author: KLEES, Judge.

text:
    STATE of Louisiana v. Elwin SENNETTE.
    No. KA-2242.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1984.
    On Rehearing Dec. 19, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Kathy Lee Torregano, E. Sue Bernie, Asst. Dist. Attys., New Orleans, for plaintiff-appellee State of La.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant Elwin Sennette.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   KLEES, Judge.

This is an appeal by Elwin Sennette from a conviction of possession of marijuana with intent to distribute in violation of LSA-R.S. 40:966. The single assignment of error for review is whether or not the trial court erred in allowing the state to introduce into evidence an inculpatory statement made by Sennette. We find that the trial court did not err in permitting the state to introduce the inculpatory statement. We affirm the conviction, vacate the sentence and remand the matter for resen-tencing for the reasons assigned.

FACTS

On January 6, 1984, Officers Dwight Deal and Earl Woolfolk of the New Orleans Police Department were conducting an undercover surveillance of the basketball court in the Iberville Housing Project at 1400 Conti Street in the City of New Orleans. The officers observed Sennette exchange a single, hand-rolled cigarette for money on three occasions. Following the last transaction, the buyer lit the cigarette and began to inhale it. The officers believed that this cigarette contained marijuana. At this same time, a radio call of a suspicious person in the 1400 block of Conti was broadcast over the police radio. Fearing that the increased police activity in response to this call would scare Sennette, the officers approached him. Sennette dropped the bag in his hand, which was retrieved by the officers. When it was found to contain marijuana cigarettes, Sen-nette was placed under arrest.

After being advised of his rights, Sen-nette was transported to the police station, then to Central Lockup. Both officers testified that Sennette, without inducement, threats or promises and not in response to interrogation, stated:

“Sure, man, I’m dealing joints, but I done changed a lot. You all ought to give me a break. I’ve changed a lot from what I used to do. You ought to give me a break”.

Sennette testified at trial and denied possessing or selling the marijuana. Sennette claims that he was merely standing in the basketball court and the bag of marijuana was four or five feet away from him. He also stated that he was not advised of his rights when arrested and he denied making any inculpatory statement.

Sennette was charged by bill of information on January 18, 1984, with possession with intent to distribute marijuana, a violation of LSA-R.S. 40:966. Sennette pled not guilty at his arraignment on January 20, 1984. Following a one-day trial on March 13, 1984, Sennette was found guilty as charged by a twelve member jury. On March 16, 1984, Sennette pled guilty to the multiple bill and was sentenced to serve six years with the Department of Corrections. ERRORS PATENT

A review of the record for errors patent reveals that there are none. However, the trial court did not impose a fine as mandated by the penalty provisions of LSA-R.S. 40:966(B)(2). According to State v. Jackson, 452 So.2d 682 (La.1984), any error favorable to the defendant is not an error patent, discoverable by an inspection of the pleadings. As this issue was not raised on appeal we do not consider this error to be an “error patent” correctable by this court.

SUFFICIENCY OF EVIDENCE

Sennette was charged and convicted of possession with intent to distribute marijuana. Evidence presented at trial established that Sennette on three occasions, sold hand-rolled marijuana cigarettes to persons in the 1400 block of Conti Street. A paper bag containing marijuana cigarettes was dropped by him. When arrested, Sennette had twenty one-dollar bills in his pocket, and each marijuana cigarette sold for one dollar.

The standard for determining the sufficiency of evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). Here the evidence is sufficient to support Sen-nette’s conviction. State v. Trahan, 425 So.2d 1222 (La.1982).

ASSIGNMENT OF ERROR

By Sennette’s single assignment of error, he contends that the trial court erred in allowing the state to introduce into evidence his inculpatory statement made to Officers Woolfolk and Deal. Sennette specifically argues that LSA-C.Cr.P. Art. 768 prohibits the introduction of a defendant’s confession or inculpatory statement in evidence, if the state fails to advise the defendant in writing, prior to beginning of the State’s opening statement. This article, as amended, provides:

“Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so, a confession or inculpatory statement shall not be admissible in evidence.”

The record reflects that the defense was provided with discovery prior to trial. In pretrial discovery filed on January 23, 1984, Sennette filed requests for discovery and specifically requested information available under LSA-C.Cr.P. Article 716. LSA-C.Cr.P. Art. 716(B) provides:

B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession of statement was made.

On February 13, 1984, the state filed its answers to Request for Discovery and specifically informed the defendant that an inculpatory statement or confession was made at approximately 2:40 p.m., in the police car enroute to Central Lockup, to Officers Woolf oik and Deal.

Even though the state sought to introduce an oral inculpatory statement but did not give notice of its intent, under LSA-C. Cr.P. Article 768, until after it had completed its opening statement, the statute was adequately complied with before trial. State v. Guiden, 399 So.2d 194 (La.1981), certiorari denied 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982).

Therefore, Sennette had notice of such inculpatory statement and that it was intended for use at trial by the District Attorney. The filing of the written “768 Notice” after the opening statement by the state was harmless error and not prejudicial to Sennette. State v. Quimby, 419 So.2d 951 (La.1982).

Applying the provisions of LSA-C.Cr.P. Art. 768, as amended, to the instant case, there is no error in allowing the inculpatory statement into evidence.

For the reasons assigned, the conviction of Elwin Sennette is affirmed. The sentence is vacated and the matter remanded to the trial court for resentencing in accordance with the law.

AFFIRMED IN PART

SENTENCE VACATED:

REMANDED FOR RESENTENCING.

ON REHEARING GRANTED

Ex proprio motu we grant rehearing. In our original opinion we stated that the failure on the part of the trial judge to impose a fine as mandated by the penalty provisions of LSA-R.S. 40:966(B)(2) was “an error patent” and not correctible by this court. Despite our conclusion, we remanded this matter to the trial court for resen-tencing by that court.

Upon reconsideration and in line with the pronouncements of the Louisiana Supreme Court in State v. Jackson, 452 So.2d 682 (La.1984), see also State v. Robertson, 459 So.2d 581 (La.App.1984) we now set aside that part of the decree which remands the matter to the trial court for resentencing.

Accordingly, the original decree rendered by this court on December 12, 1984 is rescinded, set aside and recast as follows:

For the reasons assigned, the conviction and sentence of Elwin Sennette is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, Judge. REDMANN, Chief Judge,

license: Public Domain

text:
    Hillary TURNER and Bernard Turner v. DELTA BANK AND TRUST CO., et al.
    No. CA-2069.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1984.
    Writ Denied Feb. 8, 1985.

      Dwight Doskey, Craft & Doskey, New Orleans, for plaintiff-appellant.
    Byron M. UnKauf, New Orleans, for defendant-appellee.
    Dominick Scandurro, Jr., Bubrig & Scan-durro, Buras, for defendant-appellee Delta Bank and Trust Co., R.C. Ansardi and Annette O’Quinn.
    Before REDMANN, WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

The late Bernard Turner and his son, Hillary Turner, filed suit against Delta Bank and Trust Company (Delta Bank) and two bank employees, alleging that the bank conspired with the late Ben Turner and his wife Bertha, to defraud or deprive plaintiffs of money deposited into a savings account. Delta Bank answered, denying all allegations and filed a third-party demand against Ben and Bertha Turner. At trial, plaintiffs’ demands were dismissed. The court found that plaintiff failed to prove the fraudulent activity alleged in the petition and found no liability on the part of Delta Bank. Additionally, the court found that the transactions in question constituted a donation inter vivos from Bernard Turner to Benjamin Turner. We affirm.

The facts of this case are simple. On July 17, 1978, savings account No. 24939 was opened in the name of Bernard Turner at the Delta Bank with the initial deposit of $300.00. Both Bernard and his son Hillary signed the original signature card authorizing either to withdraw funds from the account. Subsequently, on August 1, 1979, Bernard Turner instructed an employee of the Delta Bank to remove Hillary Turner’s name from the account and add the name of Ben Turner. Both Ben and Bernard signed the signature card. On that same day, Bernard Turner instructed Delta Bank to have funds transferred from accounts at various financial institutions to the Delta Bank. These funds amounted to $5,578.28, half of which were deposited into the savings account, the other half of the transferred amount was deposited into the checking account of Ben and Bertha Turner. The only other deposit into the savings account was $1,750.00 for an oil and gas lease. After August 1, however, several withdrawals were made by Ben Turner, resulting in a balance of approximately $540.00 at the time of trial.

On appeal, plaintiff argued that the trial court erred in ruling that there was no liability on the part of Delta Bank; that the trial court erred in ruling that Bertha and the estate of Ben Turner were not liable; and that the transaction between Bernard and Ben Turner was a donation inter vivos.

In the original petition, plaintiff alleges negligence on the part of Delta Bank and fraudulent activity on the part of the Bank, two of its employees, Ray Ansardi and Annette O’Quinn, and Ben and Bertha Turner. Plaintiff contends that the trial court erred in relieving these parties from liability. We disagree. The documentary evidence presented at trial does nothing to prove the alleged fraudulent acts.

Testimony indicates that Annette O’Quinn and Ray Ansardi had nothing to do with any of the transactions involving the Turner savings account and that neither of these defendants had any contact with Hillary Turner until after his discovery of the transactions between his father and his uncle. In fact, it is apparent from the record that the only reason An-sardi and O’Quinn are included in the suit is because they are employees of the bank and had had some contact, however minimal, with Hillary Turner following his discovery of the transactions; there is no doubt that they are not liable.

Plaintiff’s claim that the trial court erred in relieving Ben and Bertha from liability is also without merit. A review of the record does not reveal any evidence to support the allegations of fraud, nor does the record reveal that any evidence was introduced to establish that Ben Turner, Bertha Turner, Ray Ansardi, Annette O’Quinn or the Delta Bank conspired to swindle or fraudulently deprive Hillary Turner or his father of the funds in savings account No. 24939.

Furthermore, the plaintiff failed to prove negligence on the part of Delta Bank. The abundant documentary evidence and testimony presented by Delta Bank illustrates that all of the transactions were done properly and in accordance with normal banking procedure. The records reflect that the original savings account No. 24939 was opened by Bernard Turner in his own name and Hillary Turner was merely a signatory to the account. At the point of the deletion of Hillary’s name, the account only had $321.45 so that if Hillary had a valid claim, it would only be for those funds. Additionally, this court agrees with the trial court that Delta Bank’s actions in deleting Hillary Turner’s name and signature from the account and adding Ben Turner’s name and signature was not illegal under LSA-R.S. 6:32 D, nor is this the factual situation anticipated by the statute. As the trial court points out, the same result could have been achieved by Bernard and Ben Turner if Bernard had closed the account and opened another in his and Ben’s name. The bank is concerned only with the legality of the withdrawals and not the disposition thereof.

Because we find no impropriety in the nature of the account, or the transactions involved therewith, we find it unnecessary to determine whether the transactions in question constituted a donation inter vivos to Ben Turner from Bernard Turner.

This court finds from the record that plaintiffs introduced no evidence to substantiate their claims.

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

AFFIRMED.

REDMANN, C.J., concurring.

REDMANN, Chief Judge,

concurring.

One thing missing from the Delta Bank’s records was a written authorization from Bernard or Hillary Turner for the deposit on August 6, 1979 of half of the proceeds from their account at the Whitney Bank into Ben and Bertha Turner’s account at Delta. That lack of written authorization was cured, however, on August 20, 1979, by Bernard’s signing a new signature card authorizing Ben to withdraw from Bernard’s account (from which Hillary’s authorization to withdraw funds had been stricken on August 1). If as of August 6 the $2,789.31 deposited that day into Ben and Bertha’s account should have been in Bernard’s account, as of August 20 that made no difference because by then Ben had signature authority on Bernard’s account, and could (insofar as the bank is concerned) then have withdrawn that amount from Bernard’s account and deposited it into his own.

It is true that Bernard would not have been prevented, by the mere fact of having in writing authorized Ben to withdraw Bernard’s funds, from demanding from Ben an accounting for that $2,789.31 and for any other funds of Bernard withdrawn by Ben. But the present action did not ask such an accounting; it claimed only that Ben (and Bertha) and the Delta Bank “conspired to swindle and/or fraudulently deplete” Bernard and Hillary’s account. There is no evidence whatsoever to support that claim.


author: WARD, Judge.

text:
    Ernest R. SHAW v. JET AMERICA CORPORATION.
    No. CA-2051.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.
    Anita M. Warner, Hurley & Hoffman, New Orleans, for defendant-appellee Jet America Corp.
    Roger J. Larue, Jr., Metairie, for plaintiff-appellant Ernest R. Shaw.
    Before REDMANN, C.J., and WARD and WILLIAMS, JJ.
   WARD, Judge.

This is an appeal from a dismissal of Ernest Shaw’s suit against his former employer, Jet America Corporation, for $18,-157.00 in unpaid commissions allegedly due him under an oral contract of employment and for penalties and attorney’s fees pursuant to La.R.S. 23:632. After trial on the merits, the Trial Judge found no agreement as to commissions between Shaw and Jet America Corporation. A review of the record leads us to the same conclusion and shows that Shaw has not shown the Trial Judge’s findings of fact are manifestly erroneous. Accordingly, we sustain the judgment in favor of Jet America Corporation.

The issue at trial was the interpretation of the oral employment contract between Shaw and Jet America, a commercial charter airline. Shaw claimed he was entitled to commissions on a sliding scale, i.e., five percent commission on new accounts he developed for the first three flights; three percent commission on new accounts after the first three flights; and one and one-half percent commission of the total revenue from established accounts reactiviated by Shaw.

Jet America insists that all its employees, including Shaw, are compensated monthly and that Shaw’s compensation was $1,800.00 per month.

Civil Code Article 2277 governs proof of oral contracts:

All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances. (Emphasis added)

Additionally, we follow our interpretation of Article 2277 in O’Rourke v. Tracy, 375 So.2d 747, 748 (La.App. 4th Cir.1979):

It is well settled that a party to the lawsuit may serve as his own “credible witness” for purposes of this article. Foshee v. Hand-Enis Realty Co., 237 So.2d 437 (La.App. 3rd Cir.1970). Moreover, although he still must show other circumstances which corroborate his claim, this means only general corroboration and does not require independent proof of every detail of the witness’s testimony. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977). Nonetheless, the question of whether the evidence offered by plaintiff corroborates his claim is a finding to be made by the trier of fact, and thus is not subject to reversal unless it is clearly wrong. Taylor v. Clark, 304 So.2d 728 (La.App. 4th Cir.1974); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The reviewing court must give great weight to the factual conclusions of the trier of fact, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are reasonable. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Shaw’s own testimony was the main proof offered of his claim. He produced no witnesses beside himself who could testify to a definite agreement concerning commissions. Mr. Vizzini, the president of Jet America at the time Shaw was hired and who negotiated a salary with Shaw, testified that, although he vaguely remembered discussing commissions with Mr. Shaw, nothing was finalized. Ken Bryant, a member of Jet America’s Board of Directors, testified he knew nothing about a commission arrangement with Shaw.

Shaw was employed by Jet America from July 7, 1980 to January 18, 1982. The record shows that Shaw never received commission payments nor did he ever formally demand payment of commissions until after his termination. The only evidence of a demand for commission payments were two handwritten notations on scraps of paper made by Mr. Shaw, dated January 9, 1981 and May 12, 1981, indicating he presented Mr. Vizzini with commission forms. These forms were never returned to Shaw nor were any commission payments made to him. Also, neither notation confirms or substantiates Shaw’s claim that an agreement was reached as to commission.

Considering the testimony and evidence in the record, we conclude there is no hard evidence to prove a contract for commissions between Shaw and Jet America. Without this proof, Shaw is not entitled to commission. Bacon v. Scofield’s Quality Printers, Inc., 212 So.2d 724 (La.App. 4th Cir.1968). Consequently, we affirm.

Affirmed.


text:
    Abraham DRUMMOND v. Lee Ethel Smith DRUMMOND.
    No. CA-2132.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.

      Edwin R. Fleischmann, Jr., New Orleans, for plaintiff-appellant Abraham Drum-mond.
    Sidney F. Rothschild, New Orleans, for defendant-appellee Lee Ethel Smith Drum-mond.
    Before REDMANN, C.J., and WARD and WILLIAMS, JJ.
   WARD, Judge.

This is an appeal by Mr. Abraham Drum-mond from a judgment increasing permanent alimony payable to Lee Ethel Smith Drummond from $80.00 per month to $120.00 per month. The sole issue before the court is whether the Trial Judge erred in awarding the increase. We believe the record supports the trial court judgment and we affirm.

The Trial Court is vested with much discretion in fixing alimony and should not be reversed absent a clear abuse of that discretion. Dugas v. Dugas, 428 So.2d 1059, (La.App. 3rd Cir.1983). Mr. Drummond’s own testimony shows he has consistently refused to pay alimony simply because he believes Mrs. Drummond doesn’t need or deserve it. Mr. Drummond testified that his net monthly income is at least $1,000.00 dollars and that his expenses are relatively low.

The record also shows that since permanent alimony was last fixed by the court, Mrs. Drummond is now unemployed due to no fault of her own, that, her monthly expenses are $712.93 per month; and that she is a fifty-five year old woman with some medical problems that limit her ability to work.

Under these circumstances, and especially in light of Mr. Drummond’s own testimony, we do not believe the Trial Judge erred.

AFFIRMED.


text:
    STATE of Louisiana v. John W. TAYLOR, Jr.
    No. KA-2212.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee, The State of Louisiana.
    David Girard, Cheryl Quirk, Student Practitioner, Loyola Law School Clinic, New Orleans, for defendant-appellant, John W. Taylor, Jr.
    Before REDMANN, C.J., and WARD and WILLIAMS, JJ.
   WARD, Judge.

On March 8, 1983 John Taylor, Jr. pled not guilty to simple burglary and was sentenced to serve four years in Parish Prison with credit for time served. On June 28, 1983 the State filed a multiple bill. A hearing on this multiple bill was set for July 5, 1983 at which time Taylor entered a plea of not guilty. The Trial Judge then set a second hearing for July 15, 1983 where the March 8th sentence was set aside and Taylor was re-sentenced as a second felony offender.

Taylor appeals his four year conviction as a multiple offender. He argues that the State rested its case at the July 5th hearing before proving him a recidivist and that the Trial Judge erred when she allowed the State to re-open its case on July 15th in order to introduce additional evidence of Taylor’s prior conviction.

We find no merit in Taylor’s arguments and affirm his conviction. The record is devoid of any indication that the State rested its case. In fact, the record proves otherwise. Additionally, even if the state had rested its case, La.C.Cr.P. Art. 765(5) empowers the court, in its discretion, to re-open it for additional evidence.

Affirmed.


text:
    STATE of Louisiana v. Joseph R. ROGERS.
    No. KA-2505.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.

      Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for defendant-appellant, Joseph R. Rogers.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee, The State of Louisiana.
    Before REDMANN, C.J., and WARD and WILLIAMS, JJ.
   WARD, Judge.

Joseph R. Rogers was charged in a three count bill of information, found guilty, and convicted of attempted first degree murder and aggravated arson, as well as armed robbery. He was sentenced to twenty-three years imprisonment for each offense, the sentences to be served concurrently without benefit of parole, probation or suspension of sentence.

The question raised in this appeal is whether Rogers’ multiple convictions and sentences at a single trial for the crimes of attempted first degree murder and the underlying felony, aggravated arson, subjected him to double jeopardy. We hold that, under the facts of this case, the multiple convictions have led to multiple punishment for the same criminal conduct, and so we vacate the conviction and sentence for aggravated arson.

Rogers was employed as a laborer at the Glenrose Motel in New Orleans during November and December of 1983. He stayed in Room 35 of the motel until December 11, when he checked out, taking the room key with him.

About eight o’clock on the morning of December 19, the manager of the motel, Pusvadan Patel, received a telephone call summoning him to Room 35 to repair the heater. As Patel entered the room, he was hit on the head with a pipe by a person standing behind the door. Patel immediately recognized his assailant as Joseph Rogers. Rogers continued to beat Patel with the pipe, took his motel keys, bound and gagged him with strips of torn sheets, and put him in a closet. Ten minutes later, when Patel began to smell smoke, he worked himself free and escaped from the closet and the burning room.

The fire department quickly put out the fire, which an arson investigator testified was started by an open flame at three points in the motel room, two of which were near the closet. Investigating police officers found the motel office ransacked and the cash register empty.

These facts are sufficient evidence for the jury to have found Rogers guilty beyond a reasonable doubt on every essential element of attempted first degree murder based upon the perpetration of aggravated arson, as well as aggravated arson and armed robbery. Nevertheless, constitutional and statutory prohibitions against double jeopardy protect Rogers from punishment for both attempted first degree murder and aggravated arson.

Louisiana Code of Criminal Procedure Article 596 defines double jeopardy in terms of a second prosecution for the same offense, but its provisions also protect an accused from multiple punishments for the same criminal conduct. State v. Vaughn, 431 So.2d 763 (La.1983). When the same conduct is a violation of two criminal statutes, there is an accepted test to determine whether conviction and punishment for both places the accused in double jeopardy: Does conviction for each offense require proof of an additional element which the other does not? State v. Vaughn. This test is to be applied to the evidence required to convict, not to all evidence presented at trial. State v. Steele, 387 So.2d 1175 (La.1980).

By applying this test to the elements of Rogers’ crimes, it is clear that aggravated arson does not require proof of an additional element beyond those of attempted first degree murder when that charge is based on the underlying crime of aggravated arson. The elements of first degree murder applied in this case are: 1) the killing of a human being, 2) when the offender has specific intent to kill or to inflict great bodily harm, and 3) is engaged in the perpetration of aggravated arson. La.R.S. 14:30(1). Attempted first degree murder occurs when any person, while having a specific intent to kill and while committing aggravated arson, does any act which tends directly toward the killing. La.R.S. 14:27. The definition, of attempted first degree murder includes aggravated arson, and when Rogers was convicted of attempted first degree murder, the jury of necessity found that every element of aggravated arson had been proved beyond a reasonable doubt. Hence, Rogers was twice placed in jeopardy for the arson: once on the arson charge itself and again as an element of the attempted murder.

This case apparently is the first in which an appellate court has been faced with the double jeopardy ramifications of the 1979 first degree felony murder statute. However, the Supreme Court considered a similar problem in a case under the old first degree murder statute. In State ex rel. Wikberg v. Henderson, 292 So.2d 505 at 511 (La.1974), the Court noted that one who robs and then kills his victim could not be prosecuted for both crimes unless the murder was prosecuted under the (then-existing) intentional murder provision, rather than as a felony murder. The State had an alternative of prosecuting either felony murder or the underlying felony. Applying this rationale to the present statute, we hold that in this case, the State cannot convict and punish for both an attempted first degree felony murder and the underlying felony of aggravated arson.

We do not decide nor do we now hold, however, that after acquittal, as opposed to conviction, of first degree murder or attempted first degree murder, an accused would be subjected to double jeopardy by prosecution for the underlying felony.

We vacate Joseph Rogers’ conviction and sentence for aggravated arson, the less severely punishable offense, in accord with State v. Doughty, 379 So.2d 1088 at 1091 (La.1980). In all other respects, the convictions and sentences are affirmed.

VACATED IN PART, AFFIRMED IN PART.


text:
    George David TOKMAN v. STATE of Mississippi.
    No. 53676.
    Supreme Court of Mississippi.
    July 12, 1984.
    See also, 435 So.2d 664.
   ORDER

The State of Mississippi has moved this Court to set a new date for the execution of George David Tokman, who is presently under a sentence of death.

The State’s motion was filed on July 3, 1984, thereafter on July 9, 1984, there was filed a Motion in opposition as well as for leave to appear as counsel for the appellant. Supporting briefs or instruments have been filed by both the state and the appellant since that time culminating with a reply to the response received by the court this the 11th day of July.

The thrust of the state’s motion to set anew the date of execution for Tokman arises from Chapter 448, Mississippi Laws of 1984 which became effective on July 1, 1984. Section 7 of that act amends Mississippi Code Annotated, Section 99-19-105 (Supp.1977). It provides in pertinent part the following:

SECTION 7. Section 99-19-105, Mississippi Code of 1972, is amended as follows:
99-19-105. (7) Upon affirmance, and again upon rehearing if such is necessary, of any sentence of death by the Mississippi Supreme Court or the affirmance or denial of review by the United States Supreme Court, the Mississippi Supreme Court shall reset the date of execution not more than four (4) weeks from the date of the Mississippi Supreme Court’s affirmance of the sentence or from the denial of relief by the United States Supreme Court. Unless the sentence is suspended, the Clerk of the Mississippi Supreme Court shall forthwith deliver to the Commissioner of Corrections a warrant of execution under seal of the court, which warrant shall be his authority to execute the convict.

The State contends the quoted section mandates the date of execution to be set “not more than four weeks from the date ... (of) denial of relief by the United States Supreme Court,” because Tokman was denied relief by the United States Supreme Court on June 18, 1984, the date of execution must be set by this Court no later than July 16, 1984, four days hence.

In opposition Tokman, through counsel, alleges and contends the Mississippi Uniform Post-Conviction & Sentence Collateral Relief Act, Chapter 378, Mississippi General Laws of 1984, is of recent vintage and requires the presentation of factual and legal claims necessitating much preparation. Additionally, it is urged that the amendment pursuant to Section 7 of Chapter 448, Mississippi Laws of 1984, became effective on July 1, 1984, and that it has no retroactive effect upon the denial of certio-rari by the United States Supreme Court which occurred on June 18, 1984.

The motion of the State and the responses thereto are now being considered with only four intervening days between the time of this writing and the date of execution as requested by the state.

Under the existing circumstances, the shortness of time within which to prepare a capital murder case under new law linked with the absolute finality of execution, we indulge the inherent powers of the court, Jackson v. State, 337 So.2d 1242, 1243 (Miss.1976), to abate State’s motion for a new date of execution but without prejudice to the state to renew the same after appellant’s counsel has had reasonable opportunity to prepare their case. We are of the opinion that the appellant’s request for a 60 day delay in setting the date of execution is not unreasonable, under the circumstances, and should be granted.

IT IS ORDERED that the motion to reset a new date of execution be stayed and the sentence suspended under the terms mentioned above.

The motion of Honorable Joshua J. Weiner of this state to appear of counsel is sustained as is the motion appertaining to Honorable James C. McKay, Honorable Mitchell F. Dolin, and Honorable David M. Zolensky of the firm of Covington and Bur-ling, P.O. Box 7566, 1201 Pennsylvania Avenue N.E., Washington, D.C. 20044.


text:
    Bobby Glen WILCHER v. STATE of Mississippi.
    No. 54370.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
   ORDER

The State of Mississippi has filed a motion to reset the execution for Bobby Glen Wilcher’s sentence of death imposed by a prior conviction and affirmed by this Court. See: Wilcher v. State, 448 So.2d 927 (Miss.1984). On August 1, 1984, appellant was granted a stay of his execution pending his petition for writ of certiorari in the United States Supreme Court. The United States Supreme Court denied his request for cer-tiorari on October 1, 1984, in Cause No. 84-5125 in that Court. Thus the State’s motion asserts that the appellant is under a valid and binding sentence of death awaiting this Court’s resetting of an execution date under the amended Mississippi Code Annotated section 99-19-105(7) (Supp. 1984). The 1984 amended statute provides that this “[c]ourt shall reset the date of execution not more than four (4) weeks from ... the denial of relief by the United States Supreme Court.” If applied, that deadline is very shortly approaching.

The appellant here, and respondent to the motion, opposes the resetting of an execution date alleging that his counsel intends to file a collateral petition seeking relief from the judgment and sentence, alleging constitutional merit. The response alleges an issue to be litigated in Tokman v. State, 435 So.2d 664 (Miss.1983) will have bearing on the instant case and requests the present motion to be held in abeyance until Tokman, supra, is decided. We deny this request of the appellant at this time.

However, appellant requests an alternative plea of additional time to prepare and file his application for collateral relief in the state court prior to this Court’s resetting an execution date due to the lack of time and resources to do the factual and legal research by two independent sole practitioners. This request we grant adjudicating that a sixty day delay in setting the execution date is not unreasonable.

Under all existing circumstances, we invoke the inherent powers of the Court, Jackson v. State, 337 So.2d 1242, 1243 (Miss.1976), to abate the State’s motion to reset a new date of execution, but without prejudice to the State of Mississippi to renew its motion after appellant’s counsel has had sixty days from this date within which to file their collateral petition in the state courts. Upon appellant’s failure to so file within said sixty days, or upon denial of said collateral petition, the State of Mississippi may refile its motion to reset execution date.

IT IS, THEREFORE, ORDERED that the motion of the State of Mississippi to reset a new date of execution be stayed, and the sentence of the appellant is suspended under the terms mentioned above.


author: SUGG, Retired Supreme Court Justice,

text:
    Emma HUDSON v. Alfio RAUSA and Mavis Green.
    No. 55101.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Rehearing Denied Feb. 13, 1985.

      William Liston, Alan D. Lancaster, Liston, Gibson & Lancaster, Winona, for appellant.
    David E. Flautt, Tommie Williams, Up-shaw & Ladner, Greenwood, Bill Patterson, McCoy, Wilkins, Noblin, Anderson & Stephens, Oscar P. Mackey, Guy N. Rogers, Jackson, for appellees.
    Before WALKER, P.J., HAWKINS and ROBERTSON, JJ., and SUGG, Retired Supreme Court Justice.
   SUGG, Retired Supreme Court Justice,

for the Court:

The questions in this case are whether, and to what extent, employees of the State Department of Health enjoy immunity to a civil action for damages arising out of the performance of their official duties. The answer to these questions ultimately turns on whether the acts complained of were discretionary acts as opposed to ministerial acts. The trial court held that at the time in question these defendants were acting in their discretionary capacity and, accordingly, enjoyed immunity in the face of this suit. We agree and affirm.

This action was instituted by Emma Hudson, widow of Earl Hudson, under the provisions of our Wrongful Death Statute (Section 11-7-13, Mississippi Code Annotated, 1972), on behalf of herself and the four children of Earl Hudson. In the amended complaint the State of Mississippi and two others were named as defendants along with Alfio Rausa and Mavis Green. All defendants except Rausa and Green were dismissed by the plaintiff. Hudson alleged her husband’s death on February 23, 1981, was caused by the negligence of Rausa and Green as follows:

(a) in prescribing INH to the decedent when they knew or should have known that due to his age and other relevant factors that his taking of said drug was contra-indicated in that it created an unreasonable risk of death;
(b) in failing to properly inform the decedent of the possible consequences of his taking INH when they knew or should have known of said consequences, thereby depriving him of the opportunity to make a reasoned and voluntary decision as to whether to subject himself to the proposed course of treatment;
(c) in failing to properly diagnose the decedent’s medical condition;
(d) in failing to perform tests to determine the cause of the decedent’s symptoms;
(e) in failing to administer a proper course of medical treatment of the decedent’s condition; and
(f) in failing to recommend that the decedent cease taking INH when they knew or should have known that his continuing to take said drug could forseea-ble [sic] result in his death.

In paragraphs IV and V of her complaint, Hudson alleged:

At all times hereinafter mentioned, the defendant, Alfio Itausa, was a duly licensed physician under the laws of the State of Mississippi and was acting in his individual capacity and within the scope of his employment with the Mississippi State Board of Health, an agency of the State of Mississippi, as the District Health Officer for District III of said Board and the local county health officer for the Montgomery County Health Department, Montgomery County, Mississippi, a subdivision of said Board.
At all times hereinafter mentioned, the defendants, Mavis Green, Belinda Chambley and Gail Rogers, were employees of the Montgomery County Health Department, a subdivision of the Mississippi State Board of Health, and were acting in their individual capacities and within the scope of their employment as health nurses with said Health Department and were under the direction, supervision and control of the defendants, Alfio Rausa and the State of Mississippi.

Rausa and Green filed separate answers and in each answer the defendants as a first defense pled the complaint failed to state a claim upon which relief could be granted. Their second defense was that they were immune from suit. Both defendants fully answered the complaint and concluded with affirmative defenses.

In answer to paragraph IV of the complaint, Dr. Rausa admitted that he was a duly licensed physician acting within the scope of his employment with the Mississippi State Board of Health as District Health Officer for District III but denied he was acting in his individual capacity.

In her answer, Green admitted only that she was an employee of Montgomery County Health Department, a subdivision of the Mississippi State Board of Health, and that she was acting within the course and scope of her employment with the Health Department under the direction, supervision, and control of Dr. Rausa and the State of Mississippi. With reference to the other allegations of paragraph V, Green stated she was without sufficient information to form a belief as to the truth or correctness of the allegations. All of the parties, both complainants and defendants, filed requests for admissions and interrogatories which were answered by the respective parties.

Dr. Rausa and Green filed separate motions to dismiss under Rule 12(b)(6), asserting the complaint failed to state a cause of action upon which relief could be granted by reason of immunity.

When the motions came on for hearing, the trial judge considered matters outside the pleadings, and granted summary judgment for defendants dismissing the complaint with prejudice at the cost of plaintiff. In his order Of dismissal the judge found without contradiction several important matters:

1. That Defendants Alfio Rausa and Mavis Green are, as employees of the Mississippi State Department of Health, public officials who are each vested with discretionary authority.
2. That Plaintiff does not contend that either of the said Defendants, at any relevant time, were acting outside the scope of their respective employments to the Mississippi State Department of Health.
3. That each and every allegation contained in the Amended Complaint regarding the alleged negligent acts of the various Defendants necessarily involves the actions of those Defendants in their discretionary capacities.
4. That, therefore, Defendants Alfio Rausa and Mavis Green, as public officials, acting within the scope of their employment, and further as public officials acting within the scope of the discretionary authority with which they are vested, are immune from suit in these premises.

No counter affidavits were filed by plaintiff as authorized under Rule 56. There was no genuine issue of material fact, and defendants were entitled to judgment as a matter of law.

Earl Hudson was the named contact of an individual, Marshall Forrest, who had been diagnosed as having infectious tuberculosis. Forrest and Hudson both worked at the Kimco Plant, a factory which according to Dr. Rausa “suggested the possible inhalation of asbestos and silica fibers, both of which would be likely to impair or reduce an individual’s lung capacity.” Dr. Rausa further stated in answer to interrogatory 7 that Earl Hudson was a high risk contact of Marshall Forrest because of the factors set forth above and because of the fact that the employees at Kimco shared a common eating area and a high number of employees had positive Mantoux test results. The high number of employees showing positive test results, without the apparent distinction between the races, indicated a strong possibility that tuberculosis was being transmitted within the plant.

In answer to interrogatory 8, Dr. Rausa stated:

Because of evidence that there was transmission of tuberculosis within the factory where Mr. Hudson worked, the risks associated with the type of work and factory area, and the absence of contraindications in Mr. Hudson’s, previous medical history, it was appropriate that he be offered INH. During the time Mr. Hudson was under the management of the Montgomery County Health Department, he developed no symptoms that would have justified discontinuing, this medication. His medical records show that his urine was amber but not abnormal in appearance, both at his last visit to the health department and at his subsequent visit to Dr. Middleton.

Accordingly on October 24, 1980, the medication INH was prescribed for Earl Hudson by Dr. Rausa which was dispensed on October 31, 1980, by a pharmacist at the Mississippi State Department of Health. On December 1, 1980, and January 2, 1981, additional INH was dispensed to Earl Hudson. In answer to a request for admissions, Rausa admitted that severe and some times fatal hepatitis is associated with INH therapy; that the risk of developing INH induced hepatitis is age related; that approximately 2.3% of persons in the 50 to 64 age category taking INH therapy developed progressive liver damage; that renal damage is not a toxic effect of INH therapy; that low urine output is not one of the signs that INH is having a toxic effect on the individual taking the medication; and that his discontinuing INH is not indicated for all symptoms or side effects. Earl Hudson died February 23, 1981, and the death certificate shows the immediate cause of death was a massive hemorrhage as a consequence of hepatic failure. Another significant condition listed was renal failure. In answer to request for admissions, Emma Hudson stated that Earl Hudson was tested on October 10, 1980 at the Kimco Plant and his PPD skin test showed a positive reaction.

The Mississippi State Board of Health issued in July 1974, a publication entitled Policies, Treatment and Supervision in the Tuberculosis Control Program. It is stated in this publication that the ultimate goal of tuberculosis programs is the elimination of tuberculosis as a public health problem and that the control of tuberculosis depends primarily on locating the tuberculous, their families, their associates, and those infected with tubercle bacilli. General guides and concepts are then given which influence public health nursing and tuberculosis control. Dr. Rausa was the local health officer of Montgomery County and as such was charged with certain duties with respect to communicable diseases including but not limited to tuberculosis. His duties are covered in part by rules and regulations governing reportable diseases issued January 1, 1978, by the Mississippi State Board of Health. These rules provide:

The director of the local health department, as the local health officer, shall be responsible for the control of communicable diseases and other conditions within his jurisdiction considered prejudicial to the public health. It shall be his duty to collect and make reports as required to the Mississippi State Board of Health, to provide consultation service to physicians in communicable diseases, to advise and consult with all others in matters relating to public health and to investigate reports of known or suspected communicable diseases or of conditions which might be prejudicial to the public health. It shall be his duty to determine in individual cases or groups of cases whether to impose restrictions on the activities of patients or contacts of communicable disease and to fix the period of isolation or quarantine for such diseases. In all matters where there is disagreement as to diagnosis, isolation, quarantine or in any other situation where the responsibility rests with the health officer, the opinion of the health officer shall prevail. In the discharge of his duties, the health officer shall not be denied the right of entry to any premises. (Emphasis added.)

The defendant Mavis Green was a registered nurse licensed by the State of Mississippi and employed as the Supervisor of Nurses of the Montgomery County Health Department. The duties of public health nurses are set forth in the State Board of Health July 1974, publication of Policies, Treatment and Supervision in the Tuberculosis Control Program as follows:

The family health service given by public health nurses in the generalized public health program helps the family achieve and maintain physical and mental well being and teaches them measures to prevent illness. The generalized nursing service encompasses a wide variety of conditions as well as guidance in problems relating to health for all age groups. This comprehensive service is carried out in cooperation with health, education and social welfare agencies that supply financial assistance and vocational rehabilitation.
Public Health Nursing in the tuberculosis program requires the utilization of the nurses’ skills, knowledge and comprehension of the principles of the control of tuberculosis. Family health services to those persons or families with tuberculosis requires more than the knowledge of the disease which is basic in order to give care. Tuberculosis nursing demands an interest in every aspect of family and community health and sound judgment making sure that their needs receive appropriate emphasis. The nurse’s understanding the fears, superstitions, and cultural patterns of the family should help the nurse give supportive health supervisions and to assess the need for services beyond those she can give.
Public Health Nursing service provided by our county and state health departments includes instruction and demonstration in care, isolation precautions, preventive measures and direct services such as chemotherapy, x-ray, and laboratory services, in clinics and homes. The objective is to help the family to be more resourceful in meeting their own needs, planning with the family for the best possible care considering the available facilities and the ability of the family and the community to provide care....

We turn now to the law of this State pertinent to the question in this case of whether the acts of the defendants Rausa and Green were discretionary acts or ministerial acts. In Pruett v. City of Rosedale, 421 So.2d 1046, 1051, 1052 (Miss.1982), this Court abolished sovereign immunity, but retained qualified immunity for officials performing discretionary public functions in the following language:

We need first to consider the extent to which the decision here applies to those actions by a state agency, an arm of the state or local government and the members thereof, who either for remuneration or as public service, engage in discretionary functions for which the agency or the arm of government was set up. We surely can see that this would be the first question raised by the bench, bar and all laymen. Although absolute governmental immunity from tort liability has lost favor with the courts, there is still considerable support for shielding certain governmental activities from liability. Judicial review of basic policy-making decisions continues to be regarded by many as inappropriate because courts have no standards by which to judge such decisions. Judges and jurors are in no better position to evaluate the reasonableness of policy determinations than are those officials who are charged with making them. The reasonable man standard of tort law is not an appropriate measure for the political, social or economic desirability of government programs and the methods selected for pursuing them. State tort standards cannot adequately control those government decisions in which, to be effective, the decision maker must look to considerations of public policy and not merely to established professional standards or to standards of general reasonableness.
The imposition of liability on governments for the exercise of legislative, judicial and executive acts may result in ov-ercautiousness on the part of the officials who carry out such responsibilities.
With the foregoing problems of everyday governmental functions by individuals, it is our opinion that abolishment of sovereign immunity does not apply to legislative, judicial and executive acts by individuals acting in their official capacity, or to similar situations of individuals acting in similar capacities in local governments, either county or municipal. (Emphasis added.)

In determining whether an act of a public official is discretionary or ministerial, this court has not laid down a hard and fast rule for determining each case, but the test most often cited is set forth in Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935). This case involved an action against a chancery clerk for failing to attach his certificate to a probated claim resulting in its disallowance. The court held that this was a ministerial function because under the statute it was the clerk’s mandatory duty to admit a claim to probate if the . affidavit conformed to the statute. The court stated:

... “The most important criterion, perhaps, is that (if) the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion,” the act in discharge thereof is ministerial. “That a necessity may exist for the ascertainment, for personal knowledge or by information derived from other sources, of those facts or conditions, upon the existence or fulfillment of which, the performance of the act becomes a clear and specific duty, does not operate to convert the act into one judicial in its nature. Such, it is said, is not the judgment or discretion which is an essential element of judicial action. Thus a sheriff must determine whether process coming into his hands for service, is issued from a court of competent jurisdiction and is regular on its face, and a treasurer of public money must ascertain whether a warrant for its payment is drawn by such an officer and is in such a form that its payment becomes a duty; but the execution of the process and the payment of the warrant are ministerial acts.” ...
171 Miss. at 864-65; 158 So. at 923. (Citations omitted.)

Davis v. Little, 362 So.2d 642 (Miss.1978), involved a tort case against a supervisor charging the supervisor with negligence while driving a county owned pickup truck. This Court held that the supervisor was not immune as to the act of driving the vehicle because it did not involve an official discretionary decision making process and was not an act of the board as a whole. The court stated:

The immunity of public officials, on the other hand, is a more limited principle, since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in performance of his governmental function. Given the more limited function, courts have generally extended less than absolute immunity. The most commonly recognized limitation is the distinction between discretionary acts as opposed to ministerial acts. Under this distinction the official is immune only where that which he does in the performance of his lawful duties requires “personal deliberation, decision and judgment.” See Prosser, Law of Torts, § 132 (4th ed.-1971)..
362 So.2d at 643.

There is a classic statement of the policy granting public employees and officials immunity to suit in Judge Learned Hand’s opinion in Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949). Judge Hand stated that officials should not have to answer civil lawsuits. Judge Hand discussed the facts in the case and held that it was proper to dismiss the case without the necessity of the public official involved in that case being subjected to a trial. He stated:

... The justification for doing so is that it is impossible to know whether the claim is well founded until the ease has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books.
177 F.2d at 581.

This statement is in line with the policy statement of Judge Bowling in Pruett, supra, that the abolition of the public official’s qualified immunity to suit may result in an excess of caution on the part of our public officials with consequent detriment to the public interest.

In the instant case the defendants have been vested with broad discretion in formulating policies and in carrying out detailed treatment in order to prevent the spread of tuberculosis or other communicable diseases when faced with such a threat. Certainly these discretionary responsibilities vested in these defendants are for the benefit of the public. In her rebuttal brief Emma Hudson argues with some force that once the defendants in this case made the decision to treat Earl Hudson, the treatment administered by them was a ministerial act rather than a discretionary act. She relies on authorities from other jurisdictions espousing this view.

We decline to follow the cases cited in the rebuttal brief because we believe that the discretion given to the defendants applied, not only to their decisions with reference to instituting a program of control, but also to the treatment administered in carrying out such policies. This was the part of an overall scheme designed for the public good to prevent the possibility of the spread of tuberculosis in the community. Besides, the administration of medical treatment involves the exercise of considerable professional judgment and hence discretion, as is manifest from a review of the facts of this case.

The public officials of this state, elected or appointed, enjoy a qualified immunity to a civil action for damages when acting in the performance of official functions discretionary in nature. They lose that immunity only when they substantially exceed their authority and commit wrongs under color of office. They have no immunity where they commit willful wrongs or malicious acts. Stokes v. Newell, 174 Miss. 629, 642, 165 So. 542, 545 (1936). See also, Jackson v. Hollowell, 714 F.2d 1372 (5th Cir.1983); Bogard v. Cook, 586 F.2d 399 (5th Cir.1978). This is the condition of the qualified immunity enjoyed by these defendants.

In determining whether the trial judge properly granted summary judgment for these defendants, we inquire whether the plaintiff has produced anything which would suggest malice, willful wrongs or acts by these defendants substantially outside their official authority.

We find only that plaintiff has stated a claim for negligence - medical malpractice, if you will. This is insufficient as a matter of law to pierce the veil of the qualified public official immunity enjoyed by these defendants while they are performing their discretionary functions. There being no genuine issue of material fact, these defendants were entitled to judgment as a matter of law. Smith v. First Federal Savings & Loan Association of Grenada, 460 So.2d 786 (1984); Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983). The trial judge correctly so ruled.

AFFIRMED.

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

PATTERSON, C.J., not participating.

      . Sitting pursuant to Mississippi Code Annotated, Section 9-3-6 (Supp.1982). The above opinion is adopted as the opinion of the Court.

      . Rule 12(b) provides in part the following: .. If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; ...”

      . In response to Pruett, supra, the legislature adopted Act of May 15, 1984, Chapter 495, 1984 Mississippi Laws, dealing with the question of sovereign immunity.


text:
    AN ATTORNEY v. MISSISSIPPI STATE BAR ASSOCIATION.
    Misc. No. 134.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Rehearing Denied Feb. 13, 1985.
    Hermel Johnson, Jackson, for appellant.
    Andrew J. Kilpatrick, Jr., Jackson, for appellee.
   Affirmed.


author: ROBERTSON, Justice,

text:
    ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, A Louisiana Corporation v. Duane COOLEY.
    No. 54500.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Rehearing Denied Feb. 13, 1985.

      Carey R. Varnado, Easterling & Varna-do, Hattiesburg, for appellant.

      J. Robert Ramsay, Bryant, Stennis & Colingo, Hattiesburg, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This interlocutory appeal presents the question whether New Orleans-based Tulane University may, consistent with the Constitution of the United States, be made amenable to valid and enforceable adjudications of its important rights and duties in the courts of the State of Mississippi.

Plaintiff Duane Cooley seeks recovery for the alleged wrongful death of his wife, Judy Billingsly Cooley. He has brought an attachment action in the Chancery Court of Forrest County under Miss. Code Ann. § 11-31-1, et seq. (Supp.1984), a quasi in rem proceeding, if you will. Pursuant thereto, there have been seized and brought within the power of the Court the proceeds of debts owed to Tulane by Mississippi parties having an aggregate value of $147,677.50. Cooley seeks no in person-am judgment against Tulane nor any other recovery of and from Tulane beyond the debts attached.

Tulane strenuously argues that the Chancery Court’s efforts to subject its property to jurisdiction are inconsistent with Tulane’s rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States, upon which there has been recent authoritative elaboration in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) and Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980).

For the reasons set forth below, we find Tulane’s arguments without merit and affirm.

II

A.

On June 2, 1981, Duane Cooley as personal representative of Judy Billingsley Cooley, deceased, commenced this wrongful death action by filing his complaint in the Chancery Court of Forrest County, Mississippi. Cooley has since amended his complaint. Defendants below were Hat-tiesburg Clinic, P.A., a professional association doing business in Forrest County, Mississippi, and The Administrators of the Tulane Educational Fund, A Louisiana Corporation (herein “Tulane University” or sometimes “Tulane”). Tulane is the sole Appellant here.

Subject matter jurisdiction has been predicated upon the Chancery Attachment Statute, Miss. Code Ann. §§ 11-31-1, et seq. (Supp.1984), pursuant to which Cooley demanded that the court attach and bring before it certain effects of, or indebted-nesses owed to, Tulane University said to be located in Mississippi.

Two such indebtednesses of the nonresident defendant Tulane University have in fact been seized and brought within the control of the court. These are:

(A) The sum of $48,182.00 owed to Tulane University arising out of an intercollegiate athletic contest between the football teams of the University of Southern Mississippi and Tulane University. The record reflects that the game was played in Hat-tiesburg, Mississippi, and that the sums due and payable to Tulane were in the hands of the University of Southern Mississippi when the attachment process issuing out of the Chancery Court was served and thereby effectively bound such sums to await the outcome of this action.

(B) The sum of $99,495.50 which is owed to Tulane University by virtue of unpaid for medical care, treatment and services rendered to the late Judy Cooley by Tulane Hospital and Medical Center. These sums were seized while in the hands of Gibson’s Storeowners Association Employer Benefit Trust, hereinafter “Gibson’s Trust”. Judy Cooley during her lifetime was an employee of Gibson’s Distributors of Hattiesburg, Inc., hereinafter “Gibson’s Hattiesburg”, a Mississippi corporation. As such, she was covered by a health insurance policy procured by Gibson’s Trust. The care and treatment and hospitalization services rendered to Judy Cooley were covered by this health insurance plan. Pursuant to that policy, Gibson’s Trust owed $99,495.50 to Tulane and, before said sums were paid, process of attachment issuing out of the Chancery Court of Forrest County was served upon Gibson’s Trust subjecting said sums to the jurisdiction of the Court during the pendency of this action.

All attachment defendants, having paid into the registry of the Court the moneys owed Tulane, have been finally dismissed from this action.

B.

The facts relevant to the issue tendered on this interlocutory appeal have to do with Tulane’s activities in, and contacts with, the State of Mississippi. Many of these facts we glean from the record. Others are within our judicial knowledge.

This Court, of course, may take judicial notice of adjudicative facts at any stage of the proceedings, whether requested to do so by a party or not. Moore v. Grillis, 205 Miss. 865, 39 So.2d 505 (1949). A judicially noticed fact must be one not subject to reasonable dispute in that it is either (a) generally known within this state or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

To begin with, indebtednesses to the aggregate tune of some $147,677.50 were found and seized in Forrest County. These valuable properties owned by Tulane certainly represent contacts with Mississippi. There is much more.

Tulane University is a private, non-sectarian university comprising 11 academic divisions with close to 10,000 students. The university has been duly organized and exists as an educational corporation under the laws of the State of Louisiana. As all know, Tulane’s principal place of business is in New Orleans, Louisiana.

As the crow flies, Tulane is less than a hundred miles from parts of southern and southwestern Mississippi. It is within the actual as well as judicial knowledge of the members of this Court that, although the nerve center of Tulane’s educational and service programs is in Louisiana, the university has a variety of contacts with Mississippi and engages in a plethora of activities in and related to Mississippi.

Most basic is the educational function of the university. Tulane recruits Mississippi students. Because of its excellent reputation in all academic areas, Tulane is successful in this endeavor. It offers scholarships to Mississippi citizens incident to their pursuit of the educational opportunities available at Tulane.

Tulane engages in substantial continuing education programs. The different colleges and schools of the university invite citizens of this state to participate in seminars and continuing education programs . Fees are charged those taking part in these programs. Tulane students engage in a variety of intercollegiate competitions with students from Mississippi’s colleges and universities. Most familiar are the athletic contests, wherein almost annually Tulane competes with the University of Southern Mississippi, Mississippi State University, the University of Mississippi and other Mississippi schools in football, basketball and other sports. These competitions take place in accordance with contracts often made a year or more in advance and involving guarantees of and entitlements to substantial sums of money. Many of these contests take place within the State of Mississippi .

Tulane is a member of an intercollegiate athletic conference, the Metro Athletic Conference, which also has as one of its members the University of Southern Mississippi.

Beyond athletics, there are any number of other forms of intercollegiate competitions between Tulane and Mississippi schools. There are Tulane faculty members who participate in a variety of educational programs, seminars and conferences within the State of Mississippi. Conversely, Mississippians are invited to and participate in comparable programs at Tulane.

Perhaps most important of all, we take judicial notice that Tulane has substantial numbers of alumni and friends in this state, primarily on the Mississippi Gulf Coast and in south and southwest Mississippi. Tulane regularly solicits and receives financial contributions and other forms of gifts from these Mississippians, and derives great benefit therefrom.

One of the educational and service functions performed by Tulane has been the operation of a School of Medicine, in connection with which Tulane operates the Tulane Hospital and Medical Center.

The Tulane School of Medicine operates a program whereby senior medical students and residents may receive on the job training with Mississippi doctors and hospitals. Some Tulane medical students or residents are trained at the University of Mississippi Hospital, Jackson, Mississippi, Veterans Administration Medical Center, Biloxi, Mississippi; and Keesler Air Force Base Hospital, Biloxi, Mississippi.

Tulane faculty members provide lectures at Biloxi hospitals on a monthly basis, and ophthalmology residents rotate on a short term basis through the VA Hospital in Biloxi. In addition, the record reflects that Tulane faculty members conduct medical seminars in Meridian, Mississippi.

Tulane conducts continuing medical education programs to which it invites physicians, surgeons and others from all fifty states, including Mississippi. There are some 63 physicians who are members of the staff at Tulane Medical Center who reside in Mississippi.

The Tulane Hospital provides care and treatment for patients who reside in Mississippi. One such patient was Judy Cooley who was treated originally at the Hatties-burg, Mississippi Clinic and on November 12, 1980, was moved to and admitted to the hospital at the Tulane Medical Center where, Plaintiff alleges, she failed to receive the requisite quality of care and consequently died.

In 1976 Tulane opened the Tulane Medical Center Hospital. It represents this 300-bed general hospital to feature the latest in diagnostic and treatment facilities for the patients of the Tulane School of Medicine. Private, semi-private and private with sitting room accommodations are provided.

Plaintiff attempted through discovery to develop the extent to which Tulane receives and accepts patients from the State of Mississippi, but Tulane was successful in concealing this information.

C.

On August 4, 1982, Tulane moved to dismiss Cooley’s complaint. The motion urged, inter alia, that Tulane had never qualified to do business within this state; had never done business in Mississippi; has never solicited business in nor placed any advertisement in any publication printed in Mississippi; has never maintained any office, bank account, mailing address, telephone listing, or other business facility in Mississippi; and, in general, had insufficient contacts with Mississippi, to render it constitutionally amenable to judicial jurisdiction .

On October 7, 1982, the Chancery Court of Forrest County issued an order overruling Tulane’s motion to dismiss. The Chan-eery Court found that Tulane has been engaged in continuous and systematic activity within the State of Mississippi. Specifically the chancellor found these activities to be: (1) That Tulane has an affiliation with Mississippi hospitals where several courses are taught in Mississippi to Tulane students; (2) Tulane advertises that clinical courses are taught in Mississippi; (3) Tulane regularly engages in athletic contests with Mississippi schools from which it derives substantial revenue; (4) Tulane has purposefully availed itself of the privileges of conducting activities within this state; (5) even if Tulane had no contacts, ties or relations with Mississippi, the money attached that was in the hands of Gibson’s Trust and Gibson’s Hattiesburg was sufficiently related to the cause of action to sustain quasi in rem jurisdiction of this case against Tulane; (6) the State of Mississippi has a substantial interest in providing a forum to its citizens harmed by negligent acts of others; (7) the basic equities of this case dictate that the exercise of jurisdiction by the Forrest County Chancery Court is not unfair or unreasonable; (8) requiring the plaintiff to pursue separate causes of action, one in Louisiana and one in Mississippi, against these two alleged joint tortfeasors would serve neither judicial economy nor basic fairness.

On October 16, 1982, the Chancery Court of Forrest County issued an order granting Tulane an interlocutory appeal to this Court.

III.

Tulane first challenges the Chancery Court’s determination that it has subject matter jurisdiction of this civil action. Tulane reasons that its conduct upon which Cooley’s claim of liability has been predicated occurred in Louisiana; therefore, Louisiana substantive law in the form of the Louisiana Medical Malpractice Act, La. Rev.Stat. 40:1299.41, et seq. controls the rights and duties of the parties. Therefore, pursuant to the terms of the Louisiana act, this claim does not lie within the subject matter jurisdiction of the Chancery Court of Forrest County, Mississippi until the claim has been submitted to a medical review panel.

Tulane’s thesis belies a fundamental misunderstanding of the concept of subject matter jurisdiction. Simply put, Louisiana has no authority to enact legislation which would affect the subject matter jurisdiction of Mississippi courts.

Cooley invoked the subject matter jurisdiction created by our familiar chancery attachment statutes. Miss.Code Ann. §§ 11-31-1, et seq. (Supp.1984). His complaint alleged that Tulane was a non-resident debtor within the meaning of Section 11-31-1. The complaint further alleged that there are persons in this state, to-wit: the University of Southern Mississippi and The Gibson’s Trust, which hold effects of or were indebted to Tulane. The fact of the existence in Forrest County, Mississippi, of these effects and indebtednesses has been established and, as previously noted, they have been seized and paid into the registry of the Chancery Court. The subject matter jurisdiction of the Chancery Court has thereby been established. Crescent Plywood Co. v. Lawrence, 305 So.2d 343, 346-347 (Miss.1974); see also, Penrod Drilling Co. v. Bounds, 433 So.2d 916, 925 (Miss.1983).

The point Tulane makes regarding the applicability of the Louisiana Malpractice Act concerns the choice-of-law issue that must ultimately be confronted by the trial court but which we regard as premature at this time.

IV.

A.

The dispositive question presented on this interlocutory appeal concerns the federal constitutional amenability of Tulane University to the adjudication of its important rights in the courts of Mississippi.

In former days the federal constitutional amenability question would have turned solely on the matter of state power over the res. If the non-resident defendant owned property in the forum state and if that property had been seized in compliance with the law of the state, the courts of the state were thought to have full authority to make a valid and enforceable adjudication regarding the non-resident’s rights in the res. Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905); Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878); O.B. Gough v. Mabsco, Inc., 335 So.2d 910 (Miss.1976).

This power theory has now been “undermined”, Shaffer v. Heitner, 433 U.S. 186, 211, 97 S.Ct. 2569, 53 L.Ed.2d 683, 702 (1977), so that something more than a seized res must be shown. Established constitutional doctrine now provides that non-residents such as Tulane, owning property in a foreign state, may not be subjected to adjudications of their rights in that property by the courts of the state in which the property is found, unless they have such contacts with the forum state as would satisfy the requirements of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and progeny. This right — “immunity” might be a more accurate term — is secured to Tulane by the due process clause of the Fourteenth Amendment to the Constitution of the United States.

The familiar and oft quoted general principle is that a nonresident may not be subjected to a litigation in a foreign jurisdiction unless he has “certain minimum contacts with it such that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice”. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, 102 (1945). This fairness test, in addition to the old power test, must be met and passed before our courts have the authority to enter a valid and binding adjudication with respect to Tulane’s rights in the $147,677.50 seized via this quasi in rem proceeding. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); Rush v. Savchuck, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980).

There is no set formula for resolution of this fairness inquiry. Shaffer repeatedly suggests that we must focus our attention upon “the relationship among the defendant, the forum, and the litigation.” 433 U.S. at 204, 207, 97 S.Ct. at 2579, 2581, 53 L.Ed.2d at 698, 700. This Shaffer suggestion enables us to dispatch two red herrings — one offered by Cooley, the other by Tulane.

First, notice that the tripartite relationship Shaffer would have us focus upon does not include the plaintiff. Nothing in Shaffer authorizes us to consider Cooley’s interest, wholly legitimate in other contexts, in securing a forum, nor are we concerned with any Mississippi interest in providing a forum for its citizens when asserting claims against non-residents. Cooley could sue Tulane in Louisiana, whose courts are no less capable of the fair administration of justice than are ours. Cooley has no interest in securing a convenient forum, nor has this state any interest in providing Cooley a forum, which may overcome Tulane’s due process right/immunity articulated in Shaffer. This principle was settled in Kulko v. California Superior Court, 436 U.S. 84, 98-100, 98 S.Ct. 1690, 1700-01, 56 L.Ed.2d 132, 145-146 (1978) which made it clear that the points argued, though highly relevant on choice-of-law and venue issues, are irrelevant to our judicial jurisdictional inquiry. See Shaffer v. Heitner, 433 U.S. 186, 215, 97 S.Ct. 2569, 2585, 53 L.Ed.2d 683, 704-705 (1977); Hanson v. Denckla, 357 U.S. 235, 254, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958).

Cooley puts the point another way. He notes that Hattiesburg Clinic, P.A., is also a Defendant and argues that he would be inconvenienced in the extreme if he were prevented from suing the two Defendants together in the same forum. The argument glosses over the fact that we are here concerned with rights vested in Tulane. Those rights may not be cut down because Cooley has joined a Mississippi Defendant. The presence of Hattiesburg Clinic, P.A., in the case is relevant only insofar as its relationship with Tulane may supply “contacts” to be considered in passing on Tulane’s due process claim. Tulane invokes a right. That we have eschewed any mechanical formulation of that right in no way means we may look to the interests of the plaintiff or the forum in determining its contours and whether it has been offended. See Read v. State, 430 So.2d 832, 840 (Miss.1983).

Conversely, a significant omission from Shaffer’s three part relational inquiry is any requirement of a direct relationship between the res seized and the litigation. Shaffer makes clear that there are some cases where the presence in the forum state of the non-resident’s property related to the litigation will in and of itself suffice to satisfy the minimum contacts standard. Shaffer v. Heitner, 433 U.S. at 207-208, 53 L.Ed.2d at 700. The converse, however, does not follow.

That the allegedly tortious conduct of Tulane occurred in New Orleans, Louisiana, and not in Mississippi — a fact heavily relied upon by Tulane — is per se of no constitutional consequence. Similarly, the fact that there is no substantial connection between the property owned by Tulane in this state and seized by the process of the court and the operative events giving rise to Cooley’s claim of liability on the part of Tulane is per se of no constitutional consequence. Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); Aycock v. Louisiana Aircraft, Inc., 617 F.2d 432 (5th Cir.1980); Braman v. Mary Hitchcock Memorial Hospital, 631 F.2d 6, 8 (2d Cir.1980). Cf. Arrow Food Distributors, Inc. v. Love, 361 So.2d 324 (Miss.1978); see also Penrod Drilling Co. v. Bounds, 433 So.2d 916 (Miss.1983).

Tulane may be subject to an adjudication of its rights in the property seized only if, in addition to the seizure of that property, Tulane has contacts with Mississippi such that maintenance of this suit does not offend traditional notions of fair play and substantial justice. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977).

In recent years the fairness test of International Shoe has been considerably refined. Although we continue to speak of minimum contacts, we are careful to exclude “fortuitous” contacts and circumstances. If the non-resident defendant’s contacts are fortuitous, not deliberate, de minimis, not substantial, they do not give rise to judicial jurisdiction. Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490, 500 (1980).

The U.S. Court of Appeals for the Eighth Circuit, in Iowa Electric Light and Power Company v. Atlas Corporation, 603 F.2d 1301 (8th Cir.1979) has aptly added a caveat:

[T]he minimum contacts relied upon must be between the defendant and the forum state, not simply between the defendant and a resident of the forum state. 603 F.2d at 1303 fn. 3.

Of course, the principal manner in which a non-resident may have contacts with the forum state is via contacts with its citizens. Still, the distinction noted in Iowa Electric is important.

In recent years two descriptions of the fairness test have achieved a currency and usefulness: the purposeful activities test and the foreseeability test. In Hansen v. Denckla, supra, the Supreme Court hás said that it is fair that a non-resident defendant be subject to an adjudication of his important rights and duties in the forum state where that defendant has “purposefully availed itself of the privilege of conducting activities within the forum state”, 357 U.S. at 253. Worldwide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501. These “purposeful activities” should be kept distinct and separate from the “unilateral activity of those who claim some relationship with a nonresident defendant [by virtue of which they] cannot satisfy the requirement of contact with the forum state”. Hanson v. Denckla, 357 U.S. at 253; 78 S.Ct. at 1239; Benjamin v. Western Boat Building Corporation, 472 F.2d 723, 730 (5th Cir.1973).

The foreseeability test derives from Worldwide Volkswagen where the Supreme Court stated that the

“forseeability that is relevant to due process analysis ... is that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501.

In sum, we find it firmly established that no state’s court may make valid and enforceable adjudications of the important rights of non-residents if such would be inconsistent with the non-resident defendant’s due process rights as articulated in International Shoe and progeny. This is so whether the plaintiff proceeds in per-sonam against the non-resident or, as here, via a quasi in rem attachment action. Since Shaffer the test is the same. Before any court of this state may subject Tulane to any form of judicial jurisdiction — in per-sonam or quasi in rem — the International Shoe originated minimum contacts/purposeful activities/foreseeability/basic fairness formulation of due process must be inquired into and Tulane’s rights and immunities wholly respected.

B.

We turn now to the facts of this case and the examination of those facts under the legal principles just discussed.

To begin with, Tulane owns funds in Mississippi to the tune of some $147,677.50. Beyond that, we have found that Tulane University is and has been engaged in systematic, continuous and purposeful activities within the State of Mississippi. These activities have been enumerated in some detail in Section 11(B) at the outset of this opinion.

By way of summary, Tulane engages in a wide variety of educational functions involving the recruitment and education of students from Mississippi, the encouragement of alumni activities in Mississippi, including the solicitation of and acceptance of funds from alumni and friends in this state, a variety of intercollegiate competitions and activities, formally and informally, with private and public institutions of the State of Mississippi.

More specifically, the medical school and the Tulane Hospital maintain a variety of ongoing connections with hospitals in the State of Mississippi, with medical practitioners within Mississippi, and with the treatment of patients from Mississippi. Even in the instance of activities conducted at the New Orleans facilities, there are reasonably foreseeable effects in Mississippi, ranging from the response of Mississippi patients to treatments following their return home to the billing of Mississippi residents at their addresses in Mississippi for services rendered.

One important attribute of Tulane’s activities in and contacts with Mississippi— those related to the hospital and medical school as well as others not so related — is that they are reasonably susceptible to giving rise to litigable disputes. Suffice it to say that Tulane would find the courts of this state open should it have need of such to enforce a claim or right arising out of its Mississippi contacts or activities.

Without further ado, we hold that, on these facts, the Chancellor was imminently correct when he held that Tulane University had engaged in continuous and purposeful activities within the State of Mississippi sufficient to render it constitutionally amenable to an adjudication of its rights in the funds held by the Clerk of the Court.

For many of the same reasons, Tulane has sufficient contacts with the State of Mississippi that it should reasonably forsee being required to defend an action in the courts of Mississippi and so that the maintenance of this action would not offend traditional notions of fair play and substantial justice.

C.

We have considered the argument that, subjecting Tulane to suit in Mississippi may have a chilling effect on Tulane Hospital’s continued provision of hospitalization and other health care services to residents of Mississippi. The point is without merit, legally and factually. That a non-resident may threaten to terminate contacts with a given state in no way enhances its due process rights beyond the formulations provided in International Shoe and progeny. Factually, Tulane has no more to fear from the courts of this state than it does from Louisiana courts. Tulane will receive the same evenhanded justice it would receive in Louisiana, the same as a Mississippi university or hospital would receive here.

Further, nothing turns on the fact that Tulane is not a corporation organized for profit. Substantial and purposeful activities in this state make it reasonably forseeable that Tulane may be sued here, whether those activities were intended to, or did, result in profit. Put another way, nonprofit corporations enjoy the same protections under International Shoe and progeny as do corporations organized for profit, no greater, no less.

Nothing in Tulane’s motion to dismiss or on this interlocutory appeal turns on the merits vel non of Cooley’s claim or Tulane’s defense. That we may perceive Cooley’s claim strong or weak or Tulane’s conduct laudatory or egregious is for the moment beside the point. We are concerned here with a preliminary point — whether the Chancery Court of Forrest County has the authority, consistent with Tulane’s due process rights, to make a valid and enforceable adjudication of the merits vel non of Cooley’s claim and Tulane’s defense and ultimately of Tulane’s rights in the property seized.

Finally, nothing turns on the fact that the great bulk of Tulane’s activities take place in Louisiana, that its nerve center is in New Orleans. To be sure, the extent of activities engaged in by Tulane in Mississippi is relatively small vis-a-vis Louisiana. Tulane’s amenability to suit in Mississippi turns on the extent of its activities here without regard to what or how much more it may do in Louisiana or elsewhere.

D.

In making our determination that the Chancery Court of Forrest County, Mississippi, has authority to hear and adjudicate the rights and interests of the parties in the sum of $147,677.50 presently resting in the registry of the Court, we have given careful consideration to the reported cases concerning non-resident medical facilities.

Braman v. Mary Hitchcock Hospital, 631 F.2d 6 (2d Cir.1980) bears similarities to the case at bar. In that case the plaintiff, a citizen of Vermont, brought suit in Vermont against a New Hampshire hospital charging negligent care in New Hampshire. Hitchcock Hospital had more contacts with Vermont than Tulane Hospital has with Mississippi. Approximately one-third of Hitchcock’s patients came from Vermont. Tulane has successfully resisted discovery to the extent that we do not know what percentage of its 300 beds have been occupied by Mississippians in recent years. On the facts before it, the Court of Appeals for the Second Circuit correctly held that the New Hampshire hospital was constitutionally amenable to suit in Vermont.

In Soares v. Roberts, 417 F.Supp. 304 (D.R.I., 1976) a non-profit Massachusetts medical facility had been sued in Rhode Island. The evidence reflected that the defendant, largely an abortion clinic, had advertised for and solicited patients from Rhode Island for some three years prior to the suit. The non-resident defendant was held constitutionally amenable to suit in Rhode Island.

On the other hand, Wolf v. Richmond County Hospital Authority, 745 F.2d 904 (4th Cir.1984) arguably supports Tulane’s position. The question in Woi/was whether an Augusta, Georgia hospital’s contacts with South Carolina were sufficient to render the hospital constitutionally amenable to suit in South Carolina for allegedly negligent care rendered a South Carolina resident while a patient in the hospital in Augusta, Georgia. In the face of proof that the hospital received roughly one-fifth of its gross income from South Carolina patients, the Court of Appeals held it was not subject to suit in South Carolina. To like effect is Walters v. St. Elizabeth Hospital Medical Center, 543 F.Supp. 559 (W.D.Pa.1982).

We distinguish Wolf and Walters from the case at bar. In Wolf and Walters the only contacts being examined were the hospital’s. Here the defendant is the corporate entity, Tulane University. We look not only at the Mississippi-oriented contacts and activities of the Tulane Hospital but of the entire university.

The only case we have found in which a university hospital was the defendant is Gelineau v. New York University Hospital, 375 F.Supp. 661 (D.N.J.1974). In Geli-neau the District Court held that New York University Hospital was not constitutionally amenable to suit in New Jersey when sued by a New Jersey resident for allegedly negligent care in New York. Inexplicably, the Court seems to consider only the hospital’s contacts with New Jersey rather than the totality of New Jersey-oriented contacts and activities of the corporate entity, New York University. In this we regard Gelineau as having been incorrectly analyzed and, accordingly, incorrectly decided.

All things considered, nothing in any of these hospital cases undermines our confidence in the correctness of our adjudication on this interlocutory appeal: that under the totality of the circumstances, Tulane may be held constitutionally amenable to the adjudication in the Chancery Court of Forrest County, Mississippi, of its rights in and to the $147,677.50 now held in the registry of the Court. The Chancellor correctly overruled the motion to dismiss.

V.

Tulane next argues that the doctrine of soverign immunity precludes this suit. Fleshed out, the theory is that the University of Southern Mississippi and the Board of Trustees of Institutions of Higher Learning, State of Mississippi, enjoyed sovereign immunity at the time the $48,182.00 in football game proceeds were attached.

Sovereign immunity is a defense “personal” to the state or its political subdivision. No third party has standing to invoke it. After a few preliminary skirmishes, the record reflects that USM and the Board of Trustees have waived sovereign immunity, have paid into the registry of the court all sums they held due and owing to Tulane, and have been finally dismissed. In this context, Tulane’s point is seen wholly without merit.

VI.

No other point presented by Tulane being worthy of mention, the Order of the Chancery Court of Forrest County, Mississippi, entered October 7, 1982, overruling and denying Tulane’s motion to dismiss shall be, and the same hereby is, affirmed. This matter is remanded to the active docket of the Chancery Court for such further proceedings as may be appropriate.

AFFIRMED AND REMANDED

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

• SULLIVAN, J., not participating.

      . During the pendency of this action, a member of this Court has received a flier from the Tulane School of Law announcing a continuing legal education seminar, and soliciting his attendance and participation, for a fee.

      . On the afternoon of September 27, 1980, the writer of this opinion personally witnessed the Tulane football team doing substantial "business” in Oxford, Mississippi, as it defeated Ole Miss 26-24 in a miserable, drizzling rain.

      . Within our knowledge are the facts of T.C.L., Inc. v. Lacoste, 431 So.2d 918, 920 (Miss.1983) wherein a Mississippi patient died while a patient at Tulane Medical Center in 1979.

      . The term "judicial jurisdiction" is an umbrella term that includes the familiar in personam jurisdiction, in rem jurisdiction, and quasi in rem jurisdiction. Penrod Drilling Co. v. Bounds, 433 So.2d 916, 925 fn. 3 (Miss.1983) (Robertson, J., concurring).

      . For the reasons stated above, the Chancellor erred as a matter of law when, in his Order of October 7, 1982, he relied on Mississippi’s interest in providing a forum to its citizens harmed by negligent acts of non-residents. As will be explained below, this error is not fatal.

      . For the reasons stated above, the Chancellor erred as a matter of law when he premised the order appealed from in part on the notion that requiring Cooley to pursue separate actions would serve neither judicial economy nor basic fairness. Because we here adjudicate a claim of right or immunity constitutionally vested in Tulane, these factors — however important they may be in other contexts — simply may not be invoked to subject to jurisdiction one lacking International Shoe-style minimum contacts. This error, too, is not fatal.

      . The Chancellor erred as a matter of law when he held that the insurance proceeds attached in the hands of Gibson’s Trust were sufficiently related to the cause of action to sustain quasi in rem jurisdiction. Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980). That "property” in no way resulted from activities of Tulane in Mississippi or contacts of Tulane with this state. It was procured by Judy Cooley's employer for her benefit wholly apart from anything Tulane has ever done in this state. See Shaffer v. Heitner, 433 U.S. 186, 207-208, 97 S.Ct. 2569, 2581, 53 L.Ed.2d 683, 700 (1977). Again, the error is not fatal.

      . This suit was brought prior to the July 1, 1984, effective date for the abolition of sovereign immunity. Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982).