author: CULPEPPER, Judge.

text:
    George VITAL et al., Plaintiffs and Appellants, v. HOUSING AUTHORITY OF the CITY OF NEW IBERIA et al., Defendants and Appellees.
    No. 6456.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Haik, Broussard & Haik by Theodore M. Haik, Jr., New Iberia, for plaintiff-appellant.
    Landry, Watkins, Cousin & Bonin, Jacob D. Landry, New Iberia, for defendant-ap-pellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

This is a suit for damages for the death by electrocution of Brian Vital and his brother, Nelson Vital. They were erecting a television antenna in the backyard of the premises which their parents leased from the defendant, Housing Authority of the City of New Iberia. The antenna struck an uninsulated electrical power line, causing electrical shock to both boys, from which they died. Named as a defendant, in addition to the Housing Authority, is Central Louisiana Electrical Company (CLECO) which supplied electric power to the housing project. CLECO filed a motion for summary judgment on the basis that it merely sold power to the Housing Authority at the Authority’s meter, that the Authority distributed the power to the individual dwellings in the housing project through lines constructed, owned, operated and maintained by the Housing Authority and not by CLECO, and that the antenna struck one of the Housing Authority’s lines.

On appeal, plaintiffs contend that CLE-CO, through its employees, knew or should have known that there were many television antennas in the housing project in close proximity to the uninsulated electric lines, and that CLECO was negligent in continuing to furnish power to the Housing Authority, when it knew or should have known of these hazardous conditions.

CLECO attached to its motion for summary judgment the affidavit of Roy J. Gravel, its Southern Division Manager. This affidavit states:

“CLECO did not construct, have constructed, has never owned and has never maintained the power lines, real estate or appurtenances at the location at which the alleged incident of May 25, 1976, which forms the basis of this suit, occurred, that being the housing project of the Housing Authority of New Iberia, Louisiana (the Authority).
“CLECO does not serve the individual inhabitants of said Authority or housing project but merely sells power to the authority at the meter located on Fulton Street at a point approximately 200 feet South of the intersection of Landry Drive and from the said meter the Housing Authority distributes the power to the individual dwellings through the Authority’s lines. The Authority either installed or had installed, owns, operates and maintained the entire electric distribution system of the housing project on the Authority’s side of the meter on Fulton Street. Ownership of electricity passes from CLECO to the Authority at the aforesaid meter on Fulton Street.”

In opposition to CLECO’s motion for summary judgment, plaintiffs filed affidavits by persons who live in or near the Housing Authority. These affidavits state that in the housing project there are many TV antennas attached to clothes lines, which clothes lines and antennas are in close proximity to uninsulated electrical wires; that the affiants had seen CLECO employees on the grounds of the housing project on many occasions; and that it is common knowledge to everyone who lives in the project, and is very evident to the naked eye by any reasonable man, that there are TV antennas in close proximity to electric wires.

LSA-C.C.P. Article 966 provides that summary judgment shall be rendered “ . . .if the pleadings, depositions and admissions on trial, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Jurisprudence construing this article holds that summary judgment should not be used as a substitute for trial on the merits, that the function of the court is not to determine the merits of the issues raised but only whether there is a genuine issue of material fact, that any doubt should be resolved against the granting of summary judgment, that, as a general rule, summary procedure is not appropriate to prove subjective facts, such as intent, good faith and knowledge, and that the mover for summary judgment has the burden of proof. Walker v. Graham, 343 So.2d 1171 (La.App. 3rd Cir. 1977); Berger v. Firemen’s Fund Insurance Company, 305 So.2d 724 (La.App. 4th Cir. 1974); and Fontenot v. Aetna Insurance Corporation, 225 So.2d 648 (La.App. 3rd Cir. 1969).

Plaintiffs argue that under Hughes v. Louisiana Power & Light, 94 So.2d 532 (La.App. 1st Cir. 1956) CLECO had a duty to inspect the electrical wires and appliances, such as television antennas, and that through inspections CLECO should have known of the hazardous conditions. We cannot agree that the Hughes case requires the supplier of electrical power to inspect the electric wires or appliances of the purchaser of power. On the contrary, the Hughes case clearly holds that, as a general rule, there is no duty by the power company to inspect the premises of its customers for hazards. The facts in Hughes were that lightning struck the defendant power company’s transformer near the plaintiff’s home. The transformer burned out and a power surge burned out the electric fuse in plaintiff’s home. The power company’s service employees went to the plaintiff’s home and replaced the fuse and, after replacing the transformer, restored power to the line. Damaged insulation on the wires in plaintiff’s home caused the fire. The court held that although as a general rule the furnish-er of electrical power has no duty to inspect the premises of its customers, under these unusual circumstances the service men who replaced the burned out fuse should have known that the electrical surge, following the bolt of lightning which struck the transformer, may have damaged the insulation on the wires in plaintiff’s house, and that because of this they should have known it was dangerous to resume electrical services without inspection. We express no opinion as to the result reached in the Hughes case. In any event, Hughes is distinguished from the present matter in that here there were no such unusual circumstances which required an inspection by the defendant power company before it restored power.

Plaintiffs argue further that the opposing affidavits by residents of the housing project state that CLECO’s employees were seen on the grounds of the Housing Authority on many occasions, and that these employees saw or should have seen the many television antennas in close proximity to the uninsulated electric wires, and should have realized the hazard and discontinued electric service. Plaintiffs say CLECO’s affidavit is silent as to whether its employees knew or should have known of these hazards.

Accepting as true the statements in plaintiffs’ affidavits that CLECO employees were seen on the grounds of the housing project on many occasions, and that they saw or should have seen the television antennas in close proximity to uninsulated electric wires, this did not, as a matter of law, create a duty on the part of CLECO to discontinue furnishing electric power to the project.

The rule of law as to the power company’s knowledge of hazards on customers’ premises is stated in the Hughes case, supra, as follows:

“ ‘Accordingly, where wiring or other electrical appliances on private premises are owned and controlled by the owner or occupant of such premises, a company which merely furnishes electricity is not responsible for the insulation or condition of such wiring or appliances and is not liable for injuries caused by their defective condition, to such owner or occupant, * * *. [However,] “knowledge of the defective and dangerous condition of a customer’s appliances will charge even a mere generator and supplier of electricity with liability for consequences, where current is thereafter supplied to such defective and dangerous appliances, in which case it is the energizing of the line with knowledge of the conditions, and not the conditions themselves, which forms the basis of liability”, 29 C.J.S., Electricity, § 57, pp. 611-613. See also 18 Am. Jur.Verbo “Electricity”, Sections 46-53, 62, 85, 100.’”

We construe this general statement of the law to mean that where the power company has knowledge of a condition on a customer’s premises which will clearly cause immediate danger unless the line is de-ener-gized, then the power company has the duty to use reasonable means to do so. In the present case, mere knowledge by CLECO employees, as stated in plaintiffs’ opposing affidavit, that TV antennas in the project were “in close proximity” to uninsulated electric wires, would not be knowledge of a condition which is clearly an immediate danger of injury sufficient to charge the power company with the duty to de-energize the line. The presence of TV antennas “in close proximity” to uninsulated electric wires is not a hazard unless an antenna contacts a wire. Wherever there is electric power, there is always a certain amount of danger. But the social utility of the electric power must be balanced against its hazard. See the full discussion of these theories of negligence in Allien v. Louisiana Power & Light Company, 202 So.2d 704 (La.App. 3rd Cir. 1967).

To hold power companies liable wherever any of their employees know of a condition on a customer’s premises which could possibly result in injury would place an unreasonable burden on them as to conditions which they did not cause, and over which they have no control except to cut off the power.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Sadie GUIN, Individually and as natural tutrix of the minor, Wanda Coleen Guin and Kenneth Guin, Individually, Plaintiffs-Appellants, v. STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS et al., Defendants-Appellees.
    No. 6486.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Writ Refused July 3, 1978.
    Daniel E. Broussard, Jr., Stephen E. Everett, Gold, Little, Simon, Weems & Bruser; Henry B. Bruser, III, Alexandria, for plaintiffs-appellants.
    William J. Doran, Jr., Baton Rouge, for defendants-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This is a companion case to J-M Poultry Packing Co., Ltd. v. Allstate Insurance Company, our Docket No. 6487, 360 So.2d 1187, Guin et al. v. Employers Mutual Liability Insurance Co. of Wisconsin et al., our Docket No. 6488, 360 So.2d 1187, and, Guin, et al. v. Employers Mutual Liability Insurance Co. of Wisconsin et al., our Docket No. 6489, 360 So.2d 1188. We render separate decisions in each of these cases this date.

These four cases arise out of a vehicular accident which occurred on the Monette Ferry Bridge, Natchitoches Parish, in the early morning hours on December 27, 1975, when a pickup truck driven by Marion S. Guin collided head-on with a tractor-trailer truck driven by Lawrence R. Lemoine. Rodney Dale Guin and Gordon G. Guin were riding as guest passengers in the pickup truck. The tractor-trailer truck was owned by J-M Poultry Packing Company, Ltd. Only Lawrence R. Lemoine survived the accident. The surviving widows and children of the decedents filed wrongful death and survivor actions against several defendants, including the Louisiana Department of Highways (hereafter Department). J-M Poultry filed suit seeking recovery for the physical damage to its truck.

Prior to trial plaintiffs’ claims in all four suits as against all defendants, other than the Department, were settled as a result of which all four suits were dismissed, except insofar as the Department is concerned.

The evidence adduced at trial reflects no genuine dispute as to the following facts. The accident occurred at approximately 5:00 a. m., December 27, 1975, on the Mon-ette Ferry bridge when the tractor-trailer truck, proceeding in a south bound direction, collided head-on with the north bound Guin pickup truck in the south bound lane of traffic. At the time of collision the surface or deck of the Monette Ferry bridge was icy, the icy condition having occurred sometime after 1:00 a. m. and prior to 5:00 a. m. Icing conditions were not present on the highway leading to or from the bridge nor were such conditions present on other bridges in the area, other than perhaps the Grand Ecore bridge, also located in Natchi-toches Parish. The last U.S. Weather Bureau forecast prior to the time of accident for the area including Natchitoches Parish, called for clear to partly cloudy skies with lows near 30 and variable mostly west winds 5 to 10 miles per hour. The forecast did not warn of the possibility of frost or icing conditions. Some several hours following issuance of the forecast the skies cleared, the wind went dead calm, the temperature dropped to 31°, and the dew point became ideal for the formation of ice. Under the conditions last referred to, considering that the Monette Ferry bridge is located in a small valley bounded north and south by large hills, a meteorological phenomenon takes place known as the “oro-graphic effect”. Simply stated the phenomenon occurs because cold air is denser than warn air and it will flow downhill; the coldest night air flows down the slopes of the hills onto the bottom land and accumulates there; and, if a bridge is located in the valley, the cold air condenses forming ice on the bridge surface. No signs were displayed warning of the presence of ice on the bridge. The Department had not applied any abrasive materials to the bridge following occurrence of the icing conditions. It is also without dispute that Guin lost control of his vehicle upon entering the bridge.

A disputed issue of fact concerns whether or not Guin entered the bridge in his proper lane of travel. The trial judge resolved this disputed issue adverse to plaintiffs concluding that “when the Guin vehicle entered the bridge, it was in the Lemoine lane of traffic”. Another disputed issue concerns whether the ice on the bridge was a cause in fact of the accident. This issue was resolved adverse to the Department, the trial judge concluding “that the ice on the bridge was either the cause of the accident or a contributing factor.” A final disputed issue of fact concerns whether the Department was negligent for failing to properly design, construct and maintain the bridge and approaches. This latter issue was resolved favorable to the Department, the trial court concluding that “the roadway and bridge met all of the design standards in effect at the time of the construction of the bridge and the road was reasonably safe for ordinary traffic”.

Although concluding that the ice on the bridge was a cause or contributing cause of the accident, the trial court absolved the department of any liability for failure to warn or take other protective measures concluding that the evidence failed to establish the Department knew or should have known of the icing conditions or the probability thereof. Plaintiffs appealed. We affirm.

There is more than ample evidence in the record to support the factual findings and conclusions of the trial judge and they will not be disturbed. Canter v. Koehring, 283 So.2d 716 (La.1973).

The duty of the Department is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The Department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the Department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ refused La., 303 So.2d 182.

In the instant case the Department did not have actual notice of the hazardous condition before the accident occurred. Additionally, there was no reason to anticipate icing conditions on the date of the accident considering the official U.S. Weather Bureau forecast. The icing condition occurred without warning during the very early morning hours just prior to the accident and resulted when a change in weather conditions neither forecast nor anticipated produced a meteorological phenomenon referred to as the “orographic effect”. Under these circumstances it can hardly be said that the Department had notice of the existence of this dangerous condition and failed within a reasonable time to correct it. See Coleman v. Houp, 319 So.2d 831 (La.App. 3rd Cir. 1975).

For the above and foregoing reasons the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.


text:
    J-M POULTRY PACKING CO., LTD., Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 6487.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Daniel E. Broussard, Jr., Stephen E. Everett, Gold, Little, Simon, Weems & Bruser; Henry B. Bruser, III, Alexandria, for plaintiff-appellant.
    William J. Doran, Jr., Baton Rouge, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Guin v. State of Louisiana, Through the Department of Highways et al., our Docket No. 6486, 360 So.2d 1185, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


text:
    Mary Frances Murray GUIN et al., Plaintiffs-Appellants, v. EMPLOYERS MUTUAL LIABILITY INSURANCE CO. OF WISCONSIN et al., Defendants-Appellees.
    No. 6488.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.

      Daniel E. Broussard, Jr., Stephen E. Everett, Gold, Little, Simon, Weems & Bruser; Henry B. Bruser, III, Alexandria, for plaintiffs-appellants.
    William J. Doran, Jr., Baton Rouge, for defendants-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Guin v. State of Louisiana, Through the Department of Highways, et al., our Docket No. 6486, 360 So.2d 1185, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.


text:
    Ethel Pauline Dubois GUIN et al., Plaintiffs-Appellants, v. EMPLOYERS MUTUAL LIABILITY INSURANCE CO. OF WISCONSIN et al., Defendants-Appellees.
    No. 6489.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Daniel E. Broussard, Jr., Stephen'E. Everett, Gold, Little, Simon, Weems & Bruser; Henry B. Bruser, III, Alexandria, for plaintiff s-appellants.
    William J. Doran, Jr., Baton Rouge, for defendants-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Guin v. State of Louisiana, Through the Department of Highways, et al., our Docket No. 6486, 360 So.2d 1185, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.


author: DOMENGEAUX, Judge. WATSON, Judge,

text:
    Mrs. Emetilde GUILLOTTE, Plaintiff-Appellee, v. HOUSTON GENERAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6466.
    Court of Appeal of Louisiana, Third Circuit.
    June 14, 1978.
    Rehearing Denied Aug. 15, 1978.

      Plauche, Smith, Hebert & Nieset by Allen L. Smith, Jr., Lake Charles, for defendants-appellants.
    Scofield, Bergstedt & Gerard, Benjamin W. Mount, Lake Charles, for plaintiff-ap-pellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and FORET, JJ.
   DOMENGEAUX, Judge.

Emetilde Guillotte, a 78 year old widow, sues for personal injuries sustained when she tripped and fell over a string of Christmas lights used to decorate the Town Hall of Iowa, Louisiana.

The facts are not in dispute. The Iowa Town Hall is a relatively small, single story structure. The public had access to the building only through the front double doors, which could be reached by three concrete paths. Two of these ran in a north-south direction, a few feet from and parallel to the building’s facade. The third path ran in an east-west direction and led directly from the sidewalk in the front of the building to the main entrance.

On December 1, 1975, a clear day, the town’s maintenance crew was engaged in decorating the building for Christmas. As part of the decorations already put up, a string of Christmas lights were run along the two side pathways and along each side of the third main pathway. The string of lights were suspended on stakes stuck into the ground at a height of approximately 16 to 20 inches. As a result the string of Christmas lights ran across and obstructed the main path in the vicinity of its intersection with the sidewalk.

On the same day Mrs. Guillotte had received her pension check and, as was usually her custom, was walking around the town in order to pay various bills. Her last stop was the Iowa Town Hall in order to pay her water bill. She approached the Town Hall using the main sidewalk adjacent to the street. It was her intent to go up the main walkway leading to the building and to enter the main door. When she reached the walkway, she was surprised by the string of lights blocking her path. She momentarily hesitated, but then decided to step over it. In the process of stepping over, her foot caught in the string of lights, and she tripped and fell on the concrete pavement. She sustained a serious fracture of her right arm.

Suit was filed on July 2, 1976, against the town of Iowa and its general liability insurer, Houston General Insurance Company, alleging that the accident was caused by the negligence of the town of Iowa employees in placing a string of lights across the main path. After a trial by jury, judgment was rendered granting Mrs. Guillotte monetary damages. Defendants have perfected a suspensive appeal. We reverse.

The first issue raised by defendants on appeal involves the negligence of the town of Iowa and its employees in placing a string of lights across the main path leading to the building. Properly phrased in light of contemporary case law, the issue is whether the town of Iowa breached a duty owed to plaintiff which was designed to protect her from the injury she sustained. There is no issue concerning causation.

We feel that the town of Iowa was under a duty to manage its property reasonably in view of the probability of injury to others. Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976); Cates v. Beauregard Electric Coop., Inc., 328 So.2d 367 (La.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976); Lecompte v. State, Dept. of Public Safety, 343 So.2d 449 (La.App. 3rd Cir. 1977). This duty was breached when the string of Christmas lights was placed across the main path. One of the reasons for this duty was to protect pedestrians from stumbling and injuring themselves. Thus the town of Iowa owed a duty to Mrs. Guillotte, the breach of which caused her injuries.

However, the question is academic in this case because of defendants’ second argument concerning contributory negligence or assumption of risk. Generally, one who voluntarily exposes himself to risks, with full knowledge and appreciation of the danger involved, cannot recover damages for injury which may occur. We find that Mrs. Guillotte assumed the risk when she discovered the obstacle but, nevertheless, decided to proceed across it.

Mrs. Guillotte’s testimony in this regard is important:

“Q. And what did you walk up town for?
A. To go pay my bill. It was my payday, so I went around and pay my bill. I went at Lynn. I went at Dugas Drug Store, I went at Reeds Drug Store, and paid my gas bill. After that I went at Western Auto and paid my telephone bill, and after that I went to the bank and paid by light bill, and I had just the water bill to pay. So I started going back home, walking on the sidewalk, and when I got in front of the City Hall there were some wires string across the walk, and it kind of surprised me, but I wanted to go pay my bill, and I went over it, and when I did, that’s when I fell, and broke my arm.”

And further:

“Q. Now after you finished paying your bills you were proceeding north on the sidewalk that is on the west side of Thompson Avenue?
A. That’s right; that’s right. And then when I went in front that’s when I found that cord, you know, and it surprised me, but anyway I wanted to go pay my bill, and so I went over, and when I did, well, that’s when it — I lost my balance and I fell on my arm.”
And finally, she testified:
“Q. When you came back and you got to the City Hall, and you turned and you saw this string of lights—
A. Yeah.
Q. —you realized what they were for?
A. Well, no, I didn’t realize what they were for. I just looked at it, and then I wanted to go pay my bill, and went over; that’s all.
Q. You stopped, you saw the cord, and it had light bulbs in it, and it was hanging above the sidewalk?
A. Yes, sort — sort of that; yes.
Q. Now I think you told us that you decided that you wanted to go on in, so you tried to step across the cord, is that correct?
A. Well, I have told you already how it all happened. When I got there, I just wanted to go pay, and I went over.
Q. Well, Mrs. Guillotte, what I’m trying to do, I am trying to like slow it down and take it one step at a time, if you remember. It is my understanding that when you got to the cord you stopped, but you decided that you wanted to go in and pay your bill. So what you did was pick up one foot and step over the cord, is that correct?
A. I did, yeah.
Q. And then you lost your balance—
A. Yes.
Q. —when you were on one foot, and you didn’t pick your back foot up enough and it hung in the cord, and you fell?
A. That’s right, I fell.
Q. That’s how the accident happened?
A. Yeah.”

We think that the evidence in this case is unquestionably clear. Mrs. Guillotte saw the string of Christmas lights, hesitated, and then decided to attempt to step over it. There were other means by which she could have gained access to the main entrance of the building. We feel that Mrs. Guillotte knew of the risk involved when she proceeded to continue up the main path after seeing the string of lights. See Rachal v. Brookshire Grocery Stores, Inc., 336 So.2d 1014 (La.App. 3rd Cir. 1976), writ denied, 339 So.2d 358 (La.1976). We therefore find that the jury was in error by not finding Mrs. Guillotte barred from recovery.

We are not unmindful of the well established rule of appellate factual review verbalized in Canter v. Koehring Company, 283 So.2d 716 (La.1973), by which a reviewing court must give great weight to factual conclusions drawn by the trier of fact. Where there is a conflict in testimony reasonable evaluations of credibility and reasonable inferences of fact drawn by a jury should not be disturbed upon review, even though the appellate court feels its inferences and evaluations are as reasonable. However, there is no conflict in the testimony in this case. Evaluations of credibility and reasonable inferences do not come into play. Mrs. Guillotte was clear and candid on the point. There was absolutely no contradictory evidence introduced at trial. Plaintiff saw the danger and proceeded with full knowledge of it.

Plaintiff raises the argument on appeal that she should be held to a relaxed standard of care because of her advanced age and that, therefore, she should not be barred from recovery. She seeks umbrage under a rule set out in 65A C.J.S. Negligence § 141, viz. Persons Under Mental Disability, which reads as follows:

“A person whose senses are blunted and mental faculties impaired by old age is not guilty of contributory negligence where his failure to use that degree of care which an ordinarily prudent person would use under the same or similar circumstances is due to such disability. In any event, the failure of an elderly person to take certain precautions does not constitute contributory negligence, so as to preclude recovery, where such failure was not the proximate cause of the injury suffered.” [Footnotes omitted]

Without reaching the issue of whether this rule would be applied in the proper set of circumstances, it would not apply in this case. The evidence showed that Mrs. Guillotte was very spry and alert. She was able to run her errands around the town on foot without any difficulty. Although she wore glasses, there was nothing in the record to indicate that her corrected vision was less than normal. We do not see where the purpose underlying the rule would be served when the person seeking its protection is not suffering from the disabilities set forth in the rule. As was stated in the case of LaCava v. City of New Orleans, 159 So.2d 362, 364 (La.App. 4th Cir. 1964), “It is not advanced age alone, but rather disability resulting from advanced age (or other cause) which affects the test of care required.”

For the above reasons the judgment of the District Court is reversed and it is hereby ordered that plaintiff’s suit be dismissed at her costs, both at trial and on appeal.

REVERSED AND RENDERED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge,

dissenting:

Assumption of risk is an affirmative defense. The burden of proof is on the defendant. The jury here concluded that Mrs. Guillotte did not knowingly and voluntarily assume the risk of stepping across the wire barring her path at knee level. The test to be applied is a subjective one and not the objective reasonable man standard used for contributory negligence. Prosser, Law of Torts, 4th Ed., p. 447. The question is generally within the province of the jury. The jury here heard Mrs. Guillotte’s testimony, saw her physical condition and assessed her capability. Without the benefit of this observation of the 78 year old plaintiff, the majority concludes that she was “spry and alert”, thereby substituting its judgment for that of the jury. The jury’s conclusion that Mrs. Guillotte did not have a full knowledge and appreciation of the danger involved in stepping over the wire is not manifestly erroneous. Mrs. Guillotte had no reasonable alternative. Her decision to step over the wire must be assessed with some appreciation of the physical and mental deterioration which comes to all in later years. Compare Garner v. Crawford, 288 So.2d 886 (La.App. 1 Cir. 1974). Mrs. Guillotte was proceeding in her accustomed path and was presented with an unexpected hazard. Her response to the danger presented was not unreasonable even under the objective test of the ordinary reasonable man. A subjective evaluation of her conduct is well nigh impossible for an appellate court.

This is essentially a factual matter with a reasonable evidentiary basis for the jury’s decision.

Apart from the fact that Mrs. Guillotte did not act unreasonably in attempting to step over the wire in her path, she should not have been exposed to that risk. While Christmas lights are pleasant, there is no conceivable reason for stringing them at knee level across the main sidewalk leading to the Iowa City Hall. To quote from Informed Choice in Law of Torts, 22 La.L.R. 17 at 62, 63 and 64:

. the importance of allowing persons in the plaintiff’s position to go about their business free from this sort of risk outweighs the defendant’s interest in acting as he did. * * * As far as the defendant’s conduct is concerned, there is every reason to deter it and to cast upon him the burden of compensating the plaintiff. * * * With occasional inexplicable aberrations, the cases do in fact support this view. A traveler on a public way who consciously exposes himself to a risk created by the defendant’s negli gence will not be barred from recovery unless his decision to proceed is unreasonable.

The above analysis by Professor John H. Mansfield of the Harvard Law School is supported by extensive jurisprudence, including the following cases:

In Mosheuvel v. District of Columbia, 191 U.S. 247, 24 S.Ct. 57, 48 L.Ed. 170 (1903), a plaintiff fell in attempting to step across a water box in the sidewalk at the front of her house. It was possible' to go to the right or left instead of stepping across and the plaintiff had stumbled over the box on a prior occasion. The Supreme Court held that the plaintiff could not be held contrib-utorily negligence as a matter of law and remanded for a new trial.

Harris v. Township of Clinton, 64 Mich. 447, 31 N.W. 425 (1887), dealt with a plaintiff who lost his horse while attempting to cross a section of road partially washed away and under water. After a directed verdict for defendant, a new trial was ordered to enable a jury to determine whether he was reasonable under the circumstances in continuing on the road.

Campion v. City of Rochester, 202 Minn. 136, 277 N.W. 422 (1938) involved a woman who fell on an icy crosswalk and was allowed to recover against the city. The appellate court affirmed, concluding that the issue of contributory negligence in using the walk was for the jury.

In Patton v. City of Grafton, 116 W.Va. 311, 180 S.E. 267 (1935) a plaintiff slipped on some snow and fell into an open cellar alongside a public alley. A judgment in her favor was affirmed, the court quoting from an earlier case as follows:

Pedestrians have a right to walk on sidewalks in the most convenient route to reach their destination, and, while they cannot recklessly place themselves in danger of accident, they need not foresake such walks merely because there may be some danger in passing over them. 180 S.E. 269.

Ahern v. City of Des Moines, 234 Iowa 113, 12 N.W.2d 296 (1943) held that the question of a pedestrian s contributory negligence in using an icy sidewalk was for the jury.

In Dougherty v. Chas. H. Tompkins Co., 99 U.S.App.D.C. 348, 240 F.2d 34 (1957), use of a temporary walk was stated to be non-voluntary in an assumption of risk sense, there being no right to force the pedestrian to take or leave the risk, an exact parallel to Mrs. Guillotte’s situation.

Kanelos v. Kettler, 132 U.S.App.D.C. 133, 406 F.2d 951 (1968) quotes from Restatement of Torts 2d to hold that assumption of risk is not a viable doctrine where a plaintiff “ . . .is compelled to accept the risk in order to exercise or protect a right ., of which the defendant has no privilege to deprive him.” 406 F.2d 955. In other words, one, like Mrs. Guillotte, with the right to use a public sidewalk, does not assume the risk of its hazards.

Unfortunately the majority’s substitution of judgment for that of the jury will probably imbed in the jurisprudence another of those “inexplicable aberrations” referred to by Professor Mansfield.

I respectfully dissent.

      . [Footnote by Appellate Court] We note that, even though the argument is raised on appeal, at trial plaintiff did not request jury instructions concerning this rule and, in fact, such instructions were not given.

      .It has been abolished as a defense in many jurisdictions. See, for example: Leavitt v. Gillaspie, 443 P.2d 61 (Alaska, 1968); Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972); Parker v. Redden, 421 S.W.2d 586 (Ky.,1967); Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965); McWilliams v. Parham, 269 N.C. 162, 152 S.E.2d 117 (1967); McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238 (1963).

      . See jury charge “Assumption of risk” at TR. 59. The jury was charged that “ . . . you may consider his [her] age, experience, and capacity . . .’’in deciding assumption of risk.

      . Mrs. Guillotte testified that she saw no way she could pay her bill except by stepping over the wire.


author: HALL, Judge.

text:
    Walter L. COOK, Plaintiff-Appellant, v. Cecil P. CAMPBELL, II, Defendant-Appellee.
    No. 13695.
    Court of Appeal of Louisiana, Second Circuit.
    July 25, 1978.
    Writ Refused Aug. 1, 1978.

      Roland V. McKneely, Jr., Bossier City, for plaintiff-appellant.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, Robert G. Pugh, Shreveport, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Walter L. Cook, a registered voter in Bossier Parish, brought this action objecting to the candidacy of defendant, Cecil P. Campbell, II, for election to the office of District Judge, Division C, Twenty-Sixth Judicial District Court for Bossier and Webster Parishes. As grounds for the objection to candidacy, plaintiff contends that defendant does not meet the qualifications for the office he seeks because he will not have been admitted to the practice of law in this state for five years until October 5, 1978, a date subsequent to the date on which defendant qualified as a candidate and subsequent to the date of the primary election at which one of the two candidates for the office will be elected.

In response, defendant contends that the five-year requirement is to be determined as of the date of the general election, at which time he will have been admitted to the practice of law for more than five years.

After trial, the district court, in written reasons for decision, upheld the defendant’s contentions, found that he meets the qualifications of the office, and rejected plaintiff’s demands. Plaintiff appealed. We affirm the judgment of the district court.

Defendant was admitted to the practice of law in this state on October 5, 1973. He qualified on July 10, 1978 as a candidate in the regular election for district judge. As provided by law, the election is to be at the same time as the regular congressional election, with the primary election scheduled for the third Saturday in September (September 16) and the general election scheduled for the first Tuesday after the first Monday in November (November 7). Defendant will have been admitted to the practice of law for five years on October 5. There is one other candidate for the office.

La.Const. art. V, § 24 establishes the qualifications of judges of the district courts, and provides in part:

“A judge of the . . . district court . shall have been admitted to the practice of law in this state for at least five years prior to his election . . . ”

Plaintiff’s first contention is that a candidate for district judge must meet the five-year practice requirement as of the date he qualifies as a candidate under the provisions of LSA-R.S. 18:451, which provides:

“A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.”

This section of the Election Code requires that a candidate shall possess the qualifications for the office he seeks at the time he qualifies as a candidate for that office, except as otherwise provided by law. In the case of the five-year law practice requirement for judges, the law provides otherwise. The applicable and controlling constitutional article provides that the five-year requirement be met at the time of election, not the time of qualifying as a candidate in an election. The statutory provision cannot vary or add to the constitutional provision establishing the qualifications for holding the office of judge. Knobloch v. 17th Judicial Dist. Democratic Exec. Com., 73 So.2d 433 (La.App. 1st Cir. 1954).

Plaintiff contends the constitutional requirement that a judge be admitted to practice for “at least” five years authorizes the legislature to statutorily require admission to practice for a longer period of time and for this reason the requirement that a candidate for judge have the five years of law practice at the time he qualifies as a candidate does not conflict with the constitutional provision. We disagree. The words “at least” are included to make it clear that a lawyer is qualified to serve as judge if he has been admitted to practice longer than the minimum five-year period. Where the legislature is authorized to vary or add to constitutional provisions, the scheme of the 1974 Constitution is to contain specific language to that effect. No such language appears in the Article dealing with qualifications of judges.

The cases cited by plaintiff, Sanders v. Twenty-Eighth Judicial Dist. Dem. Ex. Com., 73 So.2d 629 (La.App. 2d Cir. 1954) and Scott v. Natchitoches Parish Democratic Exec. Com., 121 So.2d 766 (La.App. 2d Cir. 1960), are not applicable to the instant case because they were decided under previous constitutional and statutory provisions which are no longer in effect and because the decisions were based primarily on interpretations of political party requirements in party primary elections which are not applicable under the new Election Code.

Our holding is that a candidate for judge is not required to have been admitted to practice for five years at the time he qualifies as a candidate, but is required to have this qualification at the time of his election.

Plaintiff’s next contention is that since there are only two candidates for the office, one will be elected in the primary election and there will be no general election for this office. Thus, plaintiff argues, defendant will not have been admitted to practice law for five years at the time of his election in the first primary, if he is the successful candidate.

La.Const., art. V, § 22 requires that the regular election of judges “shall be at the regular congressional election.” Other provisions of the section regulate the time of holding special elections for judges. The Election Code, LSA-R.S. 18:402, establishes the dates of regular congressional primary and general elections and the dates of special primary and general elections. By law the dates of the regular primary and general election for the office of district judge involved in this case are established as September 16 and November 7, 1978.

The phrase “prior to his election” in Article V, § 24, is, admittedly, somewhat vague and subject to more than one interpretation. The most reasonable and workable interpretation is that the phrase means the date of the final election in the normal election process — the date of the general election. See Hargrave, “The Judicial Article”, 37 La.L.Rev. 766, 814. The determinative date of a candidate’s qualifications should be fixed, certain and ascertainable at the time of qualification for candidacy. The date of the general election is certain and ascertainable in both regular and special elections. The interpretation of “election” urged by plaintiff would leave the determinative date uncertain and dependent on how many candidates qualify and, where there are more than two candidates, on whether one candidate receives a majority of the votes cast in the first primary, matters which cannot be determined until after expiration of the qualifying period or after the primary election.

Our holding is that “prior to his election” as used in La.Const., art. V, § 24, means prior to the date established in accordance with law for the general election in the election process for the office of district judge. Since defendant will have been admitted to practice law in this state for more than five years prior to the date of the general election established by law for the office of district judge, he meets the qualifications established by the Constitution for the office he seeks. The action objecting to his candidacy was properly dismissed.

The judgment of the district court is affirmed at the cost of plaintiff-appellant.

Affirmed.

      . Defendant contends that “the time he qualifies for that office” means the time of taking the oath of office after election, not the time of qualifying as a candidate for office. The same contention was rejected in Montelepre, et al. v. Edwards, et al., 359 So.2d 1311 (La.App. 4th Cir. 1978), writ denied, 359 So.2d 620 (La.1978). We agree with the Fourth Circuit that the term “qualifies” as used in the second sentence of Section 451, means qualifies as a candidate for office.

      . Attempts to have the language “prior to his election” changed to prior to qualifying as a candidate were entertained, considered and rejected by the Constitutional Convention on three occasions. The first occurred when the section was initially read to the Convention. Records of the Louisiana Constitutional Convention of 1973; Convention Transcripts, Volume VI, Page 864. The second occurred when a specific amendment was submitted. Records of the Louisiana Constitutional Convention of 1973. Convention Transcripts, Volume VI, Pages 871-874. The third time occurred as a style and drafting change. Records of the Louisiana Constitutional Convention of 1973, Convention Transcripts, Volume IX, Pages 3246-3250.

      . LSA-R.S. 18:511 A.: “Majority vote. A candidate who receives a majority of the votes cast for an office in a primary election is elected. . . .”


text:
    John T. SEALE, Plaintiff-Appellee, v. James David CALDWELL and Jerome K. Post, Jr., Defendant-Appellant.
    No. 13713.
    Court of Appeal of Louisiana, Second Circuit.
    July 27, 1978.
    Writ Refused Aug. 1, 1978.
    Crawford A. Rose, Jr., Rayville, for defendant-appellant James David Caldwell.

      Lancaster, Baxter & Seale by E. H. Lancaster, Jr., Tallulah, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

This is an action objecting to candidacy brought under the provisions of the Election Code dealing with primary and general elections, LSA-R.S. 18:401, et seq. Plaintiff is John T. Seale, a registered voter of Madison Parish, the incumbent district attorney for the Sixth Judicial District and a qualified candidate for reelection to that office in this year’s regular election. By law the primary election is scheduled for September 16, 1978 and the general election is scheduled for November 7. Defendant is James David Caldwell who also qualified as a candidate for the office of district attorney. Defendant was admitted to the practice of law in this state on October 5, 1973 and will have been admitted to the practice of law for five years on October 5, 1978, a date subsequent to the primary election and prior to the general election. As grounds for the objection to candidacy plaintiff contends that defendant does not meet the qualifications for the office he seeks because he will not “have been admitted to the practice of law in this state for at least five years prior to his election” as required by Article V, § 26 of the Louisiana Constitution of 1974 in that one of the two candidates for the office will be elected in the primary election.

After trial the district court upheld the plaintiffs contentions, held that defendant does not meet the qualifications required by law for the office of district attorney and rendered judgment disqualifying defendant as a candidate. On defendant’s appeal we reverse the judgment of the district court, hold the defendant is a duly-qualified candidate for the office, and render judgment dismissing plaintiff’s action.

The decision in this case is controlled by the opinion of this Court rendered yesterday in the case of Cook v. Campbell, 360 So.2d 1193, No. 13,695 on the docket of this Court, in which we upheld the qualifications of a candidate for the office of district judge under identical facts and under the identical constitutional qualification that the officeholder “shall have been admitted to the practice of law in the state for at least five years prior to his election.” See also Jory v. Arnette, 360 So.2d 921, No. 6781 on the docket of the Third Circuit Court of Appeal which reached the same result upholding the qualifications of a candidate for district attorney under similar facts.

For the reasons assigned in the Cook case, the judgment of the district court is reversed and set aside. The defendant, James David Caldwell, is declared to be a duly-qualified candidate for the office of district attorney of the Sixth Judicial District of the State of Louisiana, and plaintiff’s action is dismissed, at plaintiff’s costs.

Reversed and rendered.


author: SAMUEL, Judge.

text:
    Mrs. Theresa Oglesby, wife of/and Carlos OGLESBY v. DONALD M. CLEMENTS CONTRACTOR, INC., et al.
    No. 9759.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1978.

      James S. Quinlivan, Jr., Jefferson, for plaintiffs-appellees.
    Adams & Reese, Harold A. Thomas, New Orleans, for defendants-appellants.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   ON MOTION TO DISMISS

SAMUEL, Judge.

This matter is before us solely on a motion filed by the two appellees to dismiss a suspensive appeal taken by Donald M. Clements Contractor, Inc., one of two appellants. The motion is based on the contention that the appeal bond does not purport to be a bond for Clements and the surety, Fidelity and Deposit Company of Maryland, guarantees payment by Bituminous Casualty Corporation, apparently (due to the fact that the record has not been lodged in this court and the matter is before us only on the briefs filed) the liability insurer of Clements, who is the other appellant but who was not a named party defendant and was not cast in the judgment appealed from.

In pertinent part Code of Civil Procedure Article 2088(5) provides that following the granting of the order of appeal and the timely filing of the appeal bond the trial court still retains jurisdiction to:

“Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;” LSA-C.C.P.Art. 2088(5).

Movers rely on the case of Guilliot v. City of Kenner, La., 326 So.2d 359, which holds that, despite the above quoted provision of Article 2088, the Court of Appeal does have jurisdiction in a case where the defects of the alleged bond are so glaring and so numerous that it forms no bond at all and thus prevents acquisition of jurisdiction by the appellate court because no bond has been filed timely.

A copy of the suspensive appeal bond filed in this case is attached to movers’ brief. We have read that bond carefully and we find, quite clearly, that the alleged defects are not so glaring or numerous that it forms no bond at all. In fact, from our reading of the bond’s provisions, particularly the provision complained of, quite the contrary appears to be true.

Accordingly, we have no jurisdiction to consider the objections to the bond; the trial court alone has that jurisdiction under Code of Civil Procedure Articles 2088(5), 5123, 5124 and 5126.

For the reasons assigned, the motion to dismiss is denied.

MOTION TO DISMISS DENIED FOR LACK OF JURISDICTION.


author: LEE, Justice, for the Court:

text:
    STANDARD OIL COMPANY v. Jamie W. HOWELL, Sr., Motor Vehicle Comptroller of the State of Mississippi.
    No. 50253.
    Supreme Court of Mississippi.
    May 17, 1978.
    Rehearing Denied Aug. 9, 1978.
    Watkins & Eager, Thomas H. Watkins, Cox & Dunn, Vardaman S. Dunn, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Curtis E. Coker, John B. Clark, Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice, for the Court:

The Motor Vehicle Comptroller of the State of Mississippi entered an order on July 18, 1973, after an evidentiary hearing, requiring Standard Oil Company to pay to the State of Mississippi the sum of one hundred ninety-eight thousand five hundred forty-three dollars twenty-six cents ($198,543.26), tax and penalty on diesel fuel, pursuant to Mississippi Code Annotated Section 27-55-331 (1972). On appeal, the Chancery Court of Hinds County reversed and vacated the order of the Comptroller, the Mississippi Supreme Court reversed and reinstated the Comptroller’s order [Sharpe v. Standard Oil Co., 322 So.2d 457 (Miss.1975)], and the United States Supreme Court denied certiorari. The mandate from this Court ordered that the decree of the chancery court rendered in said cause on the 14th day of March, 1974, be reversed and the order of the Motor Vehicle Comptroller be reinstated.

Standard Oil Company paid the tax and interest accrued in the sum of one hundred sixty-seven thousand seven hundred forty-one dollars nineteen cents ($167,741.19), but declined to pay the penalty amount of thirty thousand eight hundred two dollars seven cents ($30,802.07). Instead, a petition for waiver of penalty was filed with the Comptroller in accordance with Mississippi Code Annotated Section 27-55-331 (1972), which section follows:

“When any distributor of other motor fuel or other person shall fail to file his or its monthly report with the comptroller on or before the time fixed in this article for the filing thereof, or when such distributor or other person shall fail to pay to the comptroller the amount of taxes due this state when the same shall become due and payable, a penalty of five percent of the principal tax shall immediately accrue if the failure is for not more than thirty days; and for each additional thirty days, or fraction thereof, during which the failure shall continue an additional five percent penalty of the principal tax shall immediately accrue; provided, however, that all such penalties shall not exceed twenty percent in the aggregate of the principal tax, unless the failure is willful, or willful intent exists to defraud this state of any tax due under this article, in which event a special penalty of fifty percent of the principal tax due shall be assessed; and thereafter, said tax and penalty shall bear interest at the rate of six percent per annum until paid.
Notwithstanding anything to the contrary contained in this section, the comptroller shall have the authority to waive any penalty in an amount not to exceed one hundred dollars, or in any amount in excess thereof, with the written approval of the attorney general of this state, when it is shown to the satisfaction of the. comptroller that there was no willful intent to violate this article.” (Emphasis added). >

After the petition for waiver of penalty was filed, the Motor Vehicle Comptroller made a factual determination that Standard Oil Company did not willfully refuse to pay the tax, and the Attorney General of Mississippi gave his written consent and approval for waiver of the penalty. The Comptroller further indicated that he would exercise his authority to waive the penalty, but that he had no jurisdiction to do so and the petition was denied. On appeal to the Chancery Court of Hinds County, the chancellor sustained the Comptroller and held that the former hearing and order was res judicata of the waiver question.

Standard Oil Company contends on appeal to this Court:

(1) The chancery court erred as a matter of law, in concluding that the Motor Vehicle Comptroller had no jurisdiction to waive the penalty involved by reason of the judgment of the Supreme Court of Mississippi on the former appeal from the Comptroller’s assessment of the tax and penalty in this case.

(2) Since the Comptroller found as a fact that there was no willful intention to violate the law in the nonpayment of the tax by appellant when due, and since the application for waiver had been approved in writing by the Attorney General of the State of Mississippi, the chancery court must apply the law to the facts, as such facts existed at the time of the application for waiver.

(3) The chancery court erred in applying the theory of res judicata to the application for waiver of penalty and the interest thereon.

(4) The chancery court erred in affirming the order of the Comptroller and in failing to order a waiver of the penalty.

The question before the Court here upon undisputed facts, regardless of the assignments of error, is one of law and, simply stated, is whether or not the decision and judgment rendered by this Court in Sharpe v. Standard Oil Company, supra, now preclude waiver of the statutory penalty under the above Section 27-55-331 and the doctrine of res judicata.

Prior to, and at the time of, the eviden-tiary hearing before the Comptroller, appellant did not avail itself of the statutory provision that the Comptroller has authority to waive any penalty with the written approval of the Attorney General of Mississippi when it is shown to his satisfaction there was no willful intent to defraud the state of any tax due under the section. Courts cannot speculate on the trial strategy of parties. Appellant chose to take the position, and stand on it, that the tax was not due. The matter was litigated from the Comptroller’s office to the United States Supreme Court on that question. Appellant now claims that, since the statutory penalty automatically accrued as an incident to the underlying tax, no penalty issue was in litigation or dispute. Therefore, appellant concludes, waiver is an issue of administrative discretion, and not the subject of judicial control.

In Sharpe v. Standard Oil Company, supra, the opinion referred to “taxes and penalties in the amount of $198,532.26.”. The penalty accrued automatically with the tax assessment and whether the refusal to pay the tax was willful became an issue, if appellant desired to claim the waiver. Appellant did not show there was no willful intent to violate the statute and the Comptroller had no authority to waive the penalty.

The judgment of a court is conclusive not only as to the questions actually contested and determined, but as to all matters which might have been litigated and decided in that suit. Pray v. Hewitt, 254 Miss. 20, 179 So.2d 842 (1965); Sharp v. Learned, 195 Miss. 201, 14 So.2d 182 (1943). The requisites for application of the doctrine of res judicata are: (1) identity of the thing sued for, (2) identity of the cause of action, (3) identity of the persons and parties to the action, and (4) identity of the quality in the persons for and against whom the claim is made. Pray v. Hewitt, supra. Those elements are present here.

In Sharp v. Learned, supra, the following was stated:

“It has long been a cherished policy in this State, and to which its citizens are required to give allegiance, that all questions or issues germane to any principal issue in litigation between the parties shall be settled, if possible, in one and the same suit, and this is particularly true as respects our court of equity. . . . ” 195 Miss. at 219, 14 So.2d at 222.

We hold that the decision and judgment of this Court requiring the order of the Motor Vehicle Comptroller to be reinstated constitute a judgment against Standard Oil Company in the sum of $198,-543.26, which includes taxes, penalty and interest.

Appellant appealed from the Comptroller’s order with supersedeas. The bond provided that, if the cause be affirmed, Standard Oil Company would pay all judgments entered by the court. The supersedeas bond on appeal to the United States Supreme Court contained similar conditions and provisions.

In Viator v. Stone, 203 Miss. 109, 37 So.2d 1 (1948), two additional assessments for sales taxes were made by the Chairman of the State Tax Commission. The taxpayer appealed to the circuit court upon the question of whether the commissioner had wrongfully made the assessments. The circuit court affirmed and Viator appealed to this Court, where the judgment was affirmed and entered here. Viator then appealed to the United States Supreme Court and certiorari was denied. He paid the tax and sued for a refund. In denying that Viator had any rights to relief, this Court said:

“After paying the judgment aforesaid, the appellant filed the present suit in the Circuit Court of Harrison County, where he resides, not for the purpose of recovering any amount paid pursuant to Section 10122, Code 1942, supra, as aforesaid, in discharge of the order of assessment made by the State Tax Commission, but rather in discharge of the said final judgment rendered by this Court — a liability which he and the sureties on his appeal bond in that case had obliged themselves by contract to satisfy in the event of an adverse decision on the said appeal.
At any rate, we have reached the conclusion after a careful consideration of the question now before us that any right growing out of this additional assessment that the taxpayer may have had under Section 10122, supra, to sue the Commission has been merged into the judgment rendered by the Circuit Court of Hinds County on certiorari and the judgment of affirmance thereof by this Court; that the judgment then rendered by this Court is binding upon the appellant because of its finality, whether correct or not on the issue of liability involved; that the said judgment existed as a valid asset belonging to the State until fully paid and satisfied; and that this Court has had no power to disturb or recall the same at any time since we overruled the suggestion of error in the case and our action in so doing was affirmed by the Supreme Court of the United States.” 203 Miss. at 119, 37 So.2d at 3.

We hold that the State of Mississippi acquired a valuable vested right in the judgment of this Court entered in Sharpe v. Standard Oil Company, supra, and that the Comptroller has no authority or jurisdiction to waive or remit any part of that judgment. Consequently, the judgment of the chancery court is affirmed.

AFFIRMED.

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


author: WALKER, Justice,

text:
    NORTH AMERICAN MORTGAGE INVESTORS v. MISSISSIPPI HARDWARE COMPANY, INC., et al.
    No. 49889.
    Supreme Court of Mississippi.
    May 17, 1978.
    Rehearing Denied Aug. 9, 1978.
    Young, Scanlon & Sessums, John Howard Shows, Pat H. Scanlon, Brunini, Grantham, Grower & Hewes, Richard W. Dortch, Jackson, for appellant.
    Ward, Martin, Terry, Way & Parker, M. E. Ward, Ramsey, Bodron, Thames & Rob-

      inson, Ellis B. Bodron, Loyacono & Field, Paul Kelly Loyacono, Vicksburg, Gray, Montague, Jackson & Pittman, James C. Pittman, Jr., Hattiesburg, Watkins, Pyle, Ludlam, Winter & Stennis, Walker W. Jones, III, Jackson, for appellees.
    Before ROBERTSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a decision of the Chancery Court of Warren County, Mississippi, in which the priority of the mechanics’ and materialmen’s liens of appellees, Summit Building, Inc., Home Comfort, Inc., Clow, Inc., Katsaboulas Tile Company, Mississippi Hardware Company, Mid-South Lumber Company, L. L. Stevenson, and Specialty Coating, Inc., and the subordinated mortgage of Morrison-Quirk Grain Corporation, were established over the construction mortgage of North American Mortgage Investors (NAMI) following NAMI’s foreclosure of its deed of trust against the subject property. The total amount of the judgment was $441,141.07 out of a total of $1,540,000 realized by NAMI at the foreclosure of the subject property.

The appellee subcontractors and material-men contend that NAMI failed to use reasonable diligence in disbursing funds to the general contractor to see that they were paid for services and materials rendered. Morrison-Quirk Grain Corporation also contends that NAMI failed to use reasonable diligence to see that all funds it disbursed actually were used for construction purposes as required by the terms of the agreement which subordinated Morrison-Quirk’s deed of trust to NAMI’s deed of trust.

The property in question was an apartment complex of over three hundred units called Confederate Quarters. Construction on the project began in July 1973 shortly after the loan agreement was concluded between NAMI and Bierman Realty, Inc., the owner of the land. Bierman Realty, Inc. and Confederate Construction Co., Inc., the general contractor on the project, were both wholly owned and operated by Bernie Bierman.

During the period of construction the procedure used by NAMI in disbursing funds to Confederate Construction Company was as follows: Confederate Construction Company would first prepare an application for payment which listed all of the categories of work and material involved in the project, the total amount allocated to each category, the amount already expended for each category, the estimated amount to complete each category, and the amount currently requested. On the application for payment form, there was a certification which stated that the applicant (Bierman’s Confederate Construction Company) certified that the work covered by the application had been completed and that all amounts had been paid by him for work on which previous applications for payment had been submitted. These certifications were signed by either Bernie Bierman or William Weathersby, Confederate Construction Company’s superintendent. In addition, the attorney for the title insurance company, who searched title for liens, took an affidavit from Bierman prior to each draw that no amounts for materials or labor were due beyond that requested. In conjunction with the application for payment submitted by Confederate Construction Company, the project was inspected by a consulting engineer, hired at NAMI’s direction, who rendered a comprehensive report on the status of the project. These reports included an estimate of the value of the work in place for each work category and the estimated cost to complete the project. The figures indicated whether the value of completed work was in line with loan amounts advanced for actual construction costs and whether the undistributed balance of the loan was sufficient to complete the project.

In Wortman and Mann, Inc. v. Frierson Building Supply Company, 184 So.2d 857 (Miss.1966), we held that a construction lender’s mortgage has priority over the statutory liens of materialmen and subcontractors to the extent to which the construction lender is able to show that it used reasonable diligence to see that the funds it disbursed were used in payment for materials and other costs in the construction of the building. In that case, we found that the construction lender had used reasonable diligence by taking affidavits from the general contractor prior to each disbursement that he did not owe for any labor or materials beyond that requested and by searching title for liens prior to each disbursement.

The appellees argue that the instant case is distinguishable from Wortman and Mann in that NAMI had notice of facts which would have prompted a reasonably careful lender to take steps to insure payment of materialmen and subcontractors beyond those taken by NAMI. The salient facts relied upon by the appellees are as follows:

(1) Prior to the execution of the loan agreement, NAMI discovered that Bernie Bierman had failed to list on his financial statement $147,006.71 worth of judgments which were liens of record against the subject property; ,

(2) In September 1973, Morrison-CJuirk Grain Corporation filed suit against NAMI and Bierman Realty, claiming that they had defrauded Morrison-Quirk. The basis for this claim was an unrecorded mortgage from Bierman to Morrison-Quirk on the subject property which Bierman, through his attorney, had allegedly promised to record on behalf of Morrison-Quirk. This unrecorded mortgage was given to Morrison-Quirk prior to the mortgage to NAMI. The lawsuit was settled with Morrison-Quirk accepting a mortgage subordinate to NAMI’s;

(3) In October 1973, Kenneth O’Brien, NAMI’s agent for the administration of the loan, received telephone calls from Bernie Bierman and William Weathersby requesting an advance against the next draw to pay subcontractors who allegedly needed the money to make their own payrolls. Although none of the paper work to substantiate this request was in, O’Brien made the advance after receiving a telephone report from the attorney for the title insurance company that there were no liens of record and after receiving an oral report from the consulting engineer that the work to be paid for by the funds requested was in place;

(4) In late October or early November 1973, O’Brien received a telephone call (or calls) from Ray Grein, the president of Summit Building, Inc., and from Summit’s attorney informing him (O’Brien) that a check to Summit for $100,000 had bounced but had been made good; and

(5) Shortly after Ray Grien called, O’P.rien was told by William Weathersby, Confederate Construction Company’s superintendent, that apparently not all of NAMI’s funds were going into the project.

At this point, O’Brien asked Bierman to respond to Weathersby’s charges but continued to fund while waiting for Bierman’s response. Bierman’s response, in early December 1973, was not acceptable to O’Brien, who ceased funding until Bierman’s books were audited. This audit showed that while Bierman had commingled NAMI’s funds with money used for and derived from other projects, all of NAMI’s funds had gone into the construction of Confederate Quarters. Funding was resumed in March 1974 under a new procedure whereby funds were paid not to Bierman for distribution to subcontractors and materialmen but rather were paid directly to such subcontractors and materialmen by the trustee of a trust account which was established for that purpose.

We are of the opinion that although NAMI may have been aware of facts which indicated that Bierman was an imprudent or haphazard businessman, these facts did not amount to actual knowledge that mechanics and materialmen were not being paid. This is particularly true in light of the abundance of safeguards heretofore enumerated that were employed by NAMI to insure that the funds which it was disbursing were going into the project and assure that mechanics and materialmen were being paid. We have carefully considered the procedures employed by NAMI in disbursing construction funds and hold that NAMI acted with reasonable diligence to see that all of the monies it disbursed were used in payment of materials and other costs in the construction of Confederate Quarters.

None of the appellees advanced any affirmative arguments in support of the judgment on appeal here other than their contentions that NAMI did not use reasonable diligence in disbursing funds. In addition, none of the appellees cross-appealed, with the exception of Summit Building Inc. However, it is not necessary for us to consider this cross-appeal, which is related only to the amount which Summit was awarded by the chancellor, because we now hold that having used reasonable diligence in disbursing funds, in the absence of actual knowledge or facts amounting to actual knowledge that the disbursed funds were not going into the project, NAMI was not liable to any of the appellees.

REVERSED ON DIRECT APPEAL AND JUDGMENT ENTERED FOR APPELLANT AND CROSS-APPEAL DISMISSED AS MOOT.

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