author: WATSON, Judge. GUIDRY, Judge, DOMENGEAUX, Judge, WATSON, Judge.

text:
    G. L. PARET, Plaintiff-Appellant, v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, Defendant-Appellee.
    No. 6763.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearings Denied Jan. 31, 1979.
    Writs Refused March 16, 1979.

      Raggio, Farrar, Cappel & Chozen, Richard A. Chozen, Lake Charles, for plaintiff-appellant.
    Camp, Carmouehe, Palmer, Barsh & Hunter, James E. Williams, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiff, G. L. Paret, filed this suit to recover benefits for nursing care under a group health policy issued by defendant, Louisiana Health Service & Indemnity Company (Blue Cross of Louisiana). Paret asked benefits which, at the time of trial, amounted to $51,235.60, the same amount in penalties, and reasonable attorney’s fees. Defendant contended that the nursing services were excluded under the policy and reconvened for benefits paid by mistake. A jury, by a nine to three vote, denied Paret indemnity for the nursing services and awarded Blue Cross a $55,000 reimbursement. Paret has appealed, contending that the jury verdict is manifestly erroneous.

The benefits in question were claimed under the major medical endorsement to the policy, which states in pertinent part:

“ ‘Major Medical Expenses’ means customary, necessary and reasonable charges (excluding all charges or benefits excluded in the Basic Contract, unless expressly included in this Endorsement) incurred by the Subscriber in excess of any benefits provided under the Basie Contract, less any applicable deductible, for: (P-6, TR. 212).
11. Services of a Registered Professional Nurse (R.N.) and of a Licensed Practical Nurse (L.P.N.) duly licensed under the laws of the state where the service is rendered, provided they are not related to the Subscriber by blood, marriage or adoption.” (P-6, TR. 213).

Defendant maintained at trial that the nursing services were not covered because of an exclusion in the basic coverage for: “(d) Convalescent, custodial or sanitaria care or rest cures.” (P-6, TR. 188). The major medical endorsement states that the exclusions of the basic coverage are applicable to the endorsement except where they conflict. In the latter event, the provisions of the major medical endorsement prevail.

The jury was charged by the judge that the major medical endorsement of the policy provided benefits for nursing services if the other conditions of the policy were met; that the exclusion for custodial care did not apply to the major medical coverage of the policy; and that the classification of nursing care as therapeutic or custodial did not affect the question of coverage. The jury apparently disregarded these instructions.

It is undisputed that the nurses rendering services to plaintiff Paret were unrelated to him and were licensed by the State of Louisiana. The jury’s conclusion that the nursing services were not covered by the policy is manifestly erroneous in light of the instructions given by the trial judge. The first question presented by the appeal is whether the trial judge erred as a matter of law in his interpretation of the policy.

PERTINENT TESTIMONY

Ms. Medora T. Gill, a licensed practical nurse, began performing services for Mr. Paret on February 8, 1976, working on the 7:00 A.M. to 3:00 P.M. shift at the Paret home. She testified that she had worked continually, relieving another L.P.N. when she arrived and being replaced by another when she left, except for brief periods of vacation time when she would get a substitute L.P.N. She identified a long list of other licensed practical nurses who had done substitute nursing. The three shifts had been filled primarily by Ms. Gill, Ms. Fontenot and Ms. Jerry Dikes. Ms. Gill testified that Mr. Paret had been blinded by a stroke and had to be fed. He was ambulatory at times. Her services included administering medication and taking his blood pressure at least twice on each shift, because the patient’s blood pressure fluctuated alarmingly and his medication had to be varied accordingly. Ms. Gill said that the nurses’ notes were edited to avoid upsetting the patient’s family. High blood pressure readings were sometimes omitted and conveyed directly to Dr. DeLaureal, the treating physician.

Dr. Thomas Hugh DeLaureal, an expert in the field of internal medicine, testified that Mr. Paret.suffered a stroke in June of 1975 which required hospitalization and resulted in blindness. The patient was released from the hospital with the stipulation by Dr. DeLaureal that he have constant attendance by skilled nurses on a twenty-four hour basis. Dr. DeLaureal testified that this prescription had continued until the date of trial. In Dr. DeLaureal’s expert opinion, Mr. Paret would have died without this nursing care. The stroke on June 5,1975, was considered by Dr. DeLau-real to be the onset of an illness which had continued until the time of trial.

Patricia Soileau, employed as a bookkeeper and secretary for Mr. Paret, testified that $51,235.60 was owing as of May 12, 1978. The separate claims had been submitted by her with the nurses’ receipts and Ms. Paret’s cancelled checks.

It was stipulated that attorney for plaintiff used seventy-nine hours in preparation for trial.

Dr. Philip M. Castro, Medical Director of Blue Cross, testified that he was requested to review the Paret claim because of the large sums being paid. His review of the nurses’ notes convinced him that Mr. Par-et’s care was custodial. Dr. Castro testified that the insurance contract excluded custodial care but, after objection, the jury was instructed that the doctor was only testifying as to his impression of the insurance contract. Dr. Castro advised Dr. DeLaureal by letter that the care being rendered was custodial, which was excluded under the terms of the contract. (P-3). Dr.- DeLau-real replied that the care was not custodial but necessary for Mr. Paret’s survival. (P-4). After consultation with Dr. Ed Comer, a medical director in the New Orleans’ office of Blue Cross, two other physicians, two executives of Blue Cross and the Blue Cross legal counsel, Dr. Castro concluded that benefits were only payable for nursing care for three months following Mr. Paret’s discharge from the hospital. Dr. Castro testified that his decision was based on the assumption that custodial care was -not covered by the policy.

Hampden R. White, staff attorney for Blue Cross reviewed the Paret claim to determine whether the claim was custodial, as opposed to therapeutic, and sought outside legal advice as to the company’s possible liability if the claim were not paid. On the basis of the advice received from the general counsel for Blue Cross and discussions with other people, benefits were terminated.

An offer of proof was made relative to Exhibit D-4, a letter from the law firm of Kennon, White & Odom, advising the Blue Cross staff attorney that there was no Louisiana jurisprudence on whether Blue Cross was obligated to pay the Paret claim; it was a res nova issue. The trial judge refused to admit the proffer as hearsay.

CONCLUSION

In a suit to recover benefits under a policy, the insurer has the burden of proving facts which limit its liability. Massachusetts Protective Ass’n v. Ferguson, 168 La. 271, 121 So. 863 (1929). Construction of unambiguous terms in a policy is a matter of law rather than fact, and any exclusion from coverage must be clear and unmistakable. Jones v. Standard Life and Accident Insurance Co., 115 So.2d 630 (La.App. 2 Cir. 1959) writ denied. If more than one interpretation of an exclusion is reasonable, the one affording coverage to the insured will be adopted.

In the instant case, nursing services constitute a major medical supplement to the basic coverage and, if they are excluded under certain circumstances, the policy should make the exclusion clear. Compare Arkansas Blue Cross-Blue Shield, Inc. v. Tomkins, 256 Ark. 370, 507 S.W.2d 509 (1974). The trial court correctly charged the jury that the exclusion in question did not apply to the major medical coverage, and the jury erred in disregarding the instruction.

The insurer, itself, interpreted the policy as providing coverage for nursing services and paid for them until the amount claimed caused a reversal on the ground that the nursing care was “custodial”. It is not at all clear that “custodial” nursing care is excluded and therefore the trial judge’s charge was correct. Compare Reading v. Richardson, 339 F.Supp. 295 (D.C.1972). However, even conceding for argument’s sake that it is excluded, “custodial” care is that “marked by or given to watching and protecting rather than seeking to cure”, Webster’s Third New International Dictionary. To apply this definition to skilled nursing care would be strained construction, although all nursing care involves some element of watching and protecting the patient. Here, the nurses administered shots and monitored Mr. Paret’s blood pressure in order to determine the necessary medication. These services are beyond those involved in merely watching a patient to see that he does himself no injury.

The second question is whether defendant is liable for penalties and attorney’s fees under LSA-R.S. 22:657, which provides a penalty of double the amount of benefits due “. . . unless just and reasonable ground, such as would put a reasonable and prudent business man on his guard, exist.” for nonpayment. Even if an issue is res nova in this state, an insurer ■may be cast for penalties. McCutchon v. Mutual of Omaha Ins. Co., 354 So.2d 759 (La.App. 4 Cir. 1978) writ denied 356 So.2d 1012 (La.). However, in view of the jury’s determination that benefits were not due under the policy, we must reluctantly conclude that the insurer’s decision not to pay the claim was based on reasonable grounds. Therefore, penalties and attorney’s fees will not be assessed.

For the foregoing reasons, the judgment of the trial court herein is reversed and set aside.

It is ordered, adjudged and decreed that there be judgment herein in favor of G. L. Paret, and against Louisiana Health Service & Indemnity Company in the amount of $51,235.60, together with legal interest from date of judicial demand until paid; G. L. Paret’s demands for penalties and attorney’s fees are dismissed; the reconventional demand of Louisiana Health Service & Indemnity Company is dismissed; and all costs in the trial court and on appeal are taxed against Louisiana Health Service & Indemnity Company.

REVERSED AND RENDERED.

GUIDRY, J., concurs in the denial of penalties and attorney’s fees and assigns written reasons.

DOMENGEAUX, J., concurs in part and dissents in part and assigns reasons.

GUIDRY, Judge,

concurring.

I agree with the author’s disposition of plaintiff’s claim for recovery of benefits and dismissal of Blue Cross’ reconventional demand. I concur in the denial of penalties and attorney’s fees.

Although we ultimately determine, contrary to defendant’s contention, that the provisions of the Blue Cross policy excluding coverage are subject to more than one reasonable interpretation and are thus ambiguous, Blue Cross’ interpretation of its own policy provisions is reasonable. Under such circumstances, in my view, Blue Cross cannot be said to have been arbitrary and capricious in its denial of benefits. Under LSA-R.S. 22:657 it is not every denial of benefits which subjects the insurer to penalties and attorney’s fees, rather for an insured to recover additional benefits etc., under the cited section, it must first be established that the insurer acted without “just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard”. Although there are many cases holding to the effect that an insurer cannot escape the payment of penalties and attorney’s fees on the ground that it misinterpreted a provision of its own policy (Thomas v. Universal Life Insurance Company, 201 So.2d 529 (La.App. 3rd Cir. 1967); Sanders v. General American Life Insurance Co., 364 So.2d 1373 (La.App. 3rd Cir. 1978)) a close reading of these cases indicates that penalties and attorney’s fees were allowed because it was determined that the insurer placed an unreasonable or strained interpretation upon otherwise plain provisions. In cases, such as the instant case, where the insurer denies benefits upon a reasonable interpretation of its policy provisions and benefits are allowed only after judicial ascertainment that the subject provisions are susceptible of more than one reasonable interpretation, it cannot be said that the insurer acted arbitrarily or without just, and reasonable grounds. As stated by our brethren of the Fourth Circuit in Valladares v. Monarch Insurance Company, 282 So.2d 569 (La.App. 4th Cir. 1973):

“Certainly in light of the fact that a bona fide dispute existed between the litigants and that this case presents a matter of first impression in our jurisprudence, defendant acted reasonably in refusing to pay this claim. While we disaeree with the interpretation defendant placed on the policy we do not find defendant’s actions violative of the above quoted statute.” (Emphasis mine)

See also Cotlar v. Gulf Insurance Company, 318 So.2d 923 (La.App. 4th Cir. 1975).

For these reasons I respectfully concur.

DOMENGEAUX, Judge,

concurring in part and dissenting in part.

I agree with the result reached in this case insofar as we find plaintiff entitled to benefits and insofar as we reject the insurer’s reconventional demand. I must disagree, however, with the denial of penalties and attorney’s fees under La.R.S. 22:657.

The majority opinion supports the denial of penalties and attorney’s fees on the basis that, since the jury determined that benefits were not due under the policy, the insurer’s refusal to pay was based upon reasonable grounds. However, we have concluded in this case that the jury’s verdict was manifestly erroneous because the jury failed to follow the instructions given by the trial judge. In view of the result we reach in this case, the conclusion is inescapable that, had the jury correctly followed the trial judge’s instructions, benefits would have been awarded. I fail to see how a manifestly erroneous conclusion on the part of the jury can be equated with reasonableness on the part of the insurer. In my view, the erroneous jury verdict is irrelevant and of no consequence with regard to the issue of penalties and attorney’s fees.

I also disagree with the reasons given for the denial of penalties and attorney’s fees by the concurring opinion. The proposition advanced therein is to the effect that an insurer can escape penalties and attorney’s fees simply by placing a reasonable construction on ambiguous clauses used in its insurance contract, which construction would result in the denial of benefits, where another reasonable construction would result in granting benefits.

It has never been my understanding of the law that an insurer could escape payment of penalties and attorney’s fees by using ambiguous language in its policy which, under one reasonable interpretation would afford coverage, and under another reasonable interpretation would not, and then advancing the latter interpretation as a basis for denying benefits when the insured makes a claim. I see no reason for denying penalties and attorney’s fees in this situation.

Public policy gives rise to the proposition that ambiguities placed into insurance contracts are undesirable. The insured ought to be capable of ascertaining with certainty whether he is protected from a particular risk of loss by his insurance policy. It has long been established both statutorily and jurisprudentially that ambiguities are construed against the insurer, because it is the insurer who drafts the contract. It seems to me that the insurer ought to know that if a Court is confronted with an insurance contract which is subject to two or more reasonable interpretations, and is thereby ambiguous, the Court is going to use the interpretation which supports coverage. Any denial of coverage by a Court will be on the basis of the facts of the case, not on the acceptance of a reasonable interpretation advanced by an insurer which would result in denying coverage. Under the views expressed in the concurring opinion, an insurer, in effect, would be permitted to use ambiguity as a shield for avoiding penalties and attorney’s fees when it denies benefits which, under a judicial interpretation, are due the insured.

A review of the cases in this area does not unmistakably give rise to the conclusion that penalties and attorney’s fees are due only when an unreasonable, as opposed to a reasonable, interpretation is given to an ambiguous clause in a policy by an insurer. Certainly, if the policy clearly affords coverage, or if the insurer’s interpretation of an ambiguous policy is unreasonable, the case for awarding penalties and attorney’s fees is much stronger; but the reasonableness or unreasonableness of the insurer’s interpretation is not the critical factor. On the contrary, many cases do not even bother to discuss whether the insured’s interpretation was reasonable or unreasonable because this is not the deciding point.

The rule of law in these cases is simply framed in terms to the effect that an insurer may get a judicial construction of it policy, but it must do so at its own risk and expense, not that of the insured. E. g., Seguin v. Continental Service Life & Health Insurance Company, 230 La. 533, 89 So.2d 113 (1956); Sanders, v. General American Life Insurance Company, 364 So.2d 1373 (La.App. 3rd Cir. 1978); Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App. 3rd Cir. 1971); Niles v. American Bankers Insurance Company, 229 So.2d 435 (La.App. 3rd Cir. 1969), writ denied 255 La. 479, 231 So.2d 394 (1970).

These above cases give no indication that the only reason penalties and attorney’s fees were awarded was solely because the insurer’s interpretation of its ambiguous policy was unreasonable, and, had the insurer’s interpretation been reasonable, but incorrect, penalties and attorney’s fees would not have been imposed.

In essence, the problem amounts to the following: If the insurer bases its denial of benefits solely upon a particular interpretation of its policy, and the Court determines that the insurer’s interpretation was incorrect, then penalties and attorney’s fees should be awarded. If, however, the insurer bases its denial of benefits upon a reasonable construction of the facts of the case, and the Court gives another construction to the facts so as to award benefits, then, in that event, the insurer could be reasonable in its actions, and penalties and attorney’s fees could be denied. See Albert v. Cuna Mutual Insurance Society, supra, at p. 175.

Accordingly, I respectfully submit that penalties and attorney’s fees should be awarded in this case.

ON APPLICATION FOR REHEARING

WATSON, Judge.

On application for rehearing, the defendant has suggested for the first time that LSA-R.S. 22:657 is not applicable to the penalty issue. (The original opinion did not award penalties and attorney’s fees but analyzed the issue under the provisions of LSA-R.S. 22:657). The group policies in question provide benefits only for hospital, medical and dental care and, therefore, according to the latest expression of the Louisiana Supreme Court, they are not health and accident policies covered by LSA-R.S. 22:657. See Tabb v. La. Health Services & Indemn. Co., 361 So.2d 862 (La., 1978).

Under Tabb, the policies would be subject to the “arbitrary, capricious or without probable cause” test of LSA-R.S. 22:658, rather than the “just and reasonable grounds” test of LSA-R.S. 22:657. The denial of penalties in our original opinion was correct; the analysis under Tabb as suggested by defendant strengthens that conclusion.

Rehearing denied.

DOMENGEAUX, J., votes to grant a rehearing for the reasons assigned in his original concurring and dissenting opinion.

      . The policy language was changed, effective April 15, 1977, to read as follows:
      “ ‘Major Medical Expenses’ means the usual, customary and reasonable charges for Health Care incurred by the Member which are prescribed by the attending Physician for specified services in the Basic Coverage, and:
      * * * * * *
      8. Services of a Registered Professional Nurse (R.N.) and of a Licensed Practical Nurse (L.P.N.) licensed under the laws of the state where the service is rendered, provided the R.N. or L.P.N. is not related to the Member by blood, marriage, or adoption.” (P-7, TR. 267).

      . The exclusion in the 1977 policy reads: “3. custodial, or sanitarium care, or rest cures;” (P-7, TR. 256). There are eight specific major medical exclusions in this policy but they do not include item (3).

      . “All of the definitions, procedures, conditions, limitations, and exclusions of the Basic Contract are adopted herein and are deemed to be applicable to the coverage afforded by this Endorsement, unless they are in conflict with express provisions of this Endorsement, in which case the latter provisions shall be-deemed controlling in the interpretation hereof.” (P-6, TR. 212).
      and
      “All of the definitions, procedures, conditions, limitations, and exclusions of the Basic Coverage are applicable to this Endorsement, unless they conflict with the provisions of this Endorsement. If the provisions of the Basic Coverage do conflict with those of this Endorsement the provisions of this Endorsement will prevail.” (P-7, TR. 267).


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Mrs. Yvonne HONEYCUTT et al., Plaintiffs-Appellants, v. TOWN OF BOYCE, Louisiana, et al., Defendants-Appellees.
    No. 6773.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 23, 1979.

      Voorhies & Labbe, D. Mark Bienvenu, Lafayette, Wahlder & Wahlder, Michael Wahlder, Alexandria, for plaintiffs-appellants.
    Downs & Downs, James C. Downs, Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is an action by Mrs. Yvonne Honey-cutt, surviving spouse of Merlin Honeycutt, and decedent’s two children by a previous marriage, Lonnie Honeycutt and Mrs. Diana Honeycutt Daley, against the Town of Boyce, Louisiana, and Jim Hillman, individually and as marshal of the Town of Boyce, to recover damages for the death of Merlin Honeycutt.

On January 8, 1973, Jim Hillman, the duly elected City Marshal of the Town of Boyce, shot and killed Merlin Honeycutt. Suit was filed alleging that the Town of Boyce was liable because Hillman was in the course and scope of his employment with the Town of Boyce at the time of the shooting. The Town of Boyce filed an exception of no cause of action which exception was sustained by the trial court dismissing the suit against the Town of Boyce on the ground that the town could not be held responsible for the general law enforcement duties of an elected official, the marshal. That issue, along with other issues with which we are not concerned on this appeal, was appealed to this court. The answer filed by Jim Hillman stated that he was in the course and scope of his employment and he shot Honeycutt while he was making an arrest. On these grounds this court concluded that the trial court had erred in sustaining the exception of no cause of action.

This court held that, even though the marshal of the Town of Boyce is an elected official (LSA-R.S. 33:381) whose functions are provided for by statute (LSA-R.S. 33:423), if at the time of the shooting Hill-man was acting in his capacity of marshal of the Town of Boyce and was serving a warrant of arrest as the marshal of the Town of Boyce, Hillman would be acting in the course and scope of his employment for the Town of Boyce. The trial court’s dismissal of the plaintiff’s suit was affirmed on other grounds. Honeycutt v. Town of Boyce, Louisiana, 327 So.2d 154 (La.App.3rd Cir. 1976). The Supreme Court granted writs of certiorari and upheld this court’s ruling as to the Town of Boyce, but reversed and remanded on other grounds. 341 So.2d 327 (La.1976).

At the trial on the merits, the court ruled that at the time of the shooting Jim Hill-man was not, as a matter of fact, in the process of making an arrest but that he shot and killed Honeycutt as a result of a personal vendetta of long standing. The court then rendered judgment in favor of the plaintiffs and against Jim Hillman, individually, and dismissed the suit against the Town of Boyce, Louisiana. From this judgment the plaintiffs appeal.

The question on appeal is whether the trial judge committed manifest error in his factual determination that Hillman was not acting in the course and scope of his employment at the time of the shooting.

The trial court favored this court with detailed written reasons for judgment. The issues are factual and depend largely on the credibility of the various witnesses who testified. We have examined the record and find that the trial court’s findings are amply supported by the record. We find no manifest error in the trial court’s conclusion and same shall be affirmed. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Costs of this appeal are taxed against plaintiffs.

AFFIRMED.


author: DOMENGEAUX, Judge. GUIDRY, Judge,

text:
    Timothy KIRK, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6772.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 23, 1979.
    Carter & Laurent, Wilford D. Carter, Lake Charles, for plaintiff-appellant.
    Levingston, Tynes, Liles & Ezell by Maurice L. Tynes, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, WATSON, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This appeal results from a jury trial by which plaintiff sought to recover for damages allegedly sustained in an intersectional collision.

The accident occurred on a dry, sunny day in. the afternoon hours of April 26,1977, in Lake Charles, Louisiana. Plaintiff, Timothy Kirk, was driving his 1970 four door Chrysler north on Blake Street, accompanied by a passenger, Mrs. Irene Bernard. Mrs. Brenda Lavine, one of the defendants, was driving her 1973 two door Ford west on Katherine Street with her two year old child. Blake and Katherine Streets intersect each other. Katherine Street is marked with yield signs at the intersection, and, therefore, Blake is the favored street.

Apparently, Mrs. Lavine failed to yield at the intersection, and the Kirk vehicle struck the Lavine vehicle on the driver’s side. The force of the impact spun the Lavine vehicle around, causing it to jump a curve, knock off a manhole cover, and hit a utility pole on the opposite side of the Lavine vehicle.

Mr. Kirk brought this suit against Mrs.-Lavine and her insurer, Allstate Insurance Company, in order to recover for personal injuries sustained in the accident. He contended that the accident occurred solely because of the negligence of Mrs. Lavine and also prayed for a trial by jury. Defendants answered and specifically pled contributory negligence on the part of Mr. Kirk as a bar to his recovery.

After trial and deliberation, the jury returned a verdict against plaintiff. Accordingly, judgment was entered rejecting his demands at his costs. Defendant thereupon moved for a new trial, which was denied by the trial judge. In his oral reasons, the trial judge observed that his verdict would have been different if he had been the trier of fact but, inasmuch as there was evidence upon which the jury could have found contributory negligence on the part of defendant, he felt constrained to deny the motion for a new trial. Plaintiff perfected this devolutive appeal.

The threshold issue involved in this appeal is whether the jury was manifestly erroneous in finding plaintiff contributorily negligent.

The oft-quoted rule of Canter v. Koehring, 283 So.2d 716 (La.1973), relative to an appellate court’s review of findings of fact made at the trial level, is stated as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel fhat its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

It is our task in this case to determine if the jury was manifestly erroneous, within the context of Canter, in concluding that plaintiff was contributorily negligent. After an examination of the evidence in the record, we conclude that the jury was not.

We start with the testimony of Mrs. La-vine. She testified that she was going approximately 15 to 20 miles per hour upon entering the intersection. When she entered the intersection, she first looked northward on Blake Street, or to her right. No cars were approaching. She then looked southward, or to her left, and saw the Kirk vehicle approaching. Since she was already blocking part of the intersection, she decided to accelerate in order to get out of the way of the Kirk vehicle. She testified that at no time did she actually apply her brakes. Mrs. Lavine also stated that she misjudged Mr. Kirk’s rate of speed. She was adamant in her testimony that had he been going slower or had he attempted avoidance maneuvers, the accident possibly could have been avoided. She also stated that after the collision, Mr. Kirk approached her vehicle in order to find out who the driver of the car was.

Mr. Kirk testified that he saw the Lavine vehicle before she reached the intersection. At one point he testified that he thought that defendant’s vehicle had stopped at the corner at the yield sign; however, at another point, he stated that he merely assumed that she was going to stop. He stated that he was proceeding at a rate of approximately 20 to 25 miles per hour in a 35 miles per hour zone. He testified that he did not feel that he had enough time to apply his brakes before the collision occurred and that he did not apply his brakes. He stated that after the collision he approached the Lavine vehicle in order to find out if anyone was injured.

Mrs. Irene Bernard, the passenger in the Kirk vehicle, testified that the plaintiff’s vehicle was traveling at approximately 30 to 35 miles per hour. She stated that it did not appear to her that the Lavine vehicle was slowing down for the yield sign. She said that when she saw the Lavine vehicle, she hollered to plaintiff that there was a car in front of him, and that he said he saw it, but could not do anything about it. It should be noted that she later said that plaintiff did not reply to her warning verbally, but did try to apply his brakes. The witness also stated that it appeared to her that the Kirk Chrysler was a total loss.

Officer Eric Seiley, the investigating police officer, testified that the collision took place in approximately the middle of the intersection. Defendant’s car was struck by the front of plaintiff’s vehicle approximately in the middle of the driver’s side. He stated that it was a dry, sunny day, but that after the impact, defendant’s vehicle spun around, went over a curb, knocked off a manhole cover, and struck a utility pole. He also stated that the right or passenger side, especially the right rear, of the Lavine vehicle was damaged because of its striking the utility pole. He further testified that plaintiff told him at the scene of the accident that he was traveling at approximately 35 miles per hour. Officer Seiley stated that the right front tire of plaintiff’s vehicle left seven feet of skid marks and that the right rear tire left 40 feet of skid marks. No explanation of these unusual measurements was given.

We feel that the jury could have concluded from this evidence that plaintiff was contributorily negligent on the basis that he continued into the intersection after he should have known that Mrs. Lavine was not going to yield to his right-of-way. The following evidence is supportive. Mrs. La-vine stated that at no time did she apply her brakes before entering the intersection. Mrs. Bernard, plaintiff’s passenger, testified that she did not think Mrs. Lavine was slowing down and that she had sufficient time to convey a warning to Mr. Kirk before the collision occurred that defendant was continuing to proceed. In addition, Mr. Kirk testified that he saw the Lavine vehicle before it entered the intersection and that he at no time attempted to apply his brakes. Finally, the Lavine vehicle was struck after it was midway into the intersection.

Preferences on favored streets created by statutes, signals, or signs, do not relieve the driver traveling on the favored street from ordinary care. When the superior motorist should realize reasonably that the inferior motorist will continue his approach and obstruct the superior motorist’s passage across the intersection, he is guilty of negligence should he fail to take every precaution to avoid a collision. Randall v. Baton Rouge Bus Company, 240 La. 527, 124 So.2d 535 (1960); Doyle v. Employer’s Fire Insurance Company, 349 So.2d 450 (La.App. 3rd Cir. 1977), writ denied 351 So.2d 775 (La.1977); Meynier & Dillman Hardware Company v. Aronson, 229 So.2d 365 (La.App. 4th Cir. 1969), writ refused 255 La. 485, 231 So.2d 396 (1970); Roussell v. Strug, 225 So.2d 34 (La.App. 4th Cir. 1969).

We also feel that the jury could have found, under the factual ' circumstances presented in this case, that plaintiff was either speeding or proceeding too fast on Blake Street. Although plaintiff maintains that he was going only 20 to 25 miles per hour, his passenger testified that they were proceeding at 30 to 35 miles per hour. Furthermore, Officer Seiley stated that plaintiff said at the scene of the accident that he was traveling at approximately 35 miles per hour. In addition, there is no dispute that the impact of the collision was sufficient to send the Lavine vehicle into a spin on a clear, dry day with sufficient momentum such that it jumped the curve, knocked off a manhole cover, and hit a utility pole in the right rear section of the vehicle. This occurrence could certainly have influenced the jury, and we feel this could have supported the inference that plaintiff was going too fast.

Of no little significance in this case is the question of credibility of witnesses, which is an integral part of the manifest error rule of Canter v. Koehring Company, supra. There were several obvious discrepancies and inconsistencies in the testimony of plaintiff. Most of these were highlighted by defense counsel, who made several attempts at impeachment. The success of these attempts is a matter of speculation; however, it obviously could have had a strong impact on the jury in the final weighing of the evidence.

We are not unmindful of the case of Riddle v. Menard, 355 So.2d 1350 (La.App. 3rd Cir. 1978), writs denied 359 So.2d 627 (La.1978), in which this court reversed the factual findings of a jury, which had found contributory negligence and last clear chance in a similar intersectional collision case. In that case, plaintiff, Mrs. Anna Soileau Riddle, was proceeding on a favored street when she approached an intersection in which defendant, Mrs. Sandra Menard, was traveling. Mrs. Menard failed to yield, and the front or right fender of Mrs. Riddle’s vehicle struck the left front of Mrs. Menard’s vehicle. The jury specifically found contributory negligence on the part of Mrs. Riddle and also found that she had the last clear chance to avoid the accident.

There are distinguishing factors between the Riddle case and the case presently before us. In Riddle, the trial judge expressed his opinion that the jury verdict, finding contributory negligence on the part of plaintiff, was unjust. He thought that plaintiff was a “helpless victim” and felt that she was guilty of no negligence and did not have a last clear chance to avoid the accident.

In reversing the jury’s conclusions, we found that Mrs. Riddle had already entered the intersection before she saw the defendant’s vehicle. We found no evidence to indicate that Mrs. Riddle was exceeding the speed limit and no evidence that she failed to keep a proper lookout. There was evidence, however, that Mrs. Riddle did attempt to turn her wheel in order to avoid the collision. We concluded that under the facts presented in that case, there was simply no evidentiary basis for the jury’s finding of contributory negligence or last clear chance.

In the present case, although the trial judge stated that had he been the trier of fact his conclusions would have been different from the jury, he also stated that he thought there was some evidence in the record from which contributory negligence could be concluded. In addition, there are present in this case several serious questions of credibility, which could have shed doubts upon plaintiff’s version of the accident. There also is evidence to indicate that plaintiff took no steps to avoid the accident, as well as an indication that plaintiff saw Mrs. Lavine’s vehicle before he reached the intersection and that he should have known that she was not going to yield to his right-of-way. In addition, there is evidence in the record from which the jury could have drawn the inference that plaintiff was driving too fast. In short, we simply feel that the circumstances in this case are different from those presented in Riddle. Thus, we affirm the jury’s finding.

For the above reasons the judgment of the District Court is affirmed at plaintiff’s costs.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge,

dissenting.

In my opinion the record reflects no reasonable factual basis for the jury’s finding of contributory „ negligence on the part of plaintiff. For this reason I respectfully dissent from affirmation of a judgment which denies his recovery of damages.


author: GUIDRY, Judge.

text:
    Leon WILLIAMS, Plaintiff-Appellant, v. MIKE QUEENAN EQUIPMENT COMPANY, INC., et al., Defendants-Appellees.
    No. 6775.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Feb. 7, 1979.

      Baggett, McCall, Singleton & Ranier, Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellant.
    Plauche, Smith, Hebert & Nieset, Allen L. Smith, Jr., Lake Charles for defendant-appellee.
    Raggio, Farrar, Cappel & Chozen, Richard A. Chozen, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

This is an appeal from the granting of a motion for summary judgment in a personal injury action in favor of the defendants, Mike Queenan Equipment Co., Inc. (Queen-an), the general employer of the alleged tortfeasor, and its insurer, National Security Fire and Casualty Company.

This suit arose out of an accident which occurred on April 30, 1976 at the Nelson Power Plant in Calcasieu Parish, Louisiana. On that date, the plaintiff, Leon Williams, was employed by the Nooter Corporation (Nooter), one of several contractors engaged in fabricating and erecting equipment at the plant. Nooter had rented a large mobile crane from Queenan to be utilized in unloading and storing steel plates that were delivered to the job site. Under the terms of the rental agreement, Queenan was to supply an operator for the crane who would be paid an hourly rate by Queenan. Queenan, in addition to rental for the crane, was reimbursed for the operator’s wages by Nooter. The operator assigned to this particular job was Elmer Finch, a long-time employee of Queenan.

On the day of the accident, the crane was being used to remove sheets of steel from a railway car, place them in a truck for delivery to the job site, and remove the steel from the truck to a storage area. Elmer Finch was operating the crane. Guy Flood, also an employee of Queenan, was driving the truck, owned by Queenan and leased to Nooter. Two of Nooter’s employees were assigned to attach the crane lifting device to the steel plates, and two more employees of Nooter guided the plates down from the truck or car and detached the crane from its load. A Nooter foreman, Mr. Mims, was in charge of this operation.

Leon Williams was assisting in the truck when the accident occurred. As the crane lifted one of the steel plates, there was a sudden shift in the load, causing the plaintiff and another Nooter employee to jump from the truck to the ground. When he landed on the ground, plaintiff allegedly injured his heel and asserts that he is now permanently disabled as a result of the fall.

This suit was filed by the plaintiff against Queenan alleging the negligence of the crane operator, Elmer Finch, as a cause of his having to jump from the truck and sustain the aforementioned injuries. Queenan and its insurer subsequently filed a motion for summary judgment seeking a dismissal of plaintiff’s suit on the ground that Finch was a borrowed employee of Nooter at the time of the accident and therefore Nooter would be responsible for any negligence of Finch under the doctrine of “Respondeat Superior” and the lending employer, Queenan, would have no liability. The trial judge, after examining the evidence, ruled in favor of defendants. Plaintiff appeals from the dismissal of his suit.

Our review of the record reveals the following pertinent facts to be uncontradicted and without genuine dispute: Queenan had no interest in the operation in progress at the time of the accident. Queenan had only the right to receive lease payments for the use of its crane, and to be reimbursed by Nooter for the amount of wages it paid to Finch and Flood. Finch reported to Nooter’s personnel for his instructions while on the job. The crew of Nooter employees participating in the operation had a foreman by the name of Mims, and it was he who directed the crew and instructed the crane and truck operators throughout the loading and unloading process. All special operating instructions were given to Finch by Nooter employees. Queenan was not engaged in the construction project and had no interest in the finished product. Nor was Queenan interested in the manner or time it took to complete the project. The above stated material facts are without dispute. Based upon these undisputed facts, the court below determined that, as a matter of law, Finch was the borrowed employee of Nooter at the time of the accident, and that the lending employer, Queenan, was not responsible for the negligence, if any, of Finch under the doctrine of respon-deat superior. In this connection, the trial court stated:

“Finch reported to work on the morning of the accident at the Nooter job site and not the Queenan office. Nooter employees told him what the crane was needed for that day and he was directly under control of Nooter employees up to the time of the accident. For these reasons, the court concludes that under the undisputed set of facts, the negligence of Elmer Finch, if any, could not result in the liability of defendant, Mike Queenan Equipment. ”

We reverse.

The trial court decision in this case was rendered prior to the very recent decision of the Louisiana Supreme Court in LeJeune et al. v. Allstate Insurance Co. et al., 365 So.2d 471. We find the LeJeune case to be factually apposite to the instant ease, and the decision therein dispositive of the issue before this court. In the LeJeune case, plaintiff’s decedent was a regular employee of Ardoin’s Funeral Home of Mamou, Inc. (Mamou). He was killed as a result of the negligence of the defendant, Lafleur, a regular employee of Ardoin’s Funeral Home of Ville Platte, Inc. (Ville Platte), who had been borrowed by Mamou. Decedent’s survivors sought tort recovery from the general employer, Ville Platte, under the doctrine of “Respondeat Superior”. In LeJeune, the Court concluded that Ville Platte, the general employer, was liable for damages caused to a third person (LeJeune) as a result of the loaned employee’s negligence. In so concluding, the Court stated:

“Ultimately, however, we determine that for at least some purposes Lafleur may indeed have been a borrowed employee of Mamou, as working under Mamou’s direction at the time of the accident. For instance, Mamou may indeed be responsible for workmen’s compensation to him or for his negligent acts to others, arising out of an accident while Lafleur was performing work for Mamou under its supervision.
Nevertheless, this determination should not relieve the general employer of his liability for his employee’s negligent acts done in the pursuance of duties designated for him by his employer, in whose pay he continued and who had the sole right to discharge him. This is especially so in the present case, where the employee was loaned out to another in a continuing arrangement between the employers for their mutual benefit. .
In Lowenburg v. Labor Pool of America, Inc., 296 So.2d 846 (La.App. 4th Cir. 1974), the court held both general and special employer solidarily liable in tort to a third person injured by the employee’s negligent act. The court pointed out that while the borrowed employee was subject to the special employer’s supervision and direction while performing work for him, nevertheless he remained in the employment of and subject to direct orders of his general employer, who had ordered him to perform duties for the special employer. We denied certiorari sought by both the special employer, 300 So.2d 191(1) (La.1974) and the general employer, 300 So.2d 191(2) (La.1974).
In our view, this principle is here applicable. It is consistent with our holding that both general and special employer are solidarily liable to the borrowed employee for workmen’s compensation, if he is injured at work for the special employer. Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958). Further, as we have noted, despite the confusion in the jurisprudence — in that seemingly indistinguishable facts produce disparate results as to whether a borrowed employee is still subject or not to the control of his general employer so as to have abandoned or not the latter’s employment — , the jurisprudence almost uniformly has held the general employer liable to a third person for the employee’s torts, when that issue has arisen.
A number of other jurisdictions have likewise held that both the general and special employer may be held solidarily liable for the employee’s tort. We believe this to be the better rule and, accordingly, overrule expressions indicating to the contrary, as well as the two decisions of the intermediate courts which expressly held the general employer not liable to a third person for torts committed by his employee while loaned to a special employer.
We conclude, therefore, that under the circumstances, Ville Platte, the general employer, is liable to the plaintiffs for the damages caused them by Lafleur while negligently driving the hearse for Mam-ou.” (Footnotes omitted)

In the instant case, as in LeJeune, Finch (the borrowed employee) was working under Nooter’s direction at the time of the accident. However, he was assigned to work for Nooter by Queenan, and he continued to receive his pay from Queenan, who had the sole right to discharge him. We conclude that in light of the Supreme Court’s decision in LeJeune, supra, the trial court erred as a matter of law, in rendering summary judgment in favor of the defendants.

For the above and foregoing reasons, the judgment appealed from is reversed and set aside and this matter is remanded to the trial court for further proceedings consistent with the views expressed herein. All costs of this appeal are assessed to appel-lees.

REVERSED AND REMANDED.


author: FORET, Judge.

text:
    Jeanette BERTRAND et al., Plaintiffs-Appellees, v. Maxim BOURQUE, Jr., et al., Defendants-Appellants.
    No. 6798.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.

      Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for defendants-appellants.
    John F. Craton, Crowley, for plaintiffs-appellees.
    Donald R. Jory, Jennings, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

This appeal arises from a successful action by the plaintiffs in setting aside certain sales by Orteria Bourque, now deceased, as simulations. The determinative issue is who bore the burden of proof as to whether the sale to Herschel Bourque was valid or simulated and whether any such erroneous ruling by the trial court harmed the appellants.

Mrs. Orteria Bourque was the mother of four children. In September of 1976, Mrs. Bourque conveyed by warranty deed certain properties located in Jefferson Davis Parish to two of her children, Maxim and Jessie, and to her grandson, Herschel Bourque, the issue of Maxim Bourque. The two remaining children, plaintiffs-appellees, sued to have these three sales annulled. A stipulation was entered into admitting that the sales to Jessie and Maxim Bourque were simulations. The sole dispute remaining was whether there was a valid sale to her grandson, Herschel. The trial court felt not, and accordingly, entered a judgment finding all sales invalid as simulations. Herschel has suspensively appealed from this decision.

As set forth in his opinion, the district judge found that the defendant had not proved the disputed sale was valid. This apparently cast the burden of proof directly upon the defendant by requiring that he initially come forth with evidence showing the transaction was not simulated. Appellant argues that the court committed reversible error by improperly placing the burden of proof upon Herschel Bourque. We agree that the precise wording of the opinion seems incorrect but, for reasons stated below, we find that any possible error was harmless and consequently we affirm the judgment of the trial court.

It is well recognized that because of their nature, simulations can normally only be proven by indirect and circumstantial evidence. To facilitate justice, our courts have held that:

“[if] one alleging a simulation produces evidence of circumstances which create highly reasonable doubts or suspicions as to the honesty of the transaction, a prima facie case is considered as having been made out, and the burden of proof is shifted to the defendant to show that a valid sale existed.” Smith v. Smith, 239 La. 688, 119 So.2d 827 (La.1960).

See also Ingram v. Freeman, 326 So.2d 565 (La.App. 3 Cir. 1976).

Although the trial judge’s opinion does not make it perfectly clear, he might have first found that the plaintiffs had presented a prima facie case, thereby shifting the burden to the defendant. It is possible at this point that the judge found that the defendant had not carried forth enough support for his position.

Nevertheless, a careful examination of the evidence presented and the circumstances surrounding the “sale” support the conclusion that a presumption of simulation is appropriate in this case. The burden of proof now properly invoked upon the defendant, the result reached by the trial court is to be affirmed unless the defendant has sufficiently discharged that burden by removing most doubts of impropriety.

During the last years of her life, Orteria Bourque lived with Jessie and Maxim Bourque, who cared for her and attended to her daily needs. Mrs. Bourque’s contacts with the plaintiffs were very limited. It is also undisputed that Maxim Bourque handled her business and financial affairs during this period.

Appellant, Herschel Bourque, was employed by his father, Maxim, who owned and operated a water well drilling company. The recited consideration for the disputed sale was a check issued to Orteria Bourque, signed by Maxim and Herschel Bourque, and drawn on “Maxim’s Water Well Service.” The check, allegedly a loan from Maxim to Herschel, was endorsed, cashed and supposedly this money was deposited by Mrs. Bourque back into another “Maxim Water Well Service” account instead of her own account. (Tr., pgs. 113-116) From this point forward, the trial judge had serious doubts about what actually transpired.

The evidence showed that Mr. Maxim Bourque had complete control over Mrs. Bourque’s account. He stated that he paid this money out in providing services for his mother. He also admits that he made gifts. However, the lower court found that there “is no evidence that he paid anything for the care of his mother . . . ”

There was no substantiation that this transaction was any different than the other two stipulated to be simulations and paid by check in the same fashion. (Tr., 107-108 and 116). The trial court also found that “[tjhere is no evidence . . . [of a] loan from Mr. Bourque to his son, Herschel; there’s no evidence that this was ever repaid by Herschel to Mr. Bourque.” There are other factual findings made by the court which lead to the same conclusion. These findings are well supported by the record. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

In conclusion, even if the trial judge initially cast the burden of proof upon the appellant, the result reached was correct since the defendant has not removed doubts as to the validity of the “sale”. This being so, any possible mistake would be harmless error, not sufficient to call for a reversal. Prince v. Travelers Ins. Co., 320 So.2d 227 (La.App. 3 Cir. 1975); Carlton v. Great Am. Ins. Co., 340 So.2d 678 (La.App. 4 Cir. 1976). To reiterate, the trial court may have actually applied the proper legal principles to this case, placing the burden of proof on appellant only after it was convinced that a presumption of simulation was warranted and that the burden had shifted to the defendant-appellant. In either case, the result is correct.

For the above reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: LEE, Justice, for the Court:

text:
    W. B. (Bill) HARRIS v. HARRISON COUNTY BOARD OF SUPERVISORS et al.
    No. 50764.
    Supreme Court of Mississippi.
    Jan. 10, 1979.

      T. J. Buchanan Heiss, Gulfport, for appellant.
    Boyce Holleman, Ben F. Galloway, III, Gulfport, for appellees.
    Before SMITH, LEE and COFER, JJ.
   LEE, Justice, for the Court:

W. B. (Bill) Harris filed suit in the Chancery Court of Harrison County seeking to enjoin the Harrison County Board of Supervisors from levying and collecting a two-mill ad valorem tax for garbage collection and disposal in certain unincorporated areas of said county. From a decree dismissing the bill of complaint, Harris appeals here.

On May 22, 1964, the Mississippi Legislature passed the following local and private legislation:

“Chapter 697
SENATE BILL NO. 1999
AN ACT to authorize the board of supervisors of Harrison County, Mississippi, to collect, gather, transport and dispose of garbage and rubbish in the unincorporated areas of Harrison County and to levy a tax for the expenses thereof, and for related purposes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
Section 1. The Board of Supervisors of Harrison County, Mississippi, is hereby authorized, in its discretion, to purchase equipment and employ necessary personnel to collect, gather, transport and dispose of garbage and rubbish in the unincorporated areas of Harrison County.
Section 2. Said board is further authorized to levy not in excess of two (2) mills ad valorem tax on all taxable property in the county, or district, wherein said garbage and rubbish is gathered, collected, transported, and disposed of.
Section 3. That any laws, or parts of laws, in conflict herewith be and the same are hereby repealed.
Section 4. That this act shall take effect and be in force from and after its passage.
Approved May 22, 1964.”

Pursuant to that act, the Board of Supervisors adopted an order at its September, 1964 meeting creating three (3) garbage disposal districts in said county, and setting out that there was a need for same in certain unincorporated areas where garbage and rubbish accumulated after having been hauled and dumped in open places, on public rights-of-way, and in road drainage ditches; that such areas became unsightly, creating a stench and breeding place for flies, insects and disease germs; and that such conditions were a menace to the health of the local communities and the entire county. The order further set forth that, by subsequent order, an ad valorem tax levy would be made in each of said districts for the purpose of raising necessary funds to carry out the provisions of such order. Subsequently, and for the period up to institution of this suit, a two-mill ad valorem tax levy was imposed upon all the property of said garbage disposal districts for the purpose of funding same.

Appellant resides in the City of Gulfport and owns no property in the unincorporated area of said county, which comprises part of the garbage disposal districts. In his complaint, he charged that the said Senate Bill 1999, Chapter 697, Local and Private Laws of the 1964 Regular Session, Mississippi Legislature, was void as being in violation of Section 112, Mississippi Constitution 1890, which states, among other things: “Taxation shall be uniform and equal throughout the state. . . Property shall be assessed for taxes under general laws, and by uniform rules . . . .”

He further charged that said act is not a general tax law as required by said Section 112, that it is limited to Harrison County unincorporated areas and is not uniform and equal throughout the state, since garbage and rubbish are in the same classification purpose throughout the state; and that Mississippi Code Annotated Sections 19-5-17 and 19-5-21, et seq. (1972) are general laws having application over all the state and supersede Senate Bill 1999. Appellant also charged that the said Act denies to citizens residing in the garbage disposal districts equal protection of the law and due process of law guaranteed to them by the Fourteenth Amendment to the United States Constitution in that (as set forth in Sec. 112, Miss.Const.1890) taxation shall be uniform and equal throughout the state; that property shall be assessed for taxes under general laws and by uniform rates; and that no such ad valorem tax could be levied against a citizen’s property until notice of the intent of the County Board of Supervisors to levy such a tax was first published three (3) weeks in a newspaper of general circulation in the county.

The parties stipulated to the passage of the Act, the purpose for which the garbage disposal districts were created, and the two-mill levy for funding said districts. There was nothing in the stipulation to cover notice of the levy.

I.

Did the lower court err in ruling that Article IV, Section 112, Miss.Const.1890, did not apply to the Harrison County garbage disposal ad valorem tax and in failing to find that Senate Bill 1999, Chapter 697, Miss. Local and Private Laws, 1964 Regular Session, Miss. Legislature, was void as vio-lative of the provision of said section of the Constitution requiring taxation to be uniform and equal throughout the state and taxes assessed under general law by uniform rules?

The chancellor held:

“In the case at bar the attack appears to be on the rate levied by the county, rather than on the assessment, for all property in the county similarly situated is assessed in the same mode, although this is not to say that all assessments are equal. But this question is not before the court, nor are there any facts or proof or stipulation upon which the court could base any decision as to whether they are or are not uniform in assessment for, as stated, the attack here in the instant case is on the additional two mills levied in support of the garbage disposal districts, rather than the question of assessment of the valuation of the property, or any property.
On the question of valid rates of taxation in support of special authorized undertakings by counties or other governmental subdivisions, the rate of taxation is not equal and uniform with other counties or governmental subdivisions which do not have or undertake the same authorized developments or projects. Also, it is obvious that smaller populated counties often do not have the needs or problems of the larger populated counties and it is within the power of the legislature, constitutionally, to authorize special projects, including the levy of additional taxes for payment of same, as in the case at bar, wherein the legislature found and so expressed in its above cited statute that the tax could be levied on all taxable property in the county, wherein also the order of the Board of Supervisors creating the three garbage disposal districts provided that such garbage collection and disposal districts were necessary because of the unwholesome and unhealthy conditions resulting from the handling of garbage and rubbish by individuals and dumped in open areas on public roads, rights-of-ways and in road drainage ditches, and that the deterioration of such garbage created such a stench and breeding place for flys, insects and germs to the extent as to be a health hazard to the local communities and the entire county, and that effort had been made to stop such practice prior to levying said tax, but without avail.
Thus the tax was levied for a proper purpose and in the public interest and was authorized by act of the legislature.”
Section 87, Miss.Const.1890, provides:
“No special or local law shall be enacted for the benefit of individuals or corporations, in cases which are or can be provided for by general law, or where the relief sought can be given by any court of this state; nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, and would be advantageous, no special law shall be enacted.”

Construction of the above section does not require that all local and private laws violate the Constitution. Although general laws are preferred over private laws, the function of deciding the wisdom and propriety of enacting special laws is-in the legislature and not in the courts, and courts will not refuse to enforce such laws merely because it may be felt that a general law would have been more suitable. Feemster v. City of Tupelo, 121 Miss. 733, 83 So. 804 (1920).

Section 112, Miss.Const.1890, sets forth:

“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. But the legislature may provide for a special mode of valuation and assessment for railroads, and railroad and other corporate property, or for particular species of property belonging to persons, corporations, or associations not situated wholly in one county. But all such property shall be assessed in proportion to its value, and no county, or other taxing authority, shall be denied the right to levy county and special taxes upon such assessment as in other cases of property situated and assessed in the county. But the legislature may provide a' special mode of assessment, fixing the taxable year, date of the tax lien, and method and date of assessing and collecting taxes on all motor vehicles.”

Turner v. Cochran, 89 Miss. 206, 42 So. 876 (1906) and Jones v. Drainage District, 102 Miss. 796, 59 So. 921 (1912) hold that Section 112 has no application to local assessments.

Murray v. Lehman, 61 Miss. 283 (1883), stated the rule that, while the legislature is to select the subject for taxation, it is mandatory that all persons in a like class and all property of the same kind be subjected to the same common taxation. That case held a local and private bill unconstitutional because it imposed a tax on those persons filing suit in Warren County which fell on and benefited the entire state, the payment of state judges’ salaries. However, Murray is distinguished from the present case in that the tax was being used to pay for a service which was the responsibility of the entire state and was, in all areas, otherwise paid from the State Treasury. There was nothing special or peculiar about filing suit in Warren County that would justify the tax.

In the present case, a sanitary condition existed in Harrison County, one of the most populous counties in the state, which required prompt attention for the welfare of the general public in the county, and it cannot be said that such condition was a common characteristic or constituted a classification for every other county in Mississippi. Appellant relies upon Smith v. Transcontinental Gas Pipeline Corp., 310 So.2d 281 (Miss.1975) and Wilson v. Jones Co. Board of Supervisors, 342 So.2d 1293 (Miss.1977) that Harrison County could not be singled out or treated differently from other counties in the state. The statutes under review in the above cases were part of the general law of the state and were not local and private enactments. Both cases held in effect that different treatment afforded different and various entities must be based on some rational and reasonable ground bearing a proper relation to the object sought to be accomplished.

In Turner v. Cochran, supra, the legislature passed a bill dividing Jasper County into two (2) judicial districts and providing for the erection of a courthouse and jail with the revenue to be provided by taxing the property in the newly-created district only. The Court held that Section 112 of the Constitution was not violated because that section does not prohibit local assessments and, as to the new judicial district, the assessment was equal and uniform. The Court said:

“The very able argument of counsel for appellants fails to convince us that these provisions are ultra vires. Section 112 of the constitution is, as we think, not violated, because, as uniformly held, it is not prohibitive of local assessments for local convenience, and as to the locality the assessment is equal and uniform, and, as we all agree, the act in fact makes a new county for court purposes.” 89 Miss, at 213.

In Culley v. Pearl River Industrial Commission, 234 Miss. 788, 108 So.2d 390 (1959), Culley charged that a two-mill levy violated Section 112 of the Constitution when applied to property in the Pearl River Valley Supply District. This Court said:

“Furthermore, the taxes are imposed equally on property within the District. No requirement of uniformity or equal protection under the Mississippi and Federal Constitutions limits the power of the Legislature in respect to the allocation, distribution and application of public funds. 84 C.J.S. Taxation § 34. The equal and uniform requirement relates to the levy of taxes, and not to the distribution or application of the revenue of the State. 51 Am.Jur., Taxation, Sec. 165. A somewhat similar ad valorem levy under the BAWI Act was upheld in Albritton v. City of Winona, 1938, 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436.” 234 Miss. at 813, 108 So.2d at 399.

In the present case, the assessments and tax levy are equal and uniform throughout the respective garbage disposal districts, and we are of the opinion that the Senate bill does not violate Sections 87 and 112, Miss.Const.1890.

II.

Did the court err in ruling that the Harrison County Board of Supervisors was, as a matter of law, presumed to have met any requirement of notice to the public of the intent to levy the Harrison County garbage disposal ad valorem tax due to its being a quasi-judicial body, and the stipulation by counsel being silent thereon?

Appellant argues that the chancellor should not have presumed as a matter of law that notice of the tax levy was given. The chancellor found the following on the question of notice:

“Prior to the enactment of the last cited Code section, the statute under which the Harrison County Board of Supervisors levied the additional two mills in taxes had long been in existence and effect prior to the enactment of Section 19-5-23.
Also, the stipulation made by counsel is insufficient for the court to make any definite determination as to notice on the initial tax pursuant to the 1964 act of the legislature cited hereinabove or whether any such notice was given. These are matters which must be in the record, whether by proof or by stipulation and not by argument, nor can the court speculate on same. The Board of Supervisors is a quasi-judicial body and the presumption of validity controls, even where the record is silent on the question of notice, where there is no proof to the contrary.”

There is a presumption that public officers perform their duties in the manner required by law and it is the responsibility of any person challenging the validity of an official, or official act, to show the invalidity by clear proof. Caruthers v. Panola County, 205 Miss. 403, 38 So.2d 902 (1948); Bishop v. Chickasaw County, 182 Miss. 147, 180 So. 395 (1938).

The stipulation does not indicate that there was not published a proper notice of the levy, there is no proof to the contrary, and we hold that the chancellor was correct in finding that the presumption of validity controlled. Nickey v. Mississippi, 292 U.S. 393, 54 S.Ct. 743, 78 L.Ed. 1323 (1933); Anderson Bros. v. Stone, 227 Miss. 26, 85 So.2d 767 (1956).

III.

Did the lower court err in failing to rule that the said Senate Bill 1999 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and was, therefore, together with the Harrison County garbage disposal tax levied under its purported authority, void?

Appellant contends that there is no reasonable basis for classifying Harrison County by itself separate from the other eighty-one (81) counties. This argument has been discussed in Assignment No. I. Suffice it to say, the question of classification is for the legislature and there is a presumption in favor of legislative classification. The burden was upon appellant to show the invalidity of the legislative enactment by clear proof and he failed to meet that burden. Loden v. Mississippi Public Service Commission, 279 So.2d 636 (Miss.1973).

Appellant argues throughout his brief that Sections 19-5-17 through 19-5-27, Mississippi Code Annotated (1972) supersede and repeal Senate Bill 1999. These sections were enacted and approved March 31, 1966. Section 19-5-27 reads:

“It is the intention of sections 19-5-19 to 19-5-27 to provide counties a supplementary method for handling garbage and rubbish removal. It does not purport to repeal section 19-5-17 or sections 17-5-3 to 17-5-11, or any other existing law relating to the subject.”

Repeal of statutes by implication is not favored by this Court and only where the conflict between two statutes is irreconcilable will the latter statute be held to have repealed the earlier one by implication. Bush v. City of Laurel, 215 So.2d 256 (Miss.1968).

There being no reversible errors in the trial of the case, the judgment of the trial court is affirmed.

AFFIRMED.

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

SUGG, J., took no part.


author: COFER, Justice, for the Court:

text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION v. MISSISSIPPI POWER COMPANY.
    No. 50850.
    Supreme Court of Mississippi.
    Jan. 24, 1979.

      Bennett E. Smith, Jackson, Hall, Callen-der & Dantin, Maurice Dantin, Columbia, Leonard A. Blackwell, II, Gulfport, for appellant.
    Eaton, Cottrell, Galloway & Lang, James S. Eaton, Eaton A. Lang, Jr., Gulfport, Watkins & Eager, Thomas H. Watkins, William F. Goodman, Jr., Jackson, for appellee.
    Before SMITH, LEE and COFER, JJ.
   COFER, Justice, for the Court:

Mississippi Power Company (MPCo), is a public utility serving an extensive area in southeast Mississippi. An excellent general view of it may be had by examination of the Court’s opinion in Mississippi Power Company v. Mississippi Public Service Commission, 291 So.2d 541 (Miss.1974).

The present appeal to this Court is from a decree of the Chancery Court of the First Judicial District of Hinds County reversing appellant’s order on appellee’s application for an increase in the rates charged its consumers.

On the 7th day of November, 1975, appel-lee filed with appellant (Commission) its notice of intention to put into effect on December 7, 1975, new schedules of rates with supporting data as required in Mississippi Code Annotated, section 77-3-37 (1972). There followed the procedure of suspension of the proposed rate charges and application of the rates notwithstanding the suspension by MPCo’s posting a refunding bond, in accordance with section 77-3-39, and the Commission controverted the proposal to charge the changed schedule of rates, and, after a lengthy hearing amassing twelve volumes of record, the Commission entered order as required by Section 77-3-59.

By its new schedules of rates, MPCo sought an increase of $14,380,000, of which the Commission approved an increase of $5,986,000, 41.627% of that sought. Appeal therefrom to the chancery court resulted in a reversal of the Commission’s order and remand to the Commission. The chancellor concluded that, in its findings and order, the Commission did not give due consideration to the necessity of coverages required by the Securities and Exchange Commission for MPCo’s long term debt and preferred stock; the increased cost of operations, supplies, materials, and labor; the high embedded cost of debt and preferred stock; the necessity for increased dividends; requirements and cost of shifting to alternate fuel facilities and the necessity for plant expansion to meet the growing needs of the rapidly developing certificated area.

The chancellor concluded that the Commission’s order is contrary to the overwhelming weight of the evidence, is unsupported by substantial evidence, and is confiscatory in its effect on MPCo.

He affirmed the Commission’s order denying a change of approach to fuel adjustment sought by MPCo, and otherwise reversed and remanded the case to the Commission for further appropriate action.

The Commission has brought the case to this Court on the reversal (MPCo perfected a cross appeal on the fuel adjustment issue, but has abandoned it, and the cause is before us only on direct appeal.)

Errors assigned, eight in number, may be condensed to these issues: The chancellor erred (1) in acting beyond his scope of authority in reviewing the Commission’s order, (2) in finding that the testimony of Dr. Bicksler (the Commission staff’s expert) was improperly considered by the Commission, (3) in finding the Commission gave no consideration to MPCo’s coverages required for mortgage loans and for preferred stock sales, (4) in finding MPCo had met its burden of showing reasonableness of its proposed rates increases, and (5) in finding the Commission’s order to be (a) contrary to the overwhelming weight of the evidence, (b) confiscatory and not supported by substantial evidence, and (c) unreasonable in the increase allowed.

In the first of these condensed assignments, the Commission contends that the chancellor exceeded his authority by determining the rates for MPCo customers to pay.

Mississippi Code Annotated, section 77-3-67 (1972), (subsequently amended in a part not pertinent to this decision), says as to judicial review of commission orders:

The order shall not be vacated or set aside either in whole or in part, except for errors of law, unless the court finds that the order of the commission is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the commission or violates constitutional rights.

As enunciated in MPCo, 1976, supra, and decisions therein cited, rate making is a legislative matter, and, in such cases as here, authority to prescribe rates belongs to the Commission. (337 So.2d at 940).

Judicial review, which does not include preemption of the authority of the Commission to legislate the rates, is provided by the statute cited above. We do not read into the chancellor’s decision, whether ultimately affirmed herein or not, any undertaking to substitute himself in place of the Commission, but find that he confined himself to the duty and authority specifically reserved to him. This assignment lacks merit, in our opinion.

In addition to MPCo officials well versed in its finances and financial needs, MPCo had the testimony of Dr. Langum. The one witness of the Commission was Dr. Bicksler. Both these financial economists, by their testimony and credentials, appear to be giants in the field of large finance economics.

Dr. Langum testified as to the increased finances needed by MPCo from the comparative earnings approach, laid down in Bluefield Waterworks and Improvement Co. v. Public Service Comm. of West Virginia, 262 U.S. 679, 43 S.Ct. 675, 67 L.Ed. 1176 (1923), and Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1943), and followed recently in Mississippi Power Co. v. Mississippi Public Service Comm., 1974, supra.

Dr. Langum used in his rate base original cost without “flow through” which he explained as meaning normalizing tax deferrals from accelerated depreciation and amortizing the investment tax credit to income over the service life of the property.

Dr. Bicksler was retained by the Commission staff for what to us appears to be a restricted assignment, set out in this testimony on cross examination:

Q. You state, quote “the absolute upper limit to the fair rate of return for Mississippi Power Company is 8.44 percent.”, do you not?
A. Yes.
Q. To what rate base do you apply that rate of return in order to determine the number of dollars of revenue for Mississippi Power Company?
A. That question is outside the bounds of my testimony. My testimony is narrowly confined to two issues: one, estimating a fair rate of return; two, a few brief comments on rate structure. Furthermore, I have not given that question sufficient rigorous thought to come up with or present a meaningful answer.
Q. Then you have no idea as to the number of dollars of revenue you are recommending for Mississippi Power Company, do you?
A. As I indicated, I have not given that question sufficient rigorous thought to come up or present a meaningful answer. ...

(Emphasis added).

The expert evidenced very little awareness of finances of MPCo, and found it not needful or an important element in his testimony, holding out as very nearly perfect, best in the field of financial economics, his capital asset pricing model (CAPM). What to him, would be a proper rate structure for MPCo apparently would not be influenced by amount of debt, preferred stock, and common equity although Mississippi Code Annotated, Section 77-3-43 (1972), requires the Commission to fix a rate base in the regulation of rates. Hence, the Commission was without his expertise in this area. In fixing ratios of return, Bicksler employed the percentages of rate base attributed to debt, preferred stock, and common equity arrived at by MPCo expert Langum.

Dr. Bicksler used printouts from the Center for Research for Security Prices, based in Chicago. These are referred to as “CRISPE tapes” and received treatment by us in Mississippi Valley Gas, 1978, supra. Dr. Bicksler testified in that case, using CRISPE tapes. There, the company had moved for an order to direct Dr. Bicksler to “furnish the written material, documents, letters and data fed to the computer, and the questions asked and tasks assigned, to the computer, for the purpose of cross-examining Dr. Bicksler about the CRISPE tapes.” Later renewed, the motion was denied by the Commission. This Court there said as the chancellor had said, “Dr. Bicksler might have reached the right result, but in the present state of the record there is no way to tell.” Since Dr. Bick-sler’s testimony was largely based upon the unauthenticated tapes about which he testified, but did not produce, the chancellor here correctly held that the Commission could not properly rely upon his testimony in this important matter, even though he gave other testimony unrelated to the tapes.

After prepared direct testimony, direct testimony, on the stand, and cross examination, this exchange took place on redirect examination of Dr. Bicksler:

Q. Dr. Bicksler, would you explain just exactly what the CRISPE tapes are and what its recognition is in the field of modern economics.
A. Yes, the CRISPE tapes are maintained by the Center for Research in ' Security Prices at the University of Chicago. It’s a data file comprised of dividends and capital gains, that is, the returns of, on equity of a firm, and it goes back to 1925 and it’s the most extensive data file with reference to returns on equity available and because of this, it’s the most comprehensive and reliable source of security prices data utilized for deriving and testing capital market risk and return relationships.
Q. And it is so recognized in the field of economics?
A. Very definitely, most of the modern financial works that test or even purport to test the behavior of expected return and risk in the real world utilizes that information.

The Commission asserts as error that the chancellor found that it gave no consideration to coverages required for loans and preferred stock sales.

Mississippi Code Annotated, Section 77-3-59 (1972), requires, in pertinent part, as follows:

After the conclusion of a hearing, the commission shall make and file its findings and order, and its opinion, if any. All findings shall be supported by substantial evidence presented in the hearing and shall be in sufficient detail to enable the court on appeal to determine the controverted questions presented by the proceeding, and the basis of the commission’s conclusion.

A close examination of the Commission’s findings and order will reveal no treatment therein of coverages, as such, but only as coverages are included in its decision that the rate allowed was sufficient to assure confidence in the integrity of MPCo’s finances, so as to maintain its credit and to attract capital. The chancellor was not in error here.

The assignments that the lower court erred in finding that MPCo had met its burden of proving reasonableness of its proposed rate increases and that the Commission’s order was contrary to the overwhelming weight of the evidence, confiscatory, not supported by substantial evidence, and unreasonable in the increase allowed are likewise not well taken.

It is true that the commission’s order carries with it the presumption of validity, MPCo, 1976, supra, and is prima facie correct, Miss. Valley Gas, 1976, supra, but as held in the case just cited, the burden has shifted to the commission to point to the evidence that supported its order to show that its order was not manifestly contrary to the weight of the evidence. We fail to find that the commission has succeeded in showing that the finding and decision are not against the manifest weight of the evidence.

We are of the opinion that the lower court’s decree was correct and affirm it, and remand the cause to the Commission to be reopened there for such further hearing as may be desired by the parties and necessary to accurate order based on factual findings upon substantial evidence, the findings to comply with Section 77-3-59. MPCo, 1974, supra.

In thus remanding the cause, MPCo will have access to discovery in legal manner and the Commission will be enabled to establish, if it may be done, the accuracy, dependability, and admissibility of the CRISPE tapes and of testimony derived therefrom.

The Commission omitted from the rate base it established, if otherwise correct, customer deposits which have been held by us to be a part of the debt of a public service corporation. Miss. Valley Gas 1976, supra. These should be included in the rate •base anticipated on this remand.

It likewise reduced working capital of $20,887,000, used in its rate base to $10,-657,000, with only the finding that MPCo’s claim is excessive because the cash requirement for a 45-day period is $19,149,000. For an amount used as working capital in the Commission’s rate base, there should be shown basis in the record to which the Commission should point in its findings.

We further observe that the Commission failed to use the absolute upper figure fixed by Dr. Bicksler as rate, but took a lower figure. As trier of the facts, we are of the opinion that discretion rests in the Commission, and that it may, if supported by substantial evidence and explained in its finding, arrive at a figure not fixed by any expert in the case. We do not interpret our views in MPCo, 1974, supra, as being contrary to our views here expressed.

AFFIRMED AND REMANDED TO THE COMMISSION.

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

BOWLING, J., takes no part.

      . (a) Two cases between Miss. Power Co. and Miss. Public Service Comm. are cited herein. Miss. Power Co. v. Miss. Public Service Comm., 291 So.2d 541 (Miss.1974), and Miss. Public Service Comm. v. Miss. Power Co., 337 So.2d 936 (Miss.1976). These for brevity will be hereinafter cited as MPCo 1974 and MPCo 1976, respectively.
      (b) Two cases between Miss. Valley Gas Co. and Miss. Public Service Comm, are cited herein. Miss. Public Service Comm. v. Miss. Valley Gas Co., 327 So.2d 296 (Miss.1976), and Miss. Public Service Comm. v. Miss. Valley Gas Co., 358 So.2d 418 (Miss. 1978). These for brevity will be hereinafter cited as Miss. Valley Gas, 1976 and Miss. Valley Gas, 1978, respectively.

      . This Court first dealt with computer printouts in King v. State, 222 So.2d 393, 398 (Miss.1969).


text:
    Richard ALLEY v. PRASCHAK MACHINE COMPANY and Stanbro Construction Corporation.
    No. 50807.
    Supreme Court of Mississippi.
    Jan. 24, 1979.

      Boyce Holleman, Ben F. Galloway, III, Gulfport, for appellant.
    White & Morse, Stanford E. Morse, Jr., Bryant & Stennis, L. Kenneth Krogstad, Sue Esther Dulin, Gulfport, for appellee.
    Before SMITH, LEE and COFER, JJ.
   LEE, Justice, for the Court:

Richard Alley instituted suit in the Circuit Court of Harrison County, Honorable Floyd J. Logan, presiding, against Praschak Machine Company and Stanbro Construction Corporation, for personal injuries sustained. The jury returned a verdict in favor of Praschak and Stanbro, and Alley appeals to this court assigning eleven (11) errors in the trial below. We affirm.

I. — II.

The verdict of the jury as to defendant Praschak Machine Company and defendant Stanbro Construction Corporation was against the overwhelming weight of the evidence and could only be the result of bias, passion and prejudice.

This is a products liability case (negligent failure to turn off electric power also was alleged against Stanbro). On June 8, 1973, appellant, while employed by Chattanooga Glass Company, Gulfport, Mississippi, and while working on a machine built by Pras-chak, suffered the amputation of his left arm. The machine (a skip hoist) was being installed in the Chattanooga plant by Stanbro. It consisted of a large bucket or skip loader filled with raw materials such as sand, soda, ash, etc., from which glass was manufactured. The bucket was pulled a distance of twelve (12) to fifteen (15) feet up the legs of the machine with steel cables powered by a shaft connected to a chain and sprocket drive mechanism. The materials were dumped into a hopper and were conveyed to the manufacturing process. The main switch for the machine was at floor level, but the chain and sprocket were in close proximity to a rotary limit switch approximately fifteen(15) feet above the floor, which controlled the bucket’s extent of travel up and down the rail as the cable wound and unwound around a drum. Appellant had climbed up to adjust the switch, and, during the adjustment process, stuck his left arm across the chain for the purpose of holding to a part of the machine, the adjustment activated the chain and sprocket which caught his arm sleeve, pulled his arm into the machine and amputated it. Appellant fell to the floor of the plant and sustained other injuries.

Appellant contends that the machine was defective because there were no guards over the chain and sprocket, no handholds or rails which appellant could hold to, and no ladder could be placed around the machine so that appellant could climb up to the place of work. He further claims that Stanbro was liable in placing the defective machine into the stream of commerce and in negligently energizing the machine at the time appellant put his arm next to the chain.

Praschak contends that the machine was not defective or dangerous when properly used; that it had no knowledge of where, or under what conditions, the machine would be installed; that the machine was elevated twelve (12) to fifteen (15) feet which insulated it from general workmen; that safety guards would be of no benefit since a maintenance worker was required to remove the guards in order to work on the chain, sprocket and switch; and that there were handles or parts of the machine which the appellant could hold to while making the adjustment, rather than place his arm next to the chain in a dangerous situation.

Stanbro contends that its sole responsibility was to assemble the machine, which it purchased from Praschak at the request of Chattanooga Glass Company; that it was not in the business of purchasing and selling such machines but only in assembling them; that it did not wire, energize or maintain the machine; and that such was the responsibility of Chattanooga Glass Company.

The proof introduced by appellant sustained his theory of the case, and the proof of Praschak and Stanbro sustained their respective theories of the case (expert witnesses testified for the parties). The verdict of the jury was supported by the evidence and was not contrary to the overwhelming weight of the evidence.

III.

The granting of Instruction D-6-14 was improper on the question of assumption of risk and amounted to a peremptory instruction.

Appellant contends that the above instruction did not follow the evidence and that it amounted to a peremptory instruction against him. Three (3) essentials must appear in the doctrine of assumption of risk. They are stated in Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So.2d 558 (1962), as follows:

“The elements which must be found in order to constitute a defense of assumption of risk are generally stated in some such terms as the following: (1) Knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger of the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition.” 245 Miss. at 179, 146 So.2d at 561-562.

Also see Yarbro v. Phipps, 285 So.2d 788 (Miss.1973).

In Braswell v. Economy Supply Company, 281 So.2d 669 (Miss.1973), the Court discussed knowledge and appreciation of assumption of risk, and, citing 57 Am.Jur.2d Negligence § 282 (1971), said:

“Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge and there may be assumption of the risk. In some cases the circumstances may show as a matter of law that the risk was understood and appreciated, and often they may present in that particular a question of fact for the jury. Also, the plaintiff may not close his eyes to obvious dangers, and cannot recover where he was in possession of fact from which he would be legally charged with appreciation of the danger.” 281 So.2d at 674-675.
Appellant, on cross-examination, testified:
“Q. All right, sir. Now, Mr. Alley, at the time that you were doing these contortions up there, you knew your arm was exposed to that chain and sprocket, didn’t you?
A. If the power was on, yes sir — it was exposed to it, yes, sir.
Q. You knew that that constituted an open and obvious hazard to your arm if it suddenly started, didn’t you?
A. Yes, sir.
* * ¡k * ¡fc
So when you were there hanging on to that beam and adjusting these two screws, you knew that if the power was on and you adjusted the one that tripped the upper rotary limit switch that would start the bucket down, didn’t you? «©
Yes sir, I did.
And the only reason you say now that you did was that you thought the power was off. O*
Yes, sir. <!
But you didn’t have any acknowl-edgement from anyone that it was off, did you? ©*
I can’t say, sir.”

Sampson Caldwell, a fellow employee of appellant (employees of Chattanooga) testified that he was operating the main switch; that he moved the bucket at the request of appellant; that he asked Alley “Do you want me to cut the power off?”; and that appellant replied, “No, just leave it alone and get out of the way.” Bob Clark was welding under the machine, heard appellant tell Caldwell to turn the power on and in seconds Alley was injured. Ken Sproles, another electrician for Chattanooga, and appellant adjusted the switch the night before the accident. Appellant was an experienced electrician and was acquainted with and appreciated the danger involved. He was unable to see Caldwell (or anyone else) at the main switch, who was energizing the machine. Appellant testified he couldn’t say that he received any acknowledgment that the power was cut off. Herod v. Grant, 262 So.2d 781 (Miss.1972) held that the defendant was entitled to a directed verdict where the plaintiff was hunting deer from a seated position upon a tool box in the bed of a pickup truck, being driven at night over a cultivated field. The plaintiff, in the excitement of the hunt, fell from his position on the tool box and was injured. He assumed the risk that the truck might either pass over rough ground or that it might swerve and throw him from his difficult position.

In United Roofing and Siding Company v. Seefeld, 222 So.2d 406 (Miss.1969), the plaintiff, a plumber, sued for injuries sustained when he stepped on a nail in a pile of debris. Although he could not see the nail, the Court said that the plaintiff assumed the risk of such injury when he had seen carpenters working in that area since he had cleaned the same.

The Instruction D-6-14 submits to the jury all the elements set forth in Elias, supra. Paragraph 4 of the instruction does use the language “when he did not know whether electrical power to the machine was on.” The proof for appellees was strong that appellant knew the power was on and the machine was energized. There could be no complaint about that part of the instruction, if the language “when he knew the electrical power to the machine' was on” had been used. However, the testimony of appellant (even though he said he did not know the power was on) along with the physical facts indicate that appellant was reasonably aware that the current had not been turned off. Under all the facts, adjustment of the machine, powered by the highly dangerous agency of electricity, involved risk and danger and was tantamount to appellant having actual knowledge of that risk. Therefore, we are of the opinion that the instruction was in accordance with the evidence and law and does not constitute reversible error.

IV.

The trial court erred in granting Instruction D-14 concerning the reasonableness of the design of the Praschak skip loader machine in a strict liability case.

Appellant charged in his second amended declaration that Praschak failed to properly design the machine in such manner as to allow it to be assembled in a safe position. He proceeded on the theory of strict liability and negligent design, and presented evidence in support of those theories. Therefore, Praschak was entitled to an instruction informing the jury on the question of design. The jury should be instructed on all material issues presented by the pleadings and the evidence. 88 C.J.S. Trial § 302, at 819 (1955). A party has the right to have his theory of the case presented to the jury by instructions, if there is evidence to support it. Murphy v. Burney, 27 So.2d 773 (Miss.1946); Crow v. Burgin, 38 So. 625 (Miss.1905). The trial court did not err in granting the instruction.

V.

The trial court erred in granting Stanbro Construction Corporation a partial directed verdict on the question of its liability for selling, distributing and assembling an inherently dangerous product and the court further erred in granting Instruction D-2-28 and in refusing Instructions P-3, P-7, and P-5.

In State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss.1966), this Court adopted the strict liability standard for manufacture of a product as set forth in Restatement (2d) Torts, § 402(A). Subsection (l)(a) provides that the seller of a defective product unreasonably dangerous to the consumer is liable for injuries resulting therefrom when the seller is engaged in the business of selling such product.

The evidence in the present case indicates that Stanbro was not in the business of selling the machine manufactured by Prasc-hak but that the sale of same was an isolated sale and was made solely to aid Chattanooga for bookkeeping purposes. In Pridgett v. Jackson Iron & Metal Company, 253 So.2d 837 (Miss.1971), it was held that defendant, a scrap iron dealer who sold some fifty-five (55) gallon drums, one of which exploded when cut in half and injured plaintiff, was not liable under Section 402(A), Restatement (2d) of Torts or under State Stove, supra. Therefore, the granting and refusal of the instructions complained of was not error.

We have carefully examined the remaining assignments of error and are of the opinion that they do not constitute reversible error.

For the reasons stated, the judgment of the lower court is affirmed.

AFFIRMED.

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

      . The writer feels that the assumption of risk issue seldom should be submitted to a jury under Mississippi’s Comparative Negligence Law. Where the assumption of risk doctrine would apply, the negligence of the injured person, for practical purposes, would have to be the sole proximate cause of the accident, and such issue should be submitted to the jury rather than assumption of risk.