author: FORET, Judge.

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. NATIONAL ADVERTISING COMPANY, Defendant-Appellant.
    No. 6272.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.

      Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

The State of Louisiana, through the Department of Highways instituted this suit against National Advertising Company pursuant to LSA-R.S. 48:461 et seq., entitled “Control of Outdoor Advertising and Junkyards,” to compel the removal of numerous outdoor advertising signs owned by defendant along Interstate Highways Nos. 10 and 210 in Calcasieu Parish. This suit was consolidated, in the trial court and on appeal, with eight other similar suits against other outdoor advertising companies. Separate judgments are being rendered on this date in each case.

This litigation has previously been before this court on an exception of prematurity where we held that the effective date of LSA-R.S. 48:461 et seq. was July 27, 1966. State of Louisiana, Through the Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 304 So.2d 779 (La.App. 3 Cir. 1974), writs refused La., 305 So.2d 539. All of the signs in question were erected between July 27, 1966 and January 31, 1972, the latter being the date of the “compliance agreement” between the State of Louisiana and the U. S. Department of Transportation. These dates are significant because it is during this “hiatus” period that appellant contends there were no effective rules determining what areas were appropriate for outdoor advertising. The issues presented on this appeal are:

(1) Is appellant entitled to a judicial determination of what constitutes an “un-zoned commercial or industrial area appropriate for outdoor advertising” pursuant to LSA-R.S. 48:461.4(d)? If so, what criteria should govern that determination?

(2) Is the doctrine of equitable estoppel applicable?

(3) Whether State standards exceeded Federal regulations in violation of LSA-R.S. 48:461.3 at the time these signs were erected?

(4) Whether these signs are “legal” by virtue of the “compliance agreement”?

(5) Has the State’s cause of action, by virtue of LSA-R.S. 48:461 et seq., prescribed pursuant to LSA-R.S. 9:5625?

(6) Does LSA-R.S. 48:461 et seq. violate the First and Fourteenth Amendments to the U. S. Constitution and the corresponding provisions of the 1921 and 1974 Louisiana Constitutions?

(7) Does LSA-R.S. 48:461 et seq. unconstitutionally delegate legislative authority to an administrative agency?

A brief -history of LSA-R.S. 48:461 et seq. is necessary in order to provide a better understanding of the disposition of this case. In 1965 the U. S. Congress enacted the “Highway Beautification Act,” 23 U.S.C. § 131 et seq., in order to encourage the states to control outdoor advertising along the interstate and primary highway systems, in a manner consistent with a “national policy” declared in the act. After January 1,1968, the Secretary of Commerce (now, Transportation) was authorized to reduce the federal aid highway funds, which would otherwise be apportioned to a state, by 10% if the Secretary determined the state had not made provision for effective control of outdoor advertising. 23 U.S.C. § 131(b).

In response to the stimulus provided by the “Highway Beautification Act”, the Louisiana Legislature adopted Act 474 of 1966, presently LSA-R.S. 48:461 et seq. The purpose of the Act is stated generally in LSA-R.S. 48:461 as follows:

“The Legislature finds and declares that outdoor advertising and maintenance of junkyards are legitimate commercial uses of private property and, for the purpose of promoting the public safety, health, welfare, convenience and enjoyment of public travel, to protect the public investment in public highways, and to preserve and enhance the scenic beauty of lands bordering public highways, it is hereby declared to be in the public interest to regulate and restrict the erection and maintenance of outdoor advertising and the establishment, operation and maintenance of junkyards in areas adjacent to the Interstate and Primary Highway Systems within this State.”

In order to provide the proper background for the sections of the statute at issue here, we quote a large portion of it as follows:

§ 461.2 Limitations of outdoor advertising devices
No outdoor advertising shall be erected or maintained within six hundred sixty feet of the nearest edge of the right of way and visible from the main-traveled way of the interstate or primary highways in this state except the following:
(a) Directional and other official signs and notices, which shall include but not be limited to signs and notices pertaining to natural wonders, scenic and historic attractions, as authorized or required by law.
(b) Signs, displays and devices advertising activities conducted on the property upon which they are located.
(c) Signs, displays and devices advertising the sale or lease of property upon which they are located.
(d) Signs, displays and devices located in areas which are zoned industrial or commercial under authority of law.
(e) Signs, displays and devices in un-zoned commercial or industriai areas which areas shall be determined from actual land uses and defined by regulations to be promulgated by the department. (Emphasis added.)
§ 461.3 Regulation of advertising
The department is hereby authorized to promulgate regulations governing the issuance of permits, including the collection of reasonable fees therefor, for the erection and maintenance of outdoor advertising coming within the exceptions contained in subsections (a), (d) and (e) of R.S. 48:461.2, consistent with the safety and welfare of the traveling public, and as may be necessary to carry out the policy of the state as declared in this Part, and consistent with the national standards promulgated by the Secretary of Commerce pursuant to Title 23, United States Code.
Such regulations shall not exceed the standards required by federal law and the Secretary of Commerce to entitle the department to receive the maximum amount of federal-aid highway funds. (Emphasis added.)
§ 461.4 Recognition of customary uses
Notwithstanding any other provisions of this act, outdoor advertising shall be permitted in areas zoned industrial or commercial and in unzoned commercial and industrial areas as hereafter defined, subject to the following regulations which are declared to be consistent with customary use in this state:
(a) Lighting
1. No revolving or rotating beam or beacon of light that simulates any emergency light or device shall be permitted as part of any sign. Flashing red, green or amber devices shall not be permitted upon a sign; however, illuminated signs which indicate such customary public service information as time, date, temperature or other similar information shall not be prohibited.
2. External lighting, such as flood lights, thin line and gooseneck reflectors are permitted, provided the light source is directed upon the face of the sign and is effectively shielded so as to prevent beams or rays of light from being directed into any portion of the main traveled way of the interstate or federal-aid primary highway.
3. No sign shall be permitted to project into the direct line of vision of any official traffic control signal, from any point in a moving traffic lane of an interstate or federal-aid primary highway within six hundred sixty feet of and approaching such signal.
(b) Size of Signs
1. For signs which are located within six hundred sixty feet of the nearest edge of the right of way on Interstate and Primary systems the maximum area of a sign face shall be twelve hundred square feet.
2. All dimensions include border and trim, but exclude supports.
3. Double-faced or V-type signs shall be considered one sign structure. Maximum size of signs shall apply to each face. Two signs shall be permitted in any facing provided that the total area of such facing shall not exceed twelve hundred square feet.
4. The highest point of any signs, except roof signs, shall not extend more than sixty feet measured from either the ground level at its supports or the nearest edge of the right of way of the interstate or primary highway, which ever is higher in elevation.
(c) Spacing of signs
1. Signs shall conform to all applicable building codes and ordinances.
2. No two sign structures facing in the same direction subject to regulations under this act shall be spaced less than one hundred fifty feet apart unless separated by a building, structure, or roadway.
3. All signs are required to maintain the same set-back as other principal buildings and structures or the establishing building lines, whichever is less.
4. No sign may be located in such a manner as to prevent the driver of a vehicle from having a clear, unobstructed view of official signs and approaching merging or intersecting traffic and driveways.
(d) “Commercial and industrial areas” consistent with zoning principles and standards applicable in this state, include: all land so zoned, all unzoned land within one thousand feet of any commercial or industrial activity other than outdoor advertising; all land lying within one thousand feet of any two such unzoned areas; and all other unzoned lands appropriate for outdoor advertising which are determined to be unzoned commercial or industrial areas by any court of this state.
(e) The following signs shall not be permitted:
1. Signs which are obsolete.
2. Signs which are illegal under state laws or regulations.
3. Signs that are not clean and in good repair.
4. Signs that are not securely affixed to a substantial structure.
5. Signs which attempt or appear to attempt to regulate, warn, or direct the movement of traffic or which interfere with, imitate or resemble any official traffic sign, signal, or device.
6. Signs which are erected or maintained upon trees or painted or drawn upon rocks or other natural features.
7. Signs which are not consistent with the standards in this Part.
The department, however, is authorized to modify, vary or supplement the above restrictions if necessary to comply with the standards approved by the Congress of the United States and to insure that the department will receive the maximum amount of federal-aid funds as provided in the Federal Highway Beautification Act of 1965. (Emphasis added.)
# * * * * *
§ 461.6 Compensation for removal of advertising
The department shall acquire by donation, purchase, lease, exchange or expropriation and, where required by state or federal law, shall pay just compensation upon the removal of the following outdoor advertising signs, displays and devices:
(a) Those lawfully in existence on the effective date of this Part;
(b) Those lawfully on any highway made a part of the interstate or primary systems on or after the effective date of this Part and before January 1,1968; and
(c) Those lawfully erected on or after January 1, 1968.
Such just compensation is authorized to be paid only for the taking from the owner of such sign, display or device of all right, title, leasehold and interest in such sign, display or device; and the taking from the owner of the land on which the sign, display or device is located of the right to erect and maintain such signs, displays and devices thereon.
However, notwithstanding the above provisions, such payment shall be made by the department upon the removal of any sign, display or device erected along the interstate or primary systems prior to January 31, 1972 if seventy-five percent of the cost thereof is made available from federal sources.
§ 461.7 Unlawful advertising
Unlawful advertising shall be any sign, display or device which violates the provisions of this Part. The department shall give thirty days notice, by certified mail, to the owner of such device to remove same if it is a prohibited device or cause it to conform to regulations if it is an authorized device. If the owner of such device fails to act within thirty days, as required in the notice, the department shall remove the advertising device at the expense of the owner thereof.
* * * * * *
§ 461.15 Agreements with federal government
The department may enter into agreements with the Secretary of Commerce, as provided by Title 23, United States Code,1 relating to the control of outdoor advertising and of junkyards in areas adjacent to the Interstate and Primary systems, including the establishment and operation of information centers at safety rest areas, and may take action in the name of the State to comply with the terms of such agreement.

The first issue presented involves the interpretation of LSA-R.S. 48:461.4(d) which provides in part: “ ‘Commercial and industrial areas’ consistent with zoning principles and standards applicable in this state, include; ... all other unzoned lands appropriate for outdoor advertising which are determined to be unzoned commercial or industrial areas by any court of this state.” The prohibition contained in section 461.2 does not apply to signs in “unzoned commercial or industrial areas.” LSA-R.S. 48:461.2(e), 461.4(d). Appellant suggests that the signs in question were located in such an area and that we can now make the determination envisioned by the statute in order to find that these signs were “lawfully” erected, entitling appellant to just compensation for their removal. LSA-R.S. 48:461.6.

In order to ascertain the meaning of Section 461.4(d), it is necessary to discuss the “compliance agreement” between Louisiana and the Federal Government which was signed on January 31, 1972. LSA-R.S. 48:461.15 authorized the Louisiana Department of Highways (department) to enter into such an agreement with the Secretary of Commerce (Succeeded by the Secretary of Transportation). Section 1(D) of the agreement defined “unzoned commercial or industrial areas” as follows:

“Unzoned commercial or industrial areas mean those areas which are not zoned by State or local law, regulation, or ordinance and on which there is located one or more permanent structures devoted to a commercial or industrial activity or on which a commercial or industrial activity is actually conducted, whether or not a permanent structure is located thereon, and the area along the highway extending outward 800 feet from and beyond the edge of such activity. Each side of the highway will be considered separately in applying this definition.
“All measurements shall be from the outer edges of the regularly used buildings, parking lots, storage or processing, and landscaped areas of the commercial or industrial activities, not from the property lines of the activities, and shall be along or parallel to the edge of pavement of the highway.”

No mention of the judicial determination provided by Section 461.4(d) is repeated in the compliance agreement. It is apparent that the department has the power to vary the restrictions contained in LSA-R.S. 48:461.4 if necessary to comply with federal standards and insure that the department will receive the maximum amount of federal aid funds available. LSA-R.S. 48:461.4 (last paragraph). Additionally, the statute envisions departmental regulations, not exceeding federal standards, consistent with the safety and welfare of the traveling public and the national standards promulgated by the Secretary of Commerce. LSA-R.S. 48:461.3. It is undisputed that no regulations were promulgated by the department prior to the January 31, 1972 signing of the compliance agreement. More specifically, no regulations were enacted defining what constitutes an “un-zoned commercial or industrial area” by virtue of the authority provided by LSA-R.S. 48:461.2(e). However, when this litigation was previously before this Court, we stated:

“We cannot agree that the statute implies a legislative intent that it not become effective until the Department of Highways issued regulations defining ‘unzoned commercial or industrial areas.’ The statute itself, in R.S. 48:461.4(d), defines these ‘unzoned commercial or industrial areas’ with sufficient certainty that counsel for any outdoor advertising company could have informed his clients as to where he could and could not erect signs on interstate highways.” (Emphasis added.) State of Louisiana, Through the Department of Highways v. Lamar Advertising Co. of La., Inc., supra.

No court in Louisiana has ever determined what constituted “unzoned commercial or industrial areas” under section 461.-4(d). The trial judge held that it was too late for appellant to obtain a section 461.-4(d) judicial determination. We agree.

In the recent case of Hiway-Ads, Inc. v. State of Louisiana, Through the Department of Highways, 356 So.2d 501 (La.App. 1 Cir. 1977), the First Circuit Court of Appeal held that a section 461.4(d) judicial determination must be made prior to the erection of the sign. If this is not done and the signs are not authorized under any other provision of the statute, then they are considered unlawful. The court further stated: “The statute with its provisions for the issuance of permits for signs in accepted areas certainly envisions a prior judicial determination of the areas accepted under R.S. 48:461.4 (d).” We believe this view is consistent with the discussion above concerning the delegation of authority to the department in the statute itself. The judicial determination provided by Section 461.4(d), in light of the statute as a whole, was meant to be used prior to the erection of a sign during the “hiatus” period from July 27,1966, to January 31, 1972, when no departmental regulations on the subject existed. Since appellant did not utilize section 461.4(d) at the appropriate time, their signs must be considered unlawful. It follows that appellant is not entitled to compensation for the removal of unlawful signs. LSA-R.S. 48:461.7; 461.6.

Since we hold that appellant is not entitled to a judicial determination of what constitutes unzoned commercial and industrial areas appropriate for outdoor advertising, it is not necessary for us to consider what criteria should govern that determination.

The second issue presented concerns the applicability of the doctrine of equitable estoppel. Appellant contends that it relied upon the assurances of Frank Taylor, a Louisiana Highway Department official who died in 1972, to the effect that the department did not consider the statute effective until the compliance agreement was signed. Those signs which were later found to be in violation of the statute would be removed with the provision that the owners would be entitled to compensation, just as in an expropriation case. It is appellant’s contention, therefore, that if the signs are required to be removed, equitable estoppel mandates that the state pay compensation for their removal.

There are three elements of equitable estoppel: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975); Westenberger v. State, Department of Education, 333 So.2d 264 (La.App. 1 Cir. 1976). One who seeks to avail himself of the application of the principle must establish his right to do so with unusual clearness. Rodden v. Davis, 293 So.2d 578 (La.App. 3 Cir. 1974), writ denied La., 296 So.2d 832. To raise an equitable estoppel, the record must establish not only that the pleader relied upon a representation or other conduct, but also that he was justified in doing so. Justifiable reliance is fundamental. American Bank and Trust Company v. Trinity Universal Insurance Co., 251 La. 445, 205 So.2d 35 (La.1967); Porter v. Travelers Indem. Co., 313 So.2d 641 (La.App. 3 Cir. 1975); Westenberger v. State, Dept. of Education, supra. The burden of proving the facts to establish estoppel rests on the one relying on the doctrine. Union Oil Co. of California v. Touchet, 229 La. 316, 86 So.2d 50 (La. 1956); United Gas Pipeline Co. v. Bellard, 286 So.2d 109 (La.App. 3 Cir. 1973). The doctrine of equitable estoppel applies to the state to the same extent as it does to individuals. State ex rel. Sheli Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519 (La.1939); Prebensen & Blakstad v. Board of Commissioners, 241 F.Supp. 757 (1965).

The trial court concluded that appellant had not proven facts supporting equitable estoppel with sufficient clarity to establish the right to utilize the doctrine. We believe that the trial judge thoroughly explored this factual defense and correctly resolved this issue.

Several advertising executives testified that Mr. Taylor assured them that they would be entitled to compensation for the removal of the signs built during the “hiatus” period which were later discovered to be in violation of the statute. The trial court accepted their testimony at face value even though Mr. Taylor was unable to testify at trial. Be that as it may, the fallacy in appellant’s argument lies in what we find to be the appellant’s unjustified reliance upon the representations of Mr. Taylor, who was not highly placed in the hierarchy of department officials. Grady Carlisle, traffic and planning engineer for the department and Mr. Taylor’s immediate supervisor, testified that Mr. Taylor’s duties consisted of directing the permit and beautification unit of the department. Prior to 1966, his primary responsibility concerned the issuance of driveway permits, overweight load permits and operation of utility permits. He continued performing these duties in addition to the assigned beautification functions from 1966 to 1972. Mr. Taylor was in charge of making a complete inventory of the location, spacing, and size of all signs along the interstate and primary highway systems. At no time did Mr. Taylor’s responsibility include negotiating with the Department of Transportation. His duties could best be described as clerical in nature with minimal responsibility with regard to the Beautification Act.

It is of some significance to note that the advertising executives who claim they were misled were probably the most knowledga-ble people in the state when Act 474 of 1966 was passed. Ross Bannister, former chief counsel for the department, testified that he had never had so much help drafting a bill as he did on this one. He was referring to the assistance he received by the various advertising people and their attorneys who are involved in this case. Mr. Bannister testified that once the legislation was endorsed by the department and the advertising industry, passage of the bill was assured. It is difficult for this Court to imagine that the advertising executives involved in this case would rely upon Mr. Taylor’s assurance and disregard the abundance of other information at their disposal.

The third issue presented is whether state standards exceeded federal regulations in violation of LSA-R.S. 48:461.3 at the time these signs were erected. It is undisputed that there were no federal standards defining an unzoned commercial and industrial area between passage of Act 474 of 1966 and the signing of the compliance agreement on January 31, 1972. Appellant argues that since state standards could not exceed federal standards by virtue of the last paragraph of LSA-R.S. 48:461.3 and no federal standards existed during this period, no viable prohibitions existed against the erection of the signs in issue.

We find appellant’s contention without merit for several reasons. First, there is no “national standard” or federal definition of unzoned commercial or industrial areas. Such definitions are created only by virtue of agreements (such as the compliance agreement here) between the various states and the U.S. Secretary of Transportation. Second, the restrictions of section 461.3 are directed toward the regulatory power of the department, not to the regulations contained in the statute itself. Third, the limitation refers to national standards for the lighting, size, number, and spacing of directional and official signs which the Secretary of Transportation was authorized to promulgate by 23 U.S.C. § 131(c)(1). Fourth, state standards could not exceed federal regulations if the latter were non-existent at the time. Therefore, the national standards referred to do not play a role in determining the legality of the signs at issue in this appeal.

Appellant’s next contention is that the compliance agreement “legitimated” or “grandfathered” the signs in question. This argument ignores the plain meaning of the sections of the compliance agreement relied upon. Section IV of that agreement provides in part:

“The provisions contained herein pertaining to the size, lighting, and spacing of outdoor advertising signs permitted in zoned and unzoned commercial and industrial areas shall apply only to those signs erected subsequent to the effective date of this agreement . . . ” (emphasis added.)

Section V states that the effective date of the agreement is January 31, 1972. The above quoted section did not have the effect of legitimating signs which were unlawful because of their location, but only pertains to the size, lighting and spacing of outdoor signs.

Appellant suggests, in the alternative, that the state’s cause of action has prescribed by virtue of LSA-R.S. 9:5625, which provides in part:

“All actions civil or criminal, created by statute, ordinance or otherwise, . which may be brought by parishes, municipalities or their instrumentalities or by any person, firm or corporation to require enforcement of and compliance with any zoning restriction . . ., imposed by any parish, municipality or their instrumentalities . . ., must be brought within two years from the first act constituting the commission of the violation . . . (emphasis added.)

The clear and unambiguous language of the statute shows that it only applies to the enforcement of zoning laws imposed by parishes, municipalities and their instrumental-ities. The statute does not direct itself to the restrictions placed on outdoor advertising by the state or any of its agencies.

Appellant’s constitutional assault on LSA-R.S. 48:461 et seq. based upon the First and Fourteenth Amendments to the U. S. Constitution and the corresponding provisions of the 1921 and 1974 Louisiana Constitutions can be subdivided into three categories: First Amendment rights; deprivation of property without the payment of compensation; and, denial of equal protection.

Appellant correctly states that commercial speech is subject to some governmental regulation, but that such regulation is not without restraint. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), the U.S. Supreme Court stated:

“In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulations are surely permissible.”
* * * * * *
“We have often approved restrictions of that kind [time, place and manner restrictions] provided that they serve a significant governmental interest, and in so doing they leave open ample alternative channels for communication of the information.” See also Linmark Associates, Inc. v. Town of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977).

We believe that the statute withstands appellant’s First Amendment attack for two reasons. First, there remains open “ample alternative channels for communication of the information.” Not all outdoor advertising along the interstate highways is prohibited by the statute. “On premises” signs along with those in zoned commercial and industrial areas are permissible under the statute. LSA-R.S. 48:461.2(b) and 461.2(d). In addition, signs in unzoned commercial and industrial areas as defined by the compliance agreement are not prohibited. LSA-R.S. 48:461.2(e). Second, the statute is genuinely concerned with the geographical location of “speech” in order to promote legitimate governmental interests which are unrelated to the suppression of free expression. The legislature has stated that the control of outdoor advertising promotes “the public safety, health, welfare, convenience and enjoyment of public travel . [and] preserve^] and enhance[s] the scenic beauty of lands bordering public highways.” LSA-R.S. 48:461.

Appellant also argues that the statute deprives it of property without the payment of just compensation. Since we have found that the signs in question were erected unlawfully, appellant’s argument is without merit. The state is clearly not compelled to compensate one for the removal of property which was built in derogation of a valid law.

Additionally, appellant contends that LSA-R.S. 48:461 et seq. violates the state and federal constitutions by denying it the right to engage in lawful business and arbitrarily classifying otherwise lawful pursuits. Appellant argues that the statute contains arbitrary distinctions such as permitting “on premises signs” while prohibiting identical signs which happen to be “off premises”; and only prohibiting signs located adjacent to interstate or primary highways while permitting identical signs located elsewhere.

In City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), the U.S. Supreme Court stated:

“When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See e. g. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step-by-step, Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-65, 99 L.Ed. 563 (1955). In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e. g. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469 (1952), in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment. See, e. g., Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (1963).” [Footnote omitted]

The legislature declared the purpose of the statute in LSA-R.S. 48:461, supra (see the discussion pertaining to appellant’s First Amendment attack). We find the restrictions imposed by the statute to be “rationally related to a legitimate state interest”. The fact that aesthetic values are promoted in conjunction with the furtherance of safety of travel on the public ways does not indicate an abuse of the police power. City of Shreveport v. Brock, 230 La. 651, 89 So.2d 156 (La.1956). In addition, the U.S. Supreme Court has stated:

“The concept of the public welfare is broad and inclusive. See Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 424, 72 S.Ct. 405, 407, 96 L.Ed. 469. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled . ” Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).

We hold that the purposes of the statute expressed in LSA-R.S. 48:461 are within the legitimate scope of the police power. At the very least, the statute is sustainable as a “one step at a time” reform. Hiway-Ads, Inc. v. State of Louisiana, supra; See, Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

It is of some import to us that several other jurisdictions have upheld their respective outdoor advertising statutes against due process and equal protection attacks. Markham Advertising Co. v. State of Washington, 73 Wash.2d 405, 439 P.2d 248 (Wash.1968), appeal dismissed 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512, rehearing denied, 393 U.S. 1112, 89 S.Ct. 854, 21 L.Ed.2d 813; E. B. Elliott Adv. Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir.1970); Howard v. State Department of Highways of Colorado, 478 F.2d 581 (10th Cir.1973); Mississippi State Highway Commission v. Roberts Enterprises, Inc., 304 So.2d 637 (Miss.1974); National Advertising Co. v. State Highway Department, 230 Ga. 119, 195 S.E.2d 895 (Ga.1973).

The final issue presented is whether LSA-R.S. 48:461 et seq. constitutes an unlawful delegation of authority to an administrative agency. Appellant contends that the statute is unconstitutional because it contains a total abdication of legislative authority.

Appellant’s argument overlooks the fact that the source of the department’s power lies in the constitution itself. La.Const.1921 art. VI, § 19.3. Appellant suggests that the pertinent 1972 regulation defining “un-zoned commercial and industrial area” is subject to attack because the provisions of former Article VI, § 19.3 are now statutory. La.Const.1974 art. XIV, § 16. This argument ignores the fact that this litigation, and the action complained of, both occurred prior to the effective date of the new constitution. Such an interpretation is contrary to La.Const.1974 art. XIV, § 26 which prohibits the retroactive application of the 1974 constitution. In addition, the last paragraph of Article VI, § 19.3 of the 1921 constitution, specifically “validated and ratified” any similar legislation adopted at the regular session of the Legislature in 1966. We believe that any possible taint of impermissible power was removed thereby.

For the reasons assigned, the judgment of the trial court ordering the defendant to remove its signs in accordance with LSA-R.S. 48:461.7, is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by it bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. NATIONAL ADVERTISING COMPANY, Defendant-Appellant.
    No. 6276.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.

      Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana, Through the Department of Highways v. National Advertising Company, 356 So.2d 557 (La.App. 3 Cir. 1978), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by it bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. NATIONAL ADVERTISING COMPANY, Defendant-Appellant.
    No. 6278.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana, Through the Department of Highways v. National Advertising Company, 356 So.2d 557 (La.App. 3 Cir. 1978), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by its bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. LAMAR ADVERTISING CO. OF LOUISIANA, INC., Defendant-Appellant.
    No. 6273.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana, Through the Department of Highways v. National Advertising Company, 356 So.2d 557 (La.App. 3 Cir. 1978), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by it bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. LAMAR ADVERTISING CO. OF LOUISIANA, INC., Defendant-Appellant.
    No. 6275.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana, Through the Department of Highways v. National Advertising Company, 356 So.2d 557 (La.App. 3 Cir. 1978), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by it bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. LAMAR ADVERTISING CO. OF LOUISIANA, INC., Defendant-Appellant.
    No. 6280.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana, Through the Department of Highways v. National Advertising Company, 356 So.2d 557 (La.App. 3 Cir. 1978), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by it bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. WHITE ADVERTISING COMPANY, Defendant-Appellant.
    No. 6277.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana, Through the Department of Highways v. National Advertising Company, 356 So.2d 557 (La. App. 3 Cir. 1978), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by it bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. WHITE ADVERTISING COMPANY, Defendant-Appellant.
    No. 6279.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana, Through the Department of Highways v. National Advertising Company, 356 So.2d 557 (La.App. 3 Cir. 1978), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by it bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. INDUSTRIAL OUTDOOR DISPLAYS, Defendant-Appellant.
    No. 6274.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana, Through the Department of Highways v. National Advertising Company, 356 So.2d 557 (La.App. 3 Cir. 1978), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, each appellant to bear costs equal to the proportion which the number of signs in issue owned by it bears to the total number of signs in issue owned by all the appellants.

AFFIRMED.


author: HALL, Judge.

text:
    PAUL M. DAVISON PETROLEUM PRODUCTS, Plaintiff-Appellant, v. L. T. BROWN, CONTRACTOR, INC., et al., Defendants-Appellants-Appellees.
    No. 13479.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1978.
    Writs Granted and Denied May 19, 1978.

      Love, Rigby, Dehan & Love by Kenneth Rigby, Shreveport, for plaintiff-appellant, Paul M. Davison Petroleum Products.
    Bleich, Hogg & James, Wright by Howard W. Wright, Jr., Ruston, Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for defendant-appellee-appellant, Hartford Accident & Indemnity Company.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendants-appel-lees, L. T. Brown, Contractor, Inc. and L. T. Brown and A. D. MeCullen, Individually and as a partnership.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Paul M. Davison Petroleum Products, filed suit to recover the sum of $129,868.54 allegedly due for asphalt and other materials sold by plaintiff between July 10, 1970 and August 17, 1971 and used in connection with the construction of a portion of 1-20. Named defendants were (1) L. T. Brown Contractor, Inc., general or prime contractor with the Louisiana Department of Highways; (2) A. D. MeCullen and L. T. Brown, subcontractor to whom the materials were sold; and (3) Hartford Accident and Indemnity Company, surety of the contractor. The defendants answered generally denying the indebtedness and pleading payment and improper application of payments. After trial the district court, in written reasons for decision, found that there was a balance of $3,194.40 due on the account and judgment was rendered for that amount, together with seven percent interest from the date plaintiff filed a statement of the amount due pursuant to the Public Works Act, LSA-R.S. 38:2241, et seq.

Plaintiff appealed seeking an increase in the judgment to the full amount sued for. Defendants either appealed or answered the appeal seeking a small reduction in the amount of the judgment and a modification of the judgment to provide for legal interest only from the date of judicial demand.

Over a period of several years plaintiff furnished asphalt and other supplies and materials to State Hot Mix Corporation, a corporation engaged in highway construction work, frequently as subcontractor under contracts held by various entities in which L. T. Brown and A. D. McCullen were principals. The asphalt work on the 1-20 project was originally subcontracted by L. T. Brown Contractor, Inc. to State Hot Mix Corporation. In August 1969, while the 1-20 project was in progress but before any asphalt work had been done, State Hot Mix Corporation was in serious financial difficulty. McCullen and Brown, as a joint venture, undertook the completion of State Hot Mix Corporation’s subcontracts, most of which were for projects on which McCullen and Brown companies were the prime contractors. At that time, State Hot Mix Corporation owed plaintiff $102,-135.94 for materials purchased in connection with projects other than the 1-20 project. Plaintiff continued to sell material in connection with the various projects, billing State Hot Mix Corporation monthly on a running or open account basis. Some payments were made on the account. In March 1970, at which time there was a balance of $172,625.62 owed to plaintiff, plaintiff transferred the entire State Hot Mix account to the names of McCullen and Brown and started billing McCullen and Brown on the same basis. Thereafter, plaintiff continued to sell petroleum products to McCullen and Brown in connection with various projects, including the 1-20 project for which materials were furnished from July 1970 to August 1971. The 1-20 project was accepted by the Department of Highways in October 1971 and in November plaintiff timely filed its lien and privilege, claiming a balance due for materials sold in connection with that project of $129,868.54.

During the period of time after August 1969, substantial payments were made to plaintiff. If payments were designated for a particular project, they were so applied by plaintiff. If payments were not so designated, plaintiff applied the payments to the oldest unpaid invoices in the running or open account, including the invoices underlying the $102,000 owed by State Hot Mix Corporation on August 31, 1969 when McCullen and Brown stepped into the picture.

On September 29, 1969, a payment of $35,000 was made with a State Hot Mix Corporation check, without designation of how the payment was to be applied. Plaintiff was entitled to apply this payment to the oldest invoices owed by State Hot Mix. Thereafter, all payments were made by McCullen and Brown.

The central issue in this lawsuit is whether McCullen and Brown assumed and agreed to pay the State Hot Mix debt incurred pridr to August 1969, in which case payments subsequently made by McCullen and Brown were properly applied to that debt, leaving a balance owing on the 1-20 project of approximately the amount sued for. If McCullen and Brown did not assume and agree to pay that debt, then the payments were improperly applied to that debt by plaintiff and the balance due on the 1-20 project is substantially reduced. Plaintiffs principal specification of error is that the trial court erred in holding that the evidence failed to establish that McCullen and Brown assumed the indebtedness of State Hot Mix Corporation.

Plaintiff relies principally upon the testimony of its office manager, Lovis Colvin. Colvin testified that in March 1970, Reese Hood, office manager for McCullen and Brown, called him on the telephone, advised him that State Hot Mix Corporation was no longer in existence, that the account should be transferred to the names of McCullen and Brown, a joint venture, and that McCullen and Brown would be responsible for the account. Hood’s version of the telephone conversation was that he instructed Colvin to transfer only that portion of the account incurred after August 1969 when McCullen and Brown undertook to complete the. State Hot Mix subcontracts. Hood testified he had repeatedly asked Colvin and the Davisons to separate the State Hot Mix Corporation and the McCullen and Brown accounts since August and on numerous occasions objected to carrying the old State Hot Mix- Corporation balance on the current statements. Colvin denied Hood’s version and denied that any protests were ever made until after this suit was filed. James Davison, one of the partners in the plaintiff-partnership, testified that no protest was ever made to his knowledge. The other partner, Paul Davison, died after suit was filed and before the case went to trial.

McCullen and Brown denied that they ever intended or did, in fact, assume or agree to pay the State Hot Mix Corporation debt which existed when they took over in August 1969. They denied authorizing Hood to make any such agreement and testified their instructions to Hood were to get only that portion of the account incurred after August transferred to their names.

Plaintiff suggests that accounting entries appearing on the books of State Hot Mix Corporation and of the joint venture indicate an assumption of the debt. Plaintiff suggests that its version is further corroborated by the fact that some other debts of State Hot Mix Corporation, incurred prior to August 1969, were paid by McCullen and Brown.

The issue is entirely factual and was resolved contrary to plaintiff’s position by the trial court which carefully analyzed arid weighed the evidence. The burden was on plaintiff to prove an express agreement and a promise by McCullen and Brown to pay the preexisting debt of the Corporation, in order to support its application of payments to that debt. The testimony of the plaintiff’s office manager, only obliquely corroborated by other circumstances, was insufficient to meet this burden. There was no evidence that either McCullen or Brown ever made such an agreement or promise.

It should be noted that defendants objected to the admission of any parol evidence of a promise by defendants to pay the debt of State Hot Mix, relying on LSA-C.C. Art. 2278(3) which provides that parol evidence shall not be received to prove any promise to pay the debt of a third person. The trial court correctly considered all of the evidence, including parol evidence, which was admissible under a well-recognized exception to Article 2278. If the agreement to pay is not made primarily to answer for another but is impelled from the pecuniary or business motives of the prom-issor, then the promise to pay is, in effect, a new and independent agreement and parol evidence is admissible to establish same. Wallenburg v. Kerry, 16 La.App. 221, 133 So. 823 (2d Cir. 1931); Schloegel v. New Orleans Disposal Service, 261 So.2d 108 (La.App. 4th Cir. 1972); Collier v. Brown, 11 La.App. 567, 141 So. 405 (2d Cir. 1932); Rube v. Pacific Insurance Company of New York, 131 So.2d 240 (La.App. 1st Cir. 1961); Flick v. Salloum, 163 So.2d 143 (La.App. 4th Cir. 1964); Pace v. Rizzuto, 182 So.2d 809 (La.App. 4th Cir. 1966). In this case, as prime contractors on the 1-20 and other projects, McCullen and Brown had pecuniary and business interests that would be served by seeing that the debts of its subcontractor were paid. Had they made a promise to pay the debt of State Hot Mix Corporation, it would come within the exception and be provable by parol evidence. The holding of the trial court in this case, however, was that even considering the pa-rol evidence offered, plaintiff 'failed to prove the promise to pay. The trial court’s finding is supported by sufficient evidence. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The effect of this holding that McCullen and Brown did not assume the debt owed by State Hot Mix Corporation is to make plaintiff’s application of payments paid by McCullen and Brown to that debt improper and, consequently, the balance due on the running account attributable to the 1-20 project is reduced by the amount improperly applied.

The trial court reduced the amount due by $102,135.94, the amount owed by State Hot Mix in August 1969. As pointed out earlier, a payment of $35,000 made by State Hot Mix was properly applied to that debt, so the amount of reduction should be $102,-135.94, less $35,000, or $67,135.94. Stated otherwise, the amount of the judgment in favor of plaintiff should be increased by $35,000.

The trial court further found that $17,271.33 of the amount claimed was for a service charge of one percent per month made by plaintiff without having been agreed to by defendants. Plaintiff is not entitled to charge interest or a service charge without an express agreement in writing. LSA-C.C. Art. 2924. See also Southern Equipment & Tractor Company of Shreveport, Inc. v. A. D. McCullen and L. T. Brown, et al., 319 So.2d 511 (La.App. 2d Cir. 1975).

The amount plaintiff sought to recover also did not take into account a $7,266.87 credit memo issued by plaintiff to defendants adjusting the price for certain products billed in excess of the amount which plaintiff had agreed to charge. Although plaintiff claims the credit was to be allowed only if defendants paid the balance due in full, the evidence supports a finding that there was an overcharge and the adjustment was properly made by the trial court.

Defendants point out three additional credits which should have been allowed against the account. One is a nonlienable transportation charge of $228; another is a charge to L. T. Brown, Inc., in the amount of $290.47 that should not have been included in the McCullen and Brown account; and the other is an error in a charge for asphalt of $24.72; or a total of $543.19. The judgment will be amended to reflect these credits.

Legal interest on the balance due on an open account is allowable only from date of judicial demand. LSA-C.C. Art. 1938; Mochitta v. Lemak, 165 So.2d 568 (La.App. 1st Cir. 1964). The judgment will be amended to provide for legal interest from date of judicial demand rather than from date of filing the lien and privilege.

For the reasons assigned, the judgment of the district court is amended to increase the amount thereof to $37,651.24 and to provide for legal interest thereon from date of judicial demand until paid. As amended, the judgment is affirmed. Costs of the appeal are assessed to the defendants in the same manner as provided in the judgment appealed from.


text:
    Elmore Douglass GREAVES v. CANTON EXCHANGE BANK.
    No. 50187.
    Supreme Court of Mississippi.
    March 22, 1978.
    Elmore D. Greaves, Jackson, for appellant.
    Cain, Cain & Ritchey, J. M. Ritchey, Bentley E. Conner, Canton, for appellee.
   Appeal from Chancery Court, Madison County; E. G. Cortright, Chancellor.

Before ROBERTSON, P. J., SUGG and WALKER, JJ., and WILLIAM H. BIZ-ZELL, Commissioner.

AFFIRMED.


text:
    Mrs. C. D. MILAM v. RIVERSIDE CHEMICAL COMPANY, INC.
    No. 50179.
    Supreme Court of Mississippi.
    March 22, 1978.
    Parker, Averill, Funderburk & Butts, David Butts, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy W. Mitchell, III, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

Before PATTERSON, C. J., BROOM and BOWLING, JJ., and DARWIN MAPLES, Commissioner.

AFFIRMED.


text:
    Dorothy (Casey) REDD v. WATSON CHEVROLET, INC. (formerly named Roberts Chevrolet, Inc.)
    No. 50183.
    Supreme Court of Mississippi.
    March 22, 1978.
    Laurence Y. Mellen, Cleveland, for appellant.
    Campbell & DeLong, Roy D. Campbell, Jr., Greenville, for appellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

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

AFFIRMED.


text:
    GEORGIA-PACIFIC CORPORATION v. ESTATE of Randolph C. BRADY.
    No. 50193.
    Supreme Court of Mississippi.
    March 22, 1978.
    Wells, Wells, Pittman & Wicker, Crymes G. Pittman, Rexford T. Brown, Jackson, for appellant.
    E. Howard Eaton, Taylorsville, for appel-lee.
   Appeal from Circuit Court, Smith County; George B. Grubbs, Judge.

Before ROBERTSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    William Olin BALL v. Wilma WALDROP.
    No. 50425.
    Supreme Court of Mississippi.
    March 22, 1978.
    Stribling & King, F. Kent Stribling, Jackson, for appellant.
    Michael B. Martz, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before PATTERSON, C. J, SMITH, P. J., and WALKER, J.

AFFIRMED.


text:
    James JOHNSON v. STATE of Mississippi.
    No. 50553.
    Supreme Court of Mississippi.
    March 22, 1978.
    Brewer, Deaton & Evans, Billy B. Bowman, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; B. B. Wilkes, Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    Gerald T. HANSOM, III v. STATE of Mississippi.
    No. 49374.
    Supreme Court of Mississippi.
    March 22, 1978.
    Carl H. Joffe, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

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

PETITION FOR APPEAL DENIED.

SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE and COFER, JJ.


author: SUGG, Justice,

text:
    John L. PEARSON v. The FARMERS COOPERATIVE (AAL).
    No. 49907.
    Supreme Court of Mississippi.
    March 22, 1978.
    Liston, Crull & Gibson, Luther P. Crull, Jr., Winona, for appellant.
    Murray L. Williams, Water Valley, for appellee.
   EN BANC.

SUGG, Justice,

for the Court.

REVERSED AND REMANDED.

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

COFER, J., took no part.


text:
    Connie W. PENNINGTON v. Wayne PENNINGTON.
    No. 50154.
    Supreme Court of Mississippi.
    March 22, 1978.
    Thomas R. Mayfield, Jackson, for appellant.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
   Appeal from Chancery Court, Smith County; J. W. Walker, Chancellor.

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

AFFIRMED.

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


author: LEE, Justice,

text:
    CLOW CORPORATION et al. v. J. D. MULLICAN, INC., et al.
    No. 50060.
    Supreme Court of Mississippi.
    March 22, 1978.

      Watkins, Pyle, Ludlam, Winter & Stennis, Walker W. Jones, III, Ross P. Bass, Jr., Betty A. Morgan, Jackson, for appellants.
    Overstreet & Kuykendall, N. W. Over-street, Jr., Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Jackson, for appel-lees.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

J. D. Mullican, Inc. [Mullican] filed suit in the Chancery Court, First Judicial District of Hinds County, against Clow Corporation [Clow] and Impar Enterprises [Impar] alleging that they breached their subcontract in failing to complete same, and against Insurance Company of North America [INA] for the amount of its performance bond covering Clow and Impar. Decree was entered in favor of Mullican against Clow and Impar in the sum of thirty-six thousand eight hundred nineteen dollars thirty-five cents ($36,819.35) and against INA in the sum of thirty-four thousand three hundred eighty dollars ($34,380). Clow appeals. Judgment was entered for INA against Clow in the sum of thirty-four thousand three hundred eighty dollars ($34,-380), the amount of its bond, together with three thousand dollars ($3,000) attorneys’ fees. Clow appeals and INA cross-appeals, claiming that the attorneys’ fees were not reasonable. Mullican cross-appeals because attorneys’ fees were not allowed it.

The assigned errors are interrelated and the following may be discussed together:

(1) The trial court erred in holding that Burrows had apparent authority to execute the subcontract and performance bond.

(2) Burrows did not have apparent authority to bind Clow Corporation on the performance bond.

(3) The trial court erred in overruling objections of Clow Corporation to the admission of certain documents in violation of the parol evidence rule.

(4)The court erred in not directing a verdict for Clow Corporation against J. D. Mullican and Insurance Company of North America.

In April, 1973, Mullican was the prime contractor on a subdivision known as Forest Woods Estates situated in Hinds County. The project called for installation of sewage treatment facilities and on April 24, 1973, Mullican entered into a subcontract with Impar and Clow to install the plant for thirty-four thousand three hundred eighty dollars ($34,380). Previous to that contract, Mullican had negotiated with Clow, who manufactured the sewage system, for the purchase and erection of the facilities at a cost of one hundred thousand dollars ($100,-000), but Clow never actually signed the contract. Subsequently, Clow and Impar divided the contract. Clow received sixty-five thousand six hundred twenty dollars ($65,620) for the plant itself, and the April 24, 1973 subcontract was for $34,380.00 for the erection of same. Those figures aggregated the total sum of $100,000 aforementioned.

Impar applied to INA for a performance bond in the amount of the contract price ($34,380). INA declined to issue the bond unless Clow joined in the application and bond. The subcontract of April 24, 1973, was executed by Impar through its officer, William C. McLain, and by Clow through William C. Burrows, District Sales Manager. In the negotiations over the subcontract and bond, Jacky Dorsey was present much of the time, advising with burrows. Dorsey was Regional Manager for Clow covering twelve (12) states, he and Burrows occupied the same office in Jackson, Mississippi, and each was cognizant of what the other was doing.

Clow and Impar had transacted approximately seven (7) such business deals previous to the Mullican subcontract. One was for a housing project known as Vickers-Bright at Pascagoula, in which Paul Pullen, agent for INA, went to the Clow office in Jackson in response to a telephone call from Burrows. Present at the meeting were Burrows and Dorsey who advised Pullen that they need a bond for the Vickers-Bright project. INA declined to insure Im-par without Clow, and William C. Burrows, designated as District Manager for Clow, executed the application and the bond. The amount of that bond, dated April 11, 1973, was seventy-three thousand twenty-one dollars eighty-five cents ($73,021.85). Subsequently, the same procedure was followed in obtaining the bond on the Mullican subcontract. The following circumstances were considered by the court in finding that burrows had apparent authority to execute the subcontract and the performance bond on behalf of Clow:

(1) Dorsey was Regional Manager for Clow with authority in twelve states and burrows was District Manager for Clow.

(2) Burrows and Dorsey had, and distributed, professional cards, stationery and business forms with the Clow letterhead or insignia on them.

(3) Telephone directories and business directories indicated Jacky G. Dorsey and William C. Burrows were representatives of Clow in the State of Mississippi.

(4) Clow manufactured sewage disposal plants, was interested in selling them to customers, and wanted the erection of same completed in that time satisfactory to its customers.

(5) Clow was doing business with Impar in the erection of the plants and had worked with Impar on about seven such projects over a two-and-a-half-year period.

(6) Impar usually dealt with Burrows or Dorsey on the erection projects rather than the prime contractor, and, on most of the projects, was first advised of the existence of the work by either Dorsey or Burrows.

(7) On the project in suit, McLain, Executive Officer of Impar, never met any individual from Mullican [prime contractor] pri- or to the signing of the subcontract or the beginning of construction.

(8) After the bond was written, based on the Clow-Impar application, Burrows sent the executed original of the bond to Mulli-can with a memorandum stating, “We are looking forward to starting construction as soon as possible,” and it was signed, “William C. Burrows, District Sales Manager.”

(9) Prior to execution of the bond, these people were indicating to all parties that Clow was really in charge of erection of these projects.

(10) On March 7, 1973, Jacky Dorsey, Regional Manager, who was present-and advised Burrows to execute the bond, wrote one Gary Miller in Clow’s home office [Kentucky] and referred to “Impar Enterprises, our erection sub [contractor] on this job.”

(11) April 2, 1973, on the Vickers-Bright project, Dorsey wrote a letter to McLain of Impar stating, “This is to confirm that the Clow Corporation will consign the first draw of ten percent (10%) to you on the above project.

(12) On May 1, Burrows wrote Kantor, engineer on the Mullican project, sending copies of the letter to representatives of the owner, stating, “It is our intention to provide this unit ready to be used by the end of July, 1973. This, of course, provided we are not delayed by unseen conditions beyond our control.”

(13) On May 18, 1973, Burrows had a telephone conversation with Pitmon, executive officer of Mullican, and made a notation on Clow’s file, “He gave O.K. to install Bright homes plant first.”

(14) On or about April, 1974, McLain of Impar wrote Clow a memorandum regarding material shortages stating, “Whatever part of all this Bob wants me to do I will be glad to do.” The memo was directed to R. Murphy, the Clow Corporation representative at the trial, who was Clow’s Field Services Manager. “Bob” was Bob Steer-man, a Clow employee from the Kentucky office who had visited and “trouble shot” the Vickers-Bright job Impar and Clow had erected.

(15) On May 29, 1974, Ross Murphy of Clow Corporation in Kentucky and Delaney of that office, together with Jacky Dorsey, prepared an estimate of the cost to complete the project. On page 2 of that estimate, the term “SSP 34,380” appears. The abbreviation “SSP” is a term used in the Clow organization meaning “Standard Selling Price.” The figure 34,380 is the amount of the Clow-Impar erection subcontract.

The chancellor found that Burrows and Dorsey had apparent authority to execute the subcontract along with Impar and the application and performance bond covering same, and that in executing such instruments, Burrows was acting within the scope of his apparent authority. Apparent authority is defined in Steen v. Andrews, 223 Miss. 694, 78 So.2d 881 (1955) as follows:

“The power of an agent to bind his principal is not limited to the authority actually conferred upon the agent, but the principal is bound if the conduct of the principal is such that persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe the agent to have the power he assumes to have. The agent’s authority as to those with whom he deals is what it reasonably appears to be. So far as third persons are concerned, the apparent power of an agent are his real powers. 2 C.J.S. Agency §§ 95, 96. This rule is based upon the doctrine of estoppel. A principal, having clothed his agent with the semblance of authority, will not be permitted, after others have been led to act in reliance of the appearance thus produced, to deny, to the prejudice of such others, what he has theretofore tacitly affirmed as to the agent’s powers. 2 C.J.S. Agency § 96c. There are three essential elements to apparent authority: (1) Acts or conduct of the principal; (2) reliance thereon by a third person, and (3) a change of position by the third person to his detriment. All must concur to create such authority. 2 C.J.S. Agency § 96e. All three elements concur in this case.” 223 Miss, at 697-698, 78 So.2d at 883.

(1) The conduct of Clow as set forth hereinabove indicated that it had clothed its agents, Dorsey and Burrows, with authority to act in the Mullican subcontract.

(2) Johnny Pitmon, executive officer for Mullican, and Pullen, agent for IN A; testified that they relied completely on the apparent authority of Dorsey and Burrows.

(3)Pitmon told Kantor, the engineer, that Mullican would deal with a subcontractor only on the condition that Clow and the subcontractor both executed the subcontract. When Impar did not complete the project, Mullican was forced to complete it at additional cost and to its detriment.

The question of whether or not a person has apparent authority is a factual issue to be decided by the chancellor or by the jury, if in the circuit court. McPherson v. McLendon, 221 So.2d 75 (Miss.1969).

In NMS Industries, Inc. v. Premium Corp. of America, Inc., 487 F.2d 292 (5th Cir. 1973), a Fifth Circuit Court of Appeals case, that Court said:

“The testimony tended to show that Edwards did, in fact, use business cards, stationery and purchase orders (which bore no indication of a dollar amount limitation), with the Gold Crown ensig-nia, that he did have an office maintained by Gold Crown, and that he apparently had made some purchases of a similar nature for the company previously. This was surely enough to warrant the denial, in the first instance, of a directed verdict. See Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365. It was further sufficient evidence upon which the jury could have inferred that Edwards was cloaked with the authority to make such a purchase for Gold Grown.” 487 F.2d at 295.

See also Cannady’s Used Cars v. Dowling, 221 Miss. 293, 72 So.2d 696 (1954).

Appellant complaints that Pitmon from Mullican was permitted to testify as to what Clow originally agreed to do under the contract and that the subcontract was the final document and, therefore, evidence of all prior negotiations was inadmissible under the parol evidence rule.

Parol or extrinsic evidence is not admissible to affect, contradict, vary, modify, add to or subtract from a written instrument. Fuqua v. Mills, 221 Miss. 436, 73 So.2d 113 (1954). Evidence which does not tend to vary or contradict the written instrument is not excluded by the parol evidence rule. Valley Mills, Division of Merchants Co. v. Southeastern Hatcheries of Miss., Inc., 245 Miss. 71, 145 So.2d 698 (1962). It was not error to allow Pitmon to testify about the initial negotiations with Clow concerning the sale and erection of the sewage treatment plant because such evidence did not tend to vary or contradict the written instruments (the subcontract and performance bond) under which Clow’s liability was established. See 32A C.J.S. Evidence § 930, at 312 (1962).

We are of the opinion that under all the facts of this case, together with reasonable inferences flowing from the evidence, whether or not Burrows had apparent authority to execute the instruments and whether or not he was acting within the scope of his apparent authority were issues to be determined by the chancellor, that his decision was supported by the evidence, and that there is no merit in these assigned errors.

CROSS-APPEAL

INA cross-appeals and contends that the court erred in failing to award adequate and reasonable attorneys’ fees.

The undisputed evidence indicates that the time expended by attorneys for INA at their regular hourly rates was reasonable and amounted to three thousand five hundred fifty-two dollars ($3,552) and that out-of-pocket expenses reasonably incurred up to the time of trial were two hundred twenty-six dollars thirty-five cents ($226.35). The trial consumed three (3) days, the case was argued on the fourth day, and the amount of attorneys’ fees allowed by the chancellor was three thousand dollars ($3,000). We are of the opinion that services performed by the attorneys through trial in the lower court should be increased by fifteen hundred dollars ($1,500) and that the motion for attorneys’ fees here should be sustained and fees are allowed on this appeal in the sum of one thousand dollars ($1,000).

Mullican cross-appeals and contends that the lower court erred in not allowing reasonable attorneys’ fees for it.

The chancellor held that Mullican was not entitled to attorneys’ fees. The performance bond provided for the payment of attorneys’ fees, but there was no such provision in the subcontract, and the argument of Mullican that, because of delay on the part of Clow in the completion of the subcontract, Clow was guilty of negligence and that attorneys’ fees should be assessed against it, is without merit. We are of the opinion that the chancellor correctly declined attorneys’ fees for Mullican.

For the reasons stated, this case is affirmed on direct appeal, reversed on cross-appeal of INA, so as to allow attorneys’ fees in the trial below in the sum of forty-five hundred dollars ($4,500), and affirmed on cross-appeal of Mullican. INA’s Motion for Attorneys’ Fees on Appeal is sustained and the fees fixed at one thousand dollars ($1,000).

AFFIRMED ON DIRECT APPEAL; REVERSED ON CROSS-APPEAL OF INA; AFFIRMED ON CROSS-APPEAL OF MULLICAN.

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


text:
    Mrs. Loyce LOWERY v. ILLINOIS CENTRAL GULF RAILROAD and J. E. Newman.
    No. 50157.
    Supreme Court of Mississippi.
    March 22, 1978.

      J. Harold Graham, Jr., Robert W. Lawrence, Crystal Springs, Arrington & Arring-ton, Hazlehurst, for appellant.
    Wise, Carter, Child, Steen & Caraway, William M. Dalehite, Jr., Jackson, for appel-lees.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Mrs. Loyce Lowery filed suit in the Circuit Court of Copiah County against Illinois Central Gulf Railroad Company and J. E. Newman, engineer, seeking damages for personal injuries sustained in a crossing collision. A jury verdict and judgment were entered in favor of the defendants, and Mrs. Lowery appeals here.

Appellant assigns the following as error committed in the trial of the case:

(1) The court erred in admitting into evidence photographs being Exhibits 5, 6, 19, 20 and 22.

(2) The court erred in refusing appellant’s requested jury Instructions Nos. 9 and 11.

(3) The court erred in declining to grant a peremptory instruction for appellant on the issue of liability, and the verdict of the jury was contrary to the overwhelming weight of the evidence.

On March 19, 1975, appellant was driving her automobile in an easterly direction on a rural public road near Hazlehurst, Mississippi. She approached the Damascus Crossing where the tracks of appellee railroad company ran in a northerly-southerly direction. A large “MISSISSIPPI LAW-STOP” sign with an indication under same that there were three tracks of the railroad at said point was situated south of the crossing to appellant’s right. Trees, bushes and grass were growing along the west side of the right-of-way for some distance north of the crossing. Ms. Lowery testified that her vision was obscured to the north, that she could not see a train approaching until she was practically on the- tracks, that she stopped and then drove to a point within a few feet west of the tracks where she again stopped in order to look north along the tracks. She further testified that she did not hear a train approaching nor did she hear a whistle blow or bell ring.

Testimony of the engineer and brakeman indicated that the whistle was blowing and the bell was ringing for a distance of one thousand (1,000) feet north of the crossing, and that appellant drove about fifteen (15) feet and stopped with her front wheels up to or upon the west rail. At that time, the train was near the crossing and the engineer gave quick blasts of the whistle in order to warn appellant. He applied the emergency brakes, but was unable to stop the train. The front of appellant’s car was struck and it was knocked into a ditch on the west side of the right-of-way. The train stopped about two thousand (2,000) feet south of the crossing.

I.

Did the court err in admitting into evidence photographs being Exhibits 5, 6, 19, 20 and 22?

Exhibit 6 was marked for identification only and was not admitted in evidence. Appellant contends that a proper predicate was not laid for the introduction of the photographs in that there was no indication who took the photographs or when they were made. However, each witness by whom the photographs were introduced testified that the same were fair and accurate representations of the scene at the time of the collision, except that grass and bushes were higher on the day of the collision than appeared in the photographs. They were properly and sufficiently qualified for admission by such testimony. L. &. N. R. R. Co. v. Daniels, 252 Miss. 1, 172 So.2d 394 (1965); Gulf Mobile & O. R. R. v. Golden, 221 Miss. 253, 72 So.2d 446 (1954).

Photograph Exhibit 5, objected to by appellant, shows the crossing looking from west to east. Photographs Exhibits 8, 9, and 10, introduced by appellant, show practically the same scene with the Lowery vehicle in the ditch. Exhibits 19, 20 and 22, are photographs of the track beginning at a point north of the crossing. Exhibit 21, admitted without objection, shows practically the same area as is shown by Exhibits 19, 20 and 22. Likewise, Exhibit 7 covers the same area shown in Exhibits 19, 20 and 22, and Exhibit 7 was not objected to.

There is no merit in this assignment of error.

II.

Did the court err in refusing appellant’s requested Instructions Nos. 9 and 11?

Instruction No. 9 [Appendix I] told the jury that, if it believed the crossing in question was highly dangerous, and the company had notice thereof and failed to locate reasonably sufficient signals and warnings at such crossing, then the railroad company was negligent. This part of the instruction is vague and speculative. There is no evidence, expert or otherwise, to indicate whether signals or warnings could or should have been placed at the crossing. Further, it is undisputed that two signs, one “MISSISSIPPI LAW-STOP” and another “3 TRACKS” were located at the edge of the right-of-way just south of the crossing and the instruction did not take into consideration those signs.

Instruction No. 11 [Appendix II] dealt with the question whether or not bushes, grass, trees and grade of the tracks caused the view of appellant to be obstructed. Instruction No. 4 [Appendix III] granted appellant covered the same question and submitted for her the jury issue of obstructed view. Also, Instruction No. D-20 granted to appellees covered the issue of obstructed view. When all instructions are read and considered together, the jury was properly instructed on said question. Briscoe v. Jones, 233 So.2d 125 (Miss.1970); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962).

Consequently, there was no error in refusing Instructions Nos. 9 and 11.

III.

Did the court err in failing to grant appellant a peremptory instruction on the issue of liability and was the verdict of the jury contrary to the overwhelming weight of the evidence?

Appellant contends that the undisputed testimony conclusively showed that the crossing was blind, unusually dangerous and was the proximate cause of the collision. However, the evidence for appellant and appellees is in direct conflict as to obstructions along the railroad right-of-way and as to how far motorists could see north of the crossing. While some witnesses for appellant testified that motorists could not see any distance north until they were on the tracks, witnesses for appellees testified that at a point fifteen (15) feet west of the track vision of motorists was unobstructed north for a distance of five hundred (500) feet. Appellant also contends that the overwhelming testimony shows the sole and only warning given by the approaching train was one long whistle. There again, the engineer and brakeman testified that the whistle was blowing and the bell ringing for a distance of nine hundred (900) to one thousand (1,000) feet before the train reached the crossing. A witness for appellant testified that she heard one long whistle. Such conflicts are to be determined by the jury and, accepting all evidence favorable to appellee, together with reasonable inferences, and disregarding evidence of appellant in conflict, such evidence was sufficient to support the jury verdict and the requested peremptory instruction was properly refused. Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss.1975). Likewise, the verdict of the jury was not contrary to the overwhelming weight of the evidence.

For the reasons stated, this case is affirmed.

AFFIRMED.

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

APPENDIX I

“INSTRUCTION NO. 9 FOR THE PLAINTIFF

The Court instructs the jury that if you believe from a preponderance of the evidence that the crossing in question was a highly dangerous crossing and the Defendant railroad company had notice thereof and failed to locate reasonably sufficient signals and warnings at such crossing, then the Defendant railroad company was negligent, and if you belief from a preponderance of the evidence that such negligence, if any, proximately caused or proximately contributed to the accident causing the injuries, if any, to the Plaintiff, then you should return a verdict in favor of the Plaintiff against the railroad company.”

APPENDIX II

“INSTRUCTION NO. 11 FOR THE PLAINTIFF

The Court instructs the jury that the test of whether the crossing is unusually dangerous is the ability of a traveler to observe the approaching of a train from the direction from which it is coming; and if you believe from a preponderance of the evidence that the view of the railroad tracks by Plaintiff was obstructed by overgrown bushes, grasses or trees or the deep grade of the hill; then this is negligence. If you further believe that such negligence proximately caused or proximately contributed to the accident causing the Plaintiff’s injuries, then you should return a verdict in favor of the Plaintiff against the Defendants.”

APPENDIX III

“INSTRUCTION NO. 4 FOR THE PLAINTIFF

The Court instructs the jury that if you believe from a preponderance of the evidence that Plaintiff exercised reasonable care and stopped her car at the crossing not less than 15 feet nor more than 50 feet from the nearest rail, and that Plaintiff’s vision was obstructed to the north by a hill overgrown by grasses, trees and bushes, and that Plaintiff’s obstructed vision was the proximate cause or contributory cause of the accident, then Defendant was guilty of negligence and you should render a verdict for Plaintiff.”


text:
    Eugene L. PASTO v. STATE of Mississippi.
    No. 50319.
    Supreme Court of Mississippi.
    March 22, 1978.

      Eugene Loyd Pasto, pro se.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Eugene L. Pasto was jointly indicted for forgery with Martha M. Miller in the Circuit Court of Lee County, was separately tried, convicted and sentenced to six (6) years. He appeals pro se from that sentence and assigns the following errors in the trial below:

(1)The court lacked jurisdiction to try the case, because of an illegal arrest in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

(2) There was a bad faith prosecution because of prosecutorial misconduct in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

(3) Appellant had ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

The only witness to the involvement of appellant in the crime was the accomplice, Martha M. Miller. She testified that she and appellant went to Tupelo in February, 1976, to cash checks which they had conspired to pass while in West Memphis, Tennessee. She filled out a check for two hundred fifty dollars ($250.00), appellant signed same and she cashed it at the Peoples’ Bank in Tupelo. She deposited fifty dollars ($50.00) in the bank and received two hundred dollars ($200.00) in cash which was divided two-thirds (%) to appellant and one-third (Vs) to her.

Appellant was the only witness who testified in his behalf. He denied any connection with the crime, denied that he was in Tupelo on the date that the check was negotiated and claimed he was in Memphis with a Mr. and Mrs. Will T. Littlejohn. Appellant was arrested and charged with the crime on March 18, 1976, while in Tupe-lo.

Under the first two assignments of error, appellant contends that the trial court had no jurisdiction of his person because his arrest was without probable cause and without a warrant, and that the prosecutors were guilty of misconduct in failing to place officers on the stand to show the alleged illegal arrest and to show that he was threatened and beaten by officers. He further contends that the opening and closing argument of the prosecuting attorney was not incorporated in the record and that, if such arguments had been transcribed, they would have reflected that the prosecuting attorneys were covering up for the misconduct and illegal action of the officers. No statements or evidence were introduced resulting from the alleged illegal arrest.

In Roberts v. State, 186 Miss. 732, 191 So. 823 (1939), the Court stated:

“In the instant case the point is made that appellant was apprehended in another State, without any valid legal process therefor, and that over his protest, he was forcibly and unlawfully returned to this State, and that because thereof the courts here are without jurisdiction of the person. Appellant relies on the case, In Re Robinson, 29 Neb. 135, 45 N.W. 267, 8 L.R.A. 398, 26 Am.St.Rep. 378.
We do not agree with the conclusion in the cited case but align ourselves with the great weight of authority which is that the jurisdiction of the court in the county where the crime was committed is in no way impaired by the manner in which the accused was brought before it.” 186 Miss, at 734, 191 So. at 823.

This Court had the same question before it in Nicholson v. State, 254 So.2d 881 (Miss.1971) and stated:

“Appellant first contends the trial court was in error in refusing to allow him to fully develop before the jury the circumstances of his arrest in order that he might show that his arrest was illegal. We find no merit in this contention. It is not necessary to pause to ascertain whether his arrest was legal, because assuming his arrest was illegal the trial court was correct in ruling the circumstances of his arrest were immaterial. The state did not use any evidence or a confession obtained by virtue of the arrest. Appellant was indicted by the grand jury, was present in court, and was tried after having been fully apprised of the charges against him. He was convicted in a fair trial in a county where the crime was committed, and the jurisdiction of the court was in no way impaired by the manner in which he was brought before it. Of course, a different situation exists where the state attempts to introduce evidence or a confession obtained as a result of an illegal arrest. Under these circumstances the ‘fruit of the poisonous tree’ doctrine then might well become applicable. Roberts v. State, 186 Miss. 732, 191 So. 823 (1939); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952).” 254 So.2d at 883.

Since no evidence was introduced emanating from the arrest of appellant, he cannot claim prejudice or lack of jurisdiction, and these two assigned errors are without merit. However, we call attention of the Bench and Bar to the thinking of the United States Supreme Court in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), where the Court, even though it held that the government’s alleged entrapment activities in that case did not violate the Constitution or Federal law, warned that:

“While we may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction, cf. Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] (1952), the instant case is distinctly not of that breed.” 411 U.S. at 431-432, 93 S.Ct. at 1643.

Appellant contends thirdly that he was represented by ineffective counsel and that, as a result, he did hot receive a fair trial. Again he argues that his counsel was ineffective in that such counsel did not advance and present his defense of lack of jurisdiction because of his illegal arrest. The record indicates that counsel filed a motion for continuance, together with a supporting affidavit on August 30, 1976, and motion for production of documents. The ease was continued on the motion until the next term of the court which convened in January, 1977. The attorney ably cross-examined the State’s witnesses and presented the appellant’s defense of alibi before the court. It is noted that appellant admitted on the witness stand that he had previously been convicted five (5) times of burglary, forgery, and embezzlement.

The affidavit in support of the motion for continuance set out that certain witnesses who were material to appellant’s defense resided in the State of Tennessee and were beyond the jurisdiction of the court. One of these witnesses was a probation officer in Memphis, Tennessee, and it is assumed that the other two witnesses were Mr. and Mrs. Will T. Littlejohn. However, no contention is made that appellant was prejudiced by not having those witnesses present at the second term (trial) of court. A court cannot be put in error for the non-appearance of witnesses who are beyond the jurisdiction and process of the court, since the court has no power to enforce their presence at trial. Diddlemeyer v. State, 234 So.2d 292 (Miss.1970), Cert. Den. 400 U.S. 917, 91 S.Ct. 177, 27 L.Ed.2d 157 (1971).

We are of the opinion that appellant had effective assistance of counsel and that he received a fair trial. See Berry v. State, 345 So.2d 613 (Miss.1977); Stewart v. State, 229 So.2d 53 (Miss.1969); and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

AFFIRMED.

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