author: DOUCET, Judge.

text:
    Donald Lee HENDERSON, Plaintiff-Appellant, v. Eva STANSBURY and State Farm Mutual Automobile Ins. Co., Defendants-Appellees.
    No. 6999.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1979.
    Dodd, Barker, Avant, Wall & Thomas, Floyd J. Falcon, Jr., Baton Rouge, for plaintiff-appellant.
    Roy & Forrest, Leon E. Roy, Jr., New Iberia, for defendants-appellees and Alex A. Lopresto, III.
    Before CULPEPPER, SWIFT, and DOU-CET, JJ.
   DOUCET, Judge.

This is a tort action, arising out of an automobile accident. Plaintiff is the driver of one of the two cars involved. Defendants are Eva Stansbury, the driver of the other car, and her automobile liability insurer, State Farm Mutual Automobile Insurance Company. Defendants filed a peremptory exception of res judicata, based on a general release signed by plaintiff. Plaintiff appeals from a judgment of the district court, sustaining that exception and dismissing his suit at his costs. We affirm.

The accident giving rise to this suit occurred at about 8:30 A.M. on June 26, 1978 in Jeanerette, La. After the police had completed their investigation, plaintiff went to the home of a friend in Jeanerette, where a laceration on his left arm was cleansed and bandaged with a piece of gauze. Later he went to the home of defendant, Eva Stansbury, arriving there about an hour or an hour and a half after the accident had taken place. Plaintiff testified that the purpose of that visit was to discuss compensation for the damages to his car and the injury to his arm. Mrs. Stans-bury arranged for him to see a Mr. Breaux, a State Farm agent, at his office in Jeaner-ette.

After consulting with plaintiff, Mr. Breaux contacted the State Farm Claims Office in Lafayette and arrangements were made for plaintiff’s claim to be adjusted. Plaintiff then went to the Lafayette office, where the damage to his automobile .was appraised. He was referred to Mrs. Alción Sandefur, an office claim representative, with five years experience in that capacity and an additional eighteen years as a secretary for State Farm. Mrs. Sandefur drew up a general release by filling in the blanks on a printed form.

That instrument provides that in consideration of the payment of $990.33, plaintiff releases Kenneth J. Stansbury (apparently Mrs. Stansbury’s husband), Eva Stansbury, and State Farm Mutual Automobile Insurance Company from all claims, including those for injuries known and unknown, arising out of the automobile accident. The above sum was arrived at by adding the amount of the damage appraisal on the car and an additional $50.00. The document, referred to by Mrs. Sandefur as an “open-end release”, also provides for the payment of an additional $500.00 for necessary and reasonable medical expenses incurred within 180 days of the date of the agreement, subject to a collateral source restriction.

Prior to signing the release, plaintiff spoke with the appraiser again about the estimate of the damages to his car. Apparently satisfied with the amount, he signed the release and was issued a check for $990.33. Plaintiff alleges that his arm later became worse as a result of which he required medical services in excess of $500.00 and suffered a loss of wages. He now seeks reimbursement for those expenses as well as compensation for his lost wages and pain and suffering.

The issue before this court is the validity of the release. Plaintiff contends that, despite the language used, the parties never intended to settle all aspects of his claim at the time that the release was signed. The law applicable to such situations is contained in LSA-Civil Code Article 3073, which states:

“Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.”

and LSA — Civil Code Article 3079, which further provides:

“A transaction may be rescinded notwithstanding, whenever there exists an error in the person or on the matter in dispute. It may likewise be rescinded in the cases where there exists fraud or violence.”

Plaintiff cites the cases of Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961) and Mooneyhan v. State Farm Mutual Automobile Insurance Company, 290 So.2d 405 (La.App. 2nd Cir. 1974) as authority for the proposition that in cases such as the one before us, a general release will not bar recovery for those aspects of the claim not intended to be covered by it.

We agree that these cases and codal articles support plaintiff’s argument as to the applicable law. However, he has not borne his burden of proving that the parties in this case intended the release to have a limited effect. Moak and Mooneyhan, supra, are readily distinguishable on their facts.

In Moak, supra, the amount of money paid in connection with the release was extremely small in view of the nature and extent of plaintiff’s injuries, which included the severance of a finger, and coincided exactly with the amount of the uncollected balance due on a claim previously made for property damage. Although those injuries were manifest at the time of the negotiations, nothing was said about personal injuries. In Moneyhan, supra, one of the plaintiffs was pregnant, and the adjuster had been informed at the outset of the negotiations that no final settlement of her claim for personal injuries would be made until after the birth of the baby. The adjuster had agreed to pay the sum paid under the release for other specified items of damage. Furthermore, defendant had made two additional payments for medical expenses after the date of the purported final release.

There is an absence of such circumstances in the present case. We believe that the trial court was correct in concluding that at the time that the release was signed both plaintiff and Mrs. Sandefur believed that his injury was negligible and that $50.00 was an adequate amount to compensate him for it. At that point plaintiff had not found it necessary to seek medical attention. Mrs. Sandefur testified that when plaintiff called attention to the fact that his arm had been injured, she observed only a clean gauze bandage. There was nothing to indicate the probability of the complications that plaintiff now alleges to have occurred. Therefore, we agree with the trial court that the document signed by plaintiff accurately reflects the intent of the parties, which was to settle all aspects of his claim.

Counsel for plaintiff also refers this court to several cases in which general releases were not upheld because it was shown that the plaintiff did not fully understand the terms of the agreement or its effect. See for example, Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir. 1976); Lowery v. Anderson, 265 So.2d 644 (La.App. 2nd Cir. 1972); Harris v. Stockman, 197 So.2d 365 (La.App. 2nd Cir. 1967); and McDaniel v. Audubon Insurance Company, et al., 121 So.2d 531 (La.App. 1st Cir. 1960).

We do not believe that this is such a case. Plaintiff is a twenty-four year old high school graduate, who describes himself as having been an average student. He holds a job from which he earns about $1,000.00 per month. He also served in an Air National Guard Unit for a period of six years, during which time he advanced to the rank of Sergeant. We agree with the trial court that he was not at an intellectual disadvantage and that he was fully capable of and did understand the terms of the agreement that he entered into.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    STATE of Louisiana In the Interest of Elizabeth Denise THOMPSON.
    No. 7009.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1979.

      Hawsey & Koepp, L. E. Hawsey, III, Baton Rouge, for plaintiff-appellant.
    A. Bruce Rozas, Mamou, for defendant-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

This is an appeal by Wanda Courville (divorced from Dennis Thompson and now married to John Young) from a judgment of the Juvenile Court for the City of Ville Platte apparently declaring her minor daughter, Elizabeth Denise Thompson, to, be a neglected child within the purview of LSA-R.S. 13:1561 et seq. and granting custody of the child to her father, Dennis Thompson.

When Wanda Courville and Mr. Thompson were divorced on March 11, 1966, the mother was awarded permanent custody of Elizabeth and her three older sisters who were born of the marriage. In the latter part of 1976, while undergoing treatment for a gall bladder condition and unable to properly care for Elizabeth, Mrs. Young permitted her to live in Ville Platte with her father. On December 31, 1976, an ex parte decree was rendered by the Ville Platte City Court declaring Elizabeth to be a ward of the juvenile court and placing her in the custody of her father pending further orders. Eight months later, with the consent of both parents, Elizabeth returned to live with her mother in Baton Rouge.

Some time in the latter part of 1977 Mrs. Young developed a problem with drugs that had been prescribed by her physicians for an epileptic condition. On January 3, 1978, she was hospitalized for what was diagnosed as “Excessive Barbiturate Ingestion” and received treatment in the psychiatric ward until her discharge on January 7, 1978. Before being taken to the hospital by sheriff’s deputies, Mrs. Young had them take Elizabeth to the apartment of her 18 year old sister, Paula, in Baton Rouge where she resided a few days until her father took her to his home in Ville Platte. Elizabeth was not happy there and frequently expressed her desire to return to live with her mother in Baton Rouge.

On January 19, 1978, Mr. Thompson and Elizabeth went to see the judge of the Ville Platte City Court. A petition was filed in that court the same day alleging that the “child had violated R.S. 13:1569(15) B, by habitually disobeying the reasonable and lawful demands of her parent, tutor or other custodian . . . ” and being “. ungovernable and beyond their control . is in need of supervision.” An ex parte hearing was held on January 19th at which Elizabeth entered a plea of guilty. The juvenile court found the child to be “. . .in need of supervision . . . ” and placed her on supervised probation for an indefinite period. Mrs. Young testified that she did not receive notice of either hearing and there are no returns in this record reflecting that she was duly notified thereof.

After several unsuccessful efforts to regain the physical custody of Elizabeth, Mrs. Young met her in front of the Thompson home in Ville Platte on January 26, 1978, and both returned to Baton Rouge. On March 3, 1978, while Elizabeth was still in Baton Rouge, this juvenile proceeding was instituted in the Ville Platte City Court seeking to have her declared to be a neglected child under R.S. 13:1561 et seq. Mrs. Young filed therein a petition for the annulment of the prior decrees of the juvenile court and damages.

Prior to the trial the appellant filed motions to recuse the city judge and the assistant district attorney who had present the neglect petition. She also filed declinatory and dilatory exceptions raising the objections of lack of jurisdiction over the subject matter, lack of jurisdiction over the person and vagueness. The motion to recuse the attorney was granted, but the similar motion in regard to the judge was denied without giving Mrs. Young an opportunity to present evidence in support thereof. The exceptions were then heard and overruled. An application for supervisory writs directed at the judge’s ruling in regard to his recusation was denied by this court.

After trial on the merits the city judge concluded in his written reasons for judgment:

“While on the surface it may appear to the juvenile, Elizabeth Denise Thompson, that she is much more satisfied in the City of Baton Rouge, where she has friends and a great range of activities to participate in, this Court is concerned with her welfare. The Court, therefore, feels that the child would be better cared for in the home of her father, Mr. Dennis Thompson, in Ville Platte, Louisiana. Here, she can attend a Catholic School and participate in activities the children of her age of 14 years old can engage in. Accordingly, judgment is rendered this date granting custody to her father, Dennis Thompson, subject to reasonable visitation rights by the mother, Mrs. Wanda Young.”

Neither the reasons for judgment nor the decree mention any finding that Elizabeth was a neglected child or in need of supervision. She, of course, was not charged with delinquency.

Although it is not essential that an express finding of the neglect, delinquency or need of supervision appear in the decree following a juvenile court hearing, the record must reflect that there was sufficient evidence for the trial judge to conclude that the child was in one of those classifications before he can render a valid judgment concerning its custody. State v. Robinson, 353 So.2d 442 (La.App. 3 Cir. 1977). In that case this court said:

“The law grants to juvenile courts exclusive original jurisdiction in proceedings concerning any child, domiciled in or found within the parish, who is determined to be neglected or delinquent or in need of supervision. If the evidence does not establish that the child is neglected, delinquent or in need of supervision, the juvenile court had no jurisdiction or authority to determine the custody of the child or to render any other judgment relating to custody. LAS-R.S. 13:1570 and 1580; In re Cruse, 203 So.2d 893 (La.App. 4 Cir. 1967); State in Interest of Purcell, 337 So.2d 637 (La.App. 3 Cir. 1976). (Emphasis added.)

Thus, a juvenile court is not the proper forum and neglect proceedings instituted therein cannot be used simply to change child custody from one parent to the other.

In a proceeding such as this the state bears the burden of proving neglect or the unfitness or inability of the parent to care for the child. In re State ex rel. Thaxton, 220 So.2d 184 (La.App. 1 Cir. 1969). And the evidence must be clear and convincing to justify the harsh judgment of neglect and a change of the child’s custody. State in Interest of Gray, 353 So.2d 393 (La.App. 4 Cir. 1977).

A “neglected” child is defined in the following pertinent provisions of LSA-R.S. 13:1569(16) as one:

“a. who has been abandoned by his parents, tutor, or other custodian;
b. who is without proper parental care and control, or subsistence, education, medical or other care or control necessary for his well being because of the faults or habits of his parents, tutor, or other custodian or their neglect or refusal, when able to do so, to provide them; or
c. whose parents, tutor or other custodian are unable to discharge their responsibilities to and for the child because of their incarceration, hospitalization, or other physical or mental incapacity;”

In his written reasons for judgment the juvenile court judge stated that while living with her mother Elizabeth “was in a situation of turmoil and parental abuse, if not physical then on an emotional basis”; that there had been “serious family squabbles”; and that Mrs. Young had been “over medicating” for her various illnesses. Although there is evidence in the record to support his latter two findings, we do not agree with the first.

Elizabeth and her sister did testify that there were times when their mother was “not herself”, which possibly could have been caused by what the trial judge described as “over medication”. However, this happened infrequently and when the symptom was noticed in December, 1976, it was believed to be related to hepatitis which gave rise to the surgical removal of Mrs. Young’s gall bladder.

The testimony of Mrs. Young’s family physician, Dr. Charles T. Aswell, was that she suffers from occasional depression. She also has petit mal epilepsy for which the doctor has prescribed phenobarbital. He did not think, however, that the epilepsy will restrict Mrs. Young’s activities in any significant way as long as she takes her medication. Dr. Aswell has treated this mother for at least 25 years and all of her children since birth. He was not greatly concerned about her “overdose” of drugs in January, 1978, and was not convinced this had happened before. The physician testified that he saw no reason why Mrs. Young cannot provide proper care for Elizabeth as she has done to his knowledge for all of her children in the past.

The preponderance of evidence is that Elizabeth is now living with Mr. and Mrs. Young and her sister, Paula, in the Young’s comfortable, clean and well kept home in a middle class neighborhood in Baton Rouge. The Youngs were experiencing marital problems and were living apart in a trial separation at the end 1977 and when Mrs. Young was hospitalized in 1978. However, they have since resolved their problems and are living together again in apparent tranquility. Elizabeth is happy in that home and she is receiving proper care and supervision.

Our review of the evidence further discloses that Mrs. Young always exercised reasonable care and control over Elizabeth and properly supervised her activities and conduct except when she was ill. On those occasions she made arrangements for her daughter’s safety and well being by placing her with her father and older sister. There was no evidence presented which indicated Elizabeth was absent from school for any unusual period or that at any time she failed to receive adequate food, clothing, shelter, medical care or attention. Nor was she ever abandoned by her mother.

The trial judge’s determination in these cases, of course, is entitled to great weight and we are reluctant to disagree with him. However, we are convinced that the proof in this case does not establish that Elizabeth was a neglected child or in need of supervision and that any such finding by the judge was manifestly in error. Therefore, the Ville Platte Juvenile Court had no jurisdiction to determine her custody and its judgment rendered on April 6, 1978, must be reversed and this proceeding dismissed.

With reference to the previous orders of that court concerning this child, it is well settled in Louisiana that an ex parte custody order granted by a trial judge without notice, service of pleadings and without affording a hearing to the parent having custody of the child is null and without effect. Saizan v. Saizan, 311 So.2d 281 (La. App. 1 Cir. 1974); Simon v. Calvert, 289 So.2d 567 (La.App. 3 Cir. 1974), writ denied 293 So.2d 187 (La.1974). Consequently, the appellant is entitled to have the orders of the Ville Platte Juvenile Court dated December 31, 1976, and January 19, 1978, purporting to affect Elizabeth, set aside.

For the reasons assigned, it is ordered, adjudged and decreed that the orders of the Ville Platte City Court, sitting in its juvenile capacity, entitled “State of Louisiana in the Interest of Elizabeth Denise Thompson”, dated December 31, 1976, and January 19, 1978, are annulled and set aside. The judgment appealed herein is reversed and these juvenile proceedings are dismissed.

REVERSED AND RENDERED.


text:
    Charles W. BRADLEY, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 7016.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1979.
    Foye L. Lowe, Jr., Baton Rouge, for defendant-appellant.
    Self & Burkett, Donald Burkett, Many, for plaintiff-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

The Louisiana Department of Public Safety has taken this appeal from a judgment of the district court granting the plaintiff a restricted driver’s license under LSA-R.S. 32:415.1 to support his family.

Mr. Bradley was convicted of operating a motor vehicle while under the influence of intoxicating beverages in Madison Parish in 1971 and also in North Dakota in 1976. He was arrested in Terrebonne Parish on January 29, 1977, for DWI and also for driving under a revoked license. The plaintiff refused to take the PEI or sobriety test on this occasion. Guilty pleas to both charges were entered on September 18, 1977.

In the meantime Bradley’s driver’s license was revoked in Louisiana for a period of one year under LSA-R.S. 32:414(B) because of the second DWI conviction. Later, an additional six months suspension was imposed for his refusal to submit to the PEI test. Although at the time of the trial of this matter he had not received official notification, the plaintiff was told by an employee of the department in a telephone conversation that his driver’s license was being revoked for additional periods by reason of the September 18, 1977, convictions. Appellee has neither filed a brief nor argued this case orally. However, we assume that his application for a restricted license is directed at the latter revocations as it is obvious his first revocation and the six months suspension have expired.

The plaintiff is a pipeline welder and owns a truck on which his welding machine is transported and used in his work. When this case was heard below he was employed by a construction company in the installation of a pipeline in Tennessee. Mr. Bradley lives in Louisiana and it was necessary for his ailing wife to drive his truck to Tennessee and then fly home. While working, he has had to depend on a helper to drive the truck to each point where he makes a weld.

The department’s contention that the plaintiff is not eligible for a restricted license under these circumstances is correct. LSA-R.S. 32:415.1A(1) expressly provides that a restricted license for economic hardship can only be issued where the applicant’s driver’s license has been suspended, revoked or cancelled “for the first time only ” under LSA-R.S. 32:414(B), (C), (D), (E) and LSA-R.S. 32:415. Smith v. State, Dept. of Public Safety, 352 So.2d 443, (La.App. 3 Cir. 1977); Perry v. State, Dept. of Pub. Saf., Driver’s L. Div., 353 So.2d 318 (La.App. 1 Cir. 1977), writ denied 354 So.2d 1385 (La.1978); Howard v. Louisiana Dept. of Public Safety, 360 So.2d 228 (La.App. 1 Cir. 1978).

Mr. Bradley’s driver’s license was revoked for the first time under LSA-R.S. 32:414(B) as a result of his second DWI conviction which took place in North Dakota in 1976. Consequently, the district judge lacked authority in this instance to issue a restricted license relating to plaintiff’s subsequent revocations.

For the reasons assigned, the judgment appealed is reversed and judgment is hereby rendered in favor of the State of Louisiana, Department of Public Safety, dismissing the plaintiff’s suit, all at the latter’s costs.

REVERSED AND RENDERED.


text:
    Jerry AUCOIN and Mary Aucoin, Plaintiffs-Appellants, v. LOUISIANA PAVING CO., INC., et al., Defendants-Appellees.
    No. 7038.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1979.

      David L. Carriere, Opelousas, for plaintiffs-appellants.
    Onebane, Donohoe, Bernard, Tobian, Diaz, McNamara & Abell, Chris Robbins, Lafayette, for defendants-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

This is a tort action brought by plaintiffs, Mr. and Mrs. Jerry Aucoin for damages sustained as a result of an automobile accident. Defendants are Orren Birdwell, his employer, Louisiana Paving Company, Inc., and the latter’s liability insurer, Highlands Insurance Company. Plaintiffs have appealed from a judgment of the district court, dismissing their suit, based on a finding of contributory negligence. We affirm.

The sole issue raised by this appeal is whether or not plaintiffs are barred from recovery because of contributory negligence attributable to Mrs. Aucoin.

On October 28, 1977 at about 3:30 P.M. a pickup truck, driven by Mr. Birdwell, collided with an automobile, driven by Mrs. Jerry Aucoin, on U.S. Highway 167 in St. Landry Parish, north of the City of Opelousas. At the trial of the case, Mrs. Aucoin and Mr. Birdwell presented substantially different versions of the circumstances leading up to the accident.

According to Mrs. Aucoin’s testimony, she was proceeding in a northerly direction, en-route to a neighborhood convenience store located on the western or left side of the highway. She estimated her speed to be about 40 mph. When she was approximately one-tenth of a mile away from her destination, she activated the left turn signal indicator on her car. At that point, she looked into the inside rear view mirror and observed the Birdwell vehicle approximately two-tenths of a mile behind her, also travelling in the northbound lane. There are no hills or curves to obstruct visibility on that particular section of the two-lane highway, and Mrs. Aucoin testified that she did not observe any other vehicles. As she approached her turn, she slowed her car to approximately 20 mph and just as her left front tire crossed the centerline of the highway looked into the left outside rear view mirror. Seeing no traffic behind her at that time, she continued to execute her left turn. She testified that she was unconcerned about the disappearance of the vehicle that she had seen earlier, because she assumed that it had turned off onto a parish road located a short distance to the south. Moments later, the left front of the Birdwell vehicle struck the left rear of her car. The point of impact was at about the middle of the southbound, or passing, lane.

Mr. Birdwell testified that contrary to Mrs. Aucoin’s assertion, she had actually activated her right turn signal indicator, rather than the left, and that prior to her abruptly made left turn, the right wheels of her car had left the road and were on the right shoulder. He claimed that he entered the southbound lane in an attempt to avoid the impending accident. That section of the highway was designated by an uninterrupted yellow line as a no passing zone. Despite sharply applying his brakes and leaving 57 feet of skid marks, running straight down the southbound lane, his vehicle collided with Mrs. Aucoin’s and came to a rest 110 feet from the point of impact.

The trial court expressed a preference for Mrs. Aucoin’s version of the facts. After carefully examining the full transcript of the testimony, including that of the state police officer who investigated the accident, we agree that hers is the more credible. Furthermore, even if we could accept Mr. Birdwell’s version without reservation, we would nonetheless be convinced that he was clearly negligent in failing to keep his vehicle under control and being unable to bring it to a stop in time to avoid the accident. The question which remains to be answered is whether or not Mrs. Au-coin was also negligent under the circumstances of this case.

This court recently discussed the duty of a left turning motorist in Ryder v. Trisler, 367 So.2d 1257 (La.App. 3rd Cir. 1979). That duty is not met by simply giving a proper signal. The driver must also make an adequate observation to the rear to determine that the turn can be safely made. Ardoin v. Chachere, 207 So.2d 574 (La.App. 3rd Cir. 1968); Williams v. Inabnett, 345 So.2d 1294 (La.App. 3rd Cir. 1977); Petite v. Richardson, 347 So.2d 23 (La.App. 3rd Cir. 1977). Although Mrs. Au-coin testified that she looked to the rear on two separate occasions, we do not believe that she satisfied her duty of observing in this case. Mr. Birdwell’s vehicle was there to be seen, and we believe that a proper observation by Mrs. Aucoin would have revealed its presence and alerted her to the fact that the turn could not be safely made. Therefore, we agree with the trial court that Mrs. Aucoin was contributorily negligent and that her negligence was a proximate cause of the accident.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by plaintiffs-appellants.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Sam W. GOLTZMAN, Plaintiff and Appellee, v. Ronald Owen GOLTZMAN, in his capacity as President of General Export Iron and Metal Company of Louisiana, Inc., Defendant and Appellant.
    No. 7058.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1979.

      Kimball, McLeod & Dow, Robert L. Dow, Lake Charles, for defendant and appellant.
    Joe J. Tritico and Alvin B. King, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

The plaintiff, Sam Goltzman, filed this suit for a writ of mandamus to compel the defendant, Ronald Owen Goltzman, in his capacity as president of General Export Iron and Metal Company of Louisiana, Inc., to issue to plaintiff 12 shares of the corporation’s stock. The defense is that a certificate for the 12 shares was issued to plaintiff and donated by plaintiff to defendant, his son. The district judge held that the certificate representing the 12 shares of stock was “defective” because it was not signed by the president and secretary of the corporation until after plaintiff delivered the certificate to defendant. Thus, the district court held that the purported donation of the stock was invalid since plaintiff did not own the stock at the time. From a judgment ordering him to issue 12 shares of the corporate stock to the plaintiff, defendant appealed.

We will first discuss two procedural issues urged by defendant: (1) Did the trial judge err in denying the exception of no cause of action? (2) Did the trial judge erroneously permit plaintiff to enlarge his pleadings by introducing evidence that the certificate was not legally issued? However, the principal issue is whether a certificate for the 12 shares has already been legally issued to plaintiff.

EXCEPTION OF NO CAUSE OF ACTION AND ENLARGEMENT OF PLEADINGS

In his original petition, plaintiff alleged that at a meeting on August 1, 1976, the Board of Directors of the corporation authorized the issuance of 12 shares to him for $1,200 which he had paid to the corporation on July 30, 1976, but that the corporation had refused to issue to him a certificate for the stock. Defendant filed an exception of no cause of action, to which he attached a photostatic copy of Certificate No. 004 for 12 shares of stock in the corporation issued in the name of Sam Goltzman, which certificate was transferred by Sam Goltzman to Ronald O. Goltzman by an endorsement dated April 12, 1977. Defendant argues that since this certificate shows the shares had been “issued” to plaintiff and transferred by him to defendant, plaintiff’s petition does not state a cause of action.

We conclude the trial judge correctly denied the exception of no cause of action. Such an exception concedes for purposes of its trial the correctness of all well-pleaded allegations of fact. Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968). No evidence may be introduced at any time to support the exception of no cause of action. LSA-C.C.P. Article 931. Thus, for purposes of the exception, the certificate cannot be considered. In the present case, if we assume, as plaintiff alleges, that the 12 shares were authorized and paid for but never issued, plaintiff has stated a cause of action.

The issue as to enlargement of the pleadings arises because during the hearing the plaintiff commenced to offer evidence that the certificate representing the 12 shares had not been legally issued at the time of the donation because the certificate had not been previously signed by the president or the secretary of the corporation. The defendant objected to this evidence on the grounds that plaintiff had alleged only that the certificate had not been issued and had made no allegations that the certificate, if issued, was not legally issued. The trial judge overruled defendant’s objection and admitted the evidence.

We agree with the trial judge that under plaintiff’s allegations that the certificate was not issued, evidence was admissible to show that the certificate was not legally issued. If the shares had not been “legally” issued, they had not, in contemplation of law, been issued. Pleadings should be liberally construed to serve the ends of justice rather than technical niceties. LSA-C.C.P. Articles 865 and 5051. Evidence should not be excluded where it is admissible to prove any hypothesis included in plaintiff’s alleged cause of action. Stanley v. Missouri Pacific Railroad Company, 179 So.2d 490 (La.App., 3rd Cir. 1965).

HAD THE STOCK ALREADY BEEN ISSUED TO PLAINTIFF?

The central issue in this case is whether the shares of stock had already been legally issued to Sam Goltzman. The facts are that the corporation was organized in August of 1975. The charter authorized 2,500 shares of stock at a par value of $100 per share. The original incorporators, each of whom owned one share, were Ronald O. Goltzman, Murrell Holt and Grace Dent Kennedy.

At the meeting of the Board of Directors, composed of the three above named incor-porators, held on August 1, 1976, a resolution was adopted authorizing the issuance of 12 shares of stock to Sam Goltzman for the sum of $1,200 with the sale to take place on or after January 1, 1977. On July 30, 1976, Sam Goltzman had paid to the corporation the price of $1,200 for the stock. Certificate No. 004 for 12 shares issued in the name of Sam Goltzman is dated January 1, 1977 and was delivered to him before that date, but Ronald O. Goltzman, the president, and Grace Dent Kennedy, the secretary-treasurer, did not sign the certificate until a later date.

The certificate shows on its face that on April 12, 1977, Sam Goltzman endorsed the certificate and transferred the 12 shares to his son, Ronald O. Goltzman. Although the trial judge states in his written reasons that the date of this transfer, which was actually a donation, was on or about April 12, 1977, the evidence shows clearly that the actual date on which Sam Goltzman delivered the endorsed certificate to Ronald O. Goltzman was June 1,1978. On that date, Sam Goltz-man had consulted his attorney as to the procedure necessary to transfer the certificate to his son. Plaintiff’s attorney advised that plaintiff should endorse the certificate, then have the president and the secretary of the corporation sign the certificate, as they had not yet done so. Pursuant to these instructions from his attorney, Sam Goltzman went to the office of the corporation on June 1, 1978 and delivered the endorsed certificate to his son. Then Ronald 0. Goltzman as president and Grace Dent Kennedy as secretary-treasurer of the corporation signed the certificate in plaintiff’s presence, and defendant kept the certificate.

As stated above, the trial judge held that since the certificate had not been signed by the president and by the secretary of the corporation at the time plaintiff delivered it to defendant, the certificate was defective, plaintiff owned no stock, there was no transfer of stock and plaintiff was entitled to a writ of mandamus. We cannot agree.

A properly executed certificate of stock should contain the signatures of the corporation’s president and secretary. LSA-R.S. 12:57(A) states:

“A. Every shareholder shall be entitled to a certificate of stock signed by the president and secretary, or by such other officer or officers of the corporation as the articles or by-laws may provide.”

However, a certificate is not the actual shares of stock which are the subject of ownership, it is merely evidence of the ownership of stock. Succession of McGuire, 151 La. 514, 92 So. 40 (La.1922); Finn v. Ponsaa, 308 So.2d 352 (La.App., 4th Cir. 1975).

LSA-R.S. 12:1(F) states:

“F. ‘Certificate of stock’ means a properly executed instrument evidencing the fact that the person therein named is the registered owner of the shares therein described.”

Under the above principles of law, it is clear that at the time Sam Goltzman endorsed and delivered the certificate to his son, he owned 12 shares of stock in the corporation. However, he did not have a valid certificate as evidence of ownership of the stock, because the certificate had not been signed by the corporation’s president and secretary. Nevertheless, under LSA-R.S. 12:57(A), Sam Goltzman had a right to demand from the corporation that these missing signatures be provided, and he did so. And, when the president and the secretary signed the certificate in plaintiff’s presence, all ministerial acts necessary to evidence legal issuance of the certificate to plaintiff were complete. The fact that the certificate had previously been endorsed and delivered by plaintiff to his son, cannot nullify the signatures of the officers secured on plaintiff’s request.

We conclude the defendant, as president of the corporation, has already performed all ministerial acts required of him to issue to plaintiff a certificate for the stock purchased by plaintiff from the corporation. Plaintiff is not entitled to another certificate.

Although counsel have argued in their briefs the issue of the validity of the donation of the stock, we conclude that question is not before us. Plaintiff prays only for a writ of mandamus ordering defendant, as president of the corporation, to issue twelve (12) shares of stock to plaintiff. We find the stock has already been issued to plaintiff, and the writ must be denied. Neither plaintiff nor defendant (personally) seek in these proceedings to be recognized as owner of the stock.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of defendant dismissing plaintiff’s suit at his cost.

REVERSED AND RENDERED.


text:
    PELICAN AVIATION CORPORATION et al., Plaintiffs-Appellees, v. AIRPORT AUTHORITY FOR the PARISH OF IBERIA, Louisiana, Defendant-Appellant.
    No. 7168.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1979.
    Roy & Forrest, Leon E. Roy, Jr., New Iberia, for defendant-appellant.
    Jack J. Cousin, New Iberia, for plaintiffs-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

This suit was brought to have the award of a lease following a competitive bidding procedure declared null and void and to enjoin the execution of the lease. Plaintiffs are Pelican Aviation Corporation and eight residents and taxpayers of Iberia Parish. Defendant is the Airport Authority for the Parish of Iberia. Acadiana Aircraft, Inc. and its incorporators, Arthur H. Flemming and Steven W. Jones, intervened, seeking to protect their interests as the concern to whom the bid award had been made. After a trial on the merits, the trial court rendered a judgment, declaring the bid award null and void and issued a permanent injunction, prohibiting the defendant and in-tervenors from executing a lease agreement on the basis of it. This appeal was brought by defendant following the denial of its motion for a new trial. The intervenors have not appealed.

The following issues have been raised on appeal:

(1) Was the trial court correct in determining that the bid award is null and void?
(2) Are plaintiffs estopped from contesting the validity of the bid award?
(3) Is injunctive relief proper in this case?

1.

One of several reasons advanced by the trial court for its finding that the bid award is null and void was its conclusion that the bid specifications were too indefinite. After reviewing the entire record, we are in agreement with that determination.

Defendant advertised for bids for the right and privilege to lease certain land and improvements at Acadiana Regional Airport and to become a “Land Plane Fixed Base Operator” at the airport. The bid proposal provided that the successful bidder would be permitted and required to sell and dispense aviation fuels and oils, conduct flight activities, and provide certain services in accordance with the terms of the bid proposal and a written compilation of standards titled, “Minimum Standards for the Conduct of Commercial Aeronautical Services and Activities at Acadiana Regional Airport.”

According to that compilation of standards, a copy of which was made available to the bidders for inspection, the services required of a fixed base operator include the furnishing of aircraft line services (fueling, lubricating, miscellaneous service, ramp parking and tie-down, hangar storage, loading and unloading, towing, etc.) and aircraft maintenance and repair services. In addition, a fixed base operator is required to conduct certain flight activities, including flight instruction and training, aircraft chartering, and selling and renting new and used aircraft.

The bid proposal also provided that the successful bidder would be required to build at its cost and expense at least one 10-unit T-hangar facility. Those submitting bids were also encouraged to include in them additional items of capital improvement, such as other hangar facilities, which they intended to make if awarded the lease.

In return for allowing the successful bidder to use the airport land and facilities to conduct a fixed base operation, defendant was to receive payment in money in addition to the benefit of having the required services and flight activities made available to airport users, and having the capital improvements made to the airport. The monetary payment was to be in the form of ground rent, existing hangar rent, office rent, building structural maintenance rent, aircraft ramp and tie-down, area parking fees and royalties, and royalties on fuel and oil sold by the lessee.

Three bids were submitted in response to defendant’s advertisement, including one from plaintiff, Pelican Aviation Corporation. Defendant employed a firm of certified public accountants to evaluate the bids in order to determine which promised the highest monetary return. In order to perform that task, the accounting firm found it necessary to make numerous projections and assumptions that were not included in the bid proposal. This was due to the fact that the income which defendant was to derive from the lease depended on many variables, such as the amount of fuel and lubricants that would be sold by the lessee and the value of the capital improvements that would be made.

After a comparative evaluation of the bids was made, a report was sent by the accounting firm to defendant, accompanied by a letter containing the following comment:

“We feel that the proposals as requested and submitted result in highly subjective answers as to values due to the assumptions and projections required in any determination of the value of such, bids. Selection of assumptions and projections other than those used in preparation of this report could result in answers significantly different from those derived herein. Serious consideration should be given to the rejection of all bids and readvertis-ing for bids with a clear indication of the projections and assumptions (total annual activity, total based aircraft, fuel and oil flowage, etc.) on which the bids will be evaluated.”

The opinion expressed there was shared by Mr. Michael J. DeBlanc, another certified public accountant, who testified at the trial. Mr. DeBlanc demonstrated how a different result could be reached by using an alternative set of projections and assumptions.

Defendant elected not to act upon the suggestion of rejecting all of the bids and readvertising. However, it did change some of the projections and assumptions made by the accounting firm, following a discussion at an informal meeting of the Airport Authority on December 21, 1978. The result was that a recomputation showed the intervenors’ bid to be the highest, rather than the second highest as shown in the accounting firm’s report. The bid award was made on the basis of that recomputation.

Under these circumstances, we agree with the trial court that the bid specifications were far too vague and indefinite to support a valid award of a public contract. It is well settled that the requirement of public bidding is not fulfilled unless there are sufficiently definite and explicit plans adopted before hand. Sylvester v. Town of Ville Platte, 218 La. 419, 49 So.2d 746 (1950). The bids which were submitted in this case were insufficient to serve their purpose of insuring fair competition among those bidding and protecting the public from the possibility of bias and favoritism in making the award.

We find it unnecessary to discuss the numerous issues raised by some of the other reasons assigned by the trial court for its finding that the bid award is null and void. We believe that the above adequately supports our conclusion that the decision of the trial court was correct.

2.

Defendant argues that plaintiffs are equitably estopped from contesting the validity of the bid award, due to Pelican Aviation Corporation’s participation in the bidding procedure. Defendant’s plea of estop-pel is not well taken. We have determined that the bid award was made in violation of the requirement of public bidding, which is imposed for the protection of the taxpayers. The doctrine of equitable estoppel has no application in such a case. Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943).

Furthermore, there are eight other plaintiffs in this case against whom estop-pel cannot be properly invoked. Defendant argues that they are privy to Pelican Aviation Corporation’s actions because of an alleged close connection to it, however, we find no support in the record for that allegation.

3.

Defendant’s contention that injunc-tive relief is improper in this case is also without merit. The arguments that it makes ignore the fact that this is not simply a case of a corporation attempting to avoid a loss in a private commercial venture. Eight of the plaintiffs are residents and taxpayers of Iberia Parish, who seek the prevention of what under our holding on the first issue would be an unlawful act. It is well settled that injunctive relief is available to restrain the enforcement of contracts made in derogation of public bid laws. Bartley, Incorporated v. Town of Westlake, 237 La. 413, 111 So.2d 328 (1959); Hall v. Rosteet, 247 La. 45, 169 So.2d 903 (1964).

For the above and foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


author: BOWLING, Justice,

text:
    MISSISSIPPI VALLEY TITLE INSURANCE COMPANY, a Mississippi Corporation, and First Memphis Realty Trust v. HORNE CONSTRUCTION COMPANY, INC., Roell Development Corporation and Le Roy Roell, et al.
    No. 50934.
    Supreme Court of Mississippi.
    May 16, 1979.
    Butler, Snow, O’Mara, Stevens & Canna-da, W. Scott Welch, III, Taylor, Covington, Smith, Matrick & Gibson, Charles E. Gibson, III, Jackson, for appellant.
    Binder, Moore & Howell, William B. Howell, Jackson, for appellees.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This case originated in the Chancery Court of the First Judicial District of Hinds County. The primary question involved is whether or not under the record of this particular case a mortgagee is entitled to a deficiency decree against the mortgagor. The lower court denied the mortgagee a deficiency judgment and it appeals. Due to the complexity and voluminous pleadings and evidence, it is necessary to discuss the pertinent parts thereof.

On November 26, 1973, appellant, First Memphis Realty Trust [hereinafter designated FMRT] entered into a construction loan agreement, deed of trust, and promissory note with Roell Development Corporation [hereinafter referred to as RDC], whereby FMRT agreed to loan the mortgagor the total sum of $1,490,000 for the construction of a motel in Jackson, Mississippi. A personal guarantee of the loan was executed by Le Roy Roell. The motel was to be constructed in two stages; first, there was construction of the room part, and then construction of the office, restaurant and lounge part. Horne Construction Company, a Mississippi Corporation, entered into an agreement with RDC to complete the second phase of the construction work for an agreed amount. Work on this part was started in the fall of 1974. As shall be discussed, difficulties arose in Horne Construction Company [hereinafter called Horne] receiving payments as agreed upon. The work was in the last stages of completion when, in October, 1975, FMRT foreclosed on its deed of trust and purchased the entire property at the foreclosure sale for the bid of $1,170,000. There were no other bidders.

The litigation in this cause was started by Horne, who filed a bill of complaint on February 23, 1976, in the chancery court against RDC, Le Roy Roell, Robert Mack Day, FMRT and Mississippi Valley Title Insurance Company, in which Horne claimed that the defendants owed him a balance of the agreed construction price. FMRT filed its answer to the Horne bill of complaint and included therein a cross-bill of complaint against RDC, Le Roy Roell and Robert Mack Day. The bill requested a decree in the nature of a deficiency decree represented by the difference between the amount of the loan plus interest and the purchase price of the property at the foreclosure sale.

At the conclusion of the evidence for all parties, the court entered into its decree awarding Horne judgment against all defendants for the balance due him for his work. The court, in its opinion and resulting decree, dismissed the cross-bill of appellant FMRT against RDC, Roell and Day. Although appeal was prosecuted and partially briefed in an attempt to reverse the decree in favor of Horne against all defendants, that part of the case was settled and is no longer before the court. In discussing the dismissal of the cross-bill of FMRT requesting a deficiency judgment, the court said:

The court has considered the pleadings, the documentary and oral evidence including approximately eight days of testimony, arguments of counsel and briefs as to facts and conclusions of law.
With regard to the foreclosure sale, the Court finds that FMRT paid less than that which was owed, but the Court cannot say that the amount was unconscionably low, and under the circumstances was simply a prudent amount by FMRT. He who pays the piper calls the tune. Here, FMRT relied on the contractual agreement of Roell not to transfer title prior to the completion of the project, and where there was an intervening lien between the time that Roell did in fact transfer ownership from Roell Development to RODA, then FMRT became justified in exercising its right to foreclose to protect itself. The fact that an attorney in the same firm that represented FMRT actually did the preparation of the corporate papers would not impute knowledge necessarily to FMRT absent a showing of actual knowledge. Therefore, the Court finds that FMRT did not waive its right to exercise its right to foreclose.
On the other hand, although the amount paid at the foreclosure sale was not unreasonable so far as FMRT is concerned, under the circumstances, by the same token, there seems to be some element of high-handedness in the moving to protect their position (FMRT) which left the relative positions of the two parties, Roell and FMRT, on nothing like an equal basis. Roell had had good reason to believe that FMRT was going to pay the additional $500,000 necessary to complete the project and while he or it violated the written agreement between the parties, by virtue of the transfer of title to RODA, it seems to the Court to be something which could have been waived by FMRT but did not have to be. Under the circumstances, it would have been extremely difficult for Roell to have found alternate financing in time to prevent the foreclosure. While we cannot say the price paid at the foreclosure was too low, nevertheless, it was a price set by FMRT, and there is evidence in the record indicating that the property is worth more than the amount owed altogether, and only a short time before foreclosure, FMRT was willing to put $500,000 more into the property. Under these circumstances, it does not seem equitable for FMRT to have been allowed to move on the foreclosure basis, establish a price which left them entitled to, on the face of it, a substantial deficiency judgment and reap whatever benefits might come from that as well as owning the whole property. Therefore, the Court finds that FMRT is not entitled to a deficiency judgment or cost of collection against Roell. (Emphasis added)

At the outset we call attention to the time-honored principle that the finding of the chancellor will not be overturned unless this Court finds him to be manifestly wrong. Citations of authorities on that principle are too numerous to repeat here. Therefore, we need to condense the testimony in regard to the finding that a court of equity did not give FMRT a deficiency judgment against RDC and Roell under the facts of this particular case. A study of the authorities cited by the parties and research reveal that although there are basic principles of law involved, a decision of cases similar to that here requires a consideration on a case by case basis.

FMRT basically contends that it is entitled to a deficiency decree mainly because the chancellor stated he could not find the bid of FMRT at the foreclosure sale to be unconscionably low. We first point out that this was only one finding of the chancellor after considering, according to him, “oral evidence including approximately eight days of testimony,” etc. He further found that “he who pays the piper calls the tune” and elaborated on this profound statement by finding that there was some “element of high-handedness in the moving to protect their position (FMRT), which left the relative positions of the two parties Roell and FMRT on nothing like an equal basis.” He further definitely found, as seen above, that it was not “equitable” for FMRT under the facts of this particular case to receive a deficiency decree.

The principle involved here is announced in 59 C.J.S. Mortgages § 778, page 1474 (1949), as follows:

The mortgagee’s right to a deficiency decree usually depends on the facts and circumstances of each case, and, since the mortgaged premises constitute the primary fund for the payment of the mortgage debt, it is only where the mortgagee has endeavored to collect it out of the land that a just judgment for deficiency can be entered. While it has been held that the power to render a deficiency decree is governed by the rules which would apply at law, it has also been held that the court has jurisdiction after a foreclosure sale to determine any intervening fact which would make it inequitable to enter a deficiency decree. Accordingly, no right to a deficiency judgment vests until plaintiff satisfies equity that it would be equitable, in the light of the sale price, to authorize a deficiency judgment. (Emphasis added).

Testimony considered by the chancellor in finding an inequity is revealed in various parts of the testimony and the evidence. There was ample testimony that in March and April, 1975, Horne was having difficulty securing his construction payments. There is ample testimony, and it is an important consideration here, as the chancellor found, that FMRT agreed with Horne that it would guarantee the payment of the funds sufficient to complete the work. This is further borne out by the fact that Horne did go ahead with the work.

The initial loan amount included the first year’s interest. The record is not clear as to what other deductions were made therefrom such as discounts, etc. Beginning the latter part of 1974, interest was due on the debt payments and continued to be due until foreclosure. The proof, however, is abundant for the chancellor to find, as he did find, that in March, 1975, FMRT and Roell agreed that the former would enter into an additional agreement whereby FMRT would advance sufficient funds to complete the construction work. FMRT denied that it so agreed, but its subsequent actions greatly weakened this contention and strengthened the contention of Roell. There was abundant testimony that in April FMRT agreed to prepare a second set of contracts, deed of trust and note in the total sum of $500,000, although the proof showed that only approximately $80,000 was required to complete the project. The explanation of FMRT on this was that it wanted “to be sure” that additional advancements would be sufficient.

The testimony is ample that RDC and Roell waited from April until June for FMRT to complete the necessary papers to secure the additional funds and this was on the definite representation of the duly authorized representative of FMRT. Obviously, this was the reason Roell did not attempt to secure funds elsewhere. According to Day and Roell, the explanation for the delay in completing the additional instruments was that “it was just taking time” and that they would be forthcoming on June 24, 1975. In the meantime, the Memphis attorney for FMRT, by letter dated May 23, 1975, wrote a member of the firm representing appellant FMRT stating that it was,

[Contemplating the foreclosure of the lien of the deed of trust on the Quality Motel property. The trust is still meeting with Le Roy Roell concerning some sort of workout arrangement, but they do want to have someone on call familiar with the situation. It is anticipated that the negotiations will not be satisfactory and that the foreclosure will result.

We bear in mind in the previously discussed testimony that at this time and as later confirmed FMRT definitely had agreed to advance future funds to complete the work. This is evidenced by the instruments in the record that finally were presented to appellees and their attorneys on June 24, 1975, to guarantee maximum additional funds of $500,000, whereas only a small part of that amount undisputedly was needed. These instruments actually were executed by appellant and appellees. It is clear from the above discussions, therefore, that the chancellor had adequate evidence to find that appellees were misled and were relying on the assurances of FMRT that the project would be completed. The chancellor, therefore, found that the “high-handedness” of FMRT left the parties on “nothing like an equal basis.”

FMRT contends that the reason it “went back” on its agreements and foreclosed the deed of trust was that in June, 1975, the property was transferred from RDC to RODA, a Mississippi corporation. There was sufficient testimony before the lower court to find that this was the agreement of the parties. The testimony of Roell and Day was that RODA was organized for the sole purpose of taking over and operating the motel. In fact, the same attorney to whom the letter from the Memphis attorney for FMRT was written in May, 1975, employing him to foreclose the deed of trust, was the same attorney who organized RODA. We mean no implication by this as nothing is shown in the record to imply unethical conduct. There is testimony in the record that on February 14, 1975, the insurance policies were issued showing RODA as the insured and that this information was conveyed to FMRT. Frank Benton, the head man for FMRT, testified that he “knew about this and expected RODA to manage the motel.” Yet the sole reason given for not advancing the funds under the instruments executed on May 24, 1975, was that it had ascertained that title to the property had been transferred to RODA. Benton admitted that in September, 1974, he knew that a television lease had been entered into between RODA and the television company. He admitted receiving the lease on March 21, 1975, and admitted receiving the policy issued to RODA on the same date.

Testimony is undisputed that immediately upon being confronted by the transfer, it was offered to re-transfer the property to RDC. The reason given by FMRT in refusing this was that in the meantime a lien for $10,000 for engineering services had been placed of record. There was abundant testimony that the additional advances under the instruments of May 24,1975, included payment of this account. Therefore, there was ample testimony for the chancellor to find that the sole reason given by appellant to foreclose [that is, that the property had been transferred] was really and truly an excuse and not a real reason that could not be corrected. The testimony of Day, an officer of RDC, was that he and Benton of FMRT had a conversation about the transfer long before it occurred and that it was agreed upon.

From the foregoing discussions, it is clear that the chancellor had ample evidence on which to find that it was not “equitable” for a court of equity to decree a deficiency decree in favor of FMRT. As stated at the outset, cases of this nature are decided on a case by case basis under equitable principles — regardless of the technical designation of that principle, whether equitable estoppel or otherwise. The primary decision is for the chancellor and his decision will not be disturbed unless manifestly wrong. We cannot say that this was the case here. It follows that the cause must be and it is affirmed.

AFFIRMED.

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


text:
    INDIAN HEAD, INC.,-DEMCO, GREENVILLE DIVISION v. Edna G. BOLTE.
    No. 51036.
    Supreme Court of Mississippi.
    May 23, 1979.
    Rehearing Denied Aug. 1, 1979.
    Shell, Buford, Bufkin, Callicutt & Perry, K. Hayes Callicutt, Jackson, for appellant.
    Dixon L. Pyles, Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

REVERSED AND REMANDED TO THE WORKMEN’S COMPENSATION COMMISSION.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    Mrs. Grady E. GUNTHARP, Sr. v. PLANTERS OIL MILL.
    No. 51271.
    Supreme Court of Mississippi.
    May 30, 1979.
    Rehearing Denied Aug. 1, 1979.
    Parker, Averill & Butts, Roy 0. Parker, David 0. Butts, Jr., Tupelo, for appellant.
    Dulaney & Dulaney, J. W. Dulaney, Jr., Tunica, for appellee.
   Appeal from Chancery Court, Tunica County; Harvey T. Ross, Chancellor.

Before SUGG, BROOM and COFER, JJ.

AFFIRMED.


author: LEE, Justice,

text:
    YELLOW CAB COMPANY OF BILOXI, INC. and C & E Transportation of Biloxi, Inc. v. CITY OF BILOXI and Diamond Cab of Biloxi, Inc.
    No. 51298.
    Supreme Court of Mississippi.
    July 18, 1979.

      Ross & King, Walter E. Ross, Jr., Biloxi, for appellants.
    Page, Mannino & Peresich, Paul J. Del-cambre, Jr., Cono A. Caranna, II, Biloxi, for appellees.
    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   LEE, Justice,

for the Court:

Diamond Cab of Biloxi, Inc. [Diamond Cab] applied to the Biloxi Taxicab Administration Board [Board] for operators’ licenses (certificates of public convenience and necessity) to operate ten (10) additional taxicabs in the City of Biloxi. The application was contested by Yellow Cab Company of Biloxi, Inc. [Yellow Cab] and C & E Transportation of Biloxi, Inc. [C & E]. On the hearing, the Board recommended, and the Biloxi City Council [Council] granted, the licenses, and, upon the appeal of Yellow Cab and C & E to the Circuit Court of Harrison County, the order of the Council was affirmed.

Yellow Cab and C & E have appealed to this Court assigning three errors in the trial below. The assignments of error actually present three questions: (1) whether or not there was substantial evidence to support the finding of the Board and Council, (2) whether or not a previous order denying the application of appellee, Diamond Cab, for licenses was res judicata of the present cause, and (3) whether or not the amended ordinance under which the licenses were granted was valid and effective at the time of the grant.

I. - II.

The proof before the Board, as reflected by a special bill of exceptions, consisted of testimony by Virgil Lucky and Robert Travis, owners of Diamond Cab, to the effect that there was a need for additional taxicabs and that Diamond Cab was solvent and in a position to operate efficiently. Also, there were introduced, as exhibits, a number of letters from various individuals, in-eluding three (3) motels/hotels, that there was a need for the additional taxicabs.

The contestants introduced letters from a number of individuals and testimony of five (5) persons connected with transportation facilities in the area, including owners of Yellow Cab, that there was no need for additional taxicabs and that licenses, which had been granted, had not been utilized by Yellow Cab and other companies due to a lack of business.

The appellant contends that on February 10, 1978, the Circuit Court of Harrison County reversed an order of the same Board and Council granting licenses to Diamond Cab. Thereafter, on March 6, 1978, pursuant to recommendation of the Board, the Council adopted an amended ordinance, decreasing the requirements for licenses from six (6) to three (3), which the Board had to consider before granting licenses.

Appellants argue that res judicata applies when four (4) identities are present: (1) object sued for, (2) cause of action, (3) identity of parties, and (4) quality of character in the person against whom suit is brought, which were stated in Magee v. Griffin, 345 So.2d 1027 (Miss.1977). The appellee takes the position that the cause of action is not the same, or that there is no identity of cause of action, since the ordinance under which the first application for licenses was denied, when amended, changed the requirements for licenses, thus changing the cause of action.

In view of our conclusion on the third question raised by the assignments of error, it is not necessary for us to decide the questions of whether there was substantial evidence to support the action of the Council in granting the licenses and whether the previous action of the Circuit Court in reversing the Council and denying the licenses is res judicata of the second proceeding.

III.

Appellant contends that the ordinance adopted March 6, 1978, under which the present ten licenses were granted, is invalid for the reasons that (a) the ordinance was adopted as an emergency ordinance, and was declared by its terms to be immediately effective, when the statute [Mississippi Code Annotated Section 21-13-3 (1972)] requires that such an ordinance be filed for two (2) weeks with the city clerk before it become effective; (b) the statute [Mississippi Code Annotated Section 21-13-11 (1972)] provides that an ordinance shall not be effective until the expiration of thirty (30) days after its enactment unless it is for the immediate preservation of the public peace, health and safety, or other good cause, and that the present ordinance, as amended, did not so indicate; (c) the statute requires that the ordinance be adopted by unanimous vote of all members of the governing body, whereas, the present ordinance was adopted by two (2) city councilmen, the mayor being absent; and (d) the application for the licenses was filed within a period of thirty (30) days after adoption of the amended ordinance, during which period such ordinance had not become effective, and the licenses were void, having been granted while such ordinance was not in effect.

Section 21-13-3 provides that every ordinance granting any right to use the streets of a municipality for any purpose shall be introduced in writing at a regular meeting of the governing body and shall thereafter remain on file with the municipal clerk for two (2) weeks before passage. The record reflects, and it is undisputed, that such was not done in the adoption of the subject ordinance.

Section 21-13-11 (1972) provides that no ordinance shall be in force until one month after its passage, with the exception that, if the ordinance is for the immediate and temporary preservation of the public peace, health and safety, or other good cause, it may be made immediately effective. The ordinance must be adopted by unanimous vote of all members of the governing body and must contain the statement setting forth why it is necessary, or what the good cause is, for the ordinance to become immediately effective.

The ordinance in the present case concluded with the language of the statute, as follows:

“This ordinance being for the purpose of the preservation and protection of the public health, safety and general welfare of the citizens of the City of Biloxi, the same shall be in force and take effect from and after its passage, nevertheless to be published as required by law.”

The general statement does not specify, or indicate, how the immediate preservation of the public peace, health and safety of the citizens of Biloxi requires the ordinance to be immediately effective, and no other good cause is set forth. The statute was not complied with in this respect to render it effective. Streckfus Steamers, Inc. v. Kiersky, Assessor, 174 Miss. 125, 163 So. 830 (1936).

The Council contends that the question of the validity of the ordinance was not raised before the Board and Council, and that it should not be considered by this Court. The bill of exceptions indicates that briefs were submitted to the Board. Those briefs are not a part of the bill of exceptions and it is not indicated what questions were presented by them to the Board and Council. Even though a bill of exceptions is defective, if the judgment is erroneous on its face, it will be reversed [Commercial Bank of Manchester v. Coroner of Yazoo County, 7 Miss. 530 (1842)], and plain error, not assigned or distinctly specified, may be noticed by this Court [Rule 6, Miss.Sup.Ct.Rules].

We hold that the amended ordinance, although it may have become valid thirty (30) days after its enactment, was ineffective at the time of the applications by appellee, Diamond Cab. for the ten licenses, and at the time same were approved and granted, and that the licenses issued under said ordinance were, and are, á nullity. Therefore, the judgment of the Circuit Court is reversed and judgment is entered here for appellants.

REVERSED AND RENDERED.

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


text:
    George W. PAYNE et ux v. R. L. TOUCHSTONE et ux.
    No. 51354.
    Supreme Court of Mississippi.
    July 18, 1979.
    Rehearing Denied Aug. 1, 1979.

      Harry P. Hewes, Gulfport, for appellants.
    Jason H. Floyd, Gulfport, for appellees.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

George W. Payne and Hilda Kay Payne, his wife, filed suit in the Chancery Court of the First Judicial District of Harrison County, Honorable Frank W. Alexander, presiding, against R. L. Touchstone and Mattie E. Barnett Touchstone, husband and wife, seeking (1) a mandatory injunction to enjoin the obstruction of the natural flow of water from the Paynes’ property onto the Touchstones’ property, and to require removal of a wall or barrier placed along the property line between the parties by the Touchstones, and (2) actual and punitive damages, and other relief. The chancellor sustained a motion to strike averments of the complainants’ bill relating to actual and punitive damages, denied all other relief sought in the bill of complaint, and dismissed same with prejudice at the cost of the Paynes.

The appellants, Paynes, first contend that the chancellor erred in declining to grant injunctive relief to them requiring the ap-pellees, Touchstones, to remove a fill and retaining wall placed by them along the property line between the parties and in declining to restrain the appellees from further obstructing the natural flow of surface rainwater.

The parties own and occupy residential property adjacent to each other, the appellants owning Lot 1, Block 3, of Singwood Subdivision, and appellees owning Lot 2 thereof. Appellants’ property is north of appellees and is the upper lot. The boundary line between the parties runs in a general northwesterly-southeasterly direction. Prior to June, 1977, appellees began filling in with dirt along their property opposite appellants to divert and fend off surface water from the Payne property. Around that date, the Paynes installed gutters on their house, four (4) of which faced away from the Touchstone property while two (2) discharged water towards the Payne-Touchstone boundary. After installation of the gutters, appellees began the construction of a block wall along the property line from two (2) to three (3) feet high which effectively caused water to back up and pool on the Payne property during and after rains.

Appellants contend that prior to the erection of the wall and fill by appellees, their property drained and dried out after rains without any problems, and that, when the wall was constructed, appellants’ backyard filled with water, remained boggy and emitted an odor for long periods. The evidence indicates that prior to installation of the gutters on appellants’ house, water had run into the appellees’ carport on at least one occasion after rains, and that no greater amount of water was caused to flow toward and across the appellees’ property after installation of the gutters than prior thereto. Also, the water discharged from the gutters was diffused, or spread out, and by the time it reached the Touchstone property, was flowing in its natural state.

The rule is recognized in Mississippi that the owner of unimproved upper lands has the right to let diffused surface waters on his land flow in an unimpeded natural state onto the lands of the lower adjacent owner. However, the owner of such upper lands does not have the right to collect and discharge water on the lower owner, even though it is in no greater capacity than that which naturally flows from his property. Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925 (1945). The upper landowner, likewise, cannot by artificial means discharge such water in increased quantities which would make the waters more burdensome on the lower landowner. Newton Coca-Cola v. Murphy, 212 Miss. 823, 55 So.2d 485 (1951).

In Holman v. Richardson, 115 Miss. 169, 76 So. 136 (1917), the parties resided upon adjacent lots, the complainant’s lot being the upper or higher lot. A hollow or depression in the lot, not being a well-defined channel, carried a great deal of water between the lots after rains to a ditch across the defendant’s lot, thence to a public drain along a street. There were underground drains on the property of the complainant which caused the flow of water to move faster from said property to the beginning of the ditch across the defendant’s lot, but the drains did not carry more surface water than would ordinarily pass upon the defendant’s land. The defendant erected a brick wall to stop and turn back the flow of water onto the complainant’s lot, an injunction was issued by the chancery court prohibiting the defendant from so doing, and, on appeal, this Court said:

“[Wjhen adjoining lots owned by different persons are on a different level, so that there will be a natural flow of rainwater in a diffused state from the higher to the lower level, the owner of the lower lot may fend water therefrom, provided he does so for proper objects and exercises reasonable care to prevent unnecessary injury to the higher lot. .
[Wjhere two methods of disposing of such water are available to the owner of the lower lot, . . . one of which will damage the adjoining property and the other will not, the latter must be adopted by the owner of the lower lot in fending the water therefrom.” 115 Miss, at 179, 76 So. at 137.

One party must so use his own property as not to unnecessarily injure the property of others. In Homes, Inc. v. Anderson, 235 So.2d 680 (Miss.1970), there was involved the natural flow of surface water and the Court entered a mandatory injunction ordering the owner of the upper land to install drains and build a wall to prevent the natural flow of water from passing over the lands of the lower owner. Homes, Inc. cleared its lands west of Anderson for development and removed trees and undergrowth from same, which had prior thereto reduced the speed with which the runoff surface water reached Anderson’s property through a natural drain or watercourse. The runoff, after clearing, moved silt and dirt into Anderson’s pond. The evidence reflected that drains installed by Homes, Inc. had the same fall, followed the same natural watercourse, and delivered that water as before. The Court said:

“In Lauck v. Gilbert, 252 Miss. 371, 173 So.2d 626 (1965) the Court quoted with approval a statement appearing in 93 C.J.S. Waters § 114a(4) (1956).
The upper owner of land has the right, without interference to have the flow of the surface water follow along a well-defined watercourse from his land. Where surface water has been accustomed to gather and flow along a well-defined channel, which by frequent running it has worn into the soil, it has been held that it may not be obstructed to the injury of the dominant proprietor, but the upper owner cannot prevent interference with the drainage of surface water unless the servitude be clearly and permanently impressed on the property. Where a ditch is constructed across the lands of two adjacent proprietors in accordance with the natural flow of water, neither can disregard the rights of the other by changing the course of such water.
This is not a case of gathering into an artificial channel rain or surface water which had previously dispersed over the land and by that means discharging it in an artificial manner upon the lands of another.
The evidence in the record compels the conclusion that the clearing of the land and the installation of the drain in no way changed the course of the natural channel into which such surface waters previously had flowed and had been carried into the pond. It cannot be disputed that these things caused appellants’ land to be drained more efficiently and thus the flow was accelerated.
To sustain this injunction would deprive appellant of the right reasonably to improve and use its property for a legitimate purpose and would impose an oppressive expense and hardship not justified by any circumstances in evidence.
Moreover, adequate provision for carrying off the water coming into the pond from all sources, even in the case of excessive rainfall, obviously requires no more than the installation of a drain or spillway of a somewhat larger capacity than the one in place when the levee was damaged. To require the owner of higher lands to retain upon such lands all of the water coming onto them and to allow none of it to escape and flow onto the lands of his neighbor onto which they always had naturally flowed theretofore is to require a practical impossibility. Moreover, such a course would impose an intolerable burden upon the owners of the upper lands in every watershed.” 235 So.2d at 682, 683.

The appellees argue that installation of two gutters pointed toward their property collected and discharged roof water upon it. However, the evidence does not reflect the roof area drained by the gutters and there is indication that by the time such waters reach the property line they are again flowing in a diffused state. An upper landowner may increase the flow of water in a reasonable exercise of his right of drainage in the development of his property, even if it results in drainage exceeding the capacity of the natural watercourse. Shattles v. Field, Brackett and Pitts, 261 So.2d 795 (Miss.1972).

The topographical survey introduced in evidence reflects that the elevation along the property line at the southeast area varies from 25:88 feet ground elevation to 23:95 ground elevation near the center of the boundary line to 24:49 past the center mark to 26:07 at the northwest area of the said boundary. It is significant that the survey shows a higher elevation toward the northwest area of the boundary line which joins the public street and indicates that the natural flow is across the property of appel-lees. It further indicates that the higher elevation at the northwest area would prevent the water flowing to the street, probably even with a ditch.

We are of the opinion that the chancellor was manifestly wrong in denying the in-junctive relief sought as to the flow of surface water from appellants’ property onto the property of appellees, resulting from the wall and fill. The judgment of the trial court is reversed and judgment for such injunctive relief is entered here. However, the cause is remanded to the chancery court for further consideration as to the manner in which the injunction shall be issued for the purpose of permitting the surface waters to flow from the property of appellants to and over that of appellees and for the purpose of assessing or fixing among the parties any expenses of accomplishing such result.

Appellants further complain that the chancellor erred in striking that part of the bill of complaint averring claims for actual and punitive damages, and in declining to grant injunctive relief against appellees in using outbuildings and storerooms on their property for commercial uses in violation of certain protective covenants and in declining to grant relief against appellees for trespass, threats and similar matters averred in the bill of complaint. We have carefully examined assignments relating to those contentions, and find them to be without merit, and that the judgment of the trial court should be affirmed as to same.

AFFIRMED IN PART, REVERSED AND JUDGMENT ENTERED HERE IN PART, AND REMANDED.

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


text:
    Willie J. HALL v. STATE of Mississippi.
    No. 51310.
    Supreme Court of Mississippi.
    July 18, 1979.
    Carter & Davidson, Dudley H. Carter, Columbus, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Joe 0. Sams, Sr., Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Lawrence McDONALD v. STATE of Mississippi.
    No. 51031.
    Supreme Court of Mississippi.
    July 18, 1979.
    Alton Massey, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON,. C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    MARSHALL DURBIN FARMS, INC., et al. v. Gibb L. NORSWORTHY.
    No. 51245.
    Supreme Court of Mississippi.
    July 18, 1979.
    Aultman & Aultman, Lawrence C. Gunn, Jr., Hattiesburg, for appellants.
    Louie M. Bishop, Waynesboro, for appel-lee.
   Appeal from Circuit Court, Wayne County; Lester F. Williamson, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.