text:
    SELECT INSURANCE COMPANY, et al., Plaintiffs-Appellants, v. INSURED LLOYDS, et al., Defendants-Appellees.
    No. 82-57.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Gist, Methvin, Hughes & Munsterman, Victor H. Sooter, Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants-appellees.
    Walter T. Gamard, II, New Orleans, Air-hart & Copenhaver, Teddy W. Airhart, Jr., Baton Rouge, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

For the reasons assigned in the case of Barry D. Burris v. Insured Lloyds, et al, 417 So.2d 511 (La.App.3rd Cir. 1982), the judgment of the district court is reversed in part, affirmed in part, and recast as follows:

It is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiff, Select Insurance Company, and against defendants, Lester Easterling and Insured Lloyds, in solido in the full sum and amount of Eighteen Thousand, Thirty-one and 50/100 ($18,031.50) Dollars, with legal interest thereon from date of judicial demand until paid. Said judgment being subject to a settlement agreement between the parties which is evidenced in the record.

It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of defendant, The Department of Transportation and Development, and against plaintiff, Select Insurance Company, rejecting plaintiff’s demands against said defendant and dismissing said defendant from this lawsuit.

It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of defendant, Dairyland Insurance Company, and against the plaintiff, Select Insurance Company, rejecting plaintiff’s demand as against Dairyland Insurance Company, and dismissing Dairyland Insurance Company from this lawsuit. Additionally, the third party demand of Dairyland Insurance Company against Lester Easterling, Insured Lloyds, and the State of Louisiana, through the Department of Transportation and Development, is dismissed.

It is further Ordered, Adjudged, and Decreed that the third party demand of the State of Louisiana, through the Department of Transportation and Development, against Barry D. Burris is dismissed.

It is further Ordered, Adjudged, and Decreed that the demands of Gulf Insurance Company in this lawsuit be and they are hereby dismissed.

Costs at trial and on appeal are to be assessed against plaintiffs, Gulf Insurance Company, and Select Insurance Company.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Interest of Arnold ANDERSON.
    No. 5-45.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 6, 1982.
    Madeline Jasmine, Asst. Dist. Atty., Parish of St. John, Edgard, for plaintiff-appel-lee.
    E. Howard McCaleb, III, Metairie, for defendant-appellant.
    Before SAMUEL, BOWES and GAUDIN, JJ.
   BOWES, Judge.

The defendant, Arnold Anderson, appeals his conviction under La.R.S. 14:56, Simple Criminal Damage to Property.

From the record, the following appear to be the facts in this case. Two minors, “Rock” Jones and Arnold Anderson, defendant, went to a car wash for the purpose of cleaning Anderson’s car with the vacuum cleaner furnished by this establishment. A preponderance of the evidence indicates that the vacuum cleaner was broken when they arrived. Anderson pulled his car away from the vacuum cleaner, opened the trunk, obtained a brush and swept out the inside of his car.

No one, other than the two boys, was at the car wash at this time. However, Detective Walker passed in front of the car wash while Anderson was brushing out his car. Anderson saw him and noticed that the detective observed him also. Thereafter, Anderson finished brushing out his car and put the rugs back. He then drove his friend, “Rocky”,, home and went to play basketball.

When Detective Walker had driven by the car wash, he noticed the two boys at the rear of Anderson’s car, bending over. He saw Jones raise up, look at him, and throw something to the ground, but he did not know what the object was. The detective did not see Anderson, the defendant, do anything. He merely saw him bending over the back of his car.

Thereafter, Detective Walker proceeded to the Jr. Food Mart, a convenience store, turned his car around, and returned to the car wash. As he approached, Anderson’s car was leaving and Jones appeared to give him “a little laugh.” Detective Walker pulled his car into the car wash and noticed for the first time that a coin receptacle was missing from the vacuum cleaner and that it was lying on the ground.

Due to the activity he had witnessed, Detective Walker assumed that Anderson had broken the vacuum cleaner and arrested and charged him under LSA-R.S. 14:56, Simple Criminal Damage to Property. “Rocky” Jones was not charged. While testifying under oath, Detective Walker stated that he did not know for a fact that the vacuum cleaner had not been broken prior to the time that the boys were at the car wash.

Anderson testified that the vacuum cleaner was broken when he arrived at the car wash.

Mr. Kron, one of the owners of the ear wash, testified that an employee calls him in Baton Rouge every day to state whether or not the car wash has been damaged. He also stated that on the day in question he received a call from the St. John Parish Deputies that someone had broken the vacuum cleaner.

The State put the following compound and leading question to Mr. Kron while on the witness stand:

Q Every day? And before the time you received the call had you been notified by the man who checks your property that it was not in operation?
A No.
Q So to your knowledge before that time it was working properly, is that correct?
A Right.

Mr. Kron testified that he did not know what time the employee visits the car wash daily and that he did not remember what time the Sheriff’s office called to relate the damage.

The State petitioned to rule Anderson delinquent under R.S. 13:1570A(5) for the precise violation of Simple Criminal Damage to Property.

The trial court apparently thought that Anderson had also been charged with theft and found him not guilty of that crime (with which he was not actually charged), but found him guilty under R.S. 14:56. He was also found delinquent under R.S. 13:1570. The Court decreed a fine, ordered restitution, and placed Anderson on 90 days supervised probation.

The parent of Arnold Anderson appeals.

Defendant only alleges one assignment of error — that the juvenile judge erred in applying the circumstantial evidence in this case.

In State in Interest of Emerson, 250 So.2d 439 (La.App. 4th Cir. 1971), the 4th Circuit held that the same degree of proof is necessary to adjudge a juvenile in violation of a statute as is required to obtain a conviction of an adult for the same offense. Under La. 15:43s and State v. Smith, 339 So.2d 829 (La.1976), Arnold Anderson cannot be found guilty of Simple Criminal Damage to Property solely on circumstantial evidence, unless the facts proved by such evidence exclude every reasonable hypothesis of innocence.

Defense Counsel argues that the State failed to prove that Anderson, himself, committed an “intentional damaging of property” under R.S. 14:56 . We agree. At most, “Rocky” Jones, another person at the car wash with Anderson, threw an object down. This in itself would not prove that either boy damaged the coin receptacle at the ear wash, and certainly does not prove Anderson guilty of anything.

Under the facts and proof presented, this Court cannot find that the State met its burden of excluding every reasonable hypothesis of innocence, and, accordingly, we hereby reverse the conviction of Anderson.

REVERSED.

      . R.S. 15:438
      The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

      . R.S. 14:56
      A. Simple criminal damage to property is the intentional damaging of any property of
      ■ another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.
      B. Whoever commits the crime of simple criminal damage to property, where the damage is less than five hundred dollars, shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.
      Where the damage amounts to five hundred dollars but less than fifty thousand dollars, the offender shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both.
      Where the damage amounts to fifty thousand dollars or more, the offender shall be fined not more than ten thousand dollars, or imprisoned with or without hard labor for not less than one nor more than ten years, or both.


text:
    Lela Gladys Lovell FITCH v. Richard Allen FITCH.
    No. 5-50.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 6, 1982.
    Leonard K. Fisher, Jr., Boutte, for plaintiff-appellee.
    Emile St. Pierre, Destrehan, for defendant-appellant.
    Before SAMUEL, BOWES and GAUDIN, JJ.
   BOWES, Judge.

The sole issue in this ease is the adequacy of a permanent alimony award to the wife after her divorce. The husband has appealed the judgment of the trial court awarding the wife $135.00 per week. We affirm the trial court’s ruling.

The appellant first argues that Mrs. Fitch, the wife, failed to prove that she was free from fault in order to be entitled to permanent alimony under La.C.C. Article 160. However, there was a default judgment of separation entered on March 15, 1979, against the appellant and in favor of Mrs. Fitch, whose petition was based on allegations of abandonment. Subsequently, a judgment of divorce was rendered on February 10, 1981, again in favor of Mrs. Fitch. Nowhere in these proceedings was Mrs. Fitch’s fault brought up as a barrier to her permanent alimony. In fact, the record is devoid of any evidence which might indicate that Mrs. Fitch was even partially at fault. In our opinion, the trial court must have concluded that Mr. Fitch abandoned his wife without lawful cause and, hence, that she was not at fault.

Appellant next contends that Mrs. Fitch failed to fulfill her burden of proof in showing that she was incapable of obtaining employment. Civil Code Article 160 provides that in determining alimony, the Court shall consider a spouse’s earning capability, in light of all other circumstances. Such circumstances would include age, health, education, time necessary to acquire needed job training or skills and other obligations of a spouse. The record in this case reveals that Mrs. Fitch was 59 years old, unemployed, and had no training or skill which would allow her to seek immediate or gainful employment. Because of her advanced age, the time required to seek and develop any skill or training would be an additional barrier to her employment. The record further reveals that Mrs. Fitch’s health was questionable as far as seeking employment was concerned, in that she suffers from an eye condition which is apparently incurable and would hinder her in nearly all work endeavors. From a realistic view, her earning capability is negligible, considering that she is a 59-year old woman with eye problems and no particular job skill that can be utilized now. There was some testimony by Mrs. Fitch that she was qualified as a data processor. However, she was unable to work in this field anymore because of her eye problems. As a practical matter, she would be totally incapable of competing with the average job seeker in the labor force. In any event, employment by Mrs. Fitch is highly speculative and, should she later become employed, the judgment of the trial court could be modified or terminated as the need may be at that time.

Counsel for the husband also asserts that Mrs. Fitch did not prove that she had insufficient means for her maintenance under Civil Code Article 160. Maintenance, according to the appellant, includes only the basic necessities of life, such as food, clothing and shelter. However, in Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973), the Louisiana Supreme Court held that the party seeking permanent alimony was entitled to not simply food, clothing and shelter, but also to “transportation and automobile expenses, medical and drug expenses, utilities, household expenses, and income tax liability generated by alimony payments.” The trial court in the present case had before it an itemized list of expenses and income of both parties. Additionally, the trial court had before it full evidence disclosing the financial situation of Mr. Fitch. It appears that the trial court felt that any income Mrs. Fitch had or was able to earn is far below that which would be required to meet her stated expenses. There was no evidence that the trial judge did not consider all of this evidence in arriving at an alimony figure.

Finally, the appellant complains that it is incongruous for the trial court to award $450 for alimony pendente lite, which, theoretically under the law, should be sufficient to allow the wife to live in the manner and style to which she was accustomed during the marriage, whereas it awarded a greater sum for permanent alimony, which legally under Civil Code Article 160 should only include maintenance and support. However, we note that there was very little or no testimony and evidence presented to the district court before its award of alimony pendente lite. In contrast, the court’s higher award of permanent alimony was determined after the hearing of much testimony and statistical evidence. Accordingly, it appears that the trial judge had more evidence on which to base a more carefully-considered decision in his permanent alimony award.

It is well settled that a trial judge is vested with much discretion in determining the appropriate amount of alimony. Only if a trial judge abuses his great discretion and goes beyond the acceptable range of alimony awards, given the circumstances of the parties, is the award to be adjusted or reversed. Super v. Super, 397 So.2d 1084 (La.1981); Gautreaux v. Gautreaux, 382 So.2d 996 (La.1980). The record in this case reveals that the trial judge had before him detailed evidence concerning the income, expenses, and earning capability of each spouse. There is no showing by the appellant that the trial judge did not consider all the evidence which was before him or that he abused his discretion in this matter. We must conclude that the trial judge heard and considered all the testimony of both parties and that his decision reflected the weight which he accorded to each spouse’s testimony.

We, therefore, find that the trial court did not abuse its discretion in this case and, accordingly, we affirm the permanent alimony award of $135.00 per week to the wife, appellant to pay all costs.

AFFIRMED.


author: STOKER, Judge. DOMENGEAUX, Judge, DOUCET, Judge, FORET, Judge,

text:
    John Earl Harrington and Jennifer Meaux applying for ADOPTION OF Jason Michael MEAUX.
    No. 82-103.
    Court of Appeal of Louisiana, Third Circuit.
    July 12, 1982.
    Patricia Thomas, Abbeville, for plaintiff-appellant.
    Before CULPEPPER, DOMENGEAUX, FORET, STOKER and DOUCET, JJ.
   STOKER, Judge.

This is an appeal from an order of the trial court rejecting appellant’s application for the adoption of a minor child, Jason Michael Meaux. Petitioners are not married to each other but allege that they are the natural parents of the child. Exhibit “A” attached to the petition lists the adoptive child’s birthday as August 4, 1980.

The trial court refused petitioner’s application because “John Earl Harrington and Jennifer Meaux, both single individuals petitioning jointly, are not persons who may petition for adoption under La.-R.S. 9:422.” LSA-R.S. 9:422 reads as follows:

§ 422. Persons who may petition for adoption
“A single person eighteen years or older, or a married couple jointly, may petition to adopt a child. When one joint petitioner dies, proceedings may continue as though the survivor was a single original petitioner. If one of the spouses is the legitimate parent of the child to be adopted the other spouse may adopt the child with the written consent of the legitimate parent who need not join in the petition nor be served with a copy thereof. A judgment of adoption awarded to one spouse shall not alter the relationship of the child to the spouse who is the legitimate parent.
Amended by Acts 1975, No. 421, § 1; Acts 1978, No. 714, § 1.”

Petitioners admit that neither of them is the legitimate parent of Jason Michael Meaux. Petitioners are not a married couple. As two single persons jointly petitioning to become the adoptive parents, they are not “a single person” under the statute. Therefore, the statute does not authorize petitioners to jointly adopt their natural child. In their petition and in their brief petitioners allege that they both have children by prior marriages which have terminated; they also allege that at the time of conception and at the time of the birth of Jason there were legal impediments to their marriage. They express concern for the property rights of their natural son. This concern may explain petitioner’s motivation. However, this motivation cannot affect the plain language of LSA-R.S. 9:422. The trial court’s ruling was correct and we affirm its decree. Costs of this appeal will be assessed to appellants.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOUCET and FORET, JJ., dissent and assign reasons.

DOMENGEAUX, Judge,

concurring.

I agree completely that there is no procedural device in our law to allow these unmarried parents to jointly adopt their natural child. If we allowed this adoption, our action would amount to raw judicial legislation.

The record indicates that the adoption would probably be allowed if John and Jennifer were married. There appears to be no impediment to such a union. Such being the case, it seems to me that the simple way to achieve their aims is for them to get married. The modern institution of marriage, after all, has been in vogue in civilized society for thousands of years.

DOUCET, Judge,

dissenting.

Petitioners in this adoption case are the natural parents of Jason Michael Meaux. Although the parents are not desirous of wedlock, and already have custody, they wish to insure their child’s legal rights of inheritance by adopting him. The requisite pre-adoption studies were made by the State of Louisiana, Department of Health and Human Resources. The investigation revealed the adoption would be in the best interest of the child. No one opposed the adoption. Nonetheless, the trial judge rejected their petition.

The majority holds, that as the law provides no procedural vehicle for adoption of a child by two single adults jointly, the trial judge’s rejection of the natural parents’ petition for adoption must be affirmed. I respectfully dissent, being of the opinion that decision turns the best interest of the child doctrine on its head, disregards parents’ natural rights and discriminates against the innocent child sought to be adopted.

The paramount concern in adoption proceedings is, of course, the best interest of the child. Equally well established is that our adoption laws are to be construed in favor of the natural parent. With these rules in mind, I believe Civ.Code Art. 21 allows us to grant the relief prayed for. Such a result is supported by logic, reason and justice. Two parents are better than one. To hold to the contrary would require one parent to relinquish all rights and obligations in order that the other may adopt, and, in effect, punish the illegitimate child for the misdeeds of his parents.

This is an unprovided-for case. Because ours is a free society and Louisiana is a civil law jurisdiction, the absence of express law does not imply a prohibition upon the petitioners or this court. Inasmuch as our adoption laws are designed to protect, not destroy, the natural rights of parents, I do not believe R.S. 9:422 can be construed as providing an exclusive list of remedies. Such an interpretation is consonant with constitutional prohibitions against discrimination based on birth. Thus, the silence of positive law requires we proceed according to equity as we are bound to do under C.C. Art. 21. Under Louisiana law, where the law is silent as to the remedy invoked but does not forbid it, the test is whether the ends of justice will be promoted by enforcement of the remedy. Miller v. Kellerman, 228 F.Supp. 446 (D.C.La.1964), aff’d. 354 F.2d 46, cert. denied 384 U.S. 951, 86 S.Ct. 1571, 16 L.Ed.2d 548. See also Justice Dennis’ concurrence in Lovell v. Lovell, 378 So.2d 418 at 422 (La.1979) and his original opinion in Loyacano v. Loyacano, 358 So.2d 304 (La.1978) and Geny, Method of Interpretation (La. Law Inst, trans.) § 105. Applying equity I believe that the best interest of the child and due regard for natural rights of the parents dictates that we allow the relief sought.

One might ask “Why don’t petitioners get married?”. Jennifer Meaux and John Harrington obviously have personal reasons for choosing their course of action. Both have experienced unsuccessful marriages prior to the relationship enjoyed now and consider their present status (not uncommon in this day and age ) to be most suitable. To state that petitioners can achieve their aim via marriage is to take an overly simplistic view of the institution. Moreover, the morality of their living arrangement is not before this court. Even assuming that adulteries are a social evil that endangers the sanctity of marriages, visiting this condemnation upon the infant is unjust. Succession of Robbins, 349 So.2d 276, 279 (La. 1977). The issue before us is the best interest of the child. The record clearly shows the adoption to be in the child’s best interest. Nevertheless, due to legalese, the majority requires the child to remain legally parentless.

Statutory procedures are not to be blindly followed; the paramount concern is the best interest of the child. Adoption of La-tiolais, 376 So.2d 555 (La.App. 3rd Cir. 1979) per Stoker, J.; aff’d. 384 So.2d 377 (La. 1980). In Latiolais the court noted with regard to R.S. 9:422.1, dispensing with the requirement of parental consent in cases of non-support, that “adoption should be granted in the absence of extenuating circumstances or ‘just cause’. We also noted that just cause was a ‘jurisprudential addendum to the statute’.” The court therein further noted that adoption statutes must be construed to protect parents’ rights. Just as an adoption may be denied despite statutory qualification, as in Latiolais, it should also be granted where the best interests of the child require it, notwithstanding the absence of any express provisions for parental adoption.

See also the opinion of Foret, J. in In Re Simon, 406 So.2d 266 (La.App. 3rd Cir. 1981) wherein it was held that a hiatus in the law would not prevent an adoption in the best interests of the child.

In conclusion, I do not believe the child should suffer because of a hiatus in the law; rather we should proceed according to equity as we are bound to do under Art. 21 and allow the adoption. Accordingly, I respectfully dissent.

FORET, Judge,

dissenting.

I respectfully dissent for the reasons stated in In Re Simon, 406 So.2d 266 (La.App. 3 Cir. 1981), and for the further reasons stated by the Louisiana Supreme Court in In Re Ryals, 231 La. 683, 92 So.2d 581 (1957).

I further dissent for the reason that, in my opinion, the majority places too narrow an interpretation of the language of R.S. 9:422. Does the term “a single person” mean an unmarried person, or a single person in the numerical sense? At the very least then, the statute is ambiguous, and inasmuch as adoptions are favored in law, then the statute should be interpreted in its broadest possible sense, and the ambiguity should be resolved in favor of the child sought to be adopted.

We see decision after decision using the language, “in the best interest of the child”. Although this is a vague and nebulous notion, for lack of a better statement, it will suffice. The majority decision in this case is in the worst interest of this child. The concurring opinion makes a religious or so-called moral issue out of this case. This is not our function. Whether these people get married or not is none of our business, or anyone else’s business, for that matter, and to punish this child and relegate it to a status of illegitimacy simply because the parents are not married is ludicrous indeed. Certainly, we all favor the social and/or legal institution of marriage, but our personal views are of no moment in our judicial opinions.

To reiterate, I would say that the majority decision serves in the worst interest of this child, and the trial court judgment should be reversed under the two decisions which I have cited above where this Court and the Supreme Court decreed adoptions even though no statutory authority existed therefor. Even if we disregarded these decisions, in my view, under La.C.C. Article 21, equity would justify our ruling in favor of the petitioners.

      . Accordingly I do not believe allowing the adoption would amount to “raw judicial legislation” but, instead, would be a recognition of our obligation to do equity pursuant to Art. 21. In my opinion judicial legislation exists where a court acts contrary to clear legislative policy, e.g. see the concurrence in Wright v. Wright, 407 So.2d 1298 (La.App. 3rd Cir. 1981), wherein the maternal preference rule was judicially reinstated following legislative overruling of the doctrine.

      . Related hereto is the fact that 20% of all children born today in Louisiana are illegitimate. Lorio, Succession Rights of Illegitimates in Louisiana, 24 Loy.L.Rev. 1 (1978).

      .In the author’s opinion, denial of plaintiff’s petition does not promote family life by discouraging illegitimacy. Instead it effects an arbitrary, capricious, unreasonable discrimination on the basis of birth. In a similar context, the United States Supreme Court has observed: “... We have expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.” Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).


author: REDMANN, Chief Judge.

text:
    Hoc Van NGUYEN v. LENGSFIELD BROTHERS, INC. et al.
    No. 12643.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 19, 1982.
    Rehearing Denied Aug. 19, 1982.

      Samuel Richard Exnicios, Exnicios & Nungesser, New Orleans, for plaintiff-appellant.
    Claude D. Vasser, Jones, Walker, Wae-chter, Poitevant, Carrere & Denegre, New Orleans, for defendants-appellees.
    REDMANN, C. J., and SCHOTT and KLEES, JJ.
   REDMANN, Chief Judge.

Plaintiff in this workers’ compensation case appeals from a judgment ordering that “the consent judgment of settlement verbally approved by the Court ... is to be given full force and effect” and denying plaintiff’s motion to set aside his earlier verbal consent in the presence of the judge. The question is whether the settlement had already become binding before plaintiff moved to withdraw his consent although no joint petition had been filed to approve the settlement and no judgment had been signed.

The case had been set for trial on the merits on March 25, 1980. A transcript of proceedings of that day begins with the trial judge announcing

We have reached a settlement in the amount of $12,500 which the Court feels, under the Dusang [v. Beck ] case [379 So.2d 775 (La. App. 4 Cir. 1979) ], is a fair approved settlement. There would be more money had the Dusang case not come out, so to speak .... [Addressing plaintiff] Do you understand everything I have said? A. Yes, sir. Q. There will be no more monies, do you understand that? A. Yes, I do. Q. [Addressing plaintiff’s counsel] Mr. Exnicios, as his attorney you approve of the settlement? A. Yes. THE COURT: Let the record reflect the Court will approve the settlement. You process the papers and get the proper release and I will sign the judgment.

Dusang had been decided by this court on December 6, 1979. It had awarded only partial disability benefits to a worker who continued to work although in substantial pain. That was allegedly plaintiff’s situation. Because partial disability benefits are computed only on the difference in wages, La.R.S. 23:1221(3), and plaintiff was continuing to earn wages, the proposed settlement was a reasonable one in the light of Dusang as of March 25, 1980.

But on April 7, 1980, the Louisiana supreme court decided Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La. 1980), which awarded total disability benefits to a worker who continued to work although in substantial pain.

On May 12, 1980, prior to any further action of record in the present case, plaintiff moved for an appeal from the “consent judgment rendered and approved” March 25, pointing out that Whitaker had meanwhile been decided. That motion was on May 13 “Refused: cannot appeal a workmen’s compensation settlement judgment.”

On May 13 plaintiff filed a rule to set aside the “consent judgment” of March 25 and that rule was heard July 14 on stipulated facts. The stipulation was that plaintiff and his counsel first orally informed defense counsel that they “withdrew and refused to go through with” the settlement, but that they did “as a courtesy to” defense counsel place their signatures on the joint petition for compromise and receipt for $12,500 already prepared by defense counsel.

In light of that stipulation, we first conclude that plaintiff’s signing of the joint petition was not intended to have legal force (and it was in any case not presented to the court before July 14), and we therefore deem the question to be whether prior to the filing of a joint petition and the signing of a judgment, one can withdraw from a proposed workers’ compensation settlement orally agreed to at the time set for trial on the merits and then approved by the trial judge after discussing its terms with the claimant.

We first note that Smith v. Cajun Insulation, Inc., 392 So.2d 398, 401 (La.1980), stressed the mandatory language of La.R.S. 23:1272, governing the procedure for compensation settlements:

A reading of these provisions clearly indicates that the legislature intended to set mandatory guidelines for the approval of a compensation settlement. The parties to the agreement “shall” present a verified petition. The judge “shall, in every case”, discuss the settlement terms with the employee ....

Smith held a settlement annullable for failure of the judge to discuss its terms with the worker, and is thus not squarely controlling in our case.

Jasmin v. Gainey, Inc., 357 So.2d 539, 540-541 (La.1978), also stressed the mandatory language:

L.S.A.-R.S. 23:1272 specifically provides that a workmen’s compensation compromise must be approved by the court upon a joint petition verified by all parties. Therefore, absent compliance with this procedure, there is no settlement.

Jasmin, too, might be distinguished on its facts, but the fact remains that our supreme court has twice in recent years construed the language of R.S. 23:1272 as making compliance with its terms essential to the validity of a settlement.

One might suppose that just as La.C.C. 3071 requires an ordinary compromise to be embodied in a writing before it can become binding, Charbonnet v. Ochsner, 246 So.2d 844 (La.1971), so also R.S. 23:1272 requires the compromise of a workers’ compensation claim to be embodied in a judgment before it can become binding.

Defendant argues that Martin v. Holzer Sheet Metal Wks., Inc., 376 So.2d 500 (La.1979), held the parties to a workers’ compensation case bound by their oral consent at trial time to a judgment thereafter entered, and that the writing requirement of C.C. 3071 is inapplicable in such a case. Martin, however, was not a case of a compromise, but of a confession of judgment for 100% of plaintiff’s demand. Defendant orally confessed judgment for the maximum liability that the law allowed (total and permanent disability benefits plus all medicals) and therefore the plaintiff worker did not compromise his claim in the least: there cannot have been any “bona fide dispute,” R.S. 23:1271, see Dufrene v. Aetna Casualty & S. Co., 298 So.2d 724 (La.1974), that could have been the basis of compromise by the parties. C.C. 3071 defines compromise as “adjust[ment of] their differences by mutual consent ... which every one of them prefers to the hope of gaining, balanced by the danger of losing.” A defendant who agrees to pay 100% has not “adjusted” so as to avoid “the danger of losing,” but has conceded that he or she loses; and the plaintiff who accepts 100% has similarly made no such adjustment, has made no compromise. (What defendant further did in Martin was agree to a lump-sum payment, a matter strictly controlled by R.S. 23:1274, limiting discount to 8% and requiring court approval. But a worker has no right whatsoever to be paid a lump sum, and there equally cannot have been any “compromise” of any differences in that respect.)

Thus Martin is, to repeat, a case not of compromise but of simple confession of judgment.

Martin also differs procedurally from our case in that in Martin the judgment had been orally rendered at the time of the oral agreement and was already signed in accordance with the terms stipulated before any record effort to abort. Martin notes, 376 So.2d at 502, “The employer’s attorney did not object to the provisions of the judgment, insofar as the record shows,” and footnotes at 503, n.2, the contention “based on evidence not in the record ... that he called [his non-agreement with the lump-sum aspect] to the trial judge’s attention to no avail before the judgment was actually rendered and signed.” In our case, the trial judge did not render the judgment at the time of settlement, and the record does show that plaintiff attempted by two separate procedural devices to revoke the proposed settlement prior to any filing of “the papers” the trial judge wanted as a prerequisite to signing the judgment.

Bourgeois v. Franklin, 389 So.2d 358 (La.1980), affords further insight into Martin. Bourgeois was an ordinary action for delic-tual damages in which, during the second day of jury trial, counsel announced in open court that they had reached a settlement whose terms they specified. Bourgeois held that settlement unenforceable because it was not in writing as required by C.C. 3071. Bourgeois distinguished Martin, noting that in Martin the trial judge, “in open court, recited an oral judgment into the record, fully and specifically assented to by the parties,” constituting a “confession of judgment precluding an appeal under C.Civ.P. art. 2085” rather than a mere compromise. Bourgeois itself held that the mere declaration of a settlement in open court and the consequent discontinuance of the lawsuit did not suffice to make the compromise binding: it must first be reduced to writing as required by C.C. 3071.

We conclude that neither Martin nor Bourgeois is controlling. Our case is like Martin in that workers’ compensation, with a statutory requirement of a judgment, is involved rather than ordinary tort, with no such requirement; but it is like Bourgeois in that a compromise is involved rather than a simple confession of judgment.

Our decision, relying in part upon the basic rule that the provisions of the workers’ compensation statute should by liberal construction be enlarged rather than restricted, Hatten v. Olin Mathieson C. Corp., 112 So.2d 135 (La.App. 2 Cir. 1958), is that the attempted compromise of plaintiff’s workers’ compensation claims could not become finally binding upon him, and could not have defeated his entitlement to compensation benefits, until the judgment of approval was signed, and that his record attempts before judgment to withdraw from the proposed compromise precluded a judgment of approval. R.S. 23:1033 provides that “[n]o contract ... or device whatsoever shall operate to relieve the employer . . . from any liability created by this [workers’ compensation] Chapter except as herein provided.” R.S. 23:1272 therefore provides the exclusive device whereby liability may be extinguished by compromise, and until § 1272 has been fully complied with by judgment of approval the employer’s liability may be asserted by the employee. We repeat the words of Jasmin v. Gainey, Inc., quoted above: “absent compliance with the procedure, there is no settlement.”

The judgment appealed from is reversed and the matter is remanded for further proceedings consistent with this opinion. Costs are to await final outcome.

      . Affd 389 So.2d 367 (La. 1980). The supreme court distinguished its own intervening Whitaker on the facts.


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

text:
    In re Adoption of A Minor Child J. C. and N. C. v. NATURAL PARENTS, Scott County Welfare Department, D. E. S. and J. A. S., Intervenors.
    No. 53321.
    Supreme Court of Mississippi.
    March 10, 1982.
    Rehearing Denied Aug. 11, 1982.
    Jerry L. Bustin, Forest, for appellants.
    Garland D. Upton, Columbia, Joseph A. Gentile, Jackson, for appellee.
   DAN M. LEE, Justice,

for the Court:

This appeal evolves from the Chancery Court of Scott County wherein J. C. and N. C., appellants, sought to adopt an infant child born November 21,1980, and placed in their home on January 8,1981, by the Scott County Welfare Department pursuant to a placement contract for foster care. After obtaining a surrender of parental rights and consent to adoption from the natural parents while both were incarcerated in jail, the Scott County Welfare Department sought to place the child with D. E. S. and J. A. S., intervenors, as prospective adoptive parents. From a decree dismissing their petition for adoption, the appellants appeal. We reverse.

In November of 1980, several reports from various citizens were received by the Scott County Welfare Department concerning the neglect of eight minor children, one of whom is the child involved in this proceeding. After several investigations into the home were conducted, the Scott County Welfare Department petitioned and obtained temporary custody of the children on January 8, 1981. Seven of the children were placed in emergency shelters while the youngest child, born November 21, 1980, was placed with the appellants who were licensed as a foster care home. Three other children resided with the appellants at this time under foster care. At the same time these children were picked up by the welfare department, the natural mother was arrested and placed in jail on charges of food stamp fraud. The natural father was also arrested and placed in jail on charges of grand larceny and auto theft when he tried to post bond for his wife’s release.

When the infant was placed with the appellants, it was in dire need of medical attention. The child was subsequently hospitalized where she remained for about five days.

On January 13,1981, the welfare department obtained a surrender of parental rights and consent to adoption on all eight children from the natural mother while she was still incarcerated. Employees of the department who obtained the release, asserted the natural mother did so of her own free will, without any threats, promises, coercion or duress, and only after the same had been read and fully explained to the mother. The natural mother, who had limited education, denied this.

The welfare department also obtained a surrender of parental rights and consent to adoption on all eight children from the natural father on January 20, 1981, while he remained incarcerated. The employees of the department asserted the same procedure was followed with the father as with the mother and his signature was obtained of his own free will without threats, promises, coercion or duress. The father, who had no education, asserted he was promised to be released from jail upon signing the documents. Both parents testified they signed the papers conditioned upon the infant child remaining with the appellants.

Although the appellants were not licensed as a prospective adoption home, they believed that if the baby came up for adoption, they would have the first option of adopting the child. The appellants stated they would not have taken the child in the first place had they not been promised by employees of the welfare department that they would be able to adopt. Although employees of the welfare department denied representing to the appellants they would be considered as adoptive parents if the chance arose, Pat Dilley admitted she discussed adoption with the appellants. Mrs. Dilley also told the appellants she saw no problem with obtaining a license for their home as a prospective adoption home since it had already been licensed as a foster care home. These representations were made at the same time the appellants were discussing their desire to adopt the infant child.

The appellants subsequently obtained a consent to adopt in their favor from both natural parents when it was discovered the child was going to be taken from their custody and placed in a prospective adoption home. Thereafter, they filed a petition for adoption of the child with the Chancery Court of Scott County. The natural parents entered a waiver of process and entry of appearance consenting to the adoption by the appellants. The welfare department denied that the appellants were entitled to adopt the child, urging that surrender of parental rights and consent to adopt executed by the natural parents were irrevocable and the foster care agreement under which the child was placed in their home precluded adoption by the appellants. The intervenors, who had been approved by the welfare department as a prospective adoptive home in 1976, and petitioned the Marion County Chancery Court for adoption of the child subsequent to the appellants’ petition, were allowed to intervene. The chancellor dismissed the appellants’ petition, finding the surrender of parental rights and consent to adoption executed in favor of the welfare department irrevocable and the agreement under which the child was placed in the appellants’ home prevented adoption of the child by the appellants.

The chancellor, in his finding of facts, stated:

This Court is aware of the attachment that in all probability came into existence between the [appellants] and this child but this Court is bound by law to uphold the agreements and covenants that the [natural parents] made with the Welfare Department on January 8, 1981, and the few days following. The Court is also aware of the desire of the [appellants] to adopt this child and also of the feeling that apparently exists among their friends and acquaintances in seeing that they are permitted to perfect this adoption; but here again, this Court feels and so finds that it is duty bound under the provisions of the law and must and does dismiss all personal consideration of any and all political influence and political pressures so that the law can and must be upheld. The [appellants] have the child in this action solely as a foster care placement and not for the purpose of adoption.

The chancellor evidently excluded the appellants from consideration as adoptive parents based on the following provision embodied in the “contract for designation of Foster Home” to which the appellants were a party:

We understand that the actual permanent legal custody of children placed in our home for Foster Care will remain in either the natural parent or parents of the child or the Department according to the facts of the individual case, and that by placing a child in our home for foster care, the Department does not confer any right to custody in us, and we hereby expressly waive any right to custody of a child placed in our home for Foster Care and expressly agree that we will not attempt to adopt any child placed in our home for Foster Care unless the child is made free for adoption by the written decision and action of the State Department of Public Welfare.

The paramount concern in cases where custody of a child is involved is the child’s best interest. In the early case of Foster and Wife v. Alston, 7 Miss. 406 (1842), this Court held:

The law has given to our courts the most unbounded jurisdiction over minors. Fathers may be preferred to mothers— mothers to fathers — relatives to parents — or strangers to either, for the custody and care of minors, where the interests of the child require its exercise. Rev.Code, p. 64, 401, & c. (7 Miss, at 457)

This rule has since remained in full force and effect in this jurisdiction and was recently reaffirmed in Bloodworth v. Bloodworth, No. 53,033, decided February 17, 1982, not yet reported.

In our opinion, prospective adoption homes and foster care homes are not mutually exclusive. Carolyn S. Townes, Administrator of the Foster Care Section of the Welfare Department, testified that children had been placed in foster homes and later adopted by that home where the child was free for adoption and had remained with the foster home for many years, creating an emotional bond with the foster parents. Although Mrs. Townes knew of no cases where this had been done with an infant child, she asserted each situation was dealt with on a case-by-case basis. Pat Dilley also testified that being licensed as a foster home was definitely an advantage to becoming a licensed adoptive home.

The chancery courts may order an investigation as to whether the prospective adopting parents are suitable for the child; however, such reports are certainly not conclusive on the courts if deemed not to be in the child’s best interest. See Miss.Code Ann. § 93-17-11 (1972). Stability of environment is certainly an important aspect of the welfare of the child. Clark’s Law of Domestic Relations § 18.4 (1968). The legislature has also recognized the importance of ties between prospective adopting parents and children by allowing the chancery court to waive an interlocutory decree in adoption proceedings where the child has previously resided with the adopting parents. Miss.Code Ann. § 93-17-13 (1972).

The chancellor in the case sub judice compounded the problem by granting this appeal with supersedeas. The infant child is now approximately fifteen months old. "The child has~resided~wr£H"T^"apnellants ...since it was about seven weeks old. During this period there' carT’be no doubt that the child has become emotionally attached to the appellants. A severance of this relationship during this very important and impressionable age may not be in the child’s best interest.

It is our opinion that the chancellor was manifestly in error when he excluded the appellants from consideration as adoptive parents. The primary concern must be the child’s best interest. Therefore, we reverse and remand this cause for a new trial.

REVERSED AND REMANDED.

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

PATTERSON, C. J., SUGG, P. J., and BROOM, J., dissent.

ROY NOBLE LEE, J., took no part.

BROOM, Justice,

dissenting:

I must dissent from the majority decision because, in a real sense, I do not think the appellants (the adopting parents) have posture to maintain their petition for adoption. My reasons are as follows. Prior to the birth of the baby, the appellants several months earlier on June 1, 1980, signed and executed a document entitled Contract for Designation of Foster Home. The first paragraph (unnumbered) in the Contract provided that the appellants accepted children into their home which they operated as a foster care home “upon the terms, conditions, and understandings contained in Part A of this Contract....” Part A(l) of the Contract provides:

We understand that the actual permanent legal custody of children placed in our home for Foster Care will remain in either the natural parent or parents of the child or the Department according to the facts of the individual case, and that by placing a child in our home for foster care, the Department does not confer any right to custody in us, and we hereby expressly waive any right to custody of a child placed in our home for Foster Care and expressly agree that we will not attempt to adopt any child placed in our home for Foster Care unless the child is made free for adoption by the written decision and action of the State Department of Public Welfare, (emphasis added)

The Contract also provides:

We clearly understand that the Department will be attempting as quickly as possible to establish permanent homes for all children entrusted to the Department’s custody, preferably in the home of the child’s natural parents, and we agree to cooperate with the Department in carrying out the Department’s plans for any Foster Child placed in our home, including the plan to return a child to its parents, to transfer a child to another foster home or institution, or any other plan which the Department may have.
We understand that all foster children placed in our home are wards of the State of Mississippi and we agree to obey all laws of the State of Mississippi regarding foster children and all of the regulations of the State Department of Public Welfare concerning foster children and we expressly agree to the following rules:
A. We agree to carry out all directions of the Department for care of the foster child and to cooperate ....

Paragraph F of Number 4, Part A of the Contract provides:

F. We agree to deal with the Department and not with the parents, relative to any complaint or suggestions concerning the child ....

Part B of the Contract provides that the Department would pay unto the appellants compensation for care of foster children kept by the appellants in their home.

At the trial, the appellants contended, as they argue in their briefs now before us, that there was a binding contractual obligation of the State Welfare Department entered into between Agents of Scott County Welfare Department and the appellants based upon an alleged promise made to them by welfare workers that they could adopt the infant child. They say that they would never have assumed the care of the child “who was gravely ill had they not expected to benefit under promise of final adoption. . .. ” After the appellants’ testimony about the alleged promise that they could adopt the child, welfare employee McCann testified and denied any promise that the appellants could adopt the child. Scott County social worker Pat Dilley gave similar testimony denying that she indicated to the appellants that they might adopt the child. In his fact finding, the chancellor, upon sharply disputed conflicting testimony, found against the appellants on the issue of any member of the Welfare Department having promised them anything with reference to their desired adoption of the child.

Upon this record as made it is my considered opinion that the appellants should not be heard to pursue their adoption petition. There seems to be an understanding on the part of the majority of the Court that the Contract somehow or other did not bind the appellants so as to prohibit them from adopting the child. I think the Contract logically can be construed in no other way except as to prohibit these appellants from pursuing their adoption petition. The Contract was within the clear purview of the legislators of this state when they enacted our laws dealing with child welfare. Mississippi Code Annotated section 43-15-5 (Repl.1981) specifically grants the State Department of Public Welfare the authority and duty to administer and supervise all public child welfare services “including those services, responsibilities, duties and powers with which the county departments of public welfare are charged and empowered in this chapter . .. provide for the care of dependent and neglected children in foster family homes ..., supervise the care of such children.. .. ” There can be no doubt, and indeed it is not even contended in the present case, that the child in question is not a neglected child and under the supervision of the welfare agency of this state.

Mississippi Code Annotated section 43-15-5 (Repl.1981) vests the department with the duty and power to “administer” a system of plans, etc. for each “neglected” child, which system shall enhance the life of such child and includes the function of placing the child “in a permanent adoptive home.” This statute specifically authorizes and recognizes that the welfare department is given the function of placing the child in a permanent adoptive home, which they sought to do in this case in the home of intervening objectors to the adoption petition of the appellants.

Mississippi Code Annotated section 43-15-15 (Repl.1981) imposes upon the State Department of Public Welfare the responsibility to keep a registry of children of various categories, including under subsection (d) “children freed for adoption.” The next succeeding statute, Mississippi Code Annotated section 43-15-19 (Repl.1981), requires the department to maintain “a Mississippi Adoption Resource Exchange registry, which shall contain a ... listing of all persons who wish to adopt children.... ” This same section requires that the registry “be distributed to all county welfare directors” within the state. Section 43-15-5, supra, grants the State Department of Public Welfare the authority and duty to administer or supervise all the welfare services, “including those services, responsibilities, duties and powers with which the county departments of public welfare are charged and empowered in this chapter ... provide for the care of dependent and neglected children ... supervise the care of such children. ... ”

There can be no doubt that the contract executed by the appellants is clearly contemplated by the statutory enactments referred to above vesting in the welfare department and directing said department to supervise and manage a system providing for the care of neglected children and their adoption. The statute specifically recognized the keeping of a “registry” list of children suitable for adoption and a list of parents who desired to adopt such children.

It is noted that in the Contract that Part A, subparagraph 1, binds the foster parents (appellants) not to attempt adoption of any child placed in their home for foster care “unless the child is made free for adoption by the written decision and action of the State Department of Public Welfare.” There is absolutely nothing, not even a scintilla of evidence in the record, to show that the child in question had become “free for adoption” to the appellants by any written “decision and action” of the welfare department under Part A(l) of the contract executed by the appellants. No such written “decision and action” is referred to or discussed or relied upon by the majority decision. The reason such a “decision and action” is not referred to is simply this: such a decision is nonexistent. Nowhere in their briefs do the appellants themselves contend that the child was ever made free for adoption by the welfare department’s “decision” or “action.” According to the clear import of the statutes and the Contract, the child was not free for adoption to these appellants.

As quoted above, pursuant to the Contract the appellants covenanted “to cooperate with the department in carrying out the department’s plans for any foster child placed in their home.... ” Instead of cooperating with the department, they are litigating which is precisely what they covenanted not to do. Clearly, upon this record it was the department’s plans for the foster child in question to be placed for adoption according to the registry as authorized by the statutes, supra.

Subparagraph 4, Part A, of the Contract provides that the appellants were obligated “to obey all laws of the State of Mississippi regarding foster children and all of the regulations of the State Department of Public Welfare ... [and] carry out all directions of the department for the care of the foster child... . ” To the contrary, rather than carrying out the department’s directions the appellants are taking the very opposite position.

The appellants voluntarily executed the document discussed above which was obviously prepared by the Welfare Department as authorized by the statutes of this state. Having done so and thereby become operators of a “foster home,” the appellants should not now be heard to seek the adoption of a foster child kept in their home for compensation paid by the State Department of Public Welfare. My view is that persons who renege on a contract (such as that in this record) without which contract they could not have gained possession of the child, are not entitled to use the judiciary to accomplish what the contract prohibits, to-wit: adoption of the child by foster parents.

In their brief, the appellants argue that the chancellor erroneously permitted the “Welfare Department to attempt to place the child for adoption in a home solely based on a list of names secured by the .. . department and not in accordance with the best interest of the infant child.” What’s wrong with using the list which the cited statutes required? Had the list not been kept, the welfare employees would have been conducting their office in harum-sca-rum fashion, and in violation of state law. Contention is that the chancellor “abused his discretion by overlooking matters of close emotional ties between the appellants and the infant child.” The majority opinion, at least in part, is based upon the subjective rationale that the “child has become attached” to the appellants which may be said of every foster parent situation where persons operate foster care homes. There is no evidence or authority cited in the briefs or the majority decision to the effect that the chancellor was not acting “in accordance with the best interest” of the child.

From the contract discussed above it is clear that the appellants sought money from the State. To qualify for the money, they contracted to receive foster children from the Welfare Department and care for them as “Foster Parents” expressly covenanting (1) that they waived any right to custody of any such child, and (2) that they would not attempt to adopt any such child. On these conditions the appellants accepted from the Welfare Department several children including the child in controversy. They received pay for their services. One of the appellants (the adopting mother), was asked if she read the contract before signing it and she said, “I’m sure I did.” When the child became hospitalized, the Welfare Department paid the expenses, and at the time of the trial the appellants were still receiving foster care payments.

Another important factual aspect of the case is that when the appellants obtained the natural parents’ consent for the appellants to adopt the subject child, the appellants knew that the natural parents had already “signed their children for adoption.” The appellants knew that the children had not been “signed” to them (appellants) for any purpose except as foster parents but were “signed” to the welfare department. Such a surrender by the natural parents is irrevocable upon the record according to our recent decision in C.C.I. v. Natural Parents, 398 So.2d 220 (Miss.1981).

The majority decision of this Court will have the effect of totally disrupting and impairing the State Department of Public Welfare and every county welfare department in this state with reference to neglected children being placed for adoption. This Court is effectively nullifying the statutes cited and discussed above. Surely this Court does not mean that somehow the child was “freed for adoption” by its name being placed on the statutory adoption registry. The registry is required by our state statutes so as to enable the welfare offices to expedite adoption proceedings in an orderly manner. To allow the appellants to prevail here is in effect saying to them and to the whole world that once a child’s name is placed on the registry, then the first adoption petitioners who win the “foot racej’ and beat all others to the courthouse cfoor and file their petition first will somehow have priority over anyone else who has obeyed the law and gotten on the list by proper application and complying with established procedures. This just cannot be the intent of the legislature in enacting the statutes referred to above, and does not comport with good operational policies and standards which we should applaud and uphold. The welfare agencies should be permitted to operate in an orderly manner. The list of children is not the product or dream of some bureaucrat but is required by law. Such a list can be useful only if there is also kept a list of approved parents who have been investigated and found to be suitable and somehow matching the interest and needs of the child to be adopted. By its decision this Court has sanctioned the appellants’ unjustifiable repudiation of a solemn contract and allowed them to make an “end run” thereby magically projecting themselves ahead of the statutory list of others who seek to adopt a child in accordance with established procedures mandated by the legislature. The majority decision will render the list required by law to be meaningless and an exercise in futility. In this particular instance it is interesting to note that another child, a brother or sister of the child in issue, has already been placed with the other (would-be) adopting parents on the list of the welfare department. The action of the majority here is simply to encourage that these two siblings may be kept separate rather than together, which is contrary to nature itself. More importantly, the majority decision inevitably will have a chilling impact upon the efforts of welfare department administrators and employees to enhance the status of little children who should prudently and carefully be placed in homes for proper care. According to the majority decision, established orderly procedures used by the various welfare offices are being cast aside without judiciously considering their merits or logic. The majority decision, as I view it, is contrary to state law as expressed by the above-cited statutes which at trial were not even challenged on constitutional or public policy grounds.

The opinion adjudicates that the chancellor was “manifestly” in error when he “excluded the appellants from consideration as adoptive parents.” This is specifically what they contracted when for valuable considerations, they covenanted not to seek to adopt the child absent some “written decision and action” of the welfare department which clearly is not in evidence. Also, the majority opinion states “the child’s best interest” must be the primary concern. Effectively, this Court is stating that the chancellor erroneously failed to make a finding on either the facts or law as to the child’s “best interest.” In this regard, the welfare department in its answer denied that the appellants “are fit and suitable,” and also denied that “it, is in the best interest” of the child that appellants be granted the adoption. Upon these pleadings, after the testimony was presented, the chancellor made no specific finding on (1) the appellants’ fitness as adopting parents, or (2) the child’s “best interest.” Under Mississippi Code Annotated section 11-5-87 (1972), when requested by a litigant, the chancery court “shall find the facts specially and state separately its conclusions of law... . ” Here, no such finding was requested as to appellants’ “fitness” or the child’s “best interest” on which issue no request for a finding or ruling was made at trial. See McIntosh v. McIntosh, 378 So.2d 629 (Miss.1980); Gates v. Hinton, Miss., 27 So.2d 686 (1946). We held in General Tire & Rubber Co. v. Cooper, 176 Miss. 491, 165 So. 420 (1936), that unless a request is made pursuant to what is now section 11-5-87, or unless the chancellor made no attempt to comply with such a request, we will not remand for him to address an issue not specifically ruled upon at the first trial of the cause. Here the appellants made no such request, and for good reason. This is so because throughout all the testimony of the appellants themselves, a medical doctor, several welfare employees and other witnesses, not one question was propounded on whether the adoption sought by appellants would be in the child’s “best interest.” Having charged in their petition that the adoption by them would be “in the best interest” of the child, they assumed the burden of establishing the child’s “best interest” which they failed to do. No witness at all was asked about the child’s “best interest” and no witness uttered the words under discussion. Upon such a deficient record, the majority decision holds that the chancellor erred in not deciding the case upon “the child's best interest.” I am unwilling to hold the chancellor in error when there was not a question asked which even mentioned the “child’s best interest.”

Accordingly, I dissent, and will add that the Court is making a mistake which will result in seriously and unjustifiably impairing a state agency which has a most vital function: caring for neglected children.

PATTERSON, C. J., and SUGG, P. J., join this dissent.

      . Pursuant to Mississippi Code Annotated sections 93-17-25, 93-17-29 and 93-17-31 (1972), the names of the parties involved in this proceeding have been deleted and their initials substituted for confidentiality.


author: DARDEN, Justice,

text:
    George T. GRAHAM, Sr., Geraldine Howell, Admrx. for Estate of E. N. Howell & Robert J. Hensley d/b/a Hensley Electric Co. v. Jerry R. PUGH, Ind. & Gene Calvary, Jess Derrick & Weldon Brooks, Ind. and d/b/a Kawasaki of Corinth, A Partnership.
    No. 53468.
    Supreme Court of Mississippi.
    May 26, 1982.
    As Modified on Denial of Rehearing Aug. 11,1982.

      J. B. Garretty, Corinth, for appellants.
    Price, Krohn & McLemore, Robert G. Krohn, Corinth, for appellees.
    Before WALKER, DAN M. LEE and DARDEN, JJ.
   DARDEN, Justice,

for the Court:

This case comes from the Circuit Court of Alcorn County and involves an effort by workmen and a material supplier to impress a lien on real estate for work done toward renovating a building under Mississippi Code Annotated section 85-7-131 (Supp. 1981). There was also a claim of personal liability of the owners and tenant for the work and materials. We reverse for further consideration of the claim of lien and the personal liability of the tenant. We affirm the holding that the owners are not personally liable to appellants.

Calvary, Derrick and Brooks, were the owners of the property involved here. Calvary testified and there was a stipulation that the other two owners would testify to the same facts that he did if they had been called to the stand. Calvary’s testimony was that a man named Van Thomas came to him and stated that he was looking for a building because he had some people who wanted to put in a fast food operation under a franchise called Friar-Tuck. Calvary indicated that he and his co-owners were interested in leasing the building involved here and Van Thomas, as Calvary said, “set up the whole thing.” For his services Van Thomas was to receive $50.00 per month from the owners of the building from the rental that they were to receive for the use of their building by the fast food chain.

Van Thomas got in touch with the defendant, Jerry R. Pugh, and Pugh undertook to purchase the franchise for the fast food operation from Mid-South Fast Foods Inc., a company that was domiciled in Tennessee. Van Thomas then had a lease contract drawn up which was executed by the tluee defendants, owners of the property, as lessors, and the defendant, Jerry Pugh, as lessee. The lease contract contained the following provisions:

4.It is a condition of this Lease agreement that Lessee shall make substantial improvements to buildings and parking areas situated on the demised premises, suitable and acceptable to Lessors, on or before the 15th day of October, 1978. It is a further condition of this Lease that these improvements shall be in the minimum amount of $10,000.00 as measured by the ordinary, reasonable and customary cost for such improvements in Corinth, Alcorn County, Mississippi in August of 1978.
13. At all times during the term of this Lease, Lessors shall have the right, by themselves, their agents and employees, to enter into and upon said premises during reasonable business hours for the purpose of examining and inspecting the same and determining whether the Lessee shall have complied with his obligations hereunder in respect to the maintenance of the premises and the repair or rebuilding of the improvements thereon.

Robert F. McKinney was the president of Mid-South Fast Foods, Inc. When the lease was entered into between the owners and Pugh, Van Thomas carried the lease to Memphis to McKinney. The owners were aware of the fact that Pugh was dealing with Mid-South Fast Foods. The lease was dated July 13, 1978, and prior to that time, on July 6, 1978, Pugh had entered into a contract with Mid-South Fast Foods which contained the following provisions:

Mid South Fast Foods, Inc. hereby agrees to the following:
1.) Contract and pay for all remodeling, (if necessary) of a location to be selected for a Friar Tuck Restaurant in Corinth, Mississippi.
2.) Contract and pay for all electrical, heating, cooling, etc. at such location.
3.) Contract and pay for site preparation, grading and paving at such location.
4.) Set up accounts and pay for all materials used in the above mentioned.
In return for the aforementioned, Jerry R. Pugh agrees to the following:
1.) Repay to Mid South Fast Foods, Inc. the entire sum encoured [sic] by Mid South Fast Foods, Inc.

The method of payment was then set out in that contract.

On the strength of the agreement with Mid-South Fast Foods and the lease contract that he had entered into with the owners of the property, Pugh went to Selma, Tennessee and got in touch with George Graham, Sr., a builder and one of the plaintiffs in this case. Pugh asked him if he wanted to do some work for a Tennessee concern that was interested in setting up a fast food operation in Corinth. Graham got in touch with McKinney and agreed to do the work on the building according to McKinney’s instructions, directions and plans. Graham began work on August 28 and performed labor on the property involved through the 15th of September, 1978. The total amount of the bill that he rendered was $4,670.66, which consisted entirely of labor except for one bathroom window which amounted to $15.00, which he had purchased from some other concern. His bills were all made out to Mid-South Fast Foods in Memphis, Tennessee, some of them being addressed to Bob McKinney. These bills were not paid.

The E. N. Howell Lumber Company of Corinth furnished material for the job beginning on August 31, 1978, with the last delivery made on September 19, 1978. All of the bills for lumber were to Mid-South Fast Food Supply and most of them were signed by George Graham as having received the materials charged. The arrangement for the building material was made with the lumber company by Graham and McKinney, who came over to the lumber yard one day and told Howell that they would like to set up an account to furnish material on the renovation of the building which was going to be a chicken place. Howell has since died and the suit in behalf of the lumber company was brought by the administratrix of his estate.

In regard to the payment for the material furnished, Howell’s daughter, who was the bookkeeper and who was familiar with the business, testified that her father had spoken to Graham in reference to the payment of the bills at one time and was told that they were all supposed to be paid at the end of the job. There is no indication that the Howell Lumber Company had any dealings with Calvary, Derrick or Brooks about the material or the job. The total amount of the materials bill is $2,858.08. It has not been paid.

Plaintiff Robert J. Hensley is an electrician in Corinth and he was employed by McKinney to do the electrical wiring work in the building and was directed as to what to do by an electrician out of Memphis who was a representative of McKinney. Hensley agreed to do the work for a total sum of $5,800.00 complete. He started work on September 18, 1978 and worked through October 26, 1978. During that time he did work and furnished materials that came to a total of $1,875.35. The bills have not been paid.

When Mid-South Fast Foods failed to pay the bills submitted by Graham and Hensley, they stopped work on the renovation job.

In December, 1978, Calvary cancelled Pugh’s lease because the renovation work had not been completed within the time fixed in the lease.

Calvary testified that during the course of the work, he was down at the job seeing what was going on “pretty regularly”. In reference to McKinney, Calvary said that McKinney was serving as the general contractor and when asked how he knew that replied:

Well, I met with him on several occasions down there and he was the one, I knew that Jerry [Pugh] had a contract with Mm for him to take care of all the necessary arrangements, to get the building in order for Jerry to take over and start the operation of the building. As far as knowing if there was a written contract, no, sir, I didn’t, but I do know that he was making all of the arrangements and seeing all the people.

Calvary was further questioned in reference to the matter and replied as follows:

Q. Were you ever told or presented with any plans or specifications as to this ten thousand dollars worth of improvements that were to go in the building?
A. Yes, sir, I met with Mr. Bob McKinney on several occasions and he was the one that told me what all they were going to do to the building and how they were going to go about it.
Q. Did he ever furnish you with any drawings or written specifications?
A. No, sir.
Q. He just told you orally?
A. Yes, sir.
Q. And you approved of what he was going to do?
A. Yes, sir, I was by the building every day, I was seeing what they were doing.
Q. Well, yes, sir, I understand that, but when he told you about it you said that that is fine, to go ahead, you didn’t raise any objections to what he was going to do?
A. No, whatever he wanted to do to the building, I told him other than, — I told him very simply that I didn’t want him to tear the building down, if they were going to make any major changes in the building we would like to know about it.

At the conclusion of the case for the plaintiffs defendants made a motion for a directed verdict and it was sustained by the court on the basis that there was no contract between the owners and the plaintiffs.

The plaintiffs appeal in this ease, urging that there was an agency relationship between McKinney, Pugh and the owners of the property and that Pugh and the property owners are directly liable to them for the amount of the indebtedness owing for work and material furnished or performed on the building. We think that the circuit judge was correct in his holding that there was no personal liability on the part of the property owners to the materialmen and workmen.

Addressing the question of Pugh’s obligation, the evidence before the Court when plaintiff rested indicated that Pugh was obligated by the provisions of the lease to do ten thousand dollars worth of renovation or remodeling work on the building. In the discharge of that obligation, he made an agreement with Mid-South Fast Foods that they would let the contracts for the necessary work and materials. Although Mid-South was to pay for the several items of work, Pugh was to repay them.

Under this state of facts it would appear that Mid-South Fast Foods (acting through McKinney), was the agent of Pugh. Mid-South did not undertake to do the work itself and apparently was not to make any profit from the renovation and remodeling job. We do not consider that it was a contractor, or master workman as those terms are used in Mississippi Code Annotated section 85-7-181 (1972). Its obligation was to contract for and pay for the several items of remodeling and renovation for Pugh.

Pugh’s plea of the statute of frauds, Mississippi Code Annotated section 15-3-l(a) (1972) is based upon his theory that he is being called on to pay the debt of others. The facts presented by plaintiffs were sufficient to raise an issue for the jury as to Pugh’s personal liability for the debts, contracted by his agent, as distinguished from his answering for the debt or default of another. The action of the Court in directing a verdict for Pugh at this stage was error. Of course, any obligation of Mid-South to Pugh is not here involved.

As to the claim of lien, Mississippi Code Annotated section 85-7-135 (1972) reads as follows:

The lien declared in section 85-7-131 shall exist only in favor of the person employed, or with whom the contract is made to perform such labor or furnish such materials or render such architectural service, and his assigns, and when the contract or employment is made by the owner, or by his agent, representative, guardian or tenant authorized, either expressly or impliedly, by the owner. (Emphasis added).

The record is clear that the owners did not themselves enter into any contract for the performance of any of the services on the building nor for the furnishing of any of the materials. That brings us down to the question of whether they either expressly or impliedly authorized someone else to do so within the meaning and extent of section 85-7-135.

We believe that the case of Burweill v. Planters Lumber Co., 220 Miss. 79, 70 So.2d 71 (1954) is controlling in this matter. Not only did the owners authorize the tenant to arrange for the work to be done on the building but the lease specifically and in terms required that such work be done. Pugh, in turn, authorized Mid-South Fast Foods to act in this regard, and the owners were fully aware of that fact.

Furthermore, under section 13 of the lease, which is quoted above, the lessors had the right to go upon the premises and determine whether or not lessee’s obligations in respect to the repair or rebuilding of the property were being performed. Calvary went by the building every day to see what was going on and he discussed with McKinney the nature of the work and insisted that if any major changes in the building were to be done that he should be informed about it. Mississippi Code Annotated section 85-7-137 (1972), reads as follows:

If such house, building, structure, or fixture be erected, constructed, altered, or repaired at the instance of a tenant, guardian, or other person not the owner of the land, only the house, building, structure, or fixture, and the estate of the tenant or such other person, in the land, shall be subject to such lien, unless the same be done by the written consent of the owner. (Emphasis added).

The defendant Pugh no longer has a leasehold interest in the property against which any lien can be asserted. However, the limitation imposed by that section as to the property of the owners has no application here, because the lease itself specifically and in writing provided that the lessee was to see that the work was done on that particular building.

The facts presented by plaintiffs made a prima facie case of lien under Mississippi Code Annotated section 85-7-131 (Supp. 1981), requiring defendant owners to go forward with proof, if any they have, to overcome that showing.

The defendant property owners properly pleaded the one year statute of limitations contained in Mississippi Code Annotated section 85-7-141 (1972). The plaintiffs responded by denying that the statute had run. A plea of the statute of limitations is an affirmative defense and carrying the burden of proof lies on the party who relies upon that defense. See for example Philley v. Toler, 239 Miss. 347, 123 So.2d 223 (1960). The limitation question was not presented to the trial court and no reference was made to the question of the statute of limitations or its application in the opinion of the court. It is therefore necessary that this matter be considered on the retrial of this case.

We accordingly affirm the lower court in its holding that there is no personal liability on the part of the defendants, Calvary, Derrick and Brooks, or their partnership. The case is reversed for determination of the amount of charges, whether Pugh is liable for debts contracted by Mid-South Fast Foods, his authorized agent, and whether the claim of lien under section 85-7-131 is barred by the provision for limitation contained in section 85-7-141.

The case is, therefore, affirmed in part, reversed in part and remanded for further consideration of these issues.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: SUGG, Presiding Justice,

text:
    MISSISSIPPI COAST COLISEUM COMMISSION v. STUART CONSTRUCTION CO., INC. and Martin Builder, Inc. D/B/A Stuart-Martin, a Joint Venture.
    No. 53171.
    Supreme Court of Mississippi.
    July 14, 1982.
    Rehearing Denied Aug. 11, 1982.
    Eldon L. Bolton, Jr., Gulfport, for appellant.
    Brunini, Grantham, Grower & Hewes, William L. Smith, Frank E. Everett, Jr., Jackson, for appellee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   SUGG, Presiding Justice,

for the Court:

A Harrison County jury rendered a verdict for the defendant, Mississippi Coast Coliseum Commission in Stuart-Martin’s suit to recover $75,000 allegedly wrongfully withheld from the contract price due them on the construction of the Coastal Coliseum and Convention Center. The trial judge granted Stuart-Martin’s motion for a judgment notwithstanding the verdict and entered judgment for $75,000 plus interest and all costs. The Commission appealed to this Court seeking reinstatement of the jury verdict.

The issue presented on appeal does not require an extensive detailing of the evidence. The catalyst of this controversy was a noticeable discoloration of concrete poured for a concourse. The contract specified that all exposed concrete was to be “artichecturally finished” and matching in color. Without question, an otherwise structurally sound portion of the concourse did not match in color. Various remedial techniques were performed and the architects eventually recommended to the Commission that, rather than tear out the section, it accept the section with certain warranties. After taking the matter under advisement, the Commission decided not to follow the architects’ recommendation and deducted $75,000 from the total contract price which was the estimated cost to remove and replace the discolored section. Stuart-Martin disagreed with the action of the Commission and brought suit to recover the $75,000 withheld.

In setting aside the jury verdict the trial judge first reasoned that the discoloration was a matter of “artistic effect” which, in turn, made operative section 2.2.9 of the contract which reads:

2.2.9 The Architect’s decisions in matters relating to artistic effect will be final if consistent with the intent of the Contract Documents.

The final step in the circuit judge’s analysis was that the architects accepted the work; hence, there was no question of fact to be submitted to the jury. We disagree.

Assuming arguendo that the matter of coloration was one of “artistic effect,” we hold the trial judge erred when he ruled there was no question of fact to be submitted to the jury with respect to acceptance of the discolored portion by the architects.

The recommendation of the architects to the Commission was not an unequivocal “we accept,” but a conditional acceptance. The contractor and cement manufacturer offered the Commission through the architects successive ten year warranties on the disputed section. Architect Proffer wrote the Commission, “We recommend that the Commission accept the warranties as submitted by the contractor and cement manufacturer.” The other architect, Fountain, testified that the mistake was aesthetic, and he gave the contractor the opportunity to remedy it, and in his opinion the remedied section was aesthetically fine, and once the warranty given was given, it was acceptable both to him and to Mr. Proffer.

Voluminous testimony was taken on the reason for the discoloration and the efforts made to correct it. However, the fact remains that the architects’ recommendation to the Commission that it accept the discolored portion was qualified and predicated on the warranty of the contractor and the cement manufacturer.

In numerous cases we have set forth the standards to be applied in determining whether a judgment notwithstanding the verdict of the jury should be granted. Gee v. Hawkins, 402 So.2d 825 (Miss.1981); Blackwell v. Dairyman, Inc., 869 So.2d 511 (Miss.1979); Paymaster Oil Co. v. Mitchell, 319 So.2d 652 (Miss.1975). In both Gee and Paymaster, we quoted with approval the following statement from General Tire and Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969).

The established rule is that when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed. (221 So.2d at 105.)

In Paymaster, we commented on the quotation from Darnell as follows:

The quotation above, we believe, expresses the better rule for a peremptory instruction or a judgment n. o. v. since it permits the court to examine the evidence of both parties that is not in conflict, as here, in order to reach a legal conclusion; or stated differently, the jury resolves conflicts of fact — the court resolves issues of law arising from noncon-flicting facts. (319 So.2d at 657)

Under the principles set forth in the cases cited above, the question of whether the architects accepted the discolored portion of the concourse unequivocally, or whether the acceptance was conditional was a factual issue properly placed before and decided by the jury. Consequently, we reinstate the jury verdict.

REVERSED AND RENDERED.

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

      . The $75,000 was withheld pursuant to the provisions of 13.3.1 of the contract and Change Order No. 12 issued by the architects, both of which follow:
      13.3.1. If the Owner prefers to accept defective or nonconforming work, he may do so instead of requiring its removal and correction, in which case a Change Order will be issued to reflect an appropriate reduction in the Contract Sum, or, if the amount is determined after final payment, it shall be paid by the Contractor.
      Change Order No. 12.
      You are directed to make the following changes in this Contract:
      With reference to A.I.A. General Conditions of the Contract for Construction (A.I.A. Document A201), and with particular reference to Article 13, Paragraph 13.3. Acceptance of Defective or Non-Conforming Work, the contract sum shall be reduced Seventy-Five Thousand Dollars ($75,000.00) for the nonconforming concrete on the Southeast section of the exterior ramp.


author: ROY NOBLE LEE, Justice,

text:
    Johnny Lee EPPS v. STATE of Mississippi.
    No. 52258.
    Supreme Court of Mississippi.
    July 21, 1982.
    Alan M. Hathorne, Jackson, for appellant.

      Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Johnny Lee Epps was convicted in the Circuit Court of the First Judicial District of Hinds County, Honorable Dan M. Lee, presiding, for the unlawful sale of cocaine, and was sentenced to a term of twenty-five (25) years with the Mississippi Department of Corrections, twenty (20) years being suspended, with five (5) years to serve, and five (5) years probation.

Epps has appealed to this Court and assigns two (2) errors in the trial below. We consider only the assigned error as to whether or not the trial court erred in refusing appellant’s request for a peremptory instruction of not guilty because of entrapment, and we reverse.

According to the State’s evidence, on March 27, 1979, Detective L. C. Russell and Alex Butler, a confidential informant, went to the home of Mary Jackson. Butler told Detective Russell that Miss Jackson would take him to a known drug dealer in the area where he could purchase cocaine. Detective Russell accompanied Miss Jackson to the home of appellant where they knocked on the door and Epps came out. Miss Jackson asked Epps whether he had any “stuff” left and appellant said that he had a “small piece” which was of a “top grain.” Detective Russell and Miss Jackson agreed to purchase the cocaine. Epps went inside and returned with a small paper package which he handed to Miss Jackson, who passed it over to Detective Russell. He examined the contents, was convinced that it was narcotic and gave Epps sixty dollars ($60.00) for the substance. It was identified as cocaine at the police station. Subsequently, appellant was arrested on September 5, 1979 (five months later) and was charged with the sale of cocaine.

At trial, appellant testified that the cocaine was supplied to him by the confidential informant, Alex Butler. Miss Jackson testified that Butler was her boyfriend and that he came to her home with Detective Russell and introduced him as a friend from Chicago. Further, that Butler asked her to go to Epps’ home and purchase a gram of cocaine, to which she finally agreed.

Appellant corroborated Miss Jackson’s testimony about details of the sale. He further testified that two days before the sale, Alex Butler came to his home and asked him to hold some cocaine for him until Mary Jackson picked it up; that Butler told him Jackson would give him forty dollars ($40.00) for the cocaine; and that he would pick up the money later. According to him, Butler never came to appellant’s home after the sale to collect the money.

The confidential informant, Alex Butler, did not testify at the trial, and the testimony of appellant to the effect that Alex Butler came to his home and asked him to hold some cocaine for him until Miss Jackson picked it up later is uncontradicted. Detective Russell stated that he did not know how appellant obtained the narcotic.

In Torrence v. State, 380 So.2d 248 (Miss.1980), the defendant relied upon entrapment as his defense. He contended that a police informer supplied the narcotics which provided the basis for the charges against him, and that such conduct constituted entrapment as a matter of law. In reversing the conviction and discharging Torrence, the Court said:

It is the defendant’s sole contention that his uncontradicted testimony establishes entrapment as a matter of law, apd, that the burden was on the state to rebut such evidence and the state failed to sustain that burden. This Court had the same question before it in the recent case of Sylar v. State, 340 So.2d 10 (Miss.1976). There it was shown that Sylar, after declining on several occasions, consented to a Mississippi Narcotics Bureau undercover agent’s request to deliver a one-pound package of marijuana to a “friend,” who was also an undercover agent. Sylar was also instructed to collect from the latter $120.00. Sylar consummated the sale and returned the state funds back to the first agent’s residence. In reversing and discharging the defendant, the Court quoted with approval from State v. Talbot, 71 N.J. 160, 364 A.2d 9 (1976), wherein the New Jersey Supreme Court stated this rule:
This appeal poses the issue whether entrapment is established as a matter of law if an informant, while acting in concert with an undercover police officer, but unknown to the officer and contrary to instructions, supplies the defendant with heroin for the purpose of then arranging a sale of the heroin by defendant to the undercover officer, which sale is then consummated. We hold that it is. (364 A.2d at 10).
The Court continued:
We hold that where an informer or other agent generally acting in concert with law enforcement authorities, furnished a defendant with heroin for the purpose of then arranging a sale of the heroin by the defendant to an undercover officer, which sale is then consummated, defendant has been entrapped as a matter of law even though predisposition to commit the crime may appear, and notwithstanding that the furnishing of the heroin is unknown to and contrary to the instructions of the law enforcement authorities. Those authorities, having set the agent to work in enticing the defendant, the prosecution should bear the onus of the means selected by the agent. See State v. McKinney, 108 Ariz. 436, 501 P.2d 378, 381-382 (1972); State v. Boccelli, 105 Ariz. 495, 467 P.2d 740, 742 (1970); People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765, 768 (1961); State v. Overmann, 220 N.W.2d 914, 916-917 (Iowa Sup.Ct.1974); Jones v. State, 285 So.2d 152, 159 (Miss.Sup.Ct.1973); State v. Saniz, 84 N.M. 259, 501 P.2d 1247, 1248 (Ct.App.1972); Lynn v. State, 505 P.2d 1337, 1344 (Okl.Cr.App. 1973). But see Proposed New Jersey Penal Code § 2C:2-12 (1971). (364 A.2d at 13). [380 So.2d at at 249-50].

The responsibility is upon the prosecution to rebut uncontradicted evidence which makes out a defense of entrapment. The confidential informant here was not an informant whose identity could not be disclosed, because the record is replete with references to him and his identity. No excusable reason appears in the record why he did not appear and testify in rebuttal. The defense of entrapment having been established as a matter of law upon the uncontradicted testimony of the appellant and Miss Jackson, we have no alternative except to reverse the lower court and discharge the appellant.

REVERSED AND APPELLANT DISCHARGED.

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

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