author: GUIDRY, Judge. STOKER, Judge,

text:
    Melvin WATSON, Plaintiff-Appellant, v. Waddy BEN, et al., Defendants-Appellees.
    No. 83-1029.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1984.
    Alex D. Chapman of Fusilier and Chapman, Ville Platte, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, H.B. Gist, III, Alexandria, Stephen Ledet, Jr., Opelousas, Edwards, Stefanski & Bar-ousse, James M. Cunningham, III, Crowley, Guglielmo & Lopez, James Lopez, Opelou-sas, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY, STOKER, YELYERTON and KNOLL, JJ.
   GUIDRY, Judge.

This is a suit for damages arising out of a collision between a pickup truck owned and operated by defendant, Michael A. Beard, and a parked truck owned by Wad-dy Ben, an employee of J.W. McDonald. Plaintiff, also an employee of J.W. McDonald, was standing between the parked Ben vehicle and another parked vehicle owned by J.W. McDonald. Plaintiff sustained injuries when he became entrapped between the two parked vehicles at the time of the collision.

Plaintiff initially brought suit against the State of Louisiana, through the Department of Transportation and Development (DOTD) and Waddy Ben. Plaintiff later amended his petition to include Solid Controls, Inc., Beard’s employer, Michael A. Beard and his insurer, Southern Farm Bureau Casualty Insurance Company, as defendants. Solid filed a third party demand seeking indemnity and/or contribution from Michael Beard and his insurer, Southern Farm. Beard and Southern Farm thereafter filed a third party demand against the State of Louisiana through DOTD and J.W. McDonald seeking the same relief. Liberty Mutual Insurance Company (J.W. McDonald’s workmen’s compensation insurer) intervened claiming its subrogation rights for the workmen’s compensation benefits and medical expenses paid to or on behalf of plaintiff. The trial court granted the State’s exception of no cause or right of action and dismissed plaintiff’s suit against the State of Louisiana through DOTD, with prejudice, by judgment dated October 1, 1982. Upon plaintiff’s motion, suit was also dismissed with prejudice as to Waddy Ben by judgment dated May 18, 1981. Both of these judgments are now final.

After trial on the merits, judgment was rendered in favor of plaintiff and against Michael Beard and Southern Farm, jointly and solidarily, in the amount of $58,480.00. Defendant Beard’s defense of impecuniosity was sustained by the trial court resulting in the judgment being reduced to the amount of insurance coverage provided by Southern Farm, i.e., $10,000.00. Plaintiff's claim against Solid was dismissed. Plaintiff appeals. No other party appealed or answered plaintiff’s appeal.

FACTS

The record reflects the following pertinent facts to be without dispute. The accident occurred on Friday, October 24, 1980 at approximately 2:30 p.m. on Highway 1109 in Acadia Parish. Plaintiff was employed by J.W. McDonald Construction Company and was involved in the work of resurfacing a portion of Highway 1109 at the time of the accident. Defendant, Michael Beard, was employed as a service technician by Solid Controls, Inc. Solid operates out of Opelousas, Louisiana, and rents oilfield equipment to oil rigs. Beard was on 24 hour call that day, but had punched out at around 2:13 p.m. and was on his way home to Crowley, Louisiana, from Solid’s shop in Opelousas.

As Beard approached that portion of Highway 1109 which was under construction, he encountered a McDonald watering truck in the center of the highway dropping water on the road surface to compact the dirt. The driver of the watering truck signaled for Beard to pass him. As Beard went around the water truck, he lost control of his vehicle and slid into the Ben truck which was parked on the side of the road. Plaintiff was standing between this parked vehicle and another at the time of the collision and was entrapped between the two parked vehicles. As a result of the accident, plaintiff sustained injury.

At the time of the accident, Beard was “on call” for 24 hours. His work schedule was six days on call and two days off call. Although Beard had “punched out” that afternoon at around 2:13 p.m., he remained “on call” for the rest of that day. Beard was subject to being called back to work at any time for the remainder of that day and was thus returning to his home to await any possible call from his employer.

Although the truck which Beard was driving was his own truck, Solid paid Beard a $300.00 a month “truck allowance”. This sum was based upon what a leasing company would charge for the same vehicle. Beard was also provided with various credit cards for the purchase of gas, for his personal use as well as for his business use. Beard was also authorized to use the credit cards if an emergency arose while he was on the road. Beard had a choice of whether to receive a company vehicle from Solid or to use his own truck and receive the travel allowance. He chose the latter. Beard was also furnished with oil and filters for his truck, and general maintenance on the truck was performed at Solid’s shop in Opelousas. Solid required routine inspections of the employee-owned vehicles to insurer their proper operation and fitness. Service reports were prepared on these vehicles and necessary repairs were mandated by Solid.

In brief written reasons for judgment, the trial court concluded as follows:

“(1) That Michael Beard was negligent proximately causing plaintiffs injuries; he and his insurer must be cast.
(2) That Michael Beard was not in the course and scope of his employment at the time. There is not sufficient tie-in to the employment to make applicable the exception to the general rule that an employee returning home from work is not in the course and scope of his employment. The Johnson case is significantly different. There (a) the ear was employee-owned, (b) it was especially equipped to receive emergency calls and (c) the employee had to drive that car to secure calls while in it. None of these factors existed here. The last difference, that is, that the employee be able to receive calls while in the car is particularly distinguishing. The other authorities cited by counsel for both sides are indicative of the general trend in jurisprudence but are not so precisely similar as to warrant discussion. The claim against Solid Controls, Inc. will be dismissed.
(3) That damages are fixed as follows:
a. Lost wages to date of trial $ 18,480.00
b. Future lost wages and physical disabilities other than diminished earning capacity 15,000.00
c. Pain and suffering 35,000.00
Total $ 58,480.00
(4) That Michael Beard is lacking significant assests; the defense of impecu-niosity must be sustained. The claim against him is limited to the insurance coverage amount of $10,000.”

No party to the instant appeal urges error in the learned trial judge’s conclusions regarding the negligence of Michael Beard or the reduction of the judgment because of his impecuniosity. Appellant does however urge that the trial court erred in finding that Beard was not in the course and scope of his employment with Solid at the time of the accident. Additionally, appellant urges that the trial court’s award of $35,000.00 for the pain and suffering endured by him is grossly inadequate. These are the only issues presented on appeal.

WAS BEARD IN THE COURSE AND SCOPE OF HIS EMPLOYMENT WITH SOLID AT THE TIME OF ACCIDENT?

The doctrine of respondeat superior is set forth in La.C.C. Arts. 2317 and 2320. Article 2320 provides in pertinent part:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

The jurisprudence has construed this article to mean that the employer is liable for the tortious acts of his employees “committed while acting within the scope and course of his employer’s business.” Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3rd Cir.1974) and the cases cited therein. In the case of LeBrane v. Lewis, 292 So.2d 216 (La.1974), our Supreme Court stated that where the tortious conduct is “so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business,” liability for that conduct will be imposed upon the employer.

There is no precise rule by which one can determine in every instance whether the employee is acting within the course and scope of his employment, although it is generally held that an employee, in going to and from his place of employment is not considered as acting within the course and scope of his employment. This general rule is not however without exception.

The criteria for determining when an employee, who while driving a motor vehicle, is acting within the course and scope of his employment was set forth in the recent case of Johnson v. Dufrene, 433 So.2d 1109 (La.App. 4th Cir.1983), writ denied, 441 So.2d 765 (La.1983), wherein the court stated:

“Whether an employee is within the course and scope of his employment during any given incident presents a question that is not answerable except by general rules, given the myriad contexts in which it might arise. The specific inquiry is whether the employee’s tor-tious conduct “was so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest”. Daniels v. Conn., 382 So.2d 945 (La.1980); LeBrane v. Lewis, 292 So.2d 216 (La.1974). In those instances where the injury is caused by an employee’s negligence while driving a vehicle owned by his employer, our jurisprudence has repeatedly stated that every case must be decided on its own facts. The important considerations which bear on the result are whether the vehicle was being used in such a manner as to benefit the employer, Taylor v. Lumpkin, 391 So.2d 74 (La.App. 4th Cir.1980); whether the employee was subject to the employer’s control at the time of the accident, Keen v. Pel State Oil Co., Inc., 332 So.2d 286 (La.App. 2d Cir.1976); whether the employee’s use of the vehicle was authorized by the employer, Harding v. Christiana, 103 So.2d 301 (La.App. Orleans 1958); Futch v. W. Horace Williams Co., 26 So.2d 776 (La.App. 1st Cir.1946); reh. den., 27 So.2d 184; and whether the employee’s motive arose from personal objectives or, instead, from his employer’s concerns, Keen, supra, Johns v. Hunt Lumber Company, Inc., 250 So.2d 543 (La.App. 2d Cir.1971).”

Solid derived substantial benefit from Beard’s vehicle. Beard used the vehicle to get to work and then to proceed to any site designated by his employer. The truck hauled the necessary repair equipment and tools furnished by Solid. Beard sometimes went straight to a job site from his home if he were called out and had the necessary tools in his truck at that time. Under such circumstances, the dispatcher would punch him in before he left his house and would punch him back out upon his return to his home. Since the essence of Solid’s business was to service their rental equipment at any time such service was needed, Solid relied on Beard’s truck to be available and dependable in transporting him to and from service calls.

The single most important factor to consider in deciding whether there is vicarious liability is the right of the employer to control the work of the employee. Roberts v. State of Louisiana, Through the Louisiana Health and Human Resources Administration, 404 So.2d 1221 (La.1981); Hickman v. Southern Pacific Transportation Company, 262 La. 102, 262 So.2d 385 (La.1972). In Roberts, the Supreme Court emphasized that “the right of control of the time and physical activities in the other party and the existence of a close relationship between the parties” determines that one is a servant. The evidence in the instant case convinces us that Beard was subject to Solid’s control at the time of the accident. Beard was on 24 hour call and was subject to being called back to work as soon as he returned home that Friday afternoon, notwithstanding the fact that he had already worked about six hours that day. When an employee is subject to 24 hour call, his movements and actions are subject to the control of his employer. In furtherance of this proposition is the fact that Beard was going straight home from work in order to be available for any possible calls from his employer. Beard was taking the most direct route to his home at the time he was involved in the accident. His sole motives were work-related. He did not take any detours or make any stops on his way home that afternoon since he remained on call that day, despite the fact that he had “punched out” at 2:13 p.m. The facts that Solid required Beard to purchase a certain minimum amount of insurance on his truck, to have his truck periodically inspected, to have service reports on the truck’s condition and to make certain repairs performed if deemed necessary by Solid, strengthens our conclusion that Solid “controlled” Beard’s activities while he was on call.

The facts of the present case are similar to those considered by this court in Robinson v. Empire Gas, Incorporated of Lake Charles, 334 So.2d 813 (La.App. 3rd Cir. 1976). In Robinson, the employee-repairman was on 24 hour a day call. He kept the company vehicle at his home for the specific purpose of responding to service calls. While returning home from a service call, he was involved in an accident. The employee had taken a detour on the way home in order to purchase cigarettes, when the accident occurred. This court found the employee to be within the course and scope of his employment at the time of the accident, notwithstanding the detour to purchase cigarettes. The court stated that “a short detour for the purpose of buying cigarettes under these circumstances was reasonably incidental to the performance of the duties for which he was hired, and for which he was allowed to keep the company truck at home.” We emphasized that the employee’s returning home was the same as returning to the employer’s premises following performance of a work-related function.

The only distinction between the Robinson ease and the present ease is that in Robinson, the employee was using a company-owned truck. This distinction is irrelevant under the particular circumstances of this case. Solid had the power to control Beard’s truck while Beard was on call to the same extent that the company did its truck in Robinson. The fact that Beard was free to use his truck as he desired on his “off” days does not address the issue of Beard’s relationship with Solid at the time of the accident. Beard was on his way home to possibly receive other calls and had not deviated from his destination in the slightest, as did the employee in Robinson.

Defendant, Solid, analogizes the present situation to that in Herndon v. Neal, 424 So.2d 1180 (La.App. 1st Cir.1982), where the court found the “on call” employee not to be within the course and scope of his employment. In Herndon, the plaintiff had left his place of employment at around noon and went to a lounge to visit his girlfriend. He remained at the lounge for several hours. Upon leaving the lounge he was involved in an accident. In contrast with the present case, the employee in Herndon was on a purely personal mission which in no way was of benefit to his employer. The Herndon case is also distinguishable from the present case in that the employee in Herndon was only on an “informal type of call”. That employee and his brother were equal shareholders in a newly formed welding business. They had the discretion of answering any calls for their services at any time of day, but were not bound to do so as was defendant Beard. Beard was obligated to answer and report to any calls from his employer while “on call”, whereas the employee in Hern-don was actually a part owner in the business and,thus not bound by his employer. The Herndon case is thus not applicable to our present situation.

Plaintiff cites the case of Rollins v. New York Fire and Marine Underwriters, Inc., 225 So.2d 663 (La.App. 3rd Cir.1969), writ refused, 227 So.2d 595 (La.1969), as being dispositive of the issue of Solid’s vicarious liability. In Rollins, this court restated the general rule that an employee, in going to and from his place of employment, is not considered as acting within the scope of his employment to such an extent as to render his employer liable to third persons for the employee’s negligent acts. Wills v. Correge, 148 So.2d 822 (La.App. 4th Cir.1963), writ refused, 150 So.2d 768 (La.1963). An exception to this general rule occurs where a factual showing can be made that the use of the motor vehicle by the employee, whether personally owned or owned by the employer, was being used in the service of the employer or while about the employer’s business. O’Brien v. Traders and General Insurance Company, 136 So.2d 852 (La.App. 1st Cir.1961).

This court analyzed various factors in order to determine if the employee in Rollins fit into the above mentioned exception, stating that no one factor is necessarily controlling. These factors include whether the employee was entitled to travel expenses for his return trip from the meeting he was required to attend; whether the employee was a salaried worker; whether the employee could be ordered to report to work at any particular job by the employer; whether the employer had control over the employee’s means of transportation; and, whether the employee’s use of his own vehicle was of value to the employer in the conduct of its business. The employee in Rollins was found not to be within the course and scope of his employment since his situation did not fit into the factors listed above.

Defendant Beard’s employment situation does meet the tests set forth in Rollins so as to fit the exception to the Correge rule. Beard was entitled to travel expenses. The evidence shows that Solid furnished Beard with credit cards for his gas and also furnished him with oil and filters. In addition to this, Beard was paid a set salary for 55 hours of work per week, whether or not Beard actually worked that many hours. At the time of the accident, Beard had only worked 22.34 hours, yet was to be compensated for 55 hours that week. In effect, he was being paid for his travel time also.

Another factor which supports our finding that Beard was being paid for his travel time is the way in which Beard “punched in” when called out for a job from his home. Beard testified that when he was called off to a job at night the company dispatcher would punch him in before Beard left his home, and would punch him back out upon his return to his home. Thus, Beard’s reported hours of work included his travel time to and from either the shop or the job site.

Beard also fits into the Rollins factor of being a salaried worker. As was before mentioned, Beard was paid a certain wage based on a 55 hour work week. This salary was increased by any additional time worked above this.

When Beard was “on call”, he was subject to Solid’s orders for the entire six day period that he worked; 24 hours each day. He was bound to report to either the shop or to go straight to the job site.

Solid had a tremendous amount of control over the means of transportation which Beard was to use. Beard was given the option to use his own truck or to be furnished with a company vehicle. Beard’s choice of his own vehicle was not without limits and minimum requirements by Solid. Beard was required to purchase a certain amount of insurance on his truck, to submit to routine inspection and maintenance of his truck by Solid, and to have service reports filled out on his vehicle in order to insure Solid of the truck’s fitness and proper maintenance.

The final Rollins factor to consider is whether Beard’s use of his own automobile was of value to Solid in the conduct of its business. The facts of this case clearly indicate that it was of value to Solid. Since Solid’s business is based largely on the servicing of its rental equipment, it is imperative that the employees have dependable vehicles to promptly transport them both to and from the job sites. It is similarly important to Solid that the vehicles are operative in transporting their employees back to their homes, since this is where the employees are to receive their next call for work. Safe and reliable transportation of Beard back to his home on that Friday was of value to Solid in that Beard was heading straight home in order to await further instructions from his employer. An unreliable vehicle could result in an unsatisfied customer due to delays in the repair of Solid’s equipment.

Considering the above, we conclude that this case does fall within the exception set forth in Rollins, and that Beard was within the course and scope of his employment at the time of the accident and the trial court clearly erred in concluding otherwise. Accordingly, we conclude that under the general principles of the Master-Servant doctrine, Solid is vicariously liable for Beard’s negligent conduct.

In light of our conclusion aforestated, we need not consider appellant’s additional contention that the trial court erred in failing to apply the legal presumption that an employee is presumed to be in the course and scope of his employment when driving his employer’s vehicle and involved in an accident.

QUANTUM

The trial judge awarded Melvin Watson $35,000.00 in damages for pain and suffering. Appellant urges that this award is inadequate.

The record shows that Mr. Watson suffered fractures of the shaft of both femurs (thighbones). Surgery was performed and rods were placed in Watson’s hips. He remained hospitalized for about six weeks and then returned home where he was confined to bed for a month. Watson was confined to a wheelchair for the next couple of months and then was required to use crutches for another two weeks. The rods were removed a year after the surgery. The record reveals that Watson’s recovery was uneventful and the fractures healed properly.

Plaintiff continues to complain of pain in his hips and legs. Dr. T.E. Banks, plaintiff’s treating physician, is of the opinion that plaintiff suffers from minimal discomfort which is not of a disabling nature. Dr. Banks suggested that plaintiff return to his former employment a year following the accident. Dr. R. Luke Bordelon testified that plaintiff suffered from 18% permanent physical impairment, but this would not preclude him from engaging in heavy manual labor, as long as the job did not involve a lot of lifting and squatting.

Civil Code Article 1934(3) provides that “much discretion must be left to the (trial) judge or jury...” in the assessment of general damages. In Reck v. Stevens, 373 So.2d 498 (1979), the Supreme Court discussed the guidelines for an appellate court’s review of a trial court’s damage award. The court stated that:

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.”

The Supreme Court went on to state that, “the initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. art. 1934(3) in the award of damages.” After a review of the record and considering the trial court’s much discretion in awarding damages, we do not find a clear abuse of the trial court’s discretion in awarding $35,000.00 for plaintiff’s pain and suffering.

For the above and foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Melvin Watson, and against defendants, Michael A. Beard, Southern Farm Bureau Casualty Insurance Company and Solid Controls, Inc., in solido, in the sum of FIFTY-EIGHT THOUSAND FOUR HUNDRED EIGHTY AND NO/100 ($58,480.00) DOLLARS, together with legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Michael Beard’s defense of impecuniosity is sustained and the judgment herein rendered in favor of plaintiff against Michael Beard and Southern Farm Bureau Casualty Insurance Company is limited to the amount of coverage provided by the policy of insurance issued by Southern Farm Bureau Casualty Insurance Company to Michael A. Beard.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the third party demand asserted by Michael A. Beard and Southern Farm Bureau Casualty Insurance Company against the State of Louisiana, Through the Department of Transportation and Development and J.W. McDonald is dismissed with prejudice.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment .herein in favor of third party plaintiff, Solid Controls, Inc., and against defendants, Michael A. Beard and his insurer, Southern Farm Bureau Casualty Insurance Company, for indemnity, limited to the amount of insurance coverage provided for by the policy of insurance issued by Southern Farm Bureau Casualty Insurance Company to Michael A. Beard.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of intervenor, Liberty Mutual Insurance Company, recognizing the right of intervenor to be paid by preference and priority out of the judgment rendered heretofore the total sum of all medical expenses paid to or on behalf of Melvin Watson.

All court costs are hereby assessed against Solid Controls, Inc., Michael A. Beard and Southern Farm Bureau Casualty Insurance Company.

Solid Controls, Inc., Michael A. Beard and Southern Farm Bureau Casualty Insurance Company are cast with all costs of this appeal.

AFFIRMED IN PART; REVERSED IN PART; and RENDERED.

STOKER, J., dissents and assigns written reasons.

STOKER, Judge,

dissenting.

With respect I disagree with the majority holding; I would affirm the holding of the trial court.

The right to control an employee’s activities is certainly a pertinent consideration in respondeat superior cases. However, where this factor (right to control) is found to exist, unless over-all consideration is tempered with a consideration of the specific facts of each case, reliance on the right to control as the primary factor will dictate rather far-reaching consequences.

In this case, Michael A. Beard was simply returning to his home after completing his work for his employer. He was in no way engaged in, or about, or in the furtherance of, his employer’s business. The fact that Beard was on call 24 hours per day does not alter the situation. To be on call on such a basis means that an employee is on call where ever he happens to be at any time, that is, whether he is about his employer’s business or his personal business. Nevertheless, being on call is not the same thing as being about the employer’s business. Clearly a person on call may conduct himself so as to be on call but nevertheless be about his personal concerns, even away from his home and telephone, so long as someone knows how to contact him; or he might be temporarily absent from contract so long as contact is broken for a short time only.

Viewed in the above light, I am of the firm belief that an employee at home but on call can not involve his employer in vicarious liability because of tortious conduct in which the employee might engage to the damage of a third party. In my opinion the same rule should apply in this case in the situation in which Beard’s accident occurred while he was en route to his home. In the case before us Michael A. Beard had been released by his employer for the day, at an early hour in fact, because there was no more work for him at that time. I view Beard’s status when he was released to return home as no more than that of an ordinary employee who is in the process of returning to his home from work. I can see no distinction between the status of an on call employee who is released to return to his home and an employee who leaves his employer’s premises at the end of the day to return home. Likewise, I can see no distinction between the status of an on call employee released to return to his home and the status of an on call employee who has already reached home. In neither case is the employee about his employer’s business.

      . Throughout the pleadings, etc., this defendant is alternately referred to as Solid Controls, Inc. and Solids Control, Inc. We do not know which is the correct name of this corporation, but for purposes of this opinion we will refer to this defendant as Solid Controls, Inc.

      . Prior to trial on the merits, it was stipulated and agreed to by all parties that in the event plaintiff was successful in the litigation and obtained judgment against any defendant, Liberty Mutual Insurance Company would be entitled to recover the amount it had paid to or on behalf of Watson for his medical expenses. Liberty Mutual waived its intervention insofar as the workmen’s compensation benefits paid to Watson are concerned. (Tr. pg. 325).

      .The judgment of the trial court was silent with regard to the third party demands of Beard and Southern Farm against DOTD and J.W. McDonald, and the third party demand of Solid against Beard and his insurer, Southern Farm. Such silence constitutes a rejection of those demands. LSA-C.C.P. Art. 1915; Guaranty Bank & Trust Company of Alexandria, Louisiana v. Carter, 394 So.2d 701 (La.App. 3rd Cir.1981), writ denied, 399 So.2d 599 (La.1981); Leny v. Friedman, 372 So.2d 721 (La.App. 4th Cir.1979), writ denied, 375 So.2d 943 (La.1979); Hebert v. Valenti, 235 So.2d 193 (La.App. 4th Cir.1970).


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Billie J. Argus, wife of/and Herbert ARGUS v. William C. SCHEPPEGRELL, Jr., M.D.
    No. 83-CA-496.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 21, 1984.
    Rehearing Denied Dec. 17, 1984.
    Writ Granted March 8, 1985.

      Douglas A. Kewley and Bruce A. North, Molony, Nolan, North & Riess, Metairie, and William J. Scheffler, III, Gretna, for Billie J. Argus, wife of/and Herbert Argus, plaintiffs-appellants.
    Dominic J. Gianna and John D. Person, Hammett, Leake & Hammett, New Orleans, for William C. Scheppegrell, Jr., M.D., defendant-appellee.
    Before BOUTALL, CURRAULT, and DUFRESNE, Jr., JJ.
   BOUTALL, Judge.

This case arises from a wrongful death action against a physician brought by parents for the death of their daughter. The plaintiffs appeal a judgment in favor of the defendant.

Cynthia Argus (“Cindy”), nineteen years old, swallowed an undetermined number of tuinal tablets prescribed by Dr. William C. Scheppegrell, Jr., on August 17, 1977, became comatose, and on September 19, 1977 expired without regaining consciousness. Cindy had visited the office of Scheppegrell from December 17, 1975 through August 15, 1977, and beginning with her second visit had received prescriptions regularly for Phenmetrazine Hydrochloride (Prelu-din), as an appetite suppressant and for Amobarbital Secobarbital (Tuinal) for sleep. Both drugs are controlled dangerous substances under Louisiana law. LSA-R.S. 40:964. On several occasions she also received prescriptions for Vallium.

Billie J. Argus and Herbert Argus, Cindy’s mother and father, filed suit on October 6, 1977. On November 24, 1980, a medical review panel rendered an opinion in accordance with LSA-R.S. 40:1299.47 to the effect that Dr. Scheppegrell failed to comply with the appropriate standard of care. The panel agreed with the allegations of the plaintiffs’ petition that Dr. Scheppeg-rell was negligent in

“1. Prescribing drugs over a prolonged period of time, which drugs he knew, or should have known, would cause addiction.
“2. Prescribing drugs in such quantities that their use was deleterious to human life and health.”

Trial was held before a jury which returned a verdict in favor of the defendant, Dr. Scheppegrell. The responses of the jury to interrogatories indicate that it found: Dr. Scheppegrell was negligent; his negligence was a proximate cause of Cindy’s death; and that Cindy was negligent and her negligence was a cause of her death. In accordance with these responses, because Cindy’s contributory negligence barred the parents’ recovery, the judge rendered judgment dismissing plaintiff’s suit.

The basic premise of plaintiffs’ appeal is that the doctor either deliberately, or grossly negligently, performed such acts that so imperilled this young girl that he cannot be excused from the consequences. Appellants refer to the fact that prior to this trial but after Cindy’s death Dr. Schep-pegrell pleaded guilty to a charge of prescribing for another person controlled dangerous substances not in the usual course of medical practice, and served sixteen months in a Federal prison. Reference is also made to a motion of the defendant, granted by the Court, excluding evidence regarding his treatment of patients other than Cindy or alleged exchanges of prescriptions for sexual favors with other patients and excluding use of the transcript from the Federal criminal trial.

The appellant assigns as errors the court’s failure to instruct the jury as to the following: (1) the duty of Dr. Scheppegrell not to commit any affirmative acts that increased the peril of his patient; (2) the unavailability of contributory negligence as a bar to recovery when the doctor has encouraged and abetted the plaintiff’s condition; (3) the doctor’s need to exercise more care because of his knowledge of Cindy’s condition; and (4) the application of the last clear chance doctrine.

A detailed narrative of the events leading up to Cindy’s overdose is relevant to our consideration of the assigned errors. The testimony of the mother, Billie Argus, indicates that Cindy left school in the ninth grade at age 16. She had truanted periodically over the last two years, hiding the fact from her mother. She moved in and out of the home from age 17 on, sharing apartments with boy friends and with a girl friend. During the last year of her life she primarily lived in the family’s apartment. The mother caught Cindy smoking marijuana when she was 14 years old.

Cindy was introduced to Dr. Scheppegrell by a friend, Denise. Dr. Scheppegrell admitted to prescribing tuinal, preludin and vallium. He testified that Cindy told him she was a model and wanted medication to maintain her weight at 97 pounds. The preludin acted as an appetite suppressant, while tuinal calmed her down enough to sleep. From time to time she complained of being nervous, for which the doctor prescribed vallium. The doctor denied detecting any indications of drug abuse. Whether or not Cindy was using other drugs or obtaining drugs from other physicians is uncertain from the record, as the mother denied previous testimony by deposition regarding Cindy’s obtaining drugs from other physicians and reporting to hospital physicians that Cindy used dilaudid, demoral, and librium as well as tuinal, preludin and vallium. She denied also telling the physicians that Cindy abused drugs three to four years. The mother does admit to being aware that Cindy abused drugs at least from the time she began seeing Dr. Schep-pegrell. On October 1, 1976 Cindy was picked up by the police and treated at East Jefferson Hospital for a possible overdose of barbituates. Mrs. Argus reported frequently searching Cindy’s purse for pills sending her to bed to sleep off being “loaded”, and making appointments that Cindy did not keep at the methadone center. She also noticed “track marks” on Cindy’s arms.

Sometime within the month prior to Cindy’s overdose Mrs. Argus telephoned Dr. Scheppegrell because Cindy began having seizures. She asked him not to prescribe more pills, to which he agreed. Cindy then visited Dr. Scheppegrell on August 15, 1977. He testified that he wanted her to discontinue taking the drugs because her mother informed him she was abusing them, but Cindy explained that a girl friend, not her mother, had made the call. She insisted she had to continue the drugs so that she could be a model and needed the prescriptions to tide her over until she located another doctor. He gave her prescriptions for 50 preludins and 50 tuinals. These are the pills with which Cindy overdosed.

On August 17, 1977 Cindy came home around 1:30 or 2:00 p.m., having spent the night with a boyfriend named Ben. They had had a fight and Cindy appeared depressed. The mother assumed Cindy was loaded on pills or drunk and told her to go to bed, which she did unaided. Cindy awakened, bathed, and called a friend named Mark. When he arrived at the house Mrs. Argus asked him to check Cindy’s purse for pills, which he did when Cindy’s back was turned. He then tossed two bottles of pills to Mrs. Argus who was seated on the sofa. They left, and she put the pills in her own dresser drawer where she kept aspirin and other medicines. She noted there were only a few pills in the preludin bottle but the tuinal bottle was ¾ full. Cindy knew of Mrs. Argus’s habit of putting medications in her dresser drawer. Thirty minutes later Cindy and Mark returned. Mark said she was loaded or drunk and left. Mrs. Argus sent Cindy to bed, then left to follow her husband downstairs to the manager’s apartment, and asked Lisa, Cindy’s 12 year old sister, to watch her. About an hour later, possibly about 8:30 p.m., Lisa came down to tell her parents Cindy had awakened. Very soon thereafter Lisa returned to tell them Cindy had swallowed the whole bottle. The mother testified she ran upstairs and found Cindy unconscious. She called Dr. Scheppeg-rell and on his advice she and Mr. Argus rushed Cindy to Charity Hospital, arriving there at 9:25 p.m. Cindy did not respond to treatment, remained comatose, and died September 19, a month later.

The issues before us are complex and can best be analyzed in terms of duty-risk. We first ask whether Dr. Scheppeg-rell’s prescribing of drugs in a negligent manner constituted a breach of a duty owed to the plaintiff Cindy to protect her against the particular risk of harm to which she was exposed and which caused her death. Ronstadt v. Begnaud Motors, Inc., 427 So.2d 911 (La.App. 3rd Cir.1983). Clearly, from Dr. Scheppegrell’s own testimony and that of the plaintiffs’ expert, Dr. Juan Lertora, Dr. Scheppegrell prescribed more of two dangerous drugs over a prolonged period of time than is safe. He failed to keep track of the frequency of prescriptions and excused it on the basis of careless record keeping.

Dr. Juan Lertora, a professor in the Tulane School of Medicine, departments of medicine and pharmacology, stated first that there was no valid medical reason for prescribing a combination of tuinal and pre-ludin together. We note that the stated reason for prescribing preludin was weight control of a patient five feet six inches tall weighing 97 pounds. Secondly, a patient taking preludin over a period of time is likely to become psychologically dependent on the drug while a patient taking tuinal is likely to become psychologically and physically dependent on it. He pointed out further that persons taking barbituates, of which tuinal is one, may develop a tolerance, in that they require higher doses to induce sleep but at the same time they do not develop a tolerance to the potential lethal effects. Additionally, the use of such a drug can alter consciousness so that the user cannot judge how much is taken.

Based on these facts the jury found that Dr. Scheppegrell was negligent and that his negligence was a proximate cause of Cindy’s death. We agree without reservation. Indeed it is difficult to imagine a more blatant disregard of duty by a doctor towards his patient. Considering the known effects of these drugs and the frequency of prescription, any sensible person can predict that this course of action leads to addiction, not treatment. The testimony of the doctor in excuse of his actions is not just incredible, it is ridiculous. The duty Dr. Scheppegrell owed toward his patient was to use due care in avoiding the harmful effects of a controlled dangerous drug. Instead his disregard of that duty caused her death.

However the jury also found Cindy guilty of contributory negligence. There is sufficient evidence to support this verdict and we cannot say ' the jury is clearly wrong.

The appellee postulates that Cindy intentionally chose to end her life. Dr. Lertora testified that from the medical records it would be impossible to determine whether the overdose was accidental or was a suicide. The appellant alleges that the overdose was accidental, brought about by the helpless addiction which Dr. Scheppegrell aided and abetted. The appellee rebuts this allegation by pointing out that there is no testimony indicating that Cindy was unaware of what she was doing. We note in the mother’s testimony that on the fateful day, although she was “loaded,” Cindy was able to undress for bed; she telephoned a friend, bathed, and dressed; and she went back to bed unaided when she returned after being out 30 minutes. The mother reported she was very depressed that day, but did not testify as to previous periods of depression. Nowhere are there comments regarding her mental condition or behavior indicating confusion. The jury was not asked whether this tragedy resulted from an intentional act of suicide or from an accident caused by her drug-induced state of mind that she could not judge amount. There was no interrogatory addressed directly to this issue. The jury resolved this issue by finding Cindy contributorily negligent and that negligence to be a proximate cause of her death. This finding negates an accidental overdose. In further support of that conclusion, we note that Cindy’s mother had taken the pills away and placed them in her drawer. Certainly Cindy deliberately sought them out and it is reasonable to conclude that she deliberately took the whole bottle.

Nevertheless conceding that Cindy’s behavior was negligent, labelled “victim fault” under the duty-risk analysis, we must consider the complicated issue of whether it constituted a bar to recovery under the set of facts at hand. We have no case law involving an accident of this sort, resulting allegedly from the prolonged use of drugs. The appellants analogize Cindy’s position to that of an intoxicated person, who is unable to take care of herself, or to a child, and who requires greater caution on the part of others. Gouzien v. Feraci, 2 La.App. 115 (1925). In both inebriation and drug addiction the person has voluntarily taken on the problem but reaches a point where he is no longer in control. In the recent case of Garcia On Behalf Of Garcia v. Jennings, 427 So.2d 1329 (La.App. 2nd Cir.1983) there is an excellent discussion of the duty of those furnishing intoxicating liquor for damages to intoxicated persons. That case involved the accidental drowning of a minor boy for whom some adults had bought liquor, encouraged him to drink to the point of intoxication, and then let him out of their car on an incline from which he fell into a bayou. While the case was an appeal from an exception of no cause of action and the court could not make a determination of all of the issues, it found that:

“The defendants had a duty not to purchase liquor for the minor and furnish it to the minor. Having done so the defendants further had the duty to exercise some degree of control and protection for the minor’s safety. Analogizing from the Lee Pence, Thrasher, and Sanders cases, the defendants certainly had a duty to refrain from affirmative acts which placed the intoxicated minor in peril, and they allegedly violated this duty by taking the minor to a point near the bayou and allowing him to get out of a car at a dangerous place.
“The allegations of the petition viewed in the light most favorable to plaintiffs show a violation of duties owed by the defendants to the minor, which duties encompassed the risk of accidental injury to the minor of the nature alleged in this ease. That the breach of duties was a cause in fact of the injury is clear because, under the allegations made, the accident would not have happened but for the actions of the defendants in furnishing the liquor, encouraging its consumption, and taking the minor to a place of danger.
“The decedent’s contributory negligence or assumption of the risk in voluntarily getting intoxicated does not necessarily bar his parents recovery for his wrongful death because the duties breached by the defendants are designed to protect a minor from his own foibles, negligence, and fault arising out of the consumption of alcoholic beverages and resulting intoxication.” Garcia, supra, at 1333.

Alston Johnson, in Comparative Negligence and the Duty/Risk Analysis, 40 La.L.Rev. 319 (1980) discusses victim fault at length and points out that whether or not it is a bar to recovery will be decided on a case by case basis:

“These three decisions — Baumgart-ner, Boyer, and Rue — are remarkable departures from the rule that the contributory negligence of a plaintiff will constitute an absolute bar to recovery. Thus, we can only say that sometimes plaintiff’s contributory negligence will absolutely bar recovery, and sometimes it will not. But the decision as to whether it will or will not has clearly moved from neatly-defined categories of exceptions (last clear chance, momentary forgetfulness, sudden emergency, and the like) into the broad consideration of whether defendant’s duty should as a matter of law extend to the protection of a careless plaintiff. If various policies of the law require that it should so extend, then contributory negligence should not be a bar to recovery; otherwise, the very policies of the law that dictated the scope of defendant’s responsibility would be defeated.”

The cases cited above, and indeed all cases involving intoxicated persons, concern traumatic accidents, most of them automobile accidents, and not a chemically induced illness. Had the doctrine of comparative negligence been in effect at the time the facts of this case occurred, a resolution of the problem might have been easier. Under the law current in 1977, the issue is unique and a close question.

We have related the facts as we perceive them to be as to the victim and as to the responsibility of the tort feasor. The problems of drug abuse and usage amongst our youth are chronicled in our daily news and are public knowledge. Under the facts of this case we conclude that the defendant’s duty should as a matter of law extend to the protection of a careless victim. However the activity of this victim goes beyond carelessness. Although no interrogatory was addressed to the jury except contributory negligence, we conclude the evidence preponderates that Cindy deliberately and knowingly took the overdose of pills and that the defendant’s duty does not extend that far.

The plaintiffs raise a related issue which we feel should also be addressed. The issue is referred to indirectly by the plaintiffs in terms of last clear chance. They argue that Dr. Scheppegrell had the last opportunity to prevent the overdose by refusing to give Cindy pills on August 15, after her mother objected. Thrasher v. Leggett, 373 So.2d 494 (La.1979). The defendant argues that the doctrine did not apply because he had neither the time nor the means to prevent the incident. Gregoire v. Ohio Casualty Insurance Co., 158 So.2d 379 (La.App. 1st Cir.1963). In other words, Dr. Scheppegrell was not present to restrain Cindy from swallowing the pills or administer immediate aid on August 17. Instead, he pointed out that Cindy’s mother was in the home and could have disposed of the pills, or at least placed them somewhere unavailable to Cindy.

It is obvious that had not the doctor prescribed the drugs on August 15, Cindy could not have overdosed on those drugs from that prescription. It is equally obvious that had Cindy’s mother destroyed the drugs on August 17 that Cindy could not have overdosed on those drugs. Although an interrogatory was addressed to the jury relative to the mother’s contributory negligence (she and Cindy’s father were the plaintiffs), it was not answered because of finding Cindy negligent.

Mrs. Argus admitted she had possession of the pills and had merely placed them in a drawer to which Cindy had access and which she knew was her mother’s hiding place for other pills. Mrs. Argus’ having Cindy’s friend retrieve the bottles and her previous searching of Cindy’s purse indicate she was well aware of the danger. It is inconceivable that she could not have taken further precautions of destroying the pills or securing them safely. We rule that the defendant did not have the last clear chance.

For these reasons, we find no reversible error in the judgment appealed from and we affirm it at appellants’ costs.

AFFIRMED.


author: BOWLING, Justice,

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY v. Relda RHODES.
    No. 54461.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    David W. Dreher, Collins & Dreher, Jackson, for appellant.
    Robert W. Lawrence, Crystal Springs, for appellee.
    Before WALKER, P.J. and BOWLING and PRATHER, JJ.
   BOWLING, Justice,

for the Court:

The primary question involved in this appeal is whether funds received for child support payments are subject to garnishment by the mother’s judgment creditor?

In this cause, arising in the Chancery and Circuit Courts of Copiah County, the facts are undisputed. They are as follows:

Appellee, Reída Rhodes and her husband, Harold Rhodes, were divorced in May 1980 by a decree of the Chancery Court of Copi-ah County. The decree ordered that Harold Rhodes pay to appellee the sum of $125 per month as child support and that he was also to pay drug and medical bills. The father became delinquent in the child support payments resulting in appellee filing a petition in the Chancery Court of Copiah County asking for a decree holding Harold Rhodes in contempt of court and asking for a decree against him for child support payments owed.

The chancellor by order dated January 5, 1982, found the father to be in contempt of court and found him to be in arrears of payments in the sum of $1,000 and $71.24 doctor and drug bills. The chancellor granted appellee a money decree in the sum of $1,071.24 and added to the decree the sum of $150 as attorney’s fees necessary in the effort to recover the child support funds.

Harold Rhodes did not abide by the chancery court decree. Thereafter appellee filed garnishment proceedings in the Circuit Court of Copiah County naming as garnishee the employer of Harold Rhodes. The employer paid into the registry of the circuit clerk the entire amount of the chancellor’s decree.

While the funds were still in the hands of the circuit clerk, appellant Lumbermens Mutual Casualty Company a judgment creditor of appellee Reída Rhodes, as a result of an entirely unrelated legal proceeding, filed its “suggestion of garnishment” under which it alleged that the circuit clerk was holding funds of the judgment debtor Reída Rhodes and asking that these funds be paid to appellant to satisfy its judgment.

Appellee contested appellant’s garnishment proceeding contending that the funds held by the circuit clerk under appellee’s garnishment against her former husband’s wages was exempt from appellant’s garnishment proceeding for the reason that they were the child’s funds and not appel-lee’s funds. The circuit judge agreed with appellee and ordered the funds to be paid by the clerk to appellee.

Appellant presents its appeal primarily contending that the funds were property that were properly garnished under Mississippi Code Annotated, Section 11-35-23 (1972), which reads as follows:

(1) Except for wages, salary or other compensation, all property in the hands of the garnishee belonging to the defendant at the time of the service of the writ of garnishment shall be bound by and subject to the lien of the judgment, decree, or attachment on which the writ shall have been issued. [Emphasis added]

This Court has spoken on the question involved; that is, whether or not under the garnishment proceedings, the money held by the circuit clerk was “property ... belonging to the defendant”. As heretofore related, the undisputed facts are that the recovery of the money involved resulted solely from the chancery court decree granting a money judgment against the father for unpaid child support payments. No alimony was involved.

The question before us has been settled by opinions in prior cases. We therefore hold that the funds in question held by the circuit clerk were not funds of the child’s mother so that her judgment creditor may reach them under garnishment proceedings. We affirm the judgment of the Circuit Court of Copiah County.

In the recent case of Hailey v. Holden, Miss., 457 So.2d 947, decided October 10, 1984, we said the following:

A child support judgment is awarded to the custodial parent for the benefit and protection of the child, [citations omitted] There is a public policy consideration involved because of the interest of society to provide for its children’s needs and to decrease society’s financial burden when a child is supported through public assistance. The underlying principle here is the legal duty owed to the child for the child’s maintenance and best interest.

In Trunzler v. Trunzler, 431 So.2d 1115 (Miss.1983), a case involving the status of a mother in regard to child support payments, we stated:

We are persuaded the sounder principle of law is followed by those jurisdictions which hold the divorced wife may be required to account for child support payments, but the cause must arise by or on behalf of the children, to whom the monies belong, rather than the divorced husband.

Similar pronouncements have been made regarding the principle that the child’s support funds represent a different situation than creditor-debtor relationships. This Court discussed this situation through Justice Dan M. Lee in Bonds v. Bonds, 409 So.2d 704 (Miss.1982), where we expressly stated that:

This Court has distinguished the ordinary creditor-debtor relationship from child support and alimony judgments for exemption purposes as early as 1932 in the case of Hollis v. Bryan, 166 Miss. 874, 143 So. 687 (1932).

We therefore hold that the funds in the hands of the circuit clerk that were received by that office under appellee’s garnishment to enforce the unpaid child support payments, could not be reached in another garnishment proceeding by an entirely disassociated judgment creditor of the mother judgment debtor in the chancery court decree. The funds paid to the clerk by the father’s employer after garnishment were funds belonging to the child and not belonging to the defendant-appel-lee as required by MCA § 11-35-23 (1972).

The lower court ordered the funds in the hands of the clerk be delivered to appellee Reída Rhodes. We therefore are of the opinion that the provisions of MCA § 11 — 3— 23 (Supp.1984), apply and appellant be assessed with an additional judgment for damages at the rate of fifteen percent (15%) of the amount of the funds, together with legal interest on the entire amount held by the clerk.

AFFIRMED.

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


author: DAN M. LEE, Justice,

text:
    Margie Diann LOCKETT v. STATE of Mississippi.
    No. 54431.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Rehearing Denied Dec. 5, 1984.

      Thomas M. Fortner, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Jackson County, wherein the appellant, Margie Diann Lockett was found guilty of the murder of Luke Broderick. Ms. Lock-ett was indicted for capital murder with the underlying felony of armed robbery. The jury returned a verdict of murder and she was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. From her conviction and sentence, she brings this appeal and assigns as error:

1. That the Court erred in overruling Defendant’s motion to suppress her pretrial statements made to law enforcement officers for the reason that said statements followed immediately an illegal arrest in violation of Defendant’s Fourth Amendment guarantees, and said statements were not separated from the initial illegality by any attenuating circumstances which might make them admissible.
2. That the Court erred in overruling Defendant’s motion to suppress her pretrial statements made to law enforcement officers for the reason that said statements were made in violation of Defendant’s Fifth and Sixth Amendment rights.
3. That the Court erred in overruling Defendant’s motion to delete from her pre-trial statement to law enforcement officers all references to acts of prostitution by Defendant, said references being evidence of other crimes of Defendant and therefore inadmissible.

The only facts necessary for a resolution of this appeal are those surrounding the pair of statements Ms. Lockett gave to authorities. As she has not assigned any error regarding the weight of the evidence, the proof at trial as to- how the shooting occurred is not particularly significant for purposes of this appeal. It is sufficient to state that Luke Broderick owned a bar called “Luke’s Angle Inn.” On September 9, 1981, Ms. Lockett called Broderick and asked to borrow some money. He told her that he would lend her the money and for her to come to his bar. She arrived late in the evening and stayed until he closed the bar at approximately 1:30 a.m. At that time he cleaned up the bar and the two of them went into a back room where he kept a bed and had sex. At some point Broder-ick loaned Ms. Lockett $40. She testified that the loan was not in payment for the sex. Thereafter the two of them got into an argument and Ms. Lockett used Broder-ick’s gun to shoot him five times. She then ran out of the bar naked with the gun and Broderick’s cash box containing $437.25.

Ms. Lockett was arrested for auto theft on November 24, 1981 by the Hernando County Sheriff’s Department in Florida. The Ocean Springs Police Department received word that Ms. Lockett was being held in Florida and they sent two officers with an arrest warrant to interrogate her and bring her back to Ocean Springs.

During a hearing on Ms. Lockett’s motion to suppress her two statements, Kevin Alves, the Chief of Detectives of Ocean Springs Police Department, testified that he and Captain Mulvaney, also of the Ocean Springs Police Department, journeyed to Florida to interrogate Ms. Lock-ett. Alves testified that he and Mulvaney took with them an arrest warrant signed by Ann Bridges, a desk sergeant and dispatcher for the Ocean Springs Police Department.

Alves testified that he and Mulvaney advised Ms. Lockett of her Miranda rights as soon as they came into the interrogation room. “Moments” later, before taking any statement, they served her with the arrest warrant signed by Ann Bridges. Ms. Lock-ett was then presented with a written form entitled “Waiver of Rights” which she read herself and then she and Alves read together. According to Alves she stated that she had no questions regarding her rights and then signed the waiver. Detective Alves stated that no threats or promises were made to induce the subsequent statement. At that point a rather lengthy statement in question and answer form was given by Ms. Lockett. At Ms. Lockett’s request that statement was tape-recorded so that she could be sure that there were no alterations to it.

That afternoon only a short time after the first statement was concluded, Ms. Lockett was again advised of her rights, signed a second waiver of those rights and at her request, gave a handwritten statement to Officers Alves and Mulvaney. Officer Alves testified that there were no threats made against Ms. Lockett to induce this second statement. Officer Alves did testify that he and Officer Mulvaney explained to Ms. Lockett that she was wanted for a capital offense and that it carried the death penalty. This explanation was given to her after the first statement and before the second.

Captain Mulvaney testified that he was present during the entire interrogation of Ms. Lockett except for brief periods when he left the room to get Cokes and cigarettes. He stated that the charge of capital murder was mentioned to Ms. Lockett after she concluded her first statement; however, that charge was never used as a threat to make her 'continue talking. He denied that he and Officer Alves had used any coercion to get Ms. Lockett to sign the waivers of rights or to give her statements.

Ms. Lockett testified that between the taped statement and the written statement, the officers told her they were going to charge her with capital murder because her taped statement gave them nothing else to go on. She stated that she understood Officer Mulvaney to say that he was going to charge her with capital murder unless she gave a second statement. She admitted that he did not use those words and later changed her mind and said that it was Officer Alves who told her that. Ms. Lock-ett testified that she understood that if she gave a second statement “then they could possibly drop it.”

Ms. Lockett further testified that no threats were made against her and that she understood her Miranda rights as read to her. She stated that in between her statement she was trying to question Alves and Mulvaney about the capital murder charge because she didn’t know that Broderick was dead. She again stated that no threats or promises had been made to induce her second statement.

Following the taking of the above detailed testimony, the trial judge determined that Ms. Lockett’s statements were the results of knowing and intelligent waivers of her right against self-incrimination and further that the arrest warrant signed by the Ocean Springs Police Department Desk Sergeant did not render them inadmissible.

Ms. Lockett’s first assignment of error is that the trial court erred in overruling her motion to suppress her pre-trial statement because they were results of an illegal arrest based on an invalid arrest warrant. Ms. Lockett’s argument is founded in the Fourth Amendment which is applicable to the states by way of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 84 A.L.R.2d 933 (1961).

The state does not seriously argue that the arrest warrant signed by Sgt. Bridges was valid even though she purported to be signing for Municipal Court Judge Russell Reed. Indeed, under the guidelines the United States Supreme Court has set down in Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), someone independent of the police and prosecution must determine probable cause. To quote the Court: “Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement.” 407 U.S. at 350, 92 S.Ct. at 2123, 32 L.Ed.2d at 789.

This Court is firmly of the opinion that a police dispatcher and desk sergeant is not sufficiently severed from the activities of law enforcement nor independent of the police and prosecution so as to be considered a neutral and detached magistrate. Undoubtedly, the arrest warrant was invalid. The crux of this assignment of error is whether the invalid arrest warrant served on Ms. Lockett when she was already in custody under a valid arrest so tainted her statements as to render them inadmissible. The state argues that this arrest warrant was mere surplusage and therefore cannot be termed reversible error. Ms. Lockett argues that while the invalid warrant may have been unnecessary, it was in fact served on her and therefore her statement was a result of being served with that invalid warrant.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the United States Supreme Court held that the giving of Miranda warnings does not alone break the causal connection between an illegal arrest and a confession thereafter obtained. The Court said:

Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a “cure all,” and the Constitutional guarantee against unlawful searches and seizures could be said to be reduced to “a form of words.”

422 U.S. at 602, 603, 95 S.Ct. at 2261, 45 L.Ed.2d at 426.

The Court in Brown then set forth several factors which it regarded as critical to determining whether a confession obtained by an illegal arrest was the product of free will. Those factors are: (1) The giving of Miranda warnings. (2) The temporal proximity of the arrest and the confession. (3) The presence of intervening circumstances. (4) The purpose and flagrancy of the official misconduct. (5) Any other circumstances that seem relevant. The United States Supreme Court repeated these factors in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) and Taylor v. Alabama, 457 U.S. 687, 102 U.S. 2664, 73 L.Ed.2d 314 (1982). In Hall v. State, 427 So.2d 957 (Miss.1983), this Court has had occasion to recognize and apply the holding in Brown.

Even after applying these factors to the instant case an obvious solution does not present itself. Ms. Lockett does not deny that she received the Miranda warnings. Her rearrest on the invalid warrant and her first statement occurred just moments apart. Her second statement was given less than two hours after the completion of the first. The degree of flagrancy of the officers’ misconduct should not be understated. A police captain and the chief of detectives should certainly have been aware that a police dispatcher and desk sergeant could not serve as a neutral and detached magistrate so as to sign an arrest warrant.

With the above factors weighing against the admissibility of the statement, there is still the question whether the original arrest neutralized the invalidity of the second arrest. Certainly had the Florida authorities simply received word that Ms. Lockett was a suspect in a Mississippi murder, there would have been no error committed had they questioned her regarding that information.

In Neal v. State, 451 So.2d 743 (Miss.1984), Neal was the subject of a lawful arrest in California on a charge of shoplifting. During his detention he .gave statements that implicated him in a murder which occurred in Mississippi. Neal argued that those statements were inadmissible because of the failure of the California authorities to take him before a judicial officer for a probable cause determination following his rearrest on the murder charges.. In addressing Neal’s argument, we held:

The point is spurious. The arrest of Neal on the shoplifting charge was wholly lawful. He was advised repeatedly of his privilege against self-incrimination and of his right to counsel. In the end he knowingly and voluntarily waived those rights. Repeated Miranda warnings coupled with the passage of enough time to allow an accused to become acclimated to his surroundings followed thereafter by a voluntary waiver are generally more than sufficient to remove from a subsequent confession the taint, if any, of delay in taking the accused before a committing magistrate. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Hall v. State, 427 So.2d 957 (Miss.1983).

451 So.2d at 757.

We are of the opinion that because Ms. Lockett was already the subject of a valid arrest by Florida authorities on a completely separate charge, the invalidity of the arrest warrant served by Officers Alves and Mulvaney becomes irrelevant. If Ms. Lockett was prejudiced that prejudice arose as a result of duress or intimidation by being arrested on a charge of capital murder. Because these factors relate to the voluntariness of her statement, the basis of Ms. Lockett’s second assignment of error, they will be discussed together.

Under her second assignment of error Ms. Lockett makes two arguments as to why her statements were products of violations of the Fifth Amendment. First, she argues that her waiver of rights was not knowing and intelligent. Certainly this Court and the United States Supreme Court have frequently addressed this issue and said that a waiver of the Fifth Amendment privilege against self-incrimination must be both knowing and intelligent. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Neal v. State, supra.

Ms. Lockett’s argument that her waiver of rights was not knowing and intelligent partially stems from the following exchange between her and Officer Alves at the beginning of her first statement:

BY OFFICER ALVES:
Today’s date is November 24th, 1981. The time is 11:40 a.m., interview being conducted with Mrs. Margie Diane (sic) Lockett. It will be conducted at the Her-nando County Sheriff’s Office in Florida. Those present are myself, Detective Captain Kevin Alves, and Detective Captain George Mulvaney of the Ocean Springs Police Department. The first statement on the list here is by myself. Mrs. Lock-ett, at this time I’d like to advise you again of your constitutional rights which we have already done once, but I’d like to go over them once more. Before we ask you any questions you must understand your rights. You have the right to remain silent, anything you say can be used against you in Court. You have the right to talk to a lawyer for advice before we ask you any questions and have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present with you, you will still have the right to stop answering at any time and you also have the right to stop answering at any time until you talk to a lawyer. Mrs. Lockett, what that means is that you’ve indicated to us that you want to talk to us about the incident that happened in the Angle Inn on September the 7th, (sic) ’81 in Ocean Springs. What these rights basically mean is that you have elected to talk to us and answer the questions, but at any time during this interview you can stop. In other words, you don’t have to say any more. Do you understand that?
Mrs. Lockett: I understand, but I don’t understand if I should have a lawyer or not.
Myself: Okay. Well that’s strictly up to you, but like I said, you can stop answering at any time. If you say three words and then you don’t want to say anything else, you can stop. So it’s strictly up to you, you can play it by ear if you wish. And you’ve also indicated that you wanted this conversation tape recorded so nobody can change anything.
Mrs. Lockett: Right.
Myself: Okay.
Mrs. Lockett: The conversation that we do have, I do want on tape.

(R. 317, 318)

Ms. Lockett contends that the above exchange demonstrates that her waiver of her right to an attorney was not knowingly and intelligently made. We address this contention by further quoting some of Ms. Lockett’s testimony during the suppression hearing wherein she states that she fully understood her rights. That part of her testimony is as follows:

A They asked me did I understand the papers that I read.
Q Did you read it?
A Yes sir.
Q All right. Now can you read this last statement down here just above your signature?
A Yes sir.
Q What does that say?
A I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand what I am doing. No promise or threats have been made to me or no pressure or correction of any kind has been used against me.
Q And I believe that word was coercion. Do you understand what coercion is?
A No sir.
Q You don’t understand what coercion is? Do you understand what pressure is?
A Yes sir.
Q All right. Now you read this right here, didn’t you?
A Yes.
Q And you signed it right here, didn’t you?
A TJh-huh.
Q And do you understand what that says?
A Yes sir.
Q All right, tell the Court what that says. Not reading it. Just explain to the Court what that says.
A It means that I give up my right to a lawyer.
Q All right, and what else?
A And that they haven’t threatened me or promised me anything.
Q All right, anything else?
A And anything that I say can be used against me.
Q All right, that’s up here, isn’t it?
A Uh-huh.
Q You understand that part too.
A Yes sir.
Q Can you read this part here, do you understand this? It says I understand what my rights are?
A Yes sir.
Q Okay, you understood this when you read it and signed it?
A Yes sir.
Q All right, now at that time did they hit you or beat up on you or use any kind of physical pressure on you?
A No sir.
Q Did they use any kind of psychological pressure or coercion on you? You say you don’t understand what coercion is, right?
A Uh-huh.
Q All right, did they threaten you or pressure you in any way to get you to execute this?
A No sir.

(R. 100, 101)

Based on the above excerpts from the record, we are of the opinion that Ms. Lockett’s first waiver of her rights was knowing and intelligent. Although she may not have been able to decide whether she wanted an attorney, the record is clear that she understood that she had the right to one. It is not the responsibility of police officers to decide for an accused whether the accused should retain an attorney. It is sufficient that the accused understand that the retention of counsel is a viable option.

Ms. Lockett next argues that her second statement was the result of coercion on the part of Officers Alves and Mulvaney. She takes the position that she only gave the second statement because they threatened her with a charge of capital murder if she did not. Both Alves and Mulvaney admit explaining to Ms. Lockett what capital murder was and the fact that it carried with it the death penalty in between her taped statement and her written statement. Both of them however, denied that the charge of capital murder was used as a threat to make her continue talking. In her testimony, Ms. Lockett agrees and states that no threats or promises were made to induce the second statement. She then states that it was her understanding that if she gave the written statement “then they could possibly drop it.” She later stated that although Officer Mulva-ney did not expressly state that he would charge her with capital murder unless she gave the second statement, that was her understanding. Subsequently she changed her story to say that it was Detective Alves and not Mulvaney whom she understood to threaten her with a charge of capital murder.

Based on Ms. Lockett’s testimony and that of Officers Alves and Mulvaney this Court is of the opinion that the trial court was correct in ruling that Ms. Lockett’s second statement was freely and voluntarily made.

Did the invalid arrest warrant serve as duress or coercion to force either of these statements? Mrs. Lockett testified that at the time she gave her first statement she did not believe that Luke Broder-ick was dead. She testified that in between the two statements she was trying to question the officers about the capital murder charge because of her disbelief that Bro-derick was dead. Ms. Lockett said that once she decided that Broderick was really dead, she decided to give the second statement to clear up what she knew were factual inconsistencies in the first statement. Therefore, because she did not believe Bro-derick was dead at the time she gave her first statement, a capital murder arrest warrant would most likely not have served as a form of coercion. Ms. Lockett admits that it was her knowledge that Broderick was dead that made her want to give the second statement because she knew the first contained a number of falsities. Therefore, this Court is of the opinion that it was not the invalid arrest warrant that coerced Ms. Lockett into making the second statement, but rather, it was the knowledge that she had told a number of lies in her first statement that could be used against her in a trial on a charge of murder.

Ms. Lockett’s final assignment of error is that the trial court erred by failing to delete references to prostitution in her first statement. These acts of prostitution referred to in Ms. Lockett’s statement all occurred after the shooting. In her first statement, Ms. Lockett testified that following the shooting she worked as a prostitute at truck stops to earn her way to Florida. The trial court overruled her motions to delete these references to prostitution from her statement on the ground that her defense was that she and Broderick got into a fight because he wanted her to work as a prostitute in his bar. The court ruled that her subsequent acts of prostitution were relevant to whether she would have been inflamed by Broderick’s request that she work as a prostitute.

The law in Mississippi is well settled that proof of other crimes is inadmissible except where (1) the offense charged and that offered to be proved are so connected as to constitute one transaction, or (2) where it is necessary to identify the defendant or (3) where it is material to prove motive and there is an apparent connection or relation between the act proposed to be proved and that charged, or (4) where the accusation involves a series of criminal acts which must be proved to make out the offense, or (5) where it is necessary to prove scienter or guilty knowledge. Gray v. State, 351 So.2d 1342 (Miss.1977); Sumrall v. State, 257 So.2d 853 (Miss.1972).

The parties agree that the Gray and Sumrall cases establish the legal parameters of proof of distinct crimes. The only dispute is their application to the facts in this case. We are of the opinion that the trial court erred in failing to delete references to acts of prostitution by the defendant which occurred subsequent to the shooting. Ms. Lockett’s willingness to engage in prostitution as a means to support herself as she fled from the events in Ocean Springs are not relevant to her state of mind concerning willingness to engage in prostitution before the shooting. Certainly they are not indicative to her willingness to work as a prostitute for Luke Bro-derick nor to her claim that the disagreement led to her being forced to defend herself. There is no formula or calculation capable of determining the willingness of a desperate, fleeing individual to commit acts which under normal free circumstances that person would not commit. We are of the opinion that the admission of the statements of Ms. Lockett’s acts of prostitution following the shooting of Broderick were far more prejudicial than probative and constituted reversible error.

Based on the foregoing, we hereby reverse Margie Diann Lockett’s conviction of murder and remand this cause to the Circuit Court of Jackson County for proceedings consistent with this opinion.

REVERSED AND REMANDED.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

WALKER, P.J., dissents.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    In the Matter of the ADOPTION OF F.N.M., a Minor. Wilbur L. BOONE, et ux. v. GEORGE COUNTY DEPARTMENT OF PUBLIC WELFARE.
    No. 55106.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Rehearing Denied Dec. 5, 1984.
    William T. Bailey, Sr., Lucedale, for appellant.
    Joseph A. Gentile, Eileen A. Gault, Robert G. Jenkins, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and Robertson, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of George County wherein the chancellor dismissed the appellant’s petition for the adoption of F.N.M., a minor. In dismissing the petition the court held that the appellants lacked standing to pursue the adoption because the child was already in the custody of the State Welfare Department and the appellants had failed to first apply to that department. Feeling aggrieved by that decision, the appellants bring this appeal and assign as error:

I. THE CHANCELLOR’S HOLDING THAT THE APPELLANTS WERE REQUIRED TO MAKE APPLICATION WITH THE WELFARE DEPARTMENT BEFORE FILING AN ADOPTION PE-. TITION.
II. THE CHANCELLOR’S FAILURE TO ALLOW AN EVIDENTIARY HEARING TO DETERMINE THE BEST INTEREST OF THE CHILD PRIOR TO DISMISSING THE PETITION FOR ADOPTION.

THE STIPULATED FACTS

This case was decided upon the following stipulated facts:

On December 29,1978, the minor child, F.N.M. was born.
In October, 1980, the natural mother, Rebecca Maverly, abandoned the child in George County, Mississippi.
On October 22, 1980, the Youth Court of George County, Mississippi, placed the child in the care and custody of the George County Department of Public Welfare. The child has been in the care and custody of the George County Welfare Department continuously since October 22, 1980, subject to the Orders of the Youth Court.
On January 27, 1981, an adoption petition seeking Temporary Custody or to adopt the child was filed, as Cause No. 229-A on the docket of the Chancery Court of George County, Mississippi, by Jimmy D. Farris and Mary B. Farris, residents of the State of Texas. A demurrer to the Petition was filed by the George County Department of Public Welfare and the demurrer was sustained.
On October 12, 1981, the George County Department of Public Welfare filed a Petition to Terminate Parental Rights of both the natural mother and the natural father, such being Cause No. 6637 on the' docket of the Chancery Court of George County.
On October 12, 1981, the Petitioners herein, Wilbur L. Boone and Edna M. Boone, filed their Petition to adopt the child. The Boones are the parents of Mary B. Farris, whose Petition to adopt this same child in Cause No. 229-A was dismissed.
On July 22, 1982, the Chancery Court of George County entered a decree terminating the parental rights of the natural mother and the natural father.
On September 17,1982, in this proceeding, the Petitioners filed an amendment to include an averment that the rights of the natural parents have been terminated in Cause No. 6637.
On October 8,1982, the George County Department of Public Welfare filed their Motion to Dismiss the instant adoption.
By decree in Cause No. 6637, the George County Department of Public Welfare was granted full care and custody of the minor, with full authority to do and provide any and all services necessary for the health and well being of said child, including authorization to execute a consent for the adoption of the child under the tenets of § 93-17-5 of the Mississippi Code of 1972, Annotated.
The Petitioners have never had physical and legal custody of this child; however, the child did visit in their home in Biloxi, Mississippi during the Christmas Holidays, 1980. This was without the knowledge of the Welfare Department.
The Petitioners did know the mother of the minor child when she was a child and her parents and family. Mr. Boone was at one time the family pastor, while he was pastor of Union Baptist Church, George County, Mississippi. The petitioners have no blood, marriage, neighbor or other background of relationship with the child.
The Petitioners have not made a request to the Welfare Department to adopt this child but have proceeded independently by filing this adoption petition.
The George County Department of Public Welfare, placed in loco parentis to said child by the Youth Court of George County, Mississippi, has placed the child with known individuals seeking to adopt. The child has been in said adoptive placement for an extended period of time.

LAW

The first question raised by this appeal is whether the chancellor was correct in dismissing the Boones’ petition for adoption on the grounds that the Boones failed to join the County Welfare Department as a defendant or in the alternative, make application to that department and receive the department’s consent for the adoption.

Following the termination of the parental rights of the child’s natural parents pursuant to § 93-15-109 Miss.Code Ann. (Supp. 1983), the child was placed in the custody of the George County Department of Public Welfare pursuant to § 93-15-111 Miss. Code Ann. (Supp.1983). The latter section reads:

Should the court terminate the parental rights of the parents or only one (1) of the parents (if they both be living), then the court shall place the child in the custody of some suitable person, agency or institution, and such person, agency or institution shall have full power to enter a petition under section 93-17-5, consenting to adoption, and no further notice shall be given in the adoption proceeding to such parent or parents.

Section 93-17-5 Miss.Code Ann. (1972), addresses the exact question raised by the appellant. That section reads:

There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before three (3) days after the birth of said child: (1) the parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years; or, (2) in the event both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law, provided that, if one of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or, (3) the guardian ad litem of an abandoned child, upon petition showing that the names of the parents of such child are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:
(a) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the department of public welfare of the State of Mississippi.
(b) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.
(c) The agent of the county department of public welfare of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.
Such consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by its next friend.
In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the purpose of this chapter, and no reference shall be made to the illegitimacy of such child.
If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in term time or in vacation to which process may be returnable and shall have power to proceed in term time or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if it were an adult. (Emphasis Added)

As is obvious from a reading of § 93-17-5 the appellants in this cause were required to either obtain the consent of the department of public welfare to the adoption of the child or make the department a party to the proceeding by the service of process.

Had the George County Department of Public Welfare either failed to respond to the petition for adoption or responded solely for the limited purpose of contesting the jurisdiction of the chancery court to decide the matter, this discussion would have to proceed no further. We could then hold that the chancellor was correct and affirm the dismissal of the adoption petition on that ground. Alas, alas, because the George County Department of Public Welfare’s motion to dismiss was in the form of a general appearance which raised substantive objections to the petition for adoption, the department waived any asserted defect in the chancery court’s jurisdiction over it. This rule holds true both under our old rules of civil procedure and the new rules promulgated by this Court effective January 1, 1982. Arrow Food Distributors, Inc. v. Love, 361 So.2d 324 (application denied 439 U.S. 962, 99 S.Ct. 447, 58 L.Ed.2d 420, [1978]), cert. den. 439 U.S. 1073, 99 S.Ct. 845, 59 L.Ed.2d 39 (1979); Easterling v. Volkswagen of America, Inc. 308 F.Supp. 966 (D.C.Miss.1969). Any defect in the service of process was cured by the filing of the George County Department of Public Welfare’s motion to dismiss. Therefore, we hold that the chancellor erred in dismissing the Boones’ petition on the ground that they lacked standing because of their failure to first make application with the George County Department of Public Welfare; however, we affirm the dismissal of the Boones’ petition on another ground.

Section 93-17-3 Miss.Code Ann. (Supp.1983) plainly requires that “The petition shall be accompanied by a doctor’s certificate showing the physical and mental condition of the child to be adopted and a sworn statement of all property, if any owned by the child.” Because adoption proceedings are purely the creation of statute, the method therein provided for is the exclusive means of achieving an adoption. Brassiell v. Brassiell, 228 Miss. 243, 87 So.2d 699 (1956). Therefore the requirement of § 93-17-3 that a petition for adoption be accompanied by a doctor’s certificate is a jurisdictional prerequisite. Without it the petition is not properly before the court.

In the instant case the Boones failed to attach the doctor’s certificate, they instead requested that the chancellor order that the child be examined. Whatever good faith that request may evince, it simply does not meet the jurisdictional requirements of § 93-17-3. We are therefore compelled to affirm the dismissal of the Boones’ petition for adoption.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.