text:
    Mary WILLIAMS et al., Plaintiff-Appellant, v. Herbert F. HEMPEN et al., Defendant-Appellee.
    No. 8003.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.
    Christopher J. Roy, Alexandria, for plaintiff-appellant.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendants-appel-lees.
    Before GUIDRY, CUTRER and LABORDE, JJ.
   LABORDE, Judge.

This is a tort suit. Mary Williams sues on behalf of her minor son, Christopher, seeking damages for injuries he sustained when a large trash dumpster fell on him, fracturing his left leg. The dumpster was owned by the City of Alexandria and leased to Hempen Motor Company. Named as defendants were Herbert F. Hempen d/b/a Hempen Motor Company; his insurer, North River Insurance Company;' The City of Alexandria; and its insurer, Maryland Casualty Company. Prior to trial, plaintiff settled with the City and its insurer who were then released.

Following trial on the merits, the trial judge ordered plaintiff’s claims against Hempen and North River dismissed.

The issues presented are whether plaintiff is entitled to recover damages from defendants either under Article 2317 or under Articles 2315 and 2316 of the Louisiana Civil Code.

Upon our review of the record, we are convinced that plaintiff is entitled to recovery under Civil Code Article 2317. We reverse the trial court and render judgment in favor of plaintiff.

FACTS

On the evening of August 23,1976,9 year old Christopher Williams was standing near a curb watching several friends who were playing football near the premises of Hempen Motor Company in Alexandria, Louisiana. A large trash dumpster was located alongside Hempen’s building near the curb where Christopher was standing. The dumpster, for some reason, overturned and fell on Christopher, fracturing his left leg.

STRICT LIABILITY UNDER ARTICLE 2317

The first issue is whether plaintiff may recover damages from defendants under Article 2317 which in part provides: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the . . . things which we have in our custody.... ” Our Supreme Court interpreted this article in the leading case of Loescher v. Parr, 324 So.2d 441 (La.1975). The Court held that in order to establish liability under Article 2317, the plaintiff must prove: (1) the thing was in defendant’s custody; (2) the thing had a vice or defect; and (3) the injury or damage occurred through the vice or defect. Upon proof of these elements, the “custodian” is held liable unless he proves that the damage was caused by victim fault, third party fault, or an irresistible force. Loescher v. Parr, supra.

At the trial level, the judge denied recovery to plaintiff under Article 2317, holding that plaintiff failed to prove Hempen’s custody or control of the dumpster or that it was defective.

Was the Dumpster in Hempen’s Custody or Control?

On appeal, defendants contend that the dumpster was owned by and leased from the City who was responsible for the upkeep of the dumpster. Under these circumstances, they urge that the City was the sole custodian of the dumpster and that the trial judge was correct in concluding that plaintiff failed to prove Hempen’s custody or control of the dumpster.

Plaintiff counters by arguing that the record unquestionably established that Hempen was the custodian or possessor of the dumpster.

The Supreme Court explained rather extensively its interpretation of the term “custody” in Loescher v. Parr, 324 So.2d at 449, footnote 7:

“... ‘[T]he things in one’s care are those to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usufruc-tuary, the borrower for use and the repairman, among others.... The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it.... ” Verlan-der, We Are Responsible .. ., 2 Tulane Civil Law Forum, No. 2, p. 64 (1974).

Likewise, in Trahan v. Liberty Mutual Insurance Company, 348 So.2d 205 (La.App. 3rd Cir. 1977), writ refused, 351 So.2d 163 (La.1977), our court in discussing the custody elements set forth in the Loescher case stated: “Liability under C.C. Article 2317 does not depend upon ownership of the thing but rather depends upon custody at the time of the damage.” (Emphasis supplied.)

With these principles in mind, we return to the facts in the instant case. The record established that the dumpster was owned by the City, but that pursuant to an oral lease, the dumpster had been delivered to Hempen Motor Company for its exclusive use in the disposal of its trash. Hempen had used the dumpster for approximately four or five years prior to Christopher’s accident. During those four or five years, owner Frank Hempen, Sr. freely admitted that the dumpster was in their possession and that it was utilized exclusively by Hempen employees. Several Hempen employees, along with General Manager, Frank Hempen, Jr., testified that they deposited trash in the dumpster daily, and that whenever convenient for those who picked up trash, they would roll the dumpster to the trash collection site.

Other evidence of Hempen’s control supplied by the record indicates that it was Frank Hempen, Jr., or Hempen’s janitor, James Ferrell who chocked the wheels of the dumpster as a safety precaution after discovering its propensity to roll; that Frank Hempen, Jr. once straightened the dumpster’s bent sides; that Frank Hempen, Sr. inspected the dumpster daily; and that after the accident, Frank Hempen, Jr. decided to move the dumpster inside the Hempen building.

In contrast, the City, though it owned the dumpster, exercised little or no direction or control over it. For example, after the dumpster was delivered to Hempen, the only time the City exercised control over it was when it emptied the dumpster. This occurred bi-weekly and lasted only a few minutes. In addition, the record shows that during the four to five years that Hempen possessed the dumpster prior to the accident, the City never repaired, serviced or maintained it.

Under the reality as it existed at the time Christopher was injured, it was Hempen, as lessee and possessor, who exercised direction and control over the dumpster and who derived benefit from it. We conclude that Hempen was the custodian of the dumpster.

Did the Dumpster Have a Vice or Defect?

Defendants, in brief, concede that Christopher was standing next to the large trash container, “when for no apparent reason, the container fell on him, injuring his left leg.” (Defendant’s Brief p. 1). Yet, they contend that the dumpster, “being properly used and loaded with the lid closed, standing motionless on level ground is not defective.”

Plaintiff, on the other hand, contends that the dumpster overturned because it was defective.

The trial judge held that plaintiff failed to prove that the dumpster was defective, adding that no conclusive evidence tending to prove any defect in the dumpster was introduced.

We again refer to the Loescher case where the Supreme Court held that an owner or a custodian of a defective thing is strictly liable for the damage caused by its defect. The Court defined the concept of “defect” broadly to include any unreasonable risk of harm to others.

In Marquez v. City Stores Co., 371 So.2d 810 (La.1979), the Supreme Court added a bit of gloss to its earlier definition of “defect”. In the Marquez case, plaintiff established that a child was injured when his tennis shoe got caught in an escalator, resulting in subsequent amputation of his toe. The Court was asked to decide whether plaintiff had proved a defect in the escalator. The Court reviewed the record and noted that several thousand people had used the escalator since it was installed in 1972 without a foot becoming wedged in it. Nonetheless, the Court held that plaintiff proved a defect reasoning, “The fact that this escalator caught this child’s shoe is an unusual occurrence in itself which would not have happened had this escalator not been defective.” Thus, in effect, plaintiff was aided in proving that the escalator was defective by showing an unusual occurrence.

We return to the instant case to determine whether plaintiff proved a defect in the dumpster. The record establishes that the dumpster was constructed of sheet metal. Its dimensions were four feet high by four and a half feet wide by approximately three feet deep. The dumpster had four wheels and when empty, weighed 580 pounds. Further, Phillip Bordelon, Superintendent of Sanitation for the City, testified that the dumpster is designed such that it can be tilted easily into the sanitation trucks.

The dumpster was located on a sidewalk near the rear entrance of Hempen’s premises. The sidewalk was at a slight slope or incline down to the curb and street. There was abundant testimony establishing that it was common knowledge that the dumpster rolled and that a brick was positioned behind one of the wheels to keep the dumpster in place. Frank Hempen, Sr. testified that the brick was put there as a safety precaution to keep the dumpster from rolling or moving down the inclined sidewalk. (Tr. 67.) Frank Hempen, Jr. agreed that the brick was purposely used to keep the dumpster from rolling. (Tr. 134.)

There was also testimony elicited from Hempen employees that the dumpster was occasionally found “tumped” over when they arrived for work in the morning. Leonard Cooley, a former mechanic at Hempen, testified that he found the dumpster turned over in the street on two occasions. Cooley’s testimony was corroborated by testimony from James Ferrell, the Hempen janitor, who likewise testified that on two mornings, upon finding the dumpster overturned, he and other employees righted it and replaced the trash that had fallen out.

Upon our review of the record, and in light of the principles enunciated above, we conclude that the fact that this dumpster overturned for no apparent reason is an occurrence which would not have happened had it not been defective. Marquez v. City Stores Co., supra; Vicknair v. T. L. James Company, Inc., 375 So.2d 960 (La.App., 4th Cir. 1979), writ denied, 379 So.2d 10 (1980). We hold that plaintiff proved the dumpster was defective.

Did the Injury Occur Through the Defect of the Dumpster?

Upon our review of the record, we have no difficulty concluding that Christopher’s ■ injury occurred through the dumpster’s defect.

DEFENSES

The only way Hempen and its insurer can escape liability is to show that the damage was caused by Christopher’s fault, by third person fault, or by an irresistible force. Loescher v. Parr, supra.

Christopher testified that he remembers standing near the dumpster next to his friend, Jodie McCree, and that the dumpster fell on him. He did not know what caused it to fall but he denied grabbing or pulling the dumpster.

Jodie McCree testified that he was watching the ongoing football game when the dumpster fell on Christopher but that prior to that neither Christopher nor anyone or anything else touched or disturbed the dumpster. Defendants failed to prove fault of the victim.

Defendants managed to prove that the City owned the dumpster. There was also testimony that an oral lease existed between the City and Hempen and that pursuant to this lease, the City was responsible for the upkeep of the dumpster. We find this evidence insufficient to prove fault of a third party.

Defendants introduced no evidence tending to establish that the dumpster overturned due to an irresistible force.

We conclude that defendants have failed to carry their burden of proof, and therefore they are liable for the damages to Christopher.

DAMAGES

Because we reverse the trial court judgment, we must now determine the amount of damages due Christopher. Our authority do to so comes from LSA-C.C.P. art. 2164 which provides that appellate courts may “render any judgment which is just, legal, and proper upon the record on appeal.” In addition, the Supreme Court in Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), ruled that Courts of Appeal should decide the entire case when the record is complete.

As a result of the incident, Christopher received an open fracture of his left leg. He was hospitalized for about ten days and underwent two surgical procedures for debridement of his injuries.

Thereafter he wore a long-leg cast for two months, followed by a couple of months in a short-leg cast.

Dr. John Weiss, an orthopedic surgeon, examined Christopher about fourteen months after the incident. Dr. Weiss was qualified as an expert at the trial and we quote from his testimony. Pursuant to his examination, Dr. Weiss found:

“His leg lengths were equal. The alignment of the left leg appeared quite normal. There was a little indentation about the junction of the middle and distal thirds of the leg over the anteromedial surface. In other words, this was a little scarring. There was .... I have on here: “no tenderness of same.” I think I mean minimal tenderness of same. Had full range of motion of his ankle .... the left compared to the right. I did X-ray him. Two views of his left tibia revealed an old healed fracture with excellent alignment of the tibia and fibula, there’s junction in the middle and distal thirds. I felt he had an old fracture at the junction of the middle and distal thirds of the left tibia and fibula and that no treatment was indicated.” (Tr. 98)

Dr. Weiss further testified:

“It is an excellent alignment and excellent healing and appears quite strong. In fact, if he had excessive stress on this site, I suspect, if he developed any fracture in the future at some time, it would not be at that level but above or below it.” (Tr. 99)

When asked whether Christopher would have any impairment in the future, Dr. Weiss answered that he would have some sensitivity over the scar but that he did not think he will have any physical impairment, loss of physical function or long-term problems. (Tr. 112)

Based on the evidence, we award plaintiff $12,000 for Christopher’s injuries and $1,012.05 for special damages. This award is reduced by one-half in accordance with the joint stipulation entered between the parties.

CONCLUSION

Plaintiff has proved that the dumpster which caused the damages was in the custody of Hempen Motor Company, that the dumpster was defective and that Christopher’s damages occurred through this defect. Defendants failed to prove that the damage was caused by victim fault, by third party fault, or by an irresistible force. Therefore, defendants are liable. LSA-C.C. art. 2317. Our finding of strict liability under Article 2317 pretermits the need for discussion of liability under a negligence theory.

For these reasons, the judgment of the trial court ordering plaintiff’s suit dismissed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Mary Williams and against defendants, Herbert F. Hempen and North River Insurance Company, in the amount of $6,506.02 with legal interest from date of judicial demand until paid. Defendants are cast for all costs, both at trial level and on appeal.

REVERSED AND RENDERED.

      . By agreement the attorney for defendants Herbert F. Hempen and North River Insurance Company and the attorney for plaintiff Mary Williams jointly stipulated that “the City of Alexandria was at fault in causing the injuries and damage of Christopher Williams and Mary Williams as described in the petition ...” Accordingly, they agreed “that any judgment which may be rendered herein against Herbert F. Hempen and/or North River Insurance Company will be reduced by one-half.”


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Julia WEST, Plaintiff-Appellee, v. BELDEN CORPORATION, Defendant-Appellant.
    No. 8017.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.
    Gaharan & Wilson, Donald R. Wilson, Jena, for defendant-appellant.
    Hal J. Scott, Daniel W. Richey, Ferriday, and H. James Lossin Sr., Jonesville, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

This is a workmen’s compensation suit. The defendant-employer, Belden Corporation, has appealed a judgment of the district court awarding the plaintiff-employee, Julia West, benefits for temporary total disability, plus penalties and attorney’s fees. Defendant assigns as errors the trial judge’s findings that (1) plaintiff is temporarily totally disabled; and (2) defendant was arbitrary and capricious in terminating plaintiff’s compensation benefits.

The parties stipulated to the following facts. On November 18,1977, plaintiff sustained an injury to her lower back while stacking cartons on a pallet in the course and scope of her employment. Defendant paid plaintiff workmen’s compensation benefits from November 18,1977 until April 30, 1978. The benefits were terminated on the basis of a medical report submitted by Dr. David A. Ball dated April 24,1978, in which he concluded that, plaintiff was not disabled and could return to work. Dr. Ball examined plaintiff again on July 11,1978, and in a letter to defendant dated July 12, 1978, confirmed his conclusion that plaintiff was able to return to work.

Plaintiff was treated by several physicians, who agreed that she suffered a lower back injury. The only conflict in the medical testimony concerns the duration of plaintiff’s injury.

On November 23, 1977, plaintiff went to Dr. Dick Thomae, her regular physician, complaining of low back pain. He prescribed various medications, heat and bed rest. Plaintiff returned to Dr. Thomae three days later complaining of increased pain and he hospitalized her for three days. X-Rays that were taken appeared to be normal, but there were muscle spasms in plaintiff’s lower back. Her condition improved, and she was released. On December 1, 1977, she returned to Dr. Thomae complaining of increased pain, and he determined that her symptoms had recurred. On December 19, 1977, he referred plaintiff to Dr. Ball, an orthopedic surgeon in Natchez, Mississippi.

Dr. Ball examined plaintiff on December 21, 1977 and placed her in the hospital. While hospitalized, plaintiff was placed in traction and underwent treatment by a physical therapist. Her condition improved, and she was released. Dr. Ball again placed plaintiff in the hospital on January 18,1978, when her symptoms recurred. A myelo-gram and x-rays, which were taken, appeared to be normal. Dr. Ball diagnosed her injury as a lumbosacral strain. She returned to Dr. Ball on several occasions complaining of pain in her lower back and left leg, and he continued to treat her with various medications. On April 4, 1978, Dr. Ball examined plaintiff, and finding no objective evidence of any injury causing her complaints of pain, he concluded that she could return to work. He affirmed this conclusion after examining plaintiff again on July 11, 1978.

On July 17, 1978, plaintiff was examined by Dr. W. C. Coney, since Dr. Thomae no longer practiced at the hospital that she went to for medical treatment. Dr. Coney diagnosed plaintiff’s condition as a chronic lumbar strain and had her hospitalized. At the time, plaintiff suffered from muscle spasms, walked with a slight limp, and had difficulty rising from a chair. Her condition improved and she was released. On August 22, 1978, plaintiff returned to Dr. Coney complaining of increased pain in her lower back. Dr. Coney concluded that plaintiff’s injury would result in her experiencing periodic pain until her condition improved with the passage of time. Since August 22, 1978, Dr. Coney has seen plaintiff eight times concerning her complaints of pain. The last examination was made on March 19, 1979. At that time, Dr. Coney did not believe that plaintiff was capable of returning to work.

On May 24,1978, plaintiff was sent to Dr. Francis C. McMains, an orthopedic surgeon, for evaluation. Dr. McMains diagnosed her injury as a chronic lumbosacral strain and considered her unable to return to work at that time.

At the trial, plaintiff testified to experiencing recurring pains in her lower back and left leg, which prevented her from undertaking most physical activities. She testified that the treatments provided temporary relief, but that the pain returned when she exerted herself. There is no evidence that plaintiff ever suffered a previous back injury.

In finding that plaintiff is temporarily totally disabled, the trial judge relied upon the presumption stated in Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977):

“A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.”

This presumption applied to the issue of the causal connection between the accident and the disability. It does not alter the plaintiff’s burden of proof. Malone and Johnson, Louisiana Civil Law Treatise, Worker’s Compensation, (2d ed. 1980), § 252, p. 549. Relying upon the testimony of Dr. Ball, defendant contends that plaintiff recovered from any injuries suffered in the accident as of April 25, 1978, making the presumption set out in Lucas inapplicable.

It is apparent, however, that the trial judge, in weighing the evidence, found the testimony of plaintiff and the other physicians to the effect that she was still suffering from injuries received in the accident to be more persuasive. When there is a conflict in the testimony, a trial court’s reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed upon review. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978).

We do not find the trial judge’s conclusion that plaintiff is still suffering from injuries received in the accident to be clearly wrong. Thus, the trial judge’s application of the presumption set out in Lucas was not erroneous.

The next issue to be considered is the trial judge’s award of penalties and attorney’s fees. In his written reasons for judgment, the trial judge stated:

“The termination of benefits may have been warranted. Thereafter, the persistent refusal to reinstate benefits and to pay the ongoing medical expenses was not. It is not clear when the defendant gained the information that should have prompted reinstatement of benefits. They did get notice that plaintiff’s counsel considered the termination premature in a letter dated August 22, 1978. That letter alone was not enough to require reinstatement. I believe, however, that by May 30, 1979, after the depositions of Dr. Thomae and Dr. Coney had been taken, that benefits should have been resumed at the rate of $82.40 per week. Penalty interest will therefore be required on all past due weekly benefits that were payable after May 30, 1979. Defendant must pay all past due weekly benefits whether subject to penalty or not.”

Defendant argues that it was entitled to rely upon the information provided by Dr. Ball in terminating plaintiff’s medical and compensation benefits. Neither this court nor the trial court disagrees with this contention. However, when an employer receives information showing disability at a later date, it may not blindly rely upon an initial optimistic report and avoid penalties for arbitrary nonpayment of benefits due a disabled workman. Walker v. Gaines P. Wilson & Son, Inc. Co., 340 So.2d 985 (La.1976); Carter v. American Mutual Liability Insurance Co., 386 So.2d 1072 (La. App. 3rd Cir. 1980). Thus, the issue is whether defendant received sufficient information concerning plaintiff’s disability to make its refusal to reinstate her benefits arbitrary.

We note at the outset that the trial judge relied partially upon the testimony of Dr. Thomae in finding that defendant arbitrarily refused to reinstate plaintiff’s benefits. Dr. Thomae’s testimony reveals that he did not treat plaintiff for her back injury after referring her to Dr. Ball, however. Thus, his testimony is not relevant to this issue.

The record does contain a letter written by plaintiff’s attorney on August 22, 1978, asking defendant to reinstate plaintiff’s benefits, which contained a copy of Dr. McMains’ medical report. In the report, Dr. McMains stated that plaintiff suffered a lumbosacral sprain, and that in his opinion she was disabled and could not return to work. Dr. Coney’s testimony also shows that defendant was made aware that he hospitalized plaintiff to treat her injury, that after her release she continued in his care and that in his opinion she was disabled at that time.

Defendant argues that this case is similar to Hall v. Houston General Insurance Company, 377 So.2d 561 (La.App. 3rd Cir. 1979), a case in which this court affirmed the trial court’s denial of penalties and attorney’s fees upon finding that the defendant had good cause not to resume payment of compensation benefits. In Hall, however, the defendant upon receiving a medical report indicating that the plaintiff was still disabled after termination of benefits, had the plaintiff re-examined to see if the disability was work-related.

In the present case, defendant received information from two physicians indicating that plaintiff was still disabled and unable to return to work after the termination of benefits. Despite this information, defendant persistently refused to reinstate plaintiff’s benefits, choosing to rely upon Dr. Ball’s earlier medical report. Under those circumstances, we find no error in the trial court’s award of penalties and attorney’s fees.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the defendant-appellant.

AFFIRMED.


author: CUTRER, Judge.

text:
    Frank D. RANDLE, Sr., Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8029.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.

      Neblett, Weeks & Neblett, David H. McCroskey, Alexandria, for plaintiff-appellant.
    Trimble, Randow, Smith & Wilson, James T. Trimble, Jr., Alexandria, for defendants-appellees.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a workmen’s compensation suit. Plaintiff, Frank D. Randle, Sr., instituted this suit against his employer, Robert Pospi-sil, d/b/a Pospisil Furniture Store, and Commercial Union Insurance Company, the employer’s workmen’s compensation insurer. Plaintiff seeks to recover benefits for total and permanent disability. The trial court rendered judgment in favor of defendants and dismissed the suit. From this judgment plaintiff has perfected this appeal. We affirm.

Plaintiff was a long-time employee of defendant’s whose duties were to drive a truck and deliver furniture. Plaintiff alleges that on June 30, 1978, while delivering a sofa, he experienced a sharp pain in his neck and shoulder. Plaintiff continued to work until July 6, 1978. The pain grew more intense. He went to the emergency room of a local hospital and was seen by Dr. Denzer. This physician prescribed medication and released plaintiff. Plaintiff then consulted Dr. James E. Hines on July 10, 1978. Subsequently plaintiff was seen by four physicians, including Dr. C. Babson Fresh who performed surgery to remove a disc in September 1979.

The issue on appeal is whether plaintiff incurred an accident while in the course and scope of his employment.

The testimony concerning the occurrence of an accident is highly disputed.

Plaintiff testified that he felt pain in his shoulder when he lifted a sofa that he was delivering to a Mrs. Johnson. Plaintiff’s father-in-law, who was with plaintiff when he delivered the sofa, testified that after completing the delivery, plaintiff told him that he had a pain in his shoulder. Plaintiff’s wife also stated that plaintiff had told her of the pain. Plaintiff did not mention any pain to Mrs. Johnson, the lady who received the sofa. Plaintiff stated that he reported the accident to his immediate supervisor, H. J. Vead. Vead, however, denied such a report.

Mr. Pospisil, the employer, testified that plaintiff didn’t report an accident to him until December 1978, six months after the accident. Upon receiving this information, Pospisil made out an accident report and sent same to his insurer. An examination of the history on the hospital records, when plaintiff went to the emergency room on July 6, 1978, reflects that there was no report of his shoulder and neck complaints being work related.

Dr. Hines saw plaintiff several times for treatment in July 1978. The history of the report of this physician reflects that plaintiff was complaining of shoulder and neck pain but made no reference to an accident on the job. Plaintiff’s wife, a state employee, carried group insurance. During the period between August 21,1978, and March 29, 1979, plaintiff filed ten disability claim forms with National Alliance Life Insurance Company. Each of these forms were signed by plaintiff and each contained the question: “Is this disability due to your occupation?” The answer in each of the ten forms was “No.” Dr. Hines also filled out ten forms to the same company verifying disability but in each instance Dr. Hines answered “No” to the question of whether plaintiff’s condition was due to injury arising out of plaintiff’s employment.

Dr. Douglas Gamburg examined plaintiff on November 15, 1978, in regard to social security benefits. This physician’s report makes no reference to a job related accident. The only history states that plaintiff experienced pain in the neck and shoulder in June 1978.

Dr. Rufus Craig also examined plaintiff for social security benefits on October 17, 1978. His report stated as follows:

“In 1977 he first noted the onset of pain in the upper aspect of the right shoulder which later moved into the lateral aspect of the neck and into the right upper extremity. This was made worse by rotation of the neck. After prolonged sitting his upper extremity would become numb especially in the right thumb. Because of persistence of this pain he eventually felt he could no longer work....”

Dr. D. M. Kingsley examined plaintiff April 3, 1979. He stated that plaintiff told him that he had developed a pain in the neck on July 6, 1978 while carrying a sofa. This doctor went on to say that plaintiff said that neck pains had been present for at least three years before the examination.

Dr. C. B. Fresh, the neurosurgeon who performed neck surgery on plaintiff in 1979, stated that when he first saw plaintiff on June 25,1979, plaintiff did give him a history of a job related accident occurring in June 1978.

This suit was filed March 16, 1979. We must note that there were several physicians who saw plaintiff before that date (Hines, Gamburg and Craig). Plaintiff did not report a work related accident to any of these physicians. The two physicians who gave a history of a work related accident (Kingsley and Fresh) examined plaintiff after suit was filed.

Gretchen McDavis, an insurance adjuster, interviewed plaintiff on August 24, 1978, concerning his claim for disability. This interview was taped and played for the trial court. It was transcribed into the record. This testimony reflects that plaintiff told this witness that he wasn’t hurt on the job. When asked about his arthritic condition and how long it had bothered him, he stated he had been having pains for a long, long time.

Plaintiff was drawing social security benefits based upon disability at the time of trial.

The burden of proof in compensation suits was described by the Supreme Court in Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974), as follows:

“Although procedural rules are construed liberally in favor of workmen's compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. ..."

The standard of review which we must apply to questions of fact was stated by the Supreme Court in Canter v. Koehr-ing Company, 283 So.2d 716 (La.1973), as follows:

“When there is evidence before the trier of fact, which upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error....”

“Manifest error” was explained by the court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), as follows:

"... We said the appellate court should not disturb this factual finding in absence of manifest error .... ‘Manifestly erroneous’ in its simplest terms means ‘clearly wrong.’ We said then that the appellate court should not disturb such a finding of fact unless it is clearly wrong. ...”

The evidence, taken as a whole, with a reasonable evaluation of credibility by the trial court, indicates that the decision of the trial court, that plaintiff had not proved his claim by a preponderance of the evidence, is not clearly wrong.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to the plaintiff-appellant, Frank D. Randle, Sr.

AFFIRMED.


author: GULOTTA, Judge.

text:
    FIRST NATIONAL BANK OF COMMERCE v. Benjamin BERNARD.
    No. 12389.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Newman & Drolla, Richard J. Tomeny, Jr., New Orleans, for plaintiff-appellee.
    Benjamin Bernard, in pro. per.

      Before SAMUEL, REDMANN and GU-LOTT A, JJ.
   GULOTTA, Judge.

Plaintiff-appellee, First National Bank of Commerce, has filed a motion to dismiss defendant’s devolutive appeal on the ground that it “was not perfected within the delay authorized by law... . ”

Defendant represented himself in proper person in this suit in city court on a promissory note. Judgment on the merits was rendered in favor of plaintiff on July 9, 1980. Defendant applied for a new trial on July 14, 1980. The petition for appeal was filed on November 21, 1980.

The order denying the motion for a new trial was signed on September 2, 1980 and recites that the matter came for hearing on that date. The appearances noted in the September 2 order were the attorney for plaintiff and the defendant in proper persons. Hówever, a copy of this order denying the motion for a new trial contains a handwritten notation dated November 12, 1980, signed by the minute clerk, which reads:

“Since Defendant was not notified of above decision, per Judge Steiner, I prepared a copy of this Order and gave it to him today.”

LSA-C.C.P. Art. 5003(A) provides for a ten-day-appeal period from a city court judgment. LSA-C.C.P. Art. 5003(B) further provides:

“B. Where an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.”

LSA-C.C.P. Art. 4917 sets forth those instances where notice of judgment is required. In pertinent part, this article provides:

“A. Notice of judgment must be given when:
(2) The case has been taken under advisement; or * * *

Reading the September 2 order, which recites that the parties were present at the hearing on the motion for a new trial, together with the clerk’s handwritten notation of November 12, which recites that the defendant was not notified of the order denying the motion, leads us to conclude that the trial judge apparently took the motion for a new trial under advisement and rendered his decision outside of the presence of the defendant. Under these circumstances defendant was entitled to notice of judgment pursuant to LSA-C.C.P. Art. 4917(A)(2). Under LSA-C.C.P. Art. 5003(B), the ten-day-appeal period therefore commenced from November 12, 1980 when defendant was notified of the order denying a new trial. Considering the record in a light most favorable to the appellant, we hold that the petition for appeal filed on November 21, 1980 was timely.

Accordingly, we deny the motion to dismiss the appeal.

MOTION DENIED.

      . This order apparently erroneously contains the notation that it was filed on September 4, 1980.

      . Appeals are favored in law and will be disallowed or declared abandoned only for substantial cause. Walker v. Jones, 253 La. 908, 221 So.2d 44 (1969); Koerner & Lambert, Etc. v. Allstate Ins. Co., 363 So.2d 546 (La.App. 4th Cir. 1978).


author: ELLIS, Judge:

text:
    Juanena ARNOLD, d/b/a Nena Arnold and Company, Realtor, v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY (BLUE CROSS) et al.
    No. 14072.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied April 13, 1981.
    Bobby L. Forrest, Baton Rouge, for plaintiff-appellant Juanena Arnold d/b/a Nena Arnold & Co., Realtor.
    Michael H. Bagot, New Orleans, John H. Gniady, New Orleans, for defendant-appel-lee Pringle-Associated Mortg. Corp.
    Tom F. Phillips, Baton Rouge, John R. Tharp, Baton Rouge, for defendant-appellee Louisiana Health Service and Indem. Co. (Blue Cross), et al.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Plaintiff, Juanena Arnold, d/b/a Nena Arnold & Company Realtor, instituted this action against defendants, Louisiana Health Service and Indemnity Company (Blue Cross), Pringle-Associated Mortgage Corporation (Pringle), and numerous individuals, for a commission on the purchase of certain real property by Blue Cross from Pringle. Plaintiff dismissed her claim against all defendants except Pringle, reserving her right to proceed against it. Trial on the merits of plaintiff’s claim against Pringle resulted in judgment in favor of Pringle and against plaintiff, dismissing the action at her cost. Plaintiff appealed.

The record reveals that the facts of this case are, essentially, undisputed. In 1976, Blue Cross authorized one of its vice-presidents, Frank Holloway, to locate a site for construction of a new facility. He contacted several realtors, including plaintiff. Plaintiff submitted several prospective sites, one of which was the Bluebonnet tract, the property with which we are concerned herein.

The construction project was deferred until 1978, when Mr. Holloway again contacted plaintiff. Plaintiff again submitted several sites, including the Bluebonnet tract. Mr. Holloway authorized plaintiff to negotiate on behalf of Blue Cross for the purchase of the tract. This authorization was evidenced by a letter from Mr. Holloway to plaintiff. No specific arrangements were made regarding plaintiff’s commission.

Plaintiff contacted J. Burton LeBlanc, agent for Interchange Development Corporation, the purported owner of the property. Apparently, Mr. LeBlanc approved of the proposed purchase price; and plaintiff proceeded to close the deal.

Plaintiff and Mr. Holloway met with Robert Kennon, the attorney for Blue Cross, to discuss the proposed purchase of the Bluebonnet tract. On the subject of plaintiff’s commission, Mr. Holloway suggested that the purchase agreement could provide for a total purchase price and authorize Blue Cross to distribute the monies to all parties concerned, including plaintiff. Mr. Kennon, however, declined to draft the purchase agreement at that time due to the possible interests of other principals.

Thereafter, plaintiff again contacted Mr. LeBlanc, who eventually informed her that the Bluebonnet tract was heavily mortgaged in favor of Pringle. He advised her to contact Mr. Sklar, an official of Pennam-co, of which Pringle was a wholly-owned subsidiary. Mr. Sklar was in charge of administering the Bluebonnet tract.

In response to plaintiff’s inquiry, Mr. Sklar indicated that Pringle was interested in selling its mortgage interest in the property. However, he advised plaintiff that Pringle would not pay her commission. Plaintiff then suggested the same arrangement proposed by Mr. Holloway, i. e., that her commission could be deducted from the excess of the amount her client was willing to pay over the amount Pringle desired to net. Plaintiff even admitted at trial that she considered Blue Cross as her client and that she had no contract of employment with Pringle.

Plaintiff arranged contact between Mr. Sklar and Mr. Rietz, President of Blue Cross. Shortly thereafter, plaintiff was excluded from further negotiations. Pringle and Blue Cross consummated an agreement whereby Pringle eventually obtained full ownership of the Bluebonnet tract and sold it to Blue Cross. Plaintiff received no commission.

Obviously, Blue Cross retained plaintiff to negotiate on its behalf for the purchase of the property. Plaintiff has settled her claim against Blue Cross for a commission. She now seeks a commission from Pringle as the “procuring cause” of the real estate transaction. She submits that she is entitled to a commission from Pringle either under contract or under the doctrine of quantum meruit.

In order to receive a commission for the sale of property, a real estate broker must prove an agreement to pay on the part of the person from whom the commission is sought. Dunaway Realty Co., Inc. v. Pulliam, 364 So.2d 198 (La.App. 1st Cir. 1978); Teague v. Ashy, 278 So.2d 516 (La. App. 3rd Cir. 1973). The agreement may be either written or oral. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977); Young v. Smith, 366 So.2d 982 (La.App. 1st Cir. 1978).

Plaintiff had no written agreement with Pringle and is proceeding herein on the basis of an alleged oral agreement. After careful review of the record, we agree with the finding of the trial court that no agreement, express or implied, existed between plaintiff and Pringle regarding a commission. Rather, we feel that it was understood by all parties that Blue Cross was plaintiff’s only client and that she must rely solely upon that relationship for her commission. Hence, we reject plaintiff’s claim for a commission from Pringle on the basis of some oral agreement.

Likewise, we reject plaintiff’s claim under the doctrine of quantum meru-it, which may serve as the basis for a real estate commission only in the event that some employment or agreement exists. Bender v. International Paint Company, 237 La. 569, 111 So.2d 775 (1959); Sanders, Miller, Downing & Kean v. Perkins, 269 So.2d 573 (La.App. 1st Cir. 1972). The fact that plaintiff may have been the “procuring cause” of the transaction does not alter the result. See Bender v. International Paint Company, supra. Having found that no agreement, written or oral, express or implied, existed between plaintiff and Pringle regarding a commission, we hold that she is not entitled to one under the doctrine of quantum meruit.

For the foregoing reasons, the judgment of the trial court is affirmed; costs of this appeal are to be borne by plaintiff.

AFFIRMED.


author: FORET, Judge.

text:
    NATCHITOCHES ELECTRIC, INC., Plaintiff-Appellant, v. Harold McCAIN, Jr., et al., Defendants-Appellees.
    No. 8201.
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 1981.
    Harrington & Harrington, Eric Harrington, Natchitoches, for plaintiff-appellant.
    Whitehead & McCoy, Kenneth McCoy, Jr., Natchitoches, Cook, Yancey, King & Galloway, James R. Jeter and Herschel E. Richard, Jr., Shreveport, Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., John G. Williams, Natchitoches, for defendants-appellees.
    Before CULPEPPER, FORET and SWIFT, JJ.
   FORET, Judge.

Natchitoches Electric, Inc. (Plaintiff) appeals from a judgment of the trial court granting a stay order in favor of defendants: McCain-Winkler Partnership; George Minturn; and The Continental Casualty Company.

This action was consolidated with another action that was recently before us on appeal, I.D.C., Inc. v. McCain-Winkler Partnership, 396 So.2d 590 (La.App. 3 Cir. 1981).

For the reasons expressed in I.D.C., Inc. v. McCain-Winkler Partnership, supra, the stay order issued by the trial court herein is reversed, vacated and set aside, and the case is hereby remanded to the trial court for further proceedings consistent with our views expressed there.

All costs of this appeal are assessed against the defendants-appellees.

REVERSED AND REMANDED.


author: LEE, Justice,

text:
    Mary Lee MOSLEY v. STATE of Mississippi.
    No. 52445.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied April 29, 1981.

      Roy Pitts, Frank Coleman, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Mary Lee Mosley was convicted in the Circuit Court of Lauderdale County, Honorable Henry Palmer, presiding, on a charge of possession of more than one (1) ounce of marijuana and was sentenced to serve a term of three (3) years with the Mississippi Department of Corrections. She has appealed and assigns six (6) errors in the trial below.

I.

Did the lower court err in refusing appellant’s request for a peremptory instruction of not guilty?

On May 25,1975, about 2:45 p. m., five (5) Lauderdale County officers went to appellant’s home in Meridian for the purpose of executing a search warrant and searching her premises. When they arrived, appellant was not at home, but the officers were met by a young black female who admitted them into the house and said she was Linda Williams, appellant’s daughter. The search produced 55.9 grams of a substance that was later identified as marijuana. It was found in the closet of appellant’s bedroom (the premises were owned by appellant) beneath a dress belonging to appellant. She was arrested in downtown Meridian later that afternoon and was charged with possession of the contraband. On the trial, appellant denied possessing the marijuana or knowing any woman by the name of Linda Williams, and stated that her daughter was Brenda Gathright. Appellant testified that she operated an informal restaurant or cafe in her home where she served meals, and that the dining area was open to patrons, who had access to the remaining rooms of the house. Testimony of a neighbor indicated that when the officers arrived to conduct the search, two (2) individuals were seen hurrying down an alley near the premises.

The State argues that appellant owned the premises, the bedroom and closet where the marijuana was found were occupied and used by her, the dress which concealed the contraband was owned by her, and that appellant had the exclusive constructive possession of the marijuana. To the contrary, appellant contends that she did not have the exclusive constructive possession of the marijuana, but that other people had access to the area and, therefore, she should be discharged. In Powell v. State, 355 So.2d 1378 (Miss.1978), discussing the question, this Court said:

“The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So.2d 608 (Miss. 1974).
* * * * * *
Several cases involving possession of contraband found upon premises to which others have access have come before us and there is no rigid rule that can be stated to govern every conceivable case, but each case must be decided upon its peculiar facts. Although this case is close upon the facts, our judgment is that the evidence was sufficient to raise a jury issue.” 355 So.2d at 1379.

See also Curry v. State, 249 So.2d 414 (Miss. 1967).

On request for peremptory instruction, the court considers all evidence introduced which is favorable to the State, along with reasonable inferences, and, if they are sufficient to support a verdict of guilty, the request for peremptory instruction of not guilty will be denied. Warn v. State, 349 So.2d 1055 (Miss.1977).

Appellant testified, and admitted on cross-examination, that she had been convicted within the previous two (2) weeks of the unlawful sale of marijuana. While that evidence is admissible only for the purpose of reflecting upon the credibility of the witness, it was a fact which the jury could consider in arriving at its verdict.

We are of the opinion that the evidence for the State, together with reasonable inferences, presented a guilt issue for determination by the jury and the lower court correctly refused the requested peremptory instruction.

II.

Did the lower court err in overruling appellant’s motion to suppress the evidence?

The officers appeared before Justice Court Judge Lee Roberts, where a standard affidavit for search warrant was executed by four (4) police officers. A typewritten statement of supporting facts and circumstances constituting probable cause was signed by them and attached to the affidavit. It included the following information:

(a) Police had received numerous complaints from area residents of appellant’s drug activity in the house to be searched;

(b) Police had personal knowledge appellant resided in the house;

(c) Appellant had been previously arrested for and pled guilty to charges of unlawful possession of marijuana;

(d) Known drug traffickers were seen entering and leaving the premises; and

(e) A confidential informant had made two (2) prior controlled purchases of marijuana from appellant.

In addition to the underlying statement of facts, the justice court judge received oral information of additional facts from officers who had been sworn by the court.

Appellant contends that the action of the officers and magistrate in obtaining and issuing the search warrant do not meet the rule required in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and subsequent decisions of the United States Supreme Court and this Court on the question. In O’Bean v. State, 184 So.2d 635 (Miss.1966), following Aguilar, this Court stated:

“The Court further held that the purpose of the affidavit is to enable the appropriate magistrate to determine the existence of probable cause from the facts alleged therein. In making this determination the Court held that the magistrate could not accept the mere conclusion of the affiant, but must base the issuance of a warrant upon some of the underlying facts or circumstances, as to do otherwise would be to accept the affiant’s determination rather than his own. In short, the acceptance of an inference or conclusion of the affiant by the magistrate is merely to ‘rubber stamp’ the belief of the investigating officer.” 184 So.2d at 368.

In Strode v. State, 231 So.2d 779 (Miss. 1970), the Court commented upon information received from a confidential informant, which was part of the facts presented to the magistrate, and said:

“The two-part test of Aguilar requires a magistrate to be informed of (1) some of the underlying circumstances from which the informer concluded that the defendant was the one guilty of the offense, and (2) some of the underlying circumstances from which the officer concluded that the informer was credible or his information reliable.” 231 So.2d at 783.

See also Lampkin v. State, 389 So.2d 113 (Miss.1980).

We hold that the justice court judge had probable cause upon which to issue the search warrant.

III. — IV.

Did the lower court err in granting Instruction S-2?

Did the lower court err in refusing appellant’s Instruction D-9?

The lower court granted Instruction S-2 requested by the State, which follows:

“The Court instructs the Jury that to constitute a possession, there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession; constructive possession may be shown by establishing that the substance involved was subject to the defendant’s dominion or control.”

The lower court declined to grant to the appellant Instruction D-9 which follows:

“The Court instructs the Jury that if there be any facts or circumstances in this case, susceptible of two interpretations, one favorable and the other unfavorable to the accused, and when the Jury has considered such facts and circumstances with all the other evidence, there is a reasonable doubt as to the correct interpretations, then you must resolve such doubt in favor of the accused and place upon such facts and/or circumstances the interpretation favorable to the Defendant.”

Appellant contends that the Instruction S-2 was erroneous for the reason that it is an abstract instruction and does not relate to the facts of the case. While we recognize that abstract instructions, as a general rule, should not be granted, when this instruction is read together with all other instructions in the case, it is not prejudicial to the appellant and does not constitute reversible error. Quick v. State, 309 So.2d 859 (Miss.1975).

The appellant also argues that the court erred in refusing her requested Instruction D-9, which is known as the “two-theory” instruction. Such an instruction is never authorized or given except in a purely circumstantial evidence case. However, appellant was given Instruction D-2, which told the jury that appellant was presumed innocent únless the evidence convinced them to the contrary beyond all reasonable doubt and to the exclusion of every reasonable hypothesis which may be consistent with her innocence, and Instruction D-4 which told the jury that before conviction it must find appellant guilty “to the exclusion of every reasonable theory consistent with her innocence.” Instructions D-6 and D-10 contained similar language. Thus, it may be seen that the question was submitted to the jury by four (4) other instructions. The court did not err in refusing the Instruction D-9.

V.

Did the lower court err in declining to quash the indictment for undue influence and denial of due process of law?

The appellant moved the court to quash the indictment alleging undue influence upon the grand jury and denial of rights guaranteed by the Constitution and laws of the United States and the State of Mississippi. She contends that the grand jury room, where deliberations were conducted, which resulted in the present charge on the indictment against appellant, was within and adjacent to, the district attorney’s quarters in the Lauderdale County Courthouse. [See Appendix]. Grand jurors, members of the district attorney’s office and other witnesses testified on the motion. The appellant contends that grand jurors in going to and from the grand jury room were required to pass through the reception room of the district attorney’s office, where the district attorney’s secretary and aides were present, that they drank coffee and ate snacks in the district attorney’s quarters and that the district attorney’s office exercised undue influence upon the grand jurors in their deliberations of criminal matters, including the present one.

In Price v. State, 152 Miss. 625, 120 So. 751 (1929), commenting upon a similar question to that posed here, the Court said:

“The court must indulge the presumption that the grand jury is composed of men who have a reasonable degree of intelligence and would perform their duties in accordance with the law and the evidence before them.
It does appear that there was other evidence before the grand jury. It would be adopting too rigid a rule to apply to the grand jury the strict rules applied to a trial jury in the trial on the merits. The grand jury is an independent body, and its members are not usually versed in legal rules of procedure and evidence. It is probably true that in each county in the state the grand jurors are approached and talked to by the citizens with a view of having certain conditions investigated and proper indictments returned. The members are not restrained during their investigation, but go at will amongst other people during their work.” 152 Miss, at 642-643, 120 So. at 755.

Suffice it to say, the evidence does not reflect undue influence upon the grand jurors by the district attorney or members of his office, and we find no reversible error in the lower court’s refusal to sustain the motion to quash the indictment. However, it is the responsibility of trial judges to make certain that grand jury deliberations are not subject to influence, whether from individuals, officers, or location of the grand jury room. The grand jury, a cornerstone of criminal jurisprudence, must remain free from suspicion and distrust and must always rest on a plane so high that no criticism can attach to it. When impaneled, grand jurors are administered an oath that they will not present any person through malice, hatred or ill will, nor leave any person unpresented through fear, favor or affection, or for any reward, hope, or promise thereof. Persons who are investigated by the grand jury also have the right to be free of distrust, suspicion, and frustration toward the grand jury.

While the charge involved on this record was not the result of undue influence, other indictments may not withstand such a motion. We refer this matter to the learned trial judges of Lauderdale County and suggest that they see that future grand juries (are located in quarters where no such criticism as here may be levied against them.

We have considered the other assignments of error, find no merit in them, and the judgment of the lower court is affirmed.

AFFIRMED.

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

APPENDIX


author: BROOM, Justice,

text:
    Ineta BAKER v. STATE of Mississippi.
    No. 52469.
    Supreme Court of Mississippi.
    March 18, 1981.
    Opinion Modified On Denial of Rehearing April 29, 1981.
    Keith Starrett, Magnolia, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Mistaken identity of a con artist who used the “pigeon dropping” scheme to bilk an aged woman out of her $500 is urged as ground of reversal here. Pursuant to Mississippi Code Annotated § 97-17-41 (1972), the “pigeon dropper,” Ineta Baker (defendant herein), in the Circuit Court of Pike County was convicted of grand larceny, sentenced to two years with the Mississippi Department of Corrections, and ordered to make restitution. Sufficiency of the evidence is the sole issue before us. We affirm.

The naive victim of the “pigeon dropping,” Mrs. Lillie McGehee, a 70-year old black woman, went to Magnolia during the morning of October 1,1979, on business. In Magnolia, McGehee was engaged in conversation by an unidentified man during which the defendant appeared, and they all talked about money. Later “church work” was subject of their conversation. The unidentified man stated that he had found a large amount of money that was “too much to tote out” which he would divide with McGe-hee and the defendant. They went to Alford’s store where the unidentified man went inside after stating that he had to meet the man with the money. Shortly the unidentified man came back to the car and stated to the defendant that inside the store was a man with her share of the money. At that time the defendant exited the car and went in the store from which she promptly returned. She stated to McGehee that she got her share of the money and “if [Mrs. McGehee] would go down and draw what [she] had in the bank that the man would be there at the Dollar Store” to give her a share of the money. Following this statement by the defendant they moved the car to another parking place where the man got out and went somewhere for a brief time. Upon his return he stated to McGe-hee that the man was “standing down there by the Dollar Store with your share of the money.” This unidentified man also told her that she would not have to go into the store: “he’s standing on the outside and you hand him this $500.00 and he’s going to give you $1,500.00.”

McGehee, according to the instructions given her, had withdrawn $400 from the bank and already had $100 with her, making a total of $500. While the defendant was talking to McGehee about church work, the unidentified man placed McGehee’s money inside a handkerchief. Then he handed her what she thought was her money tied up in the handkerchief. As she was instructed, McGehee went to the Dollar Store but found no man waiting for her. Failing to find such a man, she went back to where the car had been parked, but it had been moved. She then walked a distance and untied the handkerchief in which she found only paper — no money. She then reported the incident to a Mr. Alford who called the law officers, and an investigation ensured. She had no watch or clock from which she could positively fix the times of day, but gave estimations.

Argued here is the assertion that this “is merely a case of mistaken identity, the identity of” the defendant “is confused with the identity of the actual perpetrator of a crime.”

In order to determine whether the evidence is so weak as to warrant another jury trial, we have carefully examined the testimony. McGehee vividly described how she was victimized of her money. She testified that the defendant was the woman participating in the scheme and was with the man who actually took her money. Clearly, the jury had sufficient evidence before it to support the verdict of guilty.

The following is an excerpt of McGehee’s testimony:

Q. Now, after having seen her up close, is there any doubt in your mind that this was the lady that you saw that morning?
A. No. It isn’t no doubt.

Although three alibi witnesses testified in behalf of the defendant, none of them actually saw or was present with the defendant until the noon hour of the day when the offense was committed. The offense was perpetrated approximately two hours before noon time. During the morning of the day of the crime, the alibi witnesses stated that they were in contact with the defendant, but the contacts were by means of a telephone. Two of the calls, which could have been made outside of Jackson, were initiated by someone purporting to be the defendant. Chief Donald Butler of the Mississippi Highway Patrol (investigator at the time) testified that shortly before 10 o’clock during the morning of the offense he was requested to assist in the investigation. The totality of the testimony indicates that the defendant and the male who accompanied her finished their “pigeon dropping” on McGehee prior to or not long after 10 o’clock.

The defendant contends that she was in Jackson the entire day of the offense, attending to details of purchasing a home, but she presented no testimony of anyone who saw her before noon. Acting within her rights, she did not testify, and (except for the telephone calls) the record is strangely silent as to what she did or who saw her during the morning in question. Real estate agent Ranee, according to his testimony, talked with her. The significant aspect about his testimony, however, is that he talked with her by telephone. Defendant’s second alibi witness testified that he remembered talking to the defendant between 10 and 11 o’clock of the morning in question. His contact also was by telephone. Similarly, the third alibi witness stated that he talked with the defendant by phone during that morning and met with her at approximately 12:30 p. m. in Jackson.

Argument is that the conviction resulted from bias and prejudice of the jurors against the defendant who was charged with having victimized “a 70-year old polite Black lady who undoubtedly has had a large portion of her life savings taken from her by some con artist.” Under Carr v. State, 208 So.2d 886 (Miss.1968), and Newton v. State, 229 Miss. 267, 90 So.2d 375 (1956), we are urged that the case should be reversed and submitted to another jury. Had the alibi witnesses testified that they had personally seen and been with the defendant during the morning of the offense, there would be more persuasion to the defendant’s argument. Such was not the case, and the only contact made by the alibi witnesses with the defendant during the critical morning was by telephone conversations. Upon the testimony, we are unpersuaded that reversal should be ordered, and accordingly the case must be affirmed.

AFFIRMED.

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

      . Pigeon dropper is defined in Webster’s Third New International Dictionary (1971) as one who practices pigeon dropping, a confidence game. The Oxford English Dictionary (1961 ed.) defines pigeon, as used here, as, “one who lets himself be swindled, esp. in gaming.... ”

      . Spelling of the defendant’s first náme on the face of the indictment is Anita. On appeal she signed her appearance bond as Ineta, but no point is made thereof.

      . Requested but refused was an instruction advising the jury not to consider or draw any inference from defendant’s failure to testify. No assignment of error was made in this regard, but on petition for rehearing the issue was untimely raised and rejected under Rule 6, Mississippi Supreme Court Rules. Prueitt v. State, 261 So.2d 119, 125 (Miss.1972). After trial of this case, the U.S. Supreme Court held that such an instruction should be given. Carter v. Kentucky, - U.S. -, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). Henceforth, trial judges will on request grant an appropriate instruction on the defendant’s refusal to testify.


text:
    Joy S. CARVER v. Josephine Helen CARVER, Executrix of the Estate of Dudley J. Carver, Jr., Deceased.
    No. 52409.
    Supreme Court of Mississippi.
    March 25, 1981.
    Rehearings of Appellant and Appellee Denied April 29, 1981.

    Thomas L. Wallace, Sekul, Hornsby, Wallace & Teel, Biloxi, for appellant.
    Keith Pisarich, Halat & Pisarich, Biloxi, for appellee.

       Bowling and Hawkins, JJ., took no part in rehearing.

   Appeal from Chancery Court, Harrison County; William L. Stewart, Chancellor.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED IN PART; REVERSED IN PART, AND RENDERED.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    James W. PINTER v. STATE of Mississippi.
    No. 52478.
    Supreme Court of Mississippi.
    April 1, 1981.
    Rehearing Denied April 29, 1981.

    Jerry Bustin, Thomas D. Lee, Forest, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

       Lee, J., took no part in rehearing.

   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

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

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BOWLING and HAWKINS, JJ., concur.

LEE, J., takes no part.


author: WALKER, Justice,

text:
    Lincoln COLEMAN et al. v. Patsy Stevens HUDSON et al.
    No. 52617.
    Supreme Court of Mississippi.
    April 1, 1981.
    Rehearing Denied April 29, 1981.

    R. W. Boydstun, Jr., Louisville, for appellants.
    J. Hoy Hathorn, Hathorn & Hathorn, Louisville, for appellees.
    Before PATTERSON, SUGG and WALKER, JJ.

       Bowling and Hawkins, JJ., took no part on rehearing.

   WALKER, Justice,

for the Court:

Lincoln Coleman, et al., appeal from a final decree of the Chancery Court of Winston County declaring Margaret Coleman Hyde the sole and only heir at law of Richard Coleman.

The appellants are the brothers and sisters, and descendants of brothers and sisters, of Richard Coleman. They filed a suit for partition of 78 acres of land situated in Winston County, claiming a Vfc interest in said lands as the heirs at law of Richard Coleman.

The defendants named in the suit are the owners of the remaining % interest in the land. In their answer these defendants denied that the appellants were the heirs at law of Richard Coleman and alleged that Richard Coleman left as his sole and only surviving heir at law one illegitimate daughter, Margaret Coleman Hyde, of East St. Louis, Illinois. They joined Margaret Hyde in their cross-bill, in which they prayed that the chancellor declare Margaret Hyde the sole heir at law of Richard Coleman.

It was stipulated that Richard Coleman died intestate seized of a lk interest in the 78 acres and that the property should be partitioned in kind. It was also stipulated that the only issue before the court was to determine the identity of the legal heir or heirs of Richard Coleman.

At the hearing on the issue the appellants attempted to show that Margaret Hyde was not the illegitimate daughter of Richard Coleman but was the legitimate issue of the marriage of James Coleman (no relation to Richard) and Ethel May Clay Coleman. As proof they introduced into evidence a certified copy of a marriage license reciting that James Coleman and Ethel Clay were married on October 8,1932, in Winston County. Further, it was shown that James and Ethel were never divorced and that they had one child before Margaret was born and four children after Margaret was born. The appellants also introduced a certified copy of Margaret’s birth certificate which shows she was born on October 2, 1935, to James and Ethel Coleman. Lincoln Coleman (Richard’s brother), Calvin Coleman (James’ brother) and Clint Clay (Ethel Coleman’s brother) testified that they knew that James and Ethel Coleman were living together as husband and wife at the time Margaret was born, and that Richard Coleman never lived with Ethel Coleman.

On the other hand, there was considerable testimony offered to prove that Richard Coleman was the father of Margaret and that he freely admitted that fact during his lifetime. Ethel Coleman testified that she married James Coleman in 1932, but that he left her only eight months after their marriage. Thereafter, she lived with Richard Coleman for approximately three years, until after Margaret was born, before she allowed James Coleman to resume the marriage relationship. She testified that Richard Coleman begat Margaret, and that she and James Coleman had no sexual relations, or any opportunity for such, until after the birth of Margaret. She testified that the brothers and sisters of Richard Coleman (appellants) forced her to tell Margaret that Richard Coleman was her father when Margaret was 8 or 9 years old and that from that point on Margaret knew and recognized Richard Coleman as her father.

Margaret corroborated this testimony with her own. She also stated that Richard Coleman recognized her as his daughter and contributed to her support even after he married Laura Harris in 1944.

Laura Harris’ relatives (the defendants) testified that Margaret bore a close resemblance to Richard Coleman. They also testified that the appellants introduced Margaret to them at Richard Coleman’s funeral as being Richard’s daughter. They also introduced into evidence a funeral home obituary which lists Margaret as the surviving child of Richard Coleman, with testimony that this information had been furnished to the funeral home by the appellants.

One other fact tending to prove the relationship was supplied by Charlie Reeves, an employee of the hospital where Coleman died. Reeves testified that Richard Coleman requested him to call his daughter, Margaret Hyde, in St. Louis and tell her of his impending death and ask her to come to see him. Reeves called Margaret and she arrived the next morning. Reeves stated that Richard Coleman introduced Margaret to him as his daughter and Margaret confirmed Reeves’ testimony in that regard.

At the conclusion of the hearing the chancellor held that Margaret Hyde had proved she was the child of Richard Coleman and his sole and only surviving heir at law. He then held that she was entitled to inherit the Ve interest of Richard Coleman in the 78 acres. The brothers and sisters, and the descendents of the brothers and sisters, of Richard Coleman have appealed. We reverse.

Margaret Hyde’s birth certificate indicates that she was born in Winston County to Ethel Clay Coleman on October 2, 1935, while Ethel Clay was married to James Coleman. The presumption that a child born in wedlock is a legitimate child is one of the strongest presumptions known to law and may be rebutted only by proof beyond a reasonable doubt that the husband is not the father. Dixon v. Curtis, 340 So.2d 722 (Miss.1977); Stone v. Stone, 210 So.2d 672 (Miss.1968).

In Stone this Court stated that “public policy demands that a child born in wedlock should not be branded as illegitimate except in those cases where the proof is so strong that there is no reasonable doubt that the husband is not the father. Nothing less will suffice.” (210 So.2d at 674). In that case the husband charged that the child bom to his wife was not his child. This case is somewhat different in that the child was charged that her mother’s husband was not her father. Notwithstanding this distinction, the public policy reasons for requiring proof beyond a reasonable doubt are just as clear under these circumstances. There is a substantial state interest in providing for the stability of land titles and in the prompt and definitive determination of the valid ownership of property left by intestate decedents. See Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

James Coleman died in 1976 and Richard Coleman died in 1977; their mouths are sealed. Margaret Hyde is no longer a child in need of support, but is an adult in her own right. Even though she contends James Coleman was not her father, the proof is uncontradicted that James raised her along with her four younger brothers and sisters for several years after her birth.

It was first incumbent on Margaret to prove beyond a reasonable doubt that James Coleman was not her father in order to overcome the presumption of legitimacy before reaching the question of whether she was the daughter of Richard. We hold that she has failed to meet this burden.

The testimony of Margaret’s mother, Ethel Clay Coleman, that Richard Coleman was Margaret’s father and that James Coleman (her husband) had no sexual relations with her for three years prior to Margaret’s birth, is not strong enough, standing alone, to rebut this presumption. It would require other strong corroborating evidence. The only corroborating evidence offered to support the mother’s testimony is the hearsay evidence that Richard Coleman referred to Margaret Hyde as his daughter. There was other hearsay evidence admitted in an attempt to prove the appellants had introduced Margaret Hyde to others as Richard Coleman’s daughter. However, all of this proof taken together does not rise to that level of proof beyond a reasonable doubt that James Coleman was not the father of his wife’s daughter, Margaret. After almost forty-five years, the frail memorials of human memory will rarely be accepted to rebut the presumption of legitimacy arising from documented records of marriage and birth certificates.

For the foregoing reasons, we are of the opinion that the learned chancellor was manifestly wrong in finding that Margaret Coleman Hyde was the sole and only heir at law of Richard Coleman. Since the matter of partitioning of the property is still outstanding, we reverse and remand the case to the lower court for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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

      . Because we dispose of this case on this ground, it is not necessary to decide the constitutionality of section 91-1-15 (1972), the unconstitutionality of which was evidently assumed by the court below.

      . Although the point is not raised, there is a possibility that a statute of limitations, if properly pled, would be applicable.


author: BOWLING, Justice, ROBERTSON, Presiding Justice,

text:
    Diane Snyder Parr ALDRIDGE v. Robert Max PARR.
    No. 52441.
    Supreme Court of Mississippi.
    April 1, 1981.
    R. M. Sullivan, Petal, for appellant.
    Robert T. Jackson, Jackson & Hammond, Hattiesburg, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant/cross appellee Diane Snyder Parr Aldridge and appellee/cross appellant Robert Max Parr, were married in November 1960. The parties were divorced by the Chancery Court of Forrest County, Mississippi, on March 28, 1972. At that time, Parr was a student at the University of Southern Mississippi, working toward his Ph. D. degree in psychology. Without the benefit of legal advice, Parr agreed with his wife that the divorce decree would provide for him to pay child support in a sum equal to one-half of his gross monthly income thereafter. The couple had three children: a son age 10 and two daughters ages 7 and 2.

From the date of the divorce decree until July 1973, while finishing his education, Parr made $500 monthly and paid one-half of this amount each month to his ex-wife as child support. Thereafter he secured his present job teaching at a college in Memphis, Tennessee, and increased the monthly child support payments to $396. Both parties remarried with the former Mrs. Parr moving to North Carolina with her new husband and three children.

In May 1977 Parr increased the monthly child support payments to $450 and according to him, requested of his ex-wife whether or not this was sufficient, stating that it was one-half of his net income.

In September 1978 the son joined the military service and became independent. Parr then started placing $150 each month in a savings account for his son and forwarded $300 per month to his former wife toward the support of the two daughters.

On April 13, 1979, Diane Snyder Parr Aldridge filed a petition requesting that her former husband be cited for contempt for failure to pay one-half of his gross pay to her as child support. Parr filed his answer stating that he had performed his support duties in a reasonable manner and alleging in his cross petition that the original decree of March 1972 agreed to by him without the advice of counsel was unreasonable and should not be enforced.

The trial of the contempt petition and the cross petition was had before the chancellor on January 15,1980. It was stipulated that subsequent to the March 1972 decree, the ex-husband and father, Parr, had paid to his former wife toward child support the sum of $36,622. Mathematically, this averages approximately $375 per month during the entire time, including finishing school, internship, etc. At the time of the hearing, Parr’s gross income from teaching and outside work amounted to approximately $27,-900 annually. A computation, made as to what his gross income had been since March 1972, revealed that had he paid one-half of this gross each month, he would still be almost $40,000 in arrears.

Parr undisputedly testified that he remained on a good relationship with his children and that he still was on a good relationship at the time of the January 1980 citation hearing. He testified that he had spent around $2,000 for expenses in having his children visit him.

When the son joined the military service he gave the son the used car that the father was driving. He further testified undisput-edly that he had told all three of his children that he would see that they got a college education in Memphis, provided, their living quarters would be at his home for the purpose of economizing on expenses. He further testified that since he had been regularly employed, he had carried a policy of medical and hospital insurance which covered all of his children.

At the conclusion of the evidence, the court, in its opinion, reviewed the history as briefly set out above, and found that the former provision regarding child support in the original divorce decree was “unreasonable and unrealistic.” He found as a fact that the father had substantially paid that which was reasonably possible for him to pay. He concluded this issue by finding that Parr was not guilty of deliberate and contumacious contempt; that the literal requirements of the decree resulted in the nonpayment over the years of a total of $39,937, but that the father should not have the burden of a money judgment in that amount, plus interest. The decree provided that any arrearage owed by the father could not be executed upon nor could he be forced to pay the arrearage except at a minimum rate of $100 per month. The chancellor held that the father should pay to the mother thereafter the sum of $350 per month toward the support of the two daughters, who remained with the mother and the $100 per month toward a payment of the one-half of the gross income as set out in the original divorce decree.

The decree also required Parr to pay to his former wife $750 as attorney’s fee.

Appellant/cross appellee Mrs. Aldridge perfected this appeal on two issues and assignments of error only, to-wit: The failure of the court to add interest to the figure of $39,937 as heretofore discussed and the failure of the court to give appellant an immediate money decree in a position for execution thereon immediately instead of paying $100 per month to appellant.

Parr has filed his cross appeal contending that the court erred in holding that he owed back child support payments in the amount of $39,937 and requiring him to make monthly payments thereon. He contends that the claim was barred by either the doctrine of laches, the doctrine of estoppel, or that the original decree as to that issue was void;

Both assignments of error in the original appeal are rendered moot by our holding in the cross appeal. We agree with ap-pellee/cross appellant that the March 1972 decree regarding the future payment of one-half of the father’s subsequent income was void.

This Court had before it a similar provision in a final chancery court decree in the case of Webb v. Webb, 391 So.2d 981 (Miss. 1980). There on a final decree the chancellor merely required one party to pay to the other party a “reasonable amount” toward the support of the minor child of the parties. After the final decree was entered and the court minutes signed at the conclusion of the term, the parties agreed that the payment should be $150 per month, which was made until the party making the payments became unemployed. This Court in holding that the decree was void as to the monthly support payments said:

Regarding the part of the decree giving judgment against appellant in the sum of $1,500 for alleged unpaid monthly support payments to appellee and requiring appellant to pay $150 per month in the future, we reverse those parts of the decree and render here. As hereinbefore set out, the first modification decree of December 19, 1978, only required appellant to pay a “reasonable amount.” The present decree is the first time the chancellor has set an amount. We hold that the alleged agreement between the parties as to a “reasonable amount” had no effect and could not serve to enlarge the court’s decree and give appellee a money judgment. Decrees and judgments cannot be based on such indefinite requirements as “reasonableness.”

Griffith, Mississippi Chancery Practice § 626 (2d ed. 1960), in discussing “certainty in decrees” states as follows:

Where a decree in chancery is rendered for the recovery of money it must be for a sum certain, based on evidence reasonably sufficient to show the sum due. The amount cannot be arrived at by, nor left to, mere conjecture, nor by recourse to anything extrinsic.

Section 77, Griffith, supra, provides as follows:

In directing the decree in chancery the court will see to it that every feature of the controversy is covered in terms of certainty in a just and practical manner, according to the exact situation of the parties and according to the several interconnected facts and circumstances, leaving so far as practical nothing open for future controversy with respect to the subject matter of the suit. The decree in equity is capable of being moulded to fit the exact facts and requirements of the case, to cover all issues presented by the pleadings and to completely determine and settle every right established in the entire cause, and in this manner it should be drawn.

Section 614, Griffith, supra, we find the following:

A final decree should dispose of all questions upon the real merits of the controversy and settle all the involved rights of the parties, leaving nothing of the merits undetermined or unsettled — precluding, so far as practicable upon all the issues involved in the cause, the possibility of future litigation between the parties with respect to the subjéct matter of the suit. A final decree should be complete and do full justice, protecting the interests of all parties to the suit, and a neglect to do so is erroneous, and especially is it erroneous deliberately to remit any part of the controversy to a new litigation if the relief may properly be granted in the present suit.

In Section 625, Griffith, supra, on “certainty of decrees” we find the following:

A reasonable certainty and a fair precision are elemental requirements entering into all the important parts of judicial procedure, and obviously the requirement is equally obligatory as to decrees. There must in all respects be a clear and unambiguous certainty in all the provisions of a decree so that every party thereto may know exactly what he is to do in obedience to it and that all may safely perform its terms as written; and particularly must this be true when the decree is framed to meet the exigencies of a complicated situation wherein misunderstanding might easily arise. It should be complete within itself — containing no extraneous references, and leaving open no matter or description or designation out of which contention may arise as to the meaning. Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with the execution of the decree, and even as to matters solely affecting the execution, if their nature be such as is likely to eventuate in dispute, reservation for further directions should be made if impossible safely to do otherwise.

In the case of Todd v. Todd, 197 Miss. 819, 20 So.2d 827 (1945), this Court, through Justice L. A. Smith, Sr. recognized the above textbook pronouncements.

We therefore hold that the part of the March 28, 1972, decree directing that at all times in the future appellee/cross appellant should pay to appellant/cross appellee a sum equal to fifty percent of his gross pay was unreasonable, indefinite, and uncertain to such an extent that it was void. We, therefore, reverse and render as to the cross appeal wherein the decree found that cross appellant owed $39,937 to be paid over a period of over 31 years at $100 per month. The decree is affirmed as to child support for the two daughters in the monthly sum of $350 beginning on the date of the decree.

Appellant/cross appellee’s motion for attorney’s fee in this Court is denied.

AFFIRMED ON DIRECT APPEAL; REVERSED AND RENDERED ON CROSS APPEAL. MOTION FOR ATTORNEY’S FEE DENIED.

PATTERSON, C. J., and SMITH, P. J., and SUGG, WALKER, LEE and HAWKINS, JJ., concur.

ROBERTSON, P. J., and BROOM, J., specially concur.

ROBERTSON, Presiding Justice,

specially concurring:

I concur in the results reached canceling the so-called arrearage of $39,937 in child support, to be paid over a period of 31 years at $100 per month, and setting the support for the two minor daughters at $350 per month, but I cannot agree with the holding of the Court that the March, 1972, decree was void as to the provision that Parr pay 50% of his gross monthly income as child support because it was so unreasonable, indefinite and uncertain.

The court had jurisdiction of the parties and of the subject matter when the chancellor rendered his decree on March 28, 1972, granting the divorce, granting custody of the three children of the marriage to the mother, and finding that the parties had entered into an agreement settling their property rights; and support for the children at 50% of Parr’s gross monthly income. Since March, 1972, Parr had been paying and Mrs. Diane Parr Aldridge had been accepting as child support the monthly payments ranging from $350 to $450 per month, until April, 1979, when she filed a short petition for citation for contempt, praying that Parr be held in contempt because he had not paid 50% of his gross monthly pay as child support.

I agree with the lower court’s finding “that the defendant has paid or substantially paid that which was reasonably possible for him to pay and at the same time maintain a reasonable standard of living for himself”. I agree with the lower court in its finding that the formula for child support in the decree of March, 1972, is an unreasonable and unrealistic formula and requirement when applied to an increasing monthly income as the years go by.

It is my opinion that the parties themselves worked out a reasonable interpretation of this decree when Parr paid and his former wife and the mother of his children accepted his monthly payments ranging from $350 to $450 per month. My thought is that by accepting the monthly payment without murmur until April, 1979, she has by her very actions for seven years agreed to their interpretation of what they themselves meant by their unusual recipe for child support inserted by the court at their instance in the March 28,1972, decree. She is now estopped to assert a contrary view at this late date.

I, therefore, concur in the holding of this Court that henceforth Parr only owes $350 per month child support for his two minor daughters, the son of the marriage having joined the Army and become self-supporting.

PATTERSON, C. J., SMITH, P. J., and BROOM, LEE and HAWKINS, JJ., join in this specially concurring opinion.


author: BOWLING, Justice,

text:
    James MINOR v. STATE of Mississippi.
    No. 52453.
    Supreme Court of Mississippi.
    April 8, 1981.
    William Carl McGehee, Jr., Leonard H. Rosenthal, Natchez, for appellant.
    Bill Allain, Atty. Gen., by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant James Minor was indicted, tried and convicted in the Circuit Court of Adams County for the rape of a two-year old female child and sentenced to a life term under the custody of the Department of Corrections. The principal error alleged is that the trial court should have sustained appellant’s motion for a directed verdict of acquittal.

In deciding the question as to whether or not there was sufficient evidence to submit the case to the jury, we have to review at least a portion of the evidence to ascertain its sufficiency to withstand the motion. The record reveals a rather sordid set of circumstances, some of which even the writer of this opinion hesitates to put in print. As stated above, however, the general evidence in the case is necessary to be related.

The testimony revealed that appellant James Minor was the “boyfriend” of the victim’s mother, and that she already had one illegitimate child by appellant and another was on the way. This is material as later shall be pointed out in the testimony.

During the early part of the evening on July 9, 1979, the Natchez Police Department was called to the residence of the victim’s aunt. Upon arriving they found the victim, the child’s mother, the mother’s sister, other members of the family and appellant. The child was lying on a bed. The officers promptly saw that bloody underwear and shorts were lying near the victim and that she was bleeding from the vaginal area. One of those present asked the child who “laid on her” and did that. The child said, “James”, and pointed to appellant. Minor stated at that time that he had found the child outside the house where the child’s mother, the mother’s sister and other family members and relatives lived. Although not being placed under immediate arrest, appellant agreed upon request of the officers to show them where he found the child. The testimony of both officers was that they thoroughly examined the area pointed out to them by appellant and could find no evidence that indicated the alleged rape had occurred in that area. Appellant was then requested to lower his pants and permit a visual inspection by the officers. This was done voluntarily by appellant. Both officers testified that they immediately saw red stains on the inside of appellant’s undershorts and saw red stains on his private parts, which they thought to be blood. It was then decided to carry the child to the hospital and appellant was requested to accompany them for the purpose of being examined. An officer testified that appellant told him that he got blopd on his private parts while having sexual relations that day with the victim’s mother.

A physician at the hospital made up what in legal terms is known as a “rape kit” on both the child and appellant. This kit included clothing, samples of substances removed from the bodies of the persons involved and any other evidence secured in the area involved. These kits were sealed and turned over to the officers, who in turn delivered them to the Mississippi Crime Laboratory for examination.

Testimony was received from the expert who examined the evidence. He performed certain tests including blood tests. He identified the red stains on appellant’s shorts as being blood of 0 type. There was no evidence of Type B blood on appellant. It had been ascertained that the child’s mother has type B blood. Both appellant and the child had 0 type blood.

Evidence was received from a next door neighbor to the residence of the victim and her family. He was leaving his home on his bicycle when he saw appellant come off the porch where the victim lived, holding the victim by the hand. He saw them walk toward the house across the street as he rode away on his bicycle.

Testimony was received from a fellow inmate in the County Jail who testified that appellant admitted the rape to him.

Testimony was received from the victim’s mother. She verified that she had one child by appellant and was pregnant with another by him. She further stated that she did not have sexual relations with appellant on the day in question.

Appellant James Minor testified on his own behalf. It should be stated that prior to trial and on motion of appellant’s attorney, he was sent to the Mississippi State Hospital at Whitfield for psychiatric evaluation. The report from the examining physician was that appellant is a “rather impulsive young man as shown by his previous record,” but that he was “without psychosis and considered to be competent and responsible.” Of course, this report was not presented to the jury and is related in this opinion in discussing the proceedings set out in the record. On cross examination appellant, in having his testimony attempted to be impeached by the state, as it had legal right to do, admitted that although twenty-three years of age, he was convicted of assault in 1975 and 1977, trespassing in 1976, disturbing the peace and resisting arrest in 1976, burglary in 1976, public drunk in 1977, and disturbing the peace and resisting arrest in 1977.

Minor’s defense was that on the night in question he was looking for the child in the neighborhood after she had wandered away from the house. While so looking, a tick had gotten on his private parts and that the blood was caused when he scratched the tick bite.

We believe that we have related a sufficient amount of the evidence as shown by this record to make it readily apparent that there was ample evidence to present the case to the jury, as was done by the trial court.

The appellant also assigns as error that as he was charged with a capital crime, he should have received a bifurcated trial on punishment and sentence before either the same or a different jury pursuant to the provisions of Section 99-19-101, Mississippi Code 1972 Annotated, (Supp.1980). We note that the record does not show a ruling on this matter by the trial court, and the failure of appellant to secure a ruling constitutes a waiver. Martin v. State, 354 So.2d 1114 (Miss.1978). Secondly, appellant’s motion for a new trial does not mention the issue of sentencing and no objections were raised at the time of sentencing. Lastly, and most importantly, the state announced at the beginning of the trial that it was not seeking the death penalty. The jury found appellant “guilty as charged.” The lower court was then completely within its authority to sentence appellant to a life term. There being no reversible error in the cause, and the evidence partially herein-before related being abundant to raise a jury question, we have no choice but to affirm the conviction and sentence.

AFFIRMED.

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