author: GULOTTA, Judge.

text:
    Linda Revon, Wife of/and Charles BROWN v. FIDELITY & CASUALTY COMPANY OF NEW YORK. Linda Revon, Wife of/and Charles BROWN v. ALLSTATE INSURANCE COMPANY.
    No. 11136.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied July 21, 1980.

      Frank J. D’Amico, New Orleans, for plaintiffs-appellants.
    Johnston & Duplass, Lawrence J. Dup-lass, New Orleans, for defendant-appellant Allstate Insurance Co.
    Christovich & Kearney, A. R. Christovich, Jr., New Orleans, for defendant-appellee Fidelity & Casualty Co. of New York.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

In these consolidated suits, Linda Revon Brown and her husband Charles Brown sued for injuries Mrs. Brown suffered in two separate automobile accidents occurring on February 22, 1977 and March 14, 1977. In each accident, Mrs. Brown was a guest-passenger in an automobile rear-ended by another vehicle. Fidelity and Casualty Company of New York was the liability insurer of the driver of the rear-ending automobile in the February 22nd accident, and Allstate Insurance Company was the liability insurer of the driver of the rear-ending vehicle in the March 14th accident. Quantum is the only issue.

For the injuries sustained in the February 22nd accident, the jury awarded Charles Brown $78.00 for medical expenses incurred and Linda Brown $350.00 in general damages against Fidelity. For the injuries resulting from the March 14th accident, the jury awarded Mr. Brown $14,500.00 in special damages and Mrs. Brown $18,000.00 in general damages against Allstate. Plaintiffs, appealing, complain both awards are inadequate. Allstate, appealing, claims that plaintiffs failed to show that Mrs. Brown’s medical problems were related to the March 14th accident. Allstate further claims that, even if the injuries sustained in the March 14th accident can be distinguished from those of the February 22nd accident, seven months post-accident Linda Brown was in the same physical condition she had been in prior to the accident.

We conclude the jury properly separated the injuries sustained in both accidents, as reflected in the medical and lay evidence, but abused its discretion in the assessment of the amount of the special and general damage awards. We affirm the jury’s $350.00 general damage award and $78.00 special damage award against Fidelity. However, we amend and increase the special damage award in favor of Charles Brown against Allstate Insurance Company from $14,500.00 to $22,638.33. Further, we conclude the $18,000.00 general damage award against Allstate was inadequate and increase it to $30,000.00.

Plaintiffs’ claim for damages is based upon an aggravation by the two 1977 automobile accidents of a pre-existing back problem, resulting in pain and mental anguish for an extended period of time as well as permanent disability. Linda Brown’s history of severe back problems apparently commenced as result of an injury she sustained from a fall in 1970. A bulging disc was found between the fourth and fifth vertebrae and in August 1970 this disc was removed. Subsequently, in December 1975 she was injured in an automobile accident and underwent a second operation in January 1976 for another ruptured interverte-bral disc. In August 1976 a spinal fusion was performed at the L4 and L5 level. She apparently progressed satisfactorily subsequent to the fusion operation.

Dr. Alain Cracco, an orthopedic surgeon, had performed the surgery on Linda Brown for the disc removal in January 1976 and for the fusion operation in September 1976. According to Dr. Cracco, with the exception of some low-back discomfort after activity, Linda Brown showed satisfactory progress following the September 1976 surgical intervention. Dr. Cracco saw Linda again on February 23, 1977, the day following the first accident involved in this litigation. On that visit, examination indicated that she was “neurologically intact”. He diagnosed a soft-tissue sprain in the back of the neck, a strain of the neck and low back and a bruise of the right ankle. According to Dr. Cracco, in March 1977 she had a slight decrease in the range of motion of the neck, tenderness between the shoulder blades and lower lumbar spine, but no nerve entrapment. She was placed on analgesics and muscle relaxants. Physical therapy and a corset were prescribed.

On March 15, the day following the second accident involved in this litigation, Linda Brown was seen by Dr. Cracco in the emergency room at Methodist Hospital. The examination at that time revealed increased symptoms relating to the neck with more pain on the left side in the neck and shoulder area. She exhibited discomfort and tenderness in the left leg and lumbo-sacral area. Dr. Cracco’s concern was with the possible disruption of the earlier fusion. Because of increased pain in the lower part of the neck, the shoulder blade, the left calf and left leg, plaintiff was again hospitalized on May 3, 1977 following testing on April 30,1977. Examination during this hospitalization indicated nerve root irritation at the L5 and SI levels.

On July 28, 1977 plaintiff again underwent surgery performed by Dr. Cracco and Dr. Amilcar Correa, a neurosurgeon. At this time they reopened the fusion to expose the nerve and found that the nerve roots were being squeezed by the bone. A rhizo-tomy was performed in which the nerve root or sensory part of the nerve is clipped to relieve pain. According to Dr. Correa, the nerve root irritation was apparently not present prior to March 14, 1977. He stated further that prior to the rhizotomy, Linda had undergone two nerve blocks in the lumbar area. This procedure was described as painful. According to Dr. Correa, when a rhizotomy is performed the patient is exchanging pain for numbness in the area. Dr. Correa stated that Linda Brown had no feeling in certain areas of her leg. He stated further that patients learn to accommodate this numbness but the rhizotomy is permanent.

Considering the description of the accident and discomfort as expressed by Linda Brown, it was Dr. Cracco’s opinion that the February 22nd accident was relatively minor but that the March 14th accident was more serious. Because of the progression of symptoms, Dr. Cracco stated that it was his belief the March 14th accident caused a tear, some bleeding and formation on the bone that was fused on the nerve resulting in the squeezing of the nerve by the bony mass. As we interpret Dr. Cracco’s testimony, it is more probable than not that the March 14th accident aggravated plaintiff’s back problems.

Dr. Cracco testified that he saw plaintiff on the last occasion in October 1978. She complained at that time of low-back discomfort. According to Dr. Cracco he has not seen her subsequent to that time for any back problem. Finally, Dr. Cracco testified that functionally plaintiff was no more disabled as a result of the 1977 surgery than she was in January 1977.

Charles Brown, Linda’s husband, testified that the only injury which he observed occurred to Linda after the February 22,1977 accident was a bruise of the ankle. She limped and complained of upper-back pain, however, she did not complain of neck pain. He stated that in the March 14, 1977 accident, Linda was thrown from the car and suffered lower-back pain and pain in the left leg. He indicated that his wife suffered pain from the area of the lower back to the neck. Brown testified further that his wife’s problems with her back commenced after the March 14th accident.

Linda Brown testified that between March 15th and October 1977, she was in constant pain. She apparently considered herself recovered in October 1977 but continued to experience some muscle spasm and some pain. She returned to work, according to her testimony, in January 1978. Mrs. Brown admitted that most of her problems from the February 22nd accident were apprehension and fear about whether or not the fusion had been adversely affected. She stated in the February accident she suffered some pulled muscles and spasms as well as a sprained or bruised ankle. She said that she saw Dr. Cracco primarily because of fear that the fusion had been disturbed. She indicated, however, that Dr. Cracco had advised her that the February 22nd accident did not disturb the fusion. She candidly stated that her back problem started to redevelop after the March accident but that she did experience muscle spasm between February and March.

Other testimony, from friends of Mrs. Brown and from her husband, described plaintiff’s active routine prior to the accident, as including outdoor sports, housekeeping, and caring for the children. They compared those activities with her inability, post-accident, to engage in them. They also commented on the depression Mrs. Brown experienced following the March 14th accident, due to the extreme limitations her back pain placed on her daily activities. Further, in a report dictated in June 1977, Dr. Cracco noted that since her latest injury, Mrs. Brown had demonstrated marked depressive changes.

Plaintiffs claim the jury erred in failing to award the entire amount of medical and child-care expenses incurred, totaling $22,-688.37, and further that the jury abused its discretion by making an inadequate general damage award. Plaintiffs also assert the trial judge erred in refusing to admit photographs depicting the scars on Linda Brown's back resulting from the surgery following the February and March accidents; in instructing the jury that an unfavorable presumption arises by plaintiffs’ failure to produce certain physicians; by the trial judge’s charge regarding aggravation of a pre-existing injury, which did not accurately reflect that a tortfeasor takes his victim as he finds him; by the trial judge’s charge that plaintiffs must prove their case by “a reasonable certainty” rather than by “a preponderance of the evidence”; and lastly, in charging the jury that any award made to plaintiffs was exempt from federal income tax and that no award for attorney’s fees should be considered by the jury.

Because we conclude the jury erred in the special damage award and abused its discretion in the amount of the general damage award in favor of plaintiffs and against Allstate Insurance Company, no useful purpose would be served in considering the claimed errors of the trial judge.

Although we find the special and general damage awards against Allstate Insurance Company are inadequate, we find no error in their apparent finding that Mrs. Brown’s back problems were aggravated by the March 14th accident rather than by the February 22nd accident. Accordingly, we conclude the jury did not abuse its discretion in the $350.00 general damage award against Fidelity and Casualty Company of New York, liability insurer of the driver in the February 22nd accident. Furthermore, the evidence is clear that the medical expenses incurred as a result of that accident total $78.00, the amount awarded by the jury.

We do find, however, error in the amount awarded by the jury for medical and child-care expenses incurred as the result of the March 14th accident. The jury awarded $14,500.00 in special damages. The testimony of Charles Brown, together with exhibits, clearly demonstrate that $960.00 in doctor bills was incurred; $14,-408.80 in hospital bills; a $435.00 emergency admissions charge; $175.25 laboratory fees; $355.04 in medical appliances such as a corset and nerve stimulator; physical therapy in the sum of $60.00; $474.24 in drugs; and $1,770.00 in child-care and housekeeping expenses necessitated because of Mrs. Brown’s inability to care for her home. The total of these amounts is $22,-638.33. Plaintiff is clearly entitled to recover this amount in special damages from Allstate Insurance Company, the insurer of the driver of the automobile in the March 14th accident.

We conclude further from the evidence that the March 14th accident aggravated a pre-existing back condition, resulting in nerve root irritation requiring exploratory surgery and eventually a rhizotomy. We also conclude from the evidence that prior to the March 14th accident, and despite the February accident, plaintiff was recovering extremely well from her September 1976 fusion, and was returning to activities as normal as can be expected from someone who has previously had spinal surgery. Although Linda Brown stated that in October 1977 she had recovered from the injury and had returned to work in January 1978, she continued to experience muscle spasm and pain requiring the use of muscle relaxants. Under the circumstances, we deem an $18,000.00 general damage award to be so inadequate as to constitute an abuse of the jury’s discretion, and increase the award to the sum of $30,000.00. See Coco v. Winston Industries, Inc. 341 So.2d 332 (La. 1977); Reck v. Stevens, 373 So.2d 498 (La. 1979).

DECREE

Accordingly, that part of the judgment in favor of plaintiffs against Fidelity and Casualty Company of New York is affirmed. That part of the judgment in favor of Charles Brown against Allstate Insurance Company is amended to increase the special damage award from $14,500.00 to $22,-638.33. That part of the judgment in favor of Linda Brown against Allstate Insurance Company is amended to increase the general damage award from $18,000.00 to $30,-000.00. As amended, the judgment is affirmed, costs to be paid by Allstate Insurance Company.

AMENDED AND AFFIRMED.

      . These nerve blocks were described as the induction by injection, after local anesthetic, of an anti-inflammatory agent for the purpose of relieving pain.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Mr. and Mrs. Dominick MONISTERE v. ST. CHARLES PARISH SHERIFF’S OFFICE through John O. St. Amant, Sheriff, Jefferson Parish Sheriff’s Office, through Andrew George, Sheriff, Officer Richard Roe and Officer John Doe.
    No. 11138.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied July 21, 1980.

      Richard L. Weil, New Orleans, for plaintiffs-appellants.
    Cronvich, Wambsgans & Michalczyk, A. W. Wambsgans, Metairie, Carville & Ed-rington, Richard L. Edrington, LaPlace, for defendants-appellees.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiffs’ suit on exceptions of no cause of action. From that judgment, which we reverse, plaintiffs have appealed.

On August 7,1979 plaintiffs filed suit for false arrest against the following defendants named in the caption:

“St. Charles Parish Sheriff’s Office, through John 0. St. Amant, Sheriff.
Jefferson Parish Sheriff's Office, through Andrew George, Sheriff.
Officer Richard Roe and Officer John Doe.”

The petitioner additionally provided the following service instructions:

“St. Charles Parish Sheriff’s Office through John 0. St. Amant, Sheriff Hahnville, Louisiana, 70057
Jefferson Parish Sheriff’s Office through Andrew George, Sheriff New Gretna Courthouse, Gretna, Louisiana 70053.”

The Jefferson Parish Sheriff’s Office filed an exception of no cause of action on September 7, 1979. The St. Charles Parish Sheriff’s Office filed exceptions of no cause of action and no right of action on September 18,1979. On September 28,1979, plaintiff filed a Supplemental and Amending Petition, the amendment reading as follows:

“That John 0. St. Amant, individually and as Sheriff for the Parish of St. Charles, State of Louisiana, a person of the full age of majority and domiciled in the Parish of St. Charles, State of Louisiana, Alwynn Cronvich, individually and as former Sheriff for the Parish of Jefferson, State of Louisiana, a person of the full age of majority and domiciled in the Parish of Jefferson, Officer Richard Roe and Officer John Doe, all made defendants herein, are liable jointly and in soli-do, unto plaintiff, . .”

Plaintiffs also provided the following additional service instructions:

“PLEASE SERVE ORIGINAL PETITION AND FIRST SUPPLEMENTAL AMENDING PETITION PERSONALLY ONLY ON:
ALWYNN J. CRONVICH
3029 Edenborn Avenue
Metairie, Louisiana 70002
PLEASE SERVE FIRST SUPPLEMENTAL AND AMENDING PETITION ON: ANDREW GEORGE
through his Counsel of Record
A. W. WAMBSGANS
3714 Airline Highway
Metairie, Louisiana 70001
JOHN O. ST. AMANT
through his Counsel of Record
RICHARD L. EDRINGTON
Carville & Edrington
LaPlace Professional Center
LaPlace, Louisiana 70068.”

At this point, no answers had been filed by either Sheriff’s office. In fact, no answers were ever filed.

On October 15, 1979, the trial judge dismissed plaintiffs’ case by granting the exceptions of no cause oí action. In his written reasons for judgment, he said:

“This Court in reviewing the record finds the plaintiffs have brought this suit against the Sheriff’s Offices and not the Sheriffs of St. Charles or Jefferson.
Article 5, Section 27 of the La. Constitution of 1974 provides and establishes the office of Sheriff. As such, the ‘Office of Sheriff’ is not a legal entity capable of suing and being sued. (Liberty Mutual Ins. Co. v. Grant Parish Sheriff Department, 350 So.2d 236.)
It is well settled that the Sheriff, individually and not the Parish Sheriff’s Department is liable for wrongful or negligent acts committed by him and/or his deputies in the performance of official duties.”

In so ruling, the trial court not only dismissed all defendants but failed to consider the amended petition.

Any defect which may have been found in the petition may have been rectified by the filing of the supplemental petition. However, it is not necessary for us to consider the merits of the exception since the trial court was in error when it failed to consider the amended petition and dismissed all defendants. Accordingly the matter is remanded for proceedings not inconsistent with this opinion.

REMANDED.


text:
    Florestine JENKINS et al. v. JEFFERSON PARISH SHERIFF’S OFFICE.
    No. 11171.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied July 21, 1980.

      Wayne H. Carlton, Jr. and Orlando G. Bendana, Law Office of Bendana & Carlton, New Orleans, for plaintiffs-appellants.
    Kenneth V. Ward, Jr., Cronvich, Wambs-gans & Michalczyk, Metairie, for defendant-appellee.
    Before REDMANN, SCHOTT and SAR-TAIN (assigned), JJ.
   SCHOTT, Judge.

Plaintiff brought this suit for damages against Jefferson Parish Sheriff’s Office, Alwynn J. Cronvich, Sheriff of Jefferson Parish, William Boutuell, a deputy sheriff of the Parish, and North River Insurance Company as the liability insurer of Jefferson Parish Sheriff’s Department and Deputy William Boutuell. They allege that they were traveling in an automobile in Jefferson Parish when it was struck by an automobile owned by Jefferson Parish Sheriff’s Office and operated by Deputy Boutuell in the course and scope of his employment by Jefferson Parish Sheriff’s Office and Sheriff Cronvich. Jefferson Parish Sheriff’s Office and Sheriff Cronvich filed exceptions of no cause of action, which were maintained, and plaintiffs have appealed from these judgments. The issues are whether plaintiffs have stated a cause of action against Jefferson Parish Sheriff’s Office as an entity and against Sheriff Cronvich under the doctrine of respondeat superior.

As to Jefferson Parish Sheriff’s Office, it is not a legal entity capable of being sued. It is simply an office operated by the Sheriff of Jefferson Parish whose authority is derived from the constitution. Art. 5, § 27, and Liberty Mut. Ins. Co. v. Grant Parish, etc., 350 So.2d 236 (La.App. 3rd Cir. 1977) writs refused 352 So.2d 235.

As to the vicarious liability of the Sheriff for the alleged negligent act of his deputy, in Foster v. Hampton, 352 So.2d 197 (La.1977), the court reaffirmed the jurisprudence to the effect that a sheriff is not liable for the negligent act of his deputy under the doctrine of respondeat superior unless the deputy is engaged in an official act, and the operation of an automobile without negligence is not the performance of an official duty such as to make the sheriff liable for the deputy’s dereliction in this respect. Gray v. De Bretton, 192 La. 628, 188 So. 722 (1939), Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91 (La. App. 4th Cir. 1970). Plaintiffs argue, however, that LSA-R.S. 33:1433, which was in effect when Foster v. Hampton, supra, was decided and which provided that no sheriff would be liable for a tort committed by his deputy, unless the deputy “in the commission of the said act or tort, acts in compliance with the direct order of, and in the personal presence of, said sheriff, at the time the act or tort is committed,” was broadened and extended by the legislature when R.S. 33:1433 was amended and re-enacted in its present form by Act 318 of 1978, which was in effect at the time of the accident sued on in this case.

R.S. 33:1433 in its present form has to do with the appointment, oath and bond of deputies, but it no longer contains the previous subject matter of that section of the revised statute which insulated the sheriff from liability except in the circumstances subscribed by the act. We do not discern an intent on the part of the legislature to broaden the liability of the sheriff by the passage of this act or to legislatively overrule the jurisprudence most recently approved by the Supreme Court in Foster v. Hampton, supra.

Finally, plaintiffs argue that R.S. 42:1441 provides them with a cause of action, but we fail to see any relationship between this statute and the alleged vicarious liability of the sheriff for his deputy’s tort in this case.

Accordingly, the judgments appealed from are affirmed.

AFFIRMED.


text:
    Alcina Leblanc, Wife of/and Henry S. FORD v. INDEPENDENT BAKERS SUPPLY, INC.
    No. 11183.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied July 21, 1980.
    Leon C. Vial, III, Hahnville, for plaintiffs-appellees.
    Adams & Reese, Robert A. Vosbein, Paul G. Pastorek, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

Defendant-lessee appeals from a judgment of eviction. The plaintiff-lessors had sought eviction because of non-payment of rent for September 1979, and also because lessee allegedly performed alterations to the leased premises without the written consent of the lessors, contrary to the lease provisions. In his oral reasons for judgment, the trial judge stated the lessee may have violated the lease in making alterations without permission, but he indicated this was an issue that “would have to be litigated further”. Instead, he ruled in plaintiffs’ favor on the issue of untimely payment of rent.

Beginning in July 1979, there had been some confusion between the lessors and lessee regarding rental payments, stemming from the return as NSF of lessee’s July rent check. A series of checks passed back and forth, some as replacement checks and some for subsequently accruing rental. In September lessee thought the rent payments were up to date, when actually the September payment was still due. On September 14, 1979, lessors’ attorney sent a letter to lessee, stating,

“I represent Henry S. Ford, lessor in your lease of August 26, 1975. . . . This is to inform you that you are in violation of the terms of that agreement in that the rental for September is delinquent and for the more important reasons that extensive alterations have been done to the building without the written permission of the lessor. You are hereby notified to vacate the premises within five days from receipt of this demand or eviction proceedings will follow.”

In response to this letter, on September 21st, lessee sent lessors another check in payment of the September rent, but the lessors refused to cash the check and returned it to lessee. On September 27th lessor filed suit for eviction.

The pertinent provisions of the lease are as follows:

“Lessee is obligated not to make any additions or alterations whatever to the premises without written permission.
Should the Lessee at any time violate any of the conditions of this lease . or fail to pay the rent . . . punctually at maturity, as stipulated; . and should such violation continue for a period of ten (10) days after written notice has been given Lessee, then, at the option of the Lessor, the rent for the whole unexpired term of this lease shall at once become due and exigible; and Lessor shall have the further option . to immediately cancel this lease, . all without putting Lessee in default, Lessee hereby assenting thereto and expressly waiving the legal notices to vacate the premises. * * * ” (Emphasis added).

Under the terms of the lease, it is clear, lessor may cancel the lease only (1) if he gives written notice to the lessee of the alleged violation, and (2) if the lessee continues the violation for ten days after the notice is given.

The first question is whether the lessor’s September 14th letter constituted sufficient written notice of the alleged violations. We find it did. Although the September 14th letter was expressed in terms of a notice to vacate the premises, it did advise lessee of the violations alleged (i. e., “the rental for September is delinquent”, and “extensive alterations have been done to the building without the written permission of the lessor”). Under these circumstances, we conclude the letter constituted a proper notice to trigger the running of the 10-day curative period under the lease.

However, lessee tendered the unpaid rent (lessee’s September 21, 1979 rent check) to lessor within ten days after the notice. Accordingly, the lessee complied with the terms of the lease and it is not subject to cancellation for nonpayment of rent. See DiFatta v. Campagna, 157 So.2d 633 (La.App. 4th Cir. 1963); Goldblum v. Harden, 188 So.2d 630 (La.App. 4th Cir. 1966).

It is uncontroverted that in July 1979 the sublessee performed work to repair the air conditioning system because the existing compressor had failed, resulting in temperatures inside the leased premises of 95° to 100°. The repairs included installation of a new compressor in the rear of the building rather than on the roof, with enlargement of the return-air vent. Two holes were cut into the roof to run pipes into the building for the new system. Lessee does not claim that written permission from lessor was sought for this work, but argues this work was simply repairs which lessee was required to do under the lease. Lessor contends the cutting of the roof holes was an alteration made without written permission, and was a violation by the lessee subjecting the lease to cancellation.

At the Rule for Eviction, lessor testified he was aware of the work done on the air conditioning system, and in fact was on the leased premises when the workers were cutting the holes in the roof. In fact, he even went up on the roof and watched them cut the tin off the roof. Asked whether the workers cut a new hole or enlarged an existing one, he said he didn’t know, but didn’t think there had been a hole there before. His impression was that the work was done because the air conditioner was leaking and they needed the holes to blow air inside the building. Lessor further testified no one ever requested permission to do the work and he never gave any written consent for it. He admitted, however, that he made no attempt to stop the cutting of the holes in the roof, and that he never protested or said anything to either lessee or the sublessee about it.

The trial judge did not base his decision of the question on whether this work was an “alteration”, although he did state he felt it was “somewhat of a violation.” Regardless whether the work was an “alteration” or simply a “repair”, we believe the requirement of written consent was vitiated by the lessor’s implied consent.

In Illinois Cent. R. Co. v. International Harvester, 368 So.2d 1009 (La.1979), the Supreme Court enunciated the codal principles to be followed in determining a lessor’s implied consent to a modification of the terms of a written lease.

“Every contract or modification of a previously concluded agreement requires the concurrence of the consent of the parties. . Consent results from a free and deliberate exercise of the will of each party where the intent has been mutually communicated or implied, . . . and accepted by the party to whom a proposal is made. . Consent may be given either expressly or by implication, . . . but the cases in which consent is implied are particularly determined by law. . . . Thus, except in those instances in which the statutory law creates a legal presumption, the mere silence of an offeree should not, in principle, be considered as involving acceptance on his part. His consent can result from silence, however, when combined with other facts or acts so as to imply or indicate his consent unequivocally. * * * ” 368 So .2d at 1011, 1012. See also, LSA-C.C. arts. 1766, 1779(2), 1781, 1798, 1800, 1811, and 1816.

Applying these rules to the case before us, we believe the lessor’s silence and inaction regarding the work done on the leased premises was a waiver of the written consent requirement in the lease. Particularly important here are the facts that not only was he aware the changes were being made, but also he actually stood by and viewed the progress of the work without protesting or objecting. Further, there were no other actions or discussions between the parties which would contradict the implication of unequivocal consent. Nothing was ever said until the letter of September 14, 1979.

For the foregoing reasons, the judgment of the trial court is reversed and plaintiffs’ suit is dismissed at their cost.

REVERSED AND RENDERED

      . Rent check dated 7/13/79 was returned for insufficient funds, but redeposited and cashed. On a rent check dated 7/31/79, payment was stopped by lessee. Rent check dated 8/15/79 was cashed. Rent check dated 9/21/79, in response to demand letter, was never deposited.

      . We distinguish the cases of Grimes, Austin & Stark, Inc. v. L. Stark, Inc., 347 So.2d 908 (La.App. 3rd Cir. 1977) and Dietrich v. Davis, 246 So.2d 710 (La.App. 2nd Cir. 1971), both of which held that notices to vacate did not constitute proper written notice of lease violations. In the Grimes case, however, the notice to vacate apparently did not state what the violation was. In the Dietrich case, the lease set forth detailed requirements of what the notice of violations had to contain and how it had to be sent, and these requirements were not met.

      . The relevant section of the lease provides, “The within leased premises and appurtenances, including the . . heating system, if any, and all other fixtures, are accepted by the Lessee in their present condition, . . The Lessee agrees to keep them in the same order as received, during the term of this lease. . . . ”


text:
    Patricia Dinvaut, Wife of Stanford J. GAUTIER v. Stanford J. GAUTIER.
    No. 11189.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied July 21, 1980.
    Gordon Hackman, Boutte, for defendant-appellant.
    Leon C. Vial, III, Hahnville, for plaintiff-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting to plaintiff Patricia Dinvaut Gautier a separation a mensa et thoro and temporary custody of the issue of the marriage, subject to reasonable visitation, maintaining a checking account in which defendant deposited funds for alimony and support, enjoining both parties from disposing of community funds, ordering that a dental bill be paid from joint funds and that the balance of those funds then be divided between the parties, and enjoining either party from withdrawing certain funds held in 1^he name of the issue of the marriage. Both counsel stipulated to all points, but for the grant of the separation. From that judgment which we affirm, Stanley J. Gautier appeals.

On appeal, the main issue presented is “Did the trial judge abuse his discretion by failing to grant a continuance as orally requested by defense counsel on the date of trial?” We conclude that the trial judge’s denial of the motion was not an abuse of discretion.

After three continuances, the trial on the main demand was set for September 12. In the interim, the defendant was voluntarily committed for psychiatric treatment at the V.A. Hospital. On the day of the trial, counsel for the defendant arrived late and then informed the court that he had instructed his client, who had been subpoenaed, not to appear for trial, if he was not in better condition than he had been on the previous day. The day before trial, counsel had interviewed his client and had found the defendant to be in an irrational state. No written motion for a continuance was filed. The trial court allowed plaintiff to put on her case in chief and granted judgment.

In McMahon v. Everyday Plumbing Co., 368 So.2d 1227 (App. 4th, 1979), this court reviewed a similar situation, stating as follows:

“C.C.P. Art. 1601 provides a continuance may be granted for good cause and C.C.P. Art. 1672 permits the trial court to dismiss a suit if plaintiff fails to appear on the date of trial. In this case the attorney seeking the continuance could not tell the court from his own knowledge why the plaintiff did not appear. Simply stating that he thought the plaintiff was sick was not enough. In this area it is recognized the trial judge is vested with wide discretion and his ruling will not be disturbed unless there is a clear showing he abused this discretion. The record amply supports the trial court’s refusal to grant appellant’s motion for continuance and its dismissal of plaintiff’s motion without prejudice is justified. Sauce v. Bussell, 298 So.2d 832 (La.1974).” At 1228-1229.

Likewise, in Sauce v. Bussell, supra, the Louisiana Supreme Court addressed the question of continuances:

“Article 1601 C.C.P.
‘A continuance may be granted in any case if there is good ground therefor.’
* * * * * He
It is a well-established rule that the trial judge has wide discretion in acting upon a motion for continuance. His ruling will not be disturbed on appeal in the absence of clear showing of abuse of that discretion. Article 1601 C.C.P.; Bryer Insurance Agency, Inc. v. Bruno, 261 La. 177, 259 So.2d 55 (1972). While recognizing the much discretion which is vested in a trial judge in the matter of granting or refusing continuances, it has never been held that such discretion is absolute or that it may be exercised arbitrarily. This Court is vested with the right and duty to correct such errors by the trial judge in matters of this kind. However, it should be pointed out that appellate courts only interfere in such matters with reluctance and in what are considered extreme cases. State ex rel. Armstrong v. McNoughton, 183 La. 697, 164 So. 630 (1935); Lindsey v. Escude, 189 So.2d 465 (La.App.1966); Chedotal v. Richard, 183 So.2d 665 (La. App.1966).
We consider this an extreme case . . ” (emphasis added) At 834.

We conclude that there is no clear showing that the trial judge abused his discretion by failing to grant a fourth continuance. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Warren P. BOURGEOIS, Individually and as Administrator of the Estate of his Minor Son, Bentley J. Bourgeois v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Royal Globe Insurance Companies, and Ben Alexander, Jr., Individually and as Administrator of the Estate of his Minor Daughter, Nina M. Alexander.
    No. 11218.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearings Denied July 21, 1980.

      Becnel & Faucheux, Daniel E. Becnel, Jr., C. William Bradley, Jr., Barry J. Landry, Reserve, for plaintiffs-appellants.
    Montgomery, Barnett, Brown & Read, James B. Irwin, New Orleans, for defendant-appellee United States Fidelity & Guaranty Co.
    Bernard, Cassisa, Babst & Saporito, Jerry L. Saporito, Stephen K. Conroy, Metairie, for defendant-appellee Royal Globe Insurance Co.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

The question on this appeal is whether a relative of a named insured is excluded from uninsured motorist coverage where the relative was injured in a motorcycle/pick-up-truck accident while riding an uninsured motorcycle owned by the named insured, but not listed or covered as an insured vehicle under the automobile liability insurance policy.

Plaintiff, on behalf of his minor son, Bentley, filed suit against United States Fidelity and Guaranty Company and Royal Globe Insurance Company for injuries suffered by Bentley in the accident. U.S.F. & G. and Royal Globe provide automobile insurance policies listing other vehicles owned by Warren Bourgeois; however, the motorcycle owned by plaintiff and on which Bentley was riding at the time of the accident was neither listed nor covered in the policies. Both insurers filed motions for summary judgment, admitting Bentley was an insured under their policies, but claiming uninsured motorist coverage for this accident was excluded because the motorcycle on which Bentley was riding when injured by the uninsured motorist was not listed on the policy as an insured vehicle. The trial judge granted summary judgment in favor of both insurers, and plaintiff appealed.

The exclusionary clauses on which the insurers base their exclusions for coverage are as follows:

(U.S.F. & G.)
“This policy does not apply under part IV:
(a) To bodily injury to an Insured while occupying an automobile (other than an insured automobile) owned by the Named Insured or a relative or through being struck by such an automobile; * * *”
(Royal Globe)
“This insurance does not apply:
* * * * * *
(b) To bodily injured to an insured while occupying a highway vehicle (other than an insured highway vehicle) owned by the named insured, any designated insured or any relative resident in the same household as the named or designated insured or through being struck by such a vehicle, but this exclusion does not apply to the named insured or his relatives while occupying or if struck by a highway vehicle owned by a designated insured or his relative; * * * ”

Uninsured Motorist coverage is mandated by state law. The relevant portion of R.S. 22:1406D(l)(a) states,

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(l)(a). No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles . . . * * * ” (emphasis added).

Although neither the Supreme Court, nor this Court, have passed on the issue confronting us in the instant case, our brothers on the First and Third Circuits have concluded that an exclusion for uninsured motorist coverage of an insured as defined in the policy is against public policy. See Griffin v. Armond, 358 So.2d 647 (La.App. 1st Cir. 1978); Thomas v. Nelson, 295 So.2d 847 (La.App. 1st Cir. 1974), writ denied 299 So.2d 791; Elledge v. Warren, 263 So.2d 912 (La.App. 3rd Cir. 1972), writ refused 266 So.2d 223.

To reach this conclusion, these eases relied on the following statement by the Supreme Court in Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968):

“We conclude that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists.” 218 So.2d at 583.

In Elledge v. Warren, supra, the Third Circuit concluded:

“[t]he intent of the coverage is to protect the insured at all times against the generalized risk of damages at the hands of the uninsured motorists and not to limit coverage to certain situations or to a certain degree of risk of exposure to the uninsured motorists. * * *
It follows that any policy provision which narrows the coverage mandated by the statute will not be enforced. * * * There is no requirement in the statute that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer.” 263 So.2d at 918.

We are in agreement with the First and Third Circuits.

The statute requires that automobile liability policies provide UM coverage for the protection of persons insured under the policy, unless the named insured rejects the UM coverage. As long as a claimant is insured under the policy, he is entitled to UM coverage whether or not he is driving a vehicle listed or covered under the policy, unless the named insured has rejected the UM coverage. UM coverage, as required under the statute, is designed to protect the persons insured under the policy. Any exclusion providing for more restricted UM coverage is in derogation of the statute.

In Schmidt v. Estate of Choron, 376 So.2d 579 (La.App. 4th Cir. 1979), we concluded that the uninsured motorist exclusion applied to a passenger who was not an insured as defined in the policy. In Schmidt we stated:

“[0]ur plaintiff alleges that she was a guest passenger and not a named insured. Nor does plaintiff allege that she is a relative of a named insured. Under the circumstances, plaintiff does not allege, nor show by countervailing affidavit, that she comes within the definition of an ‘insured’ as defined in the policy.”

See also, Seaton v. Kelly, 339 So.2d 731 (La.1976). Our holding in the instant case is a natural progression and follow-up from our expression in the Schmidt case.

Furthermore, in Niemann v. Travelers Ins. Co., 368 So.2d 1003 (La.1979), the Supreme Court, in holding illegal subrogation and consent-to-settle clauses of a UM policy, stated that because the UM statute neither implicitly nor explicitly sanctioned the clauses, and the clauses served to block the statutorily mandated UM coverage, those clauses were without binding effect.

For the foregoing reasons, we hold that the exclusionary clauses in the U.S.F. & G. and Royal Globe policies, under the uninsured motorist provisions of those policies, do not apply to the relative of the named insured in the instant case. Accordingly, the judgments of the trial court granting summary judgment in favor of defendants are reversed, and the matter is remanded to the trial court for further proceedings consistent with the foregoing. The assessment of costs is to await the outcome of the litigation.

REVERSED AND REMANDED.


text:
    Louise M. UNTEREINER v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11219.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearings Denied July 21, 1980.
    C. B. Ogden, II, New Orleans, for defendant-appellant.
    Gauthier & Murphy, Patrick J. McCabe, Kenner, for plaintiff-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to plaintiff, Louise M. Untereiner, damages in the amount of $66,298.50, including $6,298.50 medicals, for injuries sustained by her on June 5, 1978 as a result of a near-collision between the N.O. P.S.I. bus on which she was riding and a pedestrian. Louise Untereiner, who was 63 years old at the time of the accident, was thrown forward into the metal coin collector, when the bus driver slammed on his brakes in order to avoid hitting a pedestrian who had darted in front of the bus. From that judgment which we affirm, the defendant appeals.

On appeal, defendant argues that the trial court erred in failing to exonerate the defendant on the basis of the sudden emergency doctrine. In this state, the sudden emergency doctrine is applicable to carriers of passengers for hire when the carrier is confronted with a sudden emergency arising from no fault or negligence on the part of the carrier. Shannon v. Shreveport Transit Co., 149 So.2d 206 (App. 2nd, 1963); Sepulvado v. General Fire & Casualty Co., 146 So.2d 428 (App. 3rd, 1962); Johnson v. Shreveport Transit Co., 137 So.2d 463 (App. 2nd, 1962).

In the instant appeal, plaintiff, an elderly woman, was proceeding down the central aisle when the brakes were applied, hurling her backwards. If the defendant had not started the bus until the plaintiff had been seated, Louise Untereiner would have been securely seated at the time of the accident. The bus driver should have recognized that plaintiff was an elderly woman and should have waited, giving her the opportunity to be seated prior to starting the bus.

In Miller v. New Orleans Public Service, 196 So. 86 (Or.App., 1940) the court stated:

Unless there is something about the appearance of a passenger which should make it apparent that the passenger is old or infirm, or otherwise physically incapacitated, or is unusually encumbered with bundles, it is not negligence for those in charge of a street car to cause it to start before the passenger has obtained a seat.” (At 87) (emphasis added)

Thus the bus driver was under an affirmative duty to refrain from starting the bus until plaintiff was seated.

The second issue raised on appeal by the defendant is that the trier of fact abused his discretion in the amount of damages awarded to plaintiff, which damages it is contended should be reduced. Plaintiff, conversely, contends that damages should be increased by $20,000.00. Our review of the record and evidence of the particular case, as well as a review of relevant case-law, convinces this court that no clear abuse of discretion is evident. Reck v. Stevens, 373 So.2d 498 (1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (1976).

For the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Roger T. BOES v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 11220.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied July 21, 1980.

      Grisbaum & Kleppner, Ferdinand J. Kleppner, Metairie, for plaintiff-appellant.
    Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., Norris S. L. Williams, James P. Farwell, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff-appellant, Roger T. Boes, appeals a trial court judgment dismissing his suit in contract for specific performance or, in the alternative, for damages, against defendant-appellee, New Orleans Public Service Inc. (NOPSI).

Boes was employed by NOPSI for almost 26 years, and he held his final position, that of storekeeper, at the Carrollton storeroom for a year and a half before his termination on November 9, 1977.

In May of 1977 at a meeting of supervisory and management personnel, Boes learned of the existence of an employee benefit entitled a “Disability Program,” which stated in pertinent part:

“In order to qualify for disability benefits under the Company’s Disability Program, an employee must comply with all of the following:
1. Must have completed 20 or more years of continuous service with the Company.
2. Must present his medical records including a certification by his own physician that he is totally and permanently disabled to the extent that he is unable to perform the duties of his job or engage in any other gainful work for which he is suited or for which he might become qualified, considering his age, physical condition, education, training, and work experience.
3. Must be certified by the Company’s physicians on the same basis.
4. Must qualify for and collect disability payments from the Social Security Administration under their disability retirement program, subject to the exception stated below.”

The program also described certain exceptions that could be made by the company regarding employees who might not be approved by the Social Security Administration but who otherwise qualify for the program, and company requirements that an employee found eligible for disability benefits submit to further physical examinations from time to time with failure by an employee to do so resulting in disqualification for company benefits. Additionally, if, in the course of these examinations, an employee is found to be sufficiently recovered as to' be no longer considered totally disabled, his payments and benefits under the company program may be suspended.

The program also distinguishes itself from the company’s Retirement Income Plan, where employees’ rights are described as “vested.”

Plaintiff has a history of back problems dating from 1961 with surgery for removal of a disc in 1964. Plaintiff testified his back problems worsened in October of 1977; accordingly, he consulted Dr. Walter H. Brent, Jr., an orthopedic surgeon, who had taken care of these back problems since their inception. As a result of an examination of Boes and considering the requirements of the job as given to him by Boes, Dr. Brent wrote a letter stating in part:

“He has a degenerative arthritic condition of the spine with a marked sciatica on the right with loss of sensation to pin prick, marked limitations of motions in the varied directions and increased pain with activity. He has now reached the point where he can no longer tolerate the discomfort following heavy activity.
“I have advised Mr. Boes that he should no longer do any activity which requires heavy lifting, squatting or climbing or long periods of standing. It is my understanding that this is required in Mr. Boes’ occupation and I have therefore advised him that he can no longer continue with this type of work.”

This letter was presented by the plaintiff to Dr. Charles W. Peterson, who is retained by NOPSI to provide medical and consultant work for their employees. Dr. Peterson made arrangements for the plaintiff to be examined by Dr. Harold M. Stokes, an orthopedic surgeon, who was also supplied with a job description of Boes’ position of storekeeper prepared specifically for this purpose by NOPSI’s Personnel Department. This written description stated in part:

“A. PURPOSE OF JOB:
Be responsible for and act as custodian of the supplies at the Carrollton Shops Storeroom. To provide a ready stock at a minimum investment to meet the operating needs of the Transit Maintenance Division at the Carrollton Shop.
B. PRINCIPAL DUTIES:
1. Maintain a continuous inventory of material and supplies.
2. Determine quantity of material to be ordered and initiate purchase requisitions.
3. Receive material, check quantity, quality and condition, store, and prepare material receipts for same.
4. Issue material and stationery supplies to using departments.
5. Perform all clerical functions associated with stock control.
* * * * $ *
D. EFFORT (MENTAL & PHYSICAL):
Concentrated mental effort is essential most of the time in order to secure maximum accuracy in the operation. Some routine work requires little concentrated mental effort.
Job requires average walking and standing. Moderate physical effort is exerted on occasion and usually for a short period of time. (Of the various Stores Department facilities, this is considered a ‘slow activity’ storeroom.)
******
NOTE: When material is received on pallets requiring the use of a forklift truck, the Transit Maintenance Division uses their equipment and assists in unloading these pallets from the delivery truck. They position the pallets in the receiving area of the storeroom. From this point, heavy individual components are moved by the use of a two-wheel hand truck. The material storage shelves range from floor level to a height of 10 ft. and are reached by a ‘shoe store’ type ladder. (Heavier items are generally stored at lower levels and lighter material on the upper shelves.)
The heavier items handled at this storeroom by Stores Department personnel range from 35-100 lbs. (Examples: pail of grease — 35 lbs.; box of welding rods — 50 lbs.; bag of Oil-Dri — 50 lbs.; case of paper towels — 70 lbs.; roll of rubber flooring — 100 lbs.) In the Oil Room, 55 gallon drums of oil (550 lbs.) are moved by the use of an overhead chain hoist on track, but certain movement for proper positioning is done with a drum dolly.
It should be noted that items such as streetcar wheels, axles, brake shoes, and other such heavy items are handled by members of the Transit Maintenance Division and not Stores Department personnel.”

Dr. Stokes examined the plaintiff on October 31, 1977. A written report of his findings, dated November 11, 1977, was sent to Dr. Peterson and stated in part:

“ * * * This 44 year old male complains of neck, mid and low back pain, which he states is related to degenerative arthritis of his back and he does not believe that he can be doing the work of a freight handler.
“The patient has missed no work in the past year because of his neck or back pain. He takes Valium and Inderal and, as I have talked with him, I also find that he has on rare occasions taken Motrin. “I have had the opportunity to review job descriptions for the patient’s position. The first job description is that of a storekeeper at the Carrollton Shops’ storeroom. Apparently the second description would represent a re-assignment position for the patient if necessary.
“Basically, this patient does have degenerative disease of the cervical, dorsal and lumbar spines although they do not appear to be severe. Mechanically, he demonstrates full range of motion of his neck and back and there are no findings consistent with nerve root compression or irritation.
“I believe that if this patient has been successfully carrying out his work up to this point I see no reason why he cannot continue in either position, as described.”

On November 9, 1977, Boes met with Charles G. Reddell, manager of General Properties and Services for NOPSI, and Robert J. Armbruster, Reddell’s assistant. This meeting resulted in plaintiff’s termination on that same day. A memo written by Armbruster describing the meeting between the three states in part:

“The subject employee has been off continuously due to a pain in his neck and arm since Tuesday, September 6, 1977 to date.
“He was informed yesterday evening, Tuesday, November 8, to report to the Company doctor’s office on Wednesday, November 9, at 10 a. m.
“Following his visit with Dr. Peterson, he returned to Mr. C. G. Reddell’s office, and in the presence of Mr. Reddell and Mr. R. J. Armbruster, Mr. Boes stated that Dr. Peterson had told him the outside specialist he was sent to by the Company had reported back to Dr. Peterson that he was fully capable of performing the job assigned. Mr. Boes informed Mr. Reddell that he told Dr. Peterson he felt that he was unable to return as requested.
“During the course of the conversation in Mr. Reddell’s office, Mr. Boes stated on a number of occasions that he felt he could not perform the duties assigned. He also said he has been to the Social Security office about his disability but has not seen their doctor as yet.
“When told by Mr. Reddell that we had even given consideration to transferring him to the Stationery Storeroom as Storekeeper, with the full understanding that he will not pick up anything of any consequence but would be instructed to call for assistance from the other Stores personnel assigned to that area or from the Building Department personnel, this employee stated he felt he could not perform in this area.
“Upon return to Mr. Reddell’s office following a short break, Mr. Reddell informed Mr. Boes he has the opportunity to return to the Carrollton Storeroom today or we can no longer carry him on the payroll. When he stated he could not return to the job, Mr. Reddell informed him we no longer needed his service. Mr. Boes then said he would turn the Storeroom keys in his possession over to Mr. Vanderbrook. He then left Mr. Reddell’s office.”

Subsequent to his dismissal, Boes was declared eligible for Social Security benefits which were made retroactive to October 7, 1977.

Plaintiff argues that the trial court erred both in determining he was not totally and permanently disabled within the meaning of the disability contract and in concluding the medical evidence failed to support his claim of total disability.

The plaintiff further argues his disability is of such nature and degree that he cannot meet the reasonable demands of an employer and also that because of his age, necessity for frequent rest periods, and other factors he is unemployable and cannot engage in any gainful occupation for which he is fitted by education, training and experience. He contends he should, therefore, be declared totally disabled under the NOPSI contract, citing LeBoeuf v. Aetna Life and Casualty Company, 351 So.2d 1266 (La.App. 1st Cir. 1977).

Boes further argues that interpreting ambiguous or vague provisions in a contract there must be strict construction against the drafter, citing Fontenot v. Monsanto Co., 363 So.2d 1309 (La.App. 4th Cir. 1978), and LSA-C.C. art. 1958.

Plaintiff also cites the case of Foret v. Aetna Life & Cas. Co., 337 So.2d 676, 682 (La.App. 3d Cir. 1976), which states:

“Our courts have adopted a policy of liberal interpretation respecting accident insurance policies which provide benefits for total permanent disability, or the inability to engage in any occupation for compensation or profit. Crowe v. Equitable Life Assur. Soc. of United States, 179 La. 444, 154 So. 52 (La.1954). Policy provisions similar to those above referred to have consistently been construed to mean the insured will be denied benefits only when he can perform substantial and material duties of his occupation in the usual and customary manner. That the insured may engage in some other occupation does not disqualify him insofar as concerns policies of this character. * * * ”

Boes also contends that, regarding a disability claim under the Social Security Act, the fact that a claimant has engaged in some work activity or the fact he is not completely helpless will not necessarily disprove his disability, citing Sharbino v. Richardson, 334 F.Supp. 107 (D.C.La.1971), and Prestigiacomo v. Celebrezze, 234 F.Supp. 999 (D.C.La.1964).

Although we do not take issue with plaintiff’s analysis of the above law, we cannot agree with its application to the facts of the instant case.

The medical conclusions of Dr. Brent and Dr. Stokes, presented in their letters sent to NOPSI and reiterated in their testimony at trial, were contradictory in regard to the severity of the plaintiff’s back problems. Since Dr. Stokes had the advantage of a written job description prepared by NOPSI’s Personnel Department, and Dr. Brent had only the plaintiff’s oral description of the physical activities required by his job, we cannot conclude the trial judge erred in giving more weight to Dr. Stokes’ testimony.

The plaintiff, however, contended at trial that the job description given to Dr. Stokes was incomplete because he occasionally lifted objects weighing more than 50 pounds. However, he also admitted he only did so when his assistant was not in the office and then merely did it out of “common courtesy” to the freight carrier, rather than asking that he wait until the assistant’s return. He also said it was essentially his decision to do this, rather than a specific requirement of his position.

Conrad Lillis, who was Boes’ assistant at the Carrollton storeroom, testified that Boes spent only approximately 15% of a typical working day handling stock and that the greatest part of his time he spent doing paper work. He also said the heaviest object he and Boes would have to climb a ladder to store weighed approximately one pound because the heavier objects were stored toward the ground.

Although Dr. Brent concluded the plaintiff should no longer do any activity which required heavy lifting, squatting, climbing or standing for long periods, there was evidence presented at trial by way of surreptitiously obtained photographs and video tapes of Boes, that he voluntarily carried large objects, and he was photographed actually lifting large items while climbing a ladder onto a Mardi Gras float. Moreover, it was not proven at trial that Boes’ former position required any extensive squatting or standing.

Although Dr. Peterson could not remember having orally communicated with Dr. Stokes prior to receiving Dr. Stokes’ memo of November 11, 1977 (in which he stated his findings) and the date of the plaintiff’s meeting with Reddell and Armbruster (which resulted in his subsequent termination) occurred on November 9,1977, Reddell testified by deposition that he had been informed orally of the findings of Dr. Stokes’ examination prior to the November 9 meeting. Armbruster’s memo regarding the termination also bears this out.

Although NOPSI admits the alternative position of stationery storekeeper was never actually tendered to Boes, this was a result of Dr. Stokes’ conclusion that there was no reason the plaintiff could not continue in his present position. Moreover, Armbrus-ter’s memo states that at the termination meeting the alternative position was mentioned to Boes, who indicated he could not perform in that area either.

In conclusion, therefore, we must agree with the trial court judge, who said in his reasons for judgment:

“The question, then, is whether or not plaintiff has shown by a preponderance of the evidence ‘that he is totally and permanently disabled to the extent that he is unable to perform the duties of his job or engage in any other gainful work for which he is suited or for which he might become qualified, considering his age, physical condition, education, training and work experience.’
“The medical evidence does not support his claim under either alternative.
“Eighty-five percent of his work is performed at his desk and the remainder for the most part is light. Even if he should not be able to tolerate the work of a storeroom supervisor, his experience and physical condition would qualify him for any number of other positions.”

The judgment of the trial court dismissing plaintiff’s suit at his costs is affirmed in all respects.

AFFIRMED.


author: FORET, Judge.

text:
    Lemindia Maples HALL, Plaintiff-Appellant, v. Mitchell ALLRED et al., Defendants-Appellees.
    No. 7565.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 1980.
    Rehearing Denied July 16, 1980.

      Lauve & Hill, Lewis 0. Lauve, Alexandria, for plaintiff-appellant.

      Ward, Steinman & Karst, C. Edward Karst, Alexandria, for defendants-appel-lees.
    Before FORET, SWIFT and STOKER, JJ.
   FORET, Judge.

Our learned brother in the trial court has favored us with extensive reasons for judgment. We agree with his factual findings and legal conclusions flowing therefrom, and we take the liberty of quoting same:

“Plaintiff Lemindia Maples Hall brings this action against defendants Mitchell L. Allred and her former husband, Jerry W. Hall, to set aside a sale of immovable property. It is plaintiff’s position that the sale by defendant Hall to defendant Allred should be declared null as a simulation; or in the first alternative, that the sale should be rescinded under LSA-C.C. 1861 on grounds of lesion; or, in the second alternative, that, if valid, the sale was a fraudulent act designed to deprive plaintiff of her right to one-half interest in community property.

“Defendants take the position that this was a valid sale for adequate consideration with no intent to defraud.

“After trial on the matter, the Court makes the following finding of fact.

“On December 15, 1971, plaintiff and defendant J. W. Hall, who were then married, acquired Lot 19 of Circle B Subdivision in Rapides Parish, Louisiana, from defendant Hall’s uncle, defendant M.L. Allred (J-l). Consideration for transfer of the property, shown to have a reasonable estimate of value in the amount of $20,500.00 (D-l), was the assumption of the balance due on two mortgages on the property. The first mortgage was from M. L. Allred to the Rapides Bank and Trust Company, dated September 12, 1958, in the original sum of $16,400.00, with a balance due of $12,100.24. The second mortgage was from M. L. Allred to Associates Financial Services, Inc., dated December 15, 1971, in the principle sum of $4,000.00. The property was sold with the understanding that, should the Halls no longer desire to keep the property, defendant Allred would be given a first right of purchase.

“The Halls lived on the property until late 1972 when defendant Hall, a member of the United States Air Force, was transferred and the family moved to Japan. Defendant Allred agreed to supervise the property during their absence. After a brief occupancy by one or more tenants, the property was finally rented in the spring of 1973 to the present tenant, Mrs. Onie Mae Vickers. Rent of $135.00 per month was paid directly to Allred, who paid the $103.50 first mortgage note and retained the balance. When payment on the second mortgage was not timely, Allred made a $1,000.00 payment from his own funds. Allred also performed certain repairs at his own expense with the assistance of his family-

“When the Halls returned to the United States in 1973, Hall was stationed in Little Rock, Arkansas. At this time, the tenant began making rental payments directly to the Halls. Plaintiff paid the increased $117.50 note on the first mortgage. The balance of the second mortgage, $3,000.00, was paid with money borrowed from defendant Hall’s mother in January, 1975 (D-2). While residing in Arkansas, defendant Hall and the children made regular trips to Louisiana for the purpose of visiting the Allreds. On at least two occasions, Hall performed repairs. Otherwise, Allred continued to respond to calls from the tenant.

“In May of 1977, plaintiff filed suit in Arkansas for divorce. The parties reconciled in June and the suit was dropped. On July 8, 1977, defendant Hall made a trip to Louisiana for the purpose of bringing the Hall children to visit the Allreds and to deliver household goods for free storage. While in Louisiana, Hall made several transfers of property on July 12 and 14, 1977.

“On July 12, 1977, Hall transferred the subject property back to Allred. Consideration consisted of a reassumption of the first mortgage, having a balance due of $9,168.50 (P-1) and, in addition, “all past due and unpaid obligations” (J-2). From the time of the sale to April, 1979, defendant Hall continued to receive rent payments in the amount of $165.00 and paid the increased first mortgage note of $131.50 (P-L), retaining the balance. Defendant Allred began receiving rent payments in April, 1979, when advised to do so by his attorney. Plaintiff learned of the sale when she called the Clerk of Court’s office in Alexandria.

“On July 14,1977, Hall transferred to his father, who lives in Alabama, a bass boat and a truck for no consideration. Hall retained possession of the truck.

“On July 13, 1977, plaintiff again filed suit in Arkansas for divorce, which was granted on May 18, 1978.

“ISSUES:

The issues to be resolved are:
1. was the sale on July 12,1977, a simulation;
2. if the sale was valid, does plaintiff have a right to have the sale rescinded on grounds of lesion;
3. if the sale was valid, was it performed in fraud of plaintiff’s rights; and
4. if the sale was in fraud of plaintiff’s rights, what was her actual loss?

“SIMULATION:

A simulation is a feigned or pretended sale clothed with the formalities of a valid sale. In order to determine whether or not a sale is simulated, the Court must determine whether the parties acted in good faith, whether there was an actual intention to transfer title and whether any consideration was given for the transfer. Phillips v. Nereaux, 357 So.2d 813 (1st Cir., 1978) and 361 So.2d 228 (1st Cir., 1978) on rehearing. A presumption of simulation arises when the plaintiff produces facts casting serious doubts on the validity of the transaction, LSA-C.C. Art. 2480. Once the presumption arises, the burden shifts to the defendant to prove the validity of the transaction. Smith v. Smith, 239 La.2d 688, 119 So.2d 827 (1960); Ingram v. Freeman, 326 So.2d 565 (3rd Cir., 1976), writs den. 329 So.2d 755 (1976).

“However, a transaction will not be set aside as a simulation if any consideration, no matter how small, supports the transaction. Russell v. Culpepper, 344 So.2d 1372 (1977), reh. den. Phillips v. Nereaux, supra.

“Applying these principles to the above facts, the Court finds that the sale was valid and not a simulation. Although plaintiff has presented sufficient facts to give rise to the presumption of simulation, defendants have borne their burden of proving that there was both consideration and an intent to transfer ownership.

“Reassumption of the first mortgage was sufficient consideration to validate the sale. Russell v. Culpepper, supra. The bank was informed of the reassumption and the act of sale executed and recorded. While the fact that Hall continued to receive rent and pay the note casts doubt on the reality of the reassumption, the Court accepts the defendants’ explanation that this arrangement was continued as a convenient way for Allred to assist his nephew, Hall, in a time of financial difficulty. In the case of these individuals, the arrangement was not unusual. When Hall was in Japan, the parties had a similar arrangement also at variance with true ownership. Furthermore, Hall’s financial difficulties stemmed from extensive credit purchases as well as his marital problems. Based on the proven relationship between the defendants, as well as their past dealings with each other, the Court believes that Allred wished to assist Hall financially by allowing him to retain the balance of the rent after payment of the note.

“Further consideration for the sale was the discharge of past debts owed by the Halls to Allred. There can be no doubt that Allred did perform services related to supervision and repair of the property and he paid for painting, plumbing, and roofing supplies. Even without evidence of exact amounts, the Court can reasonably conclude that the total of these expenditures exceeded the balance of rent retained. He also paid $1,000.00 on the second mortgage note. While defendants admitted that Allred was not pressing for payment, the debt was still owed. Considering Hall’s financial situation, reconveyance may have been the only means of satisfying debts related to the property and the parties made their agreement accordingly.

“The defendants have also proved an intent to transfer ownership. This property was formerly the Allred family home and was sold to the Halls at less than market value with the expectation that it would be their family home upon retirement. Hall testified to his agreement with Allred that, if the Halls did not retire to Alexandria, Louisiana, Allred would be allowed the first opportunity to repurchase the property. The Court is convinced that Hall felt obligated to honor this agreement and did not intend to sell the property to anyone else. Hall testified that, at the time of the sale, he did not think his wife would ever move back to Louisiana. He also stated that he feared possible bankruptcy. For these reasons, he reconveyed the property to assure Allred’s ownership. Whether or not Hall had additional motives will be discussed below.

‘‘LESION-.

Plaintiff has argued in the alternative for rescission of the sale on grounds of lesion under LSA-C.C. 1861. Prior to trial, defendant Allred’s attorney brought an Exception of No Right of Action under this article, which was referred to the merits. The Court agrees that rescission is not available as a remedy for this plaintiff, Thigpen v. Thigpen, 231 La. 206,91 So.2d 12 (1956), and this contention is dismissed.

“INTENT TO DEFRAUD:

Having found a valid sale that cannot be rescinded, plaintiff’s only remedy is as enunciated in the case of Thigpen v. Thigpen, supra. Under LSA-C.C. 2404, a wife has a right of action “ . . . for the losses resulting to her by reason of the husband’s sales of community property during the marriage disposed of by fraud and with intent to injure her. The right thus afforded is conditioned upon two elements, (1) the sale of property conceived with the intent to reduce the wife’s community interest, and (2) actual injury resulting therefrom.” Thigpen v. Thigpen, supra, [91 So.2d] at page 20.

“In light of the several transactions occurring at the same time, the Court has little doubt that defendant Hall intended to deprive plaintiff of her community interest by disposing of property at a time when dissolution of the community by divorce was imminent. In the case of the immovable property, Hall was equally motivated by the desire to return the property to Allred, but he did so with the intent to injure his wife’s interest. This he is not allowed to do. Hence, it remains only to determine whether she has suffered a loss by reason of this sale.

“ACTUAL LOSS;

The Court in Thigpen v. Thigpen stated that a wife’s action was for “actual injury” resulting from the sale. The Court then set out a measure of damages using the difference between the consideration given and the market value of the property conveyed. As in other cases involving deprivation of property interests, such as lesion and expropriation, the Thigpen Court equated “market value” with fair market value as shown by appraisers. Accordingly, plaintiff herein presented evidence that the subject property had an appraised value of $28,000.00 (P2) at the time of the sale.

“This Court finds, however, that it cannot justly apply the above measure of damages in this case. When the property was acquired in 1971 by the community existing between the Halls, fair market value played no part in determining the purchase price. In fact, Allred sold to the Halls for the same price he paid in 1958. No community funds were used to discharge the second mortgage and little, if any, community funds were expended on maintenance of the property. Clearly, the Halls got a bargain and were able to enjoy an almost care-free ownership solely because this was a family matter and not an arms-length transaction.

“Therefore, the resale of the same property to the original owner on the same reassumption terms is not necessarily an injury to plaintiff’s community interest. A higher purchase price could have been obtained from an objective buyer, but there is no reason to believe that, under other circumstances, the property would ever have been sold to another buyer. Nor is there reason to believe that the purchase price would have been more than a “bargain” price. To apply the usual measure of damages would create something of a windfall profit that would not have been obtained but for the disintegration of family relationships.

“Considering the unusual factors in this case, the Court finds the jurisprudential guideposts inadequate to determine the actual injury sustained by Mrs. Hall. Therefore, in order to do justice between the parties, the Court will measure actual damages based upon the difference between the fair market value of the property in 1971 (D-l) [$20,500] and the fair market value in 1977 (P-2) [$28,000]. This amount is $7,500.00. Plaintiff is entitled to one-half, or $3,750.00.

“In accordance with the above, plaintiff’s suit against defendant Allred is dismissed. Plaintiff’s claim against Hall is granted and judgment rendered in her favor for $3,750.00. The appraisers fee is fixed at $100.00 and taxed as costs. Plaintiff and defendant are to share all costs.”

Plaintiff, on appeal, makes much of the fact that the plaintiff was ordered to share in the court costs. We see no abuse of discretion in the assessment of costs where the trial court has much discretion in assessing same.

Accordingly, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against the plaintiff.

AFFIRMED.

      . Footnote by Court of Appeal
      Articles 2377-2431 were repealed by Acts 1978, No. 627 § 6, eff. Jan. 1, 1980; Acts 1979, No. 709, § 1, eff. Jan. 1, 1980.

      . Although he did not prevail on this appeal, this writer is moved to compliment plaintiff-appellant’s counsel on the excellence of his brief filed in this Court.


author: WALKER, Justice, for the Court. BROOM, Justice,

text:
    Iola NATHANIEL v. CITY OF MOSS POINT, Mississippi.
    No. 51710.
    Supreme Court of Mississippi.
    April 9, 1980.
    Rehearing Denied July 23, 1980.
    Watts & Bilbo, Pat H. Watts, Jr., Pasca-goula, for appellant.
    Megehee, Brown, Williams & Mestayer, Raymond L. Brown, Pascagoula, for appel-lee.
   WALKER, Justice, for the Court.

This is an appeal from the Circuit Court of Jackson County, Mississippi, which, after both sides had put on their proof and rested, granted a peremptory instruction exonerating the City of Moss Point of any liability for damages sustained by Iola Nathaniel arising out of an automobile collision between the plaintiff, Iola Nathaniel, and one Barfield, who was not a party to the suit.

It was contended by Mrs. Nathaniel that the City was negligent in failing to reerect a stop sign which was down after having reasonable notice that it was down.

On the morning of the accident, March 12,1976, between 6:00 and 6:20 in the morning, Mrs. Nathaniel was traveling east on Meadow Drive in the City of Moss Point on her way to work. The automobile which she struck was traveling north on Juniper and was driven by one Margaret Barfield. Mrs. Nathaniel testified on direct examination with reference to the accident as follows:

Q. All right, now what I want you to do is to tell the Jury what happened; about what time it was; and where it happened and where you were going?
A. I was headed east on Meadow Drive. I was on my way to work. It happened between 6:00 and 6:20 a. m. in the morning.
Q. All right now, where do you live in reference to that intersection?
A. Well, I live west of Meadow Drive.
Q. But you were going east on Meadow Drive at this time?
A. Yes.
Q. Where did the accident actually occur?
A. At the intersection of Juniper and Meadow Drive.
Q. What type of road is this? Is it a two-lane or a four-lane road?
A. Two lane.
Q. Now, if you recall, what type of weather was it on that day?
A. It was fair weather. Early in the morning. You really don’t know how it is that early; it wasn’t raining, though, or nothing.
Q. I want you to tell the Court and the Jury exactly how this happened in reference to how you were going and what you did, and how the other car was going and what that car did?
A. Well on March the 12th — it was on a Friday morning. I was on my way to work. I had picked up two of my riders and I was on my way to pick up another lady to take to work. And I got right at the intersection and I seen this car and I said, “On my god, she ain’t even going to stop.” And I slammed on brakes. And when I slammed on brakes, I collided with her right in her side.
A. Well I had only been going that way for about three weeks, that little street, because the other lady that was in the car with me was dropping her baby off on Eastwood.
Q. Right.
A. And that made me turn on Meadow Drive and be going that way. And for the last three weeks, there wasn’t no stop sign there because I would always get in there and kinda slow up and pull on across the road.
Q. Now you say you never had been on that street before this period of time?
A. Yeh, I had been on that street.
Q. Before that three week period?
A. Yeh. But there wasn’t no stop sign up.
Q. Are you saying there never was a stop sign up there ?
A. I had never seen one up.
Q. Now, on this occasion you said you were driving about thirty miles an hour?
A. Uh huh.
Q. Did you slow down to thirty before you got to this intersection, or did you just come through it at thirty? What did you do?
A. I slowed down. I wasn’t driving no more than thirty-five, but I slowed down approximately to thirty miles. I hadn’t seen anything all the other mornings and I had assumed I had the right of way all the time.
Q. Okay, now you looked both ways before you entered it?
A. Yes.
(Emphasis added).

The evidence showed that the automobile driven by Mrs. Nathaniel struck the four-door automobile driven by Margaret Bar-field between the “middle and back-end of the car.”

For the purpose of this opinion, we will assume, arguendo that there was an ordinance of the City of Moss Point directing that a stop sign be placed at the southwest comer of the intersection of Meadow Drive and Juniper; that the sign was down, although through no fault of the City, and that the City had reasonable notice that it was down.

It is well settled that the decision by a municipality whether to place traffic control devices at an intersection is a governmental function and that a municipality cannot be held liable for failure to place traffic control devices at an intersection. Wall v. City of Gulfport, 252 So.2d 891, 893 (Miss.1971).

It is also well settled that, absent statutory provisions, there can be no recovery against a municipality based on negligence in the exercise of functions which are essentially governmental in character; however, when acting in a private or proprietary capacity, it is liable in tort the same as private corporations. Tucker v. City of Okolona, 227 So.2d 475, 476 (Miss.1969).

This Court has held that the maintenance of “bumpers” in streets, City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713, 39 A.L.R. 777 (1924); White v. Thomason, 310 So.2d 914 (Miss.1975); overhead traffic control lights, Tucker, supra; and stop signs, Wall v. City of Gulfport, supra, are proprietary functions.

In Wall v. City of Gulfport, supra, it was said:

Our research reveals there are cases from other states which hold that where there is a city ordinance requiring the city to maintain stop signs at an intersection, the maintenance of such stop signs is a proprietary function and the city may be held liable for the failure to replace a stop sign at such intersection. Buckley v. City of Chicago, 3 Ill.App.2d 39, 120 N.E.2d 375 (1954); Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 (1966). The record in the case before us is silent as to whether there was any ordinance requiring the city to maintain stop signs at this intersection. We hold that in the absence of an ordinance requiring the city to maintain traffic control devices at an intersection, the decision of whether to replace a traffic control device at an intersection which has been completely removed is a governmental function and not a proprietary one. (Emphasis added).

It is not necessary for us to decide whether the failure of the City of Moss Point to replace the stop sign in question, after it was torn down by vandals, was proprietary rather than governmental because we have concluded that there was no causal relationship between the stop sign being down and the injuries and damages incurred by Mrs. Nathaniel. In Wall v. City of Gulfport, supra, this Court, speaking through the late Justice Inzer, said:

The question involved in the Tucker case was whether the maintenance by the city of an overhead traffic control light at a street intersection for the control of vehicular traffic was a governmental function or a proprietary function. We held the trial court was in error in sustaining a demurrer to the declaration which charged that the plaintiff was driving in a careful and prudent manner in reliance upon the green light and entered the intersection on the green light. The traffic light was out of repair, a fact known to the city for a period of at least a week. The light suddenly and immediately changed from green to red, thus giving a green light to an oncoming vehicle resulting in a collision which damaged plaintiff’s automobile. We held the maintenance of the traffic light was a proprietary function. However, there is a marked distinction between maintaining an overhead traffic light and the replacement of one that has been completely removed. The action of the city in having a defective light which showed green to both oncoming vehicles could render the street unsafe for persons using ordinary care for their own safety. However, the absence of any traffic control device at an intersection does not render the intersection unsafe for use by persons exercising ordinary care and caution for their own safety. (Emphasis added).
We are also of the opinion the trial court was correct in holding the facts in this case did not present a jury issue as to the liability of the city. The proof is uncontradicted that the intersection in question was reasonably safe for use by persons exercising ordinary care and caution for their own safety. We are of the opinion this case falls within that category of cases wherein we have uniformly held the city is entitled to a peremptory instruction. The defective condition here was not created by the city, it was relatively insignificant or trivial, and it was easily discernible by persons using ordinary care and caution for their own safety. In fact, this intersection was no more dangerous or unsafe than any other intersection where there are no traffic control devices.

In the case now before us, the intersection at Meadow Drive and Juniper was reasonably safe for use by persons exercising ordinary care and caution for their own safety. As in Wall, supra, the defective condition was not created by the City, it was relatively insignificant or trivial, and it was easily discernible by persons using ordinary care and caution for their own safety. The absence of any traffic control device at an intersection does not render the intersection unsafe for use by persons exercising ordinary care and caution for their own safety, and this particular intersection was no more dangerous or unsafe than any other intersection where there are no traffic control devices.

There is a marked distinction between a sign, which, in some manner, misleads a motorist into proceeding into an intersection into the path of traffic, as in the case of a traffic control light with “green” on both sides, and a situation where the sign is simply no longer in place.

In the latter instance, where there is no sign to direct them, the motorists must abide by the rules of the road and they may not complain of the absence of a traffic control device.

Mrs. Nathaniel drove into this intersection at a speed of thirty miles per hour “assuming,” as she put it, that she had the right-of-way. It is manifest from her testimony that Mrs. Nathaniel’s injuries and damages were the result of her failure to use reasonable care and caution for her own safety when entering the intersection, and the trial court properly granted the defendant, City of Moss Point, a peremptory instruction in its favor.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ. and SUGG and LEE, JJ., concur.

PATTERSON, C. J., and BROOM, BOWLING and COFER, JJ., dissent.

BROOM, Justice,

dissenting:

I must with deference dissent because upon the pleadings and evidence there was made out a clear-cut jury issue which should have been left to the jury for its determination.

As stated by the majority opinion, Mrs. Nathaniel was traveling East on Meadow Drive when her vehicle was involved in a collision with another driven by one Bar-field headed North on Juniper. The vehicles collided in the intersection of Meadow Drive and Juniper, which intersect each other at approximate right angles. Set forth in the majority opinion correctly is a substantial portion of Mrs. Nathaniel’s testimony but omitted is the salient and critical part of her testimony which the majority apparently completely eliminates from consideration. Omitted from her testimony is the following:

Q. What type of surroundings in reference to — is it a subdivision, or what is it?
A. Yes, it is a subdivision. There is [sic] houses on all four corners of the streets.
Q. All right. In these intersections here you indicated that there were houses. Were they at each corner?
A. Yes.

As appears in the abstract of testimony and as is demonstrated by photographs in the record, proceeding East on Meadow Drive, Nathaniel’s vision to the South on Juniper on which Barfield was headed North, would obviously be obscured by houses. Mortal beings cannot see through houses, and it appears only logical to deduce from the evidence that plaintiff Nathaniel could not see traffic headed North on Juniper until she was practically within the intersection. Further, on cross examination, Nathaniel was asked:

Q. Okay, now you looked both ways before you entered it?
A. Yes.

(“It” in the above quoted portion refers to the intersection where the accident occurred). Although the above is quoted in the majority opinion, it is obviously ignored. The majority opinion states:

It is manifest from her testimony that Mrs. Nathaniel’s injuries and damages were the result of her failure to use reasonable care and caution for her own safety when entering the intersection, and the trial court properly granted the defendant, City of Moss Point, a peremptory instruction in its favor.

Our well-established rule is that when considering a requested peremptory instruction, the judge should consider all of the testimony and reasonable inferences in the light most favorable to the party litigant (Nathaniel) against whom such instruction is requested. Application of the rule here results in at least a reasonable and rational basis upon which one considering the testimony could conclude that Nathaniel’s attempt to look to her right (down Juniper upon which the other car was approaching in a northerly direction) would be obscured by the houses at the intersection until she was practically within it. From her testimony, it is logical to conclude that she was practically within the intersection before the other car was visible to her, at which time, seeing the other car was not going to stop, Nathaniel “slammed on brakes” in an effort to avoid the collision.

Giving consideration to Nathaniel’s testimony and reasonable inferences which may be drawn from it in her favor, I simply cannot agree that “it is manifest from her testimony” (language of the majority) that she was injured and damaged because of her own failure to use reasonable care and caution for her own safety. Noteworthy is the fact that the trial court did not find that her negligence caused her damages, and the peremptory instruction rested solely on sovereign immunity.

The majority opinion has completely and totally overlooked Mississippi Code Annotated § 11-7-17 (1972), which provides that:

All questions of negligence and contributory negligence shall be for the jury to determine.

Annotations under the quoted code section are legion to the effect that this case should have been submitted to the jury for it to resolve each and every question as to whether Nathaniel’s negligence or the negligence of Moss Point by failing to keep the stop sign properly in place caused the unfortunate accident in which she was injured and damaged. Here there was clear evidence to the effect that Moss Point had been advised that the sign was down and not in proper place. Bates v. Walker and The Merchants Co., 232 Miss. 804, 100 So.2d 611 (1958) is a case wherein the plaintiff entered an intersection without stopping even though confronted with a flashing red signal light. Our opinion there states the

[CJourt instructed the jury at the request of the appellees that appellant’s failure to stop before entering the intersection was a violation of the applicable law and was, therefore, negligence, but the court submitted for the determination of the jury the issue as to whether such negligence was the sole cause of the collision, and the jury resolved this issue in favor of the appellees. Such instruction was proper

There the case was resolved by the jury against the plaintiff. Here Nathaniel’s case should be decided by the jury which might find against her but the point is: reasonable minds can disagree here on whether there was causal relationship between (1) the stop sign being down and (2) the collision. The majority, in effect, is saying to Nathaniel — you are so calloused and such a negligent motorist that you would not have heeded a stop sign had it been there. Somehow it appears that someone has read her mind or otherwise divined her psychic.

The majority went to some length in discussing whether Moss Point was under a duty to keep the stop sign in place. A number of eases are cited including Wall v. City of Gulfport, 252 So.2d 891, 893 (Miss.1971) which the majority interprets to mean that whether to place a traffic control device at an intersection is a governmental function for which a municipality cannot be held liable. In the instant case there is no issue in this regard because Moss Point admitted that it was under a duty both to erect and maintain (emphasis added) a stop sign in the southwest corner of the intersection of Juniper Street and Meadow Drive. Wall v. City of Gulfport, supra, relied upon by the majority, is not controlling here where the city admitted its two-fold responsibility and duty to erect and maintain the traffic sign, and for the further reason that in the present case it was not “uncontra-dicted” that by using ordinary care and caution Mrs. Nathaniel would not have been injured.

On the facts of this case where Moss Point admitted it was under the two-fold duty to “erect” and “maintain” the stop sign, I cannot accept the language of the majority that plaintiff Nathaniel “may not complain of the absence” of the sign. If that be a correct statement of the law, then the word “duty” no longer connotes “responsibility” or “obligation” and defies the very definition of “duty”. Webster’s Third New International Dictionary, 1971 ed.

Because Moss Point admitted and left no issue as to its duty to maintain the stop sign, I feel strongly that § 11-7-17, supra, and the decisions of this Court in all fairness should be applied so as to let Mrs. Nathaniel have her full day in court and have the questions of negligence and contributory negligence decided by a lawfully constituted jury in accordance with the statute. At trial the case was decided (by peremptory instruction) on governmental or sovereign immunity, but here the majority reached its decision on a totally different theory: Nathaniel’s “failure to use reasonable care. . . . ” It may very well be that had Moss Point discharged its admitted duty to maintain the stop sign — possibly the collision would have occurred anyway. The uncontradicted truth is: the stop sign might have made a difference, and only the jury should decide the issue. Nevertheless, this appellate Court has assumed the role of jurors and summarily found for Moss Point in a case where reasonable minds can logically differ on whether a stop sign in proper position would have caused Nathaniel to act differently than as she acted here where the sign was down. Clearly testimony in the record when construed in her favor as we must do in this posture of the case, negated any holding that she (and she alone) caused her own injuries and damages by her failure to use reasonable care and caution.

PATTERSON, C. J., and BOWLING and COFER, JJ., join this dissent.

      . In the maintenance and repair of streets, municipalities act in a proprietary or corporate capacity and may be held liable for the negligent performance of this function. Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290 (1928). Abstract formulae for determining the character of municipal functions have been stated in former decisions, City of Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L.R.A., N.S., 649 (1911). . . . (Tucker v. City of Okolona, 227 So.2d at 476).


text:
    Robert OLIPHANT and Alice Oliphant v. Leo HUGHES et al.
    No. 51913.
    Supreme Court of Mississippi.
    May 14, 1980.
    Rehearing Denied July 9, 1980.
    Laurel G. Weir, Philadelphia, for appellants.
    J. 0. Hollis, Carthage, for appellees.
   Appeal from Circuit Court, Leake County; Harold Davidson, Special Judge.

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

AFFIRMED.


text:
    Louise Simon TAYLOR v. Willie GALLOWAY et ux.
    No. 51931.
    Supreme Court of Mississippi.
    May 21, 1980.
    Rehearing Denied July 23, 1980.
    Cupit & Maxey, Robert W. Sneed, Jackson, for appellant.
    Powell & Fancher, Joe R. Fancher, Jr., Canton, for appellees.
   Appeal from Chancery Court, Madison County; E. G. Cortright, Chancellor.

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

AFFIRMED.