author:
BOUTALL, Judge.
      SCHOTT, Judge,

text:
    Russell N. BOYETT v. Dawn Trahant INGRAM.
    No. 11341.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Wiley J. Beevers, Metairie, for Larry Jack Ingram, third-party defendant.
    Leo W. Rousselle, Roccaforte & Rousselle, New Orleans, for Dawn Trahant Ingram, defendant and third-party plaintiff-appellant.
    Before BOUTALL, SCHOTT and SAR-TAIN, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court sustaining an exception of no right of action.

On July 16, 1979, Russell N. Boyett brought suit against Dawn Trahant Ingram for unjust enrichment alleging that he loaned $5,000 in cash and delivered 1,719.92 worth of lumber to Mrs. Ingram for which he was never repaid. On July 30, 1979, by way of a pleading entitled “Answer and Reconventional Demand”, Mrs. Ingram brought a claim against Mr. Boyett and her husband, Larry Jack Ingram, for damages in solido resulting from an alleged conspiracy between these defendants in illegally obtaining custody of the 3 minor children born of the marriage between Dawn and Larry Ingram. The damages allegedly suffered by Mrs. Ingram were mental anguish and the expenses incurred in regaining custody. In responding to the claim brought against him, Larry Ingram raised an exception of no right of action based on the doctrine of interspousal immunity. R.S. 9:291.

The trial court maintained Mr. Ingram’s exception of no right of action, dismissing Mrs. Ingram’s demand against him.

Appellant, Mrs. Ingram, contends that the trial court was in error in sustaining the exception of no right of action. This contention is based on the argument that the marriage between the Ingrams was an absolute nullity and consequently, she has a right of action in tort.

Appellee, Mr. Ingram argues that the marriage between him and Dawn Trahant Ingram was valid, and therefore the doctrine of interspousal immunity under R.S. 9:291 was properly invoked by the trial court, prohibiting Mrs. Ingram from asserting a right of action in tort against him.

Appellant’s contention is based upon the facts that she and Larry Ingram were married to two other persons when on January 14, 1970 they each obtained a Mexican divorce decree from their prior spouses and later that same day were married to each other by virtue of a Mexican marriage ceremony. The parties were not divorced from their prior spouses until Louisiana divorce decrees were rendered shortly thereafter on February 23, 1970 and March 4, 1970. There was never a remarriage between the parties. Under these facts, appellant contends that the principles in the cases of Super v. Burke, 367 So.2d 93 (La.App. 4th Cir. 1979), affirmed per curiam 374 So.2d 1250 (La.1979); Everett v. Everett, 345 So.2d 586 (La.App. 4th Cir. 1977), writ dismissed 349 So.2d 329 (La.1977); and Schaefer v. Schaefer, 379 So.2d 864 (La.App. 4th Cir. 1980), make their marriage an absolute nullity, and thus the application of the doctrine of interspousal immunity was improper.

While we agree with the principles of law announced in those cases, we do not believe them to be applicable here. First we note that there is no proof of the salient facts referred to above. There is in the record a copy of the divorce decrees in Louisiana between the prior spouses, but no evidence of the other facts, there only being reference made to them in argument. However, we do not predicate the resolution of this case upon the lack of proof of those facts.

We note that there was a divorce proceeding filed by Larry Ingram on January 5, 1978 in the 21st Judicial District Court for the Parish of Tangipahoa which was consolidated with a case filed by Dawn Ingram in that same court. In that case there was a judgment of divorce rendered between the parties on February 26, 1979, and that judgment of divorce was affirmed by the Court of Appeal, First Circuit (Ingram v. Ingram, 382 So.2d 980) on January 21, 1980 following an appeal by Dawn Ingram. Correspondingly, the sequence of events in this case is the filing of a petition against Dawn Ingram for unjust enrichment on July 16,1979, Mrs. Ingram’s recon-ventional demand filed against her husband on August 30, 1979, the exception of no right of action filed on September 24, 1979, and the judgment in favor of Larry Ingram on the exception of no right of action, signed December 12, 1979. Thus during these proceedings, the parties had been subjects of the divorce proceeding in Tangipa-hoa Parish, and Mrs. Ingram was appealing that decision. A month after the judgment on the exception of no right of action in this case, the judgment of divorce was affirmed by the Court of Appeal, First Circuit, and has now become final.

In order to maintain appellant’s suit against her husband, we would in effect have to set aside the judgment of divorce granted between the parties, or at least simply disregard it, granting it to be of no effect. We are not disposed to permit a party to file and engage in litigation in one court, and then seek to utilize the services of another court to overturn or disregard an adverse judgment by way of a collateral attack. As stated in the case of Price v. Price, 326 So.2d 545 (La.App. 3rd Cir. 1976) at page 548:

“[2,3] Our law forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio. A judgment rendered by a court of competent jurisdiction imparts absolute verity and has the force of things adjudged, unless and until it is set aside in a direct action of nullity. It cannot be attacked collaterally. (Citations omitted)”

That case relied in main upon the principles expressed in the case of Allen v. Commercial National Bank in Shreveport, 243 La. 840, 147 So.2d 865 (La.1962). These principles are especially applicable when we consider that this is an attack upon the validity of a marriage. The public policy of Louisiana is that every effort must be made to uphold the validity of marriages. See Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975), citing Succession of Gaines, 227 La. 318, 79 So.2d 322 (La.1955).

For these reasons, we affirm the judgment of the trial court, maintaining the exception of no right of action.

AFFIRMED.

SCHOTT, J., dissents.

SCHOTT, Judge,

dissenting.

The basic law of this state is that persons legally married are, until a dissolution of the marriage, incapable of contracting another, LSA C.C. Art. 93, and the nullity of such a marriage is absolute and insusceptible of confirmation or ratification. It is unnecessary that a direct action be instituted for the purpose of setting aside such a marriage and its nullity may be demanded by way of exception or defense. Summerlin v. Livingston, 15 La.Ann. 519 (1860), Ranney v. Burthe, 15 La.Ann. 343 (1860).

In Rhodes v. Miller, 189 La. 288, 179 So. 430 (1938) the court held that estoppel and the equitable rule of “clean hands” would not operate as a defense against an action to annul a bigamous marriage. The court stated:

“The marriage here attacked, being an absolute nullity in contravention of public policy and good morals, it is in the public interest that it be vacated. It would be against all reason to maintain the parties in a relation or status which the law forbids. The public interest will be better served by granting the relief herein sought, even though it be applied for by the guilty party, than by withholding it. And so doing, the court is not acting for the sake of the party, but for the public good.”

These principles were discussed at length in Clark v. Clark, 192 So.2d 594 (La.App. 3rd Cir. 1966).

If the marriage between appellant and Appellee was contracted at a time when they were both married legally to other parties, they were never married at all and appellant’s subsequent activities in the divorce proceedings which became final in Ingram v. Ingram, 382 So.2d 980 (La.App. 1st Cir. 1980) could not have the effect of validating the marriage. For these reasons I respectfully disagree with my colleagues who treat appellant’s position in this case as a collateral attack on the divorce proceedings in which she participated.

Appellant brought a tort action against appellee in her reconventional demand and was met with an exception of no right of action on the basis of interspousal immunity. In response to that exception she filed in the record copies of judgments of divorce between each of the parties and a previous spouse, both of which were rendered after the date when the parties purportedly married each other in Mexico. The posture of the case at this point was much the same as Farrell v. Farrell, 275 So.2d 489 (La.App. 1st Cir. 1973) in which the court considered an allegation of a valid marriage by the husband as a legal conclusion inadequate to overcome exhibits showing that the marriage was contracted before the date of the judgment of divorce as to his first marriage.

I agree with the majority opinion that the evidence in this case is sparse and the cases relied on by appellant are not necessarily controlling. However, considering the repeated pronouncements of our courts regarding the absolute nullity of a bigamous marriage and public policy consideration in this regard, it seems to me that the burden of proof was on appellee to show that they were legally married after appellant filed the copies of the judgments of divorce as to both spouses which post-dated the date given for the marriage between the parties.

I would reverse the judgment of the trial court and remand the case for further evidence from appellee to show that he and appellant were validly married.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Brian A. SMITH v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11394.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      James Maher, III, New Orleans, for defendant-appellant, New Orleans Public Service, Inc.
    Dale C. Wilks, New Orleans, for plaintiff-appellee, Brian A. Smith.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding $1600 to the plaintiff for injuries sustained when he was struck by a bus while standing at a bus stop waiting to board the bus.

On February 23, 1978, the plaintiff Brian A. Smith, was standing at a bus stop at the corner of South Claiborne and Nashville Avenues when he was struck from the rear by a bus owned and operated by New Orleans Public Service, Inc. (hereinafter referred to as NOPSI). Smith sustained personal injuries to his left hip and back area. Upon trial of the matter, the lower court awarded judgment in favor of Smith and against NOPSI in the amount of $1600. From this judgment NOPSI has appealed suspensively.

On appeal the only issue before us concerns the liability of NOPSI. The award was not put at issue.

The evidence before us reveals that at approximately 3:38 o’clock in the afternoon on February 23,1978 Smith was standing at the bus stop at the intersection of South Claiborne and Nashville Avenues waiting to board a bus on his way home from school. Of the four corners of this intersection, Smith was standing at the northwest corner intending to catch the So. Claiborne Avenue bus travelling a westerly direction toward So. Carrollton Ave. Several friends of the plaintiff, as well as 75 to 100 other school students were all waiting to board the bus. Testimony by the plaintiff and others who were at the accident site indicates that the plaintiff was standing on the grassy area between the sidewalk and the curb of the street some 20 to 25 feet from the bus stop post, facing in a westerly direction. Before the So. Claiborne Avenue bus arrives at this particular bus stop it must make a U-turn in the neutral ground of So. Claiborne Ave. some 60 feet from the bus stop. The bus pulled away from the neutral ground area and as it approached the bus stop the plaintiff was struck from the rear by the right side of the bus in the area of the right front headlights. The plaintiff sustained personal injuries to his left hip and back area.

The plaintiff contends that the body of the bus extended over the curb thereby striking him as he stood in the boarding area between the sidewalk and the curb. NOPSI contends that its bus did not extend over the curb as the bus was in a parallel position to the curb and that the plaintiff was pushed or shoved into the oncoming bus.

As a matter of law, the duty owed by a common carrier to its passengers is stringent. It has been described as the highest standard of care, the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport, or the strictest diligence. This duty includes those risks to which passengers are exposed by unsafe conditions in the boarding area. Actionable negligence exists upon the slightest breach of this duty. Green v. Taca International Airlines, 304 So.2d 357 (La.1974); Wise v. Prescott, 244 La. 157, 151 So.2d 356 (La.1963); Vaughn v. New Orleans Public Service, Inc., 314 So.2d 545 (4th Cir. 1975). Passengers waiting to board a bus or other vehicle of common carriage can presume that the boarding space is safe and free from any defects or encroachments by the carrier. Any violation of this boarding space by a common carrier, such as an encroachment in this area resulting in injury to a passenger, establishes a prima facie case against the carrier and imposes on it the burden of showing that it was free from any negligence which caused or contributed to the injury.

The trial court in its reasons for judgment found that the accident occurred in accordance with the description given by the plaintiff as this was supported by the testimony of two credible witnesses and by portions of the testimony of the defendant’s expert witness. This finding indicates that the body of the bus extended over the curb, thereby striking the plaintiff who was standing in the space provided for boarding passengers. The trial court further held that the plaintiff was not pushed or shoved into the side of the bus by a third person. These findings are well supported by the evidence in the record. All of the witnesses on behalf of the plaintiff testified in accordance with these findings. Testimony by the defendant’s witnesses does not serve to discount the statements made by the plaintiff’s witnesses, nor does it serve to support the defendant’s theory that the plaintiff was pushed or shoved by a third person into the oncoming bus. The driver of the bus testified that he was looking at' the NOPSI superintendent who was directing his movements as he pulled into the bus stop and therefore, was not observing the plaintiff and the other passengers waiting to board the bus. The superintendent could not possibly have seen the plaintiff, although he testified otherwise, as his view was blocked by the 75 to 100 school students standing in the boarding space.

Finally, all of the defendant’s witnesses, including the bus driver, the superintendent, and the expert testified that the body of the bus even when parallel to the curb will extend over it a minimum of 6 to 8 inches and may extend as much as 2 feet over the curb if the bus is on an angle. This testimony provides support for the plaintiff’s theory that he was struck by the NOPSI bus when it extended over the curb into the passenger boarding space. Based on the foregoing, we hold that the findings of the trial court were not manifestly erroneous. Canter v. Koehring, 283 So.2d 716, 724 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The findings of fact established above support the conclusion that NOPSI breached the duty it owed to the plaintiff as a prospective passenger by not providing him with a safe place within which to board the bus. We further conclude that this breach of duty was the cause of the accident to the plaintiff which thereby establishes negligence on the part of NOPSI. Finally, we hold that NOPSI did not carry its burden of showing that it was free of any negligence which caused or contributed to the injury. Therefore, we are of the opinion that the judgment of the trial court should be affirmed.

A final point for consideration concerns the admittance into evidence of a statement made by one of the plaintiff’s witnesses for the purpose of testing the credibility of that witness. The Louisiana jurisprudence clearly recognizes the rule that a prior inconsistent statement of a witness is admissable for impeachment purposes. The admission of the statement is limited to impeachment purposes only and can’t be used as evidence of the substantive content of the prior statement. Nami v. Peninsular Fire Insurance Co. 355 So.2d 1036 (4th Cir. 1978); State v. Allien 366 So.2d 1308 (La.1978).

NOPSI contends that the statement made by Roosevelt Weatherspoon was ad-missable for testing the credibility of this witness. The trial court held that the statement was inadmissable because of the method used to procure the statement. In this particular instance, a representative from NOPSI went to the home of the witness and wrote down a statement according to the statements made by the witness. The witness signed this document. Subsequently, the NOPSI representative typed out the written statement and mailed it to the witness for his signature. Mr. Weath-erspoon read the statement, signed it and returned it to the NOPSI representative. At trial, the witness recognized the statement and verified the signature. Under these circumstances we find that the trial judge was in error in not admitting this statement into evidence for purposes of impeachment. Our finding is very similar to the one made by the court in Schexnayder v. Zurich Insurance Co., 257 So.2d 764 (1st Cir. 1972).

Although we conclude that the trial court was in error in not admitting this statement into evidence, we do not find that its admissibility changes any of our findings or our holding. Similarly, our attention is called to a remark made by the trial court that this type of bus can protrude as much as three feet over the curbing to his own knowledge. We disregard this unwarranted remark as not being essential to our holding herein.

AFFIRMED.

      . In view of the stringent duty imposed by a motorist with respect to a pedestrian in a crosswalk, the duty imposed upon a common carrier with respect to a passenger in a boarding area can’t be said to be overburdensome or unreasonable. In Baumgartner v. State Farm Mutual Auto Ins. Co., 356 So.2d 400, 404 (La.1978), the Supreme Court stated:
      “[3] It is well settled in our jurisprudence that the first duty of those operating motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger ...
      “[4,5] Our law imposes an additional burden upon motorists approaching a pedestrian crosswalk to use more than ordinary care to see what is ahead; they must expect that people may be crossing and be prepared for that possibility ...*** ‘It is logical that the motorist, as against the pedestrian, bears the greater burden of careful lookout and extreme caution at locations provided for the passage of pedestrians; for it is the motorist who has the power, because of the dangerous instrument which he controls, to reduce the status of a pedestrian to that of a statistic in a split second. The pedestrian poses no such threat.’ ”


author: GARRISON, Judge.

text:
    Pamela Ann Stoll FAVALORA v. Joseph Thomas FAVALORA.
    No. 11380.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Ronald A. Welcker, Arabi, for plaintiff-appellant.
    Ewell C. Potts, Jr., Chalmette, for defendant-appellee.
    Before REDMANN, GULOTTA, and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of legal separation granted in favor of the wife but which stated that “both spouses are mutually at fault”. From that judgment the wife appealed, seeking to be declared free from fault. The husband has neither appealed nor answered his wife’s appeal.

Plaintiff and defendant were married on November 15, 1964, in St. Bernard Parish, where they resided together until December 11, 1976. On that day, Mrs. Favalora moved out of the matrimonial domicile. On December 28,1977, she filed suit for separation, alleging that her husband was guilty of excessive and cruel treatment, that on December 7, 1976, he had ordered her to leave the house, threatening to throw her out and that they had been living separate and apart for more than a year.

On January 12, 1978, Mr. Favalora reconvened, alleging that his wife had abandoned him without lawful cause. After a trial on the merits, judgment was rendered in favor of Mrs. Favalora. The judgment also found “both spouses are mutually at fault in causing the separation” and contained the language “in accordance with the provisions of Art. 141 of the the Louisiana Civil Code as amended by Act 495 of 1976”. Article 141 was added by Acts 1976, No. 495 § 1 and reads as follows:

“A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

In the recent case of Adams v. Adams, 389 So.2d 381, 1980, the Louisiana Supreme Court approved this Court’s prior conclusion that in order for a judgment of mutual fault to be granted, the husband must have committed acts which would be grounds for a fault-based separation in favor of the wife and the wife must have committed acts which would be grounds for a fault-based separation in favor of the husband:

“Civil Code art. 141 requires a court to grant a separation where both spouses are mutually at fault in causing the separation. The result of such a separation is that neither party can claim alimony, C.C. art. 141. The appellate courts of this state have correctly interpreted the word ‘fault’ to mean conduct constituting án independent fault ground for separation under C.C. art. 138. Dixon v. Dixon [357 So.2d 856 (4th Circuit, 1978)]; Saucier v. Saucier, 357 So.2d 1378 (4th Circuit, 1978); Brocato v. Brocato, 369 So.2d 1083 (1st Circuit, 1979), writ denied, 371 So.2d 1341 (La., 1979); Watson v. Watson [372 So.2d 639 (4th Circuit, 1978)]. (at page 382)”.

In the instant appeal, Mrs. Favalora alleged two fault-based grounds, excessive and cruel treatment and constructive abandonment, and one no fault ground-living separate and apart for more than one year. Mr. Favalora, alleged only one ground, abandonment-which is a fault-based ground. The conflict in the instant appeal is that the fault-based grounds alleged are defenses to each other. For example, if the trial judge found that Mr. Favalora was guilty of excessive and cruel treatment and/or that he had ordered her from the house, then a judgment of separation could not be granted in favor of Mr. Favalora on grounds of abandonment, because his actions would provide lawful cause for Mrs. Favalora to have left the domicile. Likewise, if the trial judge found that Mr. Fava-lora was not guilty of cruel treatment and/or ordering his wife to leave, then a judgment of separation could not be granted in favor of the wife on grounds of abandonment, because she would have abandoned the domicile without lawful cause. Unfortunately, no written or oral reasons for judgment were provided.

Only two witnesses were presented at trial, Mr. and Mrs. Favalora. While much of their testimony is directly contradictory on several fault-based areas, our independent reading of the record indicates that the parties are merely mutually incompatible. In Dixon v. Dixon, above, this court stated:

“... if the evidence in a suit for separation does not establish “fault” on the part of each party but merely shows mutual incompatibility, then there is no codal authority for rendition of a judgment of separation, and the parties must either assert new grounds or wait for the required period of living separate and apart.” (At 858).

In the instant appeal, Mrs. Favalora alleged and proved that the parties had been “voluntarily living separate and apart for one year without reconciliation.

For the foregoing reasons, the judgment of the district court i is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment here in favor of Pamela Ann Stoll, wife of Joseph Thomas Favalora, and against Joseph Thomas Favalora, decreeing a separation a mensa et thoro between the parties on the grounds of voluntarily living separate and apart without reconciliation for a period of one year.

REVERSED AND RENDERED.


text:
    Ernest THIBODEAUX, Individually and on behalf of his minor son, Ernest Thibodeaux, Jr. v. SCHWEGMANN BROTHERS SUPER MARKET, Argonaut Insurance Companies, Louisiana Coca Cola Bottling Co. and XYZ Insurance Company.
    No. 11488.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      Donald F. deBoisblanc, New Orleans, for plaintiff-appellee.
    Madison C. Moseley, New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granted in favor of Ernest Thibodeaux individually and on behalf of his minor son, Ernest C. Thibodeaux, Jr., and against Schwegmann Brothers Giant Supermarket, Inc., and the Louisiana Coca-Cola Bottling Company, in the amount of $1,935.25, for damages sustained when the minor was injured in the Schwegmann store on September 27, 1976. From that judgment, which we affirm, Schwegmann appealed.

On September 27, 1976, Ernest C. Thibo-deaux, Jr. accompanied his mother on a shopping trip to Schwegmann Bros. Super Market. Ernest was walking with the aid of crutches because he had a developmental orthopedic disease. He was proceeding down an aisle when his crutches became entangled in black steel packing tape, causing him to fall, re-injuring his left leg and injuring his right elbow. The packing tape was placed on the floor by a Coca-Cola Company employee who was unpacking crates of soft drinks in the aisle.

Schwegmann Bros, and Coca-Cola agreed that, should they be found liable, they would contribute equal amounts.

On appeal, Schwegmann contends that the trial court erred in failing to find the minor contributorily negligent and that the trial judge abused his discretion in awarding damages.

At trial, Ernest, Jr. testified that he proceeded approximately twelve feet down the aisle prior to the fall, that he had seen the Coca-Cola employee unpacking the merchandise, that his vision was not obstructed as he proceeded and that he was paying attention to where he was walking. The trial judge believed the testimony of Ernest, Jr. saying “I believe he saw what he should have seen and exercised due diligence within the meaning of our Law.” The trial judge apparently concluded that the steel tape was placed in Ernest’s path moments before the accident. We cannot conclude that the trial judge was manifestly erroneous in his factual determinations. Arceneaux v. Domingue, 365 So.2d 1330 (1978).

Turning to the question of damages, we cannot conclude that the trial judge abused his discretion. Reck v. Stevens, 373 So.2d 498 (1979). Ernest, Jr. was required to wear a sling for the injury to his arm. Additionally, the cast, which had been removed from his left foot a few days prior to the accident, was replaced by first a soft and then a hard cast. Ernest was ten years old at the time of the accident. Special damages totaled $135.25. We do not find the award of the trial judge to be a clear abuse of discretion.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    KATZ & BESTHOFF, INC. v. Barbara J. NAUER.
    No. 11367.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Guste, Barnett & Shushan, Ann Stein-hardt, New Orleans, for plaintiff-appellee.
    William Noland, New Orleans, for defendant-appellant.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant, Barbara J. Nauer, appeals from a trial court judgment in favor of plaintiff, Katz & Besthoff, Inc. (K & B), and against the defendant in the amount of $575.47 with interest from judicial demand until paid and for all costs of the proceedings.

It was uncontroverted in the trial court that during the months of June and July, 1977, Nauer cashed a total of 26 checks at various K & B stores amounting to a total of $575.47, for which she received cash. All of the checks, which were part of the plaintiff’s exhibits viewed by this court, were returned to K & B marked “N.S.F.”

Howard Kottemann, a credit manager of K & B, stated the checks could be identified as those exchanged at the stores for legal tender or merchandise, and not for payment on the account, because the customer’s credit card was embossed on the back of the checks, as is the store’s policy for exchanging checks for tender.

Kottemann also testified that Nauer cashed checks at the following times, locations, and in the following amounts:

June 22, 1977, Check No. 108 for $20 at Store No. 4 located at Oak and South Carrollton Streets.
July 4, 1977, Check No. 383 for $20 at Store No. 3, located at Louisiana and Saint Charles Avenues.
July 4, 1977, Check No. 384 for $20 at Store No. 10, located at Saint Charles and Napoleon Avenues.
July 4, 1977, Check No. 386 for $20 at Store No. 4.
July 5, 1977, Check No. 388 for $20 at Store No. 3.
July 7, 1977, Check No. 392 for $20 at Store No. 5, located at Saint Charles Avenue and Broadway Street.
July 7, 1977, Check No. 393 for $20 at Store No. 4.
July 9, 1977, a check for $20 at Store No. 5.
July 11, 1977, Check No. 351 for $20 at Store No. 4.
July 11, 1977, Check No. 352 at Store No. 24, located at South Carrollton and Claiborne Avenues.
July 13, 1977, Check No. 356 at Store No. 24.
July 13, 1977, Check No. 357 at Store No. 6, located at Napoleon and South Claiborne Avenues.
July 13, 1977, Check No. 358 for $25 at Store No. 10.
July 14, 1977, Check No. 359 at Store No. 10.
July 15, 1977, Check No. 360 at Store No. 24.
July 16, 1977, Check No. 362 for $25 at Store No. 3.
July 16, 1977, Check No. 363 for $25 at Store No. 10.
July 16, 1977, Check No. 364 at Store No. 5.
July 16, 1977, Check No. 365 for $25 at Store No. 4.
July 16, 1977, Check No. 366 at Store No. 24.
July 17, 1977, Check No. 370 for $25 at Store No. 5.
July 18, 1977, Check No. 371 at Store No. 4.
July 18, 1977, Check No. 368 at Store No. 3.
July 18, 1977, Check No. 369 for $25 at Store No. 10.
July 23, 1977, Check No. 375 for $20 at Store No. 10.

Part of the plaintiff’s exhibits was a letter dated July 23, 1977, signed by Nauer and addressed to Kottemann, assuring him that whatever amount was due and owing by her to the K & B stores would be forwarded to him as soon as the offices of her employer opened on Monday and she could make the necessary arrangements. Also an exhibit in the case was a letter dated August 1, 1977, handwritten by Nauer, which stated that her employer had advanced monies to her and she would be sending money orders to cover the “N.S.F.” checks within “the next couple of days.” Kottemann testified, however, payment was never received by K & B.

On September 21, 1977, Nauer filed a petition for discharge of bankrupt in the United States District Court, Eastern District of Louisiana, and judgment was granted in her favor by the court, adjudging her a bankrupt, on December 28, 1977. Nauer’s attorney testified that, as part of the bankruptcy proceeding, he mailed to each of the defendant’s creditors, including K & B, a list of creditors; mailed each creditor notice for the first meeting of such; and fixed a time for filing of objections to the discharge.

On December 13, 1977, K & B filed the present suit against the defendant, who answered the same, pleading the discharge in bankruptcy.

This court in the case of King Finance Company of New Orleans v. Johnson, 265 So.2d 658 (La.App. 4th Cir. 1972), addressed itself to the identical legal issues of concern in the present case and stated, regarding the necessity of the plaintiff to plead fraud, at pages 659-660:

“This court has very recently considered the identical contention regarding the necessity for pleading of fraud. In the case of King Finance Co. of New Orleans, Inc. v. Howard, 265 So.2d 316 (1972), it was observed as follows:
‘Throughout the proceedings, defendant has objected to the introduction of any evidence tending to show fraud on his part in the contracting of the loan. He has contended that fraud must be pleaded affirmatively and alleged with particularity [LSA-C.C.P. art. 856] before any evidence may be received relative thereto. Since plaintiff did not amend its original petition to so allege fraud after defendant had pleaded a discharge in bankruptcy, it is contended that such evidence is inadmissible.
‘We are of the opinion that defendant’s position in this respect is untenable. In Carville PHS Employees Federal Credit Union v. Jones, La.App., 221 So.2d 905 (1969) the court held that evidence tending to show fraudulent misrepresentations in the procurement of a loan was admissible without first the necessity of an affirmative pleading of fraud having to be filed. In that case, as in this matter, the defendant had set up his discharge in bankruptcy as a defense to a suit on a note. In reaching its conclusion, the court stated in part as follows:
“* * * [I]t is well settled that in a suit for money loaned, where defendant has pleaded a discharge in bankruptcy, evidence tendered to prove the loan was obtained through fraudulent representation was admissible without replication by plaintiff alleging such fraudulent representation. LSA-C. C.P. Article 852. Liberal Finance Gentilly, Inc. v. Brister, 152 So.2d 331 (La.App. 1st Cir. 1963); Beneficial Finance Company of Louisiana v. Lathrop, 207 So.2d 220 (La.App. 4th Cir. 1968).” ’ ”

We are also of the opinion that evidence of fraudulent misrepresentation was admissible without the replication by the plaintiff alleging fraud.

In King, supra, the court also stated:

, “The jurisprudence has consistently held that to exempt a debt from a discharge in bankruptcy on the basis of fraud the creditor must show that (1) the debtor made false representations, (2) he did so with the intention of defrauding the creditor, and (3) the creditor relied upon or was misled by these falsities in extending the credit. C H F Finance Company v. Jochum, 241 La. 155, 127 So.2d 534 (1961); King Finance Co. of New Orleans, Inc. v. Howard, supra; DeLatour v. Lala, 15 La.App. 276, 131 So. 211 (La.App.Orl.1930).” 265 So.2d at 660.

There can be no doubt that the defendant, in issuing these unredeemable checks, made false representations to K & B, i.e., her account at the bank contained sufficient funds to cover the checks which, in fact, it did not.

In regard to the second requirement, that of the intent to defraud, the court also said in King, supra, at page 660:

“Intent to defraud is often difficult to prove directly. It is frequently inferred form actions and the circumstances pertinent thereto. As was observed in Beneficial Finance Company of Louisiana v. Lathrop, 207 So.2d 220, 222 (La.App. 4th Cir. 1968):
** * * We cannot probe the inner processes of defendant’s mind in order to determine intent. There is a trite truism that actions speak louder than words. * * *.’”

Noting the great number of checks that the defendant cashed during the month of July, 1977 at K & B stores, on several occasions as many as three and five checks in one day, as well as her pattern of going to many different K & B stores and limiting the amounts of the checks to a maximum of $20 to $25, we hold there was a reasonable evidentiary basis for finding intention to defraud.

The court in King, supra, also said:

“When the plaintiff has sufficiently established a concurrence of the three requisite elements of misrepresentation, intent, and reliance necessary to exempt a debt from discharge in bankruptcy because of fraud, the burden shifts to the debtor to refute an intent to defraud. Beneficial Finance Company of Louisiana v. Lathrop, supra; Seaboard Finance Corporation v. Stipelcovich, 176 So.2d 170 (La.App. 4th Cir. 1965); C H F Finance Company v. Corca, supra. * * *” 265 So.2d at 661.

In the present case defendant did not sustain that burden, nor was she even present at the trial in the district court to aid her attorney in his attempt to do so. Although her letters to Kottemann were written after the checks were already cashed by the stores and therefore cannot be construed as false statements upon which the plaintiff relied in cashing the checks, neither can the letters, alone, satisfactorily overcome evidence that indicates there was an intent to defraud on Nauer’s part. Rather, they indicate this intent was continued in an attempt to hold the creditor, K & B, at bay as long as possible with false promises of forthcoming payments.

Accordingly, the trial court judgment is affirmed in all respects.

AFFIRMED.


text:
    Vincent COSTANZA v. Jack SCIORTINO.
    No. 11405.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      Moliere, Flanagan & Arceneaux, James T. Flanagan, Nelson E. Rivers, Metairie, for plaintiff-appellee.
    Jack Sciortino, in pro. per.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant, Jack Sciortino, appeals from a trial court judgment in favor of the plaintiff, Vincent Costanza, and against the defendant in the amount of $2,470 with 8% per annum interest from June 5, 1979, until paid, 25% attorney fees and all costs.

Plaintiff filed suit on the basis of a claim on a promissory note signed by the defendant on May 4, 1979 in the amount of $2,470, which provided for three equal monthly installments of $823.33. The note was given for the balance due on the sale of beauty parlor equipment purchased by defendant.

Costanza testified at the January 3, 1980 trial that although he had made demands on the defendant for payments on the note, both by phone and by letter, payments were never received. Although the defendant’s answer to the plaintiff’s petition alleged, among other things, lack of consideration and lesion beyond moiety, Sciortina was not represented by counsel at the trial and did not make an appearance.

The record reflects that the trial on the merits in the district court had been set for January 8, 1980 at 10 a. m. The reported testimony shows the trial court judge noted it was 8 minutes after 10 a. m. on that date when the proceedings began and that at that time Sciortina’s name was also called in the hallways of the courthouse by the bailiff, with no response.

Defendant argues on appeal that the trial court judge abused his discretion in refusing defendant’s motion to grant a new trial, resulting in a denial of due process of law. He further contends he was involuntarily in the courthouse bathroom at the time his name was called by the bailiff and that as soon thereafter as practicable, in no more than 10 minutes after court had been scheduled to commence, he appeared in the courtroom. He further avers in brief that at this time both the plaintiff and his attorney were still in the courtroom and the judgment had not yet been prepared nor signed. Defendant further argues the plaintiff failed to show at the trial that a valid contract existed between the parties.

We cannot agree. We hold, rather, that the testimony of the plaintiff in combination with the contract of sale and promissory note introduced at trial constituted prima facie proof of defendant’s indebtedness to plaintiff, and the burden of proof then shifted to the defendant to show any defenses, a burden of proof Sciortino did not carry due to his failure to even appear at the trial. Fontenot v. LaFleur, 281 So.2d 868 (La.App. 3d Cir. 1973).

Nor can we agree with the defendant’s contention that he was denied due process of law by the judge’s failure to grant his motion for a new trial.

In the case of Ford v. Williams, 62 So.2d 838 (La.App. 1st Cir. 1953), the court addressed itself to this issue at page 841:

“As to the failure of the lower court to grant a new trial, defendant alleges error because neither defendant nor his counsel were present below, and defendant now claims that he can give positive evidence that defendant did not strike the blow which caused the injuries complained of. As to the absence of defendant and his attorney from the trial below, they have given no valid excuse. Defendant claims that he understood that the matter was about to be compromised and would not be tried. There is nothing in the record to justify such belief. The case was regularly set for trial for February 1st, 1952, and the defendant admits that he was duly notified of such. The case was called an some delay was allowed to give defendant an opportunity to appear. When he and his counsel failed to appear, and petitioner stated that he was ready to proceed, the trial commenced. The absence was due entirely to the neglect of defendant and would not warrant the granting of a new trial.”

That rationale was similarly followed in the case of Duet v. Montagnet, 169 So.2d 561 (La.App. 4th Cir. 1964), where the court considered the issue at page 566:

“ * * * The plaintiff is also to be considered in the matter. She, her witnesses, especially her physician and dentist, as well as her counsel, were present in court and ready to try the case on both occasions. The court on both dates waited in vain for the appearance of defendant and his then attorney. We believe that if a case were to be reopened or a new trial granted every time counsel or a litigant neglected to make appearance in court, it would lead in many, many instances to absurd results. We think it is better in this case to have a seeming injustice done to the defendant rather than to prejudice the rights of plaintiff. If, as appellant claims, his attorney was derelict in the duty of notifying him of the setting of the case for trial, such dereliction must be imputed to appellant, and he must suffer the consequences.”

The court is limited in its review to the record before us. Although Sciortino alleges in his brief that he appeared in the courtroom while the plaintiff and his attorney were still present and before the judgment was signed, and that he was late in appearance due to emergency circumstances, none of these contentions are substantiated by the record itself.

Accordingly the trial court judgment is affirmed.

AFFIRMED.


text:
    Anthony ABADIE and Chris Schubert v. Curtis T. MORALES.
    No. 11445.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      Torres & Bischof, George N. Bischof, Jr., Chalmette, for Anthony Abadie, plaintiff-appellant.
    Glenn E. Diaz, Chalmette, for defendant-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff Anthony Abadie appeals from a trial court judgment dismissing at his cost his suit for personal injury damages against the defendant, Curtis T. Morales.

The record reflects that on November 19, 1974 at approximately 6 p. m., the plaintiff was operating a pickup truck on Louisiana Highway 46 (St. Bernard Highway) in a northward direction, and the defendant was operating a four-door sedan on the opposite lane of the highway, in a southward direction, when a collision between the two vehicles occurred.

At the trial on the merits in the district court the parties gave two completely different versions of the manner in which the accident happened.

The plaintiff testified there was a car parked on the side of the highway on which the defendant was driving and that the crash occurred in the plaintiff’s lane as soon as Morales had passed the parked car. Abadie also stated when he saw the defendant’s car coming, crossing into the plaintiff’s lane, Abadie, in an attempt to avoid the defendant’s car, drove his own truck into the northbound lane’s adjacent ditch. As he tried to drive the car out of the ditch, however, he said the defendant’s car hit his headlight, propelling the plaintiff’s truck across the highway where it overturned in the southbound ditch.

The defendant testified, to the contrary, that although he did change lanes to go around the parked car, the parties’ vehicles collided after he had returned his car to the southbound lane and had travelled thereon for approximately 150 feet. He stated his vehicle was completely in his own lane when it was struck by the plaintiff’s truck, which only had one headlight, and that there was nothing he could do to avoid the collision. Morales’ version of the occurrence was substantiated by Rhonda Couture, a passenger who was riding in the front seat of defendant’s car. Both she and Morales also stated that neither of them spoke to the investigating police officer at the scene of the accident and that everyone in the defendant’s car was subsequently transported by ambulance to a hospital.

Edwin Nunez, Jr., a deputy employed by the St. Bernard Parish Sheriff’s Office, the investigating officer at the accident site, stated that due to the fact the accident occurred five years prior to the trial date, he did not have an independent recollection of the incident, but his report, based on his having talked with both drivers at the accident scene, showed the impact occurring directly to the side of the vehicle parked on the shoulder. Nunez testified the defendant told him he had cut into the opposite lane because of the parked car on the shoulder, and the plaintiff told him when the defendant’s car came into his lane he pulled over to the right but could not avoid the crash. Although his report indicated he interviewed the defendant at the accident site, Nunez said he had no independent knowledge of having done so.

In giving his oral reasons for judgment from the bench, the district court judge stated in part:

“Mr. Abadie, your testimony was straight forward and direct and perhaps a little more so than Mr. Morales’, but every plaintiff like yourself is required to prove his case by a preponderance of the evidence and if it were you and Mr. Morales only testifying I might have reached a different result but both Mr. Morales and his witness, who I have no reason to dispute, testified that the accident happened on their side of the road and that you were coming with one light and there has been no contradiction to that of the one light. * * * So, what really happened I don’t know, but, I just don’t feel that you were able to prove your case by the preponderance of the evidence despite a very good job by your lawyer. So, I have no alternative but to dismiss your suit.”

The record supports the trial judge’s conclusion that plaintiff did not prove his case by a preponderance of the evidence. Although the police report substantiated the plaintiff’s version of the accident, there was evidence presented at the trial that the information on the report was given mostly by the plaintiff, due to the fact that defendant was injured in the accident. Moreover, both the defendant and his passenger were consistent in narrating the actual events leading up to the collision.

Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), articulates the standards to be applied in appellate review:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Accordingly, we find no reason to disturb the trial court’s findings of fact in the present case.

For the reasons assigned the district court judgment is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Pamela GIBBONS, Individually and on behalf of her minor child, Sasha Gibbons v. ORLEANS PARISH SCHOOL BOARD.
    No. 11431.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      Windmeyer & Dinwiddie, Bruce W. Din-widdie, Metairie, for plaintiff-appellee.
    Polack, Rosenberg, Rittenberg & Endom, Charles T. Curtis, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

Plaintiff, Pamela Gibbons, filed suit individually and on behalf of her minor child Sasha, against the Orleans Parish School Board because of injuries sustained by the minor child while playing in defendant’s school yard. The defendant was found negligent and appeals denying its negligence and also seeks a reduction in the award. The appeal was answered by the mother asking that she be awarded damages for mental anguish as a result of her daughter’s injury.

Sasha, a six year old, was a first grade student at Lakeview School in New Orleans at the time of the accident. The child arrived in the school yard at approximately 8:30 a. m. and began swinging on “monkey bars”. Located adjacent to the bars was a “tether ball pole” about ten feet in height. When Sasha reached the end of the bars she grabbed onto the pole and attempted to slide down to the ground. Attached to the center area of the pole was a screw that protruded approximately IV2 inches and which caused a laceration on the inside of the child’s left thigh when she slid over it.

The District Court held the defendant negligent in failing to provide adequate supervision in the school yard and found the tether ball pole to be an “attractive nuisance” because of its close proximity to the bars. The Court awarded $7,500.00 for pain, disfigurement, and future cosmetic surgery expenses and denied recovery to the mother for her mental anguish.

At the time of the accident approximately 150-180 children were in the school yard under the supervision of one teacher. Her duties that morning included supervision in unloading school buses, patrolling the “T” shaped playground area, and overseeing students in the school basement. It is apparent that one teacher attempting to effectively perform these various supervisory functions over so many students in several locations is totally inadequate and virtually impossible. Even the presence of sufficient supervisory personnel may not have prevented this accident.

There is no explanation why the pole was located next to the bars. The fact that it was situated in such close proximity provided a natural inclination or impulse for a young child to switch from the bars to the pole and slide to the ground. The pole, in proper use and without the protruding screw, is not per se dangerous; however, when situated next to the bars with its protruding screw the pole becomes a dangerous instrumentality. In fact, it was foreseeable that a child using the bars would be tempted to swing over to the pole.

The lack of adequate supervision, the location of the pole next to the bars, and the protruding screw clearly constituted negligence on the part of the defendant.

The laceration to Sasha’s thigh required nine inside and twenty outside stitches to close the wound. The scar is “v” shaped about 1" X IV2" in length. The child remained home approximately one week convalescing and was later seen by a psychiatrist, psychologist and a social worker. Their testimony showed a nominal degree of traumatic neurosis without a definitive prognosis of difficulty.

Considering the circumstances of the trauma, the type of injury and its effect upon the child, we feel the award of $7,500 is neither excessive nor insufficient and within the sound discretion of the trial judge following the guidelines of Reck v. Stevens, 373 So.2d 498 (La.1979).

The child’s mother sought damages for mental anguish on her own behalf by way of answer to the appeal. Our courts have held that a person cannot recover damages for mental anguish as a result of injuries to another where there is no breach of an independent ex contractu or ex delicto duty owed directly to the claimant. Miles et al. v. Ill. Cont. R.R. et al., 389 So.2d 96 (La.App. 4th Cir. 1980); Robertson v. Aetna Casualty and Surety Company, 232 So.2d 829 (La.App. 4th Cir. 1970); Reid v. Clearfield Cheese Company, Inc., 307 So.2d 115 (La.App. 1st Cir. 1974).

We are aware of the isolated decision, Valence v. Louisiana Power & Light Co., 50 So.2d 847 (Orleans Appeals, 1951), which allowed damages to a husband for mental anguish due to injuries to his wife and fear of miscarriage. However, Valence, stands quarantined in our case law. Duet v. Cheramie, 176 So.2d 667 (La.App. 1st Cir. 1965); Robertson, supra.

Plaintiff urges reformation of the inconsistency which allows recovery for mental anguish over property damage, Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955), but denies recovery for mental anguish over injuries to a third party. We feel this dissonance causes an illogical conclusion; however, we are compelled to follow the jurisprudence of our Highest Court and any change must be made there or through our legislature.

The judgment of the District Court is affirmed with costs of this appeal to be paid by appellant.

AFFIRMED.


text:
    Phillomene B. PENN v. SCHWEGMANN WESTSIDE EXPRESSWAY, INC.
    No. 11395.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      Robert McComiskey, New Orleans, for plaintiff-appellee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Madison C. Moseley, New Orleans, for defendant-appellant.
    Before SAMUEL, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

This matter arose because of injuries plaintiff received when she fell into an open storm drain in defendant’s parking lot. The District Court found the defendant negligent for failing to notice the exposed drain and determined plaintiff was not con-tributorily negligent in failing to see the hole because it was obscured by an overturned shopping cart. Plaintiff was awarded $5,500.00 in damages which is not an issue on appeal.

Defendant urges that it was not negligent in failing to discover the unprotected drain, and alternatively, that plaintiff was contributorily negligent in failing to see this hazard.

Uncontradicted testimony shows that plaintiff and her husband arrived at defendant’s supermarket parking lot in mid-afternoon. The husband saw an empty parking space on which a shopping cart was overturned on its side. Plaintiff got out of the automobile to move the basket so that her husband could park. As she moved the cart her left foot went down into the drain until her entire leg was in the hole, injuring her back, left knee and left foot. After her fall plaintiff was straddled over the hole with one leg inside and the other leg level with the ground.

The hole in which plaintiff fell was for drainage and is normally covered with metal grating. This protective covering had been removed for no explained reason and was situated inside and at the bottom of the hole partially emersed in water, the basket resting over the exposed hole.

We are confronted with a factual situation which must be considered in light of defendant’s legal responsibility to plaintiff as an invitee. Defendant’s duty is to keep its premises in a safe condition, free of defects and conditions in the nature of hidden dangers, traps, or pitfalls which are not known to the invitee and which would not be observed in the exercise of reasonable care. Coquille v. Expressway Bowling, Inc., 183 So.2d 347 (La.App. 4th Cir. 1966), writ refused 185 So.2d 220 (La.1966); Champagne v. Harahan Lions Club, Inc., 243 So.2d 292 (La.App. 4th Cir. 1971).

Defendant’s store manager testified that the parking lot is approximately 250 yards long and 150 yards deep with six rows of storm drains containing three to four drains in each row. The drains are covered by heavy rectangular grates measuring approximately 20" X 30" which rest upon a concrete lip. Each grate weighs between 40 to 60 pounds. The manager testified that the accident occurred approximately 140 feet from the front of the building and he personally observed that the grate covering had been removed and was resting vertically inside the hole. The manager stated that he was unaware that this covering had been removed and was unable to find any employee with knowledge that this condition existed prior to the accident, nor did any customer report the hazard.

Defendant employed “buggy boys” to patrol the parking lot and retrieve grocery carts left in the parking area. One such former employee testified that on the date of the accident he did not see any grocery carts in a side position nor any open storm drains.

Defendant’s security officer verified that the grate covering was inside the open hole, but that he did not have knowledge of this condition during the day of the accident in spite of patrolling the parking lot from time to time.

A customer of the store was an eye witness and saw plaintiff fall into the hole as she attempted to move the grocery cart. The customer testified that plaintiff had fallen up to her waist in the rectangular hole, and he observed dirt and dust particles on the lip where the grate covering had rested.

Plaintiff’s husband testified that when he attempted to enter the empty parking space he observed a shopping basket lying down on its side. At this point his wife volunteered to get out of the vehicle to move the cart so her husband could park. He stated as she did so she slipped into the uncovered storm drain.

Plaintiff testified that it was her intention to upright the basket and move it out of the parking space. She stated she did not see the open hole and stepped into it when she attempted to move the grocery cart.

We fail to find any conflict in the testimony of the various witnesses. The District Court concluded that defendant was negligent in allowing the drainage hole to remain uncovered in the parking lot for an unreasonable period of time. The trial judge was impressed by the testimony of the employee of defendant who observed an accumulation of dust and dirt on the drain lip which indicated that the grate covering had been removed for some period of time. The lower court held that defendant’s employees should have noticed the exposed drain, or at least the overturned shopping cart, since it was their responsibility to retrieve the carts and maintain the parking area in a safe condition.

Plaintiff is a sixty-three year old female partially blind in one eye. The district judge stated:

“The Court also finds that plaintiff was not contributorily negligent. Although her vision is poor by her own admission, she nevertheless, failed to see the hole because it was obscured by the overturned shopping cart. The overturned cart in fact presented a trap for those unwary of the hole who would attempt to upright the cart.”

Hidden traps or defects have relieved claimants of contributory negligence where the defect was covered by leaves, Parker v. City of New Orleans, 1 So.2d 123 (Orls.La.App.1941), and where the defect was covered with gravel, Merchant v. Montgomery Ward & Company, 83 So.2d 920 (La.App. 1st Cir. 1955).

We feel the overturned grocery cart effectively hid from view the exposed drain hole and constituted a trap which a reasonable person using ordinary care could not have avoided and thus plaintiff was free of contributory negligence.

Admittedly, the District Court decision places a heavy burden on the defendant, but this type of pecuniary expense is a necessary and inherent risk of doing business.

We fail to find a basis, much less abuse of discretion, to disagree with the factual determination and legal conclusion of the District Court. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, the judgment appealed from is affirmed with costs of this appeal to be paid by appellant.

AFFIRMED.


author: BOWLING, Justice,

text:
    Judith Ann WEBB v. James Richard WEBB, Jr.
    No. 52247.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Laurel G. Weir, Thomas L. Booker, Jr., Philadelphia, for appellant.
    Robert D. Jones, Martin & Jones, Meridian, for appellee.
    Before ROBERTSON, P. J., and BOWLING and COFER, JJ.
   BOWLING, Justice,

for the Court:

This is another one of those unfortunate child custody cases for which there is no adequate resolution. The cause has been before this Court on two occasions and this opinion takes note of the former record as it is now a part of the records of this Court. The former cause is 376 So.2d 654 in the records of this Court and bears the style, Judith Ann Webb v. James Richard Webb, Jr. That cause was affirmed per curiam on November 14, 1979.

The present cause is an appeal from a decree of the Chancery Court of Lauderdale County modifying the first modification decree of December 19, 1978, in the prior cause. The records reveal that on December 13, 1977, a final decree of divorce was rendered, granting appellant herein, Judith Ann Webb, a divorce from appellee, James Richard Webb, Jr. The grounds for the divorce are not shown in the decree. The record reveals that at the time of the marriage of the parties, Judith Webb had a daughter three months of age. The record is silent as to whether or not this was a daughter by a prior marriage. The record does reveal that when the child was born, Judith was very young. After the marriage appellee adopted the appellant’s daughter and changed her name to Webb.

By the final decree of divorce, Judith Webb was granted the “exclusive care, custody, control and tuition of the minor child of the parties hereto, namely, Pamela Louise Webb, subject to the right of reasonable visitation on the part of James Richard Webb, Jr.” The father was ordered to pay monthly child support payments in the sum of $500.

As hereinbefore stated, there was involved in the former appeal to this Court a petition for modification filed by appellee, James Richard Webb, Jr., on August 1, 1978. It was his contention that the moral actions of appellant were such that it would be in the best interest of the minor child for its custody to be changed from Judith, the natural mother, to Webb, the adoptive father. There was considerable testimony heard by the trial court regarding the actions of both Webb and Judith. We will not discuss that testimony in detail as this Court held by affirming the cause that the chancellor was not manifestly wrong in granting the prayer of the petition for modification and changing the custody of the minor child to Webb with the right of reasonable visitation to Judith.

There were some parts of the testimony that are significant to anyone reading the record in the first modification hearing. It developed that on the same day the original divorce decree was entered, Webb married a seventeen-year-old girl, who was still his wife at the time of the hearing in the present action. This second wife testified in the first cause that she was enrolled as a student at the University of Southern Mississippi but intended to enroll in a college in Meridian where the parties lived. We will not go into detail and discuss the testimony before the chancellor during the first modification hearing, except to say that portions of the written word in the record left something to be desired in finding that he was entirely the innocent party in the whole matter.

After receiving the evidence in the first modification hearing, the chancellor issued his decree modifying the divorce decree so as to give Webb, the adoptive father, the custody, care and control of the minor child, who was eight years of age at that time. This custody was subject to the right of reasonable visitation on the part of Judith. The decree further provided that “Judith Ann Webb be and she is hereby ordered to pay unto James Richard Webb, Jr., a reasonable amount each month for the support of the minor child of the parties hereto.”

On March 26, 1979, approximately three months after the first modification decree, Webb, the adoptive father, filed another modification petition requesting that all visitation rights be taken from Judith, the natural mother, for the alleged reason that Judith’s immoral activities and dates with a married man were detrimental to the welfare of the child. The hearing on the present modification petition was not held until January 8, 1980. During the almost nine-month interval, Judith was evidently having visitation rights with her minor daughter. Judith did not appear at the modification hearing now before this Court, stating that she was “too upset” to come. The principal testimony was given by appel-lee Webb. He had employed detectives, who testified that Judith was in the frequent company of a married man in many different places and different states. Webb testified that the minor child, Pam, was upset when she returned from visiting her mother. Webb further testified that after the former modification decree wherein the chancellor ordered the mother, Judith, to pay “a reasonable sum” toward the child’s support, that he, Webb, decided that a monthly sum of $150 would be proper. Judith, who was then working at a dress shop, paid this sum for several months but stopped paying several months prior to the present hearing. The testimony was undisputed that Judith was not working at the time of the hearing, and had not been working for some time.

Webb’s testimony consisted primarily of his opinion as to what effect Judith’s actions were having on “my little girl.” It developed that neither the present Mrs. Webb nor the minor child were at the hearing. Webb’s explanation was that although his young wife had testified at the prior hearing that she was changing her school location to Meridian, a house had been bought in Hattiesburg and both the young wife and his adopted child, Pam, were enrolled in school there. The chancellor, therefore, had no opportunity to talk with the ten-year-old child.

In the opinion of this Court, Webb’s testimony was unsatisfactory to say the least. It was obvious that he had a very high opinion of himself in regard to the child’s support. Although he had set a monthly amount to be received from the mother and was asking for its continuation and a judgment in arrears, he stated that “I don’t need the money, I can raise my little girl.” Webb further stated that he was going to do “whatever I can do to protect my little girl,” even though this meant leaving Mississippi and going to Florida. There was no remonstrance by the lower court to this revelation. Neither was there anything said when Webb refused to divulge his annual income and refused to state anything other than it was in “six figures.” Of course, it does not take a mathematician to know that this would include anything between $100,000 and $999,999.

ASSIGNMENTS OF ERROR

The mother, Judith Webb, advances three assignments of error, namely: (1) the court erred in finding there was a change in circumstances; (2) the court erred in terminating all of her visitation rights, and (3) the court erred in requiring appellant to continue making monthly payments and in giving a judgment for appellee for the “payments” past due.

In discussing the first two assignments together, we, of course, immediately are confronted with the principle too common to require a citation of authorities that this Court will not disturb the finding of the chancellor on matters such as those in this case unless we find him to be manifestly wrong. It is obvious that the decree of the lower court taking away any visitation rights whatever from appellant with her minor daughter was rather drastic action. This Court has always hesitated to exclude permanently a mother from seeing her child. Other courts have been of the same opinion. See Taraboletti v. Taraboletti, 56 Ill.App.3d 854, 14 Ill.Dec. 350, 372 N.E.2d 155 (1978); In Re: Jane B., 85 Misc.2d 515, 380 N.Y.S.2d 848 (1976); In Re: J.S. & C., 129 N.J.Super. 486, 324 A.2d 90 (1974); Thompson v. Thompson, 9 Wash.App. 930, 515 P.2d 1004 (1973); Brisby v. Whitted, 190 Neb. 309, 207 N.W.2d 696 (1973); M.L.B. v. W.R.B., 457 S.W.2d 465 (Mo.1970); Chandler v. Chandler, 109 N.H. 477, 256 A.2d 157 (1969); Devine v. Devine, 213 Cal.App.2d 549, 29 Cal.Rptr. 132 (1963); Radford v. Matczuk, 223 Md. 483, 164 A.2d 904 (1960); Friedland v. Friedland, 174 Cal.App.2d 874, 345 P.2d 322 (1959); McCabe v. McCabe, 218 Md. 378, 146 A.2d 768 (1958); Townsend v. Townsend, 205 Md. 591, 109 A.2d 765 (1954); Donovan v. Donovan, 212 N.W.2d 451 (1973); 2 Nelson, Divorce and Annulment 274, § 15.26 (2d ed. 1961).

As above stated, we are very hesitant to disturb a chancellor’s finding on child custody between parents. It is our opinion, however, in this case, after careful study and consideration, that the chancellor was manifestly wrong in denying appellant, who is the natural mother, any visitation rights with her minor daughter. It is our opinion that some form of visitation between the mother and her daughter should be allowed. Hopefully our opinion here will serve to help the development of lives in the future. Therefore, we reverse the cause on the first two assignments of error with directions that the court will hear the cause at a time to be set by the court and that some form of visitation rights be given appellant.

Regarding the part of the decree giving judgment against appellant in the sum of $1,500 for alleged unpaid monthly support payments to appellee and requiring appellant to pay $150 per month in the future, we reverse those parts of the decree and render here. As hereinbefore set out, the first modification decree of December 19, 1978, only required appellant to pay a “reasonable amount.” The present decree is the first time the chancellor has set an amount. We hold that the alleged agreement between the parties as to a “reasonable amount” had no effect and could not serve to enlarge the court’s decree and give appellee a money judgment. Decrees and judgments cannot be based on such indefinite requirements as “reasonableness.” Furthermore, we hold that the lower court was manifestly wrong in requiring appellant, who was not working, to pay a monthly sum toward support of her daughter whom she could not even visit. In addition to this, as previously pointed out, appellee assured the court, while refusing to tell the court his income, that he was fully able to financially care for his adopted daughter. We tend to agree that an income which, according to him, could lack one dollar of being one million is sufficient for that purpose.

Therefore, we reverse and remand the cause for further consideration by the chancellor on visitation rights of appellant as hereinbefore set out. We reverse and render the cause as to the judgment against appellant for $1500 and child support payments in the amount of $150 per month.

REVERSED IN PART AND REMANDED; REVERSED IN PART AND RENDERED.

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


author: LEE, Justice, for the Court:

text:
    Walter SALMON v. Beverly V. THOMPSON, Jr., et al.
    No. 52261.
    Supreme Court of Mississippi.
    Dec. 10, 1980.

      John E. Mulhearn, Jr., Mulhearn & Mul-hearn, Natchez, for appellant.
    J. Walter Brown, Zuccaro, Riley, Pintard & Brown, Natchez, for appellee.s.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   LEE, Justice, for the Court:

Beverly V. Thompson, Jr. and Mrs. Betty Jane Kempe filed suit in the Chancery Court of Adams County, Honorable Ben Chase Callón, Special Chancellor, presiding, against Walter Salmon, seeking cancellation of a certain deed of conveyance. Salmon filed an answer, demurrer, and cross-bill denying the allegations of the bill of complaint and asking for cancellation of claims asserted by Thompson and Kempe against said lands. The trial court overruled the demurrer, and, after a full hearing, granted the relief prayed for in the bill of complaint, cancelled the deed of conveyance to Salmon and dismissed the cross-bill, from which judgment Salmon has appealed.

The appellant has assigned six (6) errors in the trial below which present to this Court the principal question of whether the lower court erred in cancelling a deed of conveyance from appellees to appellant.

The record is brief and there is little contradiction in the evidence. In the spring of 1975, appellant and appellee Thompson met at a cow catch pen in Adams County, where cattle were being branded, and discussed the sale and purchase of fifty-five (55) acres of land owned by appellees. It was orally agreed that appellees would sell the land to appellant for the sum of two hundred fifty dollars ($250.00) per acre, a total price of thirteen thousand seven hundred fifty dollars ($13,750), and that a hay baler owned by appellant and in the possession of Thompson would be conveyed to appellees for a credit of nine hundred dollars ($900.00) on the purchase price of the land.

The matter was not discussed further but approximately six (6) months later, on September 26, 1975, appellee Thompson wrote appellant concerning the proposed sale and enclosed an original and one copy of the deed of conveyance, executed by both ap-pellees, covering the fifty-five acres of land. An accompanying letter contained the following:

“September 26, 1975
Mr. Walter Salmon
Plantation Supplies
Rt. 1, Box 563
Natchez, Miss. 39120
Dear Walter:
This has been on my desk for a long time, but I have just been too busy to do anything about it.
If you are still interested in buying the property, I am attaching original and one copy of Warranty Deed executed by myself and my sister, Mrs. Betty Jane Kempe.
If you find the same in order, kindly execute one copy and return to me with your check in the amount of $13,750. Hope to see you my next time down to Sligo.
Best personal regards,
[unsigned]
BVT:gk”

There was no response from appellant to the letter and, on October 27, 1977, appellee Thompson wrote another letter to appellant:

“October 27, 1977
Mr. Walter Salmon
Route 1, Box 563
Natchez, MS 39120
Dear Walter:
I have not heard from you since September 26, 1975 when I sent you a bill of sale and warranty deed on the 55 acres of Commencement Plantation. I therefore assume that you are no longer interested. I now have another opportunity to sell this acreage, and am proceeding to do so.
Sincerely,
[unsigned]
BVT:gk
be: Mr. Webb Carter
Mr. Thomas K. Armstrong”

Upon receipt of the above letter withdrawing the offer of conveyance, appellant consulted with an attorney, recorded the deed he had received two (2) years, one (1) month and one (1) day earlier, and wrote appellee Thompson a letter enclosing his check for twelve thousand eight hundred fifty dollars ($12,850) payable to B. V. Thompson, Jr. and dated November 1, 1977, with the notation that it was in payment of the 55-acre tract mentioned. The sum of $900.00 was deducted on account of the hay baler which Thompson still possessed. On November 9, 1977, appellee Thompson returned the check to appellant, stating that, in his October 27, 1977 letter, he had withdrawn the offer of conveyance and that he would send appellant a check in the sum of $900.00 shortly, for the hay baler, or, would return it to appellant with an appropriate amount of rent for the time he had used same.

The appellees contend that the letter of September 26, 1975, enclosing the executed deed of conveyance, was an offer to sell the 55-acre tract, which was not accepted within a reasonable time and before the offer was withdrawn, and, further, that the letter constituted a qualified delivery of the deed. On the other hand, appellant claims that the sale of the land was agreed upon in the oral discussion in the spring of 1975, and that the letter along with the executed deed received by him in September, 1975, merged the oral contract into a written contract, and vested title to said property in him. He also argues that there was no failure of consideration since, in the absence of fraud or incompetence, failure of consideration is no defense. Mississippi State Highway Commission v. Conn, 217 So.2d 528 (Miss.1969); Richardson v. Moore, 198 Miss. 741, 22 So.2d 494 (1945); Harris v. Griffith, 210 So.2d 629 (Miss.1968); Longmire v. Mars, 124 Miss. 77, 86 So. 753 (1921).

Appellees take the position that there must be an acceptance of a deed before it vests title and cite Martin v. Adams, 216 Miss. 270, 62 So.2d 328 (1953) where this Court said:

“It is well settled that the delivery of a deed is essential to its validity. 26 C.J.S. Deeds § 40, page 231. It is equally well settled that it is essential to the validity of a deed that it be accepted by the Grantee even though it is recorded. 26 C.J.S. Deeds § 51, page 253.” 216 Miss. at 277, 62 So.2d at 329.

In Mississippi State Highway Commission v. Sanders, 269 So.2d 350 (Miss.1972), the Court stated:

“A deed is a form of contract; and to constitute a contract there must be more than mere manual possession by the grantee; there must be the assent that it will be operative as a contract. Kearny v. Jeffries, 48 Miss. 343 (1873). Acceptance by the grantee is essential to the validity of a deed. Martin v. Adams, 216 Miss. 270, 62 So.2d 328 (1953).” 269 So.2d at 351.

Acceptance of a deed of conveyance and delivery of the instrument work together and complement each other. There must be a complete and unequivocal delivery of a deed of conveyance in order for it to vest title in the purported grantee. Reeves v. Reeves, 374 So.2d 791 (Miss.1979).

There having been no discussion or reference to the deed in approximately six (6) months, Thompson indicated in the transmittal letter of September 26, 1975, (1) that he did not know whether appellant was interested in buying the land at that time and (2) he enclosed an original and copy of the deed with instructions that, if appellant was still interested in buying the property (found the deed in order) (3) he was instructed to execute a copy and return it to Thompson (4) with his check in the sum of $13,750.00.

The above letter with the instructions mentioned constituted a qualified delivery of the deed of conveyance to appellant. He did not comply with the instructions and conditions contained in the transmittal letter for a period of two years, one month, and one day, and not then until appellee Thompson informed appellant that the deed offer and conditions in the letter were withdrawn.

We are of the opinion that there was- no effective delivery of the deed to appellant and no acceptance of the instrument by him within a reasonable time. The chancellor correctly cancelled the instrument as a cloud on the title of appellees and the judgment of the lower court is affirmed.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    Betty RUSSELL v. STATE of Mississippi.
    No. 52176.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Roy Pitts, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BOWLING and COFER, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Betty Russell was indicted, tried and convicted in the Circuit Court of Lauderdale County of obtaining $4750, a diamond ring and gold band valued at $2,000, from the owner, Ollie Cálmese, by false pretenses. She was sentenced to serve a term of three years with the Department of Corrections and fined $10,000. She appeals, assigning as error:

1. The trial court erred in failing to sustain Appellant's demurrer to the indictment for duplicity, in failing to grant her motion for mistrial as the other charge was proven and in failing to delete references to the other charge in the instruction thereof requested and granted the state.
2. The trial court erred in failing to grant a mistrial when requested by Appellant on grounds that the state had shown proof of another separate and distinct crime by other persons against the same victim on the day after the crime charged.
3. The trial court erred when it permitted introduction of the instrumentalities of a crime seized from the Appellant which had no relevancy to the crime charged and when it thereafter failed to grant Appellant a mistrial by reason of the evidence.

About 10:00 A.M., May 2, 1979, Ollie Cálmese, an 83-year-old black male, went to the Village Fair Mall in Meridian, Mississippi, to have shoes repaired. While he sat in the main concourse of the Mall waiting for his shoes to be repaired, a black woman sat down beside him and began talking to him. Shortly thereafter another black woman came up, sat down beside them, and told them that she had found something but didn’t know where to turn it in. The first woman inquired as to what she had found, whereupon the second woman opened an envelope and took out a card saying the envelope contained about $17,000. The so-called finder stated that if they wouldn’t say anything about it she would give them $150. Cálmese told her that he wanted no part of it. One of the women asked him if he had any money, and he answered that he had some at home. It was suggested by the two women that they go to his home and get his money, so that he could put up some good faith money and then they would divide the money in the envelope among the three of them.

They left the Mall in Calmese’s automobile, with one of the women driving. One of the women went into the room with him to get his money. Defendant was pretending to use the telephone, but was so situated where she could see everything that was going on. Cálmese gave the woman with him $4,750. She folded the money and put a rubber band around it and handed it back to him to keep in his inside coat pocket. While in the room getting the money, the woman with him noticed that there was a diamond ring and a gold band in a jewelry box underneath a handkerchief. She had opened the box and when Cálmese noticed her looking at the rings he closed the jewelry box and put it back underneath the handkerchief. The woman with him immediately asked for a drink of water, and Cálmese went with her to the kitchen to get a drink of water.

All three then returned to Calmese’s car, and the other woman again drove his car with Cálmese sitting on the front seat with her and the defendant, Betty Russell, sitting on the back seat.

On the way back to the Mall, defendant suggested that Cálmese give her the money so she could wrap it up for him. Defendant wrapped it in a white handkerchief and handed it back to Cálmese, who started to put it in his coat pocket but defendant said “No, put it in your inside pocket so you won’t lose it.” Cálmese put the wrapped money in his inside coat pocket.

When they got back to the Mall and had parked the car, the two women suggested that Cálmese go back into the Mall and meet them a short time later by Morrison’s Cafeteria. He waited for them for some time, but when they did not appear, decided to get his repaired shoes and go home. When he got home he took the packaged money out of his inside coat pocket, untied it and took off the handkerchief to see if his money was all there. He found nothing but a piece of brown paper rolled up to resemble his money. He then went to check on the diamond ring and gold band; both of the rings were gone. He was so distraught and worried that he didn’t tell anybody about it until the next day.

On the morning of May 3rd, two black males posing as detectives appeared at his home and showed him two rings which they said they had recovered. Cálmese recognized these as his diamond ring and gold band. That afternoon he reported the theft of his money and the two rings to the police, and also told the police about the two black men posing as detectives who showed him the two rings stolen from him the day before. Late that night Detective Griffin picked up Cálmese and brought him to the jail to see if he could identify a suspect that they had picked up. The lineup consisted of five black women and Cálmese tentatively identified number 3 as being the woman to whom he had given his money for wrapping and returning to him.

About 4:00 the next morning, Cálmese phoned the police station and told them that his Saviour, Jesus Christ, had revealed to him in a vision that number 3 in the line-up was positively the one that had taken his money, and he instructed the police to hold number 3 because she was definitely the one that had relieved him of his money.

At the trial, Sergeant Moore and Detective Lewis testified that about 8:45 the night of May 3rd they were taking a coffee break at the Holiday Inn when they noticed two black females fitting the description given the police by Cálmese. With the permission of Judy Robinson in whose name the room was registered, they searched this room occupied by Judy Robinson and defendant Russell. They found several envelopes containing play money. Two plastic pouches, containing a number of $1.00 bills and one $5.00 bill, were found.

Defendant Russell was arrested and later indicted. The indictment read:

“That Betty Russell in said County, on the 2nd day of May, A.D., 1979, did felo-niously, unlawfully and wilfully falsely represent to Ollie Calmes a scheme, plan and story about a lucrative discovery of lost money and division of the proceeds of said lost money between herself, an unknown party and Ollie Calmes; when in truth and in fact said lost money did not exist all of which was then and there well known to the said Betty Rusell and unknown party, to the said Ollie Calmes with the intent to cheat and defraud Ollie Calmes by said false pretenses and did wilfully, feloniously and unlawfully obtain from Ollie Calmes Four Thousand Seven Hundred Fifty Dollars ($4,750.00) in good and lawful currency of the United States of America, a diamond ring and gold band of the value of Two Thousand Dollars ($2,000), property of the said Ollie Calmes, in violation of Section 97-19-39 of the Mississippi Code 1972 Annotated.”

Garvin et al. v. State, 207 Miss. 751, 43 So.2d 209 (1949), was a pigeon-dropping case similar to the case at bar. One difference, however, was that the good faith money had been delivered by Leon Cooks (the pigeon) to Garvin and Rhodes (the pigeon droppers). Garvin and Rhodes were indicted, tried and convicted of grand larceny. In affirming the conviction and sentence, this Court said:

“The contention of the State that the obtaining and keeping of the money, under the facts and circumstances to be hereinafter stated, constitutes the crime of grand larceny instead of obtaining money under false pretenses, is sustained by the principles announced in the cases of Courtney v. State, 174 Miss. 147, 164 So. 227; Foster v. State, 123 Miss. 721, 86 So. 513; Dukes v. State, 181 Miss. 704, 181 So. 518; and Alford v. State, 193 Miss. 153, 8 So.2d 508. That is to say, that where any personal property is fraudulently obtained under such circumstances from an owner who intends that the title thereto shall not pass, the offense is grand larceny, but where he intends that the ownership or legal title should pass the offense is that of obtaining money under false pretenses.” 207 Miss. 754-55, 43 So.2d at 210.

In the case at bar, there is no evidence that Cálmese intended to invest either title or possession of his money in the defendant. During the return trip to the Mall, Cálmese delivered his money to the defendant to be wrapped in a handkerchief. The wrapped money was then returned to Cálmese with instructions from the defendant to place in an inside coat pocket for safekeeping. Cálmese thought that he had possession of his money and kept his hand pressed against it until he got home and opened it up.

In Conn v. State, 228 Miss. 833, 89 So.2d 840 (1956), this Court stated:

“It is well-settled by the decisions of this Court that where the possession of personal property is fraudulently obtained, there being no intention on the part of the owner that ownership or legal title shall thereby pass, and the person who obtains possession intends to deprive the owner of said property, and in pursuance of such intent does deprive the owner thereof, the offense is larceny. Hanna v. State, 168 Miss. 352, 151 So. 370; Dukes v. State, 181 Miss. 704, 181 So. 518; Ware v. State, 186 Miss. 533, 191 So. 678; and Jones v. State, 223 Miss. 812, 79 So.2d 273.” 228 Miss. at 843, 89 So.2d at 844.

In Woodfork v. State, 377 So.2d 912 (Miss.1979), we said:

“In a false pretense case, the owner, in parting with his property, must intend to invest the recipient with title, as well as possession. Jones v. State, 223 Miss. 812, 79 So.2d 273 (1955); Courtney v. State, 174 Miss. 147, 164 So. 227 (1935).” 377 So.2d at 915.

In view of the fact that there was no evidence that Cálmese intended to part with either ownership or possession of his money at the time he delivered it to the defendant, the defendant was not guilty of the crime of obtaining money by false pretenses. Under proper indictment, the jury could have found Russell guilty of grand larceny.

We move on to the other assignments of error. Cálmese testified positively that the defendant was the one who had wrapped his money and handed it back to him, and one of the two women who had participated in every phase of the pigeon-dropping operation.

We feel that the trial court was correct in admitting into evidence, over defense counsel’s objection, the pigeon-dropping paraphernalia found in the motel room jointly occupied by defendant and Judy Robinson, under the authority of Wilkins v. State, 264 So.2d 411 (Miss.1972).

The conviction and sentence are reversed and this cause remanded for a new trial on a proper indictment, if such should be returned by another grand jury.

REVERSED AND REMANDED, WITH DEFENDANT TO REMAIN IN CUSTODY PENDING ACTION OF ANOTHER GRAND JURY.

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