text:
    MISSISSIPPI STATE BUILDING COMMISSION v. CAROTHERS & CAROTHERS CONSTRUCTION COMPANY.
    No. 49109.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    A. F. Summer, Atty. Gen. by Donald Clark, Jr., Sp. Asst. Atty. Gen., Jackson, Stewart & Burks, Delos H. Burks, Picayune, for appellant.
    Watkins & Eager, Velia Ann Mayer, William E. Suddath, Jr., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Mrs. R. O. ARRINGTON and Norma L. A. Nicholas.
    No. 49130.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    S. E. Allen, Jr., Lamar Conerly, Jr., Haz-lehurst, for appellant.
   Appeal from Circuit Court, Copiah County; J. Gordon Roach, Judge.

Henley, Lotterhos & Bennett, Harris B. Henley, Hazlehurst, J. Harold Graham, Jr., Crystal Springs, for appellees.

Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and KERMIT R. COFER, Commissioner.

AFFIRMED.


text:
    Mrs. Clara CHAPMAN v. Ray NEWMAN.
    No. 49123.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Lawrence W. Rabb, Meridian, for appellant.
    Williams & Glover, David Williams, Meridian, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Neshoba County; Roy Noble Lee, Judge.

AFFIRMED.

LEE, J., Took No Part.


text:
    William A. KOLSTAD v. STATE of Mississippi.
    No. 49478.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Jim W. Rose, Gulfport, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

AFFIRMED.


text:
    NATIONAL BUILDING CORP., a corporation, and Windsor Park, Inc. v. D. D. BALLARD, d/b/a D. D. Ballard Construction Co.
    No. 49111.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Sullivan, Sullivan & Keyes, Earl Keyes, Jackson, for appellants.
    Robert W. King, Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

AFFIRMED.


text:
    CAREFREE DEVELOPERS, INC. v. Perry S. RANSOM, Jr., P. E.
    No. 49122.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Rehearing Denied Feb. 23, 1977.
    Bryan, Nelson, Allen & Schroeder, Ernest R. Schroeder, Pascagoula, for appellant.
    Corlew & Burdick, C. Gray Burdick, Pas-cagoula, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

AFFIRMED.


text:
    James David AINSWORTH, a minor, by his guardian, Mrs. Carlene Ainsworth v. Charlie SOJOURNER, d/b/a Sojourner Trucking Co., et al.
    No. 49129.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Merrimen M. Watkins, Crystal Springs, for appellant.
    Henley, Lotterhos & Bennett, Julius L. Lotterhos, Jr., Hazlehurst, Daniel, Coker, Horton, Bell & Dukes, John M. Roach, Jackson, for appellees.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

AFFIRMED.


text:
    Rex CLEVELAND v. STATE of Mississippi.
    No. 49441.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Randle & Winston, Charles R. Brett, Tu-pelo, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley and Karen A. Gilfoy, Asst. Attys. Gen., Jackson, for appellee.
    Before INZER, P. J., ROBERTSON and WALKER, JJ., and DARWIN MAPLES, Commissioner.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

REVERSED AND REMANDED.

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


text:
    Paul M. HUNTER, Sr., et al. v. RIVER VIEW LAND COMPANY, a Mississippi Corporation.
    No. 48853.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
   Appeal from Chancery Court, Coahoma County; Partee L. Denton, Chancellor.

Semmes Luckett, Leon L. Porter, Jr., Clarksdale, for appellants.

Holcomb, Dunbar, Connell, Merkel & Tol-lison, Jack F. Dunbar, Clarksdale, for appel-lee.

Before PATTERSON, P. J., SUGG and WALKER, JJ., and WILLIAM NEVILLE, Commissioner.

REVERSED AND RENDERED EXCEPT POINT 5 OF THE TRIAL COURT’S OPINION WHICH IS AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


text:
    Mr. and Mrs. Ernest WORSHAM et al. v. O. J. STANTON & COMPANY, INC., et al.
    No. 49103.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Sidney S. McMath, Little Rock, Ark., Charles C. “Cliff” Finch, M. Collins Bailey, William E. Trusty, William L. Cook, Jr., Thomas H. Hadley, Batesville, for appellants.
    Lake, Tindall, Hunger & Thackston, Frank S. Thackston, Jr., Edwin W. Tindall, Greenville, for appellees.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Leflore County; B. B. Wilkes, Judge.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    HARRY DOLE DODGE, INC. and John W. Herrington v. A. B. LUCAS.
    No. 49012.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    T. E. Davidson, Jackson, for appellants.
    E. Howard Eaton, Taylorsville, John K. Keyes, Collins, for appellee.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   Appeal from Circuit Court, Covington County; George B. Grubbs, Judge.

REVERSED AND REMANDED.

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


text:
    Brent A. NOOTBAAR and Roger Bahlmann v. STATE of Mississippi.
    No. 49470.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

Whitman D. Mounger, Greenwood, for appellants.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.

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


author: SMITH, Justice,

text:
    The LINCOLN NATIONAL LIFE INSURANCE COMPANY v. Ronnie CREWS.
    No. 49000.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Wells, Wells, Marble & Hurst, Erskine W. Wells, John E. Hughes, III, Jackson, for appellant.
    Michael J. Malouf, Jackson, for appellee.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   SMITH, Justice,

for the Court:

The Lincoln National Life Insurance Company appeals from a judgment against it in the amount of $3,000 rendered by the Circuit Court of the First Judicial District of Hinds County in favor of Ronnie Crews.

The declaration filed by Crews sought recovery from Lincoln of $691.72 in hospital and doctors’ expenses alleged to have been incurred by his wife and to have been covered under a policy of group health insurance issued by Lincoln to Crews’ employer. In addition to this sum Crews also demanded punitive damages.

Crews’ wife was hospitalized from February to March, 1973. The first hospital bill was submitted to Lincoln and paid. A bill from the doctor also was received and paid by Lincoln. Mrs. Crews received two bills from a second doctor and another hospital bill, totaling in all $691.72. These items were the subject of the present controversy.

Lincoln’s policy lapsed May 31, 1973 (after termination of Mrs. Crews’ hospitalization), for non-payment of premium. The policy provided for proof of loss with respect to claims to be submitted in 90 days. After the policy lapsed the company of its own volition extended the time an additional 90 days. Proofs of the claims in question were not submitted within the 180 day period according to Lincoln’s records and no direct evidence was given on behalf of Crews that they were. According to Lincoln’s records the hospital bill was submitted 237 days after loss and the doctor’s bills not until 327 days had elapsed.

The trial court denied plaintiff’s request for a peremptory instruction and the case was submitted to a jury upon instructions dealing with the issue of liability, vel non, of Lincoln for the items of expense referred to, and, granted over Lincoln’s objection, numerous instructions dealing with the imposition of punitive damages.

Looking at the evidence most favorably to Crews, with reasonable inferences to be drawn from it favorable to him, the proof was adequate, we think, to create a question of fact for determination by the jury as to whether the circumstances were such as to justify a finding that there had been a waiver of the 180 day time limitation. We are unable to say that the verdict, as to the actual items of expense amounting to $691.72 was against the overwhelming weight of the evidence and the judgment appealed from will be affirmed in that amount.

The remainder of the verdict in the amount of $2,308.28 constitutes an award of punitive damages. There is nothing in the record capable of supporting a finding that Lincoln, in defending the suit and relying upon the provisions of the policy, acted other than in good faith. The mere fact that Lincoln rejected the claims under the provisions of its policy and defended the suit and lost does not justify imposition of punitive damages.

Punitive damages are not recoverable for breach of contract unless such breach is attended by some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort. Progressive Casualty Co. v. Keys, 317 So.2d 396 (Miss.1975); D. L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770 (1944); American Railway Express Co. v. Bailey, 142 Miss. 622, 107 So. 761 (1926); Hood v. Moffett, 109 Miss. 757, 69 So. 664 (1915).

The judgment will be affirmed in the amount of $691.72. It will be reversed and judgment will be entered here for appellant as to the award of punitive damages in the amount of $2,308.28. Costs will be apportioned equally between the parties.

AFFIRMED IN PART AND REVERSED AND JUDGMENT HERE FOR APPELLANT IN PART.

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

GILLESPIE, C. J., took no part.


author: WALKER, Justice,

text:
    Marie Kelly STEELE v. Evelyn MACK et al.
    No. 49073.
    Supreme Court of Mississippi.
    Feb. 2, 1977.

      James A. Phyfer, Fred A. Ross, Jr., Jackson, for appellant.
    Joe G. Moss, Raymond, for appellees.
    Before INZER, ROBERTSON and WALKER, JJ.
   WALKER, Justice,

for the Court.

On July 2,1974, Marie Steele filed her bill of complaint in the Chancery Court of the Second Judicial District of Hinds County to partition a 16-acre parcel of land. The ap-pellees, the heirs and assigns of Stella Kelly, claimed that they had established title by adverse possession and sought a confirmation of their title by cross bill. Holding that adverse possession had been established, the chancellor dismissed Mrs. Steele’s bill and confirmed the title in the appellees.

Marie and her mother-in-law, Stella Kelly, had purchased the land in 1945. They both lived on the land, as did J. C. Kelly, Marie’s husband and Stella’s son, after his return from the war, until Marie and J. C. separated in 1948. They were divorced in 1949. Marie has not lived on the land since the divorce, although she has visited the property on several occasions.

Stella Kelly and her family have exercised most of the incidents of control over the land since 1949. The Kellys built several houses and paid all the taxes. Furthermore, in 1962, Stella executed two warranty deeds, purporting to transfer the entire interest in two one-acre parcels contained in the larger tract. One piece went to Archie Kelly and his wife, and the other to Laree Kelly. The parcel sold to Laree Kelly was later foreclosed and sold to Mid-State Homes, Inc., and is now owned by Thirly Lewis and Jessie Mae Lewis. The remaining 14 acres have not been conveyed since Stella and Marie purchased the land.

The testimony gives no indication that Marie received actual notice that her former in-laws were claiming the entire interest adversely to her. Her former husband testified that they had never had a conversation about the property “because I always felt like it was ours.” Likewise, his brother Archie testified that he had never spoken to Marie about the land, and their sister, Evelyn Mack, failed to respond to a question as to whether she had spoken with Marie. In fact, Marie’s niece, Mary Ellen Young, testified that she had been present at a conversation between Marie and several of Stella’s heirs after Stella’s death in 1963. The purpose of the conversation was to settle the rights to the property, but there is no indication that Stella’s heirs ever informed Marie that they were claiming the entire interest in the land. This is the only actual communication between the parties about the land disclosed by the record.

The record, then, discloses that Marie Steele and Stella Kelly originally held the land as tenants in common, each holding a one-half undivided interest. Stella’s interest, less the two one-acre tracts deeded to Archie, and Laree descended to her heirs upon her death. To uphold the chancellor’s decision that Stella and her heirs and assigns obtained Marie’s interest in the land by adverse possession, the record must show an unequivocal ouster. Such an ouster is always difficult to establish, as the Court explained in Bush v. Quinn, 236 Miss. 895, 901-02, 112 So.2d 231, 233 (1959):

The rule which one cotenant must meet in order to oust a fellow-cotenant has been stated by this Court in these words: “In order to establish ouster of cotenants by a tenant in common in possession, the cotenants out of possession must have notice of his adverse claim either ‘from actual knowledge or as is sometimes vaguely expressed, by acts equivalent thereto’, as by conduct so unequivocal that knowledge on the part of the coten-ant out of possession must be necessarily presumed. Hurst v. J. M. Griffin & Sons, Inc., 1950, 209 Miss. 381, 46 So.2d 440, 442, 47 So.2d 811. The Hurst case further holds: ‘The testimony of such knowledge by the other tenants in common must be clear and convincing. Fox v. Wilkins, 201 Miss. 78, 28 So.2d 577. It is not enough that the possession to convey title should be apparently adverse but must be such with actual notice to the co-tenants or shown by such acts of repudiation of their claim as are equivalent to actual notice to them.’ ”

Thus, the appellees had the burden to establish that Marie was unequivocally ousted by actual notice or by conduct equivalent thereto.

The chancellor held that the ouster was established by the fact that Marie left the property at the time of her divorce. However, even if her husband’s conduct somehow forced her to leave him, such an action was clearly the result of marital difficulties and would not be notice that her interest in the land owned by her and occupied by them during the marriage was in jeopardy.

The record conclusively demonstrates that Marie never had actual notice that the appellees were claiming the land adversely to her interest. None of the ap-pellees testified that they had ever had any communication at all with Marie about claiming the property. Nor can we conclude that the acts of ownership performed by the appellees were the equivalent of actual notice. It is true that the appellees and their mother, Stella, made extensive use of the land, but this use was not inconsistent with their interest as cotenants. This Court faced a similar situation in Quates v. Griffin, 239 So.2d 803, 810 (Miss.1970):

Griffith’s possession for approximately thirty years can only be characterized as including every act of ownership that would normally be practiced by an actual owner on rural lands of this character. It included the payment of taxes, the improvement of the pasture, the repair of the houses, the repair and removal of fences, the cutting of timber for the construction of a pond, the construction of the pond, the grazing of cattle upon the land and maintaining tenants on the property. However, these acts are also those which are entirely consistent with the lawful acts of possession which may be exercised by a cotenant in possession. In sum, the acts were not inconsistent with a cotenancy.

Likewise, the appellees’ acts in this case were entirely lawful and consistent with their rights as cotenants and did not constitute notice to Marie that they were claiming adversely to her interest. See also Kennedy v. Bryant, 252 So.2d 784 (Miss.1971).

However, one of the appellees, Archie Kelly, did establish an ouster as to his one-acre tract. Archie received a warranty deed from his mother in 1962, purporting to grant the entire interest in the parcel. This deed was recorded, and Archie’s testimony indicates that he took possession of the property, built a house thereon, and continuously occupied same adversely for more than ten years. Under the rule announced in Quates, supra at 811, this evidence is sufficient to establish an ouster:

Where one or more of several cotenants convey land by an instrument purporting to vest in the grantee the fee simple title to the entire property, and the grantee is not a cotenant at the time of the execution of the deed, and the grantee records his deed in the county where the land lies, and enters into possession asserting open and exclusive ownership thereof, the co-tenants not participating in the conveyance are deemed to be ousted and on the termination of the statutory period, title by adverse possession becomes vested in the grantee.

Archie was not a cotenant at the time of the conveyance. The deed purported to convey to him the entire interest in fee simple. Since ten years had elapsed before the filing of Marie’s suit, Archie has perfected his interest in this parcel by adverse possession. See also Hardy v. Lynch, 258 So.2d 414 (Miss.1972).

Also, Marie is not entitled to the relief she seeks from Thirly Lewis, his wife, and the other parties having a recorded interest in the one acre deeded to Laree Kelly, even though those parties made no appearance in the chancery court or here. Marie could have moved for a decree pro confesso against Lewis, but she failed to do so. Griffith, Mississippi Chancery Practice § 257 (2d ed. 1950). The proof adduced at the hearing demonstrated that she was entitled to no relief, since Lewis and his predecessors in title took possession of the land and occupied same adversely under a deed from Stella for more than ten years prior to the suit. Quates, supra at 811. Consequently, the decree was properly silent as to this acre, since Marie was entitled to no relief, and Lewis had asked for none.

There is no merit to the appellees’ contention that Marie is barred by laches from demanding a partition. Our law is clear that laches provides no defense in the absence of a showing of an unequivocal ouster. Hurst v. J. M. Griffin & Sons, Inc., 209 Miss. 381, 388, 46 So.2d 440, 442 (1950).

It follows, then, that the chancellor should have dismissed the cross-bill except as to Archie Kelly, whose title to his one-acre parcel should have been confirmed. The decree properly granted no relief in regard to the one acre deeded to Laree Kelly. As to the remaining fourteen acres, Marie Steele was entitled to the partition she sought in her bill of complaint. The cause must therefore be remanded to the chancery court so that the property may be partitioned according to law.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


text:
    Tom KEY, Jr., et al. v. Louis J. WISE et al.
    No. 48965.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Rehearing Denied Feb. 23, 1977.
    C. M. Murphy, Memphis, Tenn., for appellants.
    Vardaman S. Dunn, Jackson, Walter R. Bridgforth, Yazoo City, for appellees.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   SMITH, Justice,

for the Court:

This is an appeal by Tom Key, Jr., and others, from a decree of the Chancery Court of Humphreys County canceling their claims to certain Humphreys County real estate as “doubts, clouds or suspicions” upon the title of appellees, Louis J. Wise, and others, thereto.

The Keys, as descendants and heirs at law of Alf Key and Carrie Key, deceased intestate, claimed the property by inheritance from them. The Wises, appellees here, claimed that they had entered the land under color of title and had become and were the owners thereof by adverse possession for more than 31 years and that the claims of ownership by the Keys constituted clouds upon their title which they were entitled to have canceled or removed.

A great deal of evidence, oral and documentary, was submitted to the chancellor by both sides, resulting in a six volume record in this Court. From this record it appears that the case was well tried and it has been thoroughly briefed and argued here.

It is the contention of appellees that they entered the land under color of title prior to 1932, that since then they have been in the actual possession thereof for the entire period which has since elapsed, such possession having been open, visible, notorious, uninterrupted, continuous, peaceful, hostile, exclusive and adverse, claiming to be the owners thereof as against all the world, that by virtue of such possession for more than 31 years their title has matured and has been established and that all right, title and interest of appellants to the land, if any, is now barred and precluded.

Accepting as established, as we must, all that the evidence proved or reasonably tended to prove which supports the chancellor’s decree, as well as all inferences favorable thereto which reasonably may be drawn from the evidence, we are unable to say that the chancellor, as trier of facts, was manifestly wrong in finding that title had matured in appellees by their adverse possession of the land for more than the statutory period of 31 years and that the claims of appellants had become barred. The evidence was sufficient to support the factual conclusion that the possession of the land by appellees, under color of title, fulfilled in essential particulars the criteria laid down by this Court in Quates v. Griffin, 239 So.2d 803 (Miss.1970), modifying Nichols v. Gaddis and McLaurin, 222 Miss. 207, 75 So.2d 625, 78 So.2d 471 (1954), a case in which substantially similar issues were involved.

Finally, the Keys contend that a Federal statute [28 U.S.C. § 2409a (Supp.1976)] extended the period necessary to establish title by adverse possession from 10 years, the minimum required by the Mississippi statute to 12 years, and also deprived the Humphreys County Chancery Court of jurisdiction. This was asserted, in substance, in a suit filed by the Keys in the U.S. District Court in July, 1972, in which the United States was made a defendant and which was predicated upon the conveyance by the Wises to the United States in August, 1961, of an easement for a dam which actually was constructed on the land by the U.S. Corps of Engineers in 1962.

28 U.S.C. § 2409a provides, in part:

(a) The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest,
(b) The United States shall not be disturbed in possession . . . pending a final judgment or decree, . . . and if the final determination shall be adverse to the United States, the United States nevertheless may retain such possession upon payment ... of . just compensation for such possession or control.
(c) The complaint shall set forth with particularity the nature of the . interest claimed by the United States.

The statute contains a 12 year limitation upon commencement of an action under its provisions:

(f) Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.

In the present case there is no “interest claimed by the United States” which is controverted by the Wises and the United States is not a party. The quoted statute does not apply in disputes between private parties as to the private ownership of land or deprive the Mississippi courts of jurisdiction of litigation involving the interests of private persons in Mississippi real estate.

In the Keys’ United States District Court suit the district judge declined to proceed and entered an order holding it in abeyance pending the outcome of the present litigation between the Keys and the Wises. Upon final termination of this suit the District Court doubtless will proceed with the disposition of the Keys’ suit in which the United States is a defendant.

The decree appealed from must be affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: BROOM, Justice,

text:
    CAROLINA TRANSFORMER COMPANY, INC. v. Andy ANDERSON et al.
    No. 49147.
    Supreme Court of Mississippi.
    Feb. 2, 1977.

      Bailey & Sadler, E. Foley Ranson, Ocean Springs, for appellants.
    Binder, Lucas & Lohrmann, Jerome L. Lohrmann, Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court.

Failure of a domestic corporation (Tranco Electric Supply Company, Inc.) to file its annual report prompted the Secretary of State to suspend the corporation from doing business. Anderson (appellee) as owner of Tranco continued to operate the business in the corporate name and from time to time obtained from Carolina Transformer Company, Inc. (appellant) additional transformers on consignment to be sold by Tranco. After Tranco’s account with appellant became considerably delinquent, extending over several months, appellant sued Anderson and the corporation (Tranco) which Anderson owned. The Circuit Court of Jackson County (without a jury) heard the case and awarded appellant an $18,277 judgment against Tranco, the corporate defendant, but exonerated Anderson as an individual. Appellant argues on appeal that the lower court erred in not entering judgment against Anderson personally. We reverse.

The dispositive issue is: Under Mississippi Code Annotated § 79-3-285 (1972), is Anderson personally liable for debts incurred by Tranco Corporation subsequent to its suspension (November 20, 1973) from doing business for failure to file its annual report? § 79-3-285 provides:

All persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.

Clearly, under § 79-3-189, by virtue of the suspension, Anderson’s corporation (Tranco) became functionally unable to operate though it did not cease to exist.

In this context appellant argues that in placing orders for additional transformers subsequent to the suspension, Anderson was within the purview of § 79-3-285 making “[a]ll persons who assume to act as a corporation without authority so to do” liable for all debts incurred as a result thereof. Ap-pellee’s brief is based on the thesis that appellant is challenging the corporate existence of Tranco, but appellant’s brief reveals no such challenge. Appellant’s argument is simply that Anderson is personally liable by the clear terms of § 79-3-285.

Though not argued by appellant, we note that Anderson admitted making a trip to North Carolina to consummate a sales agreement prior to the first shipment of transformers. Although he was uncertain of the date of that meeting, Strother (appellant’s president) testified that the meeting took place in December 1971. Anderson offered nothing to contradict that statement. He testified that at the time of the negotiations with Strother he (Anderson) was operating Tranco as a sole proprietorship. The company was not incorporated until some three or four months after the sales agreement was entered into. Although Anderson denied any individual liability for debts incurred through that sales agreement, his position is not consistent with the fact that at the time of the negotiations his business was a sole proprietorship.

The record shows no renegotiation with Carolina Transformer when Tranco was incorporated. Neither does it show that Carolina had any notice whatsoever that the status of Tranco ever changed from a sole proprietorship to a corporation. All of the delivery receipts and invoices introduced at the trial were made out simply to “Tranco” or “Tranco Electric Supply Company.” Likewise, the statement of account filed with the declaration is prepared in the name of “Tranco Electric Supply Company.” Absent any notice to Carolina Transformer of a change of identity as to Tranco, under the circumstances of this case the sole proprietor (Anderson) remained liable for credit extended to the corporation.

Guynn v. Brondum, 217 Miss. 243, 63 So.2d 821 (1953), dealt with a situation in which a credit arrangement was established with a building supply company while the Guynn business was a partnership, but which continued after incorporation. The original partners denied individual liability except debts incurred prior to incorporation. This Court said:

The partnership, having arranged for credit, could not avoid its responsibility by incorporating the business without bringing to the attention of the merchant the change of ownership. (217 Miss. at 247, 63 So.2d at 823.)

Appellee next argues that under § 75-2-201(1), a contract for the sale of goods for the price of $500 or more is unenforceable unless in writing. However, paragraph (3) of the same statute finds such unwritten contracts enforceable

(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
(c) with respect to goods which have been received and accepted.

Here, Anderson admits to the making of the contract with Strother, and to the corporation owing for all of the goods itemized on the statement of account, save one. So the provisions of (3)(b) are met.

As for (3)(c), Anderson admits to receiving all invoiced items (that is, all items except the first twenty-one) on the statement of account. During the trial he was shown plaintiff’s exhibits 2 and 3 and acknowledged receipt of all items, save one. § 75-2-606(l)(b) says that acceptance of goods is failure to make an effective rejection; § 75-2-602 says an effective rejection is seasonable notice to seller within reasonable time after delivery. The record does not show that such notice was given to Carolina Transformer. Therefore, it appears that the goods were received and accepted satisfying the conditions of (3)(c).

Appellee next argues that under the statute of frauds, § 15-3-l(a), Anderson cannot be held liable for the debts of another since such “special promise to answer for the debt ... of another person” was not in writing.

However, the situation contemplated by the statute of frauds is a gratuitous promise by a third party to pay a creditor for debts of the debtor. This simply is not the factual situation here. Appellant does not contend that appellee as an individual made a gratuitous promise to assume the debts of Tranco Corporation, but argues that appellee is statutorily liable.

Appellant’s argument that Anderson is liable within the purview of § 79-3-285, supra, and § 79-3-189, supra, is valid upon the facts of the case. Upon suspension of its charter, Tranco, under § 79-3-189, was without “any right to exercise powers” granted it by the state. By virtue of the suspension, § 79-3-285 became operative so that any person (including its president, appellee Anderson) who would assume to act as the corporation, as Anderson did here, was “without authority so to do.” Therefore, as provided in § 79-3-285, he was “liable for all debts . . . arising as a result thereof.” This is in accord with 19 Am.Jur.2d Corporations § 1365 (1965), and 19 C.J.S. Corporations § 895 (1940), which at page 313 says:

The liability imposed by these statutes on directors or officers who do not comply therewith is direct and primary and absolute, and not that of a surety or guarantor for the corporation.

Therefore, the case must be reversed and remanded for the lower court to determine and render judgment in appellant’s favor for exactly the amount that Anderson ordered and received (from appellant) subsequent to the suspension on November 20, 1973, which is all appellant claims in its brief.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


author: CULPEPPER, Judge.

text:
    CITY BANK & TRUST COMPANY, Plaintiff and Appellant, v. CANECO CONSTRUCTION, INC., Defendant and Appellee.
    No. 5704.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1976.
    Rehearing Denied March 2, 1977.
    Gahagan & Gahagan, by Henry C. Gahagan, Jr., Natchitoches, for plaintiff and appellant.
    Kelly, Seaman & Ware, by Richard N. Ware, Natchitoches, for intervenor-appellee.
    Watson, Murchison, Crews & Arthur, by Daniel T. Murchison, Natchitoches, for in-tervenor and appellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a companion case to Franklin v. Caneco Construction, Inc., 341 So.2d 1339, in which a separate decision is being rendered by us this date. In the present case, City Bank & Trust Company sued to foreclose by executory process on a mortgage from defendant Caneco covering a newly constructed residence. Several labor and material lien claimants intervened. W. H. Franklin also intervened, claiming a vendor’s lien on the lot on which the house was built and, in the alternative, seeking dissolution of the sale to Caneco for its failure to pay the purchase price. In the companion suit also, Franklin sought to dissolve the sale to Ca-neco for failure to pay the purchase price, and the Bank intervened.

The property was sold at sheriffs sale to City Bank & Trust Company on March 24, 1976. After a trial of the consolidated cases was completed on April 1, 1976, the trial judge held the Bank’s mortgage was not recorded until after construction of the residence had commenced, and judgment was rendered on the various labor and material liens accordingly. As to Franklin’s vendor’s lien and his suit to dissolve the sale, the judge rejected both demands on the grounds that Franklin could not introduce parol evidence to vary the statement in the deed to Caneco that Franklin had received the cash price of $5,000. The plaintiff Bank and the plaintiff Franklin appealed.

Franklin’s intervention in the present suit and his separate suit to dissolve the sale present factual and legal issues different from those presented by the labor and material liens. Accordingly, our discussion of this case will be divided into (1) Franklin’s intervention and his suit to dissolve the sale, followed by (2) a discussion of the labor and material liens.

FRANKLIN’S INTERVENTION AND HIS SEPARATE SUIT TO DISSOLVE

The evidence shows that by a cash sale deed dated August-, 1975, Franklin sold the residential lot in question to Caneco. The printed act of sale, in authentic form, contains this recitation:

“This sale is made for a consideration of the sum of ($5,000)— Five Thousand and No/100 . . . Dollars cash in hand paid, the receipt of which is hereby acknowledged.”

In addition to other necessary signatures, the signature of plaintiff, W. H. Franklin, appears on the act of sale.

To finance construction of the house, Ca-neco executed a promissory note for $36,000 in favor of City Bank secured by a collateral mortgage affecting the subject property, the note and mortgage being dated August 4, 1975. The cash sale deed was properly recorded at 1:32 p. m. and the mortgage at 1:33 p. m. on August 12, 1975.

Subject to City Bank’s timely objection at trial, Franklin was allowed to introduce evidence for the purpose of proving the nonpayment of the purchase price. This evidence included testimony by Franklin to the effect that at the time he signed the deed he received only $500 in cash and the remainder of the purchase price, $4,500, was in the form of a check drawn on Caneco’s account in City Bank. Franklin testified he presented this check to City Bank for payment on two occasions, August 5 and August 7 of 1975, but on both occasions the check was returned to Franklin for lack of sufficient funds in Caneco’s account. The check is filed in evidence and corroborates Franklin.

In his written reasons for judgment, the trial court sustained City Bank’s objection to the admission of evidence seeking to vary the recital that the entire purchase price was paid in cash. The court then rendered judgment rejecting Franklin’s demands in both suits.

Article 2236 of our Civil Code provides:

“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”

Article 2276 of the Civil Code states:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

These two articles are the basis of the parol evidence rule as it relates to authentic acts. The rule, of course, is subject to many exceptions. See Writing Requirements and the Parol Evidence Rule, a Student Symposium, 36 La.L.Rev. 745 (1975); A. Rubin, Parol Evidence to Vary a Recital of Consideration, 3 La.L.Rev. 427 (1941).

Also germane to our discussion is LSA-R.S. 9:2721, et seq., our Registry Law, which states:

No sale, contract, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated; and neither secret claims or equities nor other matters outside the public records shall be binding on or affect such third parties. Acts 1950, 2nd Ex.Sess., No. 7, § I-

LSA-R.S. 9:2722 provides:

Third persons or third parties so protected by and entitled to rely upon the registry laws of Louisiana now in force and effect and as set forth in this Chapter are hereby redefined to be and to include any third person or third party dealing with any such immovable or immovable property or acquiring a real or personal right therein as purchaser, mortgagee, grantee or vendee of servitude or royalty rights, or as lessee in any surface lease or leases or as lessee in any oil, gas or mineral lease and all other third persons or third parties acquiring any real or personal right, privilege or permit relating to or affecting immovable property. Acts 1950, 2nd Ex.Sess., No. 7, § 2.

These statutory provisions and the jurisprudence preceding and following their enactment constitute our public records doctrine. Both the parol evidence rule and the public records doctrine are operative in the present case. See Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 34 Tul.L.Rev. 490, 499-502 (1965).

Franklin, a party to the authentic act, seeks to vary his recited acknowledgment that the full purchase price was paid in cash. A third party relying on the public records, City Bank, opposes introduction of parol evidence to vary this authentic recital of payment and receipt in cash. As previously stated, the deed was recorded before the mortgage. At the time City Bank recorded its mortgage there was nothing in the public records to give notice of the fact that any portion of the price remained unpaid. To the contrary, the record showed an authentic act of sale reciting that the full amount of the purchase price was paid in cash. Under these circumstances, the trial court did not err in excluding parol evidence varying the recital that the full amount of the purchase price was paid in cash to Franklin. The above quoted statutes and the following cases support our conclusion.

Loranger v. Citizens’ National Bank of Hammond, 162 La. 1054, 111 So. 418 (1927) was a suit to enjoin the sale of a parcel of ground seized by defendant bank to satisfy its judgment against the plaintiff’s husband. Plaintiff claimed ownership of the seized property by virtue of a previously recorded authentic act of sale. The sale was a nullity because it purported to be a prohibited sale between husband and wife. The bank contended, therefore, that title to the property remained in the husband. Plaintiff sought to prove by parol evidence, however, that the intention of the parties was to make a donation inter vivos rather than a sale. Our Supreme Court sustained the bank’s objection to this parol evidence, stating:

The conveyance records are the only things to which one dealing with real estate or any real right ever needs to look, under repeated decisions of this court. Baird v. Atlas Oil Co., 146 La. 1091, 84 So. 366.
* * * * * *
To prove by parol evidence a true and sufficient consideration, in order to sustain the contract made between the parties, is always permissible, where the rights of third parties are not affected thereby. C.C. art. 1900. But to resort to such evidence for the purpose of contradicting or varying the contract entered into, in order to substitute in its place a contract of a dissimilar nature, is plainly reprobated by the textual provisions of our Code.
The effect of the parol evidence sought to be introduced in this case would be to replace a contract of sale duly recorded, and null and void upon its face, with a new and valid title of a different kind, a donation inter vivos, and, through this means, to transfer property standing in the name of the husband upon the public records to the wife.

One year later, in Gabert v. St. Tammany Yacht Club, 166 La. 57, 116 So. 667 (1928), the court had occasion to synopsize its holding in Loranger when it distinguished the case from the one then before it:

“In . . . [Loranger] the party (the bank) against whom the parol evidence was offered to prove that a recorded instrument purporting to be a sale was in fact a donation was a third party and was held to have had a right to rely upon the public records. The present contest is between the original parties to the transaction in question.”

In Baker v. Baker, 209 La. 1041, 26 So.2d 132 (1946) the court held that parol evidence was admissible to show that what purported to be a cash sale was intended by both parties to the act as a pignorative contract or security device. The parol evidence was admitted to show the true nature of the contract. After announcing the court’s holding, however, Justice Hawthorne carefully distinguished the factual circumstances of the case from those cases where the rights of third parties are involved:

We concede that plaintiff’s objection to the admissibility of parol evidence in this case would have been good had the rights of a third party been involved, and that such evidence would not be permitted to show, to the prejudice of third persons, that the contract, was pignorative in character. Had a third party purchased the property from Ronaldson & Puckett Company, Ltd., such third party’s rights would be fully protected, and parol evidence could not be adduced to show that the act of sale by which Ronaldson & Puckett acquired the property (this deed being regular on its face and by authentic act) was not a sale at all but only a pignorative contract or mortgage. Beard v. Nunn, 172 La. 155, 133 So. 429, and authorities therein cited.

Beard v. Nunn, supra, the case distinguished by Justice Hawthorne in Baker v. Baker, supra, involved an authentic act of sale in which the vendor acknowledged receipt of payment of the purchase price. Plaintiff sought to introduce parol evidence to show the purported sale was actually a pignorative contract or security device. The act of sale was recorded and a third party purchased the land relying on the terms of the authentic cash sale deed. The court excluded the parol evidence and clearly defined the rights of third parties to rely on authentic acts contained in the public records, holding:

“ . . . when the vendor acknowledges, in the very act of conveyance, the receipt of the price, that is conclusive; especially as to third persons, and still more especially when that acknowledgment is by public act. R.C.C. Art. 2237. (Emphasis supplied)
“ . . .it would be subversive of all of the fundamental rules of property to hold that third persons taking deeds at their face value should be subject to secret equities between their own vendor and prior owners of the land.”

Considering the authorities cited above, we hold that the parol testimony offered by Franklin to vary the recital that he was paid $5,000 in cash was properly excluded by the trial court. City Bank, as a third party, was entitled to rely on the authentic act as it appeared in the public records. The unsoundness of a contrary holding is immediately apparent, said in Beard: As Justice St. Paul

“ . . . there would be no security whatsoever for purchases of real estate, if they were not entitled to rely upon the title deeds to such property, as being exactly what they purport to be.”

The same reasoning applies to mortgagees relying on recorded titles.

Franklin argues further that since City Bank, as the drawee bank, knew when it recorded its mortgage that the $4,500 check had “bounced”, the Bank could not and did not rely on the public records which showed the entire $5,000 had been paid in cash. This argument has no merit. In the landmark case of McDuffie v. Walker, 125 La. 152, 51 So. 100 (1910), our Supreme Court held that despite the third person’s actual knowledge of facts contrary to those stated in the public records, the third person is nevertheless entitled to rely on the face of the public records, unless the third person has been guilty of fraud. In the present case, there was nothing on the public records to put City Bank on notice of Franklin’s asserted vendor’s lien or of/ his right to dissolve the sale for nonpayment of the purchase price. And no fraud on. the part of the Bank is alleged or provéd. See also the recent case of Owen v. Owen, La., 336 So.2d 782 in which our Supreme Court reaffirmed the rule that in the absence of fraud, actual knowledge does not negate the third person’s right to rely on the public record.

The trial judge relied entirely on Miles v. Miles, 328 So.2d 394 (La.App. 3rd Cir. 1976) and the cases cited therein for the rule that a vendor’s acknowledgment in an authentic act of sale that he received a stipulated sum in cash as consideration of the transfer is conclusive as to him unless he alleges, and can prove, that his consent and his signature to the act were procured by fraud, mutual error or force, or unless .he can produce a counterletter or show the lack of consideration by answers to interrogatories or requests for admissions of fact. In the present case plaintiff has neither alleged nor proved fraud, mutual error or force, nor has he produced any of the other listed types of proof that the purchase price was not paid. However, we do not rely on this rule alone. We prefer to place our principal reliance on the public records doctrine and on the fact that here we have a third party, the City Bank, who had a right to rely on the act of cash sale which was recorded before its mortgage.

In further support of his argument, Franklin cites Sliman v. McBee, 311 So.2d 248 (La.1975) for the proposition that the sale should be dissolved for nonpayment of the purchase price and the property returned to him, the vendor, free of any mortgage created by the purchaser. In Sliman, the court was faced first with the question of whether the plaintiff waived her right to rescind the sale for nonpayment of the purchase price by executing a deed which recited that the notes representing the purchase price were, and would remain, the personal obligation of the makers. The deed further recited: “ . . .no lien shall exist on the lots herein sold securing payment of said notes.” The court held, “ . [that] in agreeing that the notes would remain a personal obligation unsecured by a lien, Mrs. Sliman simply forfeited a device securing the buyer’s obligation to pay . . She did not forfeit the right to enforce payment, much less the independent, alternative right of dissolution.” The court then dissolved the sale for nonpayment of the purchase price and returned the property to the vendor free of certain mortgages created by the purchaser.

The Sliman case is readily distinguishable from the present one. Sliman did not involve questions of admission of parol evidence to vary the terms of an authentic act of sale, nor did it involve a third party who had justifiably relied on the public records. Instead, Sliman involved a credit sale which appeared as such on the public records. The public records, despite the recited waiver of lien rights, were sufficient to put third parties on notice that the transaction was a credit sale in which a portion of the price remained unpaid. Thus, the face of the records revealed that the plaintiff might some day exercise the right to dissolve the sale for nonpayment of the purchase price. In the present case, on the other hand, the Bank executed its mortgage in reljance on the public records, which showed conclusively that the entire purchase price of $5,000 was received by Franklin “cash in hand”. Therefore, Franklin’s reliance on the Sliman ease is unfounded.

Having disposed of Franklin’s contentions, we move now to a consideration of the issues raised by the labor and material liens.

LABOR AND MATERIAL LIENS

The substantial issues regarding the labor and material liens are: (1) Did City Bank record its mortgage after work was begun or material furnished for construction of the subject home? (2) Can a contractor file a lien in his name for the wages he paid to his employees who performed labor on the construction project, or, stated differently, is the laborer, himself, the only person who may file a lien for the cost of his labor?

A brief review of some of the previously stated facts is appropriate. On August 4,1975, Caneco Construction Company, Inc. (Caneco) purchased by cash sale deed a lot in Natchitoches Parish for the purpose of constructing a residence. To finance construction of the house, Caneco executed a promissory note for $36,000 in favor of City Bank, secured by a collateral mortgage affecting the subject property. The deed was properly recorded at 1:32 p. m. and the mortgage at 1:33 p. m. on August 12, 1975.

Employees of Caneco testified that they began work at the homesite as early as August 5, 1975. On that date, stakes and foundation form materials were placed on the lot. On the following day, August 6, the house location was staked off and a tractor was used to scrape the surface of the lot. No other work was performed at the jobsite until the morning of August 12, 1975. On that date, Caneco employees arrived at the site at 7:00 a. m. and worked until 9:00 or 10:00 a. m. Foundation forms consisting of 2 inch by 12 inch wooden planks were positioned and the foundation area was prepared for the concrete slab. Some digging was done in order to properly position these foundation forms. When properly positioned, the form boards protruded about 12 inches above the ground. In addition, 18-inch deep footings were dug along three sides of the foundation area. These footings were the deepest excavations at the homesite. The employees testified that a layman viewing the jobsite from the street on the morning of August 12, 1975 would know that construction had commenced.

Certain of Caneco’s payroll records and time cards were introduced into evidence. These records showed that Caneco employees performed work at the jobsite on August 5th, 6th and 12th. A total of I3V2 man-hours of labor were charged to the construction project as of August 12.

Caneco contracted with various other firms and individuals to supply the labor and materials necessary for certain aspects of the construction. No contract or bond was recorded by Caneco in connection with the construction, however.

An affidavit of completion was filed by Caneco on January 12, 1976. Caneco defaulted on its loan payments and on payments due to materialmen and laborers. Subsequently, several of those who had contracted with Caneco to supply labor and materials for various aspects of the construction project filed liens. City Bank instituted foreclosure proceedings by executo-ry process against Caneco. Several lien claimants intervened in the foreclosure proceeding asserting their privileges. The parties concede that all of the lien claimants who intervened filed their liens within the 60-day period provided by LSA-R.S. 9:4812. A writ of fifa issued for sale of the subject property. City Bank bought in the property at sheriff’s sale for $29,000. City Bank and the lien claims are now competing for the proceeds of the sale.

The liens contested by City Bank in this appeal are the following:

(1) A lien in the amount of $1,524 filed by Nakatosh Paint Company, Inc., a painting contractor. Included in Nakatosh’s lien is a charge for labor performed by its employees on the construction project and a charge for materials supplied.

(2) A lien filed by Ford’s Carpet Service, Inc., a flooring contractor, in the amount of $1,792.11. Included in the full amount of the lien is a charge for labor performed by Ford employees on the construction project and a charge for materials supplied by Ford.

(3) A lien filed by Jeff Guilliams, an electrical contractor, representing amounts owed to him for labor performed by him and by his employees at the jobsite and for materials supplied by him.

Where, as in the present case, there is no recorded construction contract, LSA-R.S. 9:4812 provides that “any person furnishing service or material or performing any labor on said building or other work” may preserve a privilege against the land and construction thereon by timely and properly filing a lien affidavit. This statute provides further that “The said privilege shall be superior to all other claims against the land and improvements except taxes, local assessments for public improvements, a bona fide mortgage or a bona fide vendor’s privilege, ... if the vendor’s privilege or mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished.”

The claim of a laborer for his wages is accorded an exceptional status by the last sentence of R.S. 9:4812 as follows: “The claim for wages of a laborer for work done by him on any building, shall, when properly presented and recorded by him in accordance with the provisions of this Sub-part, preserve in his favor a privilege on the land and improvements which will prime the right of mortgagees or vendors.” Thus, the privilege of the laborer for his own wages, primes mortgages and vendor’s privileges regardless of the time of recordation.

In the present ease, if City Bank recorded its mortgage after work or labor was begun or materials were furnished at the jobsite, all persons who properly and timely filed liens under the terms of R.S. 9:4812 would preserve privileges on the subject property superior to that of the mortgagee, City Bank. See Hunt v. La Chere Maison, 316 So.2d 850 (La.App. 1st Cir. 1975).

The critical factual question is whether work or labor was begun or material furnished at the jobsite before City Bank recorded its mortgage at 1:33 p. m. on August 12, 1975.

LSA-R.S. 9:4819 provides the following definition:

“(A) The phrase, ‘before the work or labor is begun or any material is furnished’, as used in R.S. 9:4801-9:4817, both inclusive, shall be defined as follows:
“(1) In the event that the work or construction is new, then ‘work or labor is begun or material is furnished’ is defined as having begun when either excavation has been started so that it can be observed on inspection, or material has been furnished and delivered to the job site which is visible upon inspection and which material when delivered had a value in excess of one hundred dollars provided, however, that test piling shall be excluded from this definition.”

Under the evidence set forth above, the trial court concluded that City Bank did not bear its burden of proving its mortgage was recorded before work began or materials were furnished. The record clearly supports this factual conclusion. Therefore, all persons who timely and properly filed liens under the terms of R.S. 9:4812 acquired privileges which prime the rights of the mortgagee, City Bank.

There is no question that all of the lien claimants in the present case timely filed their liens. The legal issue presented is whether a lien filed by a contractor for the cost of labor performed by his employees on the construction project may be recognized and enforced under the terms of R.S. 9:4812. City Bank argues that the only person entitled to file a lien for labor performed on a construction project is the laborer, himself. In support of this argument, City Bank cites Pringle-Associated Mortgage Corporation v. Eanes, 254 La. 705, 226 So.2d 502 (1969). We find no merit in City Bank’s argument.

The Pringle case is factually distinguishable from the one now before us and it involved different legal issues. An analysis of R.S. 9:4812 and a discussion of the Prin-gle case will follow. Three classes of lien claimants are recognized by R.S. 9:4812. They are (1) persons who furnish service, (2) persons who furnish materials and more (3) persons who perform labor. A contractor furnishes services when his employees perform labor at the jobsite. Such a contractor is, within the meaning of the statute, a person entitled to preserve a privilege on the subject property by timely filing a lien. The courts have recognized the right of a contractor or subcontractor to file a lien for the cost of labor performed by his employees at the jobsite. See for example Davis-Wood Lumber Company, Inc. v. Wood, 224 La. 825, 71 So.2d 125 (1954); Executive House Building, Inc. v. Demarest, 248 So.2d 405 (La.App. 4th Cir. 1971); Windham Woodwork & Supply Company v. Hopkins, 122 So.2d 106 (La.App. 2d Cir. 1960).

As we said before the Pringle case is distinguished from the present one, as it arose from a dissimilar factual setting and involved different legal issues. In Pringle, the issue was whether three subcontractors, who paid their employees for labor performed on a building project as their wages became due, were legally subrogated under LSA-Civil Code Art. 2161(1) and (3) to the superior privilege granted to laborers for their wages by LSA-R.S. 9:4801(D) and the last sentence of R.S. 9:4812. The plaintiff-mortgagee, Pringle, was competing with the three subcontractors for the proceeds derived from the public sale of the subject property. The laborers, themselves, had not filed liens. Pringle had properly recorded its mortgage before any labor was begun or materials furnished on the subject property. Under the circumstances, the only class of lien claimants under the Private Works Act who would be accorded a privilege superior to that of Pringle, the mortgagee, would be laborers who timely and properly filed liens for the amount of their unpaid wages. The three lien claimants sought by subrogation to advance the rank of their privilege from a position inferior to Pringle’s mortgage to a position superior to it. On rehearing, the Supreme Court affirmed the Court of Appeal holding that subcontractors who paid wages to their laborers as they became due were not sub-rogated to the superior privilege granted to laborers by the Private Works Act. The court did not hold that contractors who furnish labor for construction projects are not entitled to a privilege for the wages paid their employees. The Pringle decision involved only principles of subrogation. Thus, the Pringle case has no application to the present one.

We are aware of a possible conflict between our interpretation of Pringle and that of the First Circuit in Hunt v. La Chere Maison, 316 So.2d 850 (La.App. 1st Cir. 1975). There, the court cited the Prin-gle case as authority for its holding that a contractor has no right to a privilege for wages paid by him to his employees. We respectfully disagree with this interpretation of Pringle and the applicable provisions of LSA-R.S. 9:4812.

All of the liens involved in the present case were properly and timely filed. In addition, the lien claimants sufficiently proved the amounts of their claims. Since City Bank did not record its mortgage until after work began, its privilege on the property is inferior to the privileges reserved by each of the intervening claimants for services, materials and labor furnished. Therefore, we affirm the judgment of the trial court recognizing and enforcing the full amount of each of the subject liens.

We note that the total amount of all the liens filed by laborers and by contractors who furnished labor and materials does not exceed the price City Bank paid for the property at the sheriff’s sale. Since all of the liens for services, materials and labor can be satisfied from the proceeds of the sheriff’s sale, it is not necessary for us to decide whether, under the circumstances of the present case, the liens filed by laborers for their wages prime the liens filed by contractors for labor and material furnished. See the Comment, Laborers and Materialmen’s Privileges under Louisiana Building Law, 44 Tul.L.Rev. 326, which discusses this problem.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are assessed against City Bank & Trust Company.

AFFIRMED.


text:
    W. H. FRANKLIN, Plaintiff and Appellee, v. CANECO CONSTRUCTION, INC., Defendant and Appellant.
    No. 5703.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Kelly, Seaman & Ware, by Richard N. Ware, Natchitoches, for plaintiff and appellant.
    Sam J. Friedman, Natchitoches, for defendant and appellee.
    Gahagan & Gahagan, by Fred S. Gahag-an, Natchitoches, for intervenor and ap-pellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   CULPEPPER, Judge.

For the reasons stated in the campanion case of City Bank & Trust Company v. Caneco Construction, Inc., 341 So.2d 1331, in which a separate decision is being rendered by us this date, the judgment of the district court in the present case is affirmed. All costs of this appeal are assessed against W. H. Franklin, the appellant.

AFFIRMED.


text:
    TURNKEY CONSTRUCTORS, INC., Plaintiff and Appellee, v. DEWEY, CHEATUM & HOWE, INC., et al., Defendants and Appellants.
    No. 5760.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Richard P. Kennedy, Lafayette, for plaintiff and appellee.
    Hal V. Lyons, James L. Fortson, Jr., Shreveport, and Calvin T. Guidry, and Pugh, Boudreaux & Gachassin by Nicholas Gachassin, Lafayette, for defendants and appellants.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

This is an appeal from a judgment sustaining an exception of no right of action. The plaintiff, Turnkey Constructors, Inc., is a subcontractor seeking recognition and enforcement of a lien filed by it for labor and material furnished in the construction of an apartment complex owned by the defendant, Dewey, Cheatum & Howe. Also named as defendants are the general contractor on the construction project, North American Contracting Corporation, and its president, R. L. Saucier, Jr. The trial court sustained defendants’ exception of no right of action on the grounds that there was no contract between plaintiff corporation and defendants. Plaintiff appealed.

The issue is whether the corporate subcontractor which furnished labor and material on the construction project has a right of action to enforce a lien under the terms of our Private Works Act, where it had no contract in its corporate name with the owner or the general contractor.

Plaintiff corporation filed a lien in the amount of $15,661.37 on June 13, 1973 representing labor and material which it furnished for construction of the apartment complex in Lafayette. This is a suit for recognition and enforcement of that lien. Defendants filed an exception denominated “No Right Of Action” on the grounds that no contract existed between plaintiff corporation and defendants. In support of their argument, defendants point to a written contract dated September 10, 1971 between defendant general contractor and Jerry German and John Gibson, d/b/a Turnkey Construction, whereby they agreed to perform carpentry work at the construction project. Turnkey Construction Company was the predecessor of plaintiff, Turnkey Constructors, Inc. Plaintiff corporation was not formed by Gibson and German until October 4, 1971. The corporation’s existence began when the Articles of Incorporation were filed with the Secretary of State on October 27, 1971. Defendants argue that Gibson and German are the only proper parties plaintiff to bring this action for enforcement and recognition of the lien. We do not agree.

The function of the peremptory exception of no right of action is to provide a special device for terminating a suit brought by one without the legal capacity to file it or without the legal interest to assert it. Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975). There being no question that plaintiff corporation has the legal capacity to file this suit, our inquiry is whether plaintiff corporation has a legal interest in the subject matter of this litigation. Since this is a suit under our Private Works Act to enforce a lien for labor and material furnished at a construction project, we look to the provisions of that act to determine whether plaintiff has a legal interest in this suit.

LSA-R.S. 9:4801, A, provides in pertinent part: “Every . . subcontractor who performs work or furnishes material for the erection, construction, repair or improvement of immovable property . with the consent or at the request of the owner thereof, or his authorized agent or representative or of any person with whom the owner has contracted for such work, has a privilege for the payment in principal and interest of such work or labor performed or the materials furnished.”

Similarly, LSA-R.S. 9:4812 provides that when the owner, or his authorized agent, undertakes the work of construction “any person furnishing service or material or performing any labor on the building or other work” may file a lien to preserve a privilege on the subject property as his interest may appear. Thus, the persons entitled to file liens under the terms of the act are those who have furnished service or material or performed labor at the jobsite with the consent or at the request of the owner or his authorized agent. There is no requirement that the furnisher of service, labor or material enter into a formal contract with the owner, his authorized agent, or the general contractor.

Documentary evidence introduced at the hearing of the exception of no right of action showed conclusively that the carpentry work performed by Turnkey Constructors, Inc. was done with the full knowledge and consent of both the owner of the subject property and his general contractor. R. L. Saucier was president of both Dewey, Cheatum & Howe, Inc. (the owner), and North American Contracting Corporation (the general contractor). Saucier’s signature appears on checks made payable to Turnkey Construction Company, Inc. and Turnkey Constructors, Inc. for work performed by the corporation on the subject property in 1971 and 1972.

In addition, a number of the checks are endorsed in the name of Turnkey Constructors, Inc. Turnkey submitted its itemized statements for invoices to Saucier for work performed on the apartment project on its own company letterhead which bore the name, “Turnkey Constructors, Inc.” It is clear from this documentary evidence that the owner and its general contractor had full knowledge and gave full consent to plaintiff corporation furnishing labor and material at the construction project.

Since plaintiff proved it furnished labor and material at the jobsite with the full knowledge and consent of both the owner and general contractor, it is entitled under the terms of our Private Works Act to recognition and enforcement of the full amount of its lien. The written contract of September 10, 1971 between John Gibson and Jerry German, d/b/a Turnkey Construction Company, and North American Contracting Corporation, is therefore irrelevant to a determination of the issues presented by the present case. Accordingly, we hold that Turnkey Constructors, Inc. does have a right of action to assert its claims for a privilege on the subject property-

Our recent decision in City Bank & Trust Company v. Caneco Construction, Inc., 342 So.2d 1331 is relevant to a discussion of the issues presented in the present case. The issue presented there was whether a contractor, whose employees performed work on a construction project, can file a lien in its own name for the labor it supplied through its employees. In Caneco, the plaintiff-mortgagee cited Pringle-Associated Mortgage Corporation v. Eanes, 254 La. 705, 226 So.2d 502 (1969) as support for the argument that only the laborer himself could file a lien for labor performed at the jobsite. We distinguished the Pringle case and held that a contractor furnishes services when he supplies labor at a jobsite and is therefore entitled under the terms of LSA-R.S. 9:4812 to a privilege on the property by timely and properly filing a lien. In the present case, therefore, plaintiff corporation did have a right to file a lien for labor performed by its employees at the construction site.

For the reasons assigned, the judgment appealed is reversed and set aside. The exception of “No Right Of Action” is overruled. This case is remanded to the district court for further proceeding in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendants-appellees.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    James A. O’CONNOR v. Dorothy Ellen TERRY and United Services Automobile Association.
    No. 11085.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 18, 1976.

      James R. Strain, Jr., Slidell, for appellant.
    Timothy G. Schafer, New Orleans, for appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

MOTION TO DISMISS

This is a motion to dismiss an appeal filed by the defendants on the grounds that the return day expired without the record being lodged or an extension granted and that the fees and costs payable by the appellant in accordance with LSA-R.S. 13:4445 and C.C.P. art. 2126 had not been paid no later than three days before the return day.

Judgment was rendered in this matter on April 30,1976, and a motion and order for a devolutive appeal was signed and filed on May 25, 1976 with the return date being fixed for July 19, 1976. By letter dated May 25, 1976, and signed by a deputy clerk of court, the attorney for the appellant was informed of the granting of his appeal, the return day and the amount of the bond. He was further informed that it would be his responsibility to pay for the transcript of testimony before it could be filed in the clerk’s office; that no extension of the return day would be taken by the clerk’s office for any reason; and that if there was any delay in the filing of the transcript into the record, it would be the appellant’s responsibility to have a motion and order for an extension signed by the appropriate judge.

The return day came and went, apparently without the transcript being filed in the record, and no extension of the return day was requested or granted. An extension of the return day was filed in the record on August 12, 1976, extending the return day from July 19 to September 15,1976, but the date that the extension was signed is not evident from the order, and it is argued by mover, and not disputed by appellant, that the extension order was signed after the expiration of the return day.

In opposition to the motion to dismiss, appellant argues, and in support thereof has filed affidavits by a deputy clerk of court as well as the court reporter, that he checked with the clerk of court several times prior, to the return day as to the amount of the costs but was informed that until the tran-, script was filed, it would be impossible for the clerk of court to estimate costs. Appellant was also informed by the court reporter that other transcripts preempted his, that it would be some time before the transcript in his case was completed, and that it was impossible to estimate the costs prior to completion.

Appeals are favored and are to be dismissed only when clearly required by law. Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970), rehearing denied (1970). No appeal shall be dismissed because of any irregularity, error* or defect unless it is imputable to the appellant. LSA-C.C.P. art. 2161. It is the primary responsibility of the clerk of the trial court to lodge the record on appeal as well as secure any extensions of the return day. LSA-C.C.P. art. 2125; Louisiana Power & Light Company v. Lasseigne, supra.

That language contained in the letter of May 25, 1976, from the office of the trial court clerk informing appellant that the responsibility for seeking and obtaining extensions of the return day was on the appellant is invalid. It is the primary responsibility of the clerk of the trial court to obtain extensions of the return day, and this responsibility cannot be shifted to the appellant. Since we here hold that this language or any similar language attempting to shift this responsibility is invalid, we strongly recommend that this or similar language not be used in the future by clerks of trial courts, for it simply leads to confusion on the part of the clerk as well as the party litigants.

Mover relies heavily on the Lasseigne case and interprets it as enunciating an absolute rule that cost must be tendered timely to maintain the responsibility of the clerk of the trial court to obtain an extension of the return date. We do not agree with this interpretation of Lasseigne, but rather believe that the Supreme Court was simply applying applicable law to the facts as they found them.

In facts almost identical to the instant case, our Brethren on the Fourth Circuit in Musser v. Copping, 317 So.2d 304 (La.App.4th Cir. 1975), and this court in Edwards v. Edwards, 268 So.2d 682 (La. App.1st Cir. 1972) both held that where it was impossible for the clerk of the trial court to know the cost of preparing the record on appeal, it was not incumbent upon the appellant to deposit with the clerk of the trial court the cost necessary for the preparation of the record on appeal. As pointed, out above, in affidavits executed by a deputy clerk of court as well as the court reporter, it was impossible for the clerk of the trial court in this case to inform the appellant of the amount of the cost necessary, therefore, we now hold that it was not incumbent upon appellant to pay any cost to the clerk of the trial court no later than three days before the return day, but it was incumbent upon the clerk of the trial court to obtain an extension of the return day, and any failure to do so cannot be imputed to the appellant. For these reasons we deny the motion to dismiss the appeal.

Even though we have disposed of the issue of whether this appeal is to be dismissed, we notice another important issue which we deem necessary be disposed of. In its present posture, this matter has been appealed but no return day is presently fixed for the lodging of the record on appeal. The attempted extension of the return day by the trial court after the expiration thereof is invalid. Once the return day expires without the lodging of the record on appeal or an extension of the return day, the trial court loses the jurisdiction to extend the return day. LSA-C.C.P. art. 2088 and 2125; LSA-R.S. 13:4438; and Louisiana Power & Light Company v. Lass-eigne, supra.

It is the responsibility of all courts to exercise the authority granted them so as to guarantee that there will be a proper administration of justice. A portion of that administration of justice inherently vested in the courts of appeal is the orderly processing of appeals from the time of the judgment in the trial court to the final disposition by the courts of appeal. The purpose for fixing a return day for the lodging of the records on appeal is simply an attempt at guaranteeing that the participants in the preparation and lodging of the record will each perform his assigned duty as diligently and as conscientiously as possible by giving them a target date to meet. Without a time period within which to complete their task, time could be wasted and it could take months and years before records are eventually lodged in the appropriate appellate court. We know no useful purpose to be served by allowing this appeal to continue without a return day being fixed. To not do so would relieve the participants of any obligation to perform their assigned tasks of lodging this record with this Court as soon as possible.

In holding that the trial court loses its jurisdiction to grant an extension of the return day once the return day has expired without the record being lodged or an extension thereof being granted, the Supreme Court in the Louisiana Power & Light Company v. Lasseigne, supra said:

“Art. 2088 [Code of Civil Procedure], which states that the jurisdiction of the trial court over the matter reviewable on appeal ‘ * * * is divested and that of the appellate court attaches * * * ’, and which lists the only exceptions to that divestiture, is express, explicit, and mandatory. The right to have the return day extended is one of the exceptions enumerated in that article and more particularly defined in Article 2125 [Code of Civil Procedure] and in R.S. 13:4438. However, it is obvious that the trial court retains jurisdiction for the purpose of signing orders for extension of the return date only until the appeal is lodged or the return day passes.
“After the expiration of the return date the trial court is divested of any jurisdiction to ‘extend’ a return day. * * (Emphasis by Supreme Court).

There is no contention that the appeal bond has not been filed, and considering that judgment was rendered on April 30, 1976, that this motion was filed in this Court on August 27, 1976, and that the brief in support thereof was filed on September 15, 1976, we assume that the bond has been filed, thus divesting the trial court of jurisdiction except for those matters as set out in LSA-C.C.P. art. 2088.

Since the jurisdiction of the trial court as regards extensions of the return day has been divested, jurisdiction is in this Court. Prior to this past session of the Legislature the courts of appeal had no legislative authority to grant extensions of the return day. However, Act 426 of the 1976 Regular Session of the Louisiana Legislature amended and reenacted LSA-R.S. 13:4438 and LSA-C.C.P. art. 2125 to allow the trial court to grant only one extension of the return day not to exceed 30 days, and thereafter, any extensions of the return day are to be obtained from the appropriate appellate court. This act of the Legislature became effective October 1, 1976. Art. 3 § 19 La.Const. (1974).

Act 426 makes a basic change in the procedural law as it affects extensions of return days. It grants to the appellate courts jurisdiction to grant these extensions, however, it retains this jurisdiction in the trial court for one extension not to exceed 30 days. Even though Act 426 did not contemplate the situation as we have before us, that is, the expiration of a return day without any extensions, we would reason that it was the intention of the Legislature to vest in the appellate courts the jurisdiction to grant extensions of the return day either after the return day had expired without an extension, or after the return day had been extended by the trial court not to exceed 30 days, whichever came first. To rule otherwise would be to hold that the Legislature would have allowed appeals to be pending without any return date, and this we cannot believe the Legislature would have ever intended.

However, even though we here hold that this Court has the jurisdiction to grant extensions of the return day where the trial court has been divested of its jurisdiction for failure to grant an extension, the question comes to mind as to whether an extension can be granted after the return day has expired. In Lasseigne, supra, the Supreme Court reasoned that the trial courts could not grant extensions once the return day had expired because they were divested of jurisdiction citing LSA-C.C.P. art. 2088. However, the jurisdiction granted to the trial courts to extend the return day is only a retention of jurisdiction while the case is on appeal and prior to the record being lodged in the appellate court. The appellate court, however, has jurisdiction over the case as regards extension of the return day from the moment that the trial court is divested of jurisdiction until the case is disposed of by the court of appeal or jurisdiction assumed by the Supreme Court. Since this court has continuing jurisdiction over this case, there is no reason why the return day cannot be extended for sufficient cause even after the expiration thereof.

Therefore, for the above and foregoing reasons, IT IS ORDERED ADJUDGED AND DECREED that the motion to dismiss the appeal be and the same is hereby denied, IT IS FURTHER ORDERED ADJUDGED AND DECREED that the return day for the lodging of the record in this appeal be and the same is hereby extended to November 17, 1976, and IT IS FURTHER ORDERED AD JUDGED. AND DECREED that any applications for extensions of the return date herein granted be forwarded to this court in accordance with the rules as adopted and presently in effect. All costs of this proceeding are taxed to defendants-appellees’ mover.

MOTION DENIED AND RETURN DAY EXTENDED.


author: CLAIBORNE, Judge.

text:
    Addie T. GIROIR et al. v. PANN’S OF HOUMA, INC., d/b/a Pann’s Food Service Inc., et al.
    No. 10935.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 30, 1976.
    Rehearing Denied Feb. 14, 1977.

      C. J. Marcel, Jr., and Gerald P. Theriot, Houma, for plaintiffs and appellees.
    W. K. Christovich and John T. Holmes, New Orleans, for defendants and appellants.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

Mrs. Loritta Giroir slipped and fell in defendant’s fried chicken restaurant and was injured. She was taken to Terrebonne General Hospital where she died seventeen days later.

The plaintiffs, Addie T. Giroir and his son and daughters, brought suit as surviving beneficiaries and heirs of the decedent for her wrongful death, her pain and suffering, and for special damages for medical and funeral expenses and attorney fees for decedent’s succession.

After trial of the matter, judgment was rendered in favor of plaintiffs and against defendants in solido as follows:

1. To Addle T. Glroír
a. Special damages $ 1,143.50
b. Wrongful death 50,000.00
c. Survival action 2.833.33
$53,977.23
Total
2. To each of the following five children: Thomas Giroir, Murlna Giroir Fanguy, Barbara Jean Giroir, Elaine Giroir Hebert, and Betty Giroir Trahan:
a. Wrongful death $10,000.00
b. Survival action 2.833.33
Total (each) $12,833.33
Total (5 five children) $64,166.65
Total Judgment $118,143.88

On plaintiffs’ motion, the judgment was amended to correct errors in styling not altering the substance of the judgment. The judgment was further amended to limit the total liability of Continental Insurance Company to $100,000.00, its policy limits. Defendants’ motion for a new trial was denied. This appeal followed.

Appellants assign as error the following:

(1) The finding of the trial court that decedent slipped and fell on a foreign and dangerous substance;

(2) The finding of the trial court that the defendant restaurant had actual or constructive knowledge of the substance on the floor;

(3) The finding of the trial court that decedent died as a result of the injuries sustained in the fall;

(4) The award of the trial court was excessive and constituted an abuse of discretion.

Appellants contend that Addie Giroir’s answers to certain interrogatories are judicial admissions which prevent his later and differing trial testimony from establishing the cause of his wife’s fall.

Appellants rely most strongly on interrogatory No. 1(d) and interrogatory No. 9, which asked respectively for a complete description of the spbstance after the fall had occurred and whether either Mr. or Mrs. Giroir had seen the substance prior to the accident. Mr. Giroir answered to both that he had not noticed the substance. However, at trial, he testified that he noticed, after his wife had fallen, a small piece of chicken crumb on the bottom of her sandal.

Appellants’ contention, that the testimony concerning the chicken crumb cannot be considered, is erroneous. LSA-C. C.P. Art. 1513 provides for sanctions which the trial court may impose for failure to comply with orders made, ínter alia,, under LSA-C.C.P. Art. 1511, dealing with written interrogatories. While Article 1513 gives trial courts the power to disallow testimony where it is at odds with answers to interrogatories, whether or not an order has been sought under Article 1511, this power is discretionary with the trial court. Johnson v. Petit, 236 So.2d 304 (La.App. 3rd Cir. 1970). If the trial court elects to hear the testimony and weigh it together with the answers to interrogatories, then in the absence of an abuse of the discretion granted under Article 1513, there is no appealable error.

Further, such answers are not to be construed as judicial admissions nor as full and final proof against the plaintiff. LSA-C.C. Article 2291, dealing with judicial confessions, does not apply as a rule to interrogatories except where they have been used pursuant to LSA-C.C. Article 2275 to establish title to immovable property. Parol evidence in the form of later testimony is inadmissible in such a situation, but where oral testimony is admissible, answers to interrogatories are to be considered as any other evidence in the case, without necessarily excluding trial testimony. Fontenot v. Ludeau, 191 La. 540, 186 So. 21 (1939).

Since the testimony of Mr. Giroir concerning the substance on his wife’s sandal was properly considered by the trial court, we reject appellant’s contention that plaintiff failed to establish the existence of a foreign substance. Other testimony established that chicken crumbs were sometimes towelled onto the floor from tables and tracked into the dining area from the kitchen. We find no abuse of the trial court’s discretion in finding that plaintiffs had borne their burden of establishing the existence of a foreign substance on which the decedent slipped.

In a slip and fall case, once the plaintiff has established that a foreign object or substance on the floor caused the slip, fall, and resultant injury, the burden then shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. Kavlich v. Kramer, 315 So.2d 282 (La.1975); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976).

The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances that may cause customers to fall. Gonzales, supra.

Testimony of the restaurant manager established that the regular clean-up procedures consisted of sweeping the floors twice a day, once after lunch, between 2:00 and 2:30 P.M. and again at closing time. Additionally, the cashiers had the duty of cleaning table tops after departure of each customer by wiping the debris off table tops into their hands or into a towel.

Tony Garofolo, the cook, testified that he has noticed fried chicken batter on the floor when he cleans. The cashier also testified that sometimes scraps would fall from the tables when she cleaned them; sometimes she would sweep them up, sometimes not. On the day of the accident, she testified she was certain that someone swept the floor after lunch. The accident happened around 7:00 P.M.

We conclude that defendants have not borne the burden of proving that they exercised reasonable care in keeping the floor free of material which might cause customers to fall. Where, as here, the specialty of the house is fried chicken, with the observed tendency of its greasy batter to flake off, sweeping the floor twice each business day is insufficient to insure that the floors will be kept reasonably clean. Where the color and pattern of the floors make detection of the foreign matter more difficult, there is an even greater duty of cleanliness.

Plaintiffs offered the testimony of three doctors to establish the cause of death. Although decedent had been admitted to the hospital by Dr. Richard Landry, Dr. Roy St. Martin, general practitioner, was called in the day after the patient’s injury and admittance because of a lower intestinal problem for which he had previously treated her. He continued to see her throughout her stay in the hospital while Dr. Landry, who was in charge of the case, continued to treat her for her injury including the prescription of medication for pain. He stated she was in pain the whole time she was in the hospital. She was having so much pain it was thought she might have a ruptured disc, and a myelogram was performed.

The decedent was shown to have had several operations and medical problems in the past, none of which were related to the accident or her death.

Because the autopsy showed certain heart abnormalities, an effort was made to suggest that her death might have been due to a coronary problem. Dr. St. Martin, who had been Mrs. Giroir’s physician “on and off” since 1961, stated that he had never treated her for a heart problem because she never had any heart problems at the time she came to see him. The evidence of all three doctors eliminated serious consideration of heart disease as a cause of death.

Dr. W. A. Marmande, another general practitioner, saw the patient in Dr. St. Martin’s absence. He was present for the last twenty-five minutes of decedent’s life, and testified that cardiac infarction could not be considered a cause of death. In his opinion, death was caused by pulmonary embolism, a blood clot in the pulmonary artery. He testified that pulmonary emboli could occur without finding thrombophlebitis, even though that might have been the origin. Although the autopsy report disclosed no clots in the veins, this could have been the source. He indicated that there are more cases of pulmonary emboli where no source can be found, than cases where thrombo-phlebitis is found.

Dr. Richard Landry, an orthopedic surgeon, testified that on examination, Mrs. Giroir had pain at the extremes of rotation of her left hip and on palpation about the posterior aspect of the hip. Although the x-rays did not reveal a fracture, it was his impression she might be suffering from an occult fracture of the hip, for which he recommended admission to the hospital and treated her “expectedly”. Treatment included putting the patient to bed with traction on her left leg. He saw the patient about four or five times during an eleven-day period. On the eleventh day, traction was removed; the hip was less painful, and she was walking fairly well. She did have some abdominal discomfort and low back pain. Dr. Landry was leaving town and asked her family physician, Dr. St. Martin, to follow her in his absence. She died, before his return, on September 6, 1972.

The foregoing is a digest of all the medical evidence upon which the trial court found that the death of the patient was causally related to the injury. In this conclusion, the trial court was in error, as such evidence does not include an opinion on the cause of the pulmonary embolism.

Dr. Richard Landry’s opinion as proof of cause of death was offered. The trial court ruled it inadmissible on the ground that he was not present at the time of death, nor did he examine the decedent post-mortem. However, Dr. Landry was qualified as an expert in orthopedic surgery. An expert may base his opinion on an autopsy report without having himself performed it. Jackson v. Travelers Insurance Co., 180 La. 43, 156 So. 169 (1934). We will consider his proffered testimony to determine whether, taken with the other medical evidence, it will sustain a finding that the plaintiffs have discharged the burden of proof on this point.

Dr. Landry testified the pathology report indicated cause of death was pulmonary embolism. He testified as follows:

“I feel that the injury which she sustained to her hip, with the required treatment, in her case which was bed-rest and traction, were predisposing factors which allowed formation of clots of blood in the veins which I have mentioned earlier. Then during the time that she left her bed to go to the bathroom, one of these larger clots came loose, traveled through the heart, lodged in the lungs, and caused her death. In answer to your question, I don’t think that her injury caused the blood clot to go to the lungs or to form at the moment the injury occurred. However, it is very common for blood clots to form after injury of this type. In a sense that she was at bed-rest, I feel that the bed-rest was the factor that allowed this to happen.”

Dr. Landry further testified that other final diagnoses shown on the autopsy report unquestionably were not related to the injury and the hospitalization, viz.: papillary carcinoma of the thyroid, chronic thyroidi-tis, scattered fibrous pleural and peritoneal adhesions, previous gall bladder surgery, appendectomy, hysterectomy and removal of ovaries. He added that the pulmonary emboli could have developed as a result of the injury and treatment.

We find that the testimony of Dr. Landry taken as a whole shows a causal connection between decedent’s injury and subsequent death.

The evidence adequately substantiates the court’s discretion in awarding damages.

The judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.