author: STOKER, Judge.

text:
    Dana Kirk "Danny" BROWN and Carolyn W. Brown, Plaintiffs-Appellants, v. Jeanette S. GRIGSBY and Casualty Reciprocal Exchange, Defendants-Appellees.
    No. 8055.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1981.

      McLure & McLure, John C. Pickels, Alexandria, for plaintiffs-appellants.
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, STOKER, and LABORDE, Judges.
   STOKER, Judge.

This is a suit for personal injuries brought by a husband and wife. Their alleged damages arose out of an automobile accident which occurred on November 26, 1978, in Rapides Parish. The defendants in the case are Jeanette S. Grigsby and her insurer, the Casualty Reciprocal Exchange. Following a jury trial the trial court directed a verdict in favor of the plaintiffs on the issue of liability and submitted the question of quantum to the jury. The jury made no award of general damages to either plaintiff and awarded plaintiff-appellant Carolyn Brown special damages in the amount of $48.00 and awarded plaintiff-appellant Dana Kirk “Danny” Brown special damages in the amount of $377.50. Plaintiffs-appellants have appealed from the judgment entered on this verdict.

The defendants did not admit liability nor did they seriously contest liability. The defendants do not complain here of the trial court’s action in directing a verdict on the issue of liability. The defendants agree that the jury could not refuse to award general damages to plaintiffs who present objective symptoms of injury. Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir. 1976) and Moss v. Security National Insurance Company, 350 So.2d 247 (La.App. 3rd Cir. 1977), writ denied, 352 So.2d 239 (La.1977). Consequently, the issue in this appeal is limited to the question of general damages sustained by the plaintiffs-appellants and quantum award for these general damages. It devolves upon us as an appellate court to fix general damages where the jury awarded none. Under the circumstances, we are guided by the principles of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). See Moss v. Security National Insurance Company, supra.

Plaintiff Danny Brown’s principal claim is that he sustained psychological injuries which were caused by trauma he received in the accident and incidents which flowed therefrom. We have carefully examined the record, the expert testimony (none of which supports Danny Brown’s claim), and all the arguments submitted on Danny Brown’s behalf. After a full consideration of all factors and arguments in favor of Danny Brown we have concluded that, if Danny Brown has sustained any psychological injuries or has any psychological problems, they do not stem from the accident of November 26, 1978. Hence, there is no causal connection between any psychological complaint he may have and the negligence of defendant Jeanette Grigs-by. Danny Brown’s recovery will be confined to his physical injuries.

The accident in question was a rear-end automobile collision involving a minor impact. At some time on the day of the accident Dr. Robert K. Rush saw Danny Brown and diagnosed a cervical and lumbar strain with spasms. On the following day Dr. Rush recommended physical therapy. Thereafter Danny Brown was treated at the medical facilities at Fort Polk, Louisiana, where he was stationed. Brown’s treatment and diagnosis were complicated by the fact that subjective factors soon began to play a major part in the complaints which he related to the physicians. The thesis plaintiff-appellant Danny Brown urges before us is somewhat novel. He claims to have been perfectly normal physically and mentally prior to the accident. As a result of the accident in which he sustained legitimate complaints, he expected treatment at Fort Polk. However, plaintiff contends that the physicians at Fort Polk refused to take his complaints seriously and that he became caught up in certain bureaucratic delays and mismanagement. Danny Brown maintains these experiences brought on a mental illness which was initially triggered by the accident. We can see no connection between the accident and any difficulties Brown experienced with the Fort Polk medical authorities.

Based on what appear to be Danny Brown’s purely physical injuries we believe that the sum of $2,000 in general damages would fully compensate him. Under the circumstances of this case we find that appellant Danny Brown has not established any entitlement to loss of past earnings or loss of future earnings. Inasmuch as we do not find any causal connection between any mental condition from which Danny Brown may suffer and the automobile accident, we do not reach the issues brought up by plaintiff-appellant’s specification of error relating to the exclusion of testimony by Dr. Hearn, a psychologist, called to testify regarding Danny Brown’s employability. For the same reason we do not reach the issue of whether Dr. Hearn’s professional fees are recoverable.

Plaintiff-appellant, Carolyn W. Brown, sustained an injury to her right leg. On the day of the accident Carolyn complained to the emergency room doctor of a headache, swelling leg, and upset stomach. She was given an injection for her upset stomach, headache and the leg pain. The testimony establishes that she missed two days of work and limped around for approximately two weeks because of her bruised leg. We believe that $300 will adequately compensate Mrs. Brown for her slight injuries.

For the foregoing reasons we affirm the judgment of the trial court in all respects except insofar as it fails to award plaintiff-appellants any sum to compensate them for general damages. We amend the judgment to award plaintiff-appellant Carolyn W. Brown a total of $348 in damages and to award plaintiff-appellant Dana Kirk “Danny” Brown a total of $2,377.50 in damages. All costs of this appeal are assessed to defendants-appellees.

AMENDED AND AFFIRMED AS AMENDED.

      . The accident occurred on November 26, 1978. Danny Brown was separated from the Army on September 18, 1979. The trial was held on May 19, 1980.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Gary L. EWING et ux., Plaintiffs and Appellees-Appellants, v. Bernard C. SANSON et al., Defendants, and Hartford Accident & Indemnity Company, Defendant, Appellant-Appellee.
    No. 7773.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 1981.

      Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Alexandria, for defendant-appellant.
    William Henry Sanders, Jena, and Edward A. Kaplan, Alexandria, for plaintiffs-appellees-appellants.
    McLure & McLure, John G. McLure, Alexandria, for defendant-appellee.
    Trimble, Randow, Smith & Wilson, James T. Trimble, Jr., and Alonzo P. Wilson, Alexandria, for defendant-appellee.
    Richard S. Vale, Metairie, for intervenor-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, Judges.
   DOUCET, Judge.

This personal injury suit was brought by Gary L. Ewing and his wife, Janet C. Ewing, as a result of an automobile accident, which took place on September 20, 1978. Gary Ewing was driving a 1978 Ford automobile owned by Lewis Roy Motors, Inc. of Marksville, Louisiana. He was acting within the course and scope of his employment by Walker Bait Farm, and his wife was a guest passenger in the automobile. They were proceeding in a southerly direction on Louisiana Highway 1 when they collided with a 1973 Buick owned and driven by Bernard C. Sanson. Sanson had been traveling in an easterly direction on Louisiana Highway 457 and had failed to yield the right-of-way to Ewing by running a posted stop sign at the intersection of the two highways. Both automobiles were demolished, and Mr. and Mrs. Ewing sustained multiple injuries. They were removed from the scene by ambulance and taken to a local hospital for treatment.

This suit followed in which numerous defendants were named through seven supplemental and amending petitions. As the suit progressed, some of the defendants were dismissed. Among those dismissed was United States Fidelity and Guaranty Company (hereinafter referred to as U.S.F.&G.), the insurer of the Ewings’ personal automobile, which was not involved in the accident. U.S.F.&G. was dismissed when it paid the Ewings $5,000.00 under the uninsured motorist provision of the policy that it had issued to them. The defendants that remained when the suit was tried were:

1) Bernard C. Sanson;
2) Commercial Union Insurance Company (hereinafter referred to as Commercial Union), Sanson’s liability insurer;
3) Hartford Accident & Indemnity Company (hereinafter referred to as Hartford), Lewis Roy Motors’ liability insurer; and
4) Employers Mutual Liability Insurance Company of Wisconsin (hereinafter referred to as Employers), Walker Bait Farm’s automobile liability and workmen’s compensation insurer.

Employers intervened, seeking the recovery of $2,386.73 in workmen’s compensation benefits, which it paid to Gary Ewing as a result of injuries that he sustained in the accident. On October 11, 1979, eight days prior to the trial, Commercial Union paid $5,295.00 to each plaintiff, exhausting the limits of the policy that it had issued to Sanson.

After the trial, judgment was rendered in favor of Gary Ewing and against Hartford and Sanson, in solido, in the amount of $20,000.00 for general damages, plus $12,-939.29 for past and future medical expenses, subject to a credit of $5,295.00, the amount paid by Commercial Union. Judgment was also rendered in favor of Janet Ewing and against Hartford and Sanson, in solido, in the amount of $42,000 for general damages, subject to a credit of $5,295.00. The judgment declares that its enforcement against Sanson is limited to a total of $4,000.00, $2,000.00 to each plaintiff. It also states that the liability of Commercial Union is limited to the $10,590.00 that it paid to the plaintiffs prior to the trial and that the judgment against Sanson is in addition to that amount. The Ewings’ demands against Employers were dismissed. All pre-trial costs were taxed to Commercial Union and Hartford in the amount of one-half each, and all trial costs were taxed to Hartford.

Hartford appealed suspensively. The Ewings appealed devolutively and answered Hartford’s appeal, seeking an increase in the amounts awarded to them and judgment against Employers in the event that the judgment against Hartford is reversed. They later amended their answer to Hartford’s appeal, seeking penalties and attorney’s fees for the defendant insurers’ failure to pay their medical claims. Sanson also answered Hartford’s appeal, asking that the amount of the judgment against him be reduced to $500.00 for each plaintiff, and that the judgment be modified to provide that he is individually liable for that amount only, rather than solidarity liable with Hartford. Commercial Union joined in Sanson’s answer, asking that the judgment be modified to make no award whatsoever against it, or in the alternative, to provide that it is only liable for its proportionate share of the costs.

QUANTUM

The evidence concerning the plaintiffs’ injuries was succinctly summarized by the trial judge in his written reasons for judgment. We adopt his summary as follows:

“The record reflects that upon admission to the hospital both plaintiffs were complaining of painful headaches and were diagnosed as having cerebral concussions. It was also obvious to the admitting doctors that both plaintiffs had received multiple abrasions and lacerations over their entire body from the accident.
“Mr. Ewing remained in the hospital for nine days. He was treated for a puncture wound in his right bicep and for a soft tissue injury to his right elbow (which required surgery October 23,1979, one week after evidence was heard in this case). He later complained of low back pain which should subside with time and of neck pain which was diagnosed as an acute cervical sprain which should subside with time but with no disc involvement. All the tests on Mr. Ewing were negative as to any neurological damage. Because of these injuries, Mr. Ewing was unable to work for two months. He testified that when he returned to work, he was in much pain because of the heavy manual labor required. He has had to restrict some of his recreational activities and continues, upon exertion, to have pain from accident-related injuries. Headaches have persisted since the accident but with decreasing frequency.
******
“Mrs. Ewing also stayed in the hospital for nine days. Upon admission a large cut in her upper lip was sutured and this has left a small disfiguring bump on her upper lip. She had a cut by her right eye which was also sutured but she still complains of blurred vision in that eye when driving. She also testified of photopho-bia and headaches up to the time of trial. She sustained neck pain which, when examined, showed ‘severe tenderness with sever muscle spasms.’ This was later diagnosed by her orthopedist as ‘acute cervical strain’ which is worsening and could become chronic but not requiring surgery without further testing. She has also testified to a tingling feeling down her leg and of back pain in her lumbar region which has been diagnosed as a ‘sprain with possible disc involvement.’ Mrs. Ewing also fractured her jaw and sustained fractures and loosening of three of her teeth, resulting in much pain and tenderness. She was seen in the hospital by a dentist who, after her discharge, performed root canal work and general dentistry treatment. Future root canal work has been prescribed which could result in her jaws being wired for eight weeks.
“Because of Mrs. Ewing’s physical condition since this accident, she has gained weight because of emotional frustration which has affected her life at home and at work. Psychiatric care has been recommended for mild to moderate depression by her neurosurgeon and evaluating psychologist.
“Mrs. Ewing is still being treated by Dr. John J. McCutchen, a neurosurgeon. He feels that there may be disc involvement but can’t testify to any medical certainty until a myelogram or discogram is performed.”

The trial judge based his awards of $20,-000.00 to Gary Ewing and $42,000.00 to Janet Ewing on that evidence. On appeal, Hartford argues that the awards are excessive, while the Ewings argue that they are insufficient. In addition, Hartford argues that the preponderance of the evidence does not support the trial judge’s award of $3,000.00 for Mrs. Ewing’s future medical expenses.

Before an appellate court can disturb a trial court’s award of general damages, the record must clearly reveal that the trier of fact abused its “much discretion” under LSA-C.C. Art. 1493. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979). After carefully examining all of the evidence in the record, we cannot agree that the awards were either so excessive or so insufficient that they constituted an abuse of the trial judge’s discretion. We are therefore constrained to affirm the awards, and we find it unnecessary to discuss the numerous cases cited by the parties in their briefs. A detailed discussion of prior awards would serve no purpose, since we have found that the trial judge’s awards fairly compensate the plaintiffs under the circumstances of this particular case.

Regarding Mrs. Ewing’s future medical expenses, Dr. Joseph Marks, an oral and maxillofacial surgeon, testified that she would have to undergo orthognathic surgery in the future to correct malocclusions, or defects in the way that her teeth meet. Dr. Marks was unable to determine the exact extent to which the malocclusions were caused by the accident, since he had not examined her prior to that time. He was certain that some of the malocclusions in the back of her mouth were pre-existing. However, he was equally certain that some of them were a result of the accident.

Hartford argues that the plaintiffs have failed to prove that the surgery has been necessitated by the accident. We disagree. It is clear from Dr. Marks’ testimony that the purpose of the surgery is to relieve the pain and suffering that Mrs. Ewing is experiencing as a result of the injuries that she sustained in the accident. The fact that the deformities of her teeth were to some unknown extent pre-existing does not alter the fact that her present need for surgery was precipitated by the trauma of the accident. We therefore find no error in the trial judge’s inclusion of this item in making his award for future medical expenses.

LIABILITY OF HARTFORD AND EMPLOYERS

Hartford and Employers were named as defendants because the negligent driver, Sanson, was underinsured. As we noted earlier, Hartford is the liability insurer of Lewis Roy Motors, Inc., the owner of the automobile driven by Gary Ewing. Employers is the liability insurer of Ewing’s employer, Walker Bait Farm. It insured a pickup truck furnished to Ewing by his employer, which was being serviced at the time of the accident. On appeal, both Hartford and Employers argue that they are not obligated to provide uninsured motorist protection under the circumstances of this case.

The trial judge’s written reasons for judgment contain an excellent treatment of the coverage issue raised by Hartford. We fully agree with his conclusions, which we adopt, as follows:

The substantial issue for resolution is whether defendant Hartford’s liability policy (P-8) provides UM coverage to plaintiffs. Hartford contends Lewis Roy orally rejected the uninsured motorist coverage as provided by R.S. 22:1406 D(l)(a), which provided at the time the policy was issued the following:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any major vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, and not less than the limits of the bodily injury liability provided by the policy, under provisions filed with and approved by the Commissioner of Insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided however, that the coverage required under this sub-section shad not be applicable where any insured named in the policy shall reject the coverage or select lower limits.” (Emphasis added.)

This statute provides that the insured will have the same amount of UM coverage as liability coverage except when he “shall reject the coverage or select lower limits.” Lewis Roy did not select lower limits but they do contend they orally rejected the UM coverage, so the issue is, was there a legal rejection of UM coverage at the time of issuance.

At the trial of this matter, Hartford did not produce evidence of any written rejection of UM coverage by Lewis Roy Motors but did produce evidence of an oral rejection by representatives of Lewis Roy Motors to agents of its insurance agency and contends that such evidence is sufficient to relieve Hartford of UM liability as required by the above statute.

This Court does not have to resolve the issue of the effect of Lewis Roy’s oral rejection, because the Court finds that such a rejection had to be in writing and attached to the policy. The Court relies on R.S. 22:628, which provides:

“No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insur-anee by specific reference to another policy or written evidence of insurance.”

This is the “entire contract policy” statute, the basic purpose of which is that the insured shall have in his possession at all times the entire evidence of the insurance contract. See Johnson v. Occidental Life Insurance Company of California, 368 So.2d 1032 (La.1979).

In the present case, the insurance policy offered into evidence contained no provision whatsoever for UM coverage. Thus, the fact that the rejection of UM coverage was oral, would not seem to matter, since the rejection does not conflict with, modify, or extend any coverage expressly stated in the policy.

In re-examining the wording of R.S. 22:1406 D(l), however, we note that it mandates inclusion of uninsured motorist coverage in any automobile liability insurance issued for delivery in Louisiana. The coverage is required, but is inapplicable if rejected by the insured. Thus, the fact that the policy in this case contained no language regarding UM coverage, is of no moment; the compulsory requirements of the statute mean that uninsured motorist coverage must be read into the policy. Since the policy thus mandatorily provides UM coverage, rejection of such coverage should have been in writing, because rejection conflicted with the coverage. See LeBoyd v. Louisiana Transmission [sic] Company, 375 So.2d 749 (4th Cir. 1979).

Therefore, it is this Court’s ruling that since there was no proof of a written rejection by Lewis Roy Motors to Hartford for UM coverage, Lewis Roy is considered to have UM coverage equal to their liability coverage under the policy, namely $100,000 per person/$300,000 per accident.

Having found that Hartford is liable to the plaintiffs for the above reasons, we do not reach the coverage issue raised by Employers. LSA-R.S. 22:1406 D(l)(c) provides that the uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary. Since the primary coverage provided by Hartford has not been exhausted, we need not decide whether excess coverage was available under the policy issued by Employers.

SANSON’S LIABILITY

In response to Sanson’s plea of inability to pay, the trial court limited enforcement of the judgment against him to the sum of $4,000.00. However, the judgment also provides that he is solidarity bound with Hartford. On appeal, Sanson requests that the judgment be amended to reduce his liability to the sum of $1,000.00 and to provide that it is separate from the liability of Hartford.

Sanson argues that he and Hartford are not solidary obligors because Hartford does not have the right to seek contribution from him. See Neimann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979). The existence of a solidary obligation does not depend on whether a co-obligor has the right to seek contribution, however. It is well settled that an insured and his liability insurer are solidarity liable, despite the fact that the insurer has no right of contribution. Stansbury v. Hover, 366 So.2d 918 (La.App. 1st Cir. 1978).

In view of the fact that Sanson and Hartford are solidary co-obligors, we conclude that the trial court erred in considering evidence of Sanson’s inability to pay. Where there are solvent co-obligors from which the plaintiff can recover, evidence of an insolvent co-obligor’s inability to pay may not be considered at the trial on the merits of the plaintiff’s claim. Daniels v. Conn, 382 So.2d 945 (La.1980); McGrew v. State Farm Mutual Automobile Insurance Company, 385 So.2d 1276 (La.App. 3rd Cir. 1980). Sanson’s request for a reduction of his liability under the “inability to pay” doctrine is therefore denied, and the judgment is amended to delete the limitation on its enforcement against him.

COMMERCIAL UNION’S REQUESTS

As we noted earlier, Commercial Union paid its policy limits to the plaintiffs eight days before the trial. The trial judge concluded that under those circumstances, it should be held liable for half of the pre-trial costs. We find no error in that conclusion. Nor do we find any error in the trial judge’s reference to Commercial Union in the judgment. The judgment clearly states that Commercial Union’s liability is limited to those amounts that it paid prior to trial. By doing so, it merely clarifies Commercial Union’s position, and it does not provide any basis for enforcement of the judgment against it.

For the above and foregoing reasons, the judgment of the trial court is amended, and as amended, affirmed.

Paragraphs one and two of the judgment are recast to read as follows:

“ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Gary L. Ewing and against Hartford Accident & Indemnity Company and Bernard C. Sanson, Jr., in solido, in the sum of $32,-939.29, together with legal interest from date of judicial demand until paid in full, on all sums, subject to a credit in the amount of $5,295.00 paid by Commercial Union Insurance Company on October 11, 1979, and it is further

ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Janet C. Ewing and against Hartford Accident & Indemnity Company and Bernard C. Sanson, Jr., in solido, in the full sum of $42,000.00, together with legal interest from date of judicial demand until paid in full, subject to a credit of $5,295.00 paid by Commercial Union Insurance Company on October 11, 1979, and it is further”

In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-appellant, Hartford Accident & Indemnity Company.

AMENDED AND AFFIRMED.

SWIFT, J., concurs.


author: LABORDE, Judge. STOKER, Judge,

text:
    ACADIAN HERITAGE REALTY, INC., Plaintiff-Appellant, v. CITY OF LAFAYETTE, Defendant-Appellee.
    No. 8040.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 1981.

      Fruge & DeJean, Kenneth W. DeJean, Lafayette, for plaintiff-appellant.
    Mouton & Roy, Ronald J. Judice, Lafayette, Joseph A. Koury, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   LABORDE, Judge.

The trial court sustained the City of Lafayette’s exception of no cause of action and ordered dismissal of Acadian Heritage, Inc.’s petition for damages against the City. The issue on appeal is whether Acadian’s petition sets forth a cause of action. Under Louisiana Civil Code Articles 2315, 667 and 669, we hold that it does. We reverse and remand.

Acadian alleges that prior to May 1,1979, it owned and had interests in certain property situated in Lafayette Parish. Also pri- or to May 1,1979, some of this property was being used for residential development and the rest was to have that use in the future.

According to Acadian’s petition, on May 4, 1979, the City of Lafayette purchased a 60.78 acre tract of land in Lafayette Parish. The 60.78 acre tract was adjacent to or in close proximity to those properties owned by Acadian and in which Acadian had interests. Acadian alleges that the City purchased the tract in order to construct, maintain, and operate a sanitary landfill and that the landfill site was constructed.

Acadian further alleges that the landfill creates a nuisance because among other things, the works create unknown environmental effects upon the area; the works will necessitate the use of heavy machinery in its operation thereby causing increased traffic flow in the area; and the works will disrupt the country atmosphere and aesthetic value of the area.

Acadian alleges that it has been damaged as a result of the City’s construction of the landfill site. More particularly, Acadian claims that it experienced an immediate lack of interest by the public in acquiring property or homes resulting in a loss of sales. In addition to the sales losses Acadi-an alleges refusal or hesitancy of financial institutions to lend money for additional development or to finance purchases for potential buyers; lowering of the appraisal values of property or homes in the area; loss of developmental potential; and damage to Acadian’s reputation or business standing in the community. Acadian concludes with a prayer for the damages it claims resulted from the City’s use of its land for the landfill.

The City raised an exception of no cause of action which was sustained by the trial court.

In determining whether a petition states a cause of action, our Supreme Court in Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975), provided the following guidelines at page 96:

“The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well-pleaded allegations of fact is conceded, the issue is whether the face of the petition presents a case which legally entitles the mover to the redress sought. It is the sufficiency of the petition or motion in law which is put at issue by the exception. Rebman v. Reed, 286 So.2d 341 (La.1973); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).
If a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852 (1971); Burns v. Genovese, 254 La. 237, 223 So.2d 160 (1969); Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961); United Mine Workers v. Arkansas Oak Flooring Co., 238 La. 108, 113 So.2d 899 (1959).
In considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971); Erath Sugar Co. v. Broussard, 240 La. 949, 125 So.2d 776 (1961). Pleadings must be reasonably construed so as to afford litigants their day in court, to arrive at the truth and to avoid a miscarriage of justice. Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297 (La.1973).”

The issue presented by Acadian’s petition is: Does the construction of a sanitary landfill site adjacent to and in close proximity to property owned by plaintiff give rise to an action for damages caused by this proximity which impairs the market value and full use of the neighboring estate?

The legal principles set forth in Articles 667 and 2315 of the Civil Code are relied upon to sustain Acadian’s cause of action.

“Art. 667: Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”
“Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * ”

In the Hero case, supra, the Court at page 97 stated:

“A suit for damages instituted as a result of a proprietor’s violation of the obligation imposed upon him by Article 667 of the Civil Code is not a tort action in the sense that deliction in its usual connotation is a necessary element. Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968) (McCaleb, J., concurring).”
“As expressed in the Article, the principle is a limitation the law imposes upon the rights of proprietors in the use of their property. It is a species of legal servitude in favor of neighboring property, an expression of the principle of sic utere. An activity, then, which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant. Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971). The article expresses, as this Court has often stated, a doctrine of strict liability which does not depend upon deliction. Craig v. Montelepre Realty Co., supra; Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816 (1947).”

The law, therefore, fixes the responsibility of a proprietor to his neighbor, and the City is a proprietor and Acadian is its neighbor within the contemplation of Article 667. Salter v. B. S. W. Corporation, Inc., 290 So.2d 821 (La.1974). Thus, the only issue presented here is whether the allegations of Acadian’s petition are sufficient in law to establish that Acadian has been damaged by the City’s construction of the sanitary landfill site. If facts are alleged which would, as a matter of law, constitute damage to Acadian’s property caused by the City’s purchase of the property and subsequent construction of the landfill site, the petition states a cause of action. Even though the City may use its property as it sees fit, it can not make any work on it which may deprive Acadian of the liberty of enjoying its own, or which may cause damage to Acadian. LSA-C.C. art. 667. Hero Lands Company v. Texaco, Inc., supra.

The facts considered to be true for the purpose of this exception are that the purchase of the land and the construction of the landfill site in close proximity to the Acadian property created a nuisance because the works involved inherent dangers which are known to the public, to those purchasing land for residential purposes, and to those lending money for business and residential purposes.

The specific alleged violations of the City include:

“(a) Locating a landfill site in a country residential area in complete disregard for petitioner’s rights, which landfill will necessitate the use of heavy machinery in its operation, cause a great increase in the traffic flow in said area and will have additional unknown effects upon said area;

(b) Failure to properly conduct an impact study on the area so as to select the most feasible site, which would cause the least amount of damage to individuals and/or businesses in that area;

(c) Building and/or purchasing said landfill site in disregard of petitioner’s rights, all the while knowing that the full effect of the landfill’s operation on the area and environment would be unknown;

(d) Failing to inform the public or residents in the immediate area of the landfill as to the intent of the city to locate said landfill in that area;

(e) Failing to do that which should have been done so as to minimize damages and disruption of the country atmosphere and aesthetic values of the area;

(f) Using its property in such a manner so as to cause damages to others in the surrounding area and creation of a nuisance.”

As a result of these facts and circumstances, damage has been incurred by Aca-dian to the extent of $1,625,000. In addition, Acadian has incurred damages for loss of reputation, adverse publicity, mental anguish and anxiety to the extent of $200,000.

We realize that the law has decreed that certain inconveniences must be tolerated. LSA-C.C. art. 668. But, the extent of inconvenience the property owner must tolerate without redress depends upon the circumstances. When the works cease to be inconveniences and become damaging is a question of fact which must await determination on the merits.

We conclude that plaintiff’s allegations may, if adequately supported by convincing evidence, support an action for abuse of rights under Articles 2315 and 667 of the Civil Code.

The City, in brief, argues on appeal that the sustaining of the no cause of action exception should be affirmed because Aca-dian did not allege that the landfill was in operation. For support, the City cites part of the trial judge’s written reasons for judgment wherein the judge stated:

“The petition does not allege any damages to its property by the operation and, in fact, does not allege the operation of the landfill at the present time. The exception is hereby sustained and plaintiff’s claim is denied at its costs.”

By its own terms, Civil Code Article 667 says a proprietor can not make any work on his property “which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.” It does not say a proprietor can not make any work, the operation of which, may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage. (Emphasis supplied.) According to the petition, Acadian was damaged when the proposed landfill site was constructed and its effects were immediately felt — all without the necessity of beginning the landfill operations. Hence, the mere fact that the petition does not allege damages resulting from operation or actual operation of the landfill is of no consequence. Acadian’s allegations that the City purchased land and constructed the landfill site thereon which resulted in impairment of Acadian’s own use of its land and caused Acadian damage is sufficient to state a cause of action under Article 667. In addition, this Court in Salter v. B. W. S. Corporation, Inc., 281 So.2d 764, 769 (La. App. 3rd Cir. 1973), stated that the exercise of the sic utere servitude of Article 667 requires only “an objective finding of probability that the owner or occupier of the dominant estate MAY at some time be deprived of enjoyment of his property or suffer damage because of the work made upon the servient estate.” (Emphasis theirs.)

As a second assignment of error Acadian contends “that the trial court erred in failing to grant plaintiff time to amend its petition to correct or attempt to correct any infirmities the court may have found in the original petition.” Our ruling on the first assignment of error pretermits the need for considering the second assignment.

For these reasons, the exception of no cause of action is overruled and the case is remanded to the trial court to be proceeded within accordance with law. Costs of this appeal are taxed against the City in the amount of $135.99 in accordance with LSA-R.S. 13:4521 and 13:5112. All other costs await further proceedings.

REVERSED AND REMANDED.

STOKER, J., concurs and assigns written reasons.

DOMENGEAUX, J., concurs in the result and agrees with the comments contained in the concurring opinion of STOKER, J.

STOKER, Judge,

concurring.

I concur in overruling the exception of no cause of action in this case. I will state my own views with reference to one point touched upon in the majority opinion. A cause of action of the nature involved in this case requires a balancing of interests, which means that plaintiff here will not necessarily win its case if it proves its allegations. When an exception of no cause of action is overruled it usually follows that if the plaintiff then proves the allegations of the petition, the plaintiff wins. In the case of Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975), cited in the majority opinion, the following statement was made:

“But the extent of inconvenience the property owner must tolerate without redress depends upon the circumstances. When the actions or works cease to be inconveniences and become damaging is a question of fact. The problem is one which involves the nature of the intrusion into the neighbor’s property, plus the extent or degree of damage. No principle of law confines this damage to physical invasion of the neighbor’s premises — an extrinsic injury, as it were. The damage may well be intrinsic in nature, a combination of facts and conditions which, taken together, do not involve a physical invasion but which, under the circumstances, are nevertheless by their nature the very refinement of injury and damage. Salter v. B. W. S. Corporation, Inc., 290 So.2d 821 (La.1974). Compare Hillard v. Shuff, 260 La. 384, 256 So.2d 127 (1972) (Barham, J., dissenting).”

It may be that when all the facts and circumstances of this case are known, a balancing of interests will require that plaintiff accept any inconvenience or damage which may result from construction of the sanitary fill and prospective operation thereof. The sole damage which plaintiff alleges is a depression of the value of its land for residential development. There may be some question whether this type of damage or inconvenience requires redress in the form of damages. That matter should receive consideration in the light of facts at trial. See the per curiam in Hero Lands Company v. Texaco, Inc., supra.

      . On appeal to the Louisiana Supreme Court, 290 So.2d 821 (La.1974) that Court held the injunctive relief in an action predicated on Article 667 is controlled by Code of Civil Procedure Article 3601 which by its terms requires a showing that the proposed operations will occasion irreparable injury. The Court remanded on that basis. This does not affect the earlier pronouncement by this Court concerning Article 667.


author: GULOTTA, Judge.

text:
    STATE of Louisiana in the Interest of R. L. B.
    No. 12245.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1981.
    Rehearing Denied March 16, 1981.
    Richard L. Ducote, Harvey, Roy S. Lilley, Metairie, William C. Credo, III, Asst. Dist. Atty., Gretna, Jerome A. Friedman, Metair-ie, Samuel B. Stephens, Gretna, for State.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   GULOTTA, Judge.

Relator, the court appointed attorney for the minor R. B. (a male born August 6, 1978), seeks to set aside the judgment of the trial court placing the child’s custody with a family in the State of Mississippi and seeks also to have the child returned to Louisiana for placement in foster care in this state. We granted certiorari. By direction of this court, the matter was heard on oral argument and submitted on arguments and briefs.

This matter came to the attention of the juvenile court when the child was scarcely one week of age and temporary custody was sought for placement with the Louisiana Health and Human Resources Administration. An order to that effect was rendered by the court on August 14, 1978. Thereafter, on January 23, 1979, after a hearing, the child’s mother was determined “not mentally or financially able to care for the child” and the court ordered that custody remain with the Louisiana state agency. The January 23 order, however, indicated that the matter would be reset pending receipt of a report from the Mississippi Welfare Department. This reference to the Mississippi agency’s report was apparently in response to a January 23, 1979 rule for custody filed on behalf of Mr. and Mrs. A., residents of the state of Mississippi, in which they asserted that the mother of the child desired placement with them. They indicated a desire ultimately to adopt the child.

An August 21, 1979 report from the Mississippi Department of Public Welfare stated that the couple’s trailer had been destroyed by fire and they and their three daughters were living rent free in a two-bedroom house, that Mrs. A. had been “layed off” from her job, that Mr. A.’s $3.60 per hour job was in its slack season, and that the couple had neither savings nor health insurance. The report indicated further that it could not recommend the adoption of the child by Mr. and Mrs. A. because the couple did not meet the financial requirement or stability of environment.

Nonetheless, the Louisiana juvenile court judge on March 13, 1980 placed custody of R. B. with the A. couple, under supervision of the welfare department in Mississippi for six months. The Mississippi Welfare Department was requested to file a report to the court. An August 21,1979 report from the Mississippi Welfare Department did indicate that the A. couple “lived by an unshakeable religious faith, they are physically healthy, they have the capacity and disposition to give love and affection, and they have had the strength to work through a very difficult situation.”

Based upon a July 7, 1980 supplemental letter and report from the Mississippi Department of Public Welfare, the court-appointed attorney for R. B. filed a motion on July 30, 1980 for transfer of custody of the child from the A. family in Mississippi to the Louisiana Department of Health and Human Resources. The July 7, 1980 letter indicated serious reservations about R. B.’s continued placement in the A. home. It requested that the Louisiana authorities “make immediate plans for an alternate placement for this child as it does not appear to be in his best interest to remain in the A. family home.” These reservations were based upon an enclosed June 23, 1980 home-study which pointed out that Mr. and Mrs. A. were unemployed and Mr. A. was receiving a V.A. disability check for $335.00 per month. This was to be discontinued on September 1. The report indicated further that there was no dependable income in the A. home.

According to this report, the Mississippi couple and the children were then living in a home that they were building themselves, and that was inadequate for the family of six because for “two-and-one-half months they have lived without running water in the incomplete bathroom, necessitating that all six of the family members bathe with cold water from the kitchen sink. The house does not have inside walls or ceilings except for the tin roof.” It also lacks screens at the windows or doors. The Mississippi adoption worker stated in the report that the A. couple were unable to meet Randy’s needs.

Thereafter, on November 19, 1980, the court denied another motion for return of the child to Louisiana. It is from this order that this writ application was filed.

The court-appointed attorney for the child contends in this court that R. B. was placed with the Mississippi family in foster care or as a preliminary to possible adoption and that LSA-R.S. 46:1700 et seq., the Interstate Compact on the Placement of Children, applicable in this case, required placement in a “suitable environment.” (See LSA-R.S. 46:1700, article 1(a). According to relators, because the Mississippi home is unsuitable and because the child was sent to Mississippi despite the Mississippi Welfare Department’s recommendation that the placement was not in the interest of the child, the custody order of the Louisiana Juvenile Court should be rescinded and set aside and the custody of R. B. be returned to the Louisiana Health and Human Resources Administration. Relator further complains the trial judge erred in refusing to consider the report from the Mississippi Department of Public Welfare.

The response acknowledges that the Mississippi report was deemed inadmissible by the trial court, as hearsay, and states that the child was not placed with the A.s for adoption but for custody upon a determination that the child was “in need of care” under Articles 15 and 40 of the Code of Juvenile Procedure. Mr. and Mrs. A. contend, under the circumstances, the Interstate Compact is not applicable to the instant case.

Unfortunately, the record in this case is somewhat confusing. According to the transcript of the testimony and proceedings taken before the juvenile court judge on December 6,1979, the purpose of that hearing was to consider the transfer of R. B.’s custody from the Louisiana Department of Health and Human Resources to the A. couple. At that hearing the trial judge considered the first report from the Mississippi Department of Public Welfare and construed that report as a “favorable” one. Because the judge wanted to hear from the child’s mother regarding the possibility of a surrender of the child, and she was not in court at that time, he concluded the hearing without rendering any judgment.

On March 13, 1980, after considering R. B.’s mother’s testimony, in which she expressed her desire that Mr. and Mrs. A. be given custody and that they adopt the child, the court transferred the custody from the Louisiana agency to the Mississippi family. R. B.’s mother stated on March 13 that she would only sign a surrender of the child if the A. couple could adopt, otherwise she would not surrender the child to anyone else.

Prior to issuing the transfer of custody order, the trial judge, in oral reasons, expressed concern with a permanent placement of the child with an ultimate prospect of adoption. His fear was that the child might remain “in limbo” if placement were not made with Mr. and Mrs. A. This transfer was made under the supervision of the proper Mississippi agency and a report was to be received by the court from that agency in six months. In a September 11, 1980 hearing for review of the earlier order granting custody to the A. couple, the trial judge refused to allow into evidence the July 7, 1980 report from the Mississippi Department of Public Welfare. While stating that he would not consider the report as admissible, the judge indicated he had read the report but had not seen anything in it which was “so detrimental” as to require a transfer of custody from Mr. and Mrs. A. at that time. After hearing testimony from a psychiatrist on September 11,1980, the trial judge expressed a desire that the psychiatrist evaluate the Louisiana foster care parents with whom R. B. had been placed earlier by the Louisiana Department of Health and Human Resources and from whom R. B.’s custody was removed and also to evaluate the Mississippi family. At the conclusion the trial judge stated that he would hold the matter open and assign another date to allow either party to submit additional evidence.

The record does not contain any further evidence relating to the September 11,1980 hearing with the exception that on October 23, 1980 the trial judge continued the date for setting the open hearing to December 9, 1980. However, by an ex parte order of November 19, 1980, the trial judge denied the court-appointed attorney for the child’s request for transfer of custody from the Mississippi couple to the Louisiana agency. It is from the denial of the November 19, 1980 motion for transfer of custody that relators sought and were granted writs.

Whether the placement of this child is under the provisions of LSA-R.S. 46:1700 et seq., the Interstate Compact, or under the adoption statutes, or under the appropriate procedures for “a child in need of care”, the one paramount consideration is that the placement be in the interest and for the benefit of the minor child. The academic arguments raised in brief and in oral argument are of secondary importance when considered in light of the child’s welfare.

In this connection, we find error on the part of the trial judge in refusing to admit into evidence the report from the Mississippi Department of Public Welfare. LSA-C.J.P. art. 39 provides that hearsay evidence shall be admissible at the hearing to determine continued custody. Furthermore, LSA-C.J.P. art. 60 provides that any copies of any reports or findings submitted to the court shall be made available to counsel for all parties. This article clearly presupposes the admissibility of these reports. See also, LSA-C.J.P. arts. 81, 82 and 90 which clearly indicate the trial judge may consider predisposition investigation reports or mental evaluations. We note also that the trial judge made the placement of R. B. with Mr. and Mrs. A. under the supervision of the Mississippi Department of Public Welfare and ordered a report to be submitted to the court six months after the placement. Under the circumstances, we conclude the trial judge either erroneously excluded or failed to give proper weight to the July 7,1980 Mississippi Welfare Department’s report and its attached June 23, 1980 case study.

Assuming the welfare department’s reports were accurate, when we consider them, the testimony of the psychiatrist indicating concern for the stability and welfare of the child in A. family’s home, and the emotionally ill mother’s instability (which minimizes reliance on her desires for R. B.’s placement), we are led to conclude that the trial judge erred in refusing to transfer the custody of R. B. from Mr. and Mrs. A. in the state of Mississippi to the Health and Human Resources Administration of the State of Louisiana. Although we are concerned, as is the trial judge, with the ultimate permanent stability of this child, the immediate, temporary welfare of R. B. requires more suitable living conditions than those afforded by the A. family in Mississippi.

Accordingly, the judgment of the trial court permitting continued custody with Mr. and Mrs. A in the state of Mississippi is reversed and set aside and the custody of R. B. is transferred to the Louisiana Health and Human Resources Administration until further orders of the juvenile court.

REVERSED AND RENDERED.

      . The order of the juvenile court dated January 23, 1979 directed the Department of Health and Human Resources to make a confidential study to the background and homelife of the A. family, residents of Mississippi, through its equivalent agency in the State of Mississippi and to submit a report to the Louisiana Juvenile Court. Attached to the rule for custody by the A.s was an affidavit of consent for adoption executed by the mother in favor of Mr. and Mrs. A.
      We have used initials in referring to the parties.

      . LSA-R.S. 46:1700, article 111(d) reads as follows:
      “The child shall not be sent, brought or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.”

      . LSA-C.J.P. arts. 15 and 40 read as follows (in pertinent part.)
      “Art. 15. Juvenile jurisdiction over children; exceptions
      Except as otherwise provided herein, a court exercising juvenile jurisdiction shall have exclusive original jurisdiction over the following proceedings:
      C. A proceeding in which a child is alleged to be in need of care....”
      Art. 40. Grounds for continued custody prior to adjudication.
      The court may authorize continued custody of a child prior to adjudication if there are reasonable grounds to believe that:
      (6) The parents of the child have neglected or refused, when able to do so, to provide support, education, medical, or other care necessary for his well-being; or
      (7) The child has been abandoned by his parents or is otherwise without proper care, custody, or support.”


author: BROOM, Justice

text:
    GULF NATIONAL BANK v. Rosemary Evans WALLACE.
    No. 52217.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Rehearing Denied March 18, 1981.
    John C. Ellis, W. Joel Blass, Mize, Thompson & Blass, Gulfport, for appellant.
    Joe Sam Owen, Gulfport, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BROOM, Justice

for the Court:

Fraud related to execution of documents securing a bank loan is the gist of the action of Rosemary Evans Wallace (hereinafter Mrs. Wallace) against Gulf National Bank (GNB). Trial in the Circuit Court of Harrison County, First Judicial District, resulted in a verdict of $250,000 actual and $350,000 punitive damages in favor of Mrs. Wallace. Remittitur of $250,000 was ordered below leaving Mrs. Wallace with a judgment for $250,000 actual plus $100,000 punitive damages. GNB argues on its direct appeal that (1) Mrs. Wallace failed to meet her burden of proof to establish fraud, and (2) the lower court erred in instructing the jury. On her cross appeal, Mrs. Wallace contends that punitive damages should have been remitted by only $100,000. We reverse.

Testimony presented was that Mr. Evans and his partner applied for a large loan from GNB. Security offered by the borrowers was inadequate unless Mrs. Wallace’s land was included in the deeds of trust securing the loan. The deeds of trust, which included her property, were prepared at GNB by a Mrs. Holley, secretary of Mr. Sneed, GNB’s president. Mr. Evans brought the deeds of trust home and called Mrs. Holley, their nearby neighbor, to come by and notarize them. She came to the Evans residence where, after Mrs. Wallace signed them, Mrs. Holley took her acknowl-edgement. These events transpired February 22, 1974, and the deeds of trust were delivered in due course to GNB.

Subsequently, on April 3,1974, Mrs. Wallace executed an assignment of her $23,-626.28 certificate of deposit to GNB. Then on July 29, 1974, again in her living room, Mrs. Wallace signed a loan extension document under much the same circumstances as existed when she signed on February 22nd. After Mr. Evans and his partner defaulted in payment of the loan, GNB foreclosed on the property resulting in sale of the security collateral including Mrs. Wallace’s land in Harrison County. Other facts will be stated as appropriate to disposition of the appeal.

Decisive is the following query: Was the testimony presented at the trial sufficient to establish fraud on the part of GNB? Our decision must adhere to the rule requiring establishment of fraud by clear and convincing proof. Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 42 So.2d 431 (1949); Martin v. Gill, 182 Miss. 810, 814-815, 181 So. 849, 850 (1938); Christian v. Green, 45 So. 425, 425-426 (Miss.1908).

In her brief, Mrs. Wallace contends:

In the living room of the appellee’s domicile, Mrs. Elaine Holley casually advised the appellee that the documents pertained to the Pearl River County property (Red Gate Farm) and the appellee’s signature was needed since she was the spouse of one of the debtors, Allen Evans. Mrs. Holley verbally and unconditionally represented to the appellee that the signing of the documents was a “routine business matter.” Feeling no compulsion to challenge the propriety of Mrs. Holley’s request and representation, and having the utmost trust and confidence in the appellant bank, the appellee signed the last page of the two documents as presented to her. The appellee was not advised by Mrs. Holley that the documents in question were in fact deeds of trust nor was the appellee advised by Mrs. Holley that the documents created a lien on certain real property owned by the appellee in Harrison County, Mississippi.

Regarding the assignment of her savings account to GNB, Mrs. Wallace states in her brief:

The action of the appellee in executing the document was predicated upon a prior conversation between the appellee and Chunn Sneed of the appellant bank wherein Mr. Sneed induced the appellee to sign the document. The appellee was advised by Mr. Sneed that he could secure a profitable rate of interest on her Certificate of Deposit if she placed the monies under his control or the control of the bank.

Concerning the July 1974 deed of trust which Mrs. Wallace executed, she states in her brief that she

was once again confronted in the living room of her house on 2nd Street. In almost an identical setting, Elaine Holley presented to the appellee another document and advised the appellee that it was a document in which her signature was needed. Mrs. Holley advised the appellee once again that it was “a routine business matter.”

Neither side presented testimony of Mrs. Holley, GNB’s secretary, thereby leaving Mrs. Wallace’s case largely dependent upon her own testimony. GNB’s president Sneed testified, and there is no denial, that Mrs. Holley prepared the documents which Mrs. Wallace signed in her living room. Mr. Evans testified that he had to pledge Mrs. Wallace’s property as security for the GNB loans. As to the extent of Mrs. Wallace’s damages, she presented Dr. Seastrunk who testified that she had suffered severe emotional damage and would, in terms of medical probability, later require in-patient psychiatric care. She also presented lay testimony concerning her depression and hysteria.

In response to GNB’s contention that she failed to establish fraud by clear and convincing proof, Mrs. Wallace’s position is set forth in the following language excerpted from her brief:

In construing the effect of the representations made by Elaine Holley and the effect given to those representations by the appellee, one can easily discern from a review of the entire record in this cause that the appellee was led to believe: (1) That her signature was needed since she was the spouse of Allen Evans; (2) That it was a routine business matter, implying that since she was the spouse of Allen Evans her signature was needed; (3) That it pertained to the property in Pearl River County (Red Gate Farm).

Our analysis of the testimony reveals that Mrs. Wallace was less than clear in her recollection of who told her that signing the papers “was a routine business matter.” During cross examination of Mrs. Wallace, appellant’s attorney recounted her testimony when she was deposed:

Question: My question, if you would like to expand on it, and I’ll be glad to let you, but I believe my question was who told you this was just a routine matter, a routine business matter?
Answer: Allen Evans told me that it was a routine matter or the wording was not specific, I was just led to believe it was a routine matter. In other words, there was no explanation made to me by either party as to all they said.

Immediately thereafter the following colloquy occurred in the courtroom between Mrs. Wallace and appellant’s attorney:

A. And I went on further to say that it was done in such a nonchalant manner that it would be impossible to remember exactly who said what. There was no importance placed on the signing of these papers.
Q. All right. So, now, you really don’t remember who said what, do you, Mrs. Wallace? Be fair with me. You don’t know, do you?
A. (No response.)
Q. On your oath?
A. On my oath?
Q. You don’t know, do you?
A. No. Elaine Holley was there.

Careful examination of the record shows that in her testimony at trial, Mrs. Wallace conceded that in her earlier deposition testimony she noted that it was Mr. Evans who stated that it was a routine matter. As to her version that she was led to believe her signature was needed because the documents “pertained to the property in Pearl River County”-such a conclusion is unsupported by the record. Actually the record of Mrs. Wallace's testimony refutes that GNB’s secretary, Mrs. Holley, made any fraudulent representation. The brief of Mrs. Wallace states that GNB’s testimony as to the representations made by Chunn Sneed that he would secure for her a profitable rate of interest if she would sign the Assignment of Savings Account remains uncontradicted. This assertion is without merit because she testified at trial that there were no communications from Mr. Sneed prior to her signing the two deeds of trust and the assignment.

Testimony contained in the record presents no indication that Mrs. Wallace was in the category of an illiterate person or one of low mentality. To the contrary, she is an experienced school teacher, a college graduate, and a licensed real estate saleswoman. There is no question that she could read and understand the English language. No testimony was introduced to the effect that anyone suggested that she not read or examine the loan documents. Nor did anyone keep her from scrutinizing them. At the time she executed the deeds of trust, she did not ask any questions and did not call the bank about them which in bold print (at the top of the page) showed what they were. After the deeds of trust were executed, with GNB's consent, Mrs. Wallace sold one of the parcels of land. Then it was that the proceeds of the sale were placed in a savings account (certificate of deposit) in her name and assigned to GNB as collateral substituted for the land.

After stating that the case might be weak, the lower court overruled GNB’s motions for a directed verdict and peremptory instruction. The proof introduced by Mrs. Wallace, an adult person of no disability, considered most favorably to her along with all reasonable inferences drawn therefrom in her favor, failed to make out a case sufficient to go to the jury on the theory of fraud. Her testimony leaves the inescapable conclusion that she was not sure who told her that her signing the documents in question was a routine matter.

We are unable to conclude that there was any clear and convincing evidence before the jury from which it might reasonably find that Mrs. Wallace signed either of the loan documents as a result of any fraud, misrepresentation or deceit on the part of GNB. Failure of GNB to thereafter give her details, when requested by her, about the loans made to her then husband and his partner cannot be a proper basis for finding that her signature was fraudulently obtained.

It follows that the decision appealed from must be reversed, and judgment for GNB entered here. In view of our holding, we do not reach other assignments of error.

REVERSED AND RENDERED.

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

SUGG and WALKER, JJ., take no part.

      . It was not until March 1975 that Mrs. Wallace obtained a divorce from Allen Evans. Several months prior to the Red Gate Farm venture negotiations with Gulf National Bank, the Evanses were living apart. At the time of the loan, however, in February 1974, they were reconciled and living together.


author: HAWKINS, Justice,

text:
    Carol Ann ANTHONY v. Clayton FRITH and State Farm Mutual Automobile Insurance Company.
    No. 52325.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    Willard L. Mcllwain, Jr., Mcllwain & Cox, Greenville, for appellant.
    Philip B. Terney, Robertshaw & Meri-deth, Greenville, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

This case is an appeal from the Circuit Court of Washington County. On July 28, 1979, Clayton Frith, while driving an automobile and insured under a conventional automobile liability insurance policy issued by State Farm Mutual Automobile Insurance Company (hereinafter State Farm), struck Carol Ann Anthony, who was walking in a parking area of a shopping center. Frith was intoxicated and Miss Anthony was injured.

She sued, and upon a jury verdict so finding, secured a judgment against Frith for $1,500 in compensatory damages, and $3,500 in punitive damages. No appeal was taken by the defendant.

State Farm paid the compensatory damages, but refused to pay the punitive damages. A writ of garnishment was issued against State Farm, and upon a hearing the circuit judge ruled it was against public policy to require the insurance carrier to pay punitive damages, and dismissed the writ. Miss Anthony appeals.

The insurance policy contains the following pertinent provisions:

COVERAGE A — BODILY INJURY LIABILITY
$ sf: ‡ $ ‡ $
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
(A) bodily injury sustained by other persons, and ... caused by accident ...; and to defend with attorneys selected by and compensated by the company, any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable hereunder even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient. (Italics in policy).

The trial court was of the opinion the terms of the policy covered punitive damages as well in this instance, although it found it unnecessary to pass upon the contract in view of its finding of a public policy inhibition preventing recovery. We likewise agree the terms of the policy cover punitive damages as well as compensatory damages in this case.

As to there being any public policy in this state against allowing recovery for punitive damages in a case as this under the terms of an insurance contract as set forth herein, however, we disagree with the trial court and find it was not against public policy to require the carrier to pay punitive damages.

There is a division of authority among various states on this question, and cogent arguments support opposing points of view. We believe the better reasoned view is to hold it was not against public policy in this case to require the carrier to pay punitive damages.

REVERSED AND RENDERED WITH JUDGMENT HERE FOR APPELLANT.

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

      . The point raised by this appeal is of first impression in this state. The question is addressed in the following authorities:

        Against Public Policy:

        Ging v. American Liberty Ins. Co., 423 F.2d 115 (5th Cir. 1970).

        American Surety Co. of N. Y. v. Gold, 375 F.2d 523 (10th Cir. 1967).

        Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962).

        Hartford Accident & Indemnity Co. v. U. S. Concrete Pipe, 369 So.2d 451 (Fla.App.1979).

        Gleason v. Fryer, 30 Colo.App. 106, 491 P.2d 85 (1971).

        Brown v. Western Casualty & Surety Co., 484 P.2d 1252 (Colo.App. 1971).

        Padavan v. Clemente, 43 A.D.2d 729, 350 N.Y.S.2d 694 (1973).

        Esmond v. Liscio, 209 Pa. 200, 224 A.2d 793 (1967).

        Nicholson v. American Fire & Casualty Ins. Co., 177 So.2d 52 (Fla.1965).

        Crull v. Gleb, 382 S.W.2d 17 (Mo.App.1964).

        Universal Indemnity Ins. Co. v. Tenery, 96 Colo. 10, 39 P.2d 776 (1934).
      1 R. Long, The Law of Liability Insurance 1.27 (1966).
      28 Hastings Law Journal 431 (1976).

        Not Against Public Policy:

        Southern Farm Bureau Casualty Ins. Co. v. Daniel, 246 Ark. 849, 440 S.W.2d 582 (1969).

        Carroway v. Johnson, 245 S.C. 200, 139 S.E.2d 908 (1965).

        Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 383 S.W.2d 1 (1964).

        Travelers Indemnity Co. v. Hood, 110 Ga. 855, 140 S.E.2d 68 (1964).

        Davis v. Detroit Automobile Inter-Insurance Exchange, 356 Mich. 454, 96 N.W.2d 760 (1959).

        American Fidelity & Casualty Co. v. Werfel, 231 Ala. 285, 164 So. 383 (1935).
      7 Appleman, Insurance Law and Practice § 4312 (Supp.1972).
      9 Cumberland Law Review 487 (1978).


text:
    Thomas CHEATHAM and Martha Cheatham v. UNITED COMPANIES MORTGAGE & INVESTMENT OF JACKSON, INC.
    No. 52368.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Rehearing Denied March 18, 1981.
    Firnist J. Alexander, Jr., Brown, Alexander & Sanders, Jackson, for appellant.
    Robert L. Rogers, Jr., Zachary, Gillespie & Rogers, Hattiesburg, for appellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.


author: SMITH, Presiding Justice,

text:
    L. S. CATCHINGS v. STATE of Mississippi.
    No. 52307.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Rehearing Denied March 18, 1981.
    James F. Noble, Jr., Noble & Noble, Brookhaven, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., LEE and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

L. S. Catchings was convicted of grand larceny in the Circuit Court of Lincoln County and sentenced to serve a term of three years imprisonment.

He was charged with the larceny from 84 Mart Convenience Store in Brookhaven of a “money bag” containing money, food stamps and other documents of value, amounting in all to more than $1,400.00.

A review of the record shows that Catchings’ conviction rests almost entirely upon the testimony of one Hayes. It appears that Hayes and Catchings were in the 84 Mart store at the same time, shortly before the above mentioned bag and its contents were discovered to have disappeared.

At the trial, Hayes testified, among other things, that, as he had stood near the door, Catchings started backing out with the bag and asked him to “back out” too, for the purpose of giving Catchings some cover. Hayes testified that he complied with Catchings’ request and that Catchings said, as he left the store with the bag, to meet him behind the Star Drive-In and that they would divide the money.

Hayes said that he went to the place designated for the rendezvous with Catchings but that he could not locate Catchings and never did make contact with him or receive any of the money.

On appeal Catchings assigns for reversal several alleged errors, only one of which has merit.

Obviously, the case against Catchings rests almost entirely upon the testimony of Hayes, his confessed, even if impromptu, accomplice. Catchings requested instructions D-12 and D-13, which instructed the jury to the effect that Hayes testified as an accomplice, and that this testimony should be received and considered with care and caution. The court refused to grant either of these instructions upon the ground that they “singled out the testimony of a single witness.”

The uncorroborated testimony of an accomplice may be sufficient to sustain a guilty verdict. Moore v. State, 291 So.2d 187 (Miss.1974). However, such testimony should be viewed with great caution and suspicion and must be reasonable, not improbable, self-contradictory or substantially impeached. Moody v. State, 371 So.2d 408 (Miss.1979), Jones v. State, 368 So.2d 1265 (Miss.1979), Thomas v. State, 340 So.2d 1 (1976). In Feranda v. State, 267 So.2d 305 (Miss.1972) the conviction of burglary and larceny as an accessory before the fact was reversed, the court finding that the accomplice’s testimony, upon which it was based, was inconsistent, overly vague and almost completely uncorroborated.

While a conviction may rest upon the testimony of an accomplice alone, in this case Hayes’ testimony was neither so reasonable, consistent or uncontradicted, or Catchings’ guilt so evident or clearly proven, as to deprive Catchings of his right to a cautionary instruction relating to the manner in which the testimony of the accomplice should be received and viewed. The refusal to grant the above must be regarded as having been prejudicial error requiring a reversal and new trial.

The conviction is reversed and the case is remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


text:
    W. M. VANDERPOOL v. Elizabeth C. GRISHMAN.
    No. 52425.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Rehearing Denied March 18, 1981.
    Richard B. Brown, Jr., Gulfport, for appellant.
    Charles R. Galloway, Eaton, Cottrell, Galloway & Lang, Gulfport, Thomas J. Wiltz, Jr., Biloxi, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   AFFIRMED.


text:
    James C. GALLOWAY, Jr. v. SOUTHERN FARM BUREAU LIFE INS. CO.
    No. 52434.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Rehearing Denied March 18, 1981.
    H. J. Davidson, Jr., Carter & Davidson, Columbus, for appellant.
    Sam E. Scott, Keith R. Raulston, Heidelberg, Woodliff & Franks, Jackson, for ap-pellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    Shannon Clayton SAXTON v. STATE of Mississippi.
    No. 52278.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Rehearing Denied March 18, 1981.
    Perry E. Brown, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

This case involves an appeal from the Circuit Court of the First Judicial District of Hinds County, wherein appellant was tried and convicted of the crime of armed robbery and sentenced to the custody of the Department of Corrections to serve a term of twenty-five years, with service of nineteen years suspended, six years to be served with five years on supervised probation.

The State expressly accepts appellant’s abstract of record and there is no dispute in the material facts of the case.

As stated in the brief filed on behalf of appellant Saxton, the facts were as follows:

On March 7, 1978, the Defendant was indicted for the July 6, 1977 armed robbery of Mrs. Jean Neighbors. Subsequent to the commission of the said crime, the Defendant was arrested in the State of Louisiana for the commission of the crime and incarcerated in Dixon Correctional Institute. On April 1, 1978, a detainer was placed against the Defendant in accordance with the request of the Jackson Police Department by the State of Louisiana, Dixon Correctional Institute.
On March 2, 1979, the Defendant filed a Motion for a Speedy Trial in the Circuit Court of the First Judicial District of Hinds County, Mississippi.
On April 6, 1979, a letter was sent to the Warden at Dixon Correctional Institute, asking that the Defendant be made available for trial on June 12, 1979. On April 11,1979, the Louisiana Department of Corrections responded by letter, stating that Louisiana was not a party to the interstate compact on detainers, and the Defendant could only be transferred pursuant to an Extradition/Re-extradition Agreement. On June 25,1979, the Attorney General’s Office, State of Mississippi, pursuant to a request by the District Attorney’s office, Hinds County, Mississippi, began extradition proceedings for the Defendant.
On July 30,1979, the Defendant filed a Motion for Dismissal for Lack of a Speedy Trial.
On November 27, 1979, a hearing was held before the Honorable William F. Coleman, Circuit Judge, on Defendant’s said Motion to Dismiss for Lack of a Speedy Trial. At said hearing, Defendant testified that while in the State of Mississippi he was in the companionship of a young lady, but since his incarceration in Louisiana, had lost contact with said alibi witness, due to the extended delay in bringing the Defendant to trial. That his parents had made numerous attempts to locate witness. The Defendant further testified that he had informed the Louisiana officials that he was willing to waive extradition as early as 1978, when he was advised of the hold on him. Defendant’s Motion was overruled by the Court, the Trial Judge stating that since the Defendant had not been arraigned and that pursuant to 99-17-1 of the Mississippi Code of 1972, the 270-day period in which a person must [be] brought to trial does not begin until the Defendant has been arraigned.
On November 27, 1979, at 12:00 Noon, the Defendant was arraigned before the Circuit Court of the First Judicial District of Hinds County, Mississippi, Honorable William F. Coleman presiding, wherein the Defendant pleaded Not Guilty to the charge of armed robbery.
On November 27,1979, some 19 months since indictment, the Defendant was tried and convicted for the crime of armed robbery. The Defendant was sentenced to a term of 25 years in the custody of the Mississippi Department of Corrections, 19 years suspended and five years supervised probation and six years to serve.

The single proposition advanced by appellant for reversal is stated in his brief as follows:

Section 99-17-1 of the Mississippi Code of 1972, as amended, denied the Defendant his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, and Article III, Section 26 of the Constitution of the State of Mississippi.

The State of Mississippi points out that the single issue presented on appeal is whether or not Mississippi Code Annotated section 99-17-1 (Supp.1980) denied the appellant his right to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution and Article III, Section 26 of the Mississippi Constitution. In connection with this conclusion, the State invites the court’s attention to the fact that the appellant did not challenge the constitutionality of section 99-17-1 in the trial court and therefore, the state asserts, the appellant is precluded from raising the issue on appeal under the well settled rule that “matters other than jurisdiction not raised in the trial court may not be raised for the first time on appeal.” Citing Williamson v. State, 330 So.2d 272, 276 (Miss.1976).

The crime occurred on July 6, 1977. Appellant testified that he was arrested and jailed in Louisiana on July 11, 1977 and placed in the Dixon Correctional Institute in Louisiana on February 2, 1978. On March 7, 1978 appellant was indicted in Mississippi and on that date Lt. Cumberland of the Jackson Police Department sent a letter, with a copy of the bench warrant, to the Dixon Correctional Institute, asking that a detainer be lodged against Saxton. By letter dated April 1, 1978, Lt. Cumberland was informed that a detainer against appellant was effective as of that date— April 1, 1978. On March 2, 1979 appellant filed a motion for a speedy trial in the Circuit Court of the First Judicial District of Hinds County, Mississippi. On April 5, 1979 the District Attorney called the Louisiana Department of Corrections, the Louisiana Attorney General’s office and the Probation and Parole Board of Louisiana and ascertained that appellant was serving four years for attempted armed robbery and his release date was November 1, 1979. On April 6, 1979 the District Attorney’s office wrote a letter to the warden of Dixon Correctional Institute stating that Saxton’s case was set for trial on June 12, 1979 and asking the earliest date appellant could be available “for action on this matter pending in our jurisdiction.”

On April 11, 1979, the Louisiana Department of Corrections wrote the District Attorney:

Louisiana is not a party to the Interstate Compact on Detainers. Therefore, we can only transfer Mr. Saxton to you pursuant to an Extradition/Re-Extradition Agreement.

On June 25, 1979, the requisite extradition papers were forwarded to the Mississippi Attorney General to be approved as to form and forwarded to the Governor of Louisiana.

On July 30, 1979 appellant filed a pro se motion for dismissal of charges against him. On August 24, 1979 appellant was served with a copy of the indictment at the Hinds County Detention Center. On October 1, 1979 an amended motion for dismissal was filed. On November 27, 1979, following a hearing on the motions, the motions were denied and the case proceeded to trial which resulted in appellant’s conviction.

The State makes no issue of the fact that Lt. Cumberland is an arm of the prosecutor’s office and his actions may be imputed to the prosecutor, although it is uncontra-dicted that, as a matter of fact, the District Attorney did not know the whereabouts of the appellant until the appellant had filed his motion for a speedy trial.

The State points out that Saxton waited over a year to request a speedy trial, even though he testified that he learned of the “hold” on him in March, 1978. As soon as the prosecutor learned of the whereabouts of appellant, he set in motion the legal proceedings to have him returned for trial which was originally set for June 12, 1979. The delay occasioned by the extradition proceedings was minimal and appellant was returned to Mississippi on August 24, 1979.

It is pointed out that the next time that appellant conceivably could have been tried would have been during the next regular term of the circuit court, which began the first Monday of September, 1979, scheduled to continue for thirty-six days. The case was set for trial and was tried on the first day of the November, 1979 term.

Appellant cites five decisions of the United States Supreme Court, contending that they support his contentions in this case. These cases are: Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970).

The State takes issue with this conclusion and discusses each of the cited cases in its brief.

It is the State’s position that the rule announced in Barker v. Wingo, supra, when applied to the facts of the present case, does not support the premise that appellant Sax-ton was deprived of a speedy trial.

In Barker v. Wingo, the United States Supreme Court reached the conclusion that, in cases in which a question is raised as to the denial of a defendant’s right to a speedy trial, each case must be considered upon an ad hoc basis, and decided upon its own peculiar facts. Instead of attempting to categorize these cases, the Court, in Baker v. Wingo, set out a “balancing test” to be used in passing upon the question, and identified the factors to be considered. These were “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

The United States Supreme Court said: We have shown above that the right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived. But the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.
We, therefore, reject both of the inflexible approaches — the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental. The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.
(407 U.S. at 529, 530, 92 S.Ct. at 2191, 33 L.Ed.2d at 116.)

The Court said further:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
(407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.)

There is no suggestion in the present case of “a deliberate attempt (by the State) to delay the trial in order to hamper the defense”, nor is there anything in the case to show bad faith on the part of the prosecution. On the other hand, it appears that as soon as the prosecuting authorities learned of Saxton’s request to be tried steps were promptly begun to procure his return to Mississippi for trial, and there was no unreasonable delay in obtaining his return.

The fourth factor “prejudice to the defendant” is based largely upon Saxton’s assertion that, because of delay, he could not locate an alibi witness whose name, he said, was “Sandy something”, Saxton asserting that he did not know her name or whereabouts.

Saxton’s memory remained vague as to the identity of this alleged female companion even after the State, on cross-examination, suggested to him that “Sandy something” was Sandy Ann Melson, also wanted in Rankin County, Mississippi on a criminal charge and whose whereabouts the State was anxious to learn.

In the light of Saxton’s inability to supply information as to the whereabouts of the supposed “alibi” witness, even being unable to give her name, it is difficult to see how anything could have been done to procure the presence of this unknown person at any time. There is no imaginable case in which a similar claim might not be made with impunity, since the identity of the claimed witness is unknown and thus the claim would be impossible of being contradicted or refuted by direct evidence. It is this type of “uncontradicted” testimony that is not necessarily conclusive upon the trier of facts, and may be given such weight, if any, as the trier of facts may judge that it merits. The statement of Saxton as to the existence of this unknown alibi witness, in the context of all of the evidence, was not sufficient to show that he was prejudiced by delay on the part of the State in bringing him to trial.

Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), cited by appellant, was a case in which the defendant made a written request for a speedy trial and continued to do so for the next six years. The United States Supreme Court said that there were procedures readily available to the State of Texas to bring him to trial but he was denied all relief. The United States Supreme Court concluded: “Upon, the petitioner’s demand, Texas had a constitutional duty to make a diligent, good-faith effort to bring him before the Harris County court for trial.” (Id. at 383, 89 S.Ct. at 579, 21 L.Ed.2d at 614).

If we assume that the issue as to the constitutionality of Mississippi Code Annotated section 99-17-1 (Supp.1980) had been properly presented in the lower court and, therefore, is before this Court on appeal, we have concluded that the statute is not unconstitutional.

Moreover, the decision of the question of the constitutionality or unconstitutionality of this statute is not necessary to a determination of this case. It is the conclusion of this Court that there was no bad faith on the part of the State in connection with the delay in bringing Saxton to trial, that the actions taken by the State after learning of Saxton’s request for a speedy trial were reasonably and diligently pursued. Nor was it established (despite Sax-ton’s claim that he was unable to locate “Sandy something”) that Saxton suffered any prejudice by reason of the delay. Since no other challenge is made to Saxton’s conviction of the crime of armed robbery, his conviction and sentence must be, and are, affirmed.

AFFIRMED.

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


author: WALKER, Justice,

text:
    Nadine BANKS v. STATE of Mississippi.
    No. 52482.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Rehearing Denied March 18, 1981.

      Ross Barnett, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a judgment of the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein the appellant Nadine Banks, was indicted, tried and convicted of grand larceny and sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections and fined $1,000 and costs.

I.

The appellant assigns as error that the trial court erred in overruling her motion for a directed verdict.

After the state rested, the defendant made the following motion: “Comes now the Defendant and moves for a directed verdict on the grounds that the State has failed to make out a prima facia (sic) case. That’s it.” This motion was overruled by the court.

On appeal, the defendant argues that the stolen $100 was alleged in the indictment to be the property of the “First National Bank.” The Bank was variously referred to during the testimony as The First National Bank or The First National Bank of Jackson, Mississippi. Also, in answer to a question, Mr. Richard G. Wigger, Vice-President of the Bank, stated that the Bank was a corporation.

The appellant states in her brief that:

A fatal variance having resulted between the indictment and the proof as to the ownership of the stolen property, ownership being an essential element, the State could have and should have amended the indictment to conform to the proof but this the State failed and declined to do.

The variance between the indictment and the proof (the indictment did not allege that the First National Bank was a corporation) was not a fatal variance. The indictment could have been amended had the variance been called to the attention of the trial court. Had the appellant mentioned the variance in her motion for a directed verdict, during the trial or in her motion for a new trial, the indictment could then have been amended. Since the variance between the indictment and the proof is not jurisdictional and is not fatal, failure to call the variance to the attention of the trial court is considered a waiver of any objection thereto. Moreover, motions for a directed verdict must be specific and not general in nature. A motion for a directed verdict on the grounds that the state has failed to make out a prima facie case must state specifically wherein the state has failed to make out a prima facie case. In the absence of such specificity, the trial court will not be put in error for overruling same.

II.

The appellant next argues: “The court committed error in re-calling (sic) the jury, when unable to agree on a verdict and giving a second instruction on a subject which was fully covered by the court’s previous written charge.”

Before the jury retired to consider its verdict, the court gave the following instruction as Instruction No. 3 of the court:

The verdict of the jury must represent •the considered judgment of each juror. In order to return a verdict it will be necessary that each juror agree thereto. In other words, all twelve jurors must agree on a verdict in this case. It is your duty as jurors to consult with one another and to deliberate in view of reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

After the jury had deliberated for several hours without reaching a verdict, the trial court called the jury back and gave the following instruction as Instruction No. 10 by the court under circumstances as follows:

BY THE COURT: I understand that you’re unable to reach a verdict, is that correct?
BY THE FOREMAN: Yes, sir.
BY THE COURT: I want to give you one additional instruction and I want all of you — each one of you to listen closely to this instruction and it will be given to you to take into the jury room with you.
“I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
“Accordingly, I remind you that the Court originally instructed you that the verdict of the Jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced that it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.”
I’ll ask you to return to the jury room. It’s now 12:15. If at 1:00 o’clock you have not reached a verdict, if you would knock on the door and let the bailiffs know, we’ll send out for sandwiches for you.
Please return to the jury room.
(Whereupon, the Jury returned to the jury room and at twenty-five minutes until 1:00, the Jury knocked on the door. Court reconvened and the following proceedings were had and done in the presence of the Jury:)
BY THE COURT: Mr. Foreman, have your reached a verdict?
BY THE FOREMAN: Yes, sir.
BY THE COURT: If you would, hand it to the bailiff, please.

The complained of instruction was approved by this Court in Sharplin v. State, 330 So.2d 591 (Miss.1976), as a model instruction which might be given, at the discretion of the trial judge, when a jury is unable to reach a verdict.

The fact that Instruction No. 10 was somewhat repetitious of Instruction No. 3 is an exception to the rule that the court does not given an instruction covered by other instructions. It is to be presumed that the trial judge always instructs a jury of its rights, obligations, and prerogatives in the course of its deliberations during the initial instructions to the jury. Yet, in the interest of justice and to preserve judicial time, the court has devised this instruction that may be given to a jury which announces it is unable to agree on a verdict. This instruction was not intended to, nor do we feel that it does bring any pressure to bear upon a jury to return a verdict that is not the conscientious verdict of each juror.

We are, therefore, of the opinion that the trial judge properly exercised his discretion in giving Instruction No. 10.

Finding no reversible error, the judgment and sentence of the circuit court are affirmed.

AFFIRMED.

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