text:
    CENTRAL BANK, Plaintiff-Appellant, v. Robert V. BISHOP, Defendant-Appellant.
    No. 13417.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused March 3, 1978.

      Snellings, Breard, Sartor, Shafto & Inab-nett by W. S. Shafto, Jr., Monroe, for plaintiff-appellant, Central Bank.
    McKinley, Bruscato & Loomis by Anthony J. Bruscato, Monroe, for defendant-appellant, Robert V. Bishop.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Central Bank sued Robert V. Bishop seeking a money judgment in the amount of $13,039.80 on an indebtedness allegedly evidenced by a hand note in that amount dated December 10, 1974, and seeking to foreclose a collateral mortgage securing a mortgage note in the amount of $10,000 dated July 7, 1971, allegedly pledged to the bank to secure the hand note. Plaintiff’s petition alleged that the two notes had been lost. After suit was filed defendant, who had possession of the mortgage note, presented it to the clerk of court and had the mortgage canceled on the records. Thereafter, defendant answered plaintiff’s petition denying the indebtedness and that the note had been lost, and pleading payment.

After trial, the district court held that plaintiff proved the existence of the indebtedness but failed to overcome the presumption created by defendant’s possession of the mortgage note that it had been paid or released from the pledge. Judgment was rendered against defendant for the amount sued for but rejecting plaintiff’s demand for enforcement of the mortgage. Both plaintiff and defendant appealed. For reasons expressed in this opinion, we affirm the money judgment against defendant but reverse the judgment rejecting enforcement of the mortgage and order its enforcement.

In March, 1973, defendant borrowed $12,-000 from plaintiff evidenced by a $12,000 hand note secured by the $10,000 collateral mortgage note. The hand note was renewed on December 15, 1973, February 4, 1974, June 13, 1974 and December 10, 1974. On each occasion defendant signed a new note reflecting the pledge of the collateral mortgage note. The old notes were marked renewed or paid and delivered to the defendant as they were replaced by new notes. The note dated December 10, 1974 was for $13,039.80 which included the original principal amount of $12,000 plus unpaid or discounted interest and is the note upon which suit was filed.

The testimony of the bank employees, supported by bank records including eopies of the hand notes and a computer ledger sheet, firmly establish that defendant never paid any amount on the December, 1974 note. Defendant himself testified that he could not say whether the debt had been paid, but assumed that the original $12,000 debt was paid in early or middle 1974 when other substantial indebtedness owed the bank was paid out of the proceeds of a loan closing. Defendant offered into evidence a photocopy of the December, 1973 note which was marked paid on January 11, 1974. After that date, however, as previously mentioned, defendant signed three renewal notes evidencing the continued existence of the indebtedness.

After the December 10,1974 note became delinquent Mr. J. Dixon Johnston, the commercial loan officer who dealt with defendant, regularly and on numerous occasions pressed defendant for payment and mentioned the possibility of foreclosure on the mortgage. Defendant never disputed the indebtedness nor questioned the bank’s right to foreclose. In the latter part of 1975, another loan officer, Mr. Daniel 0. .Otts, was assigned to work with Mr. Johnston in connection with the loan. In November, Otts made a reappraisal of the mortgaged property, defendant’s home. Otts was driven to defendant’s home by defendant in his pickup truck, inspected the home and was driven back to the bank. Otts testified that prior to going with defendant he checked out the hand note and the collateral file which contained the mortgage note, the bank’s appraisal sheet, the legal description of the property and other documents. When defendant came to pick him up Otts placed the hand note in the collateral file and took it with him to defendant’s home. The last time Otts remembered seeing the file was when it was on the seat of defendant’s pickup truck. Defendant testified Otts had no file or briefcase with him when they went to the house but defendant did not dispute the fact that they both went to the house for the purpose of making a reappraisal.

Otts did not realize the notes were missing until the following morning when the note and collateral clerks came to inquire into the whereabouts of the notes and file. The bank’s note control sheet and collateral control sheet, which were legal pads on which the clerks record information as to which notes are checked out by bank officers, reflected that the notes and file were checked out by Otts and were not returned. These sheets were kept for a limited time until bank examiners and auditors verified the location and existence of notes and then were destroyed and were unavailable as evidence.

Extensive efforts were made to locate the two missing notes. Otts immediately called defendant at his office but defendant was out of town. Otts asked a secretary in Bishop’s office to thoroughly check the office and truck and also asked her to contact defendant and inform him of the emergency, which she did. Otts went to defendant’s office, looked through it and the truck, and found nothing. The next morning Otts went back to defendant’s office and was told by defendant that he had diligently searched for the file and notes but could not find them. Otts discussed the matter with defendant on numerous occasions thereafter and defendant never indicated that he had possession of either of the notes.

Other bank officials carefully checked all of the bank’s commercial loan and note files to make sure the notes were not misfiled. The collateral register maintained by the commercial loan department showed the mortgage note should still be in the bank’s possession and that it had not been released.

Suit was filed in June, 1976, about seven months after the notes were “lost”. On October 26, 1976, defendant’s deposition was taken and at this time he revealed he found the mortgage note in one of his files after suit was filed and the very morning of the deposition took the note to the clerk of court and had the $10,000 mortgage canceled on the records.

Two cases cited by the trial court, Fabian v. Justice, 228 So.2d 739 (La.App. 4th Cir. 1969) and Hughes v. Hughes, 170 So.2d 251 (La.App. 4th Cir. 1964), are authority for the proposition that when a promissory note is returned to the maker there is a presumption that the note has been paid and the burden of proof shifts to the payee to prove that the note has not been paid, which burden may be met by an explanation of the maker’s possession of the note. The trial court correctly held that the presumption was not applicable to the hand note because defendant did not have possession of it, that plaintiff proved by a preponderance of the evidence that defendant executed the December 10,1974 note as evidence of the indebtedness then owed by “him to the bank, and that such indebtedness was never paid. The trial court felt, however, that “plaintiff’s explanation of its [the mortgage note] possession is much less persuasive than its total evidence relating to the indebtedness [on the hand note]” and “defendant is entitled to the presumption that plaintiff’s rights as pledgee of that note were voluntarily released.”

This court is of the opinion that plaintiff met its burden of proof by satisfactorily explaining why the notes were not in its possession and how the defendant-maker came into possession of the mortgage note. Defendant could not explain how he received possession of the note, but only assumed that he obtained possession when he paid the December 15, 1973 note on January 11, 1974, or when other indebtedness was paid to the bank in the early part of 1974. The fact is, however, that each of the notes signed by defendant in February, June and December of 1974 contained a pledge of the mortgage note. Defendant never mentioned possession of the mortgage note when being pressed for payment and when foreclosure was discussed. An application signed by him in connection with the December, 1974 renewal, lists the mortgage note as collateral. The bank’s collateral record shows the collateral mortgage note as being held by the bank. The bank officials testified it was never released from the pledge. Otts testified he saw the mortgage note in the collateral file in November, 1975 before going out to defendant’s home. The overwhelming preponderance of the evidence is that the bank did not voluntarily release the mortgage note from the pledge nor did it voluntarily deliver possession of the mortgage note to defendant. On the other hand, the evidence clearly establishes that defendant came into possession of the note by reason of it having been inadvertently misplaced by Otts while with defendant during the trip to defendant’s home to make the reappraisal.

There are cases holding that even though the pledgee is not in possession of the pledged thing, the pledge may still be enforceable. In Scott v. Corkern, 231 La. 368, 91 So.2d 569 (1956) a pledged insurance policy was found in the safety deposit box of the deceased pledgor. The court enforced the pledge on a finding that the pledgor was a trustee ad hoc or agent pro hac vice of the pledgee. The court held:

“ ‘Possession, though essential to the validity of the pledge, need not be always in the creditor. It is sufficient that the thing pledged be in the possession of one occupying ad hoc, the position of a trustee. The debtor himself may, in some cases, be considered as such trustee and be given possession of the thing by him pledged, provided his tenure be precarious and clearly for account of the creditor. The Louisiana doctrine is in perfect accord with both the common, the Roman and French laws.’ (Citing a long list of authorities and commentaries from various jurisdictions in support of the statement).
“Thus, it is manifest that the mere circumstance that the pledged insurance policy was found in the possession of the pledgor does not justify the conclusion that the pledge was extinguished and, in the absence of any evidence showing that the parties intended that the pledge be terminated or even that the pledgor considered it terminated, it will be presumed that the possession of the pledgor was precarious or as an agent pro hac vice.”
LSA-C.C. Art. 3173 provides:
“The debtor who takes away the pledge without the creditor’s consent, commits a sort of theft.”

Cancellation of a mortgage on the public records through fraud, error or mistake without the knowledge or consent of the holder does not deprive the holder of his security. Zimmer v. Fryer, 190 La. 814, 183 So. 166 (1938); McL. Development Co., Inc. v. Pyburn, 268 So.2d 296 (La.App. 2d Cir. 1972); National Acceptance Company of America v. Wallace, 194 So.2d 194 (La.App. 2d Cir. 1967) writs refused 250 La. 467, 196 So.2d 533 (1967); 250 La. 470, 196 So.2d 534 (1967).

Plaintiff proved that it never voluntarily released the mortgage note from the pledge nor terminated the pledge nor voluntarily or purposely delivered possession of the note to defendant. Defendant’s possession of the mortgage note was precarious and as agent pro hac vice. As between the parties to this suit, the pledge was not extinguished and plaintiff is entitled to be recognized as the holder and owner of the pledged mortgage note and is entitled to have the mortgage securing the note recognized and enforced. The rights of third parties, if any, relating to the pledge, mortgage note, mortgage, or mortgaged property are not the subject of this litigation and are not considered in this decision.

For the reasons assigned, that part of the judgment of the district court in favor of plaintiff and against defendant for $13,-039.80 with interest and attorney’s fees is affirmed. That part of the judgment rejecting plaintiff’s demands for recognition, maintenance and enforcement of the mortgage note and mortgage is reversed and set aside. Judgment is hereby rendered in favor of plaintiff, Central Bank, and against defendant, Robert V. Bishop, recognizing and maintaining plaintiff’s mortgage executed by the defendant dated July 7, 1971 in the principal amount of $10,000, recorded July 9, 1971 in the Records of Ouachita Parish, Louisiana, bearing Registry No. 638544, recorded in Mortgage Book 737, Page 590, affecting the following described property:

“A certain One (1) acre tract of land situated in the Southwest Quarter of Southwest Quarter of Section 3, Township 16 North, Range 4 East, Ouachita Parish, Louisiana, more particularly described as follows: From the Southwest corner of said SW Vi of SW Vi run East along the South line of SW Vi of SW Vi a distance of 1300 Feet, more or less, to the West line of Prairie Road (60 feet wide); thence run North along the West line of Prairie Road a distance of 420 feet to the POINT OF BEGINNING; thence continue North and fronting along the West line of Prairie Road a distance of 210 feet; thence run West and parallel to the South line of SW Vi of SW Vi a distance of 210 feet; thence run South and parallel to the West line of Prairie Road a distance of 210 feet; thence run East and parallel to the South line of SW Vi of SW Vi a distance of 210 feet to the POINT OF BEGINNING, containing One (1) acre, more or less,
and being the same property acquired by the mortgagor from Emma Wooten Deats, wife of Joseph S. Deats dated August 13, 1968 and duly recorded in the Conveyance Book 902, page 276 number 598628 of the Records of Ouachita Parish Louisiana.”

This case is remanded to the Fourth Judicial District Court for such further orders and proceedings as may be taken in accordance with law in the enforcement of said mortgage.

Affirmed in part, reversed in part, rendered and remanded.


source: Caselaw Access Project

author: PRICE, Judge. PER CURIAM.

license: Public Domain

text:
    Willie M. JOHNSON, Plaintiff-Appellant, v. OUACHITA PARISH POLICE JURY et al., Defendants-Appellees.
    No. 13418.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.

      ■ Johnson & Johnson by J. Eugene Osburn, Monroe, for plaintiff-appellant.
    Snellings, Breard, Sartor, Shafto & Inab-nett by George M. Snellings, Jr., Monroe, for defendant-appellee Ouachita Parish Police Jury.
    Robert P. McLeod and David E. Verlan-der, III, Monroe, for defendant-appellee, Ouachita Parish School Bd.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Plaintiff, Willie Mae Johnson, brought this action for the wrongful death of her minor son against the Ouachita Parish Police Jury, the Ouachita Parish School Board, and, for jurisdictional purposes, against the individual members of each entity.

The facts of this case reveal that on December 3, 1975, the deceased, Timothy Wayne Johnson, was on his way to his second grade class at Swayze Elementary School, a parish school just outside of Monroe, when he was hit and instantly killed.by an oncoming motorist, Moses Johnson. The accident occurred at 8:14 a. m. as the seven-year-old child was attempting to cross Berg Jones Lane, a street running parallel to the front of the school.

Plaintiff was paid the liability policy limits by Johnson’s insurer. She then brought suit against defendants for damages for the wrongful death of her son alleging defendants were negligent in failing to post identifiable speed limit and school signs, in failing to provide safety patrols and crosswalks, and in perpetrating any other acts of negligence which could be shown at trial. Plaintiff requested a trial by jury.

Both defendants filed motions for summary judgment supported by affidavits purporting to establish the lack of a genuine issue of material fact under La.C.C.P. Art. 966.

Affidavits of several city and parish employees were filed to confirm the accuracy of an attached hand-drawn sketch depicting an area on Berg Jones Lane extending north and south of Swayze School. The sketch shows flashing lights, crosswalks, and reduced speed limit signs south of Swayze School at Berg Jones School, crosswalks across from Swayze School, and reduced speed signs north of Swayze School.

The affidavit of Charles Johnson, principal of Swayze School, was filed asserting that the school had “watchers” who helped students cross Berg Jones Lane until school started at 8:00 a. m. He declared the deceased was late for school on the morning of the accident when he was struck by the oncoming car at 8:14 a. m.

An affidavit of Moses Johnson, the driver of the car which hit the deceased, declared that he had lived in close proximity to Berg Jones Lane for over two years preceding the accident, that he had driven this road daily for those two years, and was familiar with all schools in the area and the numerous children attending them. He averred that on the date of the accident, he was driving south on Berg Jones Lane in front of Swayze Elementary School when the deceased darted out from the east side of the road toward the school without allowing him sufficient time to stop before impact.

Plaintiff offered the opposing affidavit of Mrs. Eunice Davis who declared that she lived on Berg Jones Lane, that she was familiar with the Swayze Elementary School area, and that she knew there were no crosswalks, school crossing signs, or flashing lights in front of Swayze School on the date of the accident. Defendants question whether this affidavit, which was filed at the time of trial, is timely under La.C. C.P. Art. 966, which provides that opposing affidavits may be filed “on the day prior to trial.”

Defendants also filed the deposition of plaintiff in which she contradicts the school principal’s assertion that school started at 8:00 a. m.

After trial on the motions, the trial judge found that even though some facts were disputed by the opposing affidavits, the school board did not breach its legal duty, and the alleged omissions of the police jury were not the proximate cause of the accident; therefore, movers were entitled to a summary judgment as a matter of law. The court also ruled on plaintiff’s request for trial by jury holding that jury trials against police juries and school boards were prohibited by La.R.S. 13:5105.

Plaintiff has appealed from the judgment dismissing her demands.

For the reasons assigned, we reverse that part of the trial court judgment sustaining the summary judgment and affirm that part denying a jury trial.

In the event the counter affidavit of Eunice Davis submitted by plaintiff is admissible, there is a dispute of material fact in regard to the existence of safety devices in the front of Swayze School where the deceased attempted to cross. On the trial of the merits the placement of warnings at points north and south of the school may be found to be completely adequate to fully comply with any duty the police jury has in this regard. However, there is some doubt created by the Davis affidavit which should only be resolved by a trial on the merits.

Although defendants contend the affidavit should not be considered because of its untimely filing, the trial judge apparently tacitly overruled defendants’ motion to strike the instrument since he evaluated its effect in- his written reasons for judgment. In any event we hold the filing should have been allowed as the court has the discretion to permit an opposing affidavit after the time prescribed for filing under C.C.P. Art. 966 has expired. Under the circumstances presented, the affidavit was properly considered by the trial court.

The trial judge found it immaterial whether the warning devices were present or not because the affidavit of the driver of the car which struck the deceased established that he lived in the immediate area and was fully aware of the school and the need to drive with caution. Therefore, the court concluded that the presence of additional safety devices would not have changed the driver’s actions and was not the cause of the accident. This is a conclusion that should not be developed by summary judgment. Plaintiff should have the opportunity to show what effect, if any, these devices might have had to further alert an already knowledgeable driver.

The trial court further found there was no genuine issue of material fact in regard to the alleged negligence of the school board in not providing an adequate safety patrol to assist children in crossing Berg Jones Lane because the court found there was no duty by law to require the board to furnish safety patrols to assist students approaching the school.

The affidavits and deposition of plaintiff show there is a factual dispute created as to whether the accident happened before or after school had commenced. The affidavit of the school principal states school commenced at 8:00 a. m., but plaintiff’s deposition expresses that she understood it to start at 8:30 a. m. Since the accident occurred at 8:14 a. m., the controverted time that school started is a material fact genuinely relating to the duty of the school board during school hours. Furthermore, the duty of the school board may not be restricted to school hours. The duty is to provide reasonable care commensurate with the risks incurred by children in this area. Facts determine the risks encountered, and although the duty of the board doesn’t change, the reasonableness of the measures taken to prevent the risks, as well as the risks themselves, differ in each case, requiring the trial judge to consider the relationship between the risks and the measures taken to eliminate the risks. Sansonni v. Jefferson Parish School Bd., 344 So.2d 42 (La.App. 4th Cir. 1977).

We conclude that the affidavits of defendants when considered in relation to the opposing affidavits do not present facts which establish beyond a reasonable doubt that the school board owed no duty or that the police jury fulfilled its duty; therefore, the sustaining of the motions for summary judgment was in error.

In her petition, plaintiff prayed for a jury trial which the trial judge refused on the basis of La.R.S. 13:5105 which states: “No suit against the state or a state agency or political subdivision shall be tried by jury.” On appeal plaintiff seeks to reserve her right to a jury trial against any liability insurer of defendants which may be later discovered, citing the recent Supreme Court case of Jones v. City of Kenner, 338 So.2d 606 (La.1976). While we acknowledge the holding of Jones, in the present posture of this case plaintiff has not joined any liability insurer, therefore, we do not find it appropriate or necessary to reserve this right.

The judgment rejecting plaintiff’s request for a jury trial is affirmed. The judgment sustaining the motions for summary judgment on behalf of defendants, Ouachita Parish Police Jury and Ouachita Parish School Board, and dismissing plaintiff’s demands against these defendants is reversed, the motions for summary judgment are overruled, and the case remanded for further proceedings consistent with this opinion and in accord with law.

Costs of this appeal are assessed to appellants equally. Assessment of all other costs shall await final determination.

ON APPLICATION FOR REHEARING

PER CURIAM.

It has been pointed out in application for rehearing that our original opinion contained an erroneous assessment of the cost of appeal. As the Ouachita Parish School Board and the Ouachita Parish Police Jury are exempt from the payment of such cost by law, and as plaintiff was the successful litigant on appeal there shall be no assessment of cost for the appeal in this matter.

Rehearing denied.


author: GULOTTA, Judge.

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General, and Representatives R. Harmon Drew and B. F. O’Neal v. The CITY OF NEW ORLEANS, the Honorable Moon Landrieu, Terrence R. Duvernay and Henry G. Simmons.
    No. 9079.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.

      William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Donald Ensenat, Asst. Attys. Gen., for plaintiffs-appellants.
    Philip S. Brooks, City Atty., Thomas P. Anzelmo, Sr., Asst. City Atty., for defendants-appellees.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

On February 17, 1977, the Council of the City of New Orleans adopted Ordinance No. 6265 MCS which provides that each judge of the Civil District Court, Criminal District Court and the Juvenile Court, who is a member of the State Retirement Plan for judges, shall receive annually from the City of New Orleans a retirement benefit allowance equal to one half the amount the judge must contribute annually toward the state judicial retirement plan.

In this suit, the Attorney General of this State and two legislators seek 1) a declaratory judgment holding the Ordinance unconstitutional and 2) an injunction restraining and prohibiting the City from enforcing the Ordinance or making payments authorized by it. The trial judge declared the Ordinance constitutional and denied injunc-tive relief. Plaintiffs appeal. We affirm.

The City Ordinance followed passage by the Legislature of Act 518 of 1976 (LSA-R.S. 13:18) which affords judges the opportunity to avail themselves of the retirement provisions of the Louisiana State Employees Retirement System upon payment of an annual contribution from their salaries.

Prior to 1975, District and Juvenile Court judges received local supplemental pay from the Parish of Orleans. Subsequent to the adoption of the Louisiana Constitution of 1974, the Legislature, by Act 743 of 1975 (LSA-R.S. 13:691), in an attempt to eliminate local judicial pay supplements and to bring more uniformity to judicial salaries, provided for a graduated pay schedule for Supreme Court, Court of Appeal, District Court and Juvenile and Family Court judges. Section C of that Act, around which this dispute centers, provides as follows:

“No judge whose salary is provided for herein shall receive for his services as a judge, directly or indirectly, any additional salary, compensation, emolument, or benefit from the state or any of its political subdivisions except (1) retirement benefits, (2) reimbursement of those expenses provided for and authorized by R.S. 13:694, 13:698, and 13:1341.2, (3) membership in group insurance programs, and (4) educational grants.”

It is plaintiffs’ contention, on appeal, that the City Ordinance which provides for retirement payments for these judges is in contravention of those provisions of Section C of Act 743 of 1975 which prohibit the judge from receiving, directly or indirectly, any additional salary, compensation, emolument or benefit. As such, plaintiffs argue, the City Ordinance is unconstitutional.

According to the Attorney General, the purpose of the adoption of the 1975 Act was to achieve uniformity in judicial salaries. Plaintiffs urge that it was the legislative intent to prohibit any political subdivision from making any supplemental pay to judges other than those exceptions specifically enumerated. It is the Attorney General’s contention that the “retirement benefits” exception as incorporated in Section C of the 1975 Act only contemplates receipt by the judge of benefits derived from a retirement plan such as an annuity or pension. The restricted meaning of “benefits”, which the plaintiffs would have us adopt, would exclude from its meaning retirement “contributions”. In support of this contention, plaintiffs point out that in. subpara-graph 24 of LSA-R.S. 42:543 (dealing with the Louisiana State Employees Retirement System) “retirement” is defined as termination of active service with a retirement allowance granted under the provisions of the retirement act. Subsection 25 defines retirement “benefit” as an annuity for life paid in equal monthly installments. Adopting these definitions, plaintiffs contend that “retirement benefits” as contained in the 1975 Act means retirement annuities or retirement pensions and does not mean retirement contributions such as those authorized by the City Ordinance.

We do not agree. It is true, as contended by plaintiffs, that retirement benefits as defined in LSA-R.S. 42:543 encompasses annuities or pensions, however, Section 543 dealing with definitions commences with the following language:

“The following words and phrases used in this Chapter, unless a different meaning is clearly required by the context, shall have the following meanings . . .” (emphasis ours)

Clearly, according to the wording of the very statute, these definitions of “retirement” and “benefits” are not applicable or binding when the words are used in a different context.

We are not persuaded by plaintiffs’ argument that the phrase “retirement benefits” as used in Section C of the 1975 Act contemplates receipt by the judge of pension or annuity benefits which accrue from any other source, such as in the case of a retired municipal employee or policeman or fireman who later becomes a judge and while serving in that capacity receives benefits from his municipal pension. If we were to accept the restricted meaning of “retirement benefits” as suggested by plaintiffs, the inclusion of these words would have no useful purpose or meaning. Section C deals with judicial pay and judicial emoluments while a person is in judicial office. The exceptions referred to in this provision clearly relate to those benefits which would be received by a judge, which grow out of and relate to his service while a judge.

Support for this conclusion is gained when we consider the other exceptions included in the statute. Those exceptions are membership in group insurance programs which may be paid by a political subdivision in addition to the salary and educational grants which also may be paid by a political subdivision, under the exceptions, in addition to the salary. It is reasonable that the Legislature, by the inclusion of enumerated exceptions, intended that retirement benefits or retirement contributions (which a political subdivision may desire to pay) could be paid in addition to the salary or other compensation. Clearly, under Section C of the 1975 Act, the City may pass an ordinance authorizing benefits for educational grants for judges or for payment of hospitalization premiums. When the enumerated exceptions are considered together, we are led to conclude that retirement benefits, as used in Section C of Act 743 of 1975, include retirement contributions as well as contributions for membership in group insurance programs and contributions for judicial educational grants.

The retirement pay allowance provided for in the City Ordinance is a benefit in the form of a contribution. It is a pay supplement but within the retirement benefits exception set forth in the statute.

Our interpretation of Section C is in accord with the latest Supreme Court expression on judicial pensions in the case of Swift v. State, 342 So.2d 191 (La.1977), in which the court stated that pension statutes must be liberally construed in favor of the intended beneficiary.

Although it is axiomatic that ordinances in contravention of a state statute are unconstitutional, we conclude that Ordinance No. 6265 MCS of the City of New Orleans does not contravene Act 743 of 1975.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

LEMMON, Judge, concurs and assigns reasons.

Plaintiffs argue that the legislative purpose of Act No. 743 of 1975 was to equalize the salaries of district judges throughout the state by eliminating local supplements to judicial salaries, thereby relieving the judges from the local political pressures inherent in supplemental compensation and relieving the local governing authorities from the economic burden which should be borne primarily by the state.

If the legislature intended to eliminate local supplements completely, the ordinance at issue undoubtedly contravenes that intention. However, Act No. 743 provided four exceptions to the prohibition against local supplements. Had the City passed an ordinance providing these judges with memberships in group insurance programs by paying their premiums, the alleged intention would likewise be thwarted, but the ordinance would not conflict with the act.

As to the meaning of the term “retirement benefits”, R.S. 13:691 C applies to active judges, because the applicability is specifically restricted to a “judge whose salary is provided for herein”. The term therefore cannot be construed reasonably to refer to payment by the City of benefits after retirement. Nor can the term reasonably be construed, as plaintiffs suggest, to retirement benefits previously earned in other City service, since the statute applies specifically to additional compensation for “services as a judge”. Furthermore, the term cannot be deemed meaningless.

The payment by the City of part of the contributions for retirement benefits is similar to payment of group insurance premiums in that each is considered a fringe benefit in modern employment and personnel relations. I find it reasonable to construe the ordinance authorizing payment of retirement benefits as additional compensation to fall within the intendment of the legislative exceptions, especially since payment of part of the cost of these types of benefits does not create the vast degree of inequality in judicial salaries which previously existed.

      . See National Food Stores of Louisiana, Inc. v. Cefalu, 280 So.2d 903 (La.1973).

      . The judges who joined the retirement plan are presently purchasing retirement benefits. The ordinance in effect provides these judges with the retirement benefits by paying part of the required contributions.


author: SCHOTT, Judge. REDMANN, Judge, BOUTALL, Judge,

text:
    Shirley Robinson, wife of/and Lyonel W. JORDAN, Individually and on behalf of their minor child, Kimberlyn Michel Jordan v. PALM APARTMENTS and American Liberty Insurance Company.
    No. 8294.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    Writ Granted Feb. 24, 1978.

      Orlando G. Bendana, New Orleans, for plaintiffs-appellees.
    Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN, GULOT-TA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment for personal injuries sustained by plaintiffs in a fire at the apartment Mr. Jordan rented from defendant, Palm Apartments. Under the judgment which was pursuant to a jury verdict Mrs. Jordan recovered $25,000, and her husband, $9,000.

Plaintiff rented the apartment from defendant in February, 1970, on a month to month basis pursuant to a written lease agreement which contained the following:

“Said premises have been leased, and are occupied with the understanding and subject to the special condition that the tenant or occupant assumes responsibility for the condition of the premises; the owner or lessor not being liable to any tenant or occupant or to anyone on the premises who derives his right to be thereon from the lessee; as provided by Louisiana Revised Statutes of 1950, Title 9, Section 3221.”

At approximately 5:30 on the morning of January 17, 1973, Mrs. Jordan discovered that the apartment was on fire, whereupon she, her husband and her small child fled from the burning apartment. .She sustained injuries in the process and virtually all of their furniture and personal belongings were destroyed.

Mrs. Jordan sustained first, second and third degree burns on 15% of her body surface. She was hospitalized for treatment following the fire and made a good recovery except that she was left with some keloid scarring for which her physician recommended plastic surgery.

Defendants have specified for our consideration a number of errors which fall into five categories, 1) instructions and interrogatories given to the jury by the trial court, 2) conduct of plaintiffs’ counsel in closing argument and during the course of the trial, 3) various rulings on the admissibility of evidence, 4) the jury’s conclusion that defendant was guilty of' negligence which was the proximate cause of the fire, and 5) the quantum of general damages awarded to Mr. and Mrs. Jordan.

THE TRIAL JUDGE’S CHARGES AND INTERROGATORIES SUBMITTED TO THE JURY

In the lease between the parties they agreed to limit defendant’s liability pursuant to LSA-R.S. 9:3221 which provides as follows:

“The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon by the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.”

Nonetheless, the trial judge instructed the jury as follows:

“The burden is on the plaintiff in a civil case such as this to prove every essential element of his claim by a preponderance of the evidence.
“Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do. It is, in other words, the failure to use ordinary care under the circumstances in the management of one’s property. “Ordinary care is that care which reasonably prudent persons exercise in the management of their own affairs in order to avoid injury to themselves or their property or other persons or property of others. Ordinary care is not an absolute-term, but a relative one. That is to say, in deciding whether ordinary care was exercised in a given case, the conduct in question must be viewed in light of all the surrounding circumstances as shown by the evidence in the case.
“The mere fact that an accident happened, standing alone, does not, unless otherwise stated, permit the jury to draw the inference that the accident was caused by anyone’s negligence.
“An injury or damage is proximately caused by an act or failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.
“This does not mean that the law recognizes only one proximate cause of an injury or damage consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things or the conducts of two or more persons may operate at the same time, either independently or together, to cause injury or damage, and in such a case each may be a proximate cause.
“An owner-lessor is held to strict liability without fault for personal injuries and damages sustained by his tenant or others through the defective condition of the premises. Neither the landowner’s ignorance of the defect nor its latency will defeat the injured person’s recovery. “However, not every defect causing injury is actionable. Only those of a nature reasonably expected to cause injury to persons using ordinary care under the circumstances.
“The injured person’s prior knowledge of the defective condition will not by itself defeat his recovery. However, his contributory negligence may do so, if the injured person was fully aware that the defect was so dangerous that the premises could not be used even with the exercise of due care. That is, if he was aware of the defect causing the injury and it was such as to indicate to a reasonable minded person that use of the defective portion was apparently and eminently dangerous, then recovery is not permitted.
“However, this statutory liability of the owner-lessor may be modified by contract between owner and lessee. LSR 9:3221 reads as follows:
‘The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defects therein to the lessee or anyone on the premises who derives his right to be there from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.’
“If such a clause is in a lease, the owner may contract away liability unless he knew or should have known of the defect, or had received notice thereof and failed to remedy it within a reasonable time. “Such a clause, however, does not mean that you cannot find liability on the part of the owner. Rather, it changes the concept of liability from strict liability, that is, liability without fault, to liability resulting from a finding of fault by you. “Either an act or omission or failure to act on the part of the owner would constitute fault, if you find the defect was one which he did actually know of, or which he should have known of, or of which he had notice but failed to act upon.
“Under a theory of strict liability, a finding of a defective condition subjects the owner to liability. The only defenses to such strict liability are that the defect might not reasonably have been expected to cause the injury, or that the plaintiffs assumed the risk.
“Where the theory is based on fault, you may not find the owner liable simply by finding a defective condition, but must find either actual or constructive knowledge of the defect on the part of the owner and his failure to correct the defect.
“An employer is responsible for the wrongful acts of his employee committed in furtherance of the business of the employer and within the scope of the employment, even though the servant acted contrary to the expressed rules and instructions of his master. In this case, the plaintiffs’ burden is to prove causation or the existence of a defect which caused the injury, by a preponderance of the evidence. This burden may be met either by direct or by circumstantial evidence.
“Causation may, of course, be proved by circumstantial evidence. In many instances, it can be proved only by such evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.
“Under Louisiana law, all legal agreements and contracts have the effect of law between the parties thereto, and both parties are bound by the terms of the contract regardless of whatever harsh consequences are in the contract.”

We agree with defendants that this charge was not an accurate instruction to the jury of the law applicable to the case. We also agree that the charge’s deficiency was compounded in the light of the form of the special verdict required of the jury. This consisted only of the following two questions:

“Was Palm Apts, guilty of negligence?” “Was this negligence a proximate cause of the injury?”

When analyzed the charge contains three separate legal theories of recovery available to plaintiffs. First it instructs the jury on the law of negligence which, in the absence of the lessee’s assumption of the lessor’s liability under R.S. 9:3221, would be applicable to Mrs. Jordan’s claim. C.C. Arts. 2315 and 2322, Hurley v. J. C. Penney Company, 140 So.2d 445 (La.App. 1st Cir. 1962), certiorari denied; Morris v. Hava, 180 So. 216 (La.App.Orl.1938). Second, the charge instructs the jury on the absolute liability of a landlord to his tenant, i. e., Mr. Jordan under C.C. Art. 2695; and third, it contains a quotation of R.S. 9:3221.

Immediately thereafter, the charge continues: “If such a [R.S. 9:3221] clause is in a lease, the owner may contract away liability, etc.” and after further explanation of the effect of R.S. 9:3221 there is the following:

“An owner-lessor is held to strict liability without fault for personal injuries and damages sustained by his tenant or others through the defective condition of the premises. Neither the landowner’s ignorance of the defect nor its latency will defeat the injured person’s recovery.” (Emphasis ours)

The charge then continues with a statement that does contradict the instruction on absolute liability as follows:

“However, not every defect causing injury is actionable. Only those of a nature reasonably expected to cause injury to persons using ordinary care under the circumstances.”

In the first place, the strict liability without fault of Art. 2695 has no application to anyone other than the lessee who in this case is Mr. Jordan. It does not apply to Mrs. Jordan who is considered a third party and not the tenant. Hurley v. J. C. Penney, supra; Morris v. Hava, supra. Her case would be governed by Arts. 2315 and 2322 were it not for R.S. 9:3221. See 17 Tulane L.Rev. 448 (April 1942).

The second serious deficiency we find with the charge is its failure adequately to deal with the legal effect of the lease agreement.

Although the charge contains a quotation of R.S. 9:3221 it is prefaced by the statement that “the .statutory liability of the owner-lessor may be modified by contract . ” The quotation is followed by the statement of the law, “If such a clause is in a lease.”

These instructions are unclear at best and were indeed misleading. C.C. Art. 2669 defines a lease as a contract by which one party gives to the other the enjoyment of a thing at a fixed price. The contract between these parties obviously meets the requirements of this article and was necessarily a contract of lease as a matter of law. The jury should have been so instructed.

Plaintiffs have suggested that the contract was not adequately explained to Mr. Jordan when he signed it so that its validity as a contract was questionable. If the trial judge had felt that this was a bona fide issue in the case appropriate instructions could have been given on the elements necessary for the confection of a contract, but this would not alter the legal status of that contract as one of lease.

The language of the contract clearly limited the liability of the landlord as provided by R.S. 9:3221. It follows, therefore, that the charge improperly included instructions on absolute liability on the part of the landlord for defects in the premises. It more properly should have included instructions on the elements such as constructive knowledge of the defects alleged.

Under our scheme the jury is the trier of the facts but must be instructed on the law applicable to the case, C.C.P. Art. 1792. Because the absolute liability provided by C.C. Art. 2695 was not applicable, instructions concerning it should not have been included in the charge. Its inclusion and indeed repetition was misleading and confusing. Furthermore, the failure to instruct the jury that this was a contract of lease so that R.S. 9:3221 was applicable was in violation of C.C.P. Art. 1792.

Finally, the problem is compounded by the form of the special verdict required of the jury. C.C.P. Art. 1811 permits the judge to require special verdicts on each issue of fact. The only issue included here was “negligence” on the part of defendants. The real issues in this case were the existence vel non of a defect in the premises, causation thereby, and knowledge of same on the part of defendants. We have concluded that the special verdicts here added to the confusion already created in the minds of the jurors by the charge.

The next question is, what must be done now in the interests of justice? Normally our role on the appellate court is to affirm a judgment if there is evidence of record to support the verdict of the jury. But in this case there is a serious question that the verdict for plaintiffs would not have been returned had the jury been instructed properly as to the law. For that reason we have concluded that reversible error was committed and set aside the judgment.

This case would seem to be open for a remand under these circumstances, but under the prevailing jurisprudence it becomes our duty to decide the case on the record. Couto v. Oms, La., 323 So.2d 128 (1975); Gonzales v. Xerox Corp., La., 320 So.2d 163 (1975).

Plaintiffs’ evidence consisted of the testimony of an expert in chemical engineering, George Pappas, and cross examination of defendants’ expert electrical engineer, George Hero. Pappas testified that the fire originated near a gas heater in the hall. The heater was in an alcove of the apartment and was within six inches of some wood framing around the alcove. Pappas testified that a buildup of heat over several hours of time would have reached, sufficient intensity to ignite this wood in the frames. Plaintiffs produced the building code of the City of New Orleans to show that it was a violation for such a heater to be less than six inches from unprotected wood. At the trial both plaintiffs testified that the heater was on during the night before the fire.

However, both Mr. and Mrs. Jordan seriously contradicted testimony they had given at depositions taken only four months after the fire. They both said then that the wall heater was not on the night before the fire. In order for Pappas’ theory to have any validity whatsoever the heater would had to have been on for a considerable time before enough heat was generated to start the fire.

Later, during cross examination of George Hero, called as an expert witness for defendants, he testified that there was an electrical outlet in the living room which was in violation of the electrical code of the City of New Orleans, and that the fire started in the living room several feet from this wall outlet. At one point in his testimony, Hero stated that this illegal outlet or the equipment connected to it was “a more likely source” of the ignition. While this statement seems to be a positive finding of a defect which might have started the fire, when read in the entire context of his testimony it is confusing and wholly unconvincing.

He testified that he found two outlets in the living room, one 220 volt capacity for an air conditioning unit and the other a 110 volt outlet. The 220 outlet was defective but would not cause any trouble unless the unit was in operation. There was no testimony to that effect with plaintiffs’ maintaining at trial that it was quite cool necessitating the operation of the heater.

As to the 110 volt outlet, Hero said: “The 110-volt outlet was installed and not inspected as would be required by code, so that is a violation of the code, but that outlet, I do not believe was the cause of the fire. It did not play a part in the fire.”

Plaintiffs’ entire case as to the presence of a defect in the electrical outlet which caused this fire rests on that testimony of Hero which we find to be vague and self contradictory to some extent. No where in the record is there a clear explanation of the nature of the defect and how it caused this fire.

We have concluded that plaintiffs proved that there were at least two defects in the premises in the sense that the location of the heater in proximity to the wood framing around the alcove and the installation of the 110 volt outlet were both violations of the safety code of the City. We are likewise convinced of the possibility that this fire was caused by one of these defects, but the record does not contain proof by a preponderance of the evidence that either of these defects was the cause of the fire.

Because plaintiffs failed to carry their burden of proof the judgment appealed from is reversed and set aside and there is judgment in favor of defendants, Palm Apartments and American Liability Insurance Company, and against plaintiffs, Shirley Robinson, wife of/and Lyonel Jordan, dismissing their suit at their cost.

REVERSED AND RENDERED.

REDMANN, J., concurs with written reasons.

BOUTALL, J., dissenting.

REDMANN, Judge,

concurring.

I do not subscribe to the obiter dictum that C.C. 2695 has no application to the lessee’s wife, since she is an intended third party beneficiary of the contract of lease. In other respects I subscribe to the opinion of Schott, J.

BOUTALL, Judge,

dissenting.

I am in agreement with the proposition set forth by the majority that the jury charges were confusing and may have led to jury error; however, I disagree as to the severity of the problem and the weight or consideration to be given to the jury’s finding of negligence of the landlord in response to the specific interrogatories. As I view' the majority opinion, it sets aside the jury’s finding of negligence, accords it no validity or consideration as a basis of appellate review of facts, and substitutes its opinion for that of the jury. While I also believe that the jury charges were confusing, and that the interrogatories should have been couched in a different fashion, I believe that the specific finding of negligence and proximate cause should have been accorded greater consideration in our resolution of this appeal.

The trial judge gave to the jury charges which encompassed three separate legal theories of recovery available to plaintiffs:

The general theory of responsibility for negligence encompassed under Louisiana Civil Code Articles 2315 and 2316; the liability of the lessor to the lessee without necessity of fault provided in Louisiana Civil Code Article 2695; and an explanation of the lessor’s responsibility under R.S. 9:3221. Unfortunately, the interrogatories addressed to the jury only offered a choice of a finding of negligence or no negligence. Thus the jury may have reached a conclusion on some other theory of law applicable to the fact situation and not been able to express itself clearly because of lack of sufficiently responsive interrogatories. However, this is only subject to conjecture, and we have no way of knowing whether the jury was confused or not, or what its true intent was. Suffice it to say that the jury had a right to request explanation of any charges if there was confusion, but did not avail itself of that right.

I would therefore accord to this finding of negligence of the landlord and proximate cause the same weight and validity which attaches in any other jury case. We may not on appeal set aside a jury finding if there is sufficient basis upon which to make such a finding, absent manifest error. We cannot substitute our own opinion or conclusions for that of the jury.

An examination of the evidence discloses that there are three possible causes of the fire. The first, which is espoused by plaintiffs, is that there was a heater situated in a small alcove too close to unprotected woodwork in violation of the Ordinance of the City of New Orleans and the general safety code, and that this defective installation caused the fire. The second theory is that the fire was caused by a defective electrical outlet located in the living room, that the outlet had been illegally and improperly installed by the landlord, or should have been discovered by him before renting to this tenant. The third theory was that the fire was caused by some extraneous source, not the responsibility of the landlord. The finding of negligence of the landlord and no contributory negligence of plaintiffs would support recovery by plaintiffs under either the first or second theory.

In support of the theory of heater caused fire, plaintiffs offered the testimony of themselves, some pictures of the area after the fire, and the testimony of an expert chemical engineer who reconstructed the cause of the fire, George Pappas. The testimony of plaintiffs is to the effect that the heater had been on and burning all night and that the fire when discovered was starting in the alcove where the heater was located. The expert explained that long, continued exposure to heat from this type of heater could cause wood in close proximity to ignite, and confirmed the alcove as the place where the fire started. To offset this testimony, defendants offered portions of the depositions of plaintiffs taken some four months after the fire wherein plaintiffs stated that the heater was not on at the time. Defendants also offered the testimony of an expert who testified that the fire did not start in the alcove but in the living room, probably due to extraneous causes. This expert testified to the defects found in the electrical outlets and the possibility of that being the ignition source; however, to be the ignition source it was necessary that the electrical outlet be in use and there was no evidence of such use at the time of the ignition.

The testimony of plaintiffs, their expert, the evidence of the pictures and the weather bureau report of temperatures on the night of January 16 and morning of January 17, is sufficient support for the jury’s verdict. The matter is one of credibility of the witnesses. If the jury believed the testimony of plaintiffs rather than their statements in deposition, and if it believed the testimony of plaintiffs’ expert over defendants’ expert, its verdict is correct.

It is axiomatic that where there is a question of credibility of the witness, that the trier of fact is in the best position to make such assessments and we cannot overturn such a finding unless manifestly erroneous. Accordingly, I find sufficient support for the jury’s conclusion of negligence and I would affirm the verdict and judgment appealed.


author: FORET, Judge.

text:
    Janice GALLIEN, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE CO. et al., Defendants-Appellees.
    No. 6193.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 17, 1978.

      Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendants-appel-lees.
    Before HOOD, CULPEPPER and FOR-ET, JJ,
   FORET, Judge.

This is a suit for damages for personal injuries, allegedly sustained by plaintiff, Janice Gallien, against Gravity Drainage District No. 4, Third Ward, Calcasieu Parish, Louisiana, and its public liability insurer, Commercial Union Insurance Company. A trial jury rendered a verdict rejecting plaintiff’s demands, and judgment was signed accordingly. Plaintiff perfected an appeal to this Court.

On Tuesday, August 31, 1976, at approximately 9:45 A.M., at the northwest corner of Mill and Ryan Streets, Lake Charles, Louisiana, plain tiff-appellant, Janice Gal-lien, a young, unmarried woman, who weighed approximately a hundred or so pounds, alighted from a bus, walked toward the sidewalk adjacent thereto, and while in the process of traversing a catch basin, stepped on a man-hole cover over the basin, which collapsed or caved in, causing her right leg to go down into the catch basin. She claims she sustained bruises and a pulled muscle in her back.

The evidence discloses that the man-hole cover on this catch basin had a round lid in the middle of the cover which can be removed for inspection purposes. It was discovered, subsequent to the accident, that this circular piece was broken in several pieces, and the large rectangular cover had split in two.

Plaintiff claimed negligence on the part of the Drainage District in their having man-hole covers that were not safe to step upon, not having warning signs to warn the public of its being cracked, and allowing a dangerous condition to exist, and not taking the necessary steps to correct the situation when they knew or should have known of this danger.

Defendant denies that the man-hole cover or catch basin cover had been cracked previously, or that it knew of it being cracked, and if such was the case, it had no notice.

The evidence disclosed that approximately two years before the accident in question, this catch basin, including the cover, was rebuilt by a contracting firm doing work on the traffic signal lights in the City of Lake Charles. When the catch basin was rebuilt, there was no frame built on which to put the cover, and additionally, there were no braces for it. After the accident to the plaintiff, the Drainage District crew rebuilt the catch basin, installing a frame, braces, and cementing the cover so it would not be dislodged by trucks cutting the corner. All of defendants’ witnesses testified that they had not worked on the man-hole cover since it was rebuilt two years before the accident. The evidence also developed that subsequent to the contractor’s rebuilding the catch basin two years before the accident, no one from the Drainage District checked or inspected it.

The catch basin in question was located on the curb of Ryan Street, one of Lake Charles’ main traffic and business arteries, near the northwest corner of the intersection of that thoroughfare with Mill Street. A city bus stops at this corner many times daily. Many people enter and leave the buses at this particular corner. Many persons, daily, traversed the catch basin.

On appeal, plaintiff-appellant asserts that the trial court committed error in refusing to charge the jury that proof of negligence is not necessary when an injury is caused by a defective thing in the custody of the defendant. Plaintiff-appellant relies on the case of Loescher v. Parr, La.Sup.Ct., 324 So.2d 441 (1975). In that case, a large magnolia tree located on defendant’s property suddenly toppled over onto plaintiff’s car, causing damage thereto. It was discovered, after the accident, that the interior of the tree was rotted out, although this fact had not been, and indeed could not have been, ascertained by the owner of the tree upon simple inspection. Thus, defendant could not be charged with negligent conduct, or even inattention on his part. The Supreme Court analogized the situation to that of an owner of a building who is held to “strict liability” for a defect in his building which causes injury to an innocent victim. Additional analogy was made to a parent being held liable for the conduct of a minor child, even without negligence on the part of the parent, and the owner of an animal being liable for the harm done by that animal even though the owner himself was not personally negligent.

As a pure matter of logic, the facts of this case appear to be indistinguishable from Loescher. If Loescher holds, ás indeed it does seem to hold, the custodian of a defective thing which causes damage to an innocent victim is responsible to that victim, just as the owner of the thing would be. In the case at bar, there is no question but that the man-hole cover and the catch basin cover were defective. The Gravity Drainage District had control and custody of it, although the City of Lake Charles was the owner of the catch basin, and the defect did cause some damage to the plaintiff, although very slight damage. The following language from Loescher is pertinent:

“The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.”

The main issue is whether the Supreme Court intended that the Loescher doctrine should be applied, or extended, to cases involving property owned by, supervised by, or in the custody of, public bodies such as the State Highway Department, municipalities, police juries, gravity drainage districts, etc. Loescher made no mention of the long line of jurisprudence to the effect that actual or constructive notice to a public body is a prerequisite to its tort liability. In Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3 Cir. 1975), 309 So.2d at Page 386, we took occasion to quote the Fourth Circuit Court of Appeal as correctly stating the applicable rule in Garrett v. Sewerage and Water Board of New Orleans, 235 So.2d 164 (La.App. 4 Cir. 1970):

“Our long settled jurisprudence is that in order for a public body (the defendant in this case is a public body) to be held liable for injuries caused by defects or defective conditions the plaintiff has the burden of pleading and proving both of the following: (1) such defects or conditions were patently dangerous or in the nature of a trap; and (2) the corporation had either actual or constructive notice of the same, actual notice being knowledge of the dangerous defects or conditions by a corporate officer or employee having the duty either to keep the property involved in good repair or to report defects and dangerous conditions to the proper authorities, and constructive notice being the fact that the defect or condition had existed for such a period of time it would have been discovered and repaired if the public body had exercised reasonable care.”

As mentioned above, the Supreme Court, in Loescher, made no mention of the well-established rule of law of actual or constructive notice being a prerequisite of tort liability where public bodies are involved. The Supreme Court had an opportunity to do so, at least by way of dictum, in United States Fidelity and Guaranty Company v. State of Louisiana, Dept. of Hwys., et al, 339 So.2d 780 (La., 1976). In that case, there was a defect in the headache bar at the west end of the Atachafalaya River Bridge. The plaintiffs alleged, and apparently proved, actual and constructive notice to the Highway Department. Alternatively, plaintiff relied on Loescher v. Parr, supra. The Supreme Court, reversing the trial court, and the First Circuit Court of Appeal (Standard Brands Inc. v. Department of Highways, 329 So.2d 821, La.App., United States Fidelity & Guaranty Co. v. Department of Highways, 329 So.2d 826, La.App., Mull v. Davis, 329 So.2d 827, La.App.) found in a factual interpretation that the Highway Department did have actual and/or constructive knowledge of the defect, and observed, 339 So.2d at Page 786:

“Our finding of negligence and liability under Civil Code Article 2315 makes it unnecessary for us to consider the applicability of Louisiana Civil Code Article 2317 as applied in our decision in Loescher v. Parr .

We note that the organ of the Court in USF & G was one of the three dissenting Justices in Loescher. However, the decision in USF & G was unanimous, with no concurring opinion by any of the Justices who comprised the majority in Loescher, to indicate that Loescher could be controlling in this matter, or that the doctrine of actual or constructive notice was no longer the law as a result of Loescher. We are of the opinion, that had the Supreme Court intended that Loescher be applicable in suits against public bodies, overruling the line of jurisprudence requiring actual or constructive notice, the USF & G case would have been an appropriate vehicle to do so.

To our knowledge, of all the cases in which the rule of Loescher was urged, only three allowed recovery under the Loescher doctrine. None of these cases involved a public body. Fidelity & Guaranty Ins. Co. v. Central Plumbing & Heating, et al., 339 So.2d 904 (La.App. 3 Cir. 1976), involved a defective roof causing damage to the plaintiff’s property. In Glorioso v. Chandler, 337 So.2d 269 (La.App. 2 Cir. 1976), a falling portion of defendant’s building caused damage to plaintiff’s party wall. In Derouen v. Southern Pacific, 351 So.2d 300 (La.App. 3 Cir., 1977), we applied Loescher where a defect in a railroad crossing (a protruding spike) caused damage to a passenger in an automobile which was traversing the crossing.

Other cases have denied the application of Loescher for various reasons. For example: Graham v. Allied Chemical Corp., 341 So.2d 1196 (La.App. 1 Cir. 1977) (fault of the victim); Woodward v. First of Georgia Ins. Co., 333 So.2d 709 (La.App. 2 Cir., 1976) (negligence under Article 2315); Vidrine v. Missouri Farm Ass’n, 339 So.2d 877 (La.App. 3 Cir. 1976) (there was no defect in the thing causing injury); Tiger Well Service v. Kimball Production Co., 343 So.2d 1153 (La.App. 3 Cir. 1977) (fault of a third party); Jinks v. McClure, et al, 344 So.2d 675 (La.App. 3 Cir. 1977) (fault of a third party); Parker v. Hanks, 345 So.2d 194 (La.App. 3 Cir. 1977) (fault of victim); Panek v. Gulf Ins. Co., 341 So.2d 46 (La.App. 3 Cir. 1976) (fault of third party).

Our review of the jurisprudence reveals no case where the Loescher rule was applied to permit recovery against a public body even though no actual or constructive notice was attributable to that public body. We are of the opinion that until the doctrine of actual or constructive notice is overruled, it is still the law, despite the theoretical similarity of Loescher to a case such as the one at bar. We further feel that to impose the Loescher rule on public bodies would have chaotic results because of their vast operations and the extensive properties owned, supervised, or in their custody and control.

Counsel for plaintiff, Janice Gallien, at oral argument, conceded that the defendant Drainage District was not liable to plaintiff under Article 2315 if plaintiff had no knowledge, actual or constructive, of an alleged defect in the catch basin cover. Counsel contends, however, that the defense of lack of notice to the Drainage District does not enure to its insurer, Commercial Union Insurance Company. Counsel cites no authority to substantiate this contention, and we have been unable to find any. Accordingly, we see no merit in plaintiff’s argument on this issue. Absent a statutory or jurisprudential exception, a public liability insurer stands in the shoes of its insured. Noel v. State, La., 284 So.2d 587 (1973); LSA-R.S. 22:655.

With reference to the issue of whether or not the Gravity Drainage District had actual or constructive notice of the defect, we find that a reasonable evidentia-ry basis existed for the jury to conclude that the Drainage District did not have prior actual or constructive notice of the defect. The Drainage District presented evidence tending to establish that it had no such notice. Mrs. Lester Shea, the District’s office manager for twenty or more years, who made a record of all complaints filed, testified that her records from July, 1974, to the date of the accident, were void of any complaint or complaints as to the catch basin involved. The District’s superintendent testified that his records contained absolutely no complaints whatsoever. Defendant’s foreman testified that he had no recollection of any problem as far as that catch basin was concerned. Other District employees testified that they had never done repair work thereon. Hence, ample evidence is in the record for a jury finding that the Drainage District had no notice, actual or constructive, of a defect in the catch basin.

Plaintiff has also urged the doctrine of res ipsa loquitur as being applicable in this case. We reject that argument. We are of the opinion that inasmuch as the Drainage District had no notice of the defective condition of the catch basin, the plaintiff knew as much about the danger as the Drainage District did. Accordingly, the doctrine of res ipsa loquitur is not applicable. Further, the Drainage District was not the owner of the catch basin; it had not built the catch basin or designed it. The catch basin itself is not an inherently dangerous instrumentality or substance. Accordingly, the burden of proof was and remained upon the plaintiff to prove negligence of the Drainage District. Plaintiff failed to do so.

For the foregoing reasons, the judgment of the trial court, dismissing plaintiff’s demands, is affirmed.

All costs are assessed against the plaintiff-appellant.

AFFIRMED.

      . It is evident from the record that the repairs and maintenance of the man-hole cover came under the supervision of the Drainage District. Although it is undisputed that the City of Lake Charles owned the catch basin and man-hole cover involved herein, it is equally evident that the Drainage District- had custody of and had assumed responsibility for the repairs and maintenance of the catch basin. Even the superintendent of the Drainage District, a Mr. Harless, admitted, at Page 204 of the record, that it was the District’s duty to inspect the catch basin, although he admitted that they had not inspected it after it was rebuilt approximately two years before the accident. In his words the Drainage District had “inherited” responsibility for repairs and maintenance of the drainage system of the City of Lake Charles, of which the man-hole cover involved herein was a part.


author: PRICE, Judge.

text:
    William B. RAGSDALE et ux., Plaintiffs-Appellants, v. J. E. HOOVER, d/b/a Hoover Masonry Contractor, et al., Defendants-Appellees.
    No. 13385.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 22, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused Feb. 24, 1978.

      Wilkinson, Carmody & Peatross by Charles B. Peatross, Shreveport, for plaintiff s-appellants.
    Loret J. Ross, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE, MARVIN, JONES and WYCHE, JJ.
   PRICE, Judge.

Plaintiffs, William and Betty Ragsdale, have appealed the judgment dismissing their demands and recognizing the validity of the lien on their property in favor of J. E. Hoover, d/b/a Hoover Masonry Contractor.

Plaintiffs instituted a concursus proceeding against numerous subcontractors seeking cancellation of liens filed against their residence in Spring Lake Estates. All defendants except J. E. Hoover have compromised or dismissed their alleged claims thereby limiting the issue on this appeal to the validity of the Hoover lien. To comply with the mandate of Art. V, § 8(B), of the Louisiana Constitution of 1974, the case was reargued before a panel of five judges.

The pertinent facts are as follows: On June 3, 1968, plaintiffs made an agreement with William A. Colquitt, a contractor, for the construction of a one-story residence upon Lot 350, Spring Lake Estates, Unit # 4, in accordance with certain plans and specifications. Upon completion of the improvements, Colquitt, who was then owner of the lot, was to convey the property to plaintiffs for the sum of $51,377. The contract was not recorded, nor was a bond furnished.

Plaintiffs recorded their affidavit of completion and acceptance of said work in the Mortgage Records of Caddo Parish on May 29, 1969. A deed was executed and recorded conveying title to them on this date.

For a period of several years prior to the filing of the subject lien, Hoover performed all of the masonry subcontracts for Colquitt in the construction of numerous homes in Shreveport. During 1967 Colquitt began falling behind in his payment of job contracts to Hoover and the number of completed houses for which Hoover had not been paid progressed to approximately five jobs. Hoover was aware that Colquitt’s financial condition was becoming more critical in the late spring of 1969, and on June 5, 1969, Hoover filed liens on several of the more recent jobs he had completed for Col-quitt, including plaintiffs’ residence. On the succeeding day Colquitt paid Hoover $1,820.03 on the indebtedness, and Hoover cancelled the liens. Hoover applied this amount to payment on one of the older jobs on which the lien period had expired. A few days thereafter Colquitt filed a voluntary petition in bankruptcy which precipitated the filing of numerous liens on plaintiffs’ property. Hoover refiled his lien in the sum of $1,566.60 on June 23, 1969.

Plaintiff filed suit to cancel all liens on July 31,1969, and defendant filed his recon-ventional demand to enforce the lien on August 20, 1969.

On June 22,1970, Hoover filed a notice in the mortgage records that he had filed suit to enforce his lien.

At the time of the hearing on this concur-sus proceeding, plaintiffs filed an exception of prescription and peremption alleging that the notice of suit filed by Hoover did not comply with the provisions of La.R.S. 9:4812, and therefore, the liens had prescribed. The trial judge overruled the exception and after trial on the merits awarded judgment recognizing the validity and ordering the enforcement of Hoover’s lien on plaintiffs’ property.

By their specifications of error, plaintiffs present four issues on appeal: (1) Whether or not defendant’s notice of lis pendens complies with R.S. 9:4812, (2) Whether the lien statute restricts the privilege to labor personally performed by the claimant, or whether it allows one to claim the privilege for the labor of his employees, (3) Whether defendant has borne his burden of proof to establish his right to the lien, and (4) Whether Hoover has improperly credited payments from Colquitt which would estop him from asserting a lien against plaintiffs’ property.

COMPLIANCE WITH LA. R.S. 9:4812

Plaintiffs contend Hoover’s lien has prescribed because the notice of suit required by La. R.S. 9:4812 does not strictly comply with the provisions of the statute because the date of filing of suit is incorrect, the amount of the claim is incorrect, and the registry information is incomplete.

The pertinent part of R.S. 9:4812 provides:

* * * The effect of the recordation of the claim shall cease and the privilege preserved by the recordation shall per-empt unless a notice of filing of a suit (giving the name of the court, the title and number of the proceedings, and date of filing, a description of the property and a reference to the recorded claim), on said claim is recorded within one year from the date of the recordation of the inscription of said claim. * * *

The notice filed by defendant gives the date of filing of the concursus by plaintiffs and not the date of defendant’s reconventional demand. The purpose of the notice of suit as required by the statute is to afford third persons knowledge of a cloud on the title to the subject property. Lafayette Woodworks v. Boudreaux, 255 So.2d 176 (La.App.1st Cir. 1971). This purpose is fulfilled by giving the date of the filing of the concursus.

The statute does not require the notice to list the registry, book, and page number of the lien, nor does it require explicit and exact detail of the claim or lien. It merely requires a reference to the recorded claim, which was done in this instance by stating the approximate amount of the lien. The misstatement of the amount by $.60 is inconsequential. Although the statute is stricti juris and must be interpreted rigidly, strict construction cannot be so interpreted as to permit purely technical objections to defeat the real intent of the statute. Alside Supply Company v. Gervais, 303 So.2d 584 (La.App.4th Cir. 1974), writ denied 305 So.2d 545.

SUBCONTRACTORS RIGHT TO CLAIM LIEN FOR WORK OF EMPLOYEES

Plaintiffs urge that a subcontractor who furnishes labor through his employees, but who does none of the labor himself, cannot recover under a lien for labor, citing Pringle-Associated Mortgage Corporation v. Eanes, 254 La. 705, 226 So.2d 502 (1969). Pringle was concerned with the right of a subcontractor to be subrogated to the superior position afforded a laborer and prime a prior recorded mortgage. There is a division of authority on whether Pringle can be interpreted as precluding a subcontractor from claiming a privilege for “furnishing services” for the cost of the labor performed by his employees in the construetion. The First Circuit has denied such a claim on the basis of the Pringle decision. Hunt v. La Chere Maison, Inc., 316 So.2d 850 (La.App.1st Cir. 1975). The Third Circuit under circumstances analogous to this case has upheld the privilege of the subcontractor whose employees performed labor on the jobsite. City Bank & Trust Co. v. Caneco Const., Inc., 341 So.2d 1331 (La.App.3rd Cir. 1976). We think City Bank is a proper interpretation of Pringle and reaches a result in keeping with the purpose of the lien statute. The affidavit of the claimant which describes the claim as “labor furnished” is sufficient to bring the claim within the purview of “services furnished” as provided in the statute.

SUFFICIENCY OF PROOF

Plaintiffs next contend that Hoover did not prove that he furnished the labor for which he filed his lien. By his own testimony, Hoover established he had an oral contract with Colquitt to do the masonry work on plaintiffs’ house, and that he had been bricking homes for Colquitt during the past four or five years. He offered records chronologically listing the jobs done for Colquitt, the dates thereon, and the amount charged on each job. The Ragsdale job is included in those records. He also introduced his accounts receivable ledger which includes plaintiffs’ residence showing the date, charges, and invoice number of that job. Hoover’s exhibit, H-4, lists each of his employees, the jobs on which they worked, the hours on each job, and the respective pay therefor. The worksheet'reveals eight employees who worked over twenty hours each on the Ragsdale job. Finally defendant introduced the cancelled checks of those employees for the pay period covering this job.

This evidence is sufficient to show Hoover furnished the labor he claims payment for on plaintiffs’ residence.

IMPUTATION OF PAYMENT AND ES-TOPPEL

Plaintiffs lastly contend that Hoover should not be allowed to enforce the lien because he allowed Colquitt to fall behind in payment for previously completed jobs and in doing so enabled Colquitt to expose unsuspecting current purchasers of residences to lien claims on their property although they had paid Colquitt the contract price.

The facts show Colquitt had used Hoover for brickwork on homes he had under construction from 1966 through 1969. During 1968 and 1969, at any given time, Colquitt had about twelve jobs underway which were at various stages of construction. When Hoover finished the brickwork, he would bill Colquitt for that particular job. Colquitt would finish the entire job usually two to six months later. By spring of 1969, Colquitt owed Hoover for five or more jobs which Hoover had earlier completed, some of which were yet within the lien period.

Plaintiffs alleged at trial and contend on appeal that as the various homeowners paid Colquitt, he would pay Hoover and other subcontractors. The subcontractors would then apply the money, not to the job just closed out, but to a previous job on which the lien period had expired. The lower court did find that the subcontractors had extended credit to Colquitt and in effect had “propped him up financially,” but did not find facts from which Hoover could be found to have had actual or implied knowledge as to the source of Colquitt’s money as required in the cases relied on by plaintiffs. Duffy v. Roman, 209 So.2d 502 (La.App.4th Cir. 1968), and Baudoin v. Gallier, 153 So.2d 169 (La.App.3rd Cir. 1963). We find no error in this finding on the record before us. Colquitt made the following payments to Hoover with a check désignating payment for the particular job for which it was to be applied from May 1968 to June 1969:

May 81,1968 Chapman Residence $1,952
July 1,1968 Hitchcock Residence 824
July 10,1968 Bill Hamm Residence 2,525
Sept. 9,1968 Schober Residence 1,652
Oct. 10,1968 Myatt Residence 2,120
Nov. 26,1968 Burch Residence 2,475
Dec. 18,1968 Floyd Miller Residence 1,553
Jan. 20,1969 Watts Residence 2,970
March 21,1969 Joe Hadley Residence 1,523
April 24,1969 Willis Meadows Residence 3,496
June 6,1969 G. R. Rudolph Residence 1,820

Plaintiffs made no direct payment on their contract to Colquitt after October 4, 1968. Colquitt did not draw against the interim construction loan on this job after September 3, 1968. Hoover completed his work on April 16, 1969. There was no payment of funds directly from plaintiffs to Colquitt at the time title was transferred to them on May 29, 1969. The closing attorney paid the interim construction mortgage and notified Colquitt he could have the remaining balance of the purchase price. Colquitt did not get the balance prior to filing bankruptcy and it is presently being held in escrow by the attorney.

Under these circumstances the trial court was correct in refusing to apply the principle of Duffy and Baudoin because whatever the source of funds Colquitt used to pay Hoover, the source is not shown to have been plaintiffs’ residence.

For the foregoing reasons, the judgment is affirmed at appellants’ costs.


author: INZER, Presiding Justice,

text:
    BOARD OF SUPERVISORS OF JACKSON COUNTY, Mississippi v. STANDARD OIL COMPANY, a Division of Chevron Oil Company.
    No. 49385.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Rehearing Denied Aug. 31, 1977.
    Karl Wiesenburg, Pascagoula, for appellant.
    John G. Corlew, Pascagoula, Watkins & Eager, William F. Goodman, Jr., James L. Carroll, Jackson, for appellee.
    Before INZER, SMITH and BROOM.
   INZER, Presiding Justice,

for the Court:

This is an appeal by the Board of Supervisors of Jackson County from a judgment of the Circuit Court of Jackson County reducing the ad valorem tax assessment of appellee, Standard Oil Company, for the year 1974. We reverse and remand.

Standard Oil Company filed objections before the Board of Supervisors of Jackson County to the assessment of its ad valorem tax for the year 1974. It was contended that the assessments against its property were not uniform and equal with the assessment of other property of like kind and character in Jackson County.

The Board of Supervisors heard the objections at the August 1974 meeting and entered an order overruling the same.

Standard appealed to the circuit court as to the personal property assessment and two items of real property. After a trial, the circuit court sustained a motion by Standard Oil for a peremptory instruction and entered judgment reducing the assessment and directing the Board of Supervisors to refund to Standard $590,732.03, representing the difference between the amount that Standard had paid under protest on its 1974 ad valorem taxes and the amount found due by virtue of the directed verdict. Hence, this appeal.

After considering the contention of the parties in this case, we are of the opinion that the controlling question to be decided is whether the trial court was in error in sustaining Standard’s motion for a peremptory instruction.

Standard strongly contends that the trial court was correct in granting a peremptory instruction because the evidence in this case is undisputed that other industries in Jackson County were allowed a one-time depreciation of 50 percent of the actual cost of the personal property, were then assessed at 25 percent of the depreciated value, yielding a I2V2 percent ratio. Whereas, Standard was not allowed the one-time 50 percent depreciation on its personal property which resulted in its personal property being assessed for the year 1974 at a ratio of 25 percent. Consequently, it is' argued that this case is controlled by our decision in American National Insurance Co. v. Board of Supervisors of Harrison County, 303 So.2d 457 (Miss.1974), where we stated:

Section 112 of the Mississippi Constitution of 1890 provides in part as follows:
Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. Property shall be assessed for taxes under general laws, and by uniform rules, and in proportion to its value. Of the several requirements of the
Constitution, uniformity and equality are paramount. And in order to assure uniformity and equality so that every taxpayer shall bear his fair share of the tax burden, the Constitution provides that property shall be assessed by uniform rules and in proportion to its value. The equal protection clause of the Fourteenth Amendment to the Constitution of the United States also requires uniformity and equality in taxation. Knox, Attorney General v. Southern Paper Co., 143 Miss. 870, 108 So. 288 (1926). (303 So.2d at 459).

The county strongly controverts the assertion of Standard that the facts are undisputed and contends that it was an issue for the jury to decide and not for the court. The county contends that in deciding this question, all the evidence in its behalf and all reasonable inferences to be drawn therefrom must be taken as true. Although, Standard asserts it knows of no such rule, it has long been the rule in this state that when a peremptory instruction is requested on behalf of one of the parties, all evidence and reasonable inferences that may be drawn therefrom are to be taken as true against the party on whose behalf the charge is requested. In Ballenger v. Vicksburg Hardwood Co., 238 Miss. 654, 119 So.2d 778 (1960), we said:

It is well settled under our decisions that when a peremptory instruction is requested on behalf of either party, then all of the evidence and all reasonable inferences that may be drawn therefrom are to be taken as true against the party on whose behalf a peremptory charge is asked. Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Allgood v. United Gas Corporation, 204 Miss. 94, 37 So.2d 12; Thomas v. Mississippi Products, Inc., 208 Miss. 506, 44 So.2d 556; Richardson v. Liddell, 222 Miss. 172, 75 So.2d 468; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562. See also Stricklin v. Harvey, 181 Miss. 606, 179 So. 345, and the cases therein cited. (238 Miss. at 657, 658, 119 So.2d at 779, 780.)

With (his rule in mind we have carefully considered the facts as reflected by the abstract in this case. In this regard it should be pointed out that Standard did not file a supplemental abstract and its brief is keyed to the record rather than to the abstract. Although not required to do so, we have referred to the record in an attempt to be sure we have considered all the material facts. The record reflects that in 1963 Standard completed a major oil refinery in Jackson County. It was granted a ten year exemption from county ad valorem taxes by the Board of Supervisors for the tax years 1964 through 1973. As subsequent additions were made to the plant, additional exemptions were granted.

The assessed valuation of the original refinery on the county personal property roles was $18,862,000, the cost of the personal property being $72,374,900. As additions were added on during the ensuing years, Standard was paying only state ad valorem taxes, and the assessment of the personal property remained almost constant. In 1972, near the end of the original exemption period, representatives of Standard met with the tax assessor and members of the Board of Supervisors to ascertain the assessing policy of the county. It seemed that an understanding was reached at this meeting that a uniform tax policy was to be established for the year 1973. The assessment reduced Standard’s assessment on the rendered valuation for personal property to a 12% percent ratio [cost depreciated by a one-time 50 percent depreciation, multiplied by a ratio of 25 percent, or equivalent to 12V2 percent of the original cost]. However, in preparing the 1974 tax roll, the tax assessor assessed Standard at the former ratio of 25 percent of the original cost.

Mr. E. M. Galloway, a member of the bar who was the tax assessor of Jackson County from October 1965 until January 1972, testified that when he became tax assessor he was aware that Dibble and Company had made a survey in order to appraise the real property in the county which was assessed at 25 percent of its value. During his tenure as assessor, personal property in the form of machinery and equipment was normally assessed on 100 percent of the cost minus a one-time 50 percent depreciation. The remaining 50 percent after depreciation would be multiplied times 25 percent resulting in an assessment equivalent to 12V2 percent of the actual cost. Mr. Galloway stated that this assessment was for the entire lifetime of machinery and equipment, not just one year. When he became assessor in 1965, Standard was already on the tax rolls and its assessment was not changed to reflect the foregoing assessment practice. James Reynolds, the present tax assessor, testified that when he went into office in 1972 he used the same figures Mr. Galloway had been using regarding the assessment of machinery and equipment of taxpayers other than Standard. Standard contends that the foregoing testimony of Galloway and Reynolds established that other taxpayers had been allowed a 50 percent depreciation which was denied to Standard when, in 1974, Standard was assessed on a basis that did not reflect the one-time 50 percent depreciation instituted during Mr. Galloway’s administration. In other words, Standard maintains that Mr. Galloway never assessed it at the reduced rate since it was under its exemption, and Mr. Reynolds never made any changes in Mr. Galloway’s assessments. Thus, Standard in 1974 was assessed at a rate established prior to the reduction instituted during Mr. Galloway’s tenure. It further contends that this is borne out by the testimony of Harold Gorman and Ellis Allen. Mr. Gorman, while an employee of Cole-Layer-Trumble Company was employed by the City of Pas-cagoula in 1971 to make a revaluation of all property within the city and within the municipal separate school district which included property outside the city. Mr. Gor-man testified that in making this revaluation, he procured the historic costs of the property, machinery and equipment from the plant itself.

Mr. Allen, who is a tax consultant, testified that he was employed by Standard to make a study of the assessment practice for the year 1974 of Jackson County to determine the effective ratio of assessment of personal property. In making this determination he used the appraisal made by Cole-Layer-Trumble in 1971 to determine the cost of machinery and equipment of certain taxpayers. Over the objection of the county, he was allowed to testify that from his study, the machinery and equipment of taxpayers in general was not actually assessed on the 1970 roll as high as I2V2 percent of the original cost. In fact, he said his study revealed that the median assessment ratio was 7.1 percent.

The principal witness for the county was W. J. Hunt, deputy tax assessor, who actually made up the personal property assessment roll for 1974. He described the procedure followed in making up the assessment. He said that each industry in the county was supplied with a form- on which they were required to render under oath their personal property at 100 percent value. Using these renditions made by each taxpayer, the roll was made up by assessing the property of the taxpayer at 25 percent of the true value rendered. Mr. Hunt, at the request of counsel for the county, had prepared a list of about fifteen industries that he had assessed in the same manner as he said he assessed the property of Standard. He' said the list did not include all industries. Mr. Hunt said he examined the roll and the renditions to determine whether a one-time depreciation was allowed to some industries and found that Mr. Galloway was not consistent in allowing the onetime 50 percent depreciation. Mr. Hunt said in making the 1974 personal property assessment, he did not make the assessment upon renditions made in prior years, but instead made up the roll upon the rendition made by the taxpayers for the year 1974.

Mr. James Reynolds, the tax assessor, testified that for the year 1974 they used a ratio of 25 percent of the original cost, without any depreciation. He said that when the taxpayer rendered their property at a 100 percent cost, they applied the 25 percent ratio, but that in some instances the taxpayer would apply the 25 percent ratio and state that it was 25 percent of the actual cost. In that event, it was assessed at the figure rendered by the taxpayers.

Standard introduced the deposition of one member of the Board of Supervisors of Jackson County who testified that he understood that the depreciation policy in Jackson County regarding industrial machinery and equipment was a one-time 50 percent depreciation to keep from having to change it every year. However, the minutes of the Board of Supervisors did not reflect the county had ever officially adopted such a policy.

In American National Insurance Co. v. Board of Supervisors, supra, it was undisputed that the tax assessor used a different method in assessing the improvements on the shopping center belonging to American National than was used in assessing the property of other taxpayers of like kind and character. Under those circumstances, we held that the Constitution’s inhibition against inequality and the lack of uniformity in assessing property required us to hold that the improvements were not lawfully assessed. Of course, if as contended by Standard, the facts were undisputed in this case that the other owners of industrial machinery and equipment were allowed a one-time 50 percent depreciation of actual cost and then assessed at 25 percent of the depreciated value, while Standard was not allowed the 50 percent depreciation and was taxed at 25 percent of actual cost, the rule applied in American National would certainly apply in this case. However, as we view the testimony, there was an issue of fact as to whether the other taxpayers had been allowed the 50 percent depreciation for the year 1974 and Standard was not.

We have not overlooked Standard’s contention that the testimony of Mr. Hunt, the deputy tax assessor, should be disregarded and that in some respects this testimony is in conflict with the testimony of the tax assessor. However, the weight and worth of all the testimony was for the jury to decide and not the court.

The trial judge in sustaining the motion for Standard for a peremptory instruction made the following statement:

BY THE COURT: First, let me say that from the testimony that has been presented, in my judgment I have no alternative except to sustain his motion. From the testimony that has been presented and the deposition I have read, it is really hard to determine what the taxing policy is, what yardstick is being used in this County, but in no stretch of the imagination can you say from the testimony, in my opinion, that there is a valid jury issue and can you say it goes beyond the 12.5.
So for the reasons that in my judgment there is a complete departure from the mandatory requirements of the Constitution of Mississippi and the United States Fourteenth Amendment, I feel that there is a radical departure from those requirements of uniformity and equality in the assessment of taxes, and I will sustain your motion for that reason.

This strong statement by the trial judge caused us to give this case more than the usual consideration, but with due regard to the opinion of the trial judge, we cannot escape the conclusion that taking the evidence on behalf of the county as true, together with all reasonable inferences to be drawn therefrom, the evidence was sufficient to create a jury issue.

Standard’s cross appeal contending that the trial court should have directed the jury to fix its assessment at a ratio of 7.1 percent of the cost is without merit.

For the reasons stated, this cause is reversed and remanded on direct appeal and affirmed on cross appeal.'0

REVERSED AND REMANDED ON DIRECT APPEAL AND AFFIRMED ON CROSS APPEAL.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.