author: GARRISON, Judge.

text:
    Donald P. RODRIGUEZ v. CITY OF NEW ORLEANS.
    No. 11157.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.

      Deborah C. Ziegler, Asst. City Atty., New Orleans, Salvador Anzelmo, Acting City Atty., New Orleans, for defendant-appellant.
    Harold J. Lamy, New Orleans, for plaintiff-appellee.
    Before GULOTTA, GARRISON, and HOOD , JJ.

       Honorable John T. Hood, the third member of this panel, died subsequent to oral argument. Because we are affirming the trial court’s judgment, we hand down this opinion with the signatures of the other two panel members.

   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to petitioner workmen’s compensation benefits in the amount of $95.00 per week, the maximum rate in effect at the time of plaintiff’s first injury on December 25, 1976. From that judgment, the City of New Orleans, as the employer, appeals. Additionally, the petitioner argues on appeal that he is entitled to compensation of $130.00 per week, the rate in effect at the time of petitioner’s third accident, that he is permanently disabled, and that he should be awarded attorney’s fees and penalties.

Donald Rodriguez was employed as a fireman by the City of New Orleans for fifteen and one half years. At the time of the first accident, he had achieved the rank of captain.

On December 25,1976, Captain Rodriguez received a blow to the head while entering a residence through a window, in an attempt to fight the fire within. He was wearing all protective equipment, including a helmet, at the time of the accident. On this occasion, Captain Rodriguez sustained a neck sprain. He was treated by Dr. Raymond F. Kitziger of Battalora, Battalora, Dabezies, and Kitziger, to whom Captain Rodriguez had been recommended by Dr. Jack Ruli, physician for the Fire Department.

While under Dr. Kitziger’s treatment, several x-rays were made. Dr. Kitziger’s analysis of those x-rays as stated in his report did not include a C-5-C-6 displacement. Dr. Kitziger noted “no signs of old or recent bony injury” in the neck. Additionally, Dr. Kitziger noted only “very minor degeneration changes.” He further stated that the disc spaces were “adequately maintained,” and that neutral foramina were patent. Dr. Kitziger diagnosed a “cervical sprain.”

Captain Rodriguez was absent from active duty for a period of four months. Pursuant to the doctor’s discharge, Rodriguez returned to work on March 13, 1977, but continued to receive prescriptions from Dr. Ruli for Fiorinal, Valium, and Percobarb.

On October 6, 1977, Captain Rodriguez suffered another injury while answering a fire alarm. The property owner adjacent to the fire had been hosing the grass between the two pieces of property to prevent the fire from spreading. When the fire department arrived on the scene, Captain Rodriguez was running with the engine hose, when he slipped upon the wet grass. He tumbled forward and rolled over before regaining his stance. At the time, Captain Rodriguez felt pain in the lower back, right leg, and upper back. After this accident, Captain Rodriguez consulted Dr. Ruli who was still treating the fireman for the previous neck injury. Captain Rodriguez continued working after the October 6th accident.

On December 11, 1977 Captain Rodriguez was again on duty when the third accident occurred. At this time, Captain Rodriguez attempted to lift a 24 foot ladder, while sliding the fire hose from beneath the ladder, in order to prevent the hose from catching fire. At this time, he experienced severe shooting pains in the back and arms. By December 13, he was unable to return to work.

As a result of this accident, Captain Rodriguez consulted Dr. Luis Matta at the suggestion of Dr. Ruli. Dr. Matta’s x-ray analysis of December 20, 1977 reveals the following:

“The patient stated that he injured his neck, mid and lower back on two different occasions, the first one being on October 6, 1977 and the second time on December 11, 1977, while working in the capacity of fire chief in New Orleans, Louisiana, involved in fighting fires.
X-rays consisting of an A.P. lateral and two oblique views of the cervical spine revealed reversed subluxation of C-5 on C-6 bringing about the narrowing of the foramina at this level. There appears to be degenerative changes involving the apophyseal joints at this level. There are no other significant findings. X-rays consisting of an A.P. and lateral views of the thoracic spine mainly revealed minor degenerative changes consisting of anterior spur formation of the vertebral bodies. There is some evidence of ring apo-physitis on the end plates of the lower thoracic vertebras. X-rays consisting of an A.P., lateral, and two oblique views of the lumbosacral spine and a spot lateral view of the lumbosacral joint failed to reveal any fractures, dislocation or sublux-ation. A spina bifida defect of the posterior bony elements of S-l are noted. Intervertebral disc spaces are well maintained. Laminas, pedicles and transverse processes and spinous processes showed no abnormalities.”
“This patient has signs and symptoms of a musculoligamentous strain that has still not responded to treatment. There is some degenerative changes involving the cervical spine that account for some of the symptomatology. The subluxation of C-5 on C-6 in the posterior manner appears to be secondary to an old injury. This brings about a relative narrowing of the foramina and perhaps some extrensic pressure accompanied with radicular pain into the left upper extremity. Management of this condition should be conservative. He also exhibits what appears to be a strain of the musculature on the right side of the low back and beginning to exhibit some chronicity.” (emphasis added)

Shortly thereafter, Dr. Matta referred the petitioner to Dr. John Jackson, a neurosurgeon. Dr. Jackson’s review of the x-rays resulted in the following observations:

“I reviewed x-rays of the cervical spine which in my opinion reveal a slight dislocation of C-5 posteriorally on C-6. There is also a minor narrowing of the C5-6 disc space with a borderline narrowing of the C4-5 disc space. The posterior offsetting of the C-5 vertebral body may be due to degenerative changes at the C5-6 apohyseal joints bilaterally or it may represent a very slight dislocation of C-5. Examination of the lumbar spine reveals no abnormalities. The x-rays that I studied from your office were dated 12/20/77 and numbered 18259. In order to more thoroughly evaluate the C5-6 possible disc location lateral flexation and extension views were made which reveals a good range of motion on flexation of the cervical spine but there is a rather limited motion on the extension views.
“In conclusion after examining the patient I feel that his symptoms are more than likely arising from the C5-6 disc space which would account for the neck and upper extremity symptoms. I have no evidence to believe that the low back and lower extremity symptoms are due from the degenerative disc disease. Nevertheless, it depends on how much pain Mr. Rodriguez is experiencing as to what should be done next. I believe that a total myelographic evaluation would be the best way to evaluate his condition and feel in view of the symptoms that he has, he should have this done. Also I am somewhat concerned about the C5-6 level since I can not be completely certain that this is due to degenerative changes and it might represent a slight dislocation. I discussed this with Mr. Rodriguez and he may decide to have the myelogram done. After the myelogram definative treatment can be offered or at least a more definite diagnosis made . . . ” (emphasis added)

The above quote is from a report dated February 3, 1978 and is an analysis of the x-rays taken by Dr. Matta on December 20, 1977. Later correspondence reveals that Jackson also had x-rays taken on January 24, 1978, but there is no analysis of those x-rays contained in the February 3rd report.

On January 13, 1978, Captain Rodriguez was admitted to Lakeside Hospital by Dr. Jackson. At this time, the petitioner underwent a total myelogram which revealed “a slight defect at the C5-6 level due to the posterior displacement of the inferior edge of the body of C-5.” It further showed widening at the AMI and L5-S1 , which may be indicative of a disc bulging at this level, (emphasis added)

Some months later on October 11, 1978, Dr. Jackson compared his x-rays taken on January 24, 1978 with Dr. Kitziger’s x-rays taken on January 14, 1977 and concluded that both x-rays show the same C-5 on C-6 displacement. Dr. Jackson further diagnosed the displacement as a cervical fracture.

The last medical evidence offered into the record is that of Dr. Raeburn Llewellyn, a neurosurgeon. Dr. Llewellyn examined Captain Rodriguez on December 7, 1978. He also reviewed all the medical evidence discussed above. Dr. Llewellyn noted two areas of complaint: the neck area and the low-back, bilateral leg area. Dr. Llewellyn concluded that there was both a suspected cervical disc rupture (Tr. p. 48) and a suspected herniated disc in the L5-S1 area. (Tr. pp. 50-51)

It is apparent to this court that there are two injuries involved in this case: The C5-C6 neck injury and the L5-S1 low back injury. Although the trial court did not provide us with written or oral reasons for judgment, it is apparent that the judge must have disregarded the second lumbo-sacral injury in order to have awarded to the petitioner workmen’s compensation benefits at the rate in effect at the time of the initial injury. There was no lumbosacral displacement evident immediately after the first accident which involved the neck area, but rather only after the third accident which involved the lower back-leg area, this evidence combined with petitioner’s testimony that he was able to continue working after the second accident, but experienced immediate searing pain after the third accident which prevented him from continuing employment, leads this court to the inevitable conclusion that Captain Rodriguez suffered a lumbosacral injury at the time of the third accident, in addition to the neck injury suffered in the first accident. Accordingly, the trial court was manifestly erroneous in disregarding the second injury in its award of damages. Canter v. Koehring Co., 283 So.2d 716 (1973); Arceneaux v. Dominque, 365 So.2d 1330 (1978).

The next specification of error alleged by petitioner is that the trial court erred in failing to hold that the petitioner is totally and permanently disabled. We agree. All evidence contained within the record indicates the totally and permanently disabling nature of his injuries. These findings are unrefuted. Of special note is Dr. Ruli’s letter of June 1,1978, wherein he stated:

. . Since he (Captain Rodriguez) has such limited motion of the cervical spine associated with proven evidence of a cervical disc, I feel that it would be hazardous for him to return to fire duty. In view of the nature of his condition, I consider him totally and permanently disabled from performing fire duty.”

We conclude that under R.S. 23:1221, Captain Rodriguez is totally and permanently disabled. RachaI v. Highlands Ins. Co., 355 So.2d 1355 (App. 3rd, 1978) and that the trial court was manifestly erroneous in failing to so hold.

The last issue to be confronted by this court is petitioner’s contention that he should be awarded attorney’s fees and penalties due to the City’s termination of benefits on November 4,1978. We do not agree. An employer may not be penalized for taking their case to court on a close factual question. Thompson v. Natchitoches Parish Hospital Service Dist., 335 So.2d 81 (App. 3rd, 1976).

For the reasons discussed above, the judgment of the lower court is affirmed, but amended and recast as follows;

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Donald Rodriguez, and against the defendant, City of New Orleans, for Workmen’s Compensation benefits at the rate of ONE HUNDRED THIRTY AND NO/100 ($130.00) DOLLARS per week from December 13, 1977 to continue throughout the entire period of his disability, subject to a credit for compensation paid, interest from the date due until paid, and for all costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Donald, Rodriguez, and against the defendant, City of New Orleans, for Workmen’s Compensation benefits at the rate of NINETY-FIVE AND NO/100 ($95.00) DOLLARS per week from December 25, 1976 to March 13, 1977, subject to a credit for compensation paid, interest from the date due until paid and for all costs.

AFFIRMED, AMENDED AND RECAST.

      . “C-5” — Cervical fifth vertebrae
      “C-6” — Cervical sixth vertebrae

      . Cervical sprain: “A wrenching of a cervical intervertabral joint with injury to the joint attachments, but without displacement of the bony articulation.” (emphasis added) Attorney’s Textbook of Medicine, by Roscoe N. Gray, M.D., Vol. IB, 1| 13.02(2), Matthew Bender Publishing Company (3rd Ed., 1977).

      . Dr. Matta’s office is located in the Covington area where Captain Rodriguez was residing. He did not return to Dr. Kitziger because of the distance from his current home.

      . Fracture: Destruction of vertebral bones, whether of the body, neutral arch (Pedicles and laminae), articular processes, transverse processes, or the spinous process.
      Subluxation: An incomplete displacement of appositional intervertebral articular surfaces, with partial persistence of joint integrity, and
      with varying degrees of displacement of adjacent vertebrae from their normal alignment. Dislocation: A complete displacement of ap-positional intervertebral articular surfaces, with an associated displacement of the involved adjacent vertebrae from their normal alignment.
      Fracture-dislocation: A combination of fracture and dislocation, with consequent disruption of the normal alignment of the involved cervical vertebrae.

        Attorney’s Textbook of Medicine, above.

      . This report is of an examination held on January 24, 1978. Oddly enough, this report refers to the one myelogram test in the future tense, whereas the patient’s discharge summary from Lakeside Hospital shows that he was admitted on January 13, 1978 as Dr. Jackson’s patient.

      . ‘L5” — Lumbar fifth vertebrae
      SI” — Sacral first vertebrae

      . We are somewhat perplexed by this judgment. The court awarded the rate in effect at the time of petitioner’s first accident on December 15, 1975. However, the court awarded those benefits from the date of December 13, 1977, or two days after petitioner’s third injury on December 11, 1977. A possibility of two clerical errors exists. Either the trial court intended to award damages as of the 1976 accident, in which case the rate is correct, or else the court intended to award damages as of 1977, in which case the rate awarded is incorrect. Inasmuch as counsel for petitioner filed a pre-trial memorandum seeking to be awarded the later rate of $130.00 per week, we can only conclude that the trial court considered this memorandum and intended to award the lower rate in effect at the time of the first accident. We also note the motion to amend the judgment and the amended judgment contained within the record.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    Ruby R. Sevin, wife of/and Eddie J. SEVIN v. SHAPE SPA FOR HEALTH & BEAUTY INC. and Market Facilities/Houston, Inc.
    No. 11175.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    McCann & Volk, John J. McCann, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, Edward J. Brandao, New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   BARRY, Judge.

Plaintiff was a member of the defendant spa where she allegedly slipped and fell inside a whirlpool bath and injured her back. Plaintiff’s lawsuit charges defendant with various acts of negligence including improper maintenance of the premises, failure to warn of a danger, and faulty steps. Defendant’s answer alleges plaintiff’s negligence, contributory negligence, and assumption of risk. Following plaintiff’s case in chief defendant moved for dismissal under LSA-C.C.P. Art. 1810(B). A directed verdict was granted and plaintiff now appeals.

Before reviewing plaintiff’s evidence we must determine what weight or standard the trial judge sitting without a jury should accord plaintiff’s evidence under Art. 1810(B). Able counsel for plaintiff strongly advocates that evidence should be weighed in the light most favorable to plaintiff’s case. The alternative is for the trial judge to evaluate plaintiff’s case in chief based on a preponderance of the evidence.

We are satisfied that this question is res nova. LSA-C.C.P. Art. 1810 is of very recent vintage (1977). The first paragraph (A) provides for a directed verdict in the District Court sitting with a jury; and paragraph (B) allows a directed verdict by the trial judge sitting without a jury.

Unfortunately, Art. 1810 does not establish any standard for the trial court to use in weighing evidence on a defendant’s motion for dismissal.

Plaintiff urges the holding in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir., 1979) which said that all of the evidence should be viewed in the light most favorable to the party opposing the motion; if there is evidence of such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions, a motion for directed verdict should be denied. Campbell, 373 So.2d at 239. However, that case does not apply here since the decision involved a jury trial and application of paragraph (A) under Art. 1810. The Third Circuit in Campbell adopted the philosophy of our federal courts in interpreting Art. 1810 (A) by looking to the parallel provisions of F.R.C.P. Rule 50(a). Both this court and the First Circuit have followed that same reasoning in jury cases on directed verdicts. See: Ragas v. Argonaut Southwest Ins. Co., 379 So.2d 822 (La.App. 4th Cir., 1980); Perkins v. American Machine & Foundry Co., 385 So.2d 492 (La.App. 1st Cir. 1980). Application of this federal counterpart was made in Boeing Company v. Ship-man, 411 F.2d 365 (5th Cir., 1969) which said that the trial judge, when considering a motion for directed jury verdict, may grant the motion only when “facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict . . . 411 F.2d at 374.

Plaintiff, in argument and brief, refers to a number of decisions in other states which support the general proposition that the trial court must consider plaintiff’s evidence in a light most favorable to the party against whom the motion is directed. However, all were jury cases applicable to the standard of paragraph (A) of Art. 1810. Is the severe restriction on the trial judge under (A) applicable here when we are not concerned with plaintiff’s right to a jury determination of the facts?

Article 1810(B) basically tracts the language in the second sentence of F.R.C.P. Rule 41(b). We have no doubt this procedural innovation found its way into our state statutes via the conceptual origin in the federal system. One solution would be to utilize the logic in Madison v. Traveller’s Insurance Company, 308 So.2d 784 (La.1975) which held that when state rules of procedure are obtained from federal rules the state courts may look for guidance to federal decisions which have interpreted identical provisions. In Emerson Electric Co. v. Farmer, 427 F.2d 1082 (5th Cir., 1970) the Fifth Circuit in referring to F.R.C.P. rule 41(b) said: “The Judge should now ordinarily evaluate the evidence without making special inferences in the Plaintiff’s favor. The Court should go ahead and resolve the case on the basis of preponderance of the evidence.” 427 F.2d at 1086.

In civil cases, following a complete trial, the trial judge has the responsibility to weigh and evaluate all evidence and ultimately render a decision based upon a preponderance of evidence. Suppose here following the plaintiff’s case in chief the defendant rested without presenting any evidence. Then the trial court would render its decision based upon the same facts it had when plaintiff rested. The outcome in this example would be the same as we now have before us with the granting of a directed verdict. Realistically, this defendant would not offer any evidence if this case was remanded for further proceedings. The district judge must eventually render a decision and it is reasonable and logical for him to apply the same standard to evidence following a motion for directed verdict or following a completed trial. Despite the harsh results of a directed verdict, we have no alternative but to apply the standard of preponderance of evidence under the provisions of Art. 1810(B).

A review of the facts will determine if plaintiff sustained her proper burden of proof. Plaintiff alleges that on her eighth visit to the Spa in a 13 day period she injured her back when she slipped and fell on the first or second step located inside the whirlpool bath. Her petition and the pretrial order assert a “substance” was on the steps. Mrs. Sevin arrived at the Spa by 9:00 a. m. (opening time) as she had done on previous occasions. She completed her routine, showered, then proceeded to the whirlpool. An employee of the Spa was cleaning the area with a solution that formed suds which she hosed down. Mrs. Sevin had seen this cleaning on prior visits. It is uncontro-verted that no signs were posted to warn patrons of the potentially slippery area nor was any barricade used to set off the cleaning area.

Mrs. Sevin candidly admitted that she did not recall walking through any of the suds to reach the whirlpool. She testified that while on a step inside the whirlpool and while her foot was under water, she slipped and injured her back. She did not know what caused her to slip, she could not identify any foreign substance on the step, nor is there any evidence how her slip occurred. This testimony contradicts her allegations in the petition and pre-trial order about a “substance” on the steps. There were no witnesses.

We feel it is reasonable to believe that Mrs. Sevin did fall in the whirlpool. Her testimony is positive and basically corroborated by the testimony of a Spa employee who recalled a report of the incident. Records show that plaintiff was at the Spa on the date of the alleged accident and it was also her last visit.

Since Mrs. Sevin stated she didn’t remember walking in the suds on the floor we must assume she entered the whirlpool without soap or any other foreign substance on her feet. At this point the record is void of any positive evidence as to why Mrs. Sevin fell. The only basis for a claim would be that the steps inside the whirlpool were slippery or had become slippery because the suds being hosed down entered the whirlpool and formed the “substance” which caused her fall. It is interesting to note Mrs. Sevin’s testimony that the cleaning process of suds on the tile floor had occurred on her prior visits to the Spa. She did not testify that the steps inside the whirlpool were slippery on prior occasions.

Part of plaintiff’s excellent presentation included floor diagrams which indicate that a water drain was located directly next to the whirlpool. We have no evidence that the drain did not eliminate the sudsy water or that inside the whirlpool was soapy because of the suds on the floor. Nor is there evidence what foreign object or substance could have caused Mrs. Sevin to fall.

Seeking the cause of her fall requires mention of plaintiff’s prior back condition. Mrs. Sevin said in a deposition she had a back problem “since I was a young kid” and had been treated by several physicians for a continuing back problem which was described in 1966 as “low back pain syndrom, acute recurrent”. She went on sick leave from her employer because of a back injury received in an automobile accident in 1972, and was granted a disability retirement from her employer in 1974. The accident occurred on August 6, 1973.

She did not seek medical attention for two weeks after the alleged fall and failed to mention the fall to her orthopedic physician because she thought it was the continuing back problem that she had been treated for in prior years. When questioned on cross examination about the possibility that her knees “buckled” causing the fall, Mrs. Sevin responded “I have no idea”. From the time of the accident until surgery she suffered additional falls which, according to the orthopedist, Dr. Accardo, was due to poor circulation.

The defendant Spa owner testified that the steps into the whirlpool were “low rise” each measuring about seven inches in height and there were two hand-rails spaced 20V2 inches apart. He further testified that the water is filtered by a pump on a 24 hour basis and is circulated by a 7V2 horsepower pump. Most importantly, defendant stated that the whirlpool was inspected regularly by a number of people and there was never a report of a slippery substance on the steps nor did he know of any such danger.

We cannot overlook Mrs. Sevin’s testimony (four different times) that she did not know what caused her to fall, and her testimony (six times) that she did not know if there was anything on the floor in the areas where she walked.

We agree with plaintiff’s counsel that Mrs. Sevin was an “invitee” and as such is owed the duty of reasonable and ordinary care. This includes the prior discovery of reasonably discoverable conditions on the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger. Barrilleaux v. Noble Drilling Corporation, 160 So.2d 319 (La.App. 4th Cir., 1964).

Mrs. Sevin did not state that the suds on the floor in the wet area affected her mobility. Considering the repeated usage of the whirlpool by Mrs. Sevin, it is logical to conclude that the steps were not slippery on prior occasions because of the cleaning operation and it is highly improbable that the situation would be any different on the day of the alleged accident.

We take judicial cognizance that areas of a spa with a swimming pool, showers, whirlpool bath, cold dip bath, et cetera, by their very nature contribute to moisture and water in the areas surrounding these facilities.

Plaintiff’s counsel cites in his brief the following jurisprudence which we distinguish from the above facts:

Truxillo v. Gentilly Medical Building, Inc., 225 So.2d 488 (La.App. 4th Cir., 1969). This case involved an office building where areas were mopped but not roped off or with warning signs.
Brown v. Southern Ventures Corporation, 331 So.2d 207 (La.App. 3rd Cir., 1976). Fall into a motel swimming pool when loose coping caused the fall.
Owens v. New Orleans Bldg. Maintenance, Inc., 349 So.2d 494 (La.App. 4th Cir., 1977). Another floor mopping case in a public building where no warning signs or barricades were posted to protect the general public.

A case very similar to the facts herein is Gatti v. World Wide Health Studios, etc., 323 So.2d 819 (La.App. 2nd Cir., 1975). The accident in Gatti resulted from a slip and fall in a steam room of a spa. There, as here, the plaintiff could not show the existence of any foreign substance and the Second Circuit stated that a plaintiff seeking damages under Arts. 2315 and 2316 has the burden of proving fault and negligence on the part of the defendant. The court further stated that the plaintiff must prove defendant’s conduct was substandard and that defendant violated some duty owed to plaintiff.

We feel it is obvious that a member of a spa, particularly a member who had made seven prior visits, is cognizant that the interior is going to be wet and slippery by the very nature of its facilities. We stated at the outset that we did not question plaintiff’s fall from a step which was under water in the whirlpool which may have contributed to or aggravated a bad back condition. But we are constrained to agree with the District Court that plaintiff did not establish the presence of a foreign substance, or the existence of a slippery step, or that the defendant Spa failed to provide adequate maintenance.

Plaintiff’s exhaustive and well presented evidence simply fails to establish negligence or a breach of duty by the defendant. Accordingly, the judgment of the District Court rendering a directed verdict in favor of the defendant is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Daniel E. BECNEL, Jr. v. Edward MONTZ.
    No. 11190.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Daniel E. Becnel, Jr., in pro. per.
    Roland J. St. Martin, LaPlace, for defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Daniel E. Becnel, Jr., appeals from a trial court judgment denying him recovery of $1,500 in attorney fees from the defendant, Edward Montz.

On October 18, 1974, Becnel, an attorney at law, was contacted by the defendant’s wife for legal assistance regarding a May 18, 1974 automobile accident in which her son was involved. The defendant’s automobile insurer, Aetna Insurance Company, originally denied coverage in the accident, claiming that the policy was not in effect due to non-payment of premiums.

On April 1, 1975, the other parties involved in the accident filed suit against the defendant in the present case and Becnel testified that he performed services for the defendant by answering the suit on his behalf, preparing a pretrial order and attending a pretrial conference, engaging in coverage negotiations with Aetna Insurance Company, corresponding with all other parties involved in that lawsuit and performing settlement negotiations which resulted in a complete release of the defendant from all liability from the automobile accident.

Plaintiff sent the defendant a bill in June 1976 for $100, without other notation. There is no record of payment. In October, 1976, the same bill was sent to the defendant, again without record of payment. In June, 1977, the defendant again received a bill from the plaintiff for the same amount. There is conflicting testimony as to whether there was payment made eventually; however, the June 7, 1977 invoice copy is marked “pd 10/7/77.”

On November 17, 1978, the defendant was sent another bill from the plaintiff in the amount of $1,500, which the defendant refused to pay, resulting in this lawsuit.

The plaintiff contends that the defendant understood that he would have to pay for the legal services performed by completing sewer installations on construction of an addition to the plaintiff’s office. He further avers that Montz understood the $100 charge was only for office expenses. Bec-nel also testified that between October of 1977 and November of 1978 he ran for district attorney and discovered during the race that Montz did not intend to perform the sewerage services; therefore, he submitted a bill to the defendant for $1,500, claiming to have done 15 hours of work for him at $100 an hour.

The defendant, on the other hand, contends there was no agreement that he would perform sewerage work for the plaintiff and that he believed the total amount owed Becnel was $100. He further argues the only reason the plaintiff decided to bill him for additional charges was that Becnel learned during the district attorney’s race that Montz’s hunting club had refused to support him. The defendant produced one witness, present at the hunting club meeting when Becnel spoke, who testified to hearing Becnel tell Montz “I don’t know why you wouldn’t vote for me because that case I had took for you I didn’t charge you.”

It appears from a review of the record that after termination of the work done by plaintiff for defendant, that Montz understood there would be no further charges submitted by the plaintiff other than the $100 bill. The passage of two years’ time without the plaintiff billing the defendant for any more than this amount certainly buttresses defendant’s position.

The record, in its entirety, supports the reasoning of the trial judge, who stated in his reasons for judgment:

“This Court believes the testimony of both parties, namely, that Plaintiff, Daniel E. Becnel, Jr., was under the correct impression that certain labor would be performed in return for legal services. This Court also believes that Edward Montz was honestly under the impression that his daughter’s payments of all bills submitted for professional services extinguished his debt to the Plaintiff.
“Plaintiff testified that his bills were for costs only, however, since they are not itemized as such nor was a ‘client’s log’ maintained by the Plaintiff to support his office expenses, the Court must rule in favor of the Defendant, who, up to the time of the filing of the suit paid Plaintiff’s charges (see Exhibit P-21 and P-23), none of which were itemized that they were intended for office expenses.”

Regarding the alleged oral contract for sewerage services, the standard of proof demanded of a plaintiff in a suit such as this one was set forth in the case of E. Levy and Company v. Shreveport Plumbing Company, 108 So.2d 810, 812 (La.App.2d Cir. 1959):

“Under the circumstances as herein-above related, it appears to us that plaintiff has entirely failed to make due and proper proof of a verbal contract which would bind the defendant to the obligation sued upon herein. The law applicable to the case is succinctly stated in Haney v. Maryland Casualty Company, La.App., 1954, 74 So.2d 332, 333, thusly:
‘The burden is on plaintiff to prove verbal contract, the basis of suit. Gray v. Feazel, 3 La.App. 142; Mobley v. Holden, 5 La.App. 444.
‘A contract arises only where both parties thereto have agreed to its terms. Colgin v. Security Storage & Van Co., 208 La. 173, 23 So.2d 36, 160 A.L.R. 1107.
‘Where testimony clearly establishes that minds of both parties to contract did not meet touching primary matters involved, consent was absent and contract is invalid. Woodward v. Barringer, La.App., 24 So.2d 200.’
“It is a well-settled legal principle that no contract can arise unless the parties thereto have consented and agreed to its terms. LSA-Civil Code Article 1798; Allison v. Pick, 1956, 229 La. 524, 86 So.2d 179.”

In the present case there was certainly not that meeting of the minds of the parties sufficient to establish exactly what future sewerage services were to be performed by the defendant or what monetary debt might be due plaintiff in the event of nonperformance of those services. The plaintiff, therefore, has failed to sustain his burden of proof regarding the consent necessary to such an agreement.

For the reasons assigned herein, the trial court’s decision rendering judgment in favor of the defendant and against the plaintiff is affirmed in all respects.

AFFIRMED.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Judy Grace LEDET v. Sterling Joseph LEDET, Sr.
    No. 11192.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    John T. Bourgeois, Thibodaux, for defendant-appellant.
    Henry B. Hoppe, Jr., Metairie, for plaintiff-appellee.
    Before REDMANN, SCHOTT and SAR-TAIN (Assigned), JJ.
   SCHOTT, Judge.

This is an appeal by a father from a judgment increasing child support for his two minor children from $700 per month set on June 30,1971, to $1250 set on October 24, 1979. The issues are whether the evidence supports the increase and whether the new amount of child support constituted an abuse of the trial court’s discretion.

The two children are a girl born December 17, 1964, and a boy born December 17, 1966. Since the time of the first judgment both parents have remarried, the mother having two children by her second marriage and the father, one. The father’s income at the time of the second judgment was approximately $5,000 per month, which was a substantial increase over his income in June, 1971. The mother testified that the boy now requires psychiatric treatments once or twice a week at $60 per treatment (not a requirement in 1971). The tuition of both children, with the girl now in high school and the boy attending a private school, and all other expenses for the two children for food, clothing, recreation, transportation and shelter have increased considerably. This evidence is sufficient to warrant an increase for the support of the children in the amount of $550 per month, especially considering the increase in the cost of living between June 30, 1971, and October 24, 1979, and considering that the father with his increased income is in a position to provide his children with a higher standard of living than they were entitled to at the time of the first judgment. On the basis of this evidence and these inferences, we are not persuaded that the trial judge abused his discretion in making the increase. Phillips v. Phillips, 319 So.2d 566 (La.App. 4th Cir. 1975), Lamothe v. Lamothe, 262 So.2d 87 (La.App. 4th Cir. 1972).

The principal arguments of the father are that he should be permitted to pay for the psychiatric treatments himself rather than to include the cost of those treatments in the support payment to his former wife, and that the overall household figures provided by the wife indicate that his support payments for his two children are being used in large measure to support his former wife and her present husband, as well as their own two children born of their marriage.

On the first contention, appellant has no legal authority for suggesting that the custodial parent should not receive the amounts for medical support and pay the bills herself. Appellant cites no authority to require that he be given the right to pay these medical bills himself.

The second argument is not supported by the evidence which we have already discussed concerning current needs of the children and the means of their father. Starting from the proposition that the children are entitled to enjoy a standard of living commensurate with their father’s, it seems impractical for the former wife to isolate her two older children from her new family when her entire family must share the same household, eat at the same table, and spend most of their time together in the same activities. Considering all the circumstances, we are unable to conclude that any error has been demonstrated in the judgment of the trial court, and it is affirmed.

AFFIRMED.

REDMANN, J., concurs with assigned reasons.

REDMANN, Judge,

concurring.

A custodial parent who has two sets of children (from two marriages) can hardly feed steak to one set and beans to the other. Defendant father argues that $1,250 monthly child support cannot be spent on his children because their mother cannot afford to spend similarly on her other two children, and that the result will be that his child support money will be spent on the mother’s whole new family. But that argument does not fit our facts: after spending $300 on medical and about $200 on private schools and related expenses, the mother would have only $750 before taxes to spend on the two older children, while she has $1,400 after taxes (plus her income from snowball and ice cream store) to spend on herself, her second husband and their two younger children. Thus the issue that defendant father seeks to raise is not present here.

Defendant also argues that the $300 monthly increase for psychotherapy should have taken the form of an order to him to pay direct the bills for psychotherapy. There are reasons to commend this form in respect to substantial and unusual expenses of indefinite duration, not the least among which is economy of judicial administration. The judgment appealed from is questionable in form as judicial administration, in already overcrowded courts, because it will multiply litigation: the paying parent is obliged to sue for a reduction in child support when the medical expense becomes no longer necessary; the custodial parent is obliged to sue for an increase if more frequent therapy becomes necessary. But the fact remains that the change that defendant father seeks is a matter of form rather than of substance, and it is a change he did not seek in the trial court: it should therefore not be considered on appeal notwithstanding La.C.C.P. 2164’s authorization of “any judgment which is just, legal, and proper upon the record on appeal.”


author: GULOTTA, Judge.

text:
    Ruby B. Duhe, Wife of/and Marcel DUHE v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS.
    No. 11194.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Singerman, Cosentino, Broussard, Toups & Troyer, Martin L. Broussard, Jr., New Orleans, for plaintiff-appellee.
    C. Monk Simons, III, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment in favor of plaintiffs for the unlawful detention of Ruby Duhe, arising out of a claim by defendant’s security officer that Mrs. Duhe changed a price tag on an item in defendant’s store. Liability is at issue, but quantum is not. We affirm.

Based on the testimony of a Schweg-mann’s security officer that he witnessed Mrs. Duhe changing the price sticker on a tube of suntan lotion, defendant contends reasonable cause existed for plaintiff’s detention and interrogation, exonerating defendant from civil liability.

It has been made statutorily and jurisprudentially clear that a merchant is entitled to make a reasonable investigation and to exercise reasonable force to detain a person for questioning, where reasonable cause exists to believe the person detained has committed a theft of merchandise. LSA-C.Cr.P. article 215; Thompson v. LeBlanc, 336 So.2d 344 (La.App. 1st Cir. 1976), writ refused 339 So.2d 26; Mullen v. Schwegmann Brothers Giant Super Market, Inc., 378 So.2d 510 (La.App. 4th Cir. 1979); Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975), writ refused 328 So.2d 887; Brown v. Hartford Ins. Co., 370 So.2d 179 (La.App. 3rd Cir.. 1979); Sapp v. J. A. West Co., 352 So.2d 268 (La.App. 2nd Cir. 1977), writ denied, 353 So.2d 1337 (1978). The question then is whether defendant had reasonable cause to detain, interrogate and obtain a confession under threat of arrest. In this case the existence or non-existence of “reasonable cause” is based upon a credibility determination. The trial judge clearly accepted the testimony of Mrs. Duhe and rejected the testimony of Richard Apple-gate, the Schwegmann security guard.

According to Applegate, he saw Mrs. Duhe place a lower-priced sticker on a tube of suntan lotion, reducing the price from $1.99 to $1.12, and he watched as plaintiff paid the reduced price at the checkout counter. He then stopped her, and escorted her, along with another security guard and a female employee of Schwegmann’s, to a room in the rear of the store. There Mrs. Duhe was interrogated regarding her actions and was required, under threat of arrest by law enforcement officers, to sign a confession and to pay the price difference.

No other Schwegmann employee or security guard corroborated Applegate’s testimony relating to witnessing the price sticker change by Mrs. Duhe. Furthermore, absent also from the evidence is the box containing the tube of suntan lotion which remained in the possession of Schwegmann, according to Applegate, and on which the $1.99 price sticker was placed. Significantly absent also from the evidence were any other boxes containing suntan lotion on the shelves on the same day of this alleged theft which were marked with the $1.99 price sticker. Furthermore, readily recognizable from the record are contradictions between Applegate’s testimony and that of Robert Rogers, the other security guard, who accompanied Mrs. Duhe and Applegate to the interrogation room. According to Rogers, Mrs. Duhe was apprehended in the store. Applegate testified initially that she was apprehended in the store but on further continued examination admitted that Mrs. Duhe was stopped for interrogation by him in the parking lot near her automobile.

Mrs. Duhe, on the other hand, stated that she was interrogated by Applegate in the parking lot; that she picked up two tubes of suntan lotion; and that one tube had a price tag on it and the other did not. She did not notice whether or not the tubes were in boxes but said the display was dissheveled. She stated that she had never stolen anything in her life and had never been arrested. She signed the confession (although unable to read it because her eye glasses were not available), and agreed to pay the price difference, under threat of being placed in handcuffs and turned over to the authorities for arrest.

It is clear from an evaluation of the evidence that if the security guard’s testimony is accepted, there existed reasonable cause for Mrs. Duhe’s detention. On the other hand, if the testimony of Mrs. Dúhe is accepted and the security guard’s testimony rejected, there existed no reasonable cause for detention. Our evaluation of the evidence leads to a conclusion consistent with the obvious findings of the trial judge. Having so concluded, we find no error and affirm the judgment of the trial court.

AFFIRMED.


text:
    Donald PITTS v. Ronald TREADWAY, Gulf South Divers, Inc., and Gulf South Refrigeration, Inc.
    No. 11216.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.

      Gerald A. Stewart, New Orleans, for plaintiff-appellee.
    Klein & Rouse, Henry L. Klein, New Orleans, for Ronald Treadway, defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

On March 21, 1979, Donald Pitts, as 50% owner of the stock in Gulf South Divers, Inc., and Gulf South Refrigeration, Inc., petitioned the trial court to place these two corporations in involuntary dissolution and liquidation under supervision of the court.

On May 21, 1979, the court-appointed liquidator moved that the court rule Donald Pitts and Ronald Treadway to show cause why 300 shares of stock of Gulf South Boat Rentals, Inc. (hereinafter referred to as Rentals), issued by that corporation to each party in their respective names but actually paid for by Gulf South Divers, Inc. (hereinafter referred to as Divers), should not be declared to belong to the liquidated corporation Divers and why said shares should not be sold as an asset of the liquidated corporation. He noted that Ronald Tread-way claimed the stock belonged to Divers but that Donald Pitts denied this claim.

After taking evidence, the trial court rendered judgment on the rule on August 27, 1979, stating:

“IT IS ORDERED, ADJUDGED, AND DECREED that the SIXTY FIVE THOUSAND AND 00/100 ($65,000.00) DOLLAR proceeds issued on April 13, 1978 from Gulf South Divers, Inc. to Gulf South Boat Rentals, Inc. represents a TWENTY FIVE THOUSAND and 00/100 ($25,000.00) DOLLAR loan from Gulf South Divers, Inc. to Donald Pitts, a TWENTY FIVE THOUSAND AND 00/100 ($25,000.00) DOLLAR loan from Gulf South Divers, Inc. to Ronald Tread-way, and a FIFTEEN THOUSAND AND 00/100 ($15,000.00) DOLLAR loan to Gulf South Boat Rentals, Inc. from Gulf South Divers, Inc.
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Donald Pitts and Ronald Treadway are the legal owners of each one hundred and fifty (150) shares of stock issued to them from Gulf South Boat Rentals, Inc., and the said Gulf South Divers, Inc. has no claim, right, or ownership to said stock.”

Defendant Treadway now appeals.

The April 13,1978 check issued by Divers to Rentals for $65,000 was signed by both Treadway and Pitts, who were each 50% owners of that corporation, and was endorsed “Gulf South Boat Rentals by Donald Pitts.”

On the same day, a stock certificate for 150 shares of stock in Rentals was issued to Ronald Treadway; a 150-share certificate was issued to Donald Pitts; and certificates for 100 shares each were issued to Vincent Licata, A. J. Licata and Katherine Kraft.

Pitts, who was president of both Divers and Rentals, testified at trial that he and Treadway borrowed the $65,000 from Divers. He said $25,000 was for him; $25,000 was for Treadway; and $15,000 was for operating capital in Rentals.

Vincent Licata, who also manages the large boat belonging to Rentals, explained at the hearing that he and his brother and sister also contributed $50,000 plus $15,000 working capital to start the business in return for the stock received in their names.

Licata also said that, subsequently, Rentals began to show a profit and, consequently, near the end of 1978 or early in 1979 there was a meeting of all the parties involved which resulted in a distribution of money to all the stockholders in proportion to the number of shares each one owned. He added that the $15,000 Pitts had characterized as a loan was actually “owed” by Rentals and he said when everyone decided to take their money back, Pitts and Tread-way would get $15,000 and the other $15,-000 would be split between his brother, his sister and himself.

In spite of the above testimony, Tread-way insisted at trial that Divers was the owner of the stock rather than he and Pitts as individuals and said that his stock in the boat company had just been “sent” to him in his name. He described the 1978 distribution of funds as a “bonus” rather than a dividend in spite of the fact that Rentals had only one employee at the time and Treadway himself was not an employee of that corporation.

There were no corporate records of promissory notes, no resolutions of loans, and no resolutions regarding the purchase of the stock in Rentals produced at the hearing. However, the shares of stock in the boat rental corporation were properly issued in compliance with the provisions of LSA-R.S. 12:52 and LSA-R.S. 12:57.

In reaching his decision the trial judge concluded that although Divers had given the $65,000 check to Rentals and Rentals in turn had issued $25,000 of stock respectively to Pitts and Treadway, retaining $15,000, the intent of the entire transaction was clear. The trial court determined from all of the evidence presented, and we agree, that it was the intent of Pitts and Tread-way, the sole owners of Divers, (1) to borrow $50,000 from Divers with which they each purchased $25,000 of stock in Rentals, and (2) to have Divers loan $15,000 to Rentals. It is not unusual to find this type of informal handling of transactions in closely held corporations.

We find, therefore, in view of all of the evidence produced at the hearing, the appellant Ronald Treadway failed to show that the stock in Gulf South Boat Rentals, Inc., belonged to Gulf South Divers, Inc., rather than to himself and Pitts individually-

Accordingly, the judgment of the trial court is affirmed in all respects. All costs of these proceedings are to be paid by plaintiff-appellant.

AFFIRMED.

GARRISON, J., dissents.


text:
    Clarence BILLIOT, d/b/a Live Oak Seafood Co. v. SEA LIFE, INC., Angelo C. Kogos, Nicholas Kogos, and Angelo P. Kogos.
    No. 11221.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Ross P. LaDart, Harvey, for plaintiff-appellant.
    Edmond J. Harris, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

Clarence Billiot, d/b/a Live Oak Seafood Co., appeals from a judgment annulling a prior default judgment in his favor against defendants Angelo C. Kogos, Nicholas Ko-gos, and Angelo P. Kogos. Billiot had sued defendants on an open account in the amount of $44,276.65. Although defendants had filed an answer to plaintiff’s demand, their answer was later stricken from the record as a sanction for their failure to comply with an order compelling discovery. On the same day the answer was stricken (March 9, 1979), plaintiff entered a preliminary default against the individual defendants. Approximately a month later, plaintiff confirmed the default and on the same day (April 11, 1979), a judgment against defendants in the full amount prayed was signed. Judgment was not rendered against the corporate defendant, Sea Life, Inc.

Angelo C. Kogos filed a petition to annul the judgment, in which he was joined by Patricia Burglass, wife of/and John L. Gohres, and Eunice Clesi, wife of/and Ronald L. Black. (All hereinafter called Gohres-Black). Gohres-Black had purchased from Angelo C. Kogos a piece of real property, against which the default judgment in plaintiff’s favor had been recorded prior to the recordation of the Gohres-Black act of sale. Nicholas Kogos and Angelo P. Kogos later filed a separate petition for nullity on their own behalf.

In written reasons for judgment annulling the default judgment, the trial judge, in part, concluded that proper notice was not given to the Kogoses of the hearing on the motion to impose sanctions and that this failure violated the Kogoses’ right of procedural due process. The trial judge, citing Ludeau v. Jacob, 191 La. 427, 185 So. 458 (La.1938) further concluded that Gohres-Black had the right to annul the default judgment, because a judgment absolutely null may be attacked by anyone against whom it is sought to be enforced.

Billiot points out that defendants were personally served with the original petition on the open account, that personal service was made on the Kogoses to compel attendance for the taking of depositions, that defendants received personal service of the notice of judgment compelling the taking of the depositions, and that notice of the rule to apply sanctions (resulting in the judgment to strike defendants’ answer) was served on the attorney for defendants. Under these circumstances Billiot claims no grounds exist under LSA-C.C.P. arts. 2002-2004 for granting a nullity of judgment. We reject this contention.

LSA-C.C.P. art. 2002, in pertinent part, provides:

“A final judgment shall be annulled if it is rendered:
* * * * * *
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;

In the determination of whether a valid default judgment had been granted, it is necessary to ascertain if proper notice was given to defendants of the hearing to impose sanctions, which resulted in the striking of defendants’ answer permitting the confirmation of the default judgment. In this connection, the record reveals that although the original motion for sanctions had been served on defendants’ attorney, it was not heard on the day originally set, but was continued. Two days after the continuance, but before notice of the hearing date was sent out, defendants’ attorney withdrew as counsel of record. After he had withdrawn, he was served with notice of the new date of the hearing to impose sanctions. No notice was sent to defendants. Neither defendants, nor their attorney who had earlier withdrawn, nor any other attorney represented defendants at that hearing. Under these circumstances, we conclude, as did the trial judge, that the default judgment was null because defendants had received no notice of the hearing of the motion for sanctions.

Billiot’s rule to impose sanctions for failure to comply with a discovery order, under LSA-C.C.P. art. 1471, resulted in striking defendants’ answer and the confirmation of the default judgment. The stringent sanctions set forth in LSA-C.C.P. art. 1471 permit, in addition to striking the answer, the granting of a default judgment or a finding of contempt. Necessarily a hearing to impose sanctions requires proper notice. See LSA-C.C.P. arts. 224 and 225. Service of notice on an attorney who has withdrawn prior to receipt of that notice is insufficient. Having so concluded, we hold that the order striking the defendants’ answer was null and the default judgment is invalid. See LSA-C.C.P. art. 2002(2).

Further, we find no merit to Billi-ot’s argument that the trial judge erred in directing a judgment to the recorder of mortgages, ordering him to cancel the inscription of the April 11, 1979 judgment, where no mandamus was sought and the recorder of mortgages was not made a party defendant. It is true that a mandamus is the proper remedy to compel the recorder of mortgages to cancel an illegal inscription. Dupuy v. Demarest, 342 So.2d 263 (La.App. 4th Cir. 1977), writ denied 344 So.2d 3. However, an application for writ of mandamus is not required until the clerk of court or recorder of mortgages refuses to comply with the request to cancel the inscription. See Wayside Development Co. v. Post, 338 So.2d 1173 (La.App. 2nd Cir. 1976).

In our case, the trial judge simply rendered an order in furtherance of the judgment, without the necessity of a separate mandamus suit being filed. We find no error in the use of judicial economy on the part of the trial judge. Furthermore, the recorder of mortgages (who was not made a party to the suit) is not objecting in this suit to the order. In the event the recorder raises that objection at a later date in the proceedings, that matter can be taken up by the trial judge.

On the other hand we do find merit in Billiot’s argument that the trial judge erred in annulling the original default judgment against Nicholas Kogos and Angelo P. Kogos. Their petition for nullity, filed separately from that of Angelo C. Kogos and Gohres-Black, was not served on Billiot. An action for nullity is an ordinary proceeding requiring citation and service. League Central Credit Union v. Gagliano, 261 So.2d 715 (La.App. 4th Cir. 1972); Garnett v. Ancar, 203 So.2d 812 (La.App. 4th Cir. 1967). Absent citation and service, an ordinary proceeding is absolutely null (LSA-C.C.P. art. 1201), and requires that the judgment annulling the default judgment in favor of Nicholas Kogos and Angelo P. Kogos be vacated and set aside.

Accordingly, the October 23, 1979 judgment of the trial court in favor of Angelo C. Kogos, Patricia Burglass, wife of/and John L. Gohres, and Eunice Clesi, wife of/and Ronald L. Black, annulling the April 11,1979 default judgment is affirmed. The October 23,1979 judgment in favor of Nicholas Kogos and Angelo P. Kogos annulling the April 11, 1979 default judgment is rescinded, vacated and set aside. The matter is now remanded for further proceedings not inconsistent herewith. Assessment of costs is to await the outcome of the litigation.

AFFIRMED IN PART; RESCINDED IN PART, AND REMANDED.

      . LSA-C.C.P. art. 1471 reads as follows:
      “Art. 1471. Failure to comply with order compelling discovery; sanctions.
      If a party . fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

      (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
      (4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination. * * * ”

      . Billiot’s exception of no right or cause of action and his answer to the petition for nullity were directed only against the first petition, filed by Gohres-Black and Angelo C. Kogos. Therefore, Billiot never made a general appearance in the Nicholas Kogos and Angelo P. Ko-gos suit for nullity, nor did Billiot waive citation and service of process of that petition for nullity.


text:
    Robert Lee HERSEY v. STATE of Mississippi.
    No. 51817.
    Supreme Court of Mississippi.
    May 7, 1980.
    Rehearing Denied July 9, 1980.
    Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, LEE and BOWLING, JJ., concur.


author: BROOM, Justice, for the Court:

text:
    Mrs. A. E. BERRYHILL, Administratrix of Estate of Kenneth Berryhill, Deceased v. Kenneth BYRD.
    No. 51843.
    Supreme Court of Mississippi.
    May 14, 1980.
    Rehearing Denied July 9, 1980.

      Michael J. Malouf, Jackson, for appellant.
    Watkins & Eager, Velia Ann Mayer, Jackson, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   BROOM, Justice, for the Court:

Continuing a motion for a new trial to a vacation date without any further action until the next term highlights this tort case which arose out of an altercation in which appellee/defendant Kenneth Byrd apparently shot appellant/plaintiff Kenneth R. Berryhill. Trial was in the July-August Term of the Circuit Court of the First Judicial District of Hinds County, Mississippi, where Berryhill received a $100,000 jury verdict ($50,000 actual and $50,000 punitive damages) and judgment (dated July 24, 1978). Byrd filed a motion for j. n. o. v. or new trial, dated July 28, 1978. His motion was “continued until August 31, 1978 for argument” but nothing was done on that date. Berryhill appeals from an order granting a new trial, contending the lower court lost jurisdiction when the vacation date passed without any action being taken on the motion for new trial. He also makes other arguments concerning the motion for a new trial. We reverse.

This suit arose from an altercation between Berryhill and Byrd at KG’s Lounge in Jackson. The incident culminated in Berryhill being shot twice in the abdominal area with a pistol owned by Byrd, and which Byrd introduced into the affray. Berryhill was taken to the hospital where emergency surgery was performed. Berry-hill suffered massive blood loss and during the surgery approximately five (5) feet of his small intestine was resected. Also, extensive damage to his abdominal wall had to be repaired.

DID THE TRIAL COURT ERR IN GRANTING A NEW TRIAL AFTER THE VACATION SETTING PASSED WITHOUT ACTION THEN BEING TAKEN? During the term in which the cause was tried, Byrd’s motion for j.n.o.v. or a new trial was by written order continued to August 31, 1978, a vacation date. Without any further action in vacation, the new trial motion received no attention until during the next term when on September 22, 1978 the court ordered the motion continued to November 27, 1978. On October 14, 1978, prior to the adjournment of the September 1978 Term, the court entered an order carrying over for hearing and decision in vacation or the next court term all pending motions and appeals. On October 17, 1978, a day in vacation subsequent to conclusion of the September Term, there was a hearing on the motion for j.n.o.v. or new trial. After the October 17 hearing, the court entered an order dated October 24, 1978 overruling the defendant’s motion for j.n. o.v. but upholding the motion for a new trial.

At the second trial, December 6-8, 1978, the jury awarded Berryhill a $20,000 verdict for actual damages. A judgment reflecting the jury verdict was signed by the court on December 11, 1978, after which Berryhill perfected this appeal regarding the lower court’s upholding of Byrd’s motion for a new trial.

Berryhill agrees that the lower court had authority to continue the matter below to August 31, 1978 by its order dated August 2,1978. Argument is that no further action being taken on the matter prior to the beginning of the September Term of court, the lower court lost jurisdiction and therefore could not enter any further orders concerning the cause below, and particularly concerning the motion for a new trial.

United States Fidelity & Guaranty Company v. Strange, 360 So.2d 682 (Miss.1978) is relied upon by Berryhill. He states that Strange, supra, held “that the circuit court which took a matter under consideration for decision in vacation lost jurisdiction with the commencement of the next term and that any order rendered thereafter was null and void.” We think Berryhill has misconstrued Strange because nowhere in Strange did we say that the lower court had lost jurisdiction. Construed most strongly in favor of Berryhill, the most that we stated in Strange was that the lower court was without statutory authority to enter an order in vacation after an intervening term of court.

In Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787 (1933) we held that:

[Wjhere a motion for a new trial is not disposed of at one term of court, it is continued until the next term and remains to be acted upon by the court at a subsequent term. O’Bannon v. Greenville Commercial Body Company, 159 Miss. 68, 132 So. 87, and Union Motor Co. v. Cartledge, 133 Miss. 318, 97 So. 801. (168 Miss. at 213, 149 So. at 788).

See also Long v. Magnolia Hotel Company et al., 236 Miss. 655, 111 So.2d 645 (1959), and Edwards v. Peresich, et al. 221 Miss. 788, 74 So.2d 844 (1954).

Of course it is the duty of a mov-ant to pursue his motion and offer proof in support of it. Nevertheless when he fails to do so, unless the court of its own volition disposes of the motion the respondent may (but did not do so here) ask the court to act upon it and remove it from the docket. Upon this record, we hold that jurisdiction was not lost by the lower court for its failure to act upon the motion for new trial on the “day certain” in vacation to which the matter was continued.

Next argument made by Berryhill is the contention that the lower court erred in sustaining Byrd’s motion for new trial on grounds not assigned as error in the motion for new trial. Berryhill argues that the lower court was not authorized to grant a new trial based on grounds other than those assigned in the motion for a new trial. Study of the record shows that the court sustained the motion for a new trial primarily on two grounds: granting of instruction No. 29 (hereinafter 1-29) for Berryhill, and pertaining to jury argument by Berryhill’s counsel “as to the criminal Courts unable [sic] to handle Mr. Byrd . . ”

Clearly, Byrd’s motion for new trial related to “each and every instruction requested by the Plaintiff and marked ‘Given’ by the Court. . . .” In this aspect of the case, the motion for new trial did sufficiently focus upon jury instructions. However, appellant Berryhill next raises the argument that the granting of 1-29 was not proper basis for sustaining the motion for new trial because Byrd failed to preserve the error by making any timely objection at trial to 1-29. Berryhill’s brief states that: “The record is silent as to any objection by Appellee to instruction # 29 (P-15) and, furthermore, the trial judge specifically found that Appellee had not objected to the instruction.” (1-29 in the record is also referred to as P-15). Our examination of the record has not revealed any specific objection having been made by Byrd to 1-29.

In further reply to Berryhill’s argument, Byrd states that he “was prevented from complying with Rule 14 of the Uniform Circuit Court Rules by the fact that the trial court released the court reporter on the evening of July 20, 1978, and did not require her to return on the morning of July 21, 1978, although he knew that additional jury instructions would be presented on the morning of July 21. Thus, the court itself prevented appellee from dictating into the record his objections to instruction No. 29 (P. 15). Moreover, as stated by the Circuit Court on page 561 of the record: ‘[B]ecause of the press of time . the Defendant may or may not have been presented an opportunity to properly object to the instruction’.” Nevertheless, under Supreme Court Rule 42, Byrd had the duty of in some manner objecting to the instruction—he could have written out his objections but failed to do so.

Byrd makes yet another novel explanation to justify his failure of making specific objection to 1-29. He states that “it is undisputed that counsel for Defendant Byrd on July 21 offered a handwritten instruction, Instruction No. 31, in an effort to counter Instruction No. 29 (P-15). On page 562 of the record herein the Circuit Court correctly stated that the granting of Instruction No. 29 (P-15) was ‘plain error’, that it was error to refuse appellee’s instruction offered to counter Instruction 29 (P-15), and that the offering of the defendant’s instruction was in itself an objection to Instruction No. 29 (P-15).” Our scrutiny of the record fails to reveal that any instruction requested by Byrd could be logically considered under Mississippi practice to be “in itself” objection to the controversial instruction 1-29. Also, no authority in support of this contention has been cited to us, and on this state of the record it cannot be said that Byrd sufficiently objected to 1-29 so as to make it a proper basis of a motion for new trial.

In his reply brief, Byrd takes the position “that under Rule 42, supra, inferior courts, likewise, can grant in extreme cases a new trial based on an erroneous jury instruction that was not objected to, in order to prevent manifest injustice. The Circuit Court herein recognized that the granting of Instruction No. 29 (P-15) was ‘one of plain error and the Court should not have granted this instruction under any circumstances’.” We do not hold that “in extreme cases” in order to prevent manifest injustice a trial judge is without power to grant a new trial because of an erroneous jury instruction granted without objection. We recognize that there are cases, though rare, where the enormity of a trial error (even where no objection is made at time of error) in an “extreme case” calls upon and justifies the trial judge acting within his sound judicial discretion and pursuant to his inherent power to grant a new trial. Sanders v. State, 239 Miss. 874, 125 So.2d 923 (1961). In this case the $100,000 verdict first returned was consistent with the evidence and was supported by applicable law. Another aspect of the instant case is the absence of any showing by Byrd (though he claimed such) that he was prejudiced by the granting of 1-29. Upon the whole record, we have concluded that the $100,000 verdict returned in favor of Berryhill at the first trial cannot be logically or properly viewed as constituting an “extreme case” or a “manifest injustice.” No new trial should have been granted as occurred in this case upon the record presented.

Also before us is the contention of Berryhill that the lower court in part sustained Byrd’s motion for new trial because of improper jury argument made by counsel for Berryhill. Our examination of the motion for new trial shows that nowhere did it specifically mention the subject of improper jury argument. The motion does, after designating certain grounds, state the following catch-all “(i) Other grounds to be assigned at the hearing hereof.” Such language too commonly appears in motions for new trials but is totally inane, empty and without effect as a matter of law. There simply was not sufficient reference to the jury argument in the motion for new trial to include such a ground and could not properly be even in part an adequate basis for sustaining the motion for new trial. This is especially true in light of the lower court’s refusal to allow Byrd to amend his motion to particularly include the jury argument as a ground for new trial.

It is not necessary for us to reach Berry-hill’s assignment of error that the lower court erred in allowing Byrd to make his bill of exceptions after the court lost jurisdiction of the matter. Here the bill of exceptions before the court was made on the motion for new trial, not on anything that occurred before the jury retired. Accordingly, Mississippi Code Annotated § 11-7-207 (1972) is not pertinent.

After responding to Berryhill’s assignments of error and the matters contained in Berryhill’s (appellant’s) brief, Byrd makes a lengthy discussion of additional grounds on which the lower court could have based its granting of Byrd’s motion for a new trial. Berryhill then filed a motion to strike the additional argument (designated VI) from the brief of Byrd, which motion this Court passed until consideration of the case on its merits. We now sustain the motion to strike because it is obvious to us upon the record that the lower court neither did nor should have relied on any of these additional grounds as being sufficient basis to sustain the motion for a new trial.

Granting the new trial upon the record was error, and the verdict and judgment rendered at the first trial must be re-instated.

REVERSED; VERDICT AND JUDGMENT RENDERED AT FIRST TRIAL OF CAUSE RE-INSTATED.

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

      . See Colson v. Sims, 220 So.2d 345 (Miss.1969) for a discussion of the office of motions for a new trial.


text:
    Roland LEWIS and C. A. “Chet” Henley, Jr. v. Mrs. Vera GORDY et al.
    No. 51732.
    Supreme Court of Mississippi.
    May 14, 1980.
    Rehearing Denied July 20, 1980.
    Dixon L. Pyles, Pyles & Tucker, Jackson, for appellants.
    Moore, Simmons & Thompson, Frank T. Moore, Jr., Wise, Carter, Child, Steen & Caraway, Natie P. Caraway, Jackson, for appellees.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   Appeal from Chancery Court, Hinds County; George William Haynes and Joe G. Moss, Chancellors.

AFFIRMED.


text:
    Harry T. WINHAM et ux. v. Jack YOUNGBLOOD.
    No. 51912.
    Supreme Court of Mississippi.
    May 14, 1980.
    Rehearing Denied July 9, 1980.
    Laurel G. Weir, Philadelphia, for appellants.
    Bourdeaux & Jones, Thomas D. Bour-deaux, Goldman & Goldman, Thomas L. Goldman, Meridian, for appellee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Sammy THRASHER v. MID-STATE MOTOR COMPANY et al.
    No. 51897.
    Supreme Court of Mississippi.
    May 14, 1980.
    Rehearing Denied July 9, 1980.
    Laurel G. Weir, Philadelphia, for appellant.
    Thornton, Guyton, Dorrill & Pettit, George L. Dorrill, Kosciusko, for appellees.
   Appeal from Chancery Court, Attala County; Edward C. Prisock, Chancellor.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    Harold G. MEEK et ux. v. John C. SEALY, Sr. et al.
    No. 51874.
    Supreme Court of Mississippi.
    May 14, 1980.
    Rehearing Denied July 9, 1980.
    Troutt & Moore, Nat G. Troutt, Senato-bia, for appellants.
    Joel P. Walker, Jr., Hernando, for appel-lees.
   Appeal from Circuit Court, Tate County; Dennis M. Baker, Special Judge.

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

AFFIRMED.


author: SUGG, Justice, for the Court.

text:
    DIXIELAND FOOD STORES, INC., et al. v. KELLY’S BIG STAR, INC.
    No. 51934.
    Supreme Court of Mississippi.
    May 21, 1980.
    Rehearing Denied July 9, 1980.

      Daniel, Coker, Horton, Bell & Dukes, B. Stevens Hazard, Joe H. Daniel, Curtis E. Coker, Frank C. Horton, Thomas A. Bell, John M. Roach, Thomas H. Suttle, Jr., John B. Clark, Jackson, for appellants.
    Cothren, Pittman & Ferrell, Crymes G. Pittman, Jackson, E. Howard Eaton, Tay-lorsville, Eugene C. Tullos, Tullos, Tullos & Tullos, Raleigh, for appellee.
   SUGG, Justice, for the Court.

ON MOTION TO DISMISS APPEAL

The Circuit Court of Smith County entered a judgment against appellants in favor of appellee for $250,000 which was filed on May 5, 1979. The last post trial motion was overruled on July 12, 1979, and on that date, appellants filed a petition for appeal in which they requested the clerk to mark the petition filed “and act otherwise in accord with section 11-51-15 Mississippi Code Annotated (Supp.1978) and other applicable statutes.” Appellants filed an appeal bond with supersedeas in the amount of $312,500. The Circuit Clerk of Smith County approved the bond and granted the appeal on July 12, 1979 as authorized by section 11-51-51 Mississippi Code Annotated (Supp. 1978).

The clerk filed his certificate of the estimated cost of appeal on September 13,1979. Appellants’ attorneys paid the cost with three checks as follows:

September 4, 1979 - Estimated Appeal Cost - $600.00
September 10, 1979 - Estimated Appeal Cost - $300.00
September 18, 1979 - Balance of Appeal Cost - $112.05 Total .$1,012.05

After the record was filed in this Court on October 30, 1979, appellee filed a motion to dismiss the appeal for failure of appellants to take an appeal within 45 days after July 12, 1979, as required by section 11-51-5 Mississippi Code Annotated (Supp. 1978). Appellee contends appellants were required to prepay the costs of the lower court and pay the filing fee of $50.00 required by section 25-7-3 Mississippi Code Annotated (Supp.1978) within 45 days next after the judgment appealed from.

At the outset, we note there are three ways to take an appeal to this Court. (1) Where there is no petition for appeal, by prepaying the costs in the lower court and the fee required by section 25-7-3. (2) Where there is no petition for appeal, filing in the office of the clerk of this Court a transcript of the record of the case in which the appeal is taken. (3) By petition for appeal. Section 11-51-15 Mississippi Code Annotated (Supp.1978). Regardless of the method used to appeal to this Court, the appeal must be taken within 45 days next after rendition of the judgment or decree complained of except in cases involving persons under a disability of infancy or unsoundness of mind. Section 11-51-5. The question in each case is, when was the appeal taken?

Section 11-51-29 Mississippi Code Annotated (Supp.1978) provides that appellant shall prepay all appeal costs, but does not provide the time for prepayment of costs. The time for prepayment of costs in an appeal from a final judgment under (1) and (2) above is governed by section 11-51-25 Mississippi Code Annotated (Supp.1978) which follows:

A written petition for an appeal shall not be necessary to its validity, but filing in the office of the clerk of the supreme court a transcript of the record of the case in which the appeal is taken shall confer jurisdiction on the supreme court to try and dispose of the case. Where there is no petition for the appeal, it shall be considered to have been taken when the costs in the lower court and the fee required by section 25-7-3 were paid to the clerk of the lower court or from the time of filing the transcript of record in the office of the clerk of the supreme court.

Where there is no petition for an appeal, the appeal shall be considered to have been taken when the costs in the lower court and the fee required by section 25-7-3 is paid; therefore, if an appeal is taken by this method, the time of prepayment of costs is the time the appeal is taken. Allgood v. Allgood, 367 So.2d 450 (Miss.1979).

Where there is no petition for appeal, an appeal may be taken by filing the transcript of the record in the office of the clerk of this Court. In such case, the time the record is filed in the office of the clerk of this Court is the time the appeal is taken. Under this method the costs would have been paid within 45 days of the judgment because section 11-51-61 requires payment of costs before the transcript can be filed in this Court.

In this case the appeal was taken by filing a petition for appeal under sections 11-51-15 and 11-51-51, which follow:

Section 11-51-15
The petition for appeal need only state the rendition of the judgment or decree to be appealed from, and ask for an appeal. Such petition shall be marked by the clerk “filed,” and shall be dated and the marking filed shall be signed by him. The clerk shall copy said petition, with the endorsements on it, in the transcript of the record to be made by him. The time of presenting such petition for an appeal shall be considered the time of taking the appeal, if costs be then paid as required.
Section 11-51-51
In all cases, except appeals from decrees overruling demurrers in chancery and appeals from interlocutory decrees in chancery, appeals to the supreme court may be granted by the clerk of the court from which such appeals can be taken, and in which the judgment or decree was rendered. In all cases not otherwise provided, the clerk shall approve the superse-deas bond.

We are of the opinion that the provision, “if costs be then paid as required” refers to section 11-51-61 Mississippi Code Annotated (Supp.1978) rather than section 11-51-25.

We reach this conclusion for two reasons. First, we note the difference in the provisions of section 11-51-15 and section 11-51-7, which governs appeals from interlocutory orders or decrees of the chancery court. Section 11-51-7 provides that, “such appeal must be applied for and costs paid within thirty (30) days after the order or decree appealed from is filed . . . ” If the legislature had intended for the costs of appeals from final judgments to be paid within 45 days of the date of the judgment appealed from, in cases where the appeal is by petition for appeal, such intention would have been stated as clearly as was stated in section 11-51-7. Section 11-51-61 does not require payment of costs within 45 days of the date of the final judgment appealed from but directs the clerk to record in the official file of the case an estimate of the appeal costs, and if the actual costs exceeds the estimate, appellant is required to pay the balance before the record is filed. In this case, the clerk failed to prepare the cost bill as required by this section although the petition for appeal requested the clerk to act “in accordance with the applicable statutes.” We therefore conclude that in cases where petition for appeal is filed and granted by the clerk of the trial court, the appeal is taken when the petition is filed. Of course, appellant must pay the costs “as then required,” which means after the estimate of costs is prepared by the clerk and before the record is filed in this Court.

Second, we are of the opinion this construction is mandated by section 11-3-5 Mississippi Code Annotated (Supp.1978) which follows:

An appeal to the supreme court shall not be dismissed for want of jurisdiction because of a defect in the application for appeal, or in the bond, or because an insufficient amount was paid to prepay the costs or because of any failure by an officer to comply with the requirements of law in reference to appeals; but all defects and irregularities may be cured by amendment so as to perfect the appeal and obtain the judgment of the supreme court in the case; but the court may dismiss an appeal for a failure of the appellant to do, within a reasonable time, what may be necessary to perfect his appeal.

We stated in Jones v. Welford, 208 So.2d 196 (Miss.1968) that this statute is broad in its terms and is not restricted to trivial defects and irregularities. The statute announces the public policy to hear appeals on the merits despite procedural defects. The clerk of the trial court failed to prepare the estimate of the cost of appeal within 5 days as required by section 11 — 51— 61. Section 11-3-5 provides that an appeal to this Court shall not be dismissed for want of jurisdiction because an insufficient amount was paid to prepay the costs or because of any failure by an officer to comply with the • requirements of law in reference to appeals. In this case $900 of the appeal cost was paid before the clerk filed his estimate of costs and the balance of $112.05 was promptly paid upon filing of the estimate.

Allgood, supra, is not authority to the contrary because the appeal in Allgood was not by petition for appeal but was taken by prepayment of costs. Although the costs in Allgood were not paid within 45 days, we permitted the appeal under the unique factual circumstances of the case because (1) the new statutes had gone into effect shortly before final judgment was rendered, (2) the appellant had made a good faith effort to timely perfect the appeal under the old method, and (3) appellant was not timely presented with a bill of costs. We held there were sufficient acts to demonstrate a good faith effort to perfect the appeal and refused to dismiss, citing Sabougla Drainage District v. Peoples Bank and Trust Co., 191 Miss. 331, 1 So.2d 219 (1941); Wallace v. State, 149 Miss. 198, 115 So. 342 (1928).

In this case appellants complied with the statutes, made a good faith effort to perfect their appeal and should not have their appeal dismissed for want of jurisdiction simply because the clerk failed to comply with the requirements of law.

MOTION OVERRULED.

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

BOWLING, J., takes no part.

      . Appeals from an interlocutory order or decree from chancery court must be applied for and costs paid within 30 days after the order or decree appealed from is filed in the proper office whether the decision be in term time or in vacation. Section 11-51-7 Mississippi Code Annotated (Supp.1978).

      . The clerk of the trial court shall, within five (5) days of the rendering of a final judgment or a final decree, compile, certify and record in the official file of the case a complete cost bill, including all of the costs in the trial court. This shall include an estimate of the cost of the preparation and transcription of the proceedings in the trial court, furnished by the court reporter. If the actual cost exceeds the estimate the appellant shall pay the balance before the record is filed; if the estimate of costs exceeds the actual cost the excess shall be refunded to appellant at the time the record is filed.
      When the appellant shall have complied with the law applicable to his appeal, the clerk of the court from which the appeal is taken shall immediately make and certify a transcript of the record of the case, and transmit it and the paid cost bill including the supreme court filing fee, and any bond taken except the bail bond in cases of misdemeanor, to the clerk of the supreme court; and in all civil cases, where the appeal is not perfected during the term of the court at which the judgment or decree complained of is rendered, he shall issue a summons to the opposite party to appear and answer the appeal in the supreme court. A copy of the cost bill and any bond taken shall be kept by the clerk as a part of the record of the case, and judgment may be rendered by the supreme court against the obligors in the bond without notice, or the representatives of any who have died after due notice. In cases remanded to the court below to ascertain the amount recoverable on any such bond, the copy kept in the clerk’s office shall be admissible in evidence, or the original may be obtained from the clerk of the supreme court for use in the court below.


text:
    Clifton BLAKENEY v. Ted HAWKINS.
    No. 52083.
    Supreme Court of Mississippi.
    May 21, 1980.
    Rehearing Denied July 9, 1980.
    Thomas D. Lee, Forest, for appellant.

      Oates & Houston, R. K. Houston, Jr., Bay Springs, Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   PATTERSON, Chief Justice, for the Court.

Pursuant to Mississippi Code Annotated section 23-5-187 (1972), Clifton Blakeney, a candidate in the November 6, 1979, election for the Smith County Board of Education, District No. 5, filed an election contest in the Circuit Court of Smith County. He alleged the County Election Commissioners’ certified results showing Ted Hawkins to be the winner by a plurality of thirteen votes arose from a material irregularity in the Warren Hill precinct ballot box evidenced by a discrepancy between the ballot count and the tally sheets. Blakeney appeals, challenging the sufficiency of the evidence to support the jury verdict upholding the results certified by the County Election Commissioners. We affirm.

The parties stipulated that only the Warren Hill box was in issue, and without it the total vote count was Blakeney, 239, and Hawkins, 232. During the trial, Obie Bryant, Clerk of the Circuit Court and Registrar of Smith County, opened the sealed Warren Hill box. The registration book inside revealed that 81 persons signed the “receipt book” for ballots to vote at Warren Hill in the election. The tally sheets inside revealed the votes cast for the candidates opposite their respective names as follows:

TALLY SHEETS
CANDIDATE NO. VOTES CAST
Hawkins 23
Blakeney 6
McCullum 33
Boykin 2
Corley 7
Craft 7
TOTAL 78

Bryant then removed the ballots from the box, separating them according to the candidates receiving the votes. This process revealed:

BALLOTS
CANDIDATE NO. VOTES CAST
Hawkins 1
Blakeney 7
McCullum 42
Boykin 2
Corley 6
Craft 8
TOTAL 66

The question thus became whether the ballots correctly reflected the legal votes cast, in which case Blakeney would be the true winner; or whether the tally sheets reflected the legal votes cast, in which event Hawkins would be the true winner.

Blakeney rested his case with Bryant’s testimony. Hawkins moved for a directed verdict, to which Blakeney’s attorney responded by saying, “It’s a question for the jury now to decide who is right and who is wrong, whether there were mistakes on the Tally Sheets or a mistake in the box.” The motion was overruled and Hawkins presented witnesses who described in detail the careful manner in which they called and tallied the ballots in accord with statute and with appropriate “checks and balances” to insure the accuracy of their counting and tallies. Each of these officials testified without contradiction that they heard candidate Hawkins’ name called numerous times although none recalled precisely how many times it was called.

No explanation has been offered by either of the parties for the discrepancy between the ballots and tally sheets although our examination reflects several “spoiled” ballots, accounting for the difference between the number of persons who signed the receipt book and the number of ballots in the box.

As a general rule, it is necessary for ballots to be authenticated before they can be introduced into evidence. This proof normally consists of evidence directed to the chain of custody, safekeeping and locking of ballot boxes, or other evidence sufficient to support a finding that the ballots are what the proponent claims them to be. However, this rule is not self-executing, and the parties here by stipulation waived this predicate to the introduction of both ballots and tally sheets.

It is apparent, we think, that a stipulation permitting ballots and tally sheets into evidence does not lend credibility or weight to that so introduced. Once the ballots and tally sheets were introduced into evidence by stipulation, the ultimate question of authenticity remained for the jury. Neither party having raised best evidence or foundation issues to bar admission of either ballots or tally sheets, the jury was left free to conclude that both could not be accurate, and that more likely than not the tally sheets meticulously prepared by disinterested poll workers immediately following the closing of the polls reflected the legal votes received.

While ballots are controlling as primary evidence where their proponent affirmatively demonstrates that the integrity of the ballot box has been maintained inviolate, see Burke v. Beasley, 75 So.2d 7, 46 A.L.R.2d 1381 (Fla.1954), where the parties stipulate into evidence what would otherwise be both primary and secondary proof, the presumption of correctness of the results certified by the election commissioners prevails, in our opinion, unless the jury finds the presumption overcome by some plausible explanation of the discrepancy. See Tebbe v. Smith, 108 Cal. 101, 41 P. 454 (1895).

In this case, the jury received no explanation for the discrepancy and therefore reasonably decided that the tally sheets accurately reflected the number of legal votes received by Hawkins and Blakeney at the Warren Hill box.

AFFIRMED.

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

LEE, J., took no part.


text:
    Irmgard HORVATH v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Midland Shirt Factory.
    No. 51959.
    Supreme Court of Mississippi.
    May 28, 1980.
    Rehearing Denied July 9, 1980.
    Richard L. Stradley, Walnut Grove, for appellant.
    Fred J. Lotterhos, Jr., Barbara Raley, Jackson, for appellees.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    Mike WADE and Clevis Breland v. PERRY COUNTY BOARD OF EDUCATION.
    No. 51997.
    Supreme Court of Mississippi.
    May 28, 1980.
    Rehearing Denied June 20, 1980.
    Parsons & Matthews, Jack Parsons, Wiggins, for appellant.
    Barefield, Riley & Evans, Thomas J. Riley, Hattiesburg, for appellee.
   Appeal from Chancery Court, Perry County; Sebe Dale, Jr., Chancellor.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    AETNA CASUALTY & SURETY COMPANY and Tupelo Coffee Company v. Charles Dane LEATHERS.
    No. 51898.
    Supreme Court of Mississippi.
    May 28, 1980.
    Rehearing Denied July 9, 1980.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, for appellant.
    William S. Lawson, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Robert E. McCOY v. STATE of Mississippi.
    No. 51902.
    Supreme Court of Mississippi.
    May 28, 1980.
    Rehearing Denied July 9, 1980.
    Wright & Phillips, Morris C. Phillips, Jr., Carthage, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., SMITH, P. J., and SUGG, J.

AFFIRMED.

ROBERTSON, P. J., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.