author: DOMENGEAUX, Judge.

text:
    James T. COPELLAR, Jr., Plaintiff-Appellee, v. Robert G. YOUNT and David Yount, Defendants-Appellants.
    No. 6557.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Writ Refused Oct. 10, 1978.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendants-appellants.
    Robert L. Salim, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

•This matter is before us for the second time. It concerns itself with a possessory action which was filed by James T. Copel-lar, Jr., plaintiff, against Robert G. Yount and David Yount, defendants, in June of 1976. Judgment was subsequently granted in the District Court in favor of plaintiff and'against the defendants recognizing the former as the legal possessor and entitled to the legal possession of the following described property:

“That certain piece, parcel or plot of ground, together with all buildings and improvements thereon situated and located and being particularly described as the Northeast Quarter (NE Vi) of the Southeast Quarter (SE Vi) of Section 20, Township 11 North, Range 8 West, Natchitoch-es Parish, Louisiana containing 40 acres more or less.”

That judgment was appealed to us by the defendants who alleged error on the part of the trial judge as to his findings of fact and his application of the law. Because this Court decided that the judgment granting plaintiff possession of the described property was not sufficiently descriptive so as to locate it, as required by Article 2089 of the Louisiana Code of Civil Procedure, we did not reach the issues presented by the appeal. Instead, we reversed the judgment and remanded the case to the District Court for a new trial on all issues. We particularly suggested that additional evidence, such as land surveys and plats, be received into evidence in order that the ruling of the Court would include a more adequate property description. See our previous opinion, 344 So.2d 1114 (La.App. 3rd Cir. 1977).

On remand, the trial judge, upon motion of the attorneys for plaintiff, appointed a registered surveyor to survey the property in question in order to determine the extent of plaintiff’s possession. A motion to recall the order appointing the surveyor was filed by defendant David Yount, and, after a hearing, the motion was denied.

Trial on the merits was fixed for July 19, 1977, at which time plaintiff’s attorney was present, but opposing counsel was not. The Court allowed a plat of survey into evidence, which was made pursuant to the Court’s previous appointment of the registered surveyor. The Court took the matter under advisement. It subsequently was shown that defendants’ attorney was absent from the trial because of extenuating circumstances, and, he therefore was granted additional time to make any other offerings in the premises.

Subsequently, on August 16, 1977, plaintiff, alleging that defendant David Yount had allowed a bulldozer to begin clearing operations on the land in litigation, obtained a temporary restraining order restraining David Yount from continuing or allowing the continuance of these operations. The restraining order under its terms and by law, La.C.C.P. Art. 3604, was to expire in 10 days. The order did not provide for a bond, nor was one posted at that time. On August 18,1977, David Yount filed a rule to dissolve the temporary restraining order and for damages because plaintiff did not furnish security as required by La.C.C.P. Art. 3610. Copellar, Jr. then posted a bond on August 23, 1977.

A hearing was held on September 6,1977, for the purpose of taking evidence on the restraining order matters and also in connection with a plea of acquisitive prescription filed by defendant, David Yount, on July 29, 1977. At that hearing, Yount’s attorney formally objected to the Court’s previous allowance into evidence of the aforementioned survey at trial on July 19, 1977. At the termination of the hearing, the District Judge ordered that each side file briefs.

On October 28, 1977, judgment was rendered in accordance with written reasons handed down by the District Judge. The judgment was again in favor of plaintiff, Copellar, Jr., and against the defendants, recognizing Copellar, Jr. as legal possessor, entitled to the legal possession of:

“That certain piece, parcel or plot of ground together with all buildings and improvements thereon situated and located and being particularly described as the Northeast Quarter (NE Vi) of the Southeast Quarter (SE Vi) of Section 20, Township 11 North, Range 8 West, Natchitoch-es Parish, Louisiana, containing forty acres more or less.”

The property was more particularly described by the plat of survey which had been admitted into evidence, which plat was made a part of the description. Additionally, the aforementioned exception of prescription was overruled, attorney’s fees for dissolution of the temporary restraining order were denied, the surveyor’s fee was recognized and taxed as costs, and all costs were assessed against the defendants.

Defendants have appealed suspensively, alleging three errors:

1. The plat of survey should not have been admitted into evidence;
2. The remand was not for the purpose of establishing the dividing line between Sections 64 and 21, and the
evidence on remand failed to properly describe and locate the property in question; and
3. The demand for attorney’s fees in connection with the motion for dissolution of temporary restraining order should have been granted.

1.

Defendants contend that the court appointed surveyor did not comply with the requirements of C.C. Arts. 833, 834, 835, and 838, and, hence, the plat which purported to determine the extent of plaintiff’s possession was not properly admitted into evidence. We disagree. Those Articles deal with surveys to establish boundary lines. Inasmuch as the survey was admitted only to show the extent of plaintiff’s possession, the formalities required by these Articles are not applicable to the instant case. Additionally, we feel, as did the trial judge, that defendants have waived their right to object to the admissibility of the survey because of lack of representative attendance at the trial held on July 19, 1977.

2.

We find that the plat of survey fulfills the requirements on remand. The plat discloses that Section 20, Township 11 North, Range 8 West, Natchitoches Parish, is in fact an irregularly shaped section. The survey commences at an established point, and does, in fact, show the line dividing Sections 20 and 64. The testimony in the original trial was to the effect that the only possession exercised by plaintiff was the cutting and collection of timber on the property, and that it extended to the Seetion line. We conclude, therefore, that the plat of survey adequately locates the property which plaintiff possessed.

3.

The temporary restraining order was obtained on August 16, 1977. The rule on the motion to dissolve the order was made returnable on September 6, 1977. It expired by its own terms and under the law before the hearing. At the hearing, counsel for the Yount defendants offered into evidence the motion which granted the temporary restraining order. No other evidence of any kind was offered or taken. The trial judge denied attorney’s fees. Under the circumstances he did not abuse his discretion. Louisiana Code of Civil Procedure Article 3608; Robinson v. Jackson, 255 So.2d 846 (La.App. 2nd Cir. 1971); Simms v. Liuzza, 168 La. 714, 123 So. 301 (1929).

For the above and foregoing reasons, the judgment of the District Court is affirmed, at defendants-appellants’ costs.

AFFIRMED.

      . Generally, these Articles set out requirements for surveying in boundary actions, i. e., the work is to be done by a land surveyor or a civil engineer licensed in this state, with provisions for a proces verbal; detailed notification is to be given to interested landowners and copies of the work is to be given to interested parties; title papers are to be demanded from the owners, and in case of refusal, the same is to be mentioned in the proces verbal; and notice is to be given by a landowner to adjoining neighbors in order to fix property limits.

      . In this respect, we find that the rationale of the Court in the decision of Roberts Lumber Co. v. Morgan, 136 La. 829, 67 So. 921 (1915) is persuasive here.

      . See our original opinion at 344 So.2d 1114 for a more detailed analysis of the problem.

      . In the original appeal, defendants alleged error on the part of the trial judge as to his findings of fact and his application of the law. As aforementioned, these issues were not reached in view of the remand. On this second appeal, those issues are not specifically raised. Nevertheless we have carefully reviewed the record of the original trial and conclude that there was ample evidence to justify the trial court’s conclusion that plaintiff was entitled to the legal possession of the property in dispute.


source: Caselaw Access Project

license: Public Domain

text:
    Lula Mae MEAUX, Plaintiff-Appellee, v. SOUTHDOWN LANDS, INC., Defendant-Appellant.
    No. 6594.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.

      Silas B. Cooper, Jr. of Cooper & Sonnier, Abbeville, for defendant-appellant.
    Broussard, Broussard & Moresi by Marcus Broussard, Jr., Abbeville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a suit for a declaratory judgment brought by plaintiff in order to have determined the effect of two instruments affecting land situated in Vermilion Parish.

Plaintiff, Lula Mae Meaux, is currently the owner of two adjacent parcels of land through which a canal, operated by defendant, Southdown Lands, Inc., runs. The canal was constructed in 1925. At the time of construction, the land was owned by two separate landowners, Leon Broussard and Davie Meaux, with whom Mr. A. Kaplan, representative of one of Southdown’s predecessor companies, the Hunter Canal Company, negotiated. Separate agreements were entered into by Kaplan with each of the landowners.

Several years later, Davie Meaux purchased the Broussard tract. Plaintiff is Meaux’s daughter, and she acquired both tracts from her father by donation inter vivos and dation en paiement.

Involved in this controversy is the effect of the 1925 documents executed by Kaplan, with Davie Meaux, and with Leon Brous-sard. Plaintiff alleges that these documents conveyed only a servitude of right of way. Defendant, on the other hand, contends that the documents conveyed fee title of the land upon which the canal is situated.

The trial court found that the document executed between Kaplan and Meaux conveyed ownership of the property, but that the document executed between Kaplan and Broussard conveyed only a servitude of right of way. He also overruled exceptions of no cause of action and acquisitive prescription brought by defendant. Judgment was rendered accordingly.- Costs were assessed one-half to the plaintiff and one-half to the defendant. Defendant appeals. Plaintiff answers the appeal contending error in that portion of the judgment which found that the Kaplan to Meaux document conveyed ownership of the land and which assessed her for half of the costs. We affirm.

At the outset, we will dispose of defendant’s contentions concerning error in the overruling of its exceptions of no cause of action and acquisitive prescription. We note that although the specification of errors listed in defendant’s brief includes the failure of the trial court to sustain both exceptions, defendant has not argued the issue in his brief or during oral argument. However, we feel that the following comments are appropriate.

With regard to the exception of no cause of action, this suit was brought to decláre the effects of the 1925 deeds entered into between Kaplan and Meaux, and Kaplan and Broussard. As such it falls within the express provisions of Article 1872 of the Louisiana Code of Civil Procedure. Hence, the trial judge was not in error by failing to sustain this exception.

With regard to acquisitive prescription, we note that this is an action for a declaratory judgment on the construction of two instruments and not a petitory action. Plaintiff is only seeking a determination of the effect of the two instruments. Therefore, the exception of acquisitive prescription is not appropriate at this time.

We now move to the major issue of the case, viz. the interpretation of the two documents in question.

The Meaux-Kaplan document was executed on January 24, 1925, before A. Oliver Landry, Notary Public. It consists of a printed form captioned “CASH DEED,” by which Davie Meaux agreed to sell to A. Kaplan, property described as follows:

“A certain strip of land situated in the Parish of Vermilion, Louisiana, measuring One Hundred (100) Feet wide, east and west, by the full depth of the Northwest Quarter of the Southwest Quarter of Section 8 in Tp. 12, S.R. 3 East, and to be taken on the western portion of said Northwest Quarter of Southwest Quarter of said Section 8 in Tp. 12, S.R. 3 East.
Said strip herein conveyed being bounded north by Zarilda Harrington, south by Leon Broussard, east by Davie Meaux and west by Public Road.”

The document recites that the property was sold with full legal warranties, and with full guarantee against “all troubles, debt, mortgages, claims, evictions, donations, alienations or other encumbrances.

It expressly warrants title and subrogates to the vendee all rights of warranty held by the vendor. The stated consideration was $300.00. The following stipulation, typed into the document, appears at its end:

“It is agreed and understood by the parties hereto that the said A. Kaplan, vendee herein, shall, at the request of the vendor herein, build, or cause to be built or constructed over the strip of land, or right of way herein conveyed, at a place to be designated by the vendee herein, a bridge of sufficient width and strength for the ordinary purposes of traffic.
It is agreed that said bridge is to be constructed as above set forth by the said A. Kaplan, or his assigns or successors.”

The Broussard-Kaplan document was entered on February 28,1925, before the same Notary, A. Oliver Landry. It also consists of a printed form; however, it is captioned “CANAL RIGHT OF WAY,’.’ and its wording is slightly different from that used in the Meaux-Kaplan document. The instrument recites that Leon Broussard sells to A. Kaplan the following property:

“In the Ninth Ward of the Parish of Vermilion, Louisiana: A strip of land Eighty (80) feet wide, lying forty (40) feet on each side of a line described as follows: Beginning at a point twenty feet East of and forty feet South of the Northwest corner of the South Half of South West Quarter of Section Eight (8), Township Twelve (12) South, Range Three (3) East, and running East along and parallel to the North boundary of the said tract 2,122 feet; thence South a distance of 1,277 feet to the South side of said tract, or to middle of the Public Road; all within the aforesaid tract, and containing about six (6.00) acres.
Said strip of land forming a part of a continuous right of way for an irrigation canal.”

The document states that the property was sold with all legal warranties, and also subrogates to the vendee all rights of warranty held by the vendor. The consideration is stated as follows:

“This sale and transfer is made and accepted for the purpose of making possible the construction of an irrigation canal through the property above described and in consideration of the construction of said canal and of the benefits to be derived by the vendor from the construction and operation of said canal.”

On their face, both instruments appear to be acts of sale conveying ownership of land. However, the inartful inclusion of the term “right of way” in the final stipulation of the Meaux-Kaplan document, and in the description of land in the Broussard-Kaplan document has clouded the issue.

The term “right of way” may be used to convey either a servitude of passage or fee title of the land. Whether a servitude or fee title is meant must be determined from an examination of the instrument as a whole. Generally, however, “right of way” means only a servitude. Moore Planting Co. v. Morgan’s Louisiana & T.R. & S.S. Co., 126 La. 840, 53 So. 22 (1910); Damson Oil Corporation v. Sarver, 346 So.2d 1304 (La.App. 3rd Cir. 1977), writ refused 350 So.2d 896 (La.1977); Sohio Petroleum Company v. Hebert, 146 So.2d 530 (La.App. 3rd Cir. 1962), writ refused 243 La. 1004, 149 So.2d 763 (1963); Esso Standard Oil Company v. Texas & New Orleans Railroad Company, 127 So.2d 551 (La.App. 3rd Cir. 1961).

Having examined the documents as a whole, and finding them sufficiently ambiguous to leave in our minds doubt as to exactly what the parties intended, we turn to an examination of extrinsic evidence. C.C. Art. 1956. Sohio Petroleum Company v. Hebert, supra; Esso Standard Oil Company v. Texas & New Orleans Railroad Company, supra.

Our task of examining extrinsic evidence has been made somewhat lighter by our decision in Sohio Petroleum Company v. Hebert, supra, wherein seven criteria, including those which are usually established by extrinsic evidence, necessary to a determination of whether a servitude or fee title is conveyed in situations similar to the instant case were set forth. They are:

1. Consideration recited in the deed;
2. Whether a specific measurement is given to the “right of way;”
3. Whether the party claiming the fee title had an actual need for such title;
4. To whom the property was assessed and who paid the taxes on the property;
5. Whether the grant was made for a specific purpose;
6. Whether the grant is made “in perpetuity” or “forever;” and
7. How the parties to the conveyance, or their heirs and assigns, have treated the property.

We will now compare the evidence in this case to each of these criteria for both documents.

CONSIDERATION RECITED IN THE DEED

The Meaux-Kaplan document provided for a consideration of $300.00 for the approximately three acres of land affected. The Broussard-Kaplan document does not specify a cash sum. However, the document does state that the consideration for the 6 acres of land affected was the construction of an irrigation canal.

We note, however, that actually the equivalent of $150.00 in rice was paid by Kaplan to Broussard, although this is contained in a separate instrument and not in the deed itself. This ancillary document reads as follows:

“In consideration of Leon Broussard deeding this day to A. Kaplan, a right of way along part of his north line and also through his land, situated in the Ninth Ward of Vermilion Parish, Louisiana, measuring 80 feet wide, and forming about six (6) acres of land; the said A. Kaplan hereby obligates himself, his heirs or assigns, to pay in rough rice of his crop of the year 1925, when harvested, at the market price for said rice at the time of harvest, the sum of One Hundred and Fifty ($150.00) Dollars; the price of said rice to be governed by the market price prevailing at Abbeville, La., at the time of delivery for such grade and variety of rice given in payment.” [Italics added]

Of particular interest is the fact that the italicized language indicates that only a servitude of right of way was granted, because in addition to expressly stating “right of way,” the land is described as belonging to Broussard. Also of interest is the disparity in the dollar values received by Meaux and Broussard in the respective transactions. Meaux received $300.00 for his transaction involving approximately 3 acres of land; whereas Broussard received $150.00 for his transaction involving approximately 6 acres of land.

SPECIFIC MEASUREMENT

Both instruments in question contain specific measurements of the property and descriptions of. the land.

WHETHER THE PARTY CLAIMING FEE TITLE HAD AN ACTUAL NEED FOR SUCH TITLE

It is obvious from both the property description in the Broussard-Kaplan document and the final stipulation of the Meaux-Ka-plan document, that the building of an irrigation canal was anticipated by all parties. Kaplan, therefore, needed only to acquire a servitude of right of way. Full ownership of the land was not necessary.

ASSESSMENT AND TAXES

In 1924, the assessment for the Broussard and Meaux tracts consisted of 80 acres and 40 acres, respectively. The assessment for the Meaux tract in 1925 was only for 37 acres. Thus, a reduction of 3 acres for the portion purportedly sold to the canal company was shown. However, the assessment for the Broussard tract in 1925 remained at 80 acres and did not reflect the reduction for the approximately 6 acres affected by the Broussard-Kaplan document.

However, when Meaux subsequently purchased the Broussard tract from Broussard in 1937, the assessment was changed to 73.30 acres, apparently reflecting the approximate 6 acres affected by the Brous-sard-Kaplan document. The assessment was again changed in 1949 when Meaux’s daughter, plaintiff herein, acquired both tracts from her father. For some unexplained reason, the assessment on the original Meaux tract was decreased to 34 acres. However, in 1958, the assessments for both the original Meaux tract and the original Broussard tract were increased to 40 acres and 80 acres, respectively. In 1961, the tracts were lumped together to provide for an assessment of 120 acres. In 1963, for an unexplained reason, the acreage was increased to 160 acres.

With regard to defendant’s tax records, the Vermilion Parish Police Jury passed a resolution in 1925 exempting the canal from taxation for 10 years. The first assessment came in 1937, and it appears that defendant and its predecessors have been assessed for taxes on their canals from that time until the date of the filing of this suit.

WHETHER THE GRANT WAS MADE FOR A SPECIFIC PURPOSE

The Meaux-Kaplan document contains no language which would indicate that the conveyance was made for a specific purpose. There is no limiting language in the instrument, except for the final stipulation which provides for the construction of a bridge. This of course would indicate the anticipation of the construction of an irrigation canal. However, at no place in the instrument is there language which limits the use of the land.

On the other hand, the Broussard-Kaplan document expressly states the following:

“This sale and transfer is made and accepted for the purpose of making possible the construction of an irrigation canal through the property above described.

There can be no doubt, therefore, that the purpose of this conveyance was the construction of an irrigation canal.

WHETHER THE GRANT IS MADE “IN PERPETUITY” OR “FOREVER”

This factor is significant because it has been indicated in the jurisprudence that a grant “in perpetuity” connotes only a limited grant and not a sale in fee simple; whereas a grant “forever” connotes an unlimited grant and a sale in fee simple. Noel Estate, Inc. v. Kansas City Southern & Gulf Ry. Co., 187 La. 717, 175 So. 468 (1937); Esso Standard Oil Company v. Texas & New Orleans Railroad Company, supra.

Here, both instruments expressly state that the grant is forever.

HOW THE PARTIES TO THE CONVEYANCE, OR THEIR HEIRS AND ASSIGNS, HAVE TREATED THE PROPERTY

The first document to which we look under this criterion is the sale of the Brous-sard tract from Broussard to Meaux in 1937, which is included in the record. The instrument describes the property sold as follows:

“One certain tract of land lying and being situated in the Ninth Ward of Vermilion Parish, Louisiana, containing seventy-three and 30/ioo acres, more or less, and being designated as the South Half of Southwest Quarter of Section eight, Township twelve south, range three east, after deducting therefrom rights of way for irrigation and roads, being bounded on the North by Irrigation Canal and Amelie Castro, South by Public Road, East by Public Road and West by Public Road. Together with all buildings and improvements thereon situated or thereto.”

We think it significant that Broussard, an original party to the Broussard-Kaplan document, specified that the land only contained 73.30 acres, instead of the original 80 acres owned prior to the execution of the Broussard-Kaplan document. However, it should be noted that when Meaux conveyed the Broussard property to his daughter in 1949, the instrument purported to convey 80 acres.

The record also contains extensive evidence of acts of ownership exercised by defendant or its predecessors. In 1939, a mineral lease was granted on the property by the Hunter Canal Company to the Continental Oil Company and the Republic Production Company. In 1960 a pipeline servitude was granted to the Riverside Oil Company by Acadian-Vermilion Rice Irrigating Company, Inc., one of defendant’s predecessor companies, on the canal in the Brous-sard tract. Also in 1960 there was a compromise agreement and amendment between Continental Oil and Acadian-Vermi-lion Rice Irrigating Company, relative to the original 1939 lease mentioned above. In 1962 Acadian-Vermilion Rice Irrigating Company granted another pipeline servitude on the Broussard tract to the Continental Pipeline Company. Finally, the record in this case contains a 1965 Conservation Order in which Acadian-Vermilion Rice Irrigating Company is shown to have been allocated mineral production royalties for a unit, including a portion of the canal, partially situated on the Broussard tract.

After reviewing the evidence and the law in this case, we reach the following conclusions. With regard to the Meaux-Ka-plan document, we think that the trial court was correct in its finding of a sale of the property in fee simple. The instrument is captioned “CASH DEED.” The assessment on the property was changed from 40 acres to 37 acres immediately after its execution. Furthermore, the instrument contains no language, other than that contained in the final stipulation, which would indicate that merely a servitude instead of fee title was intended to be conveyed. Looking to the totality of the circumstances, we feel that the factors lean toward a finding of an intent to convey fee title.

With regard to the Broussard-Kaplan document, we feel that the trial court was also correct in finding that this conveyed a servitude. The document is captioned “CANAL RIGHT OF WAY.” The property description contains language which attempts to limit the use of the property, and the instrument expressly states that the purpose of the conveyance was to construct an irrigation canal. The separate agreement by which Kaplan agreed to pay to Brous-sard $150.00 in rice clearly refers to the land as Broussard’s and states that it was given for the granting of a right of way. Looking to the totality of the circumstances, we feel that the factors lean toward a finding of an intent to convey a servitude.

We are well aware that there are factors surrounding both documents, especially the Broussard-Kaplan document, which could be used to argue positions contrary to those reached by the trial judge and by us. The questions are extremely close. The criteria involved in cases of this sort simply are not subject to precise comparisons. Having examined the documents, in light of the other evidence contained in the record, we cannot say that the trial court was erroneous in its conclusions, and, therefore, we affirm.

The final matter to be disposed of is the assessment of costs one-half to plaintiff and one-half to defendant. The assessment of costs rests within the discretion of the trial court. Louisiana Code of Civil Procedure Article 1920. Considering the outcome of this suit, we cannot say that the trial judge abused his discretion.

For the above reasons the judgment of the district court is affirmed at defendant’s costs.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . Actually, plaintiff joined as defendants all parties alleged to have mineral interests in the subject property. These parties did not actively participate in the suit. For simplicity, we will refer only to the primary defendant, South-down Lands, Inc., throughout this opinion.

      . Article 1872 provides:
      “A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”


author: CUTRER, Judge.

text:
    Carlton H. DEVILLE, Plaintiff-Appellant, v. Dale Ellen GAUDET, Defendant-Appellee.
    No. 6595.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Tate & Tate, Paul C. Tate, Mamou, for plaintiff-appellant.

      Jules R. Ashloek, Ville Platte, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

From a denial of a motion for new trial, plaintiff appeals. The trial court judgment awarded plaintiff a divorce but granted custody and an increase in child support payments to the defendant.

Plaintiff and defendant were married in 1974. Of the marriage, one child was born. In March, 1977, plaintiff obtained a judgment of separation from bed and board. This separation decree awarded temporary custody of the minor child to defendant and required plaintiff to pay child support in the amount of $80.00 per month. On or about September, 1977, while legally separated, defendant and child began living with one Jerry Barnett. Plaintiff filed a petition for divorce in November, 1977. This petition prayed for a divorce from the defendant on the grounds of adultery, temporary custody of the minor child, and for a judgment awarding him full care, custody and control of the minor child. Attached to the petition was a rule to show cause why plaintiff should not be awarded temporary custody of the child. The rule was set for hearing on December 15, 1977.

Defendant filed an answer and reconven-tional demand on November 30, 1977. The answer admitted that she and her child had been living with Barnett and further declared that she would marry Barnett as soon as the divorce was granted. Defendant’s reconventional demand prayed for the following: that the trial on the merits be combined with the rule set for December 15, 1977, that a decree of divorce issue enabling her to remarry, that she be granted permanent custody of the minor child, and that child support payments be increased from $80.00 to $100.00 per month. No order was signed combining the trial on the merits with the rule for temporary custody. After the December 15th hearing, judgment was rendered granting plaintiff a divorce, awarding custody to defendant and increasing child support from $80.00 to $100.00 per month. On December 16, 1977, plaintiff filed his answer to defendant’s re-conventional demand. On December 31, 1977, defendant and Jerry Barnett were married.

Appellant contests on appeal the validity of the divorce, custody and child support decrees. Appellant argues he was only prepared to present evidence on the temporary custody issue at the hearing on the rule and that proper notice was not given of the court’s intention to rule on the other issues. He lastly complains that the trial judge erred in awarding custody to the defendant when she was living in adultery.

We first concern ourselves with the validity of the custody and child support awards. By virtue of the judgment of separation, defendant had previously been granted temporary custody of the minor child and plaintiff was ordered to pay $80.00 per month in child support. The December 15th hearing was a rule to show cause why temporary custody should not be removed from the defendant and given to the plaintiff. Defendant’s reconventional demand prayed for an award of permanent custody and an increase in child support payments. The trial judge granted the custody and child support requested in defendant’s re-conventional demand. The trial court judgment stated that custody would be granted to the defendant and that child support would be increased from $80.00 to $100.00 per month. We interpret this judgment as granting permanent custody to defendant since she already had temporary custody of the child. If the trial judge had only been deciding the issue of temporary custody, the judgment would have reflected that the custody request of the plaintiff was denied.

LSA-C.C.P. Art. 1571 prohibits the assignment of ordinary proceedings for trial except after answer is filed. Any judgment entered not in compliance with this provision is null and void. Jackson v. Hannie, 225 So.2d 385 (La.App. 3rd Cir. 1969); Ellis v. Evans, 247 So.2d 173 (La.App. 3rd Cir. 1971).

In this case, defendant’s reconven-tional demand praying for permanent custody and an increase in child support was filed as an ordinary proceeding. Although defendant attempted to convert the adjudication of these issues to a summary proceeding, no order was ever obtained combining these issues with the rule for temporary custody. Plaintiff’s answer to the re-conventional demands of defendant, although filed within time limits, was not filed until after the adjudication of the permanent custody and child support issues. The trial of the issues of these ordinary proceedings before an answer was filed rendered the judgment void as to those issues. Therefore, we reverse and set aside that portion of the trial court’s judgment granting defendant’s reconventional demands for permanent custody and an increase in child support.

As to the divorce, we do not agree with plaintiff that the judgment granting him a divorce on the grounds of adultery should be set aside. The divorce was not contested by the defendant. Unlike the issues of custody and child support, the divorce was properly joined for trial when defendant filed an answer admitting the adultery allegation. Sufficient testimony was presented at the hearing establishing the fact that defendant was guilty of adultery. Although this was a hearing on a rule, we fail to see how plaintiff was prejudiced by the trial judge awarding him the divorce he had prayed for in his petition. We therefore affirm the portion of the trial court’s judgment granting the divorce to the plaintiff.

Since we set aside the award of permanent custody to defendant, we do not reach the issue of whether the trial court erred in awarding custody of the child to the defendant who was living in adultery at the time of trial.

For the above reasons, the trial court judgment is affirmed insofar as it grants the judgment of divorce to plaintiff. Judgment is reversed and set aside insofar as it grants permanent custody to defendant and increases plaintiff’s child support payments from $80.00 to $100.00 per month. Temporary custody and child support remains as set forth in the judgment of .separation. This suit is remanded to the trial court for any further proceedings not inconsistent with the views expressed herein. Costs of this appeal are assessed equally between plaintiff and defendant.

AFFIRMED IN PART; REVERSED AND SET ASIDE IN PART.

      . LSA-C.C.P. art. 1571 provides:
      “The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:

        “(1) Require adequate notice of trial to all parties, and
      “(2) Prescribe the order of preference in accordance with law.
      “These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed." (Emphasis supplied)


author: REDMANN, Judge.

text:
    Isaac JIMCOILY v. The STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS et al.

    Nos. 8600 to 8603.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 11, 1978.
    Rehearings Denied Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.

      Darryl W. Bubrig, Sr., Buras, for Patricia Pugh and Jewitt Pugh, husband and wife, and Jewitt Pugh, d/b/a Lower Coast Safety Light Service.
    George J. Dowd, Chalmette, for Sonja Smith.
    Fernand L. Laudumiey, III, New Orleans, for Loyd G. Mangum.
    Alvin J. Liska, New Orleans, for Dept, of Highways.
    Robert A. Keily, New Orleans, for Isaac Jimcoily.
    Richard T. Regan, Metairie, for Donald G. Lambert Contractor, Inc., and Maryland Casualty Co.
    Before REDMANN, SCHOTT and BEER, JJ.

       (Consolidated with Loyd G. Mangum v. State, etc. James W. Smith v. State, etc. Sonja Smith, widow v. State, etc.)

   REDMANN, Judge.

We reverse judgments against the State Department of Highways which reasoned that Highways’ placing of detour signs for 2,000 feet before a changeover from two-lane to four-lane highway was inadequate and caused an accident. We also reverse the judgments’ dismissal of claims against the driver who failed to see and follow the signs and crashed through the detour barricade head-on into another automobile in the left oncoming lane.

Our fundamental conclusion is that the highway signing, like the use of a 180-foot-long crossover rather than a longer one for traversing the 24-foot median (of which plaintiffs also complain), was not a cause-in-fact of the accident, a factor “but for” which the accident would not have happened. See Pierre v. Allstate Ins. Co., 1970, 257 La. 471, 242 So.2d 821.

We preliminarily dispose of plaintiff Isaac Jimcoily’s argument that, for failure to comply with a pre-trial order to list witnesses and describe evidence, Highways should not have been allowed to present evidence at trial. To prohibit a defendant from participating in a hearing is the same as not to afford him a hearing, which is a denial of due process impermissible as a penalty for non-compliance with pre-trial procedure; Louisiana Hoop Co. v. Hood, La.App. 1 Cir. 1974, 292 So.2d 808. See also Boudreaux v. Yancy, La.App. 1 Cir. 1971, 256 So.2d 340.

State Highway 23 in Plaquemines parish was being converted from an undivided two-lane highway into a divided four-lane highway with a 24-foot median by the addition of a second two-lane roadway 24 feet from and parallel to the old highway. The accident occurred near a point where northbound traffic on the old, two-lane highway was being diverted across the median through a 180-foot-long, paved crossover onto the new two-lane roadway. To the north of that crossover the old two-lane roadway served south-bound traffic exclusively and the new two-lane roadway served north-bound traffic exclusively.

North-bound driver James Smith made no attempt at the necessary turn through the 180-foot crossover, but instead drove into the barricade which blocked the right lane of the old roadway, veered into the left lane of the old roadway and, continuing to travel for 175 feet, crashed into an oncoming car head-on with so much force that engine and front passenger compartments of both cars (a Buick Electra and a Ford Fairlane) were virtually demolished.

James Smith’s brother Carley was killed. James Smith, his passenger Loyd Mangum and Isaac Jimcoily, the driver of the southbound car, were seriously injured.

Carley Smith’s widow and the three injured persons sued Highways and its contractor, alleging that the accident was caused by inadequate signing. James Smith was named a codefendant by the other plaintiffs. The trial judge reasoned that the signing was inadequate and rendered judgment against Highways alone in favor of all plaintiffs. Highways, Jimcoily and both Smiths appealed. Mangum answered Highways’ appeal.

The signs facing north-bound traffic as it approached the change from two to four lanes included:

(1) At about 2,500 feet before the change, “Speed Limit 45 mph” and “Do Not Pass”;
(2) At 2,000 feet, “Detour Ahead” and “Speed Limit 45 mph”;
(3) At 1,500 feet, “Detour 1500 Ft.”;
(4) At 1,000 feet, “Detour 1000 Ft.” (and “Two Way Traffic”);
(5) At 500 feet, “Detour 500 Ft.” and “Keep Right” with right arrow;
(6) At 200 feet, “Keep Right” with right arrow (a sign larger than the last); and
(7) At the far side of the crossover, a barricade (across the right lane of the old roadway) with three black and white striped, reflector-dotted horizontal boards upon which were mounted a large right arrow and two flashing “high-intensity” lamps.

The trial judge took judicial cognizance “that there were some 40 accidents at that scene.” However, plaintiff Jimcoily’s exhibit listing accidents in the.vicinity includes those happening up to nine miles away and only lists 24 or 25. That exhibit only listed one accident at the same highway milepost at the time of this accident (the same day; conceivably this accident itself) and only two others at any time (they were six and ten weeks later). A deputy sheriff testified that there had been five or six but gave no details (other than “some [drivers] were intoxicated, some were not”). Evidently the 40 accidents the trial judge knew of were not readily discoverable by Jimcoily. To take judicial cognizance of matters that are not readily discoverable by the litigants puts them at the great disadvantage of not being able to explain or even argue the implications of those matters. Moreover, a reviewing court is not able to take judicial cognizance of those other accidents because it has no means to ascertain their existence or, more important, their circumstances from which alone inferences can be drawn as to their causes-in-fact. The simple fact that accidents have occurred is not probative of their causes; Petree v. Crowe, La.App. 2 Cir. 1973, 272 So.2d 399, writ refused La., 274 So.2d 709. The record thus will not support any inference from prior accidents that Highways by its unspecified fault created some unspecifiable trap which caused those accidents and this one as well. Nor does this evidence justify a conclusion that the highway signing or a too-short crossover was a cause-in-fact of this accident.

The trial judge also cited the testimony of one nearby resident that reflectors on the barricade “didn’t shine too good” and “you can’t see [the high-intensity flashing lights] too good” on rainy nights like the night of this accident. The judge concluded that the signing was inadequate to warn motorists.

We disagree. Diminished visibility of a barricade on rainy nights does not make the overall control system misleading or a trap to motorists. No reasonably cautious motorist, especially after seeing the first detour sign (as James Smith did) and after having passed through this very detour twice daily to and from work during the previous 17 days (as James Smith did) would have failed to see all three other “Detour” signs 500 to 1,500 feet before the barricade. No reasonably cautious motorist could have come to 500 feet from the barricade without knowing that he would have to leave his lane of travel. That the signs did not, until the barricade itself, indicate the direction of the detour’s turn (one of plaintiffs’ complaints) is immaterial: the reasonable driver would know that some turn must be made, and would not be misled by the signs or the absence of directional arrow signs into believing that he would not have to turn. He would not be trapped into believing that he should proceed full speed, straight ahead into the barricade. At a minimum, the reasonable driver would have reacted to the detour warning signs by being on the lookout for the detour, and if less able to stop in the distance at which he saw the barricade because of the rain, he would at least be able to slow enough to make the crossover turn easily.

Nor was the absence of a sign reducing speed to 20 mph an accident-causing fault. Smith testified that the only one of the signs he saw was the one reading “Detour Ahead” 2,000 feet before the barricade; he saw no other signs. There is no reason to suppose that a driver who had passed up four detour signs without paying them any heed would have reacted to a 20 mph sign. To the reasonable man, “detour” might be more suggestive of need for caution than “20 mph”, because a detour might entail a sharp turn-off onto a temporary roadway of markedly inferior surface. Furthermore, the accident was not the result of James Smith’s going 45 mph (if that slow) rather than 20 mph. He went through the barricade because he did not turn into the crossover and made no attempt to make that turn. If there had been a 20 mph sign and if he had slowed to 20 mph he still would have gone through the barricade, unless he would also have turned. No evidence suggests he would have.

We similarly conclude that the 180-foot length of the crossover was not a cause-in-fact of the accident. James Smith had an admitted 2,000-foot warning of the approaching detour (with added warnings of each 500 feet nearer the detour) and he did nothing. He made no effort to turn for the 180-foot crossover; it was not too short for him to make the turn: he did not try to make the turn. There is no evidence to support an inference that he would have turned for a 1,000-foot crossover.

For lack of any evidence from which it could be correctly inferred that inadequate signing (or inadequate crossover) was a cause-in-fact of this accident, the judgments against Highways must be reversed (and plaintiffs’ argument that the contractor was also responsible for the signing need not be considered).

There is more than ample evidence, already alluded to, to support the conclusion that driver James Smith was at fault. We base our conclusion, however, primarily on the presumption that a driver who runs into another in the other’s traffic lane is at fault, and to escape liability must exculpate himself, Rizley v. Cutrer, 1957, 232 La. 655, 95 So.2d 139. James Smith did not overcome that presumption. The judgments dismissing the claims of Jimcoily and Mrs. Carley Smith against James Smith must be reversed. (Mangum did not appeal.)

Jimcoily’s complaint that the judgment did not give him $3,984 advanced to him by the Louisiana Health and Human Resources Administration (and by it recovered through intervention, R.S. 46:446) is without merit. Unlike medical expenses recovered by Charity Hospital by its intervention, HHRA’s advances of money to a disabled tort victim are not damages caused by the tort. They are no more recoverable than loans by a bank to the tort victim. The victim is made economically whole by the award for lost earnings; to give him both earnings and the money borrowed to replace the missing earnings would allow double recovery.

On quantum, Mrs. Carley Smith complains of the omission of the $211,192.14 judgment in her favor to include an amount for loss of love and affection. However, that award apparently included the full amount her deceased husband would have earned, rather than just the loss of support. This substantial error in her favor approximately compensates for the error of failing to award general damages for loss of love and affection.

Despite other complaints, we view quantum as within the “much discretion” of C.C. 1934(3); Coco v. Winston Ind., Inc., La.1977, 341 So.2d 332.

Expert witness fees were apparently omitted from the judgments by oversight. We therefore fix and award those fees (without increment for private plane travel by one doctor from Houma).

The judgments appealed from are reversed insofar as they cast the Department of Highways and absolved James Smith, and there is judgment dismissing all demands against Highways at plaintiffs’ costs, and the judgments in favor of Isaac Jimcoily and Sonja Smith are amended to make James Smith the party cast, at his cost, including expert fees of $200 for Dr. Gary and Dr. Wolfson and $100 for Messrs. Hyde, Merritt and Andre.


text:
    Greg Eugene MILSTID v. STATE of Mississippi.
    No. 50640.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Rehearing Denied Sept. 13, 1978.
    Alfred Lee Felder, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    H. B. MARSHALL et ux. v. Claude MAY.
    No. 50712.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Clayton Lewis, Clayton Taylor Lewis, Philadelphia, for appellants.
    Alford, Mars & Thomas, Herman Alford Philadelphia, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   AFFIRMED.


text:
    Linda TUGGLE (Daumer) v. Paul BARRETT, Sheriff of Warren County, Mississippi.
    No. 51124.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Rehearing Denied Nov. 15, 1978.
    Prewitt & Prewitt, John W. Prewitt, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   AFFIRMED.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Mrs. Inez WALLER.
    No. 50634.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Rehearing Denied Nov. 15, 1978.
    Blair & Mackey, Oscar P. Mackey, William K. Duke, Oxford, for appellant.
    Omar D. Craig, Oxford, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   REVERSED AND RENDERED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM, LEE and COFER, JJ., concurring.


text:
    Willie C. HARRIES, Jr. v. STATE of Mississippi.
    No. 50766.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    Rehearing Denied Nov. 15, 1978.
    Banks & Nichols, Fred L. Banks, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   AFFIRMED.


text:
    Bobby BERRYHILL v. STATE of Mississippi.
    No. 50777.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Thomas H. Comer, Jr., Booneville, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   REVERSED AND APPELLANT DISCHARGED.

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

SUGG, J., took no part.


text:
    Jimmie HOGAN v. STATE of Mississippi.
    No. 50693.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Clayton Taylor Lewis, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   AFFIRMED.

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

SUGG, J., took no part.


text:
    WILLMUT GAS & OIL COMPANY v. H. C. DUCKWORTH.
    No. 50671.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Rehearing Denied Nov. 15, 1978.
    Pope & Van Slyke, Moran M. Pope, Jr., Hattiesburg, for appellant.
    Harris Sullivan, Jr., Mendenhall, for ap-pellee.

      Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   AFFIRMED.


text:
    James E. GALLION v. STATE of Mississippi.
    No. 50843.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Joe M. Buchanan, Indianola, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   AFFIRMED.


author: BROOM, Justice, for the Court:

text:
    WESTINGHOUSE CREDIT CORPORATION v. MOORE & McCALIB, INC., et al.
    No. 50499.
    Supreme Court of Mississippi.
    Aug. 16, 1978.

      Thomas, Price, Alston, Jones & Davis, Alex A. Alston, Jr., Jackson, for appellant.
    Parker, Averill, Funderburk & Butts, Roy 0. Parker, David 0. Butts, Jr., Tupelo, for appellees.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   BROOM, Justice, for the Court:

“Floor planning” (financing) of mobile homes led to this suit by Westinghouse Credit Corporation (Westinghouse herein) against appellees, Moore & McCalib, Inc. (M & M herein), Lee Moore, James R. Moore and Charles E. Simmons (defendants and counterclaimants). Trial in the Circuit Court of Lee County resulted in a directed verdict in favor of all the defendants on Westinghouse’s suit, and a directed verdict in their favor on their counterclaim against Westinghouse (appellant) in the sum of $4,938.15. We reverse.

M & M is a sales outlet firm offering mobile home dwelling units to the general public. The two Moores and Mr. Simmons (officers of M & M) are defendants to the Westinghouse suit, along with M & M. Westinghouse’s declaration alleged that on May 11, 1972, M & M and its officers entered into an agreement with Westinghouse whereby upon their request and at Westinghouse’s option, Westinghouse would advance funds to enable M & M to purchase the homes for resale. On October 6,1972, a similar agreement was also executed between Westinghouse and the individual defendants. Under this typical floor planning agreement, Westinghouse took a “floating” security interest in M & M’s inventory of mobile homes and, as a home was sold, M & M was to pay Westinghouse the amount due on that unit. Repayment on all advances was due in ninety days unless the terms were extended by Westinghouse. Westinghouse filed a suit alleging that M & M and its officers were indebted to Westinghouse in the amount of $6,908.42; copies of the two agreements were attached to the declaration. M & M and its officers answered (denying any debt to Westinghouse) and counterclaimed for $4,938.15, which they alleged was the amount due for repossessing five mobile homes for Westinghouse pursuant to the agreement between the parties. Westinghouse argues that (1) the lower court erroneously directed a verdict against it on its suit, and (2) the court erred in granting the directed verdict in favor of M & M as to the counterclaim against Westinghouse.

At the trial, Westinghouse introduced the U.C.C. agreements signed by M & M and by the three individual defendants. Then Westinghouse attempted to introduce an inventory billing statement to which M & M successfully objected, pointing out that it was not attached to the declaration as required on an open account suit. M & M asserted (and now argues) that Mississippi Code Ann. § 11-7-47 (1972) and § 11-7-45 (1972) precluded admission of the billing statement into evidence. Westinghouse then attempted to introduce oral testimony as to the amount due, but M & M successfully objected on the basis of the best evidence rule and that the answer called for a legal conclusion. In that situation, Westinghouse rested and the court granted a directed verdict in favor of M & M, after which the trial proceeded on the counterclaim.

WAS THE SUIT OF WESTINGHOUSE UPON AN OPEN ACCOUNT, REQUIRING THAT THE INVENTORY BILLING STATEMENTS BE ATTACHED TO THE DECLARATION IN ORDER TO BE ADMISSIBLE INTO EVIDENCE? The question is critical as to Westinghouse’s suit because it attempted to prove the amount of its claim by introducing inventory billing statements which were not filed with or attached to the pleadings. M & M objected to Westinghouse placing into evidence the inventory billing statements and relied upon Mississippi Code Ann. § 11-7-45, supra, which provides that in open account suits there shall be annexed to or filed with the declaration “a copy of the account or bill of particulars . . .” § 11-7-47, supra, provides:

A copy of any writing of which profert is made, or ought to be made shall be annexed to or filed with the pleading . . . and evidence thereof shall not be given at the trial unless so annexed or filed .

“Open account” has been given various definitions, but it is generally held to mean an account based on continuing transactions between the parties which have not been closed or settled but are kept open in anticipation of further transactions. We hold that the declaration of Westinghouse before us did not present a suit based upon an open account. Scrutiny of the declaration indicates that it is a suit sounding in contract, and although the declaration should have stated the amount of Westinghouse’s claim with greater particularization, there was not filed by M & M any demurrer, request for discovery, motion for bill of particulars, or other challenge. Mississippi Code Ann. § 11-7-35 (1972) provides that a declaration shall state the cause of action in ordinary and concise language and shall be sufficient if it contains “sufficient matter of substance for the court to proceed . . . .” Clearly, the declaration of Westinghouse complied with § 11-7-35, and was based upon two written contracts, the execution of which was not denied. Oral argument of M & M noted that the charge of “breach of contract” does not appear in the declaration. Nevertheless, we hold that no magic words such as “breach” are necessary where, as here, the allegations in simple language state a cause of action as required by § 11-7-35.

Barron v. Murdock Accept. Corp., 240 Miss. 521, 127 So.2d 878 (1961), held that the suit there which arose from a “floor-planning” financing method similar to the one in this case was a suit based on contract rather than open account. Barron stated:

[T]he suit was one for balances allegedly due on certain written contractual obligations which were filed as exhibits to the bill of complaint. (§ 1754, Code of 1942, is now § 13-1-141 Miss.Code Ann. (1972)).

Upon the pleadings and record presented, Mississippi Code Ann. §§ 11-7-45, supra, and 11-7-47, supra, are not germane and constitute no basis for the directed verdict against Westinghouse on its suit in contract. It was error for the lower court to exclude the inventory billing statements and direct a verdict against Westinghouse.

DID THE LOWER COURT ERR IN DIRECTING A VERDICT IN FAVOR OF M & M AND THE OTHER INDIVIDUAL DEFENDANTS ON THEIR COUNTERCLAIM? In support of their counterclaim, M & M (and the other appellees) placed into evidence five invoices as proof of their claim for damages in repossessing and refurbishing mobile homes which they had repossessed. M & M’s legal counsel objected to Westinghouse inquiring as to any of these particular invoices on the ground that an itemized sworn account was filed by M & M as counterclaimant which Westinghouse did not deny by affidavit. The court sustained objection of M & M’s counsel on the basis of Mississippi Code Ann. § 13 — 1— 141 (Supp.1972), which provides:

Affidavit to correctness of account entitles affiant to judgment.
A person desiring to institute suit upon an open account in his favor, may make affidavit to the correctness of such account, and that it is due from the party against whom it is charged. In any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at the trial term of the suit, unless the defendant make affidavit and file with his plea that the account is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment only for such part of the account as the defendant by his affidavit shall not deny to be due. .

To be within the purview of the terms of § 13-1-141, the account must be an open account as known to the law. Here the invoices filed by M & M do not constitute any open account; the invoices do not consist of a connected series of transactions detailing debits and credits between the parties which are kept unclosed with the expectation of further transactions. The mere fact that the invoices are attached to the counterclaim does not convert the action to an open account suit.

Cross-examination of Lee Moore produced the following:

Q. And as I understand it then, as you picked up each' home on their direction and you did whatever was necessary and you sent them a bill on that particular one?
A. That’s correct.
Q. And they would handle each one as they came to their office individually, as far as you know?
A. Well, sometimes they would handle it one way and sometimes another. Occasionally we would do the repairs on it and if we sold the unit, well then, the expense that had occurred against the house in repairs would be deducted from the proceeds of the contract, in other words, settlement would be made at the time of the sale; but, in these particular units here we didn’t sell them so there never was any consideration given.
Q. All right, sir. My question is, as far as you can recall about your dealings with Westinghouse Credit, as you pick up a home on the direction of Westinghouse Credit and did some work and you would bill them for that particular one, it might be one at a time or it might be six; but, that particular one would be billed at the time that the work was done?
A. That’s right.
Q. And each one was handled in separate, as a separate item?
A. Normally speaking that’s right.

It appears from the foregoing that there was an agreement between Westinghouse and M & M that when a purchaser defaulted in payments, Westinghouse would call M & M to repossess the trailer, refurbish if necessary, and then either Westinghouse or M & M would sell the trailer, in which case Westinghouse would settle immediately by crediting M & M’s account with the fees. If M & M sold the home, it would deduct the expenses from the selling price and forward the remainder to Westinghouse.

This course of dealing demonstrates that the counterclaim of M & M arose out of their contractual relations giving rise to a series of disconnected events which both parties intended to be settled on an individual basis. Here Westinghouse answered the counterclaim asserted against it and specifically denied that it owed the counter-claimants any sum whatever for each of the five invoices listed and attached to the counterclaim. Witness Wiley Williamson, Credit Manager for Westinghouse, testified that the invoices attached to the affidavit had never been seen in the Westinghouse office, and that he looked at each file involved and had never received billings in connection with the particular mobile homes listed in the affidavit and attachments. According to Williamson, M & M had never been asked to pick up these particular mobile homes. The testimony indicates that whenever Westinghouse desired that a mobile home be repossessed, it notified M & M who would handle each repossession as a separate item and then bill Westinghouse for the cost of repossession and refurbishing the mobile home. In actuality the counterclaim of M & M grew out of agreements or contracts between the parties, and the counterclaim does not fit any legal definition of open account.

Upon the state of the pleadings and upon these facts, we think the matter should have been presented to the jury and the directed verdict in favor of counterclaim-ants was erroneously entered.-

REVERSED AND REMANDED.

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

      . Our decision here rests solely upon the record and briefs which make no reference to our Uniform Commercial Code. It appears that security agreements which include future advances may be within the purview of our U.C.C.: Miss.Code Ann. § 75-9-204(5) (1972).


text:
    Edward Earl LEONARD et ux. v. Jessie MORRIS et ux., and Verna Roche Doan, et al.
    No. 50158.
    Supreme Court of Mississippi.
    Aug. 16, 1978.
    Rehearing Denied Sept. 13, 1978.
    Stewart & Burks, Delos H. Burks, Picayune, for appellants.
    Williams, Williams & Montgomery, E. Bragg Williams, III, Poplarville, for appel-lees.
    Before SMITH and ROBERTSON, P. JJ, LEE, J, and JAMES E. BOST. Commissioner.
   AFFIRMED.


text:
    ESTATE of Albert MAYFIELD, Deceased. Anthony MAYFIELD et al. v. Roscoe MAYFIELD, Ella Mayfield Wells and Edna Mayfield Hellen.
    No. 50561.
    Supreme Court of Mississippi.
    Aug. 16, 1978.
    Rehearing Denied Sept. 13, 1978.
    Amy Burkett, Biloxi, for appellants.
    Joseph Q. White, Jr, John G. Corlew, Pascagoula, for appellees.
    Before ROBERTSON, P. J, SUGG and COFER, JJ, and J. W. WALKER, Commissioner.
   Affirmed.


author: LEE, Justice, for the Court:

text:
    Sidney M. RICHEY v. CITY OF TUPELO and United States Fidelity & Guaranty Company.
    No. 50505.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Rehearing Denied Sept. 13, 1978.
    Parker, Averill, Funderburk & Butts, Paul S. Funderburk, Roy 0. Parker, Tupelo, for appellant.
    Bramlett, Mounce & Soper, Paul Kent Bramlett, Tupelo, for appellees.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   LEE, Justice, for the Court:

This is an appeal by Sidney M. Richey from a judgment of the Lee County Circuit Court affirming an order of the Workmen’s Compensation Commission finding that he had sustained a fifty percent (50%) permanent partial disability to his right upper extremity and directing the City of Tupelo, employer, and United States Fidelity & Guaranty Company, carrier, to pay compensation for a period of one hundred (100) weeks at the rate of fifty-six dollars ($56.00) per week. The only question involved is the extent of claimant’s disability. He contends:

(1) That his injury was to the shoulder, a non-seheduled member and his resultant disability should have been related to the body as a whole.

(2) The Workmen’s Compensation Commission and the Lower Court erred in limiting his disability to a fifty percent (50%) loss of use of his right arm.

Appellant was employed as a fireman by the Tupelo Fire Department. On October 20, 1973, while engaged in putting out a fire, he fell and injured his right shoulder. Three (3) days later, he was examined by Dr. Lee Milford, an orthopedic surgeon. At that time, he was complaining of pain in the right shoulder and was unable to move it. Richey had normal forward and backward motion, extension and rotation of his arm, but was unable to move the elbow away from his body in the motion called “abduction.” He could not hold it in that position when the arm was forced there. Dr. Milford diagnosed claimant’s condition as a tear of the shoulder cuff, or rotating muscles of the shoulder. The doctor recommended and performed surgery. In his opinion, appellant reached maximum medical improvement on October 21, 1974, he could not do any climbing, heavy lifting or use heavy equipment with his right arm, and he suffered a thirty percent (30%) disability to the shoulder, which, reduced by fifty percent (50%), would result in a fifteen percent (15%) disability of the body as a whole. Dr. Milford suggested that appellant try to find some work he could do which did not involve climbing and heavy use of his right arm.

Dr. Robert P. Christopher, a specialist in the field of physical medicine and rehabilitation, serving as a full professor and Chief of the Division of Physical Medicine and Rehabilitation, University of Tennessee, examined appellant for medical evaluation on August 5, 1975. He found that appellant had severe limitation of external rotation, flexion, abduction and motion in his right arm, and that the prognosis for further improvement was very limited. In his opinion, appellant had a thirty-seven percent (37%) permanent impairment of the right shoulder which converts to twenty-two percent (22%) disability of the body as a whole. Even though appellant complained of an injury to his low back, neither Dr. Christopher nor Dr. Milford related his back condition to the injury of October 20, 1973.

Dr. William M. Jenkins, Ph.D. and an Associate Professor and Coordinator of the Undergraduate and Graduate Programs in Rehabilitation Counseling at Memphis State University, testified in substance that claimant was not in a state of employment readiness and that there were no jobs he could then perform, as a result of the injury-

Richey testified that, as a fireman, he had to operate a pump, drive a truck, be a hold man and oil man, climb ladders, put up ladders, and do anything else that was required to be done. This work also involved heavy lifting. Prior to working in the fire department, he drove a tractor and truck for the City Street Department two years. On his off days at the fire department, he operated farm equipment. He can no longer do simple things like mowing the yard and putting in lightbulbs; he is righthand-ed and cannot do anything unless he can do it with his left hand and arm; he cannot write lefthanded; he drives his car some, but it has power steering and he drives it mostly with his left hand and arm; because of his education, he is extremely limited in the jobs other than that of a common laborer; and he cannot do any type work requiring the use of his right arm.

The administrative judge found that appellant was temporarily totally disabled from October 20, 1973, to October 20, 1974, and that he sustained a permanent partial disability in the amount of fifty percent (50%) to his right upper extremity which entitled him to compensation for a period of one hundred (100) weeks at fifty-six dollars ($56.00) per week. The Commission affirmed the order of the administrative judge, Richey appealed, and the Circuit Court affirmed the Commission’s order.

I.

Was appellant’s injury to a nonscheduled member (shoulder) and should his disability have been related to the body as a whole?

Mississippi Code Annotated Section 71-3-17 (1972) provides the following:

“(c) Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66%%) of the average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with subsection (b) of this section, and shall be paid to the employee as follows:

Member lost Number weeks Compensation

(1) Arm 200 ”

The evidence is uncontradicted that appellant’s injury of October 20, 1973, affected only the right arm and right shoulder and no other part of his body. The shoulder injury does not extend into his cervical, lumbar or thoracic area, but only into his arm. Dr. Lee Milford, the surgeon who operated on claimant, stated as to whether this is a shoulder injury as opposed to an arm injury:

“[W]e are going to have to define what each of us mean by ‘arm’ and each of us mean by our own definition of ‘shoulder.’ I mean by ‘shoulder’ a joint which has made up a part of the arm which is inclusive when you say ‘right upper extremity,’ this leaves no doubt that you’re talking about the elbow, wrist, hand, etc.”

In Walters Bros. Builders v. Loomis, 187 So.2d 586 (Miss.1966), Loomis, a painter, fell from a ladder onto his shoulder resulting in an injury. Medical testimony indicated that upon reaching maximum medical recovery, he had a permanent disability from twenty-five percent (25%) to thirty percent (30%) in the right upper extremity. The Court said:

“We think the better rule in compensation cases involving traumatic physical injury is that the result of the injury, shown by the facts in the particular case under review, must be looked to, and that the point of impact upon the body, or the location of the traumatic injury should not necessarily be controlling. In other words, the result of the blow to the shoulder might result only in the loss of the use of an arm, a scheduled member, as in this case; or it may result in a back or neck injury, in which ease, the compensation would be payable upon the basis of the result. Here, there was no medical finding of fracture or tear, and the only explanation offered by the doctors for the pain, which claimant said he experiences, aside from bursitis, was mild or sub acute tenosynovitis, which Dr. Nix explained as being an inflammation of the biceps tendon as it passes through the biceps groove in the humerous of the shoulder. The biceps is, of course, the large flexor muscle of the upper arm.
The Attorney Referee, the Full Commission and the Circuit Court were correct in relating the injury to the loss of use of the arm, a scheduled member.” 187 So.2d at 589-590.

Substantial evidence, in fact, the great weight of evidence here, indicates that appellant sustained an injury to the shoulder with functional loss affecting only the right arm. That injury must be limited to the schedule which includes the arm. Therefore, the judgment of the Circuit Court and the Commission is affirmed on this question.

II.

Did the Commission and the Lower Court err in limiting appellant’s disability to a fifty percent (50%) loss of use of his right arm?

Dr. Milford estimated the permanent partial disability to appellant at thirty percent (30%) of the right extremity, and Dr. Christopher estimated his disability at thirty-seven percent (37%) of the right extremity. The Commission found that claimant suffered a fifty percent (50%) disability of the right extremity.

The lay testimony is undisputed that appellant is unable to do anything involving the use of his right arm. In I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So.2d 44 (1963), this Court held that where the injured employee had suffered approximately twenty percent (20%) permanent disability to the body as a whole, according to the medical testimony, the evidence supported a finding that she was one hundred percent (100%) totally and permanently disabled within the meaning of the act. In Tyler v. Oden Constr. Co., 241 Miss. 270, 130 So.2d 552 (1961), claimant suffered an injury to his leg and foot causing a medical disability of approximately fifty percent (50%). His work involved heavy manual labor. He could not perform work such as he had done previous to the injury. This Court reversed the order holding that he had sustained a fifty percent (50%) loss of use of the leg for wage-earning purposes and directed that judgment be entered for one hundred percent (100%) disability for the scheduled member. See also Modern Laundry, Inc. v. Williams, 224 Miss. 174, 79 So.2d 829 (1955); and M. T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300 (1952).

We are of the opinion that the order of the Commission is not supported by substantial evidence and that the great weight of the evidence indicates that appellant has lost one hundred percent (100%) use of his right upper extremity for wage-earning purposes. Consequently, the judgment of the lower court and the order of the Commission are reversed and judgment is entered here fixing appellant’s permanent partial disability at one hundred percent (100%) loss of use of the right upper extremity and allowing permanent compensation benefits for two hundred (200) weeks.

Appellees argue here that appellant has not sought employment of any kind since the date of his injury and that under Coulter v. Harvey, 190 So.2d 894 (Miss.1966), he is not entitled to any award of permanent disability benefits. However, appellees did not cross-appeal and we do not consider that question. Moreover, the evidence is undisputed that appellant’s shoulder is still disabled, is not likely to improve in the future, and that his disability has not subsided as was the situation in Coulter, supra.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

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


text:
    Ike EAVES v. STATE of Mississippi.
    No. 50687.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Rehearing Denied Sept. 13, 1978.
    Self, Jordan & Jones, Earl P. Jordan, Jr., Meridian, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., WALKER and BOWLING, JJ., and W. W. BROWN, Commissioner.
   AFFIRMED.


author: FAULKNER, Justice.

text:
    Annie Lou Dailey Hicks HORN et al. v. Suzanne D. INGRAM et al., etc.
    SC 2588.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Sept. 1, 1978.
    Archie T. Reeves of Reeves & Stewart, Selma, for appellants.
    J. Garrison Thompson for Pitts & Pitts, Selma, for appellees.
   FAULKNER, Justice.

This is the second time we have reviewed this ease. On the first appeal, we reversed and remanded the trial court’s setting aside of the deed in question since the appellee in that case failed to meet the burden of proving fraud. Ingram v. Horn, 294 Ala. 353, 317 So.2d 485 (1975). On February 20,1975, pending the first appeal, Mrs. Horn executed two deeds to her brother Roscoe W. Dailey, purporting to convey 80 acres and 20 acres of the disputed land. On February 21, Roscoe Dailey and his wife mortgaged the 100 acres to The Peoples Bank of Cen-treville.

After reversal of the first decree, the plaintiff amended her complaint, alleging in substance that the deed executed by her to her deceased brother, Harold Dailey, was executed as a result of the undue influence of Harold Dailey while the two parties were in a confidential relationship. The Bank was allowed to intervene in the second trial of this action.

In 1971 Mrs. Horn executed the deed in question to her brother, Harold Dailey, conveying the fee simple title to 260 acres, reserving a life estate in herself. Mrs. Horn testified that she did not read the instrument nor did anyone read it to her. In fact, she stated that she first became aware that the instrument was a deed to 260 acres after her brother’s death. There, was evidence that Harold Dailey had visited in her home frequently. She and her brother were close, and she relied upon him for advice.

After a hearing ore tenus, the trial court refused to set aside the 1971 deed and held that the 1975 deeds and the 1975 mortgage conveyed only the grantor’s life estate in the property. The court set aside the 1975 deeds and mortgage with respect to the remainder interest in the property. Appellant’s motion for new trial was denied. We affirm.

The two issues presented for review are (1) whether the 1971 deed should have been set aside for undue influence, fraud, deceit, or misrepresentation, and (2) whether it was reversible error for the trial court to refuse to let Mrs. Horn testify as to her intention at the time of signing the 1971 deed. There seems to be no question that if the 1971 deed is allowed to stand, the 1975 deeds and mortgage convey only the life estate of the grantor.

The trial court specifically held:

“1. That the deed executed on October 21, 1971, by the plaintiff Annie Lou Dailey Hicks Horn to her deceased brother, Harold Dailey, was not procured by the fraud or misrepresentations of said brother. Horn v. Ingram and Foster, et al, supra.
“2. That although there is credible testimony that the plaintiff Horn and her deceased brother were close in his lifetime, and that the sister usually relied upon her brother for advice, there is not sufficient evidence to find that the deceased brother unduly influenced the plaintiff Horn in the execution of the deed on October 21, 1971.”

Where the trial court makes a decree after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial court and its findings will not be disturbed unless palpably wrong. Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109 (1965). The presumption as to correctness is strengthened when the trial judge refuses to grant a motion for new trial. Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972). The trial court’s findings are fully supported by the evidence.

“When a grantor fails to read a deed (having the ability to read and understand it) and this results in his execution of an instrument which conveys realty, although he subsequently avers he did not intend to convey, the grantor’s mistake will be attributed to his own negligence and the deed will be upheld so long as his signature was not induced by fraud or misrepresentation. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972).” 294 Ala. at 355, 317 So.2d at 486. (Emphasis added.)

“The mere relationship of brother and sister does not in itself create a confidential relationship.” Hinson v. Byrd, 259 Ala. 459, 462, 66 So.2d 736, 738 (1953); Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127 (1956). While the trial court found that a confidential relationship existed between the brother and sister, he stated that there was insufficient proof of undue influence.

Appellants argue that their proof of the confidential relationship created a presumption of undue influence, casting the burden upon the appellee to rebut the presumption.

“The law presumes the exercise of undue influence in transactions inter vivos where confidential relations exist between the parties, and puts upon the do-nee or grantee, when shown to be the dominant party in the relationship, the burden of repelling the presumption by competent and satisfactory evidence. Webb v. Webb, 250 Ala. 194, 33 So.2d 909. But it is not always necessary to show independent advice when confidential relations exist and the grantee or donee is the dominant spirit, though the burden is on the grantee or donee to do so or to show by other evidence which satisfies the judicial conscience that the matter was the voluntary and well-understood act of the grantor’s mind, and was fair and just.” Hinson.

Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970). However, we cannot agree that appellees failed to rebut the presumption simply because they failed to present any independent evidence. As stated in Har-dee, supra:

“The execution of the deed was the natural thing to do, for it had been appel-lee and his children who had for many years lived in the home of Isabella, caring for her and looking after her interests, although the evidence shows that appel-lee paid rent for the use of the land. The other members of Isabella’s family saw her infrequently and did not maintain the close relationship which apparently existed between her and the J. W. Hardee family.” 265 Ala. at 678, 93 So.2d at 135.

Accord, Hinson, supra. The trial court’s finding that Mrs. Horn’s signing was not induced by the brother’s fraud or misrepresentation must stand on appeal.

The trial court refused to allow Mrs. Horn to testify to her intention at the time of signing the deed. As stated in Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), “. . . [A] witness, on direct examination, may testify as to his intention, motive or other physically unexpressed mental state, provided that the testimony is material to the issues in the case.” 293 Ala. at 210, 301 So.2d at 83 (Original emphasis). Mrs. Horn’s testimony firmly established that she did not become aware that the instrument she had signed was a deed until after her brother’s death. However, there was not sufficient evidence presented to show that the deceased brother induced Mrs. Horn to sign the deed by fraud or misrepresentation. Her intention at the time of signing is relevant only to whether her signing was induced by the brother’s fraud or misrepresentation.

“This is another area where the sound discretion of the trial judge will come into play. Thus we will not review the court’s ruling in either admitting or excluding such evidence in the absence of abuse.” 293 Ala. 210, 301 So.2d at 83.

We find no such abuse of discretion.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    KINGRIDGE, INC. v. BETTERCARE MANAGEMENT GROUP, INC., et al. BETTERCARE MANAGEMENT GROUP, INC. v. KINGRIDGE, INC., et al. The SECOND MEDICAL CLINIC BOARD OF the CITY OF PRICHARD et al. v. BETTERCARE MANAGEMENT GROUP, INC., et al.
    SC 2396, SC 2396-A and SC 2396-B.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Rehearing Denied Sept. 1, 1978.

      Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellant Kingridge.
    Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, and for Irving Silver, for appellant Better-care Management Group, Inc.
    Stephen R. Windom of McDermott, Slepi-an, Windom & Reed, Mobile, for cross appellant and appellee, the Second Medical Clinic Board of the City of Prichard, Ala., and for appellee, Koinonia, Inc.
   FAULKNER, Justice.

These consolidated actions center around the termination of a lease to a nursing home by the lessor, the Second Medical Clinic Board of the City of Prichard (Board), without the prior written consent of the Trustee, Exchange Security Bank. The lessee, Kingridge, Inc. (Kingridge) filed suits to acquire possession of the nursing home along with damages and to cancel its assignment of the lease to Bettercare Management Group, Inc. (Bettercare). Better-care also sued for possession of the nursing home plus damages. The Board counterclaimed for recovery of $52,000 allegedly misappropriated by King, president of King-ridge; and Bettercare counterclaimed for money damages. The trial court held that the termination was proper and denied all money damages claimed by the parties. We affirm.

King entered into an agreement with the City of Prichard for the construction of a nursing home in Eight Mile, Alabama. The City of Prichard appointed the Board, and undertook to finance the construction of the project with the issuance of bonds pursuant to Title 37, § 853, et seq., Code (1973 Supp.). King transferred his option on the property to the Board and incorporated the non-profit corporation, Kingridge, to acquire the lease of the nursing home. On November 1, 1971, Kingridge and the Board entered into a lease agreement, and a mortgage indenture and deed of trust was entered into between the Board and the Trustee on the same day.

Because of inability to meet the operating capital requirements, Kingridge assigned the lease to Bettercare. The assignment was signed on March 5, 1973, but there is testimony that the assignment was not delivered to Bettercare until March 19.

Kingridge defaulted on the lease by nonpayment of rent and insurance as well as other grounds of default set out in the lease agreement. Although Bettercare indicated that it was ready and able to supply the operating capital, this has never been done. On March 19 the Board cancelled the King-ridge lease. It is undisputed that the Trustee had given no verbal or written consent to the termination at that time. The nursing home was leased to Koinonia, Inc. (Koinonia) by the Board in June: This second lease to the nursing home was prepared by an attorney of the Trustee. The principal officer in charge of the bonds testified that he was aware that the lease was being prepared.

The first case involved in this appeal, Kingridge, Inc. v. Bettercare Management Group, Inc., et al. (Case No. 86,7000) was filed on May 23, 1973. On April 26, 1974, Bettercare’s motion to dismiss was granted, and Kingridge was given thirty days to amend. No amendment was made within that time. On October 4, Kingridge filed a motion for leave to amend, to add new parties and to consolidate the action. On January 7, 1975, the motion to amend and add new parties was granted, allowing the addition of the Board and Koinonia as defendants. On March 3 the court consolidated this action with a second case, Bettercare Management Group, Inc. v. The Second Medical Clinic Board of the City of Prichard and Koinonia, Inc. (Case No. 44,235), filed on May 3, 1974. Apparently another suit filed by Kingridge against Bettercare, the Board and Koinonia (Case No. 47,097) in 1973 was dismissed for failure to prosecute in the same year.

After a hearing ore tenus, the trial court found:

“. . . that the lease agreement between Board, as Lessor, and Kingridge, as Lessee, was validly and legally terminated, on March 19, 1973 and further the Court finds that no parties in the consolidated action are entitled to recover money damages and the Court further finds that the ejectment suit of Bettercare is due to be denied and therefore, the Court having determined that the lease agreement between Board, as Lessor and Kin-gridge, as Lessee, was validly and legally terminated, the Court need make no decision as to the validity of the assignment of lease from Kingridge to Bettercare.”

From the trial court’s decree that the lease agreement was validly terminated on March 19, 1973, denying Bettercare’s ejectment suit, its claim for money damages and its counterclaim for money damages, denying the relief sought by Kingridge, and denying the relief sought by the Board in its counterclaim, Kingridge and Bettercare appeal. The Board and Koinonia cross-appeal. The cases were consolidated for the purposes of appeal. The issues presented for review are:

(1)Whether Kingridge’s motion for leave to amend was properly granted where the original complaint in that ease had been dismissed and where no amendment had been made within thirty days as provided in the order of dismissal.

(2) Whether the lease could be terminated by the Board without the prior written consent of the Trustee.

(3) Whether the trial court erred in denying the Board’s counterclaim to recover $52,000, allegedly misappropriated by Mr. King.

(4) Whether the trial court erred in denying Bettercare’s ejectment action against the Board and Koinonia where the assignment was delivered on March 19, 1973.

I

We hold that the trial court did not err by permitting Kingridge to add the Board and Koinonia as defendants even though the original complaint had been dismissed with leave to amend within 30 days but no amendment was filed within that time. Rule 15 ARCP provides that amendments shall be freely allowed when justice so requires.

“. . . [I]f Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground. We state also that Rule 15 must be liberally construed by the trial judges.” Ex Parte Stead, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975).

McElrath v. Consolidated Pipe & Supply Co., 351 So.2d 560 (Ala.1977). Furthermore, Rule 21, ARCP states that “[pjarties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.”

II

Appellants contend that the trial court erred in finding a valid termination of the Kingridge lease because the Board failed to obtain the Trustee’s prior written consent. They rely on the following lease provision:

“Subsequent to the issuance of the Bonds and prior to their payment in full, the Board and the Lessee shall have no power to modify, alter, amend or terminate This Agreement without the prior written consent of the Trustee and then only as provided in the Indenture; provided, that the Board and the Lessee may, without any such consent, make such modifications, alterations and amendments of This Agreement as are specifically authorized in or contemplated by This Agreement or the Indenture.”

The following article of the lease sets out events of default and remedies, specifically setting out the course taken by the Board as one of the remedies on default:

“Whenever any such event of default shall have happened and be continuing, the Board or the Trustee may take any of the following remedial steps:
U * * *
“(b) The Board or the Trustee may terminate This Agreement, exclude the Lessee from possession of the Project and lease the same for the account of the Board and the Trustee . . . ”

It is undisputed that the bonds were outstanding at the time of the attempted termination; and, while Kingridge contends that the defaults were “technical,” it nevertheless admits that it was in default.

Appellees argue that the remedies on default are “specifically authorized in or contemplated by the lease” and, therefore, operate as an exception to the consent requirement. While the lease read alone may be subject to such an interpretation, a reading of the lease and Indenture together mandate a contrary conclusion. Section 9.3 of the Indenture states:

“The Board will not cancel, terminate or modify, or consent to the cancellation, termination or modification of, the Assigned Lease (except as is specifically provided, authorized or contemplated therein or herein) unless and until the principal of and the interest on the Bonds shall have been paid in full . . .; provided however, that with the written consent of the Trustee, the Board may terminate the Assigned Lease under those provisions thereof authorizing such termination upon default of the Company. In the event of any such default, or in the event of a default on the part of the lessee under any other lease entered into by the Board with respect to the Project or any part thereof, the Board will exhaust or cause to be exhausted, as promptly as may be practicable, all legal remedies that it may have against the defaulting lessee to obtain compliance with the lease provisions, including payment of the rentals therein provided and performance and observance of all agreements and covenants on the part of the lessee therein contained, but will not effect termination of the Assigned Lease without the aforesaid consent of the Trustee.” (Emphasis added.)

It is plain that the parties contemplated that termination of the lease could be effectuated only with the consent of the Trustee. Without such consent, the Board was without any power to terminate the lease agreement. Darling Shop v. Nelson Realty Co., Inc., 262 Ala. 495, 79 So.2d 793 (1954).

The language of both the lease and the Indenture, however, clearly indicates that the consent provision is for the benefit of the Trustee. A provision may be waived by the conduct of the party for whose benefit the provision is made. See Thompson v. Thompson, 257 Ala. 10, 57 So.2d 393 (1952). Here an attorney for the Trustee drafted the lease to Koinonia. There was also testimony that the principal officer in charge of the bonds was aware that a new lease was being drafted, and in fact, had forwarded the letter requesting that a new lease be drafted to the attorney. These facts are sufficient to justify a finding that the Trustee waived the consent requirement so that the lease was validly terminated on March 19, 1973. A reviewing court will assume that the trial court made those findings which the evidence supports and will justify the decree rendered. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970).

Ill

The trial court did not err in denying the Board’s .counterclaim to recover $52,000 that they contend King misappropriated. King admits receiving this money and stated at trial that part of it was reimbursement for out-of-pocket expenses and the remainder was paid to him as salary for his services as a supervisor of the project. The Board presented evidence that $12,000 was designated on the bond disbursement sheet as being reimbursement for architect fees though King had never paid this money to the architects. As to the amount King claims as salary, the Board presented evidence showing that King was not qualified to perform the job, that he did not do the job, and that a qualified supervisor could have been hired to do the job at half the salary.

The trial court heard the evidence ore tenus and held that the Board was not entitled to recover any money damages. Where the trial court makes a decree after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial court and its finding will not be disturbed on appeal unless palpably wrong. Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109 (1965). After reviewing the evidence, we are satisfied that the trial court was not palpably wrong in its decree.

IV

Nor was there error in the trial court’s denying Bettercare’s ejectment action against the Board and Koinonia. “In order to become effectual, an assignment of a leasehold ordinarily must be delivered and accepted . . . ” 51C G.J.S. Landlord & Tenant § 40d, p. 118. The assignee of the lessee admitted that the assignment was not delivered until March 19, 1973, the date the Kingridge lease was terminated by the Board. The trial court’s finding that the Kingridge lease had been validly terminated prior to the assignment becoming effective is supported by the evidence and, therefore, will not be disturbed on appeal. Shivers.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ.,- concur.