text:
    In re KENNEDY, applying for adoption, Plaintiff-Appellee.
    No. 13525.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.

      McKeithen, Burns & Lewellyan by Don C. Burns, Columbia, for defendant-appellant.
    Carl F. Walker, Monroe, for plaintiff-ap-pellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiff petitioned for the adoption of his wife’s 15-year-old son by a previous marriage, alleging that the consent of the child’s father was unnecessary under LSA-R.S. 9:422.1(3) because the legitimate father was a nonresident of this state and failed to support the child for a period of one year after judgment awarding custody to the mother. The legitimate father filed an opposition to the adoption alleging, that he was not a nonresident and that he had not failed to support the child. After trial the district court granted the adoption. The legitimate father appealed. We conclude that the legitimate father is a domiciliary of Louisiana and is not a nonresident of this state as contemplated by the statute, and reverse the judgment of the district court.

The district court’s written reasons for judgment are brief:

“The Court, after reviewing the entire testimony of the parties as to their participation and involvement with the child, . and in viewing the recent jurisprudence of this State, grants the adoption of [the child] to [the applicant].”

The reasons do not contain any findings of fact with respect to the nonresident issue, but necessarily implied in the result is a finding that the legitimate father was a nonresident.

On appeal the legitimate father specifies the trial court erred:

(1) in holding that appellant was a nonresident of this state;
(2) in holding that appellant failed to support his child for a period of one year; and
(3) in failing to hold that LSA-R.S. 9:422.1 is unconstitutional as viola-tive of the equal protection clause of the Fourteenth Amendment to the United States Constitution in that it discriminates against nonresidents.

The evidence clearly establishes that appellant has not contributed support for his son for a period of several years, having made only token and very infrequent gifts of cash and clothes. Although one or two checks for small amounts sent by appellant to his son were either returned or not cashed the evidence does not establish any justification for appellant’s failure to provide support.

The constitutional issue was not raised in any manner in the district court and is raised for the first time in appellant’s appellate brief. The constitutional issue cannot be considered by this court. Johnson v. Welsh, 334 So.2d 395 (La.1976); Simon v. Jefferson Davis Parish School Board, 289 So.2d 511 (La.App. 3d Cir. 1974), writ refused 293 So.2d 178 (1974).

Further, it is unnecessary to decide the constitutional issue in view of our holding that the statute dispensing with the consent of the legitimate parent does not apply in this case.

The dispositive issue on appeal is whether plaintiff established that appellant is a nonresident of this state. The burden of proof is on the person applying for the adoption to establish the existence of each of the conditions of the statute under which consent of the legitimate father is rendered unnecessary. If appellant is a resident of this state, his consent to the adoption is required because there was no court order of support in effect during the period for which nonsupport is alleged.

The evidence establishes that appellant was born and grew up in Grayson, Caldwell Parish, Louisiana, where his parents continue to reside at Route 1, Box 120. At the time appellant and his wife were divorced by an Arkansas decree, which granted her custody of the child but did not award child support, they were living in Monroe, Louisiana. Appellant was apparently living in Grayson in February of 1973 when his work as a self-employed contract welder began taking him out of state. He lived in Mesa, Texas about two months and then returned to Grayson for about five months. After that he lived in Mesa about four months, in Chico, Texas about four months, in Glade-water, Texas about six months, in Chico about two months, in Gladewater about eight or nine months, continued to live in Gladewater about a year and three or four months, then in Corsicana, Texas ten months, then back to Gladewater for several months, then in Fairfield, Texas for two months, back to Gladewater for a month, and then to Chaney, Kansas where he had been living about six weeks at the time of trial.

Appellant owns a house trailer and lives in it wherever his work takes him. He returns to Grayson about every two weeks or two or three times a month. He maintains an electrical pole in Grayson, where he hooks his trailer up when it is there, and on which he pays the utility bill. He maintains a telephone at Grayson in his name and maintains a bank account in the Citizens Progressive Bank in Caldwell Parish, Louisiana. The business address shown on his checks is “N. E. Hogg Welding Service, Route 1, Box 120, Grayson, Louisiana 71435.” At the time of trial appellant had a Texas drivers license but had a Louisiana drivers license until December 1976. Appellant’s mother verified that appellant comes to Grayson after completing a job and stays until he is called to another job. She testified he had not had his trailer at Grayson since 1975, or about two years before trial.

Prior to 1962 the requirement of the statute was that the legitimate parent refuse or fail to comply with a court order of support for a period of one year. Act 106 of 1962 amended LSA-R.S. 9:422.1 so as to add the third condition with respect to nonresidents. The amendment was intended to eliminate the need for a parent’s consent where he failed to support a child and it had been impossible to obtain jurisdiction over him to order him to support the child. In Re Stanford, 313 So.2d 849 (La. App. 2d Cir. 1975). See also “Louisiana Legislation of 1962: A Symposium,” 23 La. L.Rev. 41, 46. The term “nonresident” as used in the statute refers to a person over whom a Louisiana court would not have personal jurisdiction. Since “domicile” is determinative of personal jurisdiction under LSA-C.C.P. Art. 6, the term “nonresident” as used in the statute means a person who does not have a domicile in this state.

Domicile is defined in LSA-C.C. Art. 38 as follows:

“The domicile of each citizen is in the parish wherein he has his principal establishment.
“The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.”
LSA-C.C. Art. 41 provides:
“A change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.”

Unquestionably, plaintiff’s domicile was in the state of Louisiana until he started working regularly out of state and living at various places, mostly in Texas, where his work took him. A person maintains his domicile of origin until he acquires another domicile. Succession of Simmons, 109 La. 1095, 34 So. 101 (1903); Baham v. Sutherland, 197 So.2d 345 (La.App. 4th Cir. 1967); Dealers Building Material Supply Co. v. Campbell, 89 So.2d 419 (La.App. 1st Cir. 1956). To effect a change in domicile requires actual residence in a place, together with the intention of remaining there permanently or indefinitely and of abandoning the former domicile. First Nat. Bank of Shreveport v. Pierson, 176 La. 792, 146 So. 749 (1933); First Nat. Bank of Lumberton, Miss. v. Hinton, 123 La. 1018, 49 So. 692 (1909); Rappeport v. Patten, 3 So.2d 909 (La.App. 2d Cir. 1941); cert. ref. (1941).

The intention to acquire a domicile is most often indicated by the type of relationship a person maintains with a location. The expressed intent of the party may be at variance with the intent as evidenced by conduct. Each case is unique and the courts attempt to arrive at the true intent whether express or implied. The court disregarded express intent in Successions of Rhea, 227 La. 214, 78 So.2d 838 (1955); Texana Oil & Refining Co. v. Belchic, 150 La. 88, 90 So. 522 (1922); Cox v. Foos, 233 So.2d 712 (La.App. 4th Cir. 1970); Lambert v. Greene, 32 So.2d 400 (La.App. 2d Cir. 1947); Rappeport v. Patten, supra. The court, however, accepted express intent when coupled with sufficient conduct to corroborate the intent in Walcup v. Honish, 210 La. 843, 28 So.2d 452 (1946); Gates v. Otis, 129 La. 1063, 57 So. 371 (1912); Caldas v. Caldas, 224 So.2d 831 (La.App. 4th Cir. 1969); Baham v. Sutherland, supra.

There are two presumptions applied in connection with change of domicile which seem to conflict. As long as there is any doubt concerning whether a change of domicile has occurred “the presumption is that it has not been changed.” Succession of Simmons, supra. The other presumption is that “whenever a person has acquired a residence elsewhere and actually resides there it is presumed to be his domicile.” Successions of Rhea, supra. This second presumption is applicable where there is only one obvious place of residence and the person, while maintaining some ties with his former domicile, does not actually have a place to reside there. See Gelpi v. Ben Development Company, Inc., 327 So.2d 485 (La.App. 4th Cir. 1976).

There are a number of cases involving itinerant workers which have held that the domicile of origin was not changed even though the parties were no longer residing in their original domiciles. Texana Oil & Refining Co. v. Belchic supra; Hartley v. Hartley, 336 So.2d 291 (La.App. 1st Cir. 1976), writ refused 339 So.2d 21 (1976); Puissegur v. Puissegur, 220 So.2d 547 (La.App. 4th Cir. 1969), writ refused 254 La. 285, 223 So.2d 409 (1969); Lambert v. Greene, supra; Clarke v. Patton, 16 So.2d 585 (La.App. 1st Cir. 1944); Rappeport v. Patten, supra.

In the case before this court appellant has lived outside of Louisiana most of the time since 1973, yet he maintains “such a relation with the place or premises so selected as will entitle him at his will, and without making new arrangements therefor upon each return, to occupy such place whenever his necessities or pleasure require, and this without having to ask the permission of someone else.” Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921); Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3d Cir. 1976), writ refused 334 So.2d 217 (1976). He has no clear-cut or obvious place of residence elsewhere.

Our conclusion is that appellant is a Louisiana domiciliary because Louisiana is his domicile of origin and he has not been shown to have changed his domicile. The law is well settled that the party who seeks to establish a change of domicile bears the burden of proving it. Baham v. Sutherland, supra. Plaintiff in this case has not borne that burden.

Since appellant’s nonresidence has not been established and he was under no court order to support his child, the requirements of LSA-R.S. 9:422.1 have not been established and his consent to the adoption is required. In the face of his opposition to the adoption, it must be denied.

The result we reach in this case is consistent with the intent of subparagraph (3) of LSA-R.S. 9:422.1, which was to eliminate the requirement of noncompliance with a court order of support when the parent is a nonresident and not subject to the jurisdiction of Louisiana courts. The parent in this case was clearly domiciled in Louisiana at the time of the divorce and award of custody to the mother and for several years thereafter, during which time he was subject to the personal jurisdiction of Louisiana courts. Even after he began living most of the time out of state, he was in Louisiana frequently and subject to service of process which would have given a Louisiana court jurisdiction over his person. The reason for the distinction made in the statute between residents and nonresidents does not exist in this case, regardless of technical definitions of residence or domicile.

It may be that the reason for the distinction no longer exists in most cases, in view of the 1977 amendment to the Long Arm Statute, LSA-R.S. 13:3201, providing that a court may exercise personal jurisdiction over a nonresident arising from the nonresident’s “non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.”

The judgment of the district court is reversed and judgment is rendered in favor of the legitimate father and against the plaintiff applying for adoption and the petition for adoption is dismissed at plaintiff’s costs.

Reversed and rendered.

      . LSA-R.S. 9:422.1 Adoptions by step-parent, grandparent; consent
      “If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
      “(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
      “(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
      “(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.”


source: Caselaw Access Project

author: REDMANN, Judge. LEMMON, Judge,

license: Public Domain

text:
    Earline Roussel TRAPANI et al. v. CITY OF KENNER.
    No. 8789.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Dissenting Opinion on Denial of Rehearing May 10, 1978.
    Writ Refused June 30, 1978.
    James S. Conner, Metairie, for plaintiffs-appellants.

      H. A. Vondenstein, Kenner, for defendant-appellee.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   REDMANN, Judge.

Plaintiffs seek relief from a municipal zoning ordinance which restricts their ten lots of ground to single-family residential usage.

The property has frontage on two four-lane streets and one two-lane street. Across one four-lane street there is a gasoline station (a C-2 commercial usage on property rezoned single-family discussed in Jemison v. City of Kenner, La.App. 4 Cir. 1973, 277 So.2d 728, writ refused La., 281 So.2d 753), a tavern (also C-2) and other (C-l) commercial usages. Across the other four-lane street are the four lots which Jemison ordered made C-2 commercial (and which at trial time four years later remained vacant). Across the two-lane street are six four-family residences, also on property apparently zoned single-family.

Plaintiff’s expert presented evidence similar to that in Jemison, supporting rezoning of the six lots at the principal corner to C-2, two others to multi-family and two others to two-family to provide buffer zones for the four-family units and a single-family residence.

The City’s expert testified that single-family zoning was unacceptable, but he would rezone only four instead of six lots into commercial (and make those C-l instead of C-2), and would rezone the other two of those six lots and two others to four-family and two other lots to two-family-

The City’s Board of Aldermen was asked but declined to amend the original zoning ordinance.

Plaintiffs sought a mandatory injunction to rezone in accordance with their expert’s view set forth above. The trial judge noted the city’s expert’s opinion as a reasonable one under all the circumstances, and reasoned that the only question before the Board of Aldermen was to grant or to refuse the rezoning specifically requested by plaintiff. This reasoning overlooks the basic issue that the Board’s original zoning ordinance is itself under attack. Presumably the trial court was following Paternostro v. Parish of Jefferson, La.App. 4 Cir. 1974, 289 So.2d 327, writ refused La., 293 So.2d 183. In Paternostro, however, the defendant’s expert’s testimony supported a conclusion that the property should be two-family residential, and that was his recommendation. The Parish’s failure there to amend its ordinance from single- to two-family residential, a one-step difference, is hardly in the same category as the Board of Aldermen’s failure to amend from single-family to neighborhood (C-l) commercial, a six-step difference in zoning under the ordinance. Thus in Paternostro, the court could accept as reasonable the defense expert opinion that the impropriety in the zoning was only a one-step difference, and the court might also conclude that the legislative authority would not be acting capriciously by originally zoning or retaining a zoning just one step more restrictive than its own expert employee recommended.

A court cannot take that view here, where the legislative authority has originally zoned and now retains a zoning six steps more restrictive than even its own expert employee recommends. Our case would have been comparable to Paternostro had the Board of Aldermen rezoned the land to one step more restrictive than its expert employee’s recommendation, e. g., by making the principal corner (four lots) GO general office. Certainly a rezoning as recommended by its expert would have appeared unassailable under Paternostro. But because the Board refused all relief, leaving the property indisputably so zoned as to prevent not only its proper and best use but also any use remotely near its proper use, we conclude, as we did in Jemison for the property across the street from this property, that we must strike the original ordinance’s zoning of plaintiffs’ property as single-family residential.

If Paternostro suggests that courts recognize a legislative discretion to make fine distinctions in zoning, Jemison shows that this court will not itself attempt to exercise that discretion in electing one of two zoning classifications which are so similar that either would be reasonable. That was the Board of Aldermen’s authority. We have neither inclination nor authority to become a zoning agency. As in Jemison, upon finding that the legislatively-selected zoning cannot be upheld, we will enjoin the governmental unit from enforcing the original restrictions it has imposed and has refused to change. However, because plaintiffs only ask for land usages consistent with defined zoning categories, we will only enjoin enforcement of the ordinance insofar as it would impose more restrictive limits than those imposed by those categories.

The judgment is reversed, and defendant is permanently enjoined from enforcing the limitation of single-family zoning against lots 20 through 29 of Square 43, bounded by West Metairie, Roosevelt, Taylor and 17th Streets, although defendant may enforce its C-2 restrictions against Lots 22 through 27, its R-3 restrictions against lots 20 and 21, and its RR-2 restrictions against lots 28 and 29. The City is to pay all costs for which it may by law be cast.

LEMMON, Judge,

dissents in part from the denial of the application for rehearing and assigns reasons.

Plaintiffs requested an amendment of the original zoning ordinance, specifying their desires as to the extent of the amendment. On the evidence in this record the City Council could not reasonably have refused to amend the original zoning ordinance, although the Council could reasonably have amended to a lesser extent than that requested by plaintiffs.

On reconsideration I believe the correct disposition of this appeal would be (1) to order the Council to amend the zoning ordinance and (2) to allow a reasonable period within which the Council must adopt an amendment, rezoning to a classification reasonably related to the evidence, and failure to amend within the period would result in the property becoming completely unzoned.

This disposition is more proper because the Council refused to amend the original zoning ordinance based on the good faith (but mistaken) belief that it could only grant or deny the specific rezoning requested by plaintiffs.


author: BEER, Judge. SCHOTT, Judge, LEMMON, Judge,

text:
    Hilda Taylor, wife of and Russell TAYLOR v. AUDUBON INSURANCE COMPANY.
    No. 8959.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Concurring Opinion on Denial of Rehearing May 10, 1978.
    Writ Refused June 30, 1978.

      Lemmon, J., concurred in denial of application for rehearing and assigned reasons.
    Johnston & Duplass, Robert M. Johnston, New Orleans, for defendant-appellant.
    Henry W. Kinney, III, New Orleans, for plaintiff s-appellees.
    Before LEMMON, SCHOTT and BEER, JJ.
   BEER, Judge.

By an act of sale dated February 2, 1968, Mr. and Mrs. Taylor, plaintiff-appellees, acquired from Mr. James G. Ford, now deceased, the property at 551 Bolivar Street, New Orleans. The sale price was $10,000 to be paid at the rate of $100 per month, without down payment or interest. Ford’s fire insurance policy covering the property was not amended to reflect the credit sale. Subsequent to Ford’s death, Mrs. Ford had the named insured under the policy changed to show her name. Thereafter, she sought and obtained an extra $10 per month payment from the Taylors to cover their share of the insurance premiums and the real estate tax bills that were still being sent to her for payment. The annual insurance premium was about $50,. and taxes varied from $50 to $87 per year, from 1967 through 1975. The record shows the Tay-lors missed two or three of the ten dollar payments per year, and there is conflicting evidence as to whether Mrs. Ford paid the insurance premiums from her own funds or directly from the proceeds of the $10 monthly payments. The record is sufficient to support the trial judge’s implicit conclusion that the $10 payments apparently covered a major part of the annual fire insurance premiums of about $50.

On March 1,1975, the property was totally destroyed by fire. Upon learning that Mrs. Ford’s interest in the property was not, in fact, that of sole owner, but, rather, that of mortgagee; the insurance company tendered to her a check for $2,086.35, rather than the $9,000.00 face value of the policy. The sum represented the unpaid balance owed Mrs. Ford by the Taylors (about $1,900.00), plus a refund of a portion of previously páid premiums. The insurance company representative who testified shed little light on the computed basis for this refund. It apparently represented the difference in premiums for a policy on full ownership, and one covering only a decreasing mortgagee’s interest.

Plaintiffs filed this suit seeking to recover the difference between the declared value of the insured property ($9,000.00) and the $2,086.35 paid Mrs. Ford. From a judgment in favor of plaintiffs, the insurer appeals, contending that although the purchaser-mortgagor may have had an insurable interest in the property, such interest was not insured by them.

Alternatively, appellant asks for reduction of the judgment from $6,814.00 to $6,100.00, the amount prayed for in plaintiffs’ petition.

Appellee has answered the appeal and seeks penalties and attorney’s fees.

The trial court noted:

“The plaintiffs contend that the insurance in effect at the time of the fire was full insurance for the protection of the owner and mortgagee, and not as contended by the insurance company as single interest decreasing coverage insurance.
“The evidence preponderates in favor of plaintiffs. Since 1971, the plaintiffs paid for insurance coverage and simply because the policy was not issued in their name they should not be denied their equitable right of recovery. The insurance company got their full coverage premium of approximately $54 annually. Nothing in the policy would lead anyone to the conclusion that the policy was solely issued to cover the mortgagee. After the mortgagee’s balance due had been paid, the residue of the amount of the policy should have been paid to the owners, the Taylors, who were bearing the obligation of payment of the premium.”

In concluding that the insurer is liable to the mortgagor for the declared value for the house less the mortgage balance due, the trial court relies upon Diaz v. Cherokee Insurance Co., 275 So.2d 922 (La.App. 4th Cir. 1973), Moran v. Kenai Towing and Salvage, Inc., 523 P.2d 1237 (Alaska 1974) and Tillerson v. Highrabedian, 503 S.W.2d 398 (Tex.Civ.App.1973).

In Tillerson, it was agreed between owner, builder, and financier that owner would arrange for builder’s risk insurance which would protect all three parties. However, the policy was issued in the name of the owner alone and, pursuant to a claim for fire loss, proceeds of the policy were paid entirely to him. The insurance company, as subrogee, sued builder. By third party demand against the insurer in its own right, builder sought reformation of the contract so as to provide coverage of his interest. In light of circumstances indicating that the builder was to be covered, reformation was allowed. The court remarked:

“When one of two parties, each of whom has an insurable interest in a particular property, agrees to get insurance for the protection of both interests, but does, in fact, procure a policy naming only himself as insured,- and the property is damaged or destroyed, the other party, as between the two, is entitled to the proceeds of the policy up to the extent of his loss. Farmers Insurance Exchange v. Nelson, 479 S.W.2d 717 (Tex.Civ.App.— Waco, 1972, writ ref’d n. r. e.) 5A John A. Appleman and Jean Appleman, Insurance Law and Practice, sec. 3365 (1970).”

In Moran v. Kenai Towing and Salvage, Inc., supra, the mortgagor (under a sale and lease back agreement) brought suit against the mortgagee, not the insurer, to determine rights to the proceeds of a fire policy procured by the mortgagee but paid for by mortgagor. The court concluded that although fire policies are personal contracts between insured and insurer, which do not attach to property, the proceeds may be impressed with a trust in favor of one other than the named insured.

In Diaz v. Cherokee Ins. Co., supra, suit was brought by a second mortgagee who had acquired his interest on the same date as the first mortgagee. The mortgage required mortgagor to obtain insurance to protect the mortgagees but the name of the second mortgagee was not included on the policy. We determined that in the absence of conflicting claims by the first mortgage holder or the owner, and in light of the fact that by the terms of the policy all mortgagees were intended to be covered, the unnamed second mortgagee had a right to reformation of the policy.

The trial court, in referring to the Taylor’s “equitable right of recovery,” highlights the critical issue here involved, i. e., should there be equitable reformation of the policy by judicial decree? On the basis of the facts found by the trial court and supported by the record, we answer this query in the affirmative, aware, as we must be, that equitable reformation of any insurance policy by judicial fiat requires caution and restraint.

Were this record to contain affirmative evidence that Audubon Insurance Company would not have covered this particular frame house had they known the Taylors owned it rather than Mrs. Ford, we would be far less inclined to affirm. In fact, any representation made in connection with the obtaining and maintaining of the coverage by Mrs. Ford which would be demonstrably different if submitted by Mr. and Mrs. Taylor could be the basis for a valid argument against reformation, for there is certainly no presumption in its favor. But there is nothing before us which, in any way, indicates that the company would have written the policy in any different way, or charged any different premium, or insured the structure for any different amount, or imposed any different requirements for continuation of the coverage if the named insureds had been Mr. and Mrs. Taylor, or Mrs. Ford and Mr. and Mrs. Taylor as their interests might appear. Under these circumstances, we believe that the rationale of Diaz v. Cherokee Insurance Company, supra, should control.

We reject the appellees’ contention with respect to penalties and attorney’s fees. The actions of the insurance company were neither arbitrary nor capricious and, in fact, represented, we believe, a valid effort to resolve the knotty problem confronting them.

Finally, appellant contends that the judgment must be reduced to the amount prayed for in plaintiffs’ never amended petition, citing Jones v. Louisiana Department of Highways, 338 So.2d 343 (La.App. 3rd Cir. 1976), writ ref., La., 341 So.2d 410. However, we are of the view that La.C.C.P. Article 862 is applicable here and that the able trial judge acted properly in confecting the judgment as he did.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed, at appellant’s cost.

AFFIRMED.

SCHOTT, Judge,

dissenting.

An insurance policy is a contract between the insurer and the insured. In the instant case the parties to the contract were Audubon Insurance Company and Mrs. James G. Ford. I cannot agree with my colleagues that there is any basis in law for making Mr. and Mrs. Taylor a party to a contract when, in fact, they were strangers. The effect of this decision is to disregard the bilateral nature of an insurance contract and hold the insurer liable on an open-ended basis to anyone who may have an interest in the property insured, and to relegate the status of the named insured to a mere technicality.

Diaz v. Cherokee Insurance Co., 275 So.2d 922 (La.App. 4th Cir., 1973) is distinguishable in that it was alleged and proved in that case that when the insurance policy was written it was the intention of the parties to make Diaz the second mortgagee an insured under the policy, and in effect the court reformed the policy so as to make it comply with the intent of the parties when the contract was made.

That is not the situation in the instant case. Here, there never was any intention on the part of Audubon Insurance Company to make a contract with Mr. and Mrs. Taylor. At all times, the contract was with Mrs. Ford. No one can suggest that these parties intended,, when the contract was made, to insure Mr. and Mrs. Taylor who subsequently became the owners of the property.

Furthermore, in Diaz the suit was brought by the mortgagee on the basis that the owner had insured the property with the intention of including his interest. The instant suit is brought by the new owner, Mr. and Mrs. Taylor, who are not the insured under this policy and the insured, the former owner, Mrs. Ford, is not a party to these proceedings. If Mrs. Ford, as the insured, had brought this suit for the full policy limits she would have been entitled to recovery and could have collected in behalf of Mr. and Mrs. Taylor because she was the contracting party. She and she alone could enforce the provisions of the contract which she made with Audubon Insurance Company.

I would reverse the judgment of the trial court and dismiss ■ the suit of plaintiffs.

LEMMON, Judge,

concurs in the denial of application for rehearing and assigns reasons.

On application for rehearing the insurer argues the inapplicability of the rationale of the Diaz case because “there was no evidence that it was the intention of the parties to make the plaintiffs insureds under the policy”.

The insurer clearly intended to insure the owner of the property, since an owner’s policy was issued rather than a mortgagee’s single interest, decreasing coverage policy, and the premium structure was established accordingly. Mrs. Ford, the named insured, clearly intended to insure the owner of the property (thereby also protecting herself), since she purchased that type of policy and collected the total premium back from the owner.

There was a material misrepresentation by the named insured in the application for insurance, but since the insurer has not claimed any detriment on account of the misrepresentation, the contract should be reformed to reflect the true intention of the parties.


author: HALL, Judge.

text:
    Shirtee EVANS, Plaintiff-Appellant, v. Johnny Lee WEST, Betty Ann Gladney (Clerk of Court) and the Board of Supervisors of Elections of Claiborne Parish, Louisiana, Defendants-Appellees.
    No. 13601.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 1978.
    Henry G. Hobbs, Minden, for plaintiff-appellant.
    Robinson & Smith by George H. Robinson, Homer, for defendant-appellee-Johnny Lee West.
    Leon H. Whitten, Dist. Atty., Jonesboro, for defendants-appellees-Betty Ann Glad-ney (Clerk of Court) and The Bd. of Supervisors of Elections of Claiborne Parish, Louisiana.

      Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

This is an action brought under the Louisiana Election Code, LSA-R.S. 18:401, et seq.

On April 1, 1978, a primary election was held to elect selectmen for the Town of Homer. Under a 1975 order of the United States District Court for the Western District of Louisiana it was required that the selectmen be elected from five single-member districts established by the court order. Plaintiff, Shirtee Evans, the incumbent, and defendant, Johnny Lee West, each qualified as candidates for selectman from District 1, Precinct 5, Ward 7, during the qualifying period which ended on Friday, February 3. LSA-R.S. 18:467 and 468. Defendant was the successful candidate in the election, receiving 135 votes to plaintiff’s 114 votes.

On April 5, 1978, within five days after the date of the election, plaintiff filed suit contesting defendant’s qualifications and the conduct of the election, alleging that defendant was not qualified for election as selectman from District 1 because he was, in fact, a resident of and domiciled in District 2. Plaintiff prayed that he be declared the nominee as selectman from District 1 or, alternatively, that the primary election be nullified and a new election called.

Defendant filed an exception of no cause of action contending that there is no residence requirement under the federal court order, the charter of the Town of Homer (the Town of Homer is governed by legislative charter and not by the Lawrason Act), or the constitution or statutes of Louisiana. Defendant answered denying the residence requirement and alleging that he is, in fact, a resident of District 1.

After trial held on the fourth day after suit was filed in accordance with LSA-R.S. 18:1409, the district court held that the requirement of residence within the district- was inherent in the federal court order but further held, under the evidence presented at the trial, that defendant was a resident of District 1 and was eligible to be a candidate for selectman from that district. From a judgment declaring defendant to be the duly elected nominee for selectman from District 1 and dismissing plaintiff’s suit, plaintiff appealed. We affirm the judgment of the district court, holding that plaintiff’s suit contesting the election on the basis of defendant’s alleged lack of qualifications for the office was not timely filed.

Chapter 9 of the Election Code on “Contest and Challenges” provides for two separate and distinct actions which may be brought in connection with elections for public office: (1) A qualified elector may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office in which the plaintiff is qualified to vote; and (2) A candidate who alleges that except for irregularities or fraud in the conduct of an election he would have qualified for a general election or would have been elected may bring an action contesting the election. LSA-R.S. 18:1401 A. and B.

An action objecting to candidacy shall be instituted within ten days after the close of qualifications for candidates in the primary election or within ten days after the defendant filed notice of his candidacy, whichever is later. After expiration of this time period no further action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in LSA-R.S. 18:492. An action contesting any election involving election to office shall be instituted within five days after the date of the election. LSA-R.S. 18:1405 A. and B.

Two of the grounds for an objection to candidacy enumerated in LSA-R.S. 18:492 are that the defendant does not meet the qualifications for the office he seeks in the primary election, or the defendant is prohibited by law from becoming a candidate for one or more of the offices for which he qualified in the primary election. LSA-R.S. 18:493 provides that an action objecting to candidacy shall be commenced in a court of competent jurisdiction within ten days after the close of qualifications for candidates in the primary election, or within ten days after the date when the defendant filed notice of his candidacy, whichever is later. This section also provides that no action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in Section 492 after the expiration of the time period set forth.

Plaintiff characterizes this action as one contesting an election for irregularities or fraud in the conduct of the election under LSA-R.S. 18:1401 B. which may be brought within five days of the date of the election. Regardless of the characterization, the essence of the suit is a challenge or objection to candidacy on the basis that the defendant does not meet the qualifications for the office he seeks under LSA-R.S. 18:1401 A. and 492(3). The Election Code specifically provides that an action objecting to candidacy shall be instituted within ten days after the close of qualifications for candidates or within ten days after the defendant filed notice of his candidacy, whichever is later. Plaintiff’s action, filed after the election and more than ten days after the close of qualifications, was not timely filed and is barred by the provisions of LSA-R.S. 18:1405 A. and 493.

It is of no moment that the defendant did not raise an objection based on the failure of plaintiff to commence the action within the period prescribed by the Election Code. After expiration of the peremptive period provided for commencing the action, the plaintiff had no cause of action to object to the defendant’s candidacy for lack of qualification. An appellate court may on its own motion notice the failure of plaintiff to state a cause of action and render judgment dismissing the suit. LSA-C.C.P. Arts. 927 and 2164. Further, the general public and particularly the electors of the district involved have a vested interest in the sanctity of the election procedures spelled out in the Election Code and in the sanctity of their exercised franchise. The failure of the defendant to raise an objection to the timeliness of the commencement of the action should not prejudice the vested interest of the voting public.

This holding is dispositive of the appeal and compels affirmance of the judgment dismissing plaintiff’s suit. It is unnecessary for this court to deal with the issue of the defendant’s actual residency within District 1. However, because of the expeditious procedure provided by the Election Code for the disposition of actions objecting to candidacy or contesting an election and to give the Supreme Court the benefit of this court’s review of the facts in the event of an application for writs, we comment briefly on that issue. The factual determination of the trial court is supported by the evidence and the trial court’s conclusion that defendant is, in fact, a resident of District 1 is correct. See Robinson v. Atkins, 275 So.2d 444 (La.App. 2d Cir. 1973), a case which reached the same result under remarkably similar facts.

In view of the foregoing dispositive holdings, this court expressly pretermits consideration of the issue of whether there is any requirement under the federal court order or otherwise that a candidate for selectman in the Town of Homer reside in the district from which he seeks election.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.

      . Plaintiff also alleged that voters residing in District 2 voted in the election for selectman from District 1, but no evidence was offered at the trial in support of this allegation and it has not been made an issue either in the district court or on appeal.


author: DOMENGEAUX, Judge.

text:
    Rick D. MERCHANT et al., Plaintiffs-Appellees, v. George B. MOWAD, M. D., et al., Defendants-Appellants.
    No. 6579.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 1978.
    Preston N. Aucoin, Ville Platte, for defendants-appellants.
    Ernest R. Eldred, Baton Rouge, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

George B. Mowad, M. D., the defendant-appellant, moves for leave of this court to abandon his appeal and obtain its dismissal. The motion is unopposed.

We grant the motion to dismiss.

Rule VII, Section 3 of the Uniform Rules of the Courts of Appeal provides in pertinent part that:

“In the absence of a timely answer to the appeal or other formal action to amend or modify the judgment appealed, the appellant alone may, by his formal Motion to Dismiss, on leave of the court, forthwith abandon his appeal and obtain a dismissal.”

Since an answer to the appeal has not been filed, nor has any other formal action to amend or modify the judgment appealed been taken, the appeal is hereby dismissed at defendant-appellant’s costs.

APPEAL DISMISSED.


text:
    Rick D. MERCHANT et al., Plaintiffs-Appellees, v. George B. MOWAD, M. D., et al., Defendants-Appellants.
    No. 6580.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 1978.
    Preston N. Aucoin, Ville Platte, for defendants-appellants.
    Ernest R. Eldred, Baton Rouge, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

George B. Mowad, M. D., the defendant-appellant, moves for leave of this court to abandon his appeal and obtain its dismissal. The motion is unopposed.

We grant the motion to dismiss.

Rule VII, Section 3 of the Uniform Rules of the Courts of Appeal provides in pertinent part that:

“In the absence of a timely answer to the appeal or other formal action to amend or modify the judgment appealed, the appellant alone may, by his formal Motion to Dismiss, on leave of the court, forthwith abandon his appeal and obtain a dismissal.”

Since an answer to the appeal has not been filed, nor has any other formal action to amend or modify the judgment appealed been taken, the appeal is hereby dismissed at defendant-appellant’s costs.

APPEAL DISMISSED.


author: ROBERTSON, Justice,

text:
    KEY PETROLEUM, INC. v. HOUSING AUTHORITY OF CITY OF GULFPORT, and City of Gulfport, Mississippi.
    No. 49773.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Rehearing Denied May 10, 1978.
    Thomas J. Wiltz, Jr., Biloxi, for appellant.
    Estes & Blackwell, Leonard A. Blackwell, II, Eaton, Cottrell, Galloway & Lang, James B. Galloway, Gulfport, for appellees.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice,

for the Court:

Key Petroleum, Inc. brought suit in the Chancery Court of the First Judicial District of Harrison County, against the Housing Authority of the City of Gulfport and the City of Gulfport, Mississippi, to recover damages because the City revoked a building permit after the complainant had already begun the work authorized by the permit.

Complainant also prayed for an injunction restraining the defendants from carrying out an Urban Renewal Plan for an urban renewal area encompassing, among other properties, two lots owned by the complainant.

Before trial, the defendants moved to strike those portions of the bill of complaint demanding monetary damages on the ground that the City of Gulfport was acting in its governmental capacity in the issuance and revocation of building permits, and the City and its agent, the Housing Authority, were, therefore, immune from suit for damages under the doctrine of sovereign immunity. The court sustained this motion.

After a full trial, the court entered its Decree on June 10, 1976, finding:

“(A) The Complainant has failed to sustain the burden of proof or of presenting sufficient proof to overturn the presumption of regularity of Defendants’ action in this cause, and in its ultimate right to revoke the building permit in question.
“(B) The Complainant has not met the burden of showing that the Urban Renewal Plan was not validly enacted.
“(C) That the Urban Renewal Plan involved in these proceedings is valid and that therefore its restrictions on land use of property covered by said plan are valid, and that the Complainant’s land was validly regulated.
“(D) That the Bill of Complaint should now be dismissed at Complainant’s cost.”

The court, therefore, dismissed Key’s bill of complaint. Key appeals.

On July 10, 1973, Complainant purchased two lots on which it intended to build a bulk oil and gas distribution plant. An application was made to the City of Gulfport for a building permit. On July 11, 1973, upon payment of the permit fee of $135, a building permit was issued authorizing Key to proceed with the construction of its bulk plant, consisting principally of an office building and six underground storage tanks.

Mr. Leroy Pueheu, deputy building official of the City of Gulfport, testified that before issuing the building permit he checked the municipal zoning ordinances, that complainant’s property was zoned Commercial B, and that a bulk plant could be constructed in such zone. At the time the permit was issued, a service station selling oil and gas to the general public was in operation on the property. The complainant, through Hughes, Inc., its building contractor, began to demolish the old service station building, and moved on to the site the new underground storage tanks.

On August 31, 1973, Mr. Huston Carter, executive director of the Housing Authority, wrote deputy building official Pueheu:

“We were shocked to learn that the above-captioned building permit has been issued inside the Urban Renewal Program Area. Please be advised that the construction of the facility called for by this permit will constitute a violation of the Urban Renewal Plan, as approved by a resolution of the Mayor and Board of Commissioners on the 2nd day of May, 1972. We have no alternative, therefore, except to ask that this building permit be rescinded immediately.
“One part of the Urban Renewal Plan, as approved by the above-mentioned resolution, is an entire new zoning for the project area. It is for this reason that we have consistently requested that applications for building permits inside the project areas be submitted to this office for concurrence prior to the issuance of a permit.”

Upon receipt of this letter, Pueheu called complainant and requested that construction be stopped. The Board of Commissioners of the City, on September 27, 1973, revoked the building permit issued to complainant.

In disposing of this case, it is only necessary for this Court to decide one issue, and that is whether the adoption of the Urban Renewal Plan for the area encompassing the complainant’s property ipso fac-to amended or changed the zoning laws of the City of Gulfport, so as to prohibit the building of a bulk oil and gas distribution plant on complainant’s property.

The Urban Renewal Plan was not recorded in the zoning ordinance book, and was not recorded in the land records of Harrison County, until November, 1973.

The April 3, 1973, resolution of the City Commission of the City of Gulfport, Mississippi, approving the Urban Renewal Plan, contained this language:

“9. That, in order to implement and facilitate the effectuation of the Urban Renewal Plan hereby approved, it is found and determined that certain official action must be taken by this Body with reference, among other things, to changes in zoning, the vacating and removal of streets, alleys, and other public ways, the establishment of new street patterns, the location and relocation of sewer and water mains and other public facilities, and other public action, and, accordingly, the Body hereby (a) pledges its cooperation in helping to carry out the Urban Renewal Plan, (b) requests the various officials, departments, boards and agencies of the Locality having administrative responsibilities in the premises likewise to cooperate to such end and to exercise their respective functions and powers in a manner consistent with the Urban Renewal Plan, and (c) stands ready to consider to take appropriate action upon proposals and measures designed to effectuate the Urban Renewal Plan.” (Emphasis added).

It is clear from the above language that the City Commission itself recognized the fact that it must take further action “to implement and facilitate the effectuation of the Urban Renewal Plan . . . with reference, among other things, to changes in zoning.’’

Mississippi Code Annotated section 43-33-21 (1972), also has something to say along this line. That section provides in part:

“All housing projects of an authority shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated.” (Emphasis added).

Mississippi Code Annotated section 17-1-17 (1977 Supp.), prescribes the method by which zoning regulations may be amended or changed:

“Zoning regulations, restrictions and boundaries may, from time to time, be amended, supplemented, changed, modified or repealed upon at least fifteen (15) days’ notice of a hearing on such amendment, supplement, change, modification or repeal, said notice to be given in an official paper or a paper of general circulation in such municipality or county specifying a time and place for said hearing.” (Emphasis added).

In view of the fact that the zoning ordinance of the City of Gulfport, permitting the construction of a bulk oil and gas distribution plant, was not amended, changed or modified as provided in section 17-1-17, it is our opinion that the building permit issued Hughes, Inc. as the building contractor of Key Petroleum, Inc. was wrongfully revoked by the City of Gulfport, Mississippi.

Because the City Commission of the City of Gulfport was performing a governmental-function in issuing and revoking the building permit, the lower court was correct in sustaining the motion to strike the claim for damages against the City of Gulfport and its agent, the Housing Authority of the City of Gulfport. See Urban Renewal Agency of the City of Aberdeen, Mississippi v. Tackett, 255 So.2d 904 (Miss.1971). However, we know of no law prohibiting the City of Gulfport and its Housing Authority from reimbursing the complainant for its actual expenses incurred in beginning its building project as authorized by the City of Gulfport itself in its building permit issued to the Complainant, and for which it paid a $135 permit fee.

The decree of the Chancery Court dismissing the Bill of Complaint is reversed and this cause remanded for further proceedings not inconsistent with this opinion.

This case was considered by a conference of the judges en banc.

REVERSED AND REMANDED.

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


text:
    DeSOTO, INC. v. ELLIOTT CONSTRUCTION COMPANY and S. & S. Enterprises, Inc.
    No. 49925.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Rehearing Denied May 10, 1978.
    Watkins & Eager, James A. Becker, Jr., George R. Fair, Jackson, for appellant.

      Harmon W. Broom, Robert D. Ray, Butler, Snow, O’Mara, Stevens & Cannada, Lawrence J. Franck, Jackson, for appellees.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   Affirmed on direct and cross-appeals.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG and LEE, JJ., concur.

BROOM, J., took no part.


text:
    FIDELITY FACTORS, INC. v. FORTUNE FURNITURE MANUFACTURING COMPANY, INC.
    No. 50049.
    Supreme Court of Mississippi.
    March 1, 1978.
    Rehearing Denied May 10, 1978.
    Parker, Averill, Funderburk & Butts, David 0. Butts, Jr., Tupelo, for appellant.
    O’Barr, Hurlbert & O’Barr, Walter M. O’Barr, Biloxi, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER and LEE, JJ., concurring.


text:
    Norman ENGLISH v. AMERICAN PUBLIC LIFE INSURANCE COMPANY.
    No. 50113.
    Supreme Court of Mississippi.
    March 1, 1978.
    Rehearing Denied May 10, 1978.
    William S. Lawson, Tupelo, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Kenneth G. Perry, Robert M. Allen, Jr., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    TEXACO, INC., et al. v. Mildred L. KIRBY.
    No. 50133.
    Supreme Court of Mississippi.
    March 22, 1978.
    Rehearing Denied May 10, 1978.
    Mitchell, McNutt, Bush, Lagrone & Sams, L. F. Sams, Jr., Tupelo, for appellant.
    Armis E. Hawkins, James S. Gore, Houston, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


author: SUGG, J.,

text:
    Delores Rouse MALLETTE v. SINGING RIVER HOSPITAL SYSTEMS, Dr. Robert D. McBroom and Dr. Robert L. Thompson.
    No. 50127.
    Supreme Court of Mississippi.
    April 5, 1978.
    Rehearing Denied May 10, 1978.
    Sekul, Hornsby, Wallace & Teel, Thomas L. Wallace, Biloxi, for appellant.
    Bryant & Stennis, Thomas L. Stennis, II, Roger T. Clark, Gulfport, Colingo & Blackwell, Joe R. Colingo, Megehee, Brown & Williams, Roy C. Williams, Pascagoula, for appellees.
   SUGG, J.,

for the Court.

AFFIRMED.

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


text:
    The ALABAMA GREAT SOUTHERN RAILROAD COMPANY and John Stampley v. Levi JONES.
    No. 50223.
    Supreme Court of Mississippi.
    April 5, 1978.
    Rehearing Denied May 10, 1978.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, for appellants.
    Larry 0. Norris, Samuel E. Farris, Hat-tiesburg, for appellee.
    Before SMITH, P. J., and LEE, BOWLING and COFER, JJ.
   AFFIRMED.

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


author: LEE, Justice,

text:
    CHARLES N. CLARK ASSOCIATES, LIMITED and United States Fidelity & Guaranty Insurance Company v. DEPENDENTS OF Calvin J. ROBINSON, Deceased.
    No. 50222.
    Supreme Court of Mississippi.
    April 12, 1978.

      Harold W. Melvin, Laurel, for appellants.
    Odom & Parrish, J. Ronald Parrish, Laurel, for appellee.
    Before SMITH, LEE and COFER, JJ.
   LEE, Justice,

for the Court:

The administrative judge entered an order denying compensation benefits to the widow and children of Calvin J. Robinson on a finding that the evidence was insufficient to establish causal connection between the deceased’s employment and his death in any reasonable, substantial degree by his employment, and that the primary diagnosis by Dr. Frank Jones of deceased’s condition on October 8, 1973, was for an upper respiratory infection. The Workmen’s Compensation Commission affirmed that order by a two-to-one decision, and, upon appeal to the Circuit Court of Jones County, the presiding judge reversed the order of the full Commission and entered an order granting compensation benefits to said widow and children. The employer-carrier have appealed here and assign the following error committed by the circuit court:

The court erred in reversing the Compensation Commission and the Administrative Law Judge, because the basic test is not whether the compensation claim is supported by substantial evidence, but whether the findings of the Workmen’s Compensation Commission, either in allowing or denying the claim, is supported by substantial evidence.

Calvin J. Robinson was employed as a draftsman for Charles N. Clark Associates, Limited, in Laurel, Mississippi, from 1957 until October 8, 1973. In 1971, he began having severe problems with his back and his condition was diagnosed myofibrositis. Dr. Frank Jones, Hattiesburg, and Dr. Charles Hollingshead, Laurel, treated Mr. Robinson and prescribed strong sedatives and an exercise program for him. His condition worsened as time elapsed, he was admitted to the hospital for approximately one week and also was treated in New Orleans. On October 8, 1973, Robinson was suffering a great deal of pain in his upper back, and he went to Hattiesburg to see Dr. Jones. After examination and treatment by Dr. Jones and while returning to Laurel, he was involved in a one-car accident (striking a bridge abutment) which resulted in his death.

Appellants contend that there was substantial evidence before the Commission to the effect that Robinson’s condition was not work-related and that his visit to Dr. Jones on October 8, 1973, was not work-related and was a personal visit. On the other hand, appellees argue that the evidence is overwhelming that his condition was work-related and that his trip to Dr. Jones was at the authorization and suggestion of his employer and was work-connected.

I.

Was Robinson’s back condition work-related?

Myofibrositis is an illness or condition affecting the muscles of the back, thorax and shoulders, and is extremely painful, so much so that medication offers little relief. Three witnesses, Mrs. Catherine Robinson (widow), Dr. Frank E. Jones, Jr., and Charles Clark (adverse witness), were called by the appellees to testify in the case. One witness, Dr. Charles Hollingshead, was called by appellants. It is undisputed that Robinson’s work was not the original cause of his myofibrositis.

Mrs. Robinson testified that at the end of a day’s work deceased was in much greater pain than at the beginning of the day, and that many times he could not sleep at night on account thereof. She stated that on the morning of October 8, 1973, deceased had such pain in his back that he went to Hat-tiesburg to see Dr. Jones for relief.

Charles Clark was an officer and principal stockholder of the appellant company. He testified that the deceased was a draftsman (Clark was also a draftsman) and that the work was arduous, involving stooping and pulling of the muscles and particularly affecting the back, shoulder and arm muscles.

Dr. Jones testified as follows:

“Q. What condition was he in when you saw him the last time?
A. At this time, I will refer to the findings of my physical examination, this was in October of 1973. At this time he was complaining of pain in his neck, upper back, and also at this time he had symptoms of upper respiratory infection, cough, rhinorrhea, which is a running nose, nasal and chest congestion. At this time he seemed to be quite withdrawn, the kind of findings you would see in a patient who was depressed.
Q. Did you examine his back on October the 8th?
A. I did.
Q. What was your conclusion with relationship to his back problem at that time?
A. Physical examination at that time revealed some tenderness of the para-vertebral muscles of the neck and upper back. This is the finding you will find in somebody with musculus skeletal pain in the upper pelvic. girdle and thoracic area. He complained of pain, but you could elicit tenderness and spasms of muscles, so this was consistent with what he was complaining of. He also, as I previously mentioned, had some nasal congestion and some of the findings that are consistent with acute upper respiratory infection.
Q. Were these problems that you diagnosed in relation to his back in October of 1973 essentially the same as those you found in February of 1973?
A. Yes.
******
Q. Were you familiar with the type of work Mr. Robinson did at Clark Engineers?
A. Yes, I questioned him about this. It was my understanding that he was a draftsman. This kind of work requires a fairly fixed position in a sort of hunched position, therefore there’s a possibility of over stressing certain muscle groups from being in this position for prolonged periods of time.
******
Q. Do you have an opinion, doctor, based on reasonable medical certainty as to whether or not his work that he did at Clark Engineers aggravated, accelerated, or contributed to his back problems which you have outlined?
******
A. You mentioned an unknown back problem, but the diagnosis here was myofibrositis, which is a musculus skeletal condition. Myofibrositis is the medical name for his back problem. Now, the [sic] answer the question, I certainly feel logically and based on what I know about what a draftsman does that the work certainly could have aggravated or exaggerated his condition.
Q. Is it your opinion that it probably did or that it did not?
A. My opinion is that it did.”
Dr. Hollingshead testified on cross-examination as follows:
“Q. What about that aspect of it?
A. If you say just aggravation, I would say that it’s probable that it did aggravate. Before you asked if it was three (3) different things, the cause and I couldn’t say it was not the cause, but as far as aggravation I could say that it is probable that this amount could aggravate an existing fibromyositis.
Q. So your testimony then if I understand it right is that it did not cause it, but in your opinion this amount of strain assuming the hypothetical to be true would have aggravated it, is that correct?
A. You ask if it was probable if it aggravated and I said yes that it was probable that it aggravated it.”

The evidence is undisputed that Robinson’s condition was aggravated by his work as a draftsman and there is no evidence, substantial or otherwise, to the contrary.

II.

Was Robinson’s visit to Dr. Jones on October 8, 1973, in connection with a work-related condition and was the visit authorized and suggested by his employer?

Mr. Clark testified to the following:

“Q. Dr. Jones was an acquaintance of yours, Mr. Clark?
A. Yes, sir.
Q. And to the best of your recollection, would you tell us whether or not you recommended or suggested that Mr. Robinson see Dr. Jones in Hattiesburg on the day of October the 8th, 1973?
***** *
A. I can’t say definitely that I recommended that he go there on that date, but probably I did.
******
Q. Mr. Clark, would you state whether or not in your best judgment, thinking back upon the events before Mr. Robinson’s death whether or not you recommended that he go to Hattiesburg and see Dr. Jones on October the 8th, 1973?
******
A. Yes, with this qualification. I am not sure of the exact date of October the 8th. Several days before Mr. Robinson was killed I called him in my office and I discussed with him his problem and I asked him to take some time off until he could get some relief, and I told him money was not an object that I would pay him for the time he was off, and my intention was for him to take off and see Dr. Jones or anyone that he had confidence in to help him determine what would be the best treatment for him to get well. He was a very trusted and loyal employee and it hurt me as a human and a personal friend to see him suffer with pain, and I wanted him to get some relief. He refused to take off a month, because he was overly conscientious. He wanted to stay there. He knew that there was a lot of work to be done. He knew that I would, I was sick myself, and he—
Q. Mr. Clark, on the date of October the 8th, you did pay Mr. Robinson, did you not?
A. I paid Mr. Robinson’s widow.
Q. For that day?
A. For that day and subsequent days. I gave his widow a check, I believe, for two thousand dollars and later severance pay of about twenty-five hundred that I felt Mr. Robinson had earned.
Q. Mr. Clark, correct me if I’m wrong, but tell me if I understand the substance of your testimony on a couple of issues and is the substance of it that to the best of your recollection you had recommended that Mr. Robinson see Dr. Jones and in addition to that that he was paid for the date of his death among other days.
******
Q. Is that substantially correct?
A. Yes. Correct.”

The testimony of Dr. Jones set forth hereinabove reflects that he examined and saw Robinson for the pain in his back and shoulders and that the respiratory infection caused coughing, which increased such pain. Thus, the undisputed testimony is that Robinson went to see Dr. Jones at the authorization and suggestion of his superior, Mr. Clark, and that the examination covered the work-related condition of his back and shoulders. There is no substantial evidence to the contrary.

The law is established in this state that, if an order of the Workmen’s Compensation Commission is supported by substantial evidence, then such order must be affirmed. The appellate court is not the judge of the weight and worth of the evidence. Knox Glass, Inc. v. Evans, 197 So.2d 784 (Miss.1967); Perkinson v. Laurel Hot Mix, Inc., 252 Miss. 879, 174 So.2d 391 (1965); Freeman v. Mississippi Power & Light Co., 230 Miss. 396, 92 So.2d 658 (1957). It is also well established that the workmen’s compensation law should be broadly and liberally construed. L. & A. Construction Co. v. McCharen, 198 So.2d 240 (Miss.1967).

The crucial question here, which has not been decided by this Court, is whether or not under the facts set forth herein-above, the death of Robinson is compensa-ble. Larson’s Workmen’s Compensation Law, Vol. 1, § 13.13, at 3-379 — 3-383 (1972) states the following rule:

“When an employee suffers additional injuries because of an accident in the course of a journey to a doctor’s office occasioned by a compensable injury, the additional injuries are generally held compensable. If the journey takes place immediately after the first injury occurs, the chain of causation is most readily visible, as when an employee was being rushed to a hospital following a compen-sable injury and sustained further injury when the ambulance was involved in a collision. But, quite apart from the element of immediacy, a fall or automobile accident during a trip to a doctor’s office has usually been considered sufficiently causally related to the employment by the mere fact that a work-connected injury was the cause of the journey, without any necessity for showing that the first injury in some way contributed to the fall or accident. Of course, if the prior injury in any way contributes to the second accident, the case is that much stronger, as when pain or drugs or a weakened member may have played a part.
When compensation has been denied in this type of case, there has usually been some added factor weakening the causal connection, such as doubt about whether the trip was really authorized, or termination of the employment relation before the second injury occurred. Denials have also issued when the purpose of the trip was not treatment by a doctor, but examination for purposes of a workmen’s compensation claim or for purposes of meeting the employer’s requirement of a physical fitness certificate. Other denials in apparently related cases may be accounted for by the fact that the original injury was not work-connected, as where an employee suffers a heart attack and then attempts to connect it with the employment by pointing to the exertion of making his way to the employer’s clinic or infirmary.
In the simple case, however, of a trip to the doctor’s office necessitated by a com-pensable injury, the arguments put forward by the Kansas court in the Taylor case are difficult to answer. The court noted that the employer is under a statutory duty to furnish medical care, and that the employee is similarly under a duty to submit to reasonable medical treatment under the act. The provisions of the act, in turn, become by implication part of the employment contract. This being so, the better view appears to be that accidental injuries during a trip made pursuant to this statutory and contractual obligation are work connected.”

The California case of Laines v. Workmen’s Compensation Appeals Board, 122 Cal.Rptr. 139, 48 Cal.App.3d 872, 874 (1975), held that an injury sustained while an employee was en route to receive current medical treatment for an earlier industrial injury arose out of and in the course of his employment and was proximately caused by the earlier injury, although the earlier injury, in itself, did not contribute to the second injury and the journey did not commence at the place of employment, and was compen-sable.

In Taylor v. Centex Construction Co., 191 Kan. 130, 379 P.2d 217 (1963), the Supreme Court of Kansas held that injuries sustained by an employee were compensable where the employee received an eye injury at work and was told by his employer to go to the doctor. During the trip, the employee was involved in an automobile accident, and the Court held the following:

“Under our Workmen’s Compensation Act (G.S.1961 Supp. 44-510) one of the primary duties of an employer to an injured workman is to furnish him such medical, surgical and hospital treatment as may be reasonably necessary to cure and relieve the workman from the effects of the injury and restore his health, usefulness and earning capacity as soon as possible. The liability of an employer to an employee arises out of a contract between them and the terms of the Act are embodied in the contract. [Omitting cases]. Section 44-518 provides that an employee must submit to medical treatment, or lose his benefits during the period that he refuses to submit to non-dangerous medical treatment.
The evidence is clear that the claimant suffered accidental injury to his eye on August 16, 1960, in the course of his employment. The respondent was obligated to furnish medical treatment, and that could only be procured at the doctor’s office in Topeka. The directions of Mankin were sufficiently comprehensive to embrace all the treatment necessary to heal the eye. It would be folly to say that the claimant’s trip going to and from the doctor’s office did not ‘arise out of’ the nature, conditions, obligations, or incidents of his employment. .
******
In making the trip to the doctor’s office, the hazards and risks of highway travel were incidents of his employment. Moreover, the words ‘causal connection’ cértainly do not mean that the accident must result directly and immediately from the performance of work for which the workman was employed. Such a narrowed interpretation would mean that whenever a workman was not directly engaged in the actual work to be done he would be without protection of the Act. [Omitting cases].” 191 Kan. at 135-136, 379 P.2d at 221, 224.

See also Whitington v. Industrial Commission, 10 Ariz.App. 461, 459 P.2d 740 (1969); and Immer and Company v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967).

Robinson had not filed a claim for benefits prior to October 8, 1973 but he suffered from a condition, which, although not caused by his work, was aggravated by same and was compensable. Universal Manufacturing Co. v. Barlow, 260 So.2d 827 (Miss.1972). On October 8, 1973, he visited Dr. Jones primarily for treatment of that condition upon authorization and at the suggestion of his employer and accidentally lost his life in so doing. We hold that the principle expressed in Taylor v. Centex Construction Co., supra, and Laines v. Workmen’s Compensation Appeals Board, supra, is a reasonable and sound rule and that it should be applied here. Therefore, the judgment of the circuit court is affirmed.

AFFIRMED.

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

      . The evidence indicated that Robinson could not support his family on compensation benefits.


author: SUGG, Justice,

text:
    Michael O’Ryan McGEE v. CHARLES F. SMITH & SONS, INC.
    No. 50103.
    Supreme Court of Mississippi.
    April 12, 1978.
    Rehearing Denied May 10, 1978.
    Tighe & Tighe, B. Stirling Tighe, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Richard L. Forman, Jackson, for appel-lee.
   SUGG, Justice,

for the court:

This is an appeal of a personal injury action brought by Michael O’Ryan McGee from a judgment of the Circuit Court of the First Judicial District of Hinds County finding in favor of the defendant, Charles F. Smith & Sons, Inc. We affirm.

On the night of August 15, 1974 McGee, with several other young people, was a passenger in a jeep vehicle traveling along the levee which begins at the east end of Fortification Street in Jackson, Mississippi, parallels the Pearl River, and turns west — terminating at the City of Jackson maintenance shop on South Jefferson Street. There was a “road closed” sign at the beginning of the levee and several other “posted” or “no trespassing” signs along the route the jeep traveled. McGee and the jeep’s occupants were unaware that an excavation had been made through the levee road by Smith who was constructing a sewer line pursuant to a contract with the City of Jackson. The excavation was on City property and through a levee easement granted by the City to a levee district. McGee and the others drove off into a ten foot deep chasm created by the excavation. McGee was thrown from the open vehicle and suffered serious personal injuries when the jeep landed on top of him.

Before the trial McGee made a motion to suppress evidence in anticipation of Smith’s defense that McGee was a trespasser at the time of the accident to whom a reduced duty of care was owed. The basis of the motion was that Smith, as one being under contract with the City to lay a sewer line, could not raise the defense that McGee was a trespasser on the City property. The trial court overruled the motion and permitted evidence going to the defense together with instructions charging the jury with reference thereto.

On appeal the sole issue of law presented is whether Smith was entitled to raise the defense that McGee was a trespasser on property where Smith was installing a sewer line under contract with the City.

McGee maintains that White v. Mississippi Power & Light Co., 196 So.2d 343 (Miss.1967), is controlling. In White we held that “an electric company is not relieved of liability to persons injured by its lines through its negligence . . . because the person injured was a trespasser on a third party’s land.” 196 So.2d at 355-356. There the electric company had strung its lines as a “continuous revocable licensee” on the property of the Illinois Central Railroad Company.

However, Smith did not bear the same relation with the owner of the land as the electric company in White, but was on the City’s land with the permission of the City having made the excavation pursuant to a contract with the City.

Under these facts the case of Bishop v. Stewart, 234 Miss. 409, 416, 106 So.2d 899, 900 (1958) applies. We held in Bishop that one who occupies land with the landowner’s permission “is entitled to invoke the rule that [he] owes no duty to a licensee except not to harm him wilfully or wantonly.” The same reduced duty of care is owed by a landowner to a trespasser. West v. Williams, 245 So.2d 591 (Miss.1971).

McGee was trespassing on City property. Smith was performing a contract with the City and was occupying the property with the permission of the City; therefore, Smith owed no duty to McGee except to refrain from wilfully or wantonly injuring him.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    Barbara Ann SMITH v. Michael Franklin NECAISE.
    No. 50306.
    Supreme Court of Mississippi.
    April 12, 1978.
    Rehearing Denied May 10, 1978.

      Sekul, Hornsby, Wallace & Teel, Thomas L. Wallace, Biloxi, for appellant.
    Charles T. Sykes, Jr., Gulfport, for appel-lee.
    Before ROBERTSON, P. J., and SUGG and WALKER, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

This is an appeal by Mrs. Barbara Ann Necaise Smith from a decree of the Chancery Court of the First Judicial District of Harrison County, holding that once an appeal had been perfected by Necaise to this Court from a decree of the chancery court changing the custody and support of minor children that the lower court lost jurisdiction to hear and decide another petition to modify while the appeal is still pending in this Court.

Appellant and Appellee, formerly husband and wife, are the parents of two children, Derrick Scott, a 10-year-old boy, and Diedre Shelly, an 8-year-old girl.

Appellant and Appellee were divorced on September 19, 1973, and custody of the two children was granted to the father, with certain rights of visitation granted to the mother.

On April 14, 1975, on petition of the mother, a hearing was had and the chancery court entered a decree modifying the decree of September 19, 1973, by granting custody to the mother for the months of June, July and August of each year and providing that the father pay the mother $100 per month as child support for June, July and August of each year.

Necaise perfected an appeal to this Court from the decree of April 14, 1975.

On July 28, 1976, Mrs. Smith filed a petition for citation for contempt against Ne-caise, charging that he had failed to pay the $100 per month child support for June, July and August. She also averred changed conditions and prayed for paramount custody of the two minor children.

The chancery court on September 3,1976, heard this petition and found that there had been a substantial change of circumstances, and that paramount custody should be granted to Mrs. Smith, and Necaise required to pay $100 per month child support. Necaise was granted visitation rights with his two children on the first and third weekends of each month from 5:00 P.M. on Friday to 9:00 A.M. on Sunday, “and at such other times as the parties may agree upon.”

On September 16, 1976, Necaise filed a motion to set aside the decree of September 7, 1976, on the ground that the appeal from the decree of April 14, 1975, was still pending in the Supreme Court, and that the chancery court was without jurisdiction to take further action until his appeal was disposed of. On September 20, 1976, the chancery court entered a decree setting aside the decree of September 7, 1976, on the ground that the court lacked jurisdiction to take further action until the pending appeal was decided by this Court.

The only error assigned by Mrs. Smith is: The Court was in error in holding that the appeal to the Supreme Court of the State of Mississippi divested Chancery Court of all jurisdiction as to custody and support of children.

Mrs. Smith is correct in her contention, and we reverse the decree of September 20, 1976, and reinstate the decree of September 7,1976, awarding paramount custody to her and providing for $100 per month support for the two children during the time they are in her custody.

In Vockroth v. Vockroth, 200 So.2d 459 (Miss.1967), this Court said:

“This particular appeal transferred jurisdiction to this Court only for the purpose of reviewing the trial court’s action in denying the petition for leave to remove the children from the state. Otherwise, the trial court’s jurisdiction, as it related to the custody and welfare of the children, continued unaffected by the appeal, to be exercised under the same circumstances and to the same extent as if the appeal had not been taken, that is to say, if and when a material change in the situation should occur which warranted a modification in the custodial arrangement, in the best interest of the children.” 200 So.2d at 462.

Voekroth differs from the case at bar in that there was no appeal from the provisions of the original decree fixing custody and support of the children in that case, while in the ease at bar the appeal was from the decree of April 14, 1975, modifying the custody and support provisions of the 1973 decree. So in this case we are confronted squarely with the question of whether the chancery court loses jurisdiction to further change custody and support provisions while those provisions in a former decree are being questioned in an appeal to this Court.

Mississippi Code Annotated section 93-5-23 (1972), provides in part:

“The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.”

This is a matter of first impression with us. However, courts in at least three other states have been called upon to decide this very question.

In Goetz v. Goetz, 181 Kan. 128, 309 P,2d 655 (1957), the Supreme Court of Kansas held that:

“[A]n order awarding custody is not a finality — the district court has jurisdiction to modify or change any such order whenever the circumstances make such change proper, ... In our opinion, the district court is not divested of such continuing jurisdiction by reason of an appeal by either or both parties from the judgment granting the divorce and awarding custody of the minor children to one of them, and otherwise providing for their care, . . .” 309 P.2d at 660. [Emphasis added].

To the same effect is Vehle v. Vehle, 255 S.W.2d 901 (Tex.Civ.App., 1952).

The Court of Appeals of Kentucky ruled on this question of continuing jurisdiction in the trial court to determine matters of custody and support of children in DeSi-mone v. DeSimone, 392 S.W.2d 68 (Ky.1965):

“The appellant first contends the trial court was without jurisdiction to determine the matter since there was an appeal pending. With this theory we cannot agree. The court may re-examine the question of custody or support at anytime on showing a change of conditions, regardless of the pendency of an appeal. It may, and sometimes does, require many months to determine a case on appeal.” 392 S.W.2d at 68-69 (Emphasis added).

We agree with this decision of the Court of Appeals of Kentucky. The decree of September 20,1976, setting aside the decree of September 7, 1976, is reversed, and the decree of September 7,1976 (modifying and changing the custody and support provisions of the April 14, 1975, decree) is reinstated.

REVERSED AND RENDERED.

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


text:
    Robert E. TUBWELL v. STATE of Mississippi.
    No. 50261.
    Supreme Court of Mississippi.
    April 19, 1978.
    Rehearing Denied May 10, 1978.
    George M. Arthur, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.