author: GUIDRY, Judge.

text:
    Roy HRYHORCHUK, Plaintiff-Appellant, v. Roy M. SMITH et al., Defendants-Appellees-Appellants.
    No. 7267.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Writ Granted March 21, 1980.

      Drewett, Jacques & Thomas, Robert W. Thomas, Lake Charles, for plaintiff-appellant.
    Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Stockwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, Robert H. Marve, III, Woodrow W. Wyatt, Baton Rouge, Allen, Gooch & Bourgeois, Raymond M. Allen, Lafayette, Stephen R. Streete, Rester, Van Norman & Wright, Kenneth M. Wright, Hall, Lestage & Hall, H. O. Lestage, III, DeRidder, Rag-gio, Cappel, Chozen & Berniard, Fred L. Cappel, Camp, Carmouche, Palmer, Barsh & Hunter, G. Michael Bourgeois, Woodley, Barnett, Cox, Williams & Fenet, E. E. Woodley, Scofield, Bergstedt & Gerard, J. Michael Veron, Alvin B.. King, Lake Charles, for defendants-appellees-appel-lants.
    Before CULPEPPER, GUIDRY and YELVERTON, JJ.
   GUIDRY, Judge.

Plaintiff instituted this suit seeking to recover for personal injuries sustained in an accident which occurred in ward five of Calcasieu Parish on April 28, 1976. When the trial of this matter commenced in May of 1978 the following parties were defendant:

(1) Roy M. Smith and his liability insurer, State Farm Mutual Automobile Insurance Company (hereafter, State Farm).
(2) The Calcasieu Parish Police Jury (hereafter, Police Jury) and its comprehensive general liability insurer, United States Fidelity & Guaranty Company (hereafter, USF & G).
(3) The Calcasieu Parish Sheriff’s Department (hereafter, Sheriff’s Department) and its liability insurer, North River Insurance Company (hereafter, North River).
(4) The State of Louisiana, through its Department of Public Safety (hereafter, Department of Public Safety).
(5) The State of Louisiana, through the Department of Transportation and Development, Office of Highways (hereafter, Department of Transportation).
(6) William Clifton and his automobile liability insurer, Pennsylvania General Insurance Company, (hereafter, Pennsylvania General).
(7) State Farm Mutual Automobile Insurance Company (hereafter, State Farm), plaintiff’s uninsured motorist carrier.

Subsequent to the commencement of trial plaintiff learned that there were additional liability insurers of the Police Jury, i. e., Travelers Insurance Company (hereafter Travelers) and Houston General Insurance Company (hereafter Houston General) and a liability insurer of the Department of Public Safety, Travelers Insurance Company. Upon securing this knowledge, plaintiff offered to file a supplemental petition naming these insurers as additional parties defendant. The trial court refused to allow the filing of this supplemental petition. Because of scheduling difficulties the case was only partially tried in May of 1978 and rescheduled for completion in November of 1978. On August 3, 1978, plaintiff filed an additional suit seeking a declaratory judgment holding that Roy M. Smith was an insured under the policies of insurance issued by Travelers and Houston General to the Police Jury and the policy issued by Travelers to the Department of Public Safety. This suit entitled, Roy Hryhorchuk v. Calcasieu Parish Police Jury et al., La. App., was consolidated for purposes of trial with this matter.

Almost simultaneous with the filing of the declaratory judgment suit, Roy M. Smith filed a third party demand in the first suit against the Police Jury, the Department of Public Safety, the Sheriff’s Department, the Department of Transportation, and their respective insurers. The trial court allowed the filing of the third party demand against all defendants except Travelers. Trial of the consolidated matters resumed in November of 1978. At the close of the plaintiff’s case the trial court sustained several motions for directed verdicts and dismissed plaintiff’s petition for a declaratory judgment and also dismissed all of plaintiff’s demands against the Police Jury, USF & G, the Sheriff’s Department, North River, the Department of Public Safety and the Department of Transportation, as set forth in the initial suit. Thereafter, the trial continued against the remaining defendants and on the third party demand of Smith, resulting in a judgment as follows:

(a) in favor of plaintiff and against defendants, Roy M. Smith, William Clifton, State Farm and Pennsylvania General, in solido, for $40,000.00 (the limits of liability of the policies issued by State Farm and Pennsylvania General);

(b) in favor of plaintiff and against Smith and Clifton, in solido, for the sum of $587,389.24; and,

(c) dismissing all incidental and third party demands excepting the demand of intervenor, Lawanda Hryhorchuk, plaintiff’s wife, who separate in property as a result of a judgment of separation and board, had intervened seeking a share of plaintiff’s recovery.

Following rendition of judgment State Farm and Pennsylvania General deposited their respective limits of liability with interest in the registry of court. Judgment was rendered allowing the deposit in full satisfaction of the judgment rendered against the insurers.

Plaintiff and defendants, Roy M. Smith, State Farm, William Clifton, and Pennsylvania General, appealed. Appeals were likewise taken in the declaratory judgment suit, which bears our docket number 7268, in which matter we this day render a separate decree.

Appellants made several specifications of error which are summarized as follows:

(1) The trial court erred in finding Roy M. Smith negligent and his alleged negligence a proximate cause of the accident.

(2) The trial court erred in finding William Clifton negligent and his alleged negligence a proximate cause of the accident.

(3) The trial court erred in failing to find Roy Hryhorchuk guilty of contributory negligence.

(4) The trial court erred in failing to find that Roy M. Smith was an executive officer, employee, and/or direct agent or representative of either, all, or any combination of the following: the Police Jury; the Sheriff’s Department; the Department of Public Safety; and, the Department of Transportation.

(5) The trial court erred in failing to find that Roy M. Smith was a legally commissioned deputy sheriff of Calcasieu Parish.

(6) The trial court erred in failing to find that Roy M. Smith was an insured under either, all, or any combination of the policies of insurance issued to the entities names in subsection (4) above.

(7) The award made by the trial court for lost wages and loss of future wages is excessive.

(8) The trial court erred in refusing to consider the inability of the individual defendants to respond in judgment in fixing the award.

The trial judge rendered written reasons for judgment in which he sets forth the facts surrounding the accident which precipitated the filing of this law suit. We have carefully reviewed the voluminous record in this case and find that, except for minor discrepancies explained in footnotes, the trial judge’s written reasons, which we quote, clearly and accurately set forth the factual setting.

“On April 27, 1976 ROY HRYHORCHUK was severely injured in an unusual accident. This accident occurred when WILLIAM R. CLIFTON, driving a 1976 Dotson (sic) pick-up truck, collided head-on with an automobile owned by ROY SMITH, and parked in the highway by Smith. The occurrence was on Highway # 12, in the western part of Calcasieu Parish.
Hryhorchuk filed suit against Clifton, Smith, their respective insurers, and his own insurer, who had issued him two policies with uninsured motorist's cover-
age.
The insurance picture is as follows:
INSURED INSURER LIMITS
William Clifton Pennsylvania Insurance Co. $10,000.00
Roy M. Smith State Farm Mutual Automobile Insurance Company $10,000.00
Roy Hryhorchuk (Uninsured Motorist) State Farm Mutual Automobile Insurance Co. (2 policies) $20,000.00
Although a number of defendants were included in this action earlier, all, save the defendants listed above, have been dismissed by the court.
A discussion of the facts, and how the court arrived at these facts, follows:
On the night of the accident, 'Hryhor-chuk had been visiting with his family in Texas. That evening, on his way back home he passed over a bridge on Highway # 12 and noticed a pick-up truck straddling the bridge railing off of the roadway) ! Hryhorchuk recognized the truck as belonging to a friend of his, one Huey P. Thompson. He also saw Thompson sitting on the railing. Hryhorchuk continued home, let off his wife and children, and returned to the bridge to see if Thompson needed any assistance. While Hryhorchuk was on his way back to the bridge, the next event, in what was to be a strange sequence, occurred.
Curtis R. Bartel was also driving Highway # 12 in route from Texas. He was being followed by a friend in another automobile, whose name was Ricky Mar-cantel. As Bartel approached the bridge, he found that he had to swerve abruptly to miss an automobile coming from the opposite direction.[ ] This sudden maneuver confused his friend, Marcantel, and Marcantel temporarily lost control of his automobile and struck the guard railing.
This was a minor accident and the occurrence of this accident itself is disconnected with the fact that the pick-up truck was lodged on the guard rail. While there may be some argument that this would be a strange coincidence, a closer view of Bartel’s testimony and all other facts show that there was no connection between the position of Huey Thompson’s pick-up and Ricky Marcan-tel’s accident. The importance of this determination will be seen later o«.[]
William Chapman,- on the night of the accident, was an employee with the Department of Transportation and was on duty at a weigh station off of Highway [ ] 12, some four miles east of the bridge under discussion.^ About 9:30 P.M. on that night he learned of an accident on the bridge from a passing trucker. He radioed Louisiana State Police Headquarters at Troop D. 'He was requested by the dispatcher there to have a ‘stand by’ to flag traffic because of the time it would take before a trooper could arrive. Chapman first called the Sheriff’s Department and evidently no Deputy was readily available. He then called Roy Smith. The reason that he call [sic] Smith next is because Smith was the Constable for Ward 5, which was the Ward of Calcasieu Parish in which this was all happening.
Smith lived about six miles from the' accident site and drove on over at Chapman’s request.
When he arrived, he first saw Thompson’s truck sitting on the bridge railing. He then observed a car on the north shoulder west of the bridge, probably the Marcantel vehicle, and he determined that there had been two accidents.
Now the next unusual thing in this sequence occurred. Rather than parking his vehicle on the shoulder of the road, Smith decided to park it in the eastbound lane of traffic, facing west. The point he selected was somewhere in the middle of the bridge,[ ] close by the Thompson vehicle.
Smith turned off the head lights of his car, but turned his emergency blinkers on. In addition, he reached on top the car and placed a ‘Kojak’ light. This is a single incandescent bulb with a flashing mechanism, and covered with a red-tinted plastic cover. He raised the hood of his automobile a few inches, in order to allow the engine to remain cool because his motor was left running to supply power for the emergency blinkers and the flashing light.
In the meantime Hryhorchuk had already arrived at the scene. He had engaged Thompson in some conversation, and because Thompson’s attitude was uncooperative, Hryhorchuk was in some kind of dilemma. He did not want to leave his friend but he wanted to go back home.
While he was mulling over this problem, he was standing off of the roadway in the front of Thompson’s truck. This would place Hryhorchuk somewhat behind Smith’s automobile. Several other people were sitting on the guard rail and Smith and Bartel were standing somewhere near the front of Smith’s automobile.
Down the road, Aaron Ellis was waving traffic down with a six-volt hand lantern. Ellis had come upon the scene and decided to assist in this manner. He had taken a position about 100 feet west of the bridge, had parked his automobile off on the shoulder, and had been successful in alerting about ten vehicles of the problem at the bridge.
William R. Clifton had traveled Highway # 12 many times. On the night in question he was also coming from Texas. Between 2 and 21A miles from the bridge, Clifton saw a red blinking light. Presumably, it was the light on Smith’s car. But as he approached the bridge site he does not remember seeing it again. In his mind he thought that what he had seen was the caution light, which is near the weigh station some four miles further on down the road.[ ]
Ellis waved his light at Clifton and upon realizing that Clifton was not going to stop, moved off of the roadway out of the path of car. About this time someone yelled something like: ‘He’s not stopping!’. The testimony indicates that it was probably Ellis who gave this verbal warning.
Smith and Bartel saw the danger and scooted out of the way. Clifton did not become aware of the Smith vehicle directly in his roadway until a car length or so away. The two vehicles met in a frontal impact and the Smith automobile hurdled (sic) backwards, striking Hryhor-chuk and knocking him over the embankment and into the ravine below. Hryhor-chuk sustained injuries which will be discussed at length in a subsequent section.”

With the foregoing facts in mind we proceed to a consideration of the several specifications of error raised by appellants.

NEGLIGENCE OF ROY M. SMITH

The trial judge concluded that Smith was negligent in parking his automobile so as to completely block the east bound lane of La. 12 and that this negligent conduct was a proximate cause of the accident and the injuries sustained by plaintiff. In reaching this conclusion the trial judge points to the fact that the parking of his automobile in the highway served no useful purpose as the Thompson pick-up truck was well off of the road and presented no obstacle or danger to the flow of traffic.

The record fully supports the trial judge’s finding that the Thompson vehicle was well onto the south shoulder of the road and presented no danger to oncoming traffic. This being considered and considering further that it was well after dark and the only devices available for warning oncoming motorists were the blinkers on the Smith car and a small “Kojak” light we agree that Smith’s conduct was negligent and a proximate cause of the accident.

LSA-R.S. 32:141 makes it unlawful to park or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or leave such vehicle off such part of the highway. In speaking to the duty imposed by the cited statute our brethren of the Fourth Circuit in Haas v. Southern Farm Bureau Casualty Insurance Company, 321 So.2d 380 (La.App.1975), writ refused, La., 323 So.2d 133, stated:

". . . The duty to refrain from parking on a highway is imposed as a safety measure in order to keep traffic arteries open. The obstruction of highways not only impedes passage, but also creates a risk that a confused or inattentive driver will collide with the stationary vehicle. The risk of harm created by a motorist’s obstructing a highway imposes a reciprocal duty on motorists to refrain from doing so.” (footnote omitted)

In seeking to justify his actions, Smith suggests that at the time of the accident he enjoyed the status of the driver of an emergency vehicle and in the alternative that his negligent conduct is excusable because he enjoyed the status of a rescuer. We find merit in neither of these contentions.

Although LSA — R.S. 32:24 permits the driver of an authorized emergency vehicle to “park or stand” on the main traveled part of the highway such privilege is subject to the specific statutory condition that it will be exercised with due regard for the safety of others. The fault arising from the conduct of the driver of an emergency vehicle is excusable under the cited section only if the action taken is not unreasonable and is reasonably required by the situation of the emergency. In Sullivan v. Hartford Accident & Indemnity Company, 155 So.2d 432 (La.App. 2nd Cir. 1963), writ refused 245 La. 64, 156 So.2d 604, the court singled out two factors which should be considered in determining whether a particular dangerous act of a driver of an emergency vehicle is excusable:

“(1) The inherent danger of the act of the driver; (2) Whether the dangerous act was necessary to the performance of the emergency function.”

When these two factors are considered it immediately becomes apparent that Smith can derive no comfort from the provisions of LSA-R.S. 32:24 for his act in completely blocking the east bound lane of the highway in question, after dark, was inherently dangerous and unnecessary to the performance of the emergency function.

Further, in our opinion, these principles are equally applicable to one who seeks to avoid liability for his own negligent conduct claiming the status of a rescuer. See Hebert v. Perkins, 260 So.2d 15 (La.App. 4th Cir. 1972); Miller v. Carter, 346 So.2d 748 (La.App. 1st Cir. 1977); cf. Chastain v. Allstate Insurance Co., 212 So.2d 243 (La.App. 2nd Cir. 1968).

We find no error in the trial court’s conclusion that on the occasion in question Roy M. Smith was negligent and his negligent conduct a proximate cause of the accident.

NEGLIGENCE OF WILLIAM CLIFTON

In disposing of this issue the trial court stated:

“A night traveling motorist, in good weather and on a good road, is not expected to drive with such caution as to anticipate unusual obstructions in the highway. To determine whether or not a night driver is negligent in striking such an object, the whole of the circumstances surrounding the incident must be examined, and the broad requirement of reasonableness must be applied.
In the instant case, the object in the road, the Smith vehicle, was stationery and in the middle of Clifton’s lane of traffic. That Smith’s emergency blinkers were on and visible to Clifton is not disputed. Whether or not the ‘Kojak’ light was visible to Clifton, has been disputed.
It has been suggested that the hood on the Smith automobile obstructed the view of the flashing light for traffic coming from the west. It is the testimony of all who saw the raised hood, that it was not high enough to cause this visual obstruction. The argument that the hood perhaps ‘worked up’ because the engine was running is speculation not based on any evidence. The court finds that as a matter of fact, the flashing red light should also have been visible to Clifton.
An additional circumstance is that Aaron Ellis, using the hand lantern some 100 feet to the west, tried to slow Clifton.
A review of all the circumstances leads the court to the conclusion that Clifton, as a reasonable and prudent driver under these circumstances, should have been alerted by the various warning lights, activities on the bridge, and congestion of cars on the shoulder, to have brought his automobile into such control as to have stopped if something were in the roadway. To the contrary, the testimony discloses that he reduced his speed very lit-, tie, if any. The court finds that William Clifton is also guilty of proximate negligence leading to the injuries sustained by Hryhorchuk. ”

The standard of care of the nighttime driver is one based upon the broad requirement of reasonableness. Craker v. Allstate Insurance Company, 259 La. 578, 250 So.2d 746 (La.1971). The trial court considered the evidence in light of this standard and concluded that William Clifton was negligent and that his negligence was a proximate cause of the accident. We find no manifest error in this holding.

CONTRIBUTORY NEGLIGENCE OF HRYHORCHUK

The trial court held that the plaintiff Hryhorchuk was free from any negligence. The evidence in the record makes clear that at the time of accident plaintiff was well off of the traveled portion of the highway. There is nothing in the record which would suggest that he was guilty of any negligent conduct which could in any way have contributed to the accident or to his injuries. In any event, a careful study of the recent case of Baumgartner v. State Farm Mutual Auto Ins. Co., 356 So.2d 400 (La.1978) makes clear that contributory negligence is no longer a defense to a pedestrian’s claim for damages sustained due to the negligence of a motorist.

AT THE TIME OF ACCIDENT WAS ROY M. SMITH AN EXECUTIVE OFFICER, EMPLOYEE, AND/OR AGENT OF EITHER, ALL, OR ANY COMBINATION OF THE FOLLOWING: THE POLICE JURY, THE SHERIFF’S DEPARTMENT, THE DEPARTMENT OF PUBLIC SAFETY, AND THE DEPARTMENT OF TRANSPORTATION?

The trial court concluded that at the time of accident Smith was neither the employee, agent or executive officer of any of the entities named above. We agree.

In the recent case of Savoie v. Fireman’s Fund Insurance Company, 347 So.2d 188 (La.1977) our Supreme Court set forth succinctly the criteria for the finding of an employee-employer relationship. Specifically, the court stated: ,

“. . . the word ‘employee’ understood in its common and usual sense, signifies one who is a party to an employment contract, express or implied.
In determining whether an employment relationship exists . . . the jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972); Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). Factors to be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages and the power of control and dismissal. Dauzat v. Crites, 237 So.2d 697 (La.App. 4th Cir. 1970); Wambles v. State, 283 So.2d 331 (La.App. 4th Cir. 1973); Trahan v. State, 158 So.2d 417 (La.App. 3rd Cir. 1963). Moreover, La. Civil Code art. 2669 provides that:
‘. . . (H)ire is a synallagmatic contract, to which consent alone is sufficient, and by which one party gives to the other the enjoyment of . . his labor, at a fixed price. ’ ”

Considering the above the evidence makes crystal clear that at the time of accident no employee-employer relationship existed between Smith and any of the entities above named. There was no synallagmatic contract existing between them. None had selected or engaged him for employment. None had supervision or right of control over him and none had the power to dismiss him. None except, the Parish of Calcasieu, contributed to the payment of his wages. The fact that Roy M. Smith was the duly elected Constable of Ward 5 of Calcasieu Parish at the time of accident and that the Parish of Calcasieu paid the greater part of his salary did not have the effect of making Smith an employee of the Police Jury.

It is well settled that a “state office” is one created by the constitution or state statute. State v. Dark, 195 La. 139, 196 So. 47 (La.1940); State v. Titus, 152 La. 1011, 95 So. 106 (La.1922); Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (La.1952). The office of Constable is a creature of the legislature. LSA-R.S. 13:2581.

In the rather recent case of Cosenza v. Aetna Insurance Company, et al, 341 So.2d 1304 (La.App. 3rd Cir. 1977), we considered the issue as to whether the Parish of Rap-ides was vicariously responsible for the actions of the Clerk of the City Court of Pineville, Louisiana. In concluding that the Parish of Rapides was not legally liable for acts of the Clerk of the City Court we stated:

“Although the Parish of Rapides contributes to the salaries of both the city judge of the Pineville City Court and his employee, the city court clerk, we are of the opinion that the relationship between the Parish and the Judge (and his clerk) terminates at that point. The City Court and the office of City Judge are created by legislative act based upon authority derived from the state constitution. As such, the city judge is a state officer and the police jury of Rapides Parish or any other executive body at that level is powerless to interfere with or direct the activities of the court.
In the case of State ex rel. Bass v. Mayor and Board of Aldermen of City of Oakdale, 204 La. 940, 16 So.2d 527 the city council attempted to eliminate the office of city marshall (created by the Legislature) by drastically reducing that officer’s salary. The Supreme Court held that when the Legislature has created an office a city council cannot nullify or abolish it by any direct or indirect means.
In cases involving the operations of sheriffs’ departments our courts have held that a police jury or parish has no authority to interfere with the operations of a sheriff’s department, the latter being a constitutionally created office. See Wood v. Maryland Casualty Company, 322 F.Supp. 436 (D.C.La.1971) (Western District of Louisiana), and State ex rel. Police Jury of Parish of Vernon v. Davis, 120 La. 862, 45 So. 838 (La.1908).
Following that principle, the logical conclusion was stated in Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91 (La.App. 4th Cir. 1970):
‘The court is of the opinion that as a matter of law, the Parish of Jefferson exercises no power or discretion in the functioning of the Jefferson Parish Sheriff’s Office. The Sheriff’s Office is a constitutional office, LSA-Const. Art. 7 § 65. It exists and functions independently of the governing body of the Parish. LSA-Const. Art. 14 § 3(c). Therefore there can be no vicarious liability on the part of the Parish of Jefferson for the acts of the Sheriff of Jefferson or any of his deputies.’
See also the separation of powers doctrine embodied in LSA-Const. 1974 Art. 2, Sec. 1.
Likewise, we are of the opinion that the Parish of Rapides exercises no power or discretion in the functioning of the City Court of Pineville, Louisiana. Thus, we fail to see how vicarious liability whatsoever exists on behalf of the Parish of Rapides for alleged tortious conduct of an employee of the constitutionally and statutorily created City Court of Pine-ville. Simply stated, the City Judge is a state officer, and the Clerk is his employee. The Parish of Rapides is not an employer or master of the City Court as alleged in the City of Pineville’s petition. Ergo the Parish of Rapides is, under no theory, responsible for the actions of the Judge of the City Court of Pineville or those of his employees.”

In the recent case of Foster v. Hampton, 352 So.2d 197 (La.1977) the Supreme Court refused to hold a local governmental entity (East Baton Rouge Parish) liable for the alleged tortious acts of a state officer (deputy sheriff). In Foster, supra, after concluding that a deputy sheriff is an officer of the state, the court quoted approvingly from the court of appeal opinion which rejected plaintiff’s demand against the Parish as follows:

“The Court is of the opinion that as a matter of law, East Baton Rouge Parish exercises no power or discretion in the functioning independently of the governing -body of the Parish. La.Const. of 1974, art. 5 Sec. 27. There can be no vicarious ¡¡ability on the part of the parish for the acts of the sheriff or his deputies. See Nielson v. Jefferson Parish Sheriff’s Office, supra, at page 94 [242 So.2d 91 (La.App. 4th Cir. 1970].’’

In support of their contention of error appellants rely on the case of Honeycutt v. Town of Boyce, 341 So.2d 327 (La.1976) suggesting that the holding of that case is to the effect that a local government entity is liable for the torts of a state officer and that liability does not depend on the amount of control exercised by the local government over such state officer. We disagree with plaintiff’s analysis of that decision. In Honeycutt the employee-employer relationship between Hillman (Town Marshal) and the Town of Boyce was assumed rather than addressed. In that case the court simply held that the trial court erred in sustaining an exception of no cause of action, where, according to the pleadings, plaintiff complained of injury caused by the negligence of Honeycutt when the latter was performing duties incident to his employment with the Town of Boyce.

We conclude that the principles of law recently reiterated by this court in Cosenza, supra, and by our Supreme Court in Foster, supra, are applicable to the circumstances of this case. The office of constable is a State office created by act of the legislature. Although the Parish contributes to the salary of the constable, it has no power, authority or discretion in the functioning of that office. Accordingly, as a matter of law, the Parish of Calcasieu is not vicariously liable for the delicts of Constable Smith.

Neither does the evidence in the record reflect that at the time of accident Roy M. Smith was acting as an agent or direct representative of any of the entities above named. An agent may be defined as one who acts for or in the place of another by authority from him. LSA-C.C. Articles 2985, 2986, 2992; 2 C.J.S. Agency § 1c, pgs. 1023-1025. Downs v. Delco-Light Co., 175 La. 242, 143 So. 227 (La.1932). There is no evidence in the record which would even suggest that Smith, at the time of accident, was acting as an agent or representative of any of the governmental entities above named or that he had any authority verbal or otherwise to do so. Smith simply went to the accident scene as the Constable of the 5th Ward of Calcasieu Parish upon being. advised by a Department of Transportation employee that an accident had occurred on the bridge. It is inconceivable that as a result of this call, from a weigh station employee at the request of the dispatcher who suggested that he get someone to “stand by”, Smith became the agent or direct representative of the Police Jury, the Sheriff’s Department, the Department of Public Safety and the Department of Transportation.

Finally, we observe in connection with this specification of error that obviously Smith did not enjoy executive status with any of the named entities.

DID THE TRIAL COURT ERR IN FAILING TO FIND THAT ROY M. SMITH WAS AN INSURED UNDER EITHER, ALL OR ANY COMBINATION OF THE POLICIES OF INSURANCE ISSUED TO THE GOVERNMENTAL ENTITIES MADE DEFENDANT?

In rejecting appellants’ demands against the several insurers the trial court stated:

“ . . . Each one of these policies provides that the responsibility of the company, the insurance company, is to pay for or to reimburse a named insured for specified legal liabilities. There were some special categories of persons other than named insureds for whom coverage is provided, but they were very limited, and Roy Smith did not fall within any of these particular special categories. Considering that the court has held above that the insureds cannot be liable in this matter, it follows that the insurers cannot be liable.” (Tr. pgs. 1624 and 1625)

We agree that unless Roy M. Smith falls within a special category of persons for whom coverage is provided under the several policies, that there is no coverage. It is well settled that if there is no liability on the part of the insured, there can be no liability on the part of the insurer under its policy. Smith v. Kelly Labor Service, 239 So.2d 685 (La.App. 4th Cir. 1970), writ ref. 257 La. 173, 241 So.2d 531 (La.1970); Foster v. Hampton, supra.

The special categories of persons, of which the trial judge spoke, include executive officers, directors, stockholders, employees, agents or direct representatives. In addition the policy issued by North River covers “each legally commissioned Deputy Sheriff” and the policy issued by USF & G covers “Policemen”. We have previously demonstrated that Smith, at the time of accident was not an executive officer, employee, agent or direct representative of any of the governmental entity insureds.

Appellants suggest that Smith was a “legally commissioned Deputy Sheriff” and as such an insured under the North River policy, because at the time of accident he possessed an honorary commission as such. We find no merit in this contention.. Being possessed of an honorary commission as a deputy sheriff is simply what the term implies, i. e., designating an office or position held as an honor only without service or pay. The North River policy grants coverage only to a “legally commissioned deputy sheriff”. One holding an honorary commission as a deputy sheriff is not a “legally commissioned deputy sheriff”. Accordingly there is no coverage for Smith under the North River policy.

Nor do we find coverage for Smith under the USF & G policy which provides coverage for the general category “policemen”. The category can only be considered to cover “policemen” for whom the insured has some responsibility. We have concluded that the Parish of Calcasieu has no power, authority or discretion over the office of constable and bears no responsibility for his actions while in the performance of his duty. Since the insured is not liable there can be no liability on the part of the insurer. To decide otherwise would expose the insurer to liability for the delicts of all persons who might fall within this general category who keep order, detect crime, etc., regardless of their employment affiliation. This we decline to do.

IS THE TRIAL COURT’S AWARD EXCESSIVE?

Appellants, Smith and Clifton, urge that the award by the trial court for lost wages and future loss of income is excessive and not supported by the evidence. Additionally, they contend that the total award is excessive and should be reduced because of appellants’ inability to respond in judgment.

The trial court awarded plaintiff the total sum of |627,389.24, which includes general damages in the amount of $100,000.00 and special damages totaling $527,389.24. The special damage award includes loss of past wages fixed at the sum of $31,929.75; future loss of income, fixed at the sum of $471,209.93; and, medical expenses of $24,-249.56. The total insurance available from all sources amounts to the sum of $40,000.00 which results in a personal judgment against Smith and Clifton, in solido, for the sum of $587,389.24 with legal interest from date of judicial demand until paid.

Upon trial of this matter Smith and Clifton presented uncontradicted evidence concerning their ability to respond in judgment. The evidence presented by Smith reflects that he is a 56 year old married man. He is presently employed as a janitor at the DeQuincy High School earning a gross salary of $142.80 per week. In addition to his salary as a janitor, Smith receives $150.00 monthly as constable. Smith’s assets include a $600.00 savings account, a boat and motor valued at $500.00 and lxh acres and a modest home with a total estimated value of $7000.00.

William Clifton is 27 years old, married and the father of one child. He is employed by Kansas City Southern as a railroad engineer and earns $8.00 per hour. His assets include his home, a Datsun automobile and a pick-up truck. His present indebtedness on the listed assets amounts to the sum of $55,400.00.

Although the trial court is his written reasons acknowledged that the award made was “far beyond the reach” of either defendant he concluded that the award should not be reduced because of their impecuniosity stating:

“The award granted by the court will far exceed the available insurance coverage from the defendant insurance companies. This means that the balance of the award will have to be shouldered by the two individual defendants, Roy Smith and William Clifton. Evidence of the inability to pay a large judgment was introduced by each of the defendants. There is no question in the court’s mind that the testimony of each defendant regarding his financial status was correct and that they would be unable to pay the difference between the award and available insurance proceeds.
The decision by the court of the defendants’ inability to pay results from a jurisprudential rule of long standing. It was said in Lacaze v. Horton, 100 So.2d 252 (La.App. 2nd Cir. 1958):
‘It must be borne in mind that this principle is not to completely relieve a defendant of liability for reparation of damages inflicted by his own negligence, nor should it be considered as justifying the reduction in the allowance of damages to a bare minimum.’
Considering the amount of damages which should be allowed to Hryhorchuk, a reduction by this court of that figure to an amount which would be in the financial grasp of the two defendants, would result in an extreme usage of the doctrine which has not be (sic) contemplated by our jurisprudence. The court finds that the ‘inability to pay’ rule is functional only when there is a common ground which can be reached between the damages due a claimant and the financial abilities of the defendant. As is in this case, when the award is far beyond the reach of the defendant, a reduction down to a point attainable by the defendants would violate the rule voiced by the La-caze case above. For these reasons the inability of the defendants to respond in damages is not considered to be applicable and will not be used by the court to reduce the amount of the award.”

We believe that our learned trial brother erred and conclude that the award must be reduced.

It is well settled in our law that the financial ability of a defendant to pay is a circumstance which must be considered in assessing an award for damages, both general and special. Urk v. Southern Farm Bureau Casualty Insurance Company et al., 181 So.2d 69 (La.App. 2nd Cir. 1965), writ refused 248 La. 909, 182 So.2d 661 (1966), and authorities therein cited; Lambert v. Foy, 224 So.2d 11 (La.App. 1st Cir. 1969); State Farm Fire & Casualty Company v. Drost, 330 So.2d 393 (La.App. 3rd Cir. 1976); Davis v. Moore, 353 So.2d 740 (La.App. 4th Cir. 1977) writs refused, La., 354 So.2d 1379 and La., 354 So.2d 1384.

In Davis, supra, our 4th Circuit Brethren set forth the origin, theory and application of the rule to be as follows:

." . . . The ‘inability to pay’ rule is a creature of jurisprudence dating back to 1898 in Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (1898). Ever since, it has been repeatedly espoused by courts of this state. See 22 Am.Jur.2d Damages §§ 319 and 320. As applied by Louisiana courts, the rule allows evidence of the ability of defendant to respond in damages to be considered in determining the amount of the judgment to be awarded. The theory behind the rule was stated by the court in Cole v. Sherrill, 7 So.2d 205 (La.App. 2nd Cir. 1942), cert. denied:
‘It has never been considered good policy to bankrupt one to pay another even though the award granted is not in line with other cases involving the same injuries and might not fully compensate the plaintiff for the injuries he received. Fair justice between both parties must be arrived at.’

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

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

We cannot agree that the “inability to pay” rule is functional only when there is a common ground which can be reached between the damages due a claimant and the financial abilities of the defendant. If the application of the rule were dependent upon such circumstance its purpose would in most cases be frustrated.

We have carefully reviewed the record in light of the legal principles set forth above and, everything being considered, we conclude that a total award to plaintiff, over and above the amount of insurance available, in the sum of $50,000.00 does substantial justice between the parties. Since we determine, for the reasons set forth above, that the award must be reduced we do not consider appellants’ remaining assignment of error concerning ex-cessiveness of the award for lost wages, past and future.

For the above and foregoing reasons we amend the judgment appealed from so as to reduce the award in favor of plaintiff, Roy Hryhorchuk, and against the defendants, Roy M. Smith and William Clifton, individually, jointly, severally and in solido, from the sum of $587,389.24 to the sum of $50,-000.00, with legal interest on such sum from date of judicial demand until paid. In all other respects the judgment appealed from is affirmed. Costs of this appeal to be borne by Roy M. Smith, William Clifton, Pennsylvania General Insurance Company and State Farm Mutual Automobile Insurance Company.

AFFIRMED AND AMENDED.

      . The record reflects that the truck was actually straddling the guard rail, located on the south shoulder of La. 12, on the approach to the bridge. The guard rail, from its western terminus to its connection with the bridge abutment measured 99'. At its western terminus the guard rail is 6/2' from the pavement edge but it curves and gradually approaches the pavement edge until at the bridge abutment it is flush with the pavement edge. The record further reflects that the truck was astride the guard rail some 60' or 70' west of the bridge.

      . The record reflects that Bartel swerved to avoid a car which he was following • whose driver for some reason swerved and applied his brakes (Tr. pg. 1651).

      . Following this occurrence the Bartel and Marcantel vehicles were turned around and driven onto the north shoulder of La. 12 some distance west of the bridge.

      . Actually the record reflects that the weigh station is located about V2 mile east of the bridge under discussion although it is approximately 4 miles east of the Sabine River bridge.

      . When the trial judge refers to the “middle of the bridge” he speaks of the middle of the approach to the bridge. See footnote 1.

      . See footnote 4 as concerns respective locations of the bridge and weigh station.

      . This section was continued as a statute from La.Const. of 1921, Art. 7, Sec. 49.

      . Appellants suggest that such a relationship existed between Smith and all or one of the named entities so as to bring Smith within the definition of an insured under the policies of insurance issued to such entities, not for the purpose of holding the entity itself vicariously liable. See Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968).

      . Since we conclude that the trial court did not commit error in dismissing plaintiffs suit as against the Calcasieu Parish Sheriffs Department and North River, we do not consider nor pass upon the Sheriff Department’s exception of no cause of action, filed in this court, to the effect that the “Calcasieu Parish Sheriffs Department” is not a legal entity and cannot be sued as such. Liberty Mutual Ins. Co. v. Grant Parish Sheriff’s Department, 350 So.2d 236 (La. App. 3rd Cir.), writ denied 352 So.2d 235 (La.1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C. E. BURFORD et al. v. DeSOTO PARISH SCHOOL BOARD.
    No. 14161.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1980.
    Edward O. Kernaghan and Patrick W. Looney, Shreveport, for plaintiffs-appellants.
    John F. Ward and Benton, Benton & Benton by Fred G. Benton, Jr., Baton Rouge, for defendant-appellee.
    Before PRICE, MARVIN and McCLEN-DON, JJ.
   PER CURIAM.

This proceeding by landowners in DeSoto Parish School District No. 2 was pending when we decided Howe v. DeSoto Parish School Board, 373 So.2d 248 (La.App. 2d Cir. 1979), writ denied, 375 So.2d 379 (La.1979).

There we validated the results of an election which authorized the school board to issue bonds and to impose a special tax.

After the Supreme Court denied writs in Howe, the demands of these plaintiffs were dismissed on an exception of no cause of action and an exception of res judicata under La.R.S. 13:5124, 5129. Plaintiffs appeal. We affirm.

Plaintiffs may have their day in court and may seek an injunction by specifically alleging facts that the school board has contracted to deliver general obligation bonds in a specific amount which will cause the total bonded indebtedness (specific amount) to exceed 35 percent of the assessed valuation of taxable property in the taxing district as ascertained by the last assessment (specific amount) prior to the proposed date of delivery of the bonds, contrary to La.R.S. 39:562(D), as amended. To this extent the exception of res judicata was improperly sustained. Conclusions of law are not facts and may be disregarded in considering an exception of no cause of action.

Plaintiffs may not, after Howe, attack or enjoin the authority of the school board to either issue general obligation bonds or to impose the special tax in the specifics which were approved by the election validated in Howe. La.R.S. 13:5121 et seq. especially provide for expedient proceedings in suits affecting the issuance of general obligation bonds. C.C.P. Art. 934 does not apply.

Defendant’s demand for damages for frivolous appeal is denied. Judgment below dismissing plaintiffs’ action is affirmed at appellants’ cost.


author: COFER, Justice,

text:
    Harneitha E. MAXEY and Louis T. Maxey v. Joyce GLINDMEYER.
    No. 51554.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    Hopkins & Logan, Alben N. Hopkins, Larry L. Lenoir, Gulfport, for appellants.
    Gex, Gex & Phillips, Gerald C. Gex, Bay St. Louis, for appellee.
    Before PATTERSON, C. J., and SUGG and COFER, JJ.
   COFER, Justice,

for the Court:

Appellants, Harneitha Maxey and her husband, Louis T. Maxey, (the Maxeys or Maxey) filed this suit in the First Judicial District of Harrison County against Mrs. Joyce Glindmeyer having to do with a land sale contract as later to be noticed herein. Mrs. Glindmeyer filed a cross bill. The Maxeys have appealed here from an adverse decision in the lower court. They assign the following errors:

1. The court erred in finding that appellants breached the contract with appellee, and in finding that the $75,000 earnest money is awarded to appellee for breach of contract.

2. The court erred in not granting to appellants some relief under the undisputed facts of this case.

3. The court erred in applying the doctrine of laches.

4. The court was biased and prejudiced against the appellants.

5. The court erred in finding that the contract is to be construed more strongly against appellants.

We affirm in part and reverse and remand in part the decision appealed from.

Appellant Louis T. Maxey is a physician living and practicing medicine in Milwaukee, Wisconsin. Wishing to move to Mississippi to live and practice medicine, the Max-eys contacted Joseph Buceóla, a land sales director, who brought them into touch with Mrs. Glindmeyer and her husband, who owned a residence, “Oak Crest Manor”, (apparently aptly described as a mansion) with an area of land on which it sat and surrounding it. After extensive close examination of the interior of the residence and the land and after having had the boundaries pointed out to Dr. Maxey, he, Dr. Max-ey, entered into a contract for the sale and purchase of the residence and land. This contract was executed on May 15, 1977, and reference will be made to it herein as the May 15, 1977, contract.

Acreage is an important issue and we note here that the May 15, 1977, contract included “grounds measuring about 800' X 800' or as per title . . . .” This contract provided for a consideration of $150,-000 of which $15,000 was to be in cash, the remainder of the purchase consideration to be paid in installments. This contract also provided that the seller would pay the cost of a survey. (There were notes for $27,000 and $25,000 executed by Dr. Maxey on the day of the contract, but do not appear to be for part of the consideration. The record does show that Dr. Maxey paid $75,000 down on the purchase price rather than $15,000).

The purchaser’s position was that the seller was to procure an option to purchase in adjoining tract of approximately seven acres, which option was to be concurrent with the contract, but was not provided by oversight on the seller’s part.

The Maxeys were concerned that the option did not in fact accompany the contract, and there were communications between the parties relative to it. Dr. Maxey went to an attorney-real estate broker in Milwaukee, who prepared another contract in August, 1977, which was sent to Mrs. Glind-meyer, after being signed by Mrs. Maxey. This proposed contract, never signed (called hereinafter as the August 1977 contract) referred to an Exhibit B to it for legal description of the property which purported to be a metes and bounds description. The proposed contract recited that the legal description attached to it had a frontage of about 800 feet and a depth of about 800 feet. Another exhibit had as a condition the buyer’s ability to obtain financing within a specified time, recited a total consideration of $200,000, and in other particulars, the proposed contract was different from the May 1977 contract. The exhibit to the August 1977 contract provided that the total area would be thirteen acres or more, the May 1977 contract notwithstanding, and that the agreement as to the acreage was of the essence of the contract.

After months of effort to arrive at an agreement which would be compatible with Dr. Maxey’s position as to the contract reached between the parties, there was, as a result of the joint work of the attorneys for both parties, a contract executed on February 17, 1978, signed by the seller and the buyer, and also signed by Coast Heavy Equipment, owner of the additional acreage desired by the Maxeys. This contract contains certain provisions which are vital to the present suit. They are:

1. The seller hereby agreed (sic) to sell to the purchasers that property known as Oak Crest Manor, located on Menge Avenue, Pass Christian, Mississippi, on grounds measuring approximately eight hundred feet (800') by eight hundred feet (800') consisting of 13 acres or more, and more particularly described on Exhibit “A” attached hereto and made a part hereof.
******
4. It is agreed and understood between the parties hereto that should the purchaser desire a survey this cost shall be borne by them.
******
8. In the event that the purchaser fails to comply within the time specified, the seller shall have the right to declare the $75,000 of the deposit, ipso facto forfeited as liquidated damages without formality beyond tender of title to the purchaser; or the seller may demand specific performance.
******
12. It is agreed and understood between the parties that there was an agreement between the parties prior to the formulation of this instrument; however, this instrument supersedes any and all prior agreements, and shall be considered the final instrument for the sale and purchase of the property herein described.

May 15, 1978, was fixed as the final date for the sale to be accomplished, and the contract also contained in one of its clauses further as to Coastal Heavy Equipment’s performance of its option as to the additional premises on closing of the sale contracted in the instrument.

Exhibit “A” to the contract is a metes and bounds description of the property to be sold and bought between Mrs. Glindmeyer and the Maxeys.

Thereafter, the Maxeys caused a survey of the land to be made, which survey revealed that there were only 8.3 acres in the purchase from Mrs. Glindmeyer. The survey was made in April 1978, and, on May 12, 1978, Mrs. Maxey through her attorney sent a letter to Mrs. Glindmeyer, c/o attorneys, as follows:

This is to advise that a survey of the property you own reflects only 8.3 acres as opposed to the 13 or more acres called for in the Contract of Sale. This information was passed along to your attorney on or about the 11th of May, 1978.
Due to the deficiency in the quantity of land, we feel that the Contract of Sale has been breached and we call upon you to return to Mrs. Maxey the deposit of $75,000 with interest and the Promissory Notes executed by Dr. Maxey. If this cannot be accomplished by May 15, 1978, Dr. and Mrs. Maxey will have no alternative but to file suit in this matter.

The $75,000 earnest money and the notes demanded by the Maxeys were not surrendered to the Maxeys.

On May 15, 1978, Mrs. Glindmeyer and her attorney went to the office of the Max-eys’ attorney with an unexecuted warranty deed to the property, which was never delivered because their attorney contended the Glindmeyers had breached the contract, and the sale was never consummated.

On May 15, 1978, the Maxeys sued to rescind the contract of sale, for return of the $75,000 with interest, and for expenses incurred through Mrs. Glindmeyer’s breach of the contract and for lien against the property. To support their prayer for relief, they charged the breach to be in Mrs. Glindmeyer’s failure and inability to convey to them the number of acres in gross, and by her cross bill she prayed for decree holding the contract to have been breached by the Maxeys, that the deposit of $75,000 had been forfeited, that lis pendens notice the Maxeys had caused to be given be cancelled, and that she be awarded damages incurred in her removal of her household effects to the house she bought and improved in anticipation of the sale of Oak Crest Manor, and other losses to her.

The chancellor rendered a decree wherein there were incorporated extensive findings of fact. Included in these were conclusions that the Maxeys breached the contract; that acreage was not of the essence of the contract; that the Maxeys visited the property on several occasions, and viewed it meticulously on these occasions; that the Maxeys were guilty of laches in failing to determine much earlier the status of the area of the property; and that there was something of a fixed determination on their part to escape the binding effect of the sale contract.

By the decree, there was adjudicated a forfeiture of the $75,000 deposit, Mrs. Glindmeyer was required to surrender the two notes of $27,000 and $25,000 and the Maxeys were ordered to cancel the lis pen-dens notice.

From this decree, the Maxeys have appealed.

The chancellor, upon highly contradicted testimony, found the fact that the acreage to be sold was not of the essence of the contract and correctly applied the law thereto. Dr. Maxey testified to constant protestations that they must have twenty acres in the transaction with Mrs. Glind-meyer including the approximately seven acres anticipated from Coast Heavy Equipment Company, Incorporated. Testimony on Mrs. Glindmeyer’s behalf strongly denied this insistence of Dr. Maxey.

The February 1978 contract, the last enunciation of the parties’ agreements and understandings, and specifically declared to be so by its paragraph 12 hereinabove quoted, contracts for the sale and purchase of property limited in five ways: (1) Oak Crest Manor; (2) on Menge Avenue, Pass Christian, Mississippi; (3) on grounds measuring approximately 800 feet by 800 feet; (4) consisting of 13 acres or more; and (5) more particularly described in an exhibit to the contract. The general description “Oak Crest Manor” would have sufficed to convey the realty encompassed within the boundaries of Oak Crest Manor. The contract, however, went further to include a metes and bounds description, and the record fails to reflect where, if anywhere, the exhibit fails faithfully to describe Oak Crest Manor. The Maxeys’ survey accomplished in April 1978 reveals what must have been apparent from the examinations of the land by Dr. Maxey: the ground of Oak Crest Manor has a nearly straight south boundary; has Menge Avenue as its eastern boundary and has no north and west boundaries, but is in the shape of an irregular triangle with the boundary from the northern corner on Menge Avenue to the property’s southwest corner being the meanderings of Bayou Portage. It must have been obvious to Dr. Maxey from the beginning that the area could not accommodate itself to a description of approximately 800 feet by 800 feet.

We conclude that the general description “Oak Crest Manor” and as described by the exhibit to the contract, prevails. Dochterman v. Marshall, 92 Miss. 747, 46 So. 542 (1908); Barksdale v. Barksdale, 92 Miss. 166, 45 So. 615 (1907). We likewise conclude that the contract was for the sale of “Oak Crest Manor”, a package, in bulk, or in gross, and not by the acre. The “consisting of 13 acres or more,” is merely descriptive and not a representation amounting to a warranty on Mrs. Glindmeyer’s part. It is elementary to say, in the light of what was otherwise described, there could not be conveyed the land by the description and by the number of acres recited, for there is not land in Oak Crest Manor with the metes and bounds description sufficient to inclose thirteen acres or more. We cannot find that Mrs. Glindmeyer or those speaking on her behalf undertook to defraud the Maxeys in the transaction. 77 Am.Jur.2d, Vendor and Purchaser, sections 88, 90, 93, 98 and 99 (1975).

The chancellor was correct in his finding and adjudication that the Maxeys had breached the contract and in ordering cancellation of the lis pendens notice. We disagree with that part of the decree that forfeits ipso facto the $75,000 down payment, earnest money or forfeit, or penalty, or whatever name it may be called. Both parties, the.Maxeys by original bill and Mrs. Glindmeyer by cross bill, have invoked the assistance of equity and, in doing so, have invoked equity principles controlling relief. Hooks v. Burns, 168 Miss. 723, 152 So. 469 (1934). Courts of equity are not friendly to forfeitures. Hickory Investment Co. v. Wright Lumber Co., 152 Miss. 825, 119 So. 308 (1928). Equity abhors a forfeiture. New Orleans Great Northern Rr. Co. v. Belhaven Heights Co., 122 Miss. 190, 84 So. 178 (1920).

We appraise the decree entered by the court below as operating a forfeiture of the entire down payment without regard to whether Mrs. Glindmeyer has actually suffered $75,000 in damages or not. We believe this state of facts is such that there should be no part thereof allotted to her beyond a sum reasonably necessary to cover her actual damages. It is inequitable to award her any amount in excess thereof. Equity will enforce a contract for liquidated damages if such liquidated damages can be found to be reasonable and proper in the light of the circumstances of the case. Patrick Petroleum Co. of Michigan v. Callon, 531 F.2d 1312 (5th Cir. 1976).

Through the adoption of the Uniform Commercial Code, the legislature has spoken on the subject of liquidated damages in sales of goods in Mississippi Code Annotated, section 75-2-718 (1972):

(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasability of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

We do not know, nor have we had drawn to our attention, a similar rule as to liquidated damages in land sales contract, but are influenced by the logic and reason of the law just quoted.

The forfeiture of the down payment is reversed and the cause is remanded for new hearing on the damages actually sustained by Mrs. Glindmeyer caused by the Maxeys’ breach of the contract, and for entry of decree thereon in an amount only which will reimburse her for those damages. The decree is affirmed in all other respects.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

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


author: SUGG, Justice, COFER, Justice,

text:
    Larry HUGHES, Parent of Larry Hughes, Jr., Deceased, a Minor, v. STAR HOMES, INC. and David Pritchett.
    No. 51152.
    Supreme Court of Mississippi.
    Jan. 16, 1980.

      Williams, Glover & Walton, Ronnie L. Walton, H. Wingfield Glover, Jr., Meridian, for appellant.
    Snow, Covington, Temple & Watts, Arlo Temple, Walter T. Rogers, Harvey B. Ray, Warner, Ray & Cobb, Meridian, for appel-lees.
   SUGG, Justice,

for the Court:

Larry Hughes filed suit against Star Homes, Inc. and David Pritchett in the Circuit Court of Lauderdale County for the wrongful death of Larry Hughes, Jr. Plaintiff filed the action under the wrongful death statute, section 11-7-13 Mississippi Code Annotated (1972), for the benefit of all parties entitled to recover for the wrongful death of Larry Hughes, Jr.

The jury returned a verdict for the defendants. Plaintiff appealed and defendants have cross-appealed asserting that they were entitled to a peremptory instruction. We have determined that the defendants were entitled to a peremptory instruction; therefore, it is not necessary to reach the questions presented by the direct appeal.

Larry Hughes, Jr. was ten years of age at the time of his death and lived with his family on a lot adjoining Lots 9 and 10 of Mt. Olive Estates Subdivision in rural Laud-erdale County. Star Homes, a Mississippi corporation, was engaged in development of the subdivision and had virtually completed the construction of the houses on Lots 9 and 10. David Pritchett had a contract with Star Homes to install septic tanks for the houses under construction on Lots 9 and 10.

On the day that Larry was killed, Pritch-ett arrived on the job site between 8:00 and 8:30 o’clock a. m. He made an excavation for a septic tank on Lot 9 and placed the septic tank in the excavation shortly after it was delivered between 9:00 and 10:30 o’clock a. m. The septic tank was made of concrete and was eight feet long, four feet wide, and five feet deep. The cover for the septic tank consisted of four rectangular concrete slabs weighing between one hundred and two hundred pounds. Each of the slabs was two feet wide, four feet long and four inches thick.

It was necessary for the septic tank to be inspected by a representative from the Lauderdale County Health Department. In order to facilitate the inspection, Pritchett removed the two end slabs and stood them on their four inch sides at each end of the septic tank. The two end slabs of the cover then extended two feet above the top of the septic tank permitting a view of the interi- or. The slabs were firmly in place although not anchored or braced and, according to the evidence, this was the common and accepted practice used to prepare a septic tank for inspection. After inspecting the septic tank on Lot 9 the Health Department representative proceeded to Lot 10 to inspect the septic tank on Lot 10. Pritchett and the inspector met Eugene Skinner, a sales representative of Star Homes, about half way between the houses on Lots 9 and 10. While engaged in a conversation, Larry Hughes, Jr. and his young friend, Steve Brantley, approached within twenty to thirty feet.

Skinner testified that he told the boys there was a rattlesnake in the vicinity in order to persuade them to leave. According to both Skinner and Pritchett, the boys then left proceeding between Lots 9 and 10 toward the road after being warned about the snake. The conversation between Skinner, Pritchett, and the inspector lasted about ten minutes after which Pritchett proceeded to Lot 10 to fill the field lines on Lot 10 with a backhoe. Skinner and the inspector left the premises. A few minutes after the conversation ended, Larry Hughes’ mother summoned Pritchett to come to the aid of Larry. Apparently, in the brief time that elapsed from the time Larry was last seen by Skinner and Pritchett, he had returned to the septic tank, climbed in, and in attempting to get out, had pulled one of the concrete covers from its standing position. The cover fractured Larry’s skull, resulting in his death later that day.

Steve Brantley testified that he and Larry approached the septic tank and Larry climbed down into the septic tank. When Larry attempted to climb out of the tank, he caught hold of the cover at the end of the septic tank causing it to fall. Steve testified that he did not get into the septic tank with Larry because he was afraid of being injured. Larry and Steve were about the same age and Larry’s school records showed that he was of average intelligence. Larry had been admonished by his parents about playing around the construction site and had been injured about a month before his death when he fell through the floor joists in the house under construction on Lot 10.

In order to determine whether the court should have given the peremptory instruction requested by the defendants, we must determine the status of Larry Hughes, Jr., that is, whether he was an invitee, a licensee, or a trespasser, the duty of the defendants to Larry, and whether there was a breach of that duty. If there was no breach of the duty to Larry by the defendants, we must then determine if the facts of this case bring it within the doctrine of attractive nuisance.

The status of a person on the property of another was stated succinctly in Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008, 1011 (Miss.1978), in the following language:

As to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So.2d 841 (1960). A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another’s premises without license, invitation or other right. Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955).

A landowner owes a licensee the duty to refrain from willfully or wantonly injuring him. Astleford v. Milner Enterprises, 233 So.2d 524 (Miss.1970); Marlon Investment Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963); Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960). A landowner owes a trespasser the duty to refrain from willfully or wantonly injuring him. McGee v. Charles F. Smith & Sons, Inc., 357 So.2d 930 (Miss.1978); Ausmer v. Sliman, 336 So.2d 730 (Miss.1976); Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955). Larry Hughes, Jr. was a trespasser, or at most a licensee. In either status, the duty owed him by the defendants was to refrain from willfully or wantonly injuring him.

In one case, Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008 (Miss.1978), we applied the standard of ordinary and reasonable care rather than the standard of intentional or wanton negligence due a licensee. In that case we held that the owner of premises is liable for injury proximately caused by the owner’s affirmative or active negligence in the operation or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known. In Hoffman, we changed the standard of care owing to a licensee but carefully limited the new standard of care to those cases involving injury resulting from active conduct as distinguished from conditions of the premises, or passive negligence.

Larry Hughes, Jr. did not meet his death as a result of active conduct; therefore, the standard of care required of the defendants in this case was not to willfully or wantonly injure Larry. The evidence does not show that the defendants violated this standard.

The next question is whether the septic tank constituted an attractive nuisance. The doctrine of attractive nuisance was established in an attempt to balance two competing equities. First, society has a definite interest in protecting its children and recognizes that most children will trespass on occasion and sometimes are injured when they do so. Second, society must not place upon the owners of premises the unreasonable burden of providing a safe place in which every child may trespass under all circumstances. Harkins v. City of Carthage, 284 So.2d 530 (Miss.1973). The doctrine of attractive nuisance was first enunciated as such by this Court in the case of Lucas v. Hammond, 150 Miss. 369, 116 So. 536 (1928):

The appellant, being a trespasser, is not entitled to recover, unless the case comes within the “attractive nuisance doctrine.” This doctrine has been repudiated by a majority of the courts, and “needs very careful statement not to make an unjust and impracticable requirement.” United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28. The tendency of the courts recognizing it is to limit, instead of enlarge, the scope thereof. Compare Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, with United Zinc & Chemical Co. v. Britt, supra, and N. Y. N. H. & H. R. Co. v. Fruchter, 260 U.S. 141, 43 S.Ct. 38, 67 L.Ed. 173. See, also, Salter v. Lbr. Co., 137 Miss. 229, 102 So. 268; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; and Totty v. Lee County Gin Co. (Miss.), 110 So. 125. As enforced by this court, the doctrine may be stated as follows:
“One who maintains dangerous instru-mentalities or appliances on his premises easily accessible to children and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement,” — and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child non sui juris who is injured thereby, and who did not know and appreciate the danger incurred by him in playing with the instrumentality or in the vicinity of the dangerous condition, or was too young to be charged with such knowledge. (150 Miss. at 381; 116 So. at 536, 537).

It is noted that in order for a condition of premises to constitute an attractive nuisance there must be maintained on the premises dangerous instrumentalities or appliances easily accessible to children. We have held that water hazards are not attractive nuisances, and have adopted this rule with reference to impounded water even though children are attracted to water and even though it is dangerous and they are not able to swim. Ausmer v. Sliman, 336 So.2d 730 (Miss.1976); Gordon v. C. H. C. Corporation, 236 So.2d 733 (Miss.1970); McGill v. City of Laurel, 252 Miss. 740, 173 So.2d 892 (1965).

In Jackson v. City of Biloxi, 272 So.2d 654, 658 (Miss.1973), we stated the following with reference to the attractive nuisances:

In the absence of special circumstances not present here, this Court has consistently refused to apply the attractive nuisance doctrine unless the instrumentality complained of was inherently dangerous. Such instrumentalities have been held to include the following: turntables, live shells such as an unexploded anti-aircraft shell, dynamite or dynamite caps, other explosives such as fireworks, and electrical conduits. Shemper v. Cleveland, 212 Miss. 113, 54 So.2d 215 (1951); Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842 (1927); McTighe v. Johnson, 114 Miss. 862, 75 So. 600 (1917); Dampf v. Yazoo & M. V. R. R., 95 Miss. 85, 48 So. 612 (1909).

Jackson summarizes our decisions on attractive nuisances holding that in the absence of special circumstances, the attractive nuisance doctrine should not be applied unless the instrumentality complained of is inherently dangerous. We are of the opinion that there was nothing inherently dangerous about the septic tank and the doctrine of attractive nuisance does not apply. Consequently, defendants were entitled to a peremptory instruction.

Some of the justices are of the opinion that the question of whether the condition of the premises constituted an attractive nuisance should have been submitted to a jury. In Paymaster Oil Co. v. Mitchell, 319 So.2d 652 (Miss.1975), we held that juries resolve conflicts of fact but the court resolves issues of law arising from noncon-flicting facts. There was no conflict in the evidence about the condition of the premises in this case. In City of Greenville v. Laury, 172 Miss. 118, 159 So. 121 (1935), we held:

In an action at law based on negligence, the question of negligence vel non is for the determination of the jury, unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and. no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge. Whitney v. Cook, 53 Miss. 551; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Farmer v. Cumberland Telphone & Telegraph Co., 86 Miss. 55, 38 So. 775. (172 Miss. at 122, 159 So. at 122).

To the same effect are the cases of Mercy Regional Medical Center v. Doiron, 348 So.2d 243 (Miss.1977) and Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 199 So. 294, Suggestion of Error Sustained 1 So.2d 242 (1941).

In view of the fact there is no conflict in the evidence about the condition of the premises, the question of whether the condition of the premises constitutes an attractive nuisance is one for the court rather than for the jury.

The minority relies on Spengler, Admr. v. Williams, 67 Miss. 1, 6 So. 613 (1889). Spengler has no application because the lumber was not piled on defendant’s property but in a public street. The declaration charged that the lumber fell on the child by reason of the “careless and negligent manner in which it had been piled.” The question in Spengler was negligence rather than the duty owed by a property owner to a person coming on his property as an invitee, licensee or trespasser.

Having determined that defendants were entitled to a peremptory instruction, it is not necessary to note or discuss the assignments of error of the plaintiff.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM and LEE, JJ., concur.

COFER, Justice,

dissenting:

Being convinced that the appellees’ liability, if any, is a question for jury decision under the record here before us, I must dissent from the majority’s contrary decision.

The majority opinion includes the premise that there is no conflict in the testimony as to liability of appellees, and liability becomes a question of law for the trial judge. The opinion cites as authority Paymaster Oil Co. v. Mitchell, 319 So.2d 652 (Miss.1975), and City of Greenville v. Laury, 172 Miss. 118, 159 So. 121 (1935). No fault is found with the legal principles announced in these decisions, but it is believed that the record presents jury issues.

That children frequented the premises of the construction for several months before the tragic occurrence involved herein was known to appellee Star Homes, Incorporated. Eugene Skinner, its secretary, building construction supervisor, and salesman, testified to childrens’ usual practice of being on the premises during the erection of all of the fifteen residences in the subdivision. He testified to the injury that Larry received a month or so prior to the fatal occurrence, when he fell off a floor joist in one of the houses and this injury required stitches in his head. There is, running through all this testimony, a lively concern for the safety of the houses and their windows, and that the sand and rock would not be ruined by the children’s playing.

As to approval or disapproval by defendants of children playing in the area, Skinner testified that he was called by children a “mean old man,” but Steve Brantley, present when Larry met his death, being eleven years of age when testifying, said he had never heard of reference to him as “a mean old man.” Skinner said he urged Steve and Larry to leave by telling them there was a rattlesnake about, but Steve said he was just joking.

The following enlightening testimony was given on cross examination of Steve:

Q. Now did you ever hear any of the children out there call Mr. Skinner, “The mean old man in the little green car?”
A. No, sir.
Q. You never heard that before?
A. No, sir.
Q. Did you ever know that Mr. Skinner tried to keep children away from the places where the houses were being built?
A. No, sir.
Q. He never got after you about that?
A. No, sir.
Q. The day that the accident happened, Mr. Skinner did have some conversation, or did talk to you and Larry there?
A. Yes, sir; but it was in a joking way.
Q. In a joking manner?
A. Yes, sir.
Q. He didn’t say anything to you about not being around the construction site?
A. No, sir.
Q. He didn’t say anything to ya’ll like, “It’s dangerous,” that, “Ya’ll better leave the property,” or, “leave the property.”
A. No, sir.
Q. And he didn’t ask you to leave the property?
A. No, sir.
Q. And he didn’t talk to you but just one time?
A. That’s right.

In contradiction of Skinner’s projected image of stern insistence that the children stay away, Mrs. Judy Hughes, Larry’s mother, testified as follows:

Q. Tell the jury how he acted with respect to allowing or disallowing, prohibiting the children from playing on the lots where construction activities were going on.
A. As far as allowing, there were times when I would be out in the afternoon with the children and other mothers alike, and if they went to get in the rock piles or sandpiles, or anything like that, and I would call them back, he would say, you know, that it was all right, they wouldn’t hurt anything, that I was being too strict sometime, to let them roam, that that was a good area for kids.
Q. Who would say it was a good area for kids?
A. Mr. Skinner would say that general area, living outside town like that was a good area for children, but he said it wouldn’t hurt for them to play in the sand and dirt or anything like that; there was always piles of dirt for kids to get into sitting around.

The concrete slab which was the lethal weapon was recognized by Skinner as being dangerous. He said, “I don’t know what you said . . . about the septic tank being dangerous, I know it’s dangerous. . ” “If a child got down in a septic tank; yes, it was more dangerous.” He further testified that it would have cost very little to cause the tops to be laid flat, or to have braced them on their sides, and that it probably would not have cost anything.

Mr. Skinner further testified:
Q. You are familiar with the curiosity of young boys; aren’t you, Mr. Skinner, because one day you were a young boy?
A. Yeah, hu-huh.
Q. You know that children are naturally curious when it comes to construction sites and caves, and building forts, and this type of thing that interests a child, particularly, a young boy?
A. Yes, I have it all the time,

and further,

Q. You know how children are reliable and what they might or might not do from one second to the next; don’t you, from your own experience?
A. Yeah.
Q. They are unpredictable, aren’t they?
A. Unpredictable.
Q. They might do one thing one minute and the next minute they will be right back in what you told them to stay off of; isn’t that right, sir?
A. That’s right.
Q. So you expected that, didn’t you?
A. I didn’t expect it.
Q. Well, you knew that that was what was likely to happen because that’s your experience, and that’s what tells you is likely to happen; isn’t that right?
A. Every time before when I run kids off, they stayed gone for a little while.

The majority opinion finds that Larry was a trespasser or, at most, a licensee, in either of which events the defendants only owed him the duty of refraining from wil-fully or wantonly injuring him.

Common experience teaches that children are attracted to fresh excavation. Mr. Skinner virtually admitted this; and, having been attracted thereto, the next step in the satisfaction of curiosity is for the child to get into the excavation. Larry did both of these. His act is understandable and well within his predictability.

This Court spoke to this curiosity and others being charged with knowledge thereof in Spengler, Admr. v. Williams, 67 Miss. 1, 6 So. 613 (1889), wherein Spengler’s decedent, age seven years, was killed by the falling of a stack of lumber piled by defendant in a street where the decedent and other children were wont to play. There was a judgment for the plaintiff, and on appeal, the Supreme Court said this:

All persons are supposed to know the curiosity of children, and their disposition to play around and about objects of unusual appearance. No court would permit a verdict to stand which rested upon the denial of such instincts in children, or excused the negligence of the defendant because of the want of specific evidence that he possessed that common knowledge which all men are assumed to have. (67 Miss, at 4, 6 So. at 614).

In ninety years, there has been no recession from the rule in the Spengler case and it applies here and, to me, is controlling.

It is my view that appellees owed to Larry at least ordinary care, and, had this care been extended, the heavy slabs would have been laid on their flat sides or would have been braced against Larry’s natural act in pulling himself upward by taking hold of one of them.

The common presence of the children on the premises known to the defendants and well known to Mr. Skinner’s employer, and their lack of protest, amounting to their consent to the children’s presence, made for them the duty of refraining from setting a dead-fall to catch them. In this instance, Larry, who was the quarry, suffered a crushed head and died a short while later.

There were errors in the instructions, touching upon contributory negligence and imputation of negligence. I would reverse and remand the cause for new trial on all issues, including punitive damages.

PATTERSON, C. J., and BOWLING, J., join in this dissent.

      . Earlier cases decided on the principle of attractive nuisance without defining the doctrine are: Mackey v. City of Vicksburg, 64 Miss. 777, 2 So. 178 (1887); Spengler v. Williams, 67 Miss. 1, 6 So. 613 (1889); City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774 (1889); Temple v. McComb City Electric Light & Power Co., 89 Miss. 1, 42 So. 874 (1906); Dampf v. Yazoo & Miss. Valley RR. Co., 95 Miss. 85, 48 So. 612 (1909).

      . A trap for, wild animals made by resting a log upon a figure-four trigger, with bait on the free end of the trap’s figure-four’s horizontal member. When the animal undertakes to take the bait therefrom, the trap collapses causing the log to fall upon and kill or to retain the animal.