text:
    Raymond LEGER v. Verdo LANCASTER and Patsy Lancaster.
    No. 82-CA-0183.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.
    James E. Durbin, Denham Springs, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Raymond Leger, brought this action against Verdo Lancaster and Patsy Lancaster, seeking to collect the amount due on two notes executed by Patsy Lancaster. Plaintiff’s petition alleged that defendants were married to one another at all times material to the suit and were solidarily liable on the note.

Verdo Lancaster filed exceptions of prematurity, no right of action and no cause of action. All three exceptions were based upon nearly identical grounds. Lancaster maintained that he did not sign either of the notes sued upon, that presentation and demand for payment were never made upon him and that the debts were not community obligations.

The trial court sustained the exceptions of prematurity and no right of action, holding that the evidence adduced failed to show that Leger had made presentation of the note and demand for payment upon Verdo Lancaster. The trial court’s written reasons for judgment are attached hereto as an appendix. Plaintiff has appealed.

On appeal, plaintiff asserts that the trial court’s conclusion that presentation and demand for payment were not made is manifestly erroneous. Alternatively, plaintiff contends that the trial court erred in dismissing his action without affording him an opportunity to amend his petition.

The record on appeal indicates that no transcript was made of the testimony on the exceptions. Nor does the record contain a narrative of facts joined in by the parties or made by the trial judge. See LSA-C.C.P. arts. 2130 and 2131.

Plaintiff’s primary specification of error presents a factual issue. When there are factual issues involved and the record contains neither a transcript of testimony nor a narrative of facts, there is nothing for appellate review. Under such circumstances, this court must presume that the judgment of the trial court is correct and supported by sufficient competent evidence. Succession of Walker, 288 So.2d 328 (La.1974); DeLaneuville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir.1980); Vaughan v. Fair, 337 So.2d 675 (La.App. 3rd Cir.1976); Hutcherson v. Welch, 316 So.2d 144 (La.App. 2nd Cir.1975).

Thus, that portion of the trial court’s judgment sustaining the dilatory exception of prematurity is affirmed. However, the trial court’s action in sustaining the peremptory exception of no right of action is erroneous as a matter of law.

An exception of no right of action questions the right of a plaintiff to institute the suit, that is, whether he has an interest in the subject matter of the proceedings. LSA-C.C.P. art. 927; Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3rd Cir.1981); Johnston v. Cummins, 388 So.2d 432 (La.App. 2nd Cir.1980); Worcester County Institution for Savings v. Franklin, 377 So.2d 457 (La.App. 4th Cir.1979); Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979). In the instant case, plaintiff has alleged that he is the holder of two promissory notes made payable to him. Clearly, Leger has a right of action to collect on the notes. The exception of no right of action was erroneously sustained and that part of the trial court’s judgment must be reversed.

Plaintiff’s alternative specification of error is that the trial court erroneously dismissed his action without allowing him the opportunity to amend his petition. In light of the conclusion that only the exception of prematurity was properly sustained, the effect of sustaining that exception alone will be considered.

An exception of prematurity is a dilatory exception. LSA-C.C.P. art. 926. The effect of sustaining a dilatory exception is regulated by LSA-C.C.P. art. 933, which provides, in pertinent part, as follows:

“... If the dilatory exception pleading prematurity is sustained, the suit shall be dismissed.”

The trial court did not err in dismissing plaintiff’s suit.

For the foregoing reasons, that portion of the judgment of the district court sustaining defendant’s exception of prematurity and dismissing plaintiff’s petition is affirmed. That portion of the district court’s judgment sustaining defendant’s exception of no right of action is reversed. Plaintiff-appellant is to pay all costs of these proceedings, both trial and appellate.

AFFIRMED IN PART, REVERSED IN PART.

APPENDIX

REASONS WITH JUDGMENT

Raymond Leger testified in this matter as to the note, consideration and presentment.

FACTS

In proceedings No. 35044, Patsy Lancaster, now deceased, and Verdo Lancaster resided separately and apart from June 6th, 1980 until April 22nd, 1981. A petition was filed for separation on June 10, 1980 by Verdo Lancaster a recon ven tional demand was filed on June 26,1980 by Patsy Lancaster. Judgment on the first rule was signed by Judge Burrell Carter on July 11th, 1980. Trial was set for April 22nd, 1981 at which time the parties and their attorneys announced in Open Court a reconciliation. According to the stipulation in court on October 1st, 1981 in docket No. 35044, Patsy Lancaster is now deceased.

Attached to the petition in 35044, filed June 23,1981 are four exhibits. A note and affidavit, dated November 12, 1980 and a note and affidavit, dated May 22, 1981. Each note and affidavit is signed by Patsy Lee Leger Lancaster.

Before the court now, are exceptions of Prematurity, No Cause of Action and No Right of Action.

No Right of Action — Prematurity

In the analogy that the plaintiff was first required to present the note for demand of payment before he could proceed in litigation, the exception of prematurity and no right of action would be proper.

Thus this court, in listening to the testimony of the parties was not satisfied presentation of payment had been made on Lancaster. The proof must preponderate in favor of the plaintiff of presentation and demand must be met. This proof was not met. To the contrary this court doubts whether or not presentation was made, thus in the suit filed, the plaintiff cannot go forward.

Therefore, the matter is dismissed for an amendment to this suit cannot correct the defect.

No Cause of Action

This issue reaches the merits. Therefore, it is unnecessary to make a decision at this time on the issue of No Cause of Action, in that there is no suit as to the defendant Verdo Lancaster, and Patsy Lancaster is now deceased and is not vulnerable to judgment.

Thus read, rendered and signed in Chambers on this 1st day of December, 1981 in Livingston, Louisiana.

fsl Samuel T. Rowe SAMUEL T. ROWE,

JUDGE DIV. “C”


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Karl L. CREDEUR v. Darlene Himel CREDEUR.
    No. 82 CA 0184.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Larry P. Boudreaux, Thibodaux, for plaintiff-appellant Karl L. Credeur.
    David M. Richard, Thibodaux, for defendant-appellee Darlene Himel Credeur.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

In this proceeding, Karl L. Credeur sought a divorce from his wife, Darlene Himel Credeur, on the ground of the parties having lived separate and apart for more than one year. The trial court granted Mr. Credeur a divorce, but found Mrs. Credeur free from fault. From the judgment, Mr. Credeur has appealed.

Louisiana Civil Code art. 160 sets forth the prerequisites for an award of alimony after a final divorce. Freedom from fault on the part of the claimant spouse is one of the prerequisites. The Louisiana Supreme Court in Adams v. Adams, 389 So.2d 381 (La.1980) determined that “fault” for purposes of permanent alimony preclusion is synonymous with the fault grounds for separation and divorce. Only such conduct as will entitle one spouse to a separation, or divorce under LSA-C.C. arts. 138(1)-{10) or 139 is sufficient to deprive the other spouse of alimony after a final decree. Thus, although alimony was not awarded in the judgment appealed from, the finding in that judgment that Mrs. Credeur was free from fault constitutes the possible basis for a future award of alimony.

Mr. Credeur testified that his wife had a violent temper, on one occasion threw her wedding ring at him and bit him, constantly argued with him, and generally made herself so disagreeable he left matrimonial domicile. Mrs. Credeur testified that her former husband went out with another woman on one occasion, spent his earnings mainly on himself, was constantly at meetings, both religious and civic, and refused to return home after he left for the last time although she entreated him to do so. Other witnesses testified on either side, but their testimony merely corroborated the testimony of the two opposing parties.

If Mr. Credeur’s testimony is accepted as true, Mrs. Credeur is partly at fault. If Mrs. Credeur’s testimony is accepted as true, Mrs. Credeur is free from “fault” as that term is defined in Adams, supra.

The trial court, which heard the testimony and observed the demeanor of the witnesses, is the best judge of the facts. We cannot say that the determination of the trial court that Mrs. Credeur was free from fault is clearly wrong.

Therefore, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: ELLIS, Judge:

text:
    Thomas PARKER, Sr. v. Doriscene Parker MOORE.
    No. 82 CA 0186.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Michael W. McKay, Baton Rouge, for plaintiff-appellant Thomas Parker, Sr.
    Norman L. Haymer, Jr., Baton Rouge, for defendant-appellee Doriscene Parker Moore.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

Judgment was rendered herein pursuant to a stipulation entered into by the parties. The judgment contained the following language:

“IT IS FURTHER ORDERED ADJUDGED AND DECREED that THOMAS PARKER, SR., be allowed to exercise visitation in accordance with the stipulation entered between the parties provided that Thomas Parker, Sr., post a $5,000.00, Surety Bond with a Surety company authorized to do business and doing business in the State of Louisiana, or in lieu thereof, a $2,500.00 cash bond.
“IT IS FURTHER ORDERED ADJUDGED AND DECREED that THOMAS PARKER, SR., is to file no legal proceedings in any court of jurisdiction of this State or any other State other than THE FAMILY COURT for the PARISH OF EAST BATON ROUGE seeking a modification of this judgment in any respect.”

Plaintiff Thomas Parker, Sr., has appealed from the judgment, objecting to that part thereof requiring him to post a bond, and to that part restricting him from filing a proceeding to modify the judgment in any court other than the Family Court in East Baton Rouge Parish.

The written stipulation contained in the record is silent as to the above two points. However, the oral stipulation entered into in open court on November 24, 1981, indicates that the parties agreed to the posting of a bond to insure that Mr. Parker would return the children after exercising his visitation rights, and not pursue the matter further in the State of Mississippi, where the parties had their matrimonial domicile.

The record contains the following colloquy, after the terms of the stipulation had been dictated into the record:

“THE COURT: All right, in suit number 55,275, Parker versus Moore, there’s judgment herein in accordance with the stipulation of the parties as dictated into the record. Now, gentlemen, of course, the visitation will not become effective until the bond is filed.
“MR. HAYMER: Yes, sir.
“THE COURT: Both of you sign—
“MR. MCKAY: I’ll prepare a stipulation—
“THE COURT: I want both parties to sign the judgment in this case also.
“MR. HAYMER: Both parties also?
“THE COURT: Both parties and both attorneys.”

In this court, plaintiff Parker contends that both the bond and the restriction of seeking modification in another forum are beyond the authority of the court. Defendant Doriscene Parker Moore contends that, having stipulated to the judgment in the court below, plaintiff cannot be heard to complain.

We agree with defendant. Article 2085 of the Code of Civil Procedure provides:

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

The judgment in this case is precisely in accordance with the stipulation which was entered into an open court, and made the judgment of the court. At the time that the judgment was signed, plaintiff voluntarily acquiesced therein by filing the bond required thereby. We find that the judgment was rendered pursuant to a confession of judgment, by stipulation, by both parties. Under the clear terms of Article 2085, supra, it is not appealable.

The appeal herein is therefore dismissed, at plaintiff’s cost.

APPEAL DISMISSED.


author: SHORTESS, Judge.

text:
    David LINER v. CITY OF HOUMA, Louisiana, et al.
    No. 82 CA 0187.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Vanessa L. Guidry, Keith M. Whipple, Houma, for plaintiff and appellant.
    Huntington B. Downer, Jr., Houma, for defendant and appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

David Liner (plaintiff) filed suit against Elwood Scoby and the City of Houma (defendant) for damages he sustained in a vehicular collision, which occurred on November 19, 1979. Plaintiff was injured when his motorcycle collided with a dump truck owned by defendant and operated by its employee, Elwood Scoby. At trial the parties stipulated that the sole and proximate cause of the accident was the negligence of the defendant driver in failing to obey a stop sign. Thus, quantum was the only issue to be determined. After hearing all the evidence, the trial judge rendered and signed judgment awarding plaintiff the sum of $21,402.99, itemized as follows: $12,-000.00 for pain and suffering and mental anguish; $5,400.00 for loss of earnings; $2,200.00 for property damages; and $1,802.29 for medical expenses. Thereafter, plaintiff’s motion for a new trial was denied and he perfected this devolutive appeal.

There are two issues raised on appeal:

(1) Whether the trial judge erred in refusing to allow Dr. Richard Landry, plaintiff’s witness, to testify concerning an examination he conducted on plaintiff during the noon recess on the day of trial; and
(2) Whether the trial judge abused his discretion in the amount awarded plaintiff.

ISSUE ONE

The first issue involves the trial judge’s ruling that certain testimony sought from Dr. Richard Landry was inadmissible. Dr. Landry had seen plaintiff in the Terre-bonne General Hospital shortly after the accident. He was called by Dr. Felix Math-ieu, the attending physician, on November 20, 1979, for consultation. Dr. Landry’s next examination was in his office during the noon recess on the first day of trial, December 2, 1980. Testimony concerning this latter examination was excluded by the trial judge. The court stated:

“That does not allow counsel, opposing counsel, anything but surprise. He is in no position to cross examine this doctor now.
“... it deprives opposing counsel of the opportunity of proper cross examination of this witness. And I maintain the objection, and I order that there be no further questions asked of this witness regarding the examination by the witness of the plaintiff on this day.” (Tr. 198)

Plaintiff maintains that this evidence should have been considered in determining the amount of his award.

La.C.C.P. art. 1631 provides in pertinent part:

“The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.”

In reviewing the record, we note the pretrial procedure and discovery mechanisms utilized in this suit. The defendant propounded interrogatories on May 15, 1980, requesting that plaintiff reveal the names of any of his treating physicians, their treatments and examinations, and the results thereof, in connection with the case. La.C.C.P. art. 1457. Plaintiff failed to name Dr. Landry in any of his responses to these interrogatories. Further, defendant’s interrogatories contained the traditional clause, sanctioned by La.C.C.P. art. 1428, requiring plaintiff to supplement his answers if further information became available.

Interrogatories are a discovery device designed for use in the preparation of a case for trial, and discovery should be completed sufficiently in advance of trial. LeBlanc v. Consolidated Aluminum Co., 401 So.2d 1082 (La.App.3d Cir.1981), writ denied, 409 So.2d 617 (La.1981). The trial judge concluded that plaintiff had recovered and was able to return to work on May 17, 1980. The only occasion on which plaintiff sought medical attention after May 17 was on July 31, 1980, when he went to the emergency room complaining of pain in his knee. From July 31 until the date of trial, December 2, plaintiff did not see a physician regarding his medical condition. In arguing for admissibility, plaintiffs counsel stated:

“We became concerned, during the course of this trial, that there was no recent medical examination of Mr. Liner. The Court indicated that it was concerned with what is Mr. Liner’s medical condition today.
“Ms. Guidry and I discussed the matter at lunch; I made the determination for her to call Dr. Landry and see whether or not Dr. Landry could see Mr. Liner today, examine him today and give a medical opinion in Court this afternoon as to his condition.”

Plaintiff’s counsel has offered no explanation and we see no reason why a medical examination could not have taken place before trial. Had this been done, defendant would have been entitled to updated medical information, as plaintiff had a duty to supplement his answers to defendant’s interrogatories. Further, defendant could have properly prepared his cross examination of this witness and had an opportunity to call rebuttal witnesses as he deemed necessary.

In preparation for trial, a pretrial conference was scheduled for 11:00 a.m. on November 25, 1980, one week before the trial date. On November 25, the trial judge filed a Pretrial Procedure Memorandum requiring that both attorneys submit pretrial statements which were to include:

“10. A list of witnesses (except those called for impeachment) each party may call, and a short statement as to the nature (but not as to the content) of their testimony.”

Plaintiff complied with this memorandum by filing a pretrial statement, wherein he listed Dr. Landry as a medical expert whom he might call. Plaintiff maintains that this provided defendant with sufficient information relative to Dr. Landry’s testimony, including his examination of plaintiff during the noon recess. We disagree.

Defendant was appraised of Dr. Landry’s existence as a consulting physician when he took the deposition of Dr. Felix Mathieu. He was informed of plaintiff’s intention to call Dr. Landry as a witness when plaintiff filed his pretrial statement. However, defendant’s knowledge of Dr. Landry’s medical treatment was limited to Dr. Landry’s consultation the day after the accident. Until the day of trial, this was Dr. Landry’s only exposure to plaintiff’s injuries. The commencement of trial cuts off formal discovery. Therefore, once trial began, defendant was reasonable in assuming that plaintiff’s direct examination of Dr. Landry would be limited to his hospital consultation. Defendant was unfairly surprised when confronted, during direct examination, with the information that Dr. Landry performed a medical examination during the noon recess, apparently without the knowledge of the trial court.

In Powell v. Giddens, 271 So.2d 596 (La.App.1st Cir.1972), this court affirmed a trial judge’s denial of a motion for continuance, as the trial judge acted within his broad discretion. We stated:

“The trial courts are under a duty to schedule their trial work and dispose of same expeditiously to alleviate the continuous problem of crowded dockets. Trial counsel, as officers of the court, have corresponding duties of diligence, and to make a good-faith effort to assist the courts with the disposition of cases set for trial.” 271 So.2d at 598.

Under these facts and circumstances, we find the trial judge was within his discretion in refusing to allow this additional testimony.

ISSUE TWO

Plaintiff challenges the sufficiency of the trial court’s award as to general damages and loss of wages. The trier of fact is afforded broad discretion in making an award of general damages. La. Civil Code art. 1934, subd. 3. Only when the record reveals a clear abuse of this discretion is an appellate court justified in disturbing a trial court award. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Carollo v. Wilson, 353 So.2d 249 (La.1977); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); and Autin v. Allstate Insurance Company, 402 So.2d 219 (La.App.1st Cir.1981). In Bitoun, supra, the Louisiana Supreme Court stated:

“The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down." 302 So.2d at 279. (Emphasis added.)

In Reck v. Stevens, 373 So.2d 498 (La.1979), the Louisiana Supreme Court set out the standard to be followed by appellate courts in reviewing trial court damage awards. The court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.” 373 So.2d at 501.

We have already determined that certain parts of Dr. Landry’s testimony were properly held inadmissible. Thus, we will examine the award of the trial judge, in light of the other evidence contained in the record.

At the time of the accident, plaintiff was 19 years old, single, and employed as a deckhand at Gulf International Marine, Inc. Plaintiff stated that immediately after the accident, when he regained consciousness, he was lying in the road and could see blood and feel pain, especially in his knee and wrist. He was immediately taken by ambulance to the Terrebone General Hospital, where he was seen by Dr. Mathieu. Plaintiff sustained a fractured left wrist and a torn medical meniscus of the left knee, as well as facial abrasions and cuts. Plaintiff testified he could not stand too long and still had difficulty walking, even at the time of trial.

By deposition, Dr. Mathieu testified that plaintiff’s treatment on the night of the accident involved sewing of the lacerations of the knee, placement of the knee in a knee splint and also placing a splint on the left arm. He stated that plaintiff was hospitalized from November 19 to November 24,1979; that he was given pain medication and antibiotics while in the hospital; that these medications were continued after discharge; and that when plaintiff left the hospital, his leg was in a cast, which was to remain for approximately six weeks.

Plaintiff consulted Dr. Steven Driscoll, a resident in orthopedic surgery at the South Louisiana Medical Center, on January 23, 1980, and Dr. Driscoll recommended and scheduled knee surgery in February. However, plaintiff failed to appear, and the surgery was rescheduled and performed on March 19, 1980. Two surgical procedures were performed: (1) an anthroscopy — the insertion of an optical instrument into the knee for observation purposes; and (2) an arthrotomy — the excising of torn cartilage. There were no complications. Normal recovery involves a recuperative period of eight to ten weeks. Dr. Driscoll stated that after recovery, return to normal activity was possible; that the knee may be slightly less stable even with full recovery; and that plaintiff’s period of recuperation might be longer due to his obesity and the fact that his knee had been in a locked position several months prior to surgery. Dr. Dris-coll saw plaintiff again on May 12, 1980, at which time he felt plaintiff was making a good recovery. Plaintiff was not officially discharged at that time; however, he failed to keep his June 3,1980, scheduled appointment and did not return to Dr. Driscoll thereafter.

Plaintiff went to the South Louisiana Medical Center emergency room July 31, 1980, complaining of pain in his knee. Plaintiff was seen by a Dr. Gumbel, who prescribed some pain medication and set an appointment for plaintiff on August 6, 1980. Plaintiff failed to keep this appointment, also.

This evidence supports the finding of the trial court that plaintiff had recovered as of May 17, 1980. The trial judge was not clearly erroneous in construing plaintiff’s consistent failure to keep appointments and lengthy periods without complaints, as indications that plaintiff was not continuing to have serious problems and did not feel the need for further medical treatment. The trial judge found that, “.. . plaintiff failed in his duty to himself and to the defendants to attempt rehabilitation and mitigation of damages.” We cannot say he was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find that under these facts, an award of $12,000.00 in general damages is not an abuse of the trial court’s wide discretion. Reck v. Stevens, supra.

Evidence as to loss of wages included the following: plaintiff testified that he is presently employed as a truck driver for Southland Hot Shot Company, making approximately $90.00 to $100.00 per week; that he sometimes has trouble working due to pain in his knee; that since his high school graduation in 1978, he has worked various jobs in warehouses and on boats; that his last job before the accident was as a deckhand for Gulf International Marine, making $45.00 per day, and that he has not attempted to return to that job due to instability in his knee. He stated that he had majored in nautical science in high school and had planned to become a tugboat captain.

Don Domangue, president of Gulf International, stated that plaintiff had not reapplied for work, although his company often hires handicapped persons, including deckhands with some degree of knee instability. He stated that his company would consider hiring someone with a knee which gives out occasionally and allow them the opportunity to attempt the work.

The trial court stated:

“It is proved by a preponderance of the evidence that the plaintiff never attempted to become re-employed by his former employer and it is alternatively shown by the evidence that even if he had a disability or a limitation that his former employer and others employ successfully and comfortably many handicapped individuals who were their former employees.”

We agree with that finding and also find that the record amply supports the trial judge’s award of $5,400.00 for loss of earnings occasioned to plaintiff from November 19, 1979, through May 17, 1980, which was calculated on the wage schedule at plaintiff’s last job with Gulf International, prior to the accident.

Accordingly, we affirm the decision of the trial court which disallowed the testimony of Dr. Landry’s examination of plaintiff during the noon recess on the day of trial. Further, we affirm the award of the trial court as to general damages and as to loss of earnings. All costs of this appeal are assessed to plaintiff.

AFFIRMED.

      . On November 12, 1980, the deposition of Dr. Stephen Robinson, an orthopedic surgeon, was taken. It was introduced at trial in lieu of his court appearance. Dr. Robinson is associated with the South Louisiana Medical Center. He last saw plaintiff on December 19, 1979, and would not comment on counsel’s request for an opinion as to whether plaintiff had any continued knee pain or significant disability. This deposition should have prompted an updated orthopedic examination.


author: COVINGTON, Judge.

text:
    Clifton AUTIN v. PARISH OF LAFOURCHE.
    No. 82 CA 0204.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Byron M. Unkauf, Atty., New Orleans, for plaintiff-appellant Clifton Autin.
    Jerome J. Barbera, III, Asst. Dist. Atty., Thibodaux, for defendant-appellee Parish of Lafourche.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This suit was filed by the plaintiff on April 6, 1977, against the defendant, Parish of Lafourche through its Police Jury, for breach of contract, seeking specific performance or recovery of damages. From a judgment in favor of the parish maintaining defendant’s peremptory exception of prescription and dismissing his suit at his costs, plaintiff has devolutively appealed. We affirm.

This litigation arises out of the following set of facts: On April 15, 1965, Norris J. Grabert, plaintiff's ancestor in title, granted a written servitude of drainage to the parish on an 18-acre tract of land in the Parish of Lafourche, State of Louisiana, which property was subsequently acquired by plaintiff and his wife from the widow and heirs of Grabert on May 22, 1974 The servitude was in connection with a project known as the Bayou Folse Watershed Project. As part of the consideration for the drainage servitude, the parish agreed to install a concrete bulkhead along some sections of the proposed drainage canal. Plaintiff alleged in his petition that the parish, although having dredged the drainage canal and done other things in connection with the dredging operation, failed to construct the concrete bulkhead. Admittedly, the parish has not performed this obligation under the agreement. In response to the petition, the parish filed a peremptory exception of prescription of ten years.

Both parties have agreed that the suit is for breach of contract and that the prescription of ten years applies, LSA-C.C. art. 3544. At the hearing on the exception, counsel for Autin stated:

... [W]e don’t dispute the facts as they relate to the time the suit was filed or when the contracts were entered into. Our whole contention is that prescription was interrupted in this particular case by Resolution of the Police Jury on May 24th, 1973, by Resolution of the Police Jury to re-confirm this commitment to build this particular bulkhead that is called for under the contract, and this is primarily where we stand. This is the issue before the Court .. . Whether or not the Resolution of 1973 did in fact interrupt prescription in this particular case... .

The contract was entered into between Grabert and the parish on April 15, 1965, and the suit was not filed until April 6, 1977, which is clearly not within the ten year prescriptive period unless there was an interruption of prescription.

It is plaintiff’s contention that interruption did in fact occur at the meeting of the Police Jury on May 24, 1973, and offered in evidence the testimony of two police jurors at the time, Harold Dantin and Hodges Folse, a certified copy of the resolution passed at the meeting, and a cassette tape of the entire meeting. The plaintiff also offered his own testimony, the testimony Wayne Bordelon, the district conservationist in the U.S. Department of Agriculture and Soil Conservation Service in Lafourche Parish, and the testimony of Avery Fonse-ca, an assistant to Carl Heck of Carl Heck Engineers, Inc. The defendant offered no evidence.

After considering all of the evidence, the trial court rendered judgment on December 21, 1981 maintaining the exception of prescription, and stated, in written reasons for judgment that:

The Court has reviewed the testimony of the witnesses, the wording of the resolution and has carefully listened to that portion of the tape which covered the question involved in the trial of this exception.
It was clear that the resolution does affirm “that the Jury, in keeping with the original commitment to the Bayou Folse Watershed, reaffirms its commitment to build the Bayou Folse Road, to furnish the Bridge at Nicholls University, to furnish fencing required, and to furnish bulkhead.” The resolution, however, was directed not to Norris Grabert or to the present owner, Clifton Autin, but to the ASCS, the legislative delegation, and the Department of Public Works. The Court does not recall even hearing Norris Gra-bert’s name mentioned in the discussion which occurred prior to the passage of this resolution. As a matter of fact, the bulk of the discussion was concerned not with bulkheading but with the obligation to furnish “fill” in some sections of the project. It was a general discussion covering the entire Bayou Folse Watershed and not a specific discussion covering the property in question.
The Court has carefully read the jurisprudence cited by counsel for both the plaintiff and defendant and feels that the defendant’s position is sound. The present status of the jurisprudence would indicate that interruption of prescription does not result merely from a general, casual comment or acknowledgment, but must be intended and specific. As counsel for defendant pointed out, the Courts have apparently established guidelines for the application of the principle of interruption — the acknowledgment must be expressed and certain, it must be definite and it must be accompanied or coupled with the clear purpose and intention of the party to interrupt prescription by such an acknowledgment. From the evidence presented, the resolution of the Police Jury of Lafourche Parish adopted at its meeting on May 24, 1973, and the discussion at that meeting do not fall within these guidelines. Accordingly, the Court holds that this suit was filed almost two years after prescription had run and the exception must be sustained. There will be judgment accordingly.

We have carefully reviewed the record and agree with the conclusion reached by the trial court. The plaintiff has failed to prove that the police jury acknowledged the obligation in such a manner as to interrupt the running of prescription. The recognition of the mere existence of a disputed claim is not an acknowledgment within the contemplation of LSA-C.C. art. 3520 which will effect an interruption of the running of prescription. Moreover, the interruption of prescription has no effect beyond the specific right of the person to whom the debtor makes the acknowledgment. Flowers v. United States Fidelity & Guaranty Company, 381 So.2d 378 (La.1980).

Accordingly, we affirm the judgment appealed at appellant’s costs.

AFFIRMED.

      . The property is described in the deed of acquisition as:
      Certain lots of land situated in the Parish of Lafourche, State of Louisiana, on the right descending bank of Bayou Lafourche, and at a distance of about 15 miles below the town of Thibodaux, and at about one and one-half mile back from Bayou Lafourche, described as follows, to-wit:
      Lots 47 and 48 of Sub-drainage District No. 1 (one) of Lafourche Drainage District No. 12 (twelve), containing eighteen (18) acres, more or less, as per plan of survey made by James S. Webb, C.E., on file with the clerk of court of said Parish of Lafourche, State of Louisiana.

      . The defendant also filed on exception of no right of action, claiming that inasmuch as its commitment was to plaintiff’s ancestor in title, not to plaintiff, it was for Grabert’s personal use, so Autin did not have a right of action. The trial court dismissed the exception of no right of action by holding that the right was a real right as opposed to a personal right and thus was one subject to conveyance along with title to the land burdened with the servitude.

      .The Resolution passed at the meeting reads as follows:
      BE IT RESOLVED by the Lafourche Police Jury in Regular Session convened on May 24, 1973 that the Jury in keeping with the original commitment to the Bayou Folse Watershed, reaffirms its commitment to build the Bayou Folse Road, to furnish the Bridge at Nicholls University, to furnish fencing required, and to furnish bulkhead.
      BE IT FURTHER RESOLVED that a certified copy of this resolution be forwarded to the ASCS, the Legislative Delegation and the Department of Public Works.
      Thomas M. Barker, President
      LAFOURCHE PARISH POLICE JURY
      Ruben J. Boudreaux, Secretary
      LAFOURCHE PARISH POLICE JURY


author: LANIER, Judge.

text:
    James Barry EDMONSON v. Olga Olivier Edmonson ABELL.
    No. 82 CA 0234.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Michael R. Connelly, Baton Rouge, for plaintiff-appellant James Barry Edmonson.
    Emile M. Weber, Baton Rouge, for defendant-appellee Olga Olivier Edmonson Abell.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a petitory action by James Barry Edmonson against his grandmother, Mrs. Olga Olivier Edmonson Abell, seeking recognition of his ownership of an undivided interest in property located in Baton Rouge, Louisiana. In his petition, Edmonson claims that a purported sale of the property (known as the old home place) by his deceased father, James Camille Edmonson, and his aunt, Mrs. Mary Elisabeth Edmon-son Tyndall, to his grandmother is an invalid simulation and that he has inherited an interest in the property through his father. The trial court ruled that the purported sale was in fact a valid donation and that Mrs. Abell (the grandmother) was the owner of the entirety of the property. This devolu-tive appeal followed.

I. FACTS

The judgment of possession in the Succession of James Earns Edmonson was rendered on January 27, 1976. This judgment declared that the sole and only heirs of James Earns Edmonson were his widow, Mrs. Olga Olivier Edmonson Abell, and his two children, Mrs. Mary Elisabeth Tyndall and James Camille Edmonson. Mrs. Olga Olivier Edmonson Abell was confirmed in her ownership of one-half of the community property (including the old home place) and each of the children inherited a one-fourth interest in this property.

Also on January 27, 1976, Mrs. Abell sold to Mrs. Tyndall and James Camille Edmon-son all of her right, title and interest in the old home place. The consideration for this sale was the granting by the purchasers to Mrs. Abell of “the usufruct and enjoyment of all the income derived from the property ... for as long as she shall live.” This act of sale specifically provided that Mrs. Tyndall was “purchasing the hereinafter described property with her own separate and paraphernal funds, under her separate administration and control, and forming no part of the community of acquets and gains that exists between her and her said husband; .... ” No such declaration was made with reference to the acquisition by James Camille Edmonson.

By act of cash sale dated April 21, 1978, Mrs. Tyndall and James Camille Edmonson purported to sell the entirety of the old home place back to Mrs. Abell for a consideration of $15,000.00. On April 28, 1978, Mrs. Tyndall, Mrs. Abell and James Camille Edmonson executed a counter letter wherein they declared that although the act of cash sale recited a consideration of $15,-000.00, “that, in truth and in fact, no money ever changed hands between the said parties and that this said sale was done for convenience sake only.” This counter letter was not recorded in the conveyance records of East Baton Rouge Parish until January 27, 1981.

James Camille Edmonson died in October of 1979. He was survived by a widow, Mrs. Helen Elizabeth Powell Edmonson, and four children, Sandra Elizabeth Edmonson, James Barry Edmonson, Mark T. Edmonson and Michael Ashton Edmonson. A judgment of possession was rendered in the Succession of James Camille Edmonson on December 29, 1980, but the old home place was not included in the succession.

II. FAILURE TO JOIN INDISPENSABLE PARTIES

Indispensable parties to an action are those whose interests in the subject matter are so interrelated that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action. La.C.C.P. art. 641. The failure to join an indispensable party may be noticed by an appellate court on its own motion. La.C.C.P. arts. 645 and 927. When an attempt is made to set aside the sale of land by a deceased person as being a simulation, the heirs of the deceased party are indispensable parties, within the meaning of La. C.C.P. art. 641, who must all be joined as parties to the action. Oby v. Flanagan, 356 So.2d 1047 (La.App. 1st Cir.1977); Succession of Terral, 301 So.2d 754 (La.App. 2nd Cir.1974). The only heir of James Camille Edmonson made a party to these proceedings is the plain tiff-appellant, James Barry Edmonson. The other three children of James Camille Edmonson, Sandra Elizabeth Edmonson, Mark T. Edmonson and Michael Ashton Edmonson, are indispensable parties and must be joined in this case.

Although the act of sale by Mrs. Abell to Mrs. Tyndall and James Camille Edmonson provides that the interest acquired by Mrs. Tyndall shall be her separate property, no such declaration was made with reference to the interest acquired by James Camille Edmonson. Thus, the interest obtained by James Camille Edmonson (one-fourth) from Mrs. Abell in that conveyance is presumed to.be a part of the community of acquets and gains existing between him and his wife, Mrs. Helen Elizabeth Powell Edmonson. Cheramie v. St. Pierre, 382 So.2d 1003 (La.App. 1st Cir.1980). There is no evidence in the record to show that James Camille Edmonson and his wife were separate in property. If the transaction by Mrs. Tyndall and James Camille Edmonson to Mrs. Abell is set aside as a simulation, then Mrs. Helen Elizabeth Powell Edmonson may be an owner of an undivided one-eighth interest in the property, and as such, is an indispensable party to these proceedings. Mason v. Nattin, 355 So.2d 44 (La.App. 2nd Cir.1978).

If the transaction by Mrs. Tyndall and James Camille Edmonson to Mrs. Abell is set aside as a simulation, then Mrs. Mary Elisabeth Edmonson Tyndall will be reinstated as an owner of a one-half interest in the property. As such, she is an indispensable party and should have been included in this action.

Since La.C.C.P. art. 641 provides that no adjudication of an action can be made unless all indispensable parties are joined therein, the appropriate action to be taken when an appellate court notices the absence of indispensable parties is to remand the case to the trial court for the joinder of the indispensable parties and a retrial of the case. State, Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 279 So.2d 671 (La.1973); Guice v. Modica, 337 So.2d 302 (La.App. 2nd Cir.1976).

III. CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and this case is remanded to the trial court for the purpose of joining Sandra Elizabeth Ed-monson, Mark T. Edmonson, Michael Ash-ton Edmonson, Mrs. Mary Elisabeth Ed-monson Tyndall and Mrs. Helen Elizabeth Powell Edmonson as indispensable parties to these proceedings and for a retrial of the case. The appellant is east for all costs of this appeal.

REVERSED AND REMANDED.

      . La.C.C.P. arts. 3651, et seq.

      . Owen v. Owen, 336 So.2d 782 (La.1976).

      . The widow was remarried to Percy T. Abell prior to the rendition of the judgment of possession.

      .Apparently, the statutory usufruct in favor of Mrs. Abell was terminated by her remarriage. La.C.C. art. 916.


text:
    Roland ACOSTA v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, SOUTH LOUISIANA MEDICAL CENTER.
    No. 82 CA 0262.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Ralph S. Whalen, Jr., Oestreicher & Whalen, New Orleans, for appellant.
    Frank H. Perez, Dept, of Health & Human Resources, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Dept, of State Civil Service, Baton Rouge, for Allen H. Reynolds, Acting Director, Dept, of State Civil Service.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

Roland Acosta, a former employee of the Department of Health and Human Resources, seeks to have the dismissal of the appeal of his termination by the Department reversed on the ground that he should have had a ten-day period for application for rehearing of the Department’s decision before the 30-day period for appeal commenced. His appeal was dismissed by the Civil Service Commission because it had not been filed timely.

This litigation arose out of the appellant’s termination from his position as Police Officer I at South Louisiana Medical Center by the Department of Human Resources. He was serving with permanent status when he received a letter dated August 12, 1980, over the signature of Charles H. Olivier, Administrator, advising him that he was being terminated effective August 20, 1980. The notice of appeal was allegedly delivered to the United States Post Office in Houma, Louisiana, on September 11, 1980, by counsel for appellant. This letter was postmarked September 20, 1980, and was filed with the Commission on September 22, 1980; both dates were after the 30-day period for appeal. The Director advised appellant and his attorney that he was declining to docket the appeal because it was untimely.

A letter requesting the Director to reconsider his action was sent on October 12, 1981, by appellant’s new attorney. Attached to this letter was an affidavit executed by the secretary of the former attorney which stated that she and the former attorney had personally delivered the notice of appeal to the main post office in Houma, Louisiana, at 5 p.m., on September 11, 1980. In order for the Commission to rule on the issue raised in this letter, the Director ordered the appeal to be docketed.

The appeal was submitted to the Commission on the basis of pleadings and the attachments thereto. In its opinion dated March 12, 1982, the Commission made the following factual findings:

1. Appellant received the letter of removal on August 14, 1980.
2. The notice of appeal dated September 11, 1980, was delivered to the main post office on that date.
3. The notice of appeal was received with the envelope postmarked in New Orleans at 1 p.m. on September 20, 1980, and a Department of State Civil Service mail receipt stamped on September 22, 1980.

The Commission further found that Civil Service Rule 13.12(a) specifies that in order for a notice of appeal to be considered timely, it must either be filed in the Director’s office or be dated by the United States Post Office within 30 calendar days of the date appellant received written reasons for the disciplinary action. Under this rule, the Commission held that this appeal was not received timely and the envelope in which this appeal arrived was not dated by the post office within the 30-day period. Mere delivery of the letter to the post office within the appeal period will not suffice to meet the requirements of these rules; therefore, this appeal was not timely.

We affirm the Commission’s finding that the appeal was not filed timely. The Civil Service rule is explicit in its requirements, and these were clearly not met in this case as the notice of appeal was not filed with the Commission or postmarked by the post office within 30 days of the notice of dismissal. In the case of David v. Department of Public Safety, 261 So.2d 347, 350 (La.App. 1st Cir.1972), which also held that an appeal was untimely, the Court noted:

After the time for taking an appeal has expired, the appellate court lacks jurisdiction and cannot entertain the appeal.

As in the case of any other appeal, the timely filing of a request for appeal in administrative determinations is jurisdictional. Baloney v. DHHR Office of Family Services, 364 So.2d 203 (La.App. 1st Cir.1978).

We reject appellant’s argument that he should have had a ten-day period in which to apply for rehearing of the decision of the Department before the 30-day period of appeal commenced. The Supreme Court in the recent case of Smith v. Department of Health and Human Resources, 416 So.2d 94 (La.1982), held that the rehearing provision of the Administrative Procedure Act is not applicable to decisions of the Civil Service Commission. In so holding, the Court stated:

La. Const, art. 10 § 10(A) vests the Commission “with broad and general rule-making and subpoena powers for the administration and regulation of the classified service .... ” This constitutional grant of rule-making power to the Commission precludes the legislature from enacting a statute which would nullify the Commission’s rule prohibiting a hearing from a final decision of the Commission. Accordingly, the rehearing provision of the Administrative Procedure Act is not applicable to the decisions of the Commission.

Id. at 96. In Smith, the letter appealing the termination of a police officer was deemed timely when it was received by the Commission on the 30th calendar day after the decision of the Commission became final. In the instant case, however, the letter of appeal was not postmarked nor received within the 30-day appeal period, and therefore, the appeal must be dismissed, as the Civil Service Rules governing appellate procedure were not complied with. Accordingly, for the above reasons, we affirm the Commission’s decision, with costs to appellant.

AFFIRMED.


author: PONDER, Judge.

text:
    Barbara Suzanne SAMPLE v. John Henry SAMPLE.
    No. 82 CA 0468.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Alan S. Fishbein, Baton Rouge, for plaintiff-appellee.
    G. Thomas Arbour, Baton Rouge, for defendant-appellant John Henry Sample.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

This is before us on a motion to dismiss an appeal on the basis that the parties stipulated to the judgment.

It arose under the following circumstances.

In 1981 plaintiff secured a judgment of separation. The parties stipulated that the judgment should contain mutual injunctions prohibiting the parties from alienating or encumbering any community property prior to voluntary settlement or judicial partition of the property. After a motion by defendant to terminate the injunction in March, 1982 was denied, the mutual injunctions were maintained in a judgment of divorce granted in April, 1982. In addition to the divorce and the injunctions, this judgment contained the grant of custody of the minor children, rights of visitation, and the termination of alimony pendente lite granted previously to the defendant.

Defendant was granted a suspensive appeal and furnished bond for it. Plaintiff filed a motion to dismiss the appeal on the basis that defendant stipulated to the mutual injunctions. Defendant asserts that the stipulation applied only to the judgment of separation, the effect of which was ended by the judgment of divorce, that the stipulation applied only to the preliminary injunction of the judgment of separation and not to the permanent injunction of the judgment of divorce.

The arguments presented to the court are beside the point.

The stipulation was that the injunctions were to be effective until voluntary settlement or judicial partition of the community property. These conditions have not occurred.

Also, the Supreme Court in Davis v. Davis, 420 So.2d 432 (La.1982), held that:

“An injunction obtained by a party to a suit for separation or divorce continues until: (1) there is a court order; or (2) the necessity abates because the community property has been inventoried and/or partitioned.”

However, the judgment has provisions other than the injunctions, and these provisions are appealable.

The motion to dismiss the appeal is denied.


author: EDWARDS, Judge.

text:
    The CITY OF PORT ALLEN, Louisiana v. LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY, et al.
    No. 82-CA-0620.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    R. Gordon Kean, Charles S. McCowan, Jr., Baton Rouge, for plaintiff-appellee City of Port Allen, Louisiana.
    James S. Burland, Baton Rouge, for defendant-appellant The Louisiana Municipal Risk Management Agency, et al.
    Roy A. Mongrue, Jr., David G. Sanders, Dept, of Justice, State of La., Baton Rouge, for defendant-appellant The State of Louisiana.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

The City of Port Allen, Louisiana, filed suit against the Louisiana Municipal Risk Management Agency, the State of Louisiana, and William J. Guste, as Attorney General of the State of Louisiana, seeking a declaratory judgment on R.S. 33:1349(C), as tb its liability for acts of other fund members. The lower court granted plaintiff’s motion for summary judgment, and declared the cited act unconstitutional.

From that judgment, the State of Louisiana appealed to this Court. However, plaintiff-appellee has filed a motion to dismiss the appeal on the ground that under Article 5, Section 5(D)(1) of the Louisiana Constitution of 1974, the Louisiana Supreme Court has exclusive jurisdiction of an appeal of a judgment declaring a law unconstitutional. The Attorney General has answered the Motion to Dismiss, asking that the appeal be transferred to the Louisiana Supreme Court.

By virtue of the authority vested in this Court by R.S. 13:4441, 4442, it is ordered that this case be transferred to the Supreme Court of Louisiana. The transfer must be made within thirty days after this decree has become final, otherwise, the appeal is to be dismissed. Costs of the appeal to this court and the costs of transferring the case to the Supreme Court are to be paid by appellant.

APPEAL TRANSFERRED.


text:
    Delton H. CASON v. DIAMOND M DRILLING COMPANY, et al.
    No. 82 CA 0638.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    William B. Baggett, Baggett, McCall, Singleton, Ranier & Ieyoub, Lake Charles, for plaintiff.
    Joseph J. Weigand, Jr., Weigand & Sieg-rist, Houma, for Diamond M Drilling Co., defendant and third party plaintiff.
    Raymond Morgan Allen, Allen Gooch & Bourgeois, Lafayette, for Union Oil Co., defendant and third party plaintiff.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

ON MOTION TO DISMISS

Appellee, Delton H. Cason, seeks the dismissal of the suspensive appeal of the defendant, Diamond M Company, because of the alleged untimely filing of the appeal bond. The motion is opposed.

The record reflects that this suit commenced as a petition for damages for personal injuries suffered by plaintiff in an accident which occurred while he was working on a vessel owned by defendant Diamond M, under the supervision of Union Oil Company, which was also sued as a defendant.

The suit was tried to a jury beginning on July 6, 1981, and a verdict was rendered on July 9, 1981, in favor of plaintiff, finding negligence on the part of both defendants. Several matters not submitted to the jury were, by stipulation of all parties, submitted to the trial court for decision. Union orally requested notice of judgment, but Diamond M did not make any request for notice.

Judgment was signed September 2, 1981, based on the jury’s verdict, and all matters previously submitted to the court were either ruled on or, in the absence of a favorable decision, were held to be dismissed. Notice of judgment was mailed to all parties on September 4, 1981, and on September 11, 1981, Union moved for a new trial. A hearing on whether a new trial should be granted was held on November 20, 1981, at which time, with all parties present, the trial judge granted a new trial to Union, limited solely to the issue of Union’s negligence. At that time Diamond M also requested a new trial, which was denied; however, the court held the judgment of the first trial in abeyance pending the outcome of the second trial.

On January 14, 1982, a second jury trial was held; and no negligence on the part of Union was found: hence, Diamond M was required to bear the entire damages awarded at the first trial. Diamond M was not a party to the second trial, and did not request notice of judgment. The judgment of the second trial, in accordance with the jury’s verdict, was signed on February 2, 1982, wherein the court incorporated all elements of the September 2, 1981 judgment which were not inconsistent therewith, and made them part of the judgment.

On March 2, 1982, Diamond M Drilling Company filed a petition for appeal and obtained an order granting a suspensive appeal “upon defendant furnishing bond with good and solvent security, conditioned as the law directs.” On March 29, 1982, Diamond M Drilling Company filed its surety bond.

Appellee asserts that Diamond M’s appeal must be dismissed because the suspensive appeal bond was not timely filed as provided under LSA-C.C.P. art. 2123. Appellant opposes the dismissal and states that the bond was timely filed since it had not received notice of the signing of the judgment and, therefore, the delays for the filing of the suspensive appeal had not begun to run. It is the contention of Diamond M that the delays did not begin to run until notice of judgment was given because the first trial was taken under advisement, the issue of prejudgment interest was taken under advisement at the second trial, and notice of judgment was requested by its co-defendant, Union.

The second trial was limited strictly to the issue of liability of Union. When the jury returned the verdict specifically to the effect that no negligence was found on the part of Union, there were no issues for the trial court to take under advisement, all previous matters having been determined by the first jury trial and by the trial judge. At the second trial, the judge took no matters under advisement. No request for notice of judgment was made at the second trial.

Under the Code of Civil Procedure, notice of judgment is required only if a party has requested it, or if the case is taken under advisement; the notice of judgment is not required in any other instance which might apply here. LSA-C.C.P. art. 1913. Since the appellant herein did not ask for a new trial from the judgment of the second jury trial and was not entitled to notice of judgment, the delays for filing a suspensive appeal began to run of February 10, 1982. Appellant had 30 days in which to perfect its suspensive appeal. Although Diamond M was granted a suspensive appeal on March 2, 1982, the suspensive appeal bond was not filed until March 29, 1982, which is not within the 30-day delay period.

Therefore, this Court is without jurisdiction to entertain the suspensive appeal. See Gwatney v. Miller, 365 So.2d 1133 (La.App. 1st Cir.1978).

Accordingly, the suspensive appeal of Diamond M is untimely since the bond was not filed prior to the deadline for perfecting such as appeal from the February 2, 1982, judgment.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED.

      . Plaintiff brought the matter before the Court on a rule to recall the suspensive appeal order, which is in the nature of a motion to dismiss the suspensive appeal.

      . There has been no motion to dismiss the devolutive appeal and the appellee’s motion is limited to the suspensive appeal, so the case is still before this Court as a devolutive appeal.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Dwayne A. RICHARD.
    No. 82 KA 0653.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    William Yates, Asst. Dist. Atty., Houma, for plaintiff.
    Keith M. Whipple, Houma, for defendant.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

The defendant, Dwayne A. Richard, appealed the ruling of the trial court, and this court ex proprio motu-issued a show cause as to why the appeal should not be dismissed.

The defendant, Dwayne A. Richard, was arrested and charged with possession with intent to distribute a controlled dangerous substance, to wit: marijuana, in violation of La.R.S. 40:966 A (1). At the time of his arrest, the defendant was allegedly attempting to sell marijuana to a State trooper. Defendant was driving an automobile in which the arresting officers found bags of marijuana on the floor and a large quantity of currency in the glove compartment. The troopers seized the marijuana and the currency, among other articles, and gave a receipt by way of an Evidence/Property Receipt to the defendant for the currency and the other articles. After the defendant was arraigned, he filed a Motion to Show Cause why the money should not be returned to him. A contradictory hearing was held on the Motion, at which hearing testimony was heard and following which the trial judge dismissed the Motion to Show Cause.

Defendant filed his Motion to Show Cause why the money should not be returned in the criminal proceeding rather than in a separate civil proceeding under La.R.S. 15:41. Defendant argues that under La.R.S. 32:1550 the district attorney may institute forfeiture proceedings by summary process, and no time limit is provided. Additionally, that by instituting his show cause proceeding in the criminal proceeding, rather than a separate civil proceeding, the defendant has obtained a final judgment from the trial judge on the issue of the return of the seized money, and as such it is appealable.

The contradictory hearing held in the trial court was not one held pursuant to the forfeiture proceedings of La.R.S. 32:1550. The testimony shows that the seized money was to be used as evidence at the trial of the defendant, which had not yet been held, and as such, the ruling was interlocutory and not appealable. State v. Garnier, 261 La. 802, 261 So.2d 221 (1972).

Therefore, for the above and foregoing reasons the judgment appealed from is dismissed at appellant’s costs.

APPEAL DISMISSED.


author: AUGUSTINE, Judge.

text:
    STATE of Louisiana v. Terry GAINS.
    No. K0130.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 18, 1982.
    Nancy Sharpe, Asst. Dist. Atty., New Orleans, for relator.
    Maurice Hattier, Orleans Indigent Defender Program, New Orleans, for respondent.
    Before GULOTTA, GARRISON and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

On May 2, 1982, defendant Terry Gains was arrested by two New Orleans police officers for possession of pentazocine, a controlled dangerous substance, and was formally charged with that offense. At a pretrial hearing, the trial court ruled that there existed no probable cause for Gains’ arrest and, therefore, that the evidence— the pentazocine — should be suppressed. We granted certiorari to review that decision.

The facts which gave rise to the defendant’s arrest are these:

On May 2, 1982, Glen Serpas and Michael Walsh, both of the New Orleans Police Department, were riding in a marked police car near the intersection of Magazine and Felicity Streets when they were flagged down by a person whom they knew as “Sammie.” He advised the officers that at that moment, a person named “Terry” was engaged in a drug deal in front of 803 Felicity Street, about two blocks away. Terry was described as a black female, wearing a white shirt and short blue pants. The officers drove to that location and saw the defendant, dressed in the manner described, standing alone in the courtyard of an apartment complex. Upon observing the officers, the defendant walked toward the street, turned and continued toward the 700 block of Felicity Street. Along the way, she jettisoned a matchbox. At that point, Officer Walsh stopped the police car, allowing Officer Serpas to exit and retrieve the property. When it was discovered by Serpas that the matchbox contained seven sets of “Ts and Blues”, as the contraband is known, the officers followed the defendant and arrested her in the next block.

At the hearing of the motion to suppress, the defendant’s cross-examination of Officers Serpas and Walsh revealed a serious concern for whether the informant Sammie was credible and whether his information was reliable. It was established that the officers had scant knowledge of Sammie’s background and did not even know his last name. They had acted upon his information only once before, but that occasion did not yield an arrest or conviction. Based upon that information, the trial court ruled that because the State had not established the credibility of the informant and the reliability of his information, as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1974), the evidence should therefore be suppressed for lack of probable cause to arrest. We reverse.

An unprovoked abandonment presents independent legal basis for the seizure of evidence, without regard to the question of probable cause. Stated another way, when property is truly abandoned, its seizure is beyond the protection of the Fourth Amendment because the individual’s right of privacy in the thing has come to an end. State v. Williams, 398 So.2d 1112 (La.1981); State v. Ryan, 358 So.2d 1274 (La.1978); State v. Perique, 340 So.2d 1369 (La.1976). If, on the other hand, the abandonment was caused by an illegal intrusion, the violation of the owner’s right of privacy has its remedy in the exclusion of the evidence. State v. Lawson, 256 La. 471, 236 So.2d 804 (La.1970).

We do not regard the officers’ conduct as intrusive. Although the information received by Serpas and Walsh may not have provided “probable cause” to arrest the defendant, its detail and specificity regarding the defendant’s description, location, and activity were sufficient to justify a reasonable curiosity as to the named suspect’s activity. The officers, then, were correct in at least driving to the suspect’s location to observe her and to verify for themselves whether she was engaged in any apparently illicit transaction. When they first arrived in the 800 block of Felicity Street, the policemen did not intrude upon the defendant’s freedom of activity or movement — the officers did not even stop their automobile and alight until after Ms. Gains threw down the matchbox.

To affirm the suppression of evidence in this case would require this court’s holding that Officers Serpas and Walsh intruded upon the defendant’s right of privacy by driving in her vicinity on a public street. With that proposition we cannot agree.

CONCLUSION

There being no unlawful intrusion upon the defendant’s right of privacy, the recovery of pentazocine was the result of a true abandonment by the defendant and is therefore beyond the protection of the Fourth Amendment. The evidence, therefore, should not have been suppressed. The ruling of the trial court is hereby reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: REDMANN, Chief Judge.

text:
    Marsha WOODS, Individually and on Behalf of Her Minor Son, Richard WOODS v. GENERAL MOTORS CORPORATION, et al.
    No. 13264.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 22, 1982.

      Leonard A. Radlauer, New Orleans, for plaintiff-appellant.
    Gerard M. Dillon, Dillon & Cambre, New Orleans, Stephen N. Elliot, Mickey Delaup, Bernard, Cassisa, Babst & Saporito, Bruce J. Borrello, Borrello & Huber, Metairie, for defendants-appellees.
    Before REDMANN and GULOTTA and SCHOTT, JJ.
   REDMANN, Chief Judge.

We affirm a directed verdict of dismissal of this action against the manufacturer and two service dealers for damages to plaintiff when the owner-driver of an automobile lost control making a turn and drove onto plaintiff’s lawn, injuring him.

Plaintiff’s theory is that the brakes were defectively made or repaired. The evidence is uncontradicted that, despite the owner’s alleged complaint of their feeling “low,” the brakes always stopped the car during its two years of use before and several days after the accident before it was taken for repair.

Plaintiff presented no expert testimony that would explain how brakes that always worked before and after the accident could have failed in that one instance, or what sort of defect could explain such an occurrence so contrary to common experience.

On the “most favorable” view for plaintiff of the evidence, Ragas v. Argonaut-Southwest Ins. Co., 379 So.2d 822, 823 (La.App. 4 Cir.1980), the jury could not reasonably have concluded that some defect existed which caused the driver to lose control. Because the driver is to so great an extent the controller of an automobile’s direction, speed and stopping, this is not a case like Marquez v. City Stores, 371 So.2d 810 (La.1979), in which the mere occurrence of the accident establishes that there had to be some defect in the instrumentality that caused it.

Affirmed.


author: BOWLING, Justice, for the Court:

text:
    Annie Ruth JOHNSTON, Deceased, Dependents of v. HATTIESBURG CLINIC, P.A. and St. Paul Fire & Marine Insurance Company.
    No. 53445.
    Supreme Court of Mississippi.
    Nov. 17, 1982.
    McMahan & McMahan, Michael B. McMa-han, Hattiesburg, for appellants.
    Aultman & Aultman, Lawrence C. Gunn, Jr., Hattiesburg, for appellees.
    Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.
   BOWLING, Justice, for the Court:

The appeal of this workmen’s compensation case comes from the Circuit Court of Forrest County. The dependents of Annie Ruth Johnston, deceased, appeal from an adverse order of the lower court affirming the decision of the Workmen’s Compensation Commission denying death benefits. Mrs. Johnston died from a heart attack, the onset of which occurred while she was engaged in her employment with the appellee, Hattiesburg Clinic. Appellants assign the following alleged errors:

I. THE CIRCUIT COURT OF FORREST COUNTY ERRED IN DISMISSING THE PETITION FOR APPEAL FILED ON DECEMBER 30, 1980.
II. THE COURT ERRED IN ITS FINAL JUDGMENT OF SEPTEMBER 15, 1981.
III. THE FACTUAL FINDINGS OF THE MAJORITY MEMBERS OF THE COMMISSION ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
IV. A REBUTTABLE PRESUMPTION OF CAUSAL CONNECTION BETWEEN EMPLOYMENT AND DEATH SHOULD HAVE BEEN APPLIED TO THIS CASE, AND THE DEFENDANTS FAILED TO OFFER SUFFICIENT EVIDENCE TO REBUT THE PRESUMPTION OF CAUSAL CONNECTION.

It is necessary first to dispose of the alleged error of the circuit court in dismissing appellants’ petition for appeal from the commission’s order to the circuit court.

The order of the Workmen’s Compensation Commission was entered on September 19, 1980. On October 3, 1980, appellants filed a motion requesting a review of the evidence by the commission. On November 6, 1980, the commission entered its order overruling the motion for review. Appellants’ notice of appeal to the circuit court was filed on November 13, 1980. Appellees contended successfully before the circuit court that the October 3 motion to review did not serve to toll the thirty-day appeal requirement from the commission to the circuit court. [MCA § 71-3-51 (1972)].

The question appears to be of first impression before this Court. We first note the provisions of MCA § 71-3-53, which provide that:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.. .. (Emphasis added).

In looking at the appeal statute and the above quoted section on “continuing jurisdiction of the commission,” it appears that the motion of appellants, when filed within the thirty-day appeal period, would toll the thirty-day requirement until an order disposing of the motion is entered by the commission. Going further, there are several other considerations. We have held that a rule of statutory construction is that “where the language of a statute is doubtful and the necessity for construction arises, the court may consider whether the legislature could have intended a construction that would be highly injurious, rather than one beneficial and harmless.” See McCaffrey Food Market, Inc. v. Miss. Milk Commission, 227 So.2d 459 (Miss.1969).

Another appeal requirement in workmen’s compensation cases is that the losing party before an administrative judge is required to file his notice of review before the full commission within twenty days from the date of the order of the administrative judge. [MCA § 71-3-47 (1972)]. In the case of Day Detectives, Inc. v. Savell, 291 So.2d 716 (Miss.1974), the losing party before the administrative judge filed a similar motion as was filed here within the twenty-day statutory period. We held that the filing of that motion tolled the twenty-day statutory appeal time from the administrative judge’s order to the full commission.

It further appears that the motion filed herein after a final judgment by the commission is similar to the filing of a motion for a new trial in a court of record. We have held many times that the filing of such a motion tolled the time for appeal. Garrett v. Miss. State Highway Commission, 227 So.2d 856 (1969); Gulf, Mo. O.R. Co. v. Forbes, 228 Miss. 134, 87 So.2d 488 (1956); Davidson v. Hunsicker, 224 Miss. 203, 79 So.2d 839 (1955); Edwards v. Peresich, 221 Miss. 788, 74 So.2d 844 (1954); and Shaw v. Bula Cannon Shops, Inc., 205 Miss. 458, 38 So.2d 916 (1949).

We are of the opinion that the circuit court was in error in dismissing appellants’ petition for appeal. It is clear, however, that the error in this particular case is harmless as the circuit court heard the appeal under the commission’s order overruling appellants’ motion for review. The entire cause is before the Court on the circuit court’s review of that order.

The remaining three assignments of error may be discussed together. We primarily consider the assignment regarding the re-buttable presumption of causal connection between the employment of the deceased and her death and whether or not appellee overcame this presumption. First, we need to look at the practically undisputed facts.

Mrs. Johnston had been employed by the appellee, Hattiesburg Clinic, for twenty-six years. During this period of time, the clinic grew from a relatively small three physician clinic to a large metropolitan clinic of well over 130 employees and physicians. The testimony of the deceased’s husband and daughter dependents, other knowledgeable persons, and former employees, was that in recent weeks and months prior to her death, Mrs. Johnston had been under an extremely heavy work load. She was the assistant administrator of the clinic. The employment of the administrator had been terminated and Mrs. Johnston had assumed increasingly numerous tasks and had developed from a personnel and equipment supervisor to a managerial capacity. It is undisputed that prior to a few weeks before her death, Mrs. Johnston handled her duties adequately and without any adverse effects. Her personal medical records at the clinic for many years revealed a normal, healthy person, without any history of cardiovascular disease or any other serious ailments. She was a very energetic employee.

The testimony is undisputed that prior to her knowledge that the administrator was leaving and her increased duties, Mrs. Johnston reported for work between 8:30 and 9 a.m. and left work about 5:30 p.m. During the last three or four months prior to her death, she had been going to work at 8 a.m. and staying until 6:30 to 7:30 p.m. She would come home extremely tired, irritable, and upset. The clinic administrator testified that Mrs. Johnston’s responsibilities during the six month period prior to her death increased pressure on her; that a new building had been completed and Mrs. Johnston’s duties included the moving of personnel and adjustments in the new building, which as hereinabove stated, had grown into a very large operation.

All that is known about Mrs. Johnston’s activities on the day of the onset of her heart attack also is undisputed. She arrived at work around 8 a.m. Only one person saw her from that time until the onset of her fatal attack that occurred at approximately 9:30 a.m. This person was a Mrs. Nemeth, the switchboard operator. She saw Mrs. Johnston in the clinic lounge and had coffee with her for a few minutes at approximately 9:15 a.m. According to Mrs. Nemeth when Mrs. Johnston left the lounge, she was carrying a box of stationery. Mrs. Johnston was found having the onset of her heart attack, as above stated, while she was on the elevator of the clinic. It was immediately diagnosed that she had suffered an acute myocardial infarction. She was taken to the hospital by ambulance and died approximately six hours later.

Mrs. Johnston was treated at the hospital by Dr. Gable, who had been her physician for many years. Dr. Gable appeared to be the head, or one of the top managing physicians, of the clinic.

At the hearing of the cause, appellants fully developed the facts, as hereinbefore stated in concise form. Neither appellants nor appellee introduced testimony from Dr. Gable. Appellee introduced the testimony of Dr. Cowan, a cardiologist who had been employed to practice with the clinic after the death of Mrs. Johnston. He did not know her and never treated her. Under a hypothetical question setting out the facts of the case, it was his opinion that there was no causal relation between the death of Mrs. Johnston and her employment. His opinion was that Mrs. Johnston’s activities could causally relate to the onset of the attack only if she had been engaged in “extreme physical exertion.” He, unlike many records before this Court, testified positively that stress, fatigue, pressure, emotion, or anything except “extreme” physical exertion would have nothing whatsoever to do with aggravating any prior heart condition of Mrs. Johnston. He assumed that she had a prior condition. As hereinbefore stated the clinic records, up until her death, showed absolutely no prior condition of this kind. Dr. Gable, who did not testify, had been her personal physician for many years.

It would be helpful to look at portions of the orders of the Workmen’s Compensation Commission’s majority and dissenting opinions. The commission recognized the presumption of causal connection and stated:

[H]ere the employee’s “lips were not sealed” to explain and relate her activities. The cause of death was explained and agreed and the decedent’s activities were documented without conflict by her co-workers.... There is no unexplained cause of death. The medical and lay evidence support the fatal character of the infarct. Following the onset of her attack the deceased’s condition was immediately diagnosed as a myocardial infarction and she was treated as a heart patient both at the Hattiesburg Clinic and Forrest General Hospital. The treating physician was available to comment on this question of causation, but was not called by the claimant. Also, deceased’s activities on the day of her death, even up to moments before she collapsed, were fully reported. Considering this evidence, the majority members of the Commission are of the opinion that the factual requisites for the “found dead” presumption have not been established.

Before going to the dissenting opinion, we say without reservation that the statement by the majority commission that the deceased’s activities on the day of her death, even up to moments before she collapsed, were clearly reported, is completely erroneous. Other than the very few minutes of having coffee with Mrs. Nemeth, no activities whatever of the deceased were shown in the evidence or in this record. There is absolutely no justification in the record for the statement by the majority.

Furthermore, it is inconceivable that the majority of the commission would base its opinion on a finding that Mrs. Johnston’s “lips were not sealed.” It does not take a doctor or a medical student to know that a person who has a myocardial infarction as serious as the one Mrs. Johnston had about 9:30 a.m., was taken to the hospital by ambulance and placed in intensive care, immediately sedated, given oxygen and in extremely poor physical and mental condition prior to her death in a relatively short time, was not in a position to unseal her lips and give statements as to everything she did between 8 a.m. and 9:30 a.m. She did not do so as shown by the record and an assumption that she could do so, in our opinion, is unwarranted. The minority opinion followed the record and pointed out in detail what is shown in the record as herein-before briefly condensed.

As stated, there are a number of cases directly in point on the practically undisputed facts in the case sub judice. A number of cases have held that when an employee is found dead at his place of employment, the presumption of causal relation to the employment arises. See Alexander v. Campbell Construction Co., 288 So.2d 4 (Miss.1974); Holman v. Standard Oil Co. of Kentucky, 242 Miss. 657, 136 So.2d 591 (1962); and Majure v. William H. Alsup & Associates, 216 Miss. 607, 63 So.2d 113 (1953), and others.

The “found dead” presumption has been held to apply to a situation as in the case sub judice where admittedly the onset of the heart attack occurred while the employee is about his master’s business. In Russell v. Sohio Southern Pipelines, Inc., 236 Miss. 722, 113 So.2d 667 (1959), this Court through Chief Justice McGehee said:

It has been heretofore recognized by our decisions that there is a presumption of a causal connection between the employment and the injury or death when the onset of a heart attack occurs while the employee is about his work and engaged in the duties of his employment, and that the fatal consequences arise out of and in the course of the employment. The question therefore in this case is whether or not the employer has met the burden of overcoming that presumption.

We do not like to include long quotations from previous cases in our opinions. It appears, however, that the opinion in one case settles the issue before us. In Washington v. Greenville Manufacturing and Machine Works, 223 So.2d 642 (Miss.1969), the deceased was found dead on the floor of his employer’s premises just inside the sliding door, where he normally would have entered. He was found about twenty minutes before 7 a.m. He usually was expected to begin work about 7 a.m. It was the examining physician’s opinion that the deceased had died from a heart attack and it had no causal relation to his employment. This Court, through Justice Inzer, said the following:

The rule is firmly established in this state when an employee is found dead at a place where his duties require him to be or where he might properly be in the performance of his duties during work hours in the absence of evidence that he was not engaged in his employer’s business, there is a presumption that the accident arose out of and in the course of his employment. Winters Hardwood Dimension Co. v. Harris’ Dependents, 236 Miss. 757, 112 So.2d 227 (1959); Majure v. William H. Aisup & Associates, 216 Miss. 607, 63 So.2d 113 (1953).
There is absolutely no evidence that Washington was not about his master’s business when he met his death. Assuming that the testimony of the doctor is sufficient evidence to support the finding by the commission that Washington died as a result of a heart attack, there is still the presumption that the heart attack resulting in death was causally connected to Washington’s work activities. The question is whether the employer overcame this presumption by substantial evidence. In the case of Holman v. Standard Oil Co. of Ky., 242 Miss. 657, 136 So.2d 591 (1962), we stated the rule relative to the strength of this presumption as follows:
In the recent case of Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So.2d 357, 360, 113 So.2d 667, this Court said: “it has been heretofore recognized by our decisions that there is a presumption of a causal connection between the employment and the injury or death when the onset of a heart attack occurs while the employee is about his work and engaged in the duties of his employment, and that the fatal consequences arise out of and in the course of the employment.” See also Dunn’s Mississippi Workmen’s Compensation 1960 Supplement, Sec. 54, p. 26, where the author says: “In the more recent cases, the presumption of causal connection, arising out of the fact that an attack occurs on the job, has increased in judicial favor to the point that it has shifted the burden of proof to the defendant and has assumed the dual effect of an inference of such strength as to require an award, as a matter of law, despite conflicting medical opinions or the absence of medical corroboration.” Compare the cases there cited as documentation of the above principle. (242 Miss, at 666, 136 So.2d at 594).

The doctor assumed that Washington’s employment had not contributed to his heart attack. He based this assumption on information of Washington’s “usual morning routine” although there is no evidence as to what Washington did on this particular morning. If we are to indulge in assumptions it would also be logical to assume that the door stuck for some reason when Washington tried to open it and that in order for him to open the door he had to exert unusual and strenuous effort which triggered the heart attack. Then there are other assumptions favorable to the employee which could be indulged in if we are to indulge in such assumptions. It is as stated in Holman, supra:

Repeatedly this Court has held that the Workmen’s Compensation Law “should be broadly and liberally construed”; that “doubtful cases should be resolved in favor of compensation”; and that “the humane purposes the act seeks to serve leave no room for narrow and technical construction.” Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Central Electric Power Association v. Hicks, 236 Miss. 378, 110 So.2d 351, 112 So.2d 230, and the cases there cited. (242 Miss. at 667, 136 So.2d at 594).

The employer earnestly contends that since the majority of the commission found that it had overcome the presumption that we should affirm this case. We are of the opinion that there was no substantial evidence to support this finding. Furthermore, in Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So.2d 357 (1959), this Court said:

The Court is of the opinion that under the cases of Goodnite v. Farm Equipment Company [234 Miss. 342,] 103 So.2d 391, Poole v. R.F. Learned & Son, [234 Miss. 362, 103 So.2d 396, and particularly the case of Central Electric Power Association v. Hicks [236 Miss. 378, 110 So.2d 351, we are not bound by the decision of the Workmen’s Compensation Commission in all cases where the testimony is conflicting. The writer of this opinion and two other Judges dissented in the Hicks case and also in the case of Shivers v. Biloxi-Gulfport Daily Herald, [236 Miss. 303] 110 So.2d 359, but we are nevertheless bound by the majority opinion in those cases. In the Hicks case, supra [110 So.2d 356] it was recognized in the majority opinion that “The general rule is that a decision of the commission on disputed issues of fact will be affirmed, where there is substantial and reasonable evidence in the record to support the commission’s findings of fact. As an abstract statement, that rule is correct, but it means nothing apart from the statutory standards, and the judicial standards based upon the statutes which have been established in a large number of cases in recent years. These standards always consist of two parts, one defining the type of questions administrative determination of which is binding upon the courts, and another which defines the type of questions that are reviewable by the courts. But either part is and should be sufficiently flexible to permit the court to check any fundamentally erroneous exercise of administrative power. And questions of fundamental importance are always open to judicial review. 42 Am. Jur. Public Administrative Law, Sec. 206. There must be an application of the pertinent statute in a just and reasonable manner.”

In other words, in the Hicks case, supra, the Court held in effect that notwithstanding that the testimony is conflicting and the Commission’s findings are supported by substantial evidence, this Court will nevertheless seek to ascertain whether or not the beneficent purpose of the Workmen’s Compensation Law has been carried out. (236 Miss. at 731, 732, 112 So.2d at 360, 361).

Appellee cites and relies upon the case of Union Producing Co. v. Dependents of Simpson, 251 Miss. 183, 168 So.2d 808 (1964), but the rule announced in Simpson is not applicable here because we do not know what Washington was doing at the time of his heart attack. Simpson is unusual in that the facts were fully developed both as to his work activities from the time he arrived at work that morning and the cause of his death. We held that the presumption of causal connection disappeared because the facts were fully developed and that there was no substantial evidence to support a finding that his work activities caused or contributed to his heart attack. In Mississippi State University v. Dependents of Hattaway, 191 So.2d 418 (Miss.1966), we rejected the rule announced in Simpson and held that although the work activities of Hattaway were fully developed and although he died in the presence of witnesses, the presumption of causal connection was not overcome because the cause of death was unexplained. In order to overcome the presumption of causal connection not only must the cause of death be explained, but the work activities of the decedent must also be fully developed to show that such activities did not cause or contribute to the heart attack.

We hold that the commission and the circuit court were in error in holding that appellee had overcome the presumption that Washington’s death was causally related to his work activities.

The only physician who testified (Dr. Cowan, appellee’s employee), gave the following testimony:

A. My opinion is based on the fact that I have not been told that she did any strenuous physical exertion and that her job as described to me does not involve the type of strenuous physical exertion that would be required to precipitate a heart attack.
Q. Okay. That’s what I’m trying to ascertain. It’s your opinion that physical exertion is the necessary requirement in order to determine whether or not a heart attack is work related? A. Yes, sir.
* * * * * *
Q. And whether or not she was engaged in any physical exertion or not engaged in any physical exertion, you do not know?
A. No.
Q. You only assume that she did not, and based upon that assumption, then you say her attack was not work related?
A. Yes, sir.

Reiterating that hereinabove set out, the only evidence that this member of the medical profession had regarding the work activities of Mrs. Johnston from the time she arrived at 8 a.m. until the known onset of her attack at 9:30 a.m. was the four or five minute period she was having coffee with Mrs. Nemeth. Furthermore, we have the unqualified testimony of Dr. Cowan, of ap-pellee’s clinic, that he was basing his testimony on an assumption. This clearly does not satisfy the standards set out in prior cases, including Washington, supra.

We hold that appellees did not meet the presumption necessary for them to have met under the hereinabove discussed cases and it is therefore, necessary that the cause be reversed, rendered and remanded to the commission for further proceedings.

REVERSED AND RENDERED, AND REMANDED TO THE COMMISSION.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, ROY NOBLE LEE, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    Jennine JENNINGS v. Jean G. JENNINGS, et al.
    No. 53925.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Rehearing Denied Jan. 5, 1983.
    Christian T. Goeldner, Southaven, for appellant.
    Charles E. Webster, Clarksdale, for appel-lees.
   Appeal from Chancery Court, Coahoma County; Harvey T. Ross, Chancellor.

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

AFFIRMED.


text:
    Richard Craig CURRY v. Cindy Grace Hopkins CURRY.
    No. 53834.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Rehearing Denied Jan. 5, 1983.
    Taylor & Whitwell, Ronald L. Taylor, Jack R. Jones, III, Southaven, for appellant.
    Robert G. Gilder, Southaven, for appellee.
   Appeal from Chancery Court, DeSoto County; L.E. Hannaford, Sr., Judge.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED AS MODIFIED.

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


author: WALKER, Presiding Justice,

text:
    Mack Arthur KING v. STATE of Mississippi.
    No. 53027.
    Supreme Court of Mississippi.
    Dec. 7, 1982.
    See also Miss., 421 So.2d 1009.
    Joe 0. Sams, Jr., Thomas L. Kesler, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   ON MOTION TO WITHDRAW AS COUNSEL

WALKER, Presiding Justice,

for the Court:

The appellant’s court-appointed counsel, Joe O. Sams, Jr. and Thomas L. Kesler, represented the appellant during his trial on the charge of capital murder which resulted in a death penalty and further represented him on his appeal to the Supreme Court of the State of Mississippi, which resulted in the affirmance of the judgment of the circuit court finding the appellant guilty of capital murder and sentencing him to be executed in the manner provided by law. 421 So.2d 1009 (Miss.1982).

Petition for rehearing was denied.

The court-appointed attorneys, Honorable Joe O. Sams, Jr. and Honorable Thomas L. Kesler, have moved this Court to relieve them of any further responsibility with respect to Mr. King’s case. Mississippi law does not provide for payment of court-appointed counsel beyond final judgment to the State Supreme Court.

Moreover, in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), it was held that neither the due process clause nor the equal protection clause of the Fourteenth Amendment required that a state, after appointing counsel for an indigent’s first appeal of right from his conviction to an intermediate state appellate court, must also appoint counsel for the indigent’s subsequent discretionary appeal to the highest state court, or for his application for certio-rari in the United States Supreme Court— the indigent not thereby being denied meaningful access to the state’s criminal appeal system because of his poverty.

In our opinion, the motion of appellant’s court-appointed attorneys to be relieved of any further responsibility in Mr. King’s case should be and is hereby sustained.

MOTION TO WITHDRAW AS COUNSEL SUSTAINED.

All Justices concur.


author: PRATHER, Justice,

text:
    Charles Dane LEATHERS v. TUPELO COFFEE CO., and Aetna Casualty & Surety Co.
    No. 54083.
    Supreme Court of Mississippi.
    Dec. 8, 1982.
    William S. Lawson, Tupelo, for appellant.
    Claude F. Clayton, Jr., Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, for appel-lees.
   ON MOTIONS

PRATHER, Justice,

for the Court:

There are three appeal cases involving the questions of entitlement and collection of workmen’s compensation benefits of Charles Dane Leathers.

(1) Cause No. 51,898 was the first appeal from the Lee County Circuit Court order of August 30, 1979, which decision was affirmed by this Court without opinion. The case had unresolved disputed issues, and the workmen’s compensation commission and the circuit court heard subsequent matters involving these disputes. The last order of the circuit court, dated January 27, 1982, remanded the cause to the Mississippi Workmen’s Compensation Commission to make certain determinations. That order also denied a request for a writ of mandamus against the circuit clerk directing that she enroll a judgment in favor of Leathers.

(2) The limited issue of the request for the writ of mandamus against the circuit clerk was the subject of the second appeal. That appeal by Leathers made the circuit judge and circuit clerk defendants in Mise. No. 1317 and was concluded by this Court on November 1, 1982 by denying the requested writ. Justice Hawkins set forth the lengthy facts of that legal proceeding in his opinion, acknowledging again the unresolved questions.

(3) This present appeal, in Cause No. 54,-083, present a review of the circuit court order of January 27, 1982. In this cause two motions have been filed. Appellees (employer/carrier) seek a dismissal of the appeal on the ground that the appeal was not perfected within the statutory period. The appellant Leathers filed a motion to hold the appeal in abeyance pending resolution of the mandamus request in Mise. Cause No. 1317. The Court withheld action on both motions until the mandamus issue was finally determined, thereby granting appellant’s (Leather’s) motion to hold the appeal in abeyance.

Addressing the request to dismiss the appeal, this Court sustains said motion, but without prejudice to either party.

As reason for this action, the Court is of the opinion that the last circuit court order of January 27, 1982, was not a final order. It is interlocutory in nature. A remand to the Mississippi Workmen’s Compensation Commission for determination of unresolved issues was ordered by the circuit court. A determination of these issues will avoid piecemeal appeals and promote the judicial efficiency for the parties and the Court. Therefore, the Court grants the motion to dismiss the appeal in this cause and preserves the rights of all parties to raise any issues addressed since the former mandate of this Court of May 28, 1980. Remand of this case to the Mississippi Workmen’s Compensation Commission is ordered with directions to comply with the circuit court order of January 27, 1982.

Motions granted without prejudice. Remand to Mississippi Workmen’s Compensation Commission for rehearing in accordance with this opinion.

BOWLING and DAN M. LEE, JJ., took no part.