author: ELLIS, Judge:

text:
    Sallie PHILLIPS v. C. Paul PHELPS et al., Appellant.
    No. 12593.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Rehearing Denied May 29, 1979.
    Writ Refused July 2, 1979.

      William D. Grimley, A. J. Spedale, Spe-dale, Sanders, Pennington & Grimley, Baton Rouge, counsel for plaintiff-appellee Sallie Phillips.
    Thomas S. Halligan, Arthur Stallworth, Richard Rudolph and William J. Guste, Jr., Atty. Gen., State of La., Baton Rouge, counsel for defendant-appellant C. Paul Phelps, et al.
    Dan E. West, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, counsel for intervenor-appellee Houston General Ins. Co.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge:

This is an “executive officer” suit for damages for personal injuries suffered by Sallie Phillips when she was attacked and beaten by an inmate at Louisiana Correctional Institute for Women at St. Gabriel, Louisiana. Made defendants are C. Paul Phelps, who was, at the time of the assault, the Deputy Director of the Louisiana Department of Corrections; the Estate of Elayn Hunt, then Director of the Department of Corrections; J. D. Middlebrooks, then Warden of L.C.I.W.; Faye Fletcher, then Assistant Warden of L.C.I.W.; V. G. Walker, then Security Administrator at L.C.I.W.; and Rebecca Hutchinson, then Chief of Security at L.C.I.W. In essence, all defendants are charged with violating the duty of furnishing plaintiff a safe place to work.

The case was tried on its merits before a jury, which rendered a verdict for plaintiff and against all defendants for $137,000.00. Judgment was signed accordingly, and defendants have appealed. Plaintiff has answered the appeal asking for an increase in the award.

On October 5, 1975, while working as a Correctional Officer II at L.C.I.W., plaintiff was engaged in collecting trays in the administrative segregation unit, following the noon meal. This unit consists of a number of cells in which inmates who are disciplinary problems, who are violent, or who need protection are placed in isolation. One of the inmates so isolated on the day in question was Pam Reed.

As plaintiff was picking up the trays, Pam Reed, who was apparently sick, asked for a mop to clean up some vomit from the floor in her cell. At the time of the request, plaintiff testified that the inmate was still gagging. Plaintiff told her to wait until the trays were picked up. After this was done, plaintiff walked to a shower room located outside the segregation unit, got a mop and brought it back to the cell. She tried to pass the mop underneath the door and was unable to do so. Plaintiff then unlocked the cell door and opened it slightly to pass the mop through. Pam Reed, who was standing just inside the door immediately pushed the door open and began to struggle with plaintiff. As a result of the beating which ensued, plaintiff suffered the injuries complained of herein.

The prison regulations relative to the administrative segregation unit contain the following provision:

“When this unit contains a resident that is assaultive or has aggressive tendencies then two staff members will be present at any time her door is opened.”

Plaintiff was familiar with the above regulation, and was aware that Pam Reed had aggressive tendencies. However, she stated that she opened the door to hand in the mop without first summoning another matron because Pam Reed was sick, and because the prison staff was shorthanded that day and there was no one to call.

The record shows that there were five correctional officers on duty at L.C.I.W. at the time plaintiff was assaulted. There was a rodeo at Angola that same day, and 119 of the 150 inmates had gone to attend the rodeo. There remained 31 inmates at the prison. Five correctional officers had accompanied the inmates to Angola. Plaintiff alleges that it was for this reason that L.C.I.W. was shorthanded.

Although the testimony is somewhat contradictory, we find it clear that the normal complement of correctional officers on duty at any one time was six. It is uncontradict-ed that each officer works a five-day week of eight-hour days. There were 28 correctional officers at the prison at that time, two of whom filled administrative positions and did not do shift work. Eight were off duty at all times, leaving 18 officers to man the three daily shifts, or six per shift.

Warden Middlebrooks testified that the records of the institution showed that during the six weeks preceding the assault on plaintiff, there was only one day on which seven officers reported for duty. He further testified that it was usual for one of the six officers to be engaged off the prison grounds in transporting inmates for one reason or another. He considered five officers on duty at the prison to be a normal complement.

Another witness, Mrs. Dorothy Bateman, testified that she would have up to 13 people under her supervision on a shift, but later stated that she was including all personnel in that figure. She then testified that there would be six officers on a shift under her supervision. Other testimony indicates that there would be six officers total on a shift, including the supervisor. We conclude that the shift was probably one officer short on October 5, 1975.

The defendants contend that plaintiff was contributorily negligent in opening Pam Reed’s cell door without having another officer present. It is clear from the record that Mrs. Phillips could have summoned another officer so as to comply with the regulation, although the other officer might not have been immediately available. Mrs. Martin, the shift supervisor, testified that she would have gone to plaintiff’s assistance if called, or that she could have sent Mrs. Smiley, who was on duty at the infirmary. Plaintiff, however, made no attempt to summon assistance, stating that she thought no help was available, and that she thought Pam Reed needed immediate assistance.

Neither of these assumptions are borne out by the record. Mrs. Martin and one other officer were available for assistance. We can see no emergency in the circumstances surrounding Pam Reed’s illness. Although she had thrown up, and although there was vomit on the floor of her cell, Pam Reed was certainly not in any danger nor was her illness of such a nature as to require immediate assistance. Plaintiff proposed only to give her a mop, and not to render any first aid or other form of assist-anee. We can see no dire emergency necessitating the cleaning up of the cell floor. It is certainly not such as to justify the violation by plaintiff of a clearly reasonable regulation such as the one in question.

We are of the opinion, therefore, that plaintiff was negligent in opening the cell door while alone, in violation of the regulations of L.C.I.W., and that her negligence is such as to bar her recovery in this case.

Since we are of the opinion that plaintiff is barred from recovery, we need not consider the other issues presented by this appeal.

The judgment appealed from is therefore reversed and set aside, and there will be judgment herein in favor of defendants dismissing plaintiff’s demands, at her cost.

REVERSED AND RENDERED.


source: Caselaw Access Project

license: Public Domain

text:
    Jefferson Davis WILLIAMS v. SENTRY INS. CO. et al.
    No. 12599.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Rehearing Denied May 29, 1979.
    Writ Refused July 3 , 1979.

      Arthur Cobb, Baton Rouge, counsel for plaintiff-appellant, Jefferson Davis Williams.
    Charles W. Wilson and David W. Robinson, Baton Rouge, counsel for defendant-appellee, Government Emp. Ins. Co.
    Paul Marks, Jr., Baton Rouge, counsel for defendant-appellees, Sentry Ins. Co. and Mamie W. Scott.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge:

This is a suit by Jefferson Davis Williams for damages for personal injuries arising out of an automobile accident. The original defendants herein were Mamie W. Scott, driver of the other vehicle involved in the accident; Sentry Insurance A Mutual Company, her insurer; and Government Employees Insurance Company, plaintiff’s uninsured motorist insurer. Plaintiff later dismissed his suit with prejudice as to defendant Scott, and the matter was heard as to the two insurance companies only.

Trial was had before a jury on the question of quantum only, the negligence and consequent liability of defendant Scott having been stipulated. A verdict for $10,-000.00 was rendered in favor of plaintiff. Since this amount equalled Sentry’s limits of liability, judgment was signed against Sentry only for $10,000.00, and the suit was dismissed as to GEICO. No judgment of dismissal as to Ms. Scott has been signed.

Thereafter, plaintiff took a devolutive appeal as to all issues. Sentry and Ms. Scott timely answered the appeal, asking that the judgment be modified by reducing the award to $5,000.00. Plaintiff has moved to dismiss the answer, and Sentry and Ms. Scott, in turn, have moved to dismiss plaintiff’s appeal.

Plaintiff’s motion is based on his allegation that Sentry had paid and satisfied the judgment in full on September 7, 1978, that the judgment had been cancelled, and that the only party defendant left in the case was GEICO. He alleges that he was only appealing the judgment as to GEICO.

The motion to dismiss plaintiff’s appeal is based on his own admission that the judgment appealed from had been cancelled before the appeal was taken herein, and the proposition that, if a judgment is cancelled, there is nothing from which to take an appeal. Theriot v. Castle, 343 So.2d 399 (La.App. 3rd Cir. 1977).

In view of plaintiff’s admission that he did not intend to appeal as to Sentry, the acquiescence of Sentry in the judgment, and the cancellation thereof as to Sentry, with the apparent blessing of plaintiff, we will grant the motions to dismiss both the appeal as to Sentry, and the answer thereto filed by Sentry. Defendant Scott is not a party to this appeal.

On the merits, plaintiff’s sole assignment of error is that certain comments made to the jury during the opening statement by counsel for Sentry “were of such a nature that they went beyond the realm of proper argument and made it impossible for any jury to compensate plaintiff in an amount commensurate with the evidence of his damages. . . . ” He asks only that the case be remanded for a new trial before “an impartial and objective jury.”

We do not believe that plaintiff would be entitled to a remand for a new trial under any circumstances. In Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975) the Supreme Court made it clear that in cases in which an appellate court has all the facts before it, a trial judge’s erroneous instructions do not warrant a remand. It is the duty of the appellate court to decide the case on the record before it rather than to remand for a new trial. We think it evident that the same principle should apply in cases in which a jury might be unduly influenced by remarks of counsel.

The remarks to which plaintiff has taken exception are as follows:

“Ladies and Gentlemen, just bear in mind that all of you in some way are connected with insurance, you all pay premiums. Those of you who are employed, your employers pay premiums. Insurance companies, unlike what some people think, don’t just pull money out of the sky. It’s just a way of sharing the risk. When you pay money out, somebody has to pay that. It’s not the government that pays it. It’s not the City of Baton Rouge. It’s the policy holders. You. You have an interest in various insurance companies. The insurance company that I represent, like State Farm, it is not owned by some people in New York. It’s owned by the people who have policies.
“Mr. Cobb: Excuse me a minute, I hate to object, Your Honor, but I think I have to put an objection in the record, from the Revised Statutes 22:655, the direct action statute. I don’t think all this is proper, to tell these people it’s coming out of their own pocket. It is not.
“Mr. Marks: I have a right to explain how insurance companies work.
“Mr. Cobb: I ask that my objection be made general.
“The Court: I'm going to sustain the objection.”

We note that plaintiff neither requested that the judge admonish the jury as to any impropriety nor asked for a mistrial.

Louisiana, unlike most states, has a direct action statute, which permits suits directly against an insurer. The trier of fact, be it judge or jury, is aware of the existence of the insurance policy, and of the policy limits available for the award. We think it obvious that the above remarks, which were made by counsel for Sentry, were designed to persuade the jury to bring in a lower award, just as the constant reminders to the jury by plaintiff’s counsel of the policy limits of $60,000.00 were designed to obtain a higher award. We do not believe the jury was any more likely to have been swayed by the one than the other.

In any event, the trial judge’s charge to the jury contained the following language:

“Before I tell you the law, however, let me make some general comments about your responsibility as jurors. You’ve been chosen from the community to make a collective determination of the facts in this case and what the community expects of you and what the court expects of you is the same thing that you would expect if you were a party to this lawsuit and that is an impartial deliberation and conclusion based upon all the evidence in the case. This means that you must deliberate on this case without regard to sympathy, prejudice, or passion for or against any party to the suit. It means that the case should be considered and decided as an action between two people of equal standing in this community. A corporation or an insurance company is entitled to the same fair trial at your hands as is a private individual. All persons stand equal before the law and are to be dealt with as equals in our courts.”

We think this charge to the jury was correct and put its duty into proper perspective. On the record as a whole, we cannot find that the jury was unduly influenced by the above quoted remarks of Sentry’s counsel.

Finally, we find from the record that the award made by the jury is well within the discretion accorded in such cases.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: LOTTINGER, Judge. ELLIS, Judge,

text:
    Eula Marie GUIDRY v. Conrad SERIGNY d/b/a Leeville Seafood Restaurant and Lounge.
    No. 12413.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Rehearing Denied May 29, 1979.
    Writ Granted July 3 , 1979.
    Steve M. Koenig, New Orleans, for appellant.
    George Ledet, Jr., Cut Off, for appellee.
    Before ELLIS, COVINGTON, LOTTINGER, BAILES and SARTAIN, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation suit, in which Mrs. Eula Marie Guidry is seeking benefits for permanent total disability, plus penalties and attorneys’ fees, arising out of an accident which happened on December 2, 1975. After the trial on the merits, judgment was rendered dismissing plaintiff’s suit and she has appealed.

Mrs. Guidry was employed as a cook by Conrad Serigny, who was the owner and operator of Leeville Seafood Restaurant and Lounge. On the morning of December 2, 1975, she fell, either because she fainted or had a heart attack or because she slipped on a wet or slick floor. At the trial, Mrs. Guidry testified that she slipped because the floor was newly waxed. The histories taken by various doctors in the case furnish the other versions of how the accident happened.

After the accident, she was unconscious, and was taken by ambulance to Our Lady of the Sea Hospital in Galliano, Louisiana, where she was seen in the emergency room by Dr. William Maroma, who, at that time, specialized in internal medicine and cardiology, although not board certified. His diagnosis was heart failure and syncope. A Dr. George also examined plaintiff because of complaints of back pain, and diagnosed a mild low back strain or sprain.

Dr. Maroma based his diagnosis, in part, on a history that Mrs. Guidry had suffered from heart disease in the past and was taking Digoxin for her heart. Dr. Maroma did not recall from whom he had obtained the history. Mrs. Guidry denied any history of heart disease, and stated that she had never been given medication for a heart condition. She testified that she had taken nitroglycerin for shortness of breath following a gallbladder operation. No direct evidence of a previous heart condition is in the record, and none of the other doctors who subsequently examined Mrs. Guidry found any abnormality relating to her heart or its function. Dr. Maroma had not seen Mrs. Guidry since her discharge from the hospital on December 5, 1975, and was unable to venture an opinion as to any disability arising from her heart condition.

In denying recovery, the trial court found that “plaintiff’s fall was not the result of a waxed or wet floor but was the natural consequence of plaintiff fainting.” He also found that “the evidence introduced was not sufficient to prove that the heart attack or fainting spell was brought about because of the exertion of her employment or any duties in connection therewith.” He then held that since plaintiff failed to show a causal relationship between her employment and the fainting spell, she was not entitled to recover workmen’s compensation benefits. We do not find that the trial judge was manifestly erroneous in his findings of fact.

We think it clear from the record that Mrs. Guidry has failed to prove by a preponderance of the evidence that she is disabled because of a heart condition. No one, including, Dr. Maroma, testified to that effect.

It is equally clear that plaintiff injured her back, and was, for a time, disabled as a result thereof. The main question presented by this appeal is whether the injury resulted from an accident “arising out of and in the course of” plaintiff’s employment. La.R.S. 28:1031.

The two leading cases on the question of whether an accident “arises out of” the employment are Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256 (1917) and Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932). The Myers case has been cited for the proposition that an accident arises out of the employment if “the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment.” In the Kern case, the court said:

“In determining, therefore, whether an accident ‘arose out of’ the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer’s business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer’s business reasonably require that the employee be at the place of the accident at the time the accident occurred?”

It would appear that the holding of the Kern case is so broad as to include any accidental injury to an employee, from whatever cause, which occurs while he is engaged in the duties of his occupation. However, we note that the limitation of the Myers case is still applied by our courts.

As this court noted in Hull v. Liberty Mutual Insurance Company, 236 So.2d 847, 853 (La.App. 1st Cir. 1970), writ refused 256 La. 862, 239 So.2d 361 (1970):

“Professor Wex S. Malone in Louisiana Workmen’s Compensation Law and Practice considers at Chapter 9, § 198, the risk created by the physical peculiarity of an employee. In this section, the author discusses the employee who because of some physical infirmity ‘may be more subject to accident than a normal employee’ and propounds the question as to whether or not the risks which are attributable to such afflictions arise out of the claimant’s employment. On this subject he states:
‘For present purposes it is assumed that the worker has met with an ordinary traumatic accident, as by falling or burning himself, and that the consequences for which he is seeking compensation are the normal effects of such an accident. In such a case the employer may claim that the accident must be attributed to the affliction and not to the nature of the employment.
This position was sometimes adopted in the earlier English and American decisions. A carpenter who was seized with an attack of epilepsy and fell thirty-nine feet to the ground was denied compensation by the California court,
and in Massachusetts a worker who suffered lapses of memory and wandered into a swamp where he contracted pneumonia was similarly treated.
There are other early decisions in accord, although the cases were never
harmonious.
In later years the rule has become established that an accident which would otherwise be compensable does not cease to arise out of the employment because it can be attributed in part to a physical infirmity of the employee. The usual explanation advanced in the modern cases is that the fall or blow is the direct proximate cause of the injury or death and that the existing susceptibility is only a remote factor.
This may be true even though the conditions of the employment do not expose the employee to any special danger from falling.
The rule applies a fortiori where the danger from falling is greater for the employee than for one not so employed, as where he is required to work at a considerable height from the ground or around fires or other dangers.
The liberal rule described above prevails in Louisiana according to two court of appeal decisions. In Ryland v. R & P Construction Company com-
pensation was allowed claimant, a night watchman, who was seized with an attack of epilepsy and fell into a fire which he had built to keep himself warn. A somewhat similar situation is found in Flowers v. William [Williams]-Rieves Lumber Company, Claimant
was assisting a truck driver. He attempted to chew from a plug of tobacco handed him by the driver. Being unaccustomed to chewing tobacco, he became dizzy and fell from the truck. Compensation was allowed. In both these cases the court found that the physical disability or condition was not the proximate cause of the injury. It is also noteworthy that both claimants were securely within the course of their employment, and recovery could be justified under the rule of the Kern case.

In Hull, supra, the deceased employee, while driving an automobile in the course of his employment, experienced a hypoglycemic shock, became unconscious and lost control of his vehicle. He died as a result of a compound fracture of the skull suffered in the ensuing accident. We permitted recovery on the theory that the accident was the immediate cause of death, and the physical infirmity of the deceased was only a remote cause.

1 Larson, The Law of Workmen’s Compensation, § 12.1i (1978) states:

“When an employee, solely because of a nonoccupational heart attack, epileptic fit, or fainting spell, falls and sustains a skull fracture or other injury, the question arises whether the skull fracture (as distinguished from the internal effects of the heart attack or disease, which of course are not compensable) is an injury arising out of the employment.
“The basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. The currently controversial question is whether the effects of an idiopathic fall to the level ground or bare floor should be deemed to arise out of the employment.” (Footnotes omitted).

At § 12.14 Professor Larson further points out:

“Inevitably there arrive the cases in which the employee suffers an idiopathic fall while standing on a level surface, and in the course of his fall, hits no machinery, bookcases, or tables. At this point there is an obvious temptation to say that there is no way of distinguishing between a fall onto a table and a fall onto a floor, since in either case the hazard encountered in the fall was not conspicuously different from what it might have been at home. A distinct majority of jurisdictions, however, have resisted this temptation and have denied compensation in level-fall cases. The reason is that the basic cause of the harm is personal, and that the employment does not significantly add to the risk. A significant minority, however, make awards for idiopathic level-floor falls, but on close examination of the facts and opinions in these cases, the number is not as large as it has sometimes been thought to be.” (Footnotes omitted).

We believe this to be the better approach. The workmen’s compensation statute does not contemplate that the employer shall be the insurer for every illness or injury that befalls an employee while on the job. In the present case, there is no proof of any causal relationship between the employment or the place of employment and the fall and resulting injury. Thus, we are of the opinion that the trial judge was correct in denying recovery.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

ELLIS, Judge,

dissenting.

It is clear that an accident, within the meaning of the Workmen’s Compensation Law, occurred in this case, and that plaintiff’s back was injured as a result. R.S. 23:1021. It is fully established that plaintiff was in the course of her employment. The only question presented by this appeal is whether the accident “arose out of” plaintiff’s employment.

The leading case on the subject is Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932), in which the court said:

“In determining, therefore, whether an accident ‘arose out of’ the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer’s business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer’s business reasonably require that the employee be at the place of the accident at the time the accident occurred?”

There have been three cases in which Louisiana courts have considered the com-pensability of accidental injuries suffered during the course of employment, but resulting from a non-work connected cause.

In the case of Ryland v. R. & P. Const. Co., 19 So.2d 349 (La.App. 2nd Cir. 1944), for instance, a night watchman suffered an epileptic seizure, and while under its influence, burned his feet in a fire at which he had been warming himself. The court said:

“It is our opinion plaintiff is entitled to recover compensation for the injuries he received for he was injured in an accident while performing the duties he was employed to perform. The nervous attack which rendered him unconscious was not the proximate cause of his injuries. It was the fire at which he was warming himself that caused the injuries. If he had been at home and not at work, the nervous seizure would not have caused him the injury, and the fact that he was the subject to such seizures cannot prevent his recovery.”

In Flowers v. Williams-Rieves Lumber Company, 5 La.App. 49 (2nd Cir. 1926), Homer Flowers took a chew of tobacco, which made him dizzy, and he fainted and fell out of the truck in which he was riding. The court said:

“So, in the case at bar, the use of the tobacco was the agency which caused the employee to become unconscious and fall and it was the fall from the truck which caused the injury, and we cannot assume that he would have been injured if he had not been on the truck.”

In the more recent case of Hull v. Liberty Mutual Insurance Company, 236 So.2d 847 (La.App. 1st Cir. 1970) the deceased employee, while driving an automobile in the course of his employment, experienced a hypoglycemic shock, became unconscious and lost control of his vehicle. He died as a result of a compound fracture of the skull, suffered in the ensuing accident. We permitted recovery on the theory that the accident was the immediate cause of death, and the physical infirmity of the deceased was only a remote cause.

In my opinion, the above authorities demonstrate a policy that an employee should be protected from accidental injury while he is clearly acting within the course and scope of his employment, regardless of the cause of the accident. I believe this accident “arose out of” plaintiff’s employment within the meaning of R.S. 23:1031, and that she is entitled to recover benefits.

I therefore dissent.

      “20. Brooker v. Industrial Ace. Comm. (1917) 176 Cal.275, 168 P. 126, L.R.A.1918F. 878.”

      "21. Milliken’s Case (1914) 216 Mass. 293, 103 N.E. 898, L.R.A.1916A, 337.”

      “22. For example, Cox v. Kansas City Refining Co. (1921) 108 Kan. 320, 195 P. 863 (epileptic fell against hot pipes; compensation denied).”

      “23. For example, Rockford Hotel Co. v. Industrial Comm. (1921) 300 Ill. 87, 132 N.E. 759, 19 A.L.R. 80 (epileptic fell into bed of hot cinders; compensation allowed); Miller v. Beil (1921) 75 Ind.App. 13, 129 N.E. 493 (epileptic fell into open water tank; compensation allowed).”

      “24. Ennis [Ervin] v. Industrial Comm. (1936) 364 Ill. 56, 4 N.E.2d 22; Connelly v. Samaritan Hospital (1932) 259 N.Y. 137, 181 N.E. 76.”

      "25. Connelly v. Samaritan Hospital, supra, (laundress suffered heart attack, fell and hit table; compensation allowed); Industrial Comm. v. Nelson (1933) 127 Ohio St. 41, 186 N.E. 735 (epileptic fell and crashed skull against base of machine).”

      "26. Reynolds v. Passaic Valley Sewerage Comm. (1943) 130 N.J.L. 437, 33 A.2d 595 (epileptic fell against stove).”

      “27- (La.App.2d Cir. 1944) 19 So.2d 349.”

      “28. (2d Cir. 1926) 5 La.App. 49.”

      “29. See section 191, supra.”


author: COFER, Justice,

text:
    O. J. STANTON AND COMPANY, INC. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 50821.
    Supreme Court of Mississippi.
    April 11, 1979.
    Rehearing Denied May 30, 1979.

      Young, Scanlon & Sessums, Pat H. Scan-lon, Jackson, Harry L. Griffin, Jr., Atlanta, Ga., Reynolds & Mockbee, David L. Reynolds, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Rhesa H. Barksdale, Stephen W. Rosen-blatt, Lawrence J. Franck, Frank E. Shana-han, Jr., Jackson, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   COFER, Justice,

for the Court:

Appellant, O. J. Stanton and Company, Incorporated (Stanton), appealed this cause from an adverse decision of the Chancery Court of the First Judicial District of Hinds County. Appellee, Mississippi State Highway Commission (Commission), defendant in the lower court, took a cross appeal from a measure of relief decreed in favor of Stanton.

In the latter 1960’s Stanton, a substantial road construction contractor, contracted with the Commission for construction work on Mississippi highways. These contracts ran at least in figures upward of eight million dollars. To carry out its undertakings under these contracts, it necessarily had many employees and multiple scores of road building machines.

There are eight projects involved in this suit, included in five divisions, which are here loosely identified as follows:

(1) One involving highway work in Shar-key County, frequently herein called “Shar-key.”

(2) One for a segment of Interstate Highway 1-55, in Holmes County, called “Big Holmes.”

(3) One on Highway 49 in Holmes County, called “Little Holmes.”

(4) Four projects involving the intersection, and highway areas contiguous to the intersection, of Highways 45 and 82 at Columbus, all condensed into one transaction and known as “Lowndes.”

(5) One involving Highway 61 in Warren County, referred to as “Warren.”

[We know also from O. J. Stanton and Company, Incorporated v. Dennis, 360 So.2d 669 (Miss.1978), that Stanton, during at least a part of the time contracted in the projects above, had a road contract with the Commission which it was carrying out in Marion County and also a contract under performance with the United States Government for road work in Vicksburg National Military Park.]

Variances arose between Stanton and personnel of the Commission which resulted in this suit by Stanton wherein damages were sought on each of the five projects mentioned above, totaling $606,297.90. Generally, and without detailing the particular grounds for relief in each of the five projects, Stanton alleged breach of contract through delays purposely or incidentally caused in the carrying out of the contracts, and through extra work forced upon it by the Commission’s decisions, allegedly sometimes impetuously or arbitrarily or capriciously made, as to the manner of Stanton’s performance of its work.

The suit was begun October 23,1973, and involving the accumulation of twenty volumes and 2,949 pages of record and hundreds of exhibits, the Court’s final decree was entered on September 9, 1977.

It was heard, in fragments as shown below, over a long period of time, and the painstaking attention and patience on the part of the court and the attorneys are commendable.

By agreement of the parties and the court, each of the five projects was to be heard and was heard first on the issue of liability on the Commission’s part and then, if liability was established, there would be a hearing on the amount of damages. Liability hearings were had on all five projects. At the conclusion of Stanton’s proof in Sharkey, Big Holmes, Little Holmes, and Lowndes, motion by the Commission to exclude and dismiss on all phases of each of these projects was sustained, and therefore, the issue of damages was never reached in them.

In Warren, the Court did find that a case for relief by Stanton had been made and a hearing on the question of damages was reached, resulting in a money decree for Stanton.

In some of the liability hearings, Stanton called Commission officers as adverse witnesses, and while their testimony will nowhere herein be detailed, the fact and effect of their use will be noticed. Stanton bound itself by that part of the adverse witnesses’ testimony not contradicted by Stanton, but it was not bound by that part it rebutted. Vinson v. Glenn, 338 So.2d 385, 387 (Miss.1976).

Two other familiar legal principles will be noticed now.

Sharkey, Big Holmes, Little Holmes, and Lowndes were dismissed at the conclusion of Stanton’s case on liability. Judge Griffith, in his Mississippi Chancery Practice, § 584, page 615 (2d ed. 1950), sets out the rule as to motions to exclude and dismiss at the conclusion of a party’s proof:

. when at the conclusion of complainant’s evidence the defendant moves to exclude it and to dismiss the bill the court should assume as true all facts which the complainant’s evidence fairly tended to establish together with all reasonable inferences to be deduced therefrom, the practice in that respect in the chancery court being analogous to that in the circuit court.

In Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652, 655 (Miss.1975), it is said:

We have held many times that in passing on a motion for a directed verdict the court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled. .

Warren was decided by the chancellor when all the proof had been adduced for both parties in the liability and damages hearings. Under these circumstances, the decision must be upheld unless it is found to be contrary to the weight of the evidence, or, as sometimes said, is manifestly wrong. McNair v. Capital Electric Power Association, 324 So.2d 234 (Miss.1975); Brent v. Cox, 246 So.2d 552 (Miss.1971).

During the pertinent contracting periods there were two compilations, Mississippi Standard Specifications for Road and Bridge Construction 1956 edition, and its 1967 edition, and one or the other of these editions, depending upon the contract date, was by reference made a part of each of the contracts of the parties and was as binding on them as any other provision of such contract.

With these general preliminary observations, we approach the issues.

I.SHARKEY

Stanton asserted that Commission caused delays and disruptions in the performance by Stanton of its contract; in requiring undue excavation depth for a culvert at Station 125 and in not paying contract price for that excavation and for other culverts included in the contract; in requiring backfill density tests at unreasonable levels; in requiring unnecessary inspections causing extra work; and that Commission made costly errors in structural excavation for which Stanton was entitled to pay but for which it was not compensated.

An examination of the testimony for Stanton taken most favorable for it, reflects that Stanton made out a prima facie case as to the culvert excavation it did other than at Station 125 and this means that the Commission should have been required to put on its proof as to this culvert excavation in answer to Stanton’s prima facie case.

In all other respects, Stanton failed to make out a prima facie case as to the Shar-key project, as the court correctly found.

II.BIG HOLMES

This project involved work on Interstate 1-55 in the general Goodman-Durant area, and Stanton claims it was damaged by the slowdowns caused by compaction and density tests, the Commission’s demands that culvert pipe be laid and embedded according to the applicable specifications; the Commission’s departure from a planned sequence for the work of the contract at one stage by requiring all work to be first completed on a two-mile segment, and by Commission’s withholding of liquidated damages for Stanton’s failure to complete the contract in timely manner. There is long testimony about the number and manner of the density tests to determine if the earth had been properly compacted. Much complaint is voiced as to the laying of the pipe, but the requirement that it be laid as exacted by the Commission is strictly in accordance with § 603.04 of the 1967 Standard Specifications, made a part of the contract.

We find no prima facie case in favor of the claim as to the density tests and the pipe embedding.

Contrary to the sequence schedule submitted to, and approved by, the Commission, the Commission, at one point, required all work to cease elsewhere on the almost thirteen-mile span of the contract, until work was completed on the two miles of the project next south of highway 14. Owing to this requirement the work was greatly slowed down and Stanton was damaged thereby. Liquidated damages in the amount of $34,440 were withheld by the Commission, which, if caused by the restriction of area of in-grade work as noted first hereinabove, should have responding proof from the Commission.

We conclude that, in the in-grade preparation and the liquidated damages, Stanton produced a prima facie case.

III.LITTLE HOLMES

Stanton’s complaint here is that, when its begin-work order came, there were located in the area of the work one power pole and a guy wire supporting another pole, and that these should have been removed before it was ordered to advance. The record establishes that an understanding had been arrived at between the owner of the power line and the Commission for the owner’s removal of these. In the Commission’s start-work directive, note was taken of the presence of these, and the Commission requested that Stanton begin at the north end of the project and work south with the expectation that these obstacles would be removed before they became a hindrance. In spite of maintaining (1) that it was the feasible thing to carry the whole project on at one time, and (2) that it was delayed until the pole and guy wire were removed, the record establishes that Stanton never began work until September 2, 1969, although the obstacles had been removed on July 29, 1969, and actually started its work at the north end of the project.

Taking the testimony and inferences therefrom most strongly in favor of Stanton, it did not make a prima facie case as to Little Holmes.

IV. LOWNDES

As hereinabove early noticed the Lowndes project included four different projects conveniently combined into one in the pleadings and the proof.

Stanton claims damage because of the asserted facts that in the bid documents setting forth the dirt removal details, its source, and where to be carried, there appeared a statement “20 percent shrinkage factor used.” The earth actually was Selma chalk which swelled when excavated and delivered to the site requiring less volume of hauling, and involved extra work in loosening for excavation and in compacting it to density when delivered. Stanton maintains that the shrinkage factor asserted was a representation or perhaps rather a misrepresentation intended to have the bidder’s reliance upon it, and that the difference was expensive to Stanton. The Commission countered with the assertion that 20% shrinkage was only a figure assumed for its purpose in comparing bids.

The record further reveals that Stanton had done other work in the Columbus area, was familiar with this type of soil and did some test examination of it. In addition, according to the specifications applicable thereto, it was the duty of the bidder to make his own determination as to what to expect from the dirt. Stanton says, in its reply brief, “a contractor bids a project based on his knowledge of the contract and the project at the time he submits his offer to the owner.”

We think that Stanton established no case for relief as to the shrinkage issue.

Stanton next complains that it was damaged on account of the failure of one of the spans of the Highway 82 bridge crossing the Tombigbee River.

Before bidding on the project, Stanton, through an association apparently existing to be of service to road builders, obtained assurance from the Commission that load limits crossing the Tombigbee River and other bridges involved would be relaxed, and Stanton took this agreement into consideration as vitally affecting the number of loads of earth that would have to be transported. One span of the Tombigbee River Bridge, made of light-weight concrete, cracked and then holes developed in it.

This occurrence brought about a conference between Stanton and the Commission which gave rise to a supplemental agreement whereby, among other things, Stanton would repair the damage and the cost would be equitably divided between the parties. About, but before, this time, the Commission had withdrawn the relaxation of load limits and, for the rest of the hauling, Stanton was limited to much lighter loads across the bridges involved. It claims damage because of that fact.

The record shows, however, that 90 to 95% of the hauling across these bridges had been done before this bridge span flaw developed, and that a subcontractor or hauler employee had quit the job and Stanton had sued him asserting that 50% of the delay was caused by his breach of contract. The record also has it that, before this time, Stanton had already removed much of his heavy hauling machinery to another project. Stanton then subcontracted the hauling to another contractor, whose vehicles were of much lower capacity.

The supplemental agreement we have above mentioned provides “that the hauling of materials across the bridge at legal loads and at a speed reduced to a maximum of 15 miles per hour has been authorized since assessment of the damage, and this authorization is to continue and this hauling and all other work of our contract is to be completed at the earliest possible time. . ” (Emphasis added and later herein we will take further note of the underscored portion.)

Taken at its strongest in favor of Stanton, no prima facie case for relief as to the bridge hindrance has been shown.

Stanton next complains of slow-up and delay in its work because of interference by the Commission with its planned sequence of accomplishing the work of the project.

Returning for a moment to Big Holmes, the record shows that, when the project engineer brought information to Stanton that it would be required to do the project as discussed above, one of the Stantons making up the corporate complainant observed that such a requirement had not been made for the Lowndes project. Stanton claims that promptly the Commission required all work to cease until a 9/io mile segment of the Lowndes project had had soil erosion and grassing treatment. This left much of Stanton’s equipment idle and occasioned considerable delay on its part.

Stanton and the Commission are at variance as to liquidated damages imposed for failure to complete the project on time.

Some of the pay estimates in evidence show 300 contract working days and have below “(+ 26) C.O. # 1”. The final estimate returns to 300 days, however, and it is apparent that liquidated damages were withheld on that basis. Stanton claims it is entitled to the 26 extra days plus seven days’ delay in the in-grade preparation work noticed next above and fourteen days of interruption on account of the bridge failure.

Taking the proof as to the in-grade above, we are of the view that it called for proof in answer by the Commission.

In view of what has been said as to the liquidated damages, we think the Commission should come forward with its proof and also that determination is called for as to whether the supplemental contract portion emphasized above, operates to abandon maximum working days and is a new and superseding agreement that the contract “is to be completed at the earliest possible time.”

V. WARREN

We have examined the testimony on the liability hearing and the damages hearing. Stanton claimed its work was delayed substantially by faulty plans and specifications and erroneous calculations of materials, and prayed money damages for its equipment which stood idle during these delays, and also for cost of overhead office expenses, attributable to these delays, and for interest on all of the same. Liquidated damages had been assessed and withheld by the Commission and Stanton prayed recovery thereof. We do not undertake detailed review thereof at this point, but are of the opinion that, in what the chancellor allowed and in what he declined to allow, he is substantially supported in the record, and is not at all manifestly wrong. He required remission of $9,200 of liquidated damages plus $3,708.23 of interest thereon to June 17, 1977, a total of $12,908.23, and denied other relief prayed by Stanton. The chancellor is affirmed on both direct and cross appeal.

SUMMARY

In recapitulation, we have held that Stanton made out a prima facie case and the cause will be reversed and remanded in the following:

1. Sharkey, in dirt excavation for all culverts complained of, other than that at Station 125.

2. Big Holmes, in the in-grade preparation and in the liquidated damages.

3. Little Holmes, none.

4. Lowndes, in the in-grade preparation and in the liquidated damages.

5. Warren, we have affirmed the chancellor entirely.

In Stanton’s second assignment of error, it is asserted that the Court erred in sustaining the Commission’s objections to evidence offered by Stanton to prove (1) Stanton’s prior course of dealings with the Commission; (2) the Commission’s usage and custom in interpreting the contracts and specifications; (3) the Commission’s interpretation of the same standard specifications on other projects; and (4) Stanton’s exhibits which were marked for identification.

At the threshold of this assignment is the legal principle that “The law of usage and custom and the courts cannot make contracts for parties,” although for explanation or clarification of provisions ambiguous and requiring interpretation, custom may be read into contracts. Fireman's Fund Insurance Co. v. Williams, 170 Miss. 199, 211, 154 So. 545, 547 (1934).

In Magnolia Lumber Corporation, Inc. v. Czerwiec Lumber Co., Inc., 207 Miss. 738, 747, 43 So.2d 204, 206 (1949), it is said, “Since there was a lawful and valid contract between appellant and appellee we are of the opinion that the proffered evidence of custom and usage was properly excluded when the verdict of the jury was set aside by the trial court.”

Stanton cites, with emphasis, the use of the words “at the earliest practicable time” in Standard Specifications, 1967 edition, § 323.02, as being ambiguous. Taken alone, and out of context the words’ meaning is subject to several explanations. In context, it is fully explained, as we read it.

Each of the contracts in evidence is a stupendous document with many patent enigmas for the layman, but as noticed hereinabove Stanton has said that a contractor bids on his knowledge of the contract and the project, and it seems well within reason to conclude that Stanton had a good working knowledge of each of these contracts after successful and apparently harmonious completion of scores of similar contracts with the Commission before the late 1960’s.

We dispose of this assignment of error by stating that, in the further proceedings involved in our remand of this case, ambiguities in the contracts may be explained by custom and usage, as clearly provided by law, but the record should not be cluttered and prolonged by time-consuming proof as to how other contracts were treated simply because of a desire by either party to accomplish a part of any contract in a manner more suitable or convenient to such party. The parties should also accommodate themselves to the fact that custom and usage may not prevail over the contract’s provisions—“when its place [usage and custom] is occupied by particular stipulations.” Burbridge & Houston v. S. Gumbel & Co., 72 Miss. 371, 378, 16 So. 792, 793 (1895).

The costs of the appeal will be assessed equally to the parties.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


text:
    Sam K. NEWSUM, et ux. v. NORTHEAST MISSISSIPPI PRODUCTION CREDIT ASSOCIATION OF TUPELO et al.
    No. 51103.
    Supreme Court of Mississippi.
    April 11, 1979.
    Rehearing Denied May 30, 1979.
    Talmadge D. Littlejohn, New Albany, for appellants.
    Mitchell, McNutt, Bush, Lagrone & Sams, F. M. Bush, III, Tupelo, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Pontotoc County; Fred P. Wright, Chancellor.

AFFIRMED.


author: SMITH, Presiding Justice,

text:
    HOME BUILDING MART, INC. and Trusco v. Donald Keith PARKER, d/b/a Mid-South Plumbing Company, et al.
    No. 51102.
    Supreme Court of Mississippi.
    April 25, 1979.
    Harold W. Melvin, Laurel, for appellants.
    J. C. Martin, Jr., Waynesboro, Travis Buckley, Laurel, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

On May 9, 1978, Home Building Mart, Inc., a Mississippi corporation, and Trusco, a partnership, petitioned the Circuit Court of Wayne County to impress a materialman’s lien upon certain real property owned by Donald Keith Parker and Linda Fay Parker, his wife. First National Bank of Waynesboro, holder of a mortgage on the property, was also named as a defendant.

First National defended upon the ground that petitioner’s claim was barred under the provisions of Mississippi Code Annotated section 85-7-141 (1972). The trial court agreed and dismissed the petition.

On appeal First National states:

“It appears that the only issue before this Court is appellants’ contention that Sec. 85-7-141, of the Miss.Code of 1972, is a statute of limitations that would be tolled by provisions of the U.S. Bankruptcy Act, 11 U.S.C. Sec. 29(f) (1976), in that the appellant herein failed to file their suit to enforce lien within 12 months next after the time when the money became due and payable, and not after.”

A chronology of the relevant events is as follows:

On 7/1/75 Parker and his wife executed the deed of trust to First National Bank of Waynesboro beneficiary, covering subject property.

Appellants sold and delivered the material involved, commencing the first part of 1977, with the money becoming due and payable 3/22/77 and 4/6/77.

On 8/15/77 Parkers filed bankruptcy.

On 10/23/77 appellants filed notice of construction lien.

On 4/10/78 the bankruptcy court ordered abandoned the subject property on petition of First National Bank.

On 5/9/78 appellants filed the petition in the present suit to enforce the lien.

Upon motion of First National, the circuit court dismissed the petition upon the ground that the suit to enforce the lien had not been filed within twelve months next after the last delivery of material, and the date upon which the debt became due and payable, within the meaning of Mississippi Code Annotated section 85-7-141 (1972) on July 1, 1978.

The lien sought to be enforced was that created by Mississippi Code Annotated section 85-7-131 (1972) which provides, among other things: “The architects, engineers, surveyors, laborers, and materialmen and/or contractors who rendered services and constructed the improvements shall have a lien therefor. . . . ”

Mississippi Code Annotated section 85-7— 141 (1972) provides that suit to enforce “such lien” shall be commenced “within twelve months next after the time when the money became due and payable, and not after.”

It is the contention of First National that the suit for enforcement of the lien is barred by the above provision, the same not having been filed within twelve months next after the material had been sold and delivered and payment had become due. Home Building Mart and Trusco, on the other hand, rely on the provisions of the Bankruptcy Act, 11 U.S.C. section 29(f) (1976), which provides:

(f) The operation of any statute of limitations of the United States or of any State, affecting the debts of a bankrupt provable under this title, shall be suspended during the period from the date of the filing of the petition in bankruptcy (1) until the expiration of thirty days after the date of the entry of an order denying his discharge; or (2) if he has waived or lost his right to a discharge, then until the expiration of thirty .days after the filing of such waiver or loss of such right or, in the case of a corporation, if no application for a discharge is filed within the period of six months after the adjudication, then until the expiration of thirty days after the end of such period; or (3) until thirty days after the dismissal of the bankruptcy proceedings, whichever may first occur. July 1,1898, c. 541, § 11, 30 Stat. 549; June 22,1938, c. 575, § 1, 52 Stat. 849; July 7, 1952, c. 579, § 5, 66 Stat. 422.

(Emphasis added).

Claimants also cite Rule 601(a), (b) of the Bankruptcy Rules:

(a) Stay Against Lien Enforcement. The filing of a petition shall operate as a stay of any act or the commencement or continuation of any court proceeding to enforce (1) a lien against property in the custody of the bankruptcy court, or (2) a lien against the property of the bankrupt obtained within 4 months before bankruptcy by attachment, judgment, levy, or other legal or equitable process or proceedings.
(b) Duration of Stay. Except as it may be terminated, annulled, or modified by the bankruptcy court under subdivision (c), (d), or (e) of this rule, the stay shall continue until the bankruptcy case is dismissed or closed, or until the property subject to the lien is, with the approval of the court, set apart as exempt, abandoned, or transferred.

First National counters by citing Kellum v. Johnson, 237 Miss. 580, 115 So.2d 147 (1959), in which this Court stated:

“A statute which in itself creates a new liability gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought.”

(115 So.2d at 150-151).

Kellum involved a statute providing that election contests must be filed in twenty days. The considerations leading to the result in Kellum do not apply here.

The argument of First National is to the effect that the lien sued upon was created by Mississippi Code Annotated section 85— 7-141 (1972). However, the lien, as stated above, was created by section 85 — 7—131. Section 85-7—141 provides the procedure for enforcing “such lien” and the period within which suit must be begun. Rule 601 of Bankruptcy Rules, supra, provides for “stay against lien enforcements,” and prohibits the commencement or continuation of any court proceedings to enforce a lien against property in the custody of the bankruptcy court. It provides that such stay shall continue until the bankruptcy case has been dismissed or closed or “until the property subject to the lien is, with the approval of the court, set apart as exempt, abandoned, or transferred. The subject property upon which Home Building Mart and Trusco sought to impress the lien was ordered abandoned by the bankruptcy court on April 10, 1978, at the instance of First National Bank. Collier’s Bankruptcy Manual, Vol. 1A, p. BR-VI-18, § 601.07[4] reads in part:

If property is abandoned by the trustee, title is revested in the bankrupt, the trustee relinquishes possession, and the bankruptcy court loses its jurisdiction over the property. As a concomitant of the process of abandonment, Rule 601(b) states that the automatic stay terminates upon abandonment of the property by the trustee. After that time, the appropriate foreclosure remedies may be pursued by the secured party.

The subject property having been abandoned on April 10, 1978, Home Building Mart and Trusco filed their petition to impress it with a materialman’s lien on May 9, 1978. Bankruptcy proceedings having been begun on April 15, 1977, and the property not having been ordered “abandoned” until April 10, 1978, the intervening period must be excluded from the computation of the one year in which suit must be brought. Therefore, omitting the time during which the property was under the exclusive jurisdiction of the bankruptcy court, the petition for enforcement of the lien was filed within twelve months of the dates upon which, according to First National, the money for the material became due and payable, which were March 22, 1977 and April 6 1977.

In Kellum, the Court dealt with an attempt to contest a primary election. The Court quoted the statute:

Section 3143, supra, is as follows: “A person desiring to contest the election of another person returned as the nominee of the party to any county or beat office, may, within twenty days after the primary election, file a petition with the secretary or any member of the county executive committee ....
(115 So.2d at 149).

The Court decided:

When one faces reality, it is obvious that primary election contests, if they are to be allowed and the favorable results thereof come to full fruition, must be conducted speedily. The names of party nominees, if they are to be of any avail, must go on the ticket for the general election, which is required by Section 102 of the Constitution of 1890, to be held on the first Tuesday after the first Monday in November. Unless this course can be vouch-safed, there would be no virtue in holding primary elections to choose nominees of the parties. .
(115 So.2d at 150).

In Kellum the Court said that the twenty day period was not a statute of limitations which could be waived but was a “condition precedent” to the exercise of the right granted to contest a primary election and rejected the would-be contestant’s claim that there had been a waiver. The situation in Kellum was not one in which a federal statute operated to preclude or suspend temporarily a right of action during the continuance of specified circumstances such as those in the present case where the pendency of the bankruptcy proceedings prevented the enforcement of an existing lien. There is no suggestion in Kellum that there was any effective prohibition or restraint which prevented him from contesting the election within twenty days.

It appears to be clear that under federal law the possibility of instituting or continuing proceedings to enforce the material-man’s lien was abrogated and suspended until the subject property was ordered abandoned. We have concluded that the materialman’s lien was created by Mississippi Code Annotated section 85 — 7—131 (1972), and that section 85-7-141, while relating to the same subject matter, supra, provides a statute of limitations which will apply to a suit to enforce. The running of this statute was suspended following the commencement of the bankruptcy proceedings and the one year period did not commence to run again until the property had been formally abandoned by order of the bankruptcy court. The case will be reversed and remanded for trial upon all issues.

REVERSED AND REMANDED.

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


text:
    BANK BUILDING CORPORATION v. Perry J. MAYFIELD and Charles H. Smith.
    No. 51169.
    Supreme Court of Mississippi.
    April 25, 1979.
    Rehearing Denied May 30, 1979.
    Gray, Montague, Jackson, Pittman & Hammond, Frank D. Montague, Jr., S. Robert Hammond, Jr., Hattiesburg, for appellant.
    Holmes & Dukes, Paul H. Holmes, Thomas Bates, Hattiesburg, for appellees.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

AFFIRMED.


author: COFER, Justice

text:
    J. D. McADORY, Sheriff of Hinds County, Mississippi, W. Lloyd Dickerson, A. D. Buffington, et al. v. AMERICAN EMPIRE LIFE INSURANCE COMPANY.
    No. 51026.
    Supreme Court of Mississippi.
    May 2, 1979.

      Richard E. Stratton, III, Brookhaven, for appellants.
    Young, Scanlon & Sessums, Pat H. Scan-lon, Jackson, for appellee.
    Before SMITH, SUGG and GOFER.
   COFER, Justice

for the Court:

Deposit Guaranty National Bank obtained a deficiency default judgment against Empire Investment Corporation, which it purportedly assigned to B & B Incorporated, which assigned it, purportedly, to W. Lloyd Dickerson, one of appellants. Appellant Dickerson caused execution to issue on the judgment and appellant Sheriff McAdo-ry levied on the real estate in question which, at the entry of the judgment belonged to Empire Investment Corporation, but which after the judgment entry, it had sold, by warranty deed to appellee American Empire Life Insurance Company (Life Insurance).

Life Insurance brought this suit in the Chancery Court of the First Judicial District of Hinds County to enjoin the sale by the sheriff and for other relief, making appellant Dickerson a party also and in multiple amended bills of complaint, other parties, including appellant Buffington, were brought in as defendants.

At the conclusion of Life Insurance’s case in chief, the chancellor sustained defendants’ motion to exclude and dismissed the suit, from which Life Insurance appealed to this Court. The appeal resulted in reversal in American Empire Life Insurance Company v. McAdory, 319 So.2d 237 (Miss.1975).

The opinion rendered by this Court in that reversal is a masterful analysis and presentation of the issues and of the facts up to then adduced, which the author of the opinion conservatively said “are complicated.” Further details of the facts add nothing to this opinion. Reference is made thereto.

On the remand and after the pleadings had been perfected to a state satisfactory to the parties, the proof was resumed and all parties had their day in court.

The chancellor rendered and filed his opinion, which was, by reference, incorporated in the decree entered thereon, in which opinion he found that:

1. The $12,000 provided by defendants-appellants Dickerson and Buffington and Blackman, since deceased, was a loan to Empire Investment Corporation, calling for 20% interest, and was usurious and void;

2. Buffington was to use the $12,000 to pay off and satisfy the Deposit Guaranty National Bank judgment, but, instead, had the judgment transferred to B & B Incorporated, which belonged to him and which he used as a holding company, and, in doing so, deprived Empire Investment Corporation of which he was a corporate officer and to which he owed a fiduciary relation, of a valuable corporate opportunity.

3. Buffington, on Dickerson’s demand, transferred the judgment to Dickerson, who was, at the suit, attempting to have the property sold under the execution to collect the entire $55,000 judgment for himself.

4. Buffington’s and Dickerson’s activities in the premises were a joint venture involving the unlawful taking of Empire Investment Corporation’s corporate opportunities, as well as making the usurious loan to it;

5. The assignment of the Deposit Guaranty judgment to B & B Incorporated, Buffington’s corporate creature, was in violation of Buffington’s fiduciary duties to Empire Investment Corporation and should be considered to have created a constructive trust in favor of the Empire Investment Corporation.

6. The subsequent assignment of the judgment from B & B Incorporated to Dickerson was without consideration and void; and

7. The property levied upon and being advertised for sale under the execution is not subject to a judgment lien and enforcement of the judgment should be permanently enjoined.

Decree was accordingly entered adjudicating the property involved to be free from, and not subject to, the lien or encumbrance of the judgment and permanently enjoining the defendants-appellants from enforcing or attempting to enforce the judgment against said property.

We have examined the record, and are of the opinion that no beneficial purpose would be accomplished by reviewing it herein.

The winding trail of the performers in this story of self-gain undertaking, intrigue and stratagem and the web woven along the wandering way challenges the sensibilities of a reasonable man. We are of the opinion that the chancellor correctly decided the issues and is supported by the great weight of the evidence, and that in the decision, equity, which delights in complete justice, has experienced one of its finest hours.

AFFIRMED.

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

BOWLING, J., took no part.


author: WALKER, Justice,

text:
    Paul Donald SULLIVAN v. CITY OF OKOLONA and United States Fidelity and Guaranty Company.
    No. 51112.
    Supreme Court of Mississippi.
    May 2, 1979.
    John D. Sibley, Okolona, for appellant.
    Kenneth M. Burns, Okolona, for appel-lees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is a workmen’s compensation case wherein the claimant, Paul Donald Sullivan, brought suit against the appellees, City of Okolona, employer, and United States Fidelity and Guaranty Company, carrier, for injuries sustained during the course and scope of his employment with the City of Okolona as a volunteer fireman.

The claimant was regularly employed as a presser at a local factory and earned an average weekly salary of approximately $200.00 per week at the time he was injured.

Also, from as early as 1965, claimant worked as a volunteer fireman with the City of Okolona. He was compensated at the rate of $2.50 for fires when the hose was not removed from the truck and $5.00 when the hose was removed. From July 19, 1973 until July 19, 1974, claimant attended nine fires and received compensation totall-ing $35.00.

On July 19, 1974, the claimant, in his capacity as a volunteer fireman, while helping fight a fire for the city, was injured when the porch of a burning house collapsed causing him to fall backwards injuring the lower portion of his back.

Dr. Benjamin H. Buchanan, a Tupelo orthopedic surgeon, assessed appellant’s disability at twenty-five percent of the body as a whole. The injuries sustained by the appellant were compression fractures to the spine at levels T-12 and L-l.

The claimant was temporarily and totally disabled from July 19,1974 through December 9, 1974 and was paid compensation benefits for said period of time at the rate of $10.00 per week. Thereafter, several hearings were held, and the administrative judge entered his order in this case on November 5, 1976 holding that the claimant was injured in the course and scope of his employment and was entitled to compensation benefits for twenty-five percent permanent partial disability to the body as a whole and awarded claimant $0.65 per week after determining that the average weekly wage of claimant as a volunteer fireman was the sum of $3.90 per week.

Claimant appealed from the order of the administrative judge to the Full Workmen’s Compensation Commission, and an order was entered by the Full Commission dated October 17, 1977 affirming the order of the administrative judge, with the exception that the Full Commission found the award of $0.65 per week for permanent partial disability to be erroneous. In so doing, the Full Commission stated:

To base an award solely on the actual wages earned by claimant in his capacity as a volunteer fireman, . . . would be to render the claim meaningless, as is evidenced by the award of $.65 per week for permanent partial disability. The Full Commission is of the opinion that such a result would not be compatible with the spirit and purpose of the Mississippi Workmen’s Compensation Law.

The case was remanded to the administrative judge for the purpose of holding a hearing to determine the reasonable weekly wage of a fireman performing the work of the claimant in the jurisdiction in which he was working and to recompute claimant’s benefits. In so ruling, the Full Commission relied upon its broad equitable powers to arrive at a fair result in determining a claimant’s average weekly wage.

Claimant and appellees stipulated that the average weekly wages for a full time fireman in the City of Okolona and in the surrounding area was the sum of $101.53 per week. This stipulation was entered into in lieu of having an additional hearing, as had been previously ordered by the Commission when reversing the administrative judge’s original order.

An appeal was prosecuted from the order of the Full Commission by the appellees to the Circuit Court of the Second Judicial District of Chickasaw County, Mississippi.

Thereafter, on July 6, 1978, the circuit judge reversed the order of the Full Commission and reinstated the order of the administrative judge dated November 5, 1976, fixing claimant’s permanent partial disability compensation at $0.65 per week, and a judgment was entered accordingly.

From the decision of the circuit court, the claimant brings this appeal.

In this cause the issue between the parties arises from the method used in determining the claimant’s average weekly wage. Mississippi Code Annotated section 71-3-31 (1972) provides:

Except as otherwise specifically provided, the basis for compensation under this chapter shall be the average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by fifty-two; but if the injured employee lost more than seven days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. When the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided that results just and fair to both parties will thereby be obtained. Where, by reason of the shortness of time during which the employee has been in the employment of his employer, it is impracticable to compute the average weekly wages by the above method of computation, regard shall be had to the average weekly amount which, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same or similar work in the community. Wherever allowances of any character are made to an employee in lieu of wages or specified as part of the wage contract, they shall be deemed a part of his earnings.

In Dunn’s Mississippi Workmen’s Compensation section 62 (2d ed. 1967) dealing with average weekly wages, it is stated that “It has been emphasized that the section governing the determination of average weekly wages (Mississippi Code Annotated section 71-3-31 (1972)) is divided into several parts and that each part relates to a different factual situation.”

Section 63 of Dunn’s states: “The first part of the statute applies where the employee has worked for the same employer for fifty-two weeks without losing more than seven days of time from work.” The facts in this case definitely preclude the first part of the formula used in applying section 71-3-31 to determine the wages of the appellant at the time of injury because claimant lost more than seven days.

Section 64 of Dunn’s states: “The second part of the statute applies where the employee has been working for the employer over a period of 52 weeks but has lost more than seven days of time during the entire period. . . . ”

Section 65 of Dunn’s states that, “The third part of the statute applies when the employment prior to the injury extends over a period of less than 52 weeks. Here, subject to certain exceptions stated below, the gross earnings for the entire period are divided by the ‘number of weeks and parts thereof during which the employee earned wages.’ ” It is pointed out that there is an exception to the formula in the third category. It is stated by Dunn’s in this section that, “The exception to the formula in the third category occurs if it be found that results which are just and fair to all parties will not be obtained. If, due to the shortness of time in employment, it is impracticable to compute the average by the stated formula, regard shall be had to the average earned by others in the same grade in the same or similar work in the community where the accident occurs.”

Dunn’s goes further in this section and states that, “But even where the time is adequate for application of the usual formula, the ‘just and fair’ provision is enough to allow the Commission a reasonable area of discretion. . . . ”

The administrative judge determined the claimant’s average weekly wage by applying the third part of the statute. In reversing the administrative judge, the Full Commission determined the method of computing claimant’s average weekly wage should be based on the average weekly wages for a fireman in the surrounding area, which is the exception to the formula as explained in Dunn’s section 65.

We are of of the opinion that neither the first nor the third part of the statute is applicable to the facts in this case but that the second part of the statute applies. If the claimant’s status can be categorized at all, since he had been a volunteer fireman since 1965, then he would be classified as a regular volunteer fireman. He served in this capacity knowing that he would only be called to duty a few times each year and would receive minimal compensation, that is $2.50 if the hose was not removed from the truck and $5.00 if the hose was removed from the truck, regardless of the number of hours that it might take to fight any particular fire. It was on this basis that claimant was compensated and we can only assume that it was on this basis that workmen’s compensation insurance premiums were paid. Since he only worked nine days during nine different weeks in the fifty-two weeks immediately preceding his injury, it logically follows that he lost the rest of the time. Therefore, his average weekly wage would be determined by dividing his total wage of $35.00 by the number of weeks or parts thereof, being nine, that he worked.Although the same result is reached by this method as to the amount of compensation paid as was determined by the administrative judge, that is, $0.65 per week, the second part of the statute more nearly fits the unusual facts of this case.

We have carefully considered whether the third portion of the statute is applicable which provides that where, by reason of the shortness of time during which the employee has been in the employment of his employer, it is impractical to compute the average weekly wages by the usual method of computation, regard shall be had to the average weekly amount which, during the first fifty-two weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same or similar work in the community. However, we are of the opinion that this part of the statute is not applicable for the reason that the claimant was not of the same grade as a full-time fireman since he was only a volunteer and he did not ever expect to work full time nor to receive the same amount of compensation as that earned by a full-time fireman either by the hour, day, week or month. His employment was expected to be sporadic, his pay minimal and the amount of time worked indefinite.

Although the result in this case is harsh, we are of the opinion that the statute provides no solution that would be just and fair to all parties and that the problem can only be corrected by legislation so that the employee, employer and carrier will know their rights and liabilities thereunder.

The appellant urges this Court to determine the benefits to which he is entitled by combining his wages as a volunteer fireman with those of his regular employment, $200.00 per week, as a presser at a local garment factory. We have carefully considered this proposal but are of the opinion that we are precluded from so doing by the express wording of the Mississippi Workmen’s Compensation statute (Section 71-3-31) which provides that:

Except as otherwise specifically provided, the basis for compensation under this chapter shall be the average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by fifty-two; . . . (Emphasis added).

At the time of appellant’s injury, he was in the employment of the City of Okolona as a volunteer fireman, and it is on this basis that his compensation must be determined since he does not fall within any exceptions to the statute.

The judgment of the circuit court is affirmed.

AFFIRMED.

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


author: BOWLING, Justice,

text:
    Mack G. GIBBONS v. ASSOCIATED DISTRIBUTORS, INC., d/b/a West Discount Building Materials Company.
    No. 51179.
    Supreme Court of Mississippi.
    May 9, 1979.
    Roberts & Easterling, S. Wayne Easter-ling, Hattiesburg, for appellant.
    Gray, Montague, Jackson, Pittman & Hammond, S. Robert Hammond, Jr., Hat-tiesburg, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Mack G. Gibbons, appeals from a directed verdict rendered against him by the Circuit Court of Lamar County.

Appellant filed his declaration against ap-pellee, Associated Distributors, Inc., d/b/a West Discount Building Materials Company, alleging that appellee owed him a balance of compensation earned through May, 1976. Defendant answered, denying the allegations of the declaration and alleging as an affirmative defense that appellant’s cause of action, if any, was barred by the statute of frauds. At the conclusion of appellant’s evidence, the court sustained the motion of appellee under its plea in bar and held that under appellant’s evidence the claim was barred.

Mississippi Code Annotated section 15-3-1(d) (1972), provides as follows:

An action shall not be brought whereby to charge a defendant or other party:
(d) upon any agreement which is not to be performed within the space of fifteen months from the making thereof; or
unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing.

Appellant’s testimony and documents introduced therewith was the only evidence submitted by appellant. He testified that in 1970 he was induced to move from Fair-hope, Alabama, to Lamar County, Mississippi, under an agreement of employment as manager of appellee’s Hattiesburg, Mississippi, store. Appellee had sixty-seven discount building material stores over the southern states. According to the original agreement for the managing of the Hatties-burg store, appellant was to receive a total of a series of intricate base pay advances per week with a guarantee of a total salary of $45,000 per year. The Hattiesburg store was successful under appellant’s management, and in 1974 the duly authorized representative of appellee requested appellant to move to Jackson, Mississippi, for two years and manage the store there, which store was losing a lot of money each year. According to appellant, he was reluctant to take his children from school and move to Jackson but he agreed to do so in the event his annual guarantee was increased to $55,-000. This was agreed to by appellee and appellant moved to Jackson and took over the store there. According to appellant, the store immediately started making a profit and continued to do so.

The latter part of June, 1975, appellant received a letter dated June 26, 1975, from Stan Moseley, personnel manager for the appellee’s entire company. This letter was as follows:

MEMO TO: Mack Gibbons
SUBJECT: Compensation Adjustment
The Jackson store has been classified as an existing B operation.
Base compensation for General Management at Jackson will be increased from $300 to $365 per week.
Your Profit Manager’s base of $72.12 remains the same. Your Profit Manager’s ROI guarantee decreases from $200 per week to $135 per week.
Car allowance of $50 per month remains the same.
Your guarantee for total performance in 1975 is $_
The adjustment will take place in three periods in approximately equal increments.
August 2nd
October 4th
December 6th
/s/ Stm Stan Moseley

It was appellant’s testimony that by the letter the company was changing the Jackson store classification and operations and was changing his method of compensation and his employment agreement. He noted the changes as shown in the letter and noted that the total guarantee was left blank. He then called by telephone one Charlie White, vice president in charge of the region including the State of Mississippi, regarding what, if any, guarantee he, the appellant, was to receive as a result of the June 26, 1975, letter. According to appellant, White assured him that the guarantee would be $55,000 per year even though changes were being made in the base pay.

The letter of June 26 stated that adjustments in the agreement were to be made on August 2, October 4 and December 6. Pursuant to discovery, appellant had received completed forms regarding his employment with appellee. The multiple style of each of these forms was “New Hire — Notice of Separation — Change of Status — Work Interruption.” Included with these forms for different periods since the time of appellant’s employment was a recapitulation sheet. This showed that appellant’s guarantee was $55,000 per year until the August 2, 1975, adjustment which deleted this item and it was not included in the recapitulation or on the separate sheets thereafter. An analysis of the separate sheets and the recapitulation sheet shows that the various items of intricate base payments were changed as stated in Moseley’s letter. Appellant, in his testimony, explained the basis for the various items of weekly draw. It is sufficient to say that the computation of these are very complicated and it is hard to understand how they were computed. It is clear, however, that there was a definite change in the manner and the amount appellant was to be paid each week after June 26, 1975.

Appellant contends that although the original agreement of May, 1974, for appellant to manage the Jackson store for two years, was not to be performed within a period of fifteen months and therefore came under the provisions of the statute of frauds, that there was a new agreement in June, 1975, which was to be performed within a period of one year. We agree that appellant’s evidence clearly made a question for the jury under this contention.

In Moore v. Smart, 171 Miss. 248, 157 So. 467 (1984), this Court said:

Where an oral contract is unenforceable under paragraph (d) of section 3343, Code of 1930, the parties thereto may, of course, thereafter enter into a new oral contract though identical in terms with the former, but a recognition of the former contract does not result in the formation of a new contract, unless it appears therefrom that the parties intended thereby to enter into a new contract, 1 Williston on Contracts, § 503; 25 R.C.L. 480; 27 C.J. 174-186.

In the case of Flowood Corporation v. Chain, 247 Miss. 434, 152 So.2d 915 (1963), we find the following:

Whether that agreement be referred to as a modification of the original contract or a new contract is not a matter of importance here. It was an agreement, definite in its terms, which satisfied both parties and which was to be performed within a space of fifteen months from the making thereof, and was not within the Statute of Frauds.

We hold that the lower court erroneously found that the only contract was the two-year agreement beginning May, 1974. As stated above, there was ample evidence that a separate and distinct new agreement was entered into the latter part of June, 1975. Even though the written documents discussed above were bolstered by oral testimony, the alleged new agreement was well within the statutory period.

There is another reason why the lower court was in error. The general rule is that complete performance by one party of an oral contract not to be performed within the statutorily prohibited period, takes the contract out of the statute of frauds. Appellant testified that when he gave notice of resignation on May 17, 1976, he offered to stay and would stay on the job the remaining two weeks in the month of May, which would complete the original two-year oral contract. There was sufficient evidence for this question to be presented to the jury.

In Pountaine v. Fletcher, et al., 158 Miss. 720, 126 So. 471 (1930), this Court adopted the foregoing rule of law by stating:

“But the great weight of authority supports the rule that the statute of frauds has no application where there has been a full and complete performance of the contract by one of the contracting parties, and the party so performing may sue upon the contract in a court of law; he is not compelled to abandon the contract and sue in equity or upon a quantum meruit. Particularly is this said to be true where the agreement has been completely performed as to the part thereof which comes within the provisions of the statute, and the part remaining to be performed is merely the payment of money or the performance of some act, the promise to do which is not required to be put in writing.”

The cause is therefore reversed and remanded.

REVERSED AND REMANDED.

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


text:
    JIM WALTER CORPORATION & MID-STATE HOMES, INC. v. William GATES et al.
    No. 51258.
    Supreme Court of Mississippi.
    May 9, 1979.
    Fox & Gowan, John H. Fox, III, Jackson, for appellant.
    Charles “Bo” Little, Tupelo, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellants, Jim Walter Corporation and Mid-State Homes, Inc., complainants below, appeal from an adverse decree of the Chancery Court of Lee County. We reverse and enter judgment here.

Appellants originally filed their cause of action in the Circuit Court of Lee County pursuant to the provisions of Mississippi Code Annotated section 11-38 — 1, et seq. (1972). On motion of appellees the cause was removed to the chancery court and the pleadings were reformed to meet chancery court procedures.

According to the allegations of the bill of complaint, appellant, Jim Walter Corporation, on June 23, 1967, entered into a contract with appellees, William Gates and wife, Glenn Gates, whereby Jim Walter Corporation agreed to construct a residential building on certain property in consideration of a total value therefor payable in monthly installments over a period of 144 months. Simultaneously therewith, Mr. and Mrs. Gates and Rosana Agnew, mother of Mrs. Gates, executed a deed of trust and a promissory note guaranteeing the payment of the purchase price of the building. The contract and the deed of trust gave appellant, Jim Walter Corporation, both a statutory and a contractual lien on the building. It appears that the reason Mrs. Rosana Agnew executed the two later instruments was that she supposedly held a life estate in the land on which the building was to be constructed.

The bill of complaint then alleged that upon completion of the building appellees, William Gates and Glenn Gates, moved into the home and made monthly payments until April, 1974, at which time they were discontinued and no further payments have been made. The reason for this was that it had been determined that Willie B. Agnew, brother of Mrs. Glenn Gates, appellee, owned the real property on which the house was constructed. The Gates have been living in the house since that time without making any payments.

The bill of complaint further alleged that the defendants falsely and fraudulently induced the appellant, Jim Walter Corporation, to construct the house on land of another and “that the defendant, Willie B. Agnew, acting in furtherance of said false and fraudulent representation to your complainants by his relative defendants aforesaid allowed and permitted and acquiesced in the construction of said building and the occupancy thereof upon said land without complaint from 1967 to date.”

Appellees William Gates and Glenn Gates answered the bill of complaint admitting title to the real property in Willie B. Agnew and admitting that for this reason the monthly payments were stopped. They filed a cross-bill of complaint which in effect alleged that Jim Walter Corporation actively participated in agreeing to construct and in actually constructing the house on said land owned by another. The prayer of the cross-bill of complaint merely requested that the court consider the equities of all parties and render a decree in accordance therewith. Jim Walter Corporation answered the cross-bill of complaint and denied that it knew that at the time of the closing of the transaction the real property was owned by another.

In the meantime, the debt evidenced by the contractual instruments was assigned to appellant, Mid-State Homes, Inc., who, as hereinbefore stated, joined in the bill of complaint.

On the day of the trial, all parties stipulated that no testimony would be offered by any party and that the cause would be submitted to the chancellor on the pleadings. He called for briefs and his opinion and order thereon were rendered on October 5,1978. These instruments first stated that “the case was submitted on the pleadings without proof at the suggestion of both complainant and defendant” and “the case having been submitted without proof, it follows that the court’s findings must be based upon the facts provided by the pleadings and upon such facts alone.” The order, however, went further and stated that “resolution of this case is complicated by the absence of proof of material questions. Certain pertinent arguments are made by the briefs, but arguments do not amount to proof,” and “in my opinion they have failed to prove their case and their bill should be dismissed.”

The owner of the property, Willie B. Agnew, did not appear and filed no contest in the cause, although properly served. Included in the record of the cause is a telegram from him stating that he owned the land and was not appearing in the cause. The bill of complaint, as hereinbefore set out, and on which it was agreed to try the cause, stated under oath that the owner, Willie B. Agnew, “allowed and permitted and acquiesced in the construction of said building and the occupancy thereof upon said land without complaint from 1967 to date.” This is undisputed and is the principal determining factor in the cause. This undisputed fact clearly resulted in appellants having an equitable lien on the house and a statutory lien pursuant to the provisions of Mississippi Code Annotated section 85-7-137 (1972). Howie v. Baker, 232 Miss. 661, 100 So.2d 113 (1958); Connolly v. McLeod, 212 Miss. 133, 52 So.2d 473 (1951); Brock v. Kelly, 208 Miss. 323, 44 So.2d 452 (1950); Kelso v. Robinson, 172 Miss. 828, 161 So. 135 (1935); Chears Floor & Screen Co. v. Gidden, et al., 159 Miss. 288, 131 So. 426 (1930).

In Weathersby v. Sleeper, 42 Miss. 732 (1869), it was said:

It has been repeatedly held, that a building or other fixture, which is ordinarily a part of the realty, is personal property when placed on the land of another by contract or by consent of the owner.

In Watkins v. Owens, 47 Miss. 593 (1873), the Court held that a court of equity has the power to enforce the rights of one who owns buildings or improvements situated on the land of another.

It follows, therefore, that after stipulating that the cause be submitted to the lower court on the pleadings alone, the proof is clear that Willie B. Agnew, the owner of the land, “permitted and acquiesced” in the construction of the house on his land. Contrary to the statement of the learned chancellor that “there was no proof” on this principal issue, there could be no other proof under the agreement that undisputed allegations of the pleadings were proof and should have been considered as such.

It follows that appellants should have been given a decree granting them possession of the personal property consisting of the building placed by them on the land in question. We reverse and render a decree here providing that appellants be given possession of the building with permission to remove it from the real property and with the land being left in a reasonably good condition as before removing the building. The cause is remanded to the Chancery Court of Lee County for the issuance of any orders or writs necessary to carry out the mandate of this Court.

REVERSED, DECREE HERE AND REMANDED.

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