author: ROBERTSON, Justice:

text:
    HANCOCK BANK et al. v. Ira GADDY, Jr., et al., Incorporators of Proposed First State Bank and Trust Company.
    No. 48538.
    Supreme Court of Mississippi.
    March 9, 1976.

      Mize, Thompson & Blass, White & Morse, Gulfport, Stennett, Wilkinson & Ward, James A. Peden, Jr., Horace Steele, Howie, Montgomery & Montjoy, Jackson, W. H. Montjoy, Greenwood, for appellants.
    Martin & Taylor, Gulfport, Fox & Go-wan, Jackson, for appellees.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice:

After a full three-day hearing before the State Banking Board, the board approved the application of the prospective incorpo-rators for a certificate of authority to incorporate the First State Bank and Trust Company, Gulfport, Mississippi. Hancock Bank, Gulf National Bank and Merchants Bank and Trust Company, appealed to the Chancery Court of the First Judicial District of Harrison County. That Court affirmed the decision of the State Banking Board. Three objecting banks thereupon appealed to this Court.

Pursuant to Mississippi Code Annotated section 81-3-13 (Supp.1975), the prospective incorporators of the First State Bank gave notice to the State Comptroller, applied for a certificate of authority to incorporate, and filed with the State Comptroller a copy of the proposed articles of incorporation duly sworn to by one of the prospective incorporators.

In accordance with Sec. 81-3-13, the State Comptroller promptly considered the application, examined the proposed articles of incorporation, made the investigation required of him, recorded his findings in writing, and drew up his recommendations to the banking board. The statute then requires of the State Bank Comptroller:

“He shall thereupon, in writing, call a meeting of the board to give consideration to his findings and recommendations, such call to be issued at least ten (10) days in advance of the meeting. The state comptroller shall at the same time give notice of the meeting of the state banking board to the prospective incorporators of the proposed new bank and to any and all other interested persons and shall extend to them an invitation to be heard in writing or in person by the state banking board.” Miss.Code Ann. § 81-3-13 (Supp.1975). (Emphasis added).

All of this was done by the State Comptroller. The statute then requires of the banking board:

“The state banking board, at its meeting, shall consider the findings and recommendations of the state comptroller and shall hear such oral testimony as he may wish to give, and shall also receive information and hear testimony from the prospective organisers of the proposed bank and from any and all other interested persons bearing upon the public necessity for the organisation and operation of the new bank. (Emphasis added).
“After considering the record submitted to it by the state comptroller and his oral testimony and considering such other information and evidence, either written or oral, which has come before it, the state banking board shall decide if it has before it sufficient information and evidence upon which it can dispose of the application to form the new bank.
“If the state banking board, or a majority thereof, shall determine that it has before it sufficient evidence and information upon which to base a decision, then it shall render a written opinion and decision in the matter. If its decision is favorable, then the state banking board shall order the state comptroller to give to such prospective incorporators a certificate under his hand and official seal of the department of bank supervision authorizing the prospective incorpo-rators to proceed to incorporate and organize as is provided in section 81-3-7.” Miss.Code Ann. § 81-3-13 (Supp.1975).

The Hancock Bank, the Gulf National Bank, and the Merchants Bank and Trust Company of Bay St. Louis, accepted the published invitation to appear and be heard, and thereafter participated in all hearings and proceedings before the banking board.

The testimony given and the exhibits filed with the banking board consist of 1869 pages in nine bound volumes. When the prospective incorporators and the three objecting banks finally rested, the banking board determined, in accordance with the statute, that it had “before it sufficient evidence and information upon which to base a decision”.
The board then rendered its unanimous written opinion and decision in the matter which was that the State Comptroller “give to such prospective incorporators a certificate under his hand and official seal of the department of bank supervision authorizing the prospective incorporators to proceed to incorporate and organize as is provided in section 81-3-7.”
The three objecting banks appealed to the Chancery Court of the First Judicial District of Harrison County. That court, acting through Chancellor,Howard L. Patterson, Jr. of Hattiesburg, who was designated to review the matter as an appellate court, affirmed the decision of the banking board, after hearing and considering oral arguments and after thoroughly and completely reading and studying the transcript of the hearing before the banking board, and after “carefully examining and studying each of the exhibits entered at said hearing and the briefs of counsel;” and after reviewing the “applicable statutes and decisions of the Mississippi Supreme Court.”
There is no merit in assignments of error 1, 2, 5 and 6.

Assignments of error 3, 4 and 7 were:

“The Banking Board erred in overruling the motion for a bill of particulars and the motions for subpoena duces tec-um filed by the objectors in an effort to obtain discovery concerning the finding and recommendation of the State Bank Comptroller, and the lower court erred in not reversing on this ground.”
“The Banking Board erred in not permitting the objectors to invoke the rule so as to prevent witnesses from hearing the testimony of prior witnesses, and the lower court erred in not reversing on this ground.”
“The Banking Board erred in finding that the public necessity requires the incorporation of the First State Bank and Trust Company, and the lower court erred in not reversing on this ground.”

The hearing before the banking board is not an adversary proceeding in the true sense of the term, nor is it a judicial proceeding. The full panoply of pleadings and processes for discovery provided for full-fledged litigants in law and equity courts is not available for use before an administrative board.

In Planters Bank v. Garrott, 239 Miss. 248, 122 So.2d 256 (1960), this Court affirmed the decree of the chancery court, which in turn affirmed an order of the State Banking Board authorizing the establishment of a new bank in Tunica County. In deciding Planters Bank, this Court said:

“The authorities are agreed that a State Banking Board or Commission is an administrative body, and not an inferior judicial tribunal, as suggested by the appellant’s attorneys in their brief. [Citing Authorities], That the Board determines facts or passes upon questions which may affect parties and exercises judgment and discretion does not imply that it has judicial power. State ex rel. Dybdal et al. v. State Securities Commission, supra [145 Minn. 221, 176 N.W. 759]. And the fact that some of its functions may be quasi-judicial in their nature does not make it a court.” 239 Miss, at 276,122 So.2d at 267.

In determining the extent of judicial review, this Court, in Planters Bank, also said:

“(2) that a court of competent jurisdiction has the power to review any order made by an administrative commission to determine whether it is supported by substantial evidence, or is purely arbitrary or capricious, beyond the Commission’s power, or violates some statutory or constitutional right, of an interested party; [and] (3) that in reviewing an order of an administrative commission, power to make the order and not the mere expediency or wisdom of having made it is the question; . . . .” 239 Miss, at 278, 122 So.2d at 268.

We reiterated and reaffirmed the limited scope of appellate judicial review in Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss. 1969); Britton & Koontz First National Bank v. Biglane, 285 So.2d 181 (Miss.1973); Mainstream Savings & Loan Association v. Washington Federal Savings & Loan Association, 325 So.2d 902 (Miss. 1976); and Board of Trustees of the Pass Christian Municipal Separate School District v. Acker, 326 So.2d 799 (Miss.1976).

In discussing the statute setting up the procedure for organizing a new bank, this Court, in Planters Bank, had this to say:

“The statute which we have under review was enacted in the exercise of the police power of the state, in the interest of the public, and as an aid to insure safe banking. Its purpose is not to deter competition or foster monopoly, but to guard the public and public interests against imprudent banking. By the enactment of the statute, the Legislature, in our opinion, did not intend that one or more established banks may keep out another merely because the banking facilities sufficiently take care of the banking business. The applicants for a charter were not required to show that the existing bank was not rendering adequate service to its customers, or that a new bank would be in a position to render better service to the public than the bank already in existence.” 239 Miss, at 280, 122 So.2d at 269.

Section 81-3-13 provides:

“The state comptroller shall then make an investigation of the number of unit banks and location thereof (excluding branch offices which shall not be considered as banks) then serving the area in which the proposed new bank is to be located, the ratio of capital funds to total deposits therein, the record of earnings and condition of existing banks and what effect, if any, a new unit bank would have on them, the number of previous bank failures in the area and their liquidation record and banking history generally in the area, the population of the area wherein the proposed bank will be located and relation to number of banks operating therein, reasonable prospects of growth of the area and its financial resources and whether the same are static, progressive or retrogressive, expectation of profitable operation of the proposed new bank, and the morals and business character of the prospective in-corporators and such further investigation to determine whether the public necessity requires that the proposed new bank should be chartered and permitted to operate.”

There are at least five volumes of testimony and exhibits on the eight specific areas to be investigated and on the question of public necessity.

The proof was that no unit bank has been organized, incorporated or transferred to Gulfport since 1944 when the Gulf National Bank was organized. There are only three unit banks in the area; the Hancock Bank and Gulf National Bank in Gulfport and the Merchants Bank and Trust Company in Bay St. Louis.

The condensed statements of condition of the Hancock Bank, Gulf National Bank and Merchants Bank and Trust Company for the years 1967 through 1972 show a steady and healthy growth of deposits and capital for all three.

The 1972 Mississippi Bank Directory shows that the total deposits for the Hancock, Gulf and Merchants banks were $162,600,000, or an average of $54,200,000 for each bank, as compared with the $20,000,000 average for each other Mississippi bank. The Bank Directory also shows for Gulfport and Biloxi a population of 27,500 for each bank as against an average population of 6,130 for each other Mississippi bank.

In evidence was the issue of the Gulf-port, Mississippi, Daily Herald for January 26, 1973, which contained this prediction:

“At the regular annual meeting of the stockholders of Gulf National Bank held in the lobby of the main bank in downtown Gulfport Tuesday, January 23, Charles A. Cowart, president, reported that 1972 was a good year for the bank and that 1973 is anticipated to be the ‘best year ever’.” (Emphasis added).

We note that President Cowart was one of the principal witnesses for the objectors at the hearing before the banking board.

An exhibit, the Deposit Guaranty Quarterly Review, January, 1973, contains this forecast:

“Southern Mississippi is projected to gain a quarter of a million persons over the next three decades with Biloxi/Gulfport and Pascagoula/Moss Point setting the pace as a result of expanding industry and port facilities.”

Five volumes of testimony and exhibits are replete with examples of the steady and unusual growth of the Gulfport-Biloxi area and indeed of the entire Mississippi Gulf Coast, as compared with the rest of Mississippi and even with other southeastern states. The unanimous long-term predictions and forecasts found in the record are for unusual and phenomenal growth over the years for the Mississippi Gulf Coast, as compared with the rest of Mississippi.

There is no merit in the objecting banks’ contention that the appellees failed to meet their burden of proof to show that a public necessity existed- in the Gulfport area for the establishment of a new bank and that there was. no substantial evidence to support the finding of the State Banking Board.

We are in accord with the finding of the chancery court that the three objecting banks were afforded a full and fair hearing before the State Banking Board and that none of their constitutional rights were violated. We are also in accord with the finding of the chancery court that the order of the banking board was supported by substantial evidence and was neither arbitrary nor capricious.

The decree of the chancery court affirming the order of the banking board is, therefore, affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, IN-ZER, P. JJ., and SMITH, SUGG and BROOM, JJ., concur.

WALKER, J., took no part.


source: Caselaw Access Project

license: Public Domain

text:
    Ben CAIN v. RIVERSIDE INDUSTRIES and Cotton Belt Insurance Company.
    No. 48541.
    Supreme Court of Mississippi.
    March 9, 1976.
    M. Collins Bailey, Charles C. Finch, William E. Trusty, Thomas H. Hadley, Batesville, for appellant.
    Maynard, Fitzgerald & Bradley, Clarks-dale, for appellees.
   Appeal from Circuit Court, Quitman County; J. C. Feduccia, Judge.

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

Affirmed.


author: DIXON, Justice. TATE, Justice

text:
    Ross CATES, Individually and as Natural Tutor of his Son, Larry G. Cates v. BEAUREGARD ELECTRIC COOPERATIVE, INC., et al.
    No. 56949.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    John J. Cummings, III, Gregory F. Gam-bel, New Orleans, for plaintiffs-applicants.
    Carl H. Hanchey, Lake Charles, Lemuel E. Hawsey, III, Baton Rouge, for defendants-respondents.
   DIXON, Justice.

Larry Cates, sixteen years and eight months old, suffered an electrocution accident on September 30, 1972 which left him seriously maimed. An action for damages was brought against Beauregard Electric Cooperative, Inc., owner of the utility pole on which the accident occurred, and Cecil Ribbeck, owner of the land where the pole was located. Other defendants, originally named, have been dismissed and are not before us.

Motions for summary judgment were filed by the electric company and the landowner. At first the motions for summary judgment were denied, but, on application for rehearing, the district judge decided that there were no material issues of fact, and gave judgment for the defendants, rejecting the plaintiff’s claim.

On appeal, the trial court was affirmed. Cates v. Beauregard Electric Cooperative, 316 So.2d 907 (La.App.1975). The majority opinion of the Court of Appeal found that the undisputed facts convicted young Cates of contributory negligence, preventing his recovery. The dissenter in the Court of Appeal, interpreting Odom v. Hooper, 273 So.2d 510 (1973), to hold that contributory negligence cannot be decided on a motion for summary judgment, was of the opinion that contributory negligence was an issue which should have been submitted to the jury.

The defendant electric cooperative attached to its motion for summary judgment the depositions of Larry Cates, his younger brother, Ronnie (nine at the time of the accident), and Kent Guy (sixteen at the time of the accident), who were the only persons present when Larry was injured. Also attached to the motions were evidence, testimony and drawings describing the physicial condition of the electrical apparatus. Defendant Ribbeck relied on other depositions to establish a history of the electrical wire on his property. Plaintiff, in answer to the motions for summary judgment, filed affidavits which tended to establish that, although the land was privately owned, it had acquired the status of a recreational area and was relatively open to public use for activities such as horseback riding, hunting, fishing, etc.

Ribbeck’s land consisted of about seventy acres near Moss Bluff. Part of the land was fenced and part was unfenced. The land was bounded on two sides by roads. It contained an old farmhouse which had been abandoned for fifteen or twenty years, and was in a dilapidated condition.

Electrical service had been run to the farmhouse some time after 1948, and had been discontinued about 1957. The electrical wires entered the property about 800 feet from the location of the pole where the accident occurred. There was a tap at the main line pole at the intersection of North Perkins Ferry Road and Dunn’s Ferry Road. The main line was charged with 7620 volts, single phase. The primary wire and the neutral wire left the main line and ran easterly across the road a little more than 70 feet to a pole with a crossarm, then continued on to Ribbeck’s land for over 360 feet to a pole without a crossarm. At this point the primary conductor was at the top of the pole, and the aluminum ground (called the system ground) was attached to the pole 4 feet below the primary. Both wires then (originally) continued for over 430 feet to the pole where the accident happened.

At that point, the line ended. There was a transformer on the pole from which two insulated service wires had once furnished 110 or 120 volts of electricity for the household current at the farmhouse. These wires had been cut. On the day after the accident their ends were about 10 feet above ground level. On the day of the accident there is testimony that the ends of the wires hung from the pole to a point less than 6 feet from ground level.

The pole was 29 feet tall. The primary conductor was 28 feet 4 inches from the ground. Four feet below the primary was the attachment for the neutral wire. Only about 4 feet of the neutral wire remained on the pole. Below the neutral attachment was the transformer, necessary to reduce the current to the voltage required for the household service. The transformer was a little over a foot and a half tall.

A ground wire also grounded the pole; stapled to the pole, it ran its full length to a rod embedded in the earth.

There was no connection between the primary conductor and the transformer. That is, the transformer was not energized. The only energized wire on the pole was the primary conductor, 28 feet 4 inches from the ground.

Larry Cates did not remember anything about the day on which the accident happened until after he fell to the ground from the top of the pole which he had climbed. Ronnie Cates’ deposition disclosed that he and Larry went to Kent Guy’s home about 4:00 o’clock in the afternoon, and all three rode their horses on to the Ribbeck place near the abandoned house. When they noticed the wire, Larry stood on his saddle and climbed up the pole to a point where his right foot was on the transformer hanger and his left foot was on the top of the transformer. Ronnie saw Larry reach for the pliers to cut the wire, slip, and grab the primary conductor at the top of the pole.

In his deposition, Kent Guy told of meeting Larry and Ronnie at about 3:30 in the afternoon, that he changed clothes and went horseback riding with the other two boys, and was with them until the accident happened at about 6:00 or 6:30. Kent told of riding with Larry about a month and a half earlier in the vicinity of the pole where the accident happened. Kent’s horse had run into a wire that was only three or four feet above the ground, stretched from the pole where the accident happened back to the pole toward the highway. The wire broke when the horse ran into it. Kent said that he picked up one end of the wire and threw it into the bushes out of the way.

This episode was recited by Kent Guy to justify his opinion that there were no energized wires on the pole which he and Larry set out to climb; Kent apparently figured that the top wire in a primary distribution line ought to be the neutral wire.

Kent had with him a tool which he described first as wire cutters and then as “diagonal pliers.” He said that he was working on a small tractor when the Cates boys invited him to go riding with them, and was using the pliers at that time. He also said, however, that, after he finished the work on the tractor, he went into the house and changed clothes before going riding.

Kent Guy said they tried to pull down the two dangling wires from the pole, but were unsuccessful. Kent then attempted to climb the pole, but could not. He then gave the pliers to Larry, who put them in the game pocket of a coat or jacket, and then proceeded to shinny up the pole. Kent said he asked Larry “if he was sure that all the wires up there were dead.” Larry replied in the affirmative. (Larry was not unintelligent, and was not unaware of the dangers of electricity). Kent allowed his attention to wander when suddenly Ronnie screamed. Kent looked up and saw Larry hanging by his left hand from the primary conductor.

The employees of the electric cooperative in investigating the accident found the ends of the two insulated wires hanging from the pole to be more than 10 feet from the surface of the ground. They also found flash marks, indicating electrical burns, on the transformer hanger, on the pole ground and on the primary conductor. There was burned flesh on the primary conductor and on the pole ground wire.

When a summary judgment is sought it “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” C.C.P. 966. Further, when a motion for summary judgment is made and supported, the adverse party cannot rest on allegations of his pleadings, but must sbt out, in evidence or depositions, “specific facts showing that there is a genuine issue for trial.” C.C.P. 967.

The question presented is an uncomplicated one under C.C. 2315: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” For the purposes of the motion for summary judgment, the defendant electric cooperative admits negligence. Defendant Ribbeck makes no such admission. The position of both defendants is that, because of the acts of plaintiff himself, either intentional or negligent, there can be no recovery.

We agree with both courts below. Larry was injured in an accident caused by his own fault, not the fault of defendants. From the uncontroverted facts before us, we can reach no other conclusion under the present state of the law.

By either subjective or objective standard, Larry’s fault is clear. A reasonable person should have known the risk involved in shinnying up a pole to cut an electric wire. Larry knew something about electricity. He was reminded of the danger by his companion as he climbed the pole, but apparently assumed that there were no live wires on the pole. He was not entitled to such an assumption. The fact that a horse had run into a sagging wire several weeks before without harm to horse or rider did not justify a belief that it was safe to climb a 30 foot pole to cut and remove wire.

Uninsulated electric wires carrying high voltage electricity are extremely dangerous. In some situations there might be recovery for injury in spite of fault on the part of the injured person, but not where, as here, one is hurt while in a place where he has no right to be, in an effort to accomplish no lawful purpose, while aware of the danger involved. See Bond v. Toriello, 260 So.2d 727 (La.App.1972), cert. den., 262 La. 189, 262 So.2d 788 (1972).

No logical comparison can be made between this case and cases like the “spring-gun” cases. Katko v. Briney, 183 N.W.2d 657 (Iowa 1971); Prosser, Law of Torts, 4th ed. § 21 (1971). There is no trap set. Electric wires on a pole are an announcement of danger to almost anyone smart enough and old enough to get himself in contact with a wire 28 feet above the ground. See Nessmith v. Central Louisiana Electric Co., 257 So.2d 744 (La.App.1972), cert. den., 261 La. 480, 259 So.2d 921 (1972).

Plaintiff relies strongly on Odom v. Hooper, supra, for his contention that contributory negligence cannot be decided on a motion for summary judgment. His reliance is misplaced; Odom v. Hooper should not be so interpreted. When the evidence submitted on the motion leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted (C. C.P. 966), even if the defense is contributory negligence.

Our conclusions are applicable to plaintiff’s claims against Ribbeck, the landowner, as well as against the electric cooperative. We note, however, that the Court of Appeal resorted to a “status” analysis to determine the duty owed by the landowner, concluding that, since plaintiff was a “trespasser,” at least when he began to climb the pole, the landowner owed him no duty except to refrain from “wanton or willful” conduct which might harm plaintiff.

We find the common law classifications of invitee-licensee-trespasser to be of little help in applying C.C. 2315. See, for example, criticism in 30 La.L.Rev. 217 (1969); 26 La.L.Rev. 520, 522 (1966); 23 La.L. Rev. 296 (1963).

California has a statute very similar to C.C. 2315. California Civil Code art. 1714 states:

“Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.”

The California Supreme Court has recognized that this section of their Code embodies a civil law and not a common law principle. Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 219 P.2d 73 (1950). In the case of Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P. 2d 561 (1968), the California Supreme Court noted that the common law rules relating to the status of the entrant vis-a-vis the property owner are a deviation from the fundamental concept that a man is liable for injuries caused by his carelessness. Therefore, in Rowland v. Christian, supra, it abandoned the trespasser-licensee-invitee classifications in favor of a traditional negligence analysis.

We agree with the California court’s approach as adopted in Rowland v. Christian, supra:

“It bears repetition that the basic policy of this state set forth by the Legislature in section 1714 of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant departure from this fundamental principle do not warrant the wholesale immunities resulting from the common law classifications, and we are satified that continued adherence to the common law distinctions can only lead to injustice or, if we are to avoid injustice, further fictions with the resulting complexity and confusion. We decline to follow and perpetuate such rigid classifications. The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.” Rowland v. Christian, 70 Cal.Rptr. 97, 104, 443 P.2d 561, 568.

The Court of Appeal reached the correct result. Cecil Ribbeck owed plaintiff the duty of ordinary care under the circumstances. We would not, however, find it necessary to resort to an invitee-licensee-trespasser analysis to find the duty owed. (Our conclusion — that plaintiff’s injury was caused by his own voluntary exposure to the hazardous electric wire— makes it unnecessary to find the precise duty owed by Ribbeck to plaintiff).

Since we find there is no genuine issue as to material fact, and that plaintiff is barred from recovery as a matter of law, the judgment of the Court of Appeal is affirmed at the cost of plaintiff.

TATE, J., dissents and assigns reasons.

CALOGERO, J., dissents.

TATE, Justice

(dissenting in part, concurring in part).

I concur insofar as the majority finds no issue of material fact with regard to the negligence of the defendant landowner. He was not responsible for the maintenance of the highly energized line on the poles on his land, nor did he have any knowledge that the apparently dead lines to the former farmhouse location were still energized.

I dissent, however, insofar as summary judgment is rendered in favor of the electric company, the negligence of which is unquestioned. The majority errs in finding that there is no issue of fact with regard to the contributory negligence of Larry Cates, the sixteen-year old minor for whose injuries recovery is sought.

The majority is in- error in finding that, under the facts shown for the limited purpose of summary judgment, the plaintiff’s contributory negligence as a matter of law bars his recovery. For reasons to be stated later, it is inappropriate under the present showing to determine this issue of fact, under the controverted evidence whether the plaintiff boy’s contributory negligence in fact bars his recovery.

First, however, it may be appropriate to consider the legal issue of the boy’s contributory negligence presented by the pleadings, before we discuss whether there is a material issue of fact as to it.

In considering contributory negligence, we must first consider the shown negligence of the electric company. It is the light of the hazard created through its negligence that the reasonableness of the conduct of the boy must be measured — an issue of fact which cannot be determined on motion for summary judgment.

The electric company left energized a main line charged with current of 7620 volts. No useful purpose is shown for leaving energized with lethal voltage of this magnitude in a dead-end electrical line leading nowhere. Under such circumstances, the creation of a risk of harm of such magnitude, for no reason, constitutes gross negligence. Allien v. Louisiana Power & Light Co., 202 So.2d 704 (La.App.3d Cir. 1967), certiorari denied, 251 La. 392, 204 So.2d 574 (1967).

Similarly, the person subject to such an extraordinary risk may not be under a duty to anticipate it. See Allien. Contributory negligence is conduct which falls below the standard to which the plaintiff should conform for his own safety under the circumstances, Restatement of Torts 2d, Sections 463, 464 (1965), including an unintentional and unreasonable exposure of himself to danger created by the defendant of which the plaintiffs know or have reason to know. Restatement, Section 466(1). See Harper & James, The Law of Torts, Section 22.10 (1956); Prosser on Torts, Section 65 (4th ed. 1971). Further, where there is aggravated negligence by the defendant (as here), the contributory negligence of the plaintiff must be of a reckless character to defeat recovery. Prosser, Section 65 at p. 426.

Under these circumstances, a material issue of fact exists whether the conduct of the boy, under the circumstances, amounts to contributory negligence which will bar his recovery. For instance, a person touching an apparently unenergized line which might at the most have 110 volts, may not be unreasonable to expect slight if any injury by approaching or touching it —as compared with the truly serious injuries that must result if he approaches or touches a line charged with extraordinarily dangerous voltage of 7260 volts.

As a result of his exposure to this extraordinarily dangerous hazard, this young boy lost his hands and feet, is a quadriplegic, and is totally paralyzed from the fifth vertebra down. He has suffered a complete loss of bodily function and will never walk again.

In a motion for summary judgment, the majority is in error in deciding this factual issue of contributory negligence. We ourselves have held that summary judgments must be denied, where there is a “genuine issue as to material fact”, La.C.Civ.P. art. 966, even though we may have believed that the preponderance of the evidence might favor the defendant moving for summary judgment. Odom v. Hooper, 273 So.2d 510 (La.1973) (contributory negligence) ; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

These decisions, and the host of intermediate decisions following them, are authority for the following principles for applying the summary judgment provisions, La.C. Civ.P. arts. 966-68:

The summary judgment remedy, which deprives a litigant of trial on the merits, is not a substitute for such trial. It may not be resorted to whenever there is a genuine issue of material fact which must be resolved. In passing upon a motion for summary judgment, the function of the court is not to determine the merits of the issues raised, but it is rather only to determine whether or not there is a genuine issue of material fact. The burden to show there is not a material factual issue is upon the mover for summary judgment. All doubts must be resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts.

To grant a summary judgment in derogation of these principles, may deprive the opposing party of cross-examination of opposing witnesses and of the opportunity to have the trier of fact evaluate the demean- or testimony of witnesses rather than accept at face value affidavits and depositions prepared or taken in lawyers’ offices rather than in open court.

We have, until now, thus adopted the view of those federal decisions which, in applying the federal summary judgment upon which our own is based, have held that a litigant has a right to trial on the merits where there is the slightest doubt as to the facts. 6 Moore’s Federal Practice, Section 56.13(3) (1965); James, Civil Procedure 235-36 (1965).

As stated at 10 Wright & Miller, Federal Practice & Procedure 514-15 (1973): “Therefore, a party moving for summary judgment is not entitled to a judgment merely because the facts he offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial. This is true, even though both parties move for summary judgment. Therefore, if the evidence presented on the motion is subject to conflicting interpretations, or reasonable men might differ as to its significance, summary judgment is improper.”

The showing here made indicates that the evidence as to contributory negligence is subject to conflicting interpretations. It is improper, on motion for summary judgment, to determine the issue of contributory negligence by our own factual decision of this factual issue. The motion for summary judgment should not be granted simply because we think the facts indicate one party or the other should have judgment on the merits, but only when the showing indicates there is “no genuine issue as to material fact.” La.C.Civ.P. art. 966.

To decide an “issue” of material fact on motion for summary judgment is contrary to the code articles governing the remedy. It is also, contrary to the intent of the remedy, to deprive a litigant of his right of trial on the merits in open court, with cross-examination and demeanor evaluation and all the traditional aids to truth of our adversary system, and instead to permit disposition on affidavits and depositions read in judges’ chambers.

I therefore respectfully dissent as to the grant of summary judgment in favor of the electric company.


text:
    STATE of Louisiana ex rel. Peter SCHWANDER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57677.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Peter Schwander, applying for writs of Mandamus and Habeas Corpus.

Writ denied. This is a repetitive application already denied on another application.

DIXON and CALOGERO, JJ., are of the opinions an evidentiary hearing must be granted.


text:
    STATE of Louisiana v. David C. BILLIOT.
    No. 57702.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: State of Louisiana applying for writ of certiorari.

Not considered. Not timely filed by March 15th. Unofficial postage meter does not fall within Rule 10, Section 5(b) (1974) Rules of Supreme Court.

SUMMERS, J., concurs. The applicant has made no showing that circumstances justified this late filing.


text:
    J. G. DUPLANTIS v. TERREBONNE PARISH SCHOOL BOARD et al.
    No. 57597.
    Supreme Court of Louisiana.
    March 9, 1976.
    Summers and Calogero, JJ., were of the opinion that the writ should have been granted.
   In re: J. G. Duplantis, applying for writs of Certiorari

Writ refused. The judgment of the district court is correct. The trial judge correctly held that the rate and use limitations in L.S.A.-R.S. 33:2737 are inapplicable to sales taxes levied under Article 6, Section 29 of the Constitution >of 1974.

SUMMERS and CALOGERO, JJ., are of the opinion the writ should be granted.


author: DIXON, J.,

text:
    Doris HEMSLEY v. Florence SIMS.
    No. 57676.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Doris Hemsley applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 325 So.2d 877.

Writ refused. Under the factual determination of the jury approved by the court of appeal, we cannot say the result is erroneous as a matter of law.

DIXON, J.,

is of the opinion the writ should be granted. The majority opinion makes no factual finding. From what we have before us, the jury was so wrong that even those who rest on the “Manifest error” doctrine should conclude that the verdict was erroneous.

CALOGERO, J., would grant the writ.


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. Stanley L. PLAISANCE v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57636.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Stanley L. Plaisance applying for Writ of Certiorari and Habeas Corpus.

Granted; evidentiary hearing ordered.

SUMMERS, J.,

dissents from the granting of this evidentiary hearing. The allegation of applicant’s petition does not support a claim of incompetent counsel.


author: SUMMERS and DIXON, JJ.,

text:
    STATE of Louisiana v. Billy SKIPPER and Ora Fondren.
    No. 57473.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Billy Skipper and Ora Fondren, applying for supervisory writs or writ of certiorari and judicial review and for Stay Order.

Writ denied: No error in the rulings complained of.

SUMMERS and DIXON, JJ.,

are of the opinion the statute upon which this conviction is based is an unlawful delegation of legislative power to an administrative agency based principally upon the vague and indefinite standard, “the interest of wildlife management”. See La.R.S. 56:121; State v. Billot, 154 La. 402, 97 So. 589 (1923).


text:
    Barbara Castille VIDRINE, Individually and as Natural Tutrix of Ricky Hebert v. Marion Overton WHITE and Allstate Ins. Co.
    No. 57617.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Marion Overton White applying for Remedial Writs.

Writ granted. The ruling of the trial court is vacated and the case remanded.

It is ordered that the district court reconsider the validity and sufficiency of applicant’s appeal bond, particularly in relation to its possible adequacy to serve as a devolutive appeal bond.

SUMMERS, J.,

although I agree that this writ should be granted I believe it is necessary to have a hearing and order the record up before ordering this remand or otherwise adjudicating this case in chambers without according the recognized procedural hearing, brief, right to apply for a rehearing, etc., etc. To adopt this procedure, in my view, is to tread within or near to a deprivation of due process.


text:
    Dorothy CAIN et al. v. BOARD OF SUPERVISORS OF ELECTIONS, OUACHITA PARISH, Louisiana, et al.
    No. 57686.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Dorothy Cain, Reverend W. Williams, Reverend Joseph Montgomery and Jacob E. Charleston applying for Supervisory Writs.

Writ denied. The showing made does not warrant the exercise of this court’s supervisory jurisdiction.

CALOGERO, J., dissents from the denial.

DENNIS, J., is of the view the writ should be granted.


text:
    Byron Patrick JORDAN v. Lula Mae Staples, wife of Byron Patrick JORDAN.
    No. 57664.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Byron Patrick Jordan applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 325 So.2d 629.

Writ denied. There is no showing that the award infringes upon Civil Code Article 160.

SUMMERS, J.,

dissents from the denial,

being of the opinion that an open-ended judgment like that in the instant case violates the limitation on alimony prescribed by Article 160 of the Civil Code.


text:
    Joseph R. DESHOTELS v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK.
    No. 57619.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: The Fidelity and Casualty Co. of New York applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline.

Writ refused. On the facts found by the court of appeal, 324 So.2d 895, there is no error of law in its judgment.

SUMMERS, J.,

is of the opinion this writ should be granted to reconcile the divergent holding in the courts of appeal on factual situations which are almost identical and without any relevant distinctions. It is a principal function of this court to carry out this obligation.


text:
    STATE of Louisiana ex rel. Albert CLARK v. Hon. Frank MARULLO, Judge, Section “D” Criminal District Court, Parish of Orleans.
    No. 57611.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Albert Clark applying for Writ of Mandamus and Habeas Corpus.

Writ denied. Since the trial judge has acted upon applicant’s petition for habeas in the trial court, this application to force him to do so by mandamus is moot.

DIXON, J.,

concurs in the denial; applicant must file another petition in this court to obtain a review of the trial court’s action. State ex rel. Matthews v. Henderson, La., 292 So.2d 496, cannot be used to justify transporting prisoners from parish prisons to Angola pending appeal, absent most exceptional circumstances.


author: TATE, J.,

text:
    Roy BROWN v. Calvin YOKUM.
    No. 57668.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Roy Brown applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 325 So.2d 874.

Writ denied. On the facts found by the court of appeal, there is no error of law in the judgment.

SUMMERS, J., is of the opinion that the result is correct.

TATE, J.,

concurs, under the factual findings before us. However, the non-owner (harborer) of an animal may be liable for negligent maintenance of a vicious animal under Civil Code Article 2315. (additional to the independent strict liability of an owner under Article 2321).


text:
    STATE of Louisiana v. Ailine Jean GONZALES a/k/a Jeanie Bradley.
    No. 57653.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus.

Writ denied. We find no error in the result. Cf. La.Code of Criminal Procedure, Art. 582.

SANDERS, C. J., is of the opinion that a writ should be granted.

SUMMERS, J.,

is of the opinion the writ should be granted being of the opinion that institution of prosecution refers to the initial trial and not to the trial de novo in the District Court. Trial in this latter court is an “appeal”, as the statute and Constitution provide.


author: DIXON, J., CALOGERO, J., TATE, Justice

text:
    STATE of Louisiana v. Richard ANGELICO.
    No. 57150.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
    Tate, J., dissented and assigned reasons.
    Dixon, J., dissented and assigned reasons.
    Calogero, J., concurred and assigned reasons.
   In re Richard Angelico applying for Writ of Habeas Corpus and Stay Order.

Writ denied and stay order set aside. The application raises no issues not heretofore disposed of.

TATE, J., dissents and assigns reasons.

DIXON, J.,

dissents from the denial. On the face of the proceedings, it is apparent that there has been no trial of applicant by a judge of the Criminal District Court of Orleans Parish. Our law, practice and invariable custom is that a trial is conducted by one judge. There is no authority in the statutes or jurisprudence for a trial for constructive contempt of a district court by a committee or jury of judges; C.Cr.P. 24 specifically requires that constructive contempt be tried by “the judge”. Defendant has clearly been convicted without due process of law.

CALOGERO, J.,

agreeing with the court’s denial of this writ application, is further of the view that however possibly meritorious the argument that applicant should statutorily have been tried for constructive contempt of the district court’s joint order by a single judge rather than the Criminal District Court sitting en banc, such complaint does not support a contention of violation of due process.

TATE, Justice

(dissenting).

I respectfully dissent from the denial of this application.

This court has previously refused to consider the relator’s application for direct supervisory review of the judgment of contempt, finding that it was filed here S3 minutes late. La., 328 So.2d 164 (1975). We did so without reviewing the merits of the relator’s allegations, which included contentions that, under the circumstances, the adjudication of contempt violated his due process and First Amendment rights. Even today, the court has not reviewed the factual merits of his complaint of discriminatory treatment, since we have not sought or been furnished a transcript of the evidence, which upon proper showing (as here) we should order. See Rules of Louisiana Supreme Court, Rule 10, Section 5(a)(10)(1973).

By reason of La.C.Cr.P. art. 362(9), the relator is entitled to collateral review by post-conviction habeas writ as a person in custody “by virtue of a court order”, under a claim he is so held by deprivation of a constitutional right. I find that, under the showing made, his allegations have merit and that he should be granted hearing as to his claims.

For present purposes, I limit my dissent to the following showing: The criminal district court issued an order, which, inter alia, prohibited the operation of cameras “in the halls of the Criminal Courts Building” and prohibited questioning of interviewing grand jury witnesses “within the courts or hallways of the Criminal Courts Building.” Orders 3(b), 4(b) March 4, 1974.

The relator, a television newsman, was convicted of contempt because he conducted a television interview of a grand jury witness as she was wheeled (by wheelchair) into and along a motor vehicle driveway running the length of the basement of the building. Concededly, the motor vehicle driveway might be within the technical definition of a “hall” or “hallway” (“the entrance room or passageway of a residence or other building”, “a corridor or passage in a building”, Webster’s Third New International Dictionary, verbo “hall”, P. 1023 (1961)), but the term connotes in ordinary American usage an interior corridor within the building rather than an exterior motor driveway.

Despite Dorfman v. Meiszner, 430 F.2d 558 (CA 7, 1970), cited to us by the applicant, I have little doubt but that the criminal district court has the power reasonably to protect the integrity of its grand jury proceedings and the privacy of persons there summoned against their will by orders forbidding photographing or interviews within the courthouse or on the property thereof, including within the motor vehicle driveway here at question.

Insofar as applying to the motor vehicle driveway, however, the order is vague and ambiguous. A conscientious citizen, intending to obey the order (as applicant claims he was), might interview and take pictures in the vehicular driveway, in the reasonable belief that the order’s prohibition referred only to interior hallways.

A regulation with penal consequences should be sufficiently explicit to inform those subject to it what conduct will render them liable for penalties. A regulation so vague that men of common intelligence must guess at its meaning and differ as to its application prevents penalty for violation of the penumbra area of ambiguity, as a violation of due process.

See: Connally v. General Construction, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 Pa.L. Rev. 67 (1960).

Statutes or orders which inhibit exercise of sensitive First Amendment rights of the free press and of free speech are especially required to be specific in their regulation. See, e. g., Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

Under this showing, the relator was held to be in contempt and jailed for violation of an order which was vague and imprecise as to the violation claimed. His jailing under the circumstances violates due process and infringes on First Amendment rights. I do not reach the further contention that his “violation” was subjected to prosecution because displaying an interview with a witness at great variance with a well-publicized official version of the crime charged, while “violations” of newsmen in the past were not so prosecuted.

For the reasons assigned, therefore, I respectfully dissent.


author: PRICE, Judge.

text:
    Ruth Woodard MITCHELL, Plaintiff-Appellant, v. D. L. BERTOLLA, Defendant-Appellee.

    No. 12853.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writ Granted June 4, 1976.
    Holloway, Baker, Culpepper & Brunson, by Bobby L. Culpepper, Jonesboro, Hal R. Henderson, Arcadia, for plaintiff-appellant.
    John M. Stewart, Arcadia, for defendant-appellee.
    Before PRICE, MARVIN and BOLIN, JJ.

        Editor’s Note: The opinion of the Supreme Court of Louisiana in Jackson v. D’Aubin, published in the advance sheets at this citation (328 So.2d 380), was withdrawn from the bound volume on granting of a rehearing.

   PRICE, Judge.

Ruth Woodard Mitchell brought this suit against D. L. Bertolla seeking to have an option to purchase contained in a written lease agreement affecting certain lands in Bienville Parish declared null and void.

In response to plaintiff’s action, defendant filed an exception of lis pendens, an answer, and reconventional demand.

The exception of lis pendens is grounded on the contention made by defendant that at the time of the filing of this action by plaintiff, there were pending on appeal two suits between the same parties involving the same object and causes of action asserted in this action. The trial court sustained the exception of lis pendens and rendered judgment rejecting plaintiff’s demands. From this judgment, plaintiff has perfected this appeal.

Plaintiff’s first assignment of error relates to the question of whether defendant waived his declinatory exception of lis pendens by filing it together with the answer and reconventional demand. We do not find it necessary to rule on this issue in view of our findings that peremptory exceptions filed in this court properly dispose of this matter. Under the provisions of C.C.P. Article 2163, an appellate court may consider a peremptory exception filed for the first time after the lodging of the appeal, provided it be filed prior to submission of the case for decision and if proof of the grounds for the exception is contained in the record. We find this an appropriate circumstance in which to exercise this discretion to consider these exceptions.

The appellate opinion in the prior suits between these parties which are the basis of the exceptions are now reported at 300 So.2d 209. In one action, Ruth Mitchell, plaintiff herein, sued Bertolla to cancel the lease agreement alleging his failure to timely pay the rental due in December 1971 and January 1972. In the other suit, Ber-tolla sued Ruth Mitchell seeking judgment ordering specific performance of the option to purchase the two involved tracts containing a combined area of 541 acres. In response to Bertolla’s suit, Ruth Mitchell filed an answer and reconventional demand in which she admitted the execution of the written agreement of lease containing an option to purchase but alleged it is null and void because of the failure of Bertolla to pay the rental properly and additionally that the option is subject to being rescinded because of lesion beyond moiety. The suits were consolidated for trial and appeal and after trial on the merits, judgment was rendered rejecting Ruth Mitchell’s request for cancellation of the agreement and ordering her to comply with her obligation to transfer title to the subject property free and clear of encumbrances within sixty days of the judgment. This court affirmed the judgment in its opinion rendered on September 4, 1974, and the Supreme Court denied writs November 22, 1974, 300 So.2d 209 (La.App. 2nd Cir. 1974); writ denied, 303 So.2d 179 (La. 1974).

The present suit by Ruth Mitchell was filed on May 6, 1974, during the pendency of the decision on appeal of the prior actions. The exception of lis pendens was tried and submitted on June 14, 1974. Judgment was not rendered until January 17, 1975. Other delays were caused by the granting of extensions of the return date to the clerk for preparation of the transcript resulting in the record not being lodged in this court until November 26, 1975.

Prior to the date this appeal was set for oral argument, defendant filed in this court a plea of judicial estoppel and exceptions of res judicata and no cause of action.

As we find the exception of no cause of action is dispositive of the appeal, we do not deem it necessary to rule on the exception of res judicata or the plea of judicial estoppel.

The present suit does not seek to set aside or annul the judgments in the prior suit between the parties which decreed specific performance by Mrs. Mitchell. Its sole objective is to have the written contract granting the option to purchase invalidated and cancelled from the records.

Mrs. Mitchell now contends that the allegations of the instant suit for annulling the option to purchase assert a different cause of action from the allegations of the prior suit and that her demands are not precluded because of the doctrine of res judicata. Assuming arguendo the correctness of her contentions as to res judicata, she is nonetheless seeking a remedy which is not available in the instant suit and which would not afford her effective relief.

Judgment in the prior suits ordered specific performance on her part to convey the property according to the terms of the option. This judgment became final when writs were denied by the Supreme Court. There is no attack on that judgment in the instant suit and Mrs. Mitchell does not allege grounds to enjoin its enforcement. The relief sought in the instant suit raises an issue which is moot under the posture of this case.

The general law on the effect of an issue that has become moot is set forth in 1 C.J.S. Actions § 17c, which in pertinent part states:

“. a moot case is a case which seeks to get a . judgment on some matter which, when rendered, cannot, for any reason, have any practical effect upon a then existing controversy

In the case of Spinato v. Lowe, 239 La. 604, 119 So.2d 480 (1960), the Supreme Court declared:

“In the present case it would serve no useful purpose for this Court to determine whether the plaintiff should have been issued a liquor permit for the year 1959 for any decree which this Court would render, if we were to find merit in plaintiff’s contentions, would be unenforceable. This Court will not render judgments which cannot be made effective nor will we give opinions on moot questions or abstract propositions from which no practical results can follow. * *

In a somewhat analogous legal circumstance to the instant case, the Supreme Court in Daigle v. Pan American Production Company, 236 La. 578, 108 So.2d 516 (1959), sustained an exception of no cause of action on a finding of mootness. We quote the pertinent discussion of the court’s opinion as follows:

“Plaintiff has urged in brief and in oral argument that the primary purpose of the suit is to obtain the cancellation and erasure of the alleged wrongfully executed mineral lease, and which is said to constitute a cloud on her title. Manifestly, upon the expiration and voluntary cancellation of this mineral lease as aforesaid, followed by its official erasure from the public records, this feature of plaintiff’s demand was completely and effectually achieved and consummated, thus making plaintiff’s cause or right of action moot in that respect.”

See also Hines v. Village of Goldonna, 136 So.2d 140 (La.App. 3rd Cir. 1961); Danna v. Commissioner of Insurance, 207 So.2d 377 (La.App. 1st Cir. 1968); State ex rel Conforto v. City of New Orleans, 124 So. 2d 155 (La.App. 4th Cir. 1960); Smith v. Elliott, 30 So.2d 146 (La.App. 2nd Cir. 1947).

For the foregoing reasons, we find the defendant’s exception of no cause of action grounded on the issues presented having become moot to be well taken and the judgment appealed from dismissing her demands is accordingly affirmed at appellant’s costs.

      . Plaintiff does contend, however, that the judgment has become inoperable for the failure of Bertolla to take proper steps to effect a transfer of title from Mitchell within the sixty-day period provided in this construction. The record reveals that at the time the judgment obtained by Bertolla decreeing specific performance became a final judgment by denial of writs by the Supreme Court, the present action had been filed by Mrs. Mitchell which signifies her refusal to comply with the prior judgment ordering her to convey title to the property subject to the option. The sixty-day period provided in the judgment is merely the delay fixed by the court for voluntary compliance with the order of specific performance and after the expiration of this period, the adverse party does not lose his right to require the performance decreed by the judgment. It should be noted the particular judgment under discussion does not contain the customary provision that upon the designated time the judgment shall operate as the muniment of title. This omission does not affect the continuation of the obligation of Mrs. Mitchell to comply with the court’s decree of specific performance nor its ultimate enforceability by the lower court.


author:
BOUTALL, Judge. REDMANN, J.,
      REDMANN, Judge

text:
    FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS, Louisiana v. James A. MILLER.
    No. 7205.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.

      Ronald J. Hof, James Foley, III, Foley, Judell, Beck, Bewley & Landwehr, New Orleans, for First Nat. Bank of Commerce, New Orleans, Louisiana.
    Patrick Breeden and James Hanemann, Jr., Poitevent & Hanemann, New Orleans, for James A. Miller.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This matter comes before us on a rather unique procedural situation, that is, both on application for writs of certiorari and on suspensive appeal. At issue is the right of the applicant-appellant to obtain a jury trial in the trial court. In order to better understand the issue before us it is necessary to relate the procedural posture of the case.

The First National Bank of Commerce, New Orleans, Louisiana, filed a petition for executory process against James A. Miller on a promissory note and chattel mortgage. Executory process issued and the defendant’s automobile was seized and sold. Alleging that the results of this sale were insufficient to pay the amount due on the note, the bank then filed a petition for deficiency judgment. Miller filed pleadings in response thereto. While this matter was pending, Miller filed a petition for annullment of the judgment of exe-cutory process and for damages as a result of wrongful seizure and sale, alleging, among other things, fraud or ill practice in the obtaining of executory process. In this petition Miller requested trial by jury, and an order was signed by the judge of another division of the 24th Judicial District Court, granting trial by jury upon posting the necessary bond, etc. Thereupon, the judge of the division to which the matter was allotted, when he became aware of this order annulled and rescinded the previous jury trial order, stating that the matter sought to be tried is not allow-, ed to be tried by jury under Article 1733 of the Code of Civil Procedure.

Miller then filed notice of intention to apply for writs of certiorari, mandamus or prohibition, as well as a motion and order fixing a time for filing such writs in this court. The judge fixed time for filing the writs to be on or before July 28, 1975. For some unexplained reason, the court caused to issue the next day a notice of hearing on the motion fixing the time to file the writs to be held on the same date, July 28, 1975. Counsel for Miller, apprehensive that the hearing date would pass the time limitation for a suspensive appeal, filed a motion for suspensive appeal which was granted, returnable July 10, 1975. The record was accordingly lodged in this court on the return date and counsel filed herein a Petition for Supervisory Writs or Alternatively Appeal. The entire matter was then set down for hearing in this court.

After consideration of the arguments of counsel, and the record before us, we conclude that we should consider this matter on the application for writs. Our conclusion is based upon two reasons. One is that the application for writs was the first type of appellate review sought. The appeal was only taken as a matter of precaution. The other reason is that we have serious doubts as to the applicability of the appeal from an interlocutory order unless irreparable injury is shown. Code of Civil Procedure Article 2083. We do not discuss this second reason in complete detail because of the result we reach in our consideration of the application for writs. Inasmuch as the issue is presented to us for consideration in two of the three possible modes of review (the other being on an appeal from judgment after trial of the merits). The interest of justice would be served by a review of the matter now, Constitution of 1974, Article 1, § 22, and Article 5, § 10. We are required to render any judgment which is just, legal and proper upon the record on appeal. Code of Civil Procedure, Article 2164.

We now turn to a consideration of the validity of the court’s order. The issue presented is not one of timeliness but of the applicability of any of the limitations upon jury trials imposed in Article 1733 of the Code of Civil Procedure. In this proceeding it is urged that the matter before the court is an executory proceeding or a summary proceeding as stated in § 3 of the Article. While it is apparent that the initial proceeding that was filed by the bank against Miller was a petition for exe-cutory process, that phase of the litigation has long since passed out of the picture. The order of which appellate review is sought denies the request for jury trial of a petition which seeks to annul that prior executory proceeding on the grounds of fraud, among others, and seeks damages in excess of $100,000 for illegal seizure and sale of Miller’s automobile. A suit for damages is of course only subject to regular process and a suit for nullity of judgment on the basis of fraud is similarly ordinary process. The record shows that the named defendant bank was served with citation and a copy of the petition.

Since we are considering this matter under our supervisory powers, we are mindful of the fact that we should not utilize them simply as a substitute for an appeal, but only in extraordinary cases. In the present case, the denial of the right to a jury trial on the assigned basis is so clearly wrong that it admits of little discussion. Since the proceedings have been suspended as a result of the peculiar manner in which this case comes to us, we cast aside our usual hesitancy to interrupt the orderly procedure of the trial court, and we set aside and annul the order of May 29, 1975 complained of herein.

Accordingly we issue Peremptory Writs of Certiorari and Mandamus herein, annul-ing and setting aside the order of May 29, 1975 and ordering the trial judge to permit jury trial of this matter either under the prior order of May 15, 1975 or such other provisions for posting of bond, etc. as may be reasonable and proper in the premises. This matter is remanded to the trial court for further proceedings in accordance with the views expressed herein. Costs of these proceedings to await a final determination of the case.

Order of May 29, 1975 annulled and set aside and matter remanded.

Annulled, set aside and remanded.

REDMANN, J.,

concurring.

REDMANN, Judge

(concurring):

I concur that plaintiff is entitled to a jury trial.

I do not subscribe to the dictum that review of a refusal of civil jury trial may not be had by appeal.

      . Upon the facts shown in the record, the only damage that would occur from the denial or rescission of the jury order is the passage of time and the possibility that at some future stage of the proceedings the trial judge might order a judge trial which, if then erroneously granted, would cause, if reversed upon appeal, the necessity of going through another trial. The case of Wilson Sporting Goods Company v. Alwes, 17 So.2d 382 (La.App. 1st Cir. 1944) has apparently served as a basis for such a proposition. See City of New Orleans v. Williams, 86 So.2d 410 (La.App.Orl., 1956) ; Southern Baptist v. Williams, 89 So.2d 769 (La.App.Orl., 1956) and Jennings v. Coleman, 250 So.2d 845 (La.App. 4th Cir. 1971). At the same time, it would appear that there are cases which hold that the granting of a jury trial is not appealable on the same basis. See Plaisanoe v. Collins, 234 So.2d 436 (La.App. 1st Cir. 1970). Some members of this court are of the opinion that there exists no valid reason for such a distinction, and particularly note the numerous decisions involving change of venue, peremptory exceptions, granting of new trials, etc., which hold that the interlocutory decree which simply requires a party to defend in a perhaps unnecessary trial are not cases involving irreparable injury. To be consistent, the irreparable injury for appellate basis must mean more than being made to engage in an objectionable trial.


author: GUIDRY, Judge.

text:
    Rodney REDDOCH, Plaintiff-Appellee, v. CALCASIEU FEDERAL EMPLOYEES CREDIT UNION, Defendant-Appellant.
    No. 5383.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Charles W. Richard, Lake Charles, La., for defendant-appellant.
    Anderson, Leithead, Scott, Boudreau & Savoy, by Richard L. Savoy, Lake Charles, for plaintiff-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

Plaintiff-Appellee, Rodney Reddoch, sues to recover dividends in the amount of $675.00 alleged to be due him by Calca-sieu Federal Employees Credit Union, Defendant-Appellant.

Plaintiff alleges that during the period from January 1, 1973 to March 31, 1974 he had on deposit with defendant the sum of $45,000.00. For the period from January 1, 1973 through December 31, 1973 the defendant paid six per cent (6%) per annum interest, payable quarterly, on all such deposits. In February of 1974, without prior or subsequent notice to plaintiff, defendant decided to discontinue the payment of interest quarterly and decided to pay interest on an annual basis, such policy to be retroactive to January 1, 1974. At the end of March 1974 plaintiff made demand upon defendant for payment of the first quarterly interest payment which was refused, he being then informed of the decision of the defendant’s board of directors that interest would be paid annually. On March 31, 1974 plaintiff withdrew the aforesaid amount and deposited it elsewhere. On the basis of the above plaintiff seeks to recover the sum of $675.00, that is 6% per annum interest on the $45,000.00 deposit for the period from January 1, 1974 to March 31, 1974. Defendant denies that it is indebted to plaintiff for any amount, and urges that Calcasieu is not obligated to pay dividends in any fixed amount and may not according to its by-laws pay dividends quarterly. Further, that dividends are payable only on shares fully paid up before December 1st and outstanding on December 30th of the fiscal year.

The trial court rendered judgment in favor of plaintiff for a sum equal to 6% per annum interest on $45,000.00 from January 19, 1974 through March 31, 1974, together with legal interest on such amount from date of judicial demand until paid. We reverse.

There is no dispute regarding the facts. Defendant is a corporation organized under the laws of Louisiana for the benefit of federal employees and their families in Calcasieu Parish. Plaintiff, who is the Clerk of the Federal District Court in Lake Charles was a member of the defendant credit union for many years, having once served as its president and having served on its board of directors for some 7 or 8 years. According to the by-laws of the defendant the Board of Directors authorize the declaration of dividends (Article VI Sec. 4(c)) and may do so out of current earnings remaining after setting aside the reserve required by law, any such dividend being payable only on shares fully paid up before December 1st and outstanding on December 30th of the fiscal year (Article XIII).

For many years the credit union paid annual dividends in accordance with the provisions of its by-laws, however, in June of 1973, on motion of plaintiff who was then a Board member, the defendant resolved to pay dividends quarterly, this change in dividend payment being made retroactive to January 1, 1973. The minutes of the meeting at which this resolution was adopted contain the following notation regarding same:

"Feasibility of paying devidens (sic) by the quarters? Quarterly dividend (sic) were approved retroactive to Jan. 1st 1973, on a trial basis.” (Emphasis mine)

In October of 1973 the books of the defendant corporation were audited by the State Banking Department and at that time the President was verbally advised that the Credit Union could not legally pay quarterly dividends because its by-laws authorized the payment of dividends only on an annual basis. This verbal admonition was followed by a written criticism from the State Auditor which was received by the President of the Credit Union in December of 1973. The by-laws of the Credit Union have never been amended so as to provide for the payment of quarterly dividends. On January 19, 1974 the annual stockholders meeting was held with the plaintiff being in attendance. At this meeting the President submitted his annual report which, although not mentioning the criticism received from the State Banking Department, did advise as follows regarding the payment of quarterly dividends during the year 1973, and the feasibility of continuing to pay same on that basis:

"If some of you have not noticed in your pass book or have not brought your book in to be brought up to date, the board voted to pay 6% quarterly. This may be a, one time only deal though, we will review this further when we check all our finances(Emphasis mine)

Plaintiff was not re-elected to the board of directors at the annual meeting his service on the board being terminated as of the date of the annual stockholder’s meeting. On January 28, 1974, at its regular meeting the newly constituted board of directors resolved to discontinue the payment of quarterly dividends effective as of January 1, 1974.

During the period from January 1, 1973 to March 31, 1974, plaintiff, his wife, and son were the owners of $45,000.00 of fully paid-up shares in the Credit Union. In late March of 1974 plaintiff made demand for payment of a quarterly dividend on the shares owned by him and his family which payment was refused. On March 31, 1974, at plaintiff’s request, defendant paid to plaintiff the sum of $45,000.00 in redemption of all shares owned by him and his family in the Credit Union.

The trial court in finding for plaintiff held that the President, as an officer of the corporation, in failing to advise plaintiff at the annual stockholders meeting of the criticism by the State Auditor deprived plaintiff of interest on the money held by the credit union for him. The trial judge reasoned that if plaintiff had been advised on January 19, 1974 that quarterly dividends would no longer be paid, he could then have protected his interest by re-investing his funds elsewhere. In so holding we find that the trial court fell into error.

In our view the President had no positive duty to report to the stockholders that the Credit Union had been critized for the payment of quarterly dividends and the record does not substantiate that his failure to do so prejudiced the rights of plaintiff. The evidence does not reflect that the Board of Directors determined to discontinue the payment of quarterly dividends solely because of the criticism from the State Auditor. If this were the only reason the prohibition against the payment of dividends in that manner could have been overcome by a simple amendment of the charter which presumably could have been accomplished in time to make a first quarterly payment in 1974. (By-laws Article XVI; LSA-R.S. 6:642) Although the admonition from the State Auditor may have been a factor considered by the Board in resetting its dividend payment policy it clearly was not the sole reason. When the quarterly payment policy was adopted the then Board did so on a trial basis. In the President's annual report the stockholders were reminded that quarterly dividend payments might be a “one time only deal” and were advised that such policy would be reviewed after a check of the Credit Union’s finances. Certainly from the record it can be concluded that the members of the board were aware that under the charter and under the laws of the State dividends to shareholders were payable only from current earnings remaining after setting aside the reserve required by law and that this factor was paramount in determining whether payment of dividends quarterly could be, continued. Although the President in his annual report could have advised the stockholders of the criticism from the State Auditor he could not have then advised that the Credit Union would not continue to make quarterly dividend payments because this was not finally determined until the first Board meeting on January 28, 1974. Additionally, plaintiff was clearly not prejudiced by the President’s failure to mention in his annual report that the Credit Union’s quarterly dividend policy had been criticized by the Auditor. Plaintiff was no ordinary stockholder. He had served as a member of the Board of Directors for some seven or eight years. He served the Credit Union as its President and must have been familiar with its Charter and By-Laws. Plaintiff was instrumental in establishing the quarterly dividend payment policy and knew that such policy had been adopted on a trial basis. He was advised at the annual stockholders meeting that quarterly dividends might be a “one time only deal” and that such policy would be reviewed in light of the Credit Union’s finances. Plaintiff was not at liberty to close his eyes and ears to all this information and now demand payment of a dividend he would have received had the 1973 dividend policy been continued solely by reason of the fact that he was not advised of the State Auditor’s criticism. In any event the plaintiff, like other shareholders, joined the Credit Union and agreed to be bound by its charter and by-laws. The defendant does not contract with any of its shareholders to positively pay a dividend certain either quarterly, semi-annually or annually. The Credit Union, acting through its board of directors, is not obligated to pay any dividends whatsoever. The by-laws authorize the board to declare dividends but the payment is discretionary on an annual basis the amount of any such dividend depending upon current earnings remaining after setting aside the reserve required by law. Being under no obligation to pay dividends defendant was clearly not required to notify its shareholders of a change in dividend payment policy.

Plaintiff knew, or he certainly should have known, that he had no absolute right to expect to receive the dividend which he now asserts is due him. Had the appellee left his funds in the credit union he would have received the dividend at the end of 1974 as did all the other shareholders. Under the by-laws dividends are payable only on shares fully paid up and outstanding on December 30th of the fiscal year. Plaintiff having redeemed all stock owned by him and his family long prior to the end of the fiscal year which terminated on December 30, 1974 he is not entitled to any dividend payment for the months of January, February and March, 1974.

For the above and foregoing reasons the judgment of the District Court is reversed and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed with prejudice. All costs of court on both the trial and appellate level are to be paid by plaintiff.

REVERSED AND RENDERED.

      . Plaintiff-Appellee sues for himself, individually, as head and master of the community of acquets and gains existing between him and his wife, Loretta Reddoch; and, as Administrator of the estate of his minor son, Tommy Reddoch.


author: HOOD, Judge.

text:
    Berkley DESSELLE, Individually and on behalf of his minor son, Keith B. Desselle, Plaintiff-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC HIGHWAYS, Defendant-Appellee.
    No. 5378.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.

      Edwards, Stefanski & Barousse by James M. Cunningham, III, Crowley, for plaintiff-appellant.
    Domengeaux & Wright by Jack C. Fruge, Jr., Lafayette, for defendant-appel-lee.
    Before HOOD, GUIDRY and PETERS, JJ.
   HOOD, Judge.

This suit was instituted by Berkley Des-selle, individually and on behalf of his minor son, Keith B. Desselle, seeking damages largely for personal injuries sustained by young Desselle when a motorcycle which he was operating struck a hole in a public highway. The defendant is State of Louisiana, Through the Department of Public Highways. The trial court rendered judgment in favor of defendant, rejecting plaintiff’s demands. Plaintiff appealed.

The issues presented are whether defendant was negligent in having failed to repair the above defect in the highway before the accident occurred, and, if so, whether young Desselle also was negligent with the result that plaintiff is barred from recovering.

The accident occurred about 5:00 P.M., on April 21, 1973, on Louisiana Highway 700 in Lafayette Parish. Young Desselle and his friend, Randall Atkinson, were operating or driving their motorcycles north on that highway at that time. They were traveling side by side, with Desselle on the right of Atkinson, and there were no passengers on either motorcycle. The front wheel of Desselle’s vehicle struck a hole or defect on the right or east side of the highway, causing Desselle to be thrown over the handlebars and to fall and slide on the surface of the highway. As a re-suit of that accident, he sustained injuries which form the principal basis for this suit.

The highway at that point is a straight, level, two-lane, blacktopped thoroughfare. The weather was good, the sun was shining, the surface of the road was dry and visibility was good when the accident occurred. There were no other vehicles on the highway in that vicinity at that time.

Young Desselle was IS years of age. He and his friend were traveling at a speed of about 50 miles per hour as they approached the place where the accident occurred. Although plaintiff’s son had driven his motorcycle on other roads in that immediate vicinity, he had not traveled over this particular stretch of highway before the date of this accident.

Immediately before and at the time the accident occurred, Atkinson was riding in the northbound lane of traffic, about one foot from the center line of the highway, and young Desselle was riding about three or four feet on the right or east side of him, nearer the east edge of the blacktopped slab. Desselle did not see the hole in the road until the instant he struck it, and he did not apply his brakes or veer to either side in an effort to avoid striking it. He stated that when he saw the hole “it was there,” or that he was “right on it,” and that he didn’t have time to apply his brakes or avoid striking it. He also explained that if he had veered to his left he would have collided with Atkinson, and that he therefore “just hit the hole.” He was unable to describe the depression in the highway or to estimate its dimensions.

Desselle apparently took his eyes off the road momentarily just before he reached .the point where the accident occurred, and we think that explains why he did not see the defect in the highway until the moment he struck it. He testified that:

“Right after we crossed the bridge Randall tried to tell me something so I turned as I was driving and I was driving my bike when I saw the hole. When I saw it it was there and I couldn’t do anything but just hit the hole and I just flipped over I couldn’t do anything about it.”

The witnesses differ as to the size, depth and location of the hole, and as to the distance at which it should have been visible to Desselle.

Plaintiff, Berkley Desselle, visited the site of the accident two or three days after it occurred, and he estimated the size of the hole as being two feet in diameter and 10 to 12 inches deep. He determined that the hole was located “right at where the wheels of the car passed,” and that it was about 150 to 175 feet north of a bridge on the highway. He testified that he could see the hole from the bridge, that is, when he was 150 to 175 feet from it, but he explained that he knew that the hole was there, and that “if somebody that wasn’t used to it, you’d have to be right on it.”

Joseph M. Bertrand, Jr., a relative of plaintiff by marriage, traveled over that highway regularly twice a day. He could not estimate the size or depth of the hole, but he stated that the hole “didn’t come out in the tire tracks,” but only “to the tire tracks.” He felt that the driver of an automobile could and should see the hole when he was about 60 feet from it.

Nelson Arceneaux, a foreman for the Highway Department, described the hole as being about two and one-half feet wide, four feet long and from two and one-half to three inches deep. He stated that he had never seen a hole in any road that was 10 to 12 inches deep. He placed the location of the hole as being on the east side of the road, “right to the edge of the blacktop,” and from 300 to 400 feet north of a bridge on that highway. He testified that a motorist approaching the hole from the south could see it at least from 100 to 200 feet before he reached it.

Daniel Leger, who resides near the site of the accident and travels over the highway there twice a day, felt that the hole was three feet wide, four or five feet long, and two or three inches deep. He expressed no opinion as to the distance at which a motorist could see it.

Atkinson, the only eye witness to the accident other than plaintiff’s son, did not testify at the trial.

The trial judge did not indicate in his reasons for judgment what he concluded as to the size, depth and location of the above hole in the highway, and neither did he make a specific finding as to the distance within which a motorist or motorcyclist approaching from the south should have seen it. He found that the defendant was negligent in allowing the hole to exist in the condition it was in at the time of the accident, but he also concluded that “plaintiff, Keith Desselle, was contributorily negligent in not avoiding the hole in question as apparently others who traveled the roadway in question were able to do.” Since the trial judge found that young Desselle was negligent in not avoiding the hole, it is apparent that he felt that the latter should have seen the defect in the highway in time to enable him to stop or to veer around it and thus avoid an accident.

The evidence convinces us that the hole was about two and one-half feet wide, four feet long and from two to three inches deep. It was located along the east edge of the highway, extending about two and one-half feet into the blacktopped portion of it. We think young Desselle could and should have observed the defect in the highway at least when he reached a point about 60 feet from it.

The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the roadway. The duty of the Department of Highways is only to see that the state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974); Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3 Cir. 1975).

A motorist whose attention has not been called to an obstruction or peril in the highway ordinarily has the right to presume that the roadway is reasonably safe for ordinary traffic. His right to such a presumption, however, does not relieve him of his duty to maintain a proper lookout, to see all obstructions or perils on the highway ahead of him as soon as he reasonably should see them, and to avoid striking those obstructions when he can do so. Ortego v. State Farm Mutual Automobile Insurance Company, 295 So.2d 593 (La.App. 3 Cir. 1974).

The driver of a motor vehicle, including a motorcycle, is under a never ceasing duty to maintain a proper lookout and to see what he reasonably should have seen. His failure to see that which he should have seen constitutes negligence. He is required to maintain such control over the speed and operation of his vehicle as to permit him to stop within the range of his legal and proper lookout. There are exceptions to this rule, but those exceptions apply only in situations where the accident occurs suddenly and without warning, or where it results from a dangerous condition, in the nature of a trap, which could not be detected by a driver who is maintaining a proper lookout and proper control over his vehicle. DeGregory v. State, Department of Highways, 192 So.2d 834 (La.App. 1 Cir. 1966); Dabov v. Allstate Insurance Company, 302 So.2d 697 (La.App. 3 Cir. 1974).

Applying the above principles of law to the facts in the instant suit, we conclude that young Desselle was negligent in having failed to maintain a proper lookout as he approached the place where the accident occurred. We think he could have avoided the accident if he had observed the defect in the highway as soon as he reasonably should have seen it.

Keith Desselle explained in one part of his testimony that he didn’t veer to his left because he would have hit the Atkinson motorcycle. We cannot accept that explanation. One reason is that Desselle makes it clear in his testimony that he did not see the hole at all until the moment he struck it and that it then “was too late to do anything about it.” The presence of the Atkinson motorcycle on his left thus had nothing to do with the occurrence of the accident. Secondly, if young Desselle had seen the defect in the highway as soon as he reasonably should have seen it, and he believed at that time that Atkinson was too close to enable him safely to veer to his left, then we believe that he could have increased or decreased his speed slightly before veering and that would have enabled him to avoid the hole without striking his companion. Young Desselle apparently concedes that he could have avoided the accident in that manner, despite the presence of Atkinson on his left, it he had been maintaining a proper lookout. He testified:

“Q. Do you see what I am getting at. If at first you had seen the hole, I want to know if you had enough room to veer left. You hit the road you were on the right side of the road, would you have had enough room to veer left without hitting Randall to avoid the bump ?
“A. I presume I could have done it if I would have seen it, the hole, but I wouldn’t know unless I had seen the hole and tried it. I couldn’t tell you.
“Q. Let’s say you didn’t have enough room ? Could you have also slowed down your bike and veered left behind Randall and veered later behind him?
“A. Yes, I could of.”

We agree with the trial court that young Desselle was negligent in having failed to exercise reasonable care in observing the highway ahead of him as he approached the place where this accident occurred. His negligence was a proximate cause of the accident, and it bars plaintiff from recovering.

Having concluded that plaintiff is barred from recovery because of his son’s contributory negligence, it is unnecessary for us to consider the question of whether the defendant Department of Highways was negligent.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.