text:
    Mrs. Elizabeth CURET v. Charles H. HIERN et al.
    No. 20839.
    Court of Appeal of Louisiana. Orleans.
    May 13, 1957.
    Rehearing Denied June 24, 1957.

      M. C. Scharff and Tucker & Schonekas, New Orleans, for plaintiff and appellee.
    Michael J. Molony, Jr., Jones Walker, Waechter, Poitevent & Denegre, New Orleans, for defendants and appellants.
   McBRIDE, Judge.

Plaintiff filed this suit in the Twenty-fourth Judicial District Court for the Parish of Jefferson against Charles H. Hiern and his liability insurer, Liberty Mutual Insurance Company, seeking to recover damages for injuries allegedly sustained as a result of her fall down a stairway, claimed to be defective in design and construction, located in the interior of a two-apartment building owned by Charles H. Hiern.

The petition and the supplemental and amended petition allege, in substance, that plaintiff’s son-in-law and daughter were lessees of Hiern, the owner of the upper apartment identified by Municipal No. 2409 Leonidas Street; that plaintiff lives with them; that they moved into the apartment about December 1, 1951. On December 5th plaintiff was awakened in the early morning hours by the sound of wind and rain, and upon hearing a noise which sounded like the downstairs door slamming, she arose from bed intending to proceed down the stairs to close the door; that she opened an upstairs door and in “attempting-to step on what she thought to be a landing, she fell completely down the front stairs.”' Plaintiff charges that the stairway is defective in several respects and not in conformity with the Building Code of New Orleans, and that her fall was caused thereby.

Defendants interposed an exception of no cause of action which was overruled by the trial court. Then answering they deny plaintiff was injured as a result of a fall on the stairway and also denied that the stairway was defective either in design or construction or that the alleged defects caused plaintiff to fall. They affirmatively aver that the stairway was constructed in accordance with the usual and customary standards prevailing in the City of New Orleans and in compliance with the New Orleans Building Code, and that the sole and proximate cause of the accident was plaintiff’s own negligence in failing to pay proper heed while approaching a stairway and in failing to use the usual and ordinary cáre requisite when one descends a stairway. In the alternative, defendants plead that plaintiff was contributorily negligent in these respects.

On these issues the matter proceeded to trial in the lower court and judgment was rendered in favor of plaintiff awarding her $6,500 for physical injuries and future medical expenses, from which judgment the defendants have prosecuted their de-volutive and suspensive appeal which has been answered by plaintiff who prays that the amount of the judgment be increased to the sum of $10,000.

No one, save plaintiff, was present when the accident happened and her narration of the occurrence stands alone. Rather than paraphrase her testimony, we quote it verbatim:

“Q. Now, on the night of the accident or the early morning of the accident, did you get out of bed? A. Well, there was a storm come up about two-thirty, I think.
“Q. About two-thirty in the morning? A. Yes, and I got up to go and put the window down. The rain was coming in.
“Q. In your room? A. In our room, yes, and so I heard the door slamming.
“Q. What door? A. Downstairs.
“Q. The downstairs door? A. Across the hall, you know, and I said, ‘Well, I will go.’
“You know, lock it up. So, when I got to the door, it just opened. No lock, no nothing and I just went right on down and that was the last I ever knew.”

And again plaintiff testified:

“I thought it was there but it was the one that was pounding on top. You see, we were there three days and whenever I touched the door there, I went down. There was no lock, no locks on the door.”

For the third time plaintiff described in similar terms how the accident happened, as shown by the following testimony:

“Q. Did you say that when you started to fall, what did you do when you realized you were falling? A. I just went down. I didn’t know anything, not a thing.”

On cross-examination she was questioned as to her explanation of the fall as compared with the allegations of her petition, and her testimony appears thus:

“Q. And you said that according to the statement in your petition here, that you assumed there would be a landing there and you stepped out, is that right? A. No, whenever I took the door this way, and I just went right on down, because there was no lock. I thought the door was locked.”

The upstairs door Mrs. Curet alludes to is situated in a hall between the dining room and living room and this area was in darkness, or as the plaintiff put it, there were “no lights nowhere.” Some contention is made that the hallway was sufficiently illuminated by the bedroom light, but we do not believe this to be a fact; at least it cannot be squared with Mrs. Curet’s statement that there were no lights. Plaintiff made no attempt to switch on the light above the stairway door through which she says she fell.

No claim is made that any portion of the stairs broke, crumbled or gave way, and the ground of complaint is that the staircase was unsafe by virtue of its peculiar design, the alleged structural defects being, viz.: that the door should not have opened into a stairwell without a landing or platform; that a handrail was lacking; the flight of steps was entirely too steep; and that the individual steps, which were too narrow, varied in height and width.

Some controversy exists over which particular articles of the LSA-Civil Code have application to the case — 670, 2315, 2322, 2692, 2693 or 2695 — but a discussion thereof is unnecessary in view of our conclusion as to the negligence vel non of the property owner.

Our concern is whether Hiern, the owner and lessor, was guilty of actionable negligence in maintaining the stairs in 'his premises. Any question of the steepness thereof, or the narrowness, or the disparity in the width and height of the component steps may he eliminated from discussion and consideration of these defects, if they actually existed, can play no part in the case because plaintiff does not attribute her fall thereto, and it does not appear that the accident was caused thereby. If the defendants are liable for plaintiff’s damages, it must not only be shown that the premises were defective but that the defects were the proximate cause of the injuries.

Plaintiff attempted to show that the stairway is -unsafe from an' architectural point of view and that the manner of construction thereof is in direct violation of the Building Code of New Orleans. Maxwell, a licensed architect, testified, and Mar-key, who investigated the premises on behalf of defendants, stated in writing that the opening of the upper door directly onto a flight of stairs created a hazard. Maxwell insisted that a landing or platform having a width equal to the door should have been provided and further there should have been handrails to enable a person to maintain equilibrium in ascending or descending. Maxwell went so far as to assert that this is violative of the New Orleans Building Code (Ordinance 17,525, C.C.S.) adopted December 17, 1948, of which he claims co-authorship. Pie stated that his -opinion, and that entertained by a majority ‘-of those whose duty it is to enforce the ordinance, is that certain articles, which he referred to by number, would have application to the premises in question.

The argument is made that we should adopt Maxwell’s construction of the provisions of the ordinance under the principle of law that rulings of administrative officials charged with the interpretation of their own regulations carry great weight and are usually followed by the courts.

We have made careful anaylsis of the portions of the Building Code brought into question, and it seems clear, notwithstanding Maxwell’s contrary opinion, that the ordinance does not by any of its provisions regulate the general design, style, or requirements for stairways, or landings or platforms, or railings thereon in two-family or duplex dwellings. By art. 103 of the Building Code a building designed for or occupied exclusively by two families is a “Two family dwelling,” and by the provisions of art. 1401 “dwellings” are classified as “Group 1 Occupancies.” In art. 3301 et seq., Chapter 33, it is stated: “The provisions of this Chapter shall not apply to Group 1 Occupancies except as specifically stated * * Nowhere in Chapter 33, which governs stairs and ramps, is there any indication that Group 1 Occupancies are brought within the purview of the provisions of any of the articles of said chapter.

No ambiguity exists in the pertinent provisions of the Building Code, and therefore there is no room to admit the construction given them by Maxwell. No contemporaneous construction is necessary to aid the court and such would be irrelevant where the language of the ordinance is free from doubt. Gulf Shipside Storage Corporation v. Thames, 217 La. 128, 46 So.2d 62; Liquidation of Canal Bank & Trust Co., 211 La. 803, 30 So.2d 841; State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601.

Some attempt was made to show that Ordinance 17,525, C.C.S., has since been amended and that its provisions presently require that stairways in duplex dwellings be equipped with landings and handrails and that the opening of doors into stairwells is prohibited. The amendments to the ordinance, if any, have no retroactive effect. The erection of the stairway was governed by the provisions of the then prevailing ordinance. Gosselin v. Stilwell, La.App., 78 So.2d 235; Boucher v. Paramount-Richards Theatres, Inc., La.App., 30 So.2d 211; DeLatour v. Roosevelt Hotel, Inc., La.App., 1 So.2d 353.

While the style and design of the stairway might not comply with present-day architectural or regulatory standards, this would not be sufficient to say that the premises were defective or that a trap existed. The stairway, as the record describes it, seems to be of a type not uncommon in the vicinity of New Orleans and particularly in many older buildings. If we were to hold that there was a trap in the premises, then we would in effect be condemning stairways in thousands of dwellings and buildings in this locality. There is no element of a trap, nothing was hidden, concealed, or which could not have been seen by a person using a minimum of precaution. Plaintiff has . fallen short of proving that any defect in the premises was responsible for her injuries and hence she cannot be successful in her demands. It was incumbent that she make such showing. See Burch v. Mathson, La.App., 26 So.2d 230; Dugas v. Mayer, La.App., 179 So. 607; Castain v. Lograco, La.App., 152 So. 153; Potter v. Soady Bldg. Co., Inc., La.App., 144 So. 183; Cosey v. Scott, 17 La.App. 680, 137 So. 361. This court said in Boudro v. United States Fidelity & Guaranty Co., La.App., 145 So. 294, 295:

“The law is clear that the landlord is not responsible for any injuries that a tenant, or any one lawfully in the premises, may have sustained as a result of a fall, unless the fall was caused by a vice or defect in the premises. The mere fact that a tenant fell and was injured in leased premises does not raise any presumption of negligence on the landlord’s part, or that he failed to keep the building in a proper state of repair.”

In Landry v. LeBleu, La.App., 172 So. 19, 20, a case involving a fall down stairs in a rented building, the Court of Appeal for the First Circuit held:

“In order for plaintiff to recover, it is necessary for her to prove two things: First, that she fell on the steps of this rented house and that this fall was caused from some defect in the steps; second, that she was injured by the fall and, if so, the extent of these injuries.”

After arising from bed plaintiff most probably was in a sleep-ladened condition and thoughtlessly moved about the darkened hallway. She could have turned on the light which would have illuminated the stairwell, but unfortunately she failed to do this. Then in the darkness she opened the door although professing she had never before attemped to use the stairway and it was entirely unfamiliar to her. We believe her conduct in proceeding through the door into total darkness was a most imprudent thing to do, and the case must fall within the “step in the dark” principle'. This rule of law is thus stated in 1 Shear-man & Redfield on Negligence, page 320:

“A person who comes into an unfamiliar situation, where a condition of darkness renders the use of his eyesight ineffective to define his surroundings, is not justified, in the absence of any special stress of circumstances, in proceeding further, without first finding out where he is going and what may be the obstructions to his safe progress. Violation of that rule is contributory negligence as matter of law.”

In Fahey v. Sayer, 9 Terry 173, 48 Del. 173, 99 A.2d 624, 625, the plaintiff was held contributorily negligent as a matter of law in entering a darkened doorway, notwithstanding the fact that there was sufficient light in the hallway on which the door opened. The plaintiff had occasion to seek use of the lavatory in defendants’ premises and went into a rear hall from which there were several doors, including doors leading to the kitchen, a den and a utility room. There were three other doors similar in appearance and structure except for one leading to a cellar stairway and it was distinguished by a bolt and a chain which was open at the time. Plaintiff went to the door leading onto the cellar steps, opened the door and reached her hand to see if she could find a light switch and, as she describes the accident “away I went down on my back to the bottom of the stairs.” The lower court directed a verdict for defendants and held plaintiff contributo rily negligent as a matter of law. The appellate court affirmed the action of the lower court saying:

“ * * * The impenetrable darkness which confronted her when she opened the door leading to the cellarway was sufficient warning not to attempt to use it except at her own risk. * * * ”

See, also, Biggs v. Bear, 320 Ill.App. 597, 51 N.E.2d 799; McHenry v. Howells, 201 Or. 697, 272 P.2d 210.

This court has had occasion to apply that particular principle of law in the case of Briscoe v. Bailey, La.App., 74 So.2d 770, 771, holding the plaintiff to be negligent for entering a darkened doorway in unfamiliar premises. There plaintiff’s brother had rented a room and bath from the defendants on the second story of the premises. The room and bath each had a door opening onto a gallery which ran toward the rear of the premises where a louver door leading to a common toilet was located. Plaintiff, visiting her brother one night, inquired as to the location of the toilet and was instructed to go to the rear end of the gallery where she “would come to a door, and push it open and walk in there.” There was very little light on the gallery. Plaintiff instead of going to the last door, opened the door leading to the platform of a descending stairway, entered the door in the darkness and fell down the stairway. This court affirmed the judgments of the lower court, which dismissed plaintiff’s suit and said:

“ * * * The plaintiff, wholly unfamiliar with the premises, opens a closed door revealing, according to her own testimony, nothing but darkness into which she imprudently advances and falls down the stairway. It was her own negligence that caused her mishap.”

This case is dissimilar to Fischer v. Dufresne, La.App., 192 So. 109. The facts in that case were that a customer was injured by falling in attempting to step down from a poolroom to a barroom because the wooden steps which had been in place twenty minutes before had been moved in order to permit a porter to sweep under them, and warning was not given until almost simultaneously with the fall. The court held that the plaintiff was not guilty of negligence because he did not know that the steps were movable and had no prior notice that they had been moved.

Carefully studying the testimony of plaintiff, we gain some impression that she leaned against the door which she thought to be locked, falling through and down the stairs when the door yielded to her touch. Several times she stated: “I touched the door there, I went down. There was no lock, no locks on the door.”

If there was any negligence in the case it certainly was not on the part of the property owner, and the trial judge erred in rendering the judgment appealed from.

The large number of cases involving persons who fall down stairs and attempt to recover damages for their injuries from the owner or occupant of the premises provoked comment from the writers of Shear-man & Redfield on Negligence. In Vol. IV, Sec. 797, page 1820, we find:

“It is not uncommon for a person to fall down stairs when there is no defect in the stairway or its covering. A heel may catch on the edge of the stair, or the carpet, and a fall results. The fault rests, not with the stairway, but with the person who so placed his foot. Too often, the accident having so happened, such a person seeks a ‘defect’ through which to pin upon another the damage flowing from his own lapse. The frequency of that situation led one justice, during argument of an appeal, to make the ironic comment that ‘They always find it.’ ”

This court in Denneker v. Pecoraro, La.App., 64 So.2d 510, 515, in affirming dismissal of plaintiff’s demand for damages alleged to have resulted from a fall down stairs, stated:

“We quote with approval from S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 175, 58 A.L.R. 132, as follows:
“ ‘Not every accident that occurs gives rise to a cause of action upon which the party injured may recover damages from some one. Thousands of accidents occur every day for which no one is liable in damages, and often no one is to blame, not even the ones who are injured. * * *’ ”

In Knight v. Travelers Ins. Co., La.App., 32 So.2d 508, 512, the First Circuit Court of Appeal quoting from Davis v. Buss Machine Works, 169 Mich. 498, 500, 135 N.W. 303, 304, said:

“ ‘It has long since been recognized that falling downstairs, where the mishap was not imputed to unknown or concealed defects, belongs to that class of ordinary accidents which ought to be imputed to the carelessness or misfortune of the sufferer.’ ”

For the reasons assigned, it is now ordered, adjudged and decreed that the judgment appealed from be reversed and plaintiff’s suit is dismissed at her cost.

Reversed.


source: Caselaw Access Project

author: AYRES, Judge.

license: Public Domain

text:
    Harvey A. KING, Plaintiff-Appellee-Appellant, v. C. N. MASON, doing business as C. N. Mason Company, et al., Defendants-Appellants.
    No. 8605.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 7, 1957.
    On Rehearing May 27, 1957.
    Writ of Certiorari Granted June 28, 1957.

      Provosty, Sadler & Scott, Stafford & Pitts, Alexandria, for appellants.
    Parker & Parker, Jena, for appellee-ap-pellant.
    Martin S. Sanders, Jr., Olla, for appellee Town of Jena.
   AYRES, Judge.

Plaintiff instituted this action to recover damages for personal injuries sustained by him in a natural gas explosion at the residence of one T. J. Kendrick, situated in the Town of Jena, Louisiana, where he was engaged as a plumber’s helper in resetting a commode in a bathroom of said residence on January 27, 1955. The explosion demolished one of the bathroom walls and the gas became ignited, severely burning plaintiff and setting fire to the residence, which was destroyed in the fire.

Made defendants were the Town of Jena, which owned the gas distribution system; C. N. Mason, doing business as C. N. Mason Company, who had only recently completed the installation of a sewer system in and for the Town pursuant to a contract with the aforesaid municipality; United States Fidelity and Guaranty Company, Mason’s insurer, and F. P. Joseph Associated Engineers, a partnership, and the individual members thereof.

All defendants filed and urged in the court below exceptions of no cause and of no right of action, which were sustained only as to the defendants, F. P. Joseph Associated Engineers, and its individual partners. Plaintiff did not appeal from this ruling. They are, therefore, not presently before the court. The defendants as to whom the exceptions were overruled have not urged the exceptions on appeal and the exceptions, therefore, may be considered as abandoned.

After trial on the merits, there was judgment in plaintiff’s favor against the defendants, C. N. Mason and the United States Fidelity and Guaranty Company, in solido, for $4,653-, with legal interest thereon from judicial demand until paid, and for all costs, and maintaining the attachment levied on the property and funds of C. N. Mason and recognizing plaintiff’s lien and privilege resulting therefrom. Plaintiff’s demands as to the Town of Jena were rejected.

From this judgment, C. N. Mason and the United States Fidelity and Guaranty Company appealed suspensively and devol-utively to this court. Plaintiff, asserting that the award was inadequate, likewise appealed from the judgment in that respect, as well as from that portion rejecting his demands as against the Town of Jena.

There is no serious dispute as to the material facts. A brief summary, however, appears in order for a proper understanding of the issues as they will be discussed. As heretofore stated, the Town of Jena owns and operates the natural gas distribution system in the municipality. On September 25, 1953, C. N. Mason, doing business as C. N. Mason Company, signed a contract with the Town to construct and install a sewerage collection system for the municipality. The work under this contract began November 1, 1953. On December 13, 1954, Mason met with the Mayor and Board of Aldermen in a meeting held relative to the elimination from the contract of the resurfacing and graveling of the streets. This being accomplished, the work of Mason under the contract was accepted by the municipality the following day, December 14, 1954, upon the filing of the final approval of the engineers employed by the Town.

The sewer system in the part of town where the Kendrick residence was located was completed during August, 1954. The residence, however, was not connected to the system until five or six days preceding the explosion of January 27, 1955. After the explosion a damaged gas pipe was located some 500 or 600 feet from the Kendrick residence, from which the gas escaped and seeped into the sewer line leading to the Kendrick home. The evidence establishes this gas line was cut and severed in the process of the installation of the sewer system, in the construction of which it was necessary that ditches be dug, the sewer pipe laid and the ditches back-filled with dirt. This particular gas line was cut, never repaired, and left freely flowing gas and covered over with dirt in back-filling the ditch. There were numerous other instances where the gas lines were cut during the course of the aforesaid construction, some of which were not repaired at the time but were left open and covered with dirt in the backfilling operations, and were only discovered after the explosion in the Kendrick residence. The backfill in the ditches was of comparatively loose dirt, through which the gas could easily seep and find its way into the sewer lines. One other particular instance was where gas was detected by sight as it came out of the vent pipe to the bath in the residence of a Mr. Baker.

On the late afternoon preceding the date of the explosion, A. L. McDonald, a plumber, was called to the Kendrick home to adjust a leaking faucet in the kitchen. Plaintiff King accompanied McDonald. While in the Kendrick home their attention was directed to an unusual or foul odor in the bathroom. Both McDonald and plaintiff made an inspection, from which it was determined that the odor, thought to be sewer gas, was coming from underneath the commode, most probably due to its being improperly sealed. McDonald characterized this odor as “a pungent sewer smell”. Plaintiff returned the next morning to replace the seal. In the performance of this task, King removed the commode and stuffed rags tightly in the opening to prevent odors escaping into the house. After installing a new seal and while he was replacing the commode, tightening the bolts holding it to the floor, there was a sudden yellow flash, an explosion, then a blue flame. The commode was burst in the explosion, the wall to the bathroom was blown down, the other walls and wall paper caught fire and plaintiff was dazed and knocked over to the floor — afire, which was only extinguished by his rushing to the yard and rolling on the ground. After the house was completely consumed by flames, there continued a blue flame of burning natural gas as the gas escaped from the sewer connection. This flame was subsequently extinguished by employees of the Town. While plaintiff was making the aforesaid repairs, there were no fires or lights in the bathroom nor did he strike a match. There were, however, lights or fires in other sections of thn residence.

The facts disclosed by the record establish without cause for serious doubt that it was the explosion of natural gas (and its subsequent ignition), which found its way into the Kendrick home through seepage into the sewer lines from a severed unrepaired gas line, that caused the damage, and that the cutting and severance of this line was done by Mason and/or his employees, for whom he is responsible, during the course of the performance of his contract with the Town for the installation of the.sewer system. That damage would likely result from such negligence could have reasonably been foreseen, and should have been foreseen, by Mason and his employees.

While denying liability, Mason contends that his contract with the municipality was performed in accordance with plans and specifications and under constant supervision and direction of the engineers employed by the Town; that the work, that is, the installation of the sewer system, was accepted by the Town of Jena and the accident occurred more than a month after such acceptance, and that thereby whatever liability existed on his part was shifted to and assumed by the municipality. In the alternative, he alleged that, if the accident occurred as claimed, it was due to contributory negligence of plaintiff and his employer in failing to take proper precautions against the ignition of gas, and that such negligence was the proximate cause of the injury. In the further alternative, Mason plead that, in the event he was found liable in any way, he was at all times protected under a policy of insurance with the United States Fidelity and Guaranty Company, and, consequently, in such event, prayed for judgment in his favor against his insurer.

The insurer’s position is that the policy issued to Mason covered any liability arising out of an accident occurring during the progress of the work listed on the declarations, particularly during the progress of the work contracted for the installation of the Jena sewerage project, but that it did not cover any accident occurring after the completion of said work. In this connection, it was contended that such liability would have been covered had Mason procured insurance under the “Aggregate Products” provisions, which he did not do. Too, if the insured should be relieved of liability upon any of the grounds urged by him, there would be no liability on the part of the insurer.

Plaintiff contended that the municipality was negligent for its failure to cause to be made necessary inspections of the gas system to determine whether the gas lines had been cut and concealed by the contractor, and, further, in allowing residents to connect to said sewer system before it was finally completed. The Town denied any negligence on its part and plead contributory negligence on the part of plaintiff.

The record is convincing that the acts of Mason and/or his employees, in cutting and severing the gas lines, leaving them unrepaired, and permitting the gas to flow freely therefrom and covering them over in the backfill of the sewer ditches, constituted gross negligence and the proximate cause of the accident and the injuries and damages caused thereby. It is well known that natural gas by its nature seeks the line of least resistance in coming to the surface if an outlet is available, or, as in this case, by entering into a sewer line, in which it would naturally and normally flow upgrade and enter through sewer connections the houses connected with such system; that natural gas is highly explosive and dangerous, and that under such conditions an explosion might result as did occur. The Kendricks took the normal and prudent course of having their commode checked by a plumber after odors were discovered emanating therefrom. Both McDonald and King testified they used every precaution; that they had no knowledge that natural gas had entered the sewer lines or, in fact, that natural gas was escaping from its lines and accumulating in the sewer system. There was no conduct upon their part such as would constitute an efficient intervening cause so as to absolve Mason from liability. There have not been established any facts that would justify a conclusion that King, his employer, McDonald, or Kendrick were guilty of any conduct constituting a proximate cause or a proximate contributing cause of the accident. From the evident promiscuous cutting of the gas lines, Mason should have been alert and taken extra precautions commensurate with the danger and inherent dangerous quality of escaping gas, the consequences of which, under the circumstances, could, and should, have been anticipated; however, the consequences attendant upon the injury to the gas line need not necessarily have been anticipated. For instance, “Restatement of the Law” under the subject of “Torts”, § 435, says:

“If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.”

Mason relies principally upon the proposition that the acceptance by the municipality of the sewer system on December 14, 1954, prior to the explosion and demolition of the Kendrick home, when and where plaintiff sustained his aforesaid injuries, operates to absolve him from all liability. This contention is predicated upon the proposition that if plaintiff sustained injuries as alleged by reason of the breaking and severing of a gas line by the contractor, such injuries and damage resulted from the contractor’s failure to properly carry out his contract. In this connection, he relies upon a rule of law cited in 14 R.C.L., § 42, reading as follows:

“The general rule is well established that an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury result from the contractor’s failure to properly carry out his contract.”

The Court of Appeal for the First Circuit in Ortego v. Caldwell, 77 So.2d 151, and the Orleans Court of Appeal in Schott v. Ingargolia, 180 So. 462, 463, quoted with approval the aforesaid rule from Ruling Case Law. Judge McCaleb, now Associate Justice of the Supreme Court, in further quoting from the aforesaid authority in the latter case, stated:

“ ‘When the work is finished by the contractor and accepted by the employer, the latter is substituted as the responsible party for existing defects, and the same rule is applied to subcontractors so as to relieve them from liability to.the original employer where their work has been finished and accepted by the original contractor. The reason for the substitution of liability is found in the general doctrine that an action for negligence will not lie unless the defendant was under some duty to the injured party at the time and place where the injury occurred which he has omitted to perform.’ (Italics ours.)”

The Supreme Court, under writs of certiorari, reviewed the Ortego case and, based upon the facts, distinguished it from Schott v. Ingargolia, supra, and held a contractor liable for damages for the flooding of crops on lands adjacent to the highway repaired by him under contract with the Department of Highways, which contract included the construction of a levee to prevent such overflowing by water from highway ditches, notwithstanding the Department of Highways had accepted the contractor’s work. 229 La. 907, 87 So.2d 124.

That the contractor and his surety are liable for damages resulting from the negligent act of the contractor is consistent with the basic law of this State as contained in LSA-C.C. arts. 2315 and 2316, and any departure from the rules of liability therein prescribed would appear illogical and unsound. How could it be contended that a tort feasor is relieved from the consequences of his acts to a third person by any sort of an agreement between only the tort feasor and another third person under the plain language of these Codal provisions? The contention, under the facts of this case, is untenable.

We fail to find, however, as did the trial court, that the principle contended could have application in the instant case. No fault is charged to the sewer system per se; there is no evidence indicating that it was not a workable and efficient system; neither is there any indication before or after its acceptance the system was not in proper order and properly functioning.

According to _the testimony of B. C. Jordan, a graduate and practicing civil engineer, any modem sewer system, under such circumstances as established herein, would collect and carry natural gas to the homes with which it was connected.

The tort committed by the contractor was a mere incident in the performance of his contract with the municipality. It was a mere incident so far as pertains to the installation of the sewer system. Such could have occurred as easily, and the result would have been the same, as well as the legal effect, had Mason been engaged in excavating for a private individual in the Town of Jena, say, for instance, in excavating for the location of a filling station and the burying of its fuel tanks underneath the surface, or, in fact, had he been excavating on his own account and on his own premises. As was clearly indicated in the Schott case, supra, the principle contended for by Mason finds application only in those instances where the injuries or damages result from some fault in the construction contracted to be made by the independent contractor, or from the contractor’s failure to properly carry out his contract. As stated, no fault is shown in the construction of the sewer system or that it is not in order and is not properly functioning as an efficient system. Liability attaches to the defendant, Mason, on account of a tort committed by him or his agents causing damage to the gas distribution system and not in anywise to any fault or imperfection in the sewer system which he contracted to install. By the acceptance of the work under the contract, defendant Mason was not relieved nor absolved from liability for an independent tort committed by those for whose acts he is responsible. Neither by such acceptance did the municipality assume responsibility.

For identical reasons hereinabove recited that defendant Mason was not relieved of liability by the completion of the contract and the acceptance of the work by the municipality, the contention of the defendant, United States Fidelity and Guaranty Company, as to the applicability of the policy provisions pertaining to “Aggregate Products” or “Products Hazards” is inap-posite. Neither the accident nor the injuries resulting therefrom were produced or brought about from the finished product, that is, the sewer system, but they resulted from a tort committed during the term of the policy, for which premiums were paid, and the conclusion is inescapable that the insurer is therefore liable.

The event upon which this action is predicated, that is, the cutting of the gas line and the explosion of the gas which had escaped therefrom, occurred during the term of the policy. Therefore, within such term, extending from April 28, 1954, to April 28, 1955, and within its limits of $50,000 for each person and $100,000 for each accident, the coverage designated “A. Bodily Injury Liability” applies. Under this provision the defendant, United States Fidelity and Guaranty Company, obligated itself “to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.” Therefore, the insurer and its insured, Mason, are liable, in solido, to plaintiff for the injuries sustained by him. However, pursuant to the provisions of the policy, wherein the insured is condemned within the term and under the provisions of the policy, the insurer becomes directly obligated to him in the sum in which he is condemned. The insured is amply protected when the insurer is cast in solido with the insured.

We find no error in the judgment appealed relieving the Town of Jena of responsibility in the occurrence of the accident in which plaintiff was injured. It was neither a party to nor had any notice or knowledge of the tort committed by Mason and his employees. Neither, for the reasons hereinabove set' forth, did its acceptance of the sewer system, a properly functioning finished product, render it liable in damages.

Lastly for consideration is the question of quantum. The plaintiff claims the award of $4,000 for personal injuries is inadequate, whereas defendants contend the amount is excessive. Following the accident, plaintiff was hospitalized for approximately 12 days, during which time and for several weeks thereafter he was treated by Dr. B. E. Doughty. On admission to the hospital the Doctor found plaintiff suffering with 1st, 2nd and 3rd degree burns about the face, neck, ears, both arms, and one or two places on his hip. The 3rd degree burns were on the back of his left hand. Plaintiff suffered intense pain and was given morphine, blood transfusions and glucose solutions while in the hospital. He became edematous, particularly in the face and about the eyes, as well as at the base of his neck. The swelling was so great as to close his eyes. A form of pressure dressing was applied during the treatment, which was very painful and required continued sedation in the form of codeine. Plaintiff suffered emotional shock and after recovery his face and hands were still tender, so that in sunshine and heat they turn red and become irritated.

At the trial, more than a year following the accident, the Doctor testified that plaintiff’s skin was even then subject to easy trauma and there was a possibility that he would develop ulcers, particularly on his left hand. The burning of his hands, with 3rd degree burns on his left hand, together with a tenderness evidenced at the time of the trial and a likelihood of the development of ulcers, causes plaintiff to experience a handicap and considerable inconvenience since in his trade and occupation as a plumber he must be adept in the use of his hands with various tools. Plaintiff’s eyebrows and lashes were burned, as was also the hair on his head. Burns as severe as afflicted plaintiff produce, without doubt, excruciating pain. We think the award for the physical injuries, pain and suffering sustained by plaintiff, in consideration of the probability of some considerable permanent effects therefrom, should be increased by the sum of $1,000. The trial court made an additional allowance of $400 for loss of wages during two months following the accident and for medical and hospital expenses in the sum of $253. We find no error in the allowance of these items.

For the reasons assigned, the judgment appealed is amended by increasing the award in plaintiff’s favor to $5,653, and, as amended, is affirmed.

Amended and affirmed.

On Rehearing

A rehearing was granted herein for the purpose of a reconsideration of the two primary issues involved; first, the liability of Mason as contractor, and, second, the-insurance coverage under the policy issued' by the United States Fidelity & Guaranty Company.

While we adhere to the basic reasons assigned in our original opinion, notwithstanding a painstaking study was made of every contention of error made by defendants, we desire to further discuss the principal contentions again urged by them.

Defendant Mason claims that the court particularly erred, first, in holding that his liability as contractor subsisted, notwithstanding the completion of the work undertaken by him under his contract with the Town of Jena, Louisiana, and its formal acceptance by the governing authority of the municipality, and, second, in failing to hold, as a matter of fact and of law (a) that the contract of insurance of April 28, 1954, between him and his insurer was ambiguous; and (b) that the said insurance contract covered completed operations. The defendant insurer joins its assured in urging the first of these contentions, but additionally claims that we erred in holding that the insurance coverage extended to accidents arising after the completion and acceptance of the work.

The defendants, in effect, contend that we reached our conclusions on the first of these propositions by disregarding the general rule that when a work has been finished by a contractor and accepted by the owner, the contractor is no longer liable to third persons for injuries sustained in accidents occurring after the completion of the work and its acceptance. That such is the rule generally prevailing in many jurisdictions admits of no dispute. We quoted this rule, in our original opinion, as recited in 14 R.C.L., p. 107, Title “Independent Contractor”, Section 42, and which has been restated in 27 Am.Jur., p. 534, Title “Independent Contractor”, Section 55, and in 65 C.J.S., Negligence, § 95b, p. 613. We are not unmindful that the Court of Appeal for the Parish of Orleans in Schott v. Ingargolia, 180 So. 462, and that the Court of Appeal for the First Circuit in Ortego v. Caldwell, 77 So.2d 151, followed the general rule, and that the Supreme Court recognized the general rule in principle in its review of the latter decision as reported in 229 La. 907, 87 So.2d 124.

However, the aforesaid treatises recognize there are exceptions to the general rule. For instance, after statement of the rule, R.C.L. continued:

“The general rule, however, is subject to some recognized limitations which continue the liability of the contractor even after he has parted with control over the work; as for instance, where the finished work is a nuisance, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons.”

A similar statement is contained in 27 Am.Jur., p. 535-536, Title “Independent Contractor”, Section 56, but it is additionally stated:

“ * * * a contractor may be liable where he turns over work which is inherently or intrinsically dangerous, or, in other words, where the work turned over in a manner so negligently defective as to be imminently dangerous to third persons.”

The aforesaid Title and Section of C.J. S., in recognizing generally the non-liability of a contractor under circumstances prevailing here, qualifies the same with the statement:

“ * * * at least if the defect is not hidden but readily observable on reasonable inspection.”

Mason’s contract for the installation of a sanitary sewer system contemplated that contract would, in all probability, be made with the natural gas mains and service lines owned by the town; provisions were made for the repair of any such lines as might be cut, damaged or severed in the progress of the work contracted to be done. It is common knowledge that natural gas is highly explosive and inherently dangerous, especially when out from under control. It was out of control when the lines were severed and the damage thereto concealed in the backfill of the sewer ditches, permitting gas to flow freely, and, by taking a course of least resistance, to find its way into sewer lines and thence in the residences and other works or structures connected with and served by the system; it constituted a condition imminently dangerous to anyone using or having contract with the system. As convincing proof, the accident constituting the subject matter of this action is an eloquent witness.

Exceptions to the general rule have been recognized in many instances. Reference will be made to a few. In Holmes v. T. M. Strider & Co., 186 Miss. 380, 189 So. 518, 522, 123 A.L.R. 1190, an action for damages was predicated upon the fact that guardrails were defectively and insecurely installed on a highway bridge. A car in which plaintiff was a guest passenger struck the guard rail and, because it was insecurely fastened, and, therefore, on account of its defective condition, the car went overboard and plummeted 30 feet to the ground below. The Supreme Court of Mississippi held the contractor liable because the work was “turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons.”

In Westinghouse Electric Elevator Co. v. Hatcher, 133 F.2d 109, the Circuit Court of Appeals for the Fifth Circuit, through Judge Dawkins as the organ of the court, held where the employer of an employee injured in an elevator operated by the employer, had contracted with a company to furnish inspection service for the elevator, the acceptance by the employer of the company’s work would not terminate the company’s liability for the negligence of its agent which caused the elevator to fall, where the act of negligence was of such a nature that it was not reasonably possible for the employer to have discovered it until after the elevator fell. The elevator had been in use for several years and it was the opinion of the experts testifying in the case that the breaking of the cables precipitating the fall was caused by crystallization from long use which should have been and could have been discovered but for the negligence of the company’s agent.

In Colbert v. Holland Furnace Co., 333 Ill. 78, 164 N.E. 162, 164, 60 A.L.R. 353, the defendant had entered into a contract to install a hot water furnace in the Colbert home in Chicago. In making this installation it was necessary to cut away a small portion of the room floor in order to provide space for a cold air shaft. The grate over the shaft served as a floor for the space occupied, and, in the installation, it was not adequately supported, whereupon when plaintiff stepped on the grate it gave way and her leg slipped through, causing her to be seriously injured. In holding defendant liable in damages the court stated:

“This cold air grating, which was a part of the subject-matter of the contract between Colbert and plaintiff in error, was to be used for a particular purpose requiring security for the protection of human life, and it was therefore an exception to the general rule that no liability exists against a contractor of work in favor of one injured by a defect therein after the work has been turned over to and accepted by the owner. Empire Laundry Machinery Co. v. Brady, 164 Ill. 58, 45 N.E. 486. The law is presumed to furnish a remedy for every wrong. The defective condition was hidden from ordinary observation and was a latent defect of which the owner, who accepted the work, would not be chargeable with knowledge of its defective construction. We are of the opinion that the facts in this case bring it clearly within the exception to the rule * *

A continuation of the contractor’s liability to third persons after completion and acceptance of the work was likewise upheld in an Indiana case of Holland Furnace Co. v. Nauracaj, 105 Ind.App. 574, 14 N.E.2d 339, where a hot air furnace had been so negligently and defectively installed as to be imminently dangerous to third persons.

In Hale v. Depaoli, reported in 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R. 183, a contractor was held liable to a third person for damages suffered by reason of the condition of a porch railing negligently constructed after completion of the job and acceptance by the owner, since the nature of the thing was such that, if negligently made, it was reasonably certain to place life and limb in peril.

According to an editorial comment contained in 13 A.L.R.2d 233, the trend of judicial decisions has, as in the case of the liability of a manufacturer of articles for negligence to third persons, revealed a gradual limitation of the rule of non-liability of the construction contractor by the ingrafting of limitations or exceptions upon the rule. It was there stated that the notion that no duty, other than a contractual duty owing solely to the con-tractee, rests upon the contractor has been, at times, subjected to severe attack by the courts and has resulted in certain exceptions to the rule predicated on the im-minency or inherency of the danger involved in the defective construction of the project, as well as the likelihood that it will result in injury to persons coming in contact therewith. This authority then stated:

"One of the exceptions to the rule of non-liability of the contractor is that if the thing constructed is inherently or imminently dangerous, or if the contractor’s act results in an imminently dangerous situation the natural or probable consequence of which, or the inevitable result of which, would be injury to persons other than the contractee who after the acceptance of the work or structure by the contractor are likely to come in contact therewith, the liability of the contractor for the consequences of his negligent act is not limited to the contractee but extends as well to any third person (not a trespasser) who receives injury or damage as a direct result of such act.”

The conclusion is, therefore, inescapable that, if the general rule of non-liability of a contractor for damages to third persons for injuries sustained after completion and acceptance of the work is to prevail in this State, this action comes clearly within exceptions to the general rule, and, accordingly, that the contractor is liable to plaintiff in damages for the injuries sustained by him because of the inherent danger of natural gas and the delivery of the sewer system to the municipality in such a defective condition as to be imminently dangerous to third persons.

We have predicated our conclusions upon the basis of the reasons assigned originally, as well as upon the proposition that this case comes within exceptions to the general rule of the non-liability of a contractor for injuries sustained in accidents occurring after completion of the work and its acceptance by the owner. However, if the general rule were before us as a matter of first impresr sion in the appellate courts of this State, the consensus of opinion of this court is that the doctrine should be rejected as wholly inapplicable in this State. As we view the rule, it appears most inconsistent and out of harmony with the basic principles of our law of torts. For instance, to cite only two examples out of a possible many, LSA-C.C. Article 2315, provides that:

“Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it * * * ”

Article 2316 of the same authority provides :

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

The obligations imposed by these articles are neither equivocal .nor conditional. The obligation to repair the damage done by one, if he be a contractor, is not predicated upon a condition that the injury be inflicted or damage done before the work undertaken is completed by him or accepted by the owner. We have been cited no authority contrary to these articles of the Code. To sustain defendant’s contention, in this regard, would be to give judicial recognition and sanction to a status of conditional liability, not only without statutory authority, but contrary to and in violation of positive laws appertaining to such actions.

Finally for consideration is the matter of insurance coverage. As the policy is not a statutory policy, the insurance liability is only such as is provided in the contract and in the endorsements attached thereto. Accordingly, the parties are at liberty to select the types of risks to be covered, the limits of liability and any other provisions not contrary to public policy.

Notwithstanding the general comprehensive coverage afforded during the term of one year specified in the policy, the insurer contends its liability does not extend to injuries sustained or damages inflicted after the performance of the contract and the acceptance of the work by the owner or contractee. The work performed in the instant case was accepted as complete by the Board of Aldermen as the governing authority of the municipality through a resolution adopted December 13, 1954. The explosion and fire in which plaintiff sustained injuries occurred January 27, 1955. This defense is based upon certain provisions, exclusions and exceptions provided in the policy and upon definitions defining those terms.

The policy provides that insurance is afforded only with respect to coverages as are indicated by specific premium charges in a table wherein the coverages, limits of liability and advance premiums are shown. Under coverage designated “A. Bodily Injury Liability”, limits of liability are given for each person and for each accident, but no amount being specified for "Aggregate Products”, a subdivision listed under the aforesaid general liability provision, but preceding those words are typed the words “Not Wanted”. Neither was any premium specified for that designated liability. Also, attached to the policy was an endorsement wherein an agreement was recited that the policy did not apply to the “Products Hazard” as defined in the policy. This term is defined as follows:

“(f) Products Hazard. The term ‘products hazard’ means
“(1) The handling or use of, the existence of any condition in or a warranty of goods or products manufactured, sold, handled or distributed by the Named Insured, other than equipment rented to or located for use of others but not sold, if the accident occurs after the Insured has relinquished possession thereof to others and away from premises owned, rented or controlled by the Insured or on premises for which the classification stated in Division (a) of the declarations or in the Company’s manual excludes any part of the foregoing;
“(2) operations, if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof and away from premises owned, rented or controlled by the Insured, except (a) pickup and delivery, (b) the existence of tools, uninstalled equipment and abandoned or unused materials and (c) operations for which the classification stated in Division (a) of the declarations or in the Company’s manual specifically includes completed operations; provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to a service or maintenance agreement.”

The first part of this definition is conceded to apply or refer to the warranty of goods or manufactured products, but it is argued that the second part of the definition has reference to contractors. We do not think the language of the contract and the endorsements and documents attached thereto warrant the conclusion urged as to this part of the definition; at least, the language used leaves the meaning vague, obscure and indefinite and it cannot be said, on this score, the policy is free from ambiguity.

We shall now endeavor to point up some of the reasons for the conclusion reached. In the first place, we have searched in vain for a definition of the term “Aggregate Products” Liability, which would appear to have been excluded on the face of the policy where the coverages are designated by inserting the amount of premiums therefor. We infer from counsel’s approach of the matter that possibly “Aggregate Products” Liability and “Products Hazard” are one and the same thing. We find nothing in the policy or the endorsements thereon that would support this contention or justify such a conclusion.

Moreover, in the Schedule of Declarations attached to the policy, under section (d) “Products (Including Completed Operations)”, upon which defendant insurer relies under the endorsement typed therein “Not Wanted”, we find in the column headed “Premium Bases” the word “sales”, and under the following column for “Rates” for coverages “A” and “B”, which are, respectively, bodily injury and property damage liabilities provided in the policy, these words “Per $1,000 of Sales”. That indicates, without serious room for doubt, the language refers to sales of products, goods, wares or merchandise as by a manufacturer or producer as the premiums are scheduled on the amount of sales.

The aforesaid section of the Schedule of Declarations contains the notation “See Endorsement C & L 928-B”, the pertinent part of which reads as follows:

“It is agreed that the policy does not apply
“1. To the products hazard as defined in the policy;
“2. To a warranty' of goods or products within the policy definition of the word ‘contract’ if the accident occurs after the Insured has relinquished possession thereof to others and
“(a) away from premises owned, rented or controlled by the Insured, or
“(b) on such premises for which the classification stated in division (a) of the declarations or in the Company’s manual excludes any part of such products hazard.”

In all probability, from a fair interpretation of the exclusion just referred to, the endorsement pertains to and excludes injuries arising out of the handling or use of products, goods, wares, or merchandise sold or rented if the insured has relinquished possession thereof to others and away from’ the premises owned, rented or controlled by the insured or on the premises for which the classification stated in Division (a) of the declaration excludes “any part of the foregoing”, which could only mean the handling of goods or products of some kind.

The defendant Mason handled no products, meaning “goods or products” manufactured, sold or distributed. He, therefore, did not want or need the coverage. The reference to the accident occurring after the operations have been completed and abandoned at or away from premises owned, rented or controlled by the insured means nothing more than the accidents occurring by reason of handling of products or goods, after any agreement to sell, rent or deliver the goods has been completed or the goods have been abandoned.

Nowhere does it appear that any of these exclusions or refers to contractors tractors who have had no products for sale but have performed a contract for the installation of a public utility or even the erection of any structure, public or private. We are confirmed in this conclusion by the type of exclusion used by this insurer and .as formed the basis of its defense in the case entitled Smith v. United States Fidelity & Guaranty Co., 1942, 142 Neb. 321, 6 N.W.2d 81, where it was relieved of liability. The endorsement, so far as pertinent, read as follows:

“This policy shall not cover loss from liability for, or any suit based on, injuries or death: * * * (4) Caused by accidents occurring after the final completion of the work performed by the Assured at the place of occurrence of such accidents”

That was a completed operations •exclusion appropriate where a work contract was involved. There was nothing vague or ambiguous about that clause. It was the duty of the defendant insurer to express clearly the limitation of its obligation. This we do not deem, under the evidence, it has done in the policy here involved.

A review of the rules for the interpretation of insurance contracts was made in Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111, 113, wherein it was stated:

“An insurance policy is a contract under the law and the rules established by our LSA-Civil Code for the interpretation of agreements are applicable. See Article 1945 et seq. Accordingly, if the words of the policy are clear and express the intent of the parties, the agreement is to be enforced as written. LSA-Civil Code Articles 1901 and 1945. But, if there is any ambiguity or doubt, the court must endeavor to ascertain the common intention of the parties by reference to other phrases or words of the agreement or by other similar contracts of the parties, Articles 1948, 1949 and 1950, LSA-Civil Code, bearing in mind that, if a clause or word is susceptible of more than one interpretation, it is to be understood in the sense that would make the obligation effective, Article 1951, LSA-Civil Code, and, additionally that doubtful language is to be construed against him who has contracted the obligation. Article 1957, LSA-Civil Code. Our law, therefore, conformable with the universal rule applicable to contracts of insurance, is that all .ambiguities must be construed in favor of the insured and against the insurer. See Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72, 125 A.L.R. 1075; Hemel v. State Farm Mut. Auto Ins. Co., 211 La. 95, 29 So.2d 483; Stanley v. Cryer Drilling Co., 213 La. 980, 36 So.2d 9 and Oil Well Supply Co. v. New York Life Ins. Co., 214 La. 772, 38 So.2d 777.”

See also Barnard v. Houston Fire & Cas. Ins. Co., 81 So.2d 132.

In final conclusion, if it could not be positively asserted, the exclusions in the policy and the endorsements attached thereto in the instant case were without reference to a contractor, then, of a certainty, they are vague and indefinite and ambiguous, and under the well settled jurisprudence must be construed against the insurer. Albritton v. Fireman’s Fund Ins. Co., supra; Aschenbrenner v. U. S. Fidelity & Guaranty Co., 292 U.S. 80, 54 S.Ct. 590, 78 L.Ed. 1137; Liverpool & London & Globe Ins. Co. v. Kearney, 180 U.S. 132, 21 S.Ct. 326, 45 L.Ed. 460; First Nat. Bank of Kansas City, Mo. v. Hartford Fire Ins. Co., 95 U.S. 673, 24 L.Ed. 563.

The defendant insurer cites in support of its defense New Amsterdam Cas. Co. v. Ellzey, 5 Cir., 240 F.2d 618, which was by an insured to recover an amount expended in settlement of a personal injury claim arising out of the sale and installation of an electric window fan in the home of a Mrs. Katz. The fan itself was not defective but it was installed with the guard facing a back porch, leaving no guard or protection from the side facing or protruding into the bedroom. Later in the day, after the fan was installed, Mrs. Katz was injured severely when her hands came in contact with the blades of the fan. The accident occurred after the delivery and installation had been completed. Under an endorsement excluding “products hazard” liability, as defined in the policy in the language used in the instant case, recovery was denied by the Fifth Circuit Court of Appeal. The court held the endorsement applicable. The endorsement applied to the sale and handling of products, that is, goods, wares and merchandise under circumstances detailed in the definition of the term “products hazard” as given in the policy.

The authority cited is clearly inapplicable to the situation here. As pointed out heretofore, Mason handled no products. Such was the subject matter of the liability exclusion provisions of the policy, but since Mason was not engaged in such a business, but solely as a contractor, the provision had no application to him or his construction work.

Defendant Mason cited the case of Warner v. DeBritton, La.App., 151 So. 239, and complains of our failure to accord it consideration in our original opinion. The defendant DeBritton contracted to dig a canal which crossed a public highway. After the canal was dug, the police jury began the construction of a bridge across it. It was evident that the incompleted bridge and not the canal constituted the obstruction in the highway, the duty of guarding which devolved upon the police jury. We find nothing there which would, in any way, alter the conclusions reached in this case.

For the reasons assigned our original decree is reinstated and made the final judgment of this court.

Judgment reinstated.


author: JANVIER, Judge.

text:
    Nicholas S. THOMAS v. SOUTHDOWN SUGARS, Inc. and Heirs of Jean M. Fulton.
    No. 20926.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    Rehearing Denied June 24, 1957.

      Phelps, Dunbar, Marks, Claverie & Sims •and J. Barnwell Phelps, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent & Denegre and Michael J. Molony, Jr., New Orleans, for defendant, Southdown Sugars, Inc.
    L. J. Fourcade, New Orleans, for Absent heirs, defendants-appellees.
   JANVIER, Judge.

This suit was originally brought by 'Nicholas S. Thomas against Southdown Sugars, Inc., in an effort to compel the said corporation to transfer to him the shares of stock (originally 734) represented by Certificate Number 2211 of Realty Operators, Inc., of which Southdown Sugars, Inc., is the successor and which had been issued to (Mrs.) Jean M. Fulton and which certificate was in the possession of the said Thomas and was alleged to be owned by him.

During the progress of the proceeding Thomas died and J. Barnwell Phelps, as Administrator of his succession, has been substituted as party plaintiff.

There was judgment in favor of plaintiff •ordering the defendant corporation to transfer the stock to the Administrator of the Succession of Thomas and the corporation appealed to the Supreme Court. The Supreme Court transferred the matter to us, finding that in the record, as it appeared when the appeal was lodged, there was nothing to show that the value of the stock sought to be transferred exceeded $2,000.00. Thomas v. Southdown Sugars, Inc., 231 La. 75, 90 So.2d 682.

Because the certificate in question stands in the name of Jean M. Fulton, an absentee who has died, a curator ad hoc, Lucien J. Fourcade, was appointed to represent her heirs.

Southdown Sugars, Inc., which is the present name of the corporation originally known as Realty Operators, Inc., takes the position that it is perfectly willing to transfer the stock to the proper owner of the said certificate but that it cannot make the transfer to Thomas or to the Administrator of his succession because the certificate which stands in the name of Jean M. Fulton is not endorsed and there is presented with it no power of attorney authorizing the transfer to the holder of the certificate.

Most of the facts are not in dispute. On May 6th, 1930, Realty Operators, Inc., issued the certificate in question to Jean M. Fulton. On December 22, 1933, Jean M. Fulton, for income tax reasons and acting on advice of her attorneys, sold the said certificate with other securities at public auction. The auctioneer was Adrian H. Muller & Son and the price paid for this certificate and other securities was $1.00.

Later a blank proxy was sent to Mrs. Fulton by Realty Operators, Inc., and she, was asked to sign this proxy so that her stock might be voted at a stockholders meeting. She returned the said proxy with a letter in which she stated that she no longer owned the said stock having sold “the 734 shares * * * at public auction through Adrian H. Muller & Son * * * The attorneys who advised Mrs. Fulton to make the sale were Milbank, Tweed, Hope & Hadley of 15 Broad Street, New York City, and a member of that firm, in answer to interrogatories stated that from the records of that firm when the certificate representing the 734 shares of stock was sent to the auctioneer for sale “said certificate was accompanied by stock power with the signature of Mrs. Fulton guaranteed.” What is meant by “stock power” is a blank power of attorney authorizing the transfer of the stock to the person who might purchase it.

The record of the auctioneer showed that the sale was made to S. Gottlieb of Mansfield Hall Hotel, 226 West 50th Street, New York City, and in answer to an inquiry as to whether the records of the auctioneer indicated that there was attached to the certificate a power of attorney authorizing its transfer, the auctioneer advised that their records did “not indicate that a stock power of attorney was attached to the certificate.” We do not interpret this to be an affirmative statement that there was no such power of attorney attached but merely that the records of the auctioneer did not indicate one way or the other whether there was or was not such a power of attorney with the certificate.

Thomas himself testified that S. Gottlieb was his agent and had purchased the stock for him, and that he, Thomas, had himself paid $1.00 which was the purchase price of this certificate and the other securities. When asked whether there was originally attached to the certificate which he received and which has been in his possession ever since a power of attorney to transfer the stock, he first answered “yes” but then added : “My recollection is not clear on the matter,” and when asked: “What became of the said stock power of attorney?” he answered: “The said stock power of attorney has been detached and I cannot locate the same.” On cross-examination he was asked: “Do you distinctly remember the stock power of attorney endorsed in blank by Jean M. Fulton?” and he answered: “No, I have no distinct recollection, but I understand that the files of Milbank, Tweed, & Hadley indicate that a power of attorney was attached.”

As already stated, the defendant corporation takes the position that it is perfectly willing to transfer the stock to the proper owner, but that it cannot do so because there is no power of attorney authorizing the transfer and because there is evidence in the record to the effect that the actual purchaser of the certificate at the auctioneer’s sale on December 22, 1933, was S. Gottlieb and that there is nothing except the testimony of Thomas himself to indicate that Gottlieb acted as his agent in purchasing the stock.

The defendant corporation makes two contentions: (1) That since there is involved property of a value in excess of $500.00 — (it appears by stipulation of counsel that the stock represented by the certificate, together with accumulated dividends, is worth many thousands of dollars) — ownership thereof may not be proven except by the testimony of at least one credible witness and other corroborative circumstances. This contention is based upon Article 2277 of the LSA-Civil Code which reads as follows:

“all agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

(2) It is contended that this being a certificate of corporate stock, no transfer thereof may be made except in accordance with the requirements of LSA-R.S. 12:524, which reads as follows:

“§ 524. How title to certificates and shares may be transferred
“A. Title to a certificate and to the shares represented thereby can be transferred only:
“(1) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or
“(2) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares repre-scnted thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby.”

In spite of the provisions of the stock transfer statute to the effect that title to a stock certificate may be transferred only by the delivery of the endorsed certificate or by the delivery of the certificate with “a separate document containing a written assignment * * * or power of attorney * * it is necessarily apparent that there may be circumstances under which stock may be transferred even where there is neither endorsement nor what is referred to as a blank stock power.

Let us assume that an owner of stock should agree to sell it and should deliver an unendorsed certificate with the understanding that later he would execute the necessary power of attorney and that he should then refuse to do so. Surely the stock could be transferred by order of Court. In State ex rel. Johnson v. Keystone Life Insurance Company, La.App., 93 So.2d 565, 572, we quoted from LSA-R.S. 12:-532 a provision to the effect that

“The delivery of a certificate by the person appearing by the certificate to be the owner thereof without the in-dorsement requisite for the transfer of the certificate and the shares represented thereby, but with intent to transfer such certificate or shares shall impose an obligation, in the absence of an agreement to the contrary, upon the person so delivering, to complete the transfer by making the necessary in-dorsement. The transfer shall take effect as of the time when the indorsement is actually made.
“This obligation may be specifically enforced.”

The statement that such an obligation may be specifically enforced simply means that if the holder of the stock should refuse to endorse it and should refuse to execute the necessary power of attorney, a judgment of court would have the same effect. Furthermore, surely, it would not be held that if a power of attorney should be lost, under no circumstances could the stock be transferred. If so the stock would be taken out of commerce.

Our conclusion is that, on submission of proper proof, even where a power of attorney is not presented, the transfer may be ordered.

When we come to consider what is proper proof, we find that the contention of the defendant corporation is based on Article 2277 of our LSA-Civil Code, already quoted, under which the evidence required is that of one credible witness and other corroborative circumstances.

Counsel for defendant corporation say that, since the value of the stock is in excess of $500.00, such proof is necessary and they cite Hannay v. New Orleans Cotton Exchange, 112 La. 998, 36 So. 831, the facts of which to some slight extent resemble those presented here.

In answer to this contention counsel for plaintiff assert that the so-called $500.00 rule is not applicable here for the reason that, at the time of the creation of the agency under which Gottlieb made the purchase for account of Thomas, the stock was worth considerably less than $500.00, having been bought, together with other securities, for One Dollar.

The question of how much evidence is necessary should be determined as of the time of the trial of the case and not as of the time 27 years ago when the stock was bought.

Whether or not the so-called $500.00 rule of Civil Code Article 2277 is applicable, where the transfer of stock is involved, is an interesting one.

As already shown, it is provided by LSA-R.S. 12:532 that the mere delivery of a certificate “without the indorsement requisite * * * but with intent to transfer said certificate or shares shall impose an obligation * * * to complete the transfer.” Whether this means that the mere delivery, if proven, is sufficient to prove ownership, we find it unnecessary to determine because we think that here the plaintiff has proven not only the delivery but also the corroborating circumstance as required by Civil Code Article 2277.

The testimony of Thomas himself, uncon-tradicted and unquestioned, is to the effect that not only was the stock bought for him by Gottlieb, but that he has been in actual, physical possession of the certificate ever since its purchase — in other words, for a period at this time of more than 25 years.

We can think of no more conclusive corroborating circumstance than the actual possession of the certificate for that length of time.

In the Hannay case on which counsel for defendants rely, the circumstances were considerably different. There there was considerable question as to whether the stock which was held by Simpson Brothers, the certificate being in the name of Robert W. Simpson, actually belonged to Hannay or to Kelly and Company, which firm it was contended owned it and had ordered it transferred to Hannay. But the most significant difference is that there, the stock certificate was actually in the possession of Simpson Brothers and the certificate itself showed that the stock stood in the name of Robert W. Simpson and was not and had never been in the possession of the plaintiff.

Counsel for defendant place great reliance on the doctrine of laches, and say that the length of time which Thomas permitted to elapse between the time of his purchase and the assertion of his claim of ownership indicates strongly that, as a matter of fact, he was not the owner of the certificate. We. think the doctrine works rather strongly the other way. The only evidence in this record to the effect that Gottlieb has any interest in the stock is the statement of the auctioneer that Gottlieb was the purchaser at the sale. If Gottlieb was the purchaser for himself and if he had any interest whatever in the certificate, surely he would not have delivered it to Thomas in the first place and would not have permitted it to remain in Thomas’ possession for a quarter of a century.

It is easy to understand why Thomas made no attempt to have the stock transferred until many years after he obtained it. He had bought it for a dollar and very obviously had never learned of the tremendous increase in its value which had not begun to take place for many years.

Why counsel for plaintiff did not provoke the appointment of a curator ad hoc to represent the absent Gottlieb is not shown, but we feel that even without such a representative of Gottlieb, it is shown that the stock belonged to Thomas, and our conclusion is that the affirmation of the judgment ordering its transfer will afford ample protection to the defendant corporation.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: TATE, Judge.

text:
    Hampton WADE, Plaintiff-Appellant, v. CALCASIEU PAPER COMPANY, Inc., Defendant-Appellee.
    No. 4427.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.

      Julius T. Long, Shreveport, for appellant.
    Plauche & Plauche, Lake Charles, for appellee.
   TATE, Judge.

Reversing this court, the Supreme Court remanded this case (in which previously we had affirmed a finding of no disability, 82 So.2d 117) in order to have evidence taken of the findings of neurologists or neurosurgeons. 229 La. 702, 709, 86 So.2d 540.

Such testimony was produced on the remand. It shows that plaintiff had been and is disabled as a result of the industrial accident for which* compensation was sought. The defendant does not appeal from the lower court’s judgment awarding plaintiff compensation for total and permanent disability.

Plaintiff, however, devolutively appeals from the award below insofar as it ordered him to accept medical treatment (including hospitalization and physiotheraphy) from physicians of defendanfs (rather than plaintiff’s) selection, at defendant’s expense; within thirty days from the date of the decree below (i.e., January 14, 1957) (rather than from the date of finality thereof after appeal). Plaintiff further prays by his appeal that the fees for testifying allowed to certain medical expert witnesses be increased.

Defendant’s primary defense was that plaintiff was not disabled, which was not abandoned until after the trial court judgment in favor of plaintiff after the second trial on the remand.

However, after plaintiff was examined by a neurosurgical specialist on behalf of defendant, defendant filed an amended and supplemental answer still denying disability, but tendering medical treatment in the alternative (should the District Court find disability). The alternative prayer was that the District Court condition plaintiff’s right to future compensation, upon defendant’s tender of such treatment “within thirty (30) days after such decree in favor of plaintiff becomes final”, to plaintiff’s acceptance of such treatment if tendered. Plaintiff’s rights to further compensation payments were to be terminated automatically by plaintiff’s refusal to accept the medical treatment (if) tendered.

Plaintiff first urges that the remand by the Supreme Court was limited to the purpose of obtaining the testimony of neurosurgeons and did not include any authority to defendant to file an amended answer changing the issues. However, this argument overlooks the statutory provision that in compensation suits “the court may in its discretion * * * allow amendments of the petition and answer at any stage of the proceedings”, LSA-R.S. 23:-1315; Osborne v. McWilliams Dredging Co., 189 La. 670, 180 So. 481, “even in the Supreme Court”, Mitchell v. Sklar, La.App., 196 So. 392, 394. See Tate v. Gullett Gin Co., La.App. 1 Cir., 86 So.2d 698.

Plaintiff next attacks the power given the defendant to terminate compensation payments to an admittedly disabled employee, automatically upon the employee’s non-acceptance of such medical treatment at such place and by such physician as the defendant might see fit to tender. Plaintiff argues that the decree gives the defendant the power to terminate compensation payments if the disabled plaintiff-employee refuses to accept medical treatments offered, for instance, in San Francisco or Australia, or the treatments tendered became so painful that the employee did not wish to continue same, without the admittedly disabled employee having the opportunity to secure a court’s determination as to the reasonableness of his refusal to accept the type or place of treatment tendered.

In the past few years there has been a great increase in litigation concerning the courts’ equitable power to order compensation withheld when a disabled employee refuses to undergo medical treatment or surgical procedures tendered by an employer. As we recently summarized in Borders v. Lumbermens Mutual Cas. Co., La.App., 90 So.2d 409, no court has the power to order an injured claimant to submit to an operation or to medical treatment which may end his disability: it only has the power to order compensation payments withheld when an employee "unreasonably revises” to submit to such operation or treatment, on the theory that the continuation of disability results, not from the initial accident, but from the continued refusal to accept curative treatment after a judicial finding that the refusal is unreasonable. See Duplechien v. States Exploration Co., La.App. 1 Cir., 94 So.2d 460.

The present issue — that the disabled employee’s right to future compensation should not be conditioned upon his acceptance of a possible tender of medical treatment or surgery by the employer, the terms or type of which to be within the unlimited discretion of the latter without judicial ascertainment whether the employee’s unwillingness to accept same is or is not reasonable — was not raised in any of the cases cited to us. In such cited cases, the plaintiffs were willing to accept the judgment conditioning their right to future compensation upon the medical treatment alternatively offered.

But we find that our brethren of the Second Circuit in Benefield v. Zach Brooks Drilling Co., 59 So.2d 710, anticipated this question when, similarly, defendant relied upon its alternative prayer for relief before that Court, no longer (as it had before the trial court judgment) questioning plaintiff’s total disability. That Court stated through Judge Hardy, at 59 So.2d 711:

“The proposition of submission to a surgical operation [or to medical treatment] is one which must in the initial instance be determined by the employee, that is, he has the option of submitting or of refusing to submit, to the tendered operation. It is only in the event of the refusal of an employee to submit to a tender of surgical procedure that the matter becomes a question of judicial concern, and there then devolves upon the Court the responsibility for its determination. The Court, in the light of the facts and and circumstances of each particular case, must decide whether the refusal of the employee has been arbitrary or reasonable(Italics ours.)

From the present record, although there is a copy of a letter from defendant’s counsel attached to plaintiff’s motion for devolutive appeal, there is no evidence of an actual offer of specific treatment, nor of an unreasonable refusal to accept same after a judicial determination that such tendered treatment is reasonably required under the circumstances.

“The question when compensation should be suspended because claimant refuses to submit to reasonable treatment or surgery is one of the most delicate medico-legal issues in the entire realm of workmen’s compensation”, Larson, Workmen’s Compensation Law, 189, Section 1322. The drastic remedy of terminating an admittedly disabled employees’ rights to any further compensation should not depend upon his refusal to accept treatment tendered, without judicial inquiry as to his reasons for such refusal and judicial determination that such refusal is so unreasonable as to justify this drastic penalty.

We have reached these conclusions only after a full consideration of the difficulties attendant upon so wording a general decree as to prevent impositions by either party and to preserve to both parties their legal right of review of the questions involved. The real issue is whether the employer should be given the right to terminate payments of compensation to a disabled employee upon the employee’s unreasonable refusal to accept medical treatment tendered; and we find it impossible to rule in the abstract so as to cover offers and refusals which may never take place, without specific evidence as to any offer and the reasons for its refusal.

It should be added that this “most delicate” field is best administered by cooperation between the parties themselves, for both plaintiff and defendant and their counsel should have the same interest— the quickest possible recovery of the injured workingman, with the most efficient possible use of the medical expense available. As we stated in Ebarb v. Southern Industries Co., 78 So.2d 553, the employer, with the primary duty to furnish medical services, LSA-R.S. 23:1203, has the primary right to suggest the doctors to render the medical treatment tendered. But it is to be supposed that ordinarily an employer will not arbitrarily • offer, without consultation as to the employee’s wishes, treatment by a physician or upon dates or at an inconvenience completely unacceptable to the disabled employee; it is likewise to be supposed that ordinarily the employee will not refuse treatment by a competent doctor when no unusual inconvenience or hardship is involved, thus causing delays in his recovery through the consequent pendency of judicial proceedings.

In the present instance, the plaintiff has not had an opportunity to prove that his refusal to submit to any treatment tendered is reasonably based.

The decree herein will therefore be amended so as to give the defendant employer the right to reopen the proceedings below, upon plaintiff’s refusal of a tender of medical treatment, in order to show that the refusal was unreasonable so as to entitle defendant to an order conditioning plaintiff’s right to receive further compensation upon the submission to the medical treatment specifically tendered. Although the courts are under no mandatory duty to reopen the decree sooner than six months after date thereof, LSA-R.S. 23:1331, they have the discretionary power in exceptional circumstances to permit the reopening earlier than that period, Rogers v. Thermatomic Carbon Co., 157 La. 193, at page 198, 102 So. 304; Newman v. Zurich General Accident & Liability Ins. Co., La.App. 1 Cir., 87 So.2d 230, which we shall exercise in this instance.

Plaintiff-appellant likewise requests by his appeal that we increase the expert witness fees of $50 each allowed to Dr. Sutton, neurological specialist who testified by deposition, and to Dr. Reid, general practitioner, who testified in person.

We are unable to say that the discretion of the District Court in fixing such fees should be disturbed in these instances. See Fee v. Calcasieu Paper Co., La.App. 1 Cir., 89 So.2d 434. While for instance it might be inferred that Dr. Reid, who practiced in DeRidder, lost a greater amount of time by coming to Oberlin to serve the court as expert witness than would have a local physician, and if taken from time which would have been devoted to the treatment of patients that consequently he was entitled to a greater witness fee (see LSA-R.S. 13:3666, stating that the “value of the time employed” should be considered in fixing the expert’s fee); nevertheless the record does not reflect a factual foundation for this inference so as to require a finding that the District Court abused its discretion in limiting the expert’s fee to $50.

For the above and foregoing reasons :

The judgment of the District Court is affirmed in its award and in all respects, except that it amended to substitute for the clause conditioning plaintiff’s right to receive further compensation payments upon his submission to such medical treatment as defendant might tender, the following clause instead:

If defendant tenders to plaintiff medi-cial treatment as recommended by the specialists herein within thirty days after finality of this decree, or within thirty days of rendition of same if no further appellate proceedings are sought by either party; defendant is reserved the right, at any time after plaintiff’s refusal to accept or to submit to same, to reopen these proceedings to show cause why the District Court should not issue an order conditioning plaintiff’s right to further compensation upon his acceptance of such reasonable medical treatment and within such period as the court may determine, after a hearing to determine whether the plaintiff’s refusal is unreasonable under the circumstances.

Amended; and as amended, affirmed.

      . This letter offers hospitalization and treatment in Houston, Texas under the specialist who testified on behalf of defendant herein.

      . Although when surgery is required, the injured employee is customarily given the right to select the operating physician, since confidence is so important to the success of the surgery, and to mitigate possible deleterious effects inherent in surgery, see, e. g., Duplechien v. States Exploration Co., La.App. 1 Cir., 94 So.2d 460.