author: WILLIAMS, Judge. BARRY, Judge,

text:
    Willie SCOTT v. RYAN-WALSH STEVEDORING CO.
    No. CA-1379.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Rehearing Denied April 25, 1984.
    Writ Denied June 8, 1984.
    Judith A. Defraites, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    Darryl J. Foster, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendant-appellee.
    Before REDMANN, BARRY and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff brought this suit in workers’ compensation alleging he had contracted an occupational lung disease while in defendant’s employ. The trial court awarded 100 weeks compensation at the minimum rate for loss of a physical function, La.R.S. 23:1221(4)(p). Both plaintiff and defendant appeal.

Plaintiff assigns error in the trial court’s failure to award benefits for total and permanent or permanent and partial disability, and in failing to include medical expenses and interest in its judgment. Defendant alleges the trial court erred in awarding plaintiff any compensation at all.

At trial, Willie Scott was 56 years old. He had smoked heavily since he was 15 years of age and had habitually drunk a half-pint of whiskey a day. He suffered from a multitude of medical problems: gastrointestinal difficulties, hiatal hernia, liver problems, chronic pancreatitis, colonic diverticulosis, a benign renal cyst in the kidney, glucose intolerance, arthritis, back pain, high blood pressure, angina pectoris, and bronchitis. Evidence as to whether plaintiff could add asbestosis or other pulmonary occupational diseases to this list, however, was conflicting.

Plaintiff’s condition was analyzed by five physicians. Plaintiff consulted Dr. Pettit, who referred plaintiff to Dr. Rosenberg, a specialist. Plaintiff’s attorneys referred plaintiff to Dr. Brown and Dr. Brach. Defendant’s attorneys referred plaintiff to Dr. Weill.

All of the physicians agreed that the latency period between exposure and appearance of symptoms in asbestosis was, at a minimum, eight to twenty years, and that the more intermittent the exposure, the longer the latency period. Plaintiff was only employed with the defendant from 1974 until 1979. Plaintiff admitted that Ryan-Walsh had phased out its asbestos operations while he was employed there, and that the quantity of asbestos they received dwindled and finally ceased long before he left the company. Plaintiff testified to having handled much more asbestos in his previous position with Maloney Car Loading from 1958 to 1970 than he had with defendant.

All of the physicians agreed that pulmonary fibrosis can be traced to a myriad of causes. Dr. Brach stated that 158 different causes had been established; Dr. Brown agreed that there were over 100. Plaintiff’s lung scarring was obstructive. All of the physicians agreed this was consistent with plaintiffs bronchitis or • his heavy smoking, and that asbestosis, conversely, was considered to cause restrictive lung scarring.

With the exception of Dr. Brown, all of the physicians felt that asbestosis could not be diagnosed by x-ray (unless possibly there was calcification of the diaphragm, which was not evidenced in plaintiff’s x-rays). Dr. Pettit and Dr. Rosenberg felt that there was no evidence of pulmonary fibrosis. Dr. Brach felt the x-rays showed mild pulmonary fibrosis, but said it was quite natural that the other doctors read the x-rays as normal due to the mildness of the condition. Only Dr. Brown insisted the x-rays clearly showed asbestosis and that any doctor who read them otherwise was, in his opinion, wrong.

Plaintiff underwent a series of pulmonary function tests at East Jefferson Hospital. Dr. Pettit, Dr. Rosenberg, and Dr. Brach all believed they were normal for a man of the plaintiff’s age and smoking history. Dr. Brach said that plaintiff’s exercise tests were mildly abnormal. Dr. Brach said the mild abnormalities would be compatible with other diagnoses besides asbestos fibrogenic dust exposure, but that he felt they were due to asbestosis because plaintiff’s history did not relate another possible cause to him. Dr. Brach did agree that the exercise test results could be caused by cardiovascular or other problems besides pulmonary disease. Dr. Weill conducted pulmonary function studies at Tulane Medical School and found them all normal. Because his test results were normal, Dr. Weill concluded that any disturbance in exercise tolerance or any exertional shortness of breath would be caused by something other than lung disease.

Not one physician could state that plaintiff had developed asbestosis caused by his exposure to fibrogenic dust at Ryan-Walsh. Dr. Pettit, Dr. Rosenberg, and Dr. Weill felt that plaintiff did not have asbestosis. Dr. Brach traced the “mild changes” in plaintiff’s lungs to asbestos exposure only in default of other explanations in plaintiff’s history. Only Dr. Brown testified with certainty that plaintiff had contracted asbestosis, and even he could only conclude that plaintiff’s exposure at Ryan-Walsh “certainly would have an effect, but it would be an additive to the previous.” The only point all the doctors could agree on was that plaintiff’s exposure to dust at Ryan-Walsh did aggravate plaintiffs condition and that he should work in a non-dusty atmosphere.

The trial judge’s reasons read:

“The Court is of the opinion that the plaintiff suffered injury or, at least, the aggravation of a pre-existing condition due to dust inhalation. Although plaintiff’s breathing problems are largely attributable to cigarette smoking, as indicated by the nature of the plaintiff’s disease, the Court finds a relationship between the plaintiff’s respiratory problems and his exposure to dust inhalation during the course and scope of his employment.”

The court granted plaintiff the minimum compensation rate set out in R.S. 23:1221(4)(p), providing for 100 weeks payment in cases not considered permanent or temporary partial or total disability, “where the usefulness of a physical function is seriously permanently impaired...”

The trial judge evidently felt that whatever disability plaintiff suffered was caused by the sum of his many medical problems and that plaintiff’s asbestos exposure alone had not disabled him, because he did not grant plaintiff either partial or total disability. Rather, the judge found that the “relationship” between plaintiff’s asbestos exposure and his lung condition merited the bottom award under Provision (p) affording him the shortest period of payment possible.

The application of this provision was legally correct. The court found that asbestos exposure had not disabled plaintiff, but had seriously permanently impaired his respiratory function. Provision (p) has been previously used to compensate victims of impaired lung function. See Chivoletto v. Johns-Manville P. Corp., 319 So.2d 492 (La.App. 4th Cir.), aff'd. 330 So.2d 295 (La.1976); Landry v. Nat’l. Gypsum Co., 354 So.2d 739 (La.App. 4th Cir.1978) (Beer, J., dissent from refusal to grant rehearing); Crump v. Hartford Ace. & Indem. Co., 367 So.2d 300 (La.1979), (Supreme Court reversed and reinstated trial court judgment not because (p) provision was inapplicable to nondisabled asbestosis victim, but because plaintiff was in fact disabled). The 1983 amendment of the provision, narrowing the scope of compensation for loss or impairment of physical function to a restricted category, but specifically including “respiratory system,” only strengthens the argument for applicability of the broader pre-1983 physical function clause to lung diseases.

The question in this case lies in whether there exists sufficient causation to justify any award at all for a physical condition largely based on a host of unrelated ailments and asbestos exposure occurring primarily before the years the plaintiff was in the defendant’s employ. The plaintiff is already receiving benefits through non-workers’ compensation channels. He took an early retirement with the company and received $330.00 a month in pension. The company’s insurer pays 80% of the plaintiff’s medical expenses. The plaintiff bore the burden of proving a workers’ compensation claim by a preponderance of the evidence. Juneau v. Tulane Industrial Laundry, 358 So.2d 347 (La.App. 4th Cir.1978). The trial court’s resolution of the conflicting evidence as to whether asbestosis was present should be respected, however. Billiot v. Bourg, 338 So.2d 1148 (La.1976); White v. Johns-Manville Sales Corp., 416 So.2d 327 (La.App. 4th Cir.1982). We cannot find that the trial judge’s resolution of the facts was manifestly erroneous and would, therefore, affirm the trial court’s judgment.

Defendant conceded that if the award were confirmed, interest would be owed on each past due installment until paid. Accordingly, we affirm the trial court’s award, interest on amounts past due to run from due date until paid.

AFFIRMED.

BARRY, J., dissents with reasons.

BARRY, Judge,

dissenting.

Apparently the majority affirms based on Scott’s asbestos exposure, yet the opinion says that “not one physician could state that plaintiff developed asbestosis caused by his exposure to fibrogenic dust at Ryan-Walsh.” The majority missed the point. Scott did not limit his claim to this substance nor the clinical disease “asbestosis”; rather, it was alleged and clearly proved that he was exposed to a variety of fibro-genic dusts which the trial judge correctly found aggravated his diseased lungs.

Willie Scott, 56 years old with a second grade education, has a 20 year work history of exposure to dust from asbestos, carbon black, building gunite, grain and other fibrous substances. He joined the freight handler’s union in 1958 and was employed by Ryan-Walsh from January, 1974 until December 24, 1979 when he retired. During his working life Scott loaded and unloaded box cars containing bags of the above substances, some of which were broken and caused an extremely dusty environment.

Scott smoked one and a half to two packs of cigarettes a day from age 15 until 1979, and was smoking “a little” (four cigarettes a day) in April, 1982. For some reason the majority points out that Scott “had habitually drunk a half-pint of whiskey a day”. There is no evidence that whiskey caused or contributed to his lung disease.

In December, 1979 Dr. George Pettit hospitalized Scott for extensive tests which revealed his primary ailments were a chronic lung problem, hypertension, and arthritis. He opined Scott was disabled and unable to do strenuous physical activity.

During Scott’s hospitalization Dr. Pettit consulted Dr. Eugene Rosenberg, a pulmonary specialist, who detected an abnormal lung condition which is common in heavy smokers and not generally found in chronic interstitial diseases. He said the x-rays appeared normal but “one could read in a little bit of increase in interstitial markings ... which could reflect some type of dust inhalation.” Dr. Rosenberg felt the obstructive changes were not caused by the work environment and Scott’s “mild” impairment was not disabling. Importantly, Dr. Rosenberg said the dust condition where Scott worked “was an aggravating factor.”

On July 17, 1981 Dr. Morton Brown, pulmonary specialist, found Scott had interstitial fibrosis of the lung due to fibrogenic dust. Dr. Brown saw Scott regularly up to the trial and said the x-rays revealed increased interstitial markings and the breathing tests showed evidence of moderate obstruction of the small airways which is one of the first signs of interstitial fibrosis. While the literature classically characterizes fibrogenic dust disease as restrictive, Dr. Brown stated he had seen instances in non-smokers where the changes were obstructive. It was his opinion that in some cases (as here) small airway obstruction is characteristic of interstitial fibrosis, but he acknowledged it might be due to prolonged cigarette smoking. He disagreed that Scott’s pulmonary function studies ruled out restrictive disease; however, he concurred that the function studies indicated the lung disease was moderately obstructive. Regarding the latency period, Dr. Brown said it was possible the disease was too advanced to have begun since 1974 when he started working for Ryan-Walsh. The doctor noted that it generally takes 10 years for scarring to develop, but it is difficult to pinpoint a term because people react differently. Significantly, he said Scott’s years at Ryan-Walsh had an additive effect on his lung disorder.

Dr. Bernard Brach, pulmonary specialist, saw Scott once on September 21, 1982 and he agreed with Dr. Brown. Dr. Brach testified the x-rays revealed pleural thickening which is generally associated with fibrosis. He also stated the x-rays indicated an increase in linear and non-linear markings in the mid to lower lung zones, the area usually affected in occupational diseases. When asked whether the markings are the type expected in a person who smoked for 30 years, he stated “no” because he had seen many patients who smoked that much without the markings. He added: “I have never seen pleural changes associated with smoking.” Dr. Brach stated the exercise test clearly showed the reason for Scott’s shortness of breath was not his heart (the cardiac response was normal) but his lung problems. He unequivocally stated Scott’s problems were from exposure to fibrogenic dust — not from smoking. Dr. Brach agreed with Dr. Brown that while fibrogenic diseases are generally considered restrictive, he had seen asbestosis patients with mild obstruction. Regarding the latency period, he stated while time is generally known for a single agent (asbestos), the effect of a combination of multiple dust exposures is not known. Dr. Brach opined that Scott could handle only light work, but not where he would be exposed to dust.

Dr. Hans Weill, defendant’s pulmonary specialist, examined plaintiff on July 26, 1982 and found sounds suggestive of bronchitis, but no pleural thickening or interstitial changes. Dr. Weill opined there was no lung disease, but stated he could not comment on the pleural surfaces or rule out restrictive disease which had no clinical significance. Regarding the latency period, Dr. Weill stated asbestos took 20 years to appear, but he was not asked about the effect of any other agent or a combination of dusts.

While the majority opinion correctly points out occupational diseases are generally restrictive, it overlooks the fact that all the pulmonary experts agreed that an occupational disease could contribute to lung obstruction, i.e., be obstructive. Three of the four specialists noted evidence of at least mild obstructive disease. Only defendant’s Dr. Weill found no evidence of lung impairment. Dr. Rosenberg attributed the obstruction to smoking but felt dust exposure contributed to Scott’s problems. Dr. Brown and Dr. Brach said Scott’s condition was the result of occupational dust exposure.

The trial judge found Scott “suffered injury or, at least, aggravation of a pre-ex-isting condition due to dust inhalation. Although plaintiff’s breathing problems are largely attributable to cigarette smoking ... the Court finds a relationship between the plaintiff’s respiratory problems and his exposure to dust inhalation....”

There is certainly sufficient medical evidence to conclude that Scott’s lung condition was causally connected to his employment with Ryan-Walsh. Even if the obstruction pre-dates that employment, the record supports the trial judge’s finding that the condition was aggravated by his employment and is compensable. Lofton v. Louisiana Pacific Corporation, 410 So.2d 1171 (La.App. 3d Cir.) writ denied 412 So.2d 1094 (La.1982). Compensation is due “even though the disease or condition might have brought about the disability in any event in its ordinary course_” Altor v. Belden Corporation, 393 So.2d 1233 (La.1981). It is immaterial that the disability could have been brought on by causes other than work-related exposure if the occupational exposure is in fact a disabling factor.

The trial judge awarded the minimum benefit (100 weeks) based on impairment of a physical function under R.S. 23:1221(4)(p). This provision applies where the impairment is “less than disabling ... is more than a mere triviality and yet does not rise to the dignity of a disability.” Joseph v. Martin Mills, Inc., 394 So.2d 722 (La.App. 3d Cir.1981); Malone and Johnson, La. Civil Law Treatise, Workers’ Compensation, Vol. 13, Section 286 at 666 (1980).

None of the doctors said Scott was totally disabled. However, the evidence does establish that he could not perform strenuous physical labor and will never be able to work in an environment of fibrous dusts.

Dr. Brown testified Scott’s disease would be progressive even outside of a dusty environment and his prognosis guarded since the lungs were damaged. Dr. Brach and Dr. Pettit said Scott could not do moderate or heavy labor — only light clerical type work. There is no evidence that he is so disabled as to make him a marginal employee to be classified as an “odd lot.” Unquestionably, he is capable of holding some “gainful occupation.”

Under LSA-R.S. 23:1221(3) as amended, an employee who is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience ...” is classified as partially disabled.

A preponderance of the medical evidence shows that Scott cannot resume manual labor, or return to work where he would be exposed to fibrous dust, and his condition will deteriorate. His impairment is obviously permanent and he is partially disabled under LSA-R.S. 23:1221(3).

Dr. Brown diagnosed Scott’s condition on July 17, 1981 and legal interest should be paid on each benefit payment from that date. Shatoska v. International Grain Transfer, Inc., 430 So.2d 1255 (La.App. 1st Cir.1983). Scott is entitled to the stipulated medicals: West Jefferson Hospital— $2,222.02; Dr. Brown — $619.00; Avenue C Clinic — $179.00; and East Jefferson Hospital — $290.00.

I therefore respectfully dissent.


source: Caselaw Access Project

author: LANIER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terry P. FORET.
    No. 84 KW 0146.
    Court of Appeal of Louisiana, First Circuit.
    March 19, 1984.
    Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-relator.
    Keith M. Whipple, Houma, for defendant-respondent.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is an application for a supervisory writ by the State contesting a ruling by the district court prohibiting it from introducing evidence concerning the analysis of a blood sample where the sample had been destroyed.

FACTS

The State alleges that on October 10, 1982, Terry Foret was the driver of a vehicle involved in a two car accident in Terre-bonne Parish which resulted in the death of Parrish Jeanfro. Foret was subsequently charged with Driving Left of Center (La. R.S. 32:79), Driving While Intoxicated (La. R.S. 14:98) and Negligent Homicide (La. R.S. 14:32).

After the accident, Foret was brought to the Terrebonne General Hospital and gave a blood sample for a blood alcohol test. The State also alleges that marijuana was found in Foret’s possession and seized. The blood sample and marijuana were sent to the Louisiana State Police Crime Laboratory (LSPCL) for analysis. A separate report on each analysis was sent to the office of the District Attorney for the Thirty-Second Judicial District Court, Parish of Terre-bonne.

On December 29, 1982, counsel for Foret filed a “Motion for Bill of Particulars and Request for Information and Documents” in docket # 129,375. In question 10 of the document, the State was asked the following question:

State whether any test was employed to determine the blood alcohol level of the defendant; and if so, what test was employed, when and by whom was it administered, the results of said test, and whether any sample of the material taken for said test from the defendant has been or will be made available to the defendant for independent testing and when and in what manner (specific request is now made for said sample).

On February 10, 1983, the State filed a document entitled “Answer to Motion for Bill of Particulars” in docket # 129,376 (Negligent Homicide) and in response to question 10, replied as follows:

In answer to # 10, the State attaches hereto a copy of the State Police Crime Lab report # SP-5812-82.

The report actually attached was that for the marijuana analysis and not that for the blood sample analysis.

The court minute entry for March 1, 1983, for docket # 129,375 and 129,376 (Driving Left of Center and Driving While Intoxicated) shows that a hearing was held on Foret’s above motion. His counsel advised the district court that he was satisfied with the answers in # 129,375 and the answers in # 129,376 with the exception of answer 13.

Apparently, Foret waived his right to trial by jury and consented to a judge trial on all three charges consolidated. On December 8, 1983, during this trial, Glenn Singletary, a forensic scientist at LSPCL, was called as a witness. When he was asked by the State if he had received a blood alcohol kit on Foret, counsel for For-et objected to any evidence concerning a blood alcohol analysis because the response to the question in the above-described motion was the report on the marijuana analysis and no mention was made of the blood alcohol analysis. Counsel for the State contended that the attachment of the wrong report was inadvertent, and the district court accepted this explanation. The district court offered to grant a mistrial if requested by Foret. Counsel for Foret declined to so request. The district court then recessed the trial until December 15, 1983, and ordered the State to make the blood sample available to Foret for inspection and analysis. La.C.Cr.P. art. 729.5.

On December 15, 1983, the trial was resumed, and the State advised the district court that the blood sample had been destroyed by LSPCL on November 12, 1983. (No reason was given for the destruction.) Counsel for Foret then requested that the State be prohibited from introducing evidence of the blood sample analysis because the State gave the wrong answer to the interrogatory and the sample had been destroyed, both of which prejudiced the presentation of the defense. The district court judge ruled that the actions of the State prevented the defendant from properly defending himself, that this was unfair and a violation of due process and suppressed the use of the blood sample analysis and any testimony concerning it. At the request of the State, the district court again recessed the trial until this Court could rule on the State’s request for a supervisory writ contesting this ruling. This application was filed on February 3, 1984.

ADMISSIBILITY OF TESTIMONY WHERE PHYSICAL EVIDENCE HAS BEEN LOST OR DESTROYED PRIOR TO DEFENSE INSPECTION

Although physical evidence is lost or destroyed, testimony concerning it may still be admissible. State v. Boyer, 406 So.2d 143 (La.1981). The mere possibility that a test of physical evidence might have produced evidence favorable to a defendant does not necessarily mean the failure to conduct the test because of the unavailability of the evidence denies a defendant a fair trial. State v. Taylor, 422 So.2d 109 (La.1982); State v. Robinson, 386 So.2d 1374 (La.1980). Where physical evidence has been lost or destroyed by the State, the following factors should be considered to determine whether a defendant’s right to due process has been prejudiced: (1) materiality of evidence to guilt or punishment; (2) prejudice to defendant by loss or destruction; and (3) good or bad faith of the State. United States v. Green, 680 F.2d 520 (7th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 493, 74 L.Ed.2d 635 (1982); United States v. Loud Hawk, 628 F.2d 1139 (9th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980); United States v. Picariello, 568 F.2d 222 (1st Cir.1978). In an appropriate case, testimony may be received about the alcohol content of a blood sample that has been lost or destroyed before a defendant had an opportunity to test it. United States v. Sewar, 468 F.2d 236 (9th Cir.1972), cert. denied, 410 U.S. 916, 93 S.Ct. 972, 35 L.Ed.2d 278 (1973).

To properly determine if the destruction of the blood sample is prejudicial error in the instant case, two additional factual inquiries must be made: (1) why was the blood sample destroyed; and (2) what is the testing life of the blood sample (see, for example, Green, 680 F.2d at 523, where the testing life of a blood stain was only two months). The State bears the burden of justifying its conduct, and the defendant bears the burden of demonstrating prejudice. Loud Hawk, 628 F.2d at 1152. On the issue of prejudice, inquiry may be made (within constitutional limits) into what additional actions, if any, the defendant could have taken to secure the correct report and the blood sample prior to trial. Cf. Picariello, 568 F.2d at 228.

DECREE

For the foregoing reasons, this writ is granted, the ruling of the district court is reversed, and this cause is remanded. The State is ordered to forthwith furnish Foret with a copy of the LSPCL report on his blood sample (if this has not already been done). The district court shall conduct an evidentiary hearing on the two factual inquiries set forth above and, after considering all pertinent factors, reconsider the objection to testimony about the blood sample in accordance with the views expressed herein.

WRIT GRANTED, REVERSED AND REMANDED WITH INSTRUCTIONS.

      . The State declined prosecution on the charge of possession of marijuana (La.R.S. 40:966).

      . The certificate of the court reporter shows that the trial was on docket # 129,374, 129,375 and 129,376.


author: BARRY, Judge.

text:
    STATE of Louisiana v. Harry COLE.
    No. K-2019.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 1984.
    Writ Denied April 23, 1984.
    Harry F. Connick, Dist. Atty., Richard V. Kohnke, Asst. Dist. Atty., New Orleans, for the State.
    Phil Johnson, Orleans Indigent Defender Program, New Orleans, for defendant.
    Before BARRY, WARD and WILLIAMS, JJ.
   BARRY, Judge.

The defendant pled guilty to possession of cocaine in violation of R.S. 40:967 C(2) and admitted a prior conviction for possession of heroin. The court sentenced him as a multiple offender to a suspended three years at hard labor and placed him on three years active probation conditioned upon his acceptance into a drug rehabilitation facility. The State seeks review of the sentence.

We note the defendant’s sentence may be suspended under a written multiple bill or if no multiple bill (even oral) is filed. R.S. 40:967 C(2) provides for a sentence up to five years and a fine of not more than $5,000.00, but does not prohibit probation or suspension of sentence. The defendant was sentenced pursuant to C.Cr.P. Art. 893 B which provides:

The court under the same conditions and by the same procedure as provided for above may suspend the execution or imposition of the sentence of a multiple offender who has been convicted, in the instant offense, of a violation of the Controlled Dangerous Substances Law of Louisiana, other than the production, manufacture, distribution or dispensing, or possession with intent to produce, manufacture, distribute or dispense, or the attempt to produce, manufacture, distribute or dispense, or the attempt to possess with intent to produce manufacture, distribute, or dispense, a controlled dangerous substance, and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs; however, if for any reason the defendant is rejected by said program, he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall order the sentence executed.

The procedure under which Subpart B is implemented is set forth in Subpart A, which provides that a sentence may be suspended “where suspension is allowed under law”. Thus, our Supreme Court has held that in order for a multiple offender to be given a suspended sentence pursuant to Art. 893 B, the statute under which he was convicted must permit suspension of sentence. State v. Lacour, 363 So.2d 521 (La.1978).

R.S. 40:967 C(2) does not prohibit probation and suspension of sentence which the trial court authorized.

WRIT DENIED.


author: GULOTTA, Judge.

text:
    William L. O’NEILL v. Herbert SUMRALL, Administrator of the Louisiana Office of Employment Security.
    No. CA-1845.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 1984.
    Phillip Shuler, Dona J. Dew, New Orleans, La., for D & D Catering Service, Inc.
    Before GULOTTA, SCHOTT and BYRNES, JJ.
   GULOTTA, Judge.

Ex proprio motu, we have noticed the untimeliness of the employer’s appeal in this action for unemployment compensation benefits.

The trial court rendered and signed a final judgment on the merits on June 17, 1983, reversing the Board of Review’s disqualification of the claimant, and remanding the matter for payment of benefits. The time for appealing this judgment thereafter expired without the filing of any petition for appeal.

On August 22, 1983, the defendant employer, D & D Catering, Inc., filed a “Motion to Annul Judgment and to Reopen Judicial Review”, seeking to nullify the June 17, 1983 judgment. Following the trial court’s denial of this motion on September 30, 1983, the employer moved for a new trial, which was likewise denied on November 15, 1983. On November 18, 1983, the employer then filed a motion for appeal from the September 30 judgment.

In response to our March 9,1984 order to show cause why the appeal should not be dismissed, appellant has filed a brief contending that its appeal is a timely one from the judgment of September 30, not from the judgment of June 17, 1983.

At the outset, we note the absence in the record of any September 30, 1983 signed judgment denying the appellant’s motion to annul. Without a signed, final judgment, no appeal may be taken. LSA-C.C.P. Art. 1911. Although the record does contain a November 15, 1983 signed judgment, denying the motion for a new trial, it is likewise clear that a judgment refusing a new trial is also not ap-pealable. LSA-C.C.P. Art. 2083; General Motors Accept. Corp. v. Deep South Pest Con., 245 La. 625, 173 So.2d 190 (1965).

The time for appealing the June 17, 1983 judgment on the merits has admittedly lapsed. An action for nullity cannot be substituted for failure to take a timely appeal. Levy v. Stelly, 254 So.2d 665 (La. App. 4th Cir.1971); C.I.T. Leasing Corp. v. Bar-Tender of Louisiana, Inc., 258 So.2d 228 (La.App. 4th Cir.1972); Meldean’s Inc. v. Rivers, 410 So.2d 837 (La.App. 3rd Cir. 1982).

For the foregoing reasons, the appeal is dismissed.

APPEAL DISMISSED.


author: FORET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Dwight E. BAKER, Defendant-Appellant.
    No. CR 83-550.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 1984.
    Hank Seldon Hannah, Hannah, Cook & Kaufman, Lafayette, for defendant-appellant.
    J. Nathan Stansbury, Dist. Atty., Lafayette, for plaintiff-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

QUESTION OF TIMELINESS OF APPEAL

Defendant, Dwight E. Baker, was convicted of the crimes of attempted second degree murder and attempted aggravated rape, violations of LSA-R.S. 14:27, 14:30.1 and 14:27, 14:42, respectively. He was sentenced to serve sixteen years at hard labor with the benefit of probation, parole or suspension of sentence. Subsequent to the filing of this appeal, an order to show cause was issued ordering defendant to show why his appeal should not be dismissed as having been untimely perfected under LSA-C.Cr.P. art. 914.

This article requires:

A motion for an appeal may be made orally in open court or by filing a written motion with the Clerk. The motion must be made no later than five days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the Court.

Defendant was sentenced on April 7, 1983; however he did not move for an appeal of his convictions until April 21, 1983. This time delay is beyond the five (5) day requirement established by the state legislature in Article 914. Thus, the appeal has not met the requirements of this article.

In reply to the order to show cause, the defendant has applied to this Court for an out-of-time appeal. His allegations state that initially he did not wish to appeal the verdict inasmuch as the sentence was sixteen years, whereas the potential sentences for the crimes charged total one hundred years. However, the defendant subsequently decided upon an appeal, and his counsel immediately filed a motion for appeal, which was granted, on April 21, 1983.

Rule 3-2.1 of the Uniform Rules of the Courts of Appeal provides for out-of-time appeals. It states:

In a criminal action, a defendant who, without fault, has failed to timely take an appeal may, by written motion supported by affidavit, apply to the court for an order permitting the taking of a delayed or out-of-time appeal.

It does not appear that the facts of this case meet the requirements of this rule. The defendant, through his counsel, candidly states that a decision was made not to appeal his case, since his sentence was relatively lenient vis-a-vis the potential sentencing exposure. However, at a later date the defendant changed his mind and wanted to pursue an appeal.

If the defendant’s out-of-time appeal is granted in this factual context, it would have the effect of rendering meaningless the five-day delay imposed in Art. 914 and the “without fault” language of Uniform Rule 3-2.1; thus, allowing future uncertainty concerning the finality of convictions, if defendants, who initially choose not to appeal their eases but at a later date change their minds, are allowed to then appeal their convictions.

For these reasons, defendant’s motion for an out-of-time appeal is denied, and the Rule to Show Cause is made absolute, dismissing this appeal.

APPEAL DISMISSED.


author: DAN M. LEE, Justice,

text:
    Cornelius T. SHAW, Administrator of Estate of Ellis Ladnier, Deceased and Anna Ladnier, Deceased, v. Clifton E. LADNER and Gloria F. Ladner.
    No. 54128.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    Charles E. Wood, Lindsey & Wood, Gulf-port, for appellant.
    Oscar B. Ladner, Gerald R. Emil, Gulf-port, for appellees.
    Before ROY NOBLE LEE, P.J., and HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Harrison County wherein the chancellor decided that the appellees, Clifton E. Ladner and Gloria F. Ladner, have proven by clear and convincing evidence that an express oral contract existed between themselves and Ellis Ladnier and Anna Ladnier, both deceased. The chancellor determined that the contract for compensation was in exchange for the Ladners’ services to the Ladniers while the latter were living. The chancellor awarded each of the appellees $60,175 for their claim. From that decision the appellant, Cornelius T. Shaw, Administrator of the Estate of both the. Ladniers, brings this appeal. Shaw argues that the chancellor erred (1) in finding that a contract existed, and (2) in awarding damages without a reduction from that sum of the total amount of benefit received by the Ladners.

On August 5, 1981, Ellis Ladnier died.' Only a few hours later on August 7, 1981, Anna M. Ladnier,' Ellis’s widow, departed this world. The petition for letters of administration was filed in the Chancery Court of Harrison County by Cornelius Shaw on August 11, 1981. A decree granting that petition was entered and the letters were filed August 24,1981. Following that, the appellees, Clifton E. Ladner and Gloria F. Ladner, husband and wife, filed a claim against both estates alleging that they were entitled to $190,340. In support of their claim they filed an affidavit alleging that there was an express agreement between themselves and the deceased Ladniers which provided that in exchange for care and services during the life of the Ladniers the Ladners would receive all the Ladniers’ property at the latter’s death. Cornelius Shaw entered an answer denying this claim.

At trial, the Ladners presented the testimony of five disinterested parties in addition to that of Gloria Ladner. Each of the witnesses told essentially the same story. All testified that some five to seven years before the Ladniers’ death the Ladners began to care for them. The Ladniers were infirm for several years prior to their death and the Ladners cared for them in every way possible. The Ladners supplied services which ranged from bathing, cooking, cleaning, gardening, feeding, shopping, taking the Ladniers to the doctor, changing their clothes, making every piece of clothing worn by Anna Ladnier, helping them use the bathroom and even holding Mr. Ladnier’s coffee cup for him every time he wanted a drink.

All five of the disinterested witnesses testified that they had been repeatedly told by both Ellis and Anna Ladnier that everything they owned was going to be given to the Ladners because the Ladners took care of them. In fact, the Ladniers had refused to sell or give away certain portions of their property, both real and personal, because they said that it belonged to the Ladners. Several of these witnesses testified that these statements were made in the presence of the Ladners. All of them testified that they knew that the Ladners expected to receive the Ladniers’ property upon the latter’s death.

Gloria Ladner testified that an express contract existed between the Ladniers and the Ladners. “They told us that they were both getting old and what they had, that they had a little bit of money in the bank, and their property, and Aunt Anna had had cancer many years ago and they were both in bad health and said they might need their money for medical bills and hospital bills and whatever but if we would stay there and take care of them and look after them that at their death, everything they owned would go to me and Clifton.” Gloria stated that she was unable to hold any other job because of the amount of care required to tend the Ladniers. In fact, every other witness testified that care of the Ladniers was at least a full time job for one person.

In reply to the Ladners’ evidence, Cornelius Shaw introduced the deposition of Lora Ladner. A reading of this deposition makes it clear that Lora Ladner was not in good health at the time the deposition was made. Also, Lora repeatedly stated that she was not sure of anything that she was testifying to. Review of her deposition gives the certain indication that her mind was less than clear at the time she gave her testimony. She summed up her testimony by saying, “Yes, I’m telling both of you lawyers, I can’t prove any of it.” When asked “You didn’t know what was going on inside, who was doing what inside the house?” She replied, “That’s right, that’s right.” Therefore, Lora Ladner’s deposition was of no value in this case. Regardless, the sum and substance of her testimony was that Clifton and Gloria Lad-ner had cared for the Ladniers for sometime, but that Mr. Ladnier was good to all of his nephews.

Cornelius Shaw then testified on his own behalf. He stated that he had known his Aunt Anna all of his life. He also stated that his Aunt Anna had told him that if Ellis survived, he was going to give everything to Cousin Berniece Ladner, and if Anna survived she would give everything to Shaw. Cornelius stated that he never spoke with Ellis about the matter. When asked about an occasion in which Shaw took Anna to New Orleans to a hospital and left Ellis behind, Shaw stated that he knew Ellis would be alright because Clifton Ladner was “supposed” to care for him. When pressed, Shaw admitted that he only went around the Ladnier’s house approximately once a month and had absolutely no knowledge of their daily life. He did not know who fed them, clothed them, shaved them, or assisted in any of their affairs of their day to day living.

Following the taking of all of this evidence, the chancellor issued an opinion in which he found that the Ladners had proved by clear and convincing evidence that there was an express contract for compensation. He also found that the Ladners had proved by clear and convincing evidence that they had performed the vast majority of the necessary care for the Lad-niers from sometime in 1974 or 1975. Because the date that they had begun performing these services was unclear, the chancellor found that it initiated on January 1, 1975, and ended on August 7, 1981, when Anna died. The chancellor also found that the care for the Ladniers required one person full time every day. Therefore, the chancellor ruled that the amount of compensation would be determined by figuring one person ten hours per day at $5.00 per hour. This sum was to be divided equally between the Ladners. The total, $120,350 divided equally between the Ladners came to $60,175 each. Final judgment was entered accordingly.

Shaw first argues on appeal that the chancellor’s finding was not supported by clear and convincing evidence and that the chancellor was manifestly wrong. This Court’s standard of review regarding a chancellor’s finding of fact requires that this Court determine that the chancellor was manifestly wrong and against the overwhelming weight of the evidence before it will reverse. Richardson v. Riley, 355 So.2d 267 (Miss.1978).

In the instant case this Court would be hard pressed to state that the chancellor was manifestly wrong. Aside from Gloria Ladner’s unrebutted testimony that there was indeed an express contract between the parties, the Ladners produced a number of witnesses who substantiated that claim. Those witnesses testified that they knew the Ladners expected the property and that the Ladniers had every intention of giving it to them. Indeed, the Ladniers had refused to part with some of their property, both real and personal, because they believed that it belonged to the Lad-ners in exchange for caring for them. The Ladniers had told all of the witnesses that the Ladners would have their property.

Cornelius Shaw was unable to rebut any of that testimony. His statement that Anna Ladnier had promised the property to him was unsupported by any other witness and is not sufficient upon which to find that the chancellor was manifestly wrong. Therefore, the chancellor’s finding that an express contract existed between the parties is affirmed.

Shaw’s second assignment of error relates to the chancellor’s method of computing damages. • Essentially Shaw argues here that all of the benefits incurred by the Ladners while working for the Ladniers should be considered and deducted from any sum awarded to the Ladners. Shaw argues that there was only a quasi contract if there was any at all and that the appellants’ use of the home, use of the land, and sale of crops must necessarily be deducted to arrive at the reasonable value of the services rendered.

Shaw’s argument fails because it neglects to consider that the nature of the contract required that the Ladners stay in the Ladniers’ home. There was no other way in which the Ladners could have cared for the Ladniers as they did. Also, it was not clearly established that the Ladners received any material benefit from using the land or selling crops. Therefore, in the absence of any proof that the Ladners received any benefit not contemplated by the contract, the chancellor was under no duty to reduce the award of damages by the reasonable value of those benefits.

In Wells v. Brooks, 199 Miss. 327, 24 So.2d 533 (1946), a factual situation was presented very similar to the one at bar. There, this Court held:

The pay expected by Wells — that is transfer in some manner to his wife or to his wife and himself by Miss Fowler of the title to her property — cannot be enforced, but that does not mean he is entitled to and cannot recover the reasonable value of the services rendered in the rightful expectation of such transfer. This Court has held a number of times that in such cases the claimant is entitled to fair and adequate compensation on a quantum merit basis.

199 Miss, at 335, 336, 24 So.2d at 536.

The chancellor in the instant case fashioned his remedy just as this Court dictated in Wells that he must. Although he could not have forced title to the property to be transferred to the Ladners, the chancellor allowed compensation designed to be both fair and adequate on a quantum merit basis.

Therefore, based on all of the foregoing, the decision of the chancellor is hereby affirmed.

AFFIRMED.

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


author: BOWLING, Justice,

text:
    In re Inquiry Concerning Judge William ANDERSON.
    No. 55037.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    As Modified April 11, 1984.
    Luther T. Brantley, III, Jackson, for Mississippi Commission on Judicial Performance.
    No brief filed for William Anderson.
    Before BOWLING, PRATHER and ROBERTSON, JJ.
   BOWLING, Justice,

for the Court:

This cause is before the Court on recommendation of the Mississippi Commission on Judicial Performance made pursuant to Section 177A, of the Mississippi Constitution of 1890, as amended and Mississippi Code Annotated, Section 9-19-1, et seq. (1981).

A formal complaint was filed with the Mississippi Commission on Judicial Performance alleging (1) Judge Anderson received a filing fee of $7 from Gulf Finance Company on each of three occasions for the purpose of securing the issuance of a garnishment by Justice Anderson and that although the filing fee was paid to Justice Anderson, a garnishment was not issued and (2) Justice Anderson was serving as a Booneville City policeman at the same time he was serving as a duly elected Justice Court Judge and that this was constitutionally barred.

The members of the Commission on Judicial Performance conducted a full hearing on the charges and in its detailed findings of fact and conclusions of law, it found that Justice Anderson had not conformed to the canons of the Code of Judicial Conduct by receiving the funds and failing to issue the garnishment writs. For this offense the commission reprimanded Justice Anderson and recommended that this Court place a fine of $100 on Anderson.

The commission further found that Justice Anderson was in violation of the Judicial Code of Ethics by serving as a Boone-ville City policeman and a justice court judge at the same time.

We wish to commend the Commission on Judicial Performance and its organization under the amended Constitution and the laws passed by the legislature thereunder. Obviously, they have worked diligently and faithfully to improve the judicial system of this state. They are professional men, who give freely of their time and engage in sacrifices to perform their duty.

We take up the two charges against Justice Anderson in reverse order. We first discuss the question of whether or not a justice court judge may serve in that office and at the same time hold a job as a law enforcement official.

We hold that he cannot do so. It is elemental that a justice court judge is a member of the judicial branch of the government and police officers and other law enforcement officials are members of the executive branch. It is therefore inescapable that a person cannot be a part of both branches at the same time. Article I, Sections 1 and 2 of the Mississippi Constitution of 1890 clearly mandate that the above statement is correct. We recently have addressed this question in detail in the case of Alexander v. Allain, 441 So.2d 1329 (Miss.1983).

The record and briefs before this Court reveal that Justice Anderson is no longer serving as a Booneville city policeman. Nowhere in the Constitution or the statutes do we find where a justice court judge is prohibited from taking a part-time job outside his judicial office. We do not specifically address that question here. We deal only with the above stated question; that is, that he cannot engage in a part-time job as a law enforcement official.

We now discuss the complaint against Judge Anderson to the effect that he on three occasions during his first term in office, received a $7 filing fee to issue writs of garnishment and failed to do so. We carefully have studied the record and the testimony in the cause, and as stated by the Commission in its report to this Court, Justice Anderson, during the first part of his first term, did not familiarize himself sufficiently with the legal procedures of the office. The record shows without dispute that no part of the three filing fees for the garnishment writs requested by Gulf Finance Company was appropriated by Justice Anderson or placed in his personal account. They were placed in his justice court account and undisputedly by him would have been repaid to Gulf at any time on their request. In the meantime, Justice Anderson took action toward collecting the judgments or substantial parts thereon on behalf of Gulf. Admittedly, Gulf at the time they deposited a filing fee with Justice Anderson, did not complete a suggestion of garnishment in writing as required by MCA § 11-35-1 (1972). This could have been through ignorance of the law, even though it may be assumed that a finance company could be familiar with such procedures. Justice Anderson’s testimony was that he had not become familiar with the details of issuing garnishments and that instead of doing so, he, as herein-before stated, attempted to collect the judgment from the judgment debtor.

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

We do not have before us the situations that existed as set out in In Re Branan, 419 So.2d 145 (Miss.1982); In Re Lambert, 421 So.2d 1023 (Miss.1982); and In Re Anderson, 412 So.2d 743 (Miss.1982). The record does not show a wilful violation of the law or the judicial canons of ethics by Justice Anderson. He did not use the three filing fees personally. Undisputedly, they remained in the court account for distribution at a proper time. Unlike the cases mentioned above, the actions of Justice Anderson and Gulf Finance Company appear to have been caused by ignorance, rather than a disposition to do wrong. Even so, Justice Anderson technically, as found by the commission, violated canons of the Code of Judicial Conduct. We do not find that this was such a violation that a fine should be imposed on him. We, therefore, disagree with the commission to that extent and do not impose a fine on Justice Anderson. We, however, agree that the commission, in its effort to perform its proper duty, was correct in admonishing Justice Anderson and we approve and ratify that decision. Although as stated above, we find no wilfulness on the part of Justice Anderson, there was a technical violation.

We therefore affirm the finding of the commission that it was in error for Justice Anderson to serve as a justice court judge and a Booneville city policeman. This was a violation of the constitutional separation of powers hereinbefore stated. We decline to impose a fine, but order that all costs be paid by Justice Anderson.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . The holding in this case does not affect the powers of civil officials [including judges of the Supreme, Circuit, Chancery, County and Justice Court Judges] from their duties as conservators of the peace pursuant to the Constitution of 1890 and applicable statutes: Article VI, § 167, Miss. Const. 1890; MCA §§ 9-1-23 and 99-15-1.

      . What we say here in no way diminishes the duty of either a newly elected justice court judge or any other from taking advantage of the institutional and other learning opportunities now offered for that office. >


text:
    Nina King STRUB v. Donald Francis STRUB.
    No. 54765.
    Supreme Court of Mississippi.
    March 7, 1984.
    Rehearing Denied April 25, 1984.
    Robert J. Brantley, Jr., Jackson, for appellant.
    Charles 0. Moore, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    In the Matter of the ESTATE OF Earl B. KIMBLE, Deceased. Darlene LARSEN v. Mable L. KIMBLE.
    Nos. 54054, 54055.
    Supreme Court of Mississippi.
    March 7, 1984.
    Rehearing Denied April 18, 1984.
    Joe Jack Hurst, James S. Armstrong, Wells, Wells, Marble & Hurst, Jackson, for appellant.
    E.R. Arrington, Arrington & Arrington, Hazlehurst, for appellee.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Copiah County wherein the chancellor sustained a motion to dismiss two separate petitions of Darlene Larsen prior to an evidentiary hearing, on the merits of those petitions. On October 20, 1981, Darlene Larsen, the appellant, filed two petitions in the Chancery Court of Copiah County. The first was a petition to determine the heirs of Earl B. Kimble; the second, a petition to reopen the estate of Earl B. Kimble. Larsen’s petitions alleged that her mother was Earl Irene Stuart Kimble, the illegitimate daughter of Edith Stuart and Earl B. Kimble. Edith Stuart and Earl B. Kimble were never married. Earl B. Kimble subsequently married Mable Little Kimble, the appellee, on August 30, 1932. Earl Irene Stuart Kimble died in Nevada on September 9, 1976. Earl B. Kimble died on May 29, 1980, survived only by Mable Kim-ble, his widow, and Darlene Larsen, his alleged granddaughter. Following the consolidation and dismissal of her causes of action, Darlene Larsen now brings this appeal and assigns that dismissal as error. We reverse.'

Earl B. Kimble’s estate was opened in the Chancery Court of Copiah County on June 24, 1980, and closed on October 6, 1980. Mable Kimble was appointed the administratrix of the estate and all property therein was distributed to her. In her petition, Darlene Larsen alleged that as the daughter of Earl B. Kimble’s illegitimate daughter, Earl Irene Stuart Kimble, she was entitled to share in his estate. Larsen first sought to prove the paternity of her mother, Earl Irene Stuart Kimble, and then assert a claim to Earl B. Kimble’s estate through her mother.

There are two questions presented by this appeal: Whether the offspring of an illegitimate can sue to determine her heir-ship descending from the father of her illegitimate mother and if so, whether the instant suit was timely filed. Based on the following discussion of relevant authorities, we answer both questions in the affirmative.

In 1977, the United States Supreme Court handed down its decision in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). This decision is of profound importance to illegitimates who wished to assert their right to inherit from intestate fathers. The Court there held that an Illinois statute which prohibited an illegitimate from .inheriting from his intestate father unless the father had acknowledged the child and the child had been legitimated by marriage of the parents was an unconstitutional denial of equal protection. The Court noted that there may be problems associated with giving illegiti-mates an equal right to inherit from an intestate father. Among these problems were the difficulty of proving paternity and the associated danger of false claims against the estate. The 'Trimble decision stated that these problems “might justify more demanding standards for illegitimates claiming under their father’s estates from that required either for illegitimate children claiming under their mother’s estates or for legitimate children generally.” Trimble, 430 U.S. at 770, 97 S.Ct. at 1459, 52 L.Ed.2d at 39.

The very next year (1978) in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), the Supreme Court again addressed the right of illegitimates to inherit and the effect of a New York statute which required an adjudication of paternity prior to the death of the father. In Lalli, the Court held that New York’s requirement that an order of filiation be made during the lifetime of the father had a rational relation to the state’s interest in providing for the just and orderly disposition of property at death.

In 1981, our legislature responded to the constitutional mandate articulated in Trimble v. Gordon. At that time § 91-1-15 Miss.Code Ann. was rewritten to provide illegitimates with the right to inherit from an intestate father. Under the 1981 amendment an illegitimate could inherit from and through the illegitimate natural father and his kindred if one of three things happened: The natural parents participated in a marriage ceremony before the birth of the child; or there had been an adjudication of paternity or legitimacy before the death of the intestate; or there had been an adjudication of paternity after the death of the intestate if the action seeking the adjudication of paternity was filed within one year after the death of the intestate or within ninety (90) days after the first publication notice to creditors, whichever is less. § 91-1-15(2) Miss.Code Ann. (Supp.1981). For purposes of clarity we set out the entire 1981 amendment below:

SECTION 1. Section 91-1-15, Mississippi Code of 1972 is amended as follows:
91-1-15 (1) An illegitimate shall inherit from and through the illegitimate’s mother and her kindred, and the mother of an illegitimate and her kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution. However, if an illegitimate shall die unmarried and without issue, and shall also predecease the natural father, the natural mother or her kindred shall not inherit any part of the natural father’s.estate from or through the illegitimate. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate’s estate inherited from the natural father shall be inherited according to the statutes of descent and distribution.
(2) An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred, and the natural father of an illegitimate and his kind shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or
(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:
(i) Such court was in the state of residence of the intestate at the time of the intestate’s death;
(ii) The action adjudicating paternity was filed within ninety (90) days after the death of the intestate;
(iii) All known heirs were made parties to the action; and
(iv) Paternity or legitimacy was established by clear and convincing evidence.
(d) The natural father of an illegitimate and his kindred shall not inherit;
(i) From or through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child.
(ii) Any part of the natural mother’s estate from or through the illegitimate if the illegitimate dies unmarried and without issue, and also predeceases the natural mother. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate’s estate inherited from the mother shall be inherited according to the statutes of descent and distribution.
Any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.
(3) The children of illegitimates and their descendants shall inherit from and through their mother and father according to the statutes of descent and distribution.
(Emphasis added).

In 1983, § 91-1-15 was again amended by our legislature. The 1983 amendment was not a substantive change in the statute, but rather, an attempt by the legislature to make certain that their intent be understood. That this was the purpose of the 1983 amendment becomes abundantly clear upon reading of the preamble to the 1983 amendment:

“WHEREAS, The Mississippi Legislature passed an act amending Section 91-1-15, Mississippi Code of 1972, and other sections of said code pertaining to the rights and claims of illegitimates, during the 1981 Regular Session, said amendment being effective from and after July 1, 1981; and
“WHEREAS, Section 91-1-15 was so amended to provide for intestate succession among an illegitimate and the natural father and his kindred with certain limitations, and to afford unto all illegiti-mates without classification a remedy whereby they could enforce their substantive rights and claims of intestate succession as provided for in said amendment; and
“WHEREAS, the Legislature recognized that the decisions and statutes of this state existing prior to said amendment placed an unsurmountable barrier to inheritance by illegitimates when compared to the rights of a legitimate person, and that said decisions and statutes effectively barred an unnecessarily large number of illegitimates from inheritance through their natural father as a result of certain classifications into which the illegitimate may be categorized in violation of equal protection under the law; and
“WHEREAS, it now appears that there is confusion as to the legislative intent in amending Section 91-1-15, Mississippi Code of 1972, and said section is now interpreted by some segments of the judiciary to mean that the Legislature did not intend to create a new, separate and distinct remedy for the benefit of all illegitimates without any classification and said amendment as now codified in Section 91-1-15, Mississippi Code of 1972, is interpreted by some segments of the judiciary to be prospective on rather than retrospective and prospective in effect and is interpreted not to have created a new, separate and distinct remedy for the claims of all illegitimates without classification; and
“WHEREAS, the Legislature recognized at the time it was considering said amendment, that by creating said remedy the Legislature was opending the door to the possible litigation of stale or fraudulent claims and that a further effect of bestowing said remedy upon all illegitimates would possibly be to create a certain amount of confusion and uncertainty as to the status of titles to real property; however, the Legislature intended to bestow upon il-legitimates a new and additional remedy whereby such illegitimates could maintain their rights of inheritance notwithstanding such interests of the state in preventing stale and fraudulent claims and avoiding uncertainty as to the titles of real property and, accordingly, the Legislature enacted appropriate periods of limitations within which illegitimates could bring their claims;
“NOW, THEREFORE, in order to eliminate any ambiguity in Section 91 — 1— 15, Mississippi Code of 1972, and to conform said section to express the true legislative intent. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI.”
(Emphasis added)

The 1983 Amendment also included the following definitions:

(a) “Remedy” means the right of an illegitimate to commence and maintain a judicial proceeding to enforce a claim to inherit property from the estate of the natural mother or father of such illegitimate said claim having been heretofore prohibited by law, or prohibited by statutes requiring marriage between the natural parents, or restrained, or enjoined by the order of process of any court in this state.
(b) “Claim” means the right to assert a demand on behalf of an illegitimate to inherit property, either personal or real, from the estate of the natural mother or father of such illegitimate.
(c) “Illegitimate:” means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage to said parents or legitimized through a proper judicial proceeding.
(d) “Natural parents” means the biological mother or father of the illegitimate.
Section 91-1-15(1) Miss.Code Ann. (Supp. 1983). (Emphasis added)

Perhaps the most significant aspect of this remedial statute is the fact that it created a remedy in favor of all illegiti-mates regardless of the date of the death of the intestate but placed in a three year limitation period, after July 1, 1981 notwithstanding the minority of a child (illegitimate) within which to file such claim. This was done by inclusion of subsection (3)(d)(ii)TI 2 which states as follows:

A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.

The question now arises how does this code section apply to the issues presented in the instant case. Earl Irene Stuart Kim-ble could not have asserted a claim against Earl B. Kimble prior to July 1, 1981. This is true for two reasons. First and foremost, throughout the life of Earl Irene Stuart Kimble, Earl B. Kimble was alive. Because no person is an heir of another living person, Earl Irene Stuart Kimble had no claim to assert.

In Estate of Kidd v. Kidd, 435 So.2d 632 (Miss.1983) we quoted the following passage from Covington v. Frank, 77 Miss. 606 at 618, 27 So. at 1000 (1900):

If to prove the status of Mary Covington and Cornielia Miller as to W.A. Coving-ton be proof of a claim against the estate of W.A. Covington, certainly it is a claim that did not originate in the lifetime of W.A. Covington. It is undoubted law that a child, during the lifetime of the father, has no interest in his estate; it was held in the New Orleans Railway & Mill Supply Co. v. Gattie and wife, [77 Miss. 754, 27 So. 601] at this term, that a wife has no property interest in the homestead of the husband such as would constitute a consideration to support a promise from him to her. So neither wife nor child has any interest in the property of the husband and father during his lifetime; dying intestate they would be his heirs, and to prove their relationship to him is to prove their title to his property by desent when cast; but it is not to prove a claim that originated in his lifetime. At the death of a person, dying intestate, eo instanti the title of the heirs accrues. Jones v. Robinson, 17 Ohio St., 171, 180; 1 Redfield on Wills, 412, 413.

435 So.2d at 635.

Second, the remedy created by § 91-1-15 did not come into existence until July 1, 1981. Therefore, no cause of action existed prior to July 1, 1981. At that point § 91-1-15 created a remedy for all illegiti-mates and descendants of illegitimates. Subsection (3) of this statute provides that: “The children of illegitimates and their descendants shall inherit from and through their mother and father according to the statutes of descent and distribution.” Therefore, the statute also created a cause of action for those descents of illegitimates who wished to assert a claim against their ancestor’s estates. Such is just the case in the immediate suit. Although Earl Irene Stuart Kimble never had a cause of action, a remedy was created for the first time in favor of Darlene Larsen on July 1, 1981.

In Estate of Kidd v. Kidd, 435 So.2d 632 (Miss.1983), we held: “A cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested.” See also, Rankin v. Mark, 238 Miss. 858, 120 So.2d 435 (1960); Aultman v. Kelly, 236 Miss. 1, 109 So.2d 344 (1959); Walley v. Hunt, 212 Miss. 294, 54 So.2d 393 (1951); Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344 (1943).

It is obvious then that Darlene Larsen had a remedy as of July 1, 1981, contingent upon her establishing that Earl B. Kimble was the father of her deceased illegitimate mother. We are now faced with our second inquiry. Was her cause of action timely filed? Section 91-1-15 contains two separate periods of limitation. The first appears in subsection (3)(c) wherein an adjudication of paternity after the death of the intestate is permitted if such action is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors, whichever is less. The second period of limitation is in subsection (3)(d)(ii)1T 2 wherein the legislature provided that any claims existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date (July 1, 1981) by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father to be brought within three years from datfe. As we interpret the legislative intent the three year period relates solely to those claims accruing to an illegitimate as a result of the death of an intestate prior to July 1, 1981. The one year or ninety (90) day period of limitation is therefore applied only to those cases where the intestate died subsequent to July 1, 1981. In the instant case, Earl B. Kimble died prior to July 1, 1981. Because that is so, Darlene Larsen had until June 30, 1984 in which to assert her claim as an heir to the estate of Earl B. Kimble. Clearly then, this suit was timely filed.

It has been said that the legislature has opened the door to stale or fraudulent claims by its amendment of § 91-1-15 effective July 1, 1981 and its clarification as to legislative intent in 1983. We do not so interpret the amendment. Instead we find that the amendment allows a shorter time period within which an illegitimate must file a claim than allowed in Knight v. Moore, 396 So.2d 31 (Miss.1981). The amended section requires filing within one year after death of the intestate, if the intestate dies after July 1, 1981, and this limitation period is to run notwithstanding the minority of a child. Knight held that the claim must be filed within six (6) years after the illegitimate reached twenty-one (21) years of age. The amendment of § 91-1-15 in 1981 sets the one year limitation period to begin at the time of death of the intestate as it should. See Estate of Kidd v. Kidd, 435 So.2d 632 (Miss.1983).

The standard of proof as clearly announced in the amendment requires that a determination of heirship be by clear and convincing as opposed to a preponderance of the evidence. By raising the standard of proof, the legislature surely was attempting to eliminate or reduce instances of false or fraudulent claims./

The 1981 amendment and the 1983 clarification thereof clearly eliminated the “un-surmountable” statutory barrier condemned in Trimble v. Gordon, supra, while at the same time shortened the limitation period within which to bring a claim and increased the standard of proof to sustain such a claim. In doing so we believe that the amendment in 1981 and clarification amendment in 1983 will effectively afford the illegitimates equal protection of the law, while at the same time accomplish the legitimate state interest of (1) avoiding the litigation of stale or fraudulent claims, (2) the fair and just disposal of an intestate decedent’s property; and (3) the repose of titles to real property. Estate of Kidd v. Kidd, supra. Justice will thereby prevail wherein all may take comfort, legitimates and illegitimates alike, that they will be treated equally under the laws of the State of Mississippi.

Based on all of the foregoing, we hold that Darlene Larsen is entitled to a full hearing in an attempt to assert her claim to the estate of Earl B. Kimble and that her attempt to do so has been timely filed.'

REVERSED AND REMANDED FOR A TRIAL NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C.J., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

WALKER and ROY NOBLE LEE, P.JJ., dissent.

SULLIVAN, J., not participating.

      . It should be noted that our statute is much greater in scope than that approved by the Supreme Court in Lalli. Our statute permits an adjudication of paternity after the intestate’s death whereas the New York statute did not. This is but one of the many indications that our legislature intended that the remedies provided by § 91-1-15 be broadly interpreted. The preamble to the 1983 amendment, quoted in full in this opinion, is also indicative of this point.


author: ROBERTSON, Justice,

text:
    Eugene BULLOCK, Ernest Lee Bullock and Rayvon Holloway v. STATE of Mississippi.
    No. 54770.
    Supreme Court of Mississippi.
    March 28, 1984.

      William B. O’Neal, Brookhaven, for appellants.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court

I.

Ernest Bullock, Eugene Bullock, and Rayvon Holloway have been jointly tried and convicted of cattle theft in the Circuit Court of Lincoln County, Mississippi. Each Defendant has received a three year sentence with two years suspended and five years probation. The case presents the question whether confessions made by each defendant plus one beef ham observed in their possession are sufficient to sustain the convictions.

Defendants are charged with the larceny of a cow allegedly belonging to C.C. Clark of Lincoln County. They were seen with a home butchered beef ham weighing approximately 65 pounds. Independent of the confessions, no evidence established that the hindquarter of beef came from a cow owned by Clark. More important, no evidence established that Clark or anyone else was missing a cow, much less that one had been stolen. The State has failed, without any doubt, to establish the corpus delicti. The convictions must be reversed.

II.

The facts in this case are simple, though unique. In September of 1982, the three defendants, Ernest and Eugene Bullock and Rayvon Holloway, accompanied by two others, appeared at a store owned by C.C. Clark with a hindquarter of beef wrapped in a garbage bag or a sheet. The cut differed from those prepared by a professional meat packer; it bore no inspection stamp, it was not properly packaged, and had been stripped clean of the layer of fat that normally is left on a cut of meat to preserve it. The meat was not especially clean as it was covered with black hairs and grass. The boys asked to have the meat sliced, which was done, and it was never seen again. The butcher asked where they had gotten the meat, and one of the defendants allegedly replied that they had gotten it from Jones Meat Market. This was repudiated at trial by both the State and one of the Defendants.

Shortly thereafter, in the course of investigating a missing calf owned by one Mr. Jolly, Constable George Earls of Enterprise Mississippi contacted Rayvon, having learned of his recent possession of the home butchered beef ham. According to Earls, Rayvon confessed that he had acquired the cut of beef by killing and butchering one of C.C. Clark’s cows. Rayvon vehemently denies this confession. Meanwhile, Mr. Jolly discovered the remains of his calf which apparently had died of natural causes. However, in due course, the three defendants were arrested for cattle rustling and each confessed to this crime.

The three boys were tried in the Circuit Court of Lincoln County, Judge Joe Pigott presiding. They were each charged with the theft of a cow from the herd of C.C. Clark, pursuant to Miss.Code Ann. § 97-17-53 (1972). Apart from the confessions, the state offered no evidence that a cow was missing from the herd of C.C. Clark, much less, that one had been stolen. C.C. Clark was unavailable for the trial. His brother, F.Y. Clark testified that his brother did own some cattle located in the pasture from which the cow confessedly was taken. However, Rayvon testified that the only reason the boys had agreed to confess as they did was because they had been told that they would not get out of jail until they did so. On appeal, the three defendants maintain that the state utterly failed to meet its burden of proving the elements of the crime charged beyond a reasonable doubt.

III.

Every first year law student knows that in a criminal prosecution, the State has the burden of proving beyond a reasonable doubt each element of the offense charged. The elements of the offense charged here are set out by Miss. Code Ann. § 97-17-53 (1972), which provides inter alia:

If any person shall feloniously take, steal, and carry away any neat or horned cattle, or knowingly buy, trade, or accept such stolen livestock, he shall be guilty of larceny, regardless of the value of the cattle, ...

In meeting this burden, the State must prove the corpus delicti or body of the crime by showing that the crime charged did in fact occur. While many aspects of our criminal justice system may be baffling to the layman, one that is not is surely the burden of proving the corpus delicti. From our first encounter with the Hardy Boys or Nancy Drew and later with Mickey Spillane, we have known that the state must prove that a crime has occurred, though we learned this in the context of corpseless murder mysteries. The confession of one criminally accused, standing alone, will not suffice to sustain a conviction absent proof of the body of the crime.

In Poole v. State, 246 Miss. 442, 446-47, 150 So.2d 429, 431 (1963), this Court pronounced the precise burden to be borne by the State regarding the corpus delicti:

The definition of corpus delicti literally is “body or substance of the crime, “meaning that a crime has actually been committed, having as a compound fact (1) the existence of a certain act or result forming the basis of the criminal charge, and (2) the existence of criminal agency as the cause of this act or result. The identity of the accused is not an element of the corpus delicti. Every element, criminal charge and criminal agency, must be proved beyond a reasonable doubt; extra judicial admissions, declarations or confessions of accused are not of themselves sufficient to establish the corpus delicti. .

See also In the Interest of Earles, 294 So.2d 171, 172 (Miss.1974).

This state has long ago made the policy determination that it would reduce to a minimum the risk that a person might be convicted of a crime that was never committed. We require independent proof of the corpus delicti “to avoid convicting a person solely out of his own mouth.” Rhone v. State, 254 So.2d 750, 753 (Miss.1971); Gentry v. State, 416 So.2d 650, 652 (Miss.1982).

Where there are confessions of a crime, however, the state’s burden of proving the corpus delicti is lighter than it would be otherwise. In this situation, the State only need show the corpus delicti, sans confession, by a preponderance of the evidence; the confessions themselves may be used to raise the proof beyond a reasonable doubt. Poole v. State, supra, 246 Miss, at 447, 150 So.2d at 431. Cf. Heard v. State, 59 Miss. 545, 546 (1882) (Where there has been a confession, any independent corroborative proof which shows that the crime charged has occurred proves corpus delicti).

Here we have little other than the confessions of the Defendants. In disposing of this appeal, however, we must be mindful of our limited scope of review. The jury’s guilty verdict necessarily means that it found that the larceny of a cow belonging to C.C. Clark did occur. We have repeatedly held that the jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of the witnesses. See, e.g., Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980); Gandy v. State, 438 So.2d 279, 285 (Miss.1983).

Once the jury has returned a verdict of guilty in a criminal case, we have no authority to order discharge of the defendant unless the evidence, taken in the light most favorable to the verdict, is such that on one or more elements of the offense charged, no reasonable hypothetical juror could have found against the defendant beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 576 (1979); Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

On the other hand, where the evidence is such that on one or more elements of the offense charged no reasonable hypothetical juror could have resolved the issue against the defendant beyond a reasonable doubt, we have no authority to affirm. In that event, it becomes our duty to order that the defendant be discharged. Dickerson v. State, 441 So.2d 536, 538-40 (Miss.1983); West v. State, 437 So.2d 1212, 1213-14 (Miss.1983). This is the situation we confront here.

The defendants in this case have been charged with the larceny of a cow belonging to C.C. Clark. Leaving the confessions aside, what stands out is that there is no evidence that one of Clark’s cows was missing and no evidence that one was stolen. C.C. Clark did not testify at trial. His brother, P.V. Clark stated only that C.C. Clark had a cattle operation in the area. He did not say that his brother was missing any cattle, nor did anyone else.

Proof of the corpus delicti in a larceny prosecution may be made absent recovery of the stolen goods. In Poole v. State, 246 Miss. 442, 150 So.2d 429 (1963), the state proved that Mr. Blackwell, the since deceased victim, had money in his possession before the incident in question and that the money was missing thereafter. In Miles v. State, 360 So.2d 1244 (Miss.1978), even though the goods were never recovered, there was evidence which established that the victim was missing the goods and that the chain securing them had been cut.

In Poole and Miles, there was evidence, independent of any confessions, that identifiable (though unrecovered) property of the victims was actually missing. Here, other than the repudiated confessions of the Defendants, we have no evidence that a cow belonging to C.C. Clark was missing, or that the beef ham seen in the Defendants’ possession belonged to C.C. Clark.

This corpus delicti /confession case has an odd twist. We have three defendants who have been indicted, tried and convicted jointly. Each confessed. The confession of each implicated the others. There is a question then whether the confessions of the defendants may be used against each other to establish the corpus delicti. On the facts of this case, we answer in the negative. Under established case law, the State was required to offer credible evidence independent of all confessions that someone was missing a cow. Simmons et al. v. State, 208 Miss. 523, 44 So.2d 857 (1950); Pope et al. v. State, 158 Miss. 794, 131 So. 264 (1930).

The evidence before us as a matter of law is insufficient to establish the corpus delicti. There is simply no independent proof that a cow was missing from the herd of C.C. Clark. Under these circumstances, the convictions of these three defendants must be reversed. In the Interest of Earles, 294 So.2d 171, 172 (Miss.1974); West v. State, 437 So.2d 1212 (Miss.1983); Dickerson v. State, 441 So.2d 536, 538-40 (Miss.1983).

REVERSED AND RENDERED

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


text:
    Mable HUDSON, Executrix of the Last Will and Testament of Wright Cooley, Deceased, v. Mildred BOYKIN, et al.
    No. 54191.
    Supreme Court of Mississippi.
    April 4, 1984.
    J.C. Martin, Jr., Waynesboro, for appellant.
    John R. Gunn, Charles M. Leggett, Waynesboro, for appellees.
   Appeal from Chancery Court, Wayne; County; Henry Palmer, Special Master.

Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    Randy HYNUM v. George D. SMITH, Father and Next Friend of Connie Smith.
    No. 54097.
    Supreme Court of Mississippi.
    April 4, 1984.
    Thomas C. Gerity, Watkins & Eager, Jackson, R. Eugene Parker, Jr., Varner, Parker & Sessums, Vicksburg, for appellant.
    Gerald E. Braddock, Ellis, Braddock & Bost, Vicksburg, for appellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Warren County wherein the trial judge gave the jury a peremptory instruction requiring them to find the defendant/appellant liable while at the same time granting an instruction on contributory negligence thereby leaving the calculation of damages as the sole question for the jury. The jury returned a verdict of $35,000.00 and upon a motion filed later by plaintiff the trial court stated he erred in granting the contributory negligence instruction and granted a new trial as to damages only unless defendant accepted an additur of $140,000.00 within 10 days. The defendant did not accept the additur and appealed to this Court. Because of previous decisions of this Court our scope of review is limited to determining whether the trial judge abused his discretion in granting the new trial because the verdict was so low as to clearly indicate bias, passion and prejudice of the jury. We reverse.

This case involves an automobile accident which occurred on January 28, 1981, on Highway 61, a four-lane divided highway with two northbound and two southbound lanes. The collision took place near Vicksburg at the entrance to a state-owned truck scale or weigh station. Because the only weigh station is on the western side of the highway, northbound trucks must necessarily cross the southbound lane in order to be weighed. At the point that northbound trucks cross the highway there is a yield sign indicating that they are to yield to southbound traffic before crossing to the weigh station. The collision in the instant case was between a southbound car driven by Connie Smith and a northbound truck crossing to the weigh station driven by Willie Bingham and owned by Randy Hynum. Most of the rest of the facts surrounding this incident are in dispute. Ms. Smith claimed that she was driving in the lefthand lane of the southbound traffic when the 18-wheel truck driven by Willie Bingham pulled out in front of her. She stated that the first time she saw the truck its cab was in the middle of the road in her lane 12 to 15 feet away. She testified that she did not have time to apply her brakes, sound her horn or escape the collision.

Willie Bingham told a different story. He stated that he came to a complete stop at the yield sign to allow another car to pass. Bingham testified that although he saw Ms. Smith’s car approaching, he knew that he had time to cross the highway. Bingham testified that the accident occurred after his truck had cleared both lanes of the highway, thereby implying that Ms. Smith’s car struck him once he was in the shoulder of the road. Testimony concerning location of the accident debris supported both arguments.

As a result of the collision Ms. Smith was pinned in her car for approximately 35 to 45 minutes. During this time she was in great pain, bleeding and afraid that the vehicle would catch on fire. Once removed from the car, she was taken to a nearby hospital emergency room where she was treated for a number of severe injuries. Among these injuries were a shattered kneecap on her right knee, a broken jaw, broken nose, severe facial lacerations, and the death of a five and one-half month old fetus she was carrying. After treatment in the emergency room, she was removed to surgery where her kneecap was removed and her jaw and nose worked on. The following morning she went into labor and the fetus was delivered dead. Ms. Smith was confined to the hospital for two and one-half weeks and forced to take all nourishment through a straw for two and one-half months following the accident. Her medical bills as a result of the accident totalled $12,590.45.

There was expert medical testimony that as a result of the loss of her kneecap she would have a 10% disability of her lower extremity or 5% of her total body. Also, she would have a 50% disability in her mouth and a 25% disability of her jaw.

Following all of the evidence the court sustained plaintiff’s motion for a directed verdict as to liability. Although the court peremptorily instructed the jury to find the defendant guilty of negligence, the court also granted Instruction D-24, an instruction on contributory negligence. The jury returned a verdict of $35,000.00 and the plaintiff entered a motion for a new trial, or in the alternative an additur. In the court’s ruling on the motion it stated that should the defendant fail to accept an addi-tur of $140,000.00, thereby raising the total judgment to $175,000.00, a new trial would be granted on the issue of damages alone. The trial judge held that he had erred when he granted the contributory negligence instruction. He then ruled: “In the absence of negligence of the plaintiff, the verdict of the jury, $35,000.00, was so paltry and inadequate as to evince bias, passion and prejudice.” The defense did not accept the additur and the motion for a new trial was granted. On the granting of that motion the defendant brings this appeal.

In a number of cases, this Court has written that its scope of review is limited to determining whether the trial court abused its discretion in granting a motion for a new trial where the defense refuses to accept an additur. Cortez v. Brown, 408 So.2d 464 (Miss.1981); Screws v. Parker, 365 So.2d 633 (Miss.1978); Walton v. Scott, 365 So.2d 630 (Miss.1978); Dorris v. Carr, 330 So.2d 872 (Miss.1976). As we stated in Walton, in determining whether the trial court abused its discretion we ask whether the verdict was so paltry as to evince bias, passion or prejudice. If the verdict was so paltry then the trial court cannot be said to have abused its discretion; however, where the verdict is not so unreasonable as to be indicative of those dangers, the granting of a new trial is an abuse of discretion. Indeed this case is virtually controlled by Screws v. Parker, supra.

Review of the record in this cause leave little doubt that Ms. Smith was seriously injured as a result of the collision. Undoubtedly the accident was emotionally traumatic and its consequences quite painful. Had we been jurors attempting to assess the value of Ms. Smith’s damages, we may very well have concluded that she was entitled to more than $35,000.00. Regardless, we cannot say that the jury’s assessment of her damages evinces bias, passion or prejudice on their part. She was granted a sum nearly three times her medical bills and while she may feel that she is entitled to a greater award, the jury obviously did not. In light of the contributory negligence instruction and conflicting evidence as to how the accident occurred, we would be hard pressed to label the jury’s verdict the result of bias, passion or prejudice.

Therefore, based on all of the foregoing, we hereby reverse the trial court’s granting of a new trial and reinstate the verdict of the jury at $35,000.00.

REVERSED AND RENDERED.

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

BOWLING and SULLIVAN, JJ., not participating.