author: TATE, Justice. SUMMERS, Justice

text:
    The STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General, Plaintiff-Appellant-Relator, v. SIMONI, HECK & ASSOCIATES et al., Defendants-Appellees-Respondents.
    No. 56673.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    Dissenting Opinion May 14, 1976.

      William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert E. Redmann, Asst. Atty. Gen., for plaintiff-applicant.
    Carlos G. Spaht, Paul ■ H. Spaht, Kan-trow, Spaht, Weaver & Walter, Baton Rouge, for defendants-respondents.
   TATE, Justice.

On application of the State of Louisiana, we granted certiorari, La., 320 So.2d 547 (1975), to review the dismissal of its claim against the defendants, an architectural firm (“Simoni”) and a consulting engineer (Burkhalter). The state seeks damages from them for their defective performance in connection with construction of a state office building. The damages are alleged to result from defects in design and from improper approval of change orders from specifications which resulted in specified building defects. The cost to repair them is here sought.

The court of appeal affirmed the district court’s dismissal of the suit. 314 So.2d 477 (La.App. 1st Cir. 1975). See also an earlier intermediate decision in the matter, 297 So.2d 918 (La.App. 1st Cir. 1974).

The issues before us concern:

(1) Does the state itself have a right to assert against the defendants a cause of action to recover for the damages resulting from their delinquent performance of their contractual duties in connection with the construction of the office building for the state, when the contract was with a state agency and not the state itself ?
(2) If so, is the action prescribed because this suit was filed shortly after the three-year delay for actions against “the contractor on the contract” by La. R.S. 38:2189 (1962)? (That is, for purposes of this short prescriptive period, is an architect or engineer considered a “contractor”- for the purposes of that special prescription statute?)

Facts

In 1966, the Louisiana Office Building Corporation (LOBC), a state agency, entered into a written contract with a general contractor (Pittman) to construct for six million dollars a giant office building for the state department of education. On February 19, 1967, the LOBC filed a notice of acceptance of substantial completion of the building (which registry commences the three-year prescription for purposes of La.R.S. 38:2189).

On November 7, 1973, more .than three years later, the state and the LOBC filed this suit against Pittman, Simoni, Burk-halter, and several sub-contractors to recover for various later-discovered defects in the construction of the building. The only claim presently before us is that against Simoni and Burkhalter arising out of their defective design and improper approval of change orders, by reason of which it is alleged certain specified defects in the building resulted. Damages are sought in the amount necessary to repair them.

The LOBC contracted with Simoni, an architectural firm, to plan and design the building. Burkhalter was engaged by Simoni as a consulting engineer to design the plumbing, electrical, air conditioning, and heating systems in the building.

The LOBC is a public corporation, cf. La.R.S. 44:8 (1966), organized and operating exclusively for the purpose of acquiring or operating public buildings for the state. All buildings constructed or otherwise acquired by the corporation are for the use and benefit of the state, with title to the land and building to vest automatically in the state upon the payment of all indebtedness incurred in connection with its acquisition and construction.

In the present case, the state and LOBC originally brought suit jointly as plaintiffs, and both appealed from an adverse judgment. However, the state alone applied for certiorari to this court, which timely application was granted.

(1) Exception Urging No Right and No Cause of Action

In support of their exceptions pleading no right and no cause of action, the defendants contend (a) that the LOBC, not the state, has the only real and actual interest, La.C.Civ.P. art. 681, to bring this suit against the architects and engineer resulting from defective performance of the building construction contract between the LOBC and Pittman; and (b) in any event, the state has no cause of action against the engineer Burkhalter for his deficient performance of engineering work, because his contract was with Simoni, not with the LOBC or the state.

Contention (l)(a):

The state itself has no right or cause of action; only the LOBC can assert same

The state building was constructed with the intention that the state be the ultimate owner of it. The objective of the contract was to build a building for the state through the intermediary agency of the LOBC. As ultimate owner, the state has a cause of action which it may enforce, and it has an interest (i. e. a right of action) in enforcing it under the facts stated above.

In the first place, the state may be regarded as a third-party beneficiary in whose favor a stipulation pour autrui was made by a contract with the specified intention of so benefiting it. La.C.C. art. 1890. Additionally, we see no reason why the state may not, even before the contemplated transfer of title of the building to it, assert causes of action relating to its defective construction of the building. See La.C.C. art. 2042.

When, as here, both the state agency and the state join as party plaintiffs in the suit, we do not reach issues of multiplicity of action or nonjoinder of necessary parties which might result had either alone brought suit.

Further, the circumstance that the state agency did not itself apply for certio-rari does not bar the state from continuing the action on its own behalf: Even if the state were a third party to the contract between the LOBC and Simoni (instead of a third-party beneficiary directly entitled to enforce it), its interests are so closely related to or connected with the object of the suit not only to entitle it to join it as a party before judgment, La.C.Civ.P. art. 1091, but also, even after judgment, to appeal it as an interested third party, La.C. Civ.P. art. 2086 (provided that such is done timely, as now).

We do not have before us a situation where issues of res judicata or estoppel might arise because a judgment rejecting the demands against the defendants became final as against the LOBC because no interested party timely sought review of it.

The defendants rely on decisions which indicate that a state agency, not the state itself, is the proper party to sue upon a cause of action in favor of the state agency. State v. Doucet, 203 La. 743, 14 So.2d 622 (1943); Saint v. Allen, 172 La. 350, 134 So. 246 (1931); State v. Standard Oil Co., 164 La. 334, 113 So. 867 (1927); State v. Tensas Delta Land Co., 126 La. 59, 52 So. 216 (1910). The present situation is distinguishable from those therein concerned, if only in that here, not only the state agency, but the state itself (as ultimate owner of the building), has a cause of action arising out of defective construction of a building for it by a state agency.

Contention (1)(b):

Neither the state nor the LOBC has a right or cause of action against the engineer Burkhalter, since there is no privity of contract between him and either of them

With regard to the second contention, Burkhalter entered into his contractual agreement with Simoni to perform engineering services in connection with the construction of the building. While he did not contract directly with the LOBC or the state, his performance under his contract with Simoni was expressly intended to benefit the owner of the building to be constructed, i. e., the LOBC and the state. The owner is thus entitled to enforce the obligation intended for his advantage. La. Civ.C. arts. 1890 and 1763; Aubry and Rau, Obligations, Section 343B (translated by Yiannopoulos at 1 Civil Law Translations 320 (1965)); Planiol Civil Law Treatise, Vol. 2, Nos. 1260, 1261 (LSLI Translation, 1959).

The defendant Burkhalter relies on decisions to the effect that an action upon a contract cannot be maintained against a party to a contract by a person who is not privy thereto. Lumber Products, Inc. v. Hiriart, 255 So.2d 783 (La.App. 4th Cir. 1971); Chemical Cleaning v. Brindell-Bruno, Inc., 186 So.2d 389 (La.App. 4th Cir. 1966). The decisions involved an attempt to enforce an obligation against a party who did not himself owe it—such as if Burkhalter had sought to collect his fee from the state rather than from the architect who had contracted to pay it.

The present situation is to be distinguished from those involved in the cited cases. Here the engineer defendant owed an obligation concurrently both to the architects Simoni, with whom he had a contract, and also to the LOBC and the state, for whose benefit and advantage the contract between Simoni and himself had been made.

The principle involved in the cited cases is that expressed by Article 65, page 270, of our Civil Code of 1808, which was taken from Article 1165 of the French Civil Code (1804), to the effect that agreements do not operate against those who are not parties thereto: but the principle expressly recognizes that such an agreement may operate in favor of third persons to it when a stipulation in the contract has been adopted for their intended advantage. Although the 1808 article was suppressed in our Civil Code of 1825, but expressly (see 1 Louisiana Archives, Project Civil Code of 1825, p. 263) only because its substance was believed to be incorporated in the provision now found as Article 1889 of our 1870 code. The principle is thus still incorporated in our civil code. Delaney v. A. Rochereau & Co., 34 La.Ann. 1123, 1130 (1882).

Decisions of our jurisprudence hold that a third person not a party to a-contract cannot sue for damages for its breach nor to recover contractual benefits. Police Jury v. Alexandria Gravel Co., 146 La. 1, 83 So. 316 (1919); McWilliams v. Hagan, 4 Rob. 374 (1843); Gales’ Heirs v. Penny, 9 Mart. (O.S.) 212 (1821). The principle involved, however, merely expresses the .Latin maxim: “Res inter alios acta, aliis ñeque nocere ñeque prodesse potest.” (A thing done between some can neither harm nor profit others). Planiol Civil Law Treatise, Vol. 2, Section 1172, (LSLI Translation, 1959). Nevertheless, as stated in The N. O. St. Joseph’s Association v. A. Magnier, 16 La.Ann. 338, 339 (1861): “To the general rule that parties to a contract cannot stipulate but for themselves, there is an exception when one makes, in his own name, some advantage for a third person the condition or consideration of a commutative contract, or onerous donation. C.C. 1884, 1896. He, for whose benefit this advantage is stipulated, has an equitable action to enforce the stipulation, when he has signified his assent in the premises. * * *”

Thus, even though there be no contractual relationship between the state and Búrkhalter, nevertheless the state can enforce the obligation in the Simoni-Burk-halter contract which was intended for its benefit as the ultimate owner of the building. This is especially so in the present instance, because no effect of multiplicity of actions or exposure to multiple liability or other potential prejudice arises against Burkhalter under the present circumstances.

It is true that the contractual agreement for performance of the engineering services was only between Simoni, the architects, and the state through the LOBC. However, Simoni was entitled to make a third-party demand upon Burkhalter for the latter’s deficient performance of his own sub-contract with Simoni to perform the engineering services due by Simoni under its own contract with the state. La.C.Civ.P. art. 1111.

We see no reason why the state cannot also sue Burkhalter directly as a defendant for the damages arising out of his breach of his obligation owed concurrently to Simoni and to the owner (the state) of the building under construction. A direct action by the party suffering the ultimate loss against the party ultimately responsible for it avoids the multiplicity and circuity of action otherwise necessary to achieve the payment of the loss to the one who suffered it by the one who caused it.

We see no prejudice here nor procedural and substantive reason which prevents this direct action. For similar reasons, we have recognized that the ultimate consumer may sue directly the manufacturer of a defective product, despite the lack of a contractual relationship between them. Media Production Consultants, Inc. v. Mercedes-Benz of North America, 262 La. 80, 262 So.2d 377. See also Marine Insurance Company v. Strecker, 234 La. 522, 100 So.2d 493 (1958).

The defendants’ exceptions pleading no right of action (want of interest) and no cause of action must therefore be overruled.

(2) Exception Urging Prescription of Three Years Provided by La.R.S. 38:2189

The defendants further rely upon the prescription against certain claims arising out of the performance of public contracts which is provided by La.R.S. 38:2189:

“Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration or repair of any public works let by the state or any of its agencies, boards or sub-divisions shall prescribe three years from the registry of acceptance of such work or of notice of default of the contractor unless otherwise limited in this said chapter.” (Italics ours.)

Prior to this 1962 enactment, the prescriptive period of ten years was applicable to contractors upon public works for badness of workmanship and for building defects. La. Civ. C. arts. 2762, 3545; see Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972). These code articles provide for a ten-year prescription against all undertakers (contractors) and architects and are generally applicable to construction work, except where (as here) modified by a special statute.

As earlier noted, the allegations of the petition show:

The general contractor (Pittman) submitted the lowest responsible bid and consequently secured the general contract with the LOBC to construct the building. Aetna provided the surety performance bond to insure the liability of Pittman for construction of the building in accordance with the contract. In an entirely different agreement, Simoni contracted with the LOBC to plan and design the building. Simoni and Burkhalter contracted for the latter to perform the engineering services required of Simoni by its contract with the LOBC.

Under the terms of La.R.S. 38:2189, the short three-year prescriptive period obviously applies to the liability of the general contractor and his surety on the public construction contract. The issue is whether an architect who has a contract with the state to design the building is likewise a “contractor” for purposes of this prescriptive statute. We hold he is not.

The 1962 enactment of La.R.S. 38:2189, above-quoted, provides a three year prescription against “the contractor on the contract or on the bond, or against the contractor or the surety on the bond furnished by the contractor”, with the prescription to commence “from the registry of acceptance of such work or of notice of default of the contractor.” It.refers to contracts “let" by the state or a public agency “in connection with the construction, alteration, or repair of any public works.”

In its statutory context, the prescriptive statute has application to contractors with a public agency “for the construction, alteration, or repair of any public works”; such “contractor” is required to furnish a “bond, with good, solvent, and sufficient surety”. La.R.S. 38:2241. These works “shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans and specification, as advertised. * * *” La.R.S. 38:2211. (Italics ours.)

With regard to such contractors, the public agency shall record a written acceptance of the work when it is substantially completed, but “ * * * This acceptance shall not be executed except upon the recommendation of the architect or engineer of the governing authority * * *.” La.R.S. 38:2241.1 (1964). Within forty-five days after recordation of the acceptance or “of notice of default of the contractor or subcontractor”, any person to whom money is due for work, materials, or supplies for the construction of public works, “including any architect and any consulting engineer engaged by the contractor or subcontractor”, may file a sworn statement to assure deduction of sums due him from disbursement to the contractor. La.R.S. 38:2242 (1966). The claimants are also given a right of action on the contractor’s bond if he brings suit “within one year from the registry of acceptance of the work or of notice of default of the contract.” La.R.S. 38:2247(1962).

All of these provisions apply to contractors to construct, repair, or alter public works, not to architects or engineers employed by the state to design them. The statutory provisions themselves, as noted, sometimes distinguish between the contractors who perform the public work for the state, and the architects or engineers employed by the state or by the contractor respectively.

Architects and engineers are not required to give bond, nor are there statutory provisions relating to “letting” of contracts to them or to notices of acceptance of their work or of default by them. The provisions of Section 2189 refer to these indicia, which refer to statutory indicia which relate only to the contractor who contracts with the state to construct, alter, or repair a public work. In our opinion, the intent of Section 2189 is thus to apply to claims against such contractors and their sureties, not to those against architects or engineers. The latter thus are not “contractors” within this indicated meaning of the statute.

We are re-enforced in our belief that architects and engineers are not considered “contractors” for purposes of public contracts, because of other statutory provisions to the same effect.

For instance, in the licensing of contractors for construction, etc., of works, expressly exempted from the statutory definition of a contractor are architects and engineers in the performance of their usual services .(although they are considered a contractor if they charge an additional fee for the employment or direction of labor). La.R.S. 37:2157A (1968). Again, La.R.S. 38:2290-96 (1965), the chief statutory regulation of the performance of architects and engineers in connection with public works (regulating their use of closed specifications), recognizes the distinction between them and the contractors who bid upon or use the specifications prepared by the architects and engineers for public works.

We therefore conclude that the legislative intent of Section 2189’s provision of a short three-year prescription is limited to the contractors who perform the construction, alteration, or repair under contract with the state, not to the architects or engineers who by contract with the state plan or design the work which the contractor builds, alters, or repairs. If there were doubt, however, ambiguous prescription statutes must be strictly construed against prescription and in favor of the obligation sought to' be extinguished by it. United Carbon Company v. Mississippi River Fuel Corporation, 230 La. 709, 89 So.2d 209 (1956).

The defendants’ exceptions pleading the three-year prescription of La.R.S. 38:2189 are therefore overruled.

Decree

For the reasons assigned, we reverse the dismissal of the state’s suit against the architects and the engineer for faulty design and improper change-orders in the construction of the department of education office building in Baton Rouge. We remand this case to the district court for further proceedings consistent with the views herein expressed. All costs of review by the court of appeal and by this court are assessed against these defendants-appellees; all other costs to await imposition until final termination of these proceedings.

Reversed and remanded.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

The State of Louisiana on the relation of the Attorney General applied for certi-orari to review a judgment of the First Circuit. We issued a writ, 320 So.2d 547 (La.1975).

Suit was instituted initially by the State of Louisiana on the relation of the Attorney General and the Louisiana Office Building Corporation against Simoni, Heck and Associates, an architectural and engineering firm. According to the allegations of the petition, Simoni “contracted” with the Louisiana Office Building Corporation to plan and design the Headquarters Office Building of the Louisiana Department of Education in the city of Baton Rouge.

Also, D. F. Burkhalter, a consulting engineer who planned and designed the plumbing, electrical, air-conditioning and heating systems of the building, was joined as a defendant. No allegation of the petition asserts that Burkhalter has a contract with the State of Louisiana or the Louisiana Office Building Corporation.

A number of other defendants were joined: the prime contractor in the construction project, and the subcontractors for installation of the air-conditioning, elevators, masonry and air handling units. Allegations of the petition set forth that they failed to comply with the plans and specifications. The surety company providing the surety performance bond to insure the liability of the prime contractor was also made a party defendant.

All defendants have been dismissed from this suit on exceptions of prescription or no cause of action except the architects, Simoni, and the engineer, Burkhalter. La.App., 297 So.2d 918, decided June 28, 1974, and La.App., 314 So.2d 477, decided May 19, 1975.

In addition to setting forth claims against the other defendants, who are no longer parties, the petition alleges that Simoni and Burkhalter were liable for the cost of change orders issued because the engineer negligently specified materials, the use of which violated the City of Baton Rouge Fire Code; and that the architectural firm, employed to approve and oversee all construction, was negligent in permitting such materials to be installed. The State of Louisiana was allegedly damaged by this negligence in the amount of $15,-644.88, the cost of removing and replacing the prohibited materials.

The petition further alleges that Simoni and Burkhalter were liable for $25,000, the amount required to correct a design defect in the fresh air system of the building. The system is alleged to have been negligently designed by Burkhalter and negligently approved by Simoni without provisions for fresh air intakes, in violation of applicable codes.

Simoni and Burkhalter filed various exceptions. Only exceptions of prescription and no right of cause of action, which were maintained by the trial court and affirmed by the Court of Appeal, are before this Court on this application for certiorari.

I.

The three-year prescription invoked is set forth in Section 2189 of Title 38 of the Revised Statutes:

“Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration or repair of any public works let by the state or any of its agencies, boards or sub-divisions shall prescribe three years from the registry of acceptance of such work or of notice of default of the contractor unless otherwise limited in this said chapter.”

Facts relied upon by Simoni to sustain this exception are the allegations of the petition that Simoni “contracted” with the Louisiana Office Building Corporation; the fact that upon completion of the building a formal notice of acceptance of sub-tantial completion was filed of record on February 19, 1969; and the further fact that thereafter this suit was instituted on November 7, 1973, approximately four and one-half years subsequent to the registry of the certificate of acceptance.

The Court of Appeal interpreted the word “contractor” in the quoted statute to include architects. It held, therefore, that a suit by the state or a subdivision thereof against this architect on the contract between the architect and the owner would prescribe in three years from the date of registry of acceptance. The Court found that the suit against Burkhalter was in contract and that neither the State nor the Louisiana Office Building Corporation was able to maintain the suit against Burkhal-ter because there was no privity of contract between them. 314 So.2d 477.

The sense in which “contractor” is used in this statute on prescription contemplates architects who have contracted, as in this case, to “plan and design” and “to approve and oversee all construction.” In a contract to perform such services an architect is a contractor.

Section 2189 was enacted to limit the time during which suits could be instituted against “an architect or other workman” as these parties are referred to in Article 2762 of the Civil Code and “undertaker or architect” as referred to and contemplated by Article 3545 of the Civil Code. These articles provide:

“Art. 2762. If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.”
“Art. 3545. The action against an undertaker or architect, for defect or [of] construction of buildings of brick or stone, is prescribed by ten years.”

This intention of the legislature is manifest from the law as it existed before the enactment of Section 2189 in 1962. At that time, if a building fell to ruin within ten years because of “badness of the workmanship”, Article 2762 meant that a cause of action was created in the owner making the “architect or undertaker” responsible for the loss. This cause of action could be asserted under Article 3545 within ten years of the discovery of the defect or ruin.

Thus, assume a situation where the defect or ruin on account of the “badness of workmanship” of the architect or undertaker is discovered nine years after completion of the work. The owner then has an action against the undertaker or architect for defect of construction of the building which, under Article 3545, prescribes in ten years from the date of the discovery of the defect or ruin. The expiration of nine of the ten years allowed by Article 2762 for the ruin or defect to manifest itself, together with the ten years allowed the owner to assert his right after discovery of the defect, creates a situation in which the architect, workman or undertaker could be called upon nineteen years after completion of the work to account for ruin or defects. Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972).

It is our view that the legislature found that this state of the law allowed an unduly long time for the State or any of its agencies, boards or subdivisions to institute an action “in connection with the construction, alteration or repair of any public works.” Therefore, Section 2189 was enacted in 1962 to shorten the time by providing that such actions “shall prescribe three years from the registry of acceptance of such work or of notice of default of the contractor . . . .”

As enacted, Section 2189 expressed the obvious intention of the legislature to amend Articles 2762 and 3545 where the State, its agencies, boards and subdivisions were concerned. Such an amendment necessarily extended the benefits of the shorter prescriptive period to “undertakers”, “architects” or “other workmen”, all of whom were mentioned in the articles of the Civil Code, who undertook public works for the State, its agencies, boards and subdivisions. Simoni, the architectural firm, is therefore entitled to invoke the prescription of three years fixed by Section 2189.

Ordinarily it would appear that since Burkhalter denies any contractual relationship with the State or the Louisiana Office Building Corporation he cannot invoke a prescription designed to protect contractors against actions by the State or its agencies, boards or subdivisions. However, Burk-halter argues that the reference to “contractors” in Section 2189 also applies to subcontractors, architects, engineers, and any other person performing work on a public work. In this opinion I infer from the pleadings and this argument that the engineer, Burkhalter, is a subcontractor of Simoni. On this inference I am of the opinion the argument has merit.

It is inconsistent to permit the prime contractor to invoke prescription against claims arising out of a construction contract and not accord the same rights to his subcontractors who performed the work. Such a rule would permit the prime contractor to invoke prescriptions against claims of noncompliance with the contract, leaving his subcontractors to answer for the breaches. Since invoking the three-year prescription is predicated upon the requirement that it runs “from the registry of acceptance of such work or of notice of default of the contractor . . . .” the result I reach is indicated. That is to say, acceptance of the work should operate equally for the benefit of the contractor and his subcontractors who performed the work on his behalf.

If Section 2189 is to be considered as a modification of the time prescribed in Articles 2762 and 3545 of the Civil Code, the broad reference in those articles to “architect or other workman” and to “undertaker or architect” would properly include subcontractors. This construction is consistent with other statutes. For example “contractor” is defined by Section 2162 of Title 37 of the Revised Statutes as “. . . a person who contracts directly with the owner, a primary contractor, or a sub-contractor as a sub-contractor.” Unless the word “contractor” is given a meaning which includes subcontractors the intention of the legislature in limiting the time for bringing actions under Section 2189 would receive only partial recognition.

II.

Alternatively, the Attorney General argues that this is not a suit on a contract but is, instead, a suit in tort against both Simoni and Burkhalter. Prescription cannot run against the State in an action in tort, it is contended, because the constitution states that “Prescription shall not run against the State in any civil matter, unless otherwise provided in this Constitution or expressly by law.” La.Const. art. XIX, § 16 (1921).

Although alleging that Simoni “contracted with the Louisiana Office Building Corporation”, the Attorney General points to other allegations of the petition to support the contention that this is a tort action against Simoni; such as, Simoni “negligently permitted” the installation of materials prohibited by the Baton Rouge Fire Code; “negligently permitted” installation of heating, ventilating and air-conditioning systems which did not have fresh air intakes; and “negligently and willfully” issued change orders which resulted in savings in cost of 'construction not credited to the State.

My appreciation of the allegations of the petition leads me to the conclusion that there was privity of contract between Simoni arid Louisiana Office Building Corporation. Simoni, under the contract, was obligated to plan, design, supervise and approve the construction. It is evident, also, that the complaints of the petition are directed to violations of Simoni’s obligations under the contract. This contractual basis for the cause of action is not 'converted from a suit ex contractu to a suit ex delicto by allegations that violations of the contract were “negligently” committed. Nor is the suit converted into a suit in tort by the bare allegation of the supplemental and amending petition that “the facts stated [in the original petition] therein also constitute a cause of action ‘ex delicto’ (in tort) . . . .”

To determine whether an action springs ex delicto or ex contractu the entire petition, and not simply detached expressions should be considered. Kohn v. Mayor and Council of the Town of Carrollton, 10 La.Ann. 719 (1855). It is the nature of the duty breached that should determine whether the action is in tort or in contract. Kozan v. Comstock, 270 F.2d 839 (5th Cir. 1959). The allegation that the plaintiff has been damaged does not determine the question, for damages result as well from the violation of contracts, either express or implied, as from the commission of offenses ' and quasi offenses. Kohn v. Mayor and Council of the Town of Carrollton, supra.

Mr. Justice Spofford stated the test to be applied:

“In his commentary on the Napoleon Code, Marcade has developed the distinction between damages ex delicto, and damages ex contractu, with his usual brevity and felicity. The former flow from the violation of a general duty, the latter from the breach of a special obligation. Commenting upon Article 1382 of the French Code, (C.C. 2294) Marcade, says:
‘Let us note well that properly speaking the matter arises from the violation of a duty, one of those duties which exist generally for the benefit of everyone, and not from the violation of a duty existing specially on the part of one certain person in favor of another certain person and which constitutes an obligation.’” Kohn v. Mayor and Council of the Town of Carrollton, supra at 720. [Translation from Don George, Inc. v. Paramount Pictures, 145 F.Supp. 523 at 527 (W.D.La.1956)].

Speaking of the distinction between delictual fault and contractual fault, Planiol wrote:

"What does one understand from such words? Contractual fault is that which is committed on the occasion of the execution of a contract. It consists in violating a contractual obligation. As to the delictual fault, most authors say that it is ‘an act productive of obligations which takes place between persons juridically strangers to each other.’ Thus an essential difference separates these two kinds of fault: The contractual fault supposes the pre-existence of an obligation which is the inexecution thereof, while delictual fault supposes the absence of the obligation, and its result is the creation of one.
“It is the common opinion that the two kinds of fault differ in three respects :
“(1) They are not established in the same manner: when it is a question of determining whether a given fact constitutes a fault or not, one must be more severe in the case of the delictual fault than in the other;
“(2) They are not proved in the same manner: the contractual fault is presumed : the delictual fault is not;
“(3) They are not suppressed or redressed in the same manner: the indemnity is more complete in the delictual fault than in the contractual fault, and there is solidary responsibility of coauthors.” 2 M. Planiol, Treatise on the Civil Law, Nos. 873-74 at 485-86. (11th ed. L.State L.Inst.transl.1939).

Applying these authorities to the facts of the petition, I observe that Simoni contracted with the Louisiana Office Building Corporation to plan, design and supervise the construction. This was a special obligation which is alleged to have been violated. The action is, therefore, ex contractu and not ex delicto, and the contention that the action is one in tort and imprescrip-table under Article XIX, Section 16, of the Constitution of 1921 is not wellfounded.

Although there is no specific allegation that he “contracted” with the Louisiana Office Building Corporation, or was a subcontractor of Simoni, Burkhalter’s status is established circumstantially and by inference. He is alleged to have planned and designed the plumbing, electrical, air-conditioning and heating systems, to have negligently specified removal of standpipes and to have executed certain design defects which caused damage to the Louisiana Office Building Corporation. This planning and designing must necessarily have taken place in the capacity of a subcontractor of the architect who contracted with the owner “to plan and design” the building.

I find, therefore, that the action against Burkhalter was also an action ex contractu based upon the nonexecution of an obligation he obviously agreed to perform in the subcontract with Simoni. His violation, therefore, was the violation of a special obligation as subcontractor of Simoni as opposed to a general duty owed to all persons. Recovery for his errors and omissions is to be based upon the terms of the obligations he undertook in this contract with Simoni.

To assert a claim for breach of this obligation the Louisiana Office Building Corporation must have privity of contract with Burkhalter. The pleadings do not disclose any basis oh which that privity can be founded. Louisiana Office Building Corporation’s contract was with Simoni, not Burkhalter.

The established rule is that, in the absence of a contrary statutory provision, an action ex contractu cannot be maintained against a party to a contract by a person who is not privy thereto. Keller Construction Corporation v. George W. McCoy & Co., 239 La. 522, 119 So.2d 450 (1960); Lumber Products, Inc. v. Hiriart, 255 So.2d 783 (La.App.1972). Louisiana Office Building Corporation is not a party to the contract between Simoni and its subcontractor Burkhalter, and it cannot assert the claim it seeks to assert against Burkhalter.

The conclusions reached make it unnecessary to consider Simoni and Burk-halter’s exception of no right or cause of action based upon the contention that the Attorney General on behalf of the State of Louisiana has no right to assert the claims of Louisiana Office Building Corporation against Simoni and Burkhalter.

For the reasons assigned, I respectfully dissent.

      . Article 1890 provides:
      “A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”

      . Article 2042 provides:
      “The creditor may, before the fulfillment of the condition, perform all acts conservatory of his rights.”

      . Article 1890 provides:
      “A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”

      . Article 1763 provides:
      “In any contract, for the breach of which damages could be recovered, or which could be specifically enforced between the original parties the obligation is incurred, and the right is vested in the representatives, although they are not specially named, unless the contrary intent is expressed, or unless it results from the nature of the agreement.”

      .Article 65 of the Civil Code of 1808 provides :
      “Agreements have effect only on the contracting parties ; they do not operate against any other persons, neither do not operate in their favor, except in the case provided for by article the 21st of this title.”
      The cited Article 21 of the Civil Code of 1808 provides:
      “A person may, in like manner, stipulate for the advantage of a third person, when such is the condition of a stipulation that he makes for himself, or of a donation that he makes to another.
      “He who has made such a stipulation, can no longer revoke it, if the third person has declared himself willing to avail himself of it.”

      . Article 1165 of the French Civil Code of 1804 provides:
      “Agreements have no effect but between the contracting parties; they do not work injury to a third person, nor can they profit him except in the case provided for by article 1121.”
      Article 1121 of the French Civil Code (1804) provides:
      “A person may, in like manner, stipulate for the advantage of a third person, when such is the condition of a stipulation that he makes for himself, or of a donation that he makes to another.
      “He who has made such a stipulation, can no longer revoke it, if the third person has declared himself willing to avail himself of it.”

      . La.C.C. art. 1889 provides:
      “No one can, by a contract in his own name, bind any one but himself or his representatives ; * * * ”
      Article 1889 is modified by the succeeding Article 1890, quoted in footnote 3 above, which provides for the stipulation pour autrui. Article 1890 incorporates the substance, in similar wording, of Article 21 of our Civil Code of 1808, quoted in footnote 5, and of Article 1121 of the French Civil Code, quoted in footnote 6 above.

      . Article 1884 of the Civil Code of 1825 is Article 1890 (providing for stipulations pour autrui) of the 18.70 code.

      . Article 1896 of the 1825 Code is Article 1902 of the 1870 Code: “But a contract, in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, cannot be revoked as to the advantage stipulated in his favor without his consent.”

      . See Black’s Law Dictionary, verbo “Let” (4th ed. 1951) : “To award to one of several persons who have submitted proposals therefor, the contract for erecting public works or doing some part of the work connected therewith, or rendering some other service to government for a stipulated compensation.”

      . Perhaps the legislature’s provision of this short three-year prescription as against contractors, without modifying the longer ten-year prescription applicable to architects, La. Civ.O. arts. 2762, 3545, was based upon the presumed adequate design and supervision by those who receive state architectural contracts for large public works.


source: Caselaw Access Project

license: Public Domain

text:
    Roger Dale McGEE v. Conrad FUSELIER.
    No. 57925.
    Supreme Court of Louisiana.
    April 27, 1976.
   In re: Conrad Fuselier, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 330 So.2d 383, 330 So.2d 392.

Application denied. The result is correct.


text:
    STATE of Louisiana v. Carl SYKES.
    No. 57941.
    Supreme Court of Louisiana.
    April 29, 1976.
   In re: Carl Sykes applying for Writ of Certiorari, Review and/or Mandamus.

Writ refused. No error in the ruling complained of.


text:
    STATE of Louisiana v. Willie FRANKLIN.
    No. 57829.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Willie Franklin applying for Writs of Certiorari, Prohibition and Mandamus.

Writ granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 21st day of May, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 3rd day of September, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Peter SCHWANDER v. PRESIDING JUDGE, 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, GRETNA, La.
    No. 57824.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Peter Schwander, applying for writ of mandamus.

Writ granted. Out of time appeal is granted, and the trial judge is directed to appoint petitioner an attorney and provide him with a transcript for purposes of the appeal.


text:
    STATE of Louisiana v. Louis Albert MARTENS.
    No. 57858.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Louis Albert Martens, applying for writ of review.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Frank V. Zacearía, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 21st day of May, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings conplained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 3rd day of September, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Nathaniel HARDY v. C. Paul PHELPS, Louisiana State Penitentiary.
    No. 57839.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Nathaniel Hardy applying for Writ of Habeas Corpus.

Writ denied. Relator not entitled to relief sought.


text:
    STATE of Louisiana ex rel. Joseph V. FOSTER, Jr. v. WARDEN, LOUISIANA STATE PENITENTIARY and 9th Judicial District Court.
    No. 57840.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Joseph V. Foster, Jr., applying for Writs of Certiorari and Habeas Corpus.

Writ denied. Relator is not entitled to-the relief sought.


text:
    MILLERS MUTUAL FIRE INSURANCE COMPANY v. LOUISIANA & ARKANSAS RAILWAY CO. et al. (American Compress Warehouse).
    No. 57818.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: The Kansas City Southern Railway Co. and L & A Ry. Co. applying- for certiorari, or writ of review, to the Court, of Appeal, Third Circuit, Parish of Rapides. 326 So.2d 631.

Writ denied. On the assignments of error presented in the application, there is no error in the judgment complained of.


text:
    STATE of Louisiana v. Paul G. HULL.
    No. 57836.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Paul G. Hull, applying for writs of certiorari, prohibition, mandamus and for a Stay Order.

Application denied. There was not an absence of evidence; further, payment of, fine renders case moot.


text:
    Sidney GUILLORY v. The TRAVELERS INSURANCE CO.
    No. 57833.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: The Travelers Insurance Company, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 326 So.2d 914.

Writ denied. On the facts found by the Court of Appeal there is no error of law in the judgment of the Court of Appeal.


text:
    Ira L. CAMPBELL, Sr. v. Michel P. LELONG TRUST et al.
    No. 57850.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Ira L. Campbell, Sr., applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Red River. 327 So.2d 533.

Writ denied. On the facts found by the Court of Appeal the result is correct.


text:
    STATE of Louisiana v. Frank Spellman WILLIAMS, Jr., et al.
    No. 57852.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Frank Spellman Williams, Jr. and Veronica Brown applying for writ of review.

Writ refused. No error in ruling of trial judge.


text:
    STATE of Louisiana v. Frank DANIELS, a/k/a Reese Duty, and James Earl Seamster, a/k/a Charlie Fox.
    No. 57853.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Frank Daniels, etc., and James Earl Seamster, etc. applying for Writs of Certiorari, Supervisory Writs, Mandamus and Prohibition.

Writ denied. The ruling of the trial judge was correct.


text:
    Marilyn Brown REDDEN v. LIBERTY MUTUAL INSURANCE CO. et al., and Donald W. Sherrill, Fireman’s Fund Insurance Co.
    No. 57854.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Donald W. Sherrill applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster. 327 So.2d 474.

Writ denied. The judgment of the court of appeal is correct.


text:
    STATE of Louisiana ex rel. Joseph V. FOSTER, Jr. v. WARDEN, LOUISIANA STATE PENITENTIARY, et al.
    No. 57862.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Joseph V. Foster, Jr., applying for Writ of Certiorari and Habeas Corpus.

Writ denied. N.o error in the trial court’s ruling.


text:
    SAHUQUE REALTY CO. v. EMPLOYERS COMMERCIAL UNION INSURANCE CO. OF AMERICA et al.
    No. 57873.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Sahuque Realty Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 327 So.2d 563.

Writ denied. On the facts found by the court of appeal there is no error of law in its judgment.


text:
    Ira L. CAMPBELL, Sr. v. Michel P. LELONG TRUST et al.
    No. 57884.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Camille LeLong, Charles LeLong and Yves LeLong applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Red River. 327 So.2d 533.

Writ denied. On the facts found by the court of appeal, the result is correct.


author: SMITH, Judge.

text:
    W. Glenn SPAIN, Sr., et al., Plaintiffs-Appellants, v. CADDO PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 12888.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1976.
    James L. Fortson, Shreveport, for plaintiffs-appellants.
    Cook, Clark, Egan, Yancey & King by Gordon E. Rountree, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and SMITH, JJ.
   SMITH, Judge.

Glenn Spain, Sr., individually and as administrator of the estate of his minor son, Glenn Spain, Jr., sued the Caddo Parish School Board (hereafter, the School Board) and United Pacific Insurance Company for injuries sustained by young Spain as a result of the alleged negligence of the School Board. For reasons made part of the transcript, the trial judge sustained defendant’s plea of contributory negligence and granted judgment in favor of defendants rejecting the demands of plaintiffs. The latter parties appeal.

Young Spain was injured on July 18, 1974 when his car struck a manhole cover on the grounds of Northwood High School. Several different baseball teams in the Shreveport area had obtained permission from school officials to use the baseball field at Northwood High School for practice sessions. It was customary for those attending practice or games at the field to drive their cars over the curb of the parking lot and cross a large grassy area to park near the playing field. It was uncontested by defendants that this was a general practice and that there was a distinct pathway for some distance where the grass had been worn away by the traffic.

At a point near the end of, and two to three feet to the side of, this pathway, there was a metal manhole cover that protruded from the ground. The estimates of how far above the ground the cover extended varied from five inches to 18 inches, but suffice it to say it was high enough to catch the frame under Spain’s car. The testimony revealed that the general practice was for the drivers to proceed to a point just beyond the manhole cover and then “fan out”, or leave the well-worn, path and proceed to the various parking areas.

The grass around the playing field, which is situated on a 60-70 acre tract, was generally six or seven inches high with clumps of Johnson grass up to U/^-2 feet high interspersed throughout. The grass around trees, stumps and other structures in the field, including the irianhole cover, was not cut as closely as other areas because of the difficulty of getting mowing equipment around the obstructions.

On the afternoon of the accident, Spain was attempting to leave the area following baseball practice. It was around 7:00 p. m. It was still light with darkness just beginning to fall. Spain backed his car up to avoid the baseball bleachers and then moved forward at approximately five miles per hour. He was moving towards the worn path when his vehicle struck the manhole cover and stopped abruptly. The sudden stop caused Spain to lurch forward, striking his mouth on the steering wheel. Five of his lower front teeth were sheered off, four of them very close to the gum. The nerves were exposed. The teeth were damaged so as to necessitate the subsequent extraction of all five.

Plaintiff contends that the School Board was negligent in one or both of the following ways:

1). in allowing the grass to grow unattended to a sufficient height to obscure the manhole cover; and
2). in failing to warn persons on the premises of the unsafe conditions.

Defendants deny that the School Board was negligent and, in the alternative, contend that young Spain was contributorily negligent in operating his vehicle in this area and/or in failing to keep a proper lookout. We affirm the judgment of the trial court.

We conclude a discussion of the culpability of the School Board is unnecessary in the case for we agree with the lower court that, under the circumstances, young Spain was guilty of contributory negligence which precludes recovery by plaintiffs.

Young Spain stated several times in his testimony that he knew the manhole cover was in the field and that he also knew it was in close proximity to the worn path. He stated that he had in fact seen the manhole cover many times. The area in which young Spain was driving was covered by high grass. He chose to leave the area most frequently traveled which had been worn down to a well-defined pathway and travel in another area which visibility was limited. He did not return to the pathway in the same manner that most drivers did nor, in fact, the way he himself had left it earlier on the day of the accident. These actions do not conform to those required of a reasonable man under the circumstances.

For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


text:
    Nina W. BAILEY, Plaintiff-Appellee, v. B. W. JACKSON, Defendant-Appellant.
    No. 12887.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.

      Aylmer M. Wyche, III, Bossier City, for defendant-appellant.
    Huckaby & Piper by Frank E. Brown, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and SMITH, JJ.
   SMITH, Judge.

Plaintiff sued defendant Jackson for damages sustained in an alleged battery inflicted by defendant with an axe. Suit was filed April 30, 1975. No answer or other pleadings were filed by defendant. On August 26, 1975 a preliminary default was entered. Evidence was adduced on September 26, 1975 to confirm the default and the case was taken under advisement by the trial court. Judgment was rendered in favor of plaintiff against defendant for $5,000 as damages for personal injuries and $222.45 for medical expenses. Defendant appeals.

No testimony was recorded when the matter was heard on confirmation of the default. A narrative of facts, which is conclusive, was submitted by the trial court in accordance with LSA-C.C.P. Art. 2131.

Defendant contends there was insufficient evidence adduced to support the default judgment. LSA-C.C.P. Art. 1702. Such a case must be made by admissible and credible evidence. Smith v. Doyle, 160 So.2d 791 (La.App. 3rd, 1964); Blackwell v. Daigle, 317 So.2d 18 (La.App. 3rd, 1975).

The trial court’s narrative reveals the plaintiff testified she was attacked by defendant and was struck in the head and chest with an axe causing lacerations and rendering her unconscious. This testimony was corroborated by the bloodstained dress which plaintiff was wearing on the day of the alleged attack and by her broken eyeglasses. These items were admitted as evidence. In our opinion this is a legally sufficient basis for rendering that portion of the default judgment for the personal injuries.

Defendant ¡also complains that the bills of the physician and hospital are hearsay and, as such, are insufficient to support the judgment for expenses arising out of the battery. One exhibit was clearly marked as not being a bill and this item was not included in the trial court’s assessment. The remaining exhibits reveal expenses incurred by plaintiff slightly in excess of the amount awarded for this element of damage. We infer that a proper foundation of these bills, i. e., testimony by plaintiff that they were incurred as a result of her injuries and were paid by her, was made before these bills were admitted as evidence. We hold this to be a sufficient showing to support the default judgment as to expenses.

At appellant’s cost, the judgment of the lower court is AFFIRMED.


author: BOLIN, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Plaintiffs-Appellees, v. John B. YOUNGBLOOD, Defendant-Appellant.
    No. 12886.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    James E. Franklin, Jr., Shreveport, for defendant-appellant.
    Kitchens, Benton & Kitchens by John B. Benton, Jr., Minden, for plaintiff-appellee.
    Before BOLIN, PRICE and SMITH, JJ-
   BOLIN, Judge.

This is a suit for property damage to an automobile. Plaintiff driver lost control of his vehicle causing it to leave the highway and overturn. There is no dispute as to the proper parties and quantum was stipulated. The sole question in the lower court and on appeal is whether the non-contact accident was caused by the fault of plaintiff driver or defendant driver. For written reasons the trial court awarded damages to plaintiffs and defendant appeals. We affirm.

Appellant specifies the lower court erred in holding plaintiffs had borne the burden of proof and in permitting a state trooper to give hearsay testimony as an expert.

In an excellent written opinion the trial judge reviewed the testimony of all witnesses except the trooper. He concluded the accident was caused by defendant driver overtaking plaintiff’s vehicle and suddenly veering his car directly back into the path of plaintiff’s vehicle, causing plaintiff driver to lose control of his car. This conclusion was based on the testimony of the two drivers and other eyewitnesses. The state trooper was permitted to testify as an expert. Assuming for the sake of argument this testimony was inadmissible, it apparently did not influence the trial judge’s decision and neither has it influenced this court’s decision.

After a careful review of the entire record we are in full accord with the written reasons of the trial judge. Accordingly, the judgment is affirmed at appellant’s costs.


author: PRICE, Judge.

text:
    E. J. DICKERSON, Plaintiff-Appellee, v. R. J. M. PIPELINERS, INC., et al., Defendants-Appellants.
    No. 12885.
    Court of Appeal of Louisiana, Second Circuit
    April 19, 1976.

      Norman L. Sisson, William W. Irwin, Jr., Jerry F. Davis, Charles A. O’Brien, III, Johnie E. Branch, Jr., Baton Rouge, for defendant-appellant State of La., Dept, of Highways.
    Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for defendants-appellants R. J. M. Pipeliners, Inc. and La. Gas Service Co.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for plaintiff-appel-lee.
    Before BOLIN, PRICE and SMITH, JJ.
   PRICE, Judge.

This is an appeal from a judgment awarding plaintiff, E. J. Dickerson, damages for an alleged trespass upon his property against the State of Louisiana, Department of Highways, Louisiana Gas Service Company, and R. J. M. Pipeliners, Inc.

Plaintiff filed suit on April 4, 1974, seeking a temporary restraining order, injunction, and damages against the foregoing defendants, alleging they had trespassed upon his property abutting Louisiana Highway 4 by excavating a trench across the front portion without any legal right or authority to do so.

The operative facts giving rise to this litigation are set forth in our previous opinion reported at 303 So.2d 262 (La.App. 2nd Cir. 1974) in which we reviewed the trial court’s issuance of a preliminary injunction.

We quote from that opinion in pertinent part as follows:

The evidence presented on the trial of the rule shows the highway widening project adjacent to plaintiff’s property necessitated the relocation of a gas pipeline belonging to Louisiana Gas Service Company. Pursuant to a contract with the Department of Highways for reimbursement for a portion of the costs of relocation, Louisiana Gas contracted with R. J. M. Pipeliners, Inc., to perform the actual work of laying the new gas line in the area designated for utilities on the Louisiana Department of Highways plans and specifications for the project. The evidence shows representatives of the Highway Department had discussed the acquisition of the necessary right-of-way with plaintiff prior to the beginning of work by R. J. M. Pipeliners. However, no agreement had been reached by the date of April 2, 1974, when R. J. M. Pipeliners entered upon plaintiff’s property and began laying the gas pipeline. The expropriation order taking the subject property by the State was signed and filed on April 17, 1974.
* * * * * *
We are of the opinion the injunction was improperly issued under the circumstances shown to exist at the time of the hearing on April 19th. Although R. J. M. Pipeliners and Louisiana Gas Service Company’s entry on plaintiff’s property may have been unlawful at its inception, their activities thereon as of April 17, 1974 (the date of expropriation) were then lawful under the contractual relationship with the Louisiana Department of Highways, the owner of the property.

Pursuant to a trial of the merits on plaintiff’s demands for damages, the trial court awarded him the sum of $500 for damage to his property and $2,500 for humiliation, mental anguish, and embarrassment caused by the illegal violation of his property rights. Judgment was rendered against all defendants in solido for the amount of plaintiff’s damages and further judgment was rendered in favor of Louisiana Gas Service Company and R. J. M. Pipeliners, Inc. under their third party action against the State of Louisiana, Department of Highways, for any amount they are required to pay to the plaintiff, Dickerson.

By this appeal, defendants have presented for our review two principal issues:

1) Whether a trespass had occurred in view of the provisions of the written agreement under which Louisiana Gas Service Company enjoyed a servitude across all of plaintiff’s property for the purpose of maintaining one or more gas transmission lines.
2) The correctness of the amount of the trial court’s award of damages in the event it is found a trespass did occur.

The following facts were stipulated on trial of the merits:

1) The existence of the contract between the Department of Highways and Louisiana Gas Service Company and its subcontractor, R. J. M. Pipeliners, Inc., for relocation of the subject gas pipeline.
2) That as between defendants, it was the responsibility of the Department of Highways to secure rights of way for relocation of line and that prior to commencement of work by R. J. M., it was informed the necessary right of way had been procured from plaintiff.
3) That the excavating of the ditch across plaintiff’s property began prior to the filing of the formal expropriation proceeding by the Department of Highways.

In support of their position that the entry of R. J. M. onto plaintiff’s property to relocate the pipeline was lawful, defendants submit that a right-of-way permit granted by plaintiff to Louisiana Power and Light Company on March 18, 1955, established a servitude on plaintiff’s property for the maintenance of a gas transmission line. This right was subsequently assigned to Louisiana Gas Service Company. It is further contended that by the terms of this agreement, the right is specifically granted to lay additional lines.

The trial judge concluded that the right to lay additional lines had prescribed as more than ten years had elapsed since the creation of the right without any use having been made thereof. The court relied on the decision of Columbia Gulf Transmission Company v. Fontenot, 187 So.2d 455 (La.App. 3rd Cir. 1966). The opinion of the appellate court in Columbia Gulf in resolving an issue analogous to that presented in the instant case squarely held the failure to construct any additional lines during a ten-year period constituted a use less extensive than that initially granted in accord with Articles 796 and 798 of the Civil Code and thus this right was lost by prescription.

Defendants rely on the Supreme Court case of Hanks v. Gulf States Utilities Company, 253 La. 946, 221 So.2d 249 (La.1969), decided subsequent to Columbia Gulf, in support of their position that the use of a part of the rights granted under the servitude have preserved it as a whole to the entire tract affected.

The Hanks case is inapposite to the instant situation. It dealt with an assessory right to the use of a servitude to transmit electric power. The court distinguished such a right from a “mode of use” as provided in Article 796 as discussed by the court in the Columbia Gulf case.

We are of the opinion the trial court was correct in applying the principles set forth in Columbia Gulf and rejecting defendants’ contention that Louisiana Gas Service Company was operating within the rights accorded it under the conventional servitude agreement.

Defendants also contend the entry upon plaintiff’s property was with his knowledge and verbal permission and thus it should not be construed as a trespass even though no legal right-of-way had been obtained at the time.

This argument is predicated on the alleged conversation that the Department of Highways’ project engineer, Herbert Rasberry, had with plaintiff a short time prior to the date entry was made upon plaintiff’s property. From the testimony in the record of plaintiff and Rasberry, it is apparent the thrust of their conversation was aimed at whether the Department of Highways would relocate the pipeline in their proposed new right-of-way so that it would not damage several pecan trees belonging to plaintiff. We do not find defendants have sustained the burden of proving plaintiff gave his verbal permission for the relocation work on the pipeline to begin in advance of the Department of Highways’ acquiring additional right-of-way from him by purchase or expropriation.

We find no error in the trial judge’s conclusion that a trespass occurred by the illegal entry upon plaintiff’s property.

Defendants contend the damages awarded plaintiff are excessive under the circumstances presented. The trial court awarded plaintiff $500 for damage to the property primarily on the estimate of costs of resodding at a cost of $.60 per square foot. As the damaged area of plaintiff’s property was expropriated within two weeks of the time when the damage occurred and payment for the property was made to him in that proceeding, we do not find this to be an appropriate basis for calculating damages. Nor do we consider the evidence presented by the Department of Highways’ expert of an estimated fair rental value for this period of time to be an adequate amount. Considering the minimal period of time plaintiff continued to own the damaged area, we conclude $150 would be an appropriate award for damage to his property.

Defendants contend there should be no amount awarded for humiliation, mental anguish, and embarrassment as these items are in the nature of exemplary damages and are not proper when the trespasser is in good faith.

In Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir. 1959), cited with approval by this court in Campbell v. Gray, et al, 294 So.2d 841 (La.App. 2nd Cir. 1974), the First Circuit Court of Appeal discussed damages resulting from a trespass on property as follows:

“The often found general statement that only compensatory and not punitive damages are awardable in Louisiana is in apparent ’conflict with the awards often made for damages for mental anguish and embarrassment caused by an illegal and deliberate violation of property rights or for such violation itself irrespective of any pecuniary damage caused thereby (which damages, according to the definition above cited, are regarded in other states as exemplary or punitive damages). The key to resolution of this conflict seems to be that in such circumstances such awards in Louisiana are regarded as compensatory for violations of a recognized property right, rather than punitory.”

We find the actions of defendants herein were at least a “deliberate illegal violation” of plaintiff’s property rights and should entitle him to an award for mental anguish. The evidence presented by plaintiff does not suggest he suffered any undue amount of anxiety over this event and that his damages should not be in excess of that allowed by this court in Campbell v. Gray, supra. There we approved the sum of $1,-500 for mental anguish and embarrassment for a trespass similar to the instant case.

Defendants also contend the fee awarded by the trial court of plaintiff’s expert witness, H. L. Bass, in the sum of $300 for preparation and appearance at trial is excessive and should be reduced or disallowed.

As there is no evidence in the record to show any specific time spent on preparation of his opinion, and in view of the minimal amount in controversy, we find the amount awarded for his fee is excessive and order it reduced to the total sum of $150.

Accordingly, the judgment appealed from is amended to reduce the award to plaintiff for damages to the total sum of $1,650 and the fee of H. L. Bass as an expert witness is reduced to the sum of $150. As amended the judgment appealed from is affirmed at appellants’ cost.


author: MARVIN, Judge.

text:
    Phillip Ray PARKS v. Mildred Thompson PARKS.
    No. 12884.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.

      W. Charles Brown, Mansfield, for defendant-appellant.
    James B. Wells, Bossier City, for plaintiff-appellee.
    Before PRICE,'HALL and MARVIN, JJ-
   MARVIN, Judge.

The lower court changed custody of a nine-year-old son from the mother to the father about eight months after divorce. On the mother’s appeal, we affirm.

Three older children were awarded to the father in the original divorce proceedings successfully instituted by the father on the grounds of adultery. The nine-year-old son remained in the mother’s custody by agreement. Following divorce, the mother began living with her paramour in open concubinage with the child in the home. Tuggle v. Tuggle, 235 So.2d 166 (La.App.2d Cir. 1970); Murray v. Murray, 220 So.2d 790 (La.App. 1st Cir. 1969). The mother testified that the son had never said anything about the situation in which he is living. “. . . He doesn’t see what is wrong with living with Mr. Sharron [the paramour]. This is where he wants to be.”

Unlike Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), this .mother had not ceased living in concubinage and had not moved with the child into a more conventional home at the time change of custody was sought and awarded. As in Murray, we recognize our duty to promote and protect the moral welfare of the child as we believe was done by our brother below.

The trial court’s award of custody is not to be disturbed in the absence of a clear abuse of discretion. Fulco, supra; Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972).

At appellant’s cost, judgment is

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Ray G. HARRINGTON, Plaintiff and Appellant, v. J. C. UPCHURCH, Defendant and Appellee.
    No. 5405.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused Sept. 8, 1976.

      Levingston, Ezell & Liles by Henry R. Liles, Lake Charles, for plaintiff-appellant.
    Joseph W. Greenwald, Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries sustained by plaintiff when the vehicle he was driving collided with a cow on the highway. Defendant is the alleged owner of the cow. A jury found that defendant owned the cow, but that he was not negligent. The jury did not reach the question of plaintiff’s contributory negligence. From a judgment dismissing his suit, plaintiff appealed.

The issues are: (1) Did defendant own the cow? (2) Was defendant negligent? (3) Was plaintiff contributorily negligent?

The general facts of the case are essentially undisputed. On September 25, 1973, at approximately 11:30 p. m., Ray G. Harrington was driving in an easterly direction on Louisiana Highway 12 between DeQuincy, Louisiana and Ragley, Louisiana. It was a clear dry night. The road was a two-lane, blacktop highway with a posted speed limit of 65 miles per hour at the time of the accident. That portion of Louisiana Highway 12 where the accident occurred is not covered by LSA-R.S. 3:2803 which prohibits livestock from running at large on certain listed highways of this state. Nor is there any state statute or local ordinance prohibiting cattle from running at large in the area in question.

Harrington testified he was driving about 60 miles per hour. He says the last thing he remembered was seeing a cow dart from the south side of the highway and hit his right front fender. After hitting the cow, Harrington's automobile went out of control and traveled a distance of about 670 feet down’the highway, where it struck the north abutment of a concrete bridge. The automobile came to rest on the north shoulder. The cow was either knocked, shoved or carried by the car to a point on the north shoulder of the highway.

As a result of the accident, Mr. Harrington’s car was a total loss. Approximately $1300 in damages was caused to the bridge. Mr. Harrington suffered severe personal injuries. The cow was killed.

OWNERSHIP OF THE COW

The first issue is whether defendant owned the cow. The evidence shows the defendant owned a farm located on the north side of Highway 12 just west of the scene of the accident. He testified that while he lived there he maintained fences around his farm and kept his cattle in his-pasture. In June of 1973, which was approximately four months before the accident, he moved from the farm to another home in the city of DeQuincy and decided to sell his cattle. Defendant contends that by September 22, 1973, which was three days before the accident, he had sold the last of his cattle. He says he sold six to Mr. Cole, who put them on the open range directly north of defendant’s farm, and that he sold most of his other cattle at a livestock auction in DeQuincy. Defendant’s testimony is corroborated by certain receipts from the livestock auction. Mr. Larry Coker, who was living in the house on defendant’s farm at the time of the accident, testified that as far as he knew defendant did not own any cattle. But Coker admitted under cross-examination that he did not know whether defendant still owned cattle on the day of the accident.

Although this is “open range” country, where cattle are free to roam, fences had been constructed along the sides of the highway. The police jury had paid for the posts and the wire, and each landowner had constructed and maintained fences on his property. The evidence shows that some time before the accident, a woods fire occurred north of Highway 12, and the State Forestry Department had cut the fence along the highway to move its equipment to the scene of the fire. After the fire, the fence was not repaired. There was a gap in the fence through which cattle could easily pass from the open range to the highway. This gap was not on land owned by the defendant. It was on the property adjoining defendant’s farm on the east. Pictures taken after the accident show that this hole in the fence had been repaired by someone. Mr. Colvin Reneau testified that he had seen some of defendant’s employees checking the fences along the highway the day after the accident. Of course, an inference which the jury could have drawn from this testimony is that defendant still had cattle on the open range in this area, and that his employees repaired the fence to prevent another accident of this kind.

Plaintiff introduced testimony which showed that the cow in question was branded with the letters “JCU”. Also introduced was evidence which showed that this is the registered brand of the defendant, J. C. Upchurch. LSA-R.S. 3:740 provides that a certified brand on an animal is prima facie evidence of ownership.

Several witnesses testified that defendant had allowed his cattle to run at large on the open range. Some of these witnesses stated they had seen defendant’s cows on the highway. One witness in particular, Mr. Colvin Reneau, testified that on the day of the accident at about 5:00 p. m. he had seen some cows on the highway near the scene of the accident and had chased them back through the hole in the fence. He remembered the particular reddish-brown cow that was hit by plaintiff as being one of the cows which he drove from the highway. Mr. C. J. Reneau, Col-vin Reneau’s father, also positively identified the cow in question as having been owned by Mr. Upchurch. He testified further that he had seen this cow out of the fence several times.

The members of the jury, who saw and heard this conflicting testimony, believed that defendant owned the cow. There is clearly a reasonable evidentiary basis for this finding of fact. Canter v. Koehring Company, La., 283 So.2d 716 (1973).

NEGLIGENCE OF THE DEFENDANT

The next issue is whether the defendant was negligent. Our first question is whether the district judge correctly charged the jury. In his instructions, the judge stated:

“Article 2321 of our Louisiana Civil Code provides in part as follows:
“ ‘The owner of an animal is answerable for the damage he has caused; * * * ’ “However, that article is subject to the negligence or fault requirements of Articles 2315 and 2316 of the Civil Code, which I have heretofore quoted for you. In other words, the owner of livestock is liable for damages done by an animal only in cases where the owner was guilty of some fault or negligence in his ownership or possession of that animal.”

In addition, the judge stated:

“I further charge you that under a statute adopted by the Louisiana Legislature, and in some instances by parish or municipal ordinances, it is unlawful for an owner to knowingly, willfully or negligently permit his livestock to go at large upon certain public highways in this state. However, the state statute only applies to and affects that portion of Louisiana Highway 12 between the Texas border and the line dividing Calcasieu and Beauregard Parishes, and there is no parish ordinance prohibiting livestock from running at large on that part of the highway located in Beauregard Parish. In open range areas, that is, in areas where there is no stock law or ordinance prohibiting an owner from allowing his animals to roam at large, the owner is under no duty to keep his livestock enclosed.
“And under the general law of this state and the jurisprudence where there is no local ordinance or statute prohibiting owners from permitting their stock to run at large, the owner is not negligent in doing so.”

The first specification of error urged by counsel for plaintiff-appellant is that the trial judge’s charge failed to instruct the jury as to the law of “strict liability”. Counsel urges that the applicable law is that found in the recent case of Holland v. Buckley, La., 305 So.2d 113 (La. 1974). He urges that the rationale stated in the decision in Holland is that “In the crowded society of today, the burden of harm caused by an animal should be borne by its master who keeps him for his own pleasure or use rather than by an innocent victim injured by the animal.” 305 So.2d 113 at 120. This reasoning is particularly applicable, he says, “on a heavily traveled state blacktop highway where there are no stock at large signs, and where it has been the custom for over 20 years for the landowner to maintain adequate fences to enclose their cattle.”

The decision in Holland was a significant departure from prior Louisiana jurisprudence dealing with an owner’s liability for harm caused by his animals. In Holland the plaintiff sued to recover for personal injuries suffered as a result of a dog bite. In finding liability for the “first bite”, the court overruled a long line of jurisprudence which had held in accordance with the general rule in other American jurisdictions (See Restatement, 2d Torts), that an owner of a dog is only liable if he knows or should know of the vicious propensities of his animal.

The basis for the decision in Holland is LSA-C.C. Article 2321. It provides in pertinent part:

“The owner of an animal is answerable for the damage he has caused; ”

Justice Tate, writing for the majority in Holland, considers in detail the French authorities on the meaning of Article 2321. The court found that since the article was drawn from French sources, its interpretation should be in accord with the French authorities. The court concludes:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.”

In the instant litigation, the applicable law is not only that provided by LSA-C.C. Article 2321, but also includes special statutes enacted by our Legislature to deal with a very particular and specified situation. LSA-R.S. 3:2803 provides that “No person owning livestock shall knowingly, willfully or negligently permit his livestock to go at large upon the following public highways of this state: (Then follows a list of the highways covered by the statute.)

Jurisprudence interpreting this statute holds that where an automobile strikes a cow on one of the highways listed, the owner of the animal is presumed to be at fault for allowing it to be upon the highway. He has the burden of exculpating himself from negligence by showing that he has taken reasonable precautions to enclose his livestock. If the animal escaped from an enclosure, the owner has the burden to show how it escaped in order to show his complete freedom from fault. Young v. Sentry Insurance Company, 315 So.2d 93 (La.App.3rd. Cir. 1975) and the authorities cited therein.

Jurisprudence has also established the rule that on highways not covered by LSA-R.S. 3:2803, there is no presumption of negligence on the part of the owner of an animal struck by a vehicle on the highway. In Wortham v. Owens, 200 So.2d 781 (La.App.3rd Cir. 1967), the owner of a cow struck and killed by a negligent motorist on such a highway, was allowed to recover the value of the animal. See also Thigpen v. Stockman, 66 So.2d 364 (La.App.1st Cir. 1953).

Jurisprudence has also established the rule that in “open range” areas, i. e., in areas where there is no state statute or local ordinance prohibiting an owner from allowing his animals to roam at large, the owner is under no duty to keep his domestic animals enclosed. See Bryant v. McCann, 297 So.2d 262 (La.App.3rd Cir. 1974) and the cases cited therein.

The liability which the Legislature has provided as to animals on the highways listed in LSA-R.S. 3:2803 may be assimilated to the “presumed fault” concept of liability under Holland. The significant difference is that the Legislature has expressly included within this liability only those damages caused upon the listed highways. It has intentionally excluded application of this type of liability to “open range” highways.

Our Legislature has enacted Civil Code Article 2321 to deal with damages caused by animals. That provision of our law has been interpreted by our Supreme Court and its application has been defined with respect to dogs. Holland v. Buckley, supra. With respect to cattle, however, our Legislature has seen fit to enact a statute generally applicable, but special in effect, to deal with the singular question of liability of owners of cattle for damages caused on the public highways of this state. While the decision of our Supreme Court in Holland controls construction of LSA-C.C. Article 2321 with respect to dogs, it does not control this case involving damages caused by a cow on a highway. Our Legislature has enacted special statutes to control this situation. It is not within the province of this Court to repeal an express, clear and explicit statute of this state.

Counsel for plaintiff-appellant urges that under the recent Second Circuit case of Womack v. Rhymes, 300 So.2d 226 (La.App.2d Cir. 1974), the rule of the Holland case was made applicable to accidents involving cattle on all highways. A reading of that decision, however, indicates that the court was applying the general and well established jurisprudential rule that where the “stock law” (LSA-R.S. 3:2803) is applicable, an owner of livestock is answerable in damages if even the slightest degree of negligence on his part is shown. The decision departed in no way from that of the prior judicial decisions on the subject.

Plaintiff’s second specification of error is that the trial judge failed to charge the jury that if it found “custom” applicable, defendant should be held liable. Counsel urges that the evidence indicated that a longstanding custom had been established by the owners of land adjoining Louisiana Highway 12 to keep their property completely fenced, enclosed and separated from the highway. He urges that if such was established to be the custom, that failure by defendant Upchurch to maintain fences along the property where his cattle grazed should be deemed to constitute negligence and that the trial judge should have so charged the jury.

In his instructions, the trial judge stated, as to custom: “(c)ustom may be regarded as a matter proper for consideration in determining whether or not sufficient care has been exercised'in a particular case, but it is not conclusive or controlling.”

We believe the trial judge correctly and adequately charged the jury as to custom. In the absence of a statute, custom is a rule of action having the force of law resulting from a long series of actions constantly repeated, which, by uninterrupted acquiescence, acquires its force by common consent. Lewis v. Success, 18 La.Ann. 1 (1966). Though custom may acquire the force of and become a part of the law of the land, Tyson v. Laidlaw, 18 La. 380 (1841), a statutory rule of law cannot be changed nor its applicability affected by any local custom. Robertson v. Western Marine & Fire Insurance Company, 19 La. 227 (1841); Devlin v. His Creditors, 2 La. 361 (1831). While custom does possess a niche in our Louisiana law of torts, its application is limited to consideration in determining whether sufficient care has been exercised in a particular case. Landry v. News-Star-World Publishing Corporation, 46 So.2d 140 (La.App.2d Cir. 1950); Tete, The Code, Custom and the Courts: Note Toward a Louisiana Theory of Precedent, 48 Tul. L. Rev. 1, page 15. The trial judge accurately applied this rule.

We conclude the trial judge correctly charged the jury as to the law at issue here. Clearly, there was no manifest error by the jury in its finding, under these charges, that the defendant was free of negligence.

Having decided defendant was not negligent, we do not reach the issue of plaintiff’s contributory negligence.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are to be paid by the plaintiff-appellant.

AFFIRMED.

DOMENGEAUX, J., concurs in the decree.


author: HALL, Judge.

text:
    Floyd GRAVES, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.
    No. 12881.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    Lunn, Irion, Switzer, Johnson & Salley, by Jack E. Carlisle, Jr., Shreveport, for defendant-appellant.
    Kelly, Seaman & Ware, by Donald G. Kelly, Natchitoches, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ-
   HALL, Judge.

Commercial Union Insurance Company and Green Steel Builders, defendants-appellants, appeal from a judgment of the district court awarding Floyd Graves, plaintiff-appellee, workmen’s compensation benefits for total and permanent disability resulting from an injury to plaintiff’s hip and back sustained in an accident which occurred February 25, 1974, while plaintiff was employed as a welder for Green Steel Builders.

Defendants-appellants make the following specifications of errors:

(1) The Court erred in holding that the plaintiff sustained an accident entitling him to an award based on total and permanent disability;
(2) The Court erred in holding that the plaintiff’s testimony was worthy of belief even though he admitted executing false documents;
(3) The Court erred in failing to give the testimony of the plaintiff’s own orthopedic surgeon the weight and credit it deserved; and
(4) The Court erred in failing to recognize that the plaintiff had performed the most strenuous of jobs after the alleged injury and that the doctrine of intervening cause should apply.

While doing some overhead welding on a scaffold, plaintiff stepped back and fell from the scaffold hitting his hip and the lower part of his back on a supporting brace. He finished working that day, worked all the next day and on the following day went to see Dr. Fred Willis, his personal physician and a general practitioner in Coushatta. Dr. Willis did a complete physical examination, finding plaintiff had bilateral lumbosacral muscle spasm and tenderness in the right hip joint. Plaintiff was hospitalized in a clinic in Coushatta for six or seven days and treated with traction and medication. Upon his discharge from the clinic, Dr. Willis prescribed exercises.

Dr. Willis saw plaintiff on numerous occasions thereafter and last examined him on August 4, 1975, shortly before trial. The history given by the patient at that time was that he had reinjured his right hip and lower back. Objective findings were muscle spasms in the lower back. Subjective complaints were of pain in the right calf and the right hip. Dr. Willis’s diagnosis as of the date of his last examination was chronic lumbosacral myoliga-mentous muscle sprain. His unequivocal medical opinion was that plaintiff’s present condition related back to the initial injury in February, 1974. The doctor was of the opinion plaintiff’s productivity at heavy strenuous labor will be definitely limited and that he will not be able to participate in functions involving strenuous labor without sustaining another injury or chronic back pain. The doctor related plaintiff’s disability and continued complaints of pain to the initial injury because of the “weakness” caused by the initial injury.

Shortly after the accident, on March 4, 1974, plaintiff was examined by Dr. A. E. Dean, an orthopedic surgeon in Shreveport to whom plaintiff was referred by Dr. Willis. Dr. Dean’s diagnosis was contusion and sprain of the lumbar musculature mainly on the right side. Dr. Dean prescribed the use of heat on his back and to be up and around at home and return back to the doctor in a week. Dr. Dean felt plaintiff could possibly return to work after a week.

Dr. Dean next saw plaintiff on June 26, 1974, at which time plaintiff was still having difficulty with his back and back pain. The doctor was of the opinion plaintiff had a lumbar sprain and that he should have improved by that time but he probably reaggravated the condition at times. The doctor prescribed back exercises and a lumbar corset for immobilization of the back. He felt plaintiff should improve and be able to return to work in about a week. The doctor found his condition to be essentially the same as it was on his first examination.

Dr. Dean next saw plaintiff on October 25, 1974, at which time plaintiff had similar complaints of activities causing back pain. Dr. Dean was of the opinion plaintiff had a residual lumbar sprain or myositis in the lumbar musculature. Plaintiff was given a cortisone injection. Dr. Dean felt plaintiff had initially sprained and pulled a muscle and had probably “reaggravated” this on several different occasions. The doctor was of the opinion that plaintiff’s body structure was such that he does not tolerate heavy work. He thought the problem would eventually clear up. Dr. Dean was of the opinion plaintiff was not able to work when he examined him but that he probably would be able to do so in a week or so and he would not expect him to have permanent disability.

During the months between the date of the accident and date of trial, plaintiff worked at several different jobs doing heavy work. Some three or four weeks after the accident, plaintiff went back to work for Green Steel Builders. Not long thereafter he was laid off. He began to draw workmen’s compensation benefits and was paid weekly benefits through October 22, 1974, or a total of $2,089.24. Defendants also paid medical bills in the amount of $498.50.

After plaintiff was laid off by Green Steel Builders he went to work for Pine-ville Kraft Mill where he was hired to run a pulpwood yard. He worked there about a week but lost the job when his back hurt after picking up a stick of pulpwood. Plaintiff then went to work for Glen Pharis Construction Company and worked there for over three months doing manual labor in clearing a right-of-way.

In August, 1974, plaintiff began working for Valley Electric Corporation doing right-of-way clearing work and continued in that employment until the middle of December, 1974, when he was laid off after the company learned he had a pending compensation claim for a back injury.

After the first of the year plaintiff worked for awhile helping a painter and next went to work scaling logs at the Hagewood Post and Tie Mill where he worked for about a month. Plaintiff then hired on as a welder for E & P Drilling Company, working offshore for a few days as a welder and then as a galley hand.

Defendants vigorously argue that the fact plaintiff continued to work at various jobs involving strenuous manual labor after the accident is inconsistent with his claim of total and permanent disability. Some testimony was offered by defendants tending to show that plaintiff performed his duties for Valley Electric Corporation satisfactorily and without complaint of pain. Defendants further emphasize that plaintiff did not tell any of his employers about his back injury and actually denied any back trouble when given a physical examination prior to employment by Valley Electric.

On the other hand, plaintiff explained he continued to seek employment because he had substantial obligations to meet each month and could not support his family on workmen’s compensation benefits. Plaintiff testified he worked in pain most of the time and was regularly on medication to ease the pain. He did not tell his employers about his back problem because he could not have obtained employment if he had told them. Lay testimony offered by plaintiff supported his claim of poor physical condition since the accident. Plaintiff testified he had never had any back trouble prior to the accident.

In a well-considered written opinion the trial court held plaintiff had borne his burden of proving total and permanent disability in that he was unable at the time of trial to perform the kind of heavy work he was doing when the accident occurred without significant pain as a result of his original injury. There is substantial evidence supporting the conclusions of the trial court.

Although defendants attack the credibility of plaintiff, the trial court obviously believed his testimony that he has been able to work since the accident only with significant pain. The testimony of Dr. Willis strongly supports a finding of disability to do heavy work without pain resulting directly from the initial injury. It is significant that Dr. Willis’s examination of plaintiff was shortly before trial. The testimony of Dr. Dean,, while less conclusive, shows plaintiff was, in fact, disabled on each of the three occasions when Dr. Dean saw him. Although plaintiff has worked off and on since the accident, he can do heavy work only with significant pain as a result of the chronic lumbosacral myoliga-mentous muscle sprain initially sustained in the accident of February, 1974. There is evidence that plaintiff “reinjured” or “re-aggravated” the initial injury, but the evidence does not establish a specific subsequent or intervening accident as the cause of his current disability. Under the jurisprudence plaintiff is entitled to workmen’s compensation benefits based on total and permanent disability.

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

Affirmed.