text:
    John ROMANO v. Henry M. LOMASNEY, et al.
    No. 13164.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 2, 1982.
    Writ Denied Jan. 21, 1983.

      John J. McCann, New Orleans, for plaintiff-appellee.
    James H. Drury, New Orleans, for defendants-appellants.
    William S. Marshall, Jr., New Orleans, for intervenor-appellee.
    Before WARD, BYRNES and KLEES, JJ.
   WARD, Judge.

John Romano filed suit in Orleans Parish Civil District Court claiming damages for injuries he sustained while working for Southern Imperial Coatings Corporation (Southern), a manufacturer of paint. He sued numerous parties, corporate and individual, including his corporate employer’s executive officers: Henry and John Lomas-ney, Eddie Borne and their insurer, Commercial Union Insurance Company. Romano has a cause of action against the executive officers because his injury occurred before the effective date of Act 147 of 1976, (LSA-R.S. 23:1032) which immunized executive officers from an employee’s claims for personal injuries from negligent acts. His suit against the other defendants was resolved when the Trial Judge granted their motion for a directed verdict.

During the course of the trial, Romano also moved for a directed verdict against the remaining defendants, who were his corporate employer’s executive officers, and the Trial Judge granted the motion and ordered the jury to render its verdict on the issue of liability in favor of Romano and against Henry and John Lomasney, Eddie Borne, and Commercial Union Insurance Company, but he instructed the jury to decide the amount of damages to be awarded to Romano. The jury awarded $500,-000.00 in damages to Romano.

The defendants who were cast in judgment have appealed, claiming that the Trial Judge erred when he granted the plaintiff’s motion for a directed verdict because “reasonable and fair-minded men” could have disagreed whether defendants Henry and John Lomasney had violated the Child Labor Law, LSA-R.S. 23:151, et seq., because Romano had falsely stated that he was 18 in his application for employment and because his duties were not those proscribed by the Child Labor Law. They also argue that reasonable and fair-minded men could have disagreed whether defendants Henry and John Lomasney were the manufacturers of an unreasonably dangerous machine. They further claim that Romano was contributo-rily negligent, that he assumed the risk of the injury, and that the jury abused its discretion in its award of damages because the amount is speculative and, therefore, excessive.

Romano has answered their appeal, but he has not appealed either the jury’s award of damages or the directed verdict in favor of the other defendants. The insurer of Southern and its executive officers, Commercial Union, is also the workmen’s compensation insurer, and has intervened and joined in this appeal to recover the benefits which it has paid for Workmen’s Compensation.

We believe the Trial Judge was correct in granting the directed verdict against Henry and John Lomasney, Eddie Borne, and Commercial Union Insurance Company and we affirm his decision for the following reasons.

A directed verdict may be rendered when, having considered all the evidence in the light most favorable to the opposing party, the Trial Judge determines that reasonable men could not arrive at a contrary verdict. Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979). To answer the question of whether the directed verdict was properly granted in the instant case, we “must view and interpret the facts in the light most favorable” to the party opposing the directed verdict, in this case, the defendants. Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir.1981).

The Trial Judge did not err when he directed a verdict in favor of Romano. The evidence, when considered in the light most favorable to defendants, clearly indicates that reasonable persons could not arrive at a verdict in favor of Henry and John Lo-masney and Eddie Borne on the issue of liability.

On the first issue, the question of whether the defendants violated the Child Labor Law, the statute in question is LSA-R.S. 23:161. It states in pertinent part:

No minor under the age of eighteen years (except those indentured as apprentices in accordance with Chapter 4 of this Title) shall be employed, permitted or suffered to work:
(1) In oiling, cleaning, or wiping machinery or shafting, or in applying belts to pulleys;

Southern breached the duty imposed by 23:161, which provides statutory protection for minors by prohibiting their being employed to clean and wipe machinery. In light of the overwhelming evidence, reasonable men could not disagree that Romano was only 17 years of age when he was employed by an executive officer who was under the supervision of Henry and John Lomasney and then assigned to clean and wipe high speed machinery. The Trial Judge correctly concluded that this activity is prohibited by LSA-R.S. 23:161. Employers have been held to breach the statutory prohibition even in those instances where the employer inadvertently employs a minor. Alexander v. Standard Oil Co. of Louisiana, 140 La. 54, 72 So. 806 (1916). The directed verdict was proper on this issue.

Moreover, even if Southern did not breach the statute because they inadvertently employed Romano when he was 17, relying upon Romano’s false statement as to his age, we believe that Southern was negligent. The evidence presented during the trial before a jury showed that Romano had first been employed by Southern when he was only 17 years old because he had falsely stated in his application for employment that his age was 18. After several months, Romano was promoted to a “batch-er” whose duty it was to scrape paint from the sides of paint mixing machines. On November 13, 1974, while he was scraping paint, his hair, fashioned in a pony tail, became entangled in the shaft of a high-speed mixing machine which ripped both his hair and scalp from his head. He was seriously injured and permanently disfigured. At the time of the accident, although Romano had been employed several months, he was still only 17 years of age.

As a matter of policy, Southern does not employ persons 17 years of age. As a matter of policy, however, neither does it ask for proof of age from applicants for employment. We believe that executive officers of a corporation have a duty to establish and enforce policies that require youthful persons who apply for employment to present proof of age before they are employed. This is especially true when they are to be employed in industrial work. The duty exists because a reasonably prudent executive officer would establish and enforce such a policy. Because there is statutory prohibition against 17 year olds doing particular jobs, we feel there is a corresponding duty imposed on employers to require proof of age to insure that an employee is 18, before he is assigned to work activities which are prohibited to those under 18. Common experience shows that there is a foreseeable risk known to reasonable men that underage persons seeking employment will falsify their age on the application. That same experience shows that when proof of age is not required, underaged persons may be injured when they are employed to perform duties which are hazardous to them and which they are prohibited by statute from performing. Moreover, the legislature, when it enacted LSA-R.S. 23:161, recognized that, as a matter of policy, there is a foreseeable risk of injury to a 17 year old who is employed to clean machinery. In summary, we believe that there is a duty to require proof of age from youthful applicants in order to avoid the obvious risk of employing those who are declared by statute, too young to do hazardous work. This duty was owed to Romano because there was clearly a foreseeable risk of injury to him, an inexperienced youth. The breach of that duty was the cause in fact of Romano’s injury. Romano, immature and inherently indifferent to obvious dangers, was incompetent to safely perform the work required of him.

We also believe a directed verdict was correct because the executive officers of Southern, and particularly Borne, breached a duty owed to Romano and others to provide a safe work environment. In the instant case, Eddie Borne, employed by Southern as a supervisor to oversee paint mixing operations, was the immediate supervisor of Romano. He was instrumental in promoting Romano to the job of “batch-er”. As a supervisor, he had a duty to insure that there were safe work procedures for Romano and others. He breached this duty when he required Romano, while working under his supervision, to scrape paint from the sides of a vat where an unguarded shaft spun blades at a high rate of speed. To perform his job, Romano was required to lean into the vat, as the shaft spun, with his head perilously close to the unguarded shaft.

We also believe the Trial Judge was correct in granting the directed verdict because Henry and John Lomasney designed and manufactured an inherently dangerous machine. Defendants claim this issue should have been given to the jury because “reasonable and fair-minded men” could have found in favor of Henry and John Lomasney on this question. They support this claim by arguing that the machinery itself was not unreasonably or inherently dangerous and that the procedure for using the machine was not dangerous.

The evidence most favorable to defendants on the question of whether the machine was inherently dangerous merely explains the design and why the dangerousness could not be reduced. The testimony of Henry Lomasney, an executive officer who designed the machine, indicated that after an earlier injury to an employee by a similar machine with an open shaft, he looked at other machines in the industry to “beef up certain areas.” He testified that other machines which he viewed were not equipped with a shaft guard. There was other testimony that the presence of a shaft guard on this kind of high speed dissolver would create a fire hazard and that the machine, as designed and manufactured, represented the state of the art and practice of the industry at the time. The overwhelming contrary testimony, however, was that for years open shafts have been considered highly dangerous and that some machines have been designed with guards. Others have been designed with automatic wiper blades which scrape the vats. We believe reasonable men could not disagree. This high speed, open shaft, small vat machine which requires manual cleaning is dangerous. The Trial Court did not err.

In addition, the defendants claim that there was sufficient evidence in the record to conclude that Romano was contributorily negligent. They claim that the Trial Judge erred when he made an evaluation of credibility in his ruling on the motion for a directed verdict. In that ruling, he stated:

Additionally, the Court finds there is no evidence of plaintiffs fault. Although the evidence conflicts on exactly what instructions were given to the plaintiff, there is no evidence that he did not follow the instructions except the testimony of Frank Self, who could not possibly be believed in light of the overwhelming testimony of witnesses for both plaintiff and defendants that the plaintiff did his job as instructed....

While it is true that when witnesses give conflicting testimony, the Trial Judge is prohibited from rendering a directed verdict based on his evaluation of their credibility, Campbell, supra, a fair reading of these comments shows that the Trial Judge did not rely on a credibility evaluation alone; he relied on the overwhelmingly conclusive evidence that John Romano had followed the instructions which he had been given for the use of the machine.

Defendants claim that there was other evidence to show that Romano was at fault because he failed to follow instructions to cut his hair and that the issue should go to the jury for this reason. However, although the defendants had warned Romano and their other employees against having long hair, the record clearly reflects that Romano was not the only employee with long hair and that he had also been advised to keep his hair in a pony tail and to wear a hard hat. Hence, his refusal to cut his hair was condoned by his supervisors, and he was not at fault. Moreover, where a minor is employed to perform work prohibited to them by statute, contributory negligence is not a defense. In Boyer v. Johnson, 360 So.2d 1164 (La.1978), it was stated:

[Wjhere the purpose of a statute is to protect the minor against the risk of his own negligence (as here, where the statute absolutely prohibits the employment of a minor below a certain age in work connected with power-driven machinery or in driving a commercial vehicle), the general rule is that the minor’s contributory negligence or assumption of risk will not defeat recovery, (citations omitted)

We hold this rule is applicable even when, as here, the employer relies upon the minor’s false statements of his age.

Finally, the claim that the award includes speculative damages appears to be based on comments from the extensive testimony of a plastic surgeon, Dr. Ryan, who discussed the possibility of future surgery, the possible number of surgical procedures, the likelihood of whether he would even recommend further surgery, and possible costs. In his testimony, he was equivocal about whether he would ever recommend future, fairly experimental, surgical procedures for Romano which he characterized as fairly experimental. The psychiatric testimony was also equivocal, if not negative, on the question of whether future surgery would ever be advisable for John Romano.

In spite of this, the record contains evidence of extremely severe injuries. His scalp was ripped from his eyebrows to the back of his neck. There are no nerves in the skin covering his head. He is more susceptible to injury and disease. He is more susceptible to cancer. He has been suicidal, seriously depressed, and his normal adolescent and young adult development have been seriously impaired. His potential earning capacity has been reduced because of his altered appearance. He has suffered the taunts of small children and the curious stares of strangers. The record is filled with surgical, psychiatric, and lay testimony about the horrors which Romano has suffered, including multiple hospitalizations and surgical procedures.

Since future, ameliorating, cosmetic surgery is a remote and dubious possibility (and not advisable at this time), the obvious conclusion is that the jury intended to make an award in damages to compensate Romano for what he has already suffered and what he undoubtedly will suffer. We conclude that the award does not include speculative damages and that there is no basis to say that the award is excessive, much less to say that the jury abused its discretion in its award.

We therefore affirm the Trial Court’s finding of liability against the defendants and the award of $500,000.00 to John Romano. We also affirm that portion of the judgment awarding $27,023.87 to Commercial Union Insurance Company for worker’s compensation benefits paid to John Romano.


source: Caselaw Access Project

author: WARD, Judge.

license: Public Domain

text:
    Evelyn McGee, Wife of Freddie SINGLETON v. Freddie SINGLETON.
    No. CA-0057.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 2, 1982.
    Writ Denied Jan. 28, 1983.

      Philip R. Riegel, Jr., New Orleans, for plaintiff-appellant.
    John B. Perry, New Orleans, for defendant-appellee.
    Before GULOTTA, WARD and CIAC-CIO, JJ.
   WARD, Judge.

This appeal arises from the alleged failure of Freddie Singleton to pay the child support which the Trial Judge had ordered him to pay as part of a separation proceeding. The record in this case shows that in June, 1979, the Trial Judge rendered a judgment that awarded Mrs. Singleton custody of the minor child bom of the marriage and ordered Mr. Singleton to pay $70.00 a week for child support. In October, 1981, Mrs. Singleton filed a rule for contempt, alleging that Mr. Singleton had not paid child support and moving for judgment in the amount that was owed, plus legal interest, attorney fees and costs.

In her motion for judgment, Mrs. Singleton claimed that Mr. Singleton had made payments for only three months in 1979 and owed $980.00 for that year; that he had made no payments in 1980 and owed $3,640.00 for that year; and that he had made no payments in 1981 and owed $2,730.00 through September 30 of that year when suit was filed. These alleged arrearages totaled $7,350.00. Mr. Singleton admitted that he had not paid all of the child support ordered by the Trial Court, but he denied that he owed the amount alleged by Mrs. Singleton. He contends that he owes $1,540.00, not $7,350.00, and alleges that he had made payments to Mrs. Singleton totaling $5,810.00. His allegation of payment was the issue before the Trial Court.

The Rule and Motion were tried December 8, 1981, and on January 6, 1982, the Trial Court dismissed the motion for contempt and rendered judgment against Mr. Singleton for past-due child support, legal interest, and costs, but only for $1,540.00, the amount he admittedly owed.

Mrs. Singleton has appealed and alleges that the judgment is incorrect. She contends that Mr. Singleton’s claim of payment is an affirmative defense which he must prove by a preponderance of the evidence, and she alleges that the Trial Judge erred when he accepted the uncorroborated testimony of Mr. Singleton as sufficient proof that he had paid $5,810.00 to her for child support. Hence, she argues that this court should amend her award to include the full amount which she has alleged is past-due, reduced only by the amount which Mr. Singleton has proved he has paid by receipts. In support of her argument, Mrs. Singleton cites La.C.C.P. Art. 3945 and relies on the recent case of Vaughan v. Vaughan, 415 So.2d 483 (La.App. 1st Cir.1982). La.C.C.P. Art. 3945 states:

When the payment of alimony under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due alimony determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due alimony.

As Mrs. Singleton has correctly pointed out, Article 3945 was discussed in Vaughan v. Vaughan, supra. In that case, the Trial Court awarded the wife $3,900.00 in past-due child support although she had petitioned for $7,800.00. In amending the judgment of the lower court and awarding to the wife the amount which she had claimed, the First Circuit Court of Appeal held:

Because of the phrase “the court shall render,” it has been held the court has no discretion as to whether or not judgment will be rendered if there is proof payments are in arrears. Whitt v. Vauthier, 316 So.2d 202 (La.App. 4th Cir.1975), writ refused 1975, cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360; Bell v. Bell, 225 So.2d 753 (La.App. 4th Cir.1969). Although the court did render judgment for the arrearages, it did so for only half the amount claimed.
Certainly if the defendant had shown he had in fact paid some amount of child support he would be entitled to a credit in that amount. Davis v. Davis, 405 So.2d 594 (La.App. 3d Cir.1981). However, we find the record void of such evidence. We cannot accept defendant’s bald statement that he made “some payment” as evidence sufficient to grant him a credit. Indeed, it would be impossible to do so without knowing how much he had paid. Mrs. Vaughan testified unequivocally defendant had made no payments in the past three years. Unless defendant has some records or other evidence indicating the approximate dates and amounts of the payments he is not entitled to a credit. Elchinger v. Elchinger, 181 So.2d 297 (La.App. 4th Cir.1965).

The language in this opinion is the basis of Mrs. Singleton’s argument that any claim of payment by the husband is an affirmative defense which he must prove.

Although the opinion lends support to her argument, we nevertheless believe that Vaughan v. Vaughan, supra, was concerned with the lack of evidence supporting either the husband’s testimony or the Trial Judge’s finding on the issue of credibility, but not with the question of who has the burden of proof. We do not believe, as counsel for Mrs. Singleton argues, that Vaughan stands as authority for the rule that the husband has the burden of proof to show payments. If this were true, all the wife would have to do is allege non-payment, and, without more, the husband would be required to go forward to prove payments.

We believe the wife as the moving party must first substantiate her claim with credible and supportive testimony and that Vaughan stands for the rule that when the wife gives credible testimony that supports her claim, the mere “bald statement” of the husband that he has made “some payment” is insufficient to rebut the wife’s testimony.

In the Vaughan case, the wife testified first, and, as the Court pointed out, her testimony was both credible and unequivocal. In that case, the husband’s testimony was uncorroborated; he did not offer other evidence of payments. The absence of either receipts or cancelled checks, and his failure to testify as to times and dates when he made payments made his testimony unworthy of belief. Because the husband would ordinarily have corroborative evidence such as cancelled checks, cash receipts, money order stubs, and in some instances witnesses, his failure to produce corroborative evidence cast doubt on his credibility. In sum, he did not rebut the wife’s credible and unequivocal testimony.

The present case is easily distinguishable because Mrs. Singleton’s testimony was equivocal. More than that, it was untruthful. The Trial Judge said:

The Court finds that the plaintiff in this instance has not been truthful with the court and in some of the statements finds contradictions about the amount of money that she received and about the amount of money that was paid out by the husband, Freddie Singleton, to the wife. I believe the story of the husband seems to be much more credible. His story seems to be in keeping with the facts....

Obviously, the Trial Court believed that Mrs. Singleton had not given credible testimony to support her claim as to the amount in dispute.

Additionally, even if we believed the record showed that Mrs. Singleton’s testimony in some way had supported her claim, the record also shows that Mr. Singleton produced evidence which rebutted it. Mrs. Singleton testified that she had never received cash payments. This statement was disproved by production of receipts for cash received by Mrs. Singleton from her husband. She testified that she had never received a money order from her husband. That testimony was contradicted by both Mr. Singleton and a witness. She testified she had never received payments during either 1980 or 1981. Mr. Singleton produced documents showing that he had made some payments during those years. Thus, the present case is distinguished from Vaughan, supra, not only by the failure of Mrs. Singleton to establish her claims by credible testimony, but also because Mr. Singleton offered a good deal more proof than a “bald statement” of payments.

Finally, the question of whether the husband had paid child support is ultimately one of credibility. The Trial Judge chose to believe the husband. Mrs. Singleton has not shown either that there was an error of law or that the Trial Judge’s finding of fact was clearly wrong. Accordingly, we affirm. All costs of this appeal to be born by appellant.


author: WILLIAMS, Judge.

text:
    Thellie B. WAGGONER v. AMERICAN BANK AND TRUST COMPANY; French Market Homestead Savings Association; and Greater New Orleans Homestead Association.
    No. 12966.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 2, 1982.

      Kenneth J. Berke, New Orleans, for plaintiff-appellant.
    John P. Ales, William C. Shockey, C. Stokes McConnell, Jr., McCollister, McCleary, Fazio, Mixon, Holliday & Hicks, Baton Rouge, for defendants-appellees.
    Before WARD, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment dismissing the plaintiff’s action against the American Bank and Trust Co. [“AB & T”], French Market Homestead Savings Association [“French Market”], and Greater New Orleans Homestead Association [“GNO-HA”] on the basis of prematurity.

The petition filed by the plaintiff alleges the following: the plaintiff, Thellie B. Waggoner became a member of a Retirement Plan for Self Employed Individuals and Their Qualified Employees, more commonly known as a Keogh Plan, on or about December 31, 1974. AB & T was the Trustee of this Plan and responsible for making distributions. No distributions were to be made to the plaintiff until he reached 59V2 years of age, or was disabled. French Market was custodian of the funds deposited by the plaintiff. The plaintiff received notice that the certificates held in his name by French Market pursuant to the Keogh Plan would mature on December 31, 1980. At that time, the plaintiff was not yet 59% years old, nor had he become disabled. At this time, the plaintiff’s wife instructed French Market to transfer the funds that it held in the Keogh Plan to GNOHA. The plaintiff had invested $25,334.13 in the Keogh Plan. French Market issued the plaintiff’s wife a check in that amount, and she delivered it to GNOHA, instructing it to maintain the funds in a Keogh Plan. The check was deposited in a Passbook Account at GNOHA until certain forms were completed. Within the 60 day period allowed for the transfer of funds, GNOHA removed them from the Passbook Account and accepted them for the Keogh Plan. Approximately one month later, however, GNOHA informed the plaintiff that it would not accept his funds in the Keogh Plan because they were not directly transferred from French Market. The plaintiff asked the defendants to return the parties to status quo in order to effect a proper transfer. The defendants refused to respond to the plaintiff’s request.

The plaintiff filed suit alleging that, as a result of the premature distribution, he would suffer adverse tax consequences, be unable to make contributions or establish any other Keogh Plan for five (5) years, and would lose tax benefits of the Keogh Plan. The defendants filed exceptions of prematurity. La.C.Civ.Pr. art. 926. The exceptions were based on two grounds: (1) the plaintiff had failed to exhaust his administrative remedies; and (2) that plaintiff had not yet suffered any adverse tax consequences from the defendants’ alleged actions.

I. ADMINISTRATIVE REMEDIES

In brief to this Court, the plaintiff argues that the trial court was in error in granting the exception on the ground that defendants failed to sustain their burden of proof because they did not present any evidence of plaintiff’s exhausting his administrative remedies. The plaintiff is correct in his assertion that the exceptor usually has the burden of proof. La.C.Civ.Pr. art. 930; e.g., Morrision v. H.P. Mitchell Constr. Co., 369 So.2d 1102 (La.App. 1st Cir.1979). When an exception of prematurity is brought on the ground that the plaintiff has failed to exhaust his administrative remedies, once the existence of an administrative remedy is proven by the exceptor, the burden shifts to the party opposing the motion to show that he has exhausted these administrative remedies. Steeg v. Lawyers Title Ins. Corp., 329 So.2d 719 (La.1976).

In the instant case, the defendants presented evidence of what the trial court found to be an administrative remedy: a letter ruling from the IRS. A letter ruling from the IRS is a written answer to an inquiry made by a taxpayer. This answer interprets the tax laws as they would be applied to a specific act or transaction. 26 C.F.R. 601-201(a)(l) (1981); see also Rev. Proc. 80-20 Section 4.01 et seq. Defendants contend that this letter ruling is an administrative remedy, and plaintiff must first obtain such a ruling in order to exhaust his administrative remedies.

In order to require a petitioner to first exhaust his administrative remedies, the remedies must be adequate. The burden of proof in showing the inadequacy of such a remedy is on the plaintiff. Steeg v. Lawyers Title Ins. Co., supra, at 720. See also Dow Chemical, USA v. Consumer Products Safety Comm’n. 459 F.Supp. 378 (E.D.La.1978).

In this case, we find that the plaintiff has carried the burden of proof in showing that a letter ruling from the IRS is an inadequate remedy. A letter ruling does not carry with it the finality that should be required by an administrative remedy. A letter ruling applies only to a specific set of facts, and is not final if these facts are subsequently proved to be erroneous. Furthermore, there are four other instances in which a letter ruling can be revoked. See 26 C.F.R. eOl^Oia)©.

It is clear, therefore, that a letter ruling would not provide plaintiff with an administrative remedy as is comtemplated by the Civil Code.

Defendants also contend that plaintiff should have sought a declaratory judgment in the United States Tax Court as provided by Internal Revenue Code Sections 7476(a). We know of no law that requires a plaintiff to seek a declaratory judgment as a pre-condition to filing a suit for damages.

We find that a letter ruling obtained from the IRS is not an adequate administrative remedy and, therefore, the plaintiff was not required to seek such a ruling prior to bringing the action at issue here.

II. MATURITY OF SUIT

Defendants’ second argument is that appellant’s claim had not matured because he had not sustained any tax liability for the alleged premature distribution.

The plaintiff alleges that he may have sustained three different types of tax damage: (1) tax he would have to pay in the year of premature distribution; (2) tax paid on the income earned by the Plan prior to retirement; and (3) the loss of the deduction each tax year for the contributions to the Plan.

The defendants argue that there has been no final determination of the tax consequences of the alleged premature distribution. They claim that a final determination may occur in the close of the tax year, but that this in itself is not final because the return may be amended up until three years from the date it was filed. Although the defendants argue that the amount of taxes that the plaintiff will possibly have to pay is highly speculative, the plaintiff nevertheless has alleged that a tortious incident did occur. Whether he is able to prove damages in the trial court is a matter to be determined at that time. We cannot consider the type and the sufficiency of the evidence that might be presented by the plaintiff below. Whether the nature of the evidence is “highly speculative” is irrelevant at this time. An incident has occurred which, if the allegations in the plaintiff’s petition are accepted as true, may have injured the plaintiff. His burden is now to prove damages.

We are unable at this time to find that the action was premature. The defendants have shown us no reason to dismiss this case on the ground of prematurity.

For the foregoing reasons, the decision of the trial court is REVERSED, all costs to appellees.

REVERSED.

      . Revocation may occur if: (1) there has been a misstatement of omission of material facts; (2) the facts subsequently developed are materially different from the facts upon which the ruling was based; (3) the applicable law has changed; [4] the ruling was issued with respect to a prospective transaction; and (5) the taxpayer did not act in good faith in relying upon the ruling.


author: GULOTTA, Judge.

text:
    STATE of Louisiana, v. John J. PAQUETTE.
    No. K-0277.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 1982.

      Harry F. Connick, Dist. Atty., Frances M. Phares, Asst. Dist. Atty., New Orleans, for relator.
    Cheryl B. Horton, Raleigh L. Ohlmeyer, Jr., Craig Colwart, New Orleans, for respondent.
    Before REDMANN, GULOTTA and KLEES, JJ.
   GULOTTA, Judge.

In this writ application, relator seeks to set aside the trial judge’s order granting defendant’s motion to suppress.

In a search of defendant’s residence pursuant to a warrant, contraband was seized and defendant was charged with possession with intent to distribute marijuana and possession with intent to distribute methaqua-lone. The application for the search warrant contained information supplied by a confidential informant and police surveillance of defendant’s residence.

The defendant subsequently filed a motion to suppress the evidence obtained in the search on the grounds that the search was made in the absence of probable cause and consent, and that the objects seized were not in plain view.

To protect persons against unreasonable searches and seizures, no search warrant shall issue without probable cause supported by oath or affirmation. LSA-Const. Art. 1, § 5. Probable cause must be demonstrated to the issuing magistrate by the affidavit of a credible person “reciting facts establishing the cause for issuance of the warrant.” LSA-C.Cr.P. Art. 162.

In the instant case, the trial judge granted the motion to suppress after reasoning that the requirements of an affidavit for a search warrant set forth in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) were not satisfied. The Aguilar requirements are that the magistrate be informed of some of the underlying circumstances on which the informant based his conclusion, and of some of the underlying circumstances from which the officer concluded the informant was “credible” and the information “reliable”.

The Louisiana Supreme Court in State v. Paciera, 290 So.2d 681, 685 (La.1974) required an affidavit based on hearsay to “set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him.” See also State v. Mosley, 412 So.2d 527 (La.1982), where reference is made to the “basis of knowledge” and “veracity” tests.

The trial judge in our case held that Aguilar’s requirements were not satisfied because the affidavit sets forth “no time limit” when the information had led to other arrests and convictions; sets forth no underlying facts to show the reliability of the informant; and indicates the police officers had been unable, during surveillance, to observe directly the entrance to defendant’s apartment and could not ascertain that the suspicious activities (regarding persons coming and leaving the building) actually came from his apartment.

We share the trial court’s concern as expressed in his oral observations. Nonetheless, the affidavit in our case states the informant purchased methaqualone at defendant’s residence within the preceding three days, and knew defendant had a large quantity of methaqualone which sold for $2.00 per unit. This statement provides the underlying circumstances from which the informant concluded drugs were located at defendant’s residence. See State v. Mosley, supra.

The assertion of a purchase, in addition to the statements in the affidavit — 1) that the informant knew the defendant had a large quantity of methaqualone, and was selling the drugs, 2) that the informant had supplied reliable information to the officers in the past, and 3) that the informant believed the defendant had been charged with distribution of cocaine (which proved to be accurate) — supports the reliability of the information. See State v. Gilbert, 354 So.2d 508 (La.1978); State v. Stephenson, 387 So.2d 1111 (La.1980).

Under these circumstances, we conclude the affidavit met the Aguilar requirements and established probable cause. Accordingly, the trial court’s order granting the motion to suppress is rescinded and set aside. The matter is remanded to the trial court for further proceedings.

ORDER GRANTING MOTION TO SUPPRESS RESCINDED AND SET ASIDE. REMANDED.


author: SUGG, Presiding Justice, DAN M. LEE, Justice, BROOM, Justice,

text:
    Dennis McQUEEN, Sr. v. STATE of Mississippi.
    No. 53142.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Cook, Tucker & Sharp, James G. Tucker, III, Bay St. Louis, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Presiding Justice,

for the Court:

ON PETITION FOR REHEARING

Appellant’s conviction of forcible rape was affirmed by a panel of three justices. However, on petition for rehearing a majority of the justices have concluded that the evidence was not sufficient to prove appellant forcibly raped the prosecutrix. Accordingly, the original opinion is withdrawn and this opinion is substituted therefor.

Appellant has assigned seven errors, but because we are reversing on the sufficiency of the evidence, we do not address the remaining assignments of error.

The prosecutrix was a fourteen year old unmarried female and was visiting her sister, Elizabeth McQueen, who had recently moved to Picayune. Elizabeth McQueen and appellant were husband and wife but had recently separated in New Orleans. On the date in question appellant brought some furniture from New Orleans to Picayune, and after he unloaded the furniture asked if he could take the baby for a ride. The baby was the two year old child of the appellant and Elizabeth McQueen. Elizabeth McQueen did not want the baby to accompany appellant alone so she requested that prosecutrix accompany them. Appellant, the prosecutrix and the baby left in appellant’s pickup, and Mrs. McQueen testified that when they returned the prosecutrix was acting strange, started to cry, and was shaking. She stated that appellant stayed only about fifteen or twenty minutes and after he left the prosecutrix told her that appellant made her have sex with him. The prosecutrix was called as a witness and was asked to tell what happened while they were absent from the house. The prosecu-trix testified as follows:

Okay, Dennis McQueen had come over Wednesday, and he was there for a little while, and he said he had to go to the store, and he asked if the baby could go with him, and the baby started crying, so Elizabeth asked me if I would go to keep an eye on the baby. So I went, and we went to Bill’s Store, and we got some coke, and we was leaving from the store, and he said he was lost, and he brought me back on this road, and he said he had to use the bathroom, and he turned the truck around, and he turned off the lights, and I locked my side of the door, and he come around on my side and told me to get out, so I did. He told me to take off my clothes, but leave one leg on, and I was scared, and I told him that I wanted to go home. So he told me to go around on the other side and lay on the driver’s seat side and lay half way. So I did, and he told me to put my legs up on his shoulders and I did, and I was crying, and he made the baby sit on the other side of the truck, on the passenger’s side, and he told me that he wasn’t going to hurt me, and it wasn’t going to take long, and while we was doing it and that, he told that, I’ve got news for you, it’s in, and I started crying and I told him that I wouldn’t — that I didn’t want to get pregnant, and he told me that he wasn’t going to come inside me, and so after he was finished, he told me, he says not to say anything to Tootie that he would do all the talking. When we got home, Tootie was on the — Elizabeth was on the porch, and she asked what took us so long, and he said that the baby wanted to go riding around. So we went and sat inside of the house, and I was crying and trying to tell Tootie — Elizabeth what happened, and he was sitting there nervous and that, and the baby had said, Janie — well, at the last part, he said, “Janie was playing with daddy’s worm,” and then he tried to change the subject, and after that he left, and then after that, I told my sister what happened, and she went — we went to the Police Station and gave my statement and that, and then we went to the hospital, and then we went back to the Police Station, and then we went — I went and showed the Police Officer the road where Dennis McQueen had took me.

On direct examination the prosecutrix stated that the door on the driver’s side of the pickup was open. She said that the appellant asked her to open the door on the passenger’s side to which she responded, “No.” When he asked her: a second time she opened the door. She stated his tone of voice was “very heavy like.” She was then asked “Did he say that he was going to do anything to you?” The witness responded “No, sir.” She then related that after she got out of the pickup appellant told her to go around on the other side and take her underclothes and shorts off and leave one leg on. She also testified that the baby was talking and moving around in the truck while the incident occurred. On cross-examination she testified that she was scared of appellant and when asked why, answered, “I was just scared of him because he was drinking and that, and I was scared he was going to hurt me.”

On direct examination the prosecutrix stated that she told the appellant that she was afraid she was going to get pregnant. The following questions and answers then occurred:

Q. Who had told you that?
A. My mother.
Q. So what were your exact words? What did you tell him at that time?
A. I told him I didn’t want to get pregnant, and I was scared.
Q. And what did he say?
A. And he said it wouldn’t hurt, and it would only take a little while, and he would not get me pregnant.
Q. And then what happened?
A. Then he put his penis in, and I was crying and telling him that it hurt, and that I wanted to go home, and he wouldn’t let me get up.
Q. Did you know where the baby was at this time?
A. The baby was on the passenger’s side of the truck.

The witness was asked on cross-examination to describe what she meant by force and her answer was as follows: “Well, the tone of his voice and that, for first of all. Okay, second of all, by not letting me get up when I wanted to, when I wanted to stop and just by making me do something that went against my will.”

On redirect examination the prosecutrix was asked what the appellant said to make her take her clothes off and her answer was, “All he said was, take your clothes off,” and I did. She was then asked if she knew what he wanted to do at that time and she replied that when he told her to take her clothes off, “Well, I knew what he had in mind to do.”

The prosecutrix was examined by a doctor shortly after the incident complained of. The doctor testified that the prosecutrix said no force was used and he could not determine if there had been penetration. The only evidence of trauma was a reddening of the vulva which the doctor said could have been caused by manipulation of the genitals by oneself or by another individual, tight fitting clothes, or wearing Kotex.

Appellant testified that he, the prosecu-trix, and his young son went to a store where he purchased a root beer, a coke and two bottles of Miller beer. He stated that they drove back to the house and were gone approximately twenty to twenty-five minutes. He denied that he stopped the truck between the store and the house and denied that he had sex relations with the prosecu-trix. He stated that the prosecutrix wanted to drive the truck but he refused because it was a company truck. He stated that the prosecutrix grabbed “his private, and she was trying to entice me to let her drive the truck.” He stated the prosecutrix got angry because he would not let her drive the truck and did not say another word on the ride back to the house. He said when he arrived at the house he played with his son, drank one of the beers and then left to return to New Orleans.

Appellant was indicted for forcible rape in violation of section 97-3-65(2) Mississippi Code Annotated (Supp.1979). Appellant’s principal argument is that there was no evidence that any force was used, no weapon was exhibited, no physical struggle ensued, and no threats were made by appellant. He also argues there was no evidence that prosecutrix yielded without a reasonable apprehension of great bodily harm being done to her.

In Rush v. State, 301 So.2d 297 (Miss.1974), we stated:

We have held in numerous cases that physical resistance is not required where the female yielded through fear under a reasonable apprehension of great bodily harm. Fields v. State, 293 So.2d 430 (Miss.1974); Johnson v. State, 223 Miss. 56, 76 So.2d 841 (1955). If the female fails to resist the attack of her assailant because she is put in such apprehension and fear, the act of the assailant may be rape under the law. Fields, supra; McGee v. State, 40 So.2d 160 (Miss.1949), cert. denied, 338 U.S. 805, 70 S.Ct. 77, 94 L.Ed. 1369 (1950); Milton v. State, 142 Miss. 364, 107 So. 423 (1926).
In the cases cited, there were verbal threats and the exhibition of a knife or gun. In the instant case, the appellant did not make any verbal threats or utterances of any kind nor did he exhibit a deadly weapon. However, the testimony is undisputed that appellant grabbed the victim by the throat, dragged her into the adjoining room and forced her to the floor placing the weight of his body upon her. The extent of the force .and pres- • sure upon her throat is reflected in the prosecutrix’s testimony that: “I couldn’t breathe and I was gagging and it kinda made me groggy.”
In describing the fear that she experienced at the time, the prosecutrix said:
I couldn’t do anything. I was so scared. It was just like I was frozen. I couldn’t raise my arms or anything. I was just like I was paralyzed. I couldn’t move.
Well, he was — it was like a dead weight on top of me and then all I could think of I didn’t want to get him angry. I was scared he might hurt my baby or me, to make me cooperate, and I just wanted him just to go away and leave us alone. (301 So.2d at 299)

In the case before the Court the testimony for the state establishes that appellant is 28 years of age, he had been drinking beer, he stopped at a secluded spot at night, appellant stated he was lost, removed the ignition key thus immobilizing the truck, made his desire known to the prosecutrix who had locked the door on her side of the car, and in a “heavy” tone of voice, commanded her to remove her clothing and lie down on the seat after which appellant had sexual intercourse with her.

The evidence for the state not only fails to satisfy the mind of the guilt of the accused but suggests grave doubt of it. No bruises or marks of violence were evident except reddening of the vulva. No weapon was exhibited and the evidence falls far short of showing that the prosecutrix submitted because of a reasonable apprehension that she would suffer injury if she refused. Appellant did not threaten to injure prosecutrix, did not forcibly remove her from the truck, did not remove her clothes, and did not forcibly make her lie down in the truck. The evidence presented on behalf of the state is legally insufficient to support a conviction for the crime of forcible rape.

The United States Supreme Court in Burks v. State, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) held that cases reversed by a reviewing court because the evidence is legally insufficient to support conviction bars a retrial under the double jeopardy clause of the Fifth Amendment to the United States Constitution. In Tibbs v. Florida, - U.S. -, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) the Court held that a reversal by an appellate court on the ground that the verdict of the jury was against the weight of the evidence did not preclude a retrial of the defendant. Tibbs clearly distinguished between cases reversed because the evidence was legally insufficient to support a conviction and cases reversed because the verdict was against the weight of the evidence. The Court stated:

Burks v. United States and Greene v. Massey carved a narrow exception from the understanding that a defendant who successfully appeals a conviction is subject to retrial. In those cases, we held that the Double Jeopardy Clause precludes retrial “once the reviewing court has found the evidence legally insufficient” to support conviction. Burks, supra, [437 U.S.] at 18 [98 S.Ct. at 2150]; Greene, supra [437 U.S.] at 24 [98 S.Ct. at 2154]. This standard, we explained, “means that the government’s case was so lacking that it should not have even been submitted to the jury.” Burks, supra [437 U.S.] at 16 [98 S.Ct. at 2149] (emphasis original). A conviction will survive review, we suggested, whenever “the evidence and inferences therefrom most favorable to the prosecution would warrant the jury’s finding the defendant guilty beyond a reasonable doubt.” Ibid. See also Greene, supra [437 U.S.] at 25 [98 S.Ct. at 2154]. In sum, we noted that the rule barring retrial would be “confined to cases where the prosecution’s failure is clear.” Burks, supra [437 U.S.] at 17 [98 S.Ct. at 2150].
As we suggested last Term, these policies do not have the same force when a judge disagrees with a jury’s resolution of conflicting evicence and concludes that a guilty verdict is against the weight of the evidence. See Hudson v. Louisiana, 450 U.S. 40, 44-45 n. 5 [101 S.Ct. 970, 972-973 n. 5, 67 L.Ed.2d 30] (1981). A reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a “thirteenth juror” and disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause. Similarly, an appellate court’s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded verdicts of acquittal.
A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment. An appellate court’s decision to give the defendant his second chance does not create “an unacceptably high risk that the Government, with its superior resources, [will] wear down [the] defendant” and obtain conviction solely through its persistence. United States v. DiFran-cesco, supra, [449 U.S. 117] at 130 [101 S.Ct. 426 at 433, 66 L.Ed.2d 328].
While an appellate ruling based on the weight of the evidence thus fails to implicate the policies supporting Burks and Greene, it does involve the usual principles permitting retrial after a defendant’s successful appeal. Just as the Double Jeopardy Clause does not require society to pay the high price of freeing every defendant whose first trial was tainted by prosecutorial error, it should not exact the price of immunity for every defendant who persuades an appellate panel to overturn an error-free conviction and give him a second chance at acquittal. Giving the defendant this second opportunity, when the evidence is sufficient to support the first verdict, hardly amounts to “governmental oppression- of the sort against which the Double Jeopardy Clause was intended to protect.” United States v. Scott, 437 U.S. 82, 91 [98 S.Ct. 2187, 2193, 57 L.Ed.2d 65] (1978).
Petitioner Tibbs resists these arguments on the grounds that a distinction between the weight and the sufficiency of the evidence is unworkable and that such a distinction will undermine the Burks rule by encouraging appellate judges to base reversals on the weight, rather than the sufficiency, of the evidence. We find these arguments unpersuasive for two reasons. First, trial and appellate judges commonly distinguish between the weight and the sufficiency of the evidence. We have no reason to believe that today’s decision will erode the demonstrated ability of judges to distinguish legally insufficient evidence from evidence that rationally supports a verdict.
Second, our decision in Jackson v. Virginia, 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] (1979), places some restraints on the power of appellate courts to mask reversals based on legally insufficient evidence as reversals grounded on the weight of the evidence. We held in Jackson that the Due Process Clause forbids any conviction based on evidence insufficient to persuade a rational factfinder of guilt beyond a reasonable doubt. The Due Process Clause, in other words, sets a lower limit on an appellate court’s definition of evidentiary sufficiency. This limit, together with our belief that state appellate judges faithfully honor their obligations to enforce applicable state and federal laws, persuades us that today’s ruling will not undermind Burks. In sum, we conclude that the Double Jeopardy Clause does not prevent an appellate court from granting a convicted defendant an opportunity to seek acquittal through a new trial. (- U.S. at -, 102 S.Ct. at 2217-19, 20; 72 L.Ed.2d at 660-63)

We base the reversal on the fact that the evidence in this case was legally insufficient to support a conviction and not on the weight of the evidence. Therefore, we reverse and discharge appellant under the authority of Burks and Greene, supra.

REVERSED AND APPELLANT DISCHARGED.

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

DAN M. LEE, J., concurs in part and dissents in part.

BROOM, HAWKINS and ROY NOBLE LEE, JJ., dissent.

DAN M. LEE, Justice,

concurring in part and dissenting in part:

I agree with the majority that this case should be reversed because the state’s proof was legally insufficient to support a conviction for the crime of forcible rape. I also agree that the case should be reversed because the trial judge erred in refusing to permit the pretrial inspection by defense counsel of written statements given by the prosecutrix to the investigating officers, and to cross-examine her with regard to those statements. However, I would not reverse and discharge appellant for the following reasons.

Although the evidence was insufficient to sustain a conviction for forcible rape and therefore appellant’s retrial on that charge is barred by the double jeopardy clause pursuant to Burks v. State, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), appellant might still be indicted and tried for the crime of statutory rape.

Force is not an element of the crime of statutory rape, the gist of the offense being the prosecutrix’s inability to consent to the act. Brooks v. State, 242 So.2d 865 (Miss. 1971). The prosecutrix in the present case was fourteen years of age. The absence of force in the act itself would not preclude a conviction of statutory rape. I would reverse appellant’s conviction for forcible rape, which would not preclude presentation of the matter to a grand jury on a charge of statutory rape.

BROOM, Justice,

dissenting:

Insufficiency of evidence is the main ground upon which the majority, upon petition for a rehearing, is now going to reverse a criminal conviction based upon a unanimous jury verdict. The majority opinion by Presiding Justice Sugg states that previously a “panel of three justices affirmed” the conviction. Because of my great respect for the opinions of my colleagues, I am reluctant to disagree with them. With much deference, my dissent is proper here because sufficient evidence was introduced to make out a jury issue on the indictment.

In making a logical analysis of this case, we must start out with the proposition that, in passing upon the sufficiency of the evidence, the lower court (and this Court) is required to accept as true all of the evidence that is favorable to the state, including reasonable inferences which may be drawn from such evidence, and to disregard evidence favorable to the defendant. If the evidence, judged in this manner, was sufficient to convince a rational factfinder of the defendant’s guilt beyond a reasonable doubt, the trial judge correctly ruled that the proof of guilt was adequate. Bullock v. State, 391 So.2d 601 (Miss.1980); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 1781, 61 L.Ed.2d 560 (1979).

As Justice Bowling recently stated in Griffin v. State, 381 So.2d 155 (Miss.1980), a rape case: “We do not sit as jurors. That fact-finding body, while being overseen by the trial court, has the constitutional duty to decide which witnesses are relating an accurate account of the occurrences giving rise to the trial.” Id. at 157.

Mindful of the foregoing, the evidence before us is subject to analysis. The prose-cutrix testified without equivocation that the appellant “put his penis in me” and that she knew so — “it hurt.” When she arrived back home and reported the incident to Mrs. McQueen, according to Mrs. McQueen’s testimony, the prosecutrix “was really acting strange . .. she started to cry, and she was shaking ... she was really upset.” Promptly the prosecutrix then reported the matter to the police. We must further discern from the testimony whether the sexual intercourse occurred “against the will” of the victim or “without [her] consent”, which is an element of common law rape and has been stated by us to be an element under § 97-3-65(2). Wilson v. State, 221 So.2d 100 (Miss.1969).

Positive testimony of the prosecutrix was that she did not voluntarily engage in sexual intercourse with appellant, but that she was “forced” to do it. Clearly a forcible rape conviction can be upheld absent literal physical resistance where (as here) resistance would be futile or where the victim is overcome by superior strength or fear arising out of a reasonable apprehension of great bodily harm. Rush v. State, 301 So.2d 297 (Miss.1974); Rusk v. State, 289 Md. 230, 424 A.2d 720 (1981) and Tryon v. State, 567 P.2d 290 (Wyo.1977).

Otis v. State, 418 So.2d 65 (Miss.1982) decided by this Court 1982, but not yet reported, is a recent rape case wherein this Court, without dissent, held that weaker evidence than that in the instant case was sufficient to support a forcible rape conviction. There a fifteen-year-old student who had “an IQ of 77 or 78 and the mentality of about an 11-year old” testified that her special education teacher forcibly raped her in the teacher’s restroom while they were both in a standing posture. No weapon was involved. No serious threat was expressed by the teacher. There the prosecutrix made no report of the incident until five (5) weeks later, and then only in response to questioning by the school principal. There we held the evidence sufficient but now the majority says not so, even though in the present case the prosecutrix went home crying, promptly went to the police (nervous and upset) and the doctor. Subsequently she testified that her intercourse with McQueen was submitted to out of fear, that he forced her, and hurt her against her will. Otis cannot be reconciled to the majority decision in the instant case.

My view is that the jury in this case could have reasonably concluded that McQueen’s actions and conduct’ were reasonably intended by him to induce fear of serious bodily harm in the mind of prosecutrix if she did not submit to him. Pretending to be lost, he drove to a remote area where there were no other people, no lights, and the nearest house was blocks away. He immobilized the truck by removing the ignition key and immediately made his intentions known by partially removing his pants and underwear. When the prosecutrix locked the door on her side of the truck, McQueen demanded in a heavy tone of voice that she open it. He then demanded that she remove her clothes, lie down on the seat, place her legs over his shoulders, and in that context he had sexual intercourse with her.

With the foregoing testimony before it, the jury reasonably could have concluded that the prosecutrix was placed in reasonable fear of bodily harm by defendant McQueen’s actions and conduct. He was a 28-year-old male and she was xh his age. She knew that he had been drinking. Further she was afraid of him because of the following: his tone of voice, his actions, and because of what he had done in the past. Her testimony given the jury was that she “knew what he had in mind to do” when he told her to remove her clothes. She was in a remote area where there were no people to hear her screams for help; she was afraid that he would hurt her; and, although she did cry, it was to no avail.

After long and careful study, I have concluded that we should not require the victim of forcible rape to do more than her age, strength, surrounding facts and all attending circumstances made it reasonable for her to do in order to manifest opposition or lack of consent. The jury could have reasonably found that under the circumstances with which she was confronted it was reasonable that she, a thirteen-year-old child, would be terrified of the older (double her age) and obviously physically superior male, and that his threatening conduct and actions in her mind were as real as if he had actually threatened to kill her with a deadly weapon. Therefore, as the jury found, she was justified in failing to jeopardize her life and safety by physically resisting. It is lamentable but true that too many times cases have come before this Court showing that where a rape victim kicked, screamed, and physically fought to the bitter end — she became victim of a homicide following a rape. I am simply unwilling to hold that a young girl, faced with the circumstances which confronted the prosecutrix in this case, was required to actually and literally physically resist in order for the rape conviction to be upheld. Obviously and beyond question such resistance would have been without success and very well may have-resulted in some worse disastér.

The Court, including my two brethren who with this writer sat on the original panel, is making a flip-flop on a fact issue which was fully developed at oral argument, the original opinion, and in the original briefs. Not only that, the defendant is being discharged. I am unable to recall a prior case in which a criminal conviction was affirmed by this Court without a dissent, and then (on petition for rehearing) upon a fact issue reversed and rendered.

Unable to agree with the majority decision, I register this dissent.

ROY NOBLE LEE and HAWKINS, JJ., join in this dissent.

HAWKINS, Justice, joining in Justice BROOM’S dissent:

As judges we search for human reality. We must always be finely attuned so as to perceive it, regardless of the infinite variety or myriad forms by which it might display itself before us. Any experienced judge or trial lawyer will quickly attest that truth can come in many subtle forms and shapes.

In my view, Justice Broom has recognized the reality of fear and terror in a child’s mind which can reasonably and rationally transpire when accosted by a grown man in a strange, dark, secluded and lonely place, a fright fortified by the knowledge of the man’s character and the fact that he was drinking.

Do we as an appellate court have the right to require more resistance from a victim, or more threat of violence from the accused than was shown in this case?

Must the victim be mangled, or see a deadly weapon, or have to hear actual utterance of specifically threatening words before we can authorize a jury to discern rational fear of violence? If we make these criteria absolutes, we ignore reality.

I believe there was sufficient evidence to support the jury verdict.

I do think this case should be reversed and remanded, but for an entirely different reason. In my view, the trial judge erred in refusing to permit the pretrial inspection by defense counsel of written statements given by the prosecutrix to the investigating officers, and to cross-examine her with regard to those statements.

I would not reverse and render this case on the insufficiency of the evidence, but would reverse and remand for another trial on this one error of refusal to grant pretrial inspection.

      . Miss.Code Ann. § 97-3-65(1) (Supp.1979).

      . Actually the opinion had the concurrence of the entire Court, except that Dan Lee, J., did not participate. The case originally was orally argued before the writer of this dissent, sitting with Sugg, P.J., and Bowling, J.

      . Otis was reversed on other grounds.


text:
    Mrs. Jacquelyn Clark WHITE, et al v. HUTCHINSON MANUFACTURING, INC., et al.
    No. 53467.
    Supreme Court of Mississippi.
    Dec. 1, 1982.
    Rehearing Denied Jan. 12, 1983.
    R.L. Netterville, Natchez, for appellant.
    Handy, Fitzpatrick, Gwin, Blough & Lewis, Lucien C. Gwin, Jr., W. Bruce Lewis, Adams, Forman, Truly, Ward, Smith & Bramlette, David C. Bramlette, Natchez, for appellee.
   Appeal from Circuit Court, Wilkinson County; Edwin E. Benoist, Jr., Judge.

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

REVERSED AND REMANDED.

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