author: LANDRY, Judge.

text:
    Terry E. MAUTERER v. Robert E. TILLERY.
    No. 10708.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Robert E. Tillery, Baton Rouge, in pro. per.
    Edward P. Sutherland, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff (Appellee) has moved dismissal of the appeal taken by Defendant (Appellant) from judgment dismissing Appellant’s exceptions of no cause of action and vagueness filed in defense of Appellee’s suit for damages for alleged unlawful arrest. The trial court dismissed Appellant’s exceptions upon Appellee’s ex parte application, without hearing the exceptions on their merits, because Appellant failed to simultaneously file a memorandum of authorities with the exceptions and furnish copies thereof to opposing counsel, as reputedly required by the trial court rules. We grant the motion to dismiss upon finding that the judgment appealed from is not an appealable judgment.

Appellant filed no answer below. The exceptions filed by Appellant constitute Appellant’s initial and only response to the action after being served with process.

An appeal may be taken from a final judgment or from an interlocutory judgment which may cause irreparable injury. LA-CCP. Article 2083.

A final judgment is one which determines the merits of a controversy either in whole or in part. LA-CCP. Article 1841.

An interlocutory judgment is one which does not determine the merits of a cause but decides only preliminary matters in the course of the action. LA-CCP. Article 1841.

A judgment which dismisses a peremptory exception of no right or cause of action is an interlocutory judgment. Lounsberry v. Hoffpauir, La.App., 199 So. 2d 553; Dietz v. Eunice-Crowley Oil Co., La.App., 193 So.2d 94.

Appellant argues that the judgment in question although interlocutory, is nevertheless appealable because it causes Appellant irreparable injury by denying him the right to a determination of his exceptions prior to trial on the merits in violation of LA-CCP. Article 929, which provides as follows:

“Art. 929. Time of trial of exceptions
The declinatory exception, the dilatory exception, and the peremptory exception when pleaded before answer, shall be tried and decided in advance of the trial of the case.
If the peremptory exception has been pleaded in the answer, or subsequently, but at or prior to the trial of the case, it shall be tried and disposed of on the trial. If the peremptory exception has been pleaded after the trial of the case, the court may rule thereon at any time unless the party against whom it has been pleaded desires and is entitled to introduce evidence thereon. In the latter event, the peremptory exception shall be tried specially.”

It is Appellant’s position that the trial court is mandatorily required to decide exceptions prior to trial on the merits and that refusal to do so deprives Appellant of his substantive and procedural rights to be heard. Appellant urges that such rights cannot be measured in monetary terms; hence he has suffered irreparable injury and is entitled to appeal. In support of his arguments, Appellant cites and relies upon Trahan v. Petroleum Casualty Co., 250 La. 949, 200 So.2d 6; Louisiana Hoop Company, Inc. v. Hood, La.App., 292 So.2d 808; Boudreaux v. Yancey, La.App., 256 So.2d 340; Rayborn v. Rayborn, La.App., 246 So. 2d 400; Strickland v. Southern National Insurance Co., La.App., 27 So.2d 733.

Except for Boudreaux v. Yancey, above, we find none of the cited authorities apposite. Trahan, above, did not involve an appeal but was concerned with an application for writs to review the refusal of the trial court to grant plaintiff a speedy trial in a suit for workmen’s compensation benefits. Rayborn, above, also involved an application for writs to consider the trial court’s overruling a dilatory exception to the use of summary procedure, as well as the trial court’s interpretation of court rules, and its ruling on the effect of a wife’s prior judgment in a separation suit upon the question of fault as regarded the wife’s right to alimony. In Strickland, above, plaintiff appealed from judgment sustaining defendant’s exception of no cause and no right of action and dismissing plaintiff’s suit claiming the proceeds of an insurance policy. In Louisiana Hoop Company, Inc., above, defendants appealed from a money judgment rendered against them and complained of the application of court rules which permitted rendition of an ex parte judgment against a party failing to comply with certain pre-trial procedure.

In Boudreaux v. Yancey, above, plaintiff appealed from dismissal, without prejudice, of a wrongful death action. The suit was dismissed for failure to comply with trial court procedural rules. The issue of whether plaintiff was entitled to appeal was not raised.

Whether trial court rules or custom permit Appellant to refile his exceptions in conformity with the pertinent rule appears a matter of no moment in this instance. In essence, the effect of the trial court’s action is no greater than a trial court’s refusal to sustain a peremptory exception.

It is well settled that the inconvenience and expense involved in a litigant’s having to answer and defend a lawsuit, as a result of a trial court’s refusal to sustain exceptions, does not constitute irreparable injury so as to support appeal from such a judgment prior to rendition of judgment on the merits. Rapides Cent. Ry. Co. v. Missouri Pac. R. Co., 207 La. 870, 22 So.2d 200. See also Shaw v. Garrett, et. al., La. App., 295 So.2d 897, and authorities therein cited.

? Considering that the judgment appealed is an interlocutory judgment which does not result in irreparable injury, Appellant’s remedy, if any exists herein, must under the procedural posture of this case he exercised by invoking the supervisory jurisdiction of this court.

The motion to dismiss is granted and this appeal dismissed at Appellant’s cost.

Appeal dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Brent MILLER v. Deputy Warden Lloyd W. HOYLE, Jr., et al.
    No. 10619.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      Stanley E. Branton, St. Francisville, for appellant.
    Robert C. Funderburk, Jr., and Winston G. DeCuir, Asst. Attys. Gen., Baton Rouge, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Mrs. Brent Miller (Appellant), appeals from summary judgment in favor of the Department of Corrections, State of Louisiana (State), rejecting her action for damages for the death of her husband, Brent Miller (Decedent), a prison guard who was killed by rioting inmates while acting within the scope and during the course of Decedent’s stated employment. Appellant’s demands were dismissed upon the trial court’s finding that Appellant’s legal remedies were limited to recovery of workmen’s compensation benefits which Appellant was receiving at the time of institution of suit. We affirm.

It is conceded that all defendants except the State have been voluntarily dismissed from this action by Appellant.

Two basic complaints of error are presented. It is argued that the trial court. improperly granted the State’s motion for summary judgment despite the existence of genuine issues of material fact. Appellant also urges that La.R.S. 23:1034 is unconstitutional in that it violates the equal protection and due process clauses of state and federal constitutions by denying state employees the privilege of election to come within the ambit of our Workmen’s Compensation Law, which option is available to employees of non governmental employers covered by the pertinent statute.

La.CCP. Article 966 provides that motions for summary judgment shall be determined on the pleadings, depositions, answers to interrogatories, admissions on file and affidavits of the parties, if any. Article 966, supra, also provides that a motion for summary judgment shall be granted where the pertinent documents show the lack of a genuine issue of material fact and that mover is entitled to judgment as a matter of law.

It is well settled that a party may not rest merely upon the allegations and denials contained in his pleadings but must establish, by affidavit or other evidence, specific facts showing the existence of a genuine issue of material fact to prevent rendition of summary judgment against him. Thomas v. Otwell, La.App., 234 So.2d 475, White Factors, Inc. v. F & B Supplies, Inc., La.App., 211 So.2d 754.

Appellant’s petition recites that her husband was killed during a riot which occurred when Decedent was assisting in the removal of prisoners from a maximum security area of the state penitentiary at Angola, Louisiana. It is expressly alleged that at the time of his death, Decedent was acting “in the course and scope of his duties as a Correctional Officer.” Decedent’s death is asserted to have resulted from the negligence in numerous respects of the Warden, Deputy Warden, and other prison officials, including failure to provide Decedent with a safe place in which to work. No issue of unconstitutionality is raised in Appellant’s petition.

The State’s answer denies negligence on the part of all defendants, affirmatively pleads Decedent’s alleged contributory negligence, and interposes the defense that Appellant’s recovery is limited by law to receipt of Workmen’s Compensation Benefits. The State also alleges that Appellant has been paid or is presently receiving all Workmen’s Compensation Benefits due Appellant. Interrogatories propounded by the State to Appellant were designed to elicit information regarding whether Appellant received Workmen’s Compensation Benefits, the extent and manner of payment thereof and whether any further such benefits are due Appellant. In response, Appellant admitted receipt of such benefits in the sum of $45.00 weekly and claimed entitlement to such benefits for the number of weeks appropriate under the Workmen’s Compensation Statute.

On the record as thus constituted, the State moved for summary judgment. Appellant offered no affidavits, documents or other evidence to show facts other than those shown by the pleadings, interrogatories and answers thereto.

La.R.S. 23:1032 and 1034 pertinently provide as follows:

“1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other lams
The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such ■ employee, his personal representatives, dependents, or relations.
Nothing in this Chapter shall affect the liability of the employer to a fine or penalty under any other statute.”
“1034. Public employees; exclusiveness of remedies
The provisions of this Chapter shall apply to every person in the service of the state or political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or other political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; provided further that members of the police department, or municipal employees performing police services, for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation as provided herein. As amended Acts 1950, No. 412, § 1.”

In Gilmore v. State of Louisiana, La.App., 79 So.2d 192, which did not specifically involve constitutionality of La.R. S. 23:1032 and 1034, it was held that said statutes provide that workmen’s compensation shall be the exclusive remedy available to a person injured during the course and within the scope of employment by the state or a political subdivision of the state. Pretermitting at this juncture the issue of constitutionality, the cited statutes are controlling and Appellant’s remedy must be deemed limited to receipt of Workmen’s Compensation Benefits.

Although the alleged unconstitutionality of the pertinent statutes was not expressly plead in writing, it is conceded by counsel for the State that unconstitutionality was orally argued by counsel for Appellant in defense of the State’s motion for summary judgment in the trial court. The trial court did not assign written reasons for its judgment.

This case was submitted to us without benefit of. oral argument. Appellant’s brief, citing La.R.S. 23:1038 and 1039, notes that these sections apply our Workmen’s Compensation Act only to private employers engaged in a hazardous business and also allow the employer and employee to elect whether or not the employment shall be governed by the Workmen’s Compensation Act. On this premise, Appellant’s entire argument on the constitutionality question, with no citation of authority in support thereof, is stated as follows:

“Thus it is apparent from the statute above cited that a public employee is not given the right to elect and/or to terminate workman’s compensation coverage since it becomes an obligatory condition of his employment.

The erudite scholar, Wex Malone, stated:

‘This difference in the treatment of public and private employers reveals the basic conviction of the draftsmen of the Act that sound policy demands broader coverage than could practically be imposed on private employers at the time the Act was adopted. Hence, the State and its subdivisions were subjected to the act to the fullest extent, while private employers were included only if their business were hazardous, and even then, only if they elected to accept coverage, Page 168, Louisiana Workman’s Compensation Law and Practice, Wex Malone, 1950.

It is contended, herein, that the denial of a public employee of his right to elect and/or terminate coverage under the Workman’s Compensation Statute renders its application null and void and under the present circumstances, therefore, the deceased correctional officer was not at the time of his death subject to the provisions of the workman’s compensation act, and thus, his widow is not relegated to the exclusive remedy of workman’s compensation. To otherwise rule would be a denial of the claimant’s right to equal protection of the laws and to due process guaranteed under both the Louisiana and Federal Constitutions.”

It is well settled in our jurisprudence that an act of the legislature is presumed valid until shown to be unconstitutional. Hebert v. Police Jury of West Baton Rouge Parish, La.App., 200 So.2d 877.

Unconstitutionality of a legislative act must be raised in the trial court. Summerell v. Phillips, 258 La. 587, 247 So.2d 542; State ex. rel. McAvoy v. Louisiana State Board of Medical Examiners, 238 La. 502, 115 So.2d 833.

The presumption of statutory validity is not conclusive but rebuttable; the burden of proof rests upon the party urging invalidity. Hebert v. Police Jury, above.

In this instance the only ground of unconstitutionality urged is that La.R.S. 23:1034 discriminates against state employees by denying said employees the right of election to accept or reject coverage under the Louisiana Workmen’s Compensation Law granted to employees of non-state employers. In other words, it is contended the Statute, as applied to state employees, places such employees in an unfavorable classification.

It is well settled that in the areas of economics and social welfare a State does not violate the Equal Protection Clause of the United States Constitution (U.S.Const. Amend. XIV, Section 1), merely because classifications established by its laws are imperfect. If a classification has a reasonable basis, it does not offend the Equal Protection Clause merely because the classification is not made with mathematical nicety or because in practice it results in some inequality. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369.

A statutory differentiation will not be set aside as an unconstitutional discrimination if any state of facts may reasonably be conceived to justify its existence. Dandridge v. Williams, above; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393.

We find herein no invidious discrimination proscribed by decisions of the United States Supreme Court. On the contrary we readily conceive that the state’s compulsory workmen’s compensation provisions for public employees is rationally designed to further legitimate state interests. By guaranteeing workmen’s compensation benefits to its own employees, the state encourages private employers to extend workmen’s compensation benefits to private employees, such benefits being generally advantageous to workers by reducing both time and costs involved in a worker’s recovery for on-the-job injuries. Further, compulsory workman’s compensation provisions for public employees tend to simplify the administration of state agencies, so as to reduce the costs and complexities of state government.

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

Affirmed.


author: LOTTINGER, Judge.

text:
    MAGEE MOTORS, INC. v. GUERDON INDUSTRIES, INC.
    No. 10635.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Delos R. Johnson, Franklinton, for appellant.
    Charles M. Hughes, Bogalusa, for appel-lee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

Plaintiff-appellant, Magee Motors, Inc., brought this suit in redhibition against defendant-appellee, Guerdon Industries, Inc., seeking to rescind the sale of a double wide mobile home manufactured by Guer-don and sold to Magee. The Lower Court rendered judgment in favor of Guerdon and against Magee dismissing the action with prejudice, costs to be paid by plaintiff. From this judgment, the plaintiff perfected this devolutive appeal.

Plaintiff, Magee, is an automobile dealership also engaged to a small extent in the sale of mobile homes. Defendant, Guerdon, delivered the mobile home in question to Magee in Franklinton, Louisiana, on February 20, 1973, although Magee had not ordered the home. Be that as it may, Magee purchased the mobile home from Guerdon on April 20, 1973. Mr. Robert Magee, plaintiff’s owner and president, testified that the defendant had agreed to take the return of the mobile home if plaintiff was not able to sell it within sixty days. Defendant denies that it entered into such an agreement with plaintiff. According to plaintiff, this agreement for the return of the mobile home was made over the telephone with an agent of defendant, and there is no written or other evidence of such an agreement. Though the Trial Judge did not so state in his reasons for judgment, it is apparent that he was of the opinion that the plaintiff did not prove the existence of such an agreement.

The mobile home was delivered to plaintiff as two separate units with the open side of each unit sealed with heavy paper. Plaintiff’s ground for this redhibitory action is that the open side of each unit was not properly sealed by the paper, allowing moisture to get in while in storage and causing damage to the ceiling and floor in particular. The paper used to seal the open side of each unit was asphalt coated on one side to repel water. The opposite side of the paper was not treated. Plaintiff’s expert witness testified that in sealing the units, defendant had placed the protective asphalt coated side of the paper on the inside and the plain untreated side exposed to the weather. This caused the paper to absorb water rather than repel it. It is plaintiff’s position that it was the defendant’s obligation to seal the open side of each unit in such a manner that the units could be stored without being assembled together for a considerable period of time while awaiting resale. It is defendant’s position that the protective paper applied to the open side of each unit was temporary only and to protect the units in transit and for a short period of time until the purchaser could properly assemble the two units together or provide for some more permanent protection if the units were not to be immediately assembled.

The mobile home was delivered to plaintiff’s lot on February 20, 1973, and after much negotiations and discussions, the plaintiff reached an agreement and purchased the mobile home on April 20, 1973. James Magruder, plaintiff’s sales manager, testified that on delivery he noticed that the protective paper had torn and had been taped, and that he discovered that moisture was getting into the units about five or six months after delivery. It is also apparent from the testimony of Mr. Magee that the paper seal had tears in it when the trailer arrived, and that he was aware of water damage prior to the purchase of the unit on April 20, 1973. It is the contention of plaintiff that the mobile home is unsalable because of the water damage.

Plaintiff-appellant argues that the Trial Judge erred (1) in failing to find that the improper sealing by defendant was a hidden defect, and (2) in holding that the damage was due to improper storage by the plaintiff.

LSA-C.C. art. 2520 provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” (Emphasis added.)

LSA-C.C. art. 2521 provides:

“Apparent defects, that is, such as the buyer might have discovered by a simple inspection, are not among the number of redhibitory vices.”

From the record it is clear to us that Magee knew of some water damage prior to the purchase of the mobile home, and therefore he cannot now under LSA-C.C. arts. 2520 and 2521 complain of any hidden defects. A simple inspection by him prior to the purchase would have shown the full extent of the water damage present, and being in the business of selling mobile homes, we do not find it as any great burden for him to have done so. Therefore, we agree with the Trial Judge in finding that the plaintiff has failed to prove hidden defects at the time of the sale, April 20, 1973.

Since we agree that there were no hidden defects in the mobile home at the time of the sale, there is no need for us to discuss the responsibility of plaintiff to properly store the mobile home after he had purchased it.

Therefore, for the above and foregoing reasons, the judgment of the Lower Court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.


author: ELLIS, Judge.

text:
    A. A. DeLEE et al. v. David A. DeLEE.
    No. 10590.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    W. Lee Overton, Clinton, for appellants.
    Richard Kilbourne, Clinton, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

This is a suit for partition by licitation brought by Alva A. DeLee, Lovie DeLee Norton, Ruby DeLee Reel, Calhoun A. DeLee, Jesse Clyde DeLee, and Donald' C. DeLee against David A. DeLee. Each of the parties is the owner of an undivided one-sixth interest in the hereinafter described properties, except for Jesse Clyde DeLee and Donald C. DeLee, who own an undivided one-twelfth each.

The property sought to be partitioned is described as follows:

"1st: A tract of land, with the improvements thereon, containing 108.5 acres, more or less, in Section 66, TIS R 3 E and being bounded on the north by lands of Austin; east by formerly Matthews; south by Estate of George Dunn and west by the Liberty Road.
“2nd: A tract of land being and situated in the Parish of East Feliciana, State of Louisiana and containing 46.5 acres in Section 66, TIS R 3 E and being-bounded north by Ben Dunn Estate; east by the Liberty Road; south by David A. DeLee and west by formerly Percy.”

After trial on the merits, judgment was rendered decreeing a partition by licitation, and defendant has appealed.

The major question presented by this appeal is whether or not the property is susceptible of division in kind.

The following provisions of the Civil Code are applicable in making that determination :

“Art. 1336. The judge who decides on a suit for a partition and on the mode of effecting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the co-heirs,' in conformity, nevertheless, with the following provisions.”
“Art. 1339. When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.”
“Art. 1340. It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.”

Our courts have consistently interpreted the foregoing provisions to mean that a judge must order a partition in kind unless it be proved that the property is indivisible by its nature or that loss or inconvenience to one of its owners would be the consequence of dividing it. Babineaux v. Babineaux, 237 La. 806, 112 So.2d 620 (1959).

The burden of proof therefore rests with those who desire a partition by licitation. The proof offered in this case consists of the testimony of one of the plaintiffs, A. A. DeLee, and of Walter C. Snyder.

Mr. DeLee’s testimony was to the effect that the property could not be divided equally without cutting and selling the timber. He was not familiar with the timber growth on the property, however, and was not certain that the acreage of the property was correct.

Mr. Snyder qualified as an expert forester, surveyor and real estate agent. He walked the perimeter of the 108.5 acre tract as indicated by the defendant to him. He paced off the highway frontage of the 46.5 acre tract, but did not walk on it or around it. He did not survey the property or make any estimation of the timber thereon. He testified that most of the property was rolling hills, not subject to overflow except along a creek in the back of the larger tract. He did not know how much of the property was subject to overflow, but “guessed” at twenty acres.

He stated that the lines of the larger tract shown him by defendant did not appear to correspond with the lines shown on the Tobin Aerial Map of the area. He had no survey of the tracts, and was unable to certify that the acreage in the descriptions was correct. He further testified that he was not familiar with property values in that area.

He was of the opinion, based on his observation of the property, that it could not be divided in kind, among the heirs so long as the timber remained standing. He gave no reason for this opinion.

The record reveals that the old DeLee family home is located on the larger tract, and that there is a barn built by David. DeLee on the smaller tract. The smaller tract was said to be entirely fenced, and the larger to be fenced except along the north line. We are not enlightened as to the shape of the larger tract, the location and value of the house, the barn, the timber, or the pastures.

Lacking the above facts, we do not believe that either Mr. Snyder or this court can say that the property is not susceptible of division in kind. The law does not require that the property be divided into tracts of equal size or shape, nor does it require that the tracts be exactly equal in value. Articles 1365, 1366, 1367, Civil Code. It does require that those who bear the burden of proving property not susceptible of division in kind present to the court sufficient facts on which such an opinion might be based. We find that plaintiffs have failed to bear the burden of proving the property not to be susceptible of division in kind. See McDaniel v. Henry, 159 So. 629 (La.App. 1st Cir. 1935).

Defendant has asked to be reimbursed for various amounts allegedly expended on the property. These claims should be dealt with by the notary appointed to make the partition.

The judgment appealed from is therefore amended so as to order that the partition be in kind, and that Robert A. Connell, Notary Public of East Feliciana Parish, be ordered to complete the judicial partition of the property in accordance with the provisions of Articles 1347 et seq. of the Civil Code. All costs of this appeal are to be paid by plaintiffs. All costs of the partition are to be equally borne, by roots, by the parties hereto.

AMENDED AND REMANDED.


author: BLANCHE, Judge. ELLIS, Judge

text:
    Cornelius LANIEUX v. The STATE of Louisiana, Through the LOUISIANA STATE PENITENTIARY AND the DEPARTMENT OF CORRECTIONS.
    No. 10615.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Writ Refused July 1, 1976.

      Byron Magbee, Baton Rouge, for appellant.
    James P. Dore, Baton Rouge, for appel-lee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This is an appeal from a judgment dismissing the suit of Cornelius Lanieux against the State of Louisiana through the Louisiana State Penitentiary and the Department of Corrections. We affirm.

On December 29, 1972, plaintiff was an inmate of the Louisiana State Penitentiary and one of a group of inmates assigned to work with the cattle kept at the penitentiary. At the time of the accident, the group was engaged in attempting to pen a Brahma cow.

Plaintiff and another inmate were standing by a board fence which enclosed a chute or alley through which the cow was to be driven. The fence was five or six boards high, made of six or eight-inch boards mounted about four inches apart. At the point where plaintiff was standing, the second or third board from the bottom was missing.

The cow refused to go past the point where plaintiff was standing, and, being of the opinion that she was frightened by his presence, he stooped down so that she would not be able to see him. The cow then ran past plaintiff and kicked through the gap left by the missing board, striking plaintiff in the mouth with her hoof and causing the injuries complained of.

In the trial court, plaintiff pitched his case on the alleged negligence of the defendant in failing to provide him with a safe place to work by not keeping the board fence in proper repair. He further alleged the failure of the State to furnish him with proper medical attention. The trial judge found no negligence on the part of the State, and he further found that if plaintiff did not receive proper medical attention, it was his own fault for not attending sick call.

The trial judge, in finding no negligence on the part of the State, stated that the purpose of the fence was to keep the cattle from running wild and not to keep the men working with the cattle from being kicked by a cow. We agree. This is simply a finding that no duty was breached by the State to provide plaintiff with a safe place to work because of the failure to replace the missing board on the catch pen when the purpose of the catch pen is taken into consideration. In the absence of a duty to place a board on the catch pen for plaintiff’s protection, there can be no negligence.

Negligence is the failure to exercise ordinary and reasonable care under the circumstances to avoid injury to one owed a duty of care. Stated otherwise, negligence is a breach of duty to protect against an unreasonable risk of foreseeable harm. Taylor v. National Indemnity Company, 215 So.2d 203 (La.App. 3rd Cir. 1968) ; Traders & General Insurance Company v. Robison, 289 So.2d 178 (La.App. 1st Cir. 1973).

However, assuming arguendo that the fence was around the pen for the protection of the inmates, plaintiff fails the foreseeability test, because even the keenest hindsight would defy the foreseeability of plaintiff’s injury. For plaintiff’s injury to have occurred, the following combination of circumstances had to occur simultaneously. First of all, the presence of an agitated cow being chased in the pen by others is required. According to the evidence, the cow which the inmates were attempting to pen was in poor condition and easily agitated. There is evidence that the foreman told the inmates to leave the cow alone until she cooled down. This testimony was believed by the trial judge. Nevertheless, the evidence shows that inmates were attempting to drive an agitated cow into a chute at one end of the pen. Secondly, to avoid “spooking” the agitated cow as she went into the chute, the plaintiff stooped down at a place on the outside of the pen where there happened to be a missing board. With his face thus opposite this opening and while the cow was being driven by the other inmates, the third circumstance occurréd when the cow kicked through the hole in the fence and struck the plaintiff in the mouth where he stooped outside the pen. The risk of such an occurrence, in our opinion, is one which the State could hardly have anticipated and could not have been under a duty to guard against.

Finally, the trial judge rejected plaintiff’s contention that the State failed to afford him proper medical attention. In so finding, the trial judge stated that he was not impressed with this assertion because plaintiff had failed to appear for a number of dental “call outs” after a sufficient period had elapsed for the recovery of his gums and lips. He further noted that plaintiff’s medical record revealed that he appeared at the hospital for a number of complaints without calling attention to his loss of teeth. The evidence supports the trial judge’s finding and will not be disturbed by us.

For the above reasons, the judgment of the trial court is affirmed, at the cost of plaintiff-appellant.

Affirmed.

ELLIS, J., dissents and assigns written reasons.

ELLIS, Judge

(dissenting):

I am of the opinion that this case is governed by Article 2321 of the Civil Code, as recently interpreted in Holland v. Buckley, 305 So.2d 113 (La. 1974). Article 2321 provides :

“The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.”

In Holland v. Buckley, supra, at page 119, the court said:

“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.”

If the foregoing is to be literally applied, the State will be liable unless it is shown that the injury resulted from “fault” on the part of the victim, or from some cause not imputable to the State. In my opinion, no such fault on the part of the plaintiff has been shown. That the cow would kick through the hole in the fence is an event no more foreseeable by plaintiff than by the defendant. It may be that getting kicked in the mouth by a cow through a hole in the fence is a risk inherent in being a cowboy, in which case plaintiff would be at fault in assuming that risk. No such showing is made in the record, however,

I note that, in adopting the interpretations placed on this codal provision by certain French commentators, the Holland court overlooked the fact that Article 2323 of our code has no counterpart in the Code Civil. I therefore question whether “fault” on the part of the victim should constitute an absolute defense in cases of this kind. We are, of course, not dealing with liability based on negligence, so that the defense of “contributory negligence”, supplied by our courts so long ago, should not be available. Article 2323, read in context, must be considered one of the “modifications” referred to in Article 2317, since it has never been treated as having any application to cases arising under Articles 2315 and 2316. Application of that article, when appropriate, should result in the fault of the victim being used in mitigation of damages, rather than as an absolute defense.

In this case, however, I see no fault on the part of the plaintiff, and believe that full recovery should be allowed.


text:
    Robert and Lucille ROUGH v. Curtis P. LANDRY and The Travelers Insurance Company.
    No. 10628.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      Michael X. St. Martin, Houma, for plaintiff-appellant.
    John F. Pugh, Thibodaux, for Third Party defendant-appellants Daniel Sander and Liberty Mut.
    Charles G. Blaise, Houma, for Third Party defendant-appellants Daniel Sauder and Wynona Sauder.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto for damages arising from personal injuries received by the plaintiff, Lucille Rough, a guest passenger in an automobile involved in a rear-end collision. Plaintiffs, Robert and Lucille Rough, were guest passengers in an automobile owned and operated by Daniel L. Sauder, which automobile was rear-ended by an automobile owned and operated by the defendant, Curtis P. Landry. Initially, plaintiffs, Robert and Lucille Rough, filed suit against Curtis P. Landry and his liability insurer, The Travelers Insurance Company (hereinafter sometimes referred to as Travelers). Landry and Travelers answered denying liability and in the alternative third partied Daniel Sauder and his liability insurer, Liberty Mutual Insurance Company (hereinafter sometimes referred to as Liberty), and in the further alternative pled that Sauder was concurrently negligent making him a joint tort feasor and therefore responsible for one-half of any judgment rendered in favor of the original plaintiff against the original defendant.

Subsequently, Wynona Sauder, wife of Daniel Sauder, and a guest passenger in his car, intervened and filed suit for personal injury damages against Landry and Travelers. Sauder then supplemented his answer to the third party demand by reconvening against Landry and Travelers for damages. Sauder further supplemented and amended his reconventional demand by pleading that Landry had the last clear chance to avoid the accident. Lastly, on December 13, 1974, Robert and Lucille Rough amended their original petition to further plead the negligence of Sauder and to name Liberty as a defendant in solido with Landry and Travelers. During the trial, Liberty filed an exception of prescription inasmuch as the accident had occurred on November 4, 1973, and this was the first time that Liberty had been named as a party defendant, and it was the contention of Liberty that the action against it had prescribed unless the Court should find that Liberty was a joint tort feasor with Landry and Travelers.

On June 20, 1975, the Trial Court rendered its judgment, finding that there was no negligence on the part of Curtis P. Landry and that the sole and proximate cause of the accident was the negligence of Daniel L. Sauder. It dismissed the claim of Robert and Lucille Rough against Landry and Travelers as well as the reconven-tional demand of Daniel L. Sauder and the intervention of his wife, Wynona Sauder against Landry and Travelers. On October 20, 197S, the Trial Judge, realizing no mention having been made in the June 20 judgment of the claim by the Roughs against Liberty Mutual and the plea of prescription, rendered judgment maintaining the plea of prescription and dismissing their action. The judgment of June 20 has been appealed by Robert and Lucille Rough and Daniel and Wynona Sauder, and the October 20 judgment has been appealed by Robert and Lucille Rough.

The accident occurred at night on November 4, 1973, after Sauder pulled out of the parking lot at the Houma Bowling Lane, in Terrebonne Parish, onto Louisiana Highway 24. The Sauder vehicle was heading south toward Houma, after turning onto the highway, when it was hit from the rear by the vehicle operated by Landry. Daniel Sauder as well as Robert and Lucille Rough all testified that prior to pulling out of the parking lot they checked for oncoming traffic, did see a car approaching in a distance, but felt that they could safely complete their entrance onto the highway. Curtis Landry testified that he was traveling abo.ut 50 miles per hour, rounded a curve located three-tenths of a mile north of the parking lot, and could see this car right on him. Wayne Haddad, who was traveling this highway in the same direction as Landry and whom Landry had just passed, testified that Landry was traveling between 60 and 65 miles per hour at the time Landry passed him. Joseph Credeur was approaching the site of the accident from the south or the opposite direction as Landry and Haddad. He saw the Sauder car at the exit of the parking lot, saw the Landry car had already rounded the curve, and then saw the Sauder car pull out of the parking lot real slow as if he had not seen the approaching car. He realized that there was going to be either a rear-end collision between Landry and Sauder, or a head-on collision between Landry and himself. The investigating state trooper estimated that the point of impact was 51 feet from the parking lot exit, that Sauder was traveling 10 miles per hour, Landry 60 miles per hour, and that neither driver gave any indications of having been drinking.

The Trial Judge has not favored us with written reasons for judgment, other than his statement in the June 20, 1975, judgment that there was no negligence on the part of Landry, and the sole and proximate cause of the accident was the negligence of Daniel L. Sauder. From the above facts as found in the record, we must agree with the Trial Judge. Canter v. Koehring Company, La., 283 So.2d 716 (1973), reh. denied (1973).

The law is clear that the driver entering a main or favored highway is required to ascertain by looking and by other suitable means that his entry in the light of existing and visible traffic conditions may be made with safety.

As to the plea of prescription, it is well settled that citation served upon one of several joint tort feasors interrupts prescription as to the others. LSA-C.C. art. 3552 and Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948). Inasmuch as no negligence was found on the part of Curtis P. Landry, we agree with the maintenance of the plea of prescription by the Trial Judge.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by appellants.

Affirmed.


author: SARTAIN, Judge.

text:
    BERRY BROTHERS GENERAL CONTRACTORS, INC., Plaintiff-Appellee, v. AIR MARINE, INC. and Dan W. Slaton, III, Defendants-Appellants.
    No. 10627.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Robert J. Adams, Lafayette, for defendants-appellants.
    John E. Conery, Franklin, for Berry Bros.
    Frank Judycki, Morgan City, for Dan Slaton.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   SARTAIN, Judge.

Plaintiff, Berry Brothers General Contractors, Inc., (Berry), is the owner of a 1973 Cessna 185 Skywagon amphibious aircraft. On April 30, 1973, this aircraft was damaged as a result of a crash while the same was being piloted by Dan W. Slaton, III (Slaton), an employee of Air Marine, Inc. (Air Marine). This suit is for the recovery of damages occasioned to the airplane as a result of the accident. Judgment was rendered in the trial court in favor of Berry and against Air Marine and Slaton, jointly, severally and in solido, in the amount of $43,773.26, from which judgment Air Marine now appeals. We affirm.

Berry’s petition alleges, inter alia, certain specific acts of negligence on the part of the pilot, Slaton. In addition, the petition charges that Air Marine failed to provide a pilot (Slaton) with the necessary skills to avoid such an accident, thereby breaching Air Marine’s obligation to Berry under contract wherein the former was to furnish the latter a competent pilot.

Slaton filed a general denial as to the allegations of negligence on his part. Air Marine, while denying negligence on the part of Slaton, also defends on the grounds that in the event Slaton is deemed to be incompetent, then Berry assumed the risk flowing from his incompetency in that Berry was fully cognizant of Slaton’s capabilities. Air Marine further contends that at the time of the accident Slaton was a borrowed employee of Berry and that Berry rather than Air Marine is responsible for any negligence on the part of Sla-ton.

The trial judge, in his oral reasons for judgment, held that Slaton was a competent pilot but that the accident was due to negligence on his part. The judge a quo further found that Slaton was not a borrowed employee but was performing services in the furtherance of Air Marine’s business.

It is undisputed that Berry is in the business of maintaining and servicing oilfield installations. It is also conceded that Air Marine is in the business of chartering aircraft and/or pilots to various business concerns.

Shortly before noon on the day of the accident Slaton was dispatched from Air Marine’s office to Berry’s hangar at Patterson Memorial Airport, Patterson, Louisiana. There he met the dredging superintendent of Berry, Mr. John Lapeze. Sla-ton was informed by Lapeze that they were to go to a Shell Oil Company rig near Gibson (Shell-Gibson), pick up another passenger, then go to another Shell Oil Company rig near Chauvin (Shell-Chau-vin), fly back to Shell-Gibson, then return to Patterson, Louisiana.

The aircraft left Patterson Airport with Slaton as pilot and Lapeze as passenger. They landed in a canal at Shell-Gibson and while taxiing to a dock they felt the left float strike a submerged object. They docked, remained there for about fifteen minutes, picked up a passenger and took off again for Shell-Chauvin.

The canal at Shell-Chauvin runs in a northeasterly to a southwesterly direction. The barge is located on the southern bank. The wind was blowing from the south at about 15-20 m. p. h. Slaton flew over the canal and observing no physical object to impede his landing, proceeded to land. His approach was northeast to southwest. The aircraft touched down at a speed of 60-80 m. p. h. Slaton then attempted to turn the plane more to the north or to his right but the aircraft failed to respond to his efforts to do so. The left wing then struck a portion of the barge causing extensive damages to the aircraft. The speed of the aircraft at the moment of impact was estimated to be anywhere from 30-50 m. p. h.

ASSUMPTION OF RISK

The defense’s assumption of risk is in response to Berry’s allegations relating to Slaton’s inability to pilot an amphibian aircraft. It is obvious1 from the record that Berry abandoned this averment because the evidence adduced by Berry is tc the contrary, i. e., that Slaton was a qualified pilot but used faulty judgment on this particular occasion. Slaton had piloted Berry’s aircraft on no less than five nor more than twenty previous occasions. He was not only properly licensed to fly this type of aircraft but he had done so with several of Berry’s employees, who expressed confidence in his ability. The trial judge properly rejected this defense.

NEGLIGENCE OF SLATON

There are two versions as to how this accident occurred, one advanced by Air Marine and the other urged by Berry.

Air Marine argues that the accident was not the result of a pilot error but was occasioned by the damaged left float. When the aircraft was brought back to the hangar at Patterson after the accident, it was inspected by Slaton and others. A small slit was observed on the bottom of the left float. Slaton could not recall which compartment. The report of the accident to the federal authorities relates the incident of striking a submerged object at the Shell-Gibson location. However, it notes that the “Impact of object hit on previous landing was not thought to be detrimental in any way to flight characteristics or handling of aircraft in any way.” This report was signed by Slaton.

Defendant argued in brief and orally that it was water in the left float which caused this float to submerge to a depth where it destroyed the pilot’s ability to make a right turn by use of his controls.

Berry’s version of the cause of the accident is the same as that given by Sla-ton. While acknowledging his previous opinion that the damaged float caused the accident, Slaton stated that after much thought and consideration of the factors involved he had to conclude that he landed “too long” and “too fast” under the prevailing conditions. He explained that notwithstanding the length of the canal, he landed too close to the barge. Further, the canal was lined with trees that shielded the canal itself from strong gusts of crosswind. However, near the barge there was a break in the trees which permitted this wind to come through. He said that after he touched down he had reduced his speed to a point where the crosswind effect overcame the “rudder” control of the aricraft. The wind from the left forced the tail of the aircraft to the right which in turn forced the nose of the plane to the left. Had he landed near the end of the canal he could have maintained a greater water speed for a longer distance and thereby insured mor “rudder” control. He expressed this same view in a pretrial deposition which was offered in evidence. He discounted any possible effect that prior damage to the left float might have had on the difficulty he experienced near the barge because he had observed the float in the water at Shell-Gibson and encountered no difficulty in taking off at this location.

Slaton’s testimony relative to landing in close proximity to the barge, the crosswind, and the lack of rudder control is corroborated by Lapeze.

The trial judge in his reasons for judgment stated:

“On the question of liability, the Court finds that the plaintiff has proven by a complete preponderance of the evidence that the cause of the accident and the damage resulting therefrom to Berry Brothers’ airplane was caused by the fault and negligence of Mr. Dan Slaton, the pilot. Mr. Slaton, who has otherwise in his career been an excellent pilot, honestly and forthrightly testified before this Court that initially he believed the cause of the damage was a hole in the float which took on water and caused the plane to veer to the left. However, upon serious reflection, he now believes that the cause of the accident was the fact that he landed ‘too long and too fast’ and that this was the principal cause of the accident; for if he had not landed so long or so fast, he would not have collided with the barge.
The Court accepts Mr. Slaton’s testimony as corroborated by Mr. Lapeze that this was the primary cause of the accident and the cause of the damages relating thereto. Therefore, Mr. Slaton was at fault in causing the accident and will be held liable therefor”.

We find that the conclusion reached by the trial judge, above, is amply supported by the record.

BORROWED EMPLOYEE

As stated above, Air Marine seeks to avoid liability on the grounds that Slaton was a borrowed employee or an employee pro hac vice of Berry. If this is correct then Berry, as master, instead of Air Marine is responsible for the torts of Slaton. Inasmuch as a servant can have but one master, Air Marine is then relieved of liability because the relationship of master and servant which previously existed between Air Marine and Slaton is determined to be suspended. Universal Eng. & B., Inc. v. Lafayette Steel Erec. Corp., 235 So.2d 612 (La.App. 3d, 1970). The burden of proof in establishing that an employee is the borrowed servant of another rests with the employer. Accordingly, it is essential that the borrowing employer has the right of control, that the borrowing employer does, in fact, exercise control over the employee, that the general employer has relinquished the right of control, and that the employee is performing work for the borrowing employer in the latter’s business. Universal Eng. & B. v. Lafayette Steel Erec. Corp., above. In 17 A,L.R.2d 1388, the essential elements are stated to include the right to select and discharge the employee; the right to supervise and direct, not merely the work to be done, but the method by which it should be done; and, the manner in which the employee is paid.

In the instant case, Berry would call Air Marine and request a pilot. If one was available Berry would be so notified and the pilot dispatched to Berry’s hangar, Air Marine charged Berry on an hourly basis, $10.00 per hour for flying time and $5.00 per hour for standby duty. Slaton was paid by Air Marine for a five day work week. The amount of his salary does not appear in the record.

The cases of Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1951) and McCutchen v. Fruge, 132 So.2d 917 (La. App. 3rd, 1961), contain exhaustive reviews of the jurisprudence of this state involving factual situations wherein a determination of the status of a paid employee was essential to a resolution of the issue on liability.

The court in McCutchen stated:

“ . . . we think it is now settled that the most important test to be applied in determining the status of the employee is to ascertain who controls him in that employment, and more particularly, who has the power and right to control and direct him in the performance of his work.”

The trial judge, in concluding that Sla-ton was not a borrowed employee of Berry at the time of the accident, stated:

“With regard to the liability of the defendant Air Marine, it was established at this trial that Mr. Slaton was at the time of the accident and for some time prior thereto a charter pilot on the payroll of Air Marine, Incorporated; that for his services, Air Marine made a charge of ten ($10.00) dollars per hour for flying time and five ($5.00) dollars per hour for standby time and that these were in fact the charges made to Berry Brothers for this flight and previous flights.
“It was established that on the date of the accident, Mr. Slaton was in fact employed by Air Marine, Incorporated; that he was acting within the course and scope of his employment for Air Marine.
“The defendant Air Marine seeks to escape liability in this case by having the Court determine Mr. Slaton was at the time of the accident a borrowed servant or. employee; and in furtherance thereof, attempted to prove that Berry Brothers or its employees exercised direct and complete control over Mr. Slaton and his flying activity.
“The Court decides otherwise. It was shown to the complete satisfaction of the Court by the testimony primarily of Mr. Slaton, himself, and by that of Mr. Mer-ryman and Mr. Zweigle that Mr. Slaton was not a borrowed employee as defined by our jurisprudence. The only instructions given to Mr. Slaton by Berry Brothers or any of its employees was that of the destination of the flight. In all other respects, Mr. Slaton testified that he was in sole command of the aircraft and had the unlimited control and decision as to whether or not the aircraft was safe to fly, whether the trip would in fact be made because of any unsafe attitude of the aircraft, that he was in sole command as to when the flight would commence and when it would end, that any decision with regard to the flying or mechanical operation of the aircraft was his and his alone. He further testified that if he had been instructed by Air Marine at any time during the flight to return to the base or to take some other action, he would have obeyed the orders of his superiors.
“But more importantly from the other side of the coin, the only control exercised by Berry Brothers over Mr. Slaton was to tell him the destination of the flight. The Court views this as far, far insufficient to establish that Mr. Slaton was at the time of this accident a borrowed servant or employee. The Court rather finds that at the time of the accident, Mr. Slaton was in fact an employee under the control and supervision of his employer, Air Marine, Incorporated. The Court therefore finds that under the doctrine of respondeat superior, Air Marine, Incorporated is liable to the plaintiff, Berry Brothers, for damages resulting from this accident and to this aircraft.”

We find that his decision in this respect conforms to the facts presented and represents a proper application of the law.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: BENNETT, Judge.

text:
    Wilson Callender KREBS v. BAILEY’S EQUIPMENT RENTALS, INC.
    No. 10607.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      Wilson C. Krebs, Patterson, for appellant.
    Robert S. Robertson, Morgan City, for appellee.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   BENNETT, Judge.

This is a suit by an attorney seeking compensation on a quantum meruit basis for legal services performed for a. client.

During early 1971 Mr. C. D. Bailey, President of Bailey Equipment Rentals, Inc., began utilizing the services of Mr. Wilson C. Krebs, Attorney, for the collection of open accounts and certain other legal work on behalf of his company. The collection work was done on a contingency fee basis with Mr. Krebs usually receiving one-third of the amounts collected.

In September of 1974, Mr. Bailey terminated his relationship with Mr. Krebs and requested that his files be sent to another attorney. Shortly thereafter, Mr. Krebs billed Bailey Equipment Rental for work done on a number of files including those involving collection of open accounts. Mr. Bailey refused to pay and this lawsuit was commenced.

The plaintiff alleged that Two Thousand Eight Hundred Ten and no/100 Dollars was due for work done on the following described matters:

1. B & D Welders: • — ■ A collection matter for which One Hundred and Fifty Dollars was billed.
2. Triple “H” Valve Service : — A matter involving preparation and execution of a note for which Two Hundred Dollars was billed.
3. F & H Oilfield Service: — A collection matter for which Three Hundred Dollars was billed.
4. Delta Marine Engineering: — A collection matter for which One Hundred Fifty Dollars was billed.
5. Action Divers, Inc: — A collection matter for which Seven Hundred Fifty Dollars was billed.
6. Gulf Engine and Equipment, Inc.: — This was a suit against Bailey Equipment Rentals, Inc. and One Thousand Two Hundred Sixty Dollars was demanded for efforts in defense thereof.

After trial the Court awarded Three Hundred Dollars in connection with the Gulf Engine and Equipment case and rejected the other demands of plaintiff. He appeals from that judgment.

The appellant contends the trial court erred in two respects:

1. By failing to grant recovery on a quantum meruit basis for legal services performed in connection with collection of the open accounts; and

2. By only awarding Three Hundred Dollars for work alone on the Gulf Engine and Equipment Case.

Evidence adduced at trial established that the collection work alone by Mr. Krebs for Bailey Equipment Rentals, Inc. was performed on a contingency basis with the attorney being compensated only if an amount was collected. Mr. Krebs usually received one-third of the amount collected as his fee.

We find that under the fee arrangement between the parties any and all amounts due and owing for legal services with respect to the B & D Welders account and the Action Divers, Inc., account were paid and have been satisfied.

The evidence clearly establishes that the entire sum demanded from B & D Welders was paid and that the attorney received one-third of that amount long before termination of the relationship between the parties.

The evidence also establishes that approximately Fifteen Hundred Dollars was collected from Action Divers, Inc., and that Mr. Krebs received one-third of that amount promptly after payment by the debtor.

The demands of appellant with regard to work performed on the F & H Oilfield Service and Delta Marine Engineering accounts present a more difficult question.Suit was filed against F & H Oilfield Service in 1969 by counsel other than Mr. Krebs. Mr. Krebs entered the case on June 1, 1971 and obtained an uncontested judgment against F & H on May 3, 1972. The evidence indicates F & H is and was a Corporation without apparent assets and that subsequent to obtaining the judgment no effort was made to seek out assets. This matter has laid dormant since May of 1972.

The effort to collect from Delta Marine Engineering was initiated by Mr. Krebs in December of 1971. When the debtor failed to respond to amicable demand Mr. Krebs sent the file to an attorney local to the debtor in February, 1972 to effect collection. At the time of trial of this matter nothing had been collected from Delta.

It is firmly established that a client may revoke a contingency fee contract with an attorney at any time and that upon such revocation the attorney is reduced to recovery on quantum meruit for services rendered. Louque v. Dejan, 129 La. 519, 56 So. 427 (1911); Succession of Carbajal, 139 La. 481, 71 So. 774 (1916); Tennant v. Russell, 214 La. 1046, 39 So.2d 726 (1949); Wright v. Fontana, 290 So.2d 449 (La.App.2d Cir. 1974); Inman v. Gonzales, 89 So.2d 914 (La.App. 1st Cir. 1956). As the Court said in Wright v. Fontana, supra at 451,

“Where the contract is prematurely terminated by the client, the attorney is entitled to recover even though the contract was for a contingent fee based on the amount recovered.” (Emphasis added)

The use of “prematurely” in the formulation quoted above is crucial. Our research has failed to disclose any jurisprudence supporting the proposition that discharge of an attorney employed under a contingent fee contract after he has been given a reasonable opportunity to fulfill the contract and has failed to do so gives rise to recovery upon a theory of quantum meruit where at the time of bringing of the action the client has recovered nothing from the debtor. The sense of the jurisprudence as we appreciate it is that premature discharge of an attorney which deprives him of a reasonable opportunity to fulfill the contract entitles him to reasonable compensation for his services. Wright v. Fontana, supra; Inman v. Gonzales, supra, cf. United Gas Public Service Co. v. Christian, 186 La. 689, 173 So. 174 (1937). Also, discharge of an attorney even after he has had a reasonable opportunity to fulfill the contract and has failed to do so entitles him to reasonable compensation after recovery by the client where the services rendered contribute to the recovery. See Succession of Payne, 155 La. 177, 99 So. 29 (1923). Cf. Rousseau v. Marionneaux, 28 La. Ann. 293 (1896).

Under the circumstances we cannot say discharge of Mr. Krebs with respect to the Delta Marine and F & H accounts was premature. He was given a reasonable opportunity to effectuate collection of the accounts. Thus, he is not entitled to compensation for his efforts unless and until payment is made to Bailey Equipment Rentals by the debtors.

Mr. Krebs during his employment by Bailey Equipment Rental, Inc. undertook defense of a suit by Gulf Engine and Equipment, Inc., against the company. On June 5, 1974 he tendered a written bill in the amount of Three Hundred Dollars for work done on the case stating, “ . for services rendered to date on this case.” This bill was not paid.

On October 15, 1974, shortly after he was discharged by Mr. Bailey, Mr. Krebs tendered a bill on the same matter in the amount of Twelve Hundred Sixty Dollars. At trial the appellant testified that he performed no work on the case after June 5, 1974 except to file a motion to withdraw as counsel in September of 1974.

The trial court awarded Mr. Krebs the amount of the original bill. He contests that ruling arguing that it was an interim bill which did not reflect all of the services rendered prior to June 5, 1974, being submitted only to soften the impact of the final bill, and that his services should be evaluated and compensated on a quantum meruit basis.

We do not agree with appellant’s contention. It is true that the bill was an interim bill in the sense it was submitted during the course of an ongoing lawsuit during which additional services could reasonably be expected to be rendered after the date of the billing. However, the statement purports to be for all services prior to its date. It is a final bill for all services rendered in connection with the Gulf Engine and Equipment case prior to June 5, 1974.

We find the case of Guerriero v. Davidson, 229 La. 664, 86 So.2d 526 (1956), to be dispositive of this issue. At pages 527, 528 of the opinion in that case the Court said:

“But, apart from this plaintiff could not recover more than $1,000 on a quantum meruit basis since that was the value he placed on his own work ... It has been held that, when an attorney sends a bill to his client for services rendered, he is concluded as to the value of his services in the absence of a showing of error special conditions respecting prompt payment and the like. Succession of Flower, 3 La.Ann. 292 and Carey v. Sentell, La.App., 64 So.2d 451, certiorari denied June 1st 1953.”

The appellant does not contend that error was made in compiling the bill sent on June 5, 1974. Rather it is now contended that the bill was deliberately incomplete despite the statement in the bill to the contrary. We find the appellant was bound by his written bill and is not entitled to more than the amount of the bill. The ruling of the trial court was correct.

For the reasons assigned the judgment rendered by the Court below is AFFIRMED, at Appellant’s cost.

AFFIRMED.

      . The trial court held that this fee had prescribed. Appellant conceded the correctness of that ruling at argument. Hence, this claim is not at issue in this appeal.


author: HOOD, Judge.

text:
    HIGHLANDS INSURANCE COMPANY, Intervenor-Appellant, v. L. J. DENNY AND SON and State Automobile Insurance Association, Defendants-Appellees.
    No. 5351.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    Writ Refused June 2, 1976.

      Davenport, Files & Kelly by William G. Kelly, Jr., Monroe, for defendant-inter-venor-appellant.
    Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendants-appllees.
    Before HOOD, GUIDRY and PETERS, JJ.
   HOOD, Judge.

Billy Miller, an employee of Computerized Natural Resources (CNR), instituted this suit for damages for personal injuries sustained by him while he was assisting in dismantling and moving an oil rig. The defendants are L. J. Denny and Son Trucking Company and its insurer, State Automobile Insurance Association. Highlands Insurance Company, the workmen’s compensation insurer of CNR, intervened seeking to recover from defendants the compensation payments it made to Miller.

Miller entered into a compromise settlement with defendants while the suit was pending, and pursuant to that settlement judgment was rendered dismissing his demands against defendants, but reserving to Highlands the right to prosecute its claim against defendants for reimbursement of the compensation benefits it paid to Miller.

After trial, the trial judge concluded that the employees of Denny Trucking Company were not negligent, and he accordingly rendered judgment in favor of defendants, rejecting Highlands’ demands and dismissing its intervention. Highlands appealed.

The issues presented are: (1) Were employees of the Denny Trucking Company negligent ? (2) Was plaintiff Miller or any other employee of CNR negligent, and if so, does'that negligence bar intervenor, CNR’s insurer, from recovering from defendants the amount of workmen’s compensation benefits intervenor paid to Miller? (3) Were the driver and swamper on the Den-n’y Trucking Company winch truck employees “pro hac vice” of CNR at the time of the accident, with the result that the general employer, Denny, was not responsible for the negligent acts of those employees ?

On December 16, 1969, Billy Miller was working for CNR as a member of a drilling crew on one of its oil rigs in Concordia Parish. CNR at that time was in the process of dismantling that rig and moving it to a location in Mississippi. It had engaged L. J. Denny and Son Trucking Company, a partnership composed of L. J. Denny and J. R. Denny, to haul the rig to the new location. While a part of the rig was being lifted and moved so that it could be loaded on a truck, a chain caught on the substructure of the rig, causing the substructure to overturn. Plaintiff Miller was injured as a result of that accident.

Several of Denny’s trucks were being used to load and to move the rig. Most of the trucks were equipped to haul heavy loads, and those vehicles were used to do the actual hauling. One of the trucks, however, was a “winch truck,” equipped with three winches and a set of gin poles. That truck was used solely to lift and move parts of the rig as the latter was being dismantled, and to either load those pieces of equipment on the trucks which did the hauling or put them in places where they could be easily loaded on trucks later.

Each truck used by the Denny Company in performing the work was operated by a driver employed by that company, and in some instances a helper or swamper also was assigned to a truck. The above winch truck was operated by a driver and a swamper. Thomas George was the driver of the winch truck, and he also was the “truck pusher” for Denny at the time the accident occurred. As truck pusher, George was in charge of all of the drivers and of all of the trucks being used by Denny on that job. Tom Branch was working as the swamper on the winch truck. His duties as swamper, among other things, were to handle the line of the winch truck, to tie that line onto loads which were to be lifted and moved, to giye signals to the truck driver when the load was ready to be lifted or moved, and to take the winch line loose from the load after it had been deposited in its proper place. Both of these employees, George and Branch, were experienced in the work they were performing, and both of them were regular employees of the Denny Company.

Most of the drilling rig, including the derrick, had been dismantled and had been hauled away by the time the accident involved here occurred. Only the substructure of the rig and some appurtenances to it remained in place. Several employees of CNR, including Miller, were on the floor of the substructure and were engaged in dismantling the rig. The CNR crew removed pins from the dividers which held the substructure in place shortly before the accident occurred.

The evidence indicates that the CNR employees used a section of chain with at least two hooks on it to make a bridle around a heavy piece of equipment which was to be moved. The winch line or cable from the gin pole on the truck was then fastened to that bridle. After the winch line had been hooked to the bridle, the driver of the truck caused the rig section to be raised several feet above the ground. It became apparent as soon as the load was raised that a length of chain, from five to eight feet long with a hook on the end of it, was left hanging loose below the piece of equipment which was being moved. This length of chain was a part of the bridle which had been made for or looped around the equipment.

After the above piece of equipment had been raised above the rig floor, the driver of the winch truck caused that vehicle to begin to move forward with its load suspended by a cable from the end of the gin pole in the back of the truck. The ground was muddy, however, and that caused the wheels of the truck to spin and that vehicle to sink deeper in the mud. When the wheels of the truck gained traction, the vehicle suddenly began to move forward, and as it did so the length of chain which was hanging from the load caught on a part of the substructure of the rig and the truck pulled the substructure over. The truck travelled a distance of from ten to twenty feet before the chain caught on the substructure and turned it over. Plaintiff Miller was on the substructure at that time, and he was injured as a result of the accident.

Intervenor contends that the sole cause of the accident was the negligence of defendants’ driver, George, in driving that truck forward when it was unsafe to do so, that is while a length of chain was hanging from the load it was moving, and in failing to maintain a proper lookout as the truck began moving to make sure that the hook on the chain cleared the substructure.

Defendants contend that the sole cause of the accident was the negligence of CNR employees (1) in failing to tie the bridle chain properly to the load which was being lifted, and particularly in allowing a part of that chain to hang while the load was being moved; (2) in signalling to the driver of the truck that it was safe for that vehicle to be moved forward; and (3) in removing the locking pins from the dividers of the substructure floor before the other dismantled equipment had been moved from the rig site.

The driver and the swamper on the winch truck were aware of the fact that a length of chain with a hook on the end of it was dangling from the load as it was being lifted and moved from the rig site. Both realized that there was a danger that the hook would catch on the substructure as the truck was being moved, and that damages or injuries might result if that occurred.

George testified that he saw the chain with a hook on the end of it dangling under the load before he began moving the truck. He said that he asked someone on the floor of the substructure if it was “high enough” to clear that structure, and that a CNR employee thereafter gave him. a hand signal to go ahead. He stated that Branch, his swamper, was standing on the ground beside the cab of the truck, that Branch saw the chain hanging down, and that Branch also signalled for George to drive forward after Branch saw someone on the rig give a similar signal. George admitted that he customarily would not allow a chain to hang down from a load as it was being lifted and moved with a winch truck, because of the danger that the chain would catch on something. He testified that he knew that there was a possibility that the hook on the chain would catch on the substructure in this instance when he moved the truck forward. After the above signal was given to him, he began to move the truck forward and he did not look back again until after the accident occurred.

Branch testified that he was standing near the rear of the truck, and that he saw the chain dangling when the load was first lifted from the floor of the substructure. He knew that it was dangerous to move the truck while the chain was hanging down, and he says he told the men working on the floor of the substructure that “they’d better hook that chain back up.” He testified, however, that he said nothing to George, the driver of the truck, about it, and he denies that he gave George a signal to move forward with the truck.

The evidence is conflicting as to whether the bridle or hookup for the equipment which was being moved was made by CNR employees or by employees of the Denny company. We are convinced that it was made by CNR employees. George and Branch were the operators of the winch truck, however, they were experts in lifting and moving heavy equipment, and they were employees of the Denny Company. Both of them observed the manner in which the hookup was made, and both saw the chain dangling from the load before the truck was moved. George acknowledges that it was dangerous to move the load under those circumstances, but he proceeded to move it in spite of that known danger, as “truck pusher,” he had complete control of the manner in which the winch truck was operated, and he had the right to require that the chain be hooked up as was customary before he proceeded to move the truck. Branch also was aware of the danger. He was in full view of the truck driver at all times, and he could have told or signalled to George that the movement of the truck should be delayed until the end of the chain was hooked up or changed so as to remove the apparent danger.

The fact that an employee of CNR motioned to George indicating that it was safe for him to move the winch truck forward after picking up the load does not excuse George’s negligence or relieve defendants from liability. In that connection we distinguish from the instant suit the case of Amunson v. Wyatt Industries, Inc., 281 So.2d 874 (La.App. 1 Cir. 1973), cited by defendants as authority for their argument that George was entitled to rely on the signals given to him by someone on the floor of the substructure. In Amunson the operator of the draw works which was used to lift employees to the top of a tower was required to be in such a position that the basket and the whipline, constituting parts of the lifting device, were completely out of his sight, and it was necessary for him to rely on signals from other employees before engaging the draw works. He had no knowledge of the danger, and he thus was found to be not negligent. In the instant suit, the danger was obvious to George before he began moving the truck, he was the expert in charge of moving the rig, he could see the dangling chain and the substructure, he did not have to rely on signals from anyone else insofar as that particular danger was concerned, and he proceeded to drive his truck forward although he knew that damage or injury might result from his action in doing so.

The evidence convinces us that defendant Denny’s employee, George, was negligent in causing the winch truck to move forward when he knew that it was unsafe to do so, in failing to maintain a proper lookout while the truck was moving and in failing to bring it to a stop after the chain hooked on the substructure and before that part of the rig was overturned. His negligence in that respect was a proximate cause of the accident.

Defendants contend, however, that inter-venor is barred from recovering in this action by the contributory negligence of plaintiff Miller and the employees of CNR. They argue primarily that Miller was negligent in assisting in the removal of the interlocking pins on the divider of the substructure before all other parts of the rig had been moved away from the site, and that his contributory negligence alone bars intervenor from recovering.

The evidence indicates that the substructure would not have overturned if the pins had been in place at the time the accident occurred. Miller concedes that he assisted in removing those pins before he was injured.

Miller was employed to work as a roughneck on the rig, and there is nothing in the record indicating that he departed from his regular assigned duties in removing those pins. He was under the direct control of the tool pusher and the driller for CNR, both of whom were present on the job. We assume that he was directed by his superiors to remove the pins, and the evidence does not show that he performed that job negligently or improperly.

We conclude that Miller was not negligent, in assisting in the removal of the pins before the accident occurred. Having reached that conclusion, it is unnecessary for us to consider the legal question of whether negligence on his part would have barred recovery by intervenor.

Defendants argue further that CNR, in-tervenor’s insured, was chargeable with contributory negligence for permitting the premature removal of the interlocking pins before all other parts of the rig had been removed, and that its negligence in that respect bars intervenor from recovering in this case.

Our law is settled that the negligence of an employer does not bar his right to recover from a negligent third party tort feasor the amount of compensation benefits which the employer paid to an injured employee. Vidrine v. Michigan Millers Mutual Insurance Company, 263 La. 300, 268 So.2d 233 (1972); Badeaux v. Patterson Truck Line, Inc., 247 So.2d 875 (La.App. 3 Cir. 1971) ; See also LeJeune v. Highlands Insurance Company, 287 So.2d 531 (La.App. 3 Cir. 1973).

Defendants argue that Vidrine, supra, is not applicable here, because in that case the employer was only “vicariously liable,” while in the instant suit CNR is chargeable with “personal rather than imputed negligence.” They contend that CNR was “grossly derelict in permitting” the removal of the pins before all of the other parts of the rig had been removed, and in establishing a “procedure on the job” of removing the interlocking pins prematurely while rigs were being dismantled. Their argument is that this personal contributory negligence on the part of CNR, as distinguished from imputed negligence, bars CNR’s insurer from recovering.

We find nothing in the evidence which tends to establish that CNR established a “procedure on the job” of removing interlocking pins at any particular time. There also is nothing in the evidence tending to show that CNR, as a legal entity, permitted the removal of the pins. We assume that its employees authorized that part of the work to be done, but we are unable to distinguish this case from Vidrine, supra, insofar as the right of the employer to reimbursement is concerned.

In Vidrine, supra, our Supreme Court, after referring to LSA-R.S. 23:1101 and 1103, said:

“In neither of the above quoted sections is there any suggestion that the right to recover compensation actually paid or due is limited to those employers who are blameless, or innocent of any action which might have caused the injury. Furthermore, nothing in the sections creates a classification of employers into those who are at fault and those who are not. Any attempt by this Court to create such a classification would amount to judicial statutory amendment.”

Assuming for the purposes of this suit that CNR was negligent, and that its negligence was personal rather than imputed, we nevertheless find that its negligence, regardless of how it may be classified, does not bar it or its insurer, Highlands Insurance Company, from recovering from defendants the amount of workmen’s compensation benefits intervenor paid to Miller.

Defendants contend, finally, that the driver and the swamper on the winch truck were employees “pro hac vice” or “borrowed servants” of CNR at the time of the accident. They argue that since George and Branch were borrowed servants of CNR, defendants are not responsible for their acts and thus they are not liable to intervenor for the amounts claimed in this suit.

The evidence shows that the Denny Company was engaged in the business of moving oil well rigs. The moving of the rigs included the loading of sections or parts of the rig on trucks as the rig was being dismantled.

The agreement between CNR and Denny was that the latter would provide the necessary trucks, drivers and swampers to complete these loading, hauling and unloading operations. CNR agreed to pay the Denny Company a stipulated rate for the hauling done by that company, according to the weight, of the load carried and the distance traveled by each truck which did some hauling. It also agreed to pay Denny a stipulated sum per hour for the work done by the winch truck which was used in the loading and unloading operations. One of defendants’ witnesses explained that since the winch truck was not equipped to do any hauling, a different rate had to be charged for the use of that truck.

All of the drivers and swampers furnished by the Denny Company, including George and Branch, were general employees of Denny and they were compensated by Denny. CNR made no payments to those employees.

J. R. Denny, one of the partners in the Denny Company, testified that the drilling superintendent for CNR engaged the Denny Trucking Company to move the rig from its location in Concordia Parish, Louisiana to a point in Mississippi. . He stated that he agreed to perform that work for the standard rates which are regulated by the State and Federal Governments, and that he submitted one bill to CNR at the conclusion of the job in which he itemized all of his charges for that work. He testified that he hires his own employees, that he hired George and Branch, and that CNR did not have the right to fire any of the Denny employees. He stated that if a customer expresses dissatisfaction with a driver and asks that that driver not be sent out again, the Denny Company customarily would send out a different driver the next time it served that customer. He explained that “to that extent they had control over it (the driver).”

George testified that he was “in charge of actually loading the trucks,” that he was the “boss of the drivers that were there,” that he told his swamper, Branch, what to do, and that he made the decisions as to which pieces of dismantled equipment were to be loaded on particular trucks. Sam Waller, a driller for CNR, stated that he was not “in charge of any truck,” that George, the truck pusher for Denny was in charge of the trucks and all of the swamp-ers who were on that job, and that neither he nor any other employee of CNR told the trucking company employees how to load or how to operate the trucks. James Thompson, another driller for CNR, stated that the truck pusher (George) was “foreman over the trucks,” that he “gives directions and instructions to the truck drivers and the swampers out there,” and that he decided “how to load the trucks” and “when they would leave and when they would come back.” Substantially the same views were expressed by another driller and by the tool pusher for CNR.

In determining whether the borrowed servant doctrine applies, there is a presumption that the general employer retains control of and remains liable for the negligent acts of his employee. If the general employer (Denny in this case) seeks to avoid liability on the ground that his employee is the “borrowed servant” of another, then the burden of proof rests upon the general employer to show that as to the particular work in question the employee has been loaned, that the relationship of master and servant which theretofore existed between the general employer and employee has been suspended, that a new relationship of master and servant has been created between the borrowing employer and that employee, and that this new relationship was in existence at the time the accident occurred. Universal Engineers & Builders, Inc., v. Lafayette Steel Erector Corporation, 235 So.2d 612 (La.App. 3 Cir. 1970); Benoit v. Hunt Tool Company, 219 La. 380, 53 So.2d 137 (1951) ; B & G Crane Service v. Thomas W. Hooley & Sons, 227 La. 677, 80 So.2d 369 (1955); McCutchen v. Fruge, 132 So.2d 917 (La. App. 3 Cir. 1961) ; Truitt v. B & G Crane Service, Inc., 165 So.2d 874 (La.App. 4 Cir. 1964); Brown v. B & G Crane Service, Inc., 194 So.2d 746 (La.App. 4 Cir. 1966); Kezerle v. Hardware Mutual Casualty Com pany, 198 So.2d 119 (La.App. 3 Cir. 1967); Owens v. AAA Contracting Company, 219 So.2d 226 (La.App. 1 Cir. 1969); and Barrois v. Service Drayage Company, Inc., 250 So.2d 135 (La.App. 4 Cir. 1971).

Varying- tests have been applied in determining whether or not an employee is to be classified as a “borrowed servant.” One important test to be applied in making that determination is to ascertain who controls him in that employment, and more particularly, who has the power and the right to control and direct him in the performance of his work. Anther important test is to determine whether the general employer has surrendered or has relinquished control over the employee, that is, whether the master-servant relationship between the general employer and the employee had been terminated or suspended and did not exist at the time the accident occurred. McCutchen v. Fruge, supra; Richardson v. Tate, 269 So.2d 278 (La.App. 4 Cir. 1972; Hislop Plumbing Company, Inc. v. Pogue-Atkins, Inc., 283 So.2d 808 (La.App. 2 Cir. 1973); Kezerle v. Hardware Mutual Casualty Company, supra; LeBlanc v. Roy Young, Inc., 308 So.2d 443 (La.App. 3 Cir. 1975).

The issues in the present suit are similar to those which were presented in LeBlanc v. Roy Young, Inc., supra. In that case we held that the master-servant relationship between the general employer and its employee, a crane operator, had not been suspended, and that the employee thus did not become the employee “pro hac vice” of the alleged borrowing employer.

In the instant suit we find that George and Branch had not been “loaned” to CNR, and that the latter did not exercise any control over those employees, other than to direct where and when the work was to be done. We also find that the general employer, Denny Trucking Company, did not relinquish its control over or its right to control these employees, and that the master-servant relationship between Denny, on the one hand, and George and Branch on the other, still existed at the time the accident occurred. Our conclusion is that George and Branch were not employees “pro hac vice” or “borrowed servants” of CNR at the time of the above accident. The Denny Company and its insurer thus are responsible for the acts of those employees.

In our opinion, the trial court erred in finding that defendant Denny was free from negligence. We have decided that that defendant was negligent, and that in-tervenor is entitled to recover from defendants the amount which it paid to the injured employee as compensation benefits.

The parties stipulated that Highlands paid $11,149.61 to plaintiff Miller as workmen’s compensation benefits, and that in the event defendants are found to be liable intervenor is entitled ■ to recover that amount.

For the reasons herein set out, the judgment appealed from is reversed, and judgment is hereby rendered in favor of in-tervenor, Highlands Insurance Company, and against defendants, L. J. Denny and Son Trucking Company and State Automobile Insurance Association, in solido, for the sum of $11,149.61, with legal interest thereon from date of judicial demand until paid, and for all costs incurred by inter-venor in this suit. The costs of this appeal are assessed to defendants-appellees.

REVERSED and RENDERED.