author:
GULOTTA, Judge.
      BOUTALL, Judge,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. John W. FRABBIELE, et ux.
    No. 10122.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Johnie E. Branch, Jr., Bryan Miller, Dept, of Transp. & Dev., Baton Rouge, for plaintiffs-appellants.
    Harold E. Kytle, Kenner, for defendants-appellees.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   GULOTTA, Judge.

The Louisiana Highway Department in this expropriation suit appealing, claims that the amount of the severance damages and attorney fees awarded to defendant are excessive.

The property subject of this suit, owned by defendant, is located in the City of Ken-ner, fronting on the northside of Veterans Highway commencing approximately 400 feet west of the intersection of Veterans Highway and Williams Blvd. and measures 280 feet front on Veterans Highway by an approximate depth of 555 feet, more or less, and an approximate width in the rear of 280 feet. The entire parent tract measured 153,155.8 square feet. The part of defendant’s land expropriated measures 79,200.8 square feet and commences from the western boundary of defendant’s land and runs 100.04 feet in an easterly direction fronting on Veterans Highway. The remaining portion of defendant’s land contains 73,955 square feet with a frontage of 178.96 feet on Veterans Highway and a depth of approximately 555 feet on its eastern boundary.

The entire western boundary of defendant’s property, to the rear, was taken and the eastern boundary of the land expropriated runs to the rear of defendant’s property but widens to a point where the rear of the remaining property forms a triangle with the western leg in the rear of defendant’s property forming a convex hypotenuse. (See appendix). The property taken was used by the Highway Department in the construction of an overhead ramp connecting Interstate-10 with the New Orleans International Airport (Moisant).

The Highway Department filed the expropriation proceedings on February 17, 1977 and on that date deposited in the Registry of the Court, $240,266.00. The trial judge ordered the Highway Department to pay defendant an additional sum of $303,634.00 plus $8,000.00 for expert fees and $75,908.00 for attorney fees.

In written reasons for judgment the trial judge explained that based on a valuation of $5.00 per square foot immediately before the taking, the value of the land expropriated amounted to $396,000.00. Based on a $2.00 per square foot diminution in value to the remainder caused by the expropriation, the trial judge awarded $147,900.00 in severance damages. According to the trial judge, the total value of the property taken plus damages, amounted to $543,900.00. Subtracting the amount deposited from the total award left a balance due defendant in the sum of $303,634.00.

The Highway Department does not contest the value placed on the property prior to the taking, i. e., $5.00 per square foot, and accordingly, finds no error in the amount awarded for the property taken. However, the Department contends that the taking did not result in a reduction in value of the remaining property and claims the trial judge manifestly erred in awarding $147,900.00 in severance damages. In connection with the award for attorney fees, the Highway Department claims the award in excess of $75,000.00 was made without any evidence to support the award.

LSA-R.S. 48:453, which became effective on October 1, 1976 and deals with the measure of compensation to be awarded in expropriation cases, provides:

“A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.
B.The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
C. The owner shall be compensated to the full extent of his loss.
D. The defendant shall present his evidence of value first.
E. Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.”

Six appraisers testified in this matter. Three appraisers were produced by the Highway Department and three testified on behalf of defendant.

Jack Evans, one of the Department’s appraisers, stated that based on other compa-rables in the area, he valued the property immediately before the taking at $3.00 per square foot. This appraiser found no severance damages. Max Derbes, another of the Department’s appraisers, valued the property before the taking at $2.90 per square foot and after the taking $2.65 per square foot, resulting in an evaluation of $18,-582.00 in severance damages. The last Department appraiser, Irvington Eppling, valued the property before the taking, as did Evans, at $3.00 per square foot. Eppling valued the front regularly shaped part of the property, after the taking, at $3.00 per square foot but valued the irregular rear part of the property at $.75 per square foot resulting in severance damages in the amount of $24,299.00.

On the other hand, Franklin Rodriguez, a defendant appraiser, based on an evaluation before the taking of $6.80 per square foot, computed severance damages at $322,-351.00. John Sykes, another of defendant’s appraisers, valued the property before the taking at $5.14 per square foot. According to this expert, the front regular part of the remaining property was reduced in value after the taking to the extent of 50% and the rear irregularly shaped part of the remaining property at a 100% loss in value.

The final defendant appraiser, Angus Ea-son, relied upon by the trial judge in his reasons for judgment, placed an evaluation on the property before the taking at $5.00 per square foot, and after the taking $3.00 per square foot. In the well thought out reasons of the trial judge he stated, in pertinent part:

“The Court accepts the value of $5.00 per square foot for this property prior to the expropriation or a total value of the land of $765,775.00.
The Court finds that the remaining land has been damaged and has an estimated market value of $3.00 per square foot. Factors considered in determining these damages are the proximity to the unsightly elevated ramp; the noise, vibrations, fumes and debris to which the remainder will be exposed because of the traffic on the ramp; the loss of access to Connecticut Avenue; loss of definite boundaries; and loss of size and irregularity of shape of the remainder of the property. No special benefits as a result of this project have accrued to the owner of the remaining parcel of land.” (Cases cited.)

We are in agreement with the result reached by the trial judge on severance damages and the reasons assigned by him for those damages.

We find no merit to the Department’s contention that because a comparable parcel of property on the southside and fronting on Veterans Highway directly across the highway from defendant’s property was sold eight months after the expropriation at $6.50 per square foot,' defendant’s remaining property did not suffer any diminution in value as a result of the expropriation.

It is true, as pointed out by the Department, that the sale of the property directly across Veterans Highway from the subject property was sold for $6.50 per square foot approximately eight months after this suit was filed and the deposit was made in the Registry of the Court. However, the comparable relied on by the Department is markedly different from the remainder of the defendant’s property. In the first place, although fronting on Veterans Highway directly across from the defendant’s property, this comparable is favored by two side streets which afford access to the property not only from Veterans but from side streets. The comparable is bounded on the east side by Delaware Street and on the west side by a service road running adjacent to the lower expressway ramp as it runs toward the airport. The comparable has access either from Veterans Highway or Delaware Street or from the Connecticut Street service road. On the other hand, the defendant property has access only from Veterans Highway.

Furthermore, as pointed out by the trial judge, because of the irregular shape of the defendant’s remaining property, the unsightly elevated ramp carrying traffic immediately adjacent to the remaining defendant property, the loss of size of the defendant tract (which, to some extent, reduces the possibility of commercial development), and the loss of access to Connecticut Avenue, (which had been dedicated but not developed before the expropriation), we are persuaded that defendant’s remaining property is considerably less in .value than the comparable relied upon by the Department.

Accordingly, we conclude as did the trial judge, that the value of the remaining property was materially reduced and find no error in the trial court’s diminution of the remaining property to the extent of $2.00 per square foot. Therefore, we affirm that part of the judgment on severance damages as determined by the trial judge.

Now turning to a consideration of the award of attorney fees, we conclude that the record does not support the $75,-908.00 award.

LSA-R.S. 48:453 provides in pertinent part:

“(e) Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.”

The attorney’s fee as determined by the trial judge amounts to 25% of the difference between the total award and the amount deposited in the Registry of the Court. The statute does not provide for 25% of the difference but provides that the attorney’s fee shall not exceed 25% of the differencé. In the instant case, the record does not contain any evidence relating to the effort extended, the amount of time involved, or any other evidence which would form the basis for a conclusion that the $75,908.00 award is reasonable. Because of this lack of evidence, we cannot determine whether the $75,908.00 award is reasonable or whether or not the amount should be reduced. Faced with this dilemma we are compelled to remand the matter to the trial court for the purpose of permitting evidence to be offered in connection with the amount of the attorney’s fees to be assessed.

Accordingly, that part of the amended judgment in favor of defendants, in the sum of $303,634.00, with interest from February 18, 1977 until paid, and the sum of $8,000.00 for expert fees is affirmed. That part of the judgment awarding $75,-908.00 for attorney’s fees is annulled and set aside and the matter is remanded to the trial court solely and entirely for the purpose of permitting testimony to be offered in connection with the amount of attorney’s fees to be assessed.

AFFIRMED IN PART, SET ASIDE IN PART, AND REMANDED.

BOUTALL, Judge,

concurring in part:

I agree with affirming the judgment on the merits, but can only concur in the remand to fix attorney’s fees.

R.S. 48:453(e) provides for reasonable attorney’s fees which shall not exceed 25% of the difference between the award and the amount deposited. The trial judge set the fees at 25% of the difference. Because of the amount of the difference, $303,634, the attorney’s fees of $75,908 appear to be excessive and the majority would remand for evidence upon which the trial judge may set some amount.

In numerous cases, our courts have set attorney’s fees without requiring an exact measure of proof, and in some eases have used a percentage formula where it seemed justified. See for just one example, State Dept. of Highways v. Johnson, 341 So.2d 12, (La.App. 3rd Cir. 1977) where the appellate court set slightly less than the 25% specified in R.S. 48:453(e).

In the case of Guillory v. Guillory, 339 So.2d 529 (La.App. 4th Cir. 1976) this court set out a number of .factors that may be considered in arriving at proper attorney’s fees. Counsel for Frabbiele has argued to us that his services meet the standards therein enumerated and justify the fee set. The problem is that there are no facts in the record to show that he has indeed met those standards.

Based upon the general proposition that the trial judge was familiar with the case and could estimate the work involved, that he was aware of the skill and qualification of the attorney and the intricacies of the case, the result achieved and the amount involved, the judge could have concluded that 25% was a reasonable fee. Assuming the facts argued in appellee’s brief, I would vote to affirm the judgment.

I note the recent case of State, through the Department of Highways v. Constant, et al., 369 So.2d 699, (La.1979) in which the Supreme Court increased the award to the landowner and affirmed a trial court award of 25% of the amount of difference as attorneys’ fees. It does not appear that the award of attorneys’ fees was at issue there nor does it reflect the basis for awarding 25%. However, that case certainly does stand for the principle that the landowner be compensated to the full extent of his loss as required by Const.1974, Art. 1 § 4. R.S. 48:453(e) is a statutory recognition that attorney fees are a burderi on the landowner and should be considered recoverable where the compensation offered is not the full extent of loss.

My difficulty arises simply because there are no facts in the record to support the judgment other than the result achieved and the amount awarded, not even evidence that the attorney undertook this case on a contingent fee basis. For that reason, I feel compelled to concur in remand, noting that the award of the maximum amount permissible resulting in such a large award should have additional evidence to support the reasonableness of the fee.

      . In the original judgment the trial court erroneously awarded interest not only on the judgment in favor of plaintiff but on the expert and attorney’s fees awarded, however, the error was corrected in an. amended judgment.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    E. C. HAMILTON, Plaintiff-Appellant, v. LAKE CHARLES AMERICAN PRESS, INC., Defendant-Appellee.
    No. 6951.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Rehearing Denied July 11, 1979.

      E. C. Hamilton, Lake Charles, in pro. per.
    Jones, Patín, Tete, Nolen & Hanchey by William M. Nolen, Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

This is an appeal from a summary judgment which dismissed plaintiff’s defamation action against the Lake Charles American Press, Inc. E. C. Hamilton, a disbarred attorney, alleges that a false statement relating to him was printed in defendant’s newspaper on April 4, 1977 in the form of a written response to a reader’s inquiry, and that as a result of the publication of this allegedly defamatory statement, his personal and professional reputation was damaged. Defendant publisher moved for summary judgment, contending that the alleged defamatory statement was true. The trial court granted defendant’s motion, dismissed plaintiff’s action, and plaintiff appeals. We affirm.

On December 18, 1970, Ernest C. Hamilton, then a practicing attorney, was convicted by a federal court of conspiring to commit mail fraud. This conviction was upheld by the Fifth Circuit Court of Appeals. United States v. Perez et al., 489 F.2d 51 (5th Cir. 1973). Appellant’s application for writ of certiorari was denied by the United States Supreme Court on June 10, 1974. 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). Hamilton’s conviction resulted from his participation in a state-wide scheme in which several persons, including attorneys and physicians, collaborated to defraud insurance companies by staging fake automobile accidents and making insurance settlements for nonexistent and/or exaggerated injuries. On October 11, 1974, following appellant’s conviction, a petition for disciplinary action was filed against him in the Louisiana Supreme Court. On February 28, 1977, the Louisiana Supreme Court disbarred Hamilton from the practice of law in this state. 343 So.2d 985 (La.1977).

This unfortunate episode attracted a great deal of local attention, and a reader of the Lake Charles American Press wrote to that newspaper, inquiring as to what had become of the individuals who had been involved in the scheme. The newspaper printed the reader’s question in a feature article entitled “The Informer”, along with an answer written by reporter Bill Shear-man on April 4, 1977. The question, along with the alleged defamatory statement, appeared as follows in defendant’s newspaper:

“Did any of the attorneys or doctors found guilty in the local auto insurance fraud cases serve time in jail?
R. A., Lake Charles.
The five men from our area, attorneys Philip J. Shaheen Jr., Lloyd E. Hennigan and E. C. Hamilton and Drs. Kenneth Lee Perego of Vinton and Wilson D. Morris, were all found guilty in December, 1970, of faking auto accidents to defraud insurance companies.
The men were sentenced to three years with the sentences suspended but with an identical amount of time on probation. The attorneys were also instructed by the court to perform legal services for indigents, public defender offices and any agencies or programs as may be directed by their respective probation officers.
The doctors were limited to medical practices in hospitals or clinics or in any such service authorized by the Louisiana State Board of Medical Examiners.
None of the five men ever actually served time but the three attorneys have been disbarred from any legal practice. Dr. Morris is working in a Leesville Hospital. Dr. Pergo’s activities could not be determined.” (Emphasis added)

Appellant primarily contends (as one of the “three attorneys” therein referred to) that it was not true that he had been disbarred from any legal practice at that time. Appellant also contends that it is untrue that he was convicted of “faking auto accidents to defraud insurance companies”, the truth being that he was convicted of conspiracy to commit mail fraud. In support of his primary contention plaintiff alleges that on the date that this statement appeared in defendant’s newspaper, he had an application for rehearing pending before the Louisiana Supreme Court, and that the judgment disbarring him did not become final until his petition for a writ of certiorari was denied by the United States Supreme Court, some six months after the statement had been published. 434 U.S. 835, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977). The trial court found no merit to plaintiff’s contentions, and found that the statement as published was true. In its written reason for judgment, the trial court stated:

“The defamatory substance of the publication, according to plaintiffs petition, consists of these two alleged inaccuracies: (1) when the publication occurred stating he was disbarred from any legal practice, he was actually legally practicing law in the City of Lake Charles, and (2) the publication stated that he was convicted of faking auto accidents to defraud insurance companies, whereas in fact, the conviction was for conspiracy to commit mail fraud. Hamilton contends that these statements were defamatory in content and thus resulted in injury to his reputation and respect, loss of income, mental pain and anguish, and impairment of performance of his professional duties.
The defendant in its motion for summary judgment urges that the publications stated the truth as a matter of fact and law, and that there is no genuine issue about that, and this lawsuit ought therefore to be terminated at this point in favor of defendant. In support of its motion for summary judgment the defendant filed the affidavit of Bill Shear-man, its reporter, who researched and prepared the answer to ‘The Informer’ question, as well as certified copies of all of the legal proceedings that took place in the Louisiana Supreme Court in connection with the disbarment matter.
The only instrument plaintiff offered to counter the motion for summary judgment was an affidavit executed by himself which was but a repetition of the averments of his pleadings.
In a case where there has been an alleged defamation, the jurisprudence is clear that the defendant may raise a perfect defense by showing the statements to have been true. In proving the truth of the allegedly defamatory matter, it is not necessary to prove the truth of every detail; it is sufficient to prove that the charges contained therein are substantially true. Otero v. Ewing. 165 La. 398, 115 So. 633 (La.1927); and Kennedy v. Item Co.. 197 La. 1050, 3 So.2d 175 (1941).
The court must grant summary judgment where the facts are all in, there is no genuine issue remaining to be tried, and the law commands a certain result flowing from certain proof. Here, the only question presented by the motion is the truthfulness of these newspaper reports.
Plaintiff’s status as a disbarred attorney was truthfully reported by the defendant on April 4, 1977. It matters not that he was temporarily enjoying a technical procedural reprieve in the form of a stay order. It was a fact that the plaintiff had been disbarred from the practice of law by the Louisiana Supreme Court. The application for a rehearing and subsequent application for writs to the U. S. Supreme Court stayed the effect of the disbarment but did not obliterate the reality of it.
The nature of the conviction was likewise truthfully reported. In the circumstances of this case it is of no tortious significance that the conviction was publicized in terms of automobile accident fraud when it was in fact conspiracy to commit mail fraud. The U. S. Fifth Circuit in its affirmance of the appeal in the criminal case and the Louisiana Supreme Court in its disbarment proceedings, both referred repeatedly to the faked accidents and the substantive proof of Hamilton’s knowing complicity in the scheme. The mailing charged in the indictment arose out of the staged collisions and was but the peg upon which the conspiracy was hung. The faked accidents formed the basis of the conviction for conspiracy to commit mail fraud. Proof of complicity in the faked accidents was an essential element of the conspiracy, without which there would not have been a conviction. It is meaningfully true in both law and legal circles that plaintiff was convicted of faking auto accidents to defraud insurance companies.”

We agree and adopt the trial court’s written reasons for judgment as the opinion of this court. It is well settled that truth, or substantial truth, is a defense to a defamation suit. Rosen v. Capital City Press, 314 So.2d 511 (La.App. 1st Cir. 1975).

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of these proceedings are to be paid by appellant.

AFFIRMED.

      . Appellant’s application for rehearing was denied on April 7, 1977. 343 So.2d 985, 993 (La.1977).


author: LOTTINGER, Judge.

text:
    BORDEN, INC. v. HOWARD TRUCKING COMPANY, INC. and Northwest Insurance Company.
    No. 12655.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Writ Refused July 2, 1979.

      Eugene R. Groves, Baton Rouge, for plaintiffs-appellants, Borden, Inc. and Dresser Industries, Inc.
    Leon E. Roy, Jr., New Iberia, for defendant-appellee, Howard Trucking Co., Inc.
    Lawrence A. Durant, Baton Rouge, for defendant-appellee, Northwest Ins. Co.
    P. Albert Bienvenu, Jr., New Orleans, for defendant-appellee, Antoy William Ames, in behalf of Underwriters at Lloyd’s, London.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

This is an appeal by plaintiff, Borden, Inc., from the granting of a motion for summary judgment in favor of the defendant, Northwest Insurance Company.

Plaintiff alleges' in its petition that the defendant, Howard Trucking Co. (Howard), had a contract with plaintiff to transport in good condition a compressor and other machinery from Borden’s plant in Geismer, Louisiana to Dresser Industries, Inc. in New Orleans. During transit, the employee truck driver of Howard negligently lost control of the truck causing it to overturn resulting in damages to the compressor. Borden itemized its damages as a result of the accident as follows: (1) cost of repairs by Dresser Industries, Inc. — $6,365.00, (2) Borden’s labor — $2,000.00, and (3) loss of production — $212,268.00. It further alleged that Howard had in full force and effect a policy of insurance with the defendant, Northwest Insurance Company. Northwest moved for summary judgment contending that “the pleadings, and annexed certified copy of the insurance policy issued by this defendant, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law

The insurance policy in part provides:

“EXCLUSIONS
“This insurance does not apply:
“(d) To property damage to
(1) property owned or being transported by the Insured or
(2) property rented to or in the care, custody or control of the Insured or as to which the Insured is for any purpose exercising physical control, other than property damage to a residence or private garage by a private passenger automobile covered by this insurance; * * *.”

In granting the motion for summary judgment, the trial judge did not favor us with written reasons.

Plaintiff-appellant contends the trial judge erred in holding (1) that there was no issue as to material fact and that Northwest Insurance Company was entitled to judgment as a matter of law, and (2) that the policy of insurance issued by Northwest Insurance excluded coverage for the circumstances and damages described in plaintiff’s petition.

Plaintiff does not in its brief argue that there was a genuine issue of material fact. The only document filed in support of the motion for summary judgment was a certified copy of the insurance policy. Plaintiff did not file a countervailing affidavit. The question before the trial court as well as this court, is whether this policy of insurance afforded coverage under the facts as found in the petition. Thus, we cannot say that there is a genuine issue of material fact.

In brief, plaintiff contends that it cost $8,365.00 to repair the compressor. Thus we conclude that this was damage attributable to the compressor. There is no argument made by plaintiff that the insurance policy covered damage to the compressor. We are of the opinion that the language “this insurance does not apply * * (d) to property damage to (1) property * * being transported by the insured * * * ” is sufficiently clear and free from ambiguity so as to deny coverage for the damage to the compressor. Therefore, we find no error on the part of the trial judge in granting summary judgment in favor of North•west excluding coverage for damage to the compressor.

Plaintiff, however, argues that the damage claim for “loss of production” is not included within the exclusionary clause.

Northwestern argues that it is not liable for “loss of production” time as a result of the damages to the compressor. Appellee cites several out of the state cases as well as several Louisiana cases. None of the Louisiana cases are directly on point. The only Louisiana ease seeking loss of use was Towboats, Inc. v. General Equipment & Iron Works, Inc., 280 So.2d 840 (La.App. 4th Cir. 1973) writ denied 283 So.2d 769 (La.1973). The Fourth Circuit did not discuss that point in its opinion, thus we find it of no help. It is obvious then that this question is res nova in Louisiana.

Insurance policies are for the benefit of the insured. The burden of proof is on the insurer to show that the exclusion applies, Aladdin Oil Company v. Rayburn Well Service, Inc., 202 So.2d 477 (La.App. 4th Cir. 1967) writ denied 251 La. 388, 391, 392, 204 So.2d 573, 574 (1967). Exclusionary clauses are strictly construed against the insurer, especially if they are of uncertain import, Commercial Capital Systems, Inc. v. Paille, 333 So.2d 293 (La.App. 1st Cir. 1976).

In Torrington Co. v. Aetna Casualty & Surety Company, 216 S.E.2d 547 (S.C.1975), a divided South Carolina Supreme Court, without citing any authority, held that insurance coverage for “loss of use” was excluded under a similar clause. We are not convinced that the South Carolina Supreme Court was correct.

From the Louisiana cases cited by appellee, we conclude that the jurisdictional rule in Louisiana is to strictly limit the application of a “care, custody and control” exclusionary clause. Necessarily then, we find the trial judge in error in granting summary judgment in favor of Northwest as to the damages caused by “loss of production.” As Judge Redmann said in Eymard v. C & W Well Servicing, Inc., 258 So.2d 406, 408 (La.App. 4th Cir. 1972), writ refused 261 La. 465, 259 So.2d 915 (1972):

“It is not damage resulting from exercising control, but damage while exercising control, which is excluded. Policy clauses must be construed against the insurer; Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1954). Here the damage resulted from insured’s exercising physical control, but did not occur while insured was exercising control.”

We interpret the exclusionary clause to exclude coverage to the property “being transported” or in the “care, custody or control of the Insured.” We do not interpret this clause to exclude coverage for damage resulting from damage to any property. If that was the intention of the insurer, same should have been so written in the policy.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and remanded for further proceedings. All costs of this appeal are to be paid by defendant-appellee.

REVERSED AND REMANDED.


author: LANDRY, Judge.

text:
    LOUISIANA PAVING COMPANY, INC. v. STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS.
    No. 12627.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    O. P. Barnes, III, Monroe, for plaintiff-appellee Louisiana Paving Co., Inc.
    Sharon P. Frazier, Baton Rouge, for defendant-appellant State of Louisiana, Dept, of Highways.
    Richard B. Sadler, Alexandria, for third party defendant-appellee Lambda Const. Co., Inc.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant (Department) appeals from judgment awarding plaintiff (Paving) $65,-390.00, on the basis of equitable estoppel, for work performed by Paving as subcontractor of Lambda Construction Company, Inc. (Lambda), prime contractor for construction of a road project for the Department. The work performed by Paving was executed pursuant to a verbal agreement between Paving and the Department’s employees. Paving has answered the appeal requesting an increase in the award. We affirm.

On January 28, 1971, the Department entered into a written contract with R. C. Asphalt, Inc. (now Lambda) for construction of State Project 8-09-21, the Chamber-Alexandria Highway, Rapides Parish. The contract was to be executed in accordance with the Department’s Specifications for Roads and Bridges (October, 1966) as modified by special provisions and plans on file in the Department’s Baton Rouge office. Lambda subcontracted with Paving to perform the earthwork required for the project, in strict compliance with the terms of the prime contract “and to the satisfaction of and in compliance with the directions of the Owner or Owner’s Engineers.” The Department’s refusal to pay Paving for certain work performed in deviation from the prime contract prompted this litigation. In essence Paving maintains the deviation was authorized by the Department’s engineer and the Department defends on the ground the deviation was not authorized in writing as required by the prime contract.

The dispute is over the placement and movement of a five foot dirt surcharge at three different locations on the project. Surcharging is the placing of surcharge material (dirt) on the roadbed for a period of 90 days to test the roadbed for stability, that is, to determine whether it will subside under the weight. The contract required a surcharge of five feet of dirt excavated from a nearby borrow pit, said dirt being classified as “special borrow excavation” under the contract. Payment for surcharge on the project was fixed at a unit price of $1.95 per cubic yard. The volume of surcharge utilized was determined by cross-sectioning the borrow pit.

As regards surcharge, Sheet 35, Part II, of the project plans provides:

“Placing and Removing the surcharge will be paid for under Item No. 203(5). The cost of trimming the embankment to its final dimensions after the surcharge is removed will also be included in the price bid on Item No. 203(5). This trimmed material and the surcharge shall be used in the Embankment in another location on the project. (No Additional Payment)”

It is agreed that the foregoing provision contemplates movement of the surcharge material, after its use as surcharge, and incorporation of the dirt into the project as embankment fill, and further, that the cost of moving the surcharge forward into the embankment was included in the unit price of $1.95 per cubic yard stipulated in the prime contract. In the course of the work, Paving’s project manager, Willie Plumlee, concluded that the project could be expedited if the project specifications were altered by utilizing surcharge material as the “select material” which forms part of the base course for the highway, instead of using the surcharge as embankment material.

Base course in this instance consisted of a soil-cement base composed of select material (in this case dirt), cement, water, and other materials mixed together to form the roadbed which was then overlaid with a surfacing of asphalt coating known as hot-mix. Base course in this case was to be paid for at the unit price of $6.00 per cubic yard, mixed and in place on the roadbed, all materials and labor being furnished by the contractor. In effect, Plumlee discovered that the surcharge material met the specifications for select base course material and that the surcharge could therefore be used as a base course component. He suggested that when surcharge dirt was removed after the 90-day test period, it be used as base course material instead of embankment material and pointed out that this change would expedite completion of the project by a significant amount of time. Plumlee obtained verbal approval of the proposed change from the Department’s project engineer, Ronnie Luno, and thereafter changed the method of handling surcharge dirt.

The contract [Item 203(5)] pertinently provides the following with respect to payment for special borrow where both select material and special borrow are excavated from the same pit:

“EXCAVATION AND EMBANKMENT: Section 203 of the Standard Specifications is amended as follows. .
If the contractor obtains selected materials for base course . . . from borrow pits used for special borrow excavation, the volume of materials used in base course . . . computed from plan dimensions, plus 15% for shrinkage, will be deducted from borrow pit measurements.”

The above provision requires a deduction from borrow pit measurements, in determining payment for special borrow, for the amount of surcharge ultimately incorporated into base course inasmuch as such material was not utilized for embankment purposes as envisioned by the contract. After obtaining Luno’s approval of the suggested change in construction sequence, Paving moved surcharge material ahead to other locations on the project and incorporated the material into base course. Paving’s claim is for additional work allegedly entailed during the change of work sequence.

Paving contends that its agent, Plumlee, was assured by the Department’s project engineer, Luno, that Luno’s superiors approved of payment for the movement of surcharge to base course under Item 203(5), “Special Borrow Excavation,” at a unit price of $1.95 per cubic yard. Allegedly, Plumlee was informed that a memo to this effect would be placed in the project file. It is conceded that no written order was issued by the Department approving the change. It is also conceded the contract provides that no extra work would be paid for by the Department unless it was approved in writing.

Paving claims reimbursement in the sum of $192,325.25 for moving 65,490 cubic yards of surcharge into base course at $1.95 per cubic yard; reloading surcharge areas to the extent of 21,905 cubic yards at $1.95 per cubic yard; and hauling, moving, and removing the aforementioned 21,905 yards of surcharge at $1.00 per cubic yard.

It is stipulated that a written contract existed between Lambda and the Department and that a written subcontract exists between Lambda and Paving. It is also stipulated that no written contract was entered into between Paving and the Department.

The trial court found that while there was no written modification of the contract, Paving changed the construction sequence in reliance upon verbal agreement with the Department’s agents, which agreement appears supplemented by written notations on the plans and by written evidence of such approval placed in the project file in the Department’s Baton Rouge office. So finding, the trial court held the Department was equitably estopped from defending the claim on the basis of an absence of a written change order. The court also found that 65,390 yards of material were moved from surcharge to base course for which the Department agreed to pay $1.00 per yard pursuant to Item 203(1) “Unclassified Excavation.” The court also rejected Paving’s claim of $21,905.00 for hauling, moving, and removing 21,905 cubic yards to rectify a slope failure occurring outside the right-of-way. The trial court disallowed this latter item on finding that plaintiff failed to prove either a written or verbal agreement to pay such a sum. The written authorization or change order authorizing work to repair the failure, makes no mention of a $1.00 per yard payment to remove the dirt. The trial court dismissed Paving’s claim against Lambda and also dismissed Lambda’s third party demand against the Department.

Relying on Olympia Company, Inc. v. Gervais F. Favrot Co., 342 So.2d 1275 (La. App. 4th Cir. 1977); Chemical Cleaning, Inc. v. Brindell-Bruno, Inc., 186 So.2d 389 (La. App. 4th Cir. 1966); and Pittman Construction Co. v. Housing Authority of New Orleans, 169 So.2d 122 (La.App. 4th Cir. 1964), the Department contends the trial court erred in failing to hold that Paving, a subcontractor having no contractual relationship with the Department, has no right of action against the Department in contract. In relation to this position the Department also invokes La.R.S. 38:2216 and La.R.S. 48:251, which require that highway construction contracts be in writing, and contends that parol evidence is not admissible to vary the terms of a contract required to be in writing.

The Department also contends the trial court erred in finding that Paving moved material beyond the scope of the contract; in applying the doctrine of equitable estop-pel; and in awarding Paving any sum whatsoever.

Regarding the doctrine of equitable es-toppel, we said the following in Westenberger v. State Department of Education, 333 So.2d 264 (La.App. 1st Cir. 1976):

“Equitable estoppel is the effect of the voluntary conduct of a party which precludes his asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will sustain injury if the former is allowed to repudiate his conduct. Based on good faith, the doctrine prevents injustice by barring a litigant, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence. American Bank and Trust Company v. Trinity Universal Insurance Company [251 La. 445, 205 So.2d 35], above.
“The three elements required for application of equitable estoppel are: (1) a representation by conduct or work [word]; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, La., 323 So.2d 120.”

In the present case, applicable contract documents provide that the project engineer is charged with the onus of insuring performance of the work in accordance with the plans and specifications and, furthermore, that he is authorized to suspend work when the contractor fails to comply therewith. At the time in question Ronnie Luno, since deceased, was project engineer and Bernard Mayeaux was his assistant. May-eaux was present during the discussion between Luno and Plumlee concerning the change in construction sequence. He confirmed that Luno approved of the change upon learning that the surcharge material met the requirements for select material. He acknowledged hearing Luno telephone Robert Graves at headquarters in Plumlee’s presence. According to Mayeaux, Luno then told Plumlee the Department would pay $1.00 per cubic yard to move the surcharge ahead. Mayeaux also observed Luno enter on page 35, part II of the plans and specifications the following notation: “.Unclassified Excavation as directed by Bob Graves 4/8/72,” which meant that the work was to be paid for under Item 203(1) at $1.00 per cubic yard. According to May-eaux, some unidentified person subsequently wrote over Luno’s notation that the work was to be paid for as “Special Borrow” at $1.95 per cubic yard.

Billy Daniels, former assistant maintenance director (assistant district engineer at time of trial), explained the Department’s chain of authority. He noted that a plan change calling for additional payment must be approved by the Chief Engineer or his designate. He also noted that the project engineer possessed authority to interpret the plans and instruct the contractor how to proceed.

Eugene Waguespack was the Department’s project engineer for the New Orleans area in 1971. He recognized that the project engineer had authority to approve minor deviations, but no authority to approve additional payment to a contractor. He acknowledged having signed the following letter on behalf of Lawrence Doucet, Assistant Chief Construction Engineer, copies of which were sent to all concerned:

“Dear Sir:
This is to advise that after review of the Plans and Specifications and discussion with the Department personnel and the Federal Highway Administration, the Department will not pay for using the surcharge material in lieu of special borrow on the captioned project.
Our interpretation of the Standard Specifications is that no further compensation is due for moving this surcharge material.
We are of the opinion that morally the contractor may be due additional compensation.
Therefore, if the contractor elects to take the matter to the courts the Department will not contest it.
The Federal Highway Administration has advised that they will abide by any decision of the courts.”

Robert Graves, assistant chief construction engineer in 1971, affixed his signature along with that of J. E. Taylor, to the following memo placed in the project file and dated March 7, 1972:

“In conversation with Ronnie Luno, Proj. Engr. it was verbally agreed to pay for removing surcharge and paying for removal, under 203(1) ‘Unclassified Excavation.’ Notes to this effect entered on plan sheet # 35 on office copy and proj. engr’s copy. Approval of this change by Robert Graves.”

Graves testified that the memo reflected and confirmed the results of an earlier discussion between himself, Taylor and Luno. He also stated he was authorized only to make recommendations, not to approve contract deviations.

Lawrence Doucet, the Department’s road construction engineer in 1971, testified his then superior was Graves. He stated that Luno, as project engineer, failed to process a plan change form to evidence the plan alteration, as required by normal procedure. However, the consensus of the Department’s employees concerned, as expressed in the above quoted communication, was that the contractor was morally due some additional compensation.

William Plumlee, project manager for Paving, admitted the change in sequence was his idea originally and stated that it was adopted by the Department which considered it worthy. He recalled a conversation between himself, Mayeaux and Luno, after Luno had spoken to Graves on the telephone. He testified in effect that if he had not had prior authorization, he would not have changed the sequence and did not do so until he was assured payment would be made and that Luno had made his notation on the plans.

Also in evidence is a written change order form dated October 19, 1973, authorizing payment for additional work to correct a slope failure. Mayeaux testified the work was actually performed in 1972 upon verbal assurance that a written change order would follow. Mayeaux added that Luno similarly authorized Plumlee to move the surcharge involved herein directly into base course and advised Plumlee that a written change order would follow. Paving maintains that it was eventually paid for the work which was verbally authorized to correct the slope failure and that in reliance on Luno’s assurance that a change order would be obtained, Paving changed the method of handling surcharge.

Estoppel, being in derogation of normal rights, is applied sparingly by the courts. To rely on equitable estoppel, a party must prove not only that he relied upon a representation or other conduct, but also that he was justified in doing so. American Bank and Trust Co. v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35 (1967). We find that the trial court properly applied estoppel in this instance.

The record establishes beyond doubt that Paving did not vary the construction sequence until verbally assured that it would be paid a specified amount for changing the procedure and until Paving’s agent witnessed a notation to that effect made by the Department’s employee, Luno, on the contract plans and specifications. It is significant that the notation was made immediately following Graves’ approval of the change in a telephone conversation with Luno. That Graves then did not hold the position of assistant chief engineer is of no moment under the circumstances. So far as Plumlee was concerned, Graves was possessed of authority to approve the change. The record also establishes that it was customary between the parties, in matters involving contract changes, for the contractor to proceed on verbal authority upon being assured of approval and upon also being assured the required written authority would follow. In this case, that same procedure was followed with respect to the change order issued in connection with extra work performed to correct the slope failure hereinabove mentioned. In the case of the slope failure, the written approval ensued; in regard to the work sequence change, the promised approval did not materialize. Paving had a right to expect the approval would be granted in writing and relied thereon.

Where an employee, agent or representative is clothed with apparent authority and acts pursuant thereto, his employer is estopped to deny such authority. Rogers v. First Sewerage District of City of Lake Charles, 171 So.2d 820 (La.App. 3d Cir. 1965); New Orleans Fire Fighters Association v. City of New Orleans, 204 So.2d 690 (La.App. 4th Cir. 1967).

We find no merit in the Department’s argument that the trial court erred in finding that Paving moved material beyond the contemplation of the contract. Assuming, arguendo, no additional material movement was involved, it remains that the Department agreed to pay additional compensation for the change which benefitted the Department by advancing the contract completion date. See Grossie v. Lafayette Construction Company, Inc., 306 So.2d 453 (La.App. 3d Cir. 1975).

We recognize and adhere to the general rule that a subcontractor having no contractual relationship with an owner has no cause of action in contract against the owner. However, where there are direct dealings between the subcontractor and owner for extra work or a change in work sequence beneficial to the owner, as in this instance, under circumstances giving rise to the doctrine of equitable estoppel, the owner is estopped to deny a contractual relationship with the subcontractor.

The judgment of the trial court is affirmed, all costs to be paid by the Department.

AFFIRMED.


author: PONDER, Judge.

text:
    GLAZER STEEL CORPORATION v. LAROSE SHIPYARD, INC.
    No. 12585.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.

      Francis A. Ledet, Houma, Ira J. Middle-berg, New Orleans, for petitioner and appellant.
    John J. Erny, Jr., Larose, for defendant and appellee Larose.
    William S. Poole, Jr., of Adams & Reese, New Orleans, for defendant and appellee, George Engine Co.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

This is an appeal from an executory judgment sustaining an exception of improper venue and transferring the suit. The issue is the validity of that action. We affirm.

Plaintiff brought suit in December, 1975, on an open account against Larose Shipyard, Inc., in Lafourche Parish for material supplied to several ships Larose was building. When answer was filed the case was set for trial. On the trial date, however, only the plaintiff appeared in court. Judgment was entered against defendant La-rose.

On March 3, 1978, nearly a year .later, plaintiff filed an amended petition naming George Engine Company as solidary obligor in the suit against Larose and asking that the amended petition relate back to the original petition. Plaintiff claims the basis for the solidary liability is an undisclosed principal and agent relationship between George Engine and Larose.

C.C.P. 42(2) makes the parish where its registered office is located the proper venue for a suit against a domestic corporation. George Engine Company’s registered office is in Jefferson Parish. Under C.C.P. 73 proper venue of a case against solidary obli-gors is any parish of proper venue as to any obligor who is made a defendant. La-fourche Parish was the proper venue as to Larose Shipyard.

While the trial court has great discretion in allowing an amendment to the pleadings, we feel an amendment nearly a year after judgment is final is improvidently granted. See Landry v. Baugnon, 17 La. 82 (New Orleans, 1841).

Once an obligation is reduced to judgment, it is merged with the judgment and no longer exists as a distinct obligation or a litigious right. Agricultural Enterprises, Inc. v. Morgan, 140 So.2d 40 (La.App. 2nd Cir. 1962). It would be anomalous to allow a plaintiff to amend a petition, adding a new defendant, and have it relate back to a petition on an obligation that has been merged into a final judgment. The effect of the assertion of a solidary obligation against Larose and George Engine is that plaintiff is suing Larose again on an obligation for which they already have judgment.

We therefore believe that the amended pleadings should not have been permitted. The technically correct judgment probably should be the dismissal of the suit as to George Engine, but in the interest of economy we will allow the transfer.

This decision renders unnecessary the consideration of the question of solidary obligation between an undisclosed principal and an agent.

For these reasons the judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    Betty RAY, Appellant, v. LOUISIANA STATE PENITENTIARY, Appellee.
    No. 12624.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    J. J. McKernan and Keith D. Jones, Baton Rouge, for appellant Betty Ray.
    Annette Rhodes Seng, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals from a Civil Service Commission ruling that terminated her employment.

We reverse.

Mrs. Ray was employed at Louisiana State Penitentiary as a dental assistant. She was accused of violating Rule 12 of the penitentiary’s rules for employees which forbids employees from trading or bartering with inmates.

Trading or bartering was interpreted by prison officials as the purchase of anything, giving inmates cash money, bringing in contraband, and any kind of “dealing” with inmates.

To trade is defined in Websters Third New International Dictionary as to give in exchange another commodity, to give in return, to make an exchange of. To barter is defined as to trade by exchanging one commodity for another.

Mrs. Ray admittedly received a money order from the mother of Byron Parker, an inmate. However, there is no evidence that she purchased anything from him, traded or bartered anything, or that she had “dealt” with him in any way. There is no proof she brought contraband into the prison. Merely receiving the money does not constitute a violation of Rule 12 under the plain definition of its terms.

The decision is reversed at appellee’s cost. It is ordered that appellant, Betty Ray, be reinstated in her former position as dental assistant with full restoration of all rights and privileges.

REVERSED.

      . Rule No. 12: “No one may trade or barter with inmates.”


author: BROOM, Justice, for the Court:

text:
    L. E. PARKS and Mrs. Frances Parks v. CITY OF LONG BEACH.
    No. 51049.
    Supreme Court of Mississippi.
    March 28, 1979.
    Neil W. White, Jr., Gulfport, for appellants.
    Bryant & Stennis, Sue Esther Dulin, Larry L. Lenoir, Gulfport, for appellee.
    Before PATTERSON, P. J., and BROOM and BOWLING, JJ.
   BROOM, Justice, for the Court:

Governmental immunity asserted by the City of Long Beach for allegedly installing a traffic light in such a location that it produced a traffic hazard is the chief feature of this case. Trial was in the Circuit Court of the Second Judicial District of Harrison County, which court directed a verdict exonerating the city. Plaintiffs (appellants herein) are L. E. Parks and Mrs. Frances Parks, whose son (Bobby) was killed by a train where a railroad and a city street cross each other in Long Beach, Mississippi. We affirm.

At the time of the fatal accident, Bobby was driving an automobile northerly in Long Beach on Cleveland Avenue at its intersection with the L & N Railroad tracks, when he was struck by the lead engine of a train. The train was operated by the L & N Railroad, originally a defendant herein (appellants non-suited as to L & N). Among other things, the appellants allege that the city was liable for its alleged negligence in maintaining a traffic light at the intersection just north of the L & N tracks in such a hazardous position as to present a constant danger to the general public.

MAY THE CITY OF LONG BEACH BE HELD LIABLE FOR HAVING INSTALLED A STOP LIGHT IN SUCH A LOCATION THAT IT PRODUCED A DANGEROUS CROSSING? Tucker v. City of Okolona, 227 So.2d 475 (Miss.1969), relied upon by appellants, was not concerned with the location of a traffic control light but involved a defective or malfunctioning traffic control light. There we held that a municipality acts in a proprietary capacity and may be liable for damages sustained by motorists as a result of negligence in the operation and maintenance of a traffic control light, but there is no such negligence or traffic light defect or malfunction in the instant case. Wall v. City of Gulfport, 252 So.2d 891 (Miss.1971), is a more recent case; in it, parents of the deceased, a minor, brought suit against the City of Gulfport for the death of their son. Their son, traveling south on Harrison Avenue, was killed in a collision with another automobile at the intersection of Harrison Avenue and 47th Street. For several years prior to the date of the accident, a stop sign directing motorists driving east on 47th Street to stop before entering the intersection had been at the corner of 47th Street. This stop sign was blown away by Hurricane Camille and had not been replaced at the time of the accident. Relying on the doctrine of governmental immunity, the trial court in Wall exonerated the City of Gulfport, and we affirmed.

In the present case, on the facts presented, the decision to place the traffic signal at the intersection location in question was a discretionary matter within the police powers of Long Beach and, accordingly, the city is insulated from liability under the doctrine of governmental immunity. Mayor, Etc. of City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713 (1924), is another case relied upon by appellants, but it is distinguishable on the facts and not controlling here. In Harralson, “the device called a ‘bumper’ was purposely placed in the street to bump and injure persons traveling over it in automobiles, unless they saw it in time and slowed down , . . . [MJost any driver . . . would likely go over it without seeing it .

“. . . The method of injuring one person in order to prevent danger to another is wrong in principle . . . .” (Emphasis added). (136 Miss, at 882, 884; 101 So. at 714). Here, the facts were different: the traffic control light was neither designed nor calculated to injure one person to the detriment of another; it was neither defective, too low, nor malfunctioning but allegedly created a danger in that it enticed Bobby to drive in front of an oncoming train.

The dispositive issue being governmental immunity, which applies in favor of Long Beach, we do not reach the other questions.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    Eugene BUFORD, Jr. v. STATE of Mississippi.
    No. 51025.
    Supreme Court of Mississippi.
    March 28, 1979.
    Rehearing Denied July 11, 1979.

      Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Eugene Buford, Jr. was indicted, tried and convicted in the Circuit Court of Laud-erdale County, Mississippi, of the murder of John T. Handcock, Jr. He was sentenced to life imprisonment in the Mississippi State Penitentiary.

On the night of September 12, 1975, at the Naval Air Station near Meridian, Mississippi, Buford, Christian Sandifer, Jr., and Handcock were drinking in Buford’s room. Buford and Handcock were playing checkers and got into an argument. Handcock hit Buford in the mouth with his fist, knocking him down and knocking his glasses off. Handcock walked back to his room and Buford checked his bleeding mouth in a mirror.

A few minutes later as they met in the hallway to go to town Handcock apologized to Buford for hitting him. They proceeded to Sandifer’s car, which was parked outside the entrance gate to the Naval Air Station. According to Sandifer, Buford suggested that Handcock sit on the passenger side of the front seat, and Buford got on the back seat behind Handcock. As they drove toward Meridian, Buford leaned over the front seat in front of Handcock.

Immediately thereafter Handcock told Sandifer to take him to the hospital, that Buford had stabbed him. Sandifer turned on the overhead light and saw that Hand-cock was bleeding profusely from his chest. He also saw Buford with a knife in his hand. Buford, holding a knife to Sandifer’s throat, ordered him to stop the car, whereupon Buford leaned across the front seat and unlatched the door on Handcock’s side and Handcock fell out of the car. Buford then ordered Sandifer to drive on to Meridian and on the way, according to Sandifer, Buford threw the knife out of the car window.

Sandifer drove to the cab station to meet his girl friend, and Buford then took Sandi-fer’s car to wash the blood out of the front seat. While his girl friend was calling the police, Sandifer went outside and waved down a patrolling police car. He told them what had happened and they took him to the police station.

Meridian Police Officer Cecil Currie received a police bulletin over his car radio to be on the lookout for a 1969 black-over-orange Camaro with large black racing stripes down the center of the hood and trunk. Shortly thereafter Currie spotted this car and followed it about a block and a half, stopping it on 22nd Avenue. The driver said his name was Buford, and Currie shined his flashlight into the car and saw what appeared to be blood on the passenger side of the front seat.

Officer McAllister, who was with Currie, looked inside the car and also noticed the bloodstains. Buford was then arrested, searched and handcuffed. Officer Currie asked Buford if he wanted to say anything, and Buford replied that he didn’t know what it was about. Officer Currie then said:

“[W]e told him it was concerning an incident — a stabbing incident — out in Marion, and he told us that he didn’t know anything about it.”

Handcock’s body was found a short time later by Deputy Sheriff Garcia of Lauder-dale County. After concluding that Hand-cock was dead from a single stab wound in his chest, Garcia and the assistant coroner put Handcock’s body in an ambulance and it was taken direct to a funeral home.

Buford took the witness stand in his own defense and testified that soon after they left the Naval Air Station they noticed a car on the left side of the road with flashing lights, that they stopped and Handcock went back to the car to check, that Hand-cock did not come back and when the parked car started up and sped away, he and Sandifer looked for Handcock and found him lying behind their car with a stab wound in his chest. Buford further testified that he and Sandifer loaded Hand-cock into Sandifer’s car and as they proceeded toward Meridian, Sandifer suggested that they get rid of Handcock’s body because if his body was found in the car both would be charged with killing him, whereupon they dumped his body on the side of the road. Buford said that they agreed to meet at the police station after he had dropped Sandifer off at the cab station to meet his girl friend and after Buford had washed the blood out of the car.

Buford has assigned as error that:

I.The Trial Court erred in failing to require a suppression hearing to determine the existence, if any, of probable cause to arrest the Appellant wherein the admissibility of evidence obtained during such arrest would have been determined.
II.The Trial Court erred in permitting the police officer to testify as to his accusation of Appellant and his subsequent denial insofar as the same is inadmissible evidence.
III. The Trial Court erred in instructing the jury that they could measure the weight and credibility of any witness’s testimony by his interest in the case.
IV. The Trial Court erred in permitting the case to go to the jury by reason of the incompetence of trial counsel and thereby failed to guarantee Appellant a fair trial.

No suppression hearing was requested by the appellant. It was not until an official police broadcast, based on specific information furnished the Meridian police by eye-witness Christian Sandifer, was received by Officer Currie that he stopped the car driven by appellant, and it was not until he and Officer McAllister had noticed blood on the passenger side of the front seat that Buford was arrested, explained his Miranda rights and questioned. There was probable cause for Buford’s arrest. In the absence of a request for a suppression hearing, the trial court was not in error in failing to have such a hearing.

No objection was made when Officer Currie testified:

“[W]e told him it was concerning an incident—a stabbing incident—out in Marion, and he told us that he didn’t know anything about it.”

We have said many times that, in the absence of a specific objection to testimony, the trial court cannot be put in error for admitting it. See Baker v. State, 327 So.2d 288 (Miss.1976); and Sumner v. State, 316 So.2d 926 (Miss.1975).

Appellant assigns as error the granting of Instruction D-14:

“The court instructs the jury that they are the sole judges of the credibility of the witnesses and the weight and worth of their testimony. The jury may take into consideration the interest, if any, any witness, or witnesses, may have in the case; his relationship or connection with the parties to this case; his or their demeanor on the stand. The jury may also take into consideration in judging the credibility of any witness or witnesses and giving weight to their testimony their opportunity for knowing and seeing the facts and conditions about which they testify.”

This instruction was requested by the defendant, not by the State. We specifically held in Musselwhite v. State, 212 Miss. 526, 54 So.2d 911 (1951), that an accused may not complain of an instruction given at his request. The logic of requesting this instruction by the defendant was that defendant wanted the jury to look with a jaundiced eye at the testimony of the State’s principal witness, Christian Sandifer, Jr., and consider the interest of this witness in clearing his name and placing the commission of the crime on the defendant, who was his companion and fellow passenger in the car with the victim.

As a part of his trial strategy, defendant requested and was granted Instruction D-13:

“The court instructs the jury that a defendant is a competent witness in his own behalf and that you have no right to discard his testimony, or to look upon his testimony with suspicion merely because he is a defendant in this cause, and that if you have no other reason to disbelieve him than the fact that he is a defendant, then you must believe his testimony to be the truth, and thereupon acquit the defendant.”

The trial court cannot be placed in error for granting these two instructions specifically requested by the defendant.

The last assignment of error is that trial counsel (now deceased) was incompetent and ineffective. We have carefully studied the record and are of the opinion that this assignment of error is without merit and that the defendant did have the assistance of effective and competent counsel at his trial.

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.

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


text:
    MISSISSIPPI POWER & LIGHT COMPANY v. Joseph B. SCOTT, Jr., et al.
    No. 51066.
    Supreme Court of Mississippi.
    April 4, 1979.
    Rehearing Denied July 11, 1979.
    Wise, Carter, Child, Steen & Caraway, Jimmie B. Reynolds, Jr., Jackson, Ward, Martin, Terry & Way, J. S. Terry, Vicksburg, for appellant.
    Prewitt & Prewitt, John W. Prewitt, Vicksburg, for appellee.
   Appeal from Special Court of Eminent Domain, Warren County; James E. Nichols, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

REVERSED AND REMANDED FOR A NEW TRIAL UNLESS APPELLEES ACCEPT A REMITTITUR OF $5,000 WITHIN TWENTY (20) DAYS.

SMITH, P. J., and SUGG, WALKER, LEE and COFER, JJ., concur.

ROBERTSON, P. J., took no part.


author: SUGG, Justice,

text:
    Jacob STEWART v. STATE of Mississippi.
    No. 51195.
    Supreme Court of Mississippi.
    May 2, 1979.
    Rehearing Denied July 11, 1979.
    M. Charles May, Clyde Eiland Harris, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Justice,

for the Court:

Defendant was convicted of armed robbery under Section 97-3-79 Mississippi Code Annotated (Supp.1978). The verdict of the jury was: “We, the jury, find the defendant guilty as charged.” The jury did not fix the penalty at imprisonment for life and the trial judge sentenced the defendant to 75 years in the State Department of Corrections.

Defendant contends that the imposition of a 75 year sentence is excessive under the statute, and the sentence amounts to cruel and unusual punishment in violation of the Constitutions of the United States and the State of Mississippi. We reject the argument that the sentence constitutes cruel and unusual punishment in violation of the Constitutions, but hold that the sentence is excessive because it is for a longer period of time than permitted by statute.

We have conflicting decisions on the latter question. See Lee v. State, 322 So.2d 751 (Miss.1975), and McAdory v. State, 354 So.2d 263 (Miss.1978). In Lee, the defendant was convicted of forcible rape and sentenced to life imprisonment. We affirm the conviction but remanded for imposition of proper sentence and stated:

The appellant next contends the sentence of life imprisonment by the court was beyond the limits of Mississippi Code Annotated section 97-3-65 (Supp.1974). With regard to punishment it states:
“. . . upon conviction shall be imprisoned for life in the state penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the state penitentiary for any term as the court, in its discretion, may determine.”
With this contention we agree. The jury returned a verdict of guilty. It did not fix the penalty at life imprisonment in the penitentiary thereby, in accord with the statute, leaving the question of sentence within the court’s discretion. The issue presented is whether a trial judge under this section may impose a sentence of life when the jury has “failed” to do so. We think not. In Bullock v. Harpole, 233 Miss. 486, 102 So.2d 687 (1958). we had this to say concerning a similar statute:
“It can be readily seen, as stated in the Dickerson case, supra [Dickerson v. State, 202 Miss. 804, 32 So.2d 881], that the statutes place the death sentence within the sole province of the jury, and no such sentence can be imposed by any judge unless he has the authority of the jury therefor.” (233 Miss, at 494, 102 So.2d at 690.)
The statute before us places the imposition of a life sentence within the sole province of the jury and, in our opinion, no such sentence can be imposed by a judge unless he has the authority from the jury so to do. The statute presupposes, absent a jury recommendation of life imprisonment, that the judge will sentence the defendant to a definite term reasonably expected to be less than life. We therefore affirm and remand for proper sentence. (Emphasis Supplied). (322 So.2d at 753).

We expressed a different view in McAdory v. State when we held that a 90 year sentence for armed robbery was not excessive under section 97-3-79. In McAdory, we stated:

We do not agree with appellant’s assignment of error that the sentence of the lower court was manifestly excessive and constituted unusual and excessive punishment in violation of both the United States and the Mississippi Constitutions. Under the provisions of Mississippi Code Annotated section 97-3-79 (Supp. 1977), the jury could have imposed a life sentence. In the event the jury failed to impose sentence, as was done in this case, the lower court had the discretion under the statute to impose a life sentence.
Therefore, we conclude that the sentence of 90 years imposed by the lower court was within the statutory limitation and from the record in this case, the Court cannot say that this sentence was cruel, unusual or excessive punishment. The cause is therefore affirmed. (Emphasis supplied). (354 So.2d at 266).

Our holding in Lee v. State, supra, announces a sounder rule; therefore, we overrule that portion of McAdory v. State, supra, dealing with the sentence of the defendant. We affirm defendant’s conviction but remand for sentencing for a definite term reasonably expected to be less than life.

Upon remand, the trial court will make a record of and consider all relevant facts necessary to fix a sentence for a definite term reasonably expected to be less than life. The court should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence.

Since we have reversed our holding in McAdory with reference to the sentence, the court in that case should entertain a motion for a proper sentence filed either by the defendant or by the court on its own motion.

We have considered the other assignments of error and find no merit in them.

AFFIRMED IN PART (CONVICTION), REVERSED IN PART (SENTENCE) AND REMANDED FOR PROPER SENTENCE.

All Justices concur.

      . Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.


text:
    Patricia D. TOMPKINS v. Frances B. CLARK et al.
    No. 51131.
    Supreme Court of Mississippi.
    May 2, 1979.
    Rehearing Denied July 11, 1979.
    Bailey & Sadler, E. Foley Ranson, Ocean Springs, for appellant.
    Bryant & Stennis, Roger T. Clark, Gulf-port, for appellees.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


author: COFER, Justice,

text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION and Ansa-Phone of Pearl, Inc. v. AAA ANSERPHONE, INC., Jackson.
    No. 51118.
    Supreme Court of Mississippi.
    May 9, 1979.

      Thomas, Price, Alston, Jones & Davis, John H. Price, Jr., A. F. Summer, Atty. Gen., by Bennett E. Smith, Asst. Atty. Gen., Jackson, for appellant.
    Perry, Crockett, Morrison & Starling, Fred W. Johnson, Jr., Jackson, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   COFER, Justice,

for the Court:

Ansa-Phone of Pearl, Incorporated (Ansa-Phone) applied to the Mississippi Public Service Commission (Commission) for a certificate of public convenience and necessity to “establish, maintain and operate a domestic public land mobile and portable radio service which will be engaged in the transmission of messages by radio as a public communication service for compensation or hire between a base transmission and receiving station to mobile and portable units and from such mobile units to said base station.” Ansa-Phone proposed in its application to “render a new radio telephone common carrier, 150 megacycle, fully automatic radio service from a base station located at the approximate geographic center of Pearl,” in an area encompassed by a 35-mile radius from the proposed base station. From a decision favorable to the applicant Ansa-Phone, AAA Anserphone, Incorporated, Jackson (AAA) which resisted the application at the commission hearing, appealed to the Chancery Court of the First Judicial District of Hinds County. (South Central Bell Telephone Company had filed protest to protect its authority already certificated, but did not participated in the hearing. In its order, the Commission retained to South Central Bell Telephone Company rights held under certificates of public convenience and necessity referred to in Chapter 372, Sec. 1 D(3), Laws of Mississippi, of 1956, including the furnishing of mobile and portable radio-telephone service and authorized it “to conduct all the aforesaid operations and make extensions thereto within all the territory embraced within its certificated area in Mississippi, including the area encompassed in the present petition.” The said section 1 D(3), Chapter 372, Laws of 1956, reads as follows:

(3) The transmission, conveyance or reception of any message over wire, or by radio, or otherwise, of writing, signs, signals, pictures and sounds of all kinds by or for the public, where such service is offered to the public for compensation; and the furnishing, or the furnishing and maintenance, of equipment or facilities to the public, for compensation, for use as a private communications system or part thereof; provided, that no persons or corporations not otherwise a public utility within the meaning of this act shall be deemed such solely because of engaging in this state in the furnishing, for private use as last aforementioned; and provided further that nothing in this act shall be construed to apply to television stations, radio stations or community television antenna services.)

The chancery court reversed and set aside the Commission’s order and Ansa-Phone and the Commission have appealed therefrom to this Court.

Appellants Ansa-Phone and the Commission assigned as errors (1) the chancellor’s finding that the operations for which the commission had granted authority will result in a duplication and waste and that it violates the “existing facility rule,” (2) the chancellor’s holding that AAA was rendering adequate service in the area sought to be served by Ansa-Phone; (3) the chancellor’s failure to hold that the Commission’s order was supported by substantial evidence and was in accordance with the manifest weight of the evidence; (4) the chancellor’s holding that the Commission’s findings of fact do not comply with the statute, Mississippi Code Annotated, section 77-3-59, (1972); (5) if correct in the next preceding holding, the chancellor erred in not remanding the case for more detailed findings in support of its order; and (6) the chancellor’s reversing and setting aside of the Commission’s order.

It probably should be noted, at the outset, that Ansa-Phone’s proposed operations are no different in type from those already certificated to AAA, insofar as the area already being served by AAA is concerned. Whether there is a difference in the quality of these services as rendered by AAA and as proposed to be rendered by Ansa-Phone is in conflict.

The most troublesome of these assignments of error is the first set out above— that Ansa-Phone’s operations will result in duplication and in waste, and will violate the “existing facility rule.”

The “existing facility rule,” frequently referred to as the “Tri-State Transit rule,” was first enunciated in Mississippi by the decision of this Court in Tri-State Transit Co. of La., Incorporated v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441 (1944), wherein it was said:

The rule is, and we find no authority to the contrary, that a certificate should not be granted where there is existing adequate service over the route applied for, and, if inadequate, unless the existing carrier has been given an opportunity to furnish such additional service as may be required. (197 Miss, at 48, 19 So.2d at 444).

The opinion in Capital Electric Power Asso. v. Mississippi Power & Light Co., 240 Miss. 139, 125 So.2d 739 (1961), lists a number of decisions upholding the “existing facility rule,” as to motor carriers, and then calls attention to the case of Mississippi Power & Light Co. v. Town of Coldwater, 234 Miss. 615, 106 So.2d 375 (1958), to illustrate the Supreme Court’s view that the same rule applies to electric utilities. It then, proceeded to apply the rule and refused to grant to Mississippi Power & Light Company a certificate that would infringe upon the rights of Capital Electric Power Association to serve the power needs of an area which Capital was authorized to serve. It held:

An existing utility within the certificated area has the right and duty to provide the service, and must be given that opportunity. If it fails, the commission can award another franchise to another utility. (240 Miss, at 151, 125 So.2d at 743).

In Movers Conference of Mississippi v. Long, 243 Miss. 214, 137 So.2d 925 (1962), the Commission granted to appellee (as authority in addition to what it had) right to transport household furniture from any point within Mississippi to any point in Jackson County. This Court said:

The question is whether the record contained substantial testimony in support of the order of the Mississippi Public Service Commission granting appellee additional rights under his certificate. We believe that there is substantial evidence to justify the ruling of the Commission. Several public officials of Jackson County testified to the effect that Jackson County was one of the fastest growing counties in the State of Mississippi and that there had been a rapid growth there over the past ten or twelve years; there were a number of new industries that had moved to the County and established plants; there were from six to eight listed; within the last four years the qualified electors had increased from 8,000 to 13,-000; that the 1940 census was 20,000 and the 1950 census showed a population of 31,000; and there was testimony to the effect that the Mississippi University census of 1958 showed the population of the County to be around 59,000. The testimony was to the effect that the fluctuation of workers in the area created quite a demand for moving. The appellee had been requested on several occasions to transport furniture from outside of Jackson County into the county and the appel-lee declined, due to the fact that he did not have the authority. (243 Miss, at 217-218, 137 So.2d at 926-927).

Taking note of the “existing facility rule,” the fact that it has been consistently followed as to operators over regular routes, and that, in the Long case next above, it was not observed, the Supreme Court, in Morgan Drive-A-Way v. Lee, 243 Miss. 891,139 So.2d 863 (1962), had before it applications of Lee for certificate to operate as a restricted common carrier by motor vehicle, transporting mobile homes between points in Mississippi over irregular routes and over all highways and roads therein.

Declining to apply the “Tri-State Transit Rule”, this Court first found the granting of the certificate was supported by substantial evidence:

The appellants claim there was no substantial evidence supporting the order of the Commission. The Commission heard evidence as to the estimated number of house trailers at various points in Mississippi, and as to the percentage thereof that were required to be moved monthly by vehicles other than the automobile of the owner. It also heard proof as to the increasing use of house trailers, the increased size thereof, and the fact that trailers were being made longer and wider so that many came to that size where the law prohibited the moving of same by ordinary motor vehicles. It heard testimony as to transient workers, particularly men working on oil rigs, and of the fact that when they are required to move they had to do so speedily; that there were three other carriers holding certificates of this nature, one with headquarters at Biloxi, one at Jackson and one at Laurel; and the number and availability of the vehicles owned by these carriers was shown. They also heard testimony that on many occasions people desiring to be moved would be advised by those in the business that they could. not move them for two or three days or more; that at some of the stations, the carriers had only one or two vehicles to answer calls and when these were away it was necessary to either wait for their return or call in vehicles from surrounding states. We think there was substantial evidence to support the finding of the Commission. (243 Miss, at 896, 139 So.2d at 864).

It was then said:

In the present case there were only three authorized carriers of this type in the State with a limited amount of equipment and facilities, and this in a business which the Commission was justified in believing was increasing steadily. These certificates were for the operating of irregular routes with no schedule and to any point or place in Mississippi over any road or highway. In fact, we know as a matter of common knowledge that some workers may have their trailers situated in places where there are no public roads. They may be situated out in a field or in a swamp off the highway, though most of them will maintain their house trailers in or around a town or city near where they are employed for the time being. For these reasons, this Court holds that the “Tri-State Rule” is not applicable to this case. (243 Miss, at 898, 139 So.2d at 865).

It is our view that the case of Keith, d/b/a Monroe Radiotelephone Company v. Bay Springs Telephone Company, Inc., 251 Miss. 106, 168 So.2d 728 (1964), cited with approval and with partial quotation in Mississippi Power Co. v. South Miss. Electric Power Association, 254 Miss. 754, 183 So.2d 163 (1966), is decisive of the assignment of error now under consideration.

Differences in the types of service available and sought to be made available by Keith and Bay Springs Telephone Company (Bay Springs) existed in that case, but this Court further examined the “existing facility rule,” and said:

However, the existing facility rule does not apply unless the services and facilities to be rendered by the new certificate are duplicating and result in waste. Section 5(c) of Public Utility Act reflects an intent to “prevent unnecessary and uneconomic duplication of such facilities as between two” utilities. See also § 5(f). The rule is a limitation upon the Commission’s power to issue certificates, but it is relevant for the purpose principally of avoiding wasteful duplication of the existing utility service. (Emphasis added). (251 Miss, at 114, 168 So.2d 730).

It was true in that case and is true here that, in order to render mobile telephone service radio must be utilized, which, in turn, requires application to the Federal Communications Commission for assignment of radio wave length or lengths and permission to operate the required equipment and “these frequencies do not interfere with or duplicate those available or assigned to” another successful applicant.

The Court continues in the Bay Springs case:

The existing facility rule began with the regulating of local common carriers operating over fixed routes for transportation of commodities and passengers. It was designed to prevent needless competition and to regulate controlled monopolies for the purpose of preventing economic waste, [citing authorities] (251 Miss, at 117, 168 So.2d at 731).

The existing facility rule is intended to prevent wasteful duplication, but,

In summary, the existing facility rule has as its rationale the prevention of wasteful duplication in public service enterprises, and the avoidance of uneconomic and unnecessarily duplicating facilities. But it should not interfere with progress in equipment or methods or serving the public, or technological improvements devoted to the public service. (Emphasis added). (251 Miss, at 119, 168 So.2d at 732-733).

The Court said that our cases have recognized the rule and its limitations and observed that “[t]he ultimate objective is the public convenience and benefit from efficient and adequate utility service.” 251 Miss, at 120, 168 So.2d at 733).

Differentiating Bay Springs and Keith from other utility services, the Court said:

A third difference lies in the type of utility services involved. Bay Springs and Monroe are not bus or truck carriers with fixed routes. Nor are they electric utilities with defined areas for which specific lines can be drawn. The service rendered by Monroe is by radio, without, apparently, an authorized connection with landline telephone service; by Bay Springs, through radio and connected landline telephone. In both cases, transmission and reception by radio cannot be defined firmly by lines of a service area. Radio waves cannot be confined to land-surface boundaries. (Emphasis added). (251 Miss, at 121, 168 So.2d at 733).

The Court then said,

Accordingly, in radiotelephone cases, it is appropriate for the Commission to have some latitude in evaluating all relevant facts, and determining whether to apply the existing facility rule. . . . The Commission found that public convenience and necessity required the new service by Bay Springs; and the variety of different businesses in this heavily populated area reflected a demand for an automatic, mobile, dial radiotelephone service. In other words, the existing facility did not constitute an adequate substitute for that proposed. By necessary implication it held there would be no uneconomic and unnecessary duplication of facilities, no economic waste. The evidence supported these conclusions. (Emphasis added). (251 Miss, at 121, 168 So.2d 733).

The commission found in the present case that Pearl’s metropolitan area has a population of approximately 28,000 residents and the area has a variety of businesses, manufacturing, oil exploration, and services business, and professions, as plumbers, electrical contractors, general contractors, physicians, and others who expressed their desire for the type of two-way radio service sought to be made available by Ansa-Phone.

A material factor in considering the propriety or none of the Commission’s granting the certificate to Ansa-Phone is the phenomenal speed of the growth of Pearl, and of Rankin County, in which Pearl is located and which county is intended to be in the area of Ansa-Phone’s service. With a population of 43,933 in 1970, Rankin County had grown 28 percent since 1960, and during the same decade 1960-70, Pearl had a growth of 89.4 percent, and both the municipality and the county have continued their record of growth in these upward of eight years since the 1970 census.

The authority sought by Ansa-Phone does not require heavy equipment and machinery moving along the highways, or termini and land exchange points for the commodity-voice or tone messages which it conveys, nor does it require succession or successions of telephone poles and wires, as do land-line grounded public utilities. It does require approval and assignment of channel by the Federal Communications Commission which prohibits interference with a competitor’s wave length. The record establishes that Ansa-Phone would serve and to a degree relieve the congestion of telephone exchanges 939 and 932 in the Pearl area.

It is likewise pointed out that with distance and range of sight, the service from an antenna to the mobile or portable telephone or receiver and vice-versa becomes greatly impaired and the reception becomes attenuated. Contributing also to the reception impairment are the numbers and location of tall buildings in downtown Jackson, among which AAA’s antennae are largely located. Ansa-Phone logically argues that this type of dissipation of sound quality will not be present in an area served by its Pearl location.

The Federal Communications Commission has, in its actions, indicated an encouragement of competition, in a limited degree in assigning various frequencies in cases such as this at bar. Malis v. General Telephone Co. of California, 40 PUR 3d 315 (Cal. Public Utilities Commission 1961).

In view of the record, the Commission had, and properly used, flexibility of the “existing facility rule.” In so finding, we also conclude that “[b]y necessary implication it held there would be no uneconomic and unnecessary duplication of facilities, no economic waste” (Bay Springs, supra), and we find that the evidence supports these conclusions as said also in the Bay Springs citation next above.

Having resolved in favor of Ansa-Phone and the Commission the first crucial assignment of error, we further only notice the chancellor’s holding that the commission’s failure to make detailed findings of fact is reversible error.

Mississippi Code Annotated Section 77-3-59 (1972), requires that the Commission, after hearing has been concluded, shall “make and file its findings and order, and its opinion, if any.”

In Fortune Furniture Mfg. Co. v. Sullivan, 279 So.2d 644 (Miss.1973), a workmen’s compensation case, this Court said:

This is. another one of those cases in which this Court is handicapped in its effort to perform the function of an appellate court, because of the lack of facts stated in the order of the administrative agency on which its finding is predicated. (279 So.2d at 646).

The decision cited Rivers Construction Co. v. Dubose, 241 Miss. 527, 130 So.2d 865 (1961), holding that failure to make a finding of fact is not fatal to an informal order of the Commission but that it is better form for such a fact finding administrative agency to make a finding of fact on which to base its award or failure to award a claim.

In Morgan Drive-A-Way v. Lee, 243 Miss. 891, 899, 139 So.2d 863, 865-866 (1962), supra, there was argument that the Public Service Commission failed to include in its order sufficient ultimate findings of fact, and this Court pointed to Illinois Central Railroad Co. v. Jackson Ready-Mix Con Crete, 243 Miss. 72, 137 So.2d 542 (1962), which announced that state agencies are not required to make a detailed finding of fact, but that an ultimate finding is sufficient.

The failure of the Commission’s order to contain a detailed finding of fact in Mississippi Power Co. v. Miss. Public Service Commission, 291 So.2d 541, 554-555 (Miss.1974), was the subject of comment in this Court where it was said that detailed findings should be made as an aid to the Court on appeal and in Mississippi State Tax Commission v. Piggly Wiggly Alabama Distributing Co., Inc., 369 So.2d 501 (1979), we took note of the Tax Commission’s failure to make detailed findings of fact. We do not know and have not had cited to us any holding of our Court that failure to make findings of fact in cases such as this is basis for reversal.

We find no other assignment of error merits discussion.

The chancery court’s decree is reversed and the order of the Commission is reinstated.

REVERSED AND ORDER OF THE COMMISSION REINSTATED.

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