author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Adrian C. PERKINS.
    No. 83 KA 1232.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied June 25, 1984.

      Ossie B. Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen Stewart Richey, Asst. Public Defender, Baton Rouge, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, Adrian C. Perkins, was charged by bill of information with simple burglary of an inhabited dwelling belonging to Carl Bynum on June 15, 1982, in violation of LSA-R.S. 14:62.2. Defendant was convicted and sentenced to be confined in the custody of the Secretary of the Department of Corrections, State of Louisiana, for a period of ten years. The defendant has appealed, assigning five errors. The first three assignments, dealing with motion to suppress, inadmissibility of defendant's inculpatory statement, and objection to evidence, have not been briefed and are considered abandoned. Uniform Rules of Courts of Appeal, Rule 2-12.4. On appeal, defendant relies on two assignments of error: insufficient evidence and excessive sentence. There is no merit in either assignment, so we affirm the conviction and the sentence.

On June 15, 1982, Carl Bynum returned to his Baton Rouge home after a brief, maybe 5-minute, visit with friends a few houses from his on the same street, Tecumseh Avenue. Noticing that the lock on the back door had been pried open, he entered the house, observed the defendant standing in his kitchen and all of the kitchen cabinet drawers open; then he procured a toy pistol and held the defendant, who had a screwdriver in his back pocket, until the police arrived. The defendant was advised of his Miranda rights and arrested. The defendant related conflicting stories for being in the victim’s home (he was not acquainted with the’ victim), such as, he needed a drink of water and he thought someone else lived in the house.

ASSIGNMENT OP ERROR NO. 4: Sufficiency of evidence.

The defendant contends that the trial court erred when it accepted a verdict based on insufficient evidence. Specifically, it is contended that the State failed to prove that Perkins had the requisite “intent to commit a felony or any theft” when he was found in the inhabited dwelling by the owner.

Defendant’s argument is concerned with the legal sufficiency of the evidence. Defendant argues that, since nothing was actually taken from the residence, and defendant gave other reasons for his presence in the house, the State did not prove defendant possessed the intent to commit a felony or theft therein, an essential element of the crime of simple burglary of an inhabited dwelling. LSA-R.S. 14:62.2.

The Court held in State v. Dixon, 432 So.2d 1025 (La.App. 1st Cir.1983), that when reviewing the sufficiency of evidence, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

On this question, defense counsel argues that the evidence fails to prove the essential element of “the intent to commit a felony or any theft” of the inhabited dwelling.

Criminal intent is defined in LSA-R.S. 14:10 as follows:

Criminal intent may be specific or general:
Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired that prescribed criminal consequences to follow his act or failure to act.
General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.

It is true that a specific criminal intent is an essential element of the crime of simple burglary of an inhabited dwelling. LSA-R.S. 14:62.2. However, intent is a state of mind which need not be proven as a fact, but may be inferred from the facts and circumstances of the transaction and the actions of the defendant. See LSA-R.S. 15:445; State v. Boyer, 406 So.2d 143 (La.1981).

Specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1982). The defendant was tried by a jury of his peers. The jury returned a verdict of guilty as charged. The jury, being the ultimate trier of fact, has necessarily reached the conclusion that specific intent was present, along with all of the other elements, for simple burglary of an inhabited dwelling.

We find that this conclusion is within the jury’s discretion. The jury’s discretion should be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Jackson v. Virginia, supra; State v. McKeever, 407 So.2d 662 (La.1981).

According to the testimony of Carl Bynum, the owner of the home, as he was entering the house from the rear, he noticed that the lock which secured the door had been pried off. While Bynum had the defendant at gun point, he removed a screwdriver from the defendant’s rear pocket. While waiting for the police to arrive, Bynum noticed that all of the kitchen cabinet drawers were pulled out. He testified that he could not tell whether they appeared to have been rummaged through. When asked whether it was possible that either he or his wife had neglected to shut the drawers, Bynum’s response was, “No way.”

The defendant was advised of his Miranda rights at the scene by one of the police officers. When asked why he was inside the Bynum residence, the defendant gave various conflicting excuses, to-wit, that he wanted a drink of water and that he thought someone else lived there.

Given the significance of Bynum’s testimony, the manner in which the defendant was discovered by Bynum, the way in which the lock was broken from the door, the drawers pulled out, and the inconsistent excuses given by the defendant, any rational fact finder could reasonably infer that the defendant intended to commit a theft within the residence.

We find sufficient evidence was presented by which the trier of fact could find the essential elements of the crime proven beyond a reasonable doubt. Defendant’s presence in the home of a total stranger, made by forcible entry, coupled with evidence that defendant had searched the kitchen excludes every reasonable hypothesis but that he had the intent to commit a theft therein.

This assignment is without merit.

ASSIGNMENT OP ERROR NO. 5: Excessive sentence.

The defendant urges on appeal that the trial court erred in imposing an excessive sentence. The maximum sentence which can be imposed for the crime of simple burglary of an inhabited dwelling is twelve years. LSA-R.S. 14:62.2. The penalty imposed in the instant case was ten years.

The trial judge has wide discretion, though not unbridled, in the imposition of sentence within the statutory limits. State v. Sepulvado, 367 So.2d 762 (La.1979); and given compliance with the sentencing criteria of LSA-C.Cr.P. art. 894.1, the sentence imposed will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983), writ denied, 434 So.2d 410 (La.1983).

The trial judge’s reasons for imposing sentence, as required by LSA-C. Cr.P. art. 894.1, are an essential aid to the appellate courts when reviewing a sentence for excessiveness and abuse of discretion. State v. Spencer, 374 So.2d 1195 (La.1979). Article 894.1 sets forth three factors which justify a sentence of incarceration and eleven factors which, although not excusing the defendant’s conduct, tend to lessen his culpability. The trial judge is required to state for the record both the considerations he has taken into account and the factual basis for the imposition of sentence.

As the record reflects, the trial judge went to exceptional lengths in the tailoring of this sentence to the defendant’s rehabilitational needs, character traits, and criminal propensities while simultaneously guarding the public’s interest.

The defendant argues that his action did not cause harm to anyone. The court below noted:

... [T]he Court finds that you did not act under any provocation from any person whatsoever. This was a decision decided by you, and you broke into this man’s home. I find no grounds tending to excuse or justify your criminal conduct. Also, the victim in this case did not induce or facilitate the commission of this offense.

The confrontation between a burglar and the victim-homeowner who happens to come back to his residence before the culprit has had time to escape is a potentially serious or fatal event.

In citing reasons for incarceration, the trial judge stated that the defendant had quite a lengthy juvenile, as well as adult, criminal record. He has committed many misdemeanors and has been arrested for many serious crimes. Many prior charges have been dismissed for a variety of reasons, but the defendant still has a number of charges pending.

Based on this, we find that the sentence was properly fixed to fit the defendant's rehabilitational needs without placing undue risk on society. The record reflects that the trial judge accorded proper weight to any and all mitigating factors, considering that he saw fit not to impose a longer prison term upon the defendant.

The victim in no way induced or facilitated the commission of the offense. The judge considered that the defendant’s conduct was such that the same or similar crimes were likely to recur. It was in this context that the trial judge concluded that there was an undue risk that during a suspended, probated or lesser sentence the defendant would commit another crime; that the defendant was in need of correctional attention, treatment and supervision; and that a lesser sentence would diminish the seriousness of the crime. In summation, the record shows the trial judge’s articulation of reasons for sentence are more than adequate to meet the statutory criteria.

The sentence imposed is well within the statutorily defined range, and does not appear grossly disproportionate to .the severity of the crime and does not appear to be imposed merely for the purposeless and needless imposition of pain and suffering. State v. Brown, 412 So.2d 998 (La.1982). Consequently, this assignment is without merit.

We affirm the conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Gary HALL, Appellant.
    No. 16234-KWJ.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    Culpepper, Teat, Caldwell & Avery by Bobby L. Culpepper, Jonesboro, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, John C. Blake, Dist. Atty., Jones-boro, for appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   MARVIN, Judge.

This court granted a writ to review the trial court’s refusal to set aside its order resulting from a stipulation by Gary Hall under LRS 14:75.2 that admitted paternity of an illegitimate child, that agreed to the payment of child support, and that subjected Gary Hall to the contempt and criminal penalty provisions of LRS 14:75 in the event of his failure to pay the agreed support.

The record, even when viewed most favorably toward the State, reveals these circumstances: Hall went to the District Attorney’s office on November 3, 1983, in response to a letter requesting his presence “to discuss a confidential matter under investigation ...” There he met with a Support Enforcement Officer (SEO) for the State, Ms. Tucker, who said that she did not read the stipulation to Gary Hall, but “discussed it with him.” Ms. Tucker did not know whether Hall read it when it was placed before him. Ms. Tucker said she was not able to carry on a “reasonable conversation” with Gary Hall “because his mother kept interrupting,” but that Gary Hall acknowledged to her that he was the father of the child and agreed to pay support in graduated amounts starting at $30 per month.

Gary Hall, age 26, testified that he completed the 9th grade after repeating that grade but that he was a slow learner, a slow reader, who did not read other than to look at pictures. He said that he did not and could not read the stipulation and signed it only because he understood that if he did not sign it he might go to jail. Sometimes after the stipulation was signed and the order was entered on November 7, 1983, copies were mailed by the District Attorney’s office to Gary Hall and were read to him by his father. He then hired counsel. Gary Hall testified, “... when I signed that paper, I didn’t know I signed all my rights away. I didn’t know what the paper was.”

Ms. Calahan, an employee of the DA office who was present when Gary Hall was interviewed by Ms. Tucker, also testified. She said that Ms. Tucker explained to Gary Hall why he was called to the office and that Gary Hall wanted to know how much he would have to pay to “get the child off welfare.” She said Ms. Tucker did not read the stipulation to Gary Hall, but “went over the contents” with him. Ms. Calahan said “I do not know if he read [the stipulation] or not,” and that “basically,” Ms. Tucker told Gary Hall that “it was a stipulation saying that he would pay child support for the minor child.” Neither Ms. Calahan nor Ms. Tucker knew the meaning of the term “compulsory process” that was contained in the stipulation. Ms. Calahan said she did not remember whether Ms. Tucker explained to Gary Hall his rights to counsel or his other constitutional rights. She also said that Ms. Tucker said there “might be a paternity hearing” if Gary Hall did not sign the stipulation.

Shortly after copies of the stipulation and order were mailed to Gary Hall, he contacted counsel who then filed the petition to vacate or nullify on December 12, 1983.

The trial court did not find that the stipulation was explained to Gary Hall but saw “no reason why the State’s representative would have to explain, in detail, the ... proposed stipulation ... He [was] on an equal footing ... and could walk away from the situation and not sign the stipulation if that would be his wish.”

We must respectfully disagree with the result pronounced below in the light of the stated circumstances.

Our disagreement with the result below arises from the manner in which the State has implemented and applied the statutes in question in these circumstances. The statutes with which we are concerned are contained in Subpart A of Part IV of Chapter 1 of the Criminal Code, entitled Criminal Neglect of Family, Arts. 74 through 75.2. Under Art. 74, a parent may be charged with the crime of criminal neglect of family as that crime is there defined. Under Art. 75 and with the defendant’s consent, the court has the authority to enter an order of support “instead of imposing the punishment hereinbefore provided [in Art. 74] ...” Art. 75.2 says that an order of support under Art. 75 may “issue ... without the necessity of instituting criminal proceedings under the provisions of [Art.] 74” when the responsible parent owing a duty of support and the district attorney so stipulate.

To implement Art. 75.2, the State has employed a printed form for the stipulation which expressly smacks of much formality and which we edit, emphasize in part, and reproduce here:

Contrary to what the State represented in the printed stipulation, this record clearly shows that Gary Hall was not “fully advised of [his] criminal rights” that are detailed in the instrument and that the “explanation” that was given to him about the stipulation at best was merely perfunctory. We shall not render an advisory opinion on what form or content of stipulation will satisfy the statute and the constitution.

The State has strongly implied in its printed stipulation that a full advisement of certain criminal rights and an explanation of the stipulation are • material and necessary to obtain a citizen’s agreement or signature to the stipulation which is against his own interest. Under these circumstances we need not decide whether or not the law requires them. We simply hold that the State may not represent to a court that things have been done to procure a stipulation under Art. 75.2 when those things have not been done. Fundamental fairness and constitutional due process require that a court nullify, on a citizen’s timely application, a stipulation entered into under such circumstances.

The judgment of the trial court is reversed and judgment is hereby rendered setting aside the stipulation signed by Gary Hall on November 3, 1983, and all orders of the trial court based on that stipulation. This judgment is rendered without prejudice to the State to further proceed, according to law, to enforce whatever support obligation it may prove against appellant.

REVERSED AND RENDERED.

      . "§ 72.2. Stipulation to order of support
      "In cases in which the responsible parent or other person owing a duty of support and the district attorney stipulate to an order of support, the court shall have the power to issue an order of support under the provisions of R.S. 14:75 without the necessity of instituting criminal proceedings under the provisions of R.S. 14:74.”


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Linda GUERRA, Defendant-Appellant.
    No. CR-83-631.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Thomas E. Guilbeau, Lafayette, for defendant-appellant.
    Louis Garrot, Asst. Dist. Atty., Abbe-ville, for plaintiff-appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Linda Guerra, 28, was indicted in the Parish of Vermilion on a charge of second degree murder (LSA-R.S. 14:30.1). She was tried by a jury which returned a responsive verdict of guilty of manslaughter (LSA-R.S. 14:31). The trial court sentenced the defendant to 18 years at hard labor. In addition, the sentencing court added two years under the mandatory provisions of LSA-R.S. 14:95.2 because a gun was used in the felony.

This appeal is based on the assignment of error that the sentence is excessive and in .violation of LSA-C.Cr.P. article 894.1.

The conviction indicates that the trial jury concluded that on May 28, 1981, Linda Guerra, 28, shot and killed Kathy Palombo, 22. The trial testimony reveals that defendant and the victim were living together in a homosexual relationship. In the late afternoon of the day of the killing, the two were observed quarreling in a seafood restaurant in Abbeville. They left this location in the deceased’s car and went to the house where they were living in the country. Shortly after 8:00 P.M. the defendant brought the body of Kathy Palombo, dead on arrival, to an Abbeville hospital. She had been shot in the heart with a .22 rifle. The jury did not believe the defendant’s testimony that the victim had killed herself, concluding, based on circumstantial evidence, that defendant had done the killing. Sentencing was delayed for a presentence investigation.

At the sentencing on April 28, 1983, the trial court imposed sentence in the following language:

“All right. Considering all of the evidence adduced at the trial of this case, as well as the activities as reflected in the file concerning an indictment of the Grand Jury concerning a verdict of guilty of manslaughter, tried by a jury; considering further that in accordance with the presentence investigation that has come to the attention of the Court, that there was a prior felony conviction in this matter, therefore the Court could not suspend a sentence; and, of course, further considering the guidelines as imposed by Article 894.1 of the Code of Criminal Procedure, which the Court at this time will take into consideration in arriving at the following sentence:
“The Court arrives at the following sentence: that the accused, Linda Guerra, be entrusted to the custody of the Department of Corrections of the State of Louisiana to serve a term of eighteen (18) years at hard labor.
“The Court will give credit for time served.”

We are not concerned with the two year sentence imposed under R.S. 14:95.2. This was mandatory and not subject to judicial discretion. We are required to review only the 18 years imposed for manslaughter for its claimed excessiveness. Our duty requires us to take into account that this sentence was in the upper range near the maximum of 21 years permitted for that offense.

We have read and considered the evidence presented in the trial of the case. That evidence does not illumine the sentencing choice one way or the other. We cannot review the presentence report because it is not in the record. Even if the presentence report was in the record, it would probably be of little value to our review because the trial judge indicated he relied on it only to the extent that it bore evidence of a prior felony conviction.

The only specific factor which the trial court stated for the record he had taken into consideration was defendant’s prior felony conviction, as revealed by the pre-sentence report. The record itself conflicts with this statement. A Louisiana State Police report in the record indicates no prior convictions. Also, defendant took the stand and denied on direct examination any prior felony convictions, a denial which was unassailed by the State on cross-examination, and therefore presumably correct.

In State v. Knox, 425 So.2d 707, 708 (La.1982), the Louisiana Supreme Court had this to say about the sentencing requirements imposed by LSA-C.Cr.P. article 894.1:

“It is now settled that a trial judge’s sentencing reasons in compliance with La.C.Cr.P. Art. 894.1 provide an essential aid to this Court’s review of an exces-siveness claim under La. Const. Art. I Sec. 20. State v. Trahan, 412 So.2d 1294, 1297 (La.1982); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Cox, 369 So.2d 118 (La.1979). The record left of sentencing should therefore indicate that the trial court considered not only the seriousness of the offense and the past record of the defendant, but also ‘defendant’s personal history (age, mental status, dependents, family ties, work record, mental, emotional and physical health) and his ... potential for rehabilitation.’ State v. Molinet, 393 So.2d 721, 722 (La.1981); see also, State v. Jones, 398 So.2d 1049 (La.1981); State v. Jackson, 360 So.2d 842 (La.1978). In addition, Art. 894.1(C) requires the trial court to state the factual basis for its sentencing conclusions. As set forth in State v. Williams, 397 So.2d 1287, 1291 (La.1981), this requirement ‘... in most cases is crucial to this Court when called upon to execute its constitutional function to review a sentence complained of as excessive.’ ”

In the instant case the record fails to reveal a compliance with article 894.1 sufficient for us to exercise our function of appellate review of this sentence for exces-siveness. We vacate the sentence imposed and remand for resentencing in accordance with the law.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.


author: GUIDRY, Judge.

text:
    Zella GREEN, Plaintiff-Appellant, v. PILOT LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 83-670.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Glorioso & Fleming, Robert F. Fleming, Jr., New Orleans, Joseph E. Windmeyer, Metairie, for plaintiff-appellant.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendant-appel-lee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

This is a suit by Zella Green against Pilot Life Insurance Company (hereafter Pilot Life) to recover benefits allegedly due her as an insured under a disability income policy issued by defendant. Plaintiff additionally seeks penalties and attorney’s fees pursuant to LSA-R.S. 22:657. Plaintiff alleges that she became totally disabled as the result of an accident which occurred on April 7, 1978. Following the accident, Pilot Life paid to plaintiff monthly benefits in the amount of $500.00 for a period of nine months. Thereafter, upon notice to plaintiff, Pilot Life terminated benefits and rescinded plaintiff’s policy on the ground that plaintiff, in her application for insurance, made certain intentional misrepresentations which materially affected the risk assumed by the insurer. See LSA-R.S. 22:619(B). Plaintiff thereafter filed this suit. After trial on the merits, the court rendered judgment in favor of defendant, dismissing plaintiff’s demands at her cost. Plaintiff appeals.

On October 6, 1977, Mrs. Green was called upon at her home by Mr. Phillip Pittman and Mr. Gerald Ceyen for the purpose of selling a disability income policy of insurance to her. Mr. Pittman was a division manager for Jefferson Standard Life Insurance Company, and Mr. Geyen was an agent for the same company. They sold disability insurance through Pilot Life and it is undisputed that they acted as agents for Pilot Life. Pittman testified that he asked Mrs. Green the questions on the application and recorded her answers in his handwriting, however he admitted that he did not ask her weight but guessed at it being 160 pounds. Mrs. Green testified that she signed the application without reading it. Thereafter, the information was transferred and typed on a different application form and returned to Mr. Geyen for Mrs. Green’s signature. She also testified that she signed this document without reading it.

Defendant alleges that the application contains the following intentional material misrepresentations:

1. Plaintiff’s weight was noted on the application at 160 lbs.
2. The question regarding whether plaintiff had ever been declined similar insurance by another company was answered in the negative.
3. The question regarding whether plaintiff, if disabled, would receive income from salary, wages, sick leave plan, investments, individual or group health insurance, any governmental plan, or any other source, was answered in the negative.
4. The question which asks for the complete details of treatment, including the name and address of the practitioner, for certain listed conditions, diseases or disorders, and of any consultations or examinations by a physician within the past five years was answered by noting only “routine pap smear — annually—all negative — Dr. M. Miller, L.C.”.

The following facts, as found by the trial judge in his written reasons for judgment, which are clearly supported by the record, evidence the falsity and inaccuracy of the above-stated responses on the application signed by Zella Green:

“At the time the application was made for the policy at issue here, Mrs. Green had a disability policy with Washington National Life Insurance Company and Mutual of Omaha. Also, approximately seven (7) months prior to her application with Pilot Life, she applied for disability coverage with State Farm. This coverage was declined because of her past medical history.
The evidence also shows that on July 11, 1975 she was seen by Dr. Lee J. Monlezun for menorrhigia and he treated her from July 7, 1975 until June 25, 1976 for obesity. During that period of time, her weight averaged 236 pounds with a high of 255 pounds and a low of 216.25 pounds.
Plaintiff was treated by Dr. Max Miller during two separate periods for obesity. The first such period was for five months in 1970 and the second period began in November, 1976 and ended in March, 1977. During this period her weight fluctuated from 266V2 pounds to 243 pounds and averaged 253.
From this evidence it becomes convincingly clear to the court that Zella Green had an overweight problem of long standing and this problem was of concern to her because she sought treatment on three different occasions.
Reviewing the insurance applications the court notes that the State Farm application of March 14, 1977 shows a weight of 170 pounds, the Mutual of Omaha application on April 4, 1977 shows a weight of 170 pounds, and the Pilot Life application of December 20, 1977 shows a weight of 160 pounds. Unless Mrs. Green was a medical phenomena, such weights were impossible.”

The application thus (1) misrepresents plaintiffs weight; (2) fails to note that plaintiff was denied disability coverage with State Farm only seven months prior to this application; (3) fails to note that, if disabled, plaintiff would receive benefits from two other insurance policies; and, (4) fails to note treatment by Dr. Monlezun for menorrhagia and obesity and treatment by Dr. Miller for obesity.

In order to successfully urge LSA-R.S. 22:619(B) as a defense to recovery of the proceeds of an insurance policy by the insured, the insurer has the burden of proving, in addition to the falsity of the statements made, materiality and intent to deceive. Gay v. United Benefit Life Insurance Co., 233 La. 226, 96 So.2d 497 (1957); Cloud v. Security General Life Ins. Co., 352 So.2d 406 (La.App. 3rd Cir.1977).

The remaining issue is thus whether the trial judge was clearly wrong in concluding that defendant sustained its burden of proving by a preponderance of the evidence that plaintiff had the requisite intent to deceive and that the misrepresentations were material.

In Watson v. Life Ins. Co. of La., 335 So.2d 518 (La.App. 1st Cir.1976), the court set out the following standard of proof for determining whether the statements are made with the requisite intent to deceive:

“Strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties of proving one’s intent. The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the’ representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations. ’ ’

This standard was adopted by the Supreme Court in Johnson v. Occidental Life Insurance Company of California, 368 So.2d 1032, at 1036 (La.1979).

The test of materiality is whether knowledge of the facts would have influenced the insurer in determining whether to assume the risk or in fixing premiums. Trahan v. Security Life and Trust Company, 199 So.2d 617 (La.App. 3rd Cir.1967).

After a careful review of the record, we find no manifest error in the trial judge’s conclusion that a preponderance of the evidence establishes that plaintiff made material misrepresentations with the intent to deceive.

Plaintiff relies on a line of jurisprudence which holds that the acts of an insurance agent in filling out an application form falsely are the acts of his principal, the insurer, and they do not bind the innocent insured nor bar recovery by him or his beneficiaries. Ryan v. Security Industrial Insurance Co., 386 So.2d 939 (La.App. 3rd Cir.1980); Cloud v. Security General Life Ins. Co., supra; Fruge v. Woodmen of the World Life Insurance Society, 170 So.2d 539 (La.App. 3rd Cir.1965); Morein v. American Physicians Insurance Company, 192 So.2d 887 (La.App. 3rd Cir.1966), writ refused, 250 La. 268, 195 So.2d 147 (1967). To support her reliance on this legal principle, plaintiff points to the fact that her weight was misstated by Mr. Geyen, without a misrepresentation by plaintiff. Additionally, plaintiff asserts that in response to the question on other sources of disability payments, she handed Mr. Geyen a shoe box full of policies. This testimony was corroborated by Mr. Geyen. Plaintiff finally urges that her testimony to the effect that she failed to read either the written or typed application before signing, stands unrefuted.

In Fruge v. Woodmen of the World Life Insurance Society, supra, at 543 and 544, we stated the rule as follows:

“The rule also prevails in this state that when the agent of an insurer, acting within the scope of his authority, proceeds to fill out the blanks in an application for a policy of insurance, the acts, representations and mistakes of that agent are considered to be those of the insurance company. In such a case if the agent by mistake, fraud or negligence inserts erroneous or untrue answers to the questions contained in the application, these representations bind the insurer but are not binding upon the insured, provided that the insured was justifiably ignorant of the erroneous answers, had no actual or implied knowledge thereof, was guilty of no bad faith or fraud, and had no intent to deceive the insurer." (citations omitted, emphasis supplied)

In all of the above cited cases there was a failure to show an intent to deceive on the part of the insured.

In the instant case, as noted by the trial judge, the plaintiff was a well educated public school teacher who had prior experience applying for insurance. She had also sold insurance (annuities) for public investors for a period of two years (1974-75). Although plaintiff testified that she did not read either the written or typed application before signing, plaintiffs credibility was seriously put at issue by her own testimony. The record is replete with instances where in testimony both at trial and on deposition, plaintiff contradicts herself. At least twice she contended that the answers in question on the application, including the statement of her weight, were accurate and not misstatements, a fact clearly refuted by the record. Plaintiff does not contend that she advised Mr. Geyen of the recent rejection of coverage with State Farm or of her treatment for obesity by Drs. Miller and Monlezun. Instead, at different times in deposition and at trial, she gave completely different and contradictory explanations for these misstatements on the application. First, she denied applying with State Farm or treatment for obesity; secondly, she denied being asked the questions; and, thirdly, she contended that she merely answered to the best of her ability. In this respect, we agree with the trial judge that the following quotation from the case of Davis v. State Farm Mutual Automobile Insurance Company, 415 So.2d 501 (La.App. 1st Cir.1982) is analogous:

“It is inconceivable to this court that someone who already has insurance, in applying for insurance with another company, can misunderstand the simple question (relating to prior accidents and traffic violations). To argue, contend or find that someone can misunderstand such questions begs the real question, that is, was the applicant telling the truth?”

The above stated attending circumstances indicate the insured’s knowledge of the falsity of at least two, if not all, of the representations made in the application. Furthermore, as found by the trial judge, plaintiffs recent prior experience with State Farm where she had properly noted her treatment for obesity in the application and consequently was denied coverage, indicates that plaintiff recognized the materiality of the misrepresentations.

The record also supports the trial judge’s conclusion that, had plaintiff been truthful and made a full disclosure of her medical history, the policy would not have been issued.

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

AFFIRMED.

      . LSA-R.S. 22:619(B) provides:
      "B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”


author: KNOLL, Judge.

text:
    Edmond MOUTON, Plaintiff-Appellant, v. P.A.B., INC., Defendant-Appellee.
    No. 83-679.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Rehearing Denied June 14, 1984.

      G. Paul Marx, Lafayette, for plaintiff-appellant.
    William H. Lambert, Lafayette, Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelou-sas, for defendant-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   KNOLL, Judge.

The plaintiff, Edmond Mouton, brought a summary eviction proceeding against P.A.B., Inc., the defendant. Mouton appeals the judgment sustaining defendant’s motion for dismissal of this action. We reverse and render.

On March 23, 1978 Edmond Mouton and P.A.B., Inc. (hereafter P.A.B.) entered into a written lease wherein Mouton agreed to lease to P.A.B. certain immovable property in Vermilion Parish for the establishment of a sanitary landfill and/or a site for the disposal of non-toxic liquid wastes. The primary term of the lease was ninety-nine (99) years commencing on March 23, 1978. The lease provided for rent as follows:

“The rental to be paid by the Lessee to the Lessor during the lease period shall be one-half (V2) the net profit earned by Lessee, received from the fees charged to those individuals, firms or corporations using the facility for dumping purposes.”

There is no evidence in the record showing what, if any, rental payments were made in 1978 and 1979. In 1980 Mouton was paid rent totaling $41,750, and in 1981 $35,000. It is undisputed that P.A.B. made no rental payments since June of 1981.

In September of 1981 Mouton filed a petition against P.A.B. to cancel the surface lease for non-payment of rent and, in the alternative, seeking $100,000 for unaccounted rental payments. Mouton later supplemented his original petition by filing a motion to summarily evict P.A.B. from the premises described in the lease agreement alleging that P.A.B. had failed to pay rent for more than one year.

A hearing on the summary eviction proceeding was held on March 14, 1983. At the close of Mouton’s case, P.A.B. moved for a verdict of dismissal based on the alleged failure of Mouton to prove that there was a failure to pay one-half of the net profit as rent. The trial court concluded that Mouton failed to establish net profits of the corporation which had not been disbursed as rental payments, and, that Mouton should prove his claim in the pending ordinary proceeding for cancellation of the lease.

Mouton contends that the trial court erred in concluding that he failed to submit sufficient evidence in the summary proceeding to warrant eviction and in holding that his claim should be considered in an ordinary proceeding. At trial, P.A.B. argued that the $30,000 was not profit because it was dedicated to contingent expenses, i.e., use as payment for a closure bond and the payment of undetermined future costs incident to possible requirements for upgrading the dump site by the Department of Natural Resources.

A lessor is authorized to bring a summary proceeding to evict his lessee for non-payment of rent. Himbola Manor Apartments v. Allen, 315 So.2d 790 (La.App. 3rd Cir.1975). The lessee is bound to pay the rent according to terms of the agreement. LSA-C.C. Art. 2710. If the lessee fails to pay the rent when due, under LSA-C.C. Art. 2712 he “may be expelled from the property.”

Eviction proceedings are summary in nature. Intern. Matex Tank Terminals v. System Fuels, 398 So.2d 1029 (La.1981). The purpose of summary eviction is the return of the possession of property to the rightful owner with a minimum delay. Papa v. Sullivan, 268 So.2d 326 (La.App. 2nd Cir.1972). The action for eviction involves the single issue of whether the lessor is entitled to the leased premises. Soileau v. Knighten, 423 So.2d 61 (La.App. 1st Cir.1982); Vicknair v. Watson-Pitchford, Inc., 348 So.2d 695 (La.App. 1st Cir.1977).

In non-jury cases, as in the case at hand, the appropriate standard for the trial court’s determination of a motion for a judgment of dismissal is whether plaintiff has presented sufficient evidence to establish his claim by a preponderance of the evidence. Matter of Aaron, 417 So.2d 105 (La.App. 3rd Cir.1982); Bradley v. Hunter, 413 So.2d 674 (La.App. 3rd Cir.1982) writ denied 415 So.2d 952 (La.1982). In making its determination on such a motion, the trial court is not required to review the evidence in a light most favorable to plaintiff, but may render judgment in favor of the mover using the standard of the preponderance of the evidence. Theriot v. St. Martin Parish School Board, 434 So.2d 668 (La.App. 3rd Cir.1983); Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir.1980). Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proved is more probable than not. Parr v. Kelly, 420 So.2d 1187 (La.App. 5th Cir.1982); Gleason v. City of Shreveport, 393 So.2d 827 (La.App. 2nd Cir.1981); Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971).

Mouton premised his eviction action on the allegation that P.A.B. had net profits from the operation of its disposal facility yet failed to pay him property rent for more than one year.

The lease agreement between Mouton and P.A.B. does not define the term “net profit.” In a contract of lease the price or rent must be certain and determinate. LSA-C.C. Art. 2671. The Supreme Court upheld the lease of a race horse, where the stipulated rent was one-half of the net profits derived from the horse’s winnings. Hardy v. Lemons, 36 La.Ann. 146 (1884). Accordingly, the provision for consideration in the lease at issue, e.g., the division of the net profits derived from the disposal of liquid wastes, instead of a fixed price, did not invalidate the lease contract. Hardy, supra.

There is no designation in the lease agreement when P.A.B. was to pay its rent to Mouton. Rent must be stipulated and agreed upon between the contracting parties before there is a valid lease contract. McCain v. McCain Bros., 165 La. 884, 116 So. 221 (1928). Nevertheless, it is not essential that the rent be fixed at a specified sum of money per week, month or year. Lee v. Pearson, 143 So. 516 (La.App. 1st Cir.1932). Rent is always sufficiently certain if it can be readily ascertained. Logan v. State Gravel Co., 158 La. 105, 103 So. 526 (1925); Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969); Lafayette Airport Commission v. Roy, 265 So.2d 459 (La.App. 3rd Cir.1972), cert. denied 411 U.S. 916, 93 S.Ct. 1543, 36 L.Ed.2d 307 (1973). As long as the rent can be determined from factors or circumstances not within the control of the parties, the rent is certain. In the case at hand, the amount of rent P.A.B. paid was determined from a set of ledger books maintained by Mary Abshire. The record shows that Mouton regularly received rent from P.A.B., on the fifteenth of every month, for a period of eighteen months, when P.A.B. ceased to pay rent in June of 1981.

When P.A.B. and Mouton negotiated this lease all of P.A.B.’s stock was owned by Mary and Alex Abshire. From the inception of the lease agreement, Mary Abshire (wife of Alex Abshire) kept a special ledger for the purposes of posting the income and expenses attributable to the Mouton property in order to determine net profit. Until July 1981, she calculated net profits monthly from the ledger sheets.

The primary factual determination made by the trial court was the characterization of a $30,000 expenditure in July 1981 by P.A.B. as an expense. This alleged expense coincides with the cessation of rental payments to Mouton.

Alex Abshire testified that in June 1981 the State Department of Natural Resources demanded P.A.B. to post a $100,-000 closure bond for the dump site. To satisfy this requirement, the Abshire’s provided the State with a personal letter of credit drawn on a local bank. There is no evidence that the Abshire’s ever paid the $100,000 indebtedness, or how this liability was handled after they obtained the letter of credit.

When P.A.B. discontinued paying monthly rent to Mouton, it initiated a cash reserve fund to build up interest. In July 1981, $30,000 of profit was set aside in an E.F. Hutton account. An additional $5,000 was invested in the same account in October 1981.

On February 19, 1982, eight months after P.A.B. stopped paying rent, the Ab-shires sold their P.A.B. stock. The E.F. Hutton account was closed out and the funds on deposit were credited as income on the ledger sheets maintained on the Mouton property. The invested monies were never used to satisfy the closure bond nor was any of it used to pay rent.

Mouton’s rent prior to July 1981 was paid according to the fees and charges involving the dump facility as reflected in the income and expense sheets maintained by Mary Abshire. The shift to an accrual method of accounting after July 1981 represents unilateral action by the Abshires and P.A.B., to provide for contingent expenses heretofore foreign to the working agreement between Mouton and P.A.B.

LSA-C.C. Art. 1950 provides:

“When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.

LSA-C.C. Art. 1956 states:

“When the intent of the parties is doubtful, the construction put upon it, by the manner in tohich it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation. (Emphasis added)

See: RTL Corp. v. Manufacturer’s Enterprises, Inc., 429 So.2d 855 (La.1983); Chevron U.S.A. v. Martin Exploration Co., 432 So.2d 886 (La.App. 1st Cir.1983); Crow Drilling and Producing Co. v. Hunt, 254 La. 662, 226 So.2d 487 (1969).

For over eighteen months, rental payments ascertained from ledger sheets which established the cash flow to and from P.A.B. were made to Mouton. Prior to July 1981 neither Mouton nor P.A.B. utilized any form of accrual accounting. To allow P.A.B. to unilaterally change the method of determining net profit would permit P.A.B. to circumvent the lease and deny Mouton his right under the lease agreement to receive rent.

The $30,000 was profit. It remained profit when it was invested in E.F. Hutton, and was designated as profit when it was returned to the P.A.B. account when the Abshires sold their P.A.B. stock. We find this sum represented undispursed net profit, therefore Mouton is entitled to have P.A.B. summarily evicted from the leased premises.

For the foregoing reasons the judgment of the trial court granting defendant’s motion for dismissal is reversed and the relief requested by plaintiff, Edmond Mouton, for the eviction of the defendant, P.A.B., Inc., from the leased premises is hereby granted. All costs incurred in the district court as well as on appeal are assessed against the defendant, P.A.B., Inc.

REVERSED and RENDERED.

CUTRER and STOKER, JJ., concur.


author: CIACCIO, Judge.

text:
    STATE of Louisiana, ex rel., Forrest DUNKLEY v. Steve ALFORD, Warden, Et Al.
    No. K-1825.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1984.
    Forrest Dunkley, in pro. per.
    Harry F. Connick, Dist. Atty., New Orleans, for respondent.
    Before BYRNES, CIACCIO and LOBRA-NO, JJ.
   CIACCIO, Judge.

This matter is before this court on the defendant’s pro se application for writs of habeas corpus, certiorari and review. In this application the defendant complains that he was not afforded effective legal representation; he was not given adequate notice and opportunity to interrogate witnesses at his revocation of probation hearing and that the trial judge abused his discretion when he revoked the defendant’s probation in that he did not give sufficient weight to the testimony of the defense witnesses.

Ineffective Counsel

Defendant complains that he did not receive effective legal counsel at his revocation of probation hearing. We will not address this issue because it must first be raised in an application presented to the trial court. C.Cr.P. Art. 926. See: State v. Jones, 445 So.2d 26 (La.App., 4th Cir., 1984).

Revocation of Probation

The defendant’s argument that he was not afforded effective notice and the opportunity to question witnesses against him, at his probation revocation hearing, is without merit. The record reveals that the defendant and his attorney were present at the revocation hearing and that all the witnesses who testified were questioned- by counsel for the defendant.

Additionally, we find that the trial judge did not abuse his discretion in revoking this defendant’s probation. C.Cr.P. Art. 900. The transcript of the hearing reveals that the trial judge found that, by his prior actions, the defendant clearly indicated that he did not possess a strong desire to rehabilitate himself and therefore the judge chose to impose the sentence of imprisonment and refused to sentence the defendant to an in-patient drug rehabilitation program, as was recommended by two witnesses who testified at the hearing. This is a matter within the sound discretion of the trial judge and his actions in this case are fully supported by the record.

For the reasons assigned, the defendant’s application is denied.

WRIT DENIED.


author: SULLIVAN, Justice,

text:
    Jeanne S. BARKLEY v. MILLER TRANSPORTERS, INC. and Hiram L. Roberts, Jr.
    No. 54187.
    Supreme Court of Mississippi.
    April 11, 1984.
    Rehearing Denied May 30, 1984.

      Clyde Ratcliff, McComb, for appellant.
    Douglas R. Duke, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellees.
    Before ROY NOBLE LEE, PRATHER and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

This case comes on appeal from the Circuit Court of Hinds County, Mississippi, from a final judgment on a jury verdict of $00 in favor of the appellant and against the appellees Roberts and Miller Transporters, Inc. Appellant was granted a peremptory instruction in her favor on the issue of liability.

Appellant perfected her appeal and assigns as error

(1) that the verdict of the jury was against the overwhelming weight of the evidence, and

(2) that the trial court erred in granting jury instruction D-ll.

Appellees cross-appeal and cross-assign as error

(1) that the trial court erred in granting appellant a peremptory instruction on liability;

(2) that the trial court improperly overruled appellees’ objections to appellant’s hypotheticals; and

(3) that the trial court improperly failed to grant instructions on contributory negligence.

Having considered the arguments, we find it was error to grant instruction D-ll over timely objection and to overrule the appellant’s motion for a new trial. There being no merit to any other assignment of error either by the appellant or by the appellees, we affirm the action of the trial court in granting the peremptory instruction as to liability and reverse and remand for a new trial on the issue of damages.

On September 17, 1979, Jeanne Barkley was proceeding east down two-lane highway 98 from McComb to Columbia. She was being followed by appellee Hiram Roberts, Jr., driving an 18-wheel tractor-trailer rig owned by appellee Miller Transporters, Inc. It had been raining that day and the road was wet. This particular stretch had also been recently asphalted. Just prior to arriving at the long straightaway on which the accident happened, both Barkley and Roberts passed a road sign which cautioned them that the upcoming stretch of road was slippery when wet. As they reached the straightaway, Roberts pulled into the west lane in order to pass Barkley. Before Roberts had completed his passing effort, he lost control of his truck. Seeing this, Barkley, without applying her brakes, drove her vehicle off the road at forty miles per hour. As a result, Barkley was tossed around inside her car. There was no actual contact between the two vehicles, and after having her car pushed back onto the highway, Barkley drove herself back to McComb.

Prior to this accident in 1979, Barkley had been involved in an accident in 1971 that resulted in lower back pain. She had also been involved in an accident in 1973 and 1977 which resulted in “whiplash” type injuries similar to those complained of as a result of this 1979 accident. Barkley also was involved in at least two incidents that did not involve automobiles but that could have accounted for some of her pain. These incidents occurred after the accident of 1979. Between the date of the accident and the date of the trial, Barkley saw at least five physicians and was hospitalized three times.

The day after the accident Barkley saw her gynocologist, Dr. Edsel Stewart. She complained of a stiff neck, stiffness in her back, neck, shoulder, upper arm, wrist and left thumb. She was treated until October 31, 1979, when she was referred to Dr. Byron Jeffcoat, an orthopedist.

Dr. Jeffcoat initially diagnosed Barkley as suffering from a cervical strain. However, some time in December, 1979, Dr. Jeffcoat changed his diagnosis to bursitis.

On November 10, 1980, Barkley went to Dr. Terry Westbrook, a general practitioner, who diagnosed her as suffering from chronic cervical strain. He testified that in his opinion the majority of Barkley’s problems were related to the 1979 accident. He eventually referred her to Dr. Douglas Stringer, a neurosurgeon.

Dr. Stringer first saw Barkley on November 13, 1980. He diagnosed her problem as cervical and upper thoracic strain. He hospitalized her on three separate occasions. Dr. Stringer testified that the history of the accident of 1979 was consistent with Barkley’s injuries. He found her to have no physical disability but suffering a functional disability. It was his opinion that Barkley’s problems were related to the 1979 accident and that the 1977 accident might have some bearing, but would not change his diagnosis. It was his opinion that if Barkley had no problems after the 1977 accident and before the 1979 accident, but did have problems after the 1979 accident, then the problems would be related to the 1979 accident. Dr. Stringer also testified that bursitis may be caused by trauma.

Barkley testified that she had completely recovered from the prior accidents and that all of her problems were a result of the 1979 accident. This testimony was substantially corroborated by her husband, a neighbor, and a co-worker. This was the evidence that was submitted to the jury.

That part of instruction D-ll appellant complains of charged the jury,

Also, she may not recover from any ailments, which are not the result of the accident and, as to this, the burden of proof remains upon the plaintiff to prove by a preponderance of the evidence that her symptoms have a substantial causal relation to the accident; and this burden is not met by testimony only that the symptoms described appeared after the accident and did not exist prior to the accident....

Under Mississippi law, negligence is not sufficient to permit recovery for injury. The injury must have been the direct result of the alleged negligence. Pargas of Taylorsville, Inc. v. Craft, 249 So.2d 403, 406 (Miss.1971). However, a plaintiff need not rely solely upon direct evidence to prove a causal connection between negligence and injury,

But even where negligence is shown that fact alone affords no basis for the recovery of damages unless it further appears from direct evidence or reasonable inference that such negligence proximately contributed to the damage.

Tombigbee Electric Power Ass’n v. Gandy, 216 Miss. 444, 452, 62 So.2d 567, 569 (1953) (emphasis added).

Likewise, appellant here was required to prove that her injuries were proximately caused by appellees’ negligence. In so doing, she was allowed to rely upon direct evidence as well as any reasonable inference therefrom. One such reasonable inference was that if appellant had suffered no pain before the accident but suffered pain immediately after the accident, then the injury was proximately caused by the accident. Moreover, the injuries were subjective and not capable of diagnosis by objective tests, but only by comparison of her condition before and after the accident. By the granting of instruction D-ll the court denied the appellant her only method of proof.

Additionally, instruction D-ll was a direct and improper comment upon the evidence by the court in contravention of Mississippi Code Annotated § 11-7-155 (1972). Further the instruction was argumentative and misleading. In denying appellant proof by reasonable inference the court committed reversible error.

We have already stated that there is no merit to appellant’s first assignment of error. It is “for the jury to say whether or not under the facts and conditions ... [defendant’s] negligence proximately caused the accident and alleged injures.” Mooney v. Lawley, 214 So.2d 679, 680 (Miss.1968). Conflicts in the evidence are to be resolved by the jury, Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980); Powers v. Malley, 302 So.2d 262, 265 (Miss.1974), and the verdict of the jury based upon conflicting evidence “will not be set aside unless it is contrary to the overwhelming weight of the evidence or it is apparent that the jury was actuated by bias, passion and prejudice.” Mooney v. Lawley, supra, at 680. This Court has also recently stated that before we “can interfere with the verdict, testimony must so strongly preponderate that the Court can safely say it was overwhelmingly in favor of the appellant.” Jackson v. Griffin, supra, at 289; Powers v. Malley, supra, at 265.

The evidence showed that the appellant’s injuries could have been caused by previous injuries and/or underlying problems unrelated to the accident, though there was testimony to the contrary. Such a conflict in the evidence is for the jury, properly instructed, to decide. It cannot be said here that the evidence “strongly preponderates” against the jury’s verdict. There is no merit to the first assignment.

As we have determined that the case must be remanded for a new trial on the issue of damages only, it is necessary that we also consider the assignments of error made by the appellees.

At the outset it must be stated that the trial court did not commit error when it granted appellant the peremptory instruction on the issue of liability. The rule is well established that when considering a request for peremptory instruction “ ‘all evidence with reasonable inferences flowing therefrom must be accepted as true in favor of the party against whom the peremptory instruction is requested, all evidence in conflict therewith is disregarded, and, if such evidence is sufficient to support a verdict for the party against whom the peremptory instruction is requested, then it should be denied.’ ” Wiley v. Keen, 404 So.2d 1025, 1026 (Miss.1981). It is a party’s right to have the jury instructed on all material issues so long as those issues are presented by the pleadings and the evidence. Alley v. Praschak Machine Co., 366 So.2d 661 (Miss.1979). The record supports the action of the trial court.

Appellee Roberts testified that on the day of the accident it was raining and the road was wet. He admitted knowing that oil rises to the surface of wet asphalt and admitted seeing the road sign that said “slippery when wet”. He further stated that, while passing, he lost control of his truck.

Mississippi Code Annotated § 63-3-609 (1972) provides that “the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.” (Emphasis added). Also, Mississippi Code Annotated § 63-3-611 (1972) provides that upon overtaking a car in such a manner passing must be effectuated in such a way as to be made completely “without interfering with the safe operation of ... any vehicle overtaken.” These statutes imposed upon appellee Roberts a duty of care in passing appellant. It is the duty of every driver to “see that which is in plain view, open, and apparent; to take notice of an obvious danger; and to be on the alert so as to avoid a collision with objects, vehicles, and others using the highway. Moreover, it is the duty of the driver of an automobile to take reasonably proper steps to avoid an accident or injury to persons or property after having knowledge of the danger.” Shideler v. Taylor, 292 So.2d 155, 156-157 (Miss.1974). Appellee Roberts ignored the danger he knew lay ahead, and as a result lost control of his truck. The granting of the peremptory instruction was not error.

As for the trial court’s failure to grant contributory negligence instructions, the only evidence that could be used to show any purported contributory negligence on the part of the appellant was her failure to apply her brakes. But, there is absolutely no evidence that had appellant applied her brakes she could have safely avoided the danger created by Roberts.

Finally, we find no merit in appellees’ cross-assignment as to the hypothetical questions since they have failed to address same in their argument and brief. Nelson v. Clanton, 263 So.2d 787 (Miss.1972).

In summary, we conclude that (1) the verdict was not against the overwhelming weight of the evidence; (2) it was not error to grant appellant a peremptory instruction as to liability; (3) no error was committed in ruling on the hypothetical questions; (4) there was no error committed in denying appellee’s contributory negligence instructions; and (5) the trial court did commit reversible error in granting appellees’ instruction D-ll and in not granting appellant’s motion for a new trial.

We, therefore, affirm as to the question of liability and reverse and remand for a new trial on the question of damages only.

AFFIRMED AS TO LIABILITY;

REVERSED AND REMANDED ON ISSUE OF DAMAGES.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: DAN M. LEE, Justice,

text:
    WEST END CORPORATION, A Mississippi Corporation and Universal Investment Corporation, A Mississippi Corporation v. Robert R. ROYALS, et ux.
    No. 54066.
    Supreme Court of Mississippi.
    April 25, 1984.
    Rehearing Denied May 30, 1984.

      S.Wayne Easterling, Carey R. Varnado, Easterling & Varnado, George E. Dent, Jon Mark Weathers, Aultman, Tyner, Weathers & Gunn, Hattiesburg, for appellant.
    Robert F. Drake, Drake & Graben, William F. Porter, Hattiesburg, for appellees.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court.

This is an appeal from the Chancery Court of Forrest County wherein the chancellor entered a final decree in favor of the plaintiff/appellees, Robert R. Royals and Judy W. Royals, and against the defendant/appellants, Universal Investment Corporation and West End Corporation. Robert R. Royals instituted this action on November 22, 1977, by the filing of a complaint in the Chancery Court of Forrest County against the City of Hattiesburg. Royals alleged that his property had been damaged due to flooding that had occurred from a drainage ditch behind his home. On March 12, 1979, he amended his complaint by adding, as a plaintiff, his wife, Judy W. Royals. Additionally, Royals added, as a defendant, J. Ed. Turner, Inc. It was alleged that the additional defendant negligently constructed a subdivision westerly of Royals property in such a manner as to alter the natural flow of surface waters. On February 12, 1980, a second amended bill of complaint was filed which added as defendants the West End Corporation, J.W. McArthur, Realtor, and J.W. McArthur, individually. The Royals alleged in their second amended bill of complaint that the West End Corporation was the developer of the property to the west of theirs which had been referred to in their first amended bill of complaint. They also alleged that the two additional defendants had negligently developed the subdivision in which the Royals lived by constructing the subsurface drainage systems in a manner so as to cause flooding and damage to the Royals.

At trial, after the Royals had presented their case, and by agreement of the parties, all defendants were dismissed with the exception of the West End Corporation and Universal Investment Corporation. After these defendants had presented their case, the chancellor returned a judgment in favor of the Royals and against the defendants, jointly and severally, in the amount of $15,000.

Both defendants have appealed and assign a number of errors which are enumerated as follows:

Universal's Assignments of Error:
1. Appellees' claim is barred by the statute of limitation.
2. The sole proximate cause of appel-lees’ injuries was the failure of the City of Hattiesburg to properly maintain the drainage system.
3. Plaintiffs are barred by the doctrine of laches.
4. The sole cause of appellees’ loss was increase in concentration of water from Heatherwood Subdivision.
5. Universal Investment Corporation is not liable to appellees, who are remote purchasers.
6. Universal Investment Corporation cannot be held liable for the actions of those who designed and constructed the drainage system.
7. Proof of damages was insufficient to justify recovery for damage to the real property.
8. Appellee Judy Royals’ claims for psychological injuries were not allowable.

West End’s Assignments of Error:

1. Appellant West End’s engineer was an individual contractor. Consequently, West End Corp. may not be held vicariously liable for the actions of experts it hired to design the drainage system.
2. The chancellor was manifestly incorrect in granting a decree in favor of appellees because such was against the overwhelming weight of the evidence.
3. The chancellor was manifestly incorrect in granting a decree in favor of appellees because such is contrary to law of Mississippi.
4. The appellees’ proof of damages was too vague and insufficient to establish a basis for recovery.

STATEMENT OF FACTS

The Royals purchased a home at 3009 Navajo Circle in the Western Heights Second Subdivision in Hattiesburg, Mississippi during the month of February, 1974. This subdivision was developed by Universal Investment Corporation, J.W. McArthur, President. Universal employed Robert Morrison as an engineer in the development of Western Heights Second. The surface water drainage system of Western Heights Second consists, in part, of an open drainage ditch along the north or rear border of the Royals property. This ditch leads into a subsurface drainage system under nearby Monterrey Drive. The system includes junction boxes 29 and 30 which are situated within and beneath the surface of Monterrey Drive.

Sometime before 1974, West End Corporation began the development of Heather-wood Subdivision. Heatherwood is immediately to the west of Western Heights Second. Like Universal, West End employed Robert Morrison as the project engineer for Heatherwood Subdivision. In late 1974 the City of Hattiesburg allowed the drainage system of Heatherwood Subdivision to be tied into the drainage system of Western Heights Second, including the ditch running behind the appellee’s home and the junction boxes aforementioned. On January 5, 1977, the City of Hattiesburg accepted the entire Heatherwood Subdivision for maintenance.

On February 25, 1974, the Royals moved into their home in the Western Heights Second Subdivision. They did not purchase their home from the developer, Universal, but instead bought their home from a building contractor, I.N. “Jim” Howard. At this time, the drainage ditch behind the Royals home was very small and could easily be stepped across. In the spring of 1975 and on numerous occasions thereafter, the Royals experienced flooding of their home from the drainage ditch located behind their house. Soon after the first floodings, they contacted the City of Hat-tiesburg which attempted to rectify the situation by widening the ditch in the summer of 1977. This measure did not solve the problem and in 1980 the Royals erected a small retaining wall along the edge of the drainage ditch behind their house and have incurred no flooding problems since.

The instant litigation was begun after the second or third flood of the Royals home. At trial, the court found that the flooding experienced by the Royals was the direct result of the defective construction of junction boxes 29 and 30 in Western Heights Second Subdivision as well as the addition of the Heatherwood Subdivision drainage system which resulted in an increased concentration and rate of concentration of surface water drainage into the open ditch behind the Royals house. The chancellor entered a decree in favor of the Royals which awarded them the amount of $15,000 for which Universal and West End were jointly and severally liable.

DISCUSSION OF ISSUES

Universal’s first assignment of error is that the Royals’ claim was barred by the statute of limitations. Universal contends that possession and control of the Western Heights Second drainage system passed from it no later than March 22, 1967. It reasons that inasmuch as the first bill of complaint was not filed until November 22, 1977, and inasmuch as Universal was not named as a defendant until July, 1980, the ten year statute of limitation as found in Mississippi Code Annotated § 15-1-41 (Supp.1983) had run barring the suit.

Mississippi Code Annotated § 15-1-41 provides as follows:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than ten (10) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvements by the owner thereof.
This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement causes injury.
This limitation shall not apply to actions for wrongful death.
The provisions of this section shall apply to causes of action accruing prior to June 1, 1972, but shall not revive any cause of action barred under existing law as of that date.

Section 15-1-41 was intended by the legislature to protect architects, builders and the like who have completed their jobs and who have relinquished access and control of the improvements. This section was not designed to proscribe all suits initiated ten years after completion of the defective improvement. In enacting § 15-1-41, the legislature explicitly exempted from the statute’s operation “Any person, firm or corporation in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement causes injury.” Miss.Code Ann. § 15-1-41 (Supp.1983).

In DeVille Furniture Co. v. Jesco, Inc., 423 So.2d 1337 (Miss.1982), this Court held that the ten year limitation of § 15 — 1— 41 applied to an action by the owner of a building against the general contractor, several sub-contractors, and the architect who were all involved in the construction of the owner’s roof. Therefore, the section does apply in a suit by the owner against the builder. By express provision the section also applies in a suit by an injured third party against the builder. By express limitation however, § 15-1-41 does not apply in a suit by an injured third party against the owner.

This brings us to the case at bar where the builder is also the owner. We hold that § 15-1-41 does not provide the applicable statute of limitations where the owner is the builder. We reach this result, by addressing the purpose of § 15-1-41. The builder who usually no longer has control over, nor access to, the property, is absolved from liability after the proscription period; however, under the statute the owner remains responsible for the defective condition, thus insuring a plaintiff will not lose his day in court before injury ever occurs. When the builder is also the owner the distinctions which give rise to this dichotomy disappear. The builder, being the same entity as the owner, necessarily has equal access to the control over the defective condition. Consequently, a builder/owner is not within the purview of § 15-1-41.

In its brief Universal admits that the above analysis is correct. Instead, they argue that the chancellor erred in finding that ownership of the ditch remained in Universal. To quote the chancellor’s holding:

That portion of the Western Heights Second drainage system [the portion which flooded the Royals’ home] was completed in January, 1967, and at the date of the trial that portion of the Western Heights Second drainage system had never been accepted formally by the City of Hattiesburg for maintenance.

Having carefully examined the record, we conclude the chancellor’s finding was not manifestly in error. Indeed, minutes of the Hattiesburg City Council disclose that the City expressly refused to accept the portion of the drainage ditch at issue here. Therefore, Universal’s first assignment of error is without merit.

Universal’s second assignment of error is that the sole proximate cause of the Royals’ injury was the failure of the City of Hattiesburg to properly maintain the drainage system. We note that this was a question of fact for the chancellor and in order to reverse him we would have to find his conclusions to be manifest error. Richardson v. Riley, 355 So.2d 667 (Miss.1978). Review of the record does not reveal that the chancellor was manifestly in error. Therefore, Universal’s second assignment of error is without merit.

Universal’s third assignment of error is that the Royals’ claim was barred by the doctrine of laches. Because the doctrine of laches is inapplicable where a claim has not yet been barred by an applicable statute of limitations, Universal’s third assignment of error is without merit.

Universal next argues that the sole cause of the Royals’ loss was the increase in concentration of water from the upstream Heatherwood Subdivision. As this was a matter for the chancellor to find as fact our standard of review is set out in the Richardson v. Riley case cited above. We cannot say that the chancellor was manifestly wrong in his finding that the Royals’ loss was at least partially occasioned by Universal’s negligence.

Universal next argues that the doctrine of privity of contract shields it from liability. Privity of contract is not properly an issue here as that doctrine, antiquated as it may be, was never intended to limit the liability of one who allows a defective condition on his own property to cause damage to the nearby property of others. As the drainage ditch remained Universal’s property the doctrine of privity of contract has no application.

Universal next contends that it cannot be held liable for the actions of Robert Morrison, the engineer who designed and constructed the Western Heights drainage system, because Morrison was an independent contractor. From the court’s findings it is clear that the court did not accept the notion that Morrison was an independent contractor. Under the standard of review set forth in Richardson v. Riley, supra, we do not disturb this finding of fact. Regardless, we hold that even if Morrison was an independent contractor that does not absolve the liability of Universal. This is so because the possessor of land is answerable for the negligent failure of an independent contractor to put or maintain buildings and structures thereupon in a reasonably safe condition, at least after the landowner has resumed possession of the land upon completion. Restatement 2nd Torts § 422. Disposition of this assignment of error also disposes of West End’s first assignment of error.

Universal’s seventh and eighth assignments of error, as well as West End’s fourth assignment of error, deal with the damage award. The essence of these arguments is that the Royals’ proof of damages was insufficient to recover for damage to the real property or for Judy Royals’ claim of psychological damages. In addressing this contention we note that the chancellor held that the Royals were obligated to take reasonably effective action where it was available to them to minimize their damages. The court therefore considered the failure of the Royals to mitigate their damages and diminished their award to that degree. Therefore, in awarding the judgment of $15,000 the chancellor fully considered the degree and quality of proof offered by the Royals. Proof of Judy Royals’ psychological damages and property damage to the Royals’ property was sufficient and this Court cannot say that the chancellor was manifestly in error in finding facts sufficient to support his award. Richardson v. Riley, supra.

West End Corporation makes two other assignments of error in which it alleges that the chancellor was manifestly incorrect in granting a decree in favor of the Royals because such decree was against the overwhelming weight of the evidence and the law of the State of Mississippi. As heretofore mentioned, we cannot find the chancellor manifestly in error in determining liability or assessing the extent of damages. We also note no legal error in his ruling.

Therefore, based on all of the foregoing, we hereby affirm the decision of the chancellor awarding the Royals a judgment of $15,000 against Universal Investment Corporation and West End Corporation, jointly and severally.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

SULLIVAN, J., not participating.


author: ROY NOBLE LEE, Presiding Justice,

text:
    STATE of Mississippi, ex rel. Edwin Lloyd PITTMAN, Attorney General, Petitioner, v. J. Ruble GRIFFIN, Circuit Court Judge of the Second Judicial District of Mississippi, Respondent.
    Misc. No. 1675.
    Supreme Court of Mississippi.
    May 2, 1984.
    Edwin Lloyd Pittman, Atty. Gen., Stephen J. Kirchmayr, Sp. Asst. Atty. Gen., Jackson, for petitioner.
    Joe O. Sams, Jr., Thomas L. Kesler, Sams & Kesler, Columbus, J. Ruble Griffin, Bay St. Louis, for respondent.
   ON PETITION FOR WRIT OF PROHIBITION

En Banc.

ROY NOBLE LEE, Presiding Justice,

for the Court:

This cause is before the Court upon a Petition for Writ of Prohibition filed by the State of Mississippi, ex rel Edwin Lloyd Pittman, Attorney General, against J. Ruble Griffin, Judge of the Second Circuit Court District of Mississippi, to prohibit him from (1) proceeding with a contempt action against the Attorney General of the State of Mississippi or any of his staff for an alleged violation of the judge’s bench opinion of February 21, 1984, and his order dated February 28, 1984; and (2) enjoining petitioner from prosecuting Cause No. 123,-959 in the Chancery Court of the First Judicial District of Hinds County, Mississippi, insofar as it applies to the defendant, William G. Burgin, Jr., until the petitioner pays unto William G. Burgin, Jr. the sum of $26,651.93, attorney’s fees. Judge Griffin filed a response to the petition.

William G. Burgin, Jr., defendant in Cause No. 15,934 in the Circuit Court of Lowndes County, Mississippi, and a defendant in Cause No. 123,959 in the Chancery Court of the First Judicial District of Hinds County, Mississippi, was permitted to intervene in the present action and has answered the petition. The contempt proceeding was stayed pending disposition of the Petition for Writ of Prohibition.

Facts

Prior to January 1, 1984, the then Attorney General filed suit in the Chancery Court of Lowndes County, Mississippi, on behalf of the State of Mississippi against William G. Burgin, Jr. seeking a money judgment. The cause was transferred to the Circuit Court of Lowndes County, and Honorable J. Ruble Griffin, Judge of the Second Circuit Court District of Mississippi, was appointed as Special Judge to preside over the cause. On February 15,1984, the State of Mississippi filed a motion for voluntary dismissal without prejudice under Rule 41(a)(2), Miss.R.Civ.P., and the motion was heard February 21, 1984, before Judge Griffin in Jackson, Hinds County, Mississippi, at which time the judge issued a bench opinion, pertinent parts of which follow:

So I am going to sustain the motion, but at the same time, I think these comments and the Fifth Circuit Court cases require that you pay the costs of litigation up to this point. I think that’s what is required by it and, as I said, that’s not limited to the taxable costs — in other words, costs payable to the Court officials — but to take into consideration reasonable attorneys’ fees and expenses, so I’m going to allow it. Now, how much I’m-going to allow, I don’t know.
The other conditions that you’ve mentioned, I am not going to consider. I’m going to let them dismiss and file when they get ready and where they want to and let the next Judge — I assume if it is filed in Hinds County, it won’t be me; it will be a Judge in Hinds County because there’ll be no reason for him to recuse himself because I don’t think they are kin or close neighbors of Pittman or Al-lain or Burgin so I’m assuming I won’t be the next Judge if it is filed — so the next Judge can take up those matters as Mr. Dillard pointed out, but I think I am obligated, Mr. Dillard, to impose reasonable costs of litigation on the State if they refile. That will be the point. If you refile, you’ve got to pay it and if you don’t refile, you don’t have to pay it.
BY MR. KESLER:
Are they precluded from filing any new lawsuit until this is settled?
BY THE COURT:
Yes, sir and it is the Rule that before you file another case, you will have to pay what is due — the attorneys’ fees awarded and the expenses and the accrued costs in Cause No. 15,934 in Lowndes County.

On February 22, 1984, Assistant Attorney General W.O. Dillard, one of the attorneys representing the State of Mississippi, contacted Judge Griffin by telephone for a clarification of the February 21, 1984, bench order. The affidavit of Assistant Attorney General Dillard is made Exhibit B to the petition, and, among other things, reflects:

5. I advised the Court that the State wanted to file its lawsuit and felt like it had the right to do so and requested the Court to look at Rule 41(e) of Mississippi Rules of Civil Procedure to see if he agreed. The Judge stated to me, yes, you can file it and when I prepare the order I will change it to read file but can’t proceed until the fees are paid. We also discussed the federal fules [sic] and a federal case which held that if an attorney’s fee is allowed, that it can only be for the work rendered useless in the first proceeding. He requested that I send him an affidavit as to how much of the work could be used in the second case which was forwarded to him on the 24th.
7. That since the Court had agreed we could file the suit and that Rule 41(e) applied to the Hinds Chancery Court and no amount has yet been ordered to be paid, the Affiant filed the lawsuit against former Senator Burgin and seven (7) other defendants. On filing the suit, the Chancery Clerk was neither requested to issue process nor not to issue process; however, the Affiant does not know of and has never heard of any type legal proceedings where you file suit and not issue process and, particular, in view of the fact of the Judge’s comment as stated above that the Court of Hinds County would have to rule on the matters which, of course, it could not do without process. (Emphasis added)

Subsequent to that telephone conversation, suit was filed by the Attorney General on behalf of the State of Mississippi in the Chancery Court of the First Judicial District of Hinds County, February 22, 1984, against Intervenor Burgin and other defendants, wherein substantially the same issues were presented as in the Lowndes County Circuit Court case. Process issued for the defendants in due course.

On March 28, 1984, Judge Griffin entered a written order in the Lowndes County case, part of which states:

In this connection the Court points out that on the morning of February 22,1984 Assistant Attorney General Dillard called from Jackson to the Court’s chambers in Gulfport and request was made that the Court reconsider its award of attorneys fees. This was denied. The Court could find no exception in the rule, and still doesn’t to Civil 'Suits filed by the State. The Court informed counsel that the ruling of the Court here was a matter of common practice in Civil Actions in Federal Court, the Judicial System from which we obtained the Rules of Civil procedure, which were effective Jan. 1, 1982. However, the Court did on this occasion agree to use the prohibitive words “Not to Proceed” rather than “Not File" in reference to any New action by the State. The caller did not inform the Court that a new complaint had been prepared and was ready for filing.
The Court has learned from defense counsel that the defendant has been served with process in the new action. This violates both the bench ruling of February 21, 1984, and the telephonic permission granted on February 23, 1984.
It is therefore ordered and adjudged that this action be dismissed at the plaintiffs’ cost under Rule 41(a)(2) Miss.Rules of Civil Procedure.
It is therefore Ordered and Adjudged that the Plaintiff proceed no further with the prosecution of cause number 123,959 in the Chancery Court of the First Judicial District of Hinds County, Mississippi insofar as it applies to this defendant, William G. Burgin, Jr., until the plaintiff pays to him the sum of $26,651.93. (Emphasis added)

Attorneys for Mr. Burgin filed a motion to cite the Attorney General of the State of Mississippi and members of his staff involved for contempt of the Circuit Court’s order and the matter was set for hearing March 9, 1984, in the Hinds County Courthouse, Jackson, Mississippi. From that action, this Petition for Writ of Prohibition stems.

In his response to the petition, the respondent circuit judge said:

Further, Special Assistant General W.O. Dillard not only called the Court on February 24, 1984, but also on February 22, 1984, and I am sure that Mr. Dillard understood exactly what the Court wanted, and as stated in the Court’s order in the Lowndes County case, the Court did agree to permit filing of a new suit, but the State was not to proceed.
I regret very much that the Attorney General did not understand the meaning of the word “proceed”. He should have read Rule 41(a)(1). In all deference the Court does feel that it has been caught in some semantical game. (Emphasis added)

Issues

The writ of prohibition is a remedial writ and extends to situations where, although an inferior court has jurisdiction, the superior court considers it necessary to issue the writ to prevent some irremedial injustice. Further, it is in the nature of appellate process. State v. Maples, 402 So.2d 350 (Miss.1981). In Maples, we held that issuance of the writ by this Court was proper to prohibit a circuit judge from presiding over certain criminal cases, where motions had been filed for his recusal, since the State of Mississippi might suffer ir-remedial harm from an adverse ruling, which could prevent an orderly judicial resolution of those eases. Likewise, we have held that the circuit court has authority, and should issue the writ, to restrain actions under an illegal ordinance; further, that an appeal was not an adequate remedy where the proceeding in the inferior court involved an infringement of property rights in such a way as to become oppressive. Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723 (1908).

I.

The Contempt Proceeding

The entire record is the basis of the contempt proceeding, including the bench and written orders of the circuit judge, transcript of the proceedings on motion for voluntary dismissal, affidavits and exhibits, and response of the circuit judge, and is before the Court. Although it is not clear what the respondent judge intended in “permitting filing of a new suit but not proceeding with same,” it is abundantly clear from the record and, particularly, his response that the Attorney General was not in contempt of the lower court. That response set forth: “The court did agree to permit filing of a new suit, but the state was not to proceed.

Presenting a bill of complaint to the chancery clerk does not constitute filing suit. Before the complaint is legally filed, process must issue in due course. In In Re Estate of Stanback, 222 So.2d 660, 662 (Miss.1969), this Court said: “To constitute an actual legal filing the presentation of the Bill or Petition to the Clerk must be followed by the issuance of process in the normal and usual manner without undue delay.”

The written order of the respondent judge dated February 28, 1984, states:

The Court has learned from defense counsel that the defendant has been served with process in the new action. This violates both the bench ruling of February 21,1984 and the telephonic permission granted on February 23, 1984.

Thus, it is apparent that the Attorney General of the State of Mississippi already had been found to be in violation of the circuit court orders and the result of the contempt proceeding was a foregone conclusion.

The office of Attorney General of the State of Mississippi is a high and important office, commanding and deserving prestige, authority and honor. The person who occupies that office is the chief attorney for the State of Mississippi and holds the office in trust for the citizens of the state. Certainly, a contempt proceeding against him on this record would result in an injustice and in irreparable harm to him and the State of Mississippi. In our opinion, the writ of prohibition is the only remedy to prevent such result, and the writ is granted prohibiting further action in the contempt proceeding.

II.

Award of Attorneys’ Fees

In his bench opinion of February 21, 1984, the respondent judge stated that he was going to allow attorneys’ fees for In-tervenor Burgin under Rule 41(a)(2). The attorneys for Mr. Burgin submitted a fee bill in the sum of $32,641.00. The respondent judge, in his written opinion, on February 28, 1984, reduced the attorneys’ fees and ordered:

It is therefore Ordered and Adjudged that the Plaintiff proceed no further with the prosecution of cause number 123,959 in the Chancery Court of the First Judicial District of Hinds County, Mississippi insofar as it applies to this defendant, William G. Burgin, Jr., until the plaintiff pays to him the sum of $26,651.93.

We address the allowance of attorneys’ fees under the rule only insofar as it applies to the State of Mississippi and the case sub judice.

In Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), this Court held that sovereign immunity should be abolished effective July 1, 1984. However, certain exceptions were provided, which appear at page 1052 of the opinion:

I.This Court hereby abolishes the doctrine of immunity of the “sovereign.” That term includes the state and its local subdivisions. All previous opinions of this Court upholding immunity of the sovereign are hereby overruled. See Appendix “A”.
II. We do not abolish by this opinion the historical and well-recognized principle of immunity granted to all legislative, judicial and executive bodies and those public officers who are vested with discretionary authority, which principle of immunity rests upon an entirely different basis, and is left intact by this decision.
III. Proper court procedure requires that we reverse and remand the case sub judice for further proceedings consistent with this opinion as of the date of its mandate. All other claims, demands, actions or causes of action that may accrue as a result of the mandate of this opinion shall apply only to those that accrue on or after July 1, 1984.

The Attorney General is the chief legal officer and adviser for the State of Mississippi, both civil and criminal, and is charged with managing all litigation on behalf of the state. He is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of state-wide interest. Miss.Code Ann. § 7-5-1 (1972). Among other duties he shall, at the request of the Governor or other state officer, prosecute suits on official bonds, contracts in which the State is interested, and prosecute or defend for the State all actions, civil or criminal, relating to any matter connected with the state offices. Miss.Code Ann. § 7-5-37 (1972). He is required to represent the State as counsel in all suits against the State in courts other than the Supreme Court, and act as counsel for any of the state officers in suits brought by or against them in their official capacity. Miss.Code Ann. § 7-5-39 (1972).

Thus, we conclude that the Attorney General is required by law, and it is his duty, to prosecute the suit against interve-nor Burgin and such other persons as may be proper parties, in the appropriate court and forum.

The State of Mississippi, because of the peculiar nature of its existence (for the benefit and welfare of all its citizens), occupies a different status from the ordinary litigant. For instance, (1) executions cannot be levied against the State. The Legislature must appropriate money for the payment of any judgment. Miss.Code Ann § 11-45-5 (1972). (2) No defaults or decrees pro confesso may be entered against the State. Miss.Code Ann. § 7-5-41 (1972). (3) Statutes of limitations do not run against the State and do run in favor of the State. Miss.Code Ann. § 15-1-51 (1972). (4) Statutes exempt the State from posting bond. Miss.Code Ann. §§ 11-45-21 and 11-27-29 (1972). (5) The State may sue for injunction without posting bond. Miss. Code Ann. § 11-13-9 (1972). (6) The State enjoys certain procedural advantages in contrast to other litigants because it would often be impractical, impossible, and unjust on broad constitutional grounds to require the same standard of the State as an individual in all cases.

We hold that Rule 41(a)(2) may not be interpreted and interposed to prevent the State of Mississippi and the Attorney General, when the law and his duty require it, from proceeding with the prosecution of Cause No. 123,959, now pending in the Chancery Court of the First Judicial District of Hinds County, Mississippi, insofar as it relates to intervenor William G. Bur-gin, Jr. Therefore, the writ of prohibition is granted and the respondent circuit judge is prohibited from the enforcement of his written order dated February 28, 1984, that the State of Mississippi, ex rel Edwin Lloyd Pittman, Attorney General, proceed no further with the prosecution of Cause No. 123,959 in the Chancery Court of the First Judicial District of Hinds County, Mississippi, insofar as it applies to the defendant, William G. Burgin, Jr., until it pays to him the sum of $26,651.93 attorneys’ fees.

PETITION FOR WRIT OF PROHIBITION GRANTED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

PRATHER, J., not participating.

      . Some justices base the holding on sovereign immunity and others base it upon broad constitutional grounds.