismiss the appeal.

APPEAL DISMISSED.


author: REDMANN, Judge.

text:
    CAROUSEL MOTOR HOTEL, INC. d/b/a San Antonio Inn v. Ray PEACOCK.
    No. 11202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 1980.
    William E. Wright, Jr., Baldwin & Has-pel, New Orleans, for plaintiff.
    Benjamin B. Saunders, Davis, Saunders, Miller & Rizzo, Metairie, for defendant.

      Before REDMANN, SCHOTT and SAR-TAIN, JJ.
   REDMANN, Judge.

Plaintiff, the operator of a motel called San Antonio Inn on the Airline highway in Jefferson Parish, appeals from a judgment refusing injunction against defendant’s using a sign on his motel. Plaintiff argues that the shape of the sign is its own service mark. We hold that the use of this sign’s commonplace shape could not “cause confusion or mistake or . deceive as to the . . . origin of [defendant’s] services,” La.R.S. 51:222(1). We therefore affirm.

Until plaintiff evicted him, a lessee operated another motel called San Antonio Inn on defendant’s property. The lessee left behind a San Antonio Inn sign, fixed high above the building on two steel columns, above a Denny’s Restaurant sign (of a more distinctive, yet commonplace, shape). Defendant then began to operate a motel he called Peacock Inn in his building. He painted black the “San Antonio” part of the sign high above the motel, and placed “Peacock Inn” signs twice as large atop the carriage porch at the motel entrance. By the time of the trial of the permanent injunction, defendant had had the old San Antonio sign’s lettering changed to read Peacock Inn. Plaintiff still sought injunction on the ground that the shape of the sign is its registered service mark.

The shape looks like a long rectangle modified, first, by removing from its four corners small squares or rectangles and, second, by very slight curves at top and bottom such that the top looks like a flat, open book in a side-to-side cross-section. The bottom is a mirror image of the top. From a distance one can see that the shape is not a rectangle but an altered one. Nevertheless, in our opinion it is not even readily identifiable or distinguishable f.-om other signs whose makers seek to avoid the triteness of rectangularity.

We deem it highly unlikely that anyone would be confused, mistaken or deceived into believing that it is plaintiff who is the source or origin of the services that defendant offers: and that is the test of R.S. 51:222(1).

Affirmed.


text:
    Peter V. CUCCIA v. PANELING WAREHOUSE SALES, INC.
    No. 11273.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 1980.

      Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, for plaintiff.
    William G. Tabb, III, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendant.
    Before REDMANN, SCHOTT and SAR-TAIN, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment for $2,158 special and $22,500 general damages from a broken leg plaintiff suffered when 20 sheets of 4' X 8' wall paneling fell over on him.

We conclude that the evidence does not support a finding that defendant was negligent. We therefore reverse.

Defendant’s deliveryman had delivered the paneling to plaintiff’s home, standing it on its 8' side against the exposed wall studs in a 12' X 15' utility room that was being remodeled. (Plaintiff would not allow it to be laid flat on the floor because that would have presented a danger to his 77-year-old wife, and the deliveryman would not stand it on its 4' end, as plaintiff wanted, because that would have caused the paneling to bow.)

Over 24 hours after the delivery, during a night rain, plaintiff went into the utility room to cover the paneling with a plastic tablecloth to protect it from rain that might enter through some 15- to 18 — inch opening. Plaintiff says he merely threw the plastic covering on top of the paneling, without touching the paneling, and the paneling fell over on him.

Plaintiff testified that the paneling was placed “I guess about 15, 10 degrees, 15, 20 degrees [off vertical] up against that stud, pretty straight up there.” Defendant’s deliveryman, who insisted he knew from experience how to stack paneling, testified it was about 45° (sic). Plaintiff physically indicated the angle, and defense counsel estimated the indicated angle at 15 or 20°; plaintiff counsel remarked “If counsel wants to measure that angle or — ” when the trial judge interrupted “Fifteen degrees would be about laying down.” Whatever the number of degrees, all of the evidence is that there was some angle, and there is no evidence that the paneling was left standing perpendicular to the floor or even nearly so. The trial judge’s reasons for judgment err in finding “a slight, if any, angle to the wall.” (Our emphasis.)

If the 4' edge of the paneling formed a 10 to 20° angle with the wall studs, the bottom of the paneling would have been 8.3 to 16.4 inches away from the wall at the floor. For the paneling to fall over from the top (not slide out from the bottom), it would have to be pulled out from the wall at the top (as one might do to secure a plastic tablecloth between paneling and studs, to prevent its sliding off the top of the paneling), or pushed in at the bottom (as one might accidentally do by pressing one’s foot against the bottom). If the angle were 10° or more, the top would have to be pulled out 8.3 inches to make the paneling perpendicular to the floor, plus a further fraction of an inch to make it fall over. If the angle were less than 10°, the distance would be shorter: but only if the angle were nearly zero could the fall be explained by, say, vibrations from a passing truck rather than direct human intervention.

Because there was an angle between paneling and wall, of size significant enough to be estimated at 10 to 20° by plaintiff (although we recognize that one cannot be held to mathematical precision), the only rational explanation for the paneling’s falling over (again we note: not sliding out) is that plaintiff himself either pulled it out at the top or pushed it in at the bottom. Plaintiff’s testimony that he did not touch the paneling may mean only that he was unaware of doing so; but he may have pulled on it by the plastic cloth’s catching a top corner, or he may have pushed on its bottom with his feet while attempting to tuck the plastic behind the paneling in the spaces between studs (as he says he did, rather than touch the paneling). There is, in any case, one thing that cannot have happened: the paneling did not lift itself up into a perpendicular position from which it then fell upon plaintiff.

The fact that the paneling did not fall over during the long period of time from delivery until plaintiff’s accident also militates strongly against any supposition that the paneling was left teetering at some angle so tiny as to be insignificant, giving further support to the conclusion that plaintiff himself somehow, even if unknowingly, caused the paneling to fall over.

opposite the top angle) divided by the 4' paneling side of the triangle (the hypotenuse). Thus 4' times the sine would give the floor side of the triangle (in feet). If the top angle is 10°, the sine is .1736, times 4 is .6944 feet or 8.3 inches. If the angle is 20°, the sine is .3420, times 4 is 1.368 feet or 16.4 inches.

The argument (referred to by the trial judge) that the deliveryman should have used chocks where the paneling stood on the floor is not supportive of the trial judge’s conclusion on our undisputed facts. Chocks would prevent the paneling from sliding out at the bottom, but not from being pulled over at the top. Failure to place chocks was thus not a cause-in-fact of plaintiff’s accident.

Nor does the fact that the deliveryman refused to stand the panels on end make defendant liable. The deliveryman cannot be said to be obliged to so stand the panels as to damage them; indeed, had he done so plaintiff might be suing for the price of new, unbowed paneling, arguing that the deliveryman should have known better. Not standing the panels on end could be called a cause-in-fact, but the deliveryman had no duty to stand them on end.

The critical question is whether the deliveryman had an obligation to plaintiff not to place the paneling as he did, namely on its side at an angle such that the paneling could be pulled over on someone trying to protect it from rain by covering it with a plastic tablecloth.

We first observe that there is no expert testimony on what angle is appropriate for a placement of paneling. There are two obvious extremes. On the one hand, a placement perpendicular to the floor poses an obvious danger of falling over upon someone, and a deliveryman therefore has an obligation not to so place the paneling. On the other hand, placement at too large an angle with the wall poses an obvious danger of sliding out at the bottom, and a deliveryman has an obligation to avoid creating that danger. In addition to the obligation not to leave paneling so precariously standing that it might fall over by itself from the normal vibrations from passing traffic or the like, a deliveryman could be said to have the obligation not to lean paneling against a wall at an angle so nearly perpendicular that even a casual touch might cause it to fall over. But the record does not support a factual conclusion that this paneling was stood nearly perpendicular. The deliveryman had no obligation not to place the paneling as he did here, at an angle in the range of 10° or so, and his placing it as he did breached no duty towards plaintiff.

Reversed at plaintiff’s cost.

      . In the right triangle formed by wall, floor and side edge of paneling, the sine of the angle at the top (between wall and paneling) would equal the floor side of the triangle (the side


text:
    Clarence Harvey GOBIN, Jr. v. Gottlieb KOGEL et al.
    No. 11908.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 16, 1980.
    Tony B. Jobe, Jobe & Gurley, New Orleans, for relator.
    Ronald L. Ronzello, Metairie, for respondent.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

We earlier remanded this case, on an appeal after judge trial on the merits, “for evidence upon lost earnings and for reconsideration of the award for ‘permanent partial disability’ in the light of that evidence.” La.App. 4 Cir., 1979, 375 So.2d 755, 756 (emphasis added).

That remand was, as the trial judge correctly ruled, for the restricted purpose of admitting evidence on one element of damages; it did not require or authorize plaintiff to retry his whole case on his “permanent partial disability.” Only the amount of the award for that disability, and insofar only as the disability caused a loss of earnings, remained at issue.

Plaintiff, however, filed a “supplemental and amended petition” to specify lost wages as a separate item of damages and to increase thereby his allegation of the total amount of damages. Plaintiff also asked for a jury trial. The trial judge signed an ex parte order authorizing the filing of this petition, and another trial judge signed an order for jury trial. Later, the trial judge granted a motion to “strike” the petition and request for jury trial.

Applying for writs, plaintiff argues that defendants’ motion to strike plaintiff’s post-appeal pleadings should not be considered, because the motion was filed after C.C.P. 964’s 15-day period for a motion to strike. We reject this argument. The purpose of a motion to strike under art. 964 is to purge pleadings of “redundant, immaterial, impertinent, or scandalous matter.” The present motion is not one to clean up authorized pleadings; its purpose is to reject these “pre-trial” pleadings in their entirety because the case has already been tried. (Indeed, if plaintiff had made a proffer under C.C.P. 1636 of the excluded evidence at the trial, we would have evaluated it and rendered a final judgment when we decided the appeal a year ago.) Thus art. 964 is not applicable to defendants’ motion in this case.

Plaintiff’s amendment, basically of quantum, does not warrant discussion of the broader question of whether damages discovered after a restricted remand can be sought by supplemental petition. We rule only that the trial judge was correct in rejecting a petition increasing alleged quantum for an element of damages we held already sufficiently pleaded in the earlier petitions.

Writs are therefore refused.

WRIT REFUSED.


author: BOWLING, Justice, for the Court:

text:
    MISSISSIPPI STATE BOARD OF EDUCATION and the Accreditation Commission of the State Board of Education v. John C. NOBLE, Superintendent of Education for the Claiborne County School District, et al.
    No. 51927.
    Supreme Court of Mississippi.
    July 23, 1980.
    Rehearing Denied Sept. 24, 1980.
    Bill Allain, Atty. Gen., by Stephen J. Kirchmayr, Jr., Sp. Asst. Atty. Gen., Jackson, for appellants.
    Brown, Alexander & Sanders, Everett T. Sanders, Jackson, for appellees.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   BOWLING, Justice, for the Court:

This appeal from the Chancery Court of Claiborne County involves an initial controversy within the county school board which developed into a controversy between a majority of the board and the appellant, Mississippi State Board of Education.

Appellee, Claiborne County School Board, through its members, filed a bill of complaint for injunction against the State Board of Education and its agency, the Accreditation Commission, asking that the chancellor mandatorily enjoin the defendants [appellants here] from placing the county school board on accreditation probation. The lower court found that the petition for injunction should be granted and issued its decree ordering that defendants “shall restore unto the Claiborne County School District, Claiborne County, Mississippi, the status of accreditation without qualification or without probation.”

It appears that the controversy began when one Bennie Knox, then chairman of the county board and still a member, complained to the state board that he had been intimidated by other persons regarding his vote at the board meetings. A hearing before the state board and the Accreditation Commission resulted in the placing of the Claiborne County Board on probation only so far as accreditation was concerned.

Appellant state board advances several assignments of error. There is need only to consider one as it disposes of the appeal. Appellants contend that the filing of the suit was void for the reason that the board did not follow the mandates of Mississippi Code Annotated section 37-5-27 (1972) regarding the authority of the board to act at a special meeting thereof. At the time of the trial in the lower court and at the time of the filing of the suit, the chairman of the county board had changed from Bennie Knox to Jimmy Smith.

The situation regarding the instigation of the cause is undisputed. Chairman Jimmy Smith testified that the matter of filing the suit and employing attorneys was taken on January 11, 1979, at a special meeting of the county board. The testimony of Chairman Smith on this point was as follows:

Q. I hand you this document and ask if you can identify it, please?
A. It’s an agenda, the agenda that was used for the January 2, 1979 meeting.
Q. Do you know if all the items that were on that agenda were covered at that particular meeting?
A. To some degree. They were either discussed or they were put in forms of a motion and if in some instances we take items that we don’t fully cover, that we take additional time with, then we carry them over to the next meeting or a special meeting.
Q. I ask you to examine that document and do you see an item listed “Accreditation”?
A. Yes.
Q. Do you recall whether or not that item was covered at that particular meeting?
A. It was discussed, to my knowledge, and it was carried over from the 2nd to the — I think it was the January 4th or January 11th meeting, I’m not sure.
Q. Okay. Would that have been a special meeting?
A. It would have been.
Q. I hand you the minutes and ask you to review the minutes of January 11, 1979, and ask you if that refreshes your recollection as to the specificity of the time that the accreditation was discussed?
A. I think it does.
Q. All right. Do you recall the nature of the discussion regarding the accreditation at that particular meeting? And what accreditation are we talking about?
A. Okay. Our concern was to clear up the accreditation as brought forth by the State Accreditation Commission based on the fact that if we cleared the State Accrediting Commission’s allegation up that the Southern Association’s Accreditation would automatically be moot based on the fact that it was brought about because of the allegation and the probationary status by the State of Mississippi.
Q. At that time was a motion made to empower the attorney that was representing the Board of Education to take the necessary steps to clear this matter up, including litigation?
A. Yes.
Q. Who made that motion, Mr. Smith? A. According to my recollection I think I made it.

The notice calling the special meeting for January 11, 1979, was introduced in evidence. It was dated January 8, 1979, and read as follows:

The Claiborne County Board of Education will hold a Special Meeting on January 11, 1979 at 6:00 p. m. in the County Superintendent’s Office for the purpose of discussing and acting on the following items:

1. School Sponsored Out-of-Town Trips
2. Approval of Coaching Position for One (1) Year
3. Approval of Athletic Director, Mr. Mason Denham
4. Employee Benefits and Student Activities
5. Collection of Fees Following:
a. Transcripts.
b. Medical Supplies
c. Report Cards
d. Donations
e. Homecoming
f. Others (So. Assoc. Maint. Personnel Security Personnel)
6. Reading Program

The Agenda consists of the above items listed for discussion and action by the Claiborne County School Board. Remember, the Board’s tour of the schools is set for 10:00 a. m., January 10, 1979, leaving from the Superintendent’s Office.

Sincerely,

/s/ John C. Noble

Superintendent of Education

The minutes of the January 11th special meeting pursuant to the above call were introduced in evidence and among other actions provided as follows:

It was moved by Mr. Smith and seconded by Mr. Yarbrough to have the accreditation or probation cleared up. Three voting for the motion, Mr. Smith, Mr. Currie, Mr. Yarbrough, Mr. Knox abstained.

The provisions of Mississippi Code Annotated section 37-5-27 (1972) are clear. First, it provides for regular monthly meetings and that “at any regular meeting the county board of education may transact any business authorized by law.” The section then specifically provides as follows:

Special meetings of the county board of education shall be convened and held at such times and in such places as the president may appoint by notice given to each member of the board. The call or notice of such special meeting shall specify each matter of business to be transacted thereat, and at such special meeting the county board of education shall not transact any business not so specified in such call or notice of such meeting.

The legislature in its wisdom had good reason to make the above specific prohibition. The statute mandates regular board meetings on statutorily specified dates and provides that if the regular meeting is changed, such change shall be published in a newspaper having general circulation in the county notifying the public of the change in order that the public may attend if they desire. No newspaper notice is required for the call of a special meeting which could be entirely in secret. Therefore, it is obvious why the legislature mandated that no business could be transacted except that listed in the official call for the meeting.

It is inescapable that the admitted discussion and authorization of the suit in question at the special meeting was completely void and action taken thereunder has no effect. On the direct appeal, therefore, the cause is reversed and rendered and the suit is dismissed with all costs taxed to appel-lees.

Appellees attempt to perfect a cross-appeal, contending that the statute under which the State Board of Education, through its Accreditation Committee action, was unconstitutionally vague, and contrary to the due process provisions of the United States and the Mississippi Constitutions. This issue was not included in the prayer of the bill of complaint and was not presented to the lower court. No consideration whatever of this issue was given by the lower court in its opinion and decree. Therefore, appellees are without standing to present it here, and the cross-appeal is dismissed.

REVERSED AND RENDERED.

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


text:
    Cecil AUSTIN v. STATE of Mississippi.
    No. 52139.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Louis Fondren, Pascagoula, for appellant.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, BROOM and LEE, JJ.

AFFIRMED.

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

PATTERSON, C. J., took no part.


text:
    William P. MARTIN v. Bobby BROWN.
    No. 52158.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    R. L. Houston, Jackson, for appellant.
    William R. Ford, Crawley & Ford, Kosciusko, for appellee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

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

REVERSED AND REMANDED.

SMITH, P. J., and SUGG, LEE, BOWLING and COFER, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Willie McARTHUR v. STATE of Mississippi.
    No. 52111.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Fielding L. Wright, James H. Heidelberg, Wright & Heidelberg, Pascagoula, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert A. Pritchard, Judge.

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

AFFIRMED.

SMITH, P. J., and SUGG, WALKER, BROOM and COFER, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Glenda A. DAVIS v. Jessie E. DAVIS.
    No. 52166.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Robert G. Gilder, Southaven, for appellant.
    Roy 0. Parker, Nora J. Hall, Tupelo, for appellee.
   Appeal from Chancery Court, Calhoun County; William H. Anderson, Chancellor.

Before SUGG, WALKER and COFER, JJ.

AFFIRMED.


text:
    Earl W. BERRY v. STATE of Mississippi.
    No. 52161.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Jim Waide, West Point, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

Before WALKER, BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Esau HOLIFIELD et al. v. W. F. MAPP, d/b/a Mapp Funeral Home.
    No. 52145.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Jerry L. Bustin, Forest, for appellants.
    George E. Gillespie, Jr., Zachary, Gillespie & Rogers, Hattiesburg, for appellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

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

AFFIRMED.

LEE, J., took no part.


text:
    Ricky SNYDER v. STATE of Mississippi.
    No. 52180.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

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

AFFIRMED.


text:
    BOB BELL REALTY, INC. et al. v. LINES FOR LIVING, INC. et al.
    No. 52175.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    James W. Wilson, Chartered Wilson & Allen, Ocean Springs, for appellants.
   Appeal from Chancery Court, Jackson County; Glenn Barlow, Chancellor.

E. Foley Ranson, Sadler & Ranson, Ocean Springs, for appellees.

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

AFFIRMED ON DIRECT AND CROSS-APPEALS.

PATTERSON, C. J., took no part.


text:
    Michael A. TILLER v. STATE of Mississippi.
    No. 52183.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Louis Fondren, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert Pritchard, Judge.

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

AFFIRMED.


text:
    David M. COX v. Clifford MARTIN et ux.
    No. 52205.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    R. M. Sullivan, William Harold Jones, Petal, for appellant.
    Dan R. Wise, Hattiesburg, for appellees.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

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

AFFIRMED.


text:
    B. M. HODGE v. BEL-MAR FORD TRACTOR, INC.
    No. 52218.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Charles M. Merkel, Holcomb, Dunbar, Connell, Merkel, Tillison & Khayat, Clarks-dale, for appellant.
    Lomax B. Lamb, Jr., Marks, for appellee.
   Appeal from Circuit Court, Quitman County; Elzy J. Smith, Judge.

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

AFFIRMED.


text:
    Cealious WATTS, Administrator of Estate of Rosetta Morgan Butler, Deceased, v. BANK OF COMMERCE, Branch of Hancock Bank of Gulfport.
    No. 52222.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Garland D. Upton, Columbia, for appellant.
    E. Bragg Williams, III, Williams, Williams & Montgomery, Poplarville, for appel-lee.
   Appeal from Chancery Court, Pearl River County; Michael Sullivan, Chancellor.

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

AFFIRMED.


author: SUGG, Justice, for the Court:

text:
    SOUTHERN NATURAL RESOURCES, INC. and St. Paul Fire & Marine Insurance Company v. Oscar R. POLK.
    No. 52191.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    William M. Dalehite, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, for appellants.
    Thomas J. Riley, Barefield, Riley & Evans, Hattiesburg, for appellee.
    Before SUGG, LEE and BOWLING, JJ.
   SUGG, Justice, for the Court:

This is a workmen’s compensation case appealed from the Circuit Court of Jefferson Davis County. The only question considered on this appeal is whether an appeal may be taken from an interlocutory order of the Workmen’s Compensation Commission.

In this case the Administrative Judge awarded claimant temporary partial disability benefits until “such time as his condition becomes static and his present disability, if any, is evaluated subject to the limitations of the act.” Upon review by the Commission, two members of the Commission were of the opinion that the order of the Administrative Judge was substantially correct in fact and in law except the award of continuing temporary partial disability benefits. An order was entered remanding the claim to the administrative judge for further hearing. The order provided, in part, the following:

In order to expedite the conclusion of this cause and thereby avoid additional delay and expense, the Majority Members ■ of the Commission remand this cause to the Administrative Judge for further hearing. The Majority Members of the Commission desire that a complete determination of all issues which have been raised in this cause be made by the Administrative Judge; specifically, that relating to claimant’s date of maximum medical recovery, and existence and degree, if any, of permanent disability. Further, claimant’s loss of wage-earning capacity, if any, is to be ascertained.

Section 71-3-51, Mississippi Code Annotated (1972) provides in part the following:

The final award of the commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the commission and notification to the parties, appeal therefrom to the circuit court of the county in which the injury occurred.

In St. Regis Paper Co. v. Lee, 249 Miss. 537, 163 So.2d 250 (1964), we reversed a judgment of the Circuit Court because the order of the Commission which was appealed to the Circuit Court was an interlocutory order and not appealable.

In Dunn, Mississippi Workmen’s Compensation, section 285 (2d ed. 1967), the author states:

To be appealable, the order of the Commission must be a final order. Thus, where the Commission, on review of a decision of its referee, enters an order remanding the case to the referee for further proceedings or testimony, the order is interlocutory only and is not ap-pealable.

We reaffirm the holding in St. Regis Paper Co. v. Lee, supra, and hold that an interlocutory order entered by the Workmen’s Compensation Commission is not ap-pealable. We therefore reverse and remand to the Commission so that its order directing the Administrative Judge to hold a further hearing may be complied with. After a final award, if any, by the commission, either party may appeal from such final order.

REVERSED AND REMANDED.

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

PATTERSON, C. J., took no part.

      . One Commissioner filed a dissenting opinion in which he expressed his view that claimant was not entitled to compensation.


text:
    William H. MORGAN v. STATE of Mississippi.
    No. 52063.
    Supreme Court of Mississippi.
    Oct. 1, 1980.

      Terry L. Jordan, Laurel G. Weir, Thomas L. Booker, Lewis, Booker & Lewis, Philadelphia, for appellant.
    Bill Allain, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before ROBERTSON, P. J., WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice, for the Court:

William H. Morgan was convicted in the Circuit Court of Neshoba County of aggravated assault on a fireman while acting within the scope of his duty. He was sentenced to serve ten years in the Mississippi State Penitentiary.

This is the second appearance of this case in this Court. On its first appearance [370 So.2d 231 (Miss.1979)], we reversed and remanded for a new trial because, when the jury was polled, a juror indicated some doubt as to whether he had voted for the guilty verdict.,

The facts of this case are rather unusual. Morgan was in the United States Marine Corps and had arrived in Philadelphia, Mississippi, the afternoon before the fire. About 1:30 a. m., November 25, 1977, Kenneth Coleman, a volunteer fireman, had received a radio signal at his home that there was a fire. He immediately went to the fire, a building known as the “Sport House”. He put on his protective clothing and asked Chief W. G. Brunson of the Philadelphia Fire Department what he could do to help. Chief Brunson instructed him to help move the crowd back from the burning building. Coleman testified that some of the people moved but that Morgan, who was attempting to go into the building, did not move back so Coleman grabbed him and tried to pull him back. Morgan pulled loose from him and tripped over a piece of concrete. Coleman stated that Morgan then got up and knocked him back into the Chief, and that both fell down. Coleman further stated that Morgan then pulled a pistol on them and with the pistol pointed at Coleman backed him up to the fire truck some 30 or 40 feet away.

' According to Coleman, Morgan hit him one time across the forehead with the pistol barrel and then Morgan returned to the burning building. Coleman further testified that at the time of this incident smoke was boiling out the door of the building, that there was confusion, and that people were running around, screaming and hollering that “Pie Shot” was still in the building. Coleman also stated that Morgan tried to grab the Chief’s hand lantern to go back into the burning building, and that is when he grabbed Morgan and pulled him back. Coleman stated that he weighed 230 pounds and that Morgan weighed around 190 pounds.

Dr. Bondurant testified that the blow to the head cut down to the skull, and that he thought Coleman had suffered a possible skull fracture. He sewed up the wound and kept Coleman in the hospital for observation.

Morgan testified that he had gone to the fire with a girl friend, that he was the one who called the fire department and reported the fire, that when he heard Kathy Johnson scream that “Pie Shot” was still in there he went into the burning building twice to search for him, that as he attempted to go back in for the third time someone grabbed him from the side and pulled him back, that he struggled with the person holding him, and that he (Morgan) was hit across the chest and knocked down. Morgan testified that as he lay on the ground all he could see was this big figure “just hovering over me, and so I just got up and hit him.” Morgan was supported in his testimony by his witnesses, Dot Fielder, Roosevelt Smiley and Kathy Ann Johnson.

Coleman was supported in his testimony by Chief Brunson and fireman John Culber-son.

Appellant has assigned as error:
1. The district attorney employed improper and prejudicial tactics in the trial below denying appellant a fair trial.
2. The verdict of the jury is against the overwhelming weight of the evidence and the court should have granted a judgment n. o. v. or a new trial.
3. The court below erred in giving the state’s instruction.

The district attorney on cross-examination attempted to impeach Morgan by asking him if he did not recall testifying at his first trial that he hit Coleman as hard as he could with a 357 magnum. On Morgan’s denial and after defense counsel’s objection was overruled, the district attorney continued to cross-examine him about his testimony having been different on the first trial.

Finally defense counsel said:

“Your Honor, I object. That was not in that record, and I challenge him, if he’s got the record, to produce it here where this Defendant said that.”

Whereupon, the Court ruled:

“I am going to let this Defendant answer him, and then if you want to produce the record, I will permit you to do so.”

On redirect examination defense counsel introduced the complete transcript of the first trial and read certain portions of it bearing out the truthfulness of Morgan’s answers that he did not hit him with a pistol but hit him with his fist as hard and as fast as he could, after he had been knocked down by Coleman. The record also contains a bill of exceptions which states that the district attorney, in his closing argument, made this statement to the jury:

“Where is this pie in the sky person named Pieshot? Why has the person named Pieshot not come forward to testify today for the defendant?”
“At this time, Attorney Terry L. Jordan made objection and motion for mistrial which was overruled.”

In Toney v. State, 298 So.2d 716 (Miss. 1974), this Court said:

“The questions asked by the district attorney and his remarks relative to some witnesses having perjured themselves by testimony taken on the motion for continuance amounted to an attempt to impeach appellant and his witnesses in an improper manner. The remarks in the presence of the jury were improper and prejudicial and the court should have instructed the jury to disregard these remarks and the district attorney should have been required to refrain from his attempt to impeach appellant’s witnesses in an improper manner. ... While it is proper for the district attorney to investigate to determine whether a witness or witnesses have testified falsely in a proceeding, it is not proper to do so in the trial of another proceeding to the prejudice of the accused then on trial. The state urges that the error, if any, was not prejudicial and therefore harmless. However, under the facts and circumstances of this case, we are of the opinion that this error was prejudicial.” 298 So.2d at 719.

The trial court also was in error in putting the burden on the defendant to refute the statements made by the district attorney in cross-examining Morgan, statements that were not backed up by the record in the first trial.

The general rule as to commenting on the failure of a party to produce or examine a witness is stated in Phillips v. State, 183 So.2d 908 (Miss.1966), wherein this Court said:

“We held in Brown v. State, 200 Miss. 811, 27 So.2d 838 (1946), that the failure of either party to examine a witness equally accessible to both is not a proper subject for comment before a jury by either of the parties.” 183 So.2d at 911.

The district attorney in his closing argument should not have argued:

“Where is this pie in the sky person named Pieshot? Why has the person named Pieshot not come forward to testify today for the defendant?”

When this Court reversed the conviction on the first appearance of this case before us, we stated in our opinion:

“We would first point out that the evidence in this case as to criminal intent was extremely close and has given this Court much concern.” Morgan v. State, 370 So.2d at 231.

We have carefully examined the record on retrial with reference to proving criminal intent on the charge of aggravated assault on a fireman acting within the scope of his duty. Defendant has maintained all along that he did not recognize the person who grabbed him as a fireman. The record reflects that, while the other firemen wore black protective coats and yellow helmets, Coleman’s fire helmet was black, thereby distinguishing him from the other firemen. The testimony of the state’s witnesses, as well as defense witnesses, was that it was at night, that there was great confusion, that Morgan was attempting to go back into the building for the third time to see if anyone was still in the burning building, and that he was grabbed by Coleman from the side, in an attempt to keep him from going back into the burning building to search for a person that bystanders were screaming was still in the building.

All of this, together with the positive testimony of the defendant that he did not know Coleman was a fireman, convinces us that defendant was guilty only of the lesser included offense of simple assault, under Mississippi Code Annotated section 97-3-7 (1979 Supp.), which provides:

“A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. ...”

For these reasons, the conviction, of aggravated assault on a fireman while acting within the scope of his duty and office, is reversed; and this case remanded to the lower court for resentencing for the crime of simple assault.

REVERSED AND REMANDED.

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

PATTERSON, C. J., took no part.


text:
    Larry Ronald BOURNE v. Patricia Ann B. ABERCROMBIE.
    No. 52181.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Rex K. Jones, Hattiesburg, for appellant.
    Dudley W. Conner, Hattiesburg, for ap-pellee.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

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

AFFIRMED AND MODIFIED.

SMITH, P. J., and SUGG, WALKER, BROOM and COFER, JJ., concur.

PATTERSON, C. J., takes no part.


text:
    Dennis Dewayne HAWKINS v. STATE of Mississippi.
    No. 52134.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Percy Stanfield, Jr., Stanfield, Holder-field & Hall, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.

SMITH, P. J., and SUGG, LEE, BOWLING and COFER, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Eddie RICE, Jr. v. STATE of Mississippi.
    No. 52221.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    George F. West, Jr., Natchez, for appellant.
    Bill Allain, Atty. Gen., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Adams County; Edwin E. Benoist, Jr., Judge.

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

AFFIRMED.


text:
    Mack STAPLETON v. MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE.
    No. 52188.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    R. Jess Brown, Brown, Alexander & Sanders, Jackson, for appellant.
    T. Michael Kuykendall, Michael B. Chit-tom, Jackson, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

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

AFFIRMED.


text:
    David PURNELL and Paul McKinney v. STATE of Mississippi.
    No. 52169.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Billy R. Gibson, Waveland, for appellants.
    Bill Allain, Atty. Gen., by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before WALKER, BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Joe Allen BAILEY v. Wooten D. SIMPSON, Center Director of Veteran’s Administration Hospital, Gulfport, Mississippi.
    No. 52184.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Jim W. Rose, Gulfport, for appellant.
    Mary E. Barrett, Jackson, for appellee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

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

AFFIRMED.


text:
    Roland B. WALL, Jr., et al. v. MISSISSIPPI REAL ESTATE COMMISSION et al.
    No. 52200.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Richard E. Stratton, III, Brookhaven, for appellants.
    William Hale Singletary, Clinton, for ap-pellees.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Before SUGG, LEE and COFER, JJ.

AFFIRMED.

PATTERSON, C. J., and SMITH, P. J., took no part.


text:
    Clarence CHINN v. BOARD OF SUPERVISORS OF MADISON COUNTY, Mississippi, and Robert M. Winstead.
    No. 52187.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
   Appeal from Circuit Court, Madison County; Rufus H. Broome, Judge.

James H. Herring, Herring & Herring, Canton, for appellant.

Robert M. Winstead, pro se.

Joseph R. Paneher, Jr., Powell & Fancher, Canton, for appellee.

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

AFFIRMED.


text:
    John Robert JOHNSON v. STATE of Mississippi.
    No. 52239.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Scott Stuart, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

Affirmed.


text:
    John Henry BROTHERN v. BAILEY DUNNAWAY LOGGING and United States Fidelity and Guaranty Company.
    No. 52201.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    James Phyfer, Jackson, for appellant.
    Richard E. Stratton, III, Brookhaven, for appellees.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

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

AFFIRMED.