text:
    Harry THOMPSON, Jr., et ux., Plaintiffs-Appellants, v. Dr. Dabney M. EWIN, et al., Defendants-Appellees.
    No. 83-945.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Nov. 26, 1984.

      Carol J. Aymond, Jr., Bunkie, for plaintiff s-appellants.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendants-appellees.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

Plaintiffs, Harry Wayne Thompson, Jr. and Dorothy Jean Goff, brought this action for damages for the wrongful death of their son, Harry Wayne Fikes, who drowned in a swimming pool owned by the defendants, Dr. and Mrs. Dabney M. Ewin. Also made a defendant is the Ewins’ liability insurer, Continental Insurance Company. From a judgment rejecting their demands, the plaintiffs have appealed. At issue on appeal is the liability of the defendants.

FACTS

Dr. Ewin is a medical doctor who practices surgery in the New Orleans area. He and his wife own a home in a rural part of Rapides Parish, only a few miles north of Cheneyville, Louisiana. The home is fronted by La. Highway 71 and is situated about 200 yards from that highway. To the rear of the home is a small body of water known as “Bayou Boeuf”. The area around the house consists primarily of agricultural fields, with very few residential homes in the immediate vicinity. Since the Ewins are away from this area much of the year, the home is maintained by the Greenwood Planting Company, a corporation in which Dr. Ewin and his brother are the controlling stockholders.

The Ewins constructed a swimming pool immediately adjacent to the east side of the home about three years prior to the accident. Although the pool is unfenced, it is shielded from public view by the house on the west side, and by shrubbery on the highway and bayou sides. The only open view of the pool is from the agricultural fields located on the east side of the home. The pool is rather unextraordinary, with a diving board and ladder on the deep end of the pool and steps in the shallow end of the pool. Although there are lifesaving and floatation devices around the pool, they were locked up behind a screen porch at the time of the accident.

Mr. Thompson, an employee of Greenwood Planting Company at the time of the drowning, and Ms. Goff lived with their family in a home located about one-fourth mile west of the Ewin home. The plaintiffs’ home, like the defendants’, was situated between La. Highway 71 and Bayou Boeuf. The two homes were not immediately adjacent to each other, there being several houses situated between them.

On August 25, 1982, the plaintiffs’ nine-year-old son, Dennis Fikes, was playing with friends at a neighbor’s home. Jeffery Fikes, ten years old, and Harry Wayne, eleven years and eight months old, went to the neighbor’s home to retrieve their younger brother. On their way back, the boys traveled through one of the agricultural fields located on the eastern side of the Ewin home. At the suggestion of one of the brothers, the three boys decided to investigate the defendants’ pool.

After only a few minutes at the pool, Harry Wayne fell in. Jeffery attempted to jump in and save his older brother, but was unsuccessful. Jeffery and Dennis then threw a water hose into the water so that Harry Wayne might grab hold and the two could pull him to safety. Unfortunately, this attempt at rescue failed also. Harry Wayne, being unable to swim, went under water and drowned.

Plaintiffs base their claims on three theories of recovery: negligence, strict liability, and the attractive nuisance doctrine. We shall discuss each in turn.

NEGLIGENCE

Plaintiffs contend that the defendants were negligent because they failed: (1) to construct a fence around the pool; (2) to provide adequate supervision; (3) to provide easily accessible safety and lifesaving devices; and (4) to provide a cover over the pool when not in use.

The test to be applied in determining whether a landowner is negligent is whether, in the management of his property, he has acted as a reasonable man in view of the probability of injury to others. Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979). In determining a particular defendant’s duty, consideration should be given to the nature of the facility and the dangers presented by it. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976).

Applying the rules of law set forth above, we do not find that the defendants acted unreasonably under these sets of circumstances. The pool was located in a rural area far away from any residential subdivisions or metropolitan area. There was no evidence to indicate that any children of tender years were located in the neighborhood or had been seen around the pool area. For these reasons, the defendants had a justifiable belief that no children would be around their pool absent their permission, and therefore, they had no duty to take the precautionary measures which the plaintiffs argue should have been taken.

It is true that in considering a defendant’s duty to a particular person, consideration must be given to the person’s age, maturity, experience, familiarity with the premises and its dangers, and other such factors which might increase or decrease the risk of harm to that person. Shelton, supra. This rule does not change the results of this case, however.

Although only eleven years, eight months old, the decedent was well aware of the dangers of drowning. He had lived most of his life around Bayou Boeuf and was instructed by his parents to always wear a life preserver while in a boat on the water. In addition, his parents had warned him to stay away from the Ewin home. The boy was of normal intelligence and could easily understand the dangers of being around a pool without the ability to swim. Although a defendant owes a duty to warn of all unreasonable dangers, he does not have to warn of obvious dangers. The danger of drowning was obvious to the plaintiffs’ son.

STRICT LIABILITY

Plaintiffs' next contention is that the defendants should be held strictly liable under LSA-C.C. Art. 2317. This article provides in part:

“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....”

In order to recover in strict liability under Article 2317, the injured person must prove that the premises posed an unreasonable risk of injury to others, and that his damage occurred through this risk. Upon proof of these elements, the owner is responsible for the damages, unless he proves that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Loescher v. Parr, 324 So.2d 441 (La.1975).

The unreasonable risk of harm criterion, however, is not a simple rule of law which may be applied mechanically to the facts of every case. Since Article 2317 states general precepts and not detailed rules for all concrete cases, it becomes the interpreter’s duty to decide which risks are encompassed by the codal obligations from a standpoint of justice and social utility. Although a judge may be constrained by the concrete problem before him and the ambit of his limited authority, he nevertheless must consider the moral, social, and economic values as well as the idea of justice in reaching an intelligent and responsible decision. Entrevia v. Hood, 427 So.2d 1146 (La.1983).

The judicial process involved in deciding whether a risk is unreasonable under Art. 2317 is similar to that employed in determining whether a risk is unreasonable in a traditional negligence problem, except that a landowner is not absolved from strict liability by a showing of ignorance of the condition or by circumstances that the defect could not easily be detected. Entre-via, supra. Thus, after imputing knowledge of the condition to the landowner, we must determine whether the condition which existed presented an unreasonable risk of harm. This is determined by weighing the risk and gravity of harm against the social utility of the activity and the cost of prevention. Hunt v. City Stores, Inc. 387 So.2d 585 (La.1980).

The pool in question was in an isolated rural area. It was effectively shielded from the public’s view on all sides except one. The one side which remained open was an agricultural field which supported very little public traffic. Thus, the risk that someone may have come over to investigate the pool was slight.

To construct a fence around this pool, considering its location, would have been costly, not only monetarily but esthetically as well. The price of having the pool supervised when not in use would place an unrealistic burden on every pool owner. The defendants’ actions in keeping the lifesaving and floatation devices locked up behind a screen porch were done to keep the items from being stolen or being damaged by the outside elements. Finally, to force a landowner to cover his pool whenever the pool is not in use would be so costly and physically burdensome that it would take away much of the attractiveness of owning a swimming pool.

After weighing the risk and gravity of ' harm against the social utility of the activity and the cost of prevention, we conclude, as did the trial court, that the defendants’ pool did not pose an unreasonable risk of harm to plaintiffs’ son.

ATTRACTIVE NUISANCE DOCTRINE

Plaintiffs’ final contention is that the defendants should be held liable under the attractive nuisance doctrine. This doctrine provides that one who maintains upon his premises a condition which is dangerous to children of tender years by reason of their inability to appreciate the peril therein and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. Saxton v. Plum Orchards, 40 So.2d 791 (La.1949).

The trial court found that few of the elements of the attractive nuisance doctrine had been established and, therefore, rejected plaintiffs’ claim under this doctrine. We agree.

Harry Wayne Fikes, although still under the age of twelve, was old enough to appreciate the danger of drowning. As was stated before, he had been instructed by his parents to wear a life preserver when around water. Also, he was intelligent enough to understand the dangers of being around water without the ability to swim. Secondly, the location of the pool and the fact that it was shielded from public view made it unreasonable for the defendants to expect to attract children of tender years to their premises. For these reasons, we find that the attractive nuisance doctrine is not applicable in this particular case.

Because we find as we do, we need not reach the issues of whether plaintiffs’ son was guilty of assumption of risk, or contributory negligence. Also, we need not reach the issue of damages.

DECREE

For the aforementioned reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . For a different result based on a different set of circumstances, see Simmons v. Whittington, 444 So.2d 1357 (La.App. 2 Cir.1984), writ denied, 447 So.2d 1071 (La.1984).


source: Caselaw Access Project

author: KNOLL, Judge. STOKER, Judge,

license: Public Domain

text:
    Madeline R. DOHMANN, Plaintiff-Appellant, v. UNITED GAS PIPE LINE, et al., Defendants-Appellees.
    No. 83-947.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Morrow & Morrow, Jeffrey M. Bassett, Opelousas, for plaintiff-appellant.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Opelousas, Landry, Watkins & Bonin, Nan M. Landry, New Iberia, for defendants-appellees.
    Before FORET, STOKER and KNOLL, JJ.
   KNOLL, Judge.

Madeline R. Dohmann appeals a judgment dismissing her claim for loan insurance coverage of $8,904.94. The trial court held that United Gas Pipe Line Federal Credit Union (UGPL) was not an agent of Prudential Insurance Company of America (Prudential), and the loan was not made solely on the basis of representations contained in the brochure; therefore, there was no insurance coverage. Dohmann contends the trial court erred in finding that:

(1) UGPL was not an agent of Prudential;

(2) the loan insurance coverage was not a primary cause for the three loans; (3) the pamphlet was not generally distributed to its members; (4) UGPL and/or Prudential were not bound by the representations in the pamphlet, and (5) in not awarding penalties and attorney’s fees. For the following reasons we affirm in part, reverse in part and render.

Madeline Dohmann’s husband, Joseph Ted Dohmann, was an employee of Pennzoil and a member of the UGPL Federal Credit Union. Pennzoil had an agreement with UGPL, through its Federal Credit Union, to provide credit privileges to Pennzoil employees. Members in good standing are invited to make loans from the Credit Union which Joseph Dohmann did in March of 1976, July of 1977, and October of 1977, for a total of $22,637.39. On December 8, 1977, Joseph Dohmann was killed in a helicopter crash off the coast of Louisiana. At the time of his death, the loan balance was $18,904.94.

UGPL was a member of the Federation of Louisiana Credit Unions which was insured by Prudential under a group policy. This policy provided loan insurance to the members of the Credit Union up to $10,000 per account. The $10,000 limitation was directly contradicted by a pamphlet distributed by UGPL.

The pamphlet was an invitation to join the UGPL Federal Credit Union and was distributed to Pennzoil employees. It listed several features about the Credit Union and specifically contained the following clause:

“ARE LOANS INSURED? This Credit Union provides Loan Protection insurance, insuring borrowers in the amount of their loan balances without extra cost. This protection (subject only to liberal age and health restrictions) pays off the balance of the loan if the borrower dies.” (Emphasis added)

The Dohmanns were not given a copy of Prudential’s insurance policy or advised that loan insurance coverage could not exceed $10,000.

After Joseph Dohmann’s death, Prudential paid the credit life insurance to UGPL in the amount of $10,000. A statement was sent to Madeline Dohmann for the outstanding balance of $8,904.94. She filed the instant suit individually and as adminis-tratrix of the Estate of Joseph Ted Doh-mann for declaratory relief.

MISREPRESENTATION BY UGPL

We agree with the learned trial judge that Prudential is not liable for the representations contained in the pamphlet. However, we find UGPL clearly liable for the negligent misrepresentations contained in the pamphlet and reverse the trial judge on that issue.

It is well settled that LSA-C.C. Art. 2315 encompasses a cause of action for negligent misrepresentations. Devore v. Hobart Manufacturing Co., 367 So.2d 836 (La.1979); Beal v. Lomas and Nettleton Co., 410 So.2d 318 (La.App. 4th Cir.1982). In order for the doctrine to apply there must be a legal duty on the part of the defendant to supply correct information, there must be a breach of that duty, and the breach must have caused damage to plaintiff. Beal, supra.

The pamphlet was printed by UGPL and distributed to each of its branch personnel offices in districts all over the United States to give to their employees. UGPL solicited Joseph Dohmann’s membership in its credit union by means of the pamphlet containing the enticing feature of full loan protection insurance in the event of the borrowing member’s death. UGPL never advised Joseph Dohmann that its credit life did not exceed $10,000, even though Joseph Dohmann made as many as three loans through the credit union for a total of $22,637.39; nor did UGPL offer any explanation for the statement contained in the pamphlet. UGPL held the master group insurance policy with Prudential and did not give a copy of it to its members. The only information concerning the insurance coverage that the members had was contained in the pamphlet, which UGPL distributed.

When UGPL undertook to provide loan insurance coverage if the borrower died; it had a duty to advise its members that there was a limited amount of credit life rather than full coverage as stated in the pamphlet. It breached this duty by failing to advise Joseph Dohmann of the limited amount of credit life, and as a result of this breach, the Dohmann Estate and Madeline Dohmann have an $8,904.94 indebtedness. We therefore find UGPL liable for negligent misrepresentation.

PENALTIES AND ATTORNEY’S FEES

LSA-R.S. 22:5(2) provides:

“In this Code, unless the context otherwise requires, the following definitions shall be applicable:
‘Insurer’ includes every person engaged in the business of making contracts of insurance, other than a fraternal benefit society. A reciprocal, an interinsurance exchange or a Lloyds organization is an ‘insurer’.”

UGPL Federal Credit Union is not “engaged in the business of making contracts of insurance” merely because it provides credit life insurance to its members. Accordingly, UGPL is not an “insurer” subject to the Insurance Code; therefore, penalties and attorney’s fees are denied. Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978).

With this determination, all other issues of this case are pretermitted.

Accordingly, we find that UGPL made, negligent misrepresentations to the detriment of Madeline Dohmann, and is therefore liable to Madeline Dohmann individually and as administratrix of the Estate of Joseph Ted Dohmann in the sum of $8,904.94, with legal interest from the date of judicial demand until paid. All costs of this appeal are assessed to United Gas Pipe Line Federal Credit Union.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

FORET, J., concurs.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

At the trial level this case was approached on a contract basis. The trial court concluded, as the majority here concludes, that Prudential Insurance Company of America was not represented by United Gas Pipe Line Federal Credit Union (Credit Union) as its agent, and recovery against it was rejected. The trial court also rejected recovery against the Credit Union. The majority reverses as to the Credit Union and grants recovery against it on a tort basis, finding a cause of action for negligent misrepresentation.

Mrs. Dohmann testified emphatically that her husband had a copy of the pamphlet described in the majority opinion at the time he contracted for the loans. She also emphatically asserted that she and her husband reviewed the contents of the pamphlet, and she and her husband were under the impression that their loan or loans would be insured for the entire balance. I read the majority opinion statement of facts as accepting the plaintiffs position as being true. As I read the trial court’s reasons for judgment, it did not accept the statement of facts given by Mrs. Dohmann as being true.

The trial court made a specific finding that the pamphlet published by the Credit Union was never generally distributed to the Credit Union members by the Credit Union in the course of business. This does not mean that Mr. Dohmann never came into the possession of a pamphlet, and Mrs. Dohmann testified that he did have a copy and that they relied upon it in contracting for the loans.

In its reasons for judgment it is quite apparent that the trial court made a credibility evaluation of Mrs. Dohmann’s testimony and rejected it. In order for the plaintiff to recover in this case it is necessary that the trial court’s finding in this factual matter to be considered manifestly erroneous. In order to find manifest error, we must find that the trial judge was clearly wrong.

In its reasons for judgment the trial court did not specifically state that it did not believe Mrs. Dohmann’s testimony. It commented as follows:

“Plaintiff testified that the sole consideration in executing these loans was the insurance coverage as stated in brochure. It appears to the Court highly unlikely that one would take out a loan solely on the basis of the representations of insurance coverage as provided in a brochure as hereinabove described. Furthermore, it would seem that if this indeed was the sole consideration for making the loan with the credit union, plaintiff and/or decedent would have requested a copy of the insurance contract or otherwise further explored the insurance coverage.”

I am not persuaded by the reasoning process stated by the trial court. The issue is not whether the impression that the loan balances would be fully covered was the sole consideration for making the loan. The issue is whether the Dohmanns would have contracted for the loan absent the impression (gained from the pamphlet) that the loans would be fully covered. As the quoted statement from the trial court’s reasons for judgment is the only apparent basis for rejecting Mrs. Dohmann’s testimony, it stands alone against her uncontra-dicted testimony. Under the circumstances the rejection of Mrs. Dohmann’s testimony was manifest error. Accordingly I agree with the opinion of the majority.


author: GUIDRY, Judge.

text:
    Elton DEVILLE, Plaintiff-Appellant, v. Henry J. LEONARDS, et al., Defendants-Appellees.
    No. 83-951.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Elton Deville, in pro. per.
    James A. McGraw and Denise A. Nagel, Baton Rouge, for defendants-appellees.

      Before GUIDRY, LABORDE and YEL-VERTON, JJ. *
   GUIDRY, Judge.

On December 2, 1982, Elton Deville, in proper person, filed a petition styled “petition for fruad (sic)” against Henry J. Leon-ards and Jordan Allen Reamer, employees of the Louisiana State Department of Labor for their alleged fraudulent disqualification of plaintiff for state unemployment benefits. In his petition, plaintiff sought trial by jury and damages for deprivation of unemployment benefits, punitive and double indemnity sanctions, and attorney’s fees. A motion for change of venue and a motion for jury trial filed by plaintiff along with a motion for summary judgment filed by defendants were consolidated for hearing. The trial judge denied plaintiff's motion for change of venue and granted defendants’ motion for summary judgment dismissing plaintiff’s claim. Plaintiff’s motion for a jury trial was dismissed as moot. Plaintiff appeals.

CHANGE OF VENUE

La.C.C.P. Art. 122 provides as follows: “Any party by contradictory motion may obtain a change of venue upon proof that he cannot obtain a fair and impartial trial because of the undue influence of an adverse party, prejudice existing in the public mind, or some other sufficient cause. If the motion is granted, the action shall be transferred to a parish wherein no party is domiciled.”

Plaintiff’s asserted basis for his request for a change of venue is that he is disliked in Acadia Parish and that as a result he is unable to obtain legal counsel and unable to obtain a fair and impartial trial. In support thereof, Mr. Deville stated that he had contacted ten attorneys in the area who refused to represent him but conceded that he had not visited the local legal aid office. Plaintiff specifically requested a transfer to Lake Charles where he stated that he had engaged local counsel conditioned on a transfer to that judicial district. Defendants argued that a change of venue to Calcasieu Parish would impose undue hardship on the defendants.

Under La.C.C.P. Art. 122, a change of venue is discretionary with the trial judge and will not be disturbed absent a clear abuse of discretion. Pursuant to this article, the mover has the burden of showing sufficient cause why he is unable to obtain an impartial trial in the court of original venue. Plaintiff’s unsupported allegation that he is disliked in Acadia Parish is insufficient to meet that burden. Nor does the fact that ten attorneys refused to take his case suggest that he is disliked or unable to obtain a fair and impartial trial. We find no abuse of the trial judge’s discretion in denying plaintiff’s motion for change of venue.

FACTS

The pleadings, answers to interrogatories, affidavits, and official records of the Louisiana Office of Employment Security filed in these proceedings reflect the following material facts to be without dispute.

On or about October 15, 1981, plaintiff filed a claim for unemployment benefits and registered for employment as a pipe welder with the Louisiana Office of Employment Security. Plaintiff was thereafter assessed by that office as qualifying for unemployment benefits at the rate of $183.00 per week. Plaintiff drew these unemployment benefits until December 18, 1981. In early December of 1981, plaintiff was referred by the Crowley Office of Employment Security for a welder's job at the Forked Island Shipyard. This referral resulted from a request by the Forked Island Shipyard to the Crowley office for production welders. Plaintiff refused to accept this referral for employment giving as his reasons that he could not pass the company physical examination and that the wages offered were $1.00 to $1.50 per hour less than he previously earned. Upon plaintiff’s adamant refusal to accept this employment referral, he was disqualified, effective December 22, 1981, for further unemployment benefits under the authority of La.R.S. 23:1601(3). The initial determination to terminate plaintiffs benefits was made by Jordan Allen Reamer, an interviewer in the Office of Employment Security in Crowley and Henry J. Leonards, his supervisor. Claimant thereafter filed an appeal with the Louisiana Office of Employment Security. After a hearing held on January 20, 1982, the determination of the agency was affirmed by an appeals referee. Upon a subsequent appeal to the Louisiana Board of Review, the decision of the referee was affirmed. Plaintiff did not thereafter file an action for judicial review of this administrative decision provided for by La.R.S. 23:1634. Plaintiff then instituted this suit against defendants, Jordan Allen Reamer and Henry J. Leonards, seeking damages for their alleged fraudulent disqualification of plaintiff for unemployment benefits.

MOTION FOR SUMMARY JUDGMENT

As we understand the petition of plaintiff, he alleges that defendants knowingly and intentionally fabricated an employment opportunity to which he was referred and thereafter upon his refusal to accept such referral, defendants fraudulently misrepresented that the employment was “suitable work” within the intendment of La.R.S. 23:1601(3)(a), all for the sole purpose of disqualifying plaintiff from receiving further employment benefits.

In Devore v. Hobart Mfg. Co., 367 So.2d 836 (La.1979), our Supreme Court recognized that La.C.C. Art. 2315 affords a broad ambit of protection for persons damaged by intentional and negligent acts of others. Further, Louisiana courts have long recognized that a party who is injured by the fraud and deceit of another has a cause of action against the offending party for damages. Swann v. Magouirk, 157 So.2d 749 (La.App. 2nd Cir.1963); White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 3rd Cir.1974). In Altex Ready-Mixed Concrete Corp. v. The Employers Commercial Union Insurance Company et al, 308 So.2d 889 (1st Cir.1975), writ refused, 312 So.2d 872 (La.1975), the court stated the following:

“Fraud exists if it can be shown that material misrepresentations have been made by one party designed to deceive another, ... to cause loss or inconvenience to the other.”

Finally, we observe that fraud is never presumed and that one who alleges fraud has the burden of establishing it by legal and convincing evidence. La.C.C. Art. 1848; Buxton v. McKendrick, 223 La. 62, 64 So.2d 844 (1953).

In this case, defendants .have filed a motion for summary judgment urging the absence of any dispute as to material fact and their entitlement to judgment as a matter of law.

A motion for summary judgment should be granted if the affidavits, depositions, documents etc., filed in support thereof show the absence of any dispute as to material fact and when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law. La.C.C.P. Art. 966; Bartlett v. Calhoun, 430 So.2d 1358 (La.App. 3rd Cir.1983).

The facts which we have previously summarized are fully supported by the record and are without dispute. In particular, we note the record clearly reflects that the employment opportunity to which plaintiff was referred was genuine and not a fabrication. The record contains a copy of the job order received by the administrative agency from Forked Island Shipyard verifying an actual job vacancy for a specific welding position. Additionally, there is no factual dispute surrounding plaintiffs actions following the job referral, i.e., he adamantly refused to contact the prospective employer concluding on his own that he would not pass the company physical and, in any event, that the employment was not “suitable work” within the intendment of La.R.S. 23:1601(3)(a).

All of the evidence supports the inevitable conclusion that the decision by the defendants recommending termination of plaintiffs unemployment benefits was nothing more than a good faith administrative decision based upon applicable law. At the hearing on motion for summary judgment, the plaintiff offered no counter affidavit or receivable evidence to substantiate his bare allegations of fraudulent misrepresentation on the part of defendants. It is settled that a plaintiff, when confronted with a motion for summary judgment, may not rest on the mere allegations of his pleadings but must show by affidavit or other receivable evidence that there is a genuine issue of material fact. If a plaintiff does not respond and summary judgment is appropriate, it shall be rendered against him. Welch v. Daigrepont, 378 So.2d 607 (La.App. 3rd Cir.1979). In the instant case, our careful review of the record reveals no genuine issue of fact material to a determination that defendants are entitled to judgment as a matter of law ordering the dismissal of plaintiff’s suit with prejudice.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Appellant is cast for all costs of this appeal.

AFFIRMED.


author: FORET, Judge.

text:
    Stephen B. HARRELL, Plaintiff-Appellant, v. The MILITARY DEPARTMENT, State of Louisiana (Army National Guard), Defendant-Appellee.
    No. 84-266.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Fontenot & Mitchell, John Clyde Fonte-not, Ville Platte, for defendant-relator.
    Boatner & Luke, R.H. Luke, Bunkie, for plaintiff-respondent.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

Plaintiff, Stephen B. Harrell, filed a worker’s compensation action against defendant, The Military Department, State of Louisiana (Army National Guard), seeking compensation for injuries he sustained while on a monthly drill assignment with the Louisiana National Guard. Defendant filed an exception of improper venue and exceptions of no cause and no right of action, all of which were overruled by the trial court. Defendant applied for, and this Court granted, writs to consider the trial court’s ruling. We affirm.

Our consideration of the trial court’s ruling presents us with two issues:

(1) Whether a parish, which is both the place where the accident occurred and the domicile of the claimant, is a place of proper venue to bring a workmen’s compensation action against the Military Department, State of Louisiana.
(2) Whether a member of the National Guard who is injured while on a regularly scheduled monthly drill assignment has a cause of action under Louisiana worker’s compensation laws.

FACTS

On November 7, 1980, plaintiff, Stephen B. Harrell, was injured in an automobile accident in Evangeline Parish. At the time of the accident, plaintiff was on weekend duty as a member of the Army National Guard. Plaintiff, a domiciliary of Evangeline Parish, filed suit in the Thirteenth Judicial District for the Parish of Evangeline, seeking worker’s compensation benefits from defendant, The Military Department, State of Louisiana. Defendant filed timely exceptions of improper venue, no cause of action, and no right of action. After a hearing in which no testimony was given, the trial íudge overruled all of defendant’s exceptions.

When the overruling of an exception is arguably incorrect, where reversal would terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigant dictate that the merits of an application for supervisory writs should be decided, in an attempt to avoid the waste of time and expense of a possible future trial on the merits. Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). Based on this principle of law, we granted writs in this matter to consider the trial court’s overruling of defendant’s exceptions.

IMPROPER VENUE

Defendant contends that the trial court erred in overruling its exception of improper venue. Defendant argues that the place of proper venue is East Baton Rouge Parish based on LSA-R.S. 23:1312.' Defendant’s argument overlooks the fact that R.S. 23:1312 was amended effective July 1, 1983. R.S. 23:1312 now reads, in pertinent part:

“A. Subject to R.S. 23:1310 through 1311, a suit against the state under this Chapter may be instituted in the Nineteenth Judicial District Court, in the district court of the domicile of the employee, or in the district court of the parish in which the injury occurred, and any suit against a public board, commission, or agency of the state by an employee entitled to bring suit under the provisions of this Chapter may be instituted in the district court of the domicile of the employee or in the district court of the parish in which the injury occurred.”

It is clear that under R.S. 23:1312 as amended, Evangeline Parish is the place of proper venue since it is both the place where the accident occurred and plaintiff’s domicile. The instant suit was filed on July 11, 1983, after the amendment to R.S. 23:1312 became effective. An amendment to a procedural law will be given retroactive application in the absence of language showing contrary intent. Fullilove v. U.S. Casualty Company of New York, 129 So.2d 816 (La.App. 2 Cir.1961), cert. denied, June 22, 1961 (no citation found). Accordingly, the applicable law was the statute as amended and the trial court properly overruled defendant’s exception of improper venue.

WORKER’S COMPENSATION

Defendant contends that a national guardsman on active duty during a regularly scheduled monthly drill is not covered by Louisiana’s Worker’s Compensation Law. Defendant argues that LSA-R.S. 23:1211 only makes Louisiana worker’s compensation laws applicable to guardsmen on active duty during a state of emergency declared by the governor. R.S. 23:1211 provides that:

“A. Every member of the national guard who is accidentally injured, or his dependents if he is accidentally killed, while on active duty during a state of emergency declared by the governor and for the duration of such emergency as declared by the governor, shall be compensated by the state in accordance with the worker’s compensation law, including but not limited to such medical, surgical and hospital services and medicines and such disability and death benefits as are authorized by said worker’s compensation law.
B. No compensation shall be paid by the state for injury or death occurring while in the service of the United States of America or while going to or returning from this service.
C. No compensation shall be paid unless the injury or death arose out of and in the course of the service. Before any claim is certified for payment, proof that the applicant is entitled to payment shall be made in accordance with regulations prescribed by the adjutant general. The amount payable as compensation may be commuted to a lump sum settlement by agreement of the parties. In computing the weekly benefit hereunder, either the weekly wages from the member’s principal civilian employment or his weekly military wages, whichever is larger, will be used. Otherwise, the provisions of the worker’s compensation law apply.
D.Except as provided in Subsection C hereof, the provisions of this section and of no other law shall govern the compensation benefits payable to members of the national guard.”

In Chapman v. Belden Corporation, 414 So.2d 1283 (La.App. 3 Cir.1982), reversed in part on other grounds, 428 So.2d 396 (La.1983), we rejected the view that the effect of R.S. 23:1211 was to limit the applicability of Louisiana’s worker’s compensation laws to guardsmen on active duty during a state of emergency declared by the governor. In Chapman, we found that a national guardsman involved in a weekend drill was covered by the Louisiana worker’s compensation laws. In reaching that decision, we concluded that R.S. 23:1211 was intended to allocate the liability for worker’s compensation benefits between the state and federal governments depending upon in whose service the member was acting at the time of injury, and that subsection (A), which deals with compensation for injuries sustained during a state of emergency, was not meant to limit state coverage but rather, to expand it to those situations where the governor had declared a state of emergency.

In his brief, defendant seeks to distinguish the present case from Chapman on the basis that while Chapman had received no compensation for his injuries from the federal government, this plaintiff has received such compensation. However, we find that the effect, if any, of the compensation which plaintiff has received from the federal government on his right to recover under Louisiana worker’s compensation laws is beyond the scope of our examination of this matter. The fact of plaintiffs having received compensation from the federal government was not pleaded as grounds for defendant’s exceptions. LSA-C.C.P. Art. 924 requires that all exceptions “... state with particularity the objections urged and the grounds thereof ...”. Furthermore, no evidence was introduced in the court below concerning any compensation defendant received or was receiving from the federal government. We cannot take cognizance of matters which do not appear in the record and are only brought before this Court by way .of parties’ briefs. Leger v. Delano Plantation, Inc., 350 So.2d 377 (La.App. 3 Cir.1977). Unable to reach the issue of compensation received by plaintiff from the federal government, we conclude that the trial court correctly overruled defendant’s exceptions of no right and no cause of action.

DECREE

For the foregoing reasons, the trial court’s rulings are affirmed. Accordingly, the writ previously granted by this Court is hereby recalled and the matter is remanded to the trial court for further proceedings.

Assessment of costs of this appeal as well as trial court costs shall await final disposition of this litigation.

WRIT RECALLED, MATTER REMANDED.

      . A 1983 amendment did not substantively change the statute, only substituting “worker’s compensation” for “workmen’s compensation”.


author: YELVERTON, Judge.

text:
    Inez Hungerford ROMERO, Plaintiff-Appellant, v. Ray Emile ROMERO, Defendant-Appellee.
    No. 83-915.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Porterfield & Simmons, John W. Porter-field, Jeanerette, for plaintiff-appellant.
    Cecelia A. Bonin, of Landry, Watkins & Bonin, New Iberia, for defendant-appellee.
    Before STOKER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

In the proceedings for the settlement of the community and partition of community property between Inez Hungerford Romero and Ray Emile Romero, arising upon termination of the matrimonial regime, the trial judge made two rulings which the former wife, by this appeal, contests. She claims first, that the court erred in rejecting her claim for reimbursement for certain mortgage payments on the community home after the divorce, and second, that the court erred in ordering a sale by licitation of two pieces of immovable property. We find that the trial judge was correct in the first ruling, and substantially so in the second; we will correct the second ruling with instructions on remand; in most respects, the judgment appealed from is affirmed.

During the marriage, the parties acquired a number of assets including a home in Iberia Parish, property in St. Martin Parish, and a business. In 1980 they separated, the husband sued for a divorce, and the wife petitioned asking for a settlement of the community property by partition by licitation. Before any further formal action was taken in either of these proceedings, the parties sold the business and the money from the sale was divided. The husband obtained a divorce in mid-1980.

The partition suit was heard in 1982. The trial court ruled that the real property, consisting of the family home and the lot in St. Martin Parish, could not be partitioned in kind, and he ordered that it be partitioned by private sale within 90 days of the judgment, which was signed in November 1982.' The judgment additionally ordered the parties to file a detailed statement of their claims for reimbursement, together with supporting data, within 15 days of the filing of that judgment. Appellant did not comply with this order; she failed to file a detailed statement of her claims for reimbursement and offered no supporting data.

In February 1983 the trial court ordered both parties to file a statement replying in detail to the respective claims for reimbursement, and also a statement as to the status of the sale of the former home. In May 1983, replying to the wife’s claim for reimbursement of the mortgage note payments, the husband filed a pleading urging that her claim should be denied because she failed to make proof of those payments. This was followed in June by the judgment denying the wife’s claim for reimbursement of the mortgage payments. The same judgment ordered the partition by licitation of the family home and the lot in St. Martin Parish due to the “unexplained failure of the parties to sell the immovable properties at private sale as ordered by this court in its order of November 15, 1982.” The wife’s appeal is from this judgment.

REIMBURSEMENT CLAIMS OF WIFE

Appellant’s first contention is that she should be reimbursed for the mortgage payments on the community home which she allegedly made to Iberia Savings & Loan Association from the date of the divorce (June 1980) until the mortgage note was paid off (August 1982) by the husband.

A former spouse is entitled to be reimbursed for mortgage payments made on the community home after a legal separation or divorce. Michael v. Michael, 415 So.2d 229 (La.App. 2nd Cir.1982); Kennedy v. Kennedy, 391 So.2d 1193 (La.App. 4th Cir.1980), writ denied 396 So.2d 883 (La.1981). However, in the present case we find that Mrs. Romero failed to prove that she made these payments. In her testimony she stated only that she was making mortgage payments in December 1980 in the amount of $284 a month, but that she no longer had that expense since her former husband paid off the mortgage note. She never testified that she paid the notes from the date of the divorce until her husband paid off the mortgage note. After the hearing the trial court ordered both parties to submit a detailed statement of their claims for reimbursement with supporting data. She failed to submit any statement or supporting data, such as can-celled checks.

Aside from her failure to submit the required evidence, either as supporting data to the statement demanded by the trial court, or by testimony at the hearing, that she made the monthly payments, there was evidence that for some portion of the disputed time she may not have made the payments, but that they were in fact made by others. The wife testified that she allowed her relatives to live in the house with her, and that she collected the sum of $350 a month for six months from her parents during their stay. From the record it additionally appears that her nephew had been living with her for quite some time. Although Mrs. Romero claimed she did not receive rent payments from him, there was evidence she claimed him as a dependent on her income tax return. The trial court may have considered these factors in denying the wife’s claims. The trial court was probably influenced in this finding of fact by the refusal of Mrs. Romero to support her claim for reimbursement with what should have been readily available data.

Under these facts we cannot say that the trial court erred in its denial of reimbursement of the alleged mortgage payments made by the wife. See Scott v. City of Alexandria, 446 So.2d 986 (La.App. 3rd Cir.1984) for an analogous situation where a plaintiff failed to prove his claim by failing to submit readily available evidence.

PARTITION BY LICITATION

Although she initially prayed for a partition by licitation, Mrs. Romero now contends that the trial court was wrong in ordering such a partition of the two community immovables. In our opinion, the trial court was right in ordering a partition by licitation of the more valuable real estate, the family home; wrong in including in the order the smaller piece of land, the value of which renders it subject to allocation.

LSA-R.S. 9:2801 establishes the procedure for the partitioning of community property. This new procedure was in effect at the time of this hearing, Jackson v. Jackson, 425 So.2d 379 (La.App. 3rd Cir.1982); Simon v. Simon, 421 So.2d 931 (La.App. 4th Cir.1982), writ denied 423 So.2d 1181 (La.1982).

It reads:

§ 2801. Partition of community property and settlement of claims arising from matrimonial regimes
When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising from the matrimonial regime, either spouse, upon termination of the matrimonial regime, may institute a proceeding, which shall be conducted in accordance with the following rules:
(1) Each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. Each party shall affirm under oath that the detailed descriptive list filed by that party contains all of the community assets and liabilities then known to that party. Amendments to the descriptive lists shall be permitted. No inventory shall be required. Upon motion of either party, the court shall set a time limit for the filing of each detailed descriptive list.
(2) Each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. Upon motion of either party, the court shall fix a time limit within which each party shall either traverse or concur. The trial of the traverses may be by summary procedure. At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.
(3) The court may appoint such experts pursuant to Articles 192 and 373 of the Louisiana Code of Civil Procedure as it deems proper to assist the court in the settlement of the community and partition of community property, including the classification of assets as community or separate, the appraisal of community assets, the settlement of the claims of the parties, and the allocation of assets and liabilities to the parties.
(4) The court shall then partition the community in accordance with the following rules:
(a)The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c). The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.
(d) In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.
(e) Only in the event that an asset cannot be allocated to a party, assigned by the drawing of lots, or sold at private sale, shall the court order a partition thereof by licitation. The court may fix the minimum bids and other terms and conditions upon which the property is offered at public sale. In the event of a partition by licitation, the court shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale.

At the time of the hearing on the rule for partition by licitation, the community’s remaining total assets consisted of $13,856 worth of movable property and $129,000 worth of immovable property. The business had already been sold and the money from the sale divided, a voluntary partition which both parties confirmed at the trial. The inventory showed the immovable property in St. Martin Parish was worth $9,000 and the community home in Iberia Parish was valued at $120,000. The testimony revealed that neither of these properties individually could be partitioned in kind. Based upon this evidence the trial court ordered a private sale.

Considering the value of the community home as compared to the total assets of the community at the time of the hearing, it is clear that the allocation of this asset to one of the parties would be inequitable, and since it could not be partitioned in kind, the trial court was correct in ordering the private sale. The court adequately stated its reasons for ordering the private sale.

Later, when the trial court ordered the partition by licitation of the home, he stated clearly that such procedure was necessary due to the unexplained failure of the property to be sold at private sale. For these reasons, we find that the trial court adequately complied with the provisions of LSA-R.S. 9:2801 in ordering the partition by licitation of the community home.

However, the property in St. Martin Parish was incorrectly ordered partitioned by licitation. This property, valued at only $9,000 compared to the community’s total assets of over $142,000, can be allocated to one of the parties, and if the allocation results in an unequal net distribution, the trial court can order the payment of an equalizing sum of money in accordance with LSA-R.S. 9:2801.

Accordingly, the judgment of the trial court denying the wife’s claim for reimbursement, and the judgment of the trial court ordering the community home to be partitioned by licitation, are affirmed. That portion of the judgment which ordered the property in St. Martin Parish to be partitioned by licitation is set aside. The case is remanded to the district court for further and final proceedings consistent with this opinion. The costs of this appeal are to be shared equally between the parties.

AMENDED AND AS AMENDED, AFFIRMED.


author: HALL, Judge.

text:
    Marion Lee Powers PEYTON, Plaintiff-Appellee, v. Stephan Michael PEYTON, Defendant-Appellant.
    No. 16433-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      C. Joseph Roberts, III, West Monroe, for defendant-appellant.
    Sadye K. Bernheim, Monroe, for plaintiff-appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   HALL, Judge.

In this case the district court rendered a joint custody award providing that the parents of a four-year-old girl would share her custody in alternating three-month intervals. The father appeals, questioning whether the award was correct in light of the court’s finding that the mother was engaged in discreet lesbian activities. The father also questions several other aspects of the decision, including the propriety of the three-month custody intervals, and the correctness of a statement of the court concerning the credibility of witnesses. We affirm the judgment of the district court.

The Factual Setting

Stephan and Lee Peyton, father and mother of the minor child, physically separated in April of 1982, although at the time of trial they resided across the street from each other. The child, Alexa, initially lived with her mother. On April 30, 1982, while the child was visiting with her father, the father filed for legal separation and for custody. He obtained temporary custody by an ex parte order. After one year of living separate and apart, the mother filed for divorce on that ground, and sought joint custody of her daughter. The father reconvened, seeking divorce on the grounds of adultery, and seeking sole custody of the child. The basis of the father’s action was the alleged homosexual activity of the mother. The mother then amended her pleadings, seeking sole custody on the basis of an alleged adulterous relationship of the father.

At trial, Mr. Peyton admitted to a sexual relationship with his girlfriend, Robin Daniels, but denied allegations that Alexa was ever present when sexual relations occurred. On the other hand, Mrs. Peyton denied allegations that she was homosexual, and denied that she had sexual relations with her roommate, Jennifer Greenwood. Mrs. Peyton and Ms. Greenwood shared a three-bedroom house, and initially shared a bed before another bed was acquired. While both women denied ever sleeping in the nude during this time, Patricia P. Meri-wether, a licensed psychiatric social worker who interviewed Alexa prior to trial, testified that Alexa related an incident in which she was allowed in bed with her mother and Ms. Greenwood when both women were nude. In Mrs. Meriwether’s opinion, a child’s sleeping with a nude parent was not a good practice because of possible over stimulation of the child. She further testified that despite Alexa’s experiencing the trauma of her parents’ separation, Alexa showed no significant signs of disturbance, and thus was not recommended for therapy. Mrs. Meriwether found that Alexa had a good relationship with both parents, although she saw the environment at her mother’s home as more permissive. This testimony was based on one two-hour interview conducted a week before trial. Other testimony at trial concerned the quality of the parenting provided by the parties, and the nature of the sexual relationships allegedly engaged in by the parties.

The trial judge found that while the mother was in all probability engaged in discreet lesbian activities, the father was less than candid concerning his extramarital relationship, generally impairing the father’s credibility as well as that of his witnesses. Noting the applicability of La. Civil Code Article 146 as amended by Act 695 of 1983, the judge found that all eleven factors enumerated in Article 146 pointed toward an award of joint custody. Furthermore; he expressed his feeling that the active participation of both parents in the daughter’s life was essential to her development, security, and sense of well-being. Thus, judgment was rendered granting the parents primary physical custody of Alexa in alternating three-month periods. During each period the parent not having primary custody was to have visitation rights on alternate weekends. The judge noted, however, that his plan would need modification when Alexa reached school age. The judgment was signed on December 21, 1983, and this appeal followed on January 4, 1984. Later that same month the Pey-tons’ divorce became final.

Issues Presented

Appellant contends the three-month custody intervals ordered by the Court are disruptive and not in the child’s best interest. We disagree. Considering that the mother and father live across the street from each other, and that the child enjoys her own furnished room in each residence, moves between households could hardly be less disruptive. Any disruptive effect asso- - ciated with the different environment found in each parent’s home must be balanced against the beneficial effect of decreasing the spans of time during which the child has contact primarily with only one parent, especially when dealing with such a young child in whom changes and development are occurring at such a rapid rate. We further note that a frequent and continuing relationship with both parents is the primary aim of the joint custody provisions of Article 146. Peters v. Peters, 449 So.2d 1372, (La.App.2d Cir.1984). Thus, we find no abuse of the trial court’s discretion in ordering three-month intervals of primary custody, and we refuse to interfere with the court’s plan. “Appellate courts should be very reluctant to interfere with plans ordered by trial courts in the exercise of their discretion after careful consideration, and should do so only where a clear abuse of discretion is demonstrated.” Peters, supra.

Appellant also contends the trial court erred in stating that appellant’s lack of candidness concerning his extramarital relationship generally impaired his credibility and that of his witnesses. Appellant presumes the court did not believe his testimony or that of Ms. Daniels when they denied their extramarital affair took place in Alexa’s presence. We find the court’s statement concerning impaired credibility, taken in context, did not extend beyond the matter of whether the child was present in the father’s residence when the father and Ms. Daniels spent the night together. As will be discussed later, we also find that even had the trial court believed testimony that the child was not present, an order of joint custody would not have been improper. Therefore, further discussion of appellant’s contention is not essential to this custody determination. We note, however, that one important factor underlying the trial court’s broad discretion in child custody cases is the trial court’s better opportunity to evaluate witnesses. Sherman v. Sherman, 441 So.2d 469 (La.App.2d Cir.1983). A logical inference is that the court’s discretion is particularly great in evaluating witness credibility. Certainly we cannot say that this discretion was abused regarding the credibility of appellant and Ms. Daniels, when the record contains the testimony of several witnesses that in April of 1983 Alexa, her father, and Ms. Daniels all spent the night at the father’s residence.

The remainder of appellant’s contentions concern the trial court’s application of Article 146 to the facts of this case, especially in light of the court’s finding that the mother was engaged in discreet lesbian activities. Article 146 provides that custody shall be awarded according to the best interests of the child, and establishes a rebuttable presumption that joint custody is in the child’s best interest. Eleven factors are given for consideration when determining whether the presumption has been rebutted. As noted, the trial court found all eleven factors pointed toward an award of joint custody. Appellant concedes that several of those factors do not advance an argument for rebuttal of the presumption. In particular, appellant concedes that both parties love the child, and that the child loves both her parents; that both parties have the capacity and disposition to provide the child with food, clothing, medical care, and other material needs; that both parents apparently are in good physical health; that home, school, and community records have not really been established due to the child’s age; that the child has not been called upon to express a preference; and that the distance between the parties’ residences is not a factor for consideration. The eleventh factor of Article 146 can consist of any factor, not covered by the preceding ten, that the court considers relevant. We find no considerations in this case not covered adequately by the first ten factors. Therefore, elimination of the last factor of Article 146 in addition to elimination of those conceded not applicable by appellant, leaves approximately half of the enumerated factors available for rebutting the presumption favoring joint custody.

Of the remaining factors called into question by appellant, moral fitness is clearly the most relevant. While appellant argues that the mother’s alleged homosexuality casts doubt on her ability and willingness to provide proper guidance, and to provide a stable environment resembling a family unit, these arguments clearly stem from an argument against the mother’s moral fitness. The factors listed in Article 147 do not stand as isolated considerations with no potential for overlap. Rather, the unique facts of each custody case will often present a circumstance touching upon an intersectional area, and thus calling more than one factor into consideration. In the present case, all appellant’s remaining arguments may be resolved by deciding the question of the parties’ moral fitness.

Neither parent in this case has demonstrated high moral standards. The father admitted an adulterous relationship with his girlfriend, while the mother was found to be engaged in discreet lesbian activities. In his custody award, the trial judge did not see fit to favor one form of adultery over another; we do not find his decision erroneous.

A parent’s lack of moral fitness can rebut the presumption favoring joint custody when the evidence shows that the parent’s moral values and behavior are detrimental to the child’s interests. In Nale v. Nale, 409 So.2d 1299 (La.App.2d Cir.1982), this court recognized several factors involved in determining whether a parent’s sexual lifestyle was damaging to the child:

1. Is the child aware of the illicit relationship?
2. Has sex play occurred in the presence of the child?
3. Was the sexual misconduct notorious, bringing embarrassment to the child?
4. What effect has this conduct had on the family home life?

Here, the trial judge found the mother’s activities to be discreet, and we are satisfied that the father’s activities were, for the most part, discreet as well. The parents’ shielding of the child from their illicit activities and the child’s tender years have helped prevent an awareness of her parents’ relationships. Certainly, the record does not indicate that sex play ever occurred in the child’s presence. Similarly, the parents’ discretion apparently has prevented their sexual misconduct from becoming notorious. Finally, the parents’ conduct has not had any apparent adverse effect on the family home life in either of their homes. Thus, the four factors listed above do not indicate the moral unfitness of either parent to have custody of the child. An evaluation of the moral fitness of the parties does not indicate an award of joint custody to be against the child’s best interests.

In making the above determination, we are not unaware of the seriousness of the implication of Ms. Meriwether’s testimony, despite the fact that she was testifying to an event as related by a very young child during a single interview initiated at the appellant’s request. The event in question, however, appears to be an isolated one, and the mother and Ms. Greenwood did not continue to share a bed. Furthermore, although the mother and Ms. Greenwood are still roommates, the presumptions society makes when an unmarried man and woman share living quarters do not apply in situations where members of the same sex are roommates. While the child may suffer from the opprobrium of society when living in the same house with her mother and the mother’s homosexual lover, such is not the case unless the relationship is notorious. Such does not appear to be the case, at least presently, in the situation at hand.

Finally, we note that each child custody case “deals with a peculiar parental relationship which will exist prospectively, and then only as long as the circumstances in the relationship do not change in the future”. Tabor v. Tabor, 421 So.2d 1185 (La.App.2d Cir.1982). Here, the trial court has recognized the need for a change in the existing custody plan when Alexa reaches school age. At the time of this opinion, Alexa is five years old, and her enrollment in school is fast approaching. When the trial court fashions a new plan, the judge will be able to evaluate how well the child has adapted to the original plan, since both parents have already gone through at least one period of primary custody. The judge will also have a chance to further evaluate the relationships of the parents, and any possible detrimental effects the relationships may have on Alexa. These upcoming chances for further evaluation not only illustrate the differences in trial and appellate court functions, but also illustrate another reason for the great deference that should be given to the trial court’s decisions in custody cases.

In accordance with the reasons given above, the award of joint custody as ordered by the trial court is affirmed at appellant’s cost.

Affirmed.


author: SULLIVAN, Justice, for the Court:

text:
    Leon SMITH v. STATE of Mississippi.
    No. 54356.
    Supreme Court of Mississippi.
    Sept. 12, 1984.

      Percy S. Stanfield, Jr., Merrida P. Cox-well, Jr., Stanfield, Carmody, Coxwell & Creel, Jackson, for appellant.

      Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   I.

SULLIVAN, Justice, for the Court:

Leon Smith was convicted in the Circuit Court of the First Judicial District of Harrison County, Mississippi, of carrying a concealed weapon under Mississippi Code Annotated § 97-37-1 (1972), and sentenced to life imprisonment without parole under § 99-19-83 (Supp.1983). Smith assigns as error the trial court’s actions in,

(1) Failing to quash the indictment on the ground of double jeopardy;

(2) Failing to grant a mistrial upon improper and prejudicial cross-examination by the district attorney;

(3) Refusing the defendant’s instructions on circumstantial evidence;

(4) Refusing to grant a peremptory instruction on the ground of insufficient evidence.

For the reasons set out below, we find no merit in Smith’s claim that he was subjected to double jeopardy, but conclude that the prosecutor’s misconduct in this case requires reversal of the conviction and remand for a new trial.

II.

On August 30, 1979, the police, acting on a tip, arrested Smith at an apartment complex near Gulfport, Mississippi. Smith’s car was searched, and in the trunk police found a large quantity of tools and a .38 caliber revolver. Smith was subsequently indicted separately for possession of burglary tools and carrying a concealed weapon.

At the first trial, on the burglary tools charge, the trial court ordered that no mention be made of the weapon. The state put on its proof that the automobile belonged to the defendant, and that the tools were found in the trunk of the defendant’s car. The state’s investigators testified that the tools were identical to those frequently used in burglaries, but admitted that the tools were also commonly used in legitimate trades. Smith’s defense was based on testimony by two occupants of the apartment, Susan Haskins and Christine Spears, that the tools belonged to one Bobby Scarborough, who, according to Spears, had placed them in the trunk of Smith’s car. In closing argument, Smith’s attorney contended that the tools found in Smith’s trunk could be used legitimately and that the state must prove that they were adapted or designed for breaking and entering. Defense counsel principally relied, however, on Spears’ testimony that Bobby Scarborough owned the tools and put them in the trunk of Smith’s car hours prior to his arrest. The jury found Smith not guilty of possession of burglary tools.

In the second trial on the concealed weapons charge the trial court entered an order excluding any evidence of the burglary tools. The state offered substantially the same testimony as in the first trial regarding Smith’s ownership of the vehicle and the discovery of the weapon in the trunk of the car. Smith offered the same defense in the form of Haskins’ and Spears’ testimony that the weapon belonged to Bobby Scarborough. Spears further testified that Bobby had placed the weapon in the trunk of Smith’s car in her presence.

On cross-examination, the district attorney brought out the fact that both Spears and Haskins were temporarily living rent-free in an apartment leased by one of defense counsel’s clients. Haskins explained the reason for her temporary move to Jackson was her fear that the prosecutor would harass her if she returned to testify:

Q Is the free rent in Jackson contingent upon you' coming down here and testifying?
A No, sir.
Q In other words, they just, you testified May the 13th and you sounded so good they just wanted to give you a nice apartment in Jackson?
A No, sir.
Q You just suddenly decided you wanted a change of scenery; you wanted to move to Jackson?
A No, sir. I went to Jackson because I figured that I would be harassed by you for testifying.
Q You figured I was going to harass you?
A Yes, sir.
Q I see.
A That’s the reason I went to Jackson.
Q Well, let me ask you this, have you been selling your body up there like you did on the Coast?
A I have never sold my body up there or on the Coast.
.Q Are you telling me that you have never sold your body?
A Yes, sir, I’m telling you that.
BY MR. STANFIELD: Now, Your Honor, unless the District Attorney can prove it, we ask the Court to, uh, uh, we object to these remarks.
BY THE COURT: The Jury will disregard the District Attorney’s remarks. Everybody promise me you’ll do that? All right.
BY MR. STANFIELD: Your Honor, unless the District Attorney can prove what his mouth has just shot off, we ask the Court to declare a mistrial.
BY THE COURT: Overruled. The Jury has been instructed to disregard the remark. Everybody, that will be not a part of the evidence in the ease. All right.

Spears also stated that she had been told the district attorney would arrest and imprison her if she returned to testify. Because of this accusation, the trial court allowed the district attorney to ask Spears if she had any knowledge of outstanding warrants against her, but twice admonished the prosecutor not to go into details of any alleged crime. The following exchange then occurred:

Q Didn’t you know that there was some warrants for you, based on writing some checks?
A No, I didn’t. I don’t see how there could be any warrants when I ain’t wrote no checks.
Q You ain’t wrote no checks?
A No.
Q Well, didn’t you run out of the Hancock Bank, at the Long Beach Branch, when you tried to cash a check
A (Interposing) No, sir, I did not.
Q May I finish?
A (Inaudible.)
BY MR. STANFIELD: Now, Your Honor, ...
BY THE COURT: (Interposing) All right, I sustain it.
BY MR. STANFIELD: ... he’s violating your Order.
BY THE COURT: I’ve sustained the objection.
BY MR. STANFIELD: We move for the Court to declare a mistrial.
BY THE COURT: Overruled.

The district attorney’s next attempt at discrediting Ms. Spears focused on the fact that she had not mentioned the weapon in her testimony at the first trial on the burglary tools charge:

And then you went outside and you saw him taking this pistol, saw him wrapping this pistol?
A A pistol similar to that ... (inaudible).
Q Now, do you ever remember testifying to that before?
A No, sir.
Q What did you say last time?
BY MR. STANFIELD: Your Honor, we object now, under Court Order, under the Court’s Order, may we approach the Bench?
BY MR. NECAISE: Judge, I have a right to go into a prior inconsistent statement.
(Off-the-record discussion at the Bench between Court and Counsel.)
BY THE COURT: Objection overruled.
Q But, you never mentioned anything about a pistol at the last trial, did you?
A Because I was told that I wasn’t supposed to.
Q You was told not to mention anything .
A (Interposing) Right.
Q .about, about a gun?
A That’s right.
Q But, you knew all about the gun? A Yes, sir.

The defense counsel was prevented from bringing out the fact that Spears was required by the trial court’s ruling in the burglary tools trial not to mention the weapon:

Q Who told you not to mention or what to mention, when you testified last, pertaining to a gun?
BY MR. NECAISE: We’re going to object to that, if the Court please.
A Nobody told me what to mention. I was just told to tell the truth, but that I shouldn’t say anything about the gun.
Q Who told you that?
A You did.
BY MR. NECAISE: Object to that, if the Court please.
BY THE COURT: Sustained.
BY MR. NECAISE: And ask the Court to instruct the Jury to disregard that.
BY THE COURT: Overruled.
Q Did you give me a statement in writing, uh, on May the 8th of 1980, in Gulfport, Mississippi?
A Yes, sir, I did.
Q And in that statement did you tell me about a gun?
BY MR. NECAISE: Object to that, if the Court, Judge, he’s trying to
A (Interposing) Yes, I did.
BY MR. NECAISE: .bolster his own witness. He’s trying to bolster his own, his own witness.
BY THE COURT: Sustained.

In the state’s rebuttal case, the district attorney asked Ollie Scarborough, father of Bobby Scarborough, the following question:

Q Mr. Scarborough, I’m not paying your, your rent out there at your house, am I?
BY MR. STANFIELD: Your Honor, we object to that.
BY THE COURT: Sustained.
A I wish you was.
BY MR. STANFIELD: We object to that.
BY THE COURT: Sustained.
A And my utilities, too.
BY MR. STANFIELD: We object to that.
BY THE COURT: I sustain the objection.
BY MR. STANFIELD: We move for a mistrial.
BY THE COURT: Overruled. And I sustain the objection.

Also, in questioning Warren Scarborough, Bobby’s brother, regarding the details of his prior conviction, an objection was made and sustained. The prosecutor then said:

BY MR. NECAISE: I’m not going to get him an apartment.
Q Now, .
BY MR. STANFIELD: (Interposing) Now, Your Honor, we object....
BY THE COURT: (Interposing) Sustained.
BY MR. STANFIELD: ... to his play to the jury and move for a mistrial.
BY THE COURT: Overruled.

Finally, the district attorney asked Warren, who was incarcerated at the time:

Q I haven’t given you an apartment, have I and found, found you a job, have I?
BY MR. STANFIELD: Objection, Your Honor, if the Court please.
BY THE COURT: Sustained.
BY MR. STANFIELD: And move for a mistrial.
BY THE COURT: Overruled.

The jury found Smith guilty of carrying a concealed weapon and the trial court sentenced him to life imprisonment without parole.

III.

DOUBLE JEOPARDY

Appellant’s double jeopardy claim, if valid, would void ab initio his second trial and conviction for carrying a concealed weapon. The issue is controlled by this Court’s recent decision in Sanders v. State, 429 So.2d 245 (Miss.1983). In Sanders, charges of rape and burglary were brought against the defendant arising from an incident where someone broke into a residence and raped a woman. Sanders’ defense was that Willie Earl Scott, also in the vicinity, was the true culprit. Sanders was found not guilty in the rape trial but was convicted in the subsequent burglary trial. This Court applied the “rational jury” inquiry formulated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970):

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires the court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.
397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76.

This Court examined what was presented and argued to the jury and concluded that the only rational basis for the jury’s verdict was that it believed Sanders’ defense that Scott was the man who broke into the house and raped the woman. Id. at 248. Defense counsel, in his motion for directed verdict, also urged that there was no proof of penetration; this Court declined, however, to consider that this issue influenced the jury because, (1) the lack of penetration argument was not presented to the jury, and (2) the evidence before the jury proved beyond a reasonable doubt that the victim had been “penetrated”. Id. at 246, note 1.

The double jeopardy aspect of Sanders’ second trial was also underscored by the fact that at the rape trial the state offered substantial evidence to show that he broke and entered into the victim’s residence. Although admissible as part of the res gestae, this evidence placed him in substantial jeopardy as to the elements of burglary. Since he was acquitted in the rape trial, the double jeopardy clause barred the state from prosecuting him a second time for the same conduct. Id. at 251.

Applying this analysis to the case at bar, this Court must determine whether a rational jury could have grounded its verdict of not guilty in the burglary tools trial upon an issue other than the theory that Bobby Scarborough was responsible for placing the items in appellant’s trunk.

The cross-examination by counsel for appellant of investigators Ladner and Price reveals an effort to convince the jury that the alleged burglary tools were in fact ordinary, everyday tools used frequently in legitimate trades. Investigator Ladner was asked at length whether there was anything unusual about the set of tools found in appellant’s trunk that distinguished it from the contents of a general tool box. Investigator Price admitted that many of the tools can be used in legitimate businesses, and that a common coat hanger or credit card could be used as a burglary tool.

Counsel for appellant also pointed out the legitimate use of the alleged burglary tools in his closing argument to the jury, where he stated that he was going to destroy every tool he had at home because he did not want to be prosecuted for possession of burglary tools. He pointed out that the investigators testified that the tools could be used legitimately, and emphasized that the jury must find that there was intent to use the tools for breaking and entering in order to convict.

It appears that appellant advanced an alternate argument which, unlike Sanders, was put before the jury in cross-examination and closing argument. Therefore, the jury could have rationally grounded its verdict of not guilty on the theory that the appellant possessed the tools with the intent to use them legitimately, and not in the commission of a burglary.

Ashe v. Swenson requires that for the appellant’s acquittal in the first trial to bar the state on double jeopardy grounds from proceeding with the second trial, the single rationally conceivable issue in dispute before the jury must be whether or not the items found in the trunk of appellant’s car belonged to him. On the one hand, appellant maintained throughout the trial that he did not own the tools and argued that they belonged to Bobby Scarborough, who placed them in the trunk. On the other hand, counsel for appellant attempted to show that he was an electrician and that the tools could have been legitimately used in his trade. The only indication as to appellant’s trade was investigator Ladner’s admission that he had heard that appellant was an electrician. When counsel for appellant attempted to raise this fact in closing argument, objection was made and sustained that this was unsupported by an evidence. Counsel for appellant also emphasized that since the alleged burglary tools had legitimate ordinary uses, the jury must find that the appellant intended to use the tools to commit burglary.

From the foregoing discussion, it appears that the jury could rationally have grounded its verdict of not guilty in the burglary tools trial on a premise other than that the items found in appellant’s trunk did not belong to him, but to Bobby Scarborough. Based on the investigator’s admissions, the jury reasonably could have concluded that the tools found in Smith’s trunk were ordinarily used in legitimate businesses and that the state had failed to prove the intent to use them in the commission of a burglary. Viewed in this manner, appellant’s acquittal in the burglary tools trial would not bar a subsequent prosecution for carrying a concealed weapon, since the jury’s verdict of not guilty could have just as rationally been based on failure to prove Smith’s intent to use the tools for burglaries as failure to prove that the items belonged to Smith.

When appellant’s double jeopardy claim is analyzed in the alternate formulation in Sanders v. State, it is also clear that there is no double jeopardy problem. In Sanders, we held that the fact that the state put on proof at the rape trial that defendant had broken and entered the house placed him in substantial jeopardy as to the burglary charge. Having successfully eluded this jeopardy by convincing the jury that he was not the man who committed the crime, Sanders could not be tried a second time for the same conduct. 429 So.2d at 251. In appellant’s first trial on the burglary tools charge, the motion in limine excluded any evidence of the weapon. Both charges of possession of burglary tools and carrying a concealed weapon contain the element of “possession”; however, the court order in the first trial insured no evidence would be introduced on the possession of the weapon. Therefore, appellant was not placed in jeopardy during the burglary tools trial on any element of the concealed weapon charge.

Based on the above discussion, it is apparent that Smith’s double jeopardy claim is without merit.

ÍV.

PROSECUTORIAL MISCONDUCT

Appellant’s assertion that a mistrial was required because of prosecutorial misconduct raises more serious questions. In addressing the question of whether the prosecutor’s conduct was so prejudicial as to deprive the appellant of a fair trial, this Court has thoroughly considered the record and discussed a number of errors, all but one of which were raised by appellant. See Tudor v. State, 299 So.2d 682 (Miss.1974). In cases where an appellant cites numerous instances of improper and prejudicial conduct by the prosecutor, this Court has not been constrained from considering the merits of the alleged prejudice by the fact that objections were made and sustained, or that no objections were made. Wood v. State, 257 So.2d 193, 200 (Miss.1972); Howell v. State, 411 So.2d 772, 776 (Miss.1982); Forrest v. State, 335 So.2d 900, 902 (Miss.1976). Each passage from the trial cited above will be discussed separately and then considered cumulatively.

The first instance cited by appellant is when the district attorney in cross-examining appellant’s witness, Susan Haskins, asked whether she was selling her body in Jackson like she did on the coast. She denied this generally. He asked if she had never sold her body, and she affirmed that she had not. Counsel for appellant requested a mistrial, unless the state offered proof of the charge. Instead, the trial court instructed the jury to disregard the district attorney’s remarks.

In Johns v. State, 255 So.2d 322 (Miss.1971), this Court held that the statute which provides that a conviction may be given in evidence to impeach the credibility of a witness, Mississippi Code § 13-1-13 (1972), must be strictly construed. Id. at 324. In Johns, this Court held that a mistrial should have been granted when the prosecutor asked the defendant whether he had been charged with a crime, and then inferred, in the jury’s presence, that he had proof that the defendant had been convicted of crimes in three different states, when in fact he had no such proof. Id.

In Stewart v. State, 263 So.2d 754 (Miss.1972), this Court, citing Johns v. State, held that the state’s cross-examination of an important defense witness to the effect that every place he had worked seemed to have been burglarized was clearly erroneous where there was no record that he had even been accused of the burglaries to which insinuation was made. Id. at 758. This Court also relied on 98 C.J.S. Witnesses § 515, p. 423 (1957), which states:

Cross-examination into the character of a witness may not be in the form of attempts to discredit him by means of sneers and innuendo. Hence it is improper, under the pretense of affecting the credibility of a witness, to propound interrogatories without any attempt or pretense to establish the truthfulness of the matters suggested by such inquiry and thereby cast insinuations on the witness ....
Where the question propounded is clearly for the purpose of creating in the minds of the jury a prejudice against the witness it is properly excluded. So, where the only purpose of the question is to insult or humiliate the witness, and thereby prejudice the jury, cross-examination as to irrelevant matters, even though dealing with the character of the witness, is improper....

Id. at 757-758.

The district attorney’s remarks come squarely within the prohibition in Stewart v. State against insinuations of criminal conduct which are unsupported by any proof. This incident does not by itself constitute reversible error in view of the trial court’s admonition to disregard the prosecutor’s remarks, but it is error and may be considered with other such errors for its cumulative prejudice. Forrest v. State, supra.

The next incident of prosecutorial misconduct involves the district attorney’s impeachment of Spears because of her failure to mention the weapon in the first trial, when he knew that a court order barred her from doing so. It is elementary that a witness’s credibility may be attacked by showing that he has given testimony in a prior trial materially inconsistent with his present testimony. Dobbs-Maynard Co., Inc. v. Jumper, 388 So.2d 879 (Miss.1980). The failure of Spears to mention a material circumstance presently testified to, namely that Bobby Scarborough placed the gun in defendant’s car trunk, which it would have been natural to mention in the prior trial, renders the prior testimony sufficiently inconsistent. However, the prosecutor who is aware that the omission was the result of a court order in the prior trial cannot use the fact of that omission to impeach the witness in a second trial. Impeaching a witness’s credibility by an' omission in prior testimony is improper when the omission resulted from the witness’s abiding by a court order in limine. The prejudice to the appellant is substantial, in view of the fact that Spears, the sole eyewitness establishing appellant’s defense, was improperly impeached concerning the essential fact of appellant’s defense — whether or not someone else had put the weapon in appellant’s car trunk. Furthermore, the trial court erroneously sustained the prosecutor’s objection to the defense counsel’s attempt to rebut the alleged inconsistent statement by questioning Spears regarding her prior consistent statement that mentioned both the gun and tools. In Stampley v. State, 284 So.2d 305 (Miss.1973), we held that evidence of prior consistent statements is admissible when a witness’s credibility has been attacked by proof of prior inconsistent statements provided the witness either denies or, as here, admits the statement but explains it. Under these facts, the trial court erroneously concluded that admission of the prior consistent statement constituted bolstering testimony.

The next instance of alleged misconduct involves the district attorney’s questioning Spears about the details of a crime for which she was under indictment. The trial court permitted the prosecutor to question the witness regarding indictments against her, contrary to the general rule that a witness may not be cross-examined as to indictments pending against him, Barlow v. State, 233 So.2d 829 (Miss.1970), in order to explain Spears’ accusation that the prosecutor had threatened to .have her arrested if she returned to testify. The trial court admonished the prosecutor twice not to go into the details of any alleged crime. What then followed was a blatant disregard of the trial court’s admonition and a violation of the principle enunciated in Haralson v. State, 314 So.2d 722 (Miss.1975) that,

The witness may not be asked nor proof made of the details of an alleged crime said to have been committed by the witness sought to be impeached.

Id. at 724.

The last instance of prosecutorial misconduct alleged is that the district attorney repeatedly asked his witnesses in rebuttal whether they were being provided with a rent-free apartment. While these questions serve to show, albeit heavy-handedly, that the credibility of the state’s witnesses was not affected by any free lodging, the district attorney repeatedly returned to this line of questioning, despite the fact that the trial court had initially sustained defense counsel’s objections. See Wood v. State, 257 So.2d 193, 198 (Miss.1972).

In Wood v. State, supra, this Court was faced with a record of prosecu-torial misconduct similar in many respects to the case at bar. In Wood, the prosecutor asked the only defense eyewitness whether he had ever been in jail, and discredited other defense witnesses by repeated questions directed to their immorality. In the case at bar, as in Wood, the impeachment of Spears, the only defense eyewitness, was attempted by proof of criminal charges, not criminal convictions. Impeachment of Haskins, the defendant’s other eyewitness, was achieved by the prosecutor’s naked accusation that she habitually engaged in an immoral crime, prostitution. Both of these lines of questioning were improper, inflammatory, and prejudicial. Stewart v. State, supra, Tudor v. State, supra. The prosecutor’s apparent impeachment of Spears about an omission in her prior testimony caused by the trial court’s ruling was likewise improper. The fact that Spears was the only defense witness to state that Bobby Scarborough had placed the weapon in appellant’s car made this improperly elicited inconsistency about the weapon materially prejudicial to the defendant’s case. In assessing the cumulative impact of the prosecutor’s errors, we quote from Tudor v. State, where the Court, speaking through Justice Walker, stated:

Appellant’s counsel failed to object to some of the above matters, objected to others with the objection being sustained, and in some instances the court instructed the jury to disregard the testimony. In other instances, the objection was overruled and the evidence admitted. Some of the errors were more serious than others and although some of them may not alone constitute reversible error, we have no hesitancy in finding that a combination of all of the above deprived the appellant of his due process right to a fair and impartial trial. Incompetent evidence, inflammatory in character, when presented to a jury carries with it a presumption that it was harmful. McDonald v. State, 285 So.2d 177 (Miss.1973). We will reverse a conviction unless it can be said with confidence that the inflammatory material had no harmful effect upon the jury. Coleman v. State, 198 Miss. 519, 23 So.2d 404 (1945). In McDonald, supra, Justice Broom speaking for the Court said:
It is error in the course of a trial where one is charged with a criminal offense for the state to inject extraneous and prejudicial matters and lay them before the jury. A combination of such instances may become fatal error and ground for reversal even though the court sustains objections to such questions_ One of the ingredients of a fair and impartial trial is that an accused person should be tried upon the merits of the case. Expressing it another way, the question of guilt or innocence of the crime charged should be received by the jury unhampered by any suggestion or insinuation of any former crime or misconduct that would prejudice jurors.... We commend vigorous prosecutions so long as they are conducted within the rules of evidence. Our adversary system of jurisprudence does not contemplate that attorneys for either side will be completely passive or indifferent during court trials. Yet, fundamental fairness requires that any defendant should not be subjected to testimony and tactics which are highly inflammatory and prejudicial as shown by the record before us. See Allison v. State, 274 So.2d 678 (Miss.1973); Kelly v. State, 278 So.2d 400 (Miss.1973); and Wood v. State, 257 So.2d 193 (Miss.1972). (285 So.2d at 180).

Tudor v. State, 299 So.2d 685-86.

We are of the opinion that the prosecutor subjected the appellant in this case to such irrelevant, inflammatory and prejudicial evidence as to deny the appellant his right to a fair and impartial trial. Therefore, we reverse the case and remand for a new trial before another jury to determine his guilt or innocence.

V.

Appellant’s remaining assignments of error regarding circumstantial evidence instructions and the sufficiency of evidence generally, are not discussed at length in view of our decision to reverse and remand for a new trial. In connection with appellant’s contention that he was entitled to circumstantial evidence instructions, suffice it to say that the eyewitness testimony of the police officers who found the revolver concealed in appellant’s car constitutes direct evidence that the illegal items were in his constructive possession. Curry v. State, 249 So.2d 414, 416 (Miss.1971); Cf. Henderson v. State, 453 So.2d 708 at 709-710 (Miss.1984).

VI.

In conclusion, we hold that appellant’s double jeopardy claim lacks merit but that the case must be reversed and remanded for a new trial in view of the numerous prejudicial instances of prosecutorial misconduct.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

PATTERSON, C.J., not participating.

      . See Williams v. State, 427 So.2d 100, 103 (Miss.1983) (jury presumed to follow court’s instruction to disregard hearsay).