author: GULOTTA, Judge.

text:
    Don THOMPSON v. SOUTH CENTRAL BELL TELEPHONE COMPANY and New Orleans Public Service, Inc.
    No. 12286.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1981.

      Moore & Walters, Charles R. Moore, Baton Rouge, Attorney for plaintiff-appellant.
    Hulse, Nelson & Wanek, Michael E. Wan-ek, New Orleans, Attorneys for defendant-appellant (Surveys, Inc.).

      Montgomery, Barnett, Brown & Read, Daniel Lund and Sylvia Landry Holder, New Orleans, Attorneys for defendant-ap-pellee (South Central Bell).
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

In this appeal the issue is whether South Central Bell Telephone Company is the “statutory employer” of Don Thompson entitled to a dismissal by summary judgment of Thompson’s tort suit for injuries sustained in a job-related accident.

At the time of his accident, Thompson was employed by Cifers Construction Company, Inc., which was under contract with South Central Bell to install underground, plastic conduit that would ultimately encase telephone wires running to a new office development on Canal Street in the City of New Orleans. Thompson was injured when the jackhammer he was operating struck an underground electrical cable owned by New Orleans Public Service, Inc. (NOPSI). Suit was directed against NOPSI, South Central Bell, and Surveys, Inc., an engineering firm that had drawn a map of underground utility lines in the area. Surveys, Inc. then third partied South Central Bell. United States Fidelity and Guaranty Company, Ci-fers’ workmen’s compensation insurer, intervened, claiming reimbursement for compensation and medical expenses paid to Thompson.

Based on the grounds that South Central Bell was the statutory employer of Thompson under LSA-R.S. 23:1061 and therefore immune from tort liability pursuant to LSA-R.S. 23:1032, the trial judge by summary judgment dismissed the original and third party petitions, as well as the intervention filed against Bell. Plaintiff and third party plaintiff have appealed. We affirm.

Plaintiff contends the trial judge erred in granting the summary judgment since the affidavit of a South Central Bell employee supporting the motion was legally insufficient in that it consisted merely of concluso-ry statements and did not affirmatively show that the affiant had personal knowledge of his statements as required by LSA— C.C.P. Art. 967. Thompson further argues that South Central Bell’s status as a statutory employer hinges on a factual question whether the excavation and the laying of the conduit was a part of the telephone company’s regular trade, business or occupation. Concerning this issue, plaintiff contends the work performed by Cifers was “new construction” outside of South Central Bell’s regular business. Thompson further claims that LSA-R.S. 23:1032 denies to him access to courts as mandated in LSA-Const. Art. 1, § 22.

Surveys, Inc. also contends that the telephone company’s status as a statutory employer is an unresolved factual question and that the work performed by Cifers involved construction of a new facility that was not part of the phone company’s business. Surveys argues that South Central Bell is a “service” rather than a “construction” company and that it merely installs, operates, and maintains telephone lines and equipment rather than constructing or burying the plastic conduit encasing them.

Summary judgment is granted only when the pleadings, depositions on file, answers to interrogatories and any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C. C.P. Art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Davis v. Copeland Enterprises, Inc., 390 So.2d 891 (La.1980). A party seeking summary judgment has the burden of showing the absence of any materially factual issue; and any doubt must be resolved in favor of a trial on the merits. Chaisson v. Domingue, supra.

The issue whether work performed by a contractor is part of the principal’s business, within the meaning of LSA-R.S. 23:1061, is a factual one and, therefore, summary judgment procedure is seldom appropriate in such cases. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975). In appropriate cases of this sort, however, summary judgment has been granted. See Fontenot v. Andrus Homes, Inc., 391 So.2d 42 (La.App. 3rd Cir. 1980) and the cases cited therein. For summary judgment to be granted, it must appear certain that the work undertaken by the injured employee’s actual employer was part of defendant’s trade, business or occupation, or was work which it had contracted to perform. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981).

J. A. Cothern averred in his affidavit that he was the Divisions Manager for South Central Bell; that the affidavit was based upon his personal knowledge, information and belief; that the trade, business and occupation of South Central Bell is “providing a public utility telephone service to subscribers”; and that “an integral and necessary part of this trade, business or occupation is the construction and maintenance of both underground and above ground facilities and telephone transmission lines . .. . ” He averred that the breaking of the concrete and the digging of underground pathways for the laying of the conduit performed by Thompson as an employee of Cifers “was absolutely necessary and essential in order to provide telephone service.” According to Cothern, South Central Bell chose to contract out the work set forth in the Cifers contract even though the work could be performed by the telephone company with its own equipment and employees in its construction department.

In deposition, Joseph H. Baudot, manager of the construction department of South Central Bell in the central business district, where the accident occurred, stated that the telephone company had issued “construction drawings” to Cifers. He further stated that the work of tearing up streets and installing the conduit for the cable is “contracted out.” According to Baudot, South Central Bell has an employee at the project site at various times to see that the excavator’s work is done in conformity with the telephone company’s practices and specifications.

James Perot, Jr., project engineer for South Central Bell at the time of the accident, designed the conduit involved from base drawings designed by Surveys, Inc. He stated, in deposition, that telephone company construction employees do not lay conduit.

The trial court also had the benefit of the deposition of Jimmie Billiot, Cifers’ supervisor on the job at the time of the accident. It was his job to make sure the conduit was laid properly and that the trench was in the right place according to the drawings supplied by South Central Bell. He testified that he had received a set of the drawings from the telephone company’s contract supervisor and used them on the job.

At the outset, we reject plaintiff’s contention that J. A. Cothern’s affidavit in support of the motion for summary judgment was legally insufficient.

It is true that an affidavit supporting or opposing a motion for summary judgment must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify concerning the matters stated therein. LSA-C.C.P. Art. 967, supra; Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978). It is also true that a mere conclusory statement that the affiant has personal knowledge of the facts set forth in the affidavit will not suffice.

However, in our case, the affiant, J. A. Cothern, testified that he was South Central Bell’s Division Staff Manager, that he made statements based on his own personal knowledge, information and belief, and that he had been employed by South Central Bell since 1956 and had held his present position since April, 1977. These factual statements concerning his capacity and employment history with the telephone company affirmatively showed that he was competent to testify that South Central Bell’s business was that of providing telephone services to subscribers in the City of New Orleans and that an integral part of this business was the construction and maintenance of underground and above ground telephone transmission lines.

A copy of the contract between South Central Bell and Cifers is annexed to the affidavit. Moreover, the depositions of other telephone company employees support Cothern’s statements and supplement his affidavit. Under these circumstances, Cothern’s personal knowledge of the facts was sufficiently established and we conclude, as did the trial judge, that the affidavit meets the requirements of LSA-C.C.P. Art. 967.

The primary question with which we are confronted is whether the affidavit and depositions establish that South Central Bell is plaintiff’s statutory employer as a matter of law. There exists no genuine issue of material fact. No countervailing affidavits were filed and the facts set forth in the affidavit and depositions are undisputed.

A principal is considered the employer of a contractor’s employees engaged in work that is part of the regular business of the principal. Barnes v. Sun Oil Co., supra; Fontenot v. Andrus Homes, Inc., supra. This test for “statutory employment” has been held to consist of four essential elements: 1) a relationship of principal — contractor; 2) a contract between the principal and the contractor for the execution by the contractor of the whole or any part of work being undertaken by the principal; 3) “work” under the contract that is part of the principal’s trade, business or occupation; and, 4) injury to the employee while engaged in the execution of this “work”. Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061 (La.App. 3rd Cir. 1977). It is clear that South Central Bell’s regular trade, business or occupation is that of providing telephone service to subscribers. It is also clear that a necessary part of this business is the construction and maintenance of underground telephone transmission lines. The laying of conduit to encase the underground transmission cables is obviously an essential and integral part of the telephone company’s business.

The mere fact that South Central Bell does not do the excavation or the laying of the conduit itself with its own employees, but rather chooses to contract that portion of the work out does not prevent the labor from being part of its regular business. See Barnes v. Sun Oil Co., supra. As we held in Gray v. Louisiana Power and Light Company, 247 So.2d 137 (La.App. 4th Cir. 1971), writ refused, 259 La. 59, 249 So.2d 202 (1971), an electrical utility company’s decision to contract with another company for the construction of foundations for towers supporting overhead transmission lines did not preclude the electric company from being a “statutory employer” of the contractor’s employee where the utility was authorized to manufacture and produce electricity and the means to transmit it to its users.

We are aware of various cases holding that construction of a “new facility” is not part of the trade, business or occupation of the concern who is to use the facility. In Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973), the construction of a “coking unit” was held not to be the regular business of the owner and operator of an oil refinery and chemical plant where it was not the owner’s business to engage in new construction of this type or magnitude and it had never designed a coking unit or any comparable plant. See also, Waller v. Farmland Industries, Inc., 392 So.2d 1099 (La.App. 3rd Cir. 1980) and the cases cited therein. Likewise, a major reconversion of one type of alcohol production facility to another type has been held not to be part of the regular business of a company where it did not regularly so convert the facilities of its chemical plant. See Blount v. Exxon Corp., 395 So.2d 355 (La.App. 1st Cir. 1981).

The excavation of a street and laying of telephone conduit in our case, however, is not a “new construction” within the meaning of the cited cases. Ours is not a case where a new plant is being constructed en toto for the principal or where the construction is not part of the principal’s regular business. Moreover, the telephone company did not rely wholly on the expertise of the contractor to design and construct the system. On the contrary, South Central Bell designed the conduit, drafted the excavation contract, and furnished Cifers with plans, specifications and materials, including the conduit, for performance of the work. The aforementioned cases are therefore distinguishable.

Under these circumstances, we conclude Thompson was injured while performing contractual work that was part of South Central Bell’s regular business. Summary judgment was therefore proper since the telephone company, as Thompson’s “statutory employer”, was immune from tort liability.

Finally, we reject the argument that the statutory employer defense is unconstitutional because the plaintiff is deprived of an adequate remedy for injuries allegedly resulting from South Central Bell’s negligence. LSA-R.S. 23:1032, the exclusive remedy provision of the Workmen’s Compensation Law, has been held not to violate LSA-Const. Art. 1, § 22, supra. See Branch v. Aetna Cas. & Sur. Co., 370 So.2d 1270 (La.App. 3rd Cir. 1979).

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      .LSA-R.S. 23:1061 reads as follows:
      “§ 1061. Principal contractors; liability Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

      . LSA-R.S. 23:1032 reads as follows, in pertinent part:
      “§ 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws.
      The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.”

      . U.S.F. & G. has not appealed the dismissal of its claim in intervention.

      . LSA-C.C.P. Art. 967 reads as follows, in pertinent part:
      “Art. 967. Same; affidavits
      Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.”

      . LSA-Const., Art. 1, § 22 reads as follows: “§ 22. Access to Courts
      Section 22. All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

      . Sections (a) and (b) of Article 5 of the contract between South Central Bell and Cifers provide:
      “ARTICLE 5. MATERIALS, LABOR AND APPLIANCES
      (a) The Contractor will furnish all materials (except materials to be furnished by the Telephone Company as provided for in Section
      (b) of this Article 5), cartage, tools, implements and appliances, and do and perform all work required for the full performance of everything shown, described or reasonably implied by applicable general plans, drawings and specifications of the Telephone Company.
      (b) The Telephone Company will furnish to the Contractor at such times as will not delay the Contractor in his work, all cable, poles, anchors, conduit, pipe bends, castings, couplings, manhole frames and covers, U-guards, pulling-in irons, creosoted plank and any other miscellaneous hardware or minor supplies associated with above materials, and the Contractor shall receipt for and be responsible for said materials from date of delivery.”


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Herbert Joseph REINE v. Paul M. KEARNS, Builder, et al.
    No. 12435.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1981.
    Brumfield & Brumfield, William P. Brumfield, Baton Rouge, for plaintiff-appellant.
    Hailey, McNamara, McNamara & Hall, W. Marvin Hall, Metairie, for defendants-appellees.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Herbert Joseph Reine, appeals a summary judgment in favor of defendants, Paul M. Kearns, Builder (Kearns), and American Mutual Liability Insurance Company (American), dismissing the plaintiff’s demands.

The plaintiff alleges that on or about April 27, 1978 he was employed by Kearns as a roofer and while engaged in the duties of his employment, he fell from the roof of a house and sustained fractures of both feet, which required several operations. Reine never returned to work after the accident, and on or about June 7, 1980, he suffered a heart attack while at his home. Although at the time of judgment the plaintiff was being compensated by American at the rate of $130 a week, American refused to pay any medical expenses incurred by Reine due to his heart attack.

Plaintiff now argues on appeal that dismissal of his demands by the granting of the defendants’ motion for summary judgment was error on the part of the district court judge because there did exist a genuine issue as to a material fact.

We agree and reverse. LSA-R.S. 23:1203 establishes that in every case coming under that chapter the employer shall furnish all necessary medical, surgical and hospital services as well as medicines.

The affidavit filed by the attorney for the plaintiff, which was before the district court judge at the time of judgment, stated in part:

“3. Mr. Herbert Joseph Reine sustained an acute myocardial infarction on June 7, 1980;
4. For his myocardial infarction, petitioner has been hospitalized and undergone operations at the Southern Baptist Hospital in New Orleans, Louisiana, and has been treated since June 7, 1980, by Dr. Carl J. Dicharry of New Orleans, Louisiana;
5. Based upon conversations and correspondence with petitioner and his treating physicians, affiant has been informed thereby that plaintiff has suffered and worried about his disability, lack of being fit to return to work, and his acute financial problems;
6. Based upon correspondence with Dr. Carl J. Dicharry concerning Mr. Herbert Joseph Reine, affiant has received from Dr. Dicharry a letter with enclosures dated October 8, 1980, a copy of which is attached hereto and made a part hereof; and
7. Affiant has attempted to obtain an affidavit from Dr. Carl J. Dicharry for use in the defense of this motion for summary judgment herein; however, the same has not been returned to affiant in time to timely file the opposition hereto, but affiant has reason to believe and personal knowledge that if Dr. Carl J. Dicharry would so testify that he would testify along the outlines and facts and opinions contained in his medical report and conversations with affiant as attorney of record for plaintiff.”

One of the letters, signed by Dr. Dichar-ry, which was attached to the affidavit, stated:

“Dear Mr. Brumfield:
Enclosed are copies of the history and physicals and letters that I have written to referring physicians on Mr. Herbert Reine. At no time was there any physical relationship to tie in his myocardial infarction with physical exertion; however, I would feel that the stress as a result of his previous disability and financial problems, could be a causative factor in this man’s illness.”

The crucial issue in the present case has been addressed in Larson, Workmen’s Compensation Law, Volume 1, under the heading “Range of Compensable Consequences”:

“§ 13.00 When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.
* * * * *
“§ 13.11 Direct and natural consequence rule
“A distinction must be observed between causation rules affecting the primary injury — which have been the subject of the present chapter up to this point — and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment. As to the primary injury, it has been shown that ‘arising’ test is a unique one quite unrelated to common-law concepts of legal cause, and it will be shown later that the employee’s own contributory negligence is ordinarily not an intervening cause preventing initial com-pensability. But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of ‘direct and natural results,’ and of claimant’s own conduct as an independent intervening cause.
“The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.”

In the case of Johnson v. Employers Mut. Liability Ins. Co. of Wis., 250 So.2d 38 (La.App. 3d Cir. 1971), the court also held, based on medical testimony in regard to a plaintiff who had sustained facial, teeth and jaw injuries as a result of an employment accident, and, subsequently, and as a direct result of the accident, underwent a great deal of emotional stress and worry which activated a preexisting but asymptomatic condition of arteriosclerosis (and also contributed to his development of an ulcer), that the plaintiff had proven to a reasonable certainty his disability which arose from the arteriosclerosis and the ulcer was the result of the employment accident.

In Chaisson v. Domingue, 372 So.2d 1225 (La. 1979), the court established at 1227:

“It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La. 1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La. 1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La. 1977); Stallings v. W.H. Kennedy & Son, Inc., 332 So.2d 787 (La. 1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La. 1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

In the present case, because there existed a genuine issue as to material fact, i.e., whether the plaintiff’s heart attack was a direct and natural result of the compensa-ble primary injury, the granting of defendants’ motion for summary judgment in the trial court was improper.

For the reasons assigned, therefore, the judgment is reversed and it is ordered, adjudged and decreed that this case is hereby remanded to the district court for trial on the merits, costs to await the final disposition of this matter.

REVERSED AND REMANDED.


author: GARRISON, Judge.

text:
    Irene PETE, as Administratrix of her Minor Child, Carolyn Diane Pete v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11838.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1981.

      Charles J. Pisano, New Orleans, for plaintiff-appellant.
    Floyd F. Green, New Orleans, for defendant-appellee.
    Before SAMUEL, GARRISON and BAILES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment in favor of defendant. New Orleans Public Service, Inc., dismissing plaintiff’s suit at her costs. The case was tried before a jury, but the jury was dismissed prior to entering a verdict. The judgment was rendered in accordance with a directed verdict granted in favor of defendant.

On appeal plaintiff argues that the trial court erred in granting a directed verdict because the defendant failed to move for a directed verdict and the trial court entered the verdict on its own motion.

C.C.P. Art. 1810 reads as follows:

“A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

We find that plaintiff is correct in her argument. Civil Procedure Code Article 1810 specifies “a party”. The trial court cannot substitute its own motion therefor.

Additionally, we note that the trial court may not substitute its own credibility determinations for the jury’s credibility determinations in the instant appeal.

In Campbell v. Mouton, 373 So.2d 237 (La.App.3rd, 1979) our brethren on the Third Circuit bench stated:

“Making credibility evaluations is one of the primary duties of a jury and the trial court may not take this duty from the jury unless the party opposing the directed verdict has failed to produce sufficient evidence upon which reasonable and fair-minded persons could disagree. See Boeing Co. v. Shipman, supra; Dreiling v. General Electric Co., 511 F.2d 768 (5th Cir., 1975).” (at p. 240).

For the reasons discussed, the judgment of the district court is vacated, annulled and set aside and we remand the case for further proceedings consistent with this judgment.

ANNULLED, SET ASIDE AND REMANDED.


author: JULIAN E. BAILES, Judge Pro Tem.

text:
    Christiane P. D. ASCANI v. DEPARTMENT OF PARKS & RECREATION (LIBRARY DIVISION).
    No. 11894.
    Court of Appeals of Louisiana, Fourth Circuit.
    July 7, 1981.
    Rehearing Denied Sept. 17, 1981.

      Christiane P. D. Ascani, in pro. per.
    Ned J. Chiro, Gretna, Asst. Parish Atty., Parish of Jefferson, for defendant-appellee.
    Before SAMUEL, C. J., GARRISON, J., and BAILES, J. Pro Tem.
   JULIAN E. BAILES, Judge Pro Tem.

The plaintiff appeals the decision of the Jefferson Parish Personnel Board sustaining her dismissal from the position of library associate at the Jefferson Plaza Library. We reverse.

Appellant was hired as a part-time employee by the Library Division on January 4, 1968 and thereafter became a permanent full time classified employee on September 11, 1976. The evidence reveals that she worked in the circulation and audio-visual departments of the library as well as at the Wagner and Jefferson Plaza branches. She had received satisfactory ratings for the years 1977 and 1978. Along with those ratings, she received increases in pay.

She was represented by counsel at the evidentiary hearing before the Board’s hearing examiner on October 23, 1979. Before this court, however, she has chosen to represent herself. In her brief, Mrs. Ascani lists seven errors in the decision of the Jefferson Parish Personnel Board. Since we find merit in her contention that the dismissal letter from the appointing authority did not give her adequate notice of the reasons for her dismissal, we need not consider the other contentions.

On August 3,1979 and since September 5, 1978 the appellant was employed as a library assistant at the Jefferson Plaza branch library. By letter of the appointing authority dated August 3, 1979 she was informed of her dismissal as of that date for reasons contained therein. That letter reads:

“August 3, 1979
Dear Mrs. Ascani:
This letter is to inform you that your discharge from the Library Division is effective immediately.
The action is being taken because of your history of resistence to authority of those who are assigned to manage and supervise your work, and because of your history of abrasive relations with your coworkers.
I did not take this action solely because of the recent incident at the Jefferson Plaza Branch Library; that incident, I believe after a review of your work history, is the latest in what has been too long a series of similar incidents. You have been counseled on these subjects several times and chosen to disregard what you have been told.
Under the Jefferson Parish Personnel Rules, you have a right to appeal my action to the Personnel Board. Forms designed to assist you in filing an appeal may be obtained from the Personnel Department, Room 818-Jefferson Courthouse, Gretna, or Room 208, 3330 N. Causeway Blvd., Metairie.
If you elect to file an appeal, you must do so in writing within thirty (30) days of the effective date of the action complained against.
Very truly yours,
Maurice D. Walsh, Jr.”

As noted in the hearing examiner’s report, the appellant, through her counsel, objected to the dismissal letter on the grounds that it was “overbroad and vague”. This same objection is raised in appellant’s brief.

State Civil Service Rule 12.3, which is illustrative of a civil service due process requirement, provides that in cases of removal, demotion, or reduction in pay of a permanent employee for cause, the appointing authority or his authorized agent:

“Shall furnish to the employee at the time such action is taken or prior thereto, a statement, in writing, giving detailed reasons for such action. The appointing authority shall furnish the director a copy of said statement within fifteen (15) calendar days of the date employee was notified.” (Emphasis added.)

The jurisprudence requires that a classified employee be furnished reasonable notice of the nature of the charges. An employee is entitled to be informed as to the time, place and nature of the offense or offenses, in detail, so as to enable him or her to adequately prepare a defense to the charges. It is obvious that the letter of dismissal quoted above contains no details of the charges levelled against the appellant as required by the Civil Service Rules and by the jurisprudence of this state. She was not afforded the requisite notice. The letter merely makes conclusions and vague references to a “history of resistance to authority” and to a “history of abrasive relations with your co-workers.”

The requirement of a detailed state of the times, places, and nature of the resistance to authority or the abrasive relations with her co-workers is completely lacking in this dismissal letter. The hearing examiner referred to the letter as being overbroad and vague, which appears to this court to be an apt description.

As we stated in Robbins v. New Orleans Public Library, 208 So.2d 25, 29 (La.App. 4 Cir. 1968):

“(4) * * * To say merely that one is guilty of misconduct is not enough. The misconduct charged must be spelled out with allegations of sufficient facts and details so as to make identification positive.”

One of the concepts of due process involving the removal, demotion or reduction in pay of a civil service employee is that such employee be furnished a statement by the appointing authority giving detailed reasons for such action. The notice given in this case clearly fails to fulfill this requirement.

Accordingly, the judgment of the Jefferson Parish Personnel Board affirming the dismissal of appellant by the appointing authority is reversed. Further, it is ordered that appellant be reinstated as assistant librarian with full pay and with all benefits and rights from August 3, 1979.

REVERSED AND RENDERED.


author: SUGG, Justice.

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. DIXIE CONTRACTORS, INC.
    No. 52695.
    Supreme Court of Mississippi.
    July 29, 1981.
    Rehearing Denied Sept. 16, 1981.
    William A. Allain, Atty. Gen., Frank Shanahan, Asst. Atty. Gen., K. Hayes Calli-
    cutt, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellant.
    Vardaman S. Dunn, Cox & Dunn, Jackson, for appellee.
    Before PATTERSON, SUGG and BROOM, JJ.
   SUGG, Justice.

This is the second appeal of this case and involves a claim of Dixie Contractors, Inc. against the Mississippi State Highway Commission for highway construction performed by Dixie under a contract with the Commission on a federal aid project.

At the conclusion of the first trial in the Chancery Court of the First Judicial District of Hinds County, the chancellor awarded Dixie a judgment against the Commission for the sum of $359,763.96. The award consisted of two items. (1) $334,763.96 which the chancellor found to be due Dixie for work performed under Pay Item No. 401-23-P. (2) $25,000 which represented the amount of retainage under the contract. In its answer the Commission admitted it owed Dixie the $25,000 retain-age and alleged it had offered, and was willing to pay, the $25,000 to Dixie if Dixie would give the Commission a release evidencing a final payment on the contract.

On the first appeal, the case was reversed and remanded for a new trial because the chancellor had erroneously excluded evidence. At the second trial, the record of the first trial, including all exhibits, was introduced in evidence, and both parties presented additional evidence. The chancellor rendered a final decree awarding judgment in favor of Dixie against the Commission in the amount of $359,763.96.

The contract is a unit price contract. Bidders were furnished with the contract documents which included plans, specifications, special provisions, and proposal sheets. The proposal sheets covered numerous items called pay items, and most pay items were bid on the basis of a specified amount for each unit. Each pay item carried an estimated quantity which the bidders converted to a dollar amount by multiplying the unit price bid by the number of estimated units shown on the proposal sheet. The extensions of the items were then added and the result was the total bid on the entire project. The bidder submitting the lowest total bid is the low bidder and is ordinarily awarded the contract regardless of variations on the individual items making up the total. Dixie was the low bidder on the project with a bid of $4,577,488.45 and was awarded the contract. Dixie and the Commission executed a contract on May 13, 1968 which contained the following provision:

It is understood and agreed that the advertising according to law, the notice to creditors, the instructions to bidders, the proposal for the contract, the specifications, the revisions of the specifications, the special, provisions, and also the plans for the work herein contemplated, said plans showing more particularly the details of the work to be done, shall be held to be, and are hereby made a part of this contract by specific reference thereto and with like effect as if each and all of said instruments had been set out fully herein in words and figures.

The first page of the proposal and the contract documents furnished each bidder contains the following provision:

Current (1956) Edition of the Standard Specifications for Road and Bridge Construction adopted by the Mississippi State Highway Department and Approved by the Commissioner of the U.S. Bureau of Public Roads is made a part hereof fully and completely as if attached hereto, except where superseded by the Special Provisions, or amended by Revisions of the Specifications contained herein.

This case involves the amount due Dixie under Pay Item 401-23-P which covered unclassified excavation (plating material) (F.P.M.). The Commission contended Dixie was entitled to be paid for 92,711 cubic yards of unclassified excavation (plating material), but the chancellor held Dixie was entitled to be paid for an additional 230,-871.7 cubic yards of unclassified excavation (plating material) at the bid price of $1.45 per cubic yard.

We are of the opinion that the contract and contract documents support the position of the Commission, and the chancellor erred when he allowed Dixie additional compensation under Pay Item 401 — 23—P. We are not reversing the chancellor on a finding of fact but are reversing on his construction of the contract. The manifest error rule has no application. We stated in the first opinion:

We note also that the manifest error rule has little, if any, application in cases such as this resting upon construction of documentary evidence. S. & A. Realty Co. v. Hilburn, 249 So.2d 379 (Miss. 1971). (375 So.2d at 1206)

The contract covered the construction of 12.285 miles of Interstate Highway No. 10 in Hancock and Harrison Counties. The construction began at the Jordan River in Hancock County and ended at the Wolf River in Harrison County.

The first .9 mile section of the project, beginning of project (BOP) to Station 870, was a continuous embankment. The remaining 11.4 miles section of the project was from Station 870 to the end of the project (EOP) and was through rolling hills which had either cut sections or fill sections.

From BOP to Station 870 the plans required the top soil, the unstable material, and muck to be stripped from the entire portion of the construction limits. The muck was to be removed and disposed of by the contractor. The top soil and unstable material were to be removed and stockpiled beyond the outer limits of construction for plating the slopes. The embankment, except for 12 inches of plating material on the outer slopes of the embankment and on slopes in the median, was to be constructed from material furnished by Dixie and obtained by it from sources outside of the highway right-of-way.

In performing its contract on the .9 mile section from BOP to Station 870, Dixie stripped the plating material and muck between the outer limits of construction, stockpiled the plating material, and disposed of the muck. Dixie was paid for excavating the plating material under Pay Item 23A at the rate of 62$ per cubic yard and was paid for hauling the plating material to the stockpile under Pay Item 32A. Dixie was also paid for excavating and disposing of the muck under Pay Item 401-23-F at the rate of 97$ per cubic yard. Dixie then furnished and put in place the embankment material and was paid for this item under Pay Item 401-36 at the rate of $1.30 per cubic yard. After completing the embankment, Dixie then removed the plating material from the stockpile, placed it on the slopes and was paid for this work under Pay Item 401-23-P at the rate of $1.45 per cubic yard measured in its final position.

There was no disagreement between Dixie and the Commission for the work performed and the pay for such work on the .9 mile section. However, there is disagreement between Dixie and the Commission for the amount of plating material for which Dixie should be paid in that portion of the project from section 870 to the end of the project referred to in the testimony as the 11.4 mile section of the project.

Dixie contends it is entitled to be paid for plating material under Pay Item 401-23-P for all unclassified excavation material suitable for plating which was excavated from the cut sections and from under the core embankment. The Commission contends that Dixie is entitled to be paid only for the plating material placed on the back slopes, foreslopes and in the median area in the cut sections.

General Exhibit 5, introduced at the first trial and reintroduced at the second trial, is a typical section depicting a xh cut section and a xh fill section in the 11.4 miles portion of the project. This exhibit shows that the embankment under the traveled portion of the completed highway was to be constructed on a 2:1 slope. This part of the embankment is referred to in the testimony as the core embankment or the load bearing embankment. Outside the core embankment, additional fill was required to complete the embankment with the slope varying in accordance with the height of the fill as shown on the exhibit and set forth below.

Slope Height
6:1 0' - 7'
4:1 7' - 17'
3:1 Over 17'

The plans called for stripping top soil or unstable material to a variable depth under the core section of the embankment. Under the drawing of the xk fill section, the following notation appears:

Variable depth unclassified excavation (stripping topsoil or unstable material) to be removed. (Pay Item 23-A)
A sufficient amount of topsoil shall be stockpiled for plating slopes at station limits indicated at left. (Satisfactory topsoil in cut sections may be used for plating slopes.)
The excavated topsoil (in excess of the amount needed for plating slopes indicated) and unstable material, shall be used in the construction of fill beyond this 2:1 slope as shown.

Under drawing of the typical xk cut section, the following appears:

Estimated station limits for cuts requiring plating mat’l. (Sta. limits subject to change during construction)

The station limits are listed under the above notation. The drawing of the cut section also provides for a sufficient amount of plating material to be stockpiled to plate the slopes in the cut sections to a depth of 4 to 6 inches between the station limits as indicated. Under the drawing of the typical xh cut section, the following appears: “4" to 6" plating mat’l. from roadway stockpile (401-23-P)”.

The plan showing the xh fill section does not call for any plating material to be used on the slopes of the embankment.

The plans provide that a sufficient amount of topsoil shall be stockpiled for plating slopes at the station limits indicated in the cut sections. The plan, however, gave the contractor the option of using plating material from the cut sections instead of using the plating material stripped from underneath the core section of the embankment. The testimony is uncontra-dicted that Dixie exercised this option by excavating the material suitable for plating from the cut sections and stockpiling it beyond the outer limits of construction of the cut sections. This option was to Dixie’s advantage because if it had stockpiled plating material from the fill section, the stockpile would have been located down in the fill section necessitating picking the plating material up from the stockpile, hauling it uphill to the cut section and spreading it. Stripping the plating material from the cut section and stockpiling it there, enabled Dixie to push it off with a dozer and place it on the slopes in the cut sections where plating material was required.

Dixie stripped the topsoil and unstable material to various depths under the core section of the embankment and cast the excavated material between the toe of the core embankment and the toe of the completed embankment. Dixie used this material to construct the embankment outside the core embankment and was paid for the excavation and placing the material in the embankment at the rate specified under Pay Item 23-A in accord with the plans and specifications.

In determining whether Dixie was entitled to be paid for plating material at the rate of $1.45 per cubic yard for all topsoil and unstable material excavated from the cut sections of the 11.4 mile portion of the project, we must consider the specifications and plans in some detail. In the contract development stage, economy of construction on the 11.4 mile section dictated utilization of all unclassified excavation in embankment construction, otherwise, additional costs would have been incurred in disposing of quantities of unstable materials and replacing these materials in the construction. The design assured the stability of the core embankments by requiring construction of the core embankment from stable soil, determined from coring, to be obtained from the cut sections. The Commission determined that the total excavation from the cut sections, including topsoil, was stable material satisfactory for use in construction of the embankments in the fill sections. The excavation and placing of this material is governed under the standard specifications which follow.

Section 23 of the standard specifications is entitled Roadway and Drainage Excavation. Section 23.01 states:

The work completed by this section consists of excavating and placing in embankments or otherwise satisfactorily disposing of all excavated material, of whatever character within the limits of the work, . . .
It shall include all excavation, shaping and sloping . . . necessary for the construction, preparation and completion of all embankments, sub-grades, shoulders, ... as shown on the plans, or as directed.
Section 23.03.
All suitable materials excavated shall be used insofar as practicable in the formation of a roadbed including the embankment, sub-grade, shoulders, slopes, back fill for structures and at such other places as directed... .
Section 23.07.
Embankments shall be constructed with suitable materials excavated as provided in this section....

As previously stated, Dixie exercised its option, stripped, and stockpiled a sufficient amount of plating material from the cut sections instead of stockpiling plating material excavated from under the core embankment in the fill sections. The Commission admits Dixie was entitled to be paid for this plating material under Pay Item No. 401-' 23-P at the rate of $1.45 per cubic yard. The remaining excavation from the cut sections was used by Dixie to construct the embankments in accord with the specifications quoted above and Dixie was paid for this work under Pay Items 23-A and 32-A, $0.62 per cubic yard and $0.0025 per station yard haul respectively.

Dixie argues that Special Provision No. 1642 changes the plans and specifications, thereby entitling it to be paid for all topsoil and unstable material excavated from the cut sections as plating material at the rate of $1.45 per cubic yard instead of unclassified excavation at the rate of $0.62 per cubic yard, because the standard specifications provide that special provisions shall govern over both plans and specifications. Section 5.04 of the standard specifications provides in part:

Coordination of Plans, Specifications, and Special Provisions: These specifications, the plans, special provisions, and all supplementary documents are essential parts of the contract, and a requirement occurring in one is as binding as though occurring in all. They are intended to be complementary, to describe and provide for a complete work. In case of discrepancy, figured dimensions, unless obviously incorrect, shall govern over scaled dimensions. Plans, generally, shall govern over specifications, and special provisions shall govern over both plans and specifications.
Special Provision No. 1642 follows:
SPECIAL PROVISION NO. 1642
SECTION 401-23
PROJECT NO. 1-10-1 (15) 16
HANCOCK & HARRISON COUNTIES
MISSISSIPPI STATE HIGHWAY DEPARTMENT
DATE: 10-18-67
SUBJECT: Unclassified Excavation
(Plating Material)
Section 23, Roadway and Drainage Excavation, of the 1956 Standard Specifications for Road and Bridge Construction, is hereby amended as follows for the item of Unclassified Excavation (Plating Material), Only:
Article 401-23.07 — Embankment Construction:
After line 38, page 72 insert:
Material designated on the plans or by the Engineer as “Stripping or Unstable Material” (Muck Excluded) shall be classed as Unclassified Excavation— “Plating Material” — to be used in embankment construction and plating of designated cut slopes. Such material shall have been removed and stockpiled under Items 23-A and 32-A. Payment for haul to stockpile will be shown on Contract Plans.
Plating Material placed in embankment or on cut slopes shall be compacted to nominal density by means of heavy tractor treads, sufficiently to maintain its section. Thicknesses shall be as designated on the plans and typical sections, or ordered. Stockpiled Material in excess of immediate needs shall be bladed into neat windrows, with due attention to drainage, for use on subsequent contracts).
Article 401-23.12 — Method of Measurement:
After line 37, page 78, insert:
E. Final Position Measurement. Unclassified Excavation (Plating Material) will be measured in its final position (F.P.M.) in the embankment or on cut sections by the cubic yard (average end area method) of properly shaped, compacted and finished sections within allowable tolerances. The volume of Plating Material allowed will be determined by deducting the volume of previously cross-sectioned embankment and cut sections.
Delete Article 23.13 in toto and insert (as applicable to this item, only)
Article 401-23.13 — Basis of Payment: This item, measured as prescribed, will be paid for at the contract unit price bid which price shall be full compensation for hauling and satisfactory disposal of all excavation necessary in the preparation, construction and completion of the work, including formation and compaction of outer portions of the embankment, shaping the right-of-way, windrowing excess material; and for all equipment, tools, labor and incidentals necessary to complete the work.
Payment will be made under:
Pay Item NO. 401-23-P: Unclassified Excavation (Plating Material)
(F.P.M.) ~ per Cubic Yard

Special Provision 1642 amends three sections of the Standard Specifications. The first amendment consists of two paragraphs to be inserted after the first paragraph of section 23.07 of the Standard Specifications entitled, “Embankment Construction: A. Materials.” The first paragraph of this amendment defines plating material as, “Material designated on the plans or by the engineer as ‘stripping or unstable material’ ” and specifies that plating material is to be used in embankment construction and plating of designated cut slopes. In sum, this paragraph tells the contractor where plating material will be obtained.

The second paragraph specifies where the plating material will be placed in the completed construction and provides, “Thicknesses shall be as designated on the plans and typical sections, or ordered.” This limits the use of plating material to the place designated on the plans and typical sections. In order to determine the depth of and where the plating material was to be placed, it was necessary to refer to the plans and typical sections. The plans and typical sections specify plating the embankment to a thickness of 12 inches on the .9 mile section but does not specify the use of plating material on the embankments in the 11.4 mile section of the project. The plans and typical sections also specify that the slopes of the cut sections of the 11.4 miles section of the project shall be plated to a thickness of 4 to 6 inches.

This amendment specifies that plating material is to be used in the embankment construction, but the location and thickness of the plating material in the completed construction can be ascertained only be referring to the plans and typical sections and not by referring to this special provision alone.

Dixie argues that all material designated on the plans or by the engineer as stripping or unstable material, muck excluded, should be classed as plating material. In support of this argument Dixie contends that special provisions govern over plans and specifications as set out in section 5.04 of the standard specifications. Dixie’s argument that special provisions shall govern over plans and specifications applies only if there is a conflict between the special provisions and the plans and specifications. When the special provisions, the plans (including typical sections), and standard specifications are construed together as required by section 5.04, no conflict exists but they are complementary and describe and provide for a complete work.

We therefore hold that Dixie was entitled to be paid for plating material under Pay Item 401-23-P for the plating material only at the locations and to the thicknesses specified by the plans and typical cut sections.

This amendment also provides that plating material stockpiled in excess of the needs for the project shall be windrowed for use on subsequent contracts. Proof shows that no excess plating material was windrowed and Dixie makes no claim for having windrowed any excess plating material.

The second amendment of the standard of specifications effected by special provision No. 1642 amends section 231.12 entitled, “Method of Measurement,” by inserting paragraph E. This amendment provides that plating material will be measured in its final position in the embankment or on cut sections by the cubic yard of properly shaped, compacted and finished sections.

The third amendment of the standard of specifications by Special Provision No. 1642 amends section 23.13 entitled, “Basis of Payment” by deleting section 23.13 and inserting the amendment as applicable to this item (plating material) only. The amendment provides that plating material will be paid for at the contract unit price bid which shall be full compensation for hauling- and satisfactory disposal of all excavation necessary in the preparation, construction and completion of the work, including formation and compaction of outer portions of the embankment, shaping the right-of-way, and windrowing excess material. The effect of these two amendments is that plating material will be measured in its final position in the embankment or on the cut sections and will be paid for at the contract unit price bid after measurement as prescribed. There is no conflict between these amendments and the plans because the plans clearly show where the plating material is to be placed.

Dixie argues alternatively, if it is not entitled to pay for the unclassified excavation not used as plating material under Pay Item 401-23-P, it is entitled to be paid for a second handling of this material under Pay Item 23-A at the rate of $0.62 per cubic yard. Dixie relies on section 23.03 which provides in part, the following:
Stockpiling Materials. Excavation, . . . shown on the plans or required by the Engineer to be stockpiled and reserved for later use in the work by the Contractor, which requires more than one handling, will be paid for at the contract unit price for Unclassified Excavation,

Dixie argues that the 23-A material, which was unclassified excavation, was handled twice thereby entitling it to additional compensation under section 23.03 D. There is no merit to this argument because the 23-A material was not required to be stockpiled. To the contrary, sections 23.01, 23.03 and 23.07 require 23-A material to be excavated, placed in the embankments, shaped, and compacted, and does not contemplate a second handling of the material. Pay Item 23-A covers all the above work except for hauling the material more than 100'. Dixie was entitled to and was paid for hauling under Pay Item 32-A.

We hold the Commission offered Dixie all it was due under the contract, and stated in its answer that it was willing to pay Dixie the balance of $25,000 retained on the contract. Dixie declined to accept the offer and filed suit. We therefore reverse and render, and enter judgment here for Dixie in the amount of $25,000 with interest from the date the mandate is filed in the trial court.

REVERSED AND RENDERED.

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

HAWKINS, J., takes no part.

      . Mississippi State Highway Commission v. Dixie Contractors, Inc., 375 So.2d 1202 (Miss. 1979).

      . F.P.M. is explained in the specifications and testimony as meaning Final Position Measurement.

      . A station yard haul is a haul of one cubic yard one hundred feet.


author: SMITH, Presiding Justice for the Court:

text:
    Lewis CARTER v. STATE of Mississippi.
    No. 52671.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Rehearing Denied Sept. 2, 1981.

      Travis Buckley, Ellisville, John K. Keyes, Collins, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
   SMITH, Presiding Justice for the Court:

Lewis Carter was tried in the Circuit Court of Covington County upon a charge of having murdered one Tommy Maxwell. The trial resulted in his conviction of manslaughter, for which offense he was sentenced to serve twenty years in the Mississippi State Penitentiary. He has appealed from that conviction and is at liberty under $20,000 bail.

The homicide, which gave rise to the prosecution, occurred during a fight which followed an automobile collision involving a vehicle driven by appellant’s son, Danny Carter, and a pickup truck operated by Tommy Maxwell.

Several grounds for reversal are assigned.

Under one of his assignments, appellant asserts that the trial court erred in denying his motion for a directed verdict. Under this assignment, appellant challenges the sufficiency of the evidence to support the conviction.

The State’s case against Carter was based upon the testimony of a number of witnesses, including the testimony of several eyewitnesses. It appears that on the night of March 25, appellant, Lewis Carter, was informed by one Runnels that his son, Danny Carter, had been involved in the automobile accident with Maxwell and that there was a fight in progress. Runnels testified that when he gave Lewis Carter this information, Carter stuck a pistol in his pants and said: “He was going to kill the son of a bitch.” Whereupon, appellant, went to the scene and a “tussle” ensued, wherein the wife of the victim, Maxwell, appellant’s own wife, appellant’s son, Danny Carter, appellant himself and (deceased), Tommy Maxwell, were involved. Runnels testified that “Tommy (deceased) was knocked down and then Lewis (appellant) pulled — pointed—the gun toward him when he started to get up and shot him (Maxwell).” Runnels’ testimony was corroborated in material respects by that of Patricia Maxwell, John David Kirkley and Chuck Duckworth, eyewitnesses to the homicide.

Jerry Dennis identified the weapon used as a pistol he had previously sold to appellant Carter. He did this through initials carved inside the handle.

Witness Lance Eubanks testified “Well after the first shot was fired down, he (appellant Carter) pulled the gun up and pushed Tommy (the victim) over off the corner trunk of my car and then the next shot was to the head of Tommy.”

When the State had rested its case, a motion was made by appellant for a directed verdict which was denied. Whereupon, appellant proceeded to introduce evidence in his own behalf.

Although there are substantial conflicts in the evidence, it is clear that the evidence introduced by the prosecution amply supports the jury’s verdict of guilty of manslaughter. The trial court’s action in denying appellant’s motion for a directed verdict or for a peremptory instruction was correct. Davis v. State, 320 So.2d 789 (Miss.1975); Warn v. State, 349 So.2d 1055 (Miss.1977); Murphree v. State, 228 So.2d 599 (Miss.1969). There is no merit in this assignment.

Also assigned as error is the granting by the trial court of State’s jury instruction No. 7, which defined murder.

It should be noted that appellant was convicted of manslaughter, not murder, and this was tantamount to a verdict by the jury of not guilty of the crime of murder. One convicted of manslaughter may not on appeal complain of an instruction dealing with murder, even if erroneous. Moss v. State, 386 So.2d 1129 (Miss.1980), Ray v. State, 381 So.2d 1032 (Miss.1980), Hull v. State, 350 So.2d 60 (Miss.1977), King v. State, 315 So.2d 925 (Miss.1975). Furthermore, the jury was amply instructed on accident, a theory of appellant’s defense, and the burden resting upon the State. We hold, therefore, that the murder instruction did not mislead the jury to appellant’s prejudice.

The only remaining contention by- appellant is that retrial of the criminal case, after entry of a mistrial, constituted an unconstitutional exposure of appellant to double jeopardy.

The first trial of this case was begun on July 17, 1978 and resulted in a mistrial. In the course of the presentation of the State’s case, the district attorney concluded that one of the witnesses who had testified had committed perjury. There followed an examination of this witness directed toward developing the circumstances relating to the testimony of the witness thus brought in question. This examination was conducted partially in the presence of the jury and also continued in chambers, out of the presence of the jury. At about this time it was discovered that witnesses who had already testified were being questioned by witnesses who were sequestered and awaiting their turn to testify, and were relating to them what had transpired during the giving of their testimony and to what they had testified. Appellant Carter made a motion for a mistrial and the State responded “considering that particular motion (Carter’s for a mistrial) was set forth by counsel for defendant and the terms of this particular testimony of this witness and by what the State feels to be a necessary witness for the trial of this court (sic) and by placing him on trail (sic) — recall him again would have a tendency to confuse the jury as. to which was the truth, — by virtue of this particular testimony and his testimony be (sic) recalling him would greatly prejudice the rights of the State of Mississippi and, therefore, Your Honor, the State would be in position to confess the mistrial.”

Following the above statement by the district attorney a colloquy between the court and counsel followed in the course of which the court sustained appellant’s motion for a mistrial. Afterward, counsel for appellant attempted to withdraw their former motion for a mistrial “because we do not think that what the district attorney has asked for, it amounts to a mistrial.” At the conclusion of argument, appellant’s counsel made a motion to withdraw their motion for a mistrial, which the court had previously sustained. The court denied the motion, pointing out:

Well, Mr. Buckley, heretofore the Court — you made a motion for a mistrial, which the Court seriously considered, and I overruled it at that time. At this time, you have made a motion for a mistrial in the case, although the district attorney elaborated additional reasons, but your motion for a mistrial has been sustained. Now, if you have any other motions or anything you want to hear, I’ll be glad to hear it.
BY MR. BUCKLEY:
Well, we — we move that our motion for a mistrial be withdrawn and that was what we were doing. We — because the district attorney attached additional conditions to it, additional things, we do not think it constitutes grounds for a mistrial, we think it’s not cause for a mistrial, for that reason was brought about the conduct of the State of Mississippi, their method of interrogating their witnesses and their method of interviewing their witnesses. Mr. Crawford’s statement of grounds of mistrial has nothing to do with the grounds that we stated. And I was — at any rate, it was for the protection of our record and it may have been premature at the very best on it when we went and made it. As the Court remembers, and I told you that it — earlier that the testimony might develop to the contrary.
BY THE COURT:
You asked when the Jury retired to make a motion. I told you I’d hear you just as soon as I came back on the bench.
BY MR. BUCKLEY:
Yes, sir.
BY THE COURT:
So, I did. The motion was made. It is sustained. If it’s another motion to set aside and vacate the motion for a mistrial, that motion is overruled. Let the Jury return.

In Schwarzauer v. State, 339 So.2d 980 (Miss.1976) wherein the defendant argued that he was illegally placed in double jeopardy this Court found:

The action of the trial judge in granting the mistrial at the first trial cannot be said to be unreasonable, even though another judge similarly situated might have followed a different course. We are unwilling to rule that the double jeopardy provision of the Fifth Amendment to the United States Constitution means that every time a defendant is put to trial he must be set free if the trial aborts and does not conclude with a final judgment. The better rule which we apply here is that trial judges are peculiarly situated so as to decide (better and more logically than anyone else) when a trial should be discontinued. Such action may be taken in proper cases, after which the defendant may be tried by another panel of jurors, when the trial judge reasonably concludes that the ends of justice would thereby be best served, even though the defendant objects. In such situations, and absent any indication of prosecutorial manipulation as is the case here, we will not reverse a criminal conviction. We recognize that the fair and orderly administration of justice requires that trial judges must have reasonable discretion in dealing with errant jurors who demonstrate their unwillingness to abide by the instructions of the court, or other unanticipated occurrences which transpire during trials. Our holding is in accord with Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), and Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), both of which recognize that there are no rigid rules that can be followed in every case where double jeopardy is argued. Upon this record, our judgment is that the trial judge in ordering the mistrial appropriately acted within his sound judicial discretion in furtherance of the ends of justice. Affirmance here is in accord with Bounds v. State, 271 So.2d 435 (Miss.1973). Bounds rejected a plea of double jeopardy on the ground that the defendant’s first trial did not result in his conviction or acquittal (as is true in instant case) pursuant to Mississippi Constitution of 1890, Article III, § 22. [339 So.2d at 981-982],

We hold that the entry of the mistrial under the circumstances reflected by the record in this case was not “tantamount to an acquittal” and, of course, was not a conviction. Although the record is not overly clear in some respects, it does reflect that two serious questions had arisen affecting the propriety of continuance of the trial, either of which was capable of supporting a finding that considerations of fairness and justice required that the trial in progress be aborted and that a new trial be granted. To continue the trial under the circumstances would have been fair neither to the appellant nor to the State.

Thereafter, on application of appellant, a justice of this Court directed that the writ of habeas corpus issue, returnable to the Circuit Court of Covington County, to be there tried upon its merits and a final disposition made thereof.

The single issue presented by appellant on the trial of that case (the habeas corpus case) was the same as that now put forward as an assignment of error on the present appeal. In support of his case, in the habeas corpus case, the entire record of the trial which resulted in the mistrial was introduced by Carter. The case was fully tried, and a decision and final judgment were rendered by the habeas corpus court adverse to appellant’s claim that he was entitled to be discharged, rejecting the contention that a retrial, following entry of the mistrial, would unconstitutionally subject him to double jeopardy. From that adverse decision and judgment of the habeas corpus court, appellant prosecuted an appeal to this Court, based upon the same contention, and the issue was fully briefed and presented to this Court in case No. 51,432 wherein the judgment of the habeas corpus court appealed from was affirmed, as appears in Carter v. State, 377 So.2d 921 (Miss.1979). No petition for rehearing was filed by appellant. Generally an adjudication of the issues by a court in a habeas corpus proceeding is the law-of the case and those issues will not be reconsidered in subsequent proceedings to review a conviction. 39A C.J.S. Habeas Corpus § 227 (1976), Goldsby v. State, 240 Miss. 647, 123 So.2d 429 (1960).

In order to elevate an order granting a mistrial in a criminal case at the request of the defendant to one which could form the basis of a claim of double jeopardy, it must be shown not only that there was error, which is the common predicate to all such orders, but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for the mistrial. Justice Rehnquist, as Circuit Judge, Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977). See also, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

Under the standard noted by Justice Rehnquist, in his denial of the application for stay in Divans v. California, supra, the mistrial in the present case, on motion of appellant, although not opposed by the State, does not appear to have been made or granted in bad faith or for an improper purpose by either the judge or the prosecutor, and therefore, appellant’s plea of double jeopardy did not bar retrial of the defendant.

Moreover, the present case is distinguished from Jones v. State, 398 So.2d 1312 (Miss.1981), wherein a subsequent trial of the defendant was barred by double jeopardy: the State in Jones offered a taped recording of the defendant’s confession through the testimony of several law enforcement officers, who stated that the defendant had been given his Miranda rights prior to his confession. When the tape was played before the jury, the first words heard were the defendant’s request for an attorney. Out of the presence of the jury, it was discovered that there were two recordings of the defendant’s confession made by the officers, and, in chambers, the State noted that it could no longer proceed before the jury. Clearly, the mistrial was based on the use of evidence brought forth by the State, which was obtained through an apparent violation of defendant’s constitutional rights, and gave rise to the court’s inference that a bad faith effort had been made by the State in the prosecution and, therefore, retrial was barred. In the present case, on the other hand, the motion was made by appellant, and, although the State acquiesced, the State had no reason to anticipate that the witness on the stand would recant his statement previously given, or that witnesses who had testified would communicate with other witnesses who had not and were still sequestered.

Although the previous finding by this Court on review affirming the refusal of the habeas corpus court to grant habeas corpus in Carter v. State, supra, is the law of the case, we expressly reaffirm the propriety of that decision and hold that retrial of the defendant was not barred as an unconstitutional exposure of appellant to double jeopardy. The conviction of the defendant is hereby affirmed.

AFFIRMED.

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


author: BOWLING, Justice, for the Court:

text:
    George SELF d/b/a George Self's Carpets v. Gerald NELSON and wife, Martha Nelson, and Gerald Nelson d/b/a Baker Mortgage Company and Merchants & Farmers Bank of Kosciusko, Mississippi.
    No. 52776.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Rehearing Denied Sept. 9, 1981.
    John Paul Moore, Starkville, for appellant.
    James E. Brown, Starkville, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice, for the Court:

Appellant George Self filed a petition in the Circuit Court of Lowndes County on April 9, 1979, to impress a laborers’ and materialmen’s lien on certain property against Gerald Nelson, Martha Nelson, and Gerald Nelson, d/b/a Baker Mortgage Company, and Merchants & Farmers Bank. The cause was transferred on petition to the Chancery Court of Lowndes County.

A short resume of the material parts of the brief record is required. Only three witnesses testified: namely, Mr. and Mrs. Self and Mr. J. D. Cook, Jr., the latter was vice-president and at the time of the trial was president of the appellee, Merchants & Farmers Bank.

Self was in the business of selling and laying carpets. In 1976 he began doing such work for the Nelsons. In 1977 and part of 1978 he performed the carpet work on a residential building being constructed on Lot 27 of Cady Hills Subdivision. That job is the only account with which we are concerned in this appeal.

The Nelsons had secured a construction loan from First Columbus National Bank for $105,000, and on October 14, 1976, they secured a loan from appellee Merchants & Farmers Bank in the amount of $20,000. On July 8,1977, Nelson secured a loan from Merchants & Farmers Bank in the principal sum of $155,000, which was labeled by Mr. Cook, the banker, as a “permanent” loan. From the proceeds of this loan, Merchants & Farmers Bank paid off the balance owed the Columbus bank. This left $30,000 to be distributed. The building for which the loan was arranged and into which went appellant Self’s work and materials was barely beginning to be constructed at this time. In regard to the distribution of the alleged permanent loan, Mr. Cook testified that “there was approximately $30,000 of construction funds included in the $155,000 for current bills.” (Emphasis added). It is undisputed in the record and affirmed by Mr. Cook that those funds were delivered on the date the loan was closed to Nelson without any instructions or “strings” attached. Appellant Self was owed money for work done on the building at that time and admittedly was doing business with the bank himself during the entire period of time involved, and this business was with the same Mr. Cook.

On December 15, 1977, Merchants & Farmers Bank loaned Nelson $24,000 due on June 13, 1978. On this note there appears the security of “multi-collateral.” In addition, Mr. Cook testified that the collateral for both the July and December notes included the house under construction.

It is not clear from the record whether the Nelsons have moved into the house. The record leaves almost everything up in the air until the foreclosure of the July 8, 1977, note and deed of trust in the amount of $155,000 which foreclosure occurred on July 9,1979. The bank bought the property under the foreclosure sale for exactly all monies owed it by Nelson and a short time later sold it for that amount, therefore, it lost nothing. In the meantime, appellant Self had filed a construction lien on June 6, 1978, and the present suit on April 9, 1979.

Mr. Cook testified that when the bank foreclosed on the property he and the bank had actual notice of appellant’s construction lien and lis pendens notice. He testified that as far as he knew, no employee or representative of the bank ever visited the construction site of the Nelson house and the only time he went there was to attend a Christmas party after its completion. He admitted that the Self’s discussed with him their concern about being paid. He testified that in December 1977 when the additional $24,000 loan was given Nelson that Mr. and Mrs. Self were in his office at the same time that the Nelsons were closing the loan in an adjacent office and he knew the loan was being closed. He stated further that he knew at that time Self was owed construction money by Nelson. Upon being questioned as to whether or not he could assist in securing Self’s money, he merely told Self that “he felt like Gerald would pay him.” He testified that there was no attempt or effort on the part of the bank to supervise either the distribution of the $30,-000 balance “of construction funds” after the July 1977 loan or during or after the December 1977 loan of $24,000. The evidence is abundant that during the entire time the bank knew that Nelson owed Self the labor and material costs. Cook’s only excuse until the December 1977 loan was that he relied on the Columbus attorney who did not find any liens actually recorded at the time the loans were made.

Mrs. Self testified that Mr. Cook, during the entire time, knew all about the debt owed her husband by Nelson, as she had been with him to the bank. She testified that Mr. Cook stated to her and Mr. Self “he did not feel the lien was necessary at this time; that Mr. Nelson was making arrangements to borrow money and that we would be paid, and he felt sure Mr. Nelson would take care of our account.” On the date of the December 1977 loan Mr. Cook told her and her husband, “Mr. Nelson is next door. We are making him a loan and I am sure he will take care of you out of that loan.” She further testified that later Mr. Cook called her and asked if Mr. Nelson had paid them off. She advised Mr. Cook that no payment had been made. In fact, she and her husband had to borrow money from the bank, through Mr. Cook, to meet their payroll and expenses.

Mr. Self testified that in his contacts with Mr. Cook, “I was promised that I would get my money.” He further testified that he did not file the construction lien until the date it was finally filed because Mr. Cook had told him that there would be enough money for the bank and them too, and that he would have nothing to worry about. This statement according to Self was made to him by Cook prior to the July 8, 1977, loan closing by the bank and Nelson and the distribution of the $30,000 excess. When asked, “Did Mr. Cook ever at any time, guarantee you or promise you that he would see that you got your money from Mr. Nelson?” Self stated, “He said he would get our money, yes, sir.”

Regarding the defendants Gerald Nelson and wife, Martha Nelson and Gerald Nelson, d/b/a Baker Mortgage Company, it appears they decided they had done enough damage and had left the state, possibly to continue their operations elsewhere. A decree pro confesso was taken against these defendants which obviously is worthless.

It is our opinion that the decree of the chancellor was manifestly wrong. There is no need to cite the many cases on this point of law. We have heretofore seen that both the construction lien and the suit to establish a lien and resulting lis pendens notice was long before foreclosure by appellee bank. In clarifying the statutes on laborers’ and materialmen’s liens, we said in Guaranty Mortgage Co. v. Seitz, 367 So.2d 438 (Miss.1979).

The laborers and materialmen filed their claims in the chancery clerk’s office more than six months before the trustee’s sale was advertised. Further, the materi-almen and laborers filed a petition in the circuit court to enforce their liens one day before the sale and filed notice of the suit on the lis pendens record. It therefore follows that when Guaranty Mortgage foreclosed the deed of trust, purchased the property at the trustee’s sale, it took title pendente lite subject to the contingency that the laborers’ and material-men’s liens were valid.
If a mortgagee who advances money on a construction project could foreclose his deed of trust after Iáborers' and material-men’s liens are duly filed, and after suit is filed to enforce the liens, without the title conveyed at the sale being contingent upon the validity of the liens claimed, the rights of laborers and mate-rialmen to their liens would be thereby destroyed.

The above holding was also set out by this Court in Smith v. Vaile Co. v. Burns, 72 Miss. 966, 18 So. 483 (1895).

We further find that under the evidence of this record, the chancellor was manifestly wrong in failing to hold that Merchants & Farmers Bank did not use reasonable diligence in disbursing the proceeds of the loans to Nelson on July 8,1977, and December 14, 1977. Although the bank contends that the funds involved in these loans were not construction funds, the overwhelming proof shows otherwise. The proof is practically undisputed that the officer of the bank, with whom appellant dealt, easily could have followed the mandates laid down by this Court in prior cases regarding the lender’s requirement to use reasonable diligence in disbursing the funds. See Deposit Guaranty National Bank v. E. Q. Smith Plumbing Co., 392 So.2d 208 (Miss.1980); North American Mortgage Investors v. Miss. Hardware Co., Inc., 360 So.2d 1203 (Miss.1978); Wortman & Mann, Inc. v. Frierson Bldg. & Supply Co., 184 So.2d 857 (Miss.1966); Southern Life Ins. Co. v. Pollard Appliance Co., 247 Miss. 211, 150 So.2d 416 (1963); Deposit Guaranty Bank & Trust Co. v. J. F. Weaver Lbr. Co., 215 Miss. 183, 60 So.2d 598 (1952); First National Bank of Greenville v. Virden, 208 Miss. 679, 45 So.2d 268 (1950); 80 A.L.R.2d 248 (1961); and Weiss, Dreyfous & Seiferth, Inc. v. Natchez Inv. Co., Inc. 166 Miss. 253, 140 So. 736 (1932), 80 A.L.R.2d 179, 247 (1961).

Furthermore, Section 85-7-131, Mississippi Code Annotated, (Supp.1980), setting out priorities of liens including laborers and materialmen provides that “[s]uch lien shall take effect as to purchasers or encumbranc-ers for a valuable consideration without notice thereof, only from the time of commencing suit to enforce the lien.... ” (Emphasis added). We heretofore have seen that suit was filed long before the foreclosure. In addition to this it is undisputed in this record that the bank had full notice of appellant’s lien during the entire time.

We therefore hold that the cause should be reversed and rendered and appellant given judgment here against appellee Merchants & Farmers Bank in the sum of $13,-063.97 [the amount of the laborers’ and materialmen’s bill] with legal interest from the date of the foreclosure of July 9, 1979.

REVERSED AND RENDERED AND JUDGMENT HERE FOR APPELLANT.

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


text:
    Charles W. GEE v. Charles H. HAWKINS, Sr., d/b/a Mid-State Motor Company.
    No. 52778.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Franklin J. George, Grenada, for appellant.
    Jay Gore, III, Gore & Gore, Grenada, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice, for the Court:

In this appeal Charles W. Gee, appellant, defendant below, contends that the lower court erroneously granted appellee, Charles H. Hawkins, Sr., plaintiff below, a judgment notwithstanding the unanimous ver-diet of the jury for appellant Gee. The case comes from the Circuit Court of Grenada County.

Hawkins filed his suit against Gee attempting to collect the principal amount of a post-dated check given by Gee to Hawkins on July 7, 1978, but dated August 22, 1978. The sole defense advanced by Gee was that there was no consideration for the instrument due to the fact that the transaction giving rise to the check was handled by Hawkins contrary to the agreement of the parties.

Testimony was received by the court and jury only from plaintiff Hawkins and defendant Gee. Hawkins testified that he was the owner of Mid-State Motor Company of Kosciusko, Mississippi, which company was a retail seller of trucks, in addition to other allied activities. He testified that he personally handled the sale of a 1978 International Truck to Gee on July 7, 1978. After the balance on the truck was ascertained, the installment sales contract was transferred to International Credit Corporation by Hawkins. Under the agreement between the parties Gee traded in another truck and according to the first testimony of Hawkins, a balance on that truck was owed a local bank in the sum of $16,164. The truck was in the shop at that time undergoing certain repairs sustained as a result of some type of collision. Hawkins testified that he paid the bank the sum of $16,164, although the truck was worth only $12,000. On cross examination Hawkins testified at least two times that he paid the above stated amount to the bank to clear title to the truck. Upon being pressed on cross examination, he admitted that he only paid $15,689, but did not have a can-celled check to show the payment. We digress here to point out that the sales agreement hereinafter discussed and completed on July 7, 1978, shows the amount owing as $15,689.

The reason given by plaintiff Hawkins as to why he required the post-dated check involved in this case was that he required that 20% to 30% of the price of the vehicle be paid as a down payment by the purchaser and that this check was necessary to make the down payment reach that requirement.

Defendant Gee [appellant here] testified that while his truck was in the shop, he went to Mid-State and first talked with a salesman named Don, and later to Mr. Hawkins’ son, Charles, Jr. At that time he had only $5,500 to pay down on a new truck.

Gee then testified that Mr. Hawkins, Sr. called him the next morning, July 7, and asked if he were still interested in purchasing the truck. According to Gee, Hawkins told him that he would have to come up with another $3,000 in addition to the $5,500 and if he could do so, Hawkins would “put me to riding.” Gee called his mother, a beauty shop operator, and secured the additional $3,000. After Hawkins and Gee got together personally at Mid-State that afternoon, according to Gee’s testimony, Hawkins told him he would have to have an additional $4,439 as a down payment, but he would take Gee’s check given that date, July 7, but post-dated August 22,1978. According to Gee this requirement was to bring the down payment up to 25% of the value of the vehicle and would be considered as a down payment in completing the financing instruments. Gee further testified that sometime after the entire transaction was consummated, the local bank that financed the first truck drew a draft on him for a monthly payment of over $600. He had to borrow money to pay this draft.

Gee testified that the transaction was agreed upon late in the afternoon. He was told by Hawkins to sign the instrument in blank so that the secretary could fill it out before leaving work. In the meantime Gee could drive the truck around and put gasoline in it. Gee further testified that after this Hawkins came from the place of business, gave him a sealed envelope and told him it was his copy of the papers. Gee further testified that on Monday morning he was going to Alabama, where the truck would be used, and that when he stopped to purchase an Alabama tag, he opened the envelope for the first time and discovered that the post-dated check in the amount of $4,439 was not included in the financing papers. He then stopped payment on the check.

When pressed on cross examination as to why he agreed to add the post-dated check to the financing of the truck, Gee stated that his definite instructions were that 25% of the value of the truck would have to be paid as a down payment. In looking at the retail installment contract, a copy of which is attached hereto as Appendix A, we note the price of the truck to be $54,700, twenty-five percent of this retail price is $13,675. Now adding the cash down payment of $8,500, and the “net” trade-in allowance, after payment to the bank for the other truck as testified by Hawkins, there is left and is shown on the contract the sum of $475. Adding these two figures to the amount of the post-dated check of $4,439, we arrive at an amount of $13,444, which is approximately the amount of twenty-five percent of the value of the retail price of the new truck.

The jury agreed with defendant Gee that the amount of the post-dated check should have been included as a down payment in the installment contract, which of course, would have reduced the amount of the monthly payments. A unanimous verdict was returned for Gee, but on motion of defendant Hawkins, the lower court granted Hawkins a judgment notwithstanding the verdict in the sum of the post-dated check with interest, or a total judgment of $5,141.95.

The reasons given for granting the judgment notwithstanding the verdict were that (1) the plaintiff was entitled to a directed verdict or a peremptory instruction, (2) the jury’s verdict was against the overwhelming weight of the evidence, and (3) the jury was not responsive to the instructions.

We readily see that the primary question to be decided by this Court on appeal is whether or not the evidence was sufficient to require that the cause be submitted to the jury for its decision. In analyzing the evidence, we are mandated to follow what the Court previously has stated is necessary to consider when determining whether or not a lower court was correct in granting a judgment notwithstanding the verdict of the jury. This Court has considered this question a number of times and an analysis of our requirements is set out in the case of Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss. 1975). In Paymaster, we quoted the rule as set out in the prior case of General Tire & Rubber Co. v. Darnell, 221 So.2d 104 at 105 (Miss. 1969), where we stated:

The established rule is that when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff the jury should not be disturbed.

Of course, the same principles stated above apply where the plaintiff is seeking a peremptory instruction or a judgment notwithstanding the verdict, as well as where the defendant is so doing.

As stated in Paymaster, the same principle applies whether the lower court is passing on a motion for directed verdict or a judgment notwithstanding the verdict of the jury. In Paymaster, we further stated:

We have held many times that in passing on a motion for a directed verdict the court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled. We have also stated in considering a motion for a directed verdict that it should be overruled even though a verdict in favor of the plaintiff would be contrary to the overwhelming weight of • the evidence. King v. Dudley, 286 So.2d 814 (Miss. 1973).
In announcing this rule we have often used the term “solely” or “only”, or their equivalent, thereby restricting the evidence considered for the purposes of the motion to that of the plaintiff. Ezell v. Metropolitan Ins. Co., 228 So.2d 890 (Miss. 1969); Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866 (1961); Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126 (1958), and other cases not necessary to cite. We have also stated the test for determining whether or not a motion for a judgment notwithstanding the verdict should be sustained is the same. Carlize v. Richards, 216 So.2d 422 (Miss. 1968); Hawkins v. Hillman, 245 Miss. 385, 149 So.2d 17 (1963), and the cases cited therein.
These rules probably emanate from a common law “demurrer to the evidence,” but whatever their source, they have been implemented by this Court doubtless to preserve the plaintiff’s statutory right to two new jury trials if there be a conflict of fact for resolution. [Miss. Code Ann. § 11-7-213 (1972)]. This necessitates a different result when a motion for a directed verdict, a peremptory instruction or a motion for a judgment n. o. v. is sustained from that of a motion for a new trial because the verdict is against the preponderance of the evidence. The former denies a new trial. The latter permits it.

In analyzing the rather brief testimony of the only two witnesses in this case, and the retail contract instrument itself, we, in applying the above set out rules are forced to hold that defendant Gee presented evidence sufficient to withstand both a motion for directed verdict and a motion for judgment notwithstanding the verdict. The evidence to a certain extent was conflicting. Considering, however, the evidence of Gee, it was positive that the postdated check was given to be included in the cash down payment for the truck. An examination of the instrument itself clearly shows that it was not so included. Furthermore, if it had been included as testified by Gee, his monthly payments would have been less. The jury therefore under the instructions of the court was justified in finding that there was no consideration for the post-dated check and Gee received nothing for its issuance. The instructions given to the plaintiff and the defendant by the court were directed toward the issue of consideration or lack of consideration.

It follows therefore, that the lower court did not apply the proper principles set out above to the evidence shown in the appeal record and was in error in sustaining appel-lee’s motion for a judgment notwithstanding the verdict. To us, this was a clear question for the jury. It is necessary for us to reverse the cause and reinstate the verdict of the jury for appellant Gee and enter judgment thereon.

The counter claim filed by appellant Gee in the court below which was dismissed by the court shows almost negligible content and proof under this counter claim and does not merit discussion here. The court’s action in this regard is affirmed. In addition, there was no cross assignment of errors filed by appellant.

REVERSED AND JUDGMENT RENDERED HERE FOR APPELLANT CHARLES W. GEE.

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

HAWKINS, J., took no part.