author: FRUGÉ, Judge. HOOD, Judge

text:
    Rosalie SPAIN and Preston Broussard, Plaintiffs-Appellees, v. TRAVELERS INDEMNITY COMPANY and Interstate Fire and Casualty Company, Defendants-Appellants.
    No. 4989.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 2, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Granted Dec. 19, 1975.

      Montgomery, Barnett, Brown & Read by Wood Brown, III, New Orleans, and Davidson, Meaux, Onebane & Donohoe by Robert Mahony, Lafayette, for defendants-appellants.
    Roger C. Edwards, Abbeville, for plaintiffs-appellees.
    Before FRUGÉ, HOOD and WATSON, JJ.
   FRUGÉ, Judge.

Rosalie Spain (Mrs. Preston Broussard) and Preston Broussard have sued for damages for personal injuries sustained by Mrs. Broussard when an automobile in which she was riding as a guest passenger collided with another vehicle. The defendants are Travelers Indemnity Company and Interstate Fire and Casualty Company, the primary and excess liability insurers, respectively, of the driver of the automobile in which Mrs. Broussard was riding. The trial court rendered judgment for plaintiffs, and defendants have appealed. We affirm.

The accident occurred about 3:30 P.M. on March 11, 1971, near the intersection of Johnston Street and South College Road, in Lafayette. Mrs. Broussard was riding as a passenger in the right front seat of an automobile which was owned and being driven by Mr. J. E. Kibbe, an attorney in Abbeville. While Mr. Kibbe was driving his automobile south on Johnston Street, the front of his car collided with the rear of another vehicle in his lane of traffic. Mrs. Broussard allegedly sustained injuries as a result of that collision. All parties agree that Mr. Kibbe was negligent in the operation of his automobile and that his negligence caused the accident.

Mrs. Broussard was employed by and was working as a legal secretary for Mr. Kibbe at the time the accident occurred. One of the duties of her employment was to prepare estate tax returns, when such returns were necessary, in matters which were being handled by her employer. She had worked for Mr. Kibbe for several years, and she customarily worked from 8:30 A.M. to 4:00 or 4:30 P.M. every day.

On March 11, 1971, Mrs. Broussard was engaged in preparing a Federal Estate Tax Return involving some land in Georgia, and she and Mr. Kibbe felt that it was advisable for them to discuss the matter with a representative of the Internal Revenue Service in Lafayette. Mr. Kibbe drove from Abbeville to Lafayette after lunch on the date in question to talk with Mr. Perry Willis, an agent of the Internal Revenue Service about the estate tax return.

After completing their conference with Mr. Willis relative to the tax matter, Mrs. Broussard and Mr. Kibbe visited socially for about a half hour with one of Mr. Kibbe’s personal friends who had an office in the same building, and they then returned to Mr. Kibbe’s car and started the return trip to Abbeville. After traveling a few blocks, Mr. Kibbe stopped at a bakery to buy some pastries, and they then resumed the trip to Abbeville, with Mr. Kibbe driving and Mrs. Broussard sitting in the right front seat of the car. They were traveling south on Johnston Street, which is the main thoroughfare from Lafayette to Abbeville, when the accident occurred. Mr. Kibbe reached for one of the pastry products he had purchased, and as he did so the front of the car struck the rear of the car ahead of him.

At the time of the accident there were in effect two automobile liability insurance policies which had been issued to Mr. Kibbe covering the automobile he was driving. One was issued by Travelers, and it provided for a limit of liability of $5,000 for bodily injury sustained by one person. The other was issued by Interstate, and it provided only excess insurance coverage up to a maximum limit of $95,000 for bodily injury for each person.

Plaintiffs instituted suit for damages against both of these insurers, and the defendants resisted primarily on the ground that each policy specifically excluded coverage under the circumstances presented here.

Part I of the policy issued by Travelers, relating to bodily and property damage liability, contains the following exclusionary clauses:

“This policy does not apply under Part I: . . .
“(e) to bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured; . . . . ”

Defendant Interstate issued only an excess liability policy to Mr. Kibbe covering the automobile which was involved in the accident. Part I of that policy, under the heading “Excess Liability Indemnity,” stipulated that “The provisions of the immediate underlying policy are incorporated as a part of this policy . . . .” The exclusions contained in the Travelers policy thus apply to the policy by Interstate.

The trial judge found that Mrs. Brous-sard was not in the “domestic employment” of Mr. Kibbe, but that she was engaged in “other employment by the insured,” as that term is used in Exclusion (e)(2) of the Travelers policy. He concluded, however, that she was not excluded from coverage under the policies because (1) benefits were not payable to her under the workmen’s compensation law, and (2) her injuries did not arise out of the course of her employment.

In holding that injuries arising out of “other employment” are not excluded from coverage unless benefits are payable to the injured employee under the workmen’s compensation law, the trial judge said:

“. . . I read the exclusion to mean that domestic employees are excluded if ‘benefits therefor are in whole or in part either payable or required to be provided under any Workmen’s Compensation law’ or benefits payable or provided under Workmen’s Compensation law for injury in the course and scope of other employment by the insured. In other words, it excludes domestic employees where Workmen’s Compensation is paid or other employment where Workmen’s Compensation is paid . . . . ”

The defendants argue on appeal that the trial judge was in error in holding that the exclusion is not applicable unless benefits are payable or provided under the workmen’s compensation law for the injuries sustained by the employee. Alternatively, they argue that under the facts presented Mrs. Broussard is entitled to workmen’s compensation benefits, and that, therefore, the exclusion applies under the trial judge’s interpretation of the exclusion.

After a careful reading of the record in this case and review of the applicable law, we find that the exclusion in question is ambiguous. Under our jurisprudence, therefore, it must be construed against the insurers, and we find coverage for the injuries sustained by Mrs. Broussard. A discussion of whether Mrs. Broussard was acting within the course and scope of her employment is unnecessary in view of our conclusion as to the ambiguity of the exclusionary clause contained in the Travelers policy.

A reading of the exclusionary provisions of the policy issued by Travelers on which the defendants rely shows the ambiguity which generated this litigation. It is unclear whether the language in the exclusion with respect to workmen’s compensation applies to domestic employees alone or to all employees. Nor does it make clear whether the employment which activates the exclusionary clause must involve the principal occupation of the insured, or simply any situation where an employment relationship is created between the insured and the injured party.

It is the duty of the insurer to express clearly limitations of its obligation. Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958). Any doubt concerning the limitations on and exclusions from coverage under an insurance policy must be construed against the insurer and in favor of the insured. Kendrick v. Mason, supra; Bubrig v. Phoenix of Hartford Insurance Company, 306 So.2d 60 (La.App. 4th Cir. 1974); Wilks v. Allstate Insurance Company, 195 So.2d 390 (La.App. 3rd Cir. 1967). Finding ambiguity in the exclusionary clause sought to be applied by the insurance companies in this case, we hold that the exclusionary clause does not apply under the facts presented herein. We find that the insurance policies issued by the defendants, Travelers and Interstate, provide coverage for the injuries sustained by Mrs. Broussard.

The defendants argue on appeal that the trial judge abused his discretion in awarding plaintiffs $100,000 for the damages they sustained as a result of the accident involved herein. Mrs. Broussard stated that her head struck the windshield during the collision. She had to undergo surgery which involved a fusion of two discs of the vertebrae and had to wear a back brace for approximately six months following the accident. In addition, she complained of pain in her right leg.

Dr. Hugh Larriviere, an orthopedic surgeon, testified at the trial and verified Mrs. Broussard’s complaints of pain in her right leg. He diagnosed the problem as sondylolisthesis. A laminectomy was performed which required that Mrs. Brous-sard remain under sedation and narcotics for several months. The doctor’s testimony indicated a 20% disability as a result of the accident.

Dr. John D. Jackson testified by way of deposition. He indicated that he first saw Mrs. Broussard in connection with the accident on April 14, 1971, at which time she related the occurrence of the accident to him. Dr. Jackson indicated that he had seen Mrs. Broussard in August of 1967, at which time she had a ruptured C-5-6 disc. At that time he had performed an anterior interbody fusion at the C-5-6 disc space. .He next saw her on January 21, 1971, at which time he felt that the left Achilles reflex was decreased, in addition to a decreased sensation over the lateral aspect of the left thigh, leg, and lateral foot. She was admitted to Ochsner Clinic where a lumbar myelogram was performed, and spondylolisthesis was confirmed.

The next time, Dr. Jackson saw Mrs. Broussard was on May 17, 1972, when she was complaining of back pain in the lower extremity. She complained that she was unable to walk on her right heel, and Dr. Jackson performed a neurological examination which included an X-ray examination. His examination indicated moderate limitation of movement of the lumbar spine in all directions. Dr. Jackson’s answer was in the affirmative when he was asked whether or not an accident of this sort would aggravate a condition of spondylol-isthesis. He further indicated that her complaints were consistent with this sort of injury. Under cross-examination Dr. Jackson indicated that she had a surgical problem in 1967, which he diagnosed as being a degenerative disc disease at C-5-6. This had been removed and fused, and he indicated that this area was not involved in the accident.

Dr. Irvin Cahen, an orthopedist, also testified by way of deposition. He was requested to see Mrs. Broussard in order to determine whether the treatment indicated by Dr. Jackson was in accordance with his opinion. He indicated that she was suffering from a spondylolisthesis and, perhaps, an intervention of a disc space. According to the testimony of Dr. Cahen, Dr. Jackson was contemplating an operation and wanted an opinion as to orthopedic background before nerve Surgery was performed. He indicated that he was later told by Dr. Jackson that he (Dr. Jackson) had decided on performing the nerve surgery, and he went ahead with this procedure. Dr. Cahen again saw the plaintiff in May of 1973 after the surgery had been performed. He said that she complained of some numbness in her right leg and foot. He saw her again in July of 1973, at which time he noticed a marked improvement in her general condition. When he next saw Mrs. Brous-sard, in May of 1974, she was complaining of a backache and numbness in her right leg. He made a clinical examination of Mrs. Broussard, and noted that there was a spasm in the lower lumbar region. He also noted a right curvature or listing of the vertebral column. His examination of X-rays revealed no disc involvement. However, he did state that upon an examination of the myelogram X-rays, he noticed a flattening of the nerve root sheath on the left side that would be possible evidence of an abnormality. After discussing all of the above, the trial judge concluded in his written reasons for judgment that there was no question but that Mrs. Brous-sard was entitled to damages for the suffering she had to endure as a result of the accident.

In order to reduce a damage award by the lower court, we must find an abuse of discretion on the part of the trial judge in making the award. Fox v. State Farm Mutual Automobile Insurance Co., 288 So. 2d 42 (La.1973). Finding no abuse of discretion in the present case, we will not disturb the award made by the trial judge.

The final issue with which we must deal on this appeal involves the limits of the insurance coverage provided by the policies issued to Mr. Kibbe. In his original judgment the trial judge awarded Mrs. Broussard $100,000 for the pain and suffering caused her as a result of the accident. Judgment was also rendered in favor of Mr. Broussard, her husband, for his medical expenses which amounted to $12,732.16. A motion for a new trial was subsequently filed by Travelers in which it was argued that any judgment against the defendants herein must be limited to an amount not exceeding the policy limits applicable, in this case $100,000. Following the granting of a new trial for argument on this point, the trial judge rendered a new judgment in favor of the plaintiffs and against Travelers in the amount of $5,000, together with legal interest thereon from the date of judicial demand and against Interstate in the amount of $95,000, together with legal interest thereon from the date of judicial demand.

The plaintiffs have answered the appeal and asked that the original judgment be reinstated. The plaintiffs argue that the original judgment did not exceed the policy limits herein applicable and argue that the case of Cotten v. Transamerica Insurance Company, 211 So.2d 110 (La.App. 1st Cir. 1968), supports their position in this matter. Our reading of the Cotten case indicates that the ruling by the court in that case has no application to the present factual situation. Tn that case the plaintiff was awarded damages for personal injuries in the amount of $6,750 and special damages in the amount of $3,383.40, for a total of $10,133.40. The defendant complained that the judgment was in excess of the policy limits, which provided liability coverage for personal injuries in the amount of $10,000. In affirming the judgment of the trial court, the court of appeal concluded that the judgment was not in excess of the policy limits since a portion of the special damages awarded was for property damage. The court pointed out that this amount was covered by the $5,000 policy limitation on property damage coverage. In the present case only the personal injury liability coverage is applicable. The maximum amount allowable under the policies issued by Travelers and Interstate was awarded. A judgment in excess of this amount would not be enforceable in full against these two insurers.

For the reasons assigned, the judgment of the trial court is affirmed at defendants-appellants’ cost.

Affirmed.

WATSON, J., concurs in the result.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I cannot agree with my colleagues in their conclusions as to coverage and as to quantum.

The exclusionary clause in question here is contained in Part I of the Travelers policy, relating to bodily injury and property damage liability. It reads:

“This policy does not apply under Part I: . . .
“(e) to bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured; . . . ”

In my opinion, the language used in that exclusionary clause is clear and unambiguous. It excludes coverage of bodily injury to an employee of the insured arising out of and in the course of (1) “domestic employment” by the insured, if benefits are payable to the injured employee under the workmen’s compensation law, or (2) any “other employment” by the insured (that is, any employment other than domestic), regardless of whether benefits are or are not payable under the workmen’s compensation law.

Exclusion (e) makes a distinction between “domestic employment” and “other employment.” It excludes coverage to a domestic employee only when that employee is entitled to benefits under the workmen’s compensation act. It excludes coverage to all other employees, however, regardless of their rights under the workmen’s compensation law. The interpretation given to Exclusion (e) by the trial court and by my colleagues makes no distinction between domestic and other employees. The majority opinion holds that no employee of the insured, domestic or otherwise, is excluded from coverage unless benefits are payable to them under the workmen’s compensation law.

Article 1951 of the Louisiana Civil Code, relating to the interpretation of agreements, provides that “When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory.”

The provisions of Exclusion (e) indicate clearly that a different rule is to be applied in determining coverage of injuries sustained by domestic employees than is applied in determining coverage of injuries sustained by other employees. I do not believe that Exclusion (e) is susceptible of two interpretations, but even u it should be, Article 1951 of the Civil Code requires that it be construed in a way which will give all of its provisions some effect. The majority has failed to do that.

Under my interpretation of this exclusionary clause, it is necessary to determine whether Mrs. Broussard’s injuries arose out of and in the course of her employment. Defendants contend that they did. Plaintiffs contend that she completed all of the duties of her employment for that day when her conference with the Internal Revenue Agent was completed, and that she was not acting in the course of her employment when the accident occurred later that afternoon.

An exclusionary clause similar to the one involved here was considered by our Supreme Court in Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970). The court held there that the test to be applied in determining whether the employee’s injuries were sustained in the course of his employment, within the terms of the insurance policy’s exclusionary clause, is the same test which is applied in determining whether the employee was injured in the course of his employment so as to entitle him to workmen’s compensation benefits. In so holding, the court said:

“. . . And if plaintiff’s actions were of such nature as to be within the course of his employment so as to entitle him to workmen’s compensation benefits from his and his co-employee’s employer then he should be held to be within the course and scope of his employment within the terms of the insurance policy’s exclusion clause. Consequently, resort must be had to the cases dealing with compensation claims to determine whether the plaintiff was in the course of his employment

In workmen’s compensation cases, injuries will be held to have arisen “out of and in the course of” the employment when they result from some risk to which the employee is subjected in performing the duties of his employment and to which he would not have been subjected had he not been so employed. The time, place and circumstances of the occurrence of the injuries determines whether they arose out of and in the course of the employment. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256 (1917); Lisonbee v. Chicago Mill and Lumber Co., 278 So.2d 5 (La.1973); Constant v. State, 272 So.2d 675 (La.1973); Gardner v. Industrial Indemnity Co., 212 So.2d 452 (La. App. 1 Cir. 1968) ; Jagneaux v. American Automobile Insurance Co., 136 So.2d 91 (La.App. 3 Cir. 1962); Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La.App. 3 Cir. 1970).

The above rule applies in determining whether Mrs. Broussard sustained injuries “arising out of and in the course of” her employment, as that term is used in Exclusion (e) of the Travelers policy.

Applying these rules to the facts in this case, it seems clear to me that Mrs. Brous-sard was in the course of her employment at the time her injuries were sustained. Her claim, therefore, is for bodily injury “arising out of and in the course of other employment by the insured,” as those terms are used in Exclusion (e) of Part I of the Travelers policy. I think her injuries clearly are excluded from coverage.

In my opinion the majority has erred in holding that the exclusionary clause is ambiguous and that it does not exclude coverage in this case.

I also feel that the award of general damages made by the trial court is excessive, in that it is out of line with other awards made in similar cases.

For these reasons T respectfully dissent.

      . These reasons were assigned by the trial judge in denying motions for summary judgment filed by the defendants.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    OIL PURCHASERS, INC., Plaintiff, v. W. J. KUEHLING et al., Defendants.
    No. 5112.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov, 13, 1975.
    Writ Granted Jan. 9, 1970.

      Robert M. Cordell and Charles Wooten, Lafayette, for plaintiff-appellant.
    James R. Murrell, III, New Orleans, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a concursus proceeding invoked by Oil Purchasers, Inc. to determine the ownership of certain oil royalties deposited in the registry of the court. During the course of the litigation, the heirs of one of the cited claimants, Albert J. Lequeux, filed a rule seeking to rescind and cancel from the record the contingent fee contract their father had entered into with attorney Edward F. LeBlanc, due to Mr. LeBlanc’s death. Alternatively, they prayed that the fee be awarded only in quantum meruit for the work performed by Mr. LeBlanc before his death. The trial court, finding that Mr. LeBlanc had completed substantially all of the work which he had contracted to perform, awarded his widow and heirs 20% of all land, monies and other interests received by the Lequeux heirs, instead of the 25% provided by the contingent fee contract. The Lequeux heirs appealed.

The issues for our determination are: (1) Do we have before us on appeal the exceptions of res judicata, no right of action and prescription filed by the defendants-in-rule, appellees, where the exceptions were without objection referred by the court to the merits but no ruling was made on them? (2) Did the trial court err in finding as a fact that before his death LeBlanc had performed substantial services justifying the award in quantum meruit? (3) May any portion of the award in quantum meruit be made in land ?

This appeal is the culmination of lengthy litigation. In ' October of 1960, Oil Purchasers, Inc. instituted this concursus proceeding naming many claimants to the oil royalties deposited and to be deposited in the court. Among the claimants named were the heirs of Mathurin Lequeux.

Mr. Lequeux left two groups of heirs, hereinafter referred to as the “French heirs” and the “American heirs.” He originally lived in France, where, as a result of his first marriage, he fathered the French heirs. After the death of his first wife, he moved to Louisiana where he remarried and fathered the American heirs.

Albert Jean Lequeux was one of the American heirs of Mathurin Lequeux. He claimed one-half of Mathurin Lequeux’s interest in the property. The other American heirs, including W. J. Kuehling, hereinafter referred to as the Kuehling group, claimed the remaining half. The French heirs claimed 1:&rths of Mathurin Lequeux’s interest. The State of Louisiana and Humble Oil Corporation also claimed interests in the property.

On August 7, 1961, Mr. Albert J. Le-queux entered into a contingent fee contract with attorney Edward F. LeBlanc to represent him in his claim to the property. Under the contract, LeBlanc’s fee was 25% of all rights or interests owned by Albert J. Lequeux in the property. Mr. Le-Blanc obtained similar contracts to represent the other American heirs, i. e., the Kuehling group.

Albert J. Lequeux became dissatisfied with the way LeBlanc was handling his claim. In September of 1963 Lequeux filed suit against LeBlanc to cancel the contingent fee contract. This suit ended in a compromise judgment dated June 24, 1964 which recognized the right of Mr. LeBlanc to continue to represent Albert J. Lequeux under the contingent fee contract of 1961.

Subsequently, Mr. LeBlanc negotiated an agreement with the State and Humble Oil Corporation. On January 11, 1965, a consent judgment was rendered which granted to the State and Humble Oil Corporation 50% of all of the property formerly owned by Mathurin Lequeux. That judgment awarded the other 50% of the property to the American heirs (Albert J. Lequeux and the Kuehling group) and their attorney, Mr. LeBlanc. However, the judgment reserved to the French heirs the right to assert their claim against the American heirs to the u/27ths. Mr. LeBlanc, as a result of this compromise agreement, received certain interests in the land and a portion of the funds on deposit. The only funds remaining in escrow at this point were those adversely claimed by the French heirs.

In 1961, attorneys for the French heirs had proposed a settlement to terminate the controversy. That proposal provided that the French heirs would disclaim all interest in the “Highland property”, and that the “Lowland property” and the escrow fund would be split with 70% being distributed to the American heirs and the remaining 30% to the French heirs. After several years had passed, this agreement was accepted by the Kuehling group of the American heirs but not by the Lequeuxs. Thus the dispute as to the %ths claimed by the French heirs and reserved to them in the 1965 judgment, ended as to the Kuehling group. However, the controversy continued as to the ownership of the half claimed by the Lequeuxs.

Albert J. Lequeux died in 1964, leaving as his heirs Clyde and Malcolm Lequeux, the present plaintiffs-in-rule appellants. Mr. LeBlanc died on March 23, 1969.

After Edward LeBlanc died, Clyde and Malcolm Lequeux employed Charles N. Wooten as their attorney. He negotiated a compromise with the French heirs. This settlement, dated August 1, 1974, provided that the Lequeuxs receive all of the land involved and that the remaining funds in escrow be split, with 50% to the Lequeuxs and the other 50% to the French heirs.

Meanwhile, in January of 1974, appellants had filed the present rule to show cause to cancel the LeBlanc contract.

THE EXCEPTIONS

The widow and heirs of LeBlanc filed in the district court exceptions of res judica-ta, no right of action and prescription to the present rule to show cause. At the beginning of the hearing on the rule, these exceptions were without objection referred by the court to the merits. However, the exceptions were not decided by the district judge, and there was no request made by defendants-in-rule that the district judge rule on them.

The defendants-in-rule have not appealed or answered the appeal, but in their supplemental brief filed in this court they re-urge the exceptions. Our jurisprudence has established the rule that where a party who has filed exceptions in the district court does not insist upon a trial of and a ruling on his exceptions, they are considered waived, and need not be considered by the Court of Appellate review. Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965); Louisiana Power & Light Company v. City of Houma, 229 So. 2d 202 (La.App., 1st. Cir. 1969) ; Perry v. Perry, 122 So.2d 829 (La.App., 1st Cir. 1960). Under these authorities, the exceptions are not properly before us on appeal. We therefore do not consider the judgments of June 19, 1964 and January 11, 1965 which recognized LeBlanc’s contract and interest in the property.

The present case is distinguished from State v. Placid Oil Company, 274 So.2d 402 (La.App., 1st Cir. 1973) and the cases relied on there. In those cases, the district judge overruled defendant’s exceptions, and the appellate courts held the defendant-appellee could re-urge the exceptions on appeal without appealing or answering the appeal. We express no opinion as to the correctness of those cases. But, the present matter is distinguished, since here there was no ruling by the district court on the exceptions and no request for such a ruling.

TRIAL COURT’S AWARD

The next issue is whether the trial court was correct in its determination that a fair fee for the services rendered by Mr. Le-Blanc is 20% of all lands, monies, rights, titles or interests recovered by Albert J. Lequeux, or his heirs. The contract provided a fee of 25%.

It is clear that an attorney’s fee may be provided by contract, or in the absence of a contract, may be determined by application of the doctrine of quantum meruit. Johnson v. Iowa Rice Drier, Inc., 226 So.2d 194 (La.App., 3rd Cir. 1969). And this dichotomy has been held applicable where there is no contract, Nugent v. Downs, 230 So.2d 597 (La.App., 3rd Cir. 1970), the contract is revoked, Barranger, Barranger & Iones v. Gaines, 286 So.2d 474 (La.App., 1st Cir. 1974); Wright v. Fontana, 290 So.2d 449 (La.App., 2d Cir. 1974); Kramer v. Graham, 272 So.2d 716 (La.App., 3rd Cir. 1973), or where the attorney is discharged, Guilbeau v. Firemen’s Fund Insurance Company, 293 So.2d 216 (La.App., 3rd Cir. 1974); Kramer v. Graham, supra.

We believe the reasoning of these decisions applies equally in the situation where an attorney dies during the course of his representation. This follows from the rationale for the decisions above which is that upon premature termination of his employment, an attorney is entitled to the reasonable value of his services. Other jurisdictions have applied the rule where an attorney died. In 7 Am.Jur.2d 225 (Attorneys at Law), it is stated:

“Where the disability or death of an attorney employed on a contingent basis occurs before a final adjudication or settlement of a case, he or his estate may recover the reasonable value of his services. . . . ”

We conclude, therefore, that it should make no difference whether the contract is non-existent, revoked, terminated because the attorney is discharged or terminated by the death of the attorney. In any of these situations, the doctrine of quantum meruit is applicable in the determination of an attorney’s fee.

Quantum meruit is an equitable remedy based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby. Jones v. City of Lake Charles, 295 So.2d 914 (La.App., 3rd Cir. 1974); Louisiana State Mineral Board v. Albarado, 248 La. 551, 180 So.2d 700 (1965). See also LSA-C.C. Articles 2292-2294 and 1964, 1965, and Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). Because it derives from the principle of unjust enrichment, the recovery allowed is the value of the services or materials which have inured to the benefit of another. North Development Company, Inc. v. McLure, 276 So.2d 395 (La.App., 2d Cir. 1973). And while there is no definite test to determine an appropriate award in quantum meruit, a plaintiff should recover that which he reasonably deserves for the services he has performed. Jones v. City of Lake Charles, supra; Herman v. Jambois, 205 So.2d 63 (La.App., 4th Cir. 1967).

Although the results obtained by applying the general rule as stated above should depend on the circumstances of each individual case, North Development Company v. McLure, supra; Herman v. Jambois, supra, over the years our jurisprudence has come to recognize certain factors to be important guides in the determination of an award in quantum meruit. In Ezernack v. Chief Motor Company, 240 So.2d 417 (La.App., 3rd Cir. 1970), we held that these factors include the amount involved and the degree of skill and volume of work necessarily performed by the attorney. In addition to these, the value of the services performed, the responsibility incurred by the attorney, the character and importance of the issues involved in the particular case, knowledge, learning, ability, reputation, attainment and experience of the attorney, the success obtained, and the time required to perform the services have all been important. See In Re Interstate Trust and Banking Company, 235 La. 825, 106 So.2d 276 (1958); Baghramain v. M. F. A. Mutual Insurance Co., 315 So.2d 849 (La.App., 3rd Cir. 1975); Succession of Butler, 281 So.2d 189 (La.App., 4th Cir. 1973); Jones v. City of Lake Charles, supra; Succession of Gilmore, 239 So.2d 462 (La.App., 4th Cir. 1970) ; Herman v. Jambois, supra; Clark v. American Marine Corporation, 320 F.Supp. 709 (E.Dist. of La.1970).

In addition, it was held in Clark v. American Marine Corporation, supra, that the customary charges of lawyers for similar services, and whether other employment was lost by the undertaking, are important considerations. That case also held that the terms of the employment contract may be relevant in the determination.

Plaintiffs-in-rule urge this Court that Mr. LeBlanc did not perform services sufficient to justify the trial court’s award. However, applying the rules and factors we have outlined above, we are compelled to disagree. In addition to the answer and other pleadings filed by Mr. LeBlanc in the trial record of this matter, his work files, which were introduced into evidence in the trial of the present rule, indicate Mr. LeBlanc was current in his work. These files of Mr. LeBlanc are voluminous, consisting of five overfilled manila folders, which total about five and one-half inches in thickness.

It is true, as appellants argue, that these files are partially composed of the work-product of other attorneys. However, it is equally apparent that there are adequate documents contained in the files to indicate Mr. LeBlanc did substantial work for his clients. These documents consist for the most part of correspondence to and from Mr. LeBlanc. The letters, considered as a whole, indicate that Mr. LeBlanc was not only actively involved in his clients’ interest but was constantly endeavoring to bring about an equitable settlement with the adverse claimants. The letters repeatedly refer to conversations, telephone calls, conferences and other letters, all of which were concerned with the settlement of the claims of Mr. LeBlanc’s clients. But even though these letters are indicative of much work and thought by Mr. LeBlanc, we must not forget that they are not the end product of his work, nor a significant part of it. They merely serve to indicate to us what work was actually being performed.

We are cognizant of the testimony contained in the transcript of the trial on the rule that the Lequeuxs were not aware of any work being performed by Mr. Le-Blanc, and that they had difficulty in communicating with him. We are also aware of the testimony of Mr. Ed Abel that he was never contacted by Mr. LeBlanc as regards this litigation. However, we believe this testimony is outweighed by the evidence gained from Mr. LeBlanc’s work files. These files indicate dearly that Mr. LeBlanc was actively involved in his clients’ cause.

Appellant contends that while these letters may have been written, they actually accomplished nothing because LeBlanc did not complete the case. Whether an attorney completes his case is not the controlling factor. Hargrove, Guyton, VanHook & Ramey v. Blanchard, 216 So.2d 127 (La.App., 2d Cir. 1968). Rather, as we discussed earlier, all factors must be considered.

Similarly, the fact that the ultimate compromise, reached by the Le-queuxs’ new attorney after the death of Mr. LeBlanc, differed in final form from that with which Mr. LeBlanc worked is of no consequence. For it is clear from the testimony of Mr. Abel that the ultimate compromise reached was based on the earlier one proposed to Mr. LeBlanc. His efforts toward reaching an agreement on that compromise certainly contributed to the success of the latter one.

In short, we believe the plaintiffs have sustained their burden of proof, though it be a heavy one. Voorhies v. Lomenick, 228 So.2d 509 (La.App., 3rd Cir. 1969). Clearly, we cannot say that the trial judge was manifestly erroneous in his determination of a just and proper fee. A trial judge, in view of his experience at the bar and on the bench, is qualified to determine the reasonable value of an attorney’s services, although he would require the assistance of expert testimony in setting the fee of members of other professions. Jones v. Bryant, 283 So.2d 307 (La.App., 4th Cir. 1973) ; James, Robinson, Felts & Starnes v. Powell, 303 So.2d 229 (La.App., 2d Cir. 1974). This is especially true where the legal services were rendered under the eye of the court, as they were here, and where the court is familiar with the facts upon which the award is made. Herman v. Jambois, supra; Cain v. Employers Casualty Company, 236 La. 1085, 110 So.2d 108 (1959); Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956); Gallagher v. Gallagher, 190 So.2d 916 (La. App., 2d Cir. 1966). Great discretion is left to the trial judge for such a determination, and in the case at bar we find no abuse of that discretion.

AWARD OF LAND IN QUANTUM MERUIT

While we find no error in the trial court’s determination of the amount of compensation due Mr. LeBlanc, we must now decide whether any portion of that fee may be awarded in land. We hold that it may not.

It has long been the law of our State that a contingent fee contract may provide that the fee be taken in money or in land. Liverman v. Hungerbeeler, 156 La. 279, 100 So. 425 (1924). However, in the present case the heirs of Mr. LeBlanc cannot recover under the contract because he died without completing it. They can recover only in quantum meruit. Johnson v. Iowa Rice Drier, Inc., supra, and can claim only the reasonable value of his services, Jones v. City of Lake Charles, supra. Because money is the accepted medium of exchange in our society, we think that in the absence of a contract providing for some other form of payment any compensation due another is to be made in money. In Minyard v. Curtis Products, Inc., supra, our Supreme Court stated:

“ . . . where there is an unjust enrichment of one at the expense or impoverishment of another, then the value of that enrichment, or else in some cases, the amount of the impoverishment must be restituted.”

And 7 Am.Jur.2d 225 (Attorneys at Law) provides:

“Where the disability or death of an attorney employed on a contingent basis occurs before a final adjudication or settlement of a case, he or his estate may recover the reasonable value of his services. . . . ”

Many other statements of the law of quantum meruit also employ the term “value” in describing the compensation due. See 58 Am.Jur. 3 (Work and Labor); 12 Am.Jur. 347, (Contracts); 12 Am.Jur. 352, (Contracts); 7 Amjur.2d 235, (Attorneys at Law); 7 Am.Jur.2d 254, (Attorneys at Law). Without exception, all of the reported Louisiana cases we found have awarded quantum meruit only in money. See, for example, Louisiana State Mineral Board v. Albarado, supra; Succession of Butler, supra; and Shapiro v. Waiss, 284 So.2d 163 (La.App., 3rd Cir. 1973).

We are therefore of the opinion that while the trial court was correct in its determination that the value of Mr. Le-Blanc’s services was 80% of that which he would have received under the contract (80% of 25% =20%) no portion of the award in quantum meruit may consist of land or interests other than money.

However, there is no evidence in the record from which we are able to determine the value of the land awarded defendants-in-rule by the trial court. We therefore find it necessary to remand the case to the trial court for the limited purpose of the admission of evidence as to the value of the land, rights, titles or interests, other than money, included in the award to appellees. We think also that equity and fairness require these values be determined as of the date of the death of Mr. LeBlanc on March 23, 1969, since this was the date his services terminated.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for the limited admission of evidence of value of the land, rights, titles or interests, other than money, as of March 23, 1969, included in the award to appellees, and for further proceedings and rendition of judgment in accordance with law and the views expressed herein.

Reversed and remanded.


text:
    The HOME INSURANCE COMPANY, Plaintiff and Appellee, v. John DOE, d/b/a Dooley Engine Service and/or Dooley Engine Service, Inc., Defendant and Appellant.
    No. 5175.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.

      Thompson & Sellers by Charles M. Thompson, Jr., Abbeville, for defendant and appellant.
    Davidson, Meaux, Onebane & Donohoe by Robert M. Mahony, Lafayette, for third party-plaintiff and appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

Home Insurance Company filed this suit alleging that it was the property damage insurance carrier on the vessel M/VJ.C., which sank as a result of a collision with the M/V Texas. Under its policy, Home Insurance Company paid $9,700 to the owner of the M/VJ.C. and took a subro-gation. It then filed the present suit against defendant, Dooley Engine Service, Inc., alleging that the cause of the collision was the failure of the reverse gear of the engine and/or clutch of the M/VJ.C., which had been negligently installed and/or overhauled by Dooley.

Dooley filed a third party demand against its liability insurer, Employers Commercial Union Companies, demanding that it defend this suit and indemnify Dooley under the terms of its policy. The third party defendant, Employers, filed an answer refusing to provide a defense and denying coverage on the grounds that its policy issued to Dooley excluded “completed operations”.

Prior to a trial on the merits, a settlement was reached between Home Insurance Company and Dooley, and the principal demand was dismissed without any decision of the issues of liability or coverage under Employers’ policy. The third party plaintiff, Dooley, then proceeded to trial against Employers seeking attorney’s fees incurred by Dooley in defending the suit.

After a hearing on the merits, the district judge first decided that Employers had a duty to defend Dooley on the principal demand, and he awarded judgment for attorney’s fees expended by Dooley in the sum of $3,078.18. However, after granting a rehearing, the district judge recalled his previous decision and held that Employers did not owe Dooley a duty to defend. Dooley appealed.

The sole issue on appeal is whether Employers owed a duty to defend Dooley on the principal demand. In the recent case of Mut. v. Newark Insurance Company, 289 So.2d 237 (La.App. 1st Cir. 1974), writs refused, the rule as to an insurer’s duty to defend under its policy is succinctly stated as follows:

It is well settled that an insurer’s duty to defend its insured is broader than coverage. It is also well established that the duty to defend depends upon the allegations of plaintiff’s petition, and that the insurer must defend unless the allegations unambiguously exclude coverage. The applicable test in such instances is if, assuming plaintiff’s allegations to be true, there is both coverage under the policy and “liability to plaintiff, the insurer is obliged to defend regardless of the outcome of the litigation. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253; Spiers v. Lane, La.App., 278 So.2d 549.”

The petition of Home Insurance Company in the principal demand alleges that the collision between the M/VJ.C. and the M/V Texas occurred on March 18, 1971 as a result of the failure of the engine and/or clutch of the M/VJ.C. to operate in the reverse position. The petition also alleges that the clutch failed due to improper installation and/or overhaul by the defendant, Dooley Engine Service, Inc. in February of 1971, approximately one month prior to the collision. Under these allegations, the work was performed by Dooley and the vessel was returned to the owner and put back in operation about a month before the collision occurred.

It was stipulated that at the time of the accident on March 18, 1971 there was in force and effect the policy of insurance issued by Employers Commercial Union Companies to Dooley Engine Service, Inc. This is a “Manufacturer’s And Contractor’s Liability Insurance” policy. The coverages are those for which specific premium charges are made. The basic coverage provided is for “Premises — Operations” which premises and operations are set forth in the policy as follows:

From the above LIABILITY SCHEDULE it is apparent that Dooley paid for liability coverage on two separate and distinct kinds of hazards, (1) premises and (2) operations. The premises hazard covers liability arising out of the use of premises. The premises covered are: (1) “BUILDINGS OR PREMISES— BANKS, MERCANTILE, MANUFACTURING OR OFFICE, NOT OCCUPIED BY THE INSURED”; and (2) “ADDITIONAL PRIVATE RESIDENCE — CODE 0770”. The second type of hazard covered is “Operations”, which is described as “MILLWRIGHT WORK N.O.C. — ERECTIONS OF REPAIR OF MACHINERY OR EQUIPMENT”. Such “operations” conducted by the insured are covered, subjected to the other provisions and exclusions of the policy, regardless of whether these operations are conducted on the insured premises or elsewhere.

In the present case, we are not concerned with any liability arising out of the premises hazard. We are concerned here only with a liability arising out of the operations hazard, i. e., Dooley’s repair of the engine or clutch of the boat.

The printed form used for “Manufacturer’s and Contractor’s Liability Insurance” provides certain exclusions as follows :

“Exclusions
This insurance does not apply:
* * * * %
(m) to bodily injury or property damage included within the completed operations hazard or the products hazard;” (Emphasis supplied)

The “completed operations” hazard which is excluded is defined in the policy under “Definitions” as follows:

"completed operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily Injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. "Operations” include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.

In his reasons for judgment for his first opinion, the district judge decided that under Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958) and its progeny, the “completed operations” exclusion in the policy was ambiguous and therefore must be construed against the insurer. However, on rehearing, the trial judge recalled his original opinion and decided that this case is controlled by Oceanonics, Inc. v. Petroleum Distributing Company, La., 292 So.2d 190 (1974) wherein it is pointed out that after Kendrick v. Mason, the language of 'the completed operations exclusion was changed so as to meet the objections set forth in Kendrick. The policy in the present case, as the policy in Oceanonics, Inc., defines the “completed operations hazard” as including damage “but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured.” Thus, the trial judge concluded that since in the present case the petition in the principal demand alleges that the damages occurred after the operations by Dooley were completed and occurred away from the premises owned or rented by Dooley, coverage was excluded from the policy. The district court did not rule on the effect of Endorsement G210 hereinafter discussed.

In its brief filed in this court, counsel for Dooley now concedes that, considered alone, exclusion (m) which excludes “completed operations” does indeed exclude the damages which occurred in the present case. However, counsel for Dooley argues that there is an endorsement attached to the policy which deletes exclusion (m), the effect of which is that the policy now provides completed operations coverage.

The endorsement in question is G210, which appears as follows:

Paragraph No. 2 of Endorsement G210 states clearly that “Exclusion (m) is deleted”. The effect of this is that the completed operations exclusion is deleted from the policy and Dooley has coverage of liability arising out of his operations in the repair of machinery or equipment.

Counsel for Employers argues that Endorsement G210 was added to this “Manufacturer’s and Contractor’s Liability Policy” for the purpose of adding premises coverage to Dooley’s private residence, which is located above Dooley’s shop but in the same building. Employers contends that the endorsement deletes exclusion (m) only as to the residence and not as to the shop.

This is a very difficult argument to understand. When we consider, as discussed above, that the premises hazard and the operations hazard are two separate and distinct kinds of coverages, and that Dooley’s operations in the repair of machinery are covered under the liability schedule, regardless of whether those operations are conducted in the shop or in the residence or at any other location, why did the insurer use this endorsement to make a change in the premises coverage when the endorsement on its face also makes a change in the operations coverage. There is no language in the policy or in the endorsement which states that exclusion (m) is deleted only as to operations conducted in the residence. On its face, the endorsement deletes exclusion (m) as to all operations.

It may be, as counsel for Dooley suggests, that in this instance Employers used the wrong endorsement. The basic coverage in the present case is for “MANUFACTURER’S AND CONTRACTOR’S LIABILITY INSURANCE”. Endorsement G210 states in its heading that “This endorsement modifies such insurance as is afforded by the provisions of the policy relating to the following: Owners, landlords and tenants liability insurance— designated premises and related operations in progress — including structural alterations, new construction and demolition.” This would indicate that the endorsement was intended to be used with a'n Owners,Landlords And Tenants Liability Insurance policy. In that kind of a policy, it would be more logical to delete the completed operations exclusion, because there would be less risk from “operations” conducted by such insureds.

However, regardless of whether Employers used the wrong endorsement, this docs not change the legal effect of their addition of this endorsement to this particular policy. And the endorsement clearly deletes exclusion (ni), the effect of which is to delete the completed operations exclusion.

Employers’ argument that the endorsement applies only to the residence is further weakened by the language of the endorsement itself. The endorsement states in paragraph No. 1 “The definition of ‘insured premises’ is amended to read as follows: Insured premises means the premises described above or designated in the policy as subject to this endorsement . ” The only “premises described above” in the endorsement is “Code 0770”. There is no explanation in the policy or the endorsement as to the meaning of Code 0770. Perhaps, we could infer from the liability schedule that this code number means the additional private residence. But even if we accept this meaning of the code number, the effect is that the “insured premises” is amended to include the private residence. It is difficult to understand why such an endorsement was added to this policy, since the private residence was already listed in those premises which were insured as to liability arising out of the use thereof. Nevertheless, as pertinent here, it is our opinion that the only thing the endorsement accomplished was to restate that the private residence is included in the definition of insured premises and exclusion (m) is deleted. We realize that this makes little sense from the point of view of the insurer, and that it may not have intended to delete exclusion (m). But that cannot alter the fact that the endorsement was added to the policy and that it is part of the contract between the parties. Of course, the jurisprudential rule is well established that any ambiguity or vagueness in an insurance policy is construed against the insurer who wrote it.

We conclude that, at the very least, the addition of Endorsement G210 to this Manufacturer’s And Contractor’s Liability Insurance policy creates a serious ambiguity as to whether the completed operations exclusion was deleted entirely, or deleted only as to the residence. Under the rules stated above, Employers owes Dooley a defense in this case, since the allegations of the petition in the principal demand, and the provisions of Employers’ policy with its attached endorsements, do not unambiguously show that there was no coverage under the policy.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the third party plaintiff, John Doe, d/b/a Dooley Engine Service and/or Dooley Engine Service, Inc., and against the third party defendant, Employers Commercial Union Companies, for the sum of $3,078.-18, together with legal interest thereon from date of judicial demand until paid, and all costs of these proceedings, both in the trial and appellate courts.

Reversed and rendered.


author: CULPEPPER, Judge. HOOD, Judge

text:
    Aaron THOMAS et al., Plaintiffs and Appellees, v. HANOVER INSURANCE COMPANY, Defendant and Appellant.
    No. 5170.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1975.
    Dissenting Opinion Oct. 23, 1975.
    Rehearing Denied Nov. 13, 1975.

      Lewis & Lewis by John M. Shaw, Ope-lousas, for defendant and appellant.
    Pucheu & Pucheu by Jacque B. Pucheu, Jr., Eunice, for plaintiffs and appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

Plaintiffs seek damages for personal injuries sustained when Mrs. Agnes Thomas stepped on a mouse and slipped and fell in laundramat. The defendant is the liability insurer of Convenient Wash & Dry, Inc., lessee and operator of the laundramat. The trial judge found defendant liable. He awarded to Mr. Thomas $1,876 for medical expenses and to Mrs. Thomas $10,000 in general damages plus $592.28 for loss of income. Defendant appealed.

The injuries occurred on March 6, 1973 at about 8:30 p. m. Plaintiff, a school teacher, had gone to the laundramat to dry a bedspread. After placing the spread in the dryer, she seated herself in one of a row of chairs provided for customers’ use and began grading school papers. Shortly after she sat down, she felt something on her foot. She looked down and saw a mouse. She screamed and jumped from her seat. It is not clear from the evidence whether she jumped once or twice. The testimony shows she did not intend to jump on the mouse. Nevertheless, her foot came down on the mouse, mashing it on the floor. This caused her foot to slip. She fell and injured her hip and back.

There is little dispute as to the facts. The principal issue is whether, under the duty-risk method of analysis established by our Supreme Court, defendant’s insured is liable to plaintiffs. Under the duty-risk method, there are usually the following inquiries: (1) What, if any, duty was owed by defendant to plaintiff? (2) Was there a breach of the duty? (3) Was the breach of duty a substantial cause in fact of the injury? (4) Was the risk and harm within the scope of the protection afforded by the duty breached? Jones v. Robbins, La., 289 So.2d 104 (S. Ct.1974); Hill v. Lundin, La., 256 So.2d 620 (S.Ct.1972).

THE DUTY

The duty of the operator of the laundramat is well established by our jurisprudence. Shopkeepers are not insurers of the safety of their patrons. They owe them a duty to maintain the premises in a condition reasonably safe for use in a manner consistent with the purposes of the establishment. Stewart v. Gibson Products Company of Natchitoches Parish, 300 So. 2d 870 (3rd Cir. 1974); Sigler v. Mt. Vernon Fire Insurance Company, La.App., 201 So.2d 656 (3rd Cir. 1967). This includes the duty to discover reasonably discoverable conditions on the premises which may foreseeably constitute a hazard to business guests. Jones v. Firemen's Fund Insurance Company, La.App., 298 So.2d 337 (3rd Cir. 1974). But the storekeeper is not liable for injury resulting from a hazard unless it is shown that he had actual knowledge thereof, or that he had constructive knowledge, as by his failure to make reasonable inspections. Levine v. Hartford Accident & Indemnity Company, 149 So.2d 433 (3rd Cir. 1963) ; Fedrowisch v. Fidelity Phenix Insurance Company of the Continental Insurance Companies, 265 So.2d 618 (1st Cir. 1972).

We find no case in which the specific issue was the duty of a shopkeeper to keep the premises free of mice. However, we think that if the circumstances are such that mice would constitute an unreasonable risk of foreseeable harm to customers, the shopkeeper has a duty to take reasonable precautions to keep these rodents from his premises. In a business establishment such as a laundramat, where the customers are principally women, whose fear of mice is well known, a reasonably foreseeable hazard is that if a woman sees a mouse on or near her person, she will jump or run and, in so doing, may suffer injury.

BREACH OF THE DUTY

Under these rules, let us examine the facts of the present case to determine whether the operator of the laundramat breached its duty. Plaintiffs contend that most of the time the laundramat was littered with candy wrappers, food droppings, potato chips, fritos, soft drink containers and other food particles which attracted mice. They argue that the defendant, through its employees, had actual or constructive knowledge of the filthy condition of the premises and knew or should have known this would attract mice, which would constitute a hazard to female patrons.

The evidence shows that during the period of time in question, Mr. Miller, the manager, had employed Mrs. Onezime Courville, who lived next door to the laun-dramat, to clean and watch after it. Mrs. Courville testified that she swept and mopped the floor of the laundramat every morning at about 7:00 a. m. However, during the day and in the late evening the place usually became filthy because customers would not place their trash in the cans which were provided. They dropped their candy wrappers, bits of food, potato chips, fritos and soft drink bottles all over the floor. She also stated that “kids” would congregate in the laundramat and contribute to the litter. On some occasions, she would go back in the evening and empty the trash cans and do some cleaning. On week ends, usually Sunday afternoon, Mr. and Mrs. Miller went to the laundramat and gave it a thorough cleaning.

As to the particular question of the presence of mice on the premises, Mrs. Cour-ville testified that on one occasion prior to the accident she had seen a mouse. She informed Mrs. Miller, and traps were put out, but no mice were caught. After failure to catch any mice, the traps were picked up and placed in a closet.

The only other evidence of mice in the laundramat was the testimony of Patricia Hebert. She testified she was a frequent customer and that on one occasion she saw three small mice in the laundramat. However, she did not report this to Mrs. Cour-ville or to the Millers.

Immediately after the accident, Mr. Miller employed Terry Bertrand, who operates a pest control service, to investigate for evidence of mice. Bertrand found no nests, tracks or other indications of the presence of mice on the premises. He placed poisoned bait in different locations about the laundramat, but he found no evidence that any of the bait had been eaten. Mr. Bertrand testified that food attracts mice and if an abundance of food is present, they are less likely to eat the poisoned bait. He said that mice also enter buildings to make nests or to find shelter from bad weather.

Under the evidence outlined, we conclude that the operator of the laundra-mat, either through Mrs. Courville or Mr. Miller, had knowledge that usually in the evenings the laundramat was littered with food droppings and other trash. On the night of the accident in question here, several witnesses testified that the floor of the laundramat was “filthy” and that the trash cans were overflowing. We also conclude a preponderance of the evidence shows the mouse was in the laundramat because it was attracted there by the food on the floor. We find also that the operators of the laundramat knew or should have known that the food particles would attract mice. Yet, they failed to take reasonable precautions to keep these rodents from the premises. They allowed the premises to remain in a filthy condition most of the time, and they failed to employ a pest control service on a regular basis prior to the accident.

We conclude that under the circumstances of this case the operators of the laundramat had a duty to take reasonable precautions to keep the premises free of mice and that they breached this duty.

CAUSATION

There is no question that the breach of the duty to keep the premises free of mice was a substantial cause in fact of the injuries suffered by Mrs. Thomas. She felt the mouse on her foot, saw it, screamed and attempted to jump away from it. In so doing, she accidentally stepped on the mouse and slipped and fell.

RISK AND HARM WITHIN PROTECTION OF THE DUTY

In Hill v. Lundin & Associates, Inc., supra, the court stated:

“All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.”

In the present case, the duty breached was to take reasonable precautions to keep mice out of the premises. A purpose of this duty was to protect against the risk that a woman might become frightened by a mouse and, in attempting to flee, suffer injury. This is precisely the risk and harm suffered by Mrs. Thomas. Although we have here the unusual fact that Mrs. Thomas stepped on the mouse, and this caused her foot to slip, the result would be the same had she not stepped on the mouse but, instead, had fallen from the chair or had attempted to run and fell over some other object.

QUANTUM

Defendants also contend the award of $10,000 to Mrs. Thomas in general damages for her pain and suffering is excessive. They suggest the award should be reduced to no more than $3,500.

On March 7, 1973, which was the day after the accident, plaintiff was examined by Dr. R. E. Landreneau, Jr. who hospitalized her for a period of ten days. He found bruises and contusions over her hip and low back, with ligamentous injury in the area of the lumbar spine. While in the hospital, she was treated with physical therapy and drugs for pain and muscle relaxation. On her discharge from the hospital, she continued physical therapy for about six weeks and then continued to see Dr. Landreneau until he discharged her on August 27, 1973. Here total medical expenses were $1,876.76.

At the trial on August 25, 1974, Mrs. Thomas testified she was still having pain in her back after sitting in her classroom for long periods of time. She is a woman who weighs 185 pounds and this has prolonged her recovery from the back injury.

Under all of the circumstances, we are unable to say that the trial judge abused his great discretion as to the quantum of the award in general damages for personal injuries.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

Affirmed.

HOOD, J., dissents and will assign written reasons.

HOOD, Judge

(dissenting).

I am unable to agree with my colleagues in their conclusions either as to liability or as to quantum.

The law is settled that the proprietor or occupier of a commercial establishment must exercise ordinary care to keep his premises in a reasonably safe condition for his customers. The law, however, does not make the proprietor the insurer of the safety of invitees, and he is not liable for injuries sustained by a customer who falls while on the business premises unless the claimaint establishes that his injuries were caused by the proprietor’s negligence. The burden of proof rests on the injured claimant to establish negligence on the part of the owner or occupier of those premises. Levine v. Hartford Accident and Indemnity Company, 149 So.2d 433 (La.App. 3 Cir. 1963) ; Fedrowisch v. Fidelity-Phenix Insurance Companies, 265 So.2d 618 (La. App. 1 Cir. 1972); Lofton v. Travelers Insurance Company, 208 So.2d 739 (La.App. 3 Cir. 1968) ; Travis v. Winn-Dixie Louisiana, Inc., 269 So.2d 550 (La.App. 1 Cir. 1972); Melton v. Mire, 268 So.2d 123 (La.App. 1 Cir. 1972); Harper v. Great Atlantic and Pacific Tea Company, 257 So.2d 468 (La.App. 1 Cir. 1972).

The proprietor owes a duty to his invitee to keep his premises safe from hidden dangers, in the nature of traps or pitfalls, which are not known to the invitee and would not be observed and appreciated by him in the exercise of ordinary care. This includes the duty of reasonable prior discovery of such unobservable dangerous conditions on the premises, and the correction of them, or a warning to the invitee of the danger. Levert v. Travelers Indemnity Company, 140 So.2d 811 (La.App. 3 Cir. 1962); Mouton v. Vanguard Insurance Company, 293 So.2d 604 (La.App. 3 Cir. 1974); McCauley v. Nicholas, 297 So. 2d 914 (La.App. 1 Cir. 1974).

The mere fact that an accident occurs resulting in injuries to the invitee does not give rise to a presumption that the proprietor was negligent. Levine v. Hartford Accident and Indemnity Co., supra. The invitee assumes all normally observable or ordinary risks attendant upon the use of the premises. The occupier is not liable for an injury to an invitee resulting from a danger which is observable, or which should have been observed, by the invitee in the exercise of reasonable care, or from a danger which the invitee should reasonably have appreciated before exposing himself to it. Levert v. Travelers Indemnity Company, supra; Foggin v. General Guaranty Insurance Company, 250 La. 347, 195 So.2d 636 (1967); Mitchell v. Aetna Casualty and Surety Company, 284 So.2d 636 (La.App. 3 Cir. 1973) ; Jones v. Fireman’s Fund Insurance Company, 298 So.2d 337 (La.App. 3 Cir. 1974).

The application of these established rules to the facts in the instant suit convinces me that the proprietor of the laundromat involved here was not negligent, and that the defendant insurer thus is not liable to plaintiff and for the damages she sustained.

The majority has pictured the laundromat in which this accident occurred as having been maintained in a “filthy condition.” That conclusion was drawn largely from the testimony of Mrs. Onezime Cour-ville, who had been working at that establishment for approximately one and one-half years before this accident occurred. She quit working for the proprietor shortly after the accident. The record does not show why her employment was terminated, but her testimony indicates to me that she was antagonistic toward her former employer.

Mrs. Courville’s duties were to oversee the laundromat and to keep it clean. Byron Miller, president of the corporation which owned the business at the time of the accident, no longer has an interest in the laundromat, and neither he nor the corporation is a defendant in this suit. Miller thus has nothing to gain or to lose by the outcome of this litigation. He testified that Mrs. Courville was employed as the “overseer” or “clean up lady” for the laundromat, and that her responsibility was “cleaning” and to report any damages to the premises. He stated that it was her duty to clean the place of business “whether it would be in the morning or afternoon, but she was responsible to clean it at least once a day.” He testified that he and his wife also gave the premises a thorough cleaning at least once a week, which included cleaning the dryers, cloroxing the floors, washing the windows, vacuuming behind the dryers and washing down the parking lot.

Although Mrs. Courville appeared to be prejudiced against the defendant’s insured, in my opinion even her testimony does not indicate that the laundromat was as dirty as the majority feels that it was. She testified that she was the “caretaker” of the establishment, that she cleaned it thoroughly every morning, including mopping the floors, and that frequently she would go back during the afternoons and at night to clean it again. In addition to that, she stated that the proprietors would come on weekends and give the premises a thorough cleaning. She testified that children frequently would leave candy wrappers, candy, cookies and crumbs on the floor, but that when that occurred she would pick up those items and put them in the trash can. She testified that garbage cans were put out and were picked up every day, except Sunday, and that she saw only one mouse in the place of business during the entire time she worked there. She stated that she reported seeing the mouse to Mr. Miller, and that she immediately began setting traps for it every night, but that she never caught one, and that she never saw any rat droppings or evidence of any mice having been in the building. She also stated that the door of the building would remain closed at all times, except when patrons opened it to enter or leave the building, or when they occasionally would prop it open. She complained to the owner about customers propping the door open, and she indicated that the owner thereupon put up signs requesting that they not do so, but that the signs were torn down by customers. She said that the owner instructed her to “call the law” when children or anyone else would play boisterously in the building or would leave candy wrappings and cookies on the floor, and that she did call the law on those occasions.

The building in which the laundromat was located was a relatively new, steel building, which was constructed on a concrete slab. The slab was raised a substantial height above the concrete parking lot in front of it, and the pictures introduced in evidence show that the building was a very neat and substantial structure. There was only one entrance or exit to it, and that was the front door, which was made of metal and was equipped with an automatic door closer. The door operated properly, and it would effectively keep out mice or any other types of pests when the door was closed.

Immediately after this accident occurred, the proprietor called in a pest exterminator who found no evidence of any mice having been in the laundromat at any time. I think this establishes that there were no mice in that establishment, and it shows that the proprietor was reasonable in assuming that there was no danger of mice getting into the building.

The majority concludes that the mouse which caused plaintiff’s fall was attracted into the laundromat because of “food on the floor.” They base that conclusion on the testimony of the pest control expert who testified that mice enter buildings for food and “to make nests and to find shelter from bad weather.” In this instance, the evidence shows that no mice had made nests in the building and the weather was not bad at the time this accident occurred. Although there may have been some very minimal scraps of food on the floor, such as the candy which might remain on candy wrappers and bits of potato chips and fritos, that small amount of food obviously had not attracted mice regularly to the laundromat before the accident, and there was no reason for the defendant’s insured to anticipate that it would attract a mouse into the building at any time, especially since a grocery store which had large quantities of food in it was located next door to the laundromat.

I do not believe that the operator of the laundromat was negligent in having “failed to employ a pest control service on a regular basis prior to the accident.” The proprietor had heard of one mouse having entered the building at an unspecified time prior to this accident. Precautions were taken promptly to trap the mouse, but no evidence was found thereafter of any mice having ever been in the building. A later expert investigation showed that no mice, in fact, had been in the structure. Under those circumstances I think it is unreasonable to hold the proprietor, or its insurer, liable because the owner did not engage a pest control service regularly to treat the building.

After considering all of the evidence and the duty which the operator owed to plaintiff, my conclusion is that the owner or operator of the laundromat was not negligent. In my opinion the trial judge erred in rendering judgment for plaintiff. I would reverse the judgment appealed from.

Even if plaintiff should be entitled to recover in this case, I think the award made by the trial court is excessive and should be reduced. Plaintiff suffered minimal pain as a result of this injury. She lost only fourteen days of work. She was discharged from further medical treatment about six months after the accident occurred, and she has no residual disability or symptoms of any kind resulting from the accident.

For these reasons, I respectfully dissent.


author: HOOD, Judge.

text:
    Anthony Kermit LEMOINE, Plaintiff-Appellant, v. Harry COUVILLON, Defendant-Appellee.
    No. 5108.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Refused Dee. 17, 1975.
    Riddle & Bennett by Darrel Ryland, Marksville, for plaintiff-appellant.
    Laborde & Lafargue by Edwin L. La-fargue, Marksville, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

This suit was instituted as a possessory action by Anthony K. Lemoine against Harry Couvillon. Plaintiff seeks to be maintained in possession of a 3.25 acre tract of land in Avoyelles Parish. Defendant filed an answer, and after trial on the merits, judgment was rendered by the trial court in favor of defendant, rejecting plaintiff’s demands. Plaintiff appealed.

The decisive issues presented are (1) whether defendant converted this suit into a petitory action, and (2) if so, whether the defendant “made out” his title to the subject property.

The record shows that on June 8, 1960, plaintiff Lemoine purchased from Otis Guillory the following described property, situated in Avoyelles Parish, Louisiana, to-wit:

“A certain tract of land situated in the 6th Ward, Avoyelles Parish, Louisiana, containing Eighteen and one-half acres, and bounded North by Leon Jusselin, South by E. P. Couvillon, East by Lovel Rabalais, and West by L. A. Normand. See Alt), page 71 of the records of Avoyelles Parish, Louisiana.” (Emphasis added).

Defendant Harry Couvillon acquired by inheritance from his father, Emanuel P. Couvillon, deceased, an undivided interest in a tract of land, containing 15 acres, more or less, located immediately south of and adjoining the Lemoine tract. Defendant’s property is described, in part, as being bounded on the north by A. K. Le-moine.

Plaintiff and defendant trace their respective titles back to a common author-in-title, Adrien Couvillon, Jr. Both parties agree that according to their titles the south boundary of the Lemoine tract is contiguous with the north boundary line of defendant’s property.

In May, 1961, plaintiff had a survey of his 18.5 acre tract made by Blanchard Marchand, a registered land surveyor. A plat of that survey was made by Marchand on May 29, 1961, showing the boundaries of the Lemoine property, including what the surveyor considered to be the south line of that tract. When the survey was completed, Marchand put markers on the property showing the location of the south line.

In 1969, Lemoine constructed a fence around his premises, and that included a barbed wire fence along the line which had been marked by Marchand as being the south line of plaintiff’s 18.5 acre tract of land. Plaintiff then proceeded to clear off the property which was inside that enclosure, and particularly the property which was immediately north of the above barbed wire fence, and he began using the property lying north of that fence for pasture purposes.

In 1972, defendant Couvillon had a survey of his property made by Ralph L. Gag-nard, also a registered land surveyor. Gagnard found, however, that the dividing line between the two tracts of land, that is, the south line of the Lemoine tract, should be located 103 feet north of the line located by Marchand. Gagnard prepared a plat, dated April 5, 1972, showing the results of his survey.

This strip of land, 103 feet wide, which lies north of the fence erected by Lemoine in 1969 and south of the line found by Gagnard to be the south line of the Le-moine property, comprises a total of 3.25 acres, and it is the property in dispute here.

The discrepancy between the two surveys was called to the attention of Marc-hand, who promptly reviewed his findings and concluded that he in fact had made an error in his survey, due to the fact that he had used an incorrect marker to begin his measurements. He agreed that the boundary line between plaintiff’s property and that of defendant, that also being the south line of plaintiff’s 18.5 acre tract, actually should be located along the line found by Gagnard. On July 30, 1973, Marchand corrected the plat of survey which he had prepared following his 1961 survey to show that the south line of Lemoine’s property should be located 103 feet north of the line shown on the plat which Marchand had prepared originally. Copies of this corrected survey were furnished to Couvillon and to Lemoine.

On December 28, 1973, a meeting was held in the office of an attorney in Marks-ville for the purpose of resolving the dispute between the parties relative to this boundary line. Attending that meeting were plaintiff and his attorney, defendant and his attorney, and Mr. Marchand.

At that meeting all parties orally agreed: (1) That there was an error in the Marc-hand survey, and that the south boundary line of plaintiff Lemoine’s property actually is 103 feet north of the line shown as the south boundary in the Marchand plat, dated May 29, 1961; (2) that defendant, at his own expense, would remove the fence which Lemoine constructed in 1969, and would rebuild it 103 feet north of its then existing location; and (3) that Cou-villon would pay Lemoine $110.50 to reimburse him for the expenses which the latter incurred in clearing off the subject property.

Pursuant to that agreement, Couvillon paid Lemoine the sum of $110.50, and sometime between February 15 and March 15, 1974, Couvillon removed the fence which Lemoine had constructed, and he erected a new fence along, or almost along, the boundary line between the two tracts of land, as established by the Gagnard survey and the Marchand corrected plat. The agreement entered into by the parties relative to the boundary between these tracts of land was not reduced to writing, the only written evidence of that agreement being the check which defendant issued to plaintiff for $110.50, containing the notation, “Reimbursement for 3.25 acres of land clearing.”

A dispute arose later between the parties as to the terms of the above agreement. Lemoine understood that he was to receive, in addition to the payment of $110.50, a tract of land lying immediately north of his property, equal in size to the property which he surrendered to defendant. His understanding, according to his testimony, was that Marchand was to relocate the north boundary line of Lemoine’s 18.5 acre tract of land, so that it would be 103 feet north of the line shown in the original Marchand plat, and that Lemoine thus would acquire 3.25 acres on the north side of his property in place of the area on the south which he was giving up to Couvillon.

Couvillon testified that he did not promise to give Lemoine any additional property, and in any event he could not have done so because he did not own any other property in that area.

Marchand did not resurvey plaintiff’s property, and thus he did not relocate the north line of that tract as Lemoine felt should have been done. Marchand testified that he at no time obligated himself to resurvey or to relocate any of the boundaries of plaintiff’s land. He stated, however, that he is willing to make a resurvey of that tract if somone will pay him for it, but that no one has engaged him to do so.

Lemoine, apparently feeling that the compromise agreement had been breached, attempted to return the $110.50 to defendant and he instituted this suit in December, 1974. He alleges in his petition that he possesses as owner the above described 18.-5 acre tract of land, that defendant disturbed him in his possession during the period from February 15 to March 15, 1974, by tearing down and removing plaintiff’s fence “without the knowledge or consent of petitioner” and by constructing another fence on plaintiff’s property, and that plaintiff is entitled to be restored to the peaceable possession of his property.

Defendant answered, pleading primarily that plaintiff’s demands be rejected, and demanding in the alternative that he be recognized as a co-owner of the subject property. Defendant also alleges in his answer that the parties had entered into an agreement settling their differences, and he specially pleads “transaction or compromise” as an affirmative defense in bar of plaintiff’s demands.

The trial judge rendered judgment in favor of defendant, rejecting plaintiff’s demands. He concluded, first, that the 3.25 acre tract at issue here is located south of the 18.5 acre tract owned by Lemoine, that plaintiff’s sole demand is that he be restored to the possession of his 18.5 acre tract, that his possession of that tract has never been disturbed, that he does not even seek to be maintained in possession of the property in dispute here, and that plaintiff’s demands thus must be rejected. The trial court also found as an additional ground for rejecting plaintiff’s demands that the parties had settled their differences by transaction or compromise, and that the check issued by Couvillon to Le-moine in connection with that settlement constituted sufficient written evidence of the compromise to satisfy the requirements of LSA-C.C. art. 3071.

We have decided that the judgment appealed from should be affirmed, but we arrive at that conclusion for reasons which are different from those assigned by the trial court. We prefer to base our ruling on the ground that defendant converted the suit into a petitory action and that he has made out his title to the subject property. Under those circumstances, judgment ordinarily would be rendered recognizing and decreeing the defendant to be the owner of an undivided interest in that property. In this case, however, defendant did not appeal or answer the appeal, and for that reason we cannot grant him any greater relief than was granted by the trial court.

Plaintiff contends that the answer filed by defendant was not sufficient to convert the suit into a petitory action. During the trial plaintiff timely objected several times to the introduction of evidence tending to show defendant’s title to that property, and in each instance the trial court overruled his objection on the ground that the suit had been converted to a petitory action. The trial court ruled several times, therefore, that defendant’s answer was sufficient to make that conversion.

In Article 7 of the answer, defendant alleges, in substance, that he inherited from his father, E. P. Couvillon, an undivided interest in the land which is south of and adjoining plaintiff’s 18.5 acre tract. The evidence establishes that the 3.25 acre tract which is in dispute here is included in or comprises a part of the property claimed by defendant. In Article 8 of the answer, defendant alleges that “After plaintiff attempted to build a fence around his subject tract of land, it was discovered that the fence along the southern end of the property had been placed too far to the South, as a result of which it enclosed some 3.5 acres of the E. P. Couvillon tract of land.”

Article 12 of the answer reads as follows :

“In the alternative, and only in the event it be held that the compromise entered into and carried out by the parties does not bar all of plaintiff’s demands herein, defendant alleges that he is entitled to possession of the property in dispute as co-owner, and that plaintiff has judicially admitted defendant’s ownership by alleging that his land is bounded on the South by land owned by defendant’s deceased father.”

Following the above allegations in the answer, defendant prayed primarily for judgment rejecting plaintiff’s demands, and alternatively for judgment recognizing him to be a co-owner of the subject property. The prayer contained in the answer reads, in part, as follows:

“In the alternative, in the event it be held that plaintiff’s demands are not barred by the above alleged compromise, recognizing defendant and decreeing him to be a co-owner of the property in question, and, as such, entitled to the possession thereof, and ordering plaintiff to deliver possession thereof to defendant forthwith.”

Article 3657 of the Louisiana Code of Civil Procedure provides that “when the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action . . .’’In this suit, defendant unquestionably has asserted title in himself, and that assertion was made in the alternative.

Plaintiff contends that defendant has alleged only that he has possessed the subject property as a co-owner. He argues that such an allegation constitutes merely a claim of possession and not of ownership. We disagree. In our opinion the allegations in Articles 7, 8 and 12 of the answer constitute an assertion of ownership, and the alternative prayer in the answer is that defendant be recognized as a co-owner.

All of the allegations in the answer, as well as the prayer, should be considered in determining whether defendant has asserted title in himself. The assertion of title, in order to be sufficient to convert the suit into a petitory action, should consist of some formal claim of recognition of title, rather than an offhand allegation. LSA-C.C.P. art. 3657, Revision Comment (e) ; Haas Land Company v. O’Quin, 187 So.2d 208 (La.App. 3 Cir. 1966); Voisin v. Luke, 234 So.2d 862 (La.App. 1 Cir. 1970).

The allegations and the prayer contained in the answer filed by defendant in this case were not artfully drafted. We believe they are sufficient, however, to show that defendant is making a formal claim for recognition of his title. Plaintiff could not reasonably have been misled into thinking that he was not seeking to be recognized as a co-owner of the property, and certainly the alternate prayer in the answer cannot be regarded as an offhand assertion of ownership.

Our conclusion is that the suit has been converted into a petitory action.

We turn now to the question of whether defendant has made out his title, as required by LSA-C.C.P. art. 3653. The trial judge observed, correctly, that this is actually an action to fix the boundary between the estates of the parties, although it was filed as a possessory action. The property in dispute is the land which lies between the line which plaintiff claims is the correct boundary, and the line which defendant claims is correct.

The two land surveyors who surveyed the property and who testified at the trial agree that the true boundary line between the Lemoine 18.5 acre tract and defendant Couvillon’s property, located south of and adjacent to the Lemoine tract, is the line which defendant contends is the correct one. The true boundary between the two tracts of land is 103 feet north of the line on which Lemoine constructed a fence in 1969. The correct boundary is shown by red markings on the Marchand plat, as corrected on July 30, 1973.

The entire 3.25 acre tract of land which is in dispute here is located south of and adjacent to the boundary line as determined by the two surveyors. No part of the property in dispute is included in the boundaries of the Lemoine 18.5 acre tract of land.

The record contains copies of all pertinent documents making up the chains of title to the properties involved here, and two attorneys who examined the titles testified at the trial. The evidence, including documents in the record, trace the titles of the Lemoine and Couvillon tracts back to a common author, Adrien Couvillon, Jr.

The evidence establishes that plaintiff Lemoine is the owner of the 18.5 acre tract of land which is described in the petition. It also establishes (1) that defendant, Harry Couvillon, is the owner of an undivided interest in the tract of land located immediately south of and adjacent to the Le-moine property, and (2) that the 3.25 acre tract in dispute here is included in the property owned by defendant.

Our conclusion is that defendant has “made out” his title to the property in dispute here. It is unnecessary for us to determine the exact interest which defendant owns in that property, because we are precluded from rendering judgment recognizing Couvillon as the owner of the subject land. Since he did not appeal or answer the appeal, he cannot be granted any greater relief than that given by the trial court, and that was simply a rejection of plaintiff’s demands. Under the circumstances presented here we think the judgment appealed from should be affirmed.

In view of the conclusions which we have reached, it is unnecessary for us to consider the question of whether plaintiff is barred from recovering because of the alleged transaction or compromise, or whether his demands should be rejected because of his failure to allege in his petition possession of the 3.25 acre tract in dispute.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.