author: SCHOTT, Judge. BEER, Judge,

text:
    Ralph A. CLARY, Sr. v. Mrs. Barbara Boesch, wife of Ralph A. CLARY, Sr.
    No. 7782.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Kirschenheuter, Landry & Shaw, Ernest T. Landry, New Orleans, for defendant-ap-pellee.
    Many, Lo Coco & Dwyer, Vincent T. Lo Coco, New Orleans, for plaintiff-appellant.
    Before BOUTALL, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing his suit for a separation from bed and board on the ground of abandonment.

In order to be entitled to a judgment plaintiff had to prove that, 1) his wife withdrew from the common dwelling; 2) she was without a lawful cause for withdrawing; and 3) she has constantly refused to return to live with plaintiff. LSA-C.C. Art. 143.

Plaintiff’s testimony that he did not want his wife to leave and has extended an open invitation to her to return was flatly contradicted by defendant who testified that the separation was mutually agreed upon and her husband never asked her to return. Plaintiff’s witnesses supplied corroboration only to the extent that defendant had left the matrimonial domicile and at one time or another plaintiff told them that she had left against plaintiff’s will and he wanted her to return.

In the final analysis the quality of the testimony of these witnesses depended upon the credibility of plaintiff, since they were simply repeating his self serving statements. It is significant that plaintiff said his original intention was to get a non-fault divorce based upon the couple living separate and apart voluntarily for two years, but as time went on he decided to attempt to prove defendant at fault so as to avoid liability for alimony. This tends to discredit plaintiff’s sincerity when he told these witnesses that the separation was not voluntary and that he wanted defendant to return.

The trial judge was in the best position to evaluate the credibility of both parties and we cannot say that he erred in accepting the testimony of defendant as opposed to plaintiff.

The judgment appealed from is affirmed. AFFIRMED.

BEER, J., concurs with written reasons.

BEER, Judge,

concurring.

I concur, being of the view that the majority is correct in its application of the existing law to the facts as they were apparently determined by the trial court.

However, I have misgivings about the laws’ strained effort to somehow equate “fault,” with all of its possible obligations, to “abandonment,” with all of its possible interpretations.

In Chamblee v. Chamblee, La.App., 340 So.2d 378, decided November 16, 1976, we said:

“Very often in these complex times, the decision to leave the matrimonial domicile is the result of a bilateral understanding on the part of the spouses.”

This observation was followed by a footnote, which observed:

“Although ‘leaving’ may be the harbinger of abandonment, there are many instances where such is not the case. Often the ‘leaving’ party has ‘left’ the matrimonial domicile completely free of any ‘fault’ and has taken himself (or herself) away from the matrimonial domicile to prevent added financial drain, the uprooting of children, the uprooting of elderly parents, the overall social implications, etc., etc.”

The plain fact is that contemporary life styles have markedly changed, but judicial determination of fault continues to depend upon often irrelevant facts such as who physically moves from the so-called matrimonial domicile or who tries hardest to “save” the failing marriage. The spectrum of possible exposure to some future alimony obligation is the genesis of this preoccupation with fault. While I take no issue with the adjudication of fault in cases where the record clearly supports such a legal and factual conclusion, I believe that the records in many so-called abandonment cases are simply not able to convincingly or even fairly support the fault determination that the trial court is, nevertheless, obliged to reach.

I take this method of attempting to point out what I believe to be a need for legislative reappraisal. Alimony is not — or should not be — the “spoil” of matrimonial warfare nor — even less — the knee jerk response to the superficial inquiry of who moved out of the house.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Jack Elmer BUNN v. O. L. BUNN, INC., et al.
    No. 7797.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      Jude Thaddeus Fanguy, Houma, for plaintiff-appellant.
    Baldwin, Haspel, Rainold, Meyer, Reso, Dussom & Little, Robert R. Rainold, New Orleans, for defendants-appellees, O. L. Bunn, Inc. and Mrs. Lucille Bunn Pierce.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

We are confronted with the question whether an involuntary proceeding for the dissolution and liquidation of a corporation may be instituted by summary process.

Plaintiff, a shareholder of O. L. Bunn, Inc., filed suit requesting the involuntary liquidation of the corporation. The petition contained a prayer for an order directing the defendants to show cause why the corporation should not be placed in involuntary judicial liquidation. Plaintiff appeals from a judgment maintaining an exception of unauthorized use of summary proceedings. We affirm.

Those matters which may be tried or disposed of by summary proceedings are set forth in LSA-C.C.P. art. 2592. Plaintiff relies on Section (9) of that article: “All other matters in which the law permits summary proceedings to be used.” According to plaintiff, the “law” permitting the use of summary proceedings in this case is LSA-R.S. 12:146(A) which reads:

§ 146. Dissolution proceedings under judicial supervision; procedure; powers of liquidator
“A. Dissolution under supervision by the court is a summary proceeding.”

We do not find authority, as plaintiff suggests, that this statutory provision authorizes the commencement of a suit for liquidation of a corporation by summary process. Although § 146(A) states that “dissolution” is a “summary proceeding”, LSA-R.S. 12:141(A)(B) defines when the dissolution takes effect. This section provides:

§ 141. Dissolution voluntary or involuntary, out of court or under judicial supervision; effect of proceeding for dissolution
“A. A Corporation may be dissolved and liquidated either voluntarily or involuntarily. If the proceedings are voluntary, they may be conducted either out of court or subject to supervision by the court. If the proceedings are involuntary, they shall be subject to supervision by the court.
“B. A proceeding for dissolution takes effect:
(1) When the appointment of a liquidator appointed by the shareholders becomes operative as provided in R.S. 12:142(B), if the proceeding, when commenced, is not subject to supervision by the court; or
(2) When the court has appointed, pursuant to R.S. 12:142(D) or 143(E), a judicial liquidator or a temporary liquidator, if the proceeding, when commenced, is subject to the supervision of the court.”

Further, LSA-R.S. 12:143(E) provides:

§ 143. Involuntary proceedings for dissolution; grounds; institution; appointment of liquidator
“E. The court may, after trial, appoint a judicial liquidator, and may, ex parte pending trial, appoint a temporary liquidator whose authority shall cease upon appointment of a judicial liquidator, upon dismissal of the petition, or upon appointment of a receiver.”

As we interpret these statutes, we are led to conclude that a suit for dissolution and liquidation of a corporation must be commenced via ordinaria. The statutes clearly indicate that summary process only comes into use when the proceeding for dissolution takes effect, i. e., after the court orders dissolution and makes the appointment of a judicial liquidator. The mere filing of a suit for dissolution does not place the corporation in liquidation. The proceeding to determine the initial question is one requiring the use of ordinary proceedings.

On the other hand, summary process is permitted for resolution of those matters growing out of the dissolution and liquidation. It is clearly contemplated that the use of summary proceedings is necessary to expedite the corporate liquidation. It is equally clear that “summary proceeding” referred to in § 146(A) relates to consideration of matters after the initial question has been determined, i. e., whether the corporation is to be involuntarily dissolved. A suit seeking involuntary corporate dissolution and liquidation must be brought via ordina-ria.

We reject further plaintiff’s argument that the time delays involved in a suit via ordinaria may result in dissipation of corporate assets to the prejudice of creditors and stockholders. This contention is disposed of by the clear wording of LSA-R.S. 12:143(E), supra, which provides for the appointment of a temporary liquidator pending determination of the demand for involuntary dissolution. As defendants point out, this appointee would maintain the status quo and preserve the assets of the corporation pending ordinary trial on the merits.

Finally, we find no merit to plaintiff’s contention that a suit for the involuntary liquidation of a corporation is not the kind of case requiring ordinary delays for answer, for filing exceptions and for use of discovery permitted in proceedings via ordi-naria. LSA-R.S. 12:143(A) sets forth nine grounds for involuntary dissolution. We cannot say, as claimed by plaintiff, that the proof required either to establish or to defend the grounds for dissolution is such that a trial on the merits by ordinary procedure is not necessary. Indeed, the grounds for dissolution suggest the need for protracted preparation. Accordingly, we conclude plaintiff must proceed via ordinaria. The judgment maintaining the exception of unauthorized use of summary proceedings is affirmed.

AFFIRMED.

      . Plaintiff seeks the appointment of a judicial liquidator. The petition also contained a request, later withdrawn by plaintiff, for the appointment of a temporary liquidator pending trial on the merits.

      . LSA-C.C.P. art. 2592 reads as follows:
      Art. 2592. Use of summary proceedings
      “Summary proceedings may be used for the trial or disposition of the following matters only:
      (1) An incidental question arising in the course of litigation;
      (2) An application for a new trial;
      (3) An issue which may be raised properly by an exception, contradictory motion, or rule to show cause;
      (4) An action against the surety on a judicial bond after judgment has been obtained against the principal, or against both principal and surety when a summary proceeding against the principal is permitted;
      (5) The homologation of a judicial partition, of a tableau of distribution or account filed by a legal representative, or of a report submitted by an auditor, accountant, or other expert appointed by the court; and an opposition to any of the foregoing, to the appointment of a legal representative, or to a petition for authority filed by a legal representative;
      (6) A habeas corpus, mandamus, or quo warranto proceeding;
      (7) The determination of the rank of mortgages on property sold judicially, and of the order of distribution of the proceeds thereof;
      (8) The original granting of, subsequent change in, or termination of, child custody, alimony, child support in behalf of minor children, and support between ascendants and descendants; and
      (9) All other matters in which the law permits summary proceedings to be used.”

      .Although not specifically set forth in plaintiff’s brief, this section is the only authority for use of summary proceedings in the instant case.

      . LSA-R.S. 12:143(A) reads as follows:
      § 143. Involuntary proceedings for dissolution; grounds; institution; appointment of liquidator
      “A. The court may entertain a proceeding for involuntary dissolution under its supervision when it is made to appear that:
      (1)The corporate assets are insufficient to pay all just demands for which the corporation is liable, or to afford reasonable security to those who may deal with it; or
      (2) The objects of the corporation have wholly failed, or are entirely abandoned, or their accomplishment is impracticable; or
      (3) It is beneficial to the interests of the shareholders that the corporation should be liquidated and dissolved; or
      (4) The directors are deadlocked in the management of the corporate affairs, and the shareholders are unable to break the deadlock; or
      (5) The shareholders are deadlocked in voting power, and have failed, for a period which includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired or would have expired upon the election of their successors; or
      (6) The corporation has failed, neglected, or refused, without justifiable cause, to commence business within a period of one year from the date of its incorporation, or, after commencing business, has suspended business for at least one year, and has no real intention of commencing or resuming business; or
      (7) The corporation has been guilty of gross and persistent ultra vires acts; or
      (8) Judgment has been entered annulling, vacating or forfeiting the corporation’s articles and franchise in accordance with the provisions of R.S. 12:163; or
      (9) (a) A receiver has been appointed under R.S. 12-151 to take charge of the corporation’s property, and either (b) there is no reasonable prospect of return of control of the corporation to its shareholders within a reasonable time or (c) the business of the corporation is operating at a loss and there is no reasonable prospect of restoring it to profitable operation within a reasonable time.”


author: MORIAL, Judge.

text:
    Sheryl Ann KELLY v. Noel M. GILBERT.
    No. 7802.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      Laborde & Brooks, John H. Brooks, New Orleans, for plaintiff-appellee.
    Ganucheau & Allmand, Bradford R. Roberts, II, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff sued her lessor for damages for personal injuries she sustained in a fall down the stairway of the apartment she leased at that time.

Plaintiff lived on the second floor of defendant’s apartment building. Her apartment was located to the left of the doorway opening leading to the stairs. On the night of the accident plaintiff worked to around 11:30 P.M. She had returned home to change her clothing before going out. It was raining that evening and the stairs were wet. As plaintiff descended the stairs, she caught her foot on the second or third step from the top and fell down to the bottom of the stairs.

The metal staircase, which was the only one servicing the building, was located in the interior of the building between two walls. It was, however, exposed to the rain through the doorway at the top of the stairs leading to an outside porch. There were four light fixtures in the immediate area which, when operating properly, illuminated the stairway. There was a photocell light on the ceiling of the porch near the doorway at the top of the stairs. This light automatically came on at dusk or on cloudy days. There was a light on the ceiling above the stairs sixteen feet above the stairwell and not accessible to service. This particular light had burned out long before the accident. There was another photocell light on the ceiling at the foot of the stairs. Also, there was a light next to the apartment door of an apartment located at the foot of the stairs. The handrails located along the stairwell did not extend to the top of the stairway. There was a 7/8 inch variation in height between the first and second stairs from the top landing.

After a trial on the merits the district court rendered judgment in favor of the plaintiff in the amount of $9,300.00. Defendant appeals. We affirm.

The trial judge found that the stairway violated the Life Safety Code and the Jefferson Parish Building Code in that the handrails did not run the entire length of the staircase; there was no nosing on the top stair tread; a 7/8 inch variation in height existed between the first and second treads and there was no exit light burning; there was excessive water on the stairs due to inadequate drainage and the lighting was insufficient at the time of the accident.

The testimony of the expert witnesses, the lay witnesses and the exhibits introduced into evidence support the findings of the trial court. Both plaintiff’s and defendant’s experts agreed that codal violations were present. There is also sufficient evidence in the record to justify the trial court’s conclusion that three of the four lights in the area were inoperative at the time of the accident. The upper porch light alone was burning and it is clear from the evidence that plaintiff’s body blocked the illumination of this light as she descended the stairs. Evidence in the record supports the conclusion that the porch was not constructed so as to prevent the rainwater on the porch floor from draining directly onto the stairs.

In Weiland v. King, La., 281 So.2d 688 (1973) the Supreme Court found that the absence of handrails and adequate lighting on a stairway created a trap for one descending the stairs and awarded damages to the plaintiff on the basis of LSA-R.C.C. 2315. There, the Court relied on the Life Safety Code which was relied upon by the trial court herein in determining the standard of care to which the defendant lessor was to be held.

Defendant is also liable under LSA-R.C.C. Article 2695, which gives a lessee a cause of action against his lessor for injuries caused by a defective condition of the premises. A plaintiff’s right of action under this article does not depend upon fault on the part of a defendant lessor, but, rather upon the mere existence of a defective condition of the leased premises causing injury. See Joyner v. Aetna Casualty & Surety Co., 240 So.2d 545 (La.App. 2 Cir. 1970). In Bates v. Blitz, 205 La. 536, 17 So.2d 816 (1944), the Supreme Court held a lessor responsible for vices or defects in the accessories to the building including the entrance, courtyard, stairways and approaches used in common with the other tenants.

We find that there is sufficient evidence in the record to support the conclusion of the trial judge with respect to the defective condition of the stairway. The expert testimony was clear that the codal violations present combined with inadequate lighting, created a hazardous condition which increased the likelihood that one using the stairs could slip and fall.

We find no abuse of the trial court’s “much discretion” in awarding damages. See LSA-R.C.C. 1934(3). The court found that plaintiff injured her back and sustained a resolving strain of the ligaments of her left foot which were later complicated by ganglion formations that required medical treatment for one year. Plaintiff suffered pain and discomfort and was caused to curtail her work and social activities during that period. In McInnis v. Firemen's Fund Insurance Co., La., 322 So.2d 155 (1975) an award of $3,500.00 to a plaintiff with a fracture of her mid foot who was discharged by the doctor only two months after the accident occurred was upheld by the Supreme Court. While constitutionally required to review law and facts, appellate courts are not to disturb the award of the trier of fact in the absence of an abuse of his discretion. Sanders v. English, 325 So.2d 692 (La.App. 1 Cir. 1976); Riley v. Frantz, 253 So.2d 237 (La.App. 4 Cir. 1971).

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.


author: BEER, Judge.

text:
    Deionese V. Grundmeyer, wife of and Henry M. GRUNDMEYER v. ARGONAUT INSURANCE COMPANY et al.
    No. 7814.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      George O’Dowd, New Orleans, for plaintiffs-appellants.
    Henderson, Hanemann & Morris, Philip E. Henderson, Houma, for defendants-ap-pellees.
    Before BOUTALL, SCHOTT and BEER.
   BEER, Judge.

Plaintiff-appellant, Mrs. Deionese Vitter, wife of Henry M. Grundmeyer, sustained serious and painful injury when she slipped and fell on the premises of defendant-appel-lee, East Jefferson General Hospital (hereafter, “hospital”). Suit against the hospital and its insurer resulted in judgment in favor of the defendants with written reasons assigned. A motion for new trial was refused. Plaintiffs, Mr. and Mrs. Grundmeyer, devolutively appeal.

In their sole assignment of error, appellants assert that the trial court’s determination that the hospital satisfied its legal duty to Mrs. Grundmeyer is not supported by the evidence. Certain facts are, essentially, un-controverted: Mrs. Grundmeyer, accompanied by her son-in-law, Michael M. Lala, had visited with Mrs. Grundmeyer’s daughter, Gail, who had undergone surgery at East Jefferson General Hospital. Unusual weather conditions that day (February 9, 1973) caused snow, ice and driving rain.

That evening — after hospital visiting hours were over — Mrs. Grundmeyer decided to go to her daughter’s home for the night. Mrs. Grundmeyer’s son-in-law escorted her downstairs to the lobby at the front main entrance of the hospital where she remained inside the front door until he brought the car around. It was cold and windy outside, but the snowing had, by then, ceased. Mr. Lala was obliged to double-park in the middle of a driveway approximately a car’s width away from the curb, and parallel with the front of the hospital since other vehicles were parked adjacent to the curbing in front of the entrance to the hospital. In order for Mrs. Grundmeyer to reach his car, she had to proceed through the automatic-opening front doors, traverse an automatic door-opening walkway on the outside (39 inches wide and 49 inches long) and walk around a parked car located at the foot or curb end of the walkway. The distance from the door to the driveway curbing was approximately six feet. At approximately the point where Mrs. Grundmeyer stepped off the automatic door-opening rubber matted walkway and onto the sidewalk, she slipped and fell on the ice, sustaining painful injuries. Snow and ice were on the sidewalk around the rubber door mat previously described.

Mrs. Grundmeyer, 66 years of age at the time of the accident, stated that until she saw her son-in-law arrive with the car, she had waited inside. She testified that when she exited the hospital door, she did not observe any ice although the sidewalk appeared “wet.” She described what then transpired:

“A. I didn’t go out yet. I waited until I saw him reach over to open the door because the door looked like it was frozen. So, when I saw him reaching over and pounding on the door I started out. But, I still didn’t go right away. I waited on that — I thought it was a mat, that rubber door, that was affiliated with the opening of the door and then when I saw him pushing the door and hitting, I started out and the first step I made was on the pavement and that’s when I slid.
Q. It was on the sidewalk?
A. On the sidewalk.
Q. And, you slid?
A. I slid from the sidewalk into the driveway right up against his car. This leg went underneath his automobile.”

Mrs. Grundmeyer denies that there was sand on the sidewalk and further denies that, other than the automatic door mat, rubber mats were situated nearby for the protection of visitors.

Michael Lala, Sr., Mr. Grundmeyer’s son-in-law, essentially corroborated her testimony. He, also, had slipped (but had not fallen) near the hospital entrance. Because of snow on his car’s window, he did not actually see Mrs. Grundmeyer fall. Her unfortunate situation became apparent when he opened the car door and saw her on the ground.

Edward Sessum, Sr., assistant director for building services at the hospital, testified that pursuant to instructions given to him, he supervised and actually participated in the spreading of sand and salt at the doctors’ side entrance and at the front entrance on both sides of the automatic door walkway up to the curb of the driveway, and covering a distance of about 150 feet along the curb. The sanded area was checked every half hour by Mr. Sessum and if the sand was washed away by the rains and ice had formed, his crew was instructed, in that event, to “rough up” the area and lay more sand. Although Mr. Sessum left the hospital at about 6:30 p. m., instructions were left with the “. . . later watches to maintain as safe a condition as humanly possible.” Regarding the mats, Mr. Sessum testified that approximately 20 mats were placed by him on the outside of the doctors’ entrance and at the main front entrance. Finally, Mr. Sessum testified that the hospital’s front entrance was closed to the public at some time between 9:00 p. m. and 10:00 p. m.

Thomas H. Hannon, the director of building services at the hospital, testified that although there was a shortage of mats in New Orleans on February 9, 1973, he knew that ice would form around the entrances and was, therefore, able to obtain 21 rubber mats for the purposes of providing a “. safe way for entering the hospital . . ” “. . .I'd say 4 or 5 mats were at the front entrance for the public to come in with sand on the rest of it.” To the best of his knowledge, the mats were in place by early afternoon and remained where they had been placed and were not removed at night. Mr. Hannon, on cross-examination, acknowledged that there were no warning signs nor employees at the front door entrance informing persons of the hazardous situation on the outside.

Also testifying on behalf of the hospital were Abel St. Germain, employed in the gardening and maintenance division of the hospital, and Roger D. Maddox, the operating engineer at the hospital. Their testimony corroborated that of Messrs. Hannon and Sessum. They confirmed that they had assisted in placing sand, salt and mats at the various entrances, including the one here involved, on the day in question.

Though the location and effective use of the mats and the salting and sanding were disputed factual issues, the trial court concluded:

“ * * * that the defendant hospital satisfied its legal duty to plaintiff and that the hazardous condition, due to the snow and freezing temperatures, was known to plaintiff as well as defendant. The evidence establishes that defendant did everything, and perhaps more, than required in an effort to alleviate the dangerous situation by placing mats on the walkways as well as sand and salt on the area. There is no allegation or proof that these activities caused Mrs. Grundmeyer’s fall. Defendant is not the insurer of plaintiff’s safety and under the circumstances the Court finds no violation of any legal duty owed Plaintiff and no negligence on Defendant’s part."

Appellants, contending error in these conclusions, rely upon Perkins v. Springhill General Hospital, 278 So.2d 900 (La. App.2nd Cir., 1978). In that case, the plaintiff slipped and fell in a hallway of the hospital. Water had been tracked into the corridor by persons coming into the hospital. Although mats were usually placed just inside the entrance door, on the date of plaintiff’s accident, no mats were at the entranceway. The Court of Appeal found no error in the trial court’s conclusion that the hospital was negligent in failing to exercise the necessary precautions for the safety of its invitees under the circumstances.

Perkina is, however, distinguishable from the case at bar, for here the trial court concludes that the hospital did place mats where its officials felt the greatest risk of injury existed, and the trial court also concludes that the hospital officials also arranged for and carried out the salting and sanding of the front and side entrances.

The climate in southern Louisiana seldom produces heavy snowfalls and freezing rain such as to create the icy and hazardous conditions which prevailed on the night of Mrs. Grundmeyer’s fall. Yet, some response to the conditions caused thereby was clearly called for. The trial court found that certain preventive measures had, in fact, been taken by the hospital and that these measures fulfilled the duty which was owed to Mrs. Grundmeyer in the circumstances.

We find no manifest error in the trial court’s conclusions and, accordingly, affirm the judgment. Each party is to bear its own costs of appeal.

AFFIRMED.


author: BOUTALL, Judge.

text:
    SOUTH JEFFERSON GENERAL HOSPITAL, INC. v. Paul M. CONNORS.
    No. 7816.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      Beard, Blue, Schmitt & Mathes, Melvin W. Mathes, Trial Atty., New Orleans, for Leonidas L. Denson, defendant-appellant.
    Wayne C. Giordano, Belle Chasse, for South Jefferson General Hospital, Inc., plaintiff-appellee.
    Before BOUTALL, SCHOTT and BEER, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment awarding the plaintiff hospital $1,610.35 for medical services rendered to a minor and casting his father and his step-father liable in solido for that amount.

On April 26, 1972 a minor named Brian Denson, also known as Brian Connors, was admitted to South Jefferson General Hospital for emergency treatment. At the time of his admission the minor Denson was accompanied by his stepfather Paul M. Connors. Paul M. Connors represented to the plaintiff hospital that he was the father of the child; that the child’s name was Brian Connors, and that he Paul M. Connors, would be responsible for any expenses incurred as a result of the minor Denson’s hospitalization. On May 13, 1972 the minor child was released from the hospital. On February 6, 1975 plaintiff filed suit on the unpaid open account of Paul M. Connors. After learning the true identity of the minor and the legal biological father of the minor, the plaintiff amended its petition to include Leonidas L. Denson and Clarise Adams Connors, father and mother of the minor child, as being responsible and liable for the debt.

Defendant Clarise Adams Connors had filed bankruptcy proceedings and was excused from liability for the debt. Only the minor’s father, Denson, has appealed.

The issue before us is whether a father not having legal custody of a minor child is liable directly to the creditor for medical expenses incurred on behalf of his minor child when the father and mother are divorced, the mother has custody of the child, and the mother is receiving child support payments fixed by the courts.

It is Denson’s contention that his obligation at the time the debt was incurred was to pay $225 per month child support, and that he can only be held liable for the minor’s expenses after contradictory proceedings with the mother seeking increase in child support or adjustment of his obligations.

We agree with appellant’s contention that he is not directly liable for the expenses incurred on behalf of his minor child who was not in his custody. While the father has an unlimited obligation to support his children under authority of the Louisiana Civil Code , when there is a divorce and custody is granted to the mother, then the father’s obligation is limited by the decree that regulates the custody and child support. The court considers in fixing child support that there are expenses that the father is required to pay under normal circumstances. The parent with custody is expected to pay the support expenses of the child with the sum awarded by the court, barring any extraordinary expenses. If extraordinary expenses arise, the mother having custody of the child can go into court and seek an increase in the amount of support. Gennaro v. Gennaro, La.App., 323 So.2d 513 (1975); Wingo v. Cook, La.App., 306 So.2d 370 (1975); Super v. Super, La. App., 279 So.2d 216 (1973); Duhon v. Duhon, La.App., 235 So.2d 149 (1970).

The custodial parent has the authority to decide what debts will be incurred on behalf of the minor child. In the case before us a third party relied on the authority of the step-parent and responsibility of the parent with custody of the child to pay the debt incurred on behalf of the child.

The third party creditor does not have the right to sue the father directly for the debts incurred by the parent with custody. To hold otherwise would allow a parent with custody of a child to incur a debt without restraint, knowing that the father would be responsible for payment of such debt. By holding that a third party creditor may not go directly against the father, the father is guaranteed that there will be a judicial determination of the reasonableness of each debt incurred on behalf of the child. Thus, if a mother with custody of a child incurs a debt for the child, which is an extraordinary expense and cannot be satisfied from the normal child support payments, she must go into court and seek an increase or adjustment of the amount of support to pay the extraordinary expense. The party seeking the increase fairly has the burden of proving that the increase is warranted. Gennaro v. Gennaro, supra. The father may be ordered to pay extraordinary medical expenses incurred for the treatment of the child in addition to the support payments which he was previously ordered to make. Wingo v. Cook, supra.

In accordance with our determination that a father is not directly liable to third party creditors of his minor child the judgment of the trial court is reversed in regard to the appellant Leonidas Denson. Appel-lee to pay all costs.

REVERSED.

      . L.C.C. Article 158. “This separation or divorce shall not in any case deprive the children born of the marriage, of any of the advantages which were secured to them by law, or by the marriage contract of their father and mother.
      Article 227. “Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”


author: MORIAL, Judge. STOULIG, Judge, REDMANN, Judge,

text:
    Irving ST. PE v. HOWARD P. FOLEY ELECTRIC COMPANY and the Hartford Insurance Company.
    No. 8053.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      Ganucheau & Allmand, Bradford R. Roberts, II, New Orleans, for plaintiff-appellee.
    E. H. Cohen, New Orleans, for defendants-appellants.
    Before REDMANN, STOULIG and MORTAL, JJ.
   MORIAL, Judge.

Plaintiff sued for total and permanent disability and medical benefits resulting from injuries sustained in the course and scope of his employment. LSA-R.S. 23:1021, et seq. The trial court rendered judgment in favor of plaintiff against defendants, Howard P. Foley Electric Company (Foley) and The Hartford Insurance Group for workmen’s compensation at the rate of $65.00 per week for five hundred weeks from the date of the accident. Defendants appeal. We affirm.

Plaintiff was employed as an electrician at the Superdome Stadium for defendant Foley. On March 8, 1974, while acting in the course and scope of his employment he was injured lifting a large metal electric light pole. Plaintiff slipped and his left leg gave out from under him resulting in an injury to his back and an inguinal hernia. The hernia was surgically repaired and plaintiff made a good recovery from the operation. It is admitted by the parties that plaintiff had a preexisting deformity of his lower left leg which he sustained while jumping over a ditch in 1943 while in the armed services.

Plaintiff continually had problems with his leg but was always able to engage in physical labor. In 1963, plaintiff’s leg gave him some problems and he went to the Veterans Administration Hospital. He was found to have a 10% disability of his leg. However, he continued working. In 1973, after having worked for Foley on the Su-perdome Stadium construction project for a few months, plaintiff’s leg grew increasingly worse and he again entered the Veterans Administration Hospital for treatment. The doctors there increased his disability to 30% and gave him a leg brace with a special drop shoe. He continued to work at the Superdome until the March 8 accident. Following the accident he experienced great pain in his back which radiated into his leg. He testified he was no longer able to engage in his previous employment.

Mr. St. Pe went to the treating physician, Dr. Nick Accardo, an orthopedic surgeon some sixteen times following the accident of March 8, 1974. Dr. Accardo found plaintiff had an acute lumbosacral syndrome and an inguinal hernia. He was of the opinion that the lumbosacral syndrome affected his limb and was the cause of the pain radiating down into his lower left limb which was not present prior to the accident. Dr. Ac-cardo believed that plaintiff worked under a handicap prior to the accident because of the condition of his leg and stated he would not have passed St. Pe had he conducted a pre-employment physical examination. He testified that plaintiff may possibly have a ruptured disc, but that further evaluations were necessary to make such a determination. Dr. Accardo believed that the fall totally disabled Mr. St. Pe and that he would remain disabled.

Dr. Paul Larsen, a neurologist, examined plaintiff on April 15, 1975. He testified that in comparing the VA report of November 1973 to his own findings of April 1975, he did not find any change in the amount of disability to plaintiff’s leg following the accident. In his opinion, the fall had no effect on plaintiff’s over all disability and he could do the same work he was doing prior to the accident.

Dr. Williams, an orthopedic surgeon, found that plaintiff had a cavovarus deformity of the left foot and severe peroneal palsy on his left side. He felt this had been a long standing condition and not a direct result of the accident. Dr. Williams did state in a second report that plaintiff’s recovery from the accident could be delayed by the deformity and weakness in his lower left extremity. He was of the opinion that plaintiff should not return to any type of work which required prolonged standing, walking, climbing or squatting. He could not offer any explanation as to why the plaintiff could no longer work following the fall.

Dr. Faust, a general surgeon, saw plaintiff once on September 11, 1974. He did not think that plaintiff’s disability was due to the fall. Dr. Walter Brent, an orthopedic surgeon, examined plaintiff on August 12, 1974. He found plaintiff had received an acute low back sprain which was superimposed on a service connected injury. He found that plaintiff had recovered from the sprain and that his continuing pain was due to the service injury. Dr. Brent did not think the plaintiff could perform the duties of an electrician which require climbing, squatting or long periods of walking.

The issue presented on appeal is whether or not there is a causal connection between the accident and the disability of which plaintiff complains.

There is sufficient lay testimony in the record to support a finding that prior to March 8, 1974 plaintiff was able-bodied and considered a good worker by his foremen and fellow workers. The lay testimony further supports a finding that following the accident, plaintiff experienced severe pain in his lower back, side and leg, and was unable to perform any physical work. We consider the lay testimony which has great probative value in establishing certain facts such as the existence and location of pain and the actual ability or inability of a claimant to perform certain physical functions or to pursue his regular employment. Tantillo v. Liberty Mutual Insurance Co., 315 So.2d 743 (La.1975).

The medical testimony is admittedly in conflict as to the effect of the accident on plaintiff’s disability. However, Dr. Ac-cardo, the treating physician, monitored plaintiff’s progression for over a year and a half and found the lumbosacral syndrome to be the final cause of plaintiff’s disability. This testimony is given great weight because of the greater opportunity of Dr. Accardo to observe the plaintiff over an extended period of treatment. See Williams v. Liberty Mutual Insurance Co., 327 So.2d 462 (La.App. 3 Cir. 1976). It is also significant that three of the five doctors found that plaintiff could not return to the same kind of physical labor. Also, those who testified that the fall was not the cause of plaintiff’s disability could not explain why he was suddenly unable to perform the work he previously performed.

The fact that St. Pe had a preexisting deformity of his left leg does not eliminate his right to compensation, even though he was more susceptible to injury. An employer takes an employee as he finds him and is Hable for compensation even when the disabling accident was such only because of a preexisting disorder in the employee. See Williams v. Liberty Mutual Insurance Co., supra. Causation between an accident and disability may be sustained by other than positive medical proof that a preexisting condition or a particular organ has been affected by the incident. Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969). The issue is not the precise change in the diseased organ but, rather, the effect on a plaintiff’s overall physical condition and ensuing disability. Where there is proof of an accident and a following disability without any intervening cause, it is presumed that the accident caused the disability. See Bertrand v. Coal Operators Casualty Co., supra.

After considering the medical and lay testimony, we find that plaintiff was an able-bodied worker capable of performing physical labor prior to March 8, 1974 and conclude that the accident on that date totally and permanently disabled plaintiff.

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.

STOULIG, J., concurs.

REDMANN, J., dissents.

STOULIG, Judge,

concurring.

I concur.

I am of the opinion that the medical testimony preponderates in favor of the conclusion that the plaintiff’s disability at the time of trial was not causally related to the trauma nor did the injury cause an aggravation of a pre-existing pathological condition but rather was the result of his military service-connected injury. However, there is sufficient lay testimony to support the trial judge’s determination of a job-related total and permanent disability. Therefore, in the absence of manifest error I must concur.

REDMANN, Judge,

dissenting.

The evidence, medical and lay, does not support a conclusion that plaintiff’s total and permanent disability arose from job-connected injury.


author: REDMANN, Judge.

text:
    Pastel BENNETT v. ST. LOUIS HOTEL et al.
    No. 8062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      Wayne H. Carlton, Jr., Orlando G. Benda-na, New Orleans, for plaintiff-appellant.
    John F. Caraway, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and MORIAL, JJ.
   REDMANN, Judge.

Plaintiff’s appeal seeks attorney’s fees and immediate exigibility of a judgment for workmen’s compensation benefits.

A judgment of March 10, 1976 awarded $62.40 a week “from June 30, 1975 to date” and “further ordered, adjudged and decreed that the plaintiff is entitled to future compensation benefits at the rate of $62.40 a week, plus all medical expenses, pending further orders of this court.”

Defendants paid the compensation up to the date of that judgment but did not begin paying the “future compensation benefits” the judgment declared due.

Plaintiff waited silently until May 11 and then filed this rule to make all benefits immediately exigible under R.S. 23:1333. Kirby v. Crystal Oil Rfg. Corp., 2 Cir. 1930, 14 La.App. 115, 129 So. 385, correctly decided that § 1333 penalizes only a wilful refusal to pay adjudicated compensation benefits.

There is no factual showing that the refusal to pay was wilful prior to the May 11 filing of the rule. But it is clear that the refusal to pay thereafter and through the June 11 trial was wilful. However, defendant’s original unwilful failure to pay “six successive installments as they become due” cannot be added to its wilful failure to pay the fewer-than-six installments which matured between filing and trial of the rule. The statute only penalizes wilfulness that has endured through six successive installments.

We also reject plaintiff’s claim for attorney’s fees (and penalty?) under R.S. 22:658. That statute applies to an initial claim; an initial judgment might award compensation and penalty and attorney’s fees, but failure to pay the judgment does not evoke further penalty and attorney’s fees. The statutory remedy for (wilful) failure to pay a judgment is provided by R.S. 23:1333. There are, moreover, means of enforcing judgments (both by executing and by contempt proceedings).

Affirmed.


text:
    Daniel D. ST. CYR v. INDUSTRIAL METALS OF THE SOUTH, INC., et al.
    No. 8090.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      Adams & Reese, Lloyd W. Hayes, New Orleans, for plaintiff-appellee.
    Loeb & Livaudais, Marcel Livaudais, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Defendants, Industrial Metals of the South, Inc., (Industrial) and Fireman’s Fund Insurance Company, appeal a judgment awarding plaintiff, Daniel D. St. Cyr, workmen’s compensation benefits for total and permanent disability.

Plaintiff suffered an injury to his left thigh in December 1974 while in the employment of Industrial. An electric saw cut into plaintiff’s left leg and completely severed the vastus lateralis muscle. Plaintiff was employed as a warehouseman at Industrial. He was required to climb, load trucks, and to pull out certain metals and cut them. Plaintiff is now employed at Schwegmann Brothers. He does very light work. He is not required to climb and does very little stooping.

Plaintiff originally was treated by Dr. A. William Dunn. He was of the opinion that plaintiff was able to perform his normal work duties as of April 1975. Thereafter, plaintiff went to Dr. Stuart Phillips, an orthopedic surgeon. Dr. Phillips found that plaintiff had a 10-15% disability of his left lower extremity and that he should not climb over ten flights of stairs a day nor work in a stooped position for long periods of time. He found that plaintiff had a permanent loss of functioning in the muscle that was cut and that he would sustain moderate pain in his back and leg for the rest of his life. Plaintiff testified to having some pain daily.

On the basis of the medical testimony, the trial judge concluded that plaintiff is working in substantial pain and that the pain caused plaintiff to miss work a number of times. The district court also found that plaintiff cannot compete with other able-bodied men in the same job market.

Defendant argues that plaintiff is engaging in work at Schwegmann’s which is similar to that which he formerly performed and that he is still able to compete in the labor market. Defendant also contends that plaintiff is not working in substantial pain.

There is sufficient evidence in the record to support the district court’s finding that plaintiff is working in substantial pain. A person is not required to resume the same work if he must work in pain or with substantial risk of aggravating the injury. See Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769 (La.App. 1 Cir. 1974); Taranto v. Kaiser Aluminum & Chemical Corp., 280 So.2d 403 (La.App. 4 Cir. 1973). Furthermore, when a worker cannot perform the substantial duties of his former occupation or can only perform them in substantial pain, such a worker is totally and permanently disabled for workmen’s compensation purposes irrespective of the medical percentage of the loss of use of the affected member. See Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158 (La.App. 4 Cir. 1968).

Plaintiff will, in our opinion, be at a disadvantage in a competitive labor market. The ability to perform less strenuous work does not preclude a finding of disability to perform former duties. Grimes v. Red Ball Motor Freight, Inc., 321 So.2d 885 (La.App. 1 Cir. 1976).

Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849, 851 (1969), (although speaking of a skilled worker) recognized that “ * * * an injured worker seeking only light work will not obtain steady employment, and in time, he will, in all probability, be routinely rejected from all jobs because of the limitations inherent in a physical impairment restricting him to light work only. * * * ” See also Miller v. Morton International, Inc., 260 So.2d 55 (La. App. 1 Cir. 1972).

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.


author: GILLESPIE, Chief Justice,

text:
    DICKERSON CONSTRUCTION COMPANY, INC., et al. v. PROCESS ENGINEERING COMPANY, INC.
    No. 49023.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    Watkins & Eager, P. N. Harkins, III, Velia Ann Mayer, Young, Scanlon & Ses-sums, James Leon Young, Jackson, for appellant.
    John R. Poole, Percy Stanfield, Jr., Brown & Stanfield, Jackson, for appellee.
    Before GILLESPIE, SUGG and BROOM, JJ.
   GILLESPIE, Chief Justice,

for the Court.

This appeal involves, among other things, the extent of a firm of Architects-Engineers’ duty to administer or supervise the construction of a building and the sufficiency of proof as to the alleged failure of the contractor to execute the contract.

Process Engineering Company, Inc. (hereinafter Owner), sued Dickerson Construction Company, Inc. (hereinafter Contractor), and William H. Cooke, Jr., Nelson Lee Douglass and Robert Earl Farr, d/b/a Cooke-Douglass-Farr, Ltd. (hereinafter Architects-Engineers). Owner charged Architects-Engineers with failure to properly design the building in question and failure to properly supervise construction, and charged Contractor with failure to follow the plans and specifications of the Architects-Engineers. Owner charged that these omissions were the proximate cause of the damages to the building and that the defendants were jointly liable to Owner.

After a jury trial and verdict, the Circuit Court of Hinds County entered judgment for the Owner against the Architects-Engineers and Contractor for $105,000.

In the latter part of 1967, Architects-Engineers undertook to design, prepare plans and specifications for, and administer the construction of a commercial building to house Owner’s metal treatment and plating operations. Pursuant to a written contract, plans and specifications were prepared by Architects-Engineers, who also prepared all contracts and handled the advertisement for bids. On October 16, 1967, Contractor and Owner entered into a contract to construct the building for the sum of $100,845. The plans and specifications were made a part of the construction contract.

Prior to the date of contract between Owner and Architects-Engineers, and upon the advice of the latter, Owner employed Ware-Lind Engineers, Inc. (hereinafter Soil Engineers), to test the soil and make recommendations with reference to the type of foundation and drainage on the lot where the building was to be constructed. The Soil Engineers made a written report to Architects-Engineers, stating that beginning about five to seven feet below the surface was a layer of expansive soil known as Yazoo clay. It was recommended that surface grading be kept to a certain minimum so as not to remove the non-expansive top soil more than necessary, and to provide piers to at least twenty feet below the existing grade. The Soil Engineers also recommended, that in order to insulate the exterior grade beams from swelling pressures of the expansive clay, voids be formed under the grade beams (the reinforced concrete beams resting on the piling or piers which in turn support the walls and roof) and that the void be formed by using cardboard boxes filled with vermiculite. The proof showed that the cardboard boxes filled with vermiculite would hold the weight of the concrete when poured to form the grade beams and the cardboard boxes would disintegrate, leaving a void filled with vermiculite. The vermiculite would prevent soil from sloughing in from the side into the void and at the same time would yield to pressure from below created by the expansive Yazoo clay. The Soil Engineers also recommended that the soil under the floor slab be of a select clay or non-expansive sandy clay compacted uniformly. It was further recommended that “drainage around the building, particularly in the rear, east side, should provide rapid surface run-off of storm water away from the foundation.”

The building was completed and occupied in the spring of 1968, and Owner paid all of the charges made by the Architects-Engineers and the Contractor. About six months after Owner moved into the building, the wall around the front canopy began to crack and a representative of the Architects-Engineers inspected the building at Owner’s request and installed a metal brace under the canopy. The front wall continued to crack. The roof began to leak within less than a year, and the building continued to deteriorate. The concrete blocks in various parts of the building were crushed, the wall cracked and buckled, cracks developed in the concrete floor slab, the building leaked, requiring numerous repairs, and the panelling in the office walls buckled. There is no dispute that the building by the spring of 1974 had sustained extensive damages. In February, 1974, holes were dug in and around the building both by the Owner and by the Architects-Engineers to try to determine what caused the building to deteriorate. The water table under and around the building was within two or three feet of the surface, depending upon where the hole was dug. Prior to construction the water table was about ten feet lower.

Although it was undisputed that the building sustained severe damage by the expansive forces of Yazoo clay, it was hotly disputed as to why the Yazoo clay became saturated with water and whether or not the grade beams suffered structural damage.

The basic structural components of the building should be distinguished from the floor slab. The weight of the walls and roof was supported by pilings and grade beams. Grade beams are reinforced concrete poured across the pilings. The slab was free-flowing in the sense that it did not support the outside walls and roof. The plans called for cardboard boxes (Jay voids) to be placed under the grade beams to act as a safety valve. When the Yazoo clay begins to expand, the voids would absorb the expansion.

The Owner’s testimony indicates that the voids had not been formed under the grade beams as specified by the plans. The Owner’s testimony also indicates that backfill in and around the grade beams consisted of Yazoo clay and not a select backfill. The theory of the Owner is that the damage to the building resulted mainly from the failure of the Contractor to construct drainage ditches or swells on the east side of the building as called for by the plans and as recommended by the Soil Engineers. This failure caused the ponding of water and the saturation of the Yazoo clay. The resulting expansion caused a lateral movement (due to improper backfill) as well as an upward movement (due to the lack of voids) in the grade beams. The Owner’s testimony indicated that the grade beams suffered structural stress and cracks. Also due to improper drainage, the floor slab heaved upward causing damage.

The Architects-Engineers urge that there was no movement of the grade beams and that the grade beams did not show any signs of stress. They urge that the damage to the building was caused entirely by the heaving of the floor slab. It is their contention that the Owner negligently allowed chemicals used by Owner to deteriorate the floor slab and erode the epoxy lined waste discharge pipe located under the slab. As a result of this deterioration in the slab and in the pipes, water used by Owner was allowed to saturate the ground under the floor slab. Following this saturation, the Yazoo clay expanded, forcing the floor slab upward and thus causing all the damage to the building. They deny that the damage to the building was caused by the expansion of the Yazoo clay under the grade beams. It is also contended that the drainage system as called for by the plans was in fact installed and that the topographical contour of that drainage system was materially altered after completion of the building.

It is Architects-Engineers’ contention that it owed no duty to supervise the construction of the building but only the duty of general administration and not to guarantee the performance of the contracts. The Architects-Engineers and Contractor also contend that the Contractor followed the plans and specifications.

The principal witness for Owner was Ted L. Biddy, a consulting engineer who was employed by Owner in February, 1974, to determine the cause of the damage to the building and to estimate the cost of remedial and permanent repairs. At that time, according to Mr. Goodman, President of Owner, the building had deteriorated to the point that it was not safe - or suitable for further use. Biddy had holes dug on the east side of the building, which is the high side, and also had the concrete broken and holes dug on the inside of the building to determine what kind of fill soil had been used and the level of the water table. He found that the building had been heavily damaged due to the cracking and the crushing of the concrete blocks, that the interior and exterior walls had large cracks in them, large cracks were found in the concrete floor, and the grade beams along the northeast corner of the building were cracked. Biddy saw no indications that water, extensive amounts of which were used in Owner’s business, got into the underground foundation from the inside. The interior of the building was covered with a floor slab which had a crown in the middle sloping to troughs along the sides. Biddy prepared a topographic map of the conditions on the outside of the building. It showed the ponding of water next to the building on the east side. He testified that he examined the plans and specifications that called for a swell or ditch approximately twenty feet from the east side of the building which was for the purpose of draining the water away from the building and into the ditch. He did not find this ditch when he made his survey. He testified there was no drainage system on the east side of the building and that the water that collected there, including that which ran off the building, would pond until it soaked in or evaporated. Biddy also testified that he made examinations of the soil under the grade beams and there was no evidence that Jay voids had been installed. The plans did provide for Jay voids but it is conceded that the plans did not provide that the voids be filled with vermieulite and none was placed therein. Biddy also found Yazoo clay under and around the grade beams. He found that there were limbs and debris in the soil under the slab and it was not select fill as provided by the plans and specifications. Biddy recommended remedial repairs to prevent the building from further deterioration at a cost of $22,432. He stated that an outside drainage system would have to be constructed to lower the water table before permanent repairs could be made. He estimated permanent repairs would cost $85,354. Biddy was of the opinion that the failure of the Contractor to use select backfill material contributed to a one and one-half inch lateral movement of the building, which contributed to the cracking and crushing of the concrete blocks. Biddy’s testimony was corroborated to a considerable extent by photographs.

Robert Lunardini, a consulting engineer, made an examination of the building and was asked a lengthy hypothetical question. It was his opinion that the primary cause of the problem with the building was improper drainage. He also testified that the sole cause of the damage to the building was not the heaving of the floor slab but that the grade beams had also been heaved upwards.

L. B. Mims, who installed a drainage system on the east side of the building after Mr. Biddy made his recommendations, stated that he had observed the building from time to time since its construction and that no ditching had been provided on the east side to amount to anything, and that water had ponded on the east side of the building.

R. W. Goodman, President of Owner, testified that there had been no change in the topography on the east side of the building from April, 1968, until the remedial repairs were made shortly before trial, and since 1968, water had stood on the east side of the building.

Nelson Douglass, one of the defendants, testified. He is an engineer with the firm of Cooke-Douglass-Parr. He testified that in April, 1974, he got down in the holes around the inside and outside of the building and that the grade beams were smooth, which indicated that Jay voids had been used. Douglass was of the opinion that damage to the building was caused by water flowing from inside the building getting beneath the slab causing the Yazoo clay to expand, forcing the slab upwards, and that the situation had gotten worse due to the fact that water was being allowed to drain into the (recently dug) inspection holes. He testified that one of Architects-Engineers’ engineers generally went by the job each morning during construction.

Defendants also had tests performed to determine the chemical content of samples of water taken from various locations inside and outside the building. These tests indicated that some process water had gotten under the building from the inside.

Garland Wright, a general civil engineer, investigated the building in 1974, for the purpose of giving an opinion of what he thought was causing the damage to the building. At that time, he saw liquid draining into the cracks in the floor slab. He found no evidence that the grade beams had moved and saw no cracks suggesting structural stress. He was also of the opinion that Jay voids had been placed under the grade beams.

Robert W. Karlak, an engineer with Ar-ehitects-Engineers, testified that he spent two days on the job site when they were drilling the pilings and when the concrete was poured and he made other inspections from time to time. He said in April, 1974, there were no structural failures of the grade beams and that the smoothness under the grade beams indicated that Jay voids had been properly placed before concrete was poured. He found no lateral movement. He said that Dickerson followed the plans and specifications and he saw no deviation therefrom. He was of the opinion that the damage to the building was caused by the upward heaving of the floor slab. He thought that water coming from inside caused the saturation of the underground soil.

William H. Cooke, Jr., one of the principals of Architects-Engineers, was also of the opinion that the damage to the building was due to the corrosive effect of chemicals in the process water that had corroded the discharge waste water pipe under the slab and the slab itself, thus permitting water coming from inside the building to saturate the underlying soils.

Ralph Dickerson, President of Contractor, testified that the construction of the building and the drainage system were built strictly in accord with the plans and specifications. He said he set the grade in the outside drainage system. He estimated the building could be repaired for $21,617.50.

Owner offered testimony of a plumber who after running pressure tests testified that there was no leakage of process water from the fiber glass lined discharge pipe.

The jury was amply justified in finding that the lack of drainage of surface water east of the building was the cause of the Yazoo clay becoming saturated with water.

Was the verdict supported by substantial evidence?

The evidence on behalf of Owner, although disputed, made a factual issue for the jury which was resolved by the jury in favor of the Owner. We have set out this evidence in considerable detail hereinabove and we are of the opinion that the evidence amply supports the verdict. The parties all seem to agree that the pressures created by expansion of the Yazoo clay by absorbing water was the principal cause of the damage. The primary factual issue is how the water got into the Yazoo clay, whether it came from inside the building or from outside, and whether Owner changed the topography after construction. We think the weight of the evidence is that the water saturated the Yazoo clay as a result of the lack of drainage of surface water from the east side of the building. According to the evidence, water ponded in that area from the time the building was constructed until the remedial repairs were made in 1974. It is argued that a sidewalk built near the northeast corner of the building and an addition built on the south of the building caused the ponding of the water, but there is positive proof that this sidewalk and building did not interfere with the drainage and that there had been no change in the topography of that area since the building was constructed. We conclude that all of the several disputes in the testimony were for the jury to determine.

The resolution of the question posed in point 1 disposes of the second point raised by Architects-Engineers wherein it is contended that Architects-Engineers were entitled to a peremptory instruction.

Did the trial court err in granting Instruction No. 5 for the plaintiff?

Architects-Engineers contend that it was error for the court to include in this instruction a statement that it was the duty of Architects-Engineers to exercise reasonable care and skill in supervision of construction to the extent necessary to attain the purposes intended. The contract between the Owner and the Architects-Engineers provided as follows:

The Architect will endeavor by general administration of the construction contracts to guard the Owner against defects and deficiencies in the work of contractors, but he does not guarantee the performance of their contracts. The general administration of the Architect is to be distinguished from the continuous on-site inspection of a Project Inspector.

The duties and responsibilities of the Architects-Engineers are more fully explained in the contract between the Contractor and Owner. This contractual document was prepared by the Architects-Engineers, as well as the agreement between Architects-Engineers and Owner. Where it is necessary, as in this case, to determine what is meant by the term “general administration” in the agreement between Architects-Engineers and Owner, the agreement between the Owner and Contractor becomes particularly relevant. Reber v. Chandler High School District, 13 Ariz.App. 133, 474 P.2d 852, 855 (1970).

The agreement between the Contractor and the Owner provides that the Architects would be the Owner’s representative during construction, and would have authority to act for the Owner to the extent provided in the contractual documents. The Architects-Engineers at all times had access to the job and had authority to reject work which did not conform to the contractual documents.

Other provisions of that contract provide: 2.24 The Architect will make periodic visits to the site to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect, he will keep the Owner informed of the progress of the Work, and will endeavor to guard the Owner against defects and deficiencies in the Work of the Contractor. The Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and he will not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents.
9.4.2. The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on his observations at the site as provided in Subparagraph 2.2.4 and the data comprising the Application for Payment, that the Work has progressed to the point indicated; that, to the best of his knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole upon Substantial Completion, to the results of any subsequent tests required by the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualifications stated in his Certificate); and that the Contractor is entitled to payment in the amount certified. In addition, the Architect’s final Certificate for Payment will constitute a further representation that the conditions precedent to the Contractor’s being entitled to final payment as set forth in Subparagraph 9.7.2 have been fulfilled. However, by issuing a Certificate for Payment, the Architect shall not thereby be deemed to represent that he has made exhaustive or continuous on-site inspections to check the quality or quantity of the Work or that he has reviewed the construction means, methods, techniques, sequences or procedures, or that he has made any examination to ascertain how or for what purpose the Contractor has used the moneys previously paid on account of the Contract Sum.
9.7.2. Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said final Certificate, is due and payable.

The building specifications, a document also prepared by the Architects-Engineers, provides for specific responsibilities of the Architects-Engineers. Provisions of the specifications provide in part:

Remove debris from excavations before backfilling; do not backfill against foundation walls until directed by Architect-Engineer.
Splices [used in the reinforcement of concrete] shall be approved by the Architect-Engineer.
All areas to receive concrete shall be inspected and approved by the Architect-Engineer prior to any pouring of concrete.
After pipe lines have been tested, inspected, and approved by the Architect, and prior to backfilling, remove forms and clean excavation of trash and debris. Backfill with clean material free from debris and containing sufficient moisture for proper compaction; compact thoroughly; puddle only if directed; bring to suitable elevation above grade to provide for settlement and shrinkage.

The requirements that the Architects-Engineers be present at certain stages of construction and to certify progress payments and to make a final inspection and certification means that the Architects-Engineers will use reasonable care to see that the Contractor constructs the building in substantial compliance with the plans and specifications.

We do not find the use of the word “supervision" in the instruction to be reversible error. Architects-Engineers argued in objecting to this instruction that the Architect was under a duty only of “general inspection” rather than “supervision.” We find no need to make such a narrow distinction. “Inspection” would probably have been a better word than “supervision” in the instruction in question, but Architects-Engineers may not complain because “supervision” does not connote a higher standard of duty than “inspection.” The contract required Architects-Engineers to oversee the placing of backfill against the foundation walls, inspection and approval before pouring of concrete; and to make a final inspection that the work had been completed in accordance with the contract documents. The instruction did not imply that Architects-Engineers had a duty to make continuous on-site inspection or supervision, or that Architects-Engineers guaranteed the Contractor’s work.

Moreover, the factual issues do not involve the question of the failure to make continuous on-site inspection or supervision but whether Architects-Engineers used reasonable care in making the observations or inspections that the proof showed they did make.

Did the court err in granting Instruction No. 8 for the plaintiff?

Instruction No. 8 is as follows:

The court instructs the jury for the plaintiff that if you find for the Plaintiff, you may take into consideration all damages, if any, which have been proved by a preponderance of the evidence in this cause, and in arriving at the amount of damages, if any, you may take into consideration the following:
1. All costs to the Plaintiff for remedial repairs, provided that you believe from a preponderance of the evidence that such remedial repairs were reasonable and necessary to protect and preserve the building from further deterioration.
2. The cost to the plaintiff of all permanent repairs which are reasonable and necessary to restore the building to its original state of completion.
3. All damages, if any, which will be caused as a result of business interruption during permanent repairs made to the building.

As to Item No. 1, it is contended that the jury should have been instructed on the before and after rule rather than the cost of repair. It should be noted that no evidence was presented on this question. Further, the building was repairable and it was shown that it would have cost between one and one-half and three times the original cost of the building to replace it.

As to Item No. 2, it is contended that the instruction allowed recovery for certain items, including expensive underground drainage systems, that were never intended when the building was constructed. However, the proof indicated that such improvements were necessary before any permanent repairs could be made.

It is also argued that Instruction No. 2 was erroneous in that it did not allow for depreciation. As to this charge, we point out that appellants never presented any proof as to depreciation. Further, we are not convinced that appellants would have been entitled to a deduction for depreciation due to the fact that the building began to fail within six months after it was completed.

We find no reversible error in the quoted instruction except as to Item 3. Specific objection was made to Item 3 on the ground that it was “too vague and general in regard to the element of damages which may or may not be incurred during the period of repairs.” Item 3 of this instruction is fatally defective in that it allowed the jury to determine the measure of damages. This case falls within the rule laid down in Copiah Dairies, Inc. v. Addkison, 247 Miss. 327, 153 So.2d 689 (1963), wherein this Court said: “The instruction furnishes no guide to the jury to be used in awarding damages for these items.” 247 Miss. at 338, 153 So.2d at 694.

We have considered various other assignments of error by Architects-Engineers and find no reversible error. The complaint made of the failure of the court to sustain objection to the hypothetical question propounded to witness Lunardini has been carefully considered. There are imperfections in this question but we do not think that it is reversible error.

After careful study, we find that the refusal of Instructions 5 and 8 requested by Architects-Engineers was not reversible error.

Numerous other questions are raised by Contractor, most of which are already answered. It is the contention of Contractor that the record is completely devoid of any testimony to support the allegations that the Contractor failed to install grading and drainage systems according to the plans and specifications on the east or high side of the lot. We have already stated the testimony supporting Owner’s charge that no drainage system was installed on the east side of the building. Photographs taken in February, 1974, showed water standing along the east side of the building. The record clearly establishes that water standing on the upper side of this building would saturate the Yazoo clay and cause it to expand and damage the building. Mr. Goodman, as already noted, testified that there had been no change in the topography since the building was constructed and the weight of the testimony indicates that this failure was a proximate cause of the damage to the building. Mr. Biddy testified that the metal addition and the sidewalk had no effect on the permanent water retention areas along the east side of the building.

The contention that there was a misjoin-der of parties is raised by Contractor for the first time in this Court. We find no merit in this contention.

In sum, the evidence in this case justifies the jury’s verdict that damages were proximately caused by failure of the Contractor to follow the plans and specifications. It was also justified in finding that Architects-Engineers negligently failed to require the Contractor to construct the building and drainage system in accordance with the plans and specifications.

Because of the error in the instruction on damages, the case is reversed on that issue and affirmed on the question of liability and remanded for retrial on the issue of damages only.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


author: INZER, Presiding Justice,

text:
    Alex S. AVERA v. Richmond R. AVERA et al.
    No. 49100.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    W. S. Murphy, Lucedale, for appellant. Curtis Breland, Leakesville, for appellees.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   INZER, Presiding Justice,

for the Court.

Appellant Alex S. Avera brought suit in the Chancery Court of Greene County against Richmond R. Avera and others seeking to have the claim of the defendants to certain lands in Greene County cancelled as a cloud on his title.

The land in question, and other lands, were owned by Alex Ebenezer Avera who died in 1934. He left surviving him as his sole heirs at law his widow, Nora Avera, and six children, who became vested with a one-seventh interest each in the land in question. By conveyance from the other heirs, title to all the land involved in this case became vested in Nora B. Avera and her two sons, Richmond R. Avera and Alex S. Avera in unequal shares, Nora owning an %i interest, Richmond owning an %i interest and Alex owning a V21 interest.

On April 4, 1946, Richmond and Alex conveyed by warranty deed the land in question to Nora B. Avera. After describing the land, the following provision was written into the deed:

This deed is made with full knowledge and understanding with all the parties concerned that at the death of Mrs. Nora B. Avera, title to the above described land will revert to Alex Sharp Avera.
It is understood that Richmond R. Av-era is reserving barn on above described property and is to remove same within five (5) years from date.

On November 9, 1963, Nora executed and delivered to Richmond a warranty deed conveying to him a part of the land conveyed by the April 4,1946, deed. A part of this land was conveyed by Richmond to the other defendants.

Nora B. Avera died on December 15, 1969, and on October 3,1970, appellant filed this suit claiming that when his mother died he became the owner in fee simple of the land described in the deed. After a hearing, the chancellor in his opinion stated among other things as follows:

It is the contention of Alex S. Avera that the statement in the above mentioned deed should be construed to mean that since his mother has now died that he is the owner in fee simple of the land described in that deed. The Court is unable to so interpret the deed. Mrs. Nora B. Avera did not sign the deed. She was the grantee and conveyed nothing. And after that deed was executed and before she died she conveyed her interest in part of the land to Richmond Avera.
The deed conveys nothing from Richmond Avera to Alex Sharp Avera. The complainant urges that the deed should be liberally construed so as to mean that Richmond Avera conveyed to his mother a life estate and at her death his interest to go to Alex S. Avera and that the Court should liberally construe the deed so as to convey such meaning.
The Court has carefully considered this contention in the light of modern interpretation of a deed to reflect the true intention of the parties. However, after rechecking the cases I am unable to find sufficient in the deed to convey anything from Richmond Avera to Alex Sharp Av-era. The deed is to Mrs. Nora B. Avera and the word revert is used. This is insufficient to convey any title from Richmond to Alex, but provides for reversion to Alex.
I hold therefore that the deed from Mrs. Nora B. Avera to Richmond Avera in 1964 conveyed her interest in the land described therein. But she had only a life estate in the interest conveyed to her by Alex. And at her death the %i interest of Alex S. Avera reverted to him, and he is the present owner of such portion. The remaining undivided interest is owned by Richmond Avera, and the heirs of Mrs. Nora B. Avera.
That is to say the NW Vi of SE Vi of NE Vi and S Vz of NE Vi of NE Vi of Section 31, Township 4 North, Range 7 West is owned by Richmond R. Avera, a 16/2i interest and by Alex S. Avera a Vz\ interest; that the N Vz of NE V\ of SE Vi of said Section 31, Township 4 South, Range 7 West, is owned by Richmond R. Avera, an V21 interest; by Alex S. Avera, a V21 interest; and by the estate of Nora B. Avera an V21 interest.

On appeal it is contended that by virtue of the provisions in the deed of April 4, 1946, that upon the death of Mrs. Nora B. Avera appellant became the owner in fee simple of the land described in the deed. It is argued that it was intended by the parties to vest a life estate in Nora and upon her death title to all the property would vest in Alex. In support of this argument, appellant cites and relies upon Avant v. Wells, 244 So.2d 398 (Miss.1971). We are unable to see how this case is in point except possibly as to the interest that Alex conveyed to his mother. Since appellees agree that Alex only conveyed to his mother a life estate in his %i interest and upon her death he became the owner of the Vz\ interest in the land in question, we need not explore this feature of the case. In Avant, supra, the grantor conveyed the land to his wife and provided that after her death by fee simple the property be equally divided between Clara V. Wells and Maggie Avant Wilkerson. We held that it was clear that the grantor intended to convey to his wife a life estate and to vest the remaining interest in his nephew and niece.

It is important to note that Richmond by virtue of the deed conveyed and warranted to his mother his %i interest in the land and only reserved the right to remove the barn from the premises. Alex was not a grantee in the deed and no words are found in the deed that can be said that Richmond conveyed to his mother a life estate with the remainder vested in Alex. The fact that Nora accepted the deed with the foregoing provision therein did not bind her to convey to Alex nor did it reduce her %i interest, in the land to a life estate and vest the remainder in Alex.

It is well settled that Alex could not reserve anything that he did not own. In Barataria Canning Co. v. Ott, 84 Miss. 737, 37 So. 121 (1904), this Court said:

A reservation in a deed must not only be, as hereinbefore pointed out, of something which would otherwise, by operation of the terms of the deed, be conveyed, but it must necessarily be of something which belongs to the grantor at and before the execution of the deed. Property cannot be conveyed by reservation, and yet that is what is attempted to be done if the construction contended for by appellees be sustained. At the date of the deed appellee owned the land and the water front with all littoral and aquatic rights lawfully appurtenant thereto. Appellant owned the oysters which it had planted and bedded in the waters in front of the land. By deeding a portion of the land and reserving certain rights which are merely incident to the land, appellees claim to have acquired title to the property of the appellant. This view cannot be sustained. Appellant, being the owner of the oyster beds which it had planted, cannot be divested of its ownership by implication, and appellees can only acquire those rights by express grant. It is no argument upon either side to say what the intention of the parties was. The deed must speak for itself, and, if the reservation be so indefinite as to convey no certain meaning, it will be held to be ineffectual.
(84 Miss. at 757, 37 So. at 125).

Cook v. Farley, 195 Miss. 638, 15 So.2d 352 (1943), involved the question of who owned the mineral rights under 200 acres of land. Dr. Cook and his wife owned the land in fee simple. They conveyed by warranty deed to one Goss, which contained the following exception: “There is also excepted from this conveyance all oil, gas and mineral deposits on said land, which the grantors herein have promised to convey to Acquilla B. Cook.” Acquilla B. Cook was the son of the grantors and to whom no deed of conveyance was ever executed by his parents. Acquilla conveyed his interest in the minerals to Farley, who also acquired the interest of Goss in the land.

In holding that the son acquired no interest, we said:

First, the son of the grantors in the deed was not a party thereto, it was not delivered to him, and it contains no words of a present grant or conveyance. The language employed in the exception is merely explanatory of the grantors’ present purpose or reason for not then conveying the minerals to their grantee Goss. Under what terms and conditions, and for what consideration, if any, they may have promised to convey the minerals to their son at some future date, or whether or not the same were complied with by him, is not disclosed. But it is sufficient to say that the conveyance to Goss for the land contained no words importing a grant of the minerals to the son of the grantors therein.
(195 Miss. at 649, 15 So.2d at 355).

In the case before us Alex was not a grantee in the deed and the deed contained no words of a present grant to him. In Farley, the Court cited and discussed the cases of Hall v. Hall, 66 Miss. 35, 5 So. 523 (1888), and Raley v. Raley, 121 Miss. 555, 83 So. 740 (1920). In Raley, Jane Raley was the sole grantee in the granting clause of a deed which contained a provision to the effect that “I do also for the love I entertain for my children, covenant with her and my heirs to warrant and forever defend the title to said land and other property to them, that is to Jane Raley and my children.” This Court held that these words could not convey any interest in this property to his children, for the reason that they were not words of grant, such words in some form being absolutely essential to passing of an estate by deed. In the case before us there are no words in the instrument in question that can be said to be words of grant from either Nora or Richmond to Alex. The most favorable construction to Alex is that by the deed in question Alex only conveyed a life estate to his 5/2i interest and that upon the death of his mother, he became the owner in fee simple of this V21 interest. The appellees agree that he owns this interest and the chancellor so found.

We are of the opinion that the holding of the chancellor was correct and that the decree entered in this case should be affirmed.

AFFIRMED.

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