author: WARD, Judge.

text:
    Lori Jean ALPHONSO v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS, et al.
    No. 12901.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 1982.
    Writ Denied June 11,1982.

      Robert D. Bjork, Jr., New Orleans, for defendants-appellees.

      Harry A. Burglass, Metairie, for plaintiff-appellant.
    Before SCHOTT, WARD and KLEES, JJ.
   WARD, Judge.

Lori Jean Alphonso was the victim of two rapes while she was a mental patient confined in the psychiatric ward of Charity Hospital, an agency of the State of Louisiana. She filed suit in the Civil District Court, claiming that Charity Hospital personnel were negligent in caring for her, and she has asked for damages for her injuries. The case was tried before the District Judge. His verdict was that Charity Hospital personnel were negligent in their care, and because of their negligence, Miss Alphonso was raped, and the State is liable for $50,000.00 damages for her injuries.

Although the State did not appeal, Miss Alphonso has, and the State has answered. Miss Alphonso contends the award is grossly inadequate to compensate for her physical injuries with the attendant pain and suffering, her emotional injuries, and for the medical expenses, past and future, directly related to those rapes. The State contends that the Trial Judge’s award is fair and adequate, that it should not be disturbed because it was made after lengthy and thoughtful consideration, and that certainly the trial judge did not abuse his great discretion in determining the question of damages. Since the State did not appeal the trial court judgment that it is liable for damages, the only issue in this appeal is whether the Trial Judge’s award of $50,000.00 is adequate. Although liability is not now questioned, we believe a brief review of Miss Alphonso’s medical history and the facts proven at trial is essential to understand the nature and extent of Miss Alphonso’s injuries and to answer the question of whether the award is adequate.

Before the rapes, Miss Alphonso had a history of mental illness which had been diagnosed as chronic paranoid schizophrenia, and treatment before this incident had consisted of hospital care and various psychotropic drugs. In April 1978, when she was eighteen, Miss Alphonso was committed to Charity Hospital by her parents after she suffered a severe psychotic episode. During her short stay there, Miss Alphonso was raped twice by a mental patient who was also confined to the psychiatric ward of Charity Hospital. The rapes occurred shortly after Miss Alphonso was admitted to the ward. The first occurred in the bathroom adjacent to her bedroom while she was heavily sedated; the second rape occurred the next afternoon in her bedroom while Miss Alphonso was fully awake. Because she was delusional and heavily sedated, Miss Alphonso’s resistance to the first rape was minimal; however, she violently resisted the second rape, and her muffled screams were heard by hospital personnel, who caught the rapist in the act.

Miss Alphonso was taken out of Charity by her parents and was immediately admitted to Southern Baptist Hospital; later she was released and admitted to Touro Infirmary. After weeks of confinement, she was brought home, where she stayed with her mother and father. In May 1979, after returning home, Miss Alphonso discovered a love letter which had been written to her by the rapist, a deranged sexual deviant, and which expressed his intention to ravish her. Miss Alphonso’s whereabouts had been discovered by the rapist through the negligence of Charity Hospital personnel. Because of the letter, Miss Alphonso became psychotic and irrationally believed she could protect herself through self-mutilation. In an attempt to save herself from any future rape attack, Miss Alphonso slashed most of her body — neck, chest, legs and abdomen— with a razor, to prevent the rapist from recognizing her and to make herself sexually unattractive to the rapist if she were recognized. She was immediately taken from her home and brought to Ochsner Foundation Hospital for treatment of her extensive wounds and her psychosis.

Miss Alphonso was released from Ochsner after two weeks, but the pattern of brief admittance to various mental institutions continued after the rape to the time of trial. While waiting for the trial, Miss Alphonso was confined in Coliseum House, and there Dr. Anastasio, a psychiatrist, assumed responsibility for her medical care. After psychiatric and psychological evaluations, he concluded that Miss Alphonso was still seriously troubled by the rapes. After a brief stay for evaluation and treatment, she was released from Coliseum House. Unfortunately, stress in anticipation of the trial caused her condition to deteriorate, and she was confined a second time at Coliseum House for two weeks. After she was released, the case was brought to trial without a jury, since the State was a party defendant, and the complex issue of a proper award for damages was presented to the trial judge.

In deciding the issue of damages, several questions must be answered: (1) were physical injuries — the self-mutilation — proven by a preponderance of the evidence to have resulted from the rape, and were they erroneously omitted from the judgment awarding damages?; (2) were the damages awarded ($50,000.00) for emotional injuries — post-traumatic stress disorder and rape-trauma — sufficient compensation for the particular injuries to this particular plaintiff?; (3) were medical expenses, past and future, proven by a preponderance of the evidence to have resulted from the rapes?

Before answering these questions, we believe we should state our understanding of the role of appellate courts in reviewing a trial court’s award of damages. The Louisiana Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), stated:

We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.

And in Reck v. Stevens, 373 So.2d 498 (La.1979):

Thus, the initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon the particular injured person is a clear abuse of the trier of fact’s “much discretion” ... in the award of damages. It is only after an articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reasons, be considered either excessive ... or insufficient . . .
However, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. . . .

Where error of a factual determination by the trial judge is alleged, however, a different standard is applicable. The Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), stated that there must be

... a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).

So when a trial judge has considered a particular element of damages, the award for those damages should not be changed unless the record shows that the trial judge abused his great discretion. When, however, as here, it is argued that the trial judge has overlooked injuries clearly proven by a preponderance of the evidence, the issue is not whether this is an abuse of discretion; the issue is whether the record indicates the judgment is manifestly erroneous (clearly wrong). And if compensable injuries (when proven by a preponderance of the evidence and supported by the record) are not included in the judgment, it is the function and duty of the appellate courts to amend the judgment to include reasonable compensation for the manifestly erroneous omission of damages.

PHYSICAL INJURIES

We, therefore, consider the first question: were physical injuries—the self-mutilation—proven by a preponderance of the evidence to have resulted from the rapes, and were they erroneously omitted from the judgment awarding damages? The trial court’s judgment awarded $50,-000.00 for “the enormous emotional damage inflicted by rape”; but the judgment omitted compensation for Miss Alphonso’s physical injuries, although the trial judge had found they were “most probably a response to the incident.” He undoubtedly relied upon the expert testimony of Dr. Roger Anastasio, who testified that these injuries were “a direct response to the letter.” We believe Miss Alphonso is entitled to compensation for those physical injuries. The testimony of the witnesses and the very nature of the act, illogical but nevertheless understandable, convince us, as they did the trial court, that these self-inflicted wounds were proven by a preponderance of the evidence to have been caused by the rapes and the threatening letter she received from the rapist. Because we believe the Trial Judge erroneously omitted from his judgment an award of damages for these physical injuries, we find the judgment to be manifestly erroneous (clearly wrong) and amend the judgment to award damages for the multiple lacerations, pain and suffering, and temporary disfigurement.

In determining a proper award for these injuries, we considered the testimony and the Ochsner medical reports. The medical records indicate that although the wounds were superficial, they were serious in view of their number, and because of these wounds Miss Alphonso remained in Ochsner for two weeks. In evaluating the injuries and assessing damage, we compared damages awarded for similar injuries. In Miller v. Thomas, 246 So.2d 16 (La.1971), this court had reduced a district court award of $60,000.00 to $25,000.00 for facial lacerations and permanent scarring of a young female. The Supreme Court reversed and reinstated the $60,000.00 judgment. After comparing the injuries in that case with this case, we find $25,000.00 to be reasonable compensation for Miss Alphonso’s physical injuries: multiple lacerations, temporary disfigurement, and the attendant pain and suffering, and we amend the judgment to include this amount as damages.

EMOTIONAL DAMAGE

We now consider the second question on the issue of damages: were the damages awarded ($50,000.00) sufficient compensation for the emotional injuries of post-traumatic stress disorder and rape trauma syndrome? Post-traumatic stress disorder has familiar symptoms: feelings of anxiety which result from an event that would create significant symptoms of stress in most people; feelings of re-experiencing the trauma; intrusive recollections of the event; and avoidance of activities or people which arouse these recollections. Miss Alphonso manifested all of these symptoms. Post-traumatic stress disorder injuries (formerly called traumatic neurosis) have been recognized as deserving compensation when proven to exist. In Humphries v. Delta Fire & Casualty Co., 116 So.2d 130 (La.App. 1st Cir. 1959), where the court awarded $12,000.00 for a traumatic neurosis from an automobile accident, the twenty-year-old case notes that even then the term was out of favor, but recognized the award as one for “pain, suffering, and other effects resulting from a neurosis precipitated or caused to become manifest by a tort ...” And a more recent case, LaLonde v. Weaver, 360 So.2d 542 (La.App. 4th Cir. 1978), awarded $45,000.00 for traumatic neurosis caused by an automobile accident, finding that the plaintiff was “withdrawn and suffering from a sense of general loss and hopelessness.” In addition, Miss Alphonso manifests rape-trauma syndrome symptoms: shame, guilt, anger, rejection, and concern for her sexuality. These symptoms of post-traumatic stress disorder and rape-trauma syndrome are distinct from the symptoms of schizophrenia.

The testimony convinces us, as it did the Trial Judge, that Miss Alphonso suffered a post-traumatic stress disorder and a rape-trauma syndrome. After evaluating the particular injuries to this particular person, the Trial Judge awarded $50,000.00 as compensation for these damages resulting from both rapes. As the trial court stated, “It is obviously most difficult to quantify in dollars the enormous emotional damage inflicted by rape.” The Trial Judge, with great care and deliberation, considered both the post-traumatic stress disorder and rape-trauma syndrome, and his award of damages should not be disturbed unless that award was an abuse of the exercise of his great discretion. Although we are convinced that the award approaches the minimal damages that should be awarded for these injuries, it is not such an abuse of that discretion given to the trial courts that it would mandate reversal. Reck v. Stevens, supra. We will not disturb the award of $50,000.00 for emotional damage.

MEDICAL EXPENSES

We now consider the last question: were medical expenses proven by a preponderance of the evidence to have resulted from the rape? The trial judge concluded that Miss Alphonso had not proven by a preponderance of the evidence that medical expenses, past and future, were caused by the rape. We agree. It is difficult, if not impossible, to separate those medical expenses that were caused by the rapes from those expenses that would have been incurred had Miss Alphonso not been raped. Miss Alphonso had the burden of proving by a preponderance of the evidence that medical expenses incurred after the rapes were caused by the rapes, and she failed to do this. To illustrate why, it is necessary to summarize the testimony of two witnesses, Dr. Roger Anastasio and Dr. C. B. Scrignar, who are medical doctors and experts in psychiatry. Dr. Anastasio, her last treating physician, testified for Miss. Alphonso and particularly described her injuries as a rape-trauma syndrome coupled with post-traumatic stress disorder, which he called an adjustment reaction. He believed her preexisting schizophrenia was significant because it impaired her ability to resolve the trauma of the rapes; and, although most rape victims resolve the trauma within a year, Miss Alphonso was still suffering from it at the time of trial, more than two years later. However, Dr. Anastasio also testified that her schizophrenia, a biological disease caused by chemical imbalances, was not and could not be aggravated by the trauma of rape, although the symptoms previously in remission may become manifest.

Miss Alphonso’s symptoms did, of course, become manifest after the rapes and she continued to have breakdowns; but it is the cause of these manifestations, the breakdowns, that is the essential question, and Dr. Anastasio was equivocal as to those causes. For example, he testified:

She would still have the illness [even if she were not the victim of a rape]. She could very likely still be breaking down. She might be breaking down secondary to other stresses. As I see it her delusions and hallucinations are colored by the effect of the rape. She has not effectively dealt with the rape because of her illness, and I think needs to be.able to if she’s going to become functional....

He said, in addition:

The hospitalization would be for the schizophrenia, you know, because of her schizophrenia, she can’t handle almost any stress appropriately. . . .

Further:

I think she could likely have continued to have breakdowns. What she is breaking down about is speculative. T think I could say she’s having breakdowns secondary to the rape, you know, this is what she is breaking down about, because she is so ill, not necessarily because she was raped, because she is so ill....

In conclusion:

Given her history, she probably would have broken down again.

Dr. C. B. Scrignar, a member of the faculty of the Tulane University School of Medicine, testified for the State, and his testimony was unequivocal. It was his opinion that Miss Alphonso’s post-traumatic stress disorder was minimal, if any, probably because she was so severely mentally ill before, during, and after the rapes. He also testified that schizophrenics may have atypical responses to a trauma such as rape, and the rape-trauma syndrome may not be as severe as in normal females, and the post-traumatic stress disorder may be less. He concluded that Miss Alphonso probably suffered some post-traumatic stress disorder, but that it abated within a short time, and the usual psychotic symptoms of a paranoid schizophrenic reappeared. Therefore, medical expenses incurred after the rape must be attributed to Miss Alphonso’s mental illness of schizophrenia, not to post-traumatic stress disorder caused by the rapes.

In view of the tentative opinion of Dr. Anastasio and the firm opinion of Dr. Scrignar, the trial judge was correct: Miss Alphonso failed to prove by a preponderance of evidence that the manifestations of her schizophrenia, her breakdowns, were caused by the rapes; hence, the medical expenses during those breakdowns were not proven to have resulted from the rapes. The Trial Judge did not commit manifest error when he denied damages for medical expenses, past or future.

For these reasons, we amend the judgment to award $25,000.00 for physical injuries; we affirm that part of the judgment which awarded $50,000.00 for emotional injuries; we affirm that part of the judgment which denied past and future medical expenses, and we assess costs of the trial and the appeal to the State.

      . Although her hospitalization at Ochsner Foundation Hospital for treatment of her lacerations was proven by a preponderance of the evidence to have resulted from the rapes, Miss Alphonso did not introduce proof of the cost of this hospitalization or medical treatment at Ochsner during the trial of this case.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Danny J. BREAUX v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY.
    No. 14695.
    Court of Appeal of Louisiana, First Circuit.
    April 18, 1982.
    Rehearing Denied May 25, 1982.

      Joel Hanberry, Cut Off, for plaintiff-appellant Danny J. Breaux.
    Ralph R. Alexis, III, New Orleans, for defendant-appellee Louisiana Farm Bureau Mut. Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The main issue presented here is whether or not plaintiff can “stack” the uninsured motorist coverage provided by different insurance companies.

The facts are not disputed. Plaintiff Danny Breaux is the owner of a Suzuki motorcycle and a 1977 Pontiac Grand Prix automobile. The motorcycle was insured by Home Indemnity Company (Home) with liability and uninsured motorist (UM) limits of $10,000. The automobile was insured by Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau) with medical payment limits of $5,000 per person and UM coverage of $50,000 per person. Breaux was injured on June 7, 1979, when he was riding the motorcycle and collided with an automobile. The individual driving the automobile was insured by State Farm Mutual Automobile Insurance Company (State Farm) with a policy providing $10,000 liability coverage. Breaux settled with State Farm and Home (under the UM provisions) for the policy limits of each. He then sought to recover from Farm Bureau for the medical payment and UM limits. Farm Bureau resisted payment and plaintiff filed suit.

Farm Bureau filed a motion for summary judgment ' alleging under La.R.S. 22:1406D(l)(c) Breaux was not allowed to stack his UM coverages and a policy exclusion prevented him from recovering under the medical payment section. The trial court agreed and granted the summary judgment in favor of Farm Bureau and against Breaux. Breaux then filed this appeal. We affirm.

There are four matters to be determined in deciding whether or not appellant is entitled to a trial on the merits. First, is the Farm Bureau policy, issued originally prior to the effective date of the Act, subject to the stacking prohibition in the Act? Second, if the Act is applicable, does it prevent stacking where the policies are issued by different insurance companies? Third, even if plaintiff cannot stack the coverages, may he choose to make a claim under the policy with the higher limits? Fourth, does the policy in question exclude medical payment coverage to a blameless insured who is injured when struck by an automobile if at such time he is driving an owned vehicle not described in the policy?

Appellant argues because his policy was issued originally on May 30, 1977, and the Act did not become effective until September 9,1977, it is not affected by the Act. We reject this argument.

The evidence shows the policy period was defined as follows:

“POLICY PERIOD: The term of the policy shall be from the effective date 05/30/77 to 07/13/77 ... and for such terms of 6 calendar months each thereafter as the required renewal premium is paid by the Insured on or before the expiration of the current term.”

There is no question that plaintiff continued to pay his premiums so that the policy was renewed up to and beyond the time of the accident on June 7, 1979. He contends the renewal merely extended the life of the original policy and that the terms of the original policy cannot be varied by legislative act.

This issue was present in Courville v. State Farm Mut. Auto. Ins. Co., 393 So.2d 703 (La.1981). In Courville, a plaintiff was attempting to recover under the UM provisions of two State Farm policies. The initial issue was whether or not the policies were covered by the Act in that both policies were issued originally prior to the effective date of the Act and both had been renewed after the effective date. The Supreme Court held the initial right to insurance was established for a six month period only and each subsequent renewal was a separate contract. Since the policies were renewed after the effective date of the Act the court ruled the Act applied to the policies in effect at the time of the accident. Therefore, we too conclude the anti-stacking statute applies to the Farm Bureau policy in the present case.

Plaintiff attempts to distinguish Cour-ville, as regards the applicability of the Act, upon the basis that he had an absolute right to continue his insurance in effect for successive periods of six months, whereas in Courville this was not the case. We do not have the Courville policies before us but, in any event, the insurer in this case clearly had the right not to renew the coverage. This is provided not only by the policy language but by La.R.S. 22:636.1. The policy language (pp. 21-22 of the policy, dealing with cancellation and renewal) provides: “. . . nothing herein shall obligate the Company to renew or continue this policy beyond the expiration of any annual period commencing with its original effective date. ...” Further, the policy provides: “If this policy is written for a policy period of less than one year, the Company agrees that it will not refuse to renew except as of the expiration of a policy period which coincides with the end of an annual period commencing with its original effective date.” The policy language obviously tracks the right granted by La.R.S. 22:636.-1. Thus, it is clear plaintiff in this case was not given an absolute right to continue his insurance in effect beyond the initial six months and for successive periods of six months each, thereby maintaining a continuous policy which existed prior to the Act. Courville, in this respect, cannot be distinguished. The Act applies to the Farm Bureau policy.

The second issue is whether or not the Act prohibits plaintiff from stacking UM coverage provided by two different insurance companies.

The Act, as amended in 1977, states clearly stacking is prohibited, subject to a limited exception (which does not concern us here) when the insured is injured while occupying a nonowned vehicle. The pertinent parts of the text read as follows:

“D. The following provisions shall govern- the issuance of uninsured motorist coverage in this state.”
♦ * * sf< * sfc
“(l)(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
“With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
“(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
“(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.” (Emphasis added.)

Plaintiff argues the prohibition against stacking applies only when the coverages are supplied by the same insurance company. The jurisprudence gives us little guidance on this issue. Although counsel for each side cites several cases, we have found none to be exactly on point. Defendant cites several cases which state the only exception to the anti-stacking prohibition is the “nonowned” exception provided in sub-part (c) of the Act. See Courville, supra, and Nall v. State Farm Mutual Auto. Ins. Co., 406 So.2d 216 (La.1981), rehearing denied 1981, but neither deal directly with the issue of stacking when two different insurance companies are involved.

Plaintiff cites several cases for the proposition that stacking is allowed when the policies are issued by different insurance companies but we find none of them to be good authority for that proposition.

In Branch v. O’Brien, 396 So.2d 1372 (La. App. 2d Cir. 1981), writ denied 1981, the plaintiff was an insured under four separate State Farm policies insuring four cars. Plaintiff was driving car A at the time of the accident. The policies on cars A, B and C had UM limits of $10,000 while the policy on ear D had a limit of $100,000. The court disallowed any stacking of the four policies, due to the clear prohibition in the Act, but allowed plaintiff to benefit from the policy with the highest limits of coverage. We find no correlation between Branch and the stacking issue in the present case because Branch involved only one insurer. Branch is of significance on a subsequent issue and will be discussed below.

In Hebert v. Breaux, 398 So.2d 1299 (La. App. 3d Cir. 1981), writ denied 1981, plaintiff had collected UM benefits from State Farm (the insurer of her own car), and then sought recovery under UM coverages provided by Bellefonte Insurance Company on two cars owned by her father. Oddly enough, Bellefonte did not resist payment on the basis that plaintiff was attempting to stack her State Farm UM with the Belle-fonte UM, but claimed simply plaintiff was not allowed to collect under both Bellefonte coverages because to do so would be stacking in violation of the Act. Although the Bellefonte policy was dated prior to the effective date of the Act, the accident occurred after the effective date. The court held that the policy provision preventing stacking was in agreement with public policy at the time of the accident, was valid, and, therefore, plaintiff could not stack the Bellefonte coverages.

We do not see the case as strong authority for the proposition that stacking is allowed when the coverage is by different insurance companies because that issue was never addressed. We note however, even if that issue had been presented therein, it should have had no bearing on the plaintiff’s right to stack. The amendment to the Act affected substantive rights and should not be applied retroactively. Cutrer v. Brumfield, 372 So.2d 648 (La.App. 1st Cir. 1979). The policy in question was issued prior to the effective date of the Act and therefore was not affected by the Act. Pri- or to the amendment in 1977, stacking was allowed. Therefore, we would agree plaintiff was entitled to recover from both insurance companies.

In another case cited by plaintiff, Earl v. Commercial U. Ins. Co., 391 So.2d 934 (La. App. 2d Cir. 1980), the accident occurred prior to the effective date of the Act, therefore the case has no bearing on the stacking issue.

Although we find the jurisprudence of little help, we conclude stacking is prohibited even where the UM coverage is provided by different insurance companies. The language of the Act is clear. The stacking prohibition applies any time the insured “has insurance available to him under more than one uninsured motorist coverage provision or policy. ...” Plaintiff has UM coverage available under more than one policy. There is no language indicating the policies must be provided by one insurance company in order to trigger the prohibition. The basic rule of interpreting laws is found in La.Civ.Code art. 13.

“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

The question of the intent of the anti-stacking provisions was presented in Cour-ville, supra, where a plaintiff attempted to stack two UM policies provided by one insurance company. The plaintiff had been driving his father’s car (insured by State Farm) at the time of the accident. His father had another State Farm policy on a second car. Each policy had UM limits of $10,000 and plaintiff was an insured under both policies.

Plaintiff alleged he was an occupant of an automobile not owned by him and therefore was entitled to stack the two UM policies under the exception created in subsection (c) of the Act. The Court of Appeal, 386 So.2d 176 (La.App. 3d Cir. 1980), admitted a literal reading of the Act would include plaintiff in the exception because he was in fact “an occupant on a nonowned car.” However, it felt the Act did not intend to allow the exception when the occupant of the nonowned car was an insured under the policy on the car and also an insured under the other policy. The court felt the exception was intended to apply to situations where the occupant sought additional UM coverage from a source other than the owner of the insured vehicle which he was occupying. They held plaintiff did not fit the exception and could not stack. The Supreme Court reversed on that issue and stated, at page 705:

“The Third Circuit Court of Appeal felt the Act was ambiguous as applied to these facts; therefore, they endeavored to ascertain the intent of the legislature. We do not deem such a journey necessary.”

The court then cited Civil Code art. 13 and continued as follows:

“The letter of the Act which allows Joseph A. Courville, Jr., to stack these two policies may not be disregarded simply because of some notion that the legislature’s spirit behind the above statute is to prevent stacking in situations such as this. Of course, if that is the true spirit, then the legislature should amend the Act by providing in the second paragraph that an insured may not stack even if he is an occupant and a nonowner of the vehicle in which he is injured. For the present, a strict reading of the entire Act allows this plaintiff to recover.”

We agree completely with these comments. In the present case the words of the legislature are clear and we decline to go behind the words and search for the intention of the redactors. Certainly if the intention was to prohibit stacking only in situations involving policies issued by one insurance company, the legislature should amend the Act to make that limitation clear. But for the present, we will interpret the words according to their usual meaning. La.Civ. Code art. 14. Plaintiff has insurance available to him under more than one policy, therefore, stacking is prevented under the Act.

Plaintiff argues alternatively if he is not allowed to stack the UM coverages he is at least entitled to choose the policy with the higher limits and recover therefrom. We have already discussed the facts of Branch v. O’Brien, supra. There the court allowed the plaintiff to choose from four policies the one with the highest UM coverage, even though the described automobile on that policy was not the one she was driving at the time of the accident. State Farm, the UM carrier, resisted paying the higher limits based on an exclusion which stated the policy did not apply to “an insured while occupying an automobile (other than an insured automobile) owned by the named insured. . . . ” The court held this exclusion was null in that it violated public policy.

The court noted the Act requires the insurer to provide UM coverage and remarked as follows:

“Uninsured motorist coverage does not depend on use of a listed insured automobile, but is to protect the insured from damage caused by a negligent uninsured motorist regardless of whether the insured is occupying an automobile listed in the policy, another automobile owned or unowned, or is not occupying an automobile at all. Barbin v. United States Fidelity & Guaranty Company, 315 So.2d 754 (La.1975); Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972). ...” (Other citations omitted.)

The court concluded the amendments to the Act prohibit stacking of UM coverage but noted the amendment did not change the fact that each policy provides coverage to the full amount of each policy’s limits.

“Nothing in the amendment makes coverage under any one of the policies exclusive of that provided by the others. Nothing in the amendment says the policy or coverage on the vehicle in which the injured party was an occupant is the only policy which provides coverage. In fact, the language of the statute as amended is to the contrary; it recognizes that more than one policy or coverage may be available to the insured, and prohibits ‘stacking’ in that instance. It does not purport to regulate which policy is primary or exclusive, except in the case of an insured occupying a nonowned automobile, which is not the situation here. Since each policy provides coverage, there is no statutory reason why plaintiffs should not be able to select the policy under which they seek recovery, even though they are prohibited from recovering the combined full limits of all available policies.”

Within the factual context of a motor vehicle owned by the injured party and listed in only one liability insurance policy, we deem the reasoning of Branch to be unsound. Where there is more than one liability policy with UM coverage but only one such policy listing the involved vehicle, we conclude the 1977 amendment to the Act does make the coverage under that policy exclusive of the other coverage. We think the amendment clearly provides the policy or coverage on the vehicle in which the owner was injured is the only policy with usable UM coverage. In effect, that policy becomes exclusive.

R.S. 22:1406 D (l)(a) provides:

“No automobile liability insurance covering liability arising out of the ownership, maintenance or use of any motor vehicle shall be .. . issued . . . unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury. . . . ” (Emphasis added.)

Obviously, the thrust of the statute is oriented toward and its foundation rests upon the issuance of liability coverage on a particular motor vehicle. Sub-section (c) then states:

“If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy. . . . ” (Emphasis added.)

Thus the limitation against “stacking” is first made dependent upon the issuance of a liability insurance policy listing a particular motor vehicle. Here, plaintiff Danny Breaux had such a policy on his Suzuki motorcycle and, once issued, the limitation against “stacking” or increasing the limits of UM coverage in that policy became viable. The entire scheme of statutory UM coverage is in terms of the insured’s limits arising from a liability policy on a particular vehicle, not in terms of the aggregate or single limits one or more insurers may have otherwise provided. We apply the clear language of the Act and deny plaintiff access to the higher limits provided in the policy listing only the Pontiac automobile.

The final matter to be resolved is whether or not plaintiff is entitled to recover under the medical payment provisions of the Farm Bureau policy. The policy provides for $5,000 medical payment for the named insured. The policy reads as follows:

“PART II. MEDICAL PAYMENTS— Coverage C
“To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services to or for:
“DIVISION 1 — the named insured and, while residents of the same household, his spouse and any relative of either, who sustains bodily injury, caused by accident, while in or upon, entering or alighting from, or through being struck by any automobile. . . . ”

State Farm rejects payment based on a general exclusion which states the policy does not apply:

“(g) under Division 1 of Coverage C to bodily injury to the insured, his spouse, or members of his household, sustained while in or upon or while entering into or alighting from an automobile owned by the insured, his spouse, or members of his household, except the one described in the declarations;”

Plaintiff cites Landry v. State Farm Mutual Automobile Ins. Co., 298 So.2d 291 (La. App. 1st Cir. 1974), writ refused 1974, in support of their argument that they are entitled to recover under division I of the medical payments provision because the named insured was “struck by an automobile.” We find the facts of Landry make it distinguishable from the present case in that the policy in Landry apparently did not contain the general exclusion found in the State Farm policy. The court specifically stated:

“We can find no provision excluding coverage while the insured is driving an owned vehicle not described in the policy when he has been injured through being struck by an automobile or by a trailer of any type.”

To the contrary, in the instant case we have precise policy language stating plaintiff is not entitled to the medical payments so long as he was in an automobile owned by the insured but not described in the declarations.

We find Branch, supra, applicable to this issue. There the plaintiffs wanted to stack the medical payment coverages provided by the four policies. The court concluded plaintiff was not allowed to stack but was limited to recovering the medical payments only from the policy covering the car involved in the accident. The policy there provided for medical payments to the insured when in the owned automobile (defined as the described automobile) or while in a nonowned automobile. The court noted that unlike the similar UM exclusion issue, there was “no statutory or policy requirement relating to medical payment coverage which overrides or negates the express provisions of the policies, which should be given effect as written.” We agree and hold the exclusion in the Farm Bureau policy is valid, therefore plaintiff is not entitled to recover for medical payments. See also Crenwelge v. State Farm Mutual Automobile Ins. Co., 277 So.2d 155 (La.App. 3d Cir. 1973) and Thomas v. Nelson, 295 So.2d 847 (La.App. 1st Cir. 1974).

For these reasons, the judgment of the trial court is affirmed. Costs are to be paid by appellant.

AFFIRMED.

      . All further citations to this statute, as amended by Act 623 of 1977, will refer simply to the “Act.”

      . Art. 14. “The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.”

      . The Farm Bureau policy in the present case contains the identical exclusion. Insofar as the basic question of coverage is concerned, we agree the exclusion is null. However, we do not believe it is null insofar as it might preclude “stacking" in instances such as the one now before us. To that extent, we believe the exclusion is in accord with the Act, as amended.

      . While we have found it unnecessary to discuss the intent of the legislature in enacting the 1977 amendment to the Act, we do note a close scrutiny of its legislative history does not produce a different result.


author: WILLIAMS, Judge. BARRY, Judge,

text:
    Oscar JACOBSEN and Cecelia Jacobsen v. SOUTHEAST DISTRIBUTORS, INC., Erwin Vogel, Richard Vogel, Frank Knight and ABC Insurance Company.
    No. 12791.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 1982.
    Writ Denied June 11, 1982.

      Melvin W. Mathes, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendant-appellant.
    William W. Miles, Conner, Martinez & Miles, Metairie, for plaintiffs-appellees.
    Joseph R. Ward, Jr., Buckley & Ward, New Orleans, for defendant-appellant.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court finding the defendant Frank Knight liable for injuries sustained by the plaintiff while he was working for Southeast Distributors, Inc. [“Southeast”].

The plaintiff was a painter for Southeast. At the time of the accident, plaintiff was working on a job applying a waterproofing mixture to the exterior of the De La Poste Hotel in New Orleans. Frank Knight was his supervisor on the job. On this job, the plaintiff worked on a “swinging stage”. This is an eighteen-foot long stage supported by two ropes. According to the plaintiff, he requested a safety line on his first day on the job. A safety line is a rope, one end of which is attached to the building on which a man is working and the other end is attached to the worker’s belt. It is designed to prevent the worker from striking the ground in case of a fall. The plaintiff testified that Knight refused to supply him with the line and a plywood covering for the adjoining roof. Because the swinging stage already had been rigged from a previous job at the same site, Knight apparently stated it required too much time to supply the requested equipment. There was also testimony introduced into the record to show that Knight had told the plaintiff not to worry about the lack of safety equipment because the ledge along side of which he was working would protect him.

On August 8, 1979, the plaintiff fell off the swinging stage. The exact reason that he fell is uncertain. The defendant claims that the man who was working with him on the stage caused the fall. Nevertheless, it is the plaintiff’s contention that Knight’s intentional act of not supplying the requested safety equipment was the cause of the injury sustained by him.

The plaintiff and his wife originally filed suit against Southeast and certain executive officers of the corporation, one of which was Frank Knight. During the course of trial, Mrs. Jacobsen was removed as a plaintiff, and all other defendants were removed other than Frank Knight.

The defense filed an exception of no cause of action which was denied by the trial judge, and on March 24-25, 1981, trial was held before a twelve-person jury. After trial, the jury found that Frank Knight committed an intentional act that was the cause of Oscar Jacobsen’s injuries and awarded him $634,000.00 in monetary damages.

The defendant has appealed to this court, asserting that there were two errors in the lower court: (1) the trial court was in error in applying La.R.S. 23:1032 to the instant ease, because Frank Knight did not commit an intentional act; and (2) the monetary award given to the plaintiff by the jury was clearly excessive. Because we find that the trial court was in error in finding Frank Knight liable under the provisions of La. R.S. 23:1032, we need not reach a decision as to issue of quantum.

The question presented by the instant case is whether the behavior of Mr. Frank Knight is an intentional tort within the contemplation of La.R.S. 23:1032 as amended.

In 1976, the Worker’s Compensation law was amended to provide:

“The rights and remedies herein granted to an employee or his dependent on account of an injury or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury or compensable sickness or disease. The purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is part of his trade, business or occupation in which he was engaged at the time he was injured, or which he has contracted to perform in contracts with any persons for the execution thereof.
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under the statute for the liability, civil or criminal, resulting from an intentional act. Immunity from civil liability provided by this Section shall not extend to:
1) Any officer, director, stockholder, partner or employee except employer or principal who was not engaged at the time of the injury in the normal course and scope of his employment; and
2) For the liability of any partner in a partnership which has been formed for the purposes of evading any of the provisions of this Section.” La.R.S. 23:1032 as amended by Act 147 of 1976.

In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the Louisiana Supreme Court upheld the constitutionality of La.R.S. 23:1032, as amended, as it precludes suits by employees seeking to recover from third persons for work-related injuries. In that decision, the Supreme Court held:

“[W]e construe the legislation under review as providing that the exclusive remedy rule shall be inapplicable to intentional torts or offenses.”

Id. at 482.

In Jones v. Thomas, 413 So.2d 180 (La. App. 4th Cir. 1981), we held that an employee has an action in tort against his employer only if that employer were responsible for an intentional tort that occasioned the damage sustained by the employee. In the instant case, there is no dispute as to the fact that Frank Knight is an executive officer of the corporation, and therefore within the purview of this provision of the statute. If the tort committed by Frank Knight is considered to be intentional, then he may be sued. If it is merely a tort involving some degree of negligence, even the grossest negligence, then the plaintiff’s exclusive remedy is worker’s compensation.

In Bazley, supra, the Louisiana Supreme Court concluded that the words “intentional act” contained in La.R.S. 23:1032 had the same meaning as “intentional tort” in reference to civil liability. Id. at 480. The court went into great discussion as to the meaning of intentional act and held that:

“The meaning of intent is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself.”

The court also held that intent is not limited to those instances where the consequences of the act were desired. If the tortfeasor knows that the consequences are certain or substantially certain to result from the tort and still performs it, then in the eyes of the law he is treated as if he had in fact had the intent to produce that result. Id. at 482.

At trial, Knight testified that it was correct to assume that there was a reasonable probability of an accident occurring in view of the hazardous type of work that was being performed. He also testified he did know that if a man were to fall from the height from which the plaintiff fell, that he would injure himself.

The question before the court, therefore, is whether this knowledge which Frank Knight admitted to have as to the reasonable probability of an accident occurring and as to the knowledge as to the result of such an accident, could be the substantial certainty required by the Bazley decision.

Webster’s Third New International Dictionary (1961) defines “probable” as “that is based on or arises from fairly, though not absolutely adequate, convincing, conclusive intrinsic or extrinsic evidence or support”. “Certain,” however, is defined as “inevitable,” or “incapable of failing”. The seman-tical difference between “reasonably probable” and “substantially certain” is significant, especially in light of Frank Knight’s actions. Furthermore, we cannot isolate Knight’s use of the phrase “reasonably probable” from the rest of the evidence including the remainder of his testimony presented at trial. We are aware that the words “certain” or “substantially certain” are terms of the judicial art. Had Knight actually testified that it was certain, rather than probable, that an accident would happen, it still would not be conclusive on the issue of intent. A witness’s choice of words to express himself, especially when the witness is a layman, is not necessarily so narrowly or judiciously made as always to be the precise expression of the witness’s meaning.

Other cases have addressed the question of whether a tort was intentional and have found that a high degree of probability is not sufficient to find that the tortfeasor actually intended the consequences of his act. E.g. McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3d Cir. 1980).

Based on the circumstances presented by the instant case, we cannot find that the plaintiff has proved that Frank Knight had the intent to cause the tort which injured the plaintiff. Other than Mr. Knight’s own testimony that he felt it would be a reasonable assumption to say that it was probable that an accident could occur on the job and that someone would be injured as a result thereof, there is not one scintille of evidence in the record to support a determination that Frank Knight intended for Mr. Jacobsen to sustain the injuries that he did as a result of his fall or was substantially certain that they would happen.

We note that the Bazley court pointed out that in most states, intentional misconduct “require[s] a commission of a genuine intentional tort and have refused to stretch liability to include negligence, recklessness or constructive intent.” See Mayer v. Blue Cross Ins. Co., 402 So.2d 273 (La.App. 4th Cir. 1981).

Knight’s conduct in the instant case may not have been free of fault, but nevertheless we cannot say that it was intentional. Because the executive officer of the corporation is not liable in tort for the injuries which Jacobsen sustained while on the job, his exclusive remedy therefore, is worker’s compensation.

For the foregoing reasons, the decision of the trial court is reversed.

REVERSED.

BARRY, Judge,

concurs.

I have searched the record to find support for the judgment, but the problem is that the jury improperly applied the exclusive remedy (immunity) rule as it pertains to intentional torts.

Bazley defines the requisite intent of the executive officer in order to find liability under LSA — R.S. 23:1032 as: a conscious desire to cause injury or substantial certainty that injury will follow his conduct.

The defendant’s failure to provide or refusal to provide a safety line, by itself, does not indicate or manifest a conscious desire to intentionally cause injury. This record is void of evidence to support a charge that the defendant consciously or unconsciously wanted to harm or injure plaintiff.

Defendant was asked on cross examination: “And you knew there was reasonable probability of accidents happening, ...” and he .candidly replied: “Yes”. From this answer plaintiff argues that the defendant fully appreciated as a fact that the accident would occur and therefore was substantially certain of the resultant injury. This reasoning and conclusion is erroneous and contrary to Bazley.

Despite the Trial Judge’s jury charge which correctly tracked Bazley’s requirements in order to find an intentional tort, the jury misapplied the facts to the law and unfortunately its conclusion was clearly wrong.

The exclusive remedy rule, though harsh and restrictive, is a fact of life subject to change through the legislative process. In the meantime, seriously injured workers, such as this plaintiff, are relegated to the confines of the compensation statutes.

I reluctantly concur.


author: WILLIAMS, Judge.

text:
    Ronald JEANSONNE and Rita Jeansonne v. Abdel Aziz Yousif EL HINDY, James Fontenelle and Deluxe Bell Supermarket, Inc.
    No. 12805.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 1982.
    Anthony M. DiLeo, Judy Y. Barrasso, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for plaintiffs-ap-pellees.
    Romualdo Gonzalez, Murray, Marray, Ellis, Braden & Landry, New Orleans, for defendant-appellee.
    Clyde P. Martin, Jr., New Orleans, for defendants-appellants.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a declaratory judgment of the trial court finding that a non-competition agreement between the plaintiffs, Ronald and Rita Jeansonne, and defendant Abdel Aziz Yousif El Hindy, was personal and was not transferrable to a third party.

On April 4, 1978, the Jeansonnes entered into an agreement to sell Deluxe Bell Supermarket, Inc. [“Deluxe Bell”], which they owned and operated, to El Hindy. El Hin-dy purchased all of the outstanding shares of Deluxe Bell on April 10, 1978. At the closing, the Jeansonnes and El Hindy entered into an agreement whereby the Jean-sonnes agreed not to compete with El Hin-dy within a one mile area of Deluxe Bell. The agreement was executed as an Amendment to the Act of Sale. On January 12, 1980, El Hindy conveyed his interest in Deluxe Bell to Mr. and Mrs. James Fontenelle. The act of sale between El Hindy and the Fontenelles does noi, mention the non-competition agreement between El Hindy and the Jeansonnes.

After El Hindy sold the outstanding shares in Deluxe Bell to the Fontenelles, the Jeansonnes signed an agreement to purchase a grocery store within the one mile radius of Deluxe Bell. The Jeansonnes received a letter from the attorney for the Fontenelles that informed them that legal action would be taken against them should they commence this business. Because they were obligated to purchase the store, the plaintiffs went forward with their plans and on the following day filed a petition for a declaratory judgment against the Fonte-nelles and El Hindy, seeking to have the non-competition agreement declared null and void. The Fontenelles answered, asserting the validity of the non-competition agreement and filed a reconventional demand seeking injunctive relief and damages. The Fontenelles also filed a third party demand against El Hindy seeking re-cission ,of the sale of Deluxe Bell.

The trial court ruled that the non-competition agreement was personal and non-transferrable. The trial court also dismissed the reconventional and third party demands filed by the Fontenelles. We agree with the decision of the court below.

Our decision is made in view of the strict interpretation that we have been mandated to give to non-competition agreements because of their nature. Such agreements are to be strictly construed in favor of freedom of competition. E.g. Railway Audit & Inspection Co. v. Pendleton, 175 La. 4, 142 So. 781 (1932).

In Thomas v. McCrery, 147 So.2d 467 (La.App.2d Cir. 1962), the defendant, an optometrist, sold his business to another optometrist, Roger Shaw. A non-competition agreement in favor of Shaw, similar to the one now at issue, was contained in the act of sale. Shaw then sold the business to the plaintiff, another optometrist. After the sale, the defendant began to practice optometry in violation of the non-competition agreement. The issue in Thomas, as in this case, was whether the agreement not to compete was heritable. The court considered the facts of the case in light of Article 1999 of the Louisiana Civil Code which provides:

“Every obligation shall be deemed to be heritable as to both parties, unless the ■ contrary be specially expressed or necessarily implied from the nature of the contract.”

The court noted that although an obligation is presumed heritable, the language in the non-competition agreement was a special expression of the parties’ intent that the agreement was for the benefit of the named obligee only. Id. at 469. See generally S. Litvinoff, 2 Obligations § 156 (1975) as contained in 7 La.Civ.L. Treatise.

Our case is similar. Although the agreement is styled as an amendment to the sale of stock, it clearly states that the obligee is El Hindy, not Deluxe Bell. Although Deluxe Bell is mentioned in the agreement it is only as a point of geographic reference.

The agreement is a specific expression of the parties’ intent that the agreement is made by the Jeansonnes in favor of El Hindy personally and not Deluxe Bell.

The Fontenelles urge that the decision in Louisiana Office Systems, Inc. v. Boudreaux, 298 So.2d 341 (La.App.3d Cir.) remanded on other grounds, 302 So.2d 37 (La. 1974), dismissed on other grounds, 309 So.2d 779 (La.App.3d Cir. 1975) is controlling. The Louisiana Office Systems, Inc. decision is distinguishable from the instant case. In that case, the defendant had signed an employment agreement that contained a non-competition clause should he leave the employ of Ron Brignac, d/b/a Louisiana Office Systems. The business was incorporated subsequently as Louisiana Office Systems, Inc. The court held that the successor corporation was able to enforce the obligation because the employment contract itself was heritable on the part of the obligor, La. Civ.C. art. 2007, and that there was sufficient evidence to support the plaintiff’s position that the agreement had been assigned to it. In the instant case, the agreement not to compete was personal, and not simply a contract for the hire of labor, skill, or industry. See La.C.C. art. 2007. Furthermore, the assignor and assignee of the defendant’s employment contract in Louisiana Office Systems, Inc., supra, were essentially the same entity. In this case, the alleged assignee is a third party. We also note that there was no evidence of an assignment of the non-competition agreement contained in the Act of Sale from El Hindy to the Fonte-nelles, an important consideration in Louisiana Office Systems, Inc., supra.

For the foregoing reasons, the decision of the trial court is hereby affirmed.

AFFIRMED.

      . The agreement states in pertinent part:
      “BY: RONALD JEANSONNE and RITA JEANSONNE
      TO: ABEL [sic] AZIZ YOUSIF EL HINDY
      * * * * * +
      “PERSONALLY CAME AND APPEARED: RONALD JEANSONNE and RITA JEAN-SONNE who declared to me: That they wish to amend and supplement the Sale of Stock in Deluxe Bell Supermarket, Inc. of April 10, 1978 by agreeing and binding themselves for and pursuant to the same consideration recited therein by agreeing not to own, operate, or manage a retail food store within the one square mile in which Deluxe Bell Supermarket, Inc., 904 Piety Street, New Orleans, Louisiana is located.”


text:
    COLONIAL BANK v. MARINA SEAFOOD MARKET, INC., et al.
    No. 12888.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 1982.
    Thomas J. Toranto, Jr., New Orleans, for defendant-appellee.
    Robert A. Mathis, Newman & Drolla, New Orleans, for plaintiff-appellant.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

The plaintiff has appealed from a judgment holding that a collateral mortgage was invalid.

Colonial Bank [“Colonial”] filed a suit for executory process seeking to enforce a promissory note executed by defendant Marina Seafood Market, Inc. [“Marina”]. The note was a Hand Note in excess of $100,-000.00 that was secured by the pledge of a collateral mortgage note that appeared to have been signed by Deloredeen Dicket, wife of/and Bertrand E. Pomes; Evelyn Chaisson, wife of/and Ronald S. Tardo; and Philip S. Robin. This action has been brought only insofar as it affects Robin’s property.

The collateral mortgage note was par-aphed “Ne Varietur” for identification with an act of collateral mortgage signed by the same parties. After the suit for executory process was filed, the property owned by defendant Robin was scheduled to be sold at a Sheriff’s sale. Prior to the sale, Robin obtained a temporary restraining order on the ground that his signature on the collateral mortgage note was forged. Later, a preliminary injunction was granted prohibiting the sale of Robin’s property on the same basis that the temporary restraining order was granted.

Colonial then amended its petition and converted the action from via executiva to via ordinaria. The petition also requested that the court recognize the mortgage held by Colonial as being a valid lien upon Robin’s property. After a trial on the merits, the court ordered that the collateral mortgage held by Colonial be cancelled insofar as it affected property owned by Robin. Once again, the court held that Robin’s signature did not appear on the collateral mortgage note and because the collateral mortgage was accessorial to the note, the mortgage itself was invalid.

At trial, testimony taken at the hearing for the preliminary injunction was introduced into evidence and further testimony of Robin, A1 Hebert, vice-president of Colonial, and Richard A. Tonry, the Notary before whom the collateral mortgage and collateral mortgage note were signed, was taken. Testimony of an assistant vice-president of Colonial was presented as to the amount outstanding on the promissory note.

The testimony produced is conflicting. Robin testified that he did not sign the collateral mortgage note. He also testified that he was misled by Colonial as to the effect of the document that he was signing when he signed the collateral mortgage itself; he was told that he was signing a release of his state oyster leases as security for the mortgage. He claimed not to be aware of the fact that his real property was being used as collateral.

Colonial has presented five issues on appeal: (1) did Robin have to receive loan proceeds for the collateral mortgage to be a valid encumbrance upon his property; (2) can a person mortgage his property to secure the debt of another; (3) did Robin intend that the collateral mortgage note be effective, i.e. did Robin intend to mortgage his property; (4) did the absence of Robin’s signature on the collateral mortgage note invalidate the collateral mortgage; and (5) is the hand note or collateral mortgage note evidence of the indebtedness.

Because we find that the trial court was within its discretion in finding that there was a failure of- Robin to execute the collateral mortgage note, thus causing the mortgage itself to be invalid, we need not reach any other issues.

Colonial has argued that the facts adduced at trial are indicative of Robin’s intent to mortgage his property for Marina Seafood, Inc. and specifically direct our attention to the following: (1) Robin’s relationship to Marina Seafood, Inc., as a shareholder; (2) Robin’s completion of the financial statement required by Colonial before it would approve the mortgage; (3) Robin’s acknowledgement that he probably had signed other credit applications, thus making it reasonable to assume that he knew what he was doing on this occasion; (4) Mr. Hebert’s testimony that he told Robin that it was necessary for Colonial to receive a second mortgage on his home in order to secure a loan for Marina; (5) Robin’s delivery of a legal description of his real property to Richard Tonry, the Notary before whom the mortgage was passed; and (6) Robin’s signing of the collateral mortgage itself.

Robin, however, testified unequivocally that he was not a shareholder in Marina, and that he was never told that it was his real property being mortgaged. He also testified that he had not signed the collateral mortgage note.

We find that Robin’s property has not been mortgaged. The collateral mortgage is based upon the execution of four steps: (1) an act of collateral mortgage; (2) a collateral mortgage (“Ne Varietur”) note; (3) an Act of Pledge; and (4) a Hand Note. For a comprehensive explanation of the mechanics of the collateral mortgage, see Nathan & Marshall, The Collateral Mortgage, 33 La.L.Rev. 497 (1973).

In their article, authors Nathan and Mar-shall stated:

“[T]he collateral mortgage device is neither fully pledge nor fully mortgage. One must remember that it is a hybrid and to be effective it must employ both security devices. In the collateral mortgage, pledge and mortgage are inextricably bound together, since the device requires the pledge of a mortgage note. Without an act of mortgage, there can be no mortgage note; without a mortgage note, there is no collateral to be pledged; without the pledge of the note, the mortgage is dormant and there is no obligation secured by the mortgage.” (Emphasis in original)

Id. at 521. It is clear, therefore, that every step of the collateral mortgage process is inextricably intertwined with the others.

In the case now before the court, defendant Robin did not sign the hand note; he claims not to have signed the collateral mortgage note; he claims to have signed the collateral mortgage through mistake; and no evidence whatsoever of pledge was introduced at trial. Furthermore, we note that the hand note on which Colonial sued was greater than the collateral mortgage note.

Based on the evidence presented at trial, there was no manifest error in the finding of the court below that Robin had not signed the collateral mortgage note. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Although the collateral mortgage note is not evidence of the debt, except in cases proceeding by means of executory process, it nevertheless is that which has been pledged. See Cameron Brown South, Inc. v. East Glen Oaks, Inc., 341 So.2d 450, 456 (La.App. 1st Cir. 1976). The collateral mortgage note is invalid and the pledge is also. The situation in the instant case is one in which the entire procedure by which a collateral mortgage is executed and enforced has broken down.

For the foregoing reasons, the decision of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: DOUCET, Judge.

text:
    Mark B. HOYT, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendant-Appellant.
    No. 82-132.
    Court of Appeal of Louisiana, Third Circuit.
    April 26, 1982.

      Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellant-appel-lee.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee-appellant.
    Brittain & Williams, Joe Payne Williams, Natchitoches, for defendants-appellees.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

MOTION TO DISMISS

The defendant-appellees, Reliance Insurance Company and the Natchitoches Parish Police Jury, move to dismiss the appeal of plaintiff-appellant, Mark B. Hoyt, and defendant-appellant, State Farm Mutual Automobile Insurance Company, on the grounds that the appellants have voluntarily and unconditionally acquiesced in the judgment thereby abandoning their right of appeal.

This suit arises from personal injuries sustained by plaintiff-appellant, Mark B. Hoyt, while riding as a passenger in a vehicle driven by David Johnson when it was involved in a head-on collision with a vehicle operated by Charles Williams. Mr. Williams was operating the vehicle while in the course and scope of his employment with the Natchitoches Parish Police Jury.

Named as defendants were the following: Natchitoches Parish Police Jury as the employer of Charles R. Williams, Reliance Insurance Company as the insurer of the Natchitoches Parish Police Jury and Charles R. Williams, and State Farm Mutual Automobile Insurance Company as the uninsured motorist carrier for the plaintiff, Mark B. Hoyt.

The matter was tried with the jury returning a verdict in favor of the plaintiff, Mark B. Hoyt, against defendant State Farm Mutual Automobile Insurance Company in their capacity as his uninsured motorist carrier. The jury further found in favor of the defendants, Reliance Insurance Company and the Natchitoches Parish Police Jury thereby dismissing the demands of plaintiff Mark B. Hoyt against these defendants.

From the judgment plain tiff-appellant, Mark B. Hoyt, and defendant-appellant State Farm Mutual Automobile Insurance Company perfected appeals to this court.

Defendants, Reliance Insurance Company and the Natchitoches Parish Police Jury filed a motion to dismiss both appeals alleging that the plaintiff-appellant, Mark B. Hoyt, and defendant-appellant, State Farm Mutual Automobile Insurance Company have voluntarily and unconditionally acquiesced in the judgment due to the alleged fact that the plaintiff-appellant has been paid by the defendant-appellant, State Farm Mutual Automobile Insurance Company all sums which he- was entitled to under the judgment of the trial court.

As was stated in the recent case of Koerner and Lambert, A Professional Law Corporation v. Allstate Insurance Company, 363 So.2d 546 (La.App. 4th Cir. 1978):

“Payment of a judgment, even payment without express reservation of the right to appeal, does not necessarily constitute voluntary and unconditional acquiescence which forfeits a party’s right to appeal under C.C.P. article 2085. Charles C. Cloy General Contractors, Inc. v. DiVin- centi Bros., Inc., 308 So.2d 493 (La.App. 1st Cir. 1974) Acquiescence in a judgment is never presumed, and the party alleging abandonment must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce and to abandon his right to appeal. Major v. Louisiana Department of Highways, 327 So.2d 515 (La.App. 1st Cir. 1976). Furthermore, appeals are favored in law, and forfeiture of a party’s right to appeal through acquiesce should be decreed only when the party’s intention to acquiesce and to abandon his right of appeal is clearly demonstrated. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956).”

In the instant case, the motion of co-defendants does not even allege any manifestation of an intention to abandon the right to appeal on the part of either the plaintiff or the defendant-appellant, State Farm Mutual Automobile Insurance Company. In the absence of factual allegations of such manifestation, the motion to dismiss the appeal has no merit.

Assuming that the appellants have by their actions abandoned their appeal against each other they would still have the right to appeal the jury dismissal of Reliance Insurance Company and the Natchi-toches Parish Police Jury.

MOTION DENIED.


author: DOMENGEAUX, Judge.

text:
    Peggy LeBlanc WEBB, Plaintiff-Appellee, v. Ronald J. WEBB, Defendant-Appellant.
    No. 82-37.
    Court of Appeal of Louisiana, Third Circuit.
    April 26, 1982.
    J. B. Willis, St. Martinville, for plaintiff-appellee.
    Kermit A. Doucet, Lafayette, for defendant-appellant.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

This is a suit for separation, custody of the children and child support, by Peggy LeBlanc Webb against Ronald J. Webb. The suit was filed in St. Martin Parish, the alleged domicile of Peggy. Ronald, a domiciliary of East Baton Rouge Parish, filed an exception to the venue. After a hearing, the exception was overruled.

Ronald Webb appealed devolutively from the interlocutory judgment overruling the exception.

We conclude that this appeal should be dismissed ex proprio motu with the observation that judicial efficiency, fundamental fairness, and the expeditious handling of judicial affairs dictate that such an interlocutory judgment should be presented to this court by way of supervisory writs rather than by the lengthy process of appeal.

The devolutive appeal taken herein does not have the effect of staying the trial of the suit on its merits. If the question of venue was presented by supervisory writs, instead of an appeal, a decision on the merits of the writ could be handled expeditiously. If the trial court erred in its ruling, a correction in the ruling could be made without delay which would avoid useless expenditure of time and effort by the attorneys, trial judge, court personnel and expenditures of the litigants. Clearly, the time and expense of a trial on the merits will be wasted if such trial is held in the wrong venue. Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981); Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir. 1978). Under these particular circumstances, we feel that this appeal should be dismissed, with the observation that justice would be best served if this matter would be presented to this court by supervisory writs. This appeal is hereby dismissed.

APPEAL DISMISSED.


author: BROOM, Justice, for the Court:

text:
    Leo E. EDWARDS v. STATE of Mississippi.
    No. 53298.
    Supreme Court of Mississippi.
    April 14, 1982.
    Rehearing Denied May 26, 1982.

      Stanfield & Holderfield, Percy S. Stan-field, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   BROOM, Justice, for the Court:

The death penalty was ordered at Leo E. Edwards’ trial upon an indictment charging him with the murder of Lindsey Don Dixon while engaged in the commission of robbery. Miss.Code Ann. § 97-3-19(2)(e) (Supp.1981). Trial was in the Circuit Court of the First Judicial District of Hinds County, the Hon. William F. Coleman, presiding. Edwards (defendant herein) appeals and asserts that the trial court erroneously (1) excused a juror for conscientious scruples against the death penalty, (2) failed to instruct the jury on circumstantial evidence, (3) allowed the state to “show a separate and distinct crime,” (4) refused to reduce the “charge to murder,” (5) admitted into evidence a “photograph of deceased,” (6) held the evidence was sufficient, (7) allowed defendant’s co-indictee to receive a life sentence, and (8) denied defendant “effective assistance of counsel.” We affirm.

Defendant Edwards, his girl friend, and his co-indictee Mikel Leroy White, drove around in Jackson during the early hours of June 14, 1980. Some time later that morning, at defendant’s request, White drove defendant to a convenience store on Hanging Moss Road in Jackson. Defendant’s stated purpose was to get money from a girl friend who worked there. At a nearby intersection, defendant exited the car and told White to go “one block down” and wait on a side street, which White did. After parking, White went to sleep and not long afterwards, White was awakened by defendant who reentered the car carrying a brown bag and an automatic pistol. At trial, the pistol, which had been confiscated, was identified by White. White’s testimony was that the defendant told him, “Let’s go, I shot somebody.”

. Lindsey Don Dixon was the clerk in charge of the store, a Stop-N-Go Market. Dixon’s fiance, a Miss Singleton, telephoned him about 4 a. m. on June 14, 1980, and during their phone conversation, Dixon put the phone down on his end of the line after telling her to “hold on.” Promptly, Miss Singleton heard a gunshot followed by silence. She alerted the police and at about 4:30 a. m. officers went to the Stop-N-Go where they found Dixon dead in a pool of blood' — shot in his chest. Money was missing from the cash drawer which was in disarray. Dixon’s cause of death was determined to be internal bleeding resulting from the bullet wound.

That-same morning, White heard a radio news report of a store clerk’s slaying on Hanging Moss Road and mentioned the report to the defendant. In reply the defendant told White he “shut- thex-sucker” so he (the defendant) would not be identified. White testified that the defendant gave him some money after the killing but he didn’t remember how much. During the early part of June 15, Officer Williams proceeded to a local rooming house to investigate a report that a woman was being threatened at gunpoint. Officer Williams found the defendant there brandishing a pistol which the officer confiscated, but the defendant escaped into the crowd. Ballistics tests established that the projectile which killed Dixon was fired from this pistol.

Three days later, on June 18, 1980, the defendant and White were stopped in North Mississippi on a traffic violation. A fictitious name was given by the defendant who was intoxicated. The two men were taken into custody and a routine check revealed they were wanted for armed robbery and murder. After the officers there obtained a search warrant, two pistols were taken from the car’s trunk. At the March, 1981 court term, the defendant was found guilty and sentenced to death.

First argument made relates to the exclusion of juror Hibler on the ground of “conscientious scruples” against the death penalty. Juror Hibler was asked by the circuit judge if she could follow the testimony and instructions of the court although the “verdict could result in the death penalty”; jur- or Hibler said, “I couldn’t.”

Upon this state of juror Hibler’s voir dire examination, she was excused and the defendant urges reversible error under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Having categorically stated that she couldn’t follow the testimony and instructions of the court, we think that the juror was correctly excluded. The fact that upon questioning by defense counsel, Hibler stated she would try to be a “fair” juror did not qualify her in this case. Similar argument was made in Edwards v. State, supra, n.l, but there the sentence was life imprisonment whereas here the sentence is death. Thus, the two cases are not precisely analogous. For an excellent explanation of the proper method of bringing the death penalty to the attention of the special venire in capital cases, see Armstrong v. State, 214 So.2d 589 (Miss.1968).

The second issue raised is that the lower court erred in failing to instruct the jury on circumstantial evidence. There is no merit to this argument because the defendant’s accomplice, co-indictee White, gave direct testimony about the defendant’s activities on the occasion in question. White’s testimony was that he took the defendant to a place near the Stop-N-Go Market on Hanging Moss Road where the ' defendant exited after stating he was going into the store. Shortly thereafter the defendant returned with a brown bag and pistol and stated that he had shot someone in the store to prevent his (defendant’s) later identification. Later he told his co-in-dictee White that he “shot the sucker.” Some money was given White by the defendant. In view of the testimony of the defendant’s accomplice, the case against the defendant was not wholly circumstantial and therefore he was not entitled to a jury instruction which he sought on circumstantial evidence. Bullock v. State, 391 So.2d 601 (Miss.1980).

Thirdly, the defendant argues that he was denied a constitutionally fair trial because the state was allowed to show a “separate and distinct crime.” His contention is that the lower court erred in allowing Officer David Williams to give hearsay testimony that the appellant had threatened to kill a woman over some money. The matter came up when the state, in presenting its case in chief, offered the testimony of Officer David Williams who was called for his testimony regarding his seizure of a pistol from the defendant which was later established to be the weapon used in the murder of the deceased Dixon. The testimony in question of Officer Williams was as follows:

Q. About what time was this?
A. Approximately 3:00 o’clock in the morning.
Q. Just continue as to what was happening at that time.
A. At that time, we were engaged in a brief conversation with Mr. Freddie Tubbs when we received information that an individual was across the street at a rooming house in the doorway with a weapon and the individual stated that he was gonna kill a girl over some money.

Following the above testimony, the defendant objected and the jury was excluded while the matter was considered by the judge and the lawyers. At that time, defense counsel agreed to the court’s offer to admonish the jury to disregard the statement. The court admonished the jury not to let the testimony in question “have any bearing” on their verdict and the record clearly shows that each juror raised his hand indicating his willingness to follow the court’s admonishment. The record does not indicate that the state intentionally elicited the hearsay report, but only asked Officer Williams, “What was happening at that time.” Our rule is that absent a showing to the contrary, jurors are presumed to follow the court’s direction with regard to testimony. Hughes v. State, 376 So.2d 1349 (Miss.1979); Butler v. State, 375 So.2d 1039 (Miss.1979); Gray v. State, 375 So.2d 994 (Miss.1979); Duke v. State, 340 So.2d 727 (Miss.1976).

We think the record clearly shows that the challenged testimony was not elicited to establish its truth or to establish that the defendant killed Dixon. As to the taking of the gun from the defendant, defense counsel stated, “We have no qualms with that.” No motion or request for a mistrial was made by the defense and the court granted the defense all that was requested. In view of the context of the testimony and the court’s admonishment of the jurors, the argument does not warrant reversal.

Fourthly, the defense argues that the lower court erred in denying the defendant’s motion to reduce the charge against him to murder. Apparently he contends that the state’s evidence did not prove a robbery within the purview of § 97-3-19(2)(e) which makes killing in the commission of robbery a capital offense.

Testimony of the state included that of Vera Avalon, a district supervisor for Stop-N-Go Markets. She stated that when she surveyed the store shortly after Dixon was shot, she discovered over a hundred dollars missing from the cash register. According to the record, investigating law officers found strewn about the floor of the store in random fashion several checks and small change. Dixon’s body was found in an adjoining storage area of the store. Mikel White, the defendant’s accomplice and co-indictee, testified that shortly after the event he was given money by the defendant knowing that “he had got it from the store,” but he accepted it anyway so that the defendant would not “do anything” to him. We think this evidence plus the defendant’s statement that he “shot the sucker” sufficiently established the crime of robbery. This is the only logical conclusion that can be drawn from the above evidence and from the lack of evidence that anyone else was connected with the store robbery or Dixon’s death. Clearly the testimony, together with reasonable inferences to be drawn from it, sufficiently proved the crime of robbery. Mitchell v. State, 402 So.2d 329 (Miss.1981); McDaniel v. State, 356 So.2d 1151 (Miss.1978). A similar argument was made in Voyles v. State, 362 So.2d 1236 (Miss.1978), cert. den. 441 U.S. 956, 99 S.Ct. 2184, 60 L.Ed.2d 1059 (1979). As was true in Voyles, the jury in the present case was adequately instructed concerning the standard of proof necessary to find the existence of a robbery. Jury Instruction No. 7 contained the following language:

The Court instructs the Jury that if you believe from the evidence in this case, beyond a reasonable doubt that on June 14, 1980, in the First Judicial District of Hinds County, Mississippi, Leo E. Edwards, did then and there wilfully, unlawfully and feloniously take and carry away the personal property of another from the presence of Lindsey Don Dixon, and from his person, against his will and by violence to his person, to-wit: $111.23, good and lawful money of the United States of America, or any amount, belonging to National Convenience Stores, Incorporated, A Texas Corporation, d/b/a Stop N Go no. 1075, then in the possession and under the control of Lindsey Don Dixon, then and in that event the Defendant, Leo E. Edwards is guilty of robbery; ....

As requested by the defendant, the court instructed the jury even more explicitly:

The Court instructs the jury that one of the essential ingredients of capital murder, as charged in the indictment, is that the killing was committed while the Defendant was then and there engaged in the crime of robbery;
The Court, therefore, instructs the Jury that in this case, unless you can say on your oath that beyond a reasonable doubt Leo E. Edwards was guilty of killing the deceased while he was then and there engaged in the crime of robbery, then it is your sworn duty to never convict Leo E. Edwards of Capital Murder, even though you may believe from the evidence beyond a reasonable doubt that he is guilty of murder.

The evidence of robbery was sufficient to submit that issue to the jury, and to support its finding of guilty beyond a reasonable doubt. Instructions given the jury on robbery were adequate, and accordingly the lower court did not err in refusing to reduce the capital murder charge to a lesser offense.

Fifth argument made is the contention that the lower court erred in admitting into evidence a photograph of the deceased used during the testimony of forensic pathologist Dr. Rodrigo Galvez. The black and white photograph was of the deceased’s body and depicted a single bullet wound to Dixon’s chest. No contention is made that the photograph was not an accurate portrayal of what was included on the photograph. Our examination of the picture reveals that it is not especially gruesome and it does not show any heinous mutilation of the body, but simply establishes that the deceased’s chest wound was a small caliber bullet hole. It cannot be logically said that the photograph was not helpful in enabling the doctor to describe and relate his findings. Established law in this state is that the admissibility of a photograph usually rests within the trial judge’s sound judicial discretion, and we will uphold the admissibility of a photograph absent some showing of an abuse of discretion, which is not established in the present case. Steed v. State, 396 So.2d 625 (Miss.1981).

The sixth proposition asserted by the defendant is that the jury verdict of guilty was against the weight of the credible evidence. Sifted from the testimony in the record and summarized are the following facts:

(1) Lindsey Don Dixon was murdered during a robbery of the Stop-N-Go where he worked.
(2) At the defendant’s request, Mikel White let him out near a store where Edwards told White he was going into and where Dixon was killed.
(3) Promptly defendant exited the store and related that he had shot someone.
(4) White was given part of the loot by the defendant.
(5) Next day White was told by the defendant Edwards that he had “shot the sucker” to avoid identification.
(6) The gun used in the killing was recovered from the defendant’s possession.

Having before it the testimony which establishes the above facts, we think the jury verdict was supported by the testimony establishing the defendant’s guilt beyond a reasonable doubt. Although some of the testimony was circumstantial, the circumstantial evidence together with the testimony of co-indictee/accomplice White presented a strong ease.

The seventh argument is that the lower court erred in “permitting abuse of prosecutorial discretion in allowing appellant’s co-indictee to plead guilty to a life sentence for murder.” Selectivity of the district attorney as to “whom he wishes to attempt to put to death” is the basis of the argument which asserts that White was allowed to plead guilty to the reduced charge of murder and receive two life sentences in return for “an agreement to testify” against Edwards.

In Culberson v. State, 379 So.2d 499 (Miss.1979), we affirmed Culberson’s conviction and death sentence and rejected his argument of abuse of prosecutorial discretion in allowing his co-indictee Pittman (who testified for the state) to plead guilty to the reduced charge of manslaughter. In Culberson, co-indictee Pittman participated in the planning and carrying out of the robbery, but here co-indictee White had a much lesser part in the crime. The record fails to support the argument that the district attorney abused his discretion in applying Mississippi’s capital murder statute, and we find his action was in keeping with established law. The United States Supreme Court has recognized the exercise of prosecutorial discretion within constitutional limits. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). That prosecutors must have wide latitude in the exercise of their prosecutorial discretion is now accepted and well established in this jurisdiction. As we held in Boyington v. State, 389 So.2d 485 (Miss.1980),

[P]lea bargaining is an essential part of the criminal justice system. Salter v. State, 387 So.2d 81, Nos. 51,773 and 51,786, handed down July 30, 1980 [Not yet reported]; Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

Id. at 490.

We are unwilling to reverse the defendant’s conviction because his co-indictee was allowed to plead guilty to a charge of simple murder as a result of the discretionary judgment of the district attorney who was in charge of the prosecution.

The eighth and last defense argument asserted is that he was “denied sixth amendment rights to effective assistance of counsel.” In effect, defense counsel is charging himself with ineffectively representing his client, the defendant Edwards. The argument is based on the following statements made by defense counsel during his argument to the jury on the guilt phase:

BY MR. STANFIELD: And yet he made deal. Mr. Peters [meaning the State] made a date with death and had to marry the devil to do it and he’s been sleeping with the devil ever since that man [meaning Mikel L. White] pled guilty on January the 12th of this year.
BY MR. PETERS: I move that Mr. Stan-field be held in contempt of court, that he be admonished for violating the rules of law with regard to attacking other attorneys, that he has gone outside of the record and that the jury be instructed that this lawyer has no ethics when it comes to a trial, Your Honor.
BY THE COURT: Mr. Stanfield, do not attack the personal integrity of the opposing counsel and the jury will disregard the last part of the arguments. You may argue your point but in a different fashion.
* * * * * *
BY MR. STANFIELD: I just simply stand in awe when he objects because it frightens me.
BY MR. PETERS: [N]ow look, there’s only so much, Your Honor, than an unethical lawyer can expect another lawyer to take before he decides he’s going to go ahead and have a confrontation personally-
BY THE COURT: Mr. Stanfield, I have reprimanded you twice in that regard. Now, let’s stay out of personalities. Let’s move along.

And the argument is based on District Attorney Peters’ statement during closing argument on the guilt phase.

BY MR. PETERS: We have not tried to mislead you. We have not tried to make remarks about people that are uncalled for and we have tried to stick to the issues. But, for some reason, defendants [sic] feel that that’s not enough. They [sic] don’t want you to know the' truth. They [sic] don’t want you to—
BY MR. STANFIELD: (Interposing) Your Honor, he’s doing the same thing that he hollered to high heaven about me and you made me stop.
BY THE COURT: Yes, sir, and I’ll make him stop too, Mr. Stanfield.

Defense counsel argues that after receiving two reprimands from the trial court, he became wholly ineffective for the remainder of the trial and also alienated the jury against the appellant. It is also argued that the district attorney’s remarks, “But for some reason, defendants feel that that’s not enough. They don’t want you to know the truth” was a direct comment upon the failure of the appellant to testify.

We note that the trial court upheld defense counsel’s objection to the district attorney’s remarks and we find that this establishes that the circuit judge was judiciously fair in presiding over the final stage (jury argument) of the trial. Both the prosecutor and defense counsel merited the admonishment of the trial judge to “stay within the facts.”

When the trial court was confronted with the defense counsel’s assertion that the district attorney had been “sleeping with the devil” by accepting a guilty plea from co-in-dictee White, he correctly admonished defense counsel not to “attack the personal integrity of opposing counsel.” We think the trial judge demonstrated much judicial statesmanship and fairness to both sides in the way he presided throughout the trial. Upon the entire record, we think the defendant received effective assistance of counsel and in no way was his trial “offensive to the common and fundamental ideas of fairness and right.” Hutchinson v. State, 391 So.2d 637 (Miss.1980).

Presented by the record before us is testimony, which the jury had a right to accept, that the defendant committed the brutal killing while engaged in the offense of robbery. He told his co-indictee that he “shot the sucker” so that he (the defendant) could not be identified by his victim. A more calloused and unjustifiable killing could hardly be imagined.

We have carefully reviewed the record and compared it with all our decisions upholding death penalties subsequent to Jackson v. State, 337 So.2d 1242 (Miss.1976). Testimony presented at the sentencing phase of the trial establishes that the defendant had a long record of criminal convictions and had been previously sentenced as an habitual criminal. During the time of the offense in question, the defendant was an escapee from prison. He had also received a life sentence for capital murder for a murder which was committed during the same week as the offense in question. Upon analysis of the testimony here and its comparison to each of the other cases wherein we have affirmed the death penalty, we must conclude that the death penalty here is not excessive in the light of the aggravating and mitigating circumstances. Execution of Edwards will not be wanton or freakish, but consistent and evenhanded with all the post-Jackson death penalty cases previously affirmed by us.

Considered in its entirety, the record shows that the defendant was vigorously and astutely represented by court appointed counsel. A fair trial was accorded the defendant. The verdict and sentence were based upon evidence which established his guilt beyond a reasonable doubt. Accordingly, affirmance is ordered, and the 2nd day of June, 1982 is fixed as the date on which the death sentence shall be executed as provided by law.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and DAR-DEN, JJ., concur.

      . Edwards’ capital murder conviction and life imprisonment sentence for a separate murder were affirmed in Edwards v. State, 407 So.2d 102 (Miss.1981).

      . For a listing of the felony murder death penalty cases affirmed by this Court see Bullock v. State, 391 So.2d 601 (Miss.1980) (affirming sentence of death for felony murder) at page 612.