author: SAMUEL, Judge.

text:
    Fred SAUCIER v. HAYES DAIRY PRODUCTS, INC. and the Hartford Group Insurance Company.
    No. 8104.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Writ Granted Feb. 24, 1978.

      Emile L. Turner, Jr., New Orleans, for plaintiff-appellee.
    George W. Reese, New Orleans, interve-nor-appellant-in pro. per.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff was injured in an automobile accident. He employed George W. Reese, an attorney at law, as his attorney and executed a written undated contract of employment with him. The contract included assignment of a one-third interest in plaintiff’s claim to Mr. Reese as his fee and prohibited the settlement, compromise, dismissal, or discontinuance of the matter without the written consent of both parties.

On January 25, 1972, suit was filed on plaintiff’s behalf, and on January 15, 1975 plaintiff dismissed Mr. Reese as his attorney and retained other counsel. On January 31, 1975 Mr. Reese filed the employment contract with the clerk of the trial court and served certified copies on all parties in the litigation in accordance with R.S. 37:218. He also filed a petition of intervention to collect his contingent interest from any award to plaintiff. Plaintiff answered the intervention, averring that if he had breached his contract with intervenor the breach was for cause.

Prior to trial of the main demand, plaintiff entered into a compromise with the original defendants for $75,000. Following trial of the intervention, judgment was rendered in favor of intervenor based on quantum meruit in the amount of $3,000 for legal services plus costs and medical expenses incurred by him on behalf of plaintiff. Intervenor has appealed.

In this court intervenor contends: (1) he is entitled to one-third of the $75,000 settlement as his contingent fee; (2) his contractual interest could be changed to quantum meruit only if his client (the plaintiff) had cause to terminate the contract; and (3) the alleged cause for terminating the contract was not factually pleaded so that testimony with regard to the cause was incorrectly admitted as an improper extension of the pleadings. We find it unnecessary to consider the third contention relative to procedure because, even taking into consideration all of the evidence introduced as to cause, our conclusion is that no good cause has been shown by the plaintiff.

Plaintiff testified he saw intervenor four or five times prior to dismissing him by letter on January 15, 1975. He thereafter received a letter from intervenor by which the latter expressed his willingness to represent him further. Plaintiff knew interve-nor had paid a bill to one of the doctors treating him in an amount between $700 and $900, together with any court costs which had been incurred in the suit. Plaintiff testified he became dissatisfied with one of the doctors to whom he had been sent by intervenor, after which intervenor referred him to another doctor. He was aware the case had been continued on several occasions for medical reasons. Over intervenor’s timely objection, plaintiff testified he discharged intervenor because he was dissatisfied with one of the doctors to whom he had been sent and because inter-venor, after three years of representation, informed him that there was only $25,000 of liability insurance coverage available. He then discharged intervenor, and engaged another attorney who found there was $50,-000 in liability insurance together with an additional $5,000 coverage for property damage.

Robert M. Johnson, the attorney for the original defendants in the case, testified he dealt with intervenor from the inception of the suit and had maintained a time sheet showing the amount of time expended by him. He stated he spent 27 hours on the case much of which was consumed by various letters, conferences, and telephone conversations with plaintiff’s attorney, including depositions and settlement conferences. He established $50 an hour as a standard fee charged a corporate defendant but indicated that in this matter he had charged $40 per hour.

Ermilee Figuroa, intervenor’s legal secretary and a niece by marriage of plaintiff, testified relative to the cost expended by intervenor and to the extensive interviews she had with plaintiff and his wife either by telephone or in person when they came to intervenor’s office with regard to plaintiff’s suit. All of these conversations were relayed to intervenor in connection with his work on the case.

Intervenor testified he did not keep time sheets on contingent fee contract cases because his fee, being based upon a percentage of recovery, renders the amount of expended time immaterial. He established a substantial amount of correspondence on his part, together with interviews with his client, telephone calls, and supervision of the medical treatment rendered by physicians to the plaintiff. He had numerous conferences with plaintiff’s doctors about plaintiff’s condition and secured reports and bills covering medical services, drugs, surgical equipment and hospital reports. The largest amount of his time was spent in reviewing and analyzing the medical information which came to him on a regular basis. He further testified, and this is amply substantiated by the evidence, that plaintiff’s injuries did not appear to be serious initially but that the condition deteriorated over a period of time requiring extensive and previously unexpected medical treatment and consultation. The record also clearly indicates intervenor’s close supervision of the medical information available to him and his refraining from trying the case while it was under his supervision resulted in a substantial increase in the amount which plaintiff eventually recovered over what he would have recovered had the suit been settled or tried prior to full development of the injuries.

Intervenor admitted he indicated to plaintiff the insurance coverage was only $25,000, but he told plaintiff this was not a significant factor because the defendant corporation was solvent and able to respond in damages over the amount of any insurance coverage it might have. The lowest figure which plaintiff authorized intervenor to consider was $150,000, which intervenor felt was an unrealistic settlement figure.

Plaintiff’s wife testified she went with her husband to intervenor’s office initially and thereafter with regard to the progress of his case and had several telephone conversations with him. Her husband did not feel intervenor was handling the case properly because he should have talked to the doctors more often. She testified interve-nor communicated total insurance coverage of $25,000, but admitted intervenor did not ask or encourage her husband to accept this amount of money. She stated there was no personality conflict or communication breakdown between intervenor and her husband, and she admitted she did not know her husband’s reason for discharging inter-venor. She also admitted intervenor told her and her husband the defendants could pay any amount for which they might be cast in judgment irrespective of the amount of insurance available to them.

The attorney-client contract in suit complies with all of the provisions of R.S. 37:218, which then provided:

“By written contracts signed by the client, attorneys at law may acquire as their fee an interest in the subject matter of the suit, proposed suit, or claim in the prosecution or defense of which they are employed, whether the suit or claim be for money or for property. In such a contract for employment, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file it with the clerk of the district court in which the suit is pending or is to be brought and have an original or certified copy made and served by registered or certified mail on the opposing party. After such service, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client without the written consent of the other is null and void and the suit or claim shall be proceeded with as if no such settlement or discontinuance had been made.” LSA-R.S. 37:218.

Thus, we are required to consider the question of whether, and under what circumstances, Louisiana courts have enforced the literal provisions of R.S. 37:218.

Recent cases have implied, but did not hold, that irrespective of compliance with the provisions of R.S. 37:218 the attorney-client relationship is a mandate revocable at the discretion of the client pursuant to Civil Code Article 3028. However, research into the application of this statute by the courts of Louisiana shows that a contract which is drawn in total compliance with this statute will be enforced if the attorney has performed his obligations thereunder in a satisfactory manner. Numerous cases have so held.

Other cases have recognized the enforceability of a contract drawn pursuant to R.S. 37:218, but have refused to enforce the particular contract before the court on the basis that some technical requirement was not met. Such contracts have not been enforced when the contract itself did not prohibit the client’s dismissal of the suit without the attorney’s consent. Other cases have refused to enforce the contract where it was not recorded in accordance with the statutory provisions. Such contracts also have not been enforced against a client seeking to dismiss a suit, since the statute does not allow prohibition of dismissal.

The other important condition for enforcement of a contract drawn in strict conformity with R.S. 37:218 is that the attorney perform his services as contracted. A contract pursuant to R.S. 37:218 was not enforced in Guilbeau v. Fireman’s Fund Insurance Company, in which the attorney performed no services for two years with the exception of filing the original suit. The court there relied on the doctrine of quantum meruit to compensate the attorney for services he did perform. In Oil Purchasers, Inc. v. Kuehling, the Supreme Court did not enforce such a contract in its totality, because performance was not completed because of the attorney’s death. It is interesting to note that court looked on the quantum meruit remedy with disfavor and instead used the civil law actio de in rem verso to determine the amount of compensation due for the services of the deceased attorney. It is important to note such contracts have been enforced even when performance has not been complete in cases where the client has made completion of performance impossible.

The apparent misunderstanding that an attorney cannot receive the full amount of his percentage fee stipulated in the contract drawn in compliance with R.S. 37:218 even though he has performed seems to have derived from a group of cases in which the courts have awarded attorney’s fees where there was no contract involved, where there was an oral contract, or where the attorney chose to sue in quantum meruit. This misunderstanding seems to have been fostered by misquotation in at least two decisions of the Supreme Court’s language in Succession of Carbajal. In Carbajal, the Supreme Court stated attorney-client contracts were terminable at the will of the client prior to the passage of Act 124 of 1906, the predecessor of R.S. 37:218. However, the misquotation of the Carbajal language omitted reference to the court’s statement that attorney-client relationship was terminable at the will of the client prior to the 1906 statute, thereby causing the incorrect quotations to imply that all attorney-client contracts are so terminable, with the attorney to be compensated only on quantum meruit.

We construe the jurisprudence to be that an attorney-client contingent fee contract drawn and executed in strict compliance with R.S. 37-218 may not be terminated at the will of the client in the absence of cause such as nonperformance or improper performance by the attorney.

In the present case the record fully supports an award to intervenor of his contractual one-third of the settlement obtained by the plaintiff. There is no evidence intervenor did not perform satisfactorily. Numerous documents introduced in evidence substantiate intervenor’s contention he was in constant contact with plaintiff’s doctors, and there is no question that in his relationship with plaintiff full communication was maintained. The delay from the date of the accident to the settlement of plaintiff’s case was not the result of inter-venor’s failure to exercise due diligence, but resulted from the deteriorating nature of plaintiff’s physical condition and the necessity for intervenor to obtain complete medical proof of the extent of plaintiff’s injuries. It is clear intervenor’s continuous efforts in building up plaintiff’s case with medical evidence while he represented plaintiff was the main factor which allowed plaintiff to settle the case for $75,000 instead of a much lesser amount. Both plaintiff and his wife acknowledged they were familiar with intervenor’s efforts. Interve-nor’s understanding that insurance coverage was $25,000 when in fact it was $50,000 is not relevant in this case because defendants were able to stand in judgment for a larger amount, intervenor so advised plaintiff, and intervenor made no attempt to force plaintiff to accept the settlement based on the lower coverage amount. In addition, the additional coverage appears to have been discovered only after intervenor was discharged, so that this factor could not have been part of plaintiff’s reason for discharging intervenor.

Intervenor had a valid contingent fee contract executed pursuant to R.S. 37:218 and performed his duties thereunder competently. His total compliance with his contractual duties was prevented by plaintiff’s discharge of intervenor without good cause, and plaintiff cannot take advantage of his own wrong to deprive intervenor of a fee competently earned. Therefore, we hold intervenor is entitled to his contractual one-third of the settlement reached between plaintiff and the original defendants.

For the reasons assigned, the judgment appealed from is amended so as to increase the amount awarded as an attorney’s fee in favor of intervenor, George W. Reese, and against the original plaintiff and defendant in reconvention, Fred Saucier, and the original defendants, Hayes Dairy Products, Inc.' and The Hartford Group Insurance Company, from the sum of $3,000 to the sum of $25,000. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

      . Hayes Dairy Products, Inc. and The Hartford Group Insurance Company.

      . Intervenor spent $75 on court costs and $916 for medical bills on behalf of his client. The judgment appealed from is against plaintiff and the two original defendants and is to be paid from the $75,000 compromise settlement.

      . Acadian Production Corp. of La. v. Savanna Corp., 226 La. 849, 77 So.2d 417; Robinson v. Hunt, 211 La. 1019, 31 So.2d 197; Hope v. Madison, 194 La. 337, 193 So. 666; Succession of Jones, 193 La. 360, 190 So. 581; United Gas Public Service Co. v. Christian, 186 La. 689, 173 So. 174; Husk v. Blancand, 155 La. 816, 99 So. 610; Stiles v. Bruton, 134 La. 523, 64 So. 399; Andirac v. Richardson, 125 La. 883, 51 So. 1024; see also strong dictum in Succession of Vlaho, La.App., 140 So.2d 226, stating that while R.S. 37:218 is strictly construed, it will be enforced if there is full compliance with its provisions. See also Due v. Due, La.App., 331 So.2d 858, at 860.

      . Tennant v. Russell, 214 La. 1046, 39 So.2d 726; Succession of Rice, 147 La. 834, 86 So. 282; Succession of Carbajal, 139 La. 481, 71 So. 774; Dickerson v. Scholvin, La.App., 261 So.2d 110.

      . See Smith v. Westside Transit Lines, Inc., La.App., 313 So.2d 371; Woodley v. Robinson, La.App., 100 So.2d 255.

      . Succession of Vlaho, supra, note 3.

      . La.App., 293 So.2d 216.

      . La., 334 So.2d 420.

      . D’Avricourt v. Seeger, 169 La. 620, 125 So. 735; Lytle v. Commercial Insurance Co., of Newark, N. J., La.App., 285 So.2d 289; Doucet v. Standard Supply & Hardware Company, La.App., 250 So.2d 549.

      . Aucoin v. Williams, La.App., 295 So.2d 868; Wright v. Fontana, La.App., 290 So.2d 449; Barranger, Barranger and Jones v. Cromp, La.App., 286 So.2d 474; Lynch v. Burgiass, La.App., 286 So.2d 170; Kramer v. Graham, La.App., 272 So.2d 716; Cabral v. Heitkamp, La.App., 252 So.2d 353; Inman v. Gonzales, La.App., 89 So.2d 914.

      . See Kramer v. Graham, supra, note 10; Inman v. Gonzales, supra, note 10.

      . Supra, note 4.

      . This result was reached by the Federal Courts in attempting to construe Louisiana law in Carlson v. Nopal Lines, 460 F.2d 1209 (5th Cir. 1972), which itself was followed by the Louisiana case of Guilbeau v. Fireman’s Fund Insurance Company, supra, note 7.

      . See dictum in Smith v. Westside Transit Lines, Inc., supra, note 5.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Frances Y. HOLMES et al. v. STATE of Louisiana, DEPARTMENT OF EMPLOYMENT SECURITY.
    No. 11597.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      James A. Gray, II, Baton Rouge, of counsel, for plaintiffs-appellants, Frances Y. Holmes, et al.
    James A. McGraw, Baton Rouge, of counsel, for defendant-appellee, State of La., Dept, of Employment Sec.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This proceeding was filed in the district court to review the decision of the Department of Employment Security, affirmed by the Board of Review, which denied the plaintiffs, Frances Y. Holmes, Catherine Patterson, LaJoyce Hayes, Rosa Hollins, Eva B. Kleinpeter, Alice M. McClain, Garland E. Millet, Claude Minor, Sharon Sherman, Lyndia M. Williams and Gloria Wright, unemployment compensation benefits. The case is before this Court on appeal from an adverse judgment of the district court.

The finding of facts and the opinion of the defendant agency as to each claimant were stated in its decision as follows:

“FINDINGS OF FACT:
“The claimant has been employed at Southern University as a Teacher during the 1975-1976 academic year. Sometimes (sic), prior to the start of a new academic year a letter of reemployment is sent by the university; however, the individual is notified that their re-employment must be approved by the Board of Supervisors of Southern University. No formal notice is given until a contract is mailed to the claimant normally one week prior to the opening of school until possibly two weeks after the school semester has begun for the following academic year. The claimant was not notified that the services as Teacher at the University were not to be contracted for the 1976-1977 academic year.”
“OPINION:
“R.S. 23:1600(6) provides that an unemployed individual shall be eligible to receive benefits with respect to any week only if the Administrator finds that benefits based on service in employment, defined in R.S. 23:1472(12)(F)(I) and (II) shall be payable in the same amount, on the same terms and subject to the same conditions as benefits payable on the basis of other employment subject to this chapter; except that benefits based on service in instructional research or principal administrative capacity in an institution of higher education (as defined in R.S. 23:1472(23)), the Louisiana State School for the Blind, the Southern University System State School for the Blind, the Louisiana State School for the Deaf, or the Southern University System State School for the Deaf shall not be paid to an individual for any week of unemployment which begins during the period between two successive academic years, or during a period of paid sabbatical leave provided for in the individual’s contract, if the individual has a contract or contracts to perform services in any such capacity for any institution or institutions of higher education, or the Louisiana State School for the Blind, the Southern University System School for the Blind, the Louisiana State School for the Deaf, the Southern University System State School for the Deaf for both such academic years or both such terms.
“The intent of the law is that no individual who has, by written, verbal, implied, or through usual hiring practice, contracted to return to any school system is to be entitled to benefits under this section of the law. The normal hiring procedure of the employer meets the criteria of the above section of law. Therefore, the disqualification as assessed by the Agency was warranted.”

This Court had occasion to consider the claims of tenured university teachers in our recent decision of Swetman v. Joseph Gerace, Administrator of the Department of Employment Security, 349 So.2d 977, and we conclude that inasmuch as the tenured teachers had a contract of employment with the university for the next academic year, they were ineligible for unemployment benefits during the summer months (between school terms or semesters).

We adhere to the Swetman decision. We find that the tenured university teachers in the instant case are ineligible for the unemployment benefits sought herein.

However, in the instant case, two of the claimants, Hayes and Minor, were not tenured. We must, therefore, ascertain if a legal distinction is made between tenured and non-tenured university teachers as far as employment contracts with the university are concerned.

The record reflects that the non-tenured, as well as the tenured, teachers had applied for and were expecting to return to their teaching positions in the fall term of 1976. Although none of the claimants had actually received a contract of employment, each was aware that a contract would be received prior to the beginning of the new academic year; and none of them had been advised that he was not to be rehired. “Contracts can be either express or implied, LSA-C.C. Art. 1780. Silence or inaction may in some instances show an assent that creates an obligation. LSA-C.C. Art. 1817.” Swetman v. Joseph Geraee, Administrator of the Department of Employment Security, supra.

We find that under these circumstances the non-tenured teachers also had a contract of employment for the new academic year. Both the non-tenured teachers and the school expected resumption of the employment relationship; and, legal liability would result from a refusal to perform, once the conditions, if any, were satisfied. We find the rationale of the Swetman case equally applicable to non-tenured as to tenured teachers; and, consequently, we find that the non-tenured teachers in the instant case are also ineligible for the unemployment benefits sought herein.

Moreover, we must keep in mind that: “Unemployment compensation is not paid primarily to reward the employee or to punish the employer, but rather to protect the stability of the state and the family,” by relieving the family distress and the menace to the public welfare occasioned through unemployment of the individual worker. LSA-R.S. 23:1471; Turner v. Brown, 134 So.2d 384 (La.App. 3 Cir. 1961).

Plainly and simply stated, teachers between academic terms or semesters are not unemployed. They are on vacation. It is unimaginable that a teacher between terms views himself or herself as out of a job; and, most assuredly the next-door neighbor or close friend does not feel that his neighbor-teacher or friend-teacher is counted among the unemployed-statistic. Indeed, the public policy of this state as manifested in the Louisiana Employment Security Law does not envision teachers between terms as unemployed. See LSA-R.S. 23:1471.

In addition, teachers between terms are not “available” for employment. The word “availability” has been described as entailing “a somewhat passive connotation,” in Smith v. Administrator, Division of Employment Security, 95 So.2d 349 (La.App. 2 Cir. 1957), where the court held that it was sufficient for the claimant to show “an active interest and effort in securing employment.” While university teachers, tenured or non-tenured, may be interested in employment in the summer school of the university some of the summers, it certainly can not be said they have “an active interest” in securing a job elsewhere, within the meaning of the Louisiana Employment Security Law.

For these reasons, the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.


author: BEER, Judge. LEMMON, Judge, BOUTALL, Judge, PER CURIAM.

text:
    James O. DAVIS and Roy Davis v. Steven MOORE and Aetna Casualty & Surety Co.
    No. 8611.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearings Denied Jan. 11, 1978.
    Writs Refused Feb. 17, 1978.
    Greenberg & Dallam, Nathan Greenberg, Gretna, for plaintiffs-appellants.
    Adams & Reese, Edward J. Rice, Jr., Wiedemann & Fransen, Perrin C. Butler, New Orleans, for defendants-appellees.
    Before LEMMON, BOUTALL and BEER, JJ.
   BEER, Judge.

Roy Davis suffered severe injuries requiring the surgical amputation of his left leg just below the knee as a result of a collision between his motorcycle and an automobile owned and operated by Steven Moore. The accident occurred at the intersection of the Westbank Expressway and Maplewood Drive on May 15,1972, at about 7:00 p. m. Davis was proceeding on the Westbank Expressway headed towards Westwego. Moore was attempting to cross the Westbank Expressway at Maplewood Drive heading towards the Mississippi River. The intersection was not controlled by a semaphore signal, but there were stop signs controlling traffic on Maplewood Drive. Moore had crossed the eastbound lanes of traffic on the Westbank Expressway and was stopped in the neutral ground area waiting to cross the westbound lanes. His view was obstructed by vehicles waiting in the turn lane to turn off of the Expressway onto Maplewood heading away from the river. Moore proceeded to cross the rest of the way although he was unable to see sufficiently to be sure that the way was entirely clear. The collision between the motorcycle and the automobile occurred in the righthand lane of the Expressway (closest to the river).

Moore alleged that someone in a truck with the name “Cavaretta” on it had motioned to him that it was clear or, at least, that he should proceed. As a result of this contention, Davis amended to join Cavaret-ta’s, Inc. and its insurer, U. S. F. & G., as additional defendants. The trial court granted a motion for summary judgment in favor of Cavaretta’s, Inc. and U. S. F. & G., and they were dismissed from the lawsuit.

This appeal is primarily based on the contention by Davis’ able counsel that the evidence presented to the jury regarding Moore’s financial inability to respond in judgment resulted in prejudicial sympathy of the jury which, in turn, caused them to conclude that contributory negligence on the part of Davis was demonstrated even though such a finding is not (counsel contends) supported by the evidence. He argues that the jury manifestly erred in finding Davis contributorily negligent; that the “inability to pay” rule is unconstitutional because it discriminates against plaintiffs injured by impecunious defendants, and, alternatively, that the rule was incorrectly applied in this case.

A jury verdict which is manifestly erroneous can be reversed. Monk v. Insurance Company of North America, 324 So.2d 880 (La.App.3rd Cir. 1975); Stoute v. Mobile Oil Corporation, 297 So.2d 276 (La.App.3rd Cir. 1974), writs denied, 300 So.2d 839; Deshotel v. Aetna Casualty & Surety Company, 269 So.2d 850 (La.App.3rd Cir, 1972), writs denied, 272 So.2d 374. If there is no showing of contributory negligence in this record and we, accordingly, determine that the jury was manifestly in error in reaching such a conclusion, then we must decide this case on those facts which the record does support. Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); Corceller v. Brooks, 347 So.2d 274 (La.App.4th Cir. 1977); Morgan v. Liberty Mutual Ins. Co., 323 So.2d 855 (La.App.4th Cir. 1975).

We are cognizant of the great weight that must be given to the jury verdict and, thus, firmly of the view that the benefit of any doubt must, perforce, be accorded that position which lets the verdict stand. With this uppermost in our minds, our primary inquiry has been directed to a consideration of this record from that standpoint. Specifically: Is there any basis — on this record — to support the jury’s conclusion that the defendants have carried their burden of proving, inferencially, circumstantially or directly, that Davis was contributorily negligent?

We must answer in the negative. The very worst that can be gleaned from this record is that Davis was quite young to be riding his older brother's motorcycle — but not below the legal age limit; that the motorcycle was large and powerful — but apparently in satisfactory working order and familiar to Davis; that he was moving at a fairly high speed but apparently within the speed limit; and that he was wearing glasses as well as a helmet with a face protector — quite proper under the circumstances.

Able counsel for Moore and his insurer, Aetna, has acknowledged in brief and argument that Davis was traveling within the speed limit and that Moore “looked to his right but could not see Mr. Davis due to the interference of the cars and truck.” Notwithstanding these acknowledgements, able counsel contends that the jury could reasonably conclude that:

“(1) The plaintiff was going too fast given the time of day (dusk);
(2) Plaintiff was too young and not experienced in the handling of such a large, powerful motorcycle;
(3) Plaintiff should have recognized that a vehicle might enter the Expressway from the intersection and then alert to that possibility but failed to do so; or
(4) Plaintiff simply did not have adequate control of the situation because of all of the above referred to propositions.”

However, there is no evidence in this record supportive of these contentions— none at all.

Accordingly, we are compelled to conclude that Davis was not contributorily negligent and is entitled to recover.

Turning, then, to a consideration of quantum, we first consider those contentions relative to the alleged unconstitutionality of the “inability to pay” rule and the contention that, at any event, it was incorrectly applied in this case.

In our view, these attacks are without merit. The “inability to pay” rule is a creature of jurisprudence dating back to 1898 in Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (1898). Ever since, it has been repeatedly espoused by courts of this state. See 22 Am.Jur.2d Damages §§ 319 and 320. As applied by Louisiana courts, the rule allows evidence of the ability of defendant to respond in damages to be considered in determining the amount of the judgment to be awarded. The theory behind the rule was stated by the court in Cole v. Sherrill, 7 So.2d 205 (La.App.2nd Cir. 1942), cert. denied:

“It has never been considered good policy to bankrupt one to pay another even though the award granted is not in line with other cases involving the same injuries and might not fully compensate the plaintiff for the injuries he received. Fair justice between both parties must be arrived at.”

When ability to pay is considered, plaintiff may only be compensated to the degree that it does not impose an undue hardship on the defendant. However, “(a)pplication of the [rule] should not be carried to extremes.” Smith v. Freeman, 31 So.2d 524, 526 (La.App.2nd Cir. 1947). As was so aptly stated in Laeaze v. Horton, 100 So.2d 252 (La.App.2nd Cir. 1958):

“It must be borne in mind that this principle is not intended to completely relieve a defendant of liability for reparation of damages inflicted by his own negligence, nor should it be considered as justifying the reduction of the allowance of damages to a bare minimum. Either of these alternatives, in our opinion, would be an extreme application of the principle and would result in effecting a gross injustice toward a plaintiff, under the guise of the application of a humane consideration for the plight of an impecunious defendant.” 100 So.2d at 255.

With this background, we believe that the charge given by the trial judge was proper. He instructed the jury as follows:

“In arriving at a reasonable amount of damages to be awarded to the plaintiff, you should take into consideration the ability of the defendant to pay the amount of the judgment. You have been advised of the applicable limits of the automobile insurance policy involved in this litigation and you have also been told about the defendants’ assets, liabilities, income and expenses. It is up to you to decide what a fair and just verdict would be.”

This is a fair statement of the rule most recently reiterated by an appellate court in Domingue v. Continental Ins. Co., 348 So.2d 209 (La.App.3rd Cir. 1977).

Accordingly, we conclude that the trial court’s method of handling the “inability to pay” issue was correct, and we will apply the rule in setting quantum of damages.

Reeder v. Allstate Insurance Co., 235 So.2d 111 (La.App.4th Cir. 1970), is fairly close, on its facts, to this case insofar as damages are concerned. Also close on the question of damages is Cole v. Lumbermens Mutual Casualty Company, 160 So.2d 785 (La.App.3rd Cir. 1964).

Taking everything into account, including defendant’s ability to pay and the fact that there is only $5,000 of insurance coverage available, we conclude that there should be judgment in plaintiff’s favor in the total amount of $40,000.00.

We find no error in the trial court’s granting of the motion for summary judgment releasing Cavaretta’s, Inc. and its insurer. Both Mr. and Mrs. Moore acknowledged that although someone may have motioned to them from the Cavaretta truck, neither of them placed any reliance on such motioning (if, indeed, it did take place). Thus, as a matter of law, no facts were presented or in dispute which could have formed the basis for judgment against Ca-varetta’s, Inc. or their insurer, and the summary judgment was properly granted.

For the foregoing reasons, the judgment of the 24th Judicial District Court is reversed, and it is now ordered, adjudged and decreed that there shall be judgment herein in favor of Roy Davis and against Aetna Casualty & Surety Company and Steven Moore, in solido, in the amount of $5,000.00, plus interest from the date of judicial demand and all taxable costs; and it is further ordered, adjudged and decreed that there shall be judgment herein in favor of Roy Davis and against Steven Moore in the amount of $35,000.00, plus interest from the date of judicial demand. Costs of this appeal are to be borne by Aetna Casualty & Surety Company.

REVERSED AND RENDERED.

LEMMON, J., concurs and assigns reasons.

BOUTALL, J., concurs and assigns reasons.

LEMMON, Judge,

concurring.

The question of a defendant’s ability to pay a judgment is completely irrelevant to the determination of the damages sustained by a plaintiff in a personal injury case.

Just as the plaintiff should not be allowed to present evidence to the jury concerning the defendant’s wealth, the defendant should not have been allowed to present evidence to the jury concerning his poverty. Neither the evidence of wealth or of poverty has any probative value in the determination of the amount of damages sustained by the plaintiff.

Therefore, I would give no consideration in making the award to any evidence of the defendant’s inability to' pay.

BOUTALL, Judge,

concurring.

I agree with the majority opinion. I question only the continued existence of the judicially imposed rule permitting evidence of inability of defendant to respond in damages to be considered in determining the amount of the judgment to be awarded. Damages in Louisiana are compensatory for the loss suffered and there is no legitimate reason to award damages based on the wealth of the tort feasor. The rule creates an extra issue in the case increasing litigation time and effort, and causes considerable confusion in its application when multiple defendants are sued. Why should the loss of this man’s leg be worth less because the defendant is not wealthier than he is?

ON APPLICATION FOR REHEARING AND/OR TO AMEND DECREE

PER CURIAM.

In their application for rehearing and/or to amend decree, James 0. Davis and Roy Davis call our attention to stipulations which provide that James 0. Davis, father of the then minor, Roy Davis, incurred medical expenses directly resulting from the serious injuries occasioned to Roy Davis totalling $17,584.16. This is borne out both by the original record’s reference to “Stipulation 1” as well as by the “Stipulation as to Medical Expenses” filed in this court. In view of our opinion regarding the liability aspects of this litigation and those stipulations, it is manifest that our decree must be amended.

Accordingly, the final paragraph of our opinion of December 13, 1977, is amended and recast as follows:

For the foregoing reasons, the judgment of the 24th Judicial District Court is reversed, and it is now ordered, adjudged and decreed that there shall be judgment herein in favor of Roy Davis and against Aetna Casualty & Surety Company and Steven Moore, in solido, in the amount of $2,500.00, plus interest from the date of judicial demand and all taxable costs; it is further ordered, adjudged and decreed that there shall be judgment herein in favor of James O. Davis and against Aetna Casualty & Surety Company and Steven Moore, in soli-do, in the amount of $2,500.00, plus interest from the date of judicial demand and all taxable costs; it is further ordered, adjudged and decreed that there shall be judgment herein in favor of Roy Davis and against Steven Moore in the amount of $37,500.00, plus interest from the date of judicial demand; and it is further ordered, adjudged and decreed that there shall be judgment herein in favor of James O. Davis and against Steven Moore in the amount of $15,084.16, plus interest from the date of judicial demand. All costs of this appeal are to be borne by Aetna Casualty & Surety Company.

In all other respects, the various applications for rehearing are denied.

JUDGMENT OF THIS COURT AMENDED AND RECAST; REHEARINGS DENIED.

      . Roy Davis was a minor at the time of this accident. Suit was filed in his behalf by his father, James O. Davis. He has since reached the age of majority and has been substituted as the plaintiff herein.

      . The problem with admitting evidence of a defendant’s ability to pay (or inability to pay) is, as is the problem with all irrelevant evidence, that the evidence may appear to prove something that it does not really prove. Such evidence reflects in no way whatsoever on the plaintiffs pain and suffering, his loss of wages, or his other compensable elements of damages.


author: WATSON, Judge.

text:
    Orville COON v. W. S. BLANEY, Jr., d/b/a W. S. Blaney, Jr. Construction Company.
    No. 6210.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 24, 1978.

      Wm. Henry Sanders, Jena, for plaintiff-appellant.
    Griffing & Scott, George F. Griffing, Jonesville, Stafford, Randow, O’Neal & Smith, Hodge O’Neal, III, Gist, Methvin & Trimble, David A. Hughes, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, WATSON and JOHNSON, JJ.
   WATSON, Judge.

This is a suit in tort brought by Orville Coon against defendant, W. S. Blaney, Jr., d/b/a W. S. Blaney, Jr. Construction Company, to recover for personal injuries sustained on August 31,1974. The matter was consolidated for trial and appeal, with our docket no. 6211, Orville Coon v. Viking Explorations, Inc., 353 So.2d 747, Coon’s workmen’s compensation suit against his employer, in which a separate opinion has been rendered this date.

The accident occurred when plaintiff fell from a steel ladder of steps affixed to a tank battery. Blaney sold and delivered the tank battery to Viking. Coon contends that Blaney was negligent in assembling and erecting the ladder, because it was not securely braced or safely anchored to the ground. Blaney filed a third party demand against Viking to recover any amount for which Blaney might be cast, claiming that the accident resulted from Viking’s fault in failing to properly maintain the ladder. Blaney has answered the appeal.

An exception of prescription has been previously overruled and the matter remanded for trial on the merits. Coon v. Blaney, 311 So.2d 622 (La.App. 3 Cir. 1975).

The trial court concluded, on the basis of ample evidence, that the ladder was unsafe, finding that either the ladder was not adequately braced or the ground underneath had washed away or both. Coon was found contributorily negligent for his failure to have the ladder repaired or stabilized or have another workman do it at Viking’s expense. Coon’s use of the ladder in its shaky condition was found to constitute fault on his part which was a cause of his fall.

The first issue on appeal is whether Coon’s fault or contributory negligence bars his tort claim. If not, the second issue is whether Blaney is responsible in damages for the defective condition of the ladder. If the defect is attributable to Viking, plaintiff Coon’s only recourse is workmen’s compensation.

FACTS

Plaintiff Coon, born in 1909, is unable to read and write and has done hard labor for some 40 years. At the time of the accident, he was working as a switcher at Viking’s Haley No. 1 Well in the West Catahoula field. He was first employed at this well in 1969, and the tank battery had been in place about two months prior to his employment. Coon’s job involved going up the ladder on the side of the tank to gauge the amount of oil in the tank and to pour chemicals in the tank to separate the water from the oil. Coon went up the ladder every day, although it was shaky. Coon said he had told Larry Litick of Viking about the defective condition two or three months before the accident. Litick had to give him telephone permission from Viking’s Fort Worth offices for any work done on the well. On some occasions, Li-tick’s secretary would authorize the work when Litick was not there. Coon sent a report to Viking once a month, which he signed but did not write and could not read. Coon fell when the bottom of the ladder slipped forward causing him to hit the iron steps and break his left kneecap. The bottom was resting on the ground. There was no base plate. Coon said there was only one brace when it was first put up; he did not think it was properly braced. He admitted that there had been several different contractors working on the well after Blaney.

After the accident occurred, Coon got Kay Lease Service to come out and brace the steps at the bottom but testified that he would have had to pay for it if he had had it fixed beforehand. Coon once ordered two drums of gas to wash down the tanks and sent the bill to Litick for payment by Viking. Viking deducted the charge from his check, on the ground that Coon had not been authorized to buy the gas..

Gerald Prewitt, a welder, testified that he was ordered by Kay Lease Service to go out and brace the catwalk and ladder on the tank. Prewitt found the stairs and catwalk shaky and rickety but not dangerous. He did not think it would have been possible for the bottom to kick out. Coon was present and told Prewitt about his accident but not how it happened. Prewitt testified that the tank battery assembly, including the ladder and catwalk, were factory built and appeared secondhand. He said they probably were, since these items are usually transported from one location to another. Prewitt’s opinion was that lack of proper maintenance caused the ladder and catwalk to shake, specifically failure to tighten up the braces and bolts. The nuts and the handrailing on the catwalk were loose.

Paul Montgomery testified as an expert in the field of petroleum engineering that the tank battery stairs were not properly constructed because there was no ground level support in the form of a base plate at the time of the accident. The pipe welded at the bottom after the accident improved their safety. It resulted in no sway on the stairs but about an inch of deflection or downward movement. Montgomery could not estimate what the sway or deflection was on the day of the accident prior to the installation of the base plate. When he examined the base after the accident it was buried in the ground about two inches. The equipment appeared old. According to Montgomery, the stairs could have kicked out at the bottom and caused Coon’s fall. Montgomery testified that the maintenance of the battery was average. There was some rust and he observed a couple of bolts missing at the top of the stairs, but did not feel that lack of maintenance contributed to the instability of the stairs.

William S. Blaney, Jr. testified that he sold the tank battery equipment July 16, 1969. He had purchased it from Siesta Oil Explorations Company and then sold it after Vernon Bottom had examined it and said it was suitable for the Omnibus lease where Coon was later employed by Viking. Blaney sold the equipment for $2600 and charged by the hour for hooking it up. He said he would have put a concrete pad under the steps if Coon had asked for it, since Coon was representing Omnibus while Blaney was doing the work and signed Bla-ney’s work tickets. Four of Blaney’s invoices to Omnibus Operating Company in October of 1969, signed by Orville Coon, are in evidence. Blaney’s last work on the site was in December of 1969. He did not construct the equipment but transferred it from the other well site to the accident site exactly as it was, leaving nothing. Blaney testified that the base plate had been cut off the stairs after he moved them and that the metal plate was attached to the base of the ladder when it was moved.

CONCLUSION

I. An employee, whose employment requires certain acts is not negligent in performing them despite knowledge of a hazard being involved. See O’Keefe v. Warner, 288 So.2d 911 (La.App. 1 Cir. 1974), writ denied La., 293 So.2d 170, where an employee suing in tort was held to be free of negligence because the duties of his job did not give him a safe alternative. Had Coon refused to climb the ladder, he might have suffered loss of his job. He could reasonably have feared this consequence. Coon was not contributorily negligent and did not assume the risk of the ladder’s unsafe condition. The trial court’s conclusion to the contrary is manifestly erroneous.

II. There was testimony that the condition of the ladder was the result of improper maintenance, and other testimony that the stairs or ladder were inherently unsafe in their construction. However, Blaney was not the manufacturer of the stairs or even the first vendor. Thus, strict liability for manufacture of a product unreasonably dangerous for normal use, as enunciated in Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971), is not applicable. Blaney is also not a “professional vendor”, as that term is used in Justice Barham’s concurring opinion denying a writ at 309 So.2d 343 (La., 1975) in Peltier v. Seabird Industries, Inc., 304 So.2d 695 (La.App. 3 Cir. 1975). See Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La., 1974), where Reliable Motors, Inc., a retailer in good faith, which sold a used truck, was held not liable for injuries caused by the later explosion of one of the truck’s wheels. According to Blaney, the tank battery assembly which he proposed to buy and sell was examined by Vernon Bottom on behalf of the buyer and approved for purchase. Bla-ney then did the hookup at the new site and was paid for this on an hourly basis. Bla-ney cannot be held responsible for apparent defects, known to the purchaser, even if they in fact existed at the time of sale (which is not free of doubt) and caused Coon’s injury some five years later. The evidence as a whole establishes that the accident resulted from the fault of Coon’s employer, either in buying secondhand and defective equipment, or in failing to have it repaired and maintained. Plaintiff Coon is therefore restricted to recovery in workmen’s compensation.

For the foregoing reasons, the judgment of the trial court herein dismissing plaintiff’s suit is affirmed. All costs are assessed against plaintiff-appellant, Orville Coon.

AFFIRMED.

DOMENGEAUX, J., concurs in the result.


text:
    Orville COON, Plaintiff-Appellant, v. VIKING EXPLORATIONS, INC., Defendant-Appellee.
    No. 6211.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Wm. Henry Sanders, Jena, for plaintiff-appellant.
    Griffing & Scott, George F. Griffing, Jonesville, Stafford, Randow, O’Neal & Smith, Hodge O’Neal, III, Gist, Methvin & Trimble, David A. Hughes, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, WATSON and JOHNSON, JJ.
   WATSON, Judge.

This suit was brought by Orville Coon against his employer, Viking Explorations, Inc., to recover workmen’s compensation benefits after an accident on August 31, 1974. The claim was compromised for $4,500. The workmen’s compensation suit was consolidated for trial and appeal with our docket no. 6210, Orville Coon v. W. S. Blaney, Jr., d/b/a W. S. Blaney, Jr. Construction Company, 353 So.2d 744, which is a tort action against third party Blaney, whose negligent construction allegedly caused plaintiff's accident. The workmen’s compensation claim is not at issue except for Viking’s third party demand against Blaney for recovery of the amount of the compensation settlement. Other defendants in the compensation suit are not involved in the appeal.

For the reasons assigned in docket no. 6210, Coon v. Blaney, 353 So.2d 744 (La.App. 3 Cir. 1977) the trial court judgment dismissing Viking’s third party demand against Blaney is affirmed at the cost of Viking.

AFFIRMED.


text:
    Peter Francis KELLY v. STATE of Mississippi.
    No. 49822.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Rehearing Denied Jan. 18, 1978.
    Carl H. Joffe, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., ROBERTSON and BOWLING, JJ., and W. W. BROWN, C.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.

SMITH, P. J., and SUGG, J., concur.

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


text:
    L. S. BROADUS v. Leah Lundy LOTT, Administratrix of Estate of Archie A. Lott.
    No. 49662.
    Supreme Court of Mississippi.
    Nov. 16, 1977.
    Rehearing Denied Jan. 18, 1978.
    Albert Sidney Johnston, Jr., Biloxi, for appellant.
    Roy B. Strickland, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

AFFIRMED.

INZER and SMITH, P. JJ., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: LEE, Justice,

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION and Larry W. McKnight v. Sandra Kaye LAYTON.
    No. 49735.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Rehearing Denied Jan. 18, 1978.

      Heidelberg, Woodliff & Franks, W. Swan Yerger, Glenn Gates Taylor, Jackson, for appellant.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

The Circuit Court of Simpson County entered judgment in favor of Sandra Kaye Layton against General Motors Acceptance Corporation (GMAC) and Larry W. McKnight, its agent, in the sum of twenty thousand dollars ($20,000) for personal injuries, and GMAC and McKnight appeal.

Appellants assign the following errors in the trial below:

(1) The verdict of the jury was against the overwhelming weight of evidence.

(2) The court erred in refusing to permit defendants to examine their own witness and refresh her memory once surprise was proved.

(3) The court erred in not requiring the best evidence of plaintiff’s drug bills.

(4) The court erred in permitting plaintiff’s physician to speculate about possible development of arthritis.

(5) The court erred in refusing to instruct the jury that plaintiff and her husband were on a joint adventure.

(6) The’ court erred in instructing the jury that as a matter of law the plaintiff was not guilty of any negligence.

(7) The court erred in its ruling on instructions concerning permanent disability, future pain and suffering and future medical expenses.

(8) The court erred in refusing to instruct the jury that it could infer that the testimony of plaintiff’s absent physician would have been adverse to plaintiff.

(9) The closing argument of plaintiff’s counsel appealed to the passion and prejudice of the jury.

(10) The verdict was so excessive as to evince bias and prejudice on the part of the jury.

I.

Was the verdict of the jury contrary to the overwhelming weight of the evidence?

The evidence for appellee indicates that on December 5, 1972, she was riding in an automobile driven by her husband in a westerly direction on Old Highway 49 from Mendenhall to Magee, and that it approached an automobile owned by GMAC and driven by its agent, Larry W. McKnight, in an easterly direction on said highway. When the Layton automobile was approximately thirty (30) feet from the GMAC vehicle, the latter suddenly turned north across the north lane of the highway toward a private drive and the Layton vehicle collided with it, the collision occurring in the westbound lane. Layton testified that he was driving at a speed of thirty (30) to thirty-five (35) miles per hour and that he did not see any left turn signal on the GMAC automobile. McKnight testified that he saw the Layton vehicle approaching approximately one hundred yards away, he gave a left turn signal, looked down at a collection sheet on the seat of the automobile, started across the north lane and then looked up and saw the Layton vehicle almost upon him.

In addition to other grounds of negligence, the declaration charged appellants failed (1) to maintain a proper lookout for other vehicles on the highway, (2) to keep said automobile in its proper lane of traffic, and (3) to yield the right-of-way to the Layton automobile. There was a serious conflict in the evidence introduced by the parties. Such conflicts are for the determination of the jury, and this assignment of error is without merit. Powers v. Mailey, 302 So.2d 262 (Miss.1974); Travelers Indemnity Co. v. Rawson, 222 So.2d 131 (Miss.1969).

II.

Did the court err in refusing to permit appellants to examine their own witness and refresh her memory after claiming surprise?

Margie Ellen Sullivan, who was driving her automobile on Highway 49 and was following McKnight on the occasion of the collision, was called as a witness by appellants. Prior to the trial, she told appellants’ attorney that the Layton automobile was traveling at a speed of seventy (70) miles per hour. When testifying, she stated that Layton was traveling “fast,” but that she could not estimate the vehicle’s speed. Appellants claimed surprise and requested permission of the court to examine the witness concerning her prior statements. In the absence of the jury, Mrs. Sullivan admitted that she had told appellants’ attorney the day before trial that Layton was traveling in excess of seventy miles per hour. The trial judge inquired of her whether she observed the Layton vehicle long enough to determine its speed, and she replied in the negative. The witness said that the seventy-mile-per-hour figure was a guess. Appellants contend that they merely sought to refresh her memory and not to impeach her. Dunk v. State, 84 Miss. 452, 36 So. 609 (1904). The trial judge determines the competency of a witness. Mrs. Sullivan’s testimony that she did not observe the Layton automobile long enough to give an opinion as to its speed and that such opinion would be a guess disqualified her to testify about rate of speed. The trial judge correctly excluded that testimony from the jury. 32 C.J.S. Evidence § 546(53), at 236-240 (1964).

III.

Did the court err in not requiring appel-lee to introduce drug bills rather than oral testimony?

Appellee introduced in evidence certain medical and hospital bills. She did not offer drug bills but on direct examination testified, over objection, that she spent ninety-seven dollars fifty cents ($97.50) for drugs.

Mississippi Code Annotated § 41-9-119 (1972) dispenses with the requirement of proving to be necessary and reasonable medical, hospital, and doctor bills, which were paid or incurred. That section does not reach the question presented here. The appellee testified that she knew the amount she had paid, that she had made a memorandum of the amount, that she had the bottles in which the drugs were placed, but that she did not have the bills nor did she have the memorandum. We are of the opinion that appellee could testify about the amount she spent for drugs. In addition, appellants cross-examined her as. to the amount of $97.50 she spent for drugs. They introduced in evidence questions and answers of appellee on interrogatories. Interrogatory Nó. 11 asked appellee to itemize all hospital, medical, drug and other bills incurred by her as a result of her injuries, and she so itemized same setting out drugs at that time in the amount of sixty-four dollars seventy-five cents ($64.75). Consequently, appellants cannot complain of her testimony at trial as to the amount of drug bills paid.

IY.

Did the court err in admitting testimony of appellee’s physician, Dr. Wade, about possible development of arthritis?

Dr. Frank Wade, an attending physician of appellee, was asked what effect plaintiff’s knee injury (a bruise on the knee) would have as to later development of arthritis, and he stated, over objection, that “They [persons with knee injuries] are more likely to develop arthritis in joints . it is not unusual for it to happen, but does not always happen.” On cross-examination, Dr. Wade stated that he found no evidence of arthritis in plaintiff’s knee. He did not testify or give an opinion that appellee would develop arthritis. The admission of Dr. Wade’s testimony (an expert witness) was within the sound discretion of the trial judge. Providence Washington Ins. Co. v. Weaver, 242 Miss. 141, 133 So.2d 635 (1961).

V.-VI.

Did the court err in refusing to instruct the jury that appellee and her husband were on a joint adventure?

Did the court err in instructing the jury that appellee was not guilty of negligence as a matter of law?

Appellee and her husband were on their way to the Simpson County Courthouse to obtain a tag for Mr. Layton’s vehicle. There was no business enterprise for profit involved, nor did appellee have any control or right of control over the vehicle. As a matter of law, there was no joint adventure. Sample v. Romine, 193 Miss. 706, 8 So.2d 257 (1942).

Appellants contend that there was a duty upon appellee to remonstrate or warn her husband against the manner in which he was driving the vehicle and that her failure to do so constitutes negligence on her part which required reduction of damages. They rely upon the principle stated in Chapman v. Powers, 150 Miss. 687, 116 So. 609 (1928), and McLaurin v. McLaurin Furniture Company, 166 Miss. 180, 146 So. 877 (1933). Appellee testified that her husband was driving the vehicle thirty to thirty-five miles per hour, that she was reading a letter and that she was not aware of any negligent operation of the vehicle by him. Therefore, she could not object to the manner in which her husband was driving the vehicle, and there was no duty upon her to do so. Sternberg Dredging Co. v. Screws, 175 Miss. 383, 166 So. 754 (1936). The court correctly refused the instruction on joint adventure and correctly granted the instruction that appellee was not guilty of negligence as a matter of law.

VII.

Did the court err in granting instructions on permanent disability, future pain and suffering and future medical expenses, and in refusing appellants’ requested instruction that they were not elements of damage to be considered by the jury?

The court refused Instruction D-5, requested by appellants, which would have instructed the jury that it could not render a verdict for appellee based on permanent disability since there was no evidence that appellee suffered permanent disability, and it granted an instruction for appellee that she could recover for future pain and suffering and future medical expenses.

The evidence is undisputed that appellee sustained a permanent scar on her face and head, that she was still taking medication, in fact, took medicine on the day of the trial, that on that day she was having pain and headaches, that she could not stand for any length of time, and could not do her household duties and other things as before the accident. There was evidence to support the instruction granted appellee, it was properly given, and the appellants’ Instruction D-5 was properly refused.

VIII.

Did the court err in refusing to instruct the jury that the testimony of Dr. Frank Wade in connection with a visit on February 24, 1975 would have been adverse to appellee?

Appellee took the deposition of her principal physician, Dr. Wade, on December 5, 1975. During the course of her treatment, she was examined by Dr. George Truitt, orthopedist, and Dr. Wayne Cockrell, an associate of Dr. Wade, in the latter’s presence. Neither of those physicians were called as witnesses by the plaintiff and, at the request of appellants, the court instructed the jury it was justified in finding that the testimony of such doctors would have been unfavorable to appellee. Reid v. Middleton, 241 Miss. 324, 130 So.2d 554 (1961); Gulf Refining Company v. Myrick, 220 Miss. 429, 71 So.2d 217 (1954).

Mr. Layton simply stated that his wife saw Dr. Wade on February 24, 1975, and appellee said that she had seen Dr. Wade two weeks before (February 24). No attempt was made by either witness to indicate the condition of appellee on that date or what the purpose of the visit to Dr. Wade was. It was not error for the court to refuse the requested instruction that the jury should consider Dr. Wade’s testimony unfavorable to appellee as to her condition on February 24, 1975.

IX.

Did the closing argument of appel-lee’s attorney appeal to the passion and prejudice of the jury?

In his closing argument, counsel for ap-pellee stated: “But now they [GMAC] don’t want to pay this lady. They were going after their money. And now they don’t want to pay Mrs. Layton.” (McKnight was turning off to collect a past-due account). Appellants contend that the comment was prejudicial because it indicated GMAC was a large corporation that forced its debtors to pay their bills, but refused to satisfy its own legal and moral obligations.. Objection was made to the argument which was overruled. The statements made by counsel for appellee do not reach the extent of the remarks held prejudicial in Shell Oil Company v. Pou, 204 So.2d 155 (Miss.1967), Mississippi Power Company v. Stribling, 191 Miss. 832, 3 So.2d 807 (1941), and Brush v. Laurendine, 168 Miss. 7, 150 So. 818 (1933). The trial judge has wide discretion in controlling the remarks and argument of attorneys, and we are of the opinion that he did not abuse his discretion in this case.

X.

Was the verdict of the jury so excessive as to evince bias, passion and prejudice?

The rule is settled that a jury verdict will not be disturbed unless it is so large as to evince bias, passion and prejudice on the part of the jury. Farmer v. Smith, 207 So.2d 352 (Miss.1968); Peerless Supply Co., Inc. v. Jeter, 218 Miss. 61, 65 So.2d 240 (1953); J. C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779 (1935). See also Harkins v. Paschall, 348 So.2d 1019 (Miss.1977); Morton Broiler Farms, Inc. v. Morgan, 191 So.2d 137 (Miss.1966).

The evidence indicates that appel-lee sustained injuries to her chest, leg, back, knees and head, and that she had suffered considerable pain. The inference was that she would continue to suffer in the future. She was nervous and irritable, had headaches, had difficulty in sleeping and walking, was unable to squat or stand for any length of time, and to perform household chores as she could prior to the accident. She sustained permanent facial scars as a result of lacerations, was confined in the hospital for eight (8) days and incurred medical expenses aggregating eight hundred thirteen dollars sixty cents ($813.60). The question of damages is within the province of the jury, and we are unable to say that the verdict here was so large as to indicate bias, passion and prejudice on the part of the jury.

For the reasons stated, the judgment is affirmed.

AFFIRMED.

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


text:
    Lewis A. ROSENBAUM v. PEOPLES BANK OF MISSISSIPPI, NA.
    No. 49772.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Rehearing Denied Jan. 18, 1978.
    Corey & Corey, Lyle Y. Corey, Meridian, for appellant.
    Williams, Gunn & Crenshaw, Dal M. Crenshaw, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

AFFIRMED.


text:
    Raymond W. GORDON, II v. John C. WATKINS, Warden, Mississippi State Penitentiary.
    No. 50373.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Rehearing Denied Jan. 18, 1978.
    Raymond W. Gordon, II, pro se.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.

BOWLING, J., took no part.


author: BROOM, Justice,

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Marvin WALLER et ux.
    No. 49832.
    Supreme Court of Mississippi.
    Dec. 14, 1977.

      Oscar P. Mackey, Blair & Mackey, Oxford, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Grady F. Tollison, Jr., Robert C. Khayat, Oxford & Clarksdale, for appellees.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Eminent domain proceedings instituted by the appellant, Mississippi State Highway Commission (Commission herein) condemning certain land of Marvin Waller and wife, Mrs. Mary Waller (landowners, appellees) went to judgment in a special court in Lafayette County. The jury (as instructed) returned two verdicts: one for $36,700 damages related to the land taking, and another for $15,000 representing relocation assistance pertaining to appellees’ anticipated expense to acquire another dwelling house. Upon the motion of the landowners (appellees) below, the trial judge entered an additur of $10,000 to the award of damages (land taking) and the Commission appeals.

The threshold question is: Under the “Relocation Assistance Law” [Miss. Code Ann. § 43-39-1, et seq. (Supp.1977)], is it proper in an eminent domain trial for land condemnation to allow introduction of evidence pertaining to housing replacement cost for landowners displaced from their dwelling?

16.22 acres of appellees’ land were taken by the Commission in order to enlarge Mississippi Highway 6 from two lanes to four lanes between Batesville and Oxford. Traversed by the highway, lands of appellees are approximately one hundred seventy-five acres. The taken land measures approximately 170 feet in depth and about 3900 feet in length along the south side of the present Highway 6 right-of-way. On their property the appellees conducted a farming operation, and their dwelling house is situated on the condemned strip. Prior to filing its eminent domain action, the Commission offered appellees a sum of money for the condemned property (amount not clear in record) and, as a condition of the package offer, $14,475 was offered appellees for replacement housing under the Relocation Assistance Law as set forth in Mississippi Code Annotated § 43-39-1, et seq. (Supp.1977) [formerly §§ 2749-71 to 2749-35 Code of 1942], After the appellees refused the package offer and agreed to accept only part of the package: $14,475 for replacement housing, the Commission withdrew its entire offer and filed its eminent domain application.

As is usually the case, there was a wide range from the lowest to the highest damages arrived at by the witnesses who testified for the Commission and landowners. This testimony is summarized as follows:

For the Commission: Before taking: After taking: Damages

Bobby L. Cloud $ 97,300.00 [$ 68,850.00] $28,450.00

Mike M. McGee 182,555.00 [ 145,840.00] 36,715.00

For the Landowners:

Marvin Waller (Condemnee) 200,000.00 110,000.00 90,000.00

Toxey T. Fortinberry 218,800.00 148,000.00 70,800.00

Cecil L. Mitchell 120,483.17 [ 50,222.99] 70,260.18

The figures in brackets were not specifically set out in the witnesses’ testimony, but were calculated by subtracting the damages from the before taking values, which were specified by the witnesses.

IS RELOCATION ASSISTANCE (HOUSING REPLACEMENT COST) A PROPER ELEMENT OF DAMAGES TO GO TO THE JURY IN AN EMINENT DOMAIN ACTION? Relocation assistance as provided for in Mississippi Code Annotated § 43-39-1, et seq., was adopted in 1972 to comply with the Uniform Relocation Assistance in Real Property Acquisition Policies Act of 1970, adopted by Congress, which Act was applicable to direct federal and federally aided highway programs. This Act attempted to set out fair and equitable treatment of those displaced by acquisition of private property for federally funded projects. Relocation assistance takes many forms, including moving expenses for the dislocated person, his family, business, farm operation, his personal property, replacement housing for a home owner displaced from his dwelling, replacement housing for tenants, relocation assistance and advisory services.

Specifically, we are concerned here with that portion of the Relocation Assistance Act which provides in Mississippi Code Annotated § 43-39-9(1) (Supp.1977) [formerly § 2749-74, Code of 1942] for payment of a sum of money to “any displaced person who is displaced from a dwelling actually owned and occupied by the displaced person for not less than one hundred eighty (180) days prior to the initiation of negotiations for the acquisition of the property.” The language of the statute makes the payment mandatory: “Such agency shall make . payment” (Emphasis added).

Sub-section (l)(a) of § 43-39-9 sets forth in general terms how this housing replacement payment is to be computed. Exact procedures to be followed by the Highway Commission in dealing with relocation assistance should be contained in regulations required by Mississippi Code Annotated § 43-39-17 (1972). Although these regulations are not a part of the record, they are clearly referred to in the statute. Relocation assistance must be paid displaced persons, but clearly the amount is determined by a proceeding not part of the eminent domain trial for the land taken. Of course, the landowner aggrieved by the amount offered as such assistance may, under Mississippi Code Annotated § 43-39-17(l)(c) (Supp.1977), seek review by the appropriate administrative agency. Mississippi Code Annotated § 43-39-25 (1972) provides for judicial review for the landowner “aggrieved by a final administration determination . .” In the present case there is no issue as to the appellees’ eligibility for relocation assistance, and that point is not here argued. Made clear in the record is another fact as testified to by witness Dye (official of the Commission): No final offer has been made the landowners for relocation assistance. After such an offer is made (witness Dye stated in the record that it will be made), it may be accepted or appealed from by the landowners.

Whether relocation assistance is properly an element of damages in an eminent domain action is controlled by the final Code section of the “Relocation Assistance Law” in our Code.

§ 43-39-27 states:

Nothing contained in this chapter shall be construed as creating in any condemnation proceedings brought under the power of eminent domain any element of value or damages not in existence immediately prior to July 1, 1972, but such payments shall be considered only as additives to due compensation otherwise provided by law. (Emphasis added.)

The plain wording of this statute appears to preclude the inclusion of any form of relocation assistance as an element of damages in an eminent domain proceeding unless such was an element of value or damages in such proceedings prior to the date this chapter became law (July 1, 1972).

Mississippi State Highway Comm’n v. Rives, 271 So.2d 725 (Miss.1972), so interpreted § 43-39-27. In Rives the question was whether or not evidence of relocation cost of personal property (compensable under the Relocation Assistance Act) was properly admissible in eminent domain proceedings. The Rives decision discussed Mississippi State Highway Comm’n v. McArn, 246 So.2d 512 (Miss.1971), which held that the expense incurred by a landowner in removing personal property was a consequence of the taking and an element of the damage. Citing § 8023.5-08 [now § 43-39-27], we held in Rives that inasmuch as such evidence was an element of damage in an eminent domain proceeding prior to the passage of the Relocation Assistance Law, it was clearly an exception to the exclusionary portion of § 8023.5-08 and admissible in evidence. Rives further stated:

We here hold that the legislative intent as expressed in said Act, supra, when considered in its entirety, was that the Act would provide compensation for items not previously provable or recoverable as damages in an eminent domain proceeding. (271 So.2d at 728).

The question now becomes: Was the Wallers’ cost of obtaining replacement housing a recognized element of damages in eminent domain proceedings prior to the effective date of the Relocation Assistance Law (July 1, 1972)? This Court has never held that such cost is an element of damages in eminent domain cases. Therefore, under § 43-39-27 the lower court’s allowing the jury to receive evidence pertaining to the cost of obtaining new housing for the appellees was error. Likewise, it was error to permit appellees to amend their statement of values so as to include a claim for such cost. We now hold that in cases like the one presented here, where the condemn- or and condemnee cannot agree upon replacement housing damages under “the Relocation Assistance Law,” such issue is an administrative matter (subject to judicial review) and shall in no wise be an issue in an eminent domain trial for the taking of land. Therefore, we reverse as to the $15,-000 judgment for relocation expense which is vacated and cancelled.

DID THE TRIAL JUDGE ERR IN GRANTING A NEW TRIAL OR, IN THE ALTERNATIVE, AN ADDITUR OF $10,-000 TO THE AMOUNT AWARDED AS COMPENSATION FOR THE TAKING OF APPELLEES’ LAND? The appellant argues that the additur was unreasonable and that it was erroneously entered.

By granting the additur, the lower court in effect offered the appellant the option of paying $46,700 for the taking of appellees’ land, or trying the case again. We note that the figure of $46,700 is well below the highest estimates of just compensation as testified to by witnesses who appeared for the appellees. The rule which we follow in deciding whether the trial judge erred in ordering an additur or new trial is stated in the recent case of Dorris v. Carr, 330 So.2d 872 (Miss.1976). There we held that “the focus is upon the trial judge’s action and not upon the jury’s action.” As stated in Dorris, we cannot reverse the trial judge in ordering an additur or new trial unless “it is manifest that the trial judge abused his discretion.” In view of the testimony referred to, it cannot be said here that the trial judge manifestly abused his discretion in ordering the additur or new trial.

Upon the peculiar facts of this record, we now hold that it was error for the trial court to allow the jury to consider the cost of obtaining new housing. Therefore, the jury’s verdict, and judgment which awarded appellees $15,000 for relocation housing assistance, is stricken and set aside. If the appellant accepts the $10,000 additur within fifteen days after this judgment becomes final, the case will be affirmed as to the $46,700 representing damages to the appel-lees for the taking of their land and judgment will be entered here for that amount. Should appellant not accept the additur, the case will be remanded for a new trial consistent with this opinion.

We reverse only as to the verdict and judgment appealed from awarding appel-lees $15,000 as relocation assistance without prejudice to the right of the landowners to pursue their administrative remedy as to that aspect of the case. As to said relocation assistance, at oral argument the Commission specifically conceded that the landowners have not waived any of their rights.

REVERSED IN PART AND AFFIRMED IN PART.

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


author: WALKER, Justice,

text:
    Edna M. BULLOCK and R. D. Bullock v. Leon FAIRBURN.
    No. 49778.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Rehearing Denied Jan. 18, 1978.

      Allen & Allen, Robert O. Allen, Donald B. Patterson, Brookhaven, for appellants.
    Joseph M. Stinson, Tylertown, for appel-lee.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   WALKER, Justice,

for the Court:

This appeal is from a jury verdict in favor of the defendant Fairburn in the Circuit Court of Walthall County, Mississippi. Appellants, Edna and R. D. Bullock, plaintiffs below, sought compensation for damages from Fairburn arising out of a collision between the pickup truck in which they were riding and a cattle trailer which had uncoupled from a pickup truck driven by Fairburn. The trailer was hitched to the truck by means of a pin inserted through the yoke of the trailer and a metal plate which was welded to the truck. A wire was attached to the flared top of the pin and then wrapped around the yoke in order to hold the pin in place. There was nothing securing the bottom of the coupling pin. It is undisputed, and, in fact, admitted by Fairburn that there were no safety chains connecting the trailer to the truck. It is also uncontradicted that the Bullocks were, at all times, on. their proper side of the road.

The Bullocks, who were severely and permanently disabled and who incurred medical expenses of $14,106.00, charged in their declaration that Fairburn was guilty of violating Mississippi Code Annotated section 63-5-25 (1972), which provides, in part:

Every trailer which shall be towed on the public highways at a speed in excess of twenty miles per hour shall be coupled to the towing vehicle by means of a safety chain, chains, cables, or equivalent devices in addition to the regular trailer hitch or coupling. This requirement does not apply to a semitrailer having a connecting device composed of a fifth wheel and kingpin assembly meeting the requirements of the Interstate Commerce Commission, nor to a pole, pipe, casing, long or piling dolly. No more slack shall be left in any such safety chains, cables or equivalent devices than shall be necessary to permit proper turning. The safety chains, cables or equivalent device shall be so connected to the towed and towing vehicles and to the drawbar to prevent the drawbar from dropping to the ground if the drawbar fails, and shall be of sufficient strength to control the trailer in event of failure of the regular trailer hitch or coupling. (Emphasis added).

Fairburn admitted that immediately prior to the uncoupling of the trailer, he was traveling between 20 and 25 miles per hour, but slowed to between 15 and 20 miles per hour to cross some railroad tracks. From all of the evidence it is apparent that the uncoupling occurred either as Fairburn was crossing the tracks or immediately thereafter.

Appellants testified that they were approaching the tracks from the opposite direction and after rounding a slight curve in the road were suddenly confronted with the trailer proceeding toward them in their lane of traffic. R. D. Bullock testified that this confrontation took place so abruptly that he did not have time to put on his brakes. He also testified that the speed of his truck was 30 or 35 miles per hour. Fairburn estimated the speed of the Bullock vehicle at 50 to 60 miles per hour. There was nothing in the record to indicate what the speed limit was on this stretch of road.

At the conclusion of all of the evidence, appellants moved for a directed verdict and requested a peremptory instruction as to the liability of Fairburn based upon his violation of the above quoted statute. The trial court’s reasoning in overruling the motion and consequently refusing the instruction was that the statute did not apply if the defendant was traveling less than 20 miles per hour when the trailer uncoupled. It was the opinion of the trial court that the jury had to determine that Fairburn was going faster than 20 miles per hour when the trailer uncoupled before it could be said that he violated the statute by failing to use safety chains.

Mississippi Code Annotated section 63-5-25 (1972) was construed in U-Haul Company v. White, 232 So.2d 705 (Miss.1970), where this Court held that it is “ . remedial in nature and should be liberally construed. It is a safety measure enacted for the benefit and protection of pedestrians, bystanders, motorists and other individuals who reasonably might be expected to be affected by a violation of the statute.” (232 So.2d at 708). The Bullocks, without question, come within the protection of the statute.

The question before us now is to determine what the Legislature meant by the language which appears in the first two lines of the statute, to-wit: “Every trailer which shall be towed on the public highways at a speed in excess of twenty miles per hour . ¡ . .” It is readily apparent that it was the intent of the Legislature to protect the public from damage and injury resulting from runaway trailers that have separated from the towing vehicle. It is also apparent that the Legislature intended to exempt, among others, trailers that would not be towed at speeds in excess of 20 miles per hour.

The primary question then, is whether the statute applies to a trailer which is towed at speeds in excess of 20 miles per hour on a given trip, but during the course of such towing there is a momentary reduction in speed to less than 20 miles per hour at which time the trailer becomes uncoupled. Does such reduction of speed take the trailer outside the statute? We think not. Such a strained construction is unnecessary if the statute is to be liberally construed and unrealistic if it is for the benefit and protection of pedestrians, bystanders, motorists and other individuals who reasonably might be expected to be affected by a violation of the statute as was stated in U-Haul, supra.

In Thornhill v. Ford, 213 Miss. 49, 56 So.2d 23 (1952), the Court stated:

“In construing a statute to give effect to the intent or purpose of the legislature, the object of the statute must be kept in mind, and such construction placed upon it as will, if possible, effect its purpose, and render it valid, even though it be somewhat indefinite. To this end it should be given a reasonable or liberal construction, and if susceptible of more than one construction, it must be given that which will best effect its purpose, rather than one which would defeat it, even though such construction is not within the literal interpretation of the statute, and even though both are equally reasonable. Where there is no valid reason for one of two constructions, the one for which there is no reason should not be adopted.” 59 C.J. 961. (213 Miss. at 65, 56 So.2d at 30).

In applying the rule stated in Thornhill, we must give Mississippi Code Annotated section 63-5-25 (1972), a construction which wilj best effect its purpose of protection as stated heretofore.

We therefore hold that section 63-5-25 is applicable to a trailer that is coupled with a vehicle being towed in excess of 20 miles per hour even though the vehicle and trailer are temporarily slowed to less than 20 miles per hour, at which time the trailer becomes uncoupled. Such construction will give full effect to the purpose of the statute as well as the limitation contemplated by the Legislature. Under this construction, if a trailer, on any given trip, is not towed in excess of 20 miles per hour, the statute would not apply.

The next question is whether Fairburn’s failure to have safety devices, as required by statute, was a proximate contributing cause of the collision as a matter of law. It is the contention of Fairburn that the evidence raises the possibility of negligence on the part of R. D. Bullock, the driver of the pickup truck, of such magnitude as to be the sole proximate cause of the collision and therefore bar recovery by appellants.

However, assuming for the purpose of argument only, that R. D. Bullock was negligent to some degree, his negligence, if any, could not, under the facts presented by this record, have been the sole proximate cause of the collision of the Bullock truck and the trailer which was running out of control on the wrong side of the road.

In Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 732 (1935), the automobile in which plaintiff-appellant was riding ran into the rear end of a truck owned by the defendant-appellee. The appellant contended that the collision was due to the appellee’s failure to have a rear red light on his truck as required by statute. The trial court directed a verdict for the defendant and on appeal they argued that the sole proximate cause of the collision was the negligence of the driver of the appellant’s automobile rather than any negligence of its own driver. In reversing the decision of the trial court, the Supreme Court stated as follows:

If the truck was being driven without such a light, the jury would be warranted in finding that the negligence in so doing was a legal and proximate cause of the collision, unless the appellee is correct in saying that the appellants’ driver was guilty of such negligence as superseded the negligence of the appellee’s driver, and became the sole legal and proximate cause of the collision. We will assume, but merely for the purpose of the argument, that the appellants’ driver approached the truck without observing pertinent “laws of the road” in so doing. Nevertheless, such negligence did not supersede the prior negligence of the appel-lee’s driver. First, it does not appear from the evidence that this negligence of the appellants’ driver, assuming that such there was, was of such character that the collision would have resulted therefrom even if the truck had been equipped with a rear red light. Second, where an act of negligence is a substantial factor in bringing about any injury, it does not cease to be a legal and proximate cause thereof because of the intervention of a subsequent act of negligence of another which contributed to the injury, if the prior act of negligence is still operating, and the injury inflicted is not different in kind from that which would have resulted from the prior act. 2 Restatement, Torts §§ 440-442, 447; Cumberland Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192. Other cases could be cited to the same effect. Cf. Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850, recently decided, but not yet reported [in State Report].
One of the purposes of the statute requiring an automobile to be equipped with a rear red light is to prevent collisions of the character here, and the driver of an automobile violating this statute should realize the probability that one driving another automobile would approach him from the rear without himself observing the requirements of the “law of the road.” In such a case, if the former’s negligence contributed to a collision of the automobiles, he is liable to the other, under our concurrent negligence statute, section 511, Code of 1930, for his proportion of the damages sustained by such other. (172 Miss. at 392-93, 160 So. at 733-34).

The instant case is indistinguishable from Solomon with regard to both factors cited by the Court as the basis for its ruling. First, it appears from the evidence that the negligence of R. D. Bullock, assuming that there was such, was not of such a character that the collision would have resulted therefrom if the trailer had been attached to the truck by chains as required by statute. Second, it is clear that appel-lee’s negligence in not having chains was substantial — if chains had been attached as required, the trailer would not have crossed into the Bullocks’ lane of traffic. That negligence was operative at the time of the collision and the injuries inflicted were not different in kind from what which would have resulted from the lack of chains alone. See Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472 (1957) and Holmes v. T. M. Strider & Co., 186 Miss. 380, 189 So. 518 (1939).

The defendant did not plead or request an instruction on comparative negligence.

For the above stated reasons, the case is reversed and remanded to the lower court for retrial on the question of damages only.

REVERSED AND REMANDED ON THE QUESTION OF DAMAGES ONLY.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, BROOM, LEE and BOWLING, JJ., concur.

PATTERSON, C. J., took no part.

      . A motion for a directed verdict is properly made by defendant at the conclusion of plaintiffs evidence. A request for a peremptory instruction is properly made by plaintiff or defendant at the conclusion of both plaintiffs and defendant’s case. Paymaster Oil Mill v. Mitchell, 319 So.2d 652 (Miss.1975).


author: ROBERTSON, Justice

text:
    Robert A. NELSON v. HOME INSURANCE COMPANY.
    No. 49748.
    Supreme Court of Mississippi.
    Dec. 14, 1977.

      Fred A. Ross, Jr., Jackson, for appellant.
    Watkins & Eager, James L. Carroll, Michael W. Ulmer, Thomas M. Murphree, Jr., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and SUOG, JJ.
   ROBERTSON, Justice

for the Court.

Robert Nelson brought suit on a contract of insurance against the Home Insurance Company in the County Court of the First Judicial District of Hinds County, Mississippi, to recover the value of two guns allegedly stolen from him.

After Nelson rested, Home moved for a directed verdict, which motion was sustained by the county court. The court based its decision on Nelson’s failure to prove the actual value of the two guns at the time of the theft. Before the court ruled on the motion, Nelson moved to reopen for the purpose of proving the actual value of the two guns stolen.

The county court overruled plaintiff’s motion to reopen. Nelson appealed to the circuit court, which affirmed the judgment of the county court.

Nelson appeals, assigning as error:

(1) The trial court erred in denying the Appellant’s motion to reopen for the limited purpose of establishing the value of the chattels in question as of the date of their theft.
(2) The trial court erred in sustaining the Appellee’s motion for a directed verdict.

Accompanied by Frank Schlosser Jr. and Paschal Townsend, Nelson flew to Chicago on March 21, 1975, on a business-pleasure trip. He rented a two-door Ford Granada. On March 23rd, after participating in' a gun-shooting contest and eating supper thereafter, the three of them returned to their motel room about 11:00 p.m. The testimony of Nelson, Schlosser and Townsend was that the two doors of the car were locked. Nelson left his two-gun case containing a Winchester Model 21, Custom Grade, Double Barrel Shotgun, and an Aproxy (Perazzi) MX8 over-under Trap Gun, made in Italy, on the floorboard of the car between the front and back seats.

About 8:30 the next morning, when they went out to the car, Schlosser noticed that the right door was unlocked and the guns were missing. While the right door was unlocked the left door was still locked.

The police were called and one policeman came out to investigate. The investigating officer commented that he could find no evidence of forcible entry.

The only evidence of forcible entry discovered by Nelson, Schlosser and Townsend was a scratch on the rubber trim around the window of the door. One witness testified that this scratch was on the trim around the left door, another that it was on the trim around the right door.

When Nelson returned to Jackson, he notified Home Insurance Company of his loss. Home denied liability because the police report listed no visible evidence of forcible entry as required by the following provision of the insurance policy:

“3. THIS POLICY DOES NOT INSURE AGAINST:

(d) Loss or damage caused by theft or pilferage of the insured property while left unattended in or on any automobile unless such automobile is equipped with a fully enclosed body or compartment, and the loss be a direct result of violence or forcible entry (of which there shall be visible evidence) from a fully enclosed body, the doors and windows of which shall have been securely locked, or from a compartment which shall have been securely locked;” [Emphasis added].

At the trial on March 16, 1976, Nelson testified that he had paid $2600 for the Winchester Model 21, but that the list price today was around $3750. He testified that he paid $1400 for the Italian gun, but that the replacement cost today was $1995.

As to value of the property lost or stolen, the policy provided:

“4. Valuation. The Company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs and the loss or damage shall be ascertained or estimated according to such actual cash value with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost to repair or replace the same with material of like kind and quality.” [Emphasis added].

There was no testimony as to “the actual cash value” of these two guns “at the time” they were stolen.

Home’s motion for a directed verdict was based on these two grounds:

(1) That there was no visible evidence of forcible or violent entry, and

(2) That there was no evidence of the actual cash value of the guns at the time of the loss.

The court, in ruling on the motion for a directed verdict, stated that he was not concerned with the lack of evidence of forcible entry because “they [thieves] are so professional they can just barely touch an automobile and get in it”. We are inclined to agree with this observation of the lower court.

The court further commented: “My only concern right now is whether or not counsel may reopen”. The court then overruled plaintiffs motion to reopen for the limited purpose of establishing the value of the guns at the time of the theft and sustained the motion for a directed verdict on the ground that the actual cash value at the time of the loss had not been proved.

We think the county court was in error in overruling the plaintiffs motion to reopen his case for the limited purpose of proving the actual cash value of the guns at the time of the theft.

In Marshall v. Oliver Electric Manufacturing Company, 235 So.2d 244 (Miss.1970), this Court said:

“As a general rule, even in formal hearings in a regular trial court, the reopening of a case for the purpose of showing facts vital to the issue involved, is liberally allowed by the trial judge and a failure to do so may be considered an abuse of judicial discretion. [Emphasis added].
“In the case of Moreland v. Newberger Cotton Co., 94 Miss. 572, 48 So. 187, this Court said: ‘In this state of the record we are forced to conclude that the learned judge should have permitted plaintiff, even after argument, to reopen his case and prove, if he could, the non-existence of the custom as to payment, upon the existence of which defendant’s whole case rested. The peremptory instruction can be justified only upon the idea that there was no conflict in the testimony, and the plaintiff ought to have been permitted, we think, though the application was out of time, to go before the court and jury upon all the facts of his case. The right of the cause demanded it in this particular case, and we think that the discretion of the court in this particular was not properly exercised.’
“In the case of F. W. Woolworth Company v. Freeman, 193 Miss. 838, 11 So.2d 447, this Court said: ‘One other contention of the appellant is that the court below erred in permitting the appellee to testify further after she had rested her case and after a motion to exclude her evidence had been made. No error here appears; on the contrary, the court below would have abused its discretion had it not permitted the introduction of this evidence.’
“The right to reopen proceedings for the purpose of introducing testimony inadvertently omitted has been liberally allowed, even in criminal trials on formal hearing. See Lee v. State, 201 Miss. 423, 29 So.2d 211, 30 So.2d 74; Summerville v. State, 207 Miss. 54, 41 So.2d 377.” 235 So.2d at 246.

We are of the opinion that the county court should have allowed the plaintiff to reopen his case to prove the actual cash value of the two guns at the time of the loss.

The judgment of the circuit court, affirming the judgment of the county court, is, therefore, reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

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


text:
    Josie Mae ALLEN et al. v. Annie Lee SAFFOLD.
    No. 49855.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Beach, Beach & Luckett, Stephen L. Beach, Jackson, for appellant.
    Edwin T. Neilson, Jr., Lexington, for ap-pellee.
   Appeal from Chancery Court, Holmes County; E. G. Cortright, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ., and HOWARD R. PIG-FORD, Commissioner.

Affirmed.


text:
    John B. GIBSON, Jr. v. STATE of Mississippi.
    No. 50270.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    King & Arnold, James H. Arnold, Jr., Durant, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and ROBERTSON and WALKER, JJ.

AFFIRMED.