text:
    Randy THOMPSON, Plaintiff-Appellant, v. ALAMO GLASS COMPANY and Louisiana Retailers Association, Self-Insurers Fund, Defendant-Appellee.
    No. 83-677.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    J. Wendel Fusilier and Alex D. Chapman, Jr., Ville Platte, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, H.B. Gist, III, Alexandria, for defendant-appellee.

      Before CUTRER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

This is a workmen’s compensation case. Randy Thompson, plaintiff-appellant, filed suit against Alamo Glass Company and its insurer, Louisiana Retailers Association, Self-Insurers Fund, defendants-appellees, seeking reinstatement of worker’s compensation benefits, continued medical treatment, and penalties and attorney’s fees for the arbitrary and capricious termination of his worker’s compensation benefits. The trial court rendered judgment in favor of Alamo and its insurer dismissing Thompson’s suit. Thompson appeals. We affirm.

The issues on appeal are as follows:

1) Whether the trial court committed manifest error in determining Thompson was not injured in the course and scope of his employment; and
2) Whether the trial court erred in not applying the legal presumption in favor of the injured employee established in Lucas v. Ins. Co. of North America, infra.

Thompson had worked six months for Alamo Glass as a glazier and glass installer. He testified that on Friday, August 20, 1982, he fell down a stairway injuring his back while working at the Alamo Glass Company in Lafayette. He finished his work day and returned home. He stayed in bed over the weekend. He took aspirin and applied a heating pad to relieve his back pain. The following Monday, Thompson obtained permission from Alamo Glass to see Dr. John Luke, his family physician in Lecompte.

Dr. Luke examined Thompson on August 23, 1982. He found no bruising or muscle spasms in Thompson’s lower back, but noted that it was tender. His initial impression was that Thompson had suffered a muscular ligament injury. He treated Thompson conservatively with anti-inflammatory medication, a muscle relaxant, bed rest, and recommended the use of a heating pad.

During the next month Dr. Luke saw Thompson on two more occasions for complaints of continued discomfort in the lower back area with pain radiating through the buttocks. He was unable to find any objective symptoms of injury. He referred Thompson to Dr. T.E. Banks, .an orthopedic surgeon.

On September 25, 1982, prior to seeing Dr. Banks, Thompson was involved in an automobile accident near Indian Creek. There is no dispute that this accident did not occur within the course and scope of Thompson’s employment. Thompson was a passenger in an automobile which was run off the road by another vehicle and turned over. He was taken to Cabrini Hospital complaining of head and shoulder injuries and was hospitalized overnight for observation.

Dr. Banks examined Thompson on September 27, 1982, two days after the accident, and found tenderness in the lumbro-sacral joint and in both sciatic notches. He prescribed conservative treatment. Dr. Banks saw Thompson again on October 27, 1982 and observed muscle spasms and tightness in the lumbar region. He saw Thompson on November 24, 1982 and reported the same findings. Because of the continued muscle spasms and restricted motion, Dr. Banks recommended that Thompson be hospitalized for a C-T scan and a possible lumbar myelogram.

Thompson reported to the hospital for a diagnostic workup. He was not admitted because the worker’s compensation carrier refused to authorize the testing. Diagnostic testing has never been performed and he has not been examined by a doctor since November 24, 1982.

Alamo paid workmen’s compensation and medical benefits from August 20, 1982 through November 20, 1982.

The trial court concluded that Thompson failed to carry the minimum burden of proving that a work-related accident occurred.

To recover benefits under the Louisiana Workmen’s Compensation Law the employee must establish that he received a personal injury by accident arising out of and in the course of his employment. LSA-R.S. 23:1031. It is well settled that although procedural rules are liberally construed in favor of workmen’s compensation claimants, the claimant nonetheless bears the burden of proving by a preponderance of the evidence that his disability is causally related to an accident that occurred during the course and scope of his employment. Stuckey v. Home Ins. Co., 433 So.2d 776 (La.App. 3rd Cir.1983), writ denied 435 So.2d 450 (La.1983); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). The testimony of a claimant alone may be sufficient to prove the occurrence of a work-related accident, if such testimony is plausible, consistent, and is supported by other circumstances appearing from the record. However, where the plaintiffs testimony is the sole evidence, it must be clear and convincing. Crochet v. American Tobacco Co., 407 So.2d 1330 (La.App. 3rd Cir.1981); Soileau v. Bituminous Cas. Corp., 348 So.2d 1313 (La.App. 3rd Cir.1977).

The trial court found that Thompson did not report the accident to his employer on the day it allegedly occurred. Thompson testified that he told two of his fellow employees that he had fallen, however, neither of these employees were called to testify. Thompson’s wife, who was not on the job site on the date of the alleged accident, was the only witness who testified concerning the accident. Likewise, the trial court found that the medical evidence failed to establish Thompson’s alleged accident and any disability. The initial treating physician, Dr. John Luke, found no objective evidence to indicate any injury.

In addition, Dr. Bank’s medical report which was sent to the compensation carrier, indicated that even though the claimant denied having any previous back injury, his office records indicated that the claimant had been treated for discomfort in his back in December of 1979 by another orthopedist who was a member of his medical firm.

Claimant’s wife testified quite freely that in addition to the automobile accident, her husband had also been involved in a motorcycle mishap after the date of his alleged work-related accident. Thompson unequi-vocably denied this.

As enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) a reviewing court must give great weight to the reasonable evaluations of credibility and reasonable inferences of fact made by the trial court. Our careful review of the record satisfies us that the trial judge’s conclusions that the evidence in the case at hand, taken as a whole, casts some doubt on Thompson’s credibility, and his failure to prove the occurrence of a work-related accident by a preponderance of the evidence is well supported.

Thompson further contends that the trial court erred in failing to apply the legal presumption of disability that was established in Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977). In Lucas, supra, the Supreme Court stated:

“A claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.”

Thompson’s reliance on the Lucas presumption is misplaced in the case sub judi-ce. First, this presumption operates as an assistance to the plaintiff in proving a causal connection between a work-related accident and a disability. Second, the activation of the presumption is triggered by evidence that before the accident the injured person was in good health. In the present case, it was clearly established that the claimant suffered from a congenital back condition commonly referred to as spina bifida, and had been treated by an orthopedic specialist for a back problem associated with an injury he received on December 15, 1979 while working for Daigre Engineers, Inc. Therefore, we find the trial court did not err in not invoking the presumption of disability enunciated in Lucas, supra.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Lewis Evan WILSON, Plaintiff-Appellee, v. Arlene McLaughlin WILSON, Defendant-Appellant.
    No. 83-743.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Edward Larvadain, Jr., Alexandria, for defendant-appellant.
    Robert J. Elliott, Alexandria, for plaintiff-appellee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   CUTRER, Judge.

The sole issue presented in this appeal is whether the evidence would justify the trial court’s judgment granting the husband a divorce on the ground of the wife’s adultery.

Lewis Wilson filed suit for divorce on the ground that his wife, Arlene Wilson, had committed adultery. The defendant denied the allegations of plaintiff’s petition and reconvened for a divorce on the ground of adultery and, in the alternative, for separation on the ground of cruelty. After a hearing, the trial court rendered judgment granting the plaintiff-husband a divorce on the ground of defendant’s adultery. The defendant’s reconventional demand was dismissed. Defendant appeals. We affirm.

At the trial of this matter, three witnesses testified. These witnesses were all stationed at England Air Force Base near Alexandria, Louisiana.

The plaintiff, a staff sergeant, was an instructor for crew chiefs at the base. He testified that he and his wife were residing in Pineville until approximately October 1982, at which time they separated. The plaintiff moved to the base and his wife continued to live in the house along with their six-year-old son, Lewis Eric.

As Christmas 1982, approached, plaintiff had purchased some toys for his son. On the night of December 21st, the defendant had called him and told him that she was going home (to Alabama) for Christmas. In order to get the toys to the child, plaintiff asked Staff Sergeant, David Kramer, to drive him to the wife’s residence early the following morning. At approximately 6:30 A.M., the plaintiff arrived at the wife’s residence. After he knocked on the door, there was a delay before defendant opened the door. The defendant finally opened the door and plaintiff entered with his package of toys. When he told her that he was going to the bathroom she questioned his going to the back of the house. After some discussion on this point, plaintiff went into the bedroom and looked in a closet. His testimony as to what he saw was as follows:

“I saw this John Belford standing in the closet with his shoes in his hand, his shirt, and he had his pants slipped on and they wasn’t even buttoned up yet. He stood there and I said, ‘Well, why don’t you come on out the closet’ and then he came out and I asked him, I said, ‘Well, what’s happening?’
Q He didn’t have his shoes on?
A No shoes.
Q And he had no shirt on?
A No shirt.
Q His pants were unbuttoned?
A Yes.
Q But he had pulled them on?
A Yes.
Q And you found him hiding in the closet?”

John Belford came out of the closet and, after some exchange of words, the plaintiff went out to Kramer’s car and asked him to go into the house in order that he could be a witness to the situation. Kramer went into the house. By this time Belford was sitting on a couch with the child.

Sergeant David Kramer was a friend of plaintiff’s and also knew defendant. He stated that he went into the house with plaintiff and he saw Belford sitting on the couch with the child. He was only wearing a pair of pants. Kramer stated that words ensued causing him to become a little “edgy.” He then went back to his car. After about five or ten minutes, the plaintiff and Belford walked out of the house and Belford asked Kramer if he could ride to the air base with him. Belford was carrying a small handbag and had gotten dressed for the ride to the air base.

John Belford testified that the first time he had met defendant was in the “pub” at the air base. He stated that, during the afternoon before the incident in question, defendant was in the “pub” drinking beer and talking to Belford’s boss about her troubles. Later that day, Belford took defendant home in his boss’ truck. On the way to her house, defendant told Belford more of her troubles and expressed concern that the child may not get any toys for Christmas. After this discussion, Belford stated that he felt sorry for defendant and purchased toys for the child.

The following morning, at approximately 6:30, Belford stated that he got a friend to drive him to defendant’s house to deliver the toys. Belford stated that he arrived with the toys in the handbag. Belford testified that he had been at defendant’s house about five minutes when plaintiff knocked upon the door. He stated that defendant was dressed in a nightgown and robe. He denied being in the closet of the bedroom and denied being undressed. Bel-ford was the only witness to testify on behalf of the defendant. The defendant did not appear for trial.

After hearing these three persons testify, the trial judge, in oral reasons for judgment, stated as follows:

“Mr. Wilson has testified. Sgt. Kramer has testified. The alleged paramour John Belford has testified and that’s about the testimony that I’ve got before me. There’s no question apparently the marriage was in the middle of a breach, the parties had separated, which is not germane really to what I’ve got to decide today and there’s little question equally that I have a credibility decision that obviously had to be made. Mr. Wilson said that Mr. Bel-ford was in the closet, was not dressed, pants unzipped, no shirt and no shoes.
“Mr. Belford said he never got out of the living room and there’s other inconsistencies I think perfectly obvious to all of us.
“To resolve the difference since I’m dealing with the two men, I look to Sgt. Kramer’s testimony. Sgt. Kramer was about as sincere as he could be and actually didn’t want to get involved and I think that was very obvious. He’s called into the house by Mr. Wilson, he sees Mr. Belford there without shoes, without shirt. He sees Mr. Bel-ford later dressed get in the car, rides back to the base with a duffle bag or gym bag I think was the words which he used or a clothing bag of some sort in any event. He has no reason to mislead the court."

Based upon this evidence the trial court rendered judgment granting plaintiff a divorce on the ground of adultery.

Plaintiffs ease had to be presented and decided on the basis of circumstantial evidence. Circumstantial proof of adultery requires production of evidence which fairly and necessarily justifies and supports the conclusion that adultery was committed. Stewart v. Stewart, 422 So.2d 1370 (La.App. 1st Cir.1982). The trial judge found that such evidence was presented. After discussing the evidence, the trial court stated, “the tilting factor is the dress ... the time ... the conduct.” Mr. Belford’s dress, his carrying a clothing bag, and the early morning time are compelling indications of his having an adulterous relationship with defendant. These fact determinations by the trial judge are entitled to great weight on appeal and will not be disturbed on appeal unless manifest error is shown. Morris v. Morris, 336 So.2d 254 (La.App. 1st Cir.1976). Where there is conflict in testimony, as in this case, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review.

After a review of the record we cannot say that the trial court was clearly wrong.

For these reasons the judgment of the trial court is affirmed. Costs are assessed against defendant-appellant, Arlene McLaughlin Wilson.

AFFIRMED.

      . The defendant does not argue on appeal the dismissal of the reconventional demand. Thus we will only make a determination of the sufficiency of the evidence in the plaintiffs main demand.


author: LABORDE, Judge.

text:
    Jackie H. LEWIS, Plaintiff-Appellant, v. Barbara B. LEWIS, Defendant-Appellee.
    No. 83-800.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Guillory, McGee, Mayeux & Fontenot, John G. Fontenot, Eunice, for plaintiff-appellant.
    Tate & McManus, Kearney Tate, Eunice, for defendant-appellee.
    Before CUTRER, . L.ABORDE and KNOLL, JJ.
   LABORDE, Judge.

Jackie H. Lewis, plaintiff-appellant, filed suit against Barbara Bradshaw Lewis, defendant-appellee, for divorce on the grounds of adultery. Barbara reconvened, seeking a divorce based on adultery. The trial court rendered judgment in favor of Barbara granting her an absolute divorce and further awarded her permanent alimony. Jackie appeals. We affirm.

The sole jssue presented on appeal is whether or not Barbara was guilty of adultery, habitual intemperance or mental cruelty, thereby barring her from alimony.

Jackie filed suit for legal separation on April 27, 1982, alleging that Barbara was guilty of acts of mental cruelty and habitual intemperance on numerous occasions. Barbara filed an answer and a reconven-tional demand requesting a legal separation on the grounds of mental and physical cruelty, abandonment and excessive drinking. Subsequently on October 22, 1982, Jackie amended his petition to allege that Barbara had been guilty of certain acts of adultery and prayed for an absolute divorce. Barbara also amended her petition to allege that Jackie was guilty of adultery and prayed for an absolute divorce. The trial court rendered judgment in favor of Barbara granting her an absolute divorce based on Jackie’s acts of adultery. The trial court further found that Barbara was not guilty of adultery and that she was not guilty of fault sufficient to bar her claim for permanent alimony and accordingly, awarded Barbara permanent alimony.

Louisiana Civil Code Art. 160 provides that a spouse is entitled to alimony only when he or she is free from fault. In Pearce v. Pearce, 348 So.2d 75 (La.1977), the Louisiana Supreme Court stated:

“[1-4] We have held that, under this statute respecting an award of alimony to a wife without “fault,” the word “fault” contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir.1970). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). The question of a wife’s fault under the statute providing for alimony when a wife has not been at fault and has not sufficient means for her support is a factual one. Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir.1972). We have recognized that a trial court’s findings of fact on the issue of a wife’s “fault” will not be disturbed on appeal unless found to be manifestly erroneous. Williams v. Williams, 215 La. 839, 41 So.2d 736 (1949); Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948). In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir.1976). The factual findings of the trial court are therefore to be accorded very, substantial weight on review. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir.1976).”

Jackie contends that the trial court erred in awarding Barbara permanent alimony. It is his contention that he has produced sufficient evidence to exclude every reasonable hypothesis other than that she has committed adultery. He further argues that if the evidence falls short of proving adultery, Barbara’s activities amounted to cruel treatment rendering their living together insupportable thus barring her claim to permanent alimony.

The one alleging adultery has the burden of proof. The facts and circumstances must be such as to lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition, i.e., the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt of adultery. Helms v. Helms, 349 So.2d 441 (La.App. 3rd Cir.1977). Jackie had two private detectives testify as to Barbara’s actions. Their testimony failed to raise any improprieties. Barbara admitted that she was friends with a Mr. Morris. Barbara and Mr. Morris both denied they had committed adultery. Therefore, we conclude that Jackie has failed to carry his burden of proof.

Jackie cites the case of Boudreaux v. Boudreaux, 407 So.2d 1363, (La.App. 3rd Cir.1981) for the proposition that while there was not sufficient proof of adultery, Barbara’s activities constituted such cruel treatment as to render the marriage insupportable thus barring her claim for permanent alimony. We disagree. Boudreaux, supra, is distinguishable in that the wife had established a relationship with a male friend a long time prior to separation and the filing of the suit. The action on the part of the wife was the cause of the separation. In this case, Barbara became acquainted with Mr. Morris after the suit was filed. The action that precipitated the separation and divorce was Jackie leaving home and living with his paramour.

Finally, Jackie contends that the evidence reflects that Barbara was guilty of habitual intemperance which was sufficient to bar her claim for permanent alimony. The vague and unsubstantiated charges of habitual intemperance on Barbara’s part were specifically contradicted by the testimony at trial.

Under the' particular facts and circumstances of this case and in view of the conflicting testimony, we are satisfied that the trial court’s ruling on Barbara’s freedom from fault is adequately supported by the record and is not an abuse of its discretion.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against plaintiff-appellant, Jackie H. Lewis.

AFFIRMED.


author: FORET, Judge.

text:
    Bernard SAMPSON, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, OFFICE OF HIGHWAYS, Defendant-Appellant.
    No. 83-736.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Harvey Hall, Baton Rouge, defendant-appellant.
    John T. Bennett, Marksville, for plaintiff-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   FORET, Judge.

This is a tort suit filed by Bernard Sampson against the State of Louisiana, through the Department of Transportation and Development, Office of Highways (Department), for damages he incurred when a tree struck his ear. The sole issue on appeal is whether the trial court was clearly wrong in finding that the tree that fell on Mr. Sampson’s car was in the custody of the Department.

On April 7, 1981, Sampson was driving his 1970 Ford Mustang in a northerly direction on Louisiana Highway 1 near Marksville, Louisiana. Traveling with him were his wife, two children, and mother. Suddenly, a rotten tree fell across the highway and struck Mr. Sampson’s ear before he could take evasive action.

Because of the accident, Mr. Sampson injured his right knee, left wrist, and lower back. Also, his car was slightly damaged. Suit was filed against the Department on February 19, 1982, alleging that the tree that had caused the accident was in the custody of the Department.

After a trial on the merits, the court rendered judgment in favor of Mr. Sampson, granting him $896.14 in special damages and $5,000 in general damages. The Department has appealed only the court’s finding as to liability, therefore the lower court’s award of damages is not at issue on appeal.

It is clear from the Louisiana Civil Code and jurisprudence that the Department will be held strictly liable if it can be proved that the tree that struck Mr. Sampson’s ear was in its custody. Since the Department has not argued any of the defenses to strict liability, we need only determine if the trial court’s finding of fact as to the custody of the tree was clearly wrong.

A review of the record shows that the trial court was not clearly wrong. The State of Louisiana’s right-of-way extends thirty feet from the center line of the highway. The distance between the center line and the shoulder of the road was twelve feet. Thus, from the shoulder of the road, the right-of-way extends eighteen feet. Both Mr. and Mrs. Sampson testified that the stump of the tree that fell on their car was located five to six feet from the shoulder of the road. That would clearly place the tree within the State’s right-of-way and therefore within the custody of the Department.

The Department’s only witness was one Edward Causey, who is employed by the Department as an insurance claims adjuster. Causey took photographs of the scene of the accident in January of 1982. Neither Causey’s testimony nor his photographs adequately rebutted Mr. and Mrs. Sampson’s version of what happened.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against defendant-appellant, State of Louisiana, through the Department of Transportation and Development, Office of Highways.

AFFIRMED.

      . LSA-C.C.Art. 2317 provides:
      "Art. 2317. Acts of others and of things in custody

        Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody_”

      . See Loescher v. Parr, 324 So.2d 441 (La.1975).

      . The defenses of strict liability are victim fault, act of God, and fault of a third party. Loescher v. Parr, supra.


author: CULPEPPER, Judge.

text:
    Irving WARD-STEINMAN, Landlord, Plaintiff-Appellee, v. Charles Edward KARST, Tenant, Defendant-Appellant.
    No. 84-120.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 1984.

      C. Edward Karst, Alexandria, in pro. per.
    David A. Sheffield, Alexandria, for plaintiff-appellee.
    Before GUIDRY, STOKER and CUL-PEPPER, JJ.
   ON MOTION TO DISMISS SUSPENSIVE APPEAL

CULPEPPER, Judge.

The plaintiff-appellee, Irving Ward-Stein-man, obtained a judgment of eviction against the defendant-appellant, Charles Edward Karst. Karst timely moved for and was granted a suspensive appeal from this judgment.

Ward-Steinman has moved to dismiss the suspensive appeal on the grounds that Karst has failed 1) to answer the rule under oath, 2) to plead an affirmative defense entitling him to retain possession of the premises, and 3) to file an appeal bond within 24-hours after the rendition of the judgment, all as provided for in LSA-C. C.P. Art. 4735. We grant Ward-Steinman’s motion and dismiss the appeal as a suspen-sive appeal, but maintain it as a devolutive appeal.

Ward-Steinman filed in the ‘Alexandria City Court a rule to show cause why Karst should not be ordered to deliver possession of the premises designated as 925 Johnston Street, Alexandria, Louisiana. The rule was scheduled for hearing on December 20, 1983. Karst filed a dilatory exception alleging that Ward-Steinman failed to state the grounds upon which eviction was sought in the rule to show cause. This omission was corrected and Karst was served with another rule to show cause stating the grounds upon which eviction was sought. On December 27, 1983, the next scheduled hearing on the eviction motion Karst filed a declinatory exception containing two points, the second of which was withdrawn by Karst, the first being a lack of jurisdiction on the part of the trial court under LSA-C.C.P. Art. 4848(L). This exception was referred to the merits. Karst filed no further pleadings or answer. The trial court took the matter under advisement and on January 4, 1984, the trial court assigned written reasons granting the judgment of eviction. Said judgment was signed on January 12, 1984. Karst filed a motion for a suspensive appeal on January 13, 1984. The appeal bond was filed on January 16, 1984.

Article 4735 of the Code of Civil Procedure makes special provisions .for a suspen-sive appeal from a judgment of eviction. The article provides:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.” (Emphasis Added)

To suspend execution of a judgment of eviction and thus defer return of possession to the lawful owner or lessor, the defendant must comply literally with the provisions of law which expressly govern the taking of suspensive appeals in such proceeding. Alexander v. Williams, 205 So.2d 456 (La.App. 1st Cir.1967). A review of the record in the present case reveals that the judgment of eviction was signed on January 12, 1984, and that the appeal bond was not filed until January 16, 1984. Under the clear provisions of LSA-C.C.P. Article 4735, the appeal was perfected too late to suspend the execution of the judgment of eviction. London Properties, v. Topakoglu, 233 So.2d 259 (La.App. 3rd Cir.1970). Ward-Steinman thus is entitled to have the suspensive appeal dismissed. Since the appeal was not timely perfected under LSA-C.C.P. Article 4735, the other issues raised on this motion to dismiss need not be discussed.

The jurisprudence requires that although an appeal may be dismissed as suspensive, it must be considered as devol-utive, if the appeal was taken within the delays for taking a devolutive appeal. Aucoin v. Williams, 291 So.2d 504 (La.App. 3rd Cir.1974). Here, the appeal was taken one day after judgment, and thus meets the requirements of LSA-C.C.P. Art. 2087, the article which provides the delay for taking a devolutive appeal.

Accordingly, the appeal is dismissed as a suspensive appeal, but maintained as a de-volutive appeal.

SUSPENSIVE APPEAL DISMISSED.


author: PRATHER, Justice,

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. Robert BROWN and Peggy Ann Brown.
    No. 53996.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Rehearing Denied March 14, 1984.
    John L. Hunter, W. Harvey Barton, Cum-best, Cumbest & Hunter, Pascagoula, for appellants.
    William M. Rainey, Franke, Rainey & Salloum, Gulfport, for appellee.
    Before WALKER, BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Mississippi Supreme Court Rule 46 provides for certification of unsettled substantive questions of Mississippi law from certain federal courts when the answer will determine the litigation in the federal forum. Such certification procedure permits this Court to render a definitive opinion and provide a controlling precedent for the federal litigation on questions of substantive Mississippi law.

This case was certified to this Court by the United States Court of Appeals, Fifth Circuit to define and construe the “limits of liability” clause under uninsured motorist coverage of motor vehicle liability policy. See Government Employees Insurance Co. v. Brown, 675 F.2d 645 (5th Cir. May 3, 1982).

The certified question of unsettled law is whether the language contained in this specific Government Employees Insurance Company policy under the “limits of liability” clause is sufficiently clear and unambiguous to prevent the aggregation of uninsured motorist coverage and limit liability to $10,000.00, where separate premiums are charged for more than one unit vehicle under a single policy.

I.

The certified statement of facts are as follows:

On December 5, 1979, the Appellants, Robert Brown and his wife, Peggy Ann Brown, were riding in a vehicle owned by Robert Brown and insured by Government Employees Insurance Company. At that time, they were approaching the intersection of Magnolia Street and Howard Street in Moss Point, Jackson County, Mississippi, when they were involved in a collision which took place with an alleged uninsured motorist, Betty J. Battles.
The policy of insurance which the Appellants had in full force and effect on the date of the accident provided, among other things, for payment of damages as a result of the injuries caused by the negligence of an uninsured motorist. While both insureds were involved in the automobile accident, it was Peggy Ann Brown who claimed the more serious injuries as a result of this accident and made a claim that her damages collectable from an uninsured motorist would exceed $30,000.00.
After this demand was made, the Ap-pellees filed a Bill of Complaint alleging as their cause of action 28 U.S.C.A. Section 2201, commonly known as Federal Declaratory Judgment Action. This action was filed on February 25, 1981 to have the United States District Court for the Southern District of Mississippi define and construe the limits of liability clause under the uninsured motorist coverage of this policy.
In conjunction with the filing of the Declaratory Judgment action, the Appel-lee tendered the sum of $10,000.00 into the registry of the U.S. District Court proposing that this was the total amount of coverage which would be provided under the policy of insurance.
Subsequent to the filing of the Declaratory Judgment action, the Appellants, Peggy Ann Brown and Robert Brown, each filed their own Declaration in the Circuit Court of Jackson County, Mississippi, on or about April 22, 1981. These actions were civil suits naming as Defendants, the uninsured motorist, Betty J. Battles, and the Appellee insurance company, Government Employees Insurance Company.
In conjunction with the filing of these lawsuits in the Circuit Court of Jackson County, Mississippi, the Appellants also filed a Motion to Dismiss the Declaratory Judgment action, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Thereafter, on May 5, 1981, Government Employees Insurance Company filed a Motion for Summary Judgment in the United States District Court based on their Declaratory Judgment action.
As a result of the hearings on both Motions filed, the United States District Court issued an order dated June 9, 1981, overruling the Brown’s Motion to Dismiss and sustaining Government Employees Insurance Company’s Motion for Summary Judgment. From that order, Appellants prosecuted their appeal to the Fifth Circuit Court of Appeals. The case was argued on February 4, 1982.
After studying the record, briefs of counsel and the applicable law, the Fifth Circuit Court of Appeals decided that certain unsettled questions of Mississippi law may control the disposition of this appeal.

II.

The provisions of Mississippi Code Annotated section 83-11-101 (1972) contain the requirement of uninsured motorist coverage for Mississippi residents as follows:

No automobile liability insurance policy or contract shall be issued or delivered after January 1," 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law, as amended, under provisions approved by the commissioner of insurance....

The Mississippi Motor Vehicle Safety Responsibility Law, Mississippi Code Annotated section 63-15-11 (Supp.1982) now requires minimum liability coverage of $10,-000.00 per person injured and an aggregate limitation of $20,000.00 per accident.

The amount of coverage available to an insured under the uninsured motorist statute has given rise to much litigation. A motorist is often covered under the uninsured provisions of more than one policy or, in the case of a single policy, by premiums for multi-vehicular coverage. By “stacking” the coverages under different policies or on different vehicles, the injured party may “aggregate” the -amounts of coverage up to the amount of damage sustained.

The aggregation of claims, or stacking, has been permitted in certain situations to provide the insured with the difference between the minimum statutory requirement of uninsured coverage and the total amount of a judgment against an uninsured defendant. Harthcock v. State Farm Mutual Automobile Ins. Co., 248 So.2d 456 (Miss.1971) (allowing aggregation of coverage of plaintiff as a passenger on uninsured motorcycle with plaintiff’s own vehicle). Southern Farm Bureau Casualty Ins. Co. v. Roberts, 323 So.2d 536 (Miss.1975) (allowing aggregation of coverage from three separate uninsured motorist policies on three separate vehicles owned by insured). Hartford Acc. & Indem. Co. v. Bridges, 350 So.2d 1379 (Miss.1977) (allowing aggregation of coverage on an intra-policy for which a separate premium was charged and paid on each vehicle). Pearthree v. Hartford Acc. & Indem. Co., 373 So.2d 267 (Miss.1979) (allowing aggregation of coverage from multiple premiums under one policy). Contra: Talbot v. State Farm Mutual Automobile Insurance Co., 291 So.2d 699 (Miss.1974) (the limitation clause was clear and unambiguous and therefore stacking was denied).

Insurance companies in defending these cases have asserted as their defense the contractual provisions of the policies. Harthcock, supra. (“other insurance” clause). Talbot, supra, (“limits of liability” clause).

Inter alia, the policy in question contains the following provision as to the limitation of liability for uninsured motorist coverage:

Regardless of the number of automobiles or trailers to which this policy applies, the limit of liability for uninsured motorist coverage stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident; and, subject to the above provisions respecting each person, regardless of the number of automobiles or trailers to which this policy applies, the limit of liability stated in the declarations as applicable to ‘each accident’ is the total limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as a result of any one accident.

Further, the policy shows a declaration sheet describing three vehicles owned by the parties and covered under the single policy with itemized statements of premiums charged for each vehicular unit. The declaration sheet is here attached as Exhibit “A”.

The language of limitation interpretated in Bridges, supra, is similar to the case sub judice. In Bridges, however, this Court held the language to be ambiguous and difficult to understand. Because of this ambiguity of language seeking to limit the liability of the insurer, the Court permitted the aggregating of coverages. The policy sub judice contains additional language to clarify the limitation in the words “Regardless of the number of automobiles or trailers to which this policy applies....” We are called upon now to interpret this language by the test of ambiguity.

III.

In Mississippi, cases concerning one policy coverage of multi-vehicular units has been addressed. Our early case of Talbot v. State Farm Mutual Automobile Ins. Co., 291 So.2d 699 (Miss.1974) involved a single policy of automobile insurance covering more than one vehicle with a clear and unambiguous limitation on coverage of uninsured motorists. In this decision, our court denied aggregation of coverage in a five-four opinion.

Further, the Talbot dissent, authored by Justice Broom, rests in part upon the purchase of “plural coverages” on all vehicles, and asserted that the insured was entitled to all coverages for which a premium had been paid to the full amount of the insured’s damage.

A more mature reflection of the legislative intent of the uninsured motorist statute and of a more seasoned analysis of the problem was decided in the case of Hartford Acc. & Indem. Co. v. Bridges, supra.

Expressing the latest pronouncement of the issue in question, Justice Inzer opined for the Court:

The Supreme Court of this State, ... seems to place greater emphasis upon the fact that a separate premium is charged and paid for uninsured motorist coverage for more than one vehicle, whether coverage is provided in one or in several contracts of insurance. There is persuasion to the argument that the insured paid for this coverage, and accordingly, should be entitled to it, limited only by the amount of damages which may be judicially determined. (350 So.2d at 1381).

Further, Bridges, supra, analyzed the former Talbot decision of this Court and concluded that Talbot held that an insurance company may limit its uninsured motorist coverage in one policy to the minimum amount if it is done by clear and unambiguous language. Justice Inzer correctly surmised that Talbot was not correctly decided in view of our more recent decisions.

An inconsistent result may occur from our holding in Talbot and subsequent cases of multi-vehicular ownerships on a single policy. For example, an owner of multi-ve-hicles may secure separate policies and obtain aggregation of uninsured motorist coverage under each policy.

However, Talbot, supra, suggests that aggregation of uninsured motorist coverage would not be permitted where one policy, although charging separate premiums, limited the insurer’s liability to the minimum statutory amount if the limitation was in clear and unambiguous language. In the latter situation aggregation would not be permitted. This variance in application is unwarranted.

The Bridges decision now appears to be the better reasoned holding and we now adopt its rationale and expressly abandon the Talbot rationale. Talbot v. State Farm Mutual Automobile Insurance Co., 291 So.2d 699 (Miss.1974). We reiterate from Bridges that a presumption arises that coverage of multi-vehicles in one policy, where separate premiums were paid for each endorsement of uninsured motorist coverage, is the same as if such coverage was provided in separate policies covering the same vehicles. Any language attempting to limit an insurer's liability must fail when it deprives the insured of benefits for which a premium was paid. We now adopt the reasoning set forth in Justice Broom’s dissent in the Talbot case and apply the theory that recovery cannot be limited by an insurer for benefits for which a premium is paid by an insured, notwithstanding clear and unambiguous language of attempted limitation by the insurer. Notwithstanding, this Court still recognizes the general principle that in any insurance contract, unclear and ambiguous language will be construed in favor of the insured.

We conclude in the instant case that aggregation of coverages shall be permitted on two distinct theories. First, uninsured motorist coverage contained in one policy of insurance insuring three vehicles, and for which a separate premium was paid, can be aggregated. Secondly, while the language within the “limits of liability” clause is clear and unambiguous as to what is intended, when read together with the declaration sheet it becomes unclear and ambiguous. The declaration sheet seeks to provide separate coverages for uninsured motorist on three vehicular units and charge separate premiums therefor while the “limits of liability” clause seek to repudiate such coverage. On either theory, the limitation fails.

The certified question is answered by this Court by stating that the policy language under the “limits of liability” clause when read together with the declaration sheet is unclear and ambiguous and is therefore void. Also, aggregation of uninsured motorist coverage shall be permitted because plural premiums were charged.

It is therefore ordered that this opinion be certified by the Clerk of this Court to the Clerk of the Court of Appeals for the Fifth Circuit as this Court’s answer to the certification request.

CERTIFICATION QUESTION ANSWERED.

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

      . When it appears to the Supreme Court of the United States, or to any circuit court of appeals of the United States, that there are involved in any proceedings before it questions or propositions of law of this state which are determinative of said cause independently of any other questions involved in said case and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court before rendering a decision may certify such questions or propositions of law of this state to the Supreme Court of Mississippi for rendition of a judgment or opinion concerning such questions or propositions of Mississippi law. This Court may in its discretion, decline to answer the questions certified to it. Ordered the 1st day of August, 1980.

      . This section was amended in 1982, but such provisions are not applicable here.

      . Phillips, A guide To Uninsured Motorist Insurance Law in Mississippi, 52 Miss.L.J. 255, 285 (1982).


author: SULLIVAN, Justice,

text:
    Henderson SHARP, Jr. v. STATE of Mississippi.
    No. 54525.
    Supreme Court of Mississippi.
    March 7, 1984.
    Mose Lee Sudduth, Jr., Columbus, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

Henderson Sharp, Jr. was indicted, tried and convicted in the Circuit Court of Lowndes County, for the crime of murder. He received a sentence of life in the custody of the Mississippi Department of Corrections.

The only assignment of error is the admission into evidence of three photographs of the body of the victim, W.E. Davis.

Two of the photographs show the body as it appeared in the morgue and were introduced through the testimony of the pathologist. The third photograph shows the body at the scene and was introduced through the testimony of a member of the Columbus Police Department.

The incident involved in the cause occurred on July 13, 1982. Sharp was an employee of a construction company engaged in work on a bridge on that date. During the day Sharp was dismissed from his job by the superintendent, W.E. Davis. Sharp then left the site, returning later in the day armed with a shotgun. He fired one shot which struck W.E. Davis. Sharp and Davis then engaged in a struggle which resulted in Davis falling from the bridge and landing in an excavation beneath the bridge. As a result of the gunshot wound, W.E. Davis died.

At the trial, appellant promptly objected to the admission of the photographs when they were offered, and he now argues that by admitting these photographs of the body the trial court abused its discretion as the photographs were gruesome, had no probative value, served no purpose but to inflame the jury and further that the shooting was not denied nor contradicted in any manner. Appellant further argues that the corpus delicti and the identity of the deceased had been established at the time the photographs were introduced. In taking this position, appellant relies upon our decision in Williams v. State, 354 So.2d 266 (Miss.1978).

As a general rule in this state admissibility of photographs rests within the trial court’s sound discretion and their admissibility will be upheld absent a showing of abuse of discretion. Ashley v. State, 423 So.2d 1311, 1316 (Miss.1982). However, photographs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied and the corpus delicti and the identity of the deceased have been established. Shearer v. State, 423 So.2d 824, 827 (Miss.1982); see also, Williams v. State, supra. Additionally, gruesome photographs which have no evidentiary purpose and which only arouse the emotions of a jury should not be admitted, but the mere fact that a photograph may arouse the emotions of jurors does not render it incompetent so long as the photograph serves a legitimate eviden-tiary purpose. May v. State, 199 So.2d 635, 640 (Miss.1967); Shearer v. State, supra.

Here, the first two photographs did have evidentiary and probative value in that at the time of their admission into evidence the circumstances of the killing and the corpus delicti had not been established and the physician used the two photographs in supplementing clarity to his testimony as he described and related his findings as to the cause of death. The third photograph is objected to as serving no evidentiary purpose and as misleading in that the police officer testified that when he arrived at the scene the deceased’s brother was holding the victim’s head cradled in his lap. The officer further testified that this photograph accurately depicted the location of the body. Although the testimony indicates that the brother did slightly move the position of the deceased’s head, there was no testimony to indicate that the body’s location was moved at all.

Moreover, Mississippi Supreme Court Rule 11 requires that no “judgment shall be reversed on the ground of ... the improper admission ... of evidence ... unless it shall affirmatively appear ... that such judgment has resulted in a miscarriage of justice.” All three of these photographs had probative value and were, therefore, admissible.

Even if the photographs had no probative value, in a case such as this, where the evidence weighs so heavily against the appellant and where the record shows no substantial prejudice to the appellant by admission of the photographs, such admission by the trial court was not reversible error.

It is clear that the one assignment of error propounded by appellant has no validity and the judgment of the trial court is affirmed.

AFFIRMED.

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

PRATHER, J., not participating.


author: BOWLING, Justice,

text:
    Henderson SHARP, Jr. v. STATE of Mississippi.
    No. 54532.
    Supreme Court of Mississippi.
    March 7, 1984.
    Mose Lee Sudduth, Jr., Columbus, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before BOWLING, HAWKINS and ROBERTSON, JJ.
   BOWLING, Justice,

for the Court:

Appellant Henderson Sharp, Jr. was indicted, tried and convicted in the Circuit Court of Lowndes County for the crime of aggravated assault. He received a sentence of fifteen years in the custody of the Mississippi Department of Corrections.

The only assignment of error is the alleged admission by the lower court of evidence concerning other offenses.

The incidents involved in the cause occurred on July 13, 1982. Appellant was an employee of a construction company that was engaged in a road construction job on said date. During the day appellant was dismissed from his job as a laborer by the construction company superintendent, one W.E. Davis. The evidence leading to the dismissal is immaterial in deciding this appeal. Appellant returned to the job site later in the day with a single barrel shotgun loaded with one shell containing No. 8 shot. Appellant admittedly fired the gun at Davis, striking him. A number of shot went further and struck the leg of James Douglas Newman, an equipment operator.

Although appellant contends in his assignment of error and statement of the case that the court overruled numerous objections by appellant to the admission of evidence of other offenses from that stated in the indictment, appellant’s brief does not set out any of these alleged offenses other than indicating a homicide referred to in the statement appellant gave law enforcement officers shortly after the incident occurred. When this statement was presented, during testimony of a law enforcement officer, there was an objection by appellant’s attorney to the statement for the reason that it contained evidence of a crime other than shooting James Douglas Newman — that of shooting W.E. Davis. The trial court obliterated a part of the statement dealing with an altercation between appellant and Davis. The statement was a description by appellant of the events leading up to his being fired, which statement then related that appellant went home and secured his gun with the intention of going fishing. As hereinbefore stated, he admitted he went to the construction site with the gun and fired it at Davis. The only thing in the statement regarding the effect on Davis was that Davis wobbled and grabbed his shoulder.

As stated, the brief contends that the admission of the statement saying that Davis was shot by the same single shot that carried on and struck the leg of Newman was error.

It is clear that appellant’s assignment of error and argument thereunder has no validity. The two alleged crimes resulted from one firing of the one shell from the single barrel shotgun. It is elemental that as a general legal principle, the commission of other crimes may not be introduced during the trial of a person for a crime unrelated to the others. We obviously do not have such a situation here.

In Lee v. State, 242 Miss. 97, 134 So.2d 145 (Miss.1961), we stated:

Evidence which is material, relevant, and otherwise competent to prove the guilt of the accused in a case of this kind cannot be excluded because it may result in the disclosure of facts relating to the commission of other crimes. And commission of such other crime, as in the case that we have here, forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts. Raines v. State, 81 Miss. 489, 33 So. 19; Collier v. State, 106 Miss. 613, 64 So. 373; Hurd v. State, 137 Miss. 178, 102 So. 293; Stone v. State, 210 Miss. 218, 61 So.2d 781; Bellew v. State, 238 Miss. 734, 106 So.2d 146.
It is generally held that, “If several crimes are intermixed, or blended with one another or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them, cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.” Underhill’s Criminal Evidence Fifth Ed., Vol. 1, p. 471, Sec. 207. See also Bangren v. State, 198 Miss. 359, 22 So.2d 360; Massey v. State, (Miss.1944), 19 So.2d 476; State v. Sykes, 1905, 191 Mo. 62, 89 S.W. 851; Claxton v. State, 1928, 109 Tex.Cr.R. 345, 4 S.W.2d 542; Hazzard v. State, 1930, 115 Tex.Cr.R. 622, 27 S.W.2d 191. (134 So.2d at 150-151).

In Turner v. State, 244 Miss. 206, 141 So.2d 249 (1962), we stated the following:

Appellant first assigns as error the admission of testimony that the bullet that killed deceased also struck and injured the one-year old baby deceased was holding in her arms when she was shot. In the first place, most of this evidence concerning the shooting of the child went into evidence without objection, but it was not error to admit this evidence because it was part of the res gestae. The same bullet that killed deceased also struck the child she was holding in her arms. Walker v. State, 201 Miss. 780, 30 So.2d 239. (141 So.2d at 250).

From the foregoing discussion of both the evidence and the law, it is clear that the one assignment of error propounded by appellant has no validity and we have no choice but to affirm the cause.

AFFIRMED.

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

PRATHER, J., not participating.


text:
    Mrs. Willie C. HARRIS & Alma Staten v. Buford C. SELLERS, Sr., Executor of Estate of Doris C. Pavlica, Deceased.
    No. 54142.
    Supreme Court of Mississippi.
    March 7, 1984.
    Paul D. Snow, III, Jackson, for appellant.
    Alan M. Purdie, Gore, Gore & Purdie, Grenada, for appellee.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   PRATHER, Justice,

for the Court:

The burden of proof in a will contest suit is the subject matter of this appeal. The contestants are Mrs. Willie C. Harris and Mrs. Alma Staten, who challenge the validity of the will of Mrs. Doris Pavlica, their sister. The basis for the contest is the undue influence exerted by their nephew and sole beneficiary, Buford C. Sellers. The chancery court held that a confidential relationship existed between the nephew and the testatrix at the time the will was executed, but that there was no proof of undue influence. The chancellor sustained the proponents’ motion to exclude the contestants’ evidence and to dismiss the suit made at the conclusion of contestants’ proof.

The assignments of error are that the chancery court erred in:

(1) Sustaining the appellee/propo-nents’ motion to dismiss in absence of proof by clear and convincing evidence that there was no undue influence;
(2) Refusing to allow hospital records into evidence; and
(3) Excluding testimony of contestants under the “Dead Man’s Statute.”

We reverse and remand this case for retrial.

I.

Buford C. Sellers, of Oakland, and nephew to the testatrix and the contestants, is pastor of a church and principal of an elementary school. At the request of his aunt, Mrs. Doris Pavlica, he held a power of attorney over her business affairs from December 4, 1980 to the date of her death on May 26, 1981. During this interval, he assisted her in selling her home, although she signed the deed herself. Sellers placed the house sale proceeds in joint accounts with his aunt. Admission of the existence of a confidential relationship with his aunt was made by Sellers in his testimony.

Regarding the execution of the will, Sellers testified he brought his aunt to his home from the hospital in December when her insurance benefits ran out. Previously she asked Sellers to prepare a will for her, and again in December, 1980, she repeated that request.

On December 26, 1980, Sellers prepared a will using a form will mailed to him from his church organization for promotion of “Make Your Will Month.” He typed the will making himself sole beneficiary; in the event of Seller’s demise prior to the testatrix’s death, the sole beneficiary was Helen J. Sellers, Sellers’ wife. Mrs. Pavlica requested that Buford Sellers be named sole beneficiary; no testimony was offered concerning the designation of the alternative beneficiary. Sellers secured two employees from the Bank of Oakland to witness the execution of the will in the kitchen of his home.

A prior will of Mrs. Pavlica named her sisters, the contestants, as beneficiaries. The contestants lived a long distance from Mrs. Pavlica.

In the spring of 1981 Mrs. Pavlica returned to the hospital when insurance benefits were restored.

The contest of this will was based on allegations of undue influence of Sellers, mental incapacity of the testatrix, and insufficient execution required by law.

II.

The first assignment addresses the issue of whether the chancellor misapplied the law in determining upon whom the burden of proof of undue influence is placed where a confidential relationship exists.

Admittedly by the proponent, a confidential relationship existed between the testatrix and the beneficiary. At the conclusion of contestants’ proof the chancellor’s bench opinion recited that “in order for this will to be declared, or the court to find against the will, clear and convincing evidence must be present that that will is, in fact, invalid, either by undue influence or ... did not meet the requirements of the statute .... The court is of the opinion that the requisite burden has not been met in order to void the will....”

Upon inquiry by the contestants’ attorney, the chancellor stated that “the executor had the burden of proof.” The chancellor sustained the proponents’ motion to exclude contestants’ testimony and to dismiss suit. The order executed pursuant to the bench opinion recited that “a confidential fiduciary relationship existed between them; that there was a strong presumption created by law against the validity of the will and that the burden of proof to establish the will ... remained upon the proponent; the court finds that this presumption was overcome by the clear and convincing credible testimony offered by the contestants themselves.”

In the record, it appears that the chancellor in his bench opinion misapplied the burden of proof, although he vocalized it properly.

Mississippi Code Annotated section 91-7-29 (1972) establishes the burden of proof. “On the trial of (issue devisavit vel non), the proponent of the will shall have the affirmative of the issue.... ” Our case law has followed that mandate. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41 (1896); Ellis v. Ellis, 160 Miss. 345, 134 So. 150 (1931).

The Sheehan v. Kearney case has been viewed as a leading case in this country for its well-reasoned opinion. Smith, “Where There is a Will, There is a ...” Burden of Proof; or Was Cornelius Sheehan Unduly Influenced. 14 Miss. L.J. 103 (1941). An outline of such a lawsuit is discussed.

After the probate of a will, a contestant files a petition to contest the will, thereby joining the issue of devisavit vel non. Notwithstanding the fact that a contestant files the petition, the order of presenting proof at trial begins with the proponent of the will as he has the burden of proof. The burden of proof is met by the offering and receipt into evidence of the will and the record of its probate. A prima facie case is made by the proponent solely by this proof. As stated in Sheehan, supra, “Now, when the proponent of a will offers the will and the record of its probate, a presumption is thereby raised that the alleged testator had testamentary capacity, and this presumption satisfies the burden of proof in that respect; ... the production of such will and such record of probate, under our statute, raises the presumption that the alleged will was the free and voluntary act of the alleged testator.”

Upon the presentation of such proof, the proponent has satisfied his initial burden by the application of the presumption. The contestants then must offer proof to overcome the prima facie case. The burden of proof is still with the proponent, but the burden of going forward with proof of undue influence, or lack of testamentary capacity, or other defense, shifts to the contestants.

In the case sub judice, the proponent admitted the fact that there was a confidential relationship with his aunt. The facts testified to warranted this conclusion even if Sellers had not made that admission. The chancellor also found as a fact in his opinion that the confidential relationship existed.

Under the case law of our state, the existence of a confidential or fiduciary relationship gives rise to a presumption of undue influence. Meek v. Perry, 36 Miss. 190 (1858); Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959). The proof of the confidential relationship proves the undue influence by the imposition of the presumption. Clearly here the contestants met their burden of going forward with the proof in establishing the confidential relationship.

The chancellor in his ruling that there was no proof of undue influence was manifestly wrong. The ruling overlooks the presumption of undue influence that the law imposes where a confidential or fiduciary relationship exists. Therefore, the granting of the motion to dismiss at this point of the trial was error. The contestants had complied with their duty at trial.

At retrial, however, the proponent is entitled to present rebuttal proof answering this presumption of undue influence. The proponent may attempt to overcome, if at all, by clear and convincing evidence of:

(1) Good faith on the part of the grantee/beneficiary;

(2) Grantor’s full knowledge and deliberation of his actions and their consequences; and

(3) Advice of (a) competent person, (b) disconnected from the grantee and (c) devoted wholly to the grantor/testator/s interest. Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188 (1962); Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959), Thomas v. Jolly, 251 Miss. 448, 170 So.2d 16 (1964), Hendricks v. James, 421 So.2d 1031 (Miss.1982).

The offering of the above proof in rebuttal is proper and withstands an objection that it should have been offered in the proponents’ case in chief. Sheehan v. Kearney, supra; Runyan v. Price, 86 Am. Dec. 459; In Re Layman’s Will, 40 Minn. 371, 42 N.W. 286 (1889).

The type of proof necessary to overcome the presumption of undue influence has recently been addressed by this Court in Murray v. Laird, 446 So.2d 575 (1984), as follows:

(1) Important factors on the question of good faith are, (a) the determination of the identity of the initiating party in seeking preparation of the instrument, (b) the place of the execution of the instrument and in whose presence, (c) what consideration and fee were paid, if any, and (d) by whom paid, and (e) the secrecy or openness given the execution of an instrument. The Court recognizes that prior disclosure of a donation is not a prerequisite to its validity; but the disclosure of intent made prior to execution of an instrument helps dilute the undue influence presumption.
(2) Factors important to address the grantor/testator’s knowledge, at the time of execution of any instrument are (a) his awareness of his total assets and their general value, (b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect that prior will or natural distribution, (c) whether non-relative beneficiaries would be excluded or included and, (d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grant- or/testator on him and how susceptible to his influence.
The guidelines of our prior cases suggest that the testator/grantor should give a thoughtful deliberation to all of these factors. No set amount of time is stated as required, but a positive factor to overcome the undue influence presumption is a mature and thoughtful weighing of the legal consequences of a grantor/testator’s action.
(3)Turning now to the last factor to be discussed, (a) advice of a competent person, (b) disconnected from the grantee, and (c) devoted wholly to the grantor/testator’s interest, we note three factors to meet. The advisor has to have conferred with the grantor/testator prior to the document drafting. McDowell v. Pennington, supra. However, “independent” advice in this sense means advice separate and apart from the beneficiary, both in the initiation and execution of the instrument.
The participation of the beneficiary/ grantee, or someone closely related to the beneficiary, arouses suspicious circumstances that negate independent action. McDowell v. Pennington, supra; Croft, supra.
As a necessary adjunct to “advise and counsel”, an advisor must have (a) knowledge upon which to base advice. Therefore, all factors previously named above with reference to the grantor/testator’s full knowledge of his circumstances and the grantee/beneficiary’s good faith must also be delved into by the advisor as a basis for his recommendation. The advisor needs to (b) know of the relationship of the grantor/testator to any beneficiary/grantee and the purpose or reason of an unequal division or distribution to donees/heirs, of the same class, (c) the relationship of the non-blood donee and the duration of that relationship; (d) the relationship, or lack of relationship, to kinsmen, (e) knowledge of tax consequences, (f) information as to the marital báckground, age, physical and mental health of a grantor/testator, (g) Inquiry by the advisor into whether the disposition is the free and voluntary act of an independent thinking, strong willed individual or whether the decision is imposed by the dominance of an over-reaching person will help him render better advice. All pf these factors will help the advisor learn of antecedent agencies that gave rise to the presumption of undue influence.

Since the chancellor dismissed the case before the proponents put on their case in chief, it is remanded for retrial in line with the above ruling.

III.

As this case is remanded by retrial, we address only briefly the remaining assignments of error.

Regarding the exclusion of the contestants’ testimony concerning the establishment of their claim against the estate under the Dead Man’s Statute, Mississippi Code Annotated section 13-1-7 (1972), the Court properly excluded this testimony as to matters that arose in the lifetime of the deceased to establish their own claim. Webster v. Kennebrew, 443 So.2d 850 (Miss.1983).

There is no merit in this objection.

As to the exclusion of the hospital records, the Court notes that the appellants’ petition alleged mental incapacity of the testatrix. Under this allegation introduction of hospital records for that purpose may be admissible, if otherwise not inadmissible. Ross v. Miller, 441 So.2d 541 (Miss.1983).

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: PATTERSON, Chief Justice,

text:
    A.V. DURR v. STATE of Mississippi.
    No. 54866.
    Supreme Court of Mississippi.
    March 14, 1984.
    Lydia H. Suffling, Charles E. Suffling, Bethea & Suffling, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

A.V. Durr was convicted in the First Judicial District of Harrison County of attempted burglary and sentenced to serve a term of ten (10) years in the custody of the Mississippi Department of Corrections.

On appeal Durr contends the indictment was fatally defective in that it failed to allege he committed an overt act toward the commission of the offense of attempted burglary.

We note first that the trial court had no opportunity to rule on this issue, as it was not presented at any point during the trial. This fact is stated for the sake of fairness to the trial court; legally, however, Durr’s failure to demur to the indictment does not constitute a waiver. Copeland v. State, 423 So.2d 1333 (Miss.1982); Brewer v. State, 351 So.2d 535 (Miss.1977).

Because the omission in the indictment of an essential element of the crime charged is not waived by failure to demur, we turn to the question of whether the indictment was in fact defective. The charging part of the indictment is set out in pertinent part:

That A.V. Durr ... on or about ... in ... did then and there unlawfully ... and burglariously attempt to break and enter the dwelling of ... with the felonious intent to ... feloniously take, steal and carry away the goods ... in said building ... but was prevented from accomplishing his felonious design contrary to the form of the statute ... and against the peace and dignity of the State of Mississippi.

Absent from this language is any allegation that Durr performed an overt act toward the commission of the offense charged. We have held that indictments under Mississippi Code Annotated, § 97-1-7 (1972), the general attempt statute, must set forth an overt act toward the commission of the offense. Murray v. State, 403 So.2d 149, 152 (Miss.1981); Maxie v. State, 330 So.2d 277 (Miss.1976).

The rationale for this rule was stated in Burchfield v. State, 277 So.2d 623, 625 (Miss.1973):

... It has long been the law of this land that an accused person has a constitutional right to be informed of the nature and material elements of the accusation filed against him. All the authorities are to the effect that an indictment, to be sufficient upon which a conviction may stand, must set forth the constituent elements of a criminal offense. Each and every material fact and essential ingredient of the offense must be with precision and certainty set forth_ ,,

Because an essential ingredient of the offense is missing from the indictment, it failed to charge a crime and is void.

The judgment of the trial court is therefore reversed and- the appellant is remanded to the custody of the sheriff of Harrison County, Mississippi, to await action of the next grand jury.

REVERSED; APPELLANT REMANDED TO THE CUSTODY OF THE SHERIFF OF HARRISON COUNTY TO AWAIT ACTION OF THE NEXT GRAND JURY.

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


author: EMBRY, Justice. TORBERT, Chief Justice JONES, Justice SHORES, Justice

text:
    Nell LAMONT v. BROOKWOOD HEALTH SERVICES, INC., et al.
    82-874.
    Supreme Court of Alabama.
    Dec. 9, 1983.
    Larry R. Grissett of Prestwood, Prest-wood & Grissett, Andalusia, for appellant.
    Larry W. Harper of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellees.
   EMBRY, Justice.

Nell Lamont appeals from the summary judgment entered in behalf of Brookwood Health Services, Inc., in her action for damages resulting from the allegedly negligent failure of Brookwood to care for her before, during and after surgery. The action remains pending against other defendants. A proper Rule 54(b), ARCP, order was entered as a part of the summary judgment.

It is Lamont’s contention that her counter-affidavit, which also incorporated a transcript of her oral deposition, shows the existence of a genuine issue of material fact, the negligence vel non of Brook-wood’s servant, agents, or employees, and entry of summary judgment was inappropriate. We agree.

Nell Lamont was admitted to Brookwood Hospital for the purpose of having a surgical procedure performed known as a jeju-noileal by-pass designed to alleviate morbid obesity. In her oral deposition, and by affidavit, she says she had attended nursing school, had been employed in hospitals, understands certain standards required of nurses and other staff personnel in a hospital, and further, the following:

“When I was prepared for surgery to be performed in the defendant hospital I was prepared for that surgery in my hospital room. The linens on my bed had not been changed before I was rolled into the surgical suite, on the hospital bed, which had been rolled from the room to the suite without any sterilization procedure whatever. I was lifted from the soiled linen of my hospital bed onto the surgical table. After the surgical procedure was completed I was transferred to the intensive care unit where no medication was to be administered to me orally; all medication was to be administered intravenously. While in the intensive care unit the liquid being given to me was interrupted by the disengagement of the IV needle from my arm. No nurse could find a vein for reentry. For nearly four hours I was deprived of the much needed liquid which contained my medication. I requested the nurses to call my doctor. They called in a technician from the lab to find a vein for reentry. He failed, left the ICU, returned later and failed again. The nurses had not even monitored my blood pressure and I was certain I was going into shock. My systolic and diastolis pressure were very close together which signified an emergency. I told the nurses again to get Dr. Lemon who would prepare a shunt. Finally Dr. Lemon arrived and did apply a shunt.
•“My body needed the IV fluids and medication desperately and I was aware that my own death was near.
“The infection developed is described in my deposition and Dr. Lemon acknowledge to me that I had suffered a nosoco-mial infection. I believe the hospital records will reflect this fact.
“The preparation for my surgery, the services of the nurses in the intensive care unit and my care when I was returned to my room were all substandard according not only to common sense but to the basic principles of caring for a patient having had majory surgery. When my infection was discovered there was no procedure to control the infection as required by the joint commission. My own doctor did not know the identity of the infection committee and had apparently never heard of ‘red-bagging’ which is a precaution recognized by most student nurses.” (Quoted without correction of typographical or other errors.)

Brookwood’s motion for summary judgment was submitted upon the pleadings and the deposition of Dr. A.G. Lemmon (Lamont’s surgeon). Brookwood contends that the testimony of Dr. Lemmon indicates that no genuine issue of material fact exists and further that his opinion that Brookwood conformed to the standard of care exercised by other hospitals in the general area as required by § 6-5-484, Code 1975. To exemplify its position in that regard, Brookwood referred the trial court to the following:

“Q Doctor, did you review the hospital record and chart on Mrs. Lamont prior to this deposition?
“A Yes.
“Q Did you see anything in those charts that would indicate that the hospital or its personnel did anything wrong in the treatment of Mrs. Lamont?
“A No.
“Q Are you familiar with the standard of care rendered by hospitals and in the Birmingham area?
“A Yes.
“Q Do you consider the standard of care given to Mrs. Lamont by Brookwood Hospital and its personnel, it was in keeping with the standard of care rendered to patients generally in the Birmingham area of the hospital?
“A I certainly think so. I was unaware of any breaching.”

We opine that the materials upon which the motion was submitted, taken with the evidence offered by Lamont, are sufficient to demonstrate that genuine issues of material fact present in this case require reversal of the summary judgment. At the least, Lamont’s evidence shows that as to basic standards of nursing and hospital care, she was sufficiently expert to make an issue of fact as to whether Brook-wood departed from those standards in its care and treatment of her as its patient. E.g., see Baker v. Chastain, 389 So.2d 932 (Ala.1980). Among other things, the evidence showed she had received training both as a licensed practical nurse and as a registered nurse, and had been a private duty nurse as well as having been employed in hospitals.

The sole remaining issue of law needing to be addressed is the proper interpretation of the following sentence found in § 6-5-484(a), Code 1975:

“In the care of a hospital rendering services to a patient, the hospital must use that degree of care, skill and diligence used by hospitals generally in the community.”

For the answer, we need look no further than two rather recent decisions of this court: Drs. Lane, Bryant, Eubanks and Dulaney v. Otts, 412 So.2d 254 (Ala.1982), and May v. Moore, 424 So.2d 596 (Ala.1982). In those decisions, this court recognized that “ ‘Same general neighborhood’ refers to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances.” Therefore, in our view, the phrase “that degree of care, skill and diligence used by hospitals generally in the community” refers to the national hospital community. A hospital owes those present in connection with care and treatment, such as Lamont or one similarly situated, a duty to exercise that degree of care, skill, and diligence had and exercised by those hospitals engaged in the same kind of operation, in similar conditions or under similar circumstances.

The judgment below is due to be and is hereby reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER and BEATTY, JJ., concur.

TORBERT, C.J., and MADDOX, JONES, SHORES and ADAMS, JJ., concur in the result.

ALMON, J., not sitting.

TORBERT, Chief Justice

(concurring in the result).

I concur only in the result because I cannot agree with that portion of the plurality’s opinion that would adopt a national standard of care to apply to the operation of hospitals in Alabama. I still adhere to the views I expressed in Zills v. Brown, 382 So.2d 528, 534 (Ala.1980), and Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254, 262 (Ala.1982). The opinions of the plurality in Zills and the majority in Drs. Lane, Bryant, Eubanks & Dulaney, equate “same general neighborhood” with “national medical neighborhood.” That holding is clearly contrary to the usual and customary meaning of “same general neighborhood,” as well as the interpretation given that phrase by the courts of Alabama previously, by the federal courts applying Alabama law, and by the Legislature when it approved Code 1975, § 6-5-484.

The plurality in the present case would extend the questionable holding in Drs. Lane, Bryant, Eubanks & Dulaney to provide that the phrase “ ‘that degree of care, skill and diligence used by hospitals generally in the community’ refers to the national hospital community.” Such a decision would again ignore a clear legislative intent and would overrule Alabama cases that have adopted and followed the locality rule. I concur in the reversal of the summary judgment, but only because the evidence offered in support of and in opposition to the summary judgment showed a genuine issue of material fact present in the case.

MADDOX, J., concurs.

JONES, Justice

(concurring in the result):

I concur in the result of reversal, because this is a classical negligence case where the proffered evidence raises genuine issues of material fact, making summary judgment inappropriate. In my opinion, nothing in this case as postured calls for any discussion of the “community” standard prescribed by § 6-5-484, Code 1975.

SHORES, Justice

(concurring in the result):

I concur in the result and would adhere to the view I expressed in Drs. Lane, Bryant, Eubanks and Dulaney v. Otts, 412 So.2d 254 (Ala.1982). I do not believe small hospitals in remote rural areas should be held to the same standard as well-equipped hospitals in metropolitan centers.

ADAMS, J., concurs.