author: SWIFT, Judge.

text:
    Robert J. CARLYON, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellee.
    No. 8715.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Stephen E. Everett, Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Robert G. Nida, Alexandria, for defendant-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

Robert Carlyon filed this suit against Aetna Casualty & Surety Company (Aetna) to recover under a homeowner’s policy certain “additional living expenses” totaling $15,000 allegedly incurred when his farm home was partially destroyed by fire on March 27, 1980. From a judgment in favor of the plaintiff in the amount of $3,567.57 with legal interest from judicial demand, but denying plaintiff’s claim for penalties and an attorney’s fee, the plaintiff has appealed.

The policy insured the plaintiff’s dwelling against loss by fire and also provided coverage for the loss or damage of unscheduled personal property therein and for additional living expenses incurred if the premises became untenantable because of fire. The policy limits of such coverages were $44,000, $22,000 and $8,800, respectively.

The plaintiff settled his claims for damages to the dwelling for $20,500 and for the damage and loss of unscheduled personal property for $22,000, the latter being the full extent of the coverage. However, the parties were unable to settle the claim for additional living expenses, resulting in the present litigation.

The plaintiff contends the trial court erred in disallowing some of the claimed additional living expenses.

In its answer to the appeal the defendant asserts that the award to plaintiff for such expenses should be reduced from $3567.57 to $3159 and that the trial court erred in awarding legal interest on the sum of $3159 which was unsuccessfully tendered to plaintiff by the defendant and then deposited into the registry of the court.

Specifically, the plaintiff complains of the failure to include these living expenses in the award:

“1. Additional transportation expenses $ 264.24
2. Rental deposit on apartment 100.00
3. Sheets, pillows and towels purchased by plaintiff 213.25
4. Cooking and eating utensils purchased by plaintiff 187.00
5. Clothing purchased by plaintiff 150.00
6. Estimates on repairs to appliances 62.80
7. Dry cleaning and laundry 208.39
8. Matt’s Janitorial Service (for cleaning items and household property) 3,249.50”

A policy of insurance is a contract between the parties and is to be enforced in accordance with its terms when they are clear and unambiguous. Such a contract is to be given a fair, reasonable and sensible construction compatible with the apparent object and plain intention of the parties as expressed in words of the agreement. Ory v. Louisiana & Southern Life Ins. Co., 352 So.2d 308 (La.App. 4 Cir. 1977).

The applicable policy provision provides as follows:

“COVERAGE D — ADDITIONAL LIVING EXPENSE
“If a property loss covered under this policy renders the premises untenantable, this policy covers the necessary increase in living expense incurred by the Named Insured to continue as nearly as practicable the normal standard of living of the Named Insured’s household for not exceeding the period of time required:
“1. to repair or replace such damaged or destroyed property as soon as possible; or
“2. for the Named Insured’s household to become settled in permanent quarters; whichever is less.”
“This coverage excludes expense due to cancellation of any lease, or any written or oral agreement.”

Another provision states that Aetna insures the plaintiff’s property to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it costs to repair or replace the property.

The trial judge found that the plaintiff’s claim for additional transportation expenses was more in the nature of a business expense than a living expense. He therefore concluded that it was not covered under the policy. The evidence of this claim consisted of gas receipts totaling $264.24 and the plaintiff’s testimony that he incurred these additional transportation expenses in having to drive back to his home premises at least one and sometimes twice daily to feed his cattle and to plant his crops. Occasionally, he had to drive his sons to school because of rain. The plaintiff offered no evidence as to his transportation expenses before the fire and he had no record of the number of miles driven on these trips after the fire.

In our opinion the record supports the trial court’s determination that the plaintiff failed to prove that Item 1 was an additional living expense covered by the policy. Certainly he was not clearly wrong in this respect.

In regard to Item 2, Mr. Carlyon testified that he paid $100 as a deposit on the apartment which he rented during the period his house was untenantable. He said that because he was unable to move from the apartment to his house until around August 4, 1980, he made an agreement with the landlord to accept the deposit as rent for this additional time instead of charging another whole month’s rent.

Aetna offered convincing evidence that the repair work to the house could have been completed in 60 days. This would have been prior to July 31. The plaintiff offered no evidence as to why the repair work (which was done by his brother rather than the party who submitted the bid on which the settlement was based) took longer.

Under the express terms of the policy any expense incurred after the period of time required to repair the property “as soon as possible” were not covered. Since the repair work on the dwelling could have been completed before the end of July and the apartment rent for that month was included in the tender made by the defendant which is mentioned hereinafter, Item 2 was incurred beyond the 60 day period and thus was correctly excluded from coverage by the trial court, even though for a different reason.

Addressing Items 3 through 7, the evidence reveals that plaintiff had to buy some sheets, towels, clothing and kitchen utensils because his others were either destroyed by the fire or were being cleaned. Also, his laundry and dry cleaning bill for cleaning his smoke-damaged clothing and bedding was $208.39. Each of these items, including the cost of estimates of repairs to appliances listed as Item 7, was an expense of repairing or replacing personal property which had been damaged or destroyed by the fire and therefore fell within the coverage of the unscheduled personal property. Funds were made available to plaintiff to purchase such items very shortly after the fire occurred. Therefore, they were not additional living expenses as contemplated by the parties under the policy, but were recoverable under the loss or damage to unscheduled personal property provisions. The defendant ultimately paid its entire limit under that coverage and satisfied its obligation as to such losses.

As to the last item complained of by plaintiff on this appeal, the evidence reveals that Matt’s Janitorial Service performed services costing $3249.50 for cleaning the walls and floors of the dwelling and cleaning some furniture, mattresses, dishes and a bottle collection damaged within the home. The contractor who bid the amount agreed to by the parties in settling the claim for repairs to the dwelling testified that his estimate included janitorial clean-up of the walls and floors of the house. Therefore the latter were expenses incurred as a result of the damage to the dwelling and would fall within the provision providing coverage for damages to the dwelling itself. The fact that plaintiff’s brother did not include these charges as a cost of his repairs to the home would not alter the situation.

The expenses incurred as a result of cleaning, moving and storing property within the dwelling were expenses incurred in repairing the unscheduled personal property for which the policy limit was paid to the plaintiff.

The defendant contends that the trial court improperly awarded $614.05 for apartment and television rentals as additional living expenses incurred after the period of time required to repair plaintiff’s home. We disagree.

As stated, the preponderance of the evidence is to the effect that the dwelling could have been repaired in 60 days. The evidence reveals that plaintiff received the funds from Aetna to repair the house on May 27, 1980, and that the work began immediately afterwards. Therefore, it should have been completed by July 27, 1980. The trial court properly awarded these rentals for the month of July as the house was untenantable until the end of that month.

The defendant also contends that the trial court erred in awarding legal interest on the sum of $3159 after April 3, 1981.

The record reveals that on October 24, 1980, the defendant sent a check in the amount of $3159 to the plaintiff as an “unconditional settlement” in an effort to conclude the claim for additional living expenses. Plaintiff filed this suit on February 12, 1981. On April 3, 1981, the defendant sent a letter to the plaintiff stating that the plaintiff could cash the $3159 check and reserve his right to litigate the balance claimed. On April 6, 1981, the plaintiff sent a letter to the defendant returning the check to Aetna and stating that he had previously advised its agent that he “would not accept this amount in settlement of the remaining claims on the terms of the policy.” On April 24, 1981, the defendant deposited the sum of $3159 into the registry of the court as an unconditional tender of that amount.

In Williams v. Hanover Ins. Co. of New York, 351 So.2d 858 (La.App. 2 Cir. 1977), the court was confronted with a similar situation. In that case the plaintiff brought suit for damages to a live oak tree and shrubbery caused when the automobile of the defendant’s insured collided with the tree. The trial court did not award legal interest on $130, which was allowed as damages to the shrubbery, because the defendant delivered to plaintiffs a partial payment draft for the $130 prior to suit. On appeal the plaintiffs sought legal interest on the partial payment. The court held the following:

“Plaintiffs contend that legal interest should be allowed because there was no legal tender. LSA-C.C. Arts. 2167, 2168. The circumstances do not constitute the legal tender contemplated by these articles. Nevertheless, the draft was delivered to plaintiffs and the proceeds were available long before institution of the suit. Plaintiffs could have collected the draft without prejudicing their claim for other damages. Jones, supra. Plaintiffs do not contend that the draft would not have been paid promptly upon presentation. Under these circumstances we hold plaintiffs are not entitled to recover legal interest on the $130.”

In the present ease, the proceeds of the $3159 check were definitely available to the plaintiff without prejudicing his claim to other disputed damages at least by April 3, 1981. Although such fund was not withdrawn by the plaintiff from the registry of the court until after the judgment was rendered, we conclude that under these circumstances he is not entitled to recover legal interest on the $3159 beyond April 3, 1981.

For the reasons assigned, the judgment appealed from is amended to: 1) Credit the defendant with the sum of $3159 thereon on April 3, 1981; 2) To award the plaintiff legal interest on $3159 from date of judicial demand until April 3, 1981; and 3) To award the plaintiff legal interest on the balance of the judgment, i.e., $408.57, from date of judicial demand until paid. In all other respects the judgment is affirmed. The costs of this appeal are to be paid by the appellant.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    HARTFORD FIRE INSURANCE CO. et al v. STATE of Louisiana, DEPARTMENT OF HEALTH & HUMAN RESOURCES, et al.
    No. 14662.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1982.
    Robert D. Hoover, Baton Rouge, for plaintiffs-appellants Hartford Fire Ins. Co. and Hi Nabor Supermarket, Inc.
    Steven L. Mayer, Staff Atty., Dept, of Health and Human Resources, Baton Rouge, for defendant-appellee State of La., Dept, of Health and Human Resources.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CARTER, Judge:

This is an appeal from a summary judgment granted in favor of the defendant, the State of Louisiana. Appellants, Hartford Fire Insurance Company (Hartford) and its insured, Hi-Nabor Supermarket, Inc. (Hi-Nabor) filed suit against the State of Louisiana, through the Department of Health and Human Resources (DHHR) and against Mr. and Mrs. Herschel Palmer, seeking recovery for damages to the Hi-Nabor building and its contents caused by a fire which occurred on September 8, 1979. Hartford and Hi-Nabor alleged in their original petition that the fire was caused by the negligent or intentional acts of William Aber-crombie or by a combination of negligent and intentional acts. They prayed for judgment in solido against the State of Louisiana and the Palmers.

Appellants later filed an amended petition which acknowledged that a release order had been issued by the 18th Judicial District Court for the Parish of West Baton Rouge on August 7, 1979, paroling Aber-crombie from the custody of the Department of Corrections into the care and custody of Mr. and Mrs. Herschel Palmer, under the supervision of a State Juvenile Probation and Parole Agent, for an indefinite period of time. This petition alleged that the agent acting for and on behalf of the State of Louisiana breached a duty owed the plaintiffs to supervise the activities of the minor child, which breach resulted in the loss complained of.

DHHR filed a peremptory exception of no cause of action with an alternative motion for summary judgment. In support of the motion for summary judgment, DHHR submitted the deposition of Bernice Jones, who stated that she was the State juvenile probation and parole agent for William Abercrombie and that he had been paroled into the care and custody of the Palmers on August 7, 1979, and had remained with the Palmers until February 7, 1980. Thus, he was in the Palmers’ custody on the day of the fire. She further deposed that there was no contractual relationship between the State of Louisiana and the Palmers at the time of the fire. The release order was also submitted.

The trial court granted defendant DHHR’s motion for summary judgment stating in oral reasons for judgment that the State did not have custody of Aber-crombie. The plaintiffs then perfected this appeal against DHHR.

The summary judgment was properly granted. A motion for summary judgment may be granted only in cases where there are no genuine issues of material fact and the mover is entitled to judgment as a matter of law. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981); Lee v. Allstate Ins. Company, 402 So.2d 181 (La.App. 1st Cir. 1981); White v. Baker Manor Nursing Home, Inc., 400 So.2d 1168 (La.App. 1st Cir. 1981), writ denied, 403 So.2d 68 (La.1981); Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So.2d 561 (La. 1978). The party moving for summary judgment has the burden of showing the absence of any genuine issues of material fact. (Id.)

The affidavit and release order submitted by defendant showed that Abercrombie was no longer in the State’s custody. Plaintiff filed no counter affidavits in opposition to the motion. There were no genuine issues of material fact. The facts clearly reveal that the State no longer had custody.

The amended petition alleges only that the parole agent breached a duty owed to plaintiffs to supervise the activities of Abercrombie. There are no facts to support this allegation, and a remand to allow plaintiffs to amend the petition to allege facts would be a useless act.

In Graham v. State, Health & Social, etc. 354 So.2d 602 (La.App. 1st Cir. 1977), a twelve year old boy was severely injured in a knife attack by an escaped mental patient one day after the escape, in a city more than one hundred miles away from the mental institution. This court outlined the proper analysis to be followed. It said:

“In Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), our Supreme Court adopted the duty/risk analysis for determining tort liability which involves the following inquiries: (1) Was defendant’s actions a cause-in-fact of plaintiff’s injury — was it a substantial factor in bringing about the harm; (2) Do the risk and harm encountered by plaintiff fall within the protection of a legal duty owed to plaintiff by defendant; (3) Was defendant negligent —i.e., did defendant breach the duty owed plaintiff; and (4) Was plaintiff damaged by defendant’s conduct. See also Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). For plaintiff to recover, all four inquiries must be answered in the affirmative.”

The court then pretermitted consideration of the inquiries on cause-in-fact, negligence, and resulting damage because it found that the trial court correctly held that the State was not under a duty to protect the plaintiff against the risk encountered there. It found that the attack was so unforeseeable and unpredictable that to hold the attack within the risk of harm sought to be protected against would pose total, unqualified liability on the State, regardless of the circumstances. Recognizing that its decision was a matter of policy, the court refused to extend the liability that far.

We cannot impose on a parole agent the responsibility for a parolee’s activities and whereabouts twenty-four hours a day. To do so would be tantamount to imposing strict liability on the State. We find as a matter of law that the duty of a parole agent to supervise the activities of a juvenile parolee who is under the legal custody of another does not include the duty to protect plaintiffs from the harm caused here (fire damage to a store), albeit an affirmative showing of negligence and proximate cause.

For the above reasons, the judgment of the District Court is affirmed. Costs are assessed to appellant.

AFFIRMED.

      . The record indicates that a preliminary default was taken against the Palmers on April 14, 1981. The question of their liability is not at issue here.


text:
    Billy D. ISHEE and Gayle R. Ishee v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. James E. HENDERSON and Motorist Insurance Corporation v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    Nos. 14712, 14713.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1982.

      Sumpter B. Davis, III, Baton Rouge, for plaintiffs-appellees Billy D. Ishee, Gayle R. Ishee, James Henderson and Motorists Ins. Corp.
    John R. Keogh, Baton Rouge, for third party defendant-appellant City of Zachary.
    Robert L. Oliver, Baton Rouge, for defendant-appellant State of La.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CARTER, Judge:

These two consolidated cases arise out of single vehicular accidents on La. Highway 19, within the city limits of Zachary, Louisiana. In each case, the plaintiff-driver inadvertently drove off of the highway onto the shoulder, lost control of the vehicle, and thereafter sustained the losses complained of. In each case, suit was filed against the State of Louisiana, Department of Transportation and Development, and in each case, the Department filed a third party petition against the City of Zachary, contending that the City of Zachary agreed to indemnify the State for such liability that the State may have incurred.

After trial on the merits, judgment was rendered in favor of the plaintiffs in each case and against the defendant, the Department.

The trial court further rendered judgment in favor of the third party plaintiff, the Department, and against the third party defendant, City of Zachary, for all sums which the Department was cast in the main demand.

From each of these judgments, the Department and the City of Zachary have perfected appeals.

Although these cases present similar factual situations and some of the legal issues are identical, for purposes of clarity, each will, in part, be treated separately.

HENDERSON CASE

On December 2, 1978, at approximately 8:10 a. m., Henderson was driving a 1979 Oldsmobile in a northerly direction on La. Highway 19 within the city limits of Zachary, Louisiana at about 52 or 53 mph. (the posted speed limit being 55 mph.). Louisiana Highway 19 is a hard-surfaced two lane State highway, one lane for northbound traffic and one lane for southbound traffic. The weather was clear, (although it had rained sometime before the accident), and the roadway in the proximate area of the accident was dry. Henderson inadvertently drove off of the hard surface of La. 19 and his right wheels went into a rut which was parallel to the hard surface. He apparently sustained a deflated right front tire, lost control of the vehicle, re-entered the hard surface going across the highway in a westerly direction, and ultimately flipped the vehicle. It is not controverted that this entire area of La. 19 was bordered by shoulders with an approximate three inch drop from the pavement to the shoulder. In addition to the three inch drop-off, there were ruts roughly eight or nine inches deep in the shoulder, making a total drop-off of approximately eleven inches. Although Henderson’s testimony is somewhat contradictory, the trial court resolved the testimony in his favor and found as a fact that he did not know of any dangerous defects on the shoulder prior to the accident. The trial court further found that Henderson did not attempt to travel the shoulder for an extended period of time, but, in fact, sought to re-enter the highway almost immediately. Relying upon Rue v. State Department of Highways, 372 So.2d 1197 (La.1979), the trial court found that the Department was liable under La.Civ.Code art. 2317 and awarded Henderson $200.00 for his deductible under his insurance policy with Motorist Insurance Company, and awarded Motorist Insurance Corporation the sum of $2,069.90 for the property damage sustained by Henderson and paid to him under his insurance policy with Motorist Insurance Corporation. The trial court further awarded Henderson the sum of $250.00 for the loss of use of his vehicle. The trial court further granted judgment to the Department against the City of Zachary on its third party demand pursuant to a contract between the aforesaid parties. This element of the case will be discussed in detail in a subsequent portion of this opinion.

ISHEE CASE

On or about November 29, 1978, at approximately 5:30 or 6:00 p. m., Ms. Ishee, was operating a 1978 Ford Van owned by Ms. Ishee and her husband, (also a plaintiff), on La. Highway 19 within the city limits of Zachary, Louisiana. Louisiana 19 is a hard-surfaced two lane State highway, one lane for northbound and one lane for southbound traffic. It had previously been raining, but at the time of the accident the weather conditions were described as “misty” and the roadway was wet. Ms. Ishee was proceeding in a southerly direction at about 45 or 50 mph. (the posted speed limit being 55 mph.) when she inadvertently left the main portion of La. 19, went onto the shoulder, and hit a rut or pothole full of water, splashing water upon the windshield. She attempted to put on the brakes and pull the vehicle to the left to regain entry upon the hard surface. Apparently she lost control of the vehicle, veered back to the right, traveled across the shoulder and across the right of way into some trees. The uncontradicted testimony shows that Ms. Ishee did not frequently travel this portion of La. 19, and although she had seen potholes on the shoulder, she was not aware of any defective condition of the highway or shoulder in this area. The trial court found as a matter of fact, that Ms. Ishee did not know of any dangerous defects on the shoulder prior to the accident. La. 19, in the area of the Ishee accident, is virtually identical to the area of the Henderson accident. There was a two to three inch drop-off between the shoulder and the pavement. Although the record does not reveal the estimated depths of the ruts at the location of the Ishee accident, the investigating officer testified that there were “deep ruts” beside the road at the edge of the blacktop where the shoulder started, and running parallel with the blacktop. Again, it is clear that Ms. Ishee did not attempt to travel the shoulder for any length of time, but immediately sought to re-enter the main travel portion of La. 19 when she lost control and the accident happened. Again, relying upon Rue, supra, the trial court awarded Ms. Ishee the sum of $44.13 for medical bills that were stipulated to and further awarded to Billy D. Ishee, husband of Ms. Ishee, three items of property damage, namely, the amount of an estimate of repairs from Nelson & East Ford Co., Inc. in the amount of $2,210.49, an estimate of refinishing and replacing a customized paint job on the van in the amount of $1,415.00 from Sunshine Wheels, Inc., and the cost of replacing a tire that was “ruined” in the accident in the amount of $121.98. The trial court awarded Ms. Ishee the sum of $2800.00 as general damages for personal injuries sustained in the accident. Additionally, judgment was rendered in favor of the Department on its third party demand against the City of Zachary.

NEGLIGENCE OF THE STATE

It has been repeatedly stated that the State is not a guarantor of the safety of travelers, but rather owes a duty to keep the highways and shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the State is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.

Since road shoulders are only designed for temporary use when a motorist finds himself off the highway, the Department’s duty of care is generally discharged at a level of construction and maintenance less than that required for primary road service. However, an implicit necessity for the functional use of the shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other.

The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may be fore-seeably placed in danger by an unreasonably dangerous condition. It is now certain that this duty extends to the protection of those persons who drive onto the shoulder inadvertently.

A review of the trial record leads this court to the conclusion that the lower court was correct in its findings that the Department breached its duty to plaintiffs and was indeed negligent in failing to maintain a safe road shoulder in the instant case. A three inch drop-off from the paved portion to the shoulder, coupled with deep ruts immediately on the edge of the blacktop and at commencement of the shoulder, is clearly dangerous to the driving public and negligent. The Department knew, or should have known, of the condition, and the Department should have expediently corrected the situation prior to the accident.

The scope of the State’s duty included protection of these plaintiffs from the risk they encountered. For the foregoing reasons, the State clearly breached that duty.

Negligence is only actionable where it is both a cause in-fact of the injury and a legal cause of the injury. Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs, and such relation must be substantial in character. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973). Using a “but for” test to determine eause-in-fact clearly results in a finding that the accidents would not have resulted had the road shoulder not been in a dangerous condition (having an approximately eleven (11) inch drop-off). Further, there is a substantial relationship between the failure to correct the defects and the vehicular accidents.

CONTRIBUTORY NEGLIGENCE

In Rue v. State Department of Highways, supra, the Supreme Court stated:

“Under a simple ‘but-for’ analysis, the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. But this does not conclude the inquiry. Focusing on plaintiff’s ‘substandard’ conduct the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder was a risk reasonably related to plaintiff’s failure to drive entirely on the paved portion of the highway. We conclude that it was not. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.
We conclude that plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. We therefore expressly overrule Hopkins v. Department of Highways, [167 So.2d 441] supra.”

(Footnote omitted)

The factual situations presented in the two instant cases are almost identical to the factual situation presented in Rue, supra, and are clearly distinguishable from the factual situation presented in Sinitiere, supra.

In Sinitiere, the party leaving the main travel portion of the highway inadvertently allowed his two right wheels to ease onto the shoulder of the road at a place where the shoulder and highway were even.

Knowing that his vehicle was partially on the shelled shoulder, he slowed the vehicle to about 35 or 40 mph. for the planned re-entry onto the travel portion of the road. At the point where the party attempted to maneuver the vehicle back onto the highway, there was a three and one-half to four inch drop from the travel portion of the highway to the shoulder. Contact between the vehicle’s wheels and the elevated edge of the roadway resulted in the driver losing control of the vehicle and careening across the center line of the highway into the oncoming traffic. Although the driver testified he had no actual knowledge of the low condition of the shoulder, it was established that where the driver left the travel portion of the roadway, there was only a slight depression, if any, on the shoulder. However, after traveling on the shoulder for a considerable distance, and approximately 100 feet before the point at which the driver attempted to re-enter the travel portion of the roadway, the shoulder began descending, while the roadway continued along its even plane. Depression of the shoulder continued past'the point at which the driver attempted to re-enter the roadway and gradually went as low as five inches below the travel portion of the highway. Thus, the driver moved from a place on the roadway where his vehicle was substantially level with the plane of the road, to a position where the right side of his vehicle was three and a half to four inches lower than the left side. The angle of the vehicle caused by this condition, coupled with the presence of a continuing depression along the roadway in front of the vehicle, led the Supreme Court to the conclusion that the driver should have known that something was seriously wrong before he attempted to jump a three and one-half to four inch curb while going 35 to 40 mph. Having found the above factual situation, the court in Sinitiere, supra, stated that the driver’s actions were more than just a cause-in-fact of the accident, and that his breach of duty to observe what he should have seen had a substantial relation to the harm encountered by himself and others. He was precluded from recovering from the department and held liable to the survivors of the parties in the vehicle that he hit.

Each of the plaintiffs in the instant cases inadvertently drove their vehicles onto the shoulder. In these cases, (different from Sinitiere), there was a deep drop-off at the edge of the pavement and at the commencement of the shoulder (found by the trial judge to be unknown to the plaintiffs) which caused the plaintiffs to immediately lose control of their vehicles.

We conclude, as the court did in Rue, that each plaintiff’s conduct, if indeed substandard, is no bar to recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon is maintained in a reasonably safe condition.

DAMAGES

Appellants do not contest the award of damages to Henderson, but strenuously contend that the award of $1,415.00 to Mr. Ishee for a custom paint job does not correlate to any loss that appellee suffered. There is ample evidence in the record that the appellee had previously had the van custom painted and that it would have required $1,415.00 to duplicate the paint job. Appellants contend that since the automobile was repossessed from the appellee and the custom paint job was not performed, that the repossessing finance company may have suffered a loss, but appellee-Ishee certainly had not. Certainly, there is no requirement that a successful plaintiff actually make repairs to a damaged vehicle as a prerequisite to recovery for damages to the vehicle. An award granted is compensation for the loss sustained. It is clear that the Ishees were damaged by destruction of the paint job in this accident, and this loss must be compensated by the appellant. It is immaterial what disposition the Ishees might have made with the van, whether by sale, repossession, etc. It is defendant’s duty to compensate for the damages and loss sustained.

Additionally, appellants object to the award of special damages of $128.98 for the replacement of the tire. It is clear from the record that a tire was damaged in the accident, and even though not brought out on direct examination, this was established on redirect examination. The trial court stated that this item of damage had been clearly discussed in a pre-trial meeting and all parties were aware of this claim. We find this contention of appellants is without merit.

Appellants next contend that the award of $2,800.00 as general damages for the injuries sustained by Ms. Ishee was excessive. Ms. Ishee suffered a lumbarsa-cral sprain or strain, a partial tear of the Achilles tendon of her left leg, and a large bump on her leg. These injuries caused pain for several weeks. The leg injury caused pain for several months. On the date of trial, Ms. Ishee continued to have a large bump on her left ankle. Immediately after the accident, she received emergency medical attention at Lane Memorial Hospital. She thereafter consulted Dr. Fontenot for pain in her back and her leg and for ankle injuries. Dr. Fontenot referred Ms. Ishee to an orthopedic surgeon, Dr. Loupe. Dr. Loupe examined her on February 9, 1979, (some two months post injury) and found a mass in the left Achilles area that was causing pain and discomfort. He found a partial tear of the Achilles tendon and calcification. Dr. Loupe estimated that it would take six months to one year to complete healing. The trial judge found that even though Ms. Ishee continued to perform her duties as a housewife and mother, she did experience some injury and pain in her left leg.

Considering all of the above and the settled law that an award of a trial judge for general damages will not be disturbed unless manifestly erroneous, we can not say the general damages awarded in this case are excessive.

LIABILITY AS BETWEEN DEFENDANTS

At the time of the accidents and injuries herein complained of, there was in existence a contract between the City of Zachary and the Department which provided in pertinent part as follows:

“ARTICLE IV. The municipality shall cut or otherwise control weeds, grass, trees, and other vegetation, flush and clean drainage facilities, maintain and operate traffic signals, clean and grade ditches, sweep and clean the roads and streets, natch, blade, replace material and otherwise, maintain shoulders and shall generally police and maintain all facilities within the designated, dedicated or apparent right of way not otherwise provided for herein, and shall not permit encroachments on the right of way of said roads and streets.
ARTICLE IX. It is understood and agreed that the municipality shall hold Office harmless for any claims for damages to person or property arising by reasons of any negligence attributed to failure of proper maintenance of any of the facilities assumed by said municipality and likewise, Office shall hold said municipality harmless of any and all such claims arising by reason of its undertaking herein.”

Counsel for third party defendant and appellant, City of Zachary, contends that if there is liability on the party of any defendant, it should only be against the Department, He contends that since there had always been a drop-off between the travel portion of La. 19 and the shoulder of approximately two to three inches in depth, that this defect in original construction by the State was the sole cause of each accident. He further contends that Ms. Ishee’s accident was the result of hitting a bump or defect in the travel portion of the roadway, then running inadvertently onto the shoulder, and that maintenance of the travel portion of La. 19 is not the responsibility of the City of Zachary. Counsel argues that the ruts and/or washed-out conditions were not the problems in these cases, but that, in fact, the real problem was the design and construction of the main travel portion and the two to three inch drop-off of the shoulder. Finally, it is argued that no liability should attach under the provisions of La. Civ.Code art. 2317 and that the City of Zachary did not agree to custodial liability or strict liability, or any other liability except that of negligence under La.Civ.Code art. 2315. All of these arguments are without merit.

It is abundantly clear from the entire record that the hazardous condition of the shoulder and more particularly the eight or nine inch drop-off and/or “deep ruts” were the cause-in-fact of this accident. It was not established that the designed drop-off of two to three inches from the travel portion to the shoulder caused the problems in the instant case.

Appellant, City of Zachary, contends that under the terms of the contract, it is only obligated to hold harmless the Department from acts of negligence by the City, and that it did not agree to take on the underwriting burden of La.Civ.Code art. 2317. This argument has previously been disposed of in Robertson v. Handy, 354 So.2d 626, (La.App. 1st Cir. 1977). In that case, this court was presented with a factual situation very similar to the instant ones concerning contractual liability. Quoting R.S. 48:193(a), it was held that if the State was liable, then necessarily the City must be liable on the third party demand against it under the hold harmless agreement contained in the maintenance contract.

La.R.S. 48:193(a) provides, in part:

“A. The board of highways is hereby directed to repair and to keep in operating condition at its sole cost and expense, all municipal roads or streets which form a continuation of one of said highways, provided however, the final decision as to the designation or location of the particular municipal road or streets to be placed in the state systems shall be left entirely up to the board of highways. At the request of the governing authority of a municipality the work may be contracted out to such municipality, but all such maintenance costs shall be paid for by the state, provided that the state shall not be responsible for the maintenance of sewers, street lighting, gas and water mains and other public utilities. All damages to the streets or highways occasioned by the laying of sewers, street lighting and other public utilities shall be paid by the owner thereof. The board of highways shall control the parking on any highway which is hereafter constructed, widened or relocated at the sole expense of the state. The board of highways shall control signal lights and traffic other than parking on highways in the state system established hereby. . . . ”

The trial court found, and we agree, “. . . that the ruts that both plaintiffs hit were the responsibility of the City of Zachary under the contract between the municipality and the State.” Although the City of Zachary contends that this might be true if they were negligent in not maintaining the shoulder, they argue that they did not agree to assume liability under La.Civ.Code art. 2317. However, paragraph IV of the contract clearly provides, “It is understood and agreed that a municipality shall hold Office (State of Louisiana) harmless for any and all claims for damages to person or property arising by reason of any negligence attributed to failure of proper maintenance of any facilities assumed by said municipality.” Since we have previously held that the ruts constituted a hazardous condition for the traveling public, and since under the contract between the City of Zachary and the Department the maintenance of the shoulder was the responsibility of the City of Zachary, clearly, the City of Zachary was negligent, but even if not negligent, the hold harmless agreement would make the City of Zachary liable to the Department.

For the above and foregoing reasons, the judgment of the trial court is affirmed. The City of Zachary is cast for costs in the amount of $921.55.

AFFIRMED.

      . The Department of Transportation and Development will hereafter be referred to as “Department”.

      . Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

      . Rue v. State Dept. of Highways, supra.

      . Underlining by the court.


author: LEAR, Judge.

text:
    Darryl GISSEL v. Manny SEHDEVA.
    No. 82 CA 0037.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1982.
    S.David Holladay, Baton Rouge, for ap-pellee.
    John G. Morgan, Baton Rouge, for appellant.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   LEAR, Judge.

On September 25, 1981, after a trial on the merits, judgment was rendered in favor of plaintiff-appellee. On that same date a motion for a new trial was filed by defendant-appellant. On September 28, 1981, a formal judgment was signed by the trial court. Defendant filed a motion for devol-utive appeal on October 2, 1981, which motion was denied by the trial judge, due to the fact that defendant’s motion for a new trial was then pending. Defendant’s motion for a new trial was denied on November 16, 1981, and the motion for a devolu-tive appeal, previously filed on October 2, 1981, was granted on this date. The notice was mailed to all parties. On November 23, 1981, the city court received a letter from defendant’s attorney, dated November 18, 1981, which indicated defendant’s desire to change his appeal from devolutive to sus-pensive. This letter was treated as a motion for suspensive appeal and was submitted to the trial judge.

Defendant’s timely motion for a new trial was denied on November 16, 1981. He therefore had until November 30, 1981, to perfect his suspensive appeal.

Under our jurisprudence harsh rules of pleading are not favored. La.C.C.P. art. 854; Innovative Data Systems of Louisiana v. Ellender, 316 So.2d 12 (La.App. 1st Cir. 1975). And, every pleading is to be liberally construed and we must look to the substance of the pleading in order to do substantial justice to the parties. La.C.C.P. art. 865; Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).

The city court treated defendant’s letter, dated November 18, 1981, and received by them on November 23, 1981, as a motion for suspensive appeal. Under our jurisprudence liberally construing pleadings, and especially considering the informality of city court procedure, we find that defendant’s letter (motion) for a suspensive appeal was timely filed.

The Code of Civil Procedure articles dealing with courts of limited jurisdiction were amended by Act 46 of 1979. Prior to this act, La.C.C.P. art. 5002 specifically provided that the appeal bond must be filed within the delay allowed for taking an appeal in city court. This delay was ten days. However, this provision was eliminated in the new articles, and La.C.C.P. art. 5003, which now sets forth the delay for taking an appeal from a city court judgment, contains no reference to the time allowed for the filing of the appeal bond.

Historically, both in city and district courts, the delay for filing a suspensive appeal bond has always been the same as the delay for taking a suspensive appeal. In fact, as noted above, former Article 5002 did not provide a specific number of days in which a suspensive appeal bond was required to be filed, but rather merely referred to the delay for taking the suspen-sive appeal and required that the bond be filed within that delay. While there is no specific provision setting forth the delay for filing a bond in connection with a suspen-sive appeal from a city court judgment, we find that Act 46 of 1979 was not intended by the legislature to change the historical requirement for filing a suspensive appeal bond within the delay allowed for taking the suspensive appeal. We, therefore, hold that, in order to perfect a suspensive appeal from a judgment of a city court, a suspen-sive appeal bond must be filed within the appropriate ten day delay for taking an appeal as provided by La.C.C.P. art. 5003.

We are not unmindful of our decision in Yadav v. Procell, 405 So.2d 1374 (La.App. 1st Cir. 1981). A footnote in that decision does refer to La.C.C.P. art. 2123, which allows thirty days for furnishing security for a suspensive appeal in district court. However, because appellant in Yadav did not file his bond even within the thirty day delay allowed in district court, a determination as to the appropriate delay for filing a suspensive appeal bond from a city court judgment was unnecessary to our decision in Yadav. Since the issue presently before us was not, in fact, decided in Yadav, we find Yadav not to be controlling in this instant case.

Defendant presented a check to the clerk of court to be used as an appeal bond on December 14, 1981. Since the delay for filing his suspensive appeal bond expired on November 30, 1981, defendant failed to perfect his suspensive appeal timely, and his appeal must therefore be dismissed as sus-pensive. However, because defendant had previously been granted a devolutive appeal, and because appeals are favored in the law, his devolutive appeal is maintained.

SUSPENSIVE APPEAL DISMISSED: DEVOLUTIVE APPEAL MAINTAINED.


author: HAWKINS, Justice,

text:
    Harvey YORK v. STATE of Mississippi.
    No. 53048.
    Supreme Court of Mississippi.
    May 12, 1982.
    Bentley E. Conner, Canton, for appellant.
    Bill Allain, Atty. Gen., by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROY NOBLE LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court.

Harvey York appeals from a conviction of armed robbery and a twenty-five year sentence in the circuit court of Madison County.

The only issue we address on this appeal is whether the trial court erred in overruling York’s motion to suppress the evidence relating to his identification following a prior pretrial lineup identification. This in turn involves questions of Sixth Amendment rights (right to counsel at the lineup), Fourteenth Amendment rights (due process of law), and whether or not the State proved identity beyond every reasonable doubt. We affirm.

Decisions of the United States Supreme Court beginning in 1967 have precipitated a flood of alleged constitutional violations throughout the United States of defendants’ rights in criminal cases, in which our state courts have had their share. There has been confusion of the meaning of these cases, especially in defining the boundaries of their application. This case is a vehicle for review of the history of the U. S. Supreme Court cases concerning identifications and their present application to our Court, ever bearing in mind, however, that the application of the principles of these decisions, like the tide, expand and contract.

FACTS

Mrs. Rosa Lee Tharp was working in the Handee Mart in Ridgeland on July 23,1980, and was robbed at approximately nine o’clock that night. She was the only witness who testified to the details of the robbery, although there were two others who witnessed at least a part of the crime.

According to Mrs. Tharp, the robber entered the store, picked up a soft drink in the back, and asked her where the potato chip rack was. As he set the items on the counter for Mrs. Tharp to ring up, he pulled out a pistol and told her not to try anything and that he wanted the money from the cash register. He then went around the counter, where Mrs. Tharp was on her knees in fear, and helped himself to the contents of the cash register.

As the robber was leaving, two youths, Steve Rivers and Ken Whatley, were entering. The robber asked Rivers what kind of car he had, and Rivers replied, “Mustang,” whereupon the robber told the boy to give him the keys. Rivers responded, “You’ve got to be kiddin’, that’s a new car,” and further, “I know that’s a play gun you got.” The robber responded by shooting into the ceiling, and Rivers immediately threw him the keys.

Three days later York was arrested, and less than a week after the robbery, was placed in a lineup conducted by the Jackson Police Department. Mrs. Tharp promptly identified York as the robber at the lineup proceeding. Rivers and Whatley were also present at the lineup, however neither of them were called by the State or defense at either the hearing on the motion to suppress or the trial.

Mrs. Tharp was quite positive York was the robber. She had an opportunity to view the robber two to three minutes during the robbery and stated at the motion to suppress that she “spotted him right off” at the lineup. Her only articulated reasons for the identification, however, were that she “could never forget those eyes” (though she could not remember whether they were blue or black), and that she recognized the boots he was wearing.

The robber’s height was particularly difficult for Mrs. Tharp to describe. At one point she stated that he was about five feet, but added that he “might not have been that tall.” Mrs. Tharp, 5'5" herself, then stated, “I don’t know much about height, but I was looking at him,” thus inferring he was taller than five feet. She further described the robber as weighing 150-55 pounds with red curly hair.

The identification testimony by Mrs. Tharp was essentially the same during the trial as during the motion to suppress, and she never hesitated or wavered from her instant identification at the lineup to and throughout the trial.

York is 6'1", about 185 pounds, and has brown eyes. There was conflicting testimony as to the color of York’s hair at the lineup, but it was not red or curly, like the robber’s hair.

On the motion to suppress the identification, York testified that he did not resemble any of the others in the lineup. Most of them were “just under my height,” and one was “a lot taller than I was.” He further testified, “all of ’em had on gold jump suits, city jump suits, and they let them put a white shirt on.” According to York, he was not wearing a jump suit, and had on light brown slacks and a white shirt. He also testified that the others wore tennis shoes, while he wore boots. On cross-examination he testified the others “wasn’t near my height,” and were “lots slimmer than I was, I stuck out like a sore thumb.” Further cross-examination of York revealed that there was no great difference in height between him and the others, and that he was not positive about the dress of ' the others.

The arresting officer Watkins, who was a witness at the lineup, testified that all participants in the lineup ranged from 5'9" to 6'1", their clothing was similar, and all except one (not York) wore brown shoes. On cross-examination, however, Watkins was not positive about the shoes worn.

During the pretrial hearing on the motion to suppress his identification, York never denied that the identification of him by Mrs. Tharp was correct. York did not take the witness stand during the trial. Additionally, on this appeal the conviction is not challenged because it might be against the overwhelming weight of the evidence.

HISTORY OF TRIAL COURT PROBLEMS WITH IDENTIFICATION

Prior to 1967, this Court had no competency test for the admissibility of testimony identifying the accused as the perpetrator of the crime. We did say that proof of identity, as any other element of the crime, had to . be proved beyond a reasonable doubt. The weight and credibility of any identification, however, were left solely to the jury. Passons v. State, 289 Miss. 629, 124 So.2d 847 (1960).

In February, 1967, the United States Supreme Court in three decisions initiated an indepth search of the inherent problems with accuracy of identification testimony. It is a haunting question. When a false identification results in a conviction, two unfortunate developments follow: an innocent person is convicted, and a criminal remains loose in society.

These three decisions, called by commentators the “Wade trilogy,” are: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

These cases and their progeny are the present guidelines this Court must follow in determining the competency of identification testimony, whenever this issue is called into question.

In United States v. Wade, the accused, being represented by counsel, was required to participate in a lineup in a courtroom after his indictment, without his attorney present. Wade and five or six other prisoners were required to put tape on their faces and were exhibited to eyewitnesses to a bank robbery. Each participant, including Wade, was required to state, “Put the money in the bag,” the words of the robber spoken during the commission of the crime. During the trial of his case, the witnesses simply identified Wade in the courtroom on direct examination, however, the prior lineup identification was later elicited on cross.

Upon conviction, Wade argued on appeal to the Fifth Circuit Court of Appeals that the lineup proceeding, having been conducted in the absence of and without the knowledge of his attorney, had violated his Sixth Amendment right to counsel. In agreement with this argument, the Fifth Circuit reversed and remanded for a new trial in which the in-court identification evidence was to be excluded.

The United States Court’s opinion analyzed in considerable depth the problem of accurate identification and the fallibility of human perception:

But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.

388 U.S. at 228, 87 S.Ct. at 1933. A great number of faulty and misleading methods of identification were noted.

As stated, during the trial the eyewitnesses made no reference to having previously identified Wade in the pretrial lineup until cross-examined. The Supreme Court then observed the burden this placed upon the defense counsel:

. . . The State may then rest upon the witnesses’ unequivocal courtroom identification, and not mention the pretrial identification as part of the State’s case at trial. Counsel is then in the predicament in which Wade’s counsel found himself — realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness’ courtroom identification by bringing out and dwelling’ upon his prior identification.

Id. at 240-41, 87 S.Ct. at 1939.

Holding that Wade was entitled to presence of counsel at the pretrial lineup, the Supreme Court vacated the Fifth Circuit judgment and remanded “to determine whether the in-court identification had an independent source, or whether, in any event, the introduction of the evidence was harmless error.” Id. at 242, 87 S.Ct. at 1940.

The Supreme Court listed several factors for the district court to consider on remand in determining whether or not the government had clearly and convincingly established that the in-court identification is free of the taint of impermissible pretrial lineup proceeding:

. . . Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.

Id. at 241, 87 S.Ct. at 1940.

Wade took a gloomy view of pretrial identification methods, recognizing that many such procedures were suggestive of guilt or unduly emphasized the suspect as the perpetrator. The Court noted the pretrial identification of Wade was thusly flawed. The Court reversed, however, not because of the procedure used in the pretrial identification, but rather because Wade’s attorney, who was not present, was thereby deprived of a useful tool in cross-examination, with which to expose to the court and jury the flaws in the procedure used to identify his client.

In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), Gilbert was convicted in a bifurcated trial for the murder of a police officer during an armed robbery of a savings and loan association, and was sentenced to death. After his indictment, the police conducted a pretrial lineup identification in an auditorium without Gilbert’s attorney present. More than a hundred people were in the audience, all eyewitnesses to one of several robberies charged to Gilbert.

During the guilt phase of his trial, the cashier eyewitness simply identified Giibert as the perpetrator. The trial judge denied the defense counsel’s motion to question this witness, out of the presence of the jury, to determine whether her identification was predicated mainly on the pretrial showup. The other witnesses, who also identified Gilbert during the trial, testified on cross-examination that they had previously identified him at the pretrial showup.

During the penalty phase of the trial, eight witnesses to other robberies charged to Gilbert identified him, and were also permitted, over objection, to testify that they had identified him at the pretrial showup.

For the same reasons expressed in Wade, the Court reversed the conviction and remanded for the determination by the California Supreme Court as to the proceedings necessary to “establish that the in-court identification had an independent source, or that their introduction in evidence was in any event harmless error.” 388 U.S. at 272, 87 S.Ct. at 1956.

The Supreme Court then held that the testimony of the witnesses during the penalty stages of their pretrial identification of Gilbert must be excluded completely, since his attorney had not been present.

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), we have, for the first time, a case in which the accused argued his conviction should be set aside, not only because he was denied counsel at a pretrial identification (a violation of his Sixth Amendment right to counsel), but also the procedure used to identify him was so unfair that it denied him due process of law (the Fourteenth Amendment).

A physician, Dr. Behrendt, had been stabbed to death in his Long Island home. His wife had been stabbed eleven times and critically wounded. Stovall was arrested the following day, and his arraignment was postponed to give him time to retain counsel. However, without allowing him to retain counsel, the police took him handcuffed to the victim’s hospital room and required him to speak. Stovall was then identified by Mrs. Behrendt.

At Stovall’s trial in a New York state court, the officers and the victim testified as to the pretrial hospital room identification. Mrs. Behrendt also identified Stovall in court. Stovall’s conviction and death, sentence were affirmed by the New York Court of Appeals.

At a later date Stovall filed a pro se habeas corpus request from prison in a United States District Court in New York, and it eventually reached the United States Supreme Court. He claimed the identification testimony of Mrs. Behrendt violated his rights under the Fifth, Sixth and Fourteenth Amendments “because he had been compelled to submit to the hospital room confrontation without the help of counsel and under circumstances which unfairly focused the witness’ attention on him as the man believed by the police to be the guilty person.” Id. at 296, 87 S.Ct. at 1969.

On Stovall’s claim of denial of his right to have a lawyer present at the pretrial identification, the Supreme Court declined to apply the right to counsel rule announced in Wade and Gilbert retroactively, and denied him this relief.

The Court then considered the question of whether the identification method utilized by the police was so unfair as to deny Stovall due process of law, and decided there had been no Fourteenth Amendment violation.

In this initial consideration of whether an identification procedure in and of itself violated an accused’s right to due process, the Supreme Court’s opinion is significant:

We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (CA4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative. The Court of Appeals, en banc, stated, 355 F.2d [731] at 735, “Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, ‘He is not the man’ could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.”

Id. at 301-02, 87 S.Ct. at 1972-73.

It is important to note the Court, in determining whether or not the pretrial confrontation denied an accused due process of law, used the now familiar clause, that it “depends on the totality of the circumstances surrounding it . . . . ”

Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), was the first United States Supreme Court case following the Wade trilogy. Simmons and two others were convicted in an Illinois United States District Court for bank robbery. Five bank employees identified Simmons from snapshots given the police by a sister of a co-defendant. Eyewitnesses were also shown an indeterminate number of photographs of different persons, from which Simmons was identified. No photographs were introduced at trial; all witnesses simply identified Simmons in the courtroom.

On appeal Simmons asserted that “his pretrial identification by means of photographs was in the circumstances so unnecessarily suggestive and conducive to misiden-tification as to deny him due process of law, . . . . ” Id. at 381, 88 S.Ct. at 970. Simmons did not argue a deprivation of a Sixth Amendment right to counsel as stated in the opinion. “Rather, he asserts simply that in the circumstances the identification procedure was so unduly prejudicial as fatally to taint his conviction. This is a claim which must be evaluated in light of the totality of surrounding circumstances.” Id. at 383, 88 S.Ct. at 970.

Again, it is significant to quote precisely what the United States Supreme Court states in its opinion:

It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.
Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967 [1972-73], 18 L.Ed.2d 1199, 1206, and with decisions of other courts on the question of identification by photograph.

Id. at 383-84, 88 S.Ct. at 971.

In Simmons, the Court uses the now familiar clause that no conviction based on pretrial identification will be set aside because of a due process of law violation unless “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

In Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), Foster was convicted in a California state court of armed robbery of a Western Union office. The United States Supreme Court granted certiorari from an affirmance of his conviction on the sole question of whether the police lineup violated his constitutional rights. David, the night manager of the Western Union office, witnessed the robbery. The police conducted a lineup of three men, including Foster. Foster was at least six inches taller than the other two men in the lineup and the only person wearing a leather jacket. David said the jacket was similar to the one the robber wore, which had been visible underneath the robber’s coveralls. David “thought” Foster was the man, but was not sure. At David’s request Foster was brought into an office, sat across a table from David, and was required to speak. Police officers were the only other persons present in the room. David was still uncertain: “Truthfully — I was not sure,” he testified.

A week or ten days later there was a second lineup of five men, with Foster being the only participant who had been in the first lineup. This time David was “convinced” Foster was the man.

At the trial David testified to his identification in the pretrial lineups and also made an in-court identification. The only other evidence against Foster was testimony from an accomplice who had turned state’s witness and evidence of conviction of a previous robbery.

As in Stovall, the Court did not consider the question of whether these lineups violated Foster’s Sixth Amendment right to counsel at the lineup, since the trial preceded Wade, but did consider violation of Foster’s due process rights. Judge by the “totality of the circumstances”, was the conduct of the pretrial identification procedures “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law?

The Court held this case constituted a compelling example of unfair identification procedures. The Court stated:

The suggestive elements in this identification procedure made it all but inevitable that David would identify petitioner whether or not he was in fact “the man.” In effect, the police repeatedly said to the witness, “This is the man.” . . . This procedure so undermined the reliability of the eyewitness identification as to violate due process.

Id. at 443, 89 S.Ct. at 1129.

The case was reversed for further proceedings in the state court “not inconsistent with this opinion.”

In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), there was an in-court identification, but no testimony was offered of the out-of-court identification.

At 11:30 p. m. the victim, Reynolds, was changing a flat tire when three men approached from across the highway. One of the men shot Reynolds from a short distance away. Reynolds raised himself up and held on to his wife. One man (later identified as Coleman) put his hand on Mrs. Reynolds’ shoulder. Within a few seconds a car with lights approached, and the three turned and ran across the road: As they turned to go, Reynolds was shot a second time.

Reynolds identified the defendant Stephens as the gunman, stating he saw him in the car lights while looking straight at him. As to Coleman, he testified he saw him face to face, stating, “I looked into his face . . . [and] got a real good look at him.” At the hearing on a pretrial motion to suppress identification evidence, it was shown that Reynolds had been unable to give anything more than a vague description in his hospital room, nothing to specifically identify either suspect; nor was Reynolds able to identify either suspect from mug shots shown him.

At the lineup, however, Reynolds spontaneously identified Stephens before the formal lineup began, recognizing him as soon as he saw him. He also identified Coleman in the lineup, according to Reynolds, before Coleman had spoken any words.

There was conflicting testimony on whether Coleman and Stephens were the only ones required to speak, and Coleman testified he was the only one required to wear a hat. However, the Supreme Court said the hat did not identify Coleman since Reynolds asked that the hat be raised for a better look at his face.

The Supreme Court held that from the record before it, there was no error in the trial court’s finding that Reynolds’ in-eourt identification did not stem from a procedure at the lineup “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Indeed, the Court noted the trial court could have found Reynolds’ identifications were entirely based upon observations at the time of the assault, not the lineup. Id. at 5-6, 90 S.Ct. at 2001-02.

The holdings of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), have guided most of this Court’s decisions on eyewitness identification testimony, and is the case most familiar to the bench and bar of this State.

During the trial the victim not only identified Biggers in the courtroom, but also gave testimony concerning a station house identification of Biggers. Biggers argued the identification method used violated due process of law.

The victim, a practical nurse, testified that on the night of January 22, 1965, a youth with a butcher knife grabbed her in her kitchen, and threw her on the floor. No light was in the kitchen, but light came through the bedroom doorway, and she testified she could see who her assailant was. The victim’s twelve year old daughter heard her scream, and also began screaming. Under threat of killing them both unless they shut up, the victim was then taken two blocks along a railroad track and into a woods, and raped. The moon was full that night and shining brightly. The entire episode lasted from fifteen to thirty minutes.

She described her assailant as “being fat and flabby with smooth skin, bushy hair, and a youthful voice.” She added that he was between sixteen and eighteen years, five feet ten inches to six feet tall, weighed 180-200 pounds, and had a dark brown complexion.

Over the next seven months on several occasions she viewed suspects in her home and at the police station in lineups or show-ups, without identifying any. Out of thirty to forty photographs, she selected one as having features similar to her assailant, but identified none of them.

On August 17 she was called to the police station to view Biggers, who was being held on another charge. A showup was conducted in which two detectives walked Biggers past her, and at her request required him to say “shut up or I’ll kill you.”

She identified Biggers as her assailant and testified she had “no doubt,” stating, “I knew it was the individual, because his face —well, there was just something I don’t think I could ever forget.” Id. at 195-96, 93 S.Ct. at 380.

Biggers reiterated Stovall in that the defendant could claim “the confrontation conducted was so unnecessarily suggestive and conducive to mistaken identification that he was denied due process of law.” This in turn must be determined “on the totality of the circumstances.” 409 U.S. at 196, 93 S.Ct. at 380.

After reviewing the cases we have examined in this opinion, the Supreme Court stated:

Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S., at 384, 88 S.Ct., 967 [at 971], 19 L.Ed.2d 1247. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentifi-eation is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.

Id. at 198, 93 S.Ct. at 381-82.

From the above passage it can be seen that Biggers recognized the identification problem could come about in two different evidentiary situations: (1) an in-court identification based upon a suggestive pretrial identification procedure, and (2) testimony pertaining to the out-of-court suggestive identification proceeding itself. In this case there was both an in-court identification and also testimony pertaining to the out-of-court identification.

The Court said an in-court identification could be made despite suggestive pretrial identification unless the pretrial procedure created “a very substantial likelihood of irreparable misidentification.”

The Court then said that to offer testimony concerning the suggestive pretrial identification itself did not violate due process, unless the pretrial procedure created “a very substantial likelihood of misidentification.”

By omitting the word “irreparable” the Court placed a slightly greater burden upon the prosecution to justify admission of evidence pertaining to a suggestive out-of-court identification, than an in-court identification by an eyewitness following a suggestive pretrial identification.

The Supreme Court held that unnecessarily suggestive pretrial identifications did not in and of themselves require exclusion of the evidence. Rather, evidence of a suggestive out-of-court identification will be admissible if, from a totality of the circumstances, the identification was reliable.

In making this determination, the Court gave the now familiar factors to be considered:

... As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. at 199, 93 S.Ct. at 382.

Using these criteria the Court found the identification passed inspection. She had spent considerable time with Biggers, saw him under adequate light in her house and in the moonlight, where she faced him directly and intimately, not as a casual observer. Further, her description was more than ordinarily thorough, and she had “no doubt” Biggers was the person who raped her. Her record for reliability was good, having previously resisted suggestiveness inherent in a showup. Both her in-court and out-of-court identification testimony was proper to go to the jury.

The Supreme Court in Stovall was inclined to be lenient even though the pretrial procedure was suggestive, because it was necessary. On the other hand, in Biggers the showup was both suggestive and unnecessary, but the conviction was nevertheless permitted to stand. See Kirby v. Sturges, 510 F.2d 397 (7th Cir.1975), for an excellent discussion of the problem.

Biggers was looking at a pre-Stovall factual situation, and there was some question as to whether its standard on admissibility of evidence pertaining to the pretrial identification would apply to future cases.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), a Connecticut state court permitted testimony of a pretrial identification, which was admittedly both suggestive and unnecessary. The question in Manson was not the admissibility of an in-court identification, which pre-ceeded suggestive pretrial identification procedures, but whether testimony of such pretrial identification was admissible, even though suggestive and unnecessary.

The Court held that if the identification is “reliable” under the criteria of Biggers, then the admission of evidence of an out-of-court identification does not violate due process of law, even though both unnecessary and suggestive. Thus, any possible question as to a distinction being made between pre and post Stovall fact situations had been removed. The Court concluded, stating:

We therefore conclude that reliability is the linchpin in determining the admissibility in both pre and post Stovall confrontations.
* * * * * *
Surely, we cannot say that under all the circumstances of this case there is “a very substantial likelihood of irreparable misidentification.” Id. [390 U.S.] at 384, 88 S.Ct. 967 [at 971], 19 L.Ed.2d 1247. Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

Id. at 114, 116, 97 S.Ct. at 2253-54.

In both Biggers and Manson, the opinions reveal sufficient factual bases as to why the eyewitness could identify the suspects, despite the suggestive identification procedures.

The Court in Manson gave serious consideration to automatically excluding any evidence of a suggestive pretrial identification which was unnecessary under the circumstances, admittedly the situation in that case. The very strong dissenting opinion urged the adoption of such a per se exclusionary rule of such evidence, arguing the prosecution was not thereby deprived of an opportunity to identify the accused in court. The Court declined to adopt such a rule, however.

The above United States Supreme Court cases have brought a plethora of claims by defendants that their constitutional rights have been violated. Numerous cases by this Court have addressed such claims. Illuminating observations made from these United States Supreme Court decisions are contained in the following decisions by this Court: Chambers v. State, 402 So.2d 344 (Miss.1981); Miller v. State, 399 So.2d 1338 (Miss.1981); Bankston v. State, 391 So.2d 1005 (Miss.1980); and Scott v. State, 359 So.2d 1355 (Miss.1978). Under our holding in the cases of Porter v. State, 339 So.2d 564 (Miss.1976); Butler v. State, 217 So.2d 3 (Miss.1968); Short v. State, 211 So.2d 545 (Miss.1968); and Anderson v. State, 171 Miss. 41, 156 So. 645 (1934), testimony pertaining to an out of court or pretrial identification of the accused was inadmissible, aside from an alleged due process of law violation.

Had the evidentiary exclusionary rule of pretrial identification of these cases remained in effect, we ordinarily would not be faced with the constitutional test of Big-gers and Brathwaite, because such testimony would have been inadmissible in any event. In the case of Fells v. State, 345 So.2d 618 (Miss.1977), however, we held testimony of a pretrial identification was competent evidence.

All of our State cases in which eyewitness identification was a disputed issue therefore come under the ambit of these United States Supreme Court decisions. The rules announced therein must govern our decisions.

What synthesis may be gathered from them?

SIXTH AMENDMENT (RIGHT TO COUNSEL)

A participant in a lineup has a right to have a lawyer present only if criminal proceedings have been instituted against him. If the right is violated, the prosecution will be permitted an in-court identification by the eyewitnesses who viewed the proscribed lineup only upon a showing by clear and convincing evidence that the in-court identifications are based upon observations of the suspect other than the lineup identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

FOURTEENTH AMENDMENT (DUE PROCESS OF LAW)

Only pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed. A lineup or series of photographs in which the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer, is impermissibly suggestive. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). A showup in which the accused is brought by an officer to the eyewitness is likewise impermissibly suggestive where there is no necessity for doing so. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (impermissively suggestive); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (same); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (not im-permissively suggestive).

An impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Even if testimony is proffered of the out-of-court identification itself, the same standard exists as to the above, with the omission of the word “irreparable.”

In determining whether these standards are fulfilled, Neil v. Biggers states the following may be considered:

. . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

409 U.S. at 199, 93 S.Ct. at 382.

In the final analysis, under Manson v. Brathwaite, “reliability is the linchpin in determining the admissibility . . . . ”

It can thus be observed that an accused who seeks to exclude identification testimony based upon an alleged due process violation faces a very heavy burden. Even though the pretrial identification is imper-missibly suggestive, he must still show the conduct gave rise to a very substantial likelihood of irreparable misidentification.

In the present case there was no showing of a Sixth Amendment violation, because no adversary criminal proceeding was shown to have been instituted against York when placed in the lineup and identified. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

On the claimed due process violation there was no showing that the lineup proceeding had been impermissibly suggestive, certainly no more so than the lineup procedure in Coleman v. Alabama, supra, which the United States Supreme Court did not condemn.

Moreover, even if we were to hold the pretrial procedure was impermissibly suggestive, there was still no due process violation. The State fulfilled all the criteria of Biggers except “the accuracy of the witness’ prior description” of York. On this one factor, no proof was offered as to any prior description she had given the officers, one way or another.

The identification testimony was competent. A jury question on this issue was clearly presented. As to its credibility, while it would have been more preferable had Mrs. Tharp articulated more reasons as her basis for identifying York, she was nevertheless positive and unequivocal in identifying him as the robber. Furthermore, no witness contradicted the accuracy of this identification. See Rush v. State, 301 So.2d 297 (Miss.1974); Reeves v. State, 159 Miss. 498, 132 So. 331 (1931).

The conviction and sentence is therefore affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.

      . Whatley, who was apparently with Rivers, also had an opportunity to observe the robber. His precise location during the episode, however, is not clear from the record.

      . Arresting officer Watkins testified at the motion to suppress that Whatley was of the opinion York was the robber, but was not positive. Whatley’s opinion would have been competent, even though he was not certain. A witness does not have to be positive in his identification for his testimony to be competent before a jury. Little v. State, 357 So.2d 379, 383 (Ala.Cr.App. 1978); 23 C.J.S. Criminal Law Sections 864, 920.

      . It should be noted that it is not clear from the record whether this was the description given to the police officers prior to the lineup.

      . That in-court identifications are based upon observations of the suspect other than the lineup identification has to be established by the prosecution by clear and convincing evidence. As to what constitutes harmless error in the denial of a federal constitutional right, see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Supreme Court held the Sixth Amendment right to counsel at a lineup is limited to those cases in which an adversary judicial proceeding has been instituted against the accused. A routine lineup or showup identification of a suspect before any formal charge has been made against him does not entitle him to have a lawyer present. See also Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), wherein Wade was applied to a rape victim’s identification of the defendant at a preliminary hearing when no counsel was present. The Court ruled that the “adversary judicial criminal proceedings” had begun, requiring the exclusion of the out-of-court identification.

      . Compare exclusion of testimony of pretrial identification in this case, because Gilbert had no attorney, with Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), infra, in which, upon a clear cut violation of a due process right, the per se exclusionary rule was not applied.

      . California permits introduction into evidence of conviction of a similar crime in proving the case in chief.
      In California no conviction can be based solely upon the testimony of an accomplice.

      . The opinion states the following:
      The reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution’s case is a matter for the jury. But it is the teaching of Wade, Gilbert, and Stovall, supra, that in some cases the procedures leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law.
      394 U.S. at 442, n. 2, 89 S.Ct. at 1128, n. 2.

      . If the Court had been consistent with its holding in Gilbert, all testimony pertaining to the out-of-court identification would have been excluded, while the in-court identification would be competent only upon clear and convincing proof that it was not a result of the out-of-court identification. The opinion makes no note of this problem, however. Justice Black’s dissent forcefully called aspects of this question to the Court’s attention. 388 U.S. at 277, 87 S.Ct. at 1963. Incidentally, Justice Black never agreed that any pretrial identification procedure violated a due process right. He consistently argued such matters were for the jury to weigh. His dissents are forceful and lucid, and his, as well as other justices’ dissents and concurring opinions give full view to the problems of identification testimony which the Supreme Court grappled with. We cannot set them all out, however.

      . Clearly the Court intended these factors to be weighed when testimony was proffered as to the suggestive pretrial identification. Not clear is the necessity of considering them upon an in-court identification following a suggestive pretrial identification procedure. In any event, this Court has consistently adhered to the Big-gers factors on all in-court identifications.

      . Chambers v. State, 402 So.2d 344 (Miss.1981); Miller v. State, 399 So.2d 1338 (Miss.1981); Bankston v. State, 391 So.2d 1005 (Miss.1980); Kimbrough v. State, 379 So.2d 934 (Miss. 1980); Stewart v. State, 377 So.2d 1067 (Miss.1979); Johnson v. State, 359 So.2d 1371 (Miss.1979); Scott v. State, 359 So.2d 1355 (Miss.1978); Clubb v. State, 350 So.2d 693 (Miss.1977); Wilson v. State, 344 So.2d 739 (Miss.1977); Fells v. State, 345 So.2d 618 (Miss.1977); Gentry v. State, 338 So.2d 1229 (Miss.1976); Oliver v. State, 285 So.2d 897 (Miss.1973); Alien v. State, 274 So.2d 136 (Miss.1973); Evans v. State, 273 So.2d 495 (Miss.1973); Auman v. State, 271 So.2d 427 (Miss.1973); Simes v. State, 250 So.2d 705 (Miss.1971); Baylor v. State, 246 So.2d 516 (Miss.1971); Dorsey v. State, 243 So.2d 550 (Miss.1971); Sanders v. State, 219 So.2d 913 (Miss.1969); Butler v. State, 217 So.2d 3 (Miss.1968); Poole v. State, 216 So.2d 425 (Miss.1968).

      . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

        . Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).