author: DOMENGEAUX, Judge. CULPEPPER, Judge

text:
    John H. WHITE, d/b/a White Construction and Equipment Rental Company, Plaintiff and Appellee, v. RIMMER & GARRETT, INC., Defendant and Appellant.
    No. 5294.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    Writ Granted June 2, 1976.

      Aaron, Aaron & Chambers by Noble M. Chambers, Jr., Crowley, for defendant-appellant.
    Camp, Carmouche, Palmer, Carwile & Barsh by Karl E. Boellert, Lake Charles, for plaintiff-appellee.
    Before HOOD, CULPEPPER, DO-MENGEAUX, GUIDRY and PAVY, JJ.
   DOMENGEAUX, Judge.

This is a suit for breach of a construction subcontract. Plaintiff-appellee, the subcontractor will be hereinafter referred to as White, and defendant-appellant contractor will be hereinafter referred to as R & G, Inc.

The subcontract provided for certain excavation work to be performed by White in conformance with a primary contract between R & G, Inc. and the Louisiana Department of Highways. The District Judge concluded that White was entitled to excavate, haul, and deposit 1,000,000 cubic yards of fill and no more. In that White had only excavated arid moved 985,650 cubic yards by the time difficulties apexed between the parties, the District Judge awarded White the sum of $13,130.25, based on the difference at $0,915 per cubic yard. R & G, Inc.’s reconventional demand was denied. R & G, Inc. has appealed and White has answered the appeal seeking an increase in the award.

The issues are:

1. Was the subcontract with its two supplements, ambiguous ?

2. What portion of Item 203(5) in the primary Louisiana Department of Highways contract was White entitled to haul under its subcontract with R & G, Inc. ?

3. Did R & G, Inc. interfere with the performance by White of its obligations, duties and responsibilities under its subcontract with R & G, Inc. ?

4. Did White breach its subcontract with R & G, Inc. by improperly excavating the slopes of the borrow pits such that accurate measurement of the dirt removed therefrom could not be accomplished ?

5. What is the proper measure of damages for the amount White was entitled to haul but was allegedly prevented from hauling ?

The suit arises out of a written contract entered into between R & G, Inc. as contractor and White as subcontractor. Prior to entering into that agreement, R & G, Inc. was the successful bidder and entered into a public contract with the Louisiana Department of Highways for the construction of a portion of the 1-210 bypass in Lake Charles, Louisiana. The portion of the primary contract with the Louisiana Department of Highways which is of concern in this suit is that designated as Item 203(5). The description contained in the contract of Item 203(5) was “Cubic Yards —Special Borrow Excavation”. The “approximate quantity” was listed as 1,738,540 cubic yards.

Mr. Bob Young, Branch Manager and Salesman for Furlow-Laughlin Company, a heavy equipment dealer, contacted Mr. Tom Garrett, President of R & G, Inc., inquiring whether Mr. Garrett was interested in negotiating with earth moving contractors to move the dirt referred to in the Department of Highways contract. Mr. Garrett indicated that he was interested, and as a consequence Mr. Young introduced the plaintiff John H. White to Mr. Garrett. Young knew White and had previous business dealings with hirr, having sold equipment to him on prior occasions. Garrett and White began negotiations culminating in the subcontract wherein White was to perform Item 203(5) of the primary agreement with the Louisiana -Department of Highways.

Apparently Mr. Young’s motivation in securing a contractual agreement between Mr. Garrett and Mr. White was that in the event Mr. White did undertake the contract he would purchase a Cohen 1066 Backhoe from Furlow-Laughlin through Mr. Young. Upon confection of the agreement, Mr. White did in fact purchase the backhoe from Mr. Young and also purchased dump trucks for the job. The total of all of these purchases was some $456,000.

The subcontract dated October 9, 1971, was on a standard AGC Form which Mr. Garrett supplied. That agreement provided :

“The subcontractor shall furnish all labor, materials and equipment and shall perform all the work for [Item No. 203(5)].”

The unit price for this work then was provided on a declining sliding scale according to quantity of special borrow excavation. The agreement provided that the subcontract was to be completed within 400 days from its date. The parties also agreed that R & G, Inc. was to spread, compact and shape the dirt. This, however, was only an oral agreement and was not contained within the written document. Within five days of the signing of the contract, however, a supplemental agreement was added to it. That agreement was for the purpose of specifying and clarifying the duties and obligations of the subcontractor, White, under its agreement with R & G, Inc. Particularly, that agreement provided that Mr. White’s obligations were only to load, haul and spot dump on the project although it contained other minor provisions. Additionally, the supplement stated “The minimum special borrow quantity will be 1,000,000 cubic yards.” It also provided that any special borrow located north of Interstate 10 was not to be included within the terms of the agreement.

The contractor, R & G, Inc., purchased the land on which the excavation was to be performed, and work began in the fall of 1971. The job progressed until early spring of 1972 when disagreement arose over the area which was to be excavated. It seems that at this time R & G, Inc. had decided to alter the original shape of the excavation (borrow) pits for aesthetic reasons. It planned to convert the pits to lakes and develop a subdivision in the area around them. Mr. White objected to this and refused to go outside the original configuration of the pit, saying that he needed some sort of letter or other authorization before changing the original agreement. Mr. White then drew up a list of thirteen demands and presented them to R & G, Inc. As a result of this dispute, a second amending supplement dated April 10, 1972, was added to the contract. That document was prepared, considering the list of thirteen demands presented by Mr. White. The parties agreed that all excavation would be in conformance with a new plat; in fact Supplement Two stated “The excavation area or pit is as shown on the plat of Waterloop Subdivision prepared by Shutts & Son, dated January 21, 1972.” Additionally, it was agreed that White Construction Company would be paid a flat rate of “0.915 dollars per cubic yard for all material removed or to be removed, including material removed to date hereof.” (This is a significant increase in the graduated scale in the original subcontract, as is shown hereafter.) The agreement, among other things, also provided that R & G, Inc. would provide a “bleeder” ditch and adequate drainage around the excavated area. A handwritten provision was then added by the parties and initialed by them providing “1,000,000 cu. yd. guaranteed”. Mr. Young was present at the signing and initialing of the second supplement, and in fact it was he who added the provision for the “1,000,000 cu. yd. guaranteed”.

Work once again commenced in conformance with the new agreement as set forth in the second supplement. Difficulties arose, however, and the instant suit was filed on March 19, 1973, for specific performance, accounting and/or damages. Defendant reconvened alleging failure and refusal of the plaintiff White to abide by the conditions of the contract as amended. After trial on the merits and judgment in favor of plaintiff, the instant appeal was perfected by defendant, R & G, Inc., and answered by plaintiff White.

The original subcontract provided:

ARTICLE 2 THE WORK
The Subcontractor shall furnish all labor, materials and equipment and shall perform all the Work for
ITEM # DESCRIPTION QUAN-UN1T TITY UNIT. PRICE AMOUNT
203(5) Special Borrow Excav. CY 1,000,000 $.90 $900,000.00
203(5) Special Borrow Excav. CY 1,100,000 .895 $984,500.00
203(5) Special Borrow Excav. CY 1,200,000 .89 $1,068,000.00
203(5) Special Borrow Excav. CY 1,300,000 .885 $1,150,500.00
203(5) Special Borrow Excav. CY 1,400,000 .88 $1,232,000.00
203(5) Special Borrow Excav. CY 1,500,000 .875 $1,312,500.00
203(5) Special Borrow Excav. CY 1,600,000 .87 $1,392,000.00

Plaintiff White contends that the above language indicates that he is entitled to the entirety of the Item 203(5). He says the only exception to this is the area north of the Interstate 10 which is excluded expressly by supplement No. 1, and a “scraper item” of 75 to 125,000 cubic yards, which pursuant to an oral agreement between him and Mr. Tom Garrett, was to be excavated by R & G, Inc. He claims that he contracted to perform all of Item 203(5) and that it was the understanding and agreement of the parties that he would undertake to excavate and haul all of that item.

Defendant R & G, Inc., on the other hand, contends that White was only entitled to excavate and haul 1,000,000 cubic yards. In support of this proposition they point to the provisions contained in supplement one providing for a minimum special borrow quantity of 1,000,000 cubic yards, and in Supplement Two which included the words “1,000,000 cu. yds. guaranteed (Emphasis added).

Much testimony is contained in the record of this matter as to the intention of the parties, as to how much fill White was to excavate and haul. Both Mr. Thomas Garrett and Mr. Larry Garrett, (Vice-President and general supervisor of R & G, Inc.) stated that their intention from the beginning was to grant White only 1,000,000 cubic yards, and that after that figure was reached R & G, Inc. had the discretion to allow Mr. White to remove any more dirt. Conversely, the plaintiff White testified that he understood the agreement to be that he was entitled to excavate all dirt needed for the construction project. Mr. Bob Young testified to the same effect, and both men testified the minimum guarantee was inserted only for Mr. White’s assurance that he could safely purchase his new equipment.

This testimony, though, may only be considered if the contractual agreement between the parties is ambiguous, for pa-rol evidence is ordinarily inadmissible. LSA-C.C. Article 2276; Hyatt v. Hartford Accident & Indemnity Company, 225 So.2d 102 (La.App. 3rd Cir. 1969). Where possible, the interpretation of an agreement should be made by resort to the four corners of the document itself, LSA-C.C. Article 1945, and that interpretation is to be based upon the true intent of all parties to the agreement, LSA-C.C. Article 1945, even if its meaning is doubtful, LSA-C.C. Article 1950.

We find ambiguity in the present subcontract as amended by Supplements One and Two. Consequently the trial judge was not in error in considering the parol evidence to determine the effect of the agreement and the intentions of the parties. At argument on appeal, White’s able counsel very honestly and candidly admitted that the insertion of the word “minimum” in Supplement One and of the word “Guaranteed” in'Supplement Two injected some uncertainty into the contract documents.

The rule stated in Cardos v. Cristadoro, 228 La. 975, 84 So.2d 606, (La.1955) is applicable here:

“As a general rule, parol evidence is inadmissible to vary, modify, explain or contradict a writing. This general rule, as is true with most general principles, has been made the subject of certain exceptions. The pertinent exception applicable here is that where the words used in an instrument are not clear and explicit and may in their application lead to absurd consequences, or where its contents exhibit ambiguity and uncertainty, or where the mutual intention of the parties has not been fairly explicit, the courts may consider all pertinent facts and circumstances, including the party’s own conclusion of its meaning, rather than adhere to a forced meaning of the terms used.”

The original contract is unambiguous and clearly provides that White is to haul all of Item 203(5). Supplement One, dated October 14, 1971, is likewise free of uncertainty, and compatible therewith. The word “minimum” infers or connotes the existence of a “maximum”. The minimum at this point is 1,000,000 cubic yards and Supplement One excludes from Item 203(5), the hauling- by White of any fill from the portion north of U.S. Interstate Highway 10. At this point we find no ambiguity in the contract documents and determine that the agreement at that time was to the effect that White would haul and spot dump all of Item 203(5), less that portion located north of I — 10, (less other amounts shown in Footnote 1) with a minimum to White of 1,000,000 cubic yards.

In our opinion the agreement between the parties was drastically changed on April 10, 1972, when the parties executed Supplement No. 2. The addition of the words “1,000,000 cubic yards guaranteed” injects some ambiguity when compared to the reference to “all” of the work in the original contract, and the word “minimum” in the first supplement. We do not conclude that the word “minimum” and the term “guarantee” necessarily mean the same thing.

Additionally, under paragraph one of Supplement Two the parties agreed that “the excavation area or pit is as shown on the plat of Waterloop Subdivision prepared by Shutts & Sons, dated January 21, 1972.” Prior to execution of Supplement Two, White was to haul all of Item 203(5), less that part north of I — 10 from a land area or areas furnished by defendant R & G, Inc. However, Supplement Two specifically designates the only excavation area or pit from which White is to haul as the area shown on the Shutts plat.

It appears that it was known by the parties at the time when Supplement Two was executed that there was not sufficient fill in the new exclusively designated area to satisfy Item 203(5). Such being the case, then, the restriction of White to this area is inconsistent with any contention that he was entitled to haul and spot dump the whole of Item 203(5) following execution of Supplement Two. Further support for the view that as a result of Supplement Two White no longer had the right to haul all of Item 203(5) is found in paragraph two of Supplement Two. Under that paragraph R & G, Inc. agreed to increase White’s compensation to a flat $0,915 per cubic yard for all material previously removed and to be removed in the future and guaranteed payment to White for 1,000,000 cubic yards. White suggests that the increase in price was agreed to because of the strange and difficult configuration of the pit and the consequent difficulty in digging and hauling. It is reasonable to conclude, in light of the provisions of paragraph one of Supplement Two, that the increase in price and the 1,000,000 cubic yard guarantee was to compensate White perhaps for the above. However, it is also reasonable to conclude that White was being restricted to this one pit area, which had been reduced in size by the creation of the Waterloop Subdivision, and that as a consequence, he would not haul and spot dump all of Item 203(5).

Further indication that White would no longer have the exclusive right to haul all of Item 203(5) following the execution of Supplement Two, is found in the fact that shortly after Supplement Two was signed, R & G, Inc. began to-haul material out of the same pit along with White, and did so for some two months before White objected and claimed the whole of Item 203(5).

Therefore, based upon the ruling of the District Court and the statutory and jurisprudential rules cited herein, we agree that the District Court was not in error in resorting to extrinsic evidence to determine the clear intentions of the parties to the subcontract. We find sufficient basis in the record to support the conclusion of the trial judge that the parties intended only that White was to excavate the first 1,000,000 cubic yards. This is essentially a finding of fact, and we find no manifest error nor abuse of discretion on the part of the trial judge in this regard. Canter v. Koehring Company, 283 So.2d 716 (La. 1973).

We have been cited to a rule of interpretation of contracts which states generally that if a contract is ambiguous, the terms thereof should be construed against the party which prepared it. Monsur v. Thompson, 300 So.2d 655 (La.App. 3rd Cir. 1974). We do not find that rule applicable herein. Although the original contract was prepared on forms submitted by R & G, Inc., of significance is the fact that Supplement Two, although typed up by R & G, Inc. was done so at the behest of White, and the provisions thereunder were those suggested by White based upon his demand prior to the consummation thereof.

White urges additionally that he is entitled to damages for acts by R & G, Inc. in interfering with his performance of the subcontract. These alleged actions included failure by R & G, Inc. to provide a bleeder ditch from the pit, failure by them to provide more than one area for dumping the excavated fill causing crowding and congestion in the pit, requiring insurance certificates on White’s rental trucks, and threats to throw White out of the excavation pit. As the trial court observed, the testimony is conflicting on this evidence, and we are unable to conclude that plaintiff White has borne his burden of proof on these issues. We find no manifest error nor abuse of discretion on the part of the trial court in this regard. See Johnson v. Heil, 284 So.2d 666 (La.App. 3rd Cir. 1973).

R & G, Inc. filed a reconventional demand for damages allegedly caused by White’s improper excavation of the slopes of the pit. They urge that because of White’s operations, the slopes were uneven, thus preventing an accurate measurement or “cross-sectioning” of the pit by the Louisiana Department of Highways so that payment could be made by it to R & G, Inc. They state that because the pit was not properly excavated, it remained unmeasured throughout the winter of 1972 and through 1973, thus allowing silt to build up in the bottom so that even after final measurement, an accurate determination of the amount of fill removed was impossible. The trial judge denied R & G, Inc.’s re-conventional demand. We find conflicting testimony relative to which party was at fault concerning the “silting” conditions which existed in some of the pits. There is evidence of some impropriety on the part of White in this regard; however, the trial judge has reached a conclusion of fact on these issues. We cannot say that he committed manifest error in denying the reconventional demand of R & G, Inc.

The final issue to be determined herein is the proper measure of damages for the amount White was entitled to haul. We have already concluded, under the contract documents, that White was entitled to haul 1,000,000 cubic yards and no more. He actually hauled 985,650 cubic yards, was paid therefor and was thus entitled to haul an additional 14,350 cubic yards. The trial judge awarded White the amount of $13,130.25 based on the rate of $0.915 per cubic yard. White contends that the proper method of computation of damages is the total contract price per yard which is $0.915. He states that this amount represents “stipulated” or “liquidated” damages under LSA-C.C. Article 1934(5). We find no provision in the instant contract or its supplements indicating a stipulated amount as damages. Simply because a contract is drafted on the basis of a unit price does not mean that amount has been stipulated as damages in the event of its breach.

LSA-C.C. Article 1934 provides that in an action for breach of contract, the damages due are the amount of the loss sustained and the profit of which the contracting party is deprived. Harper v. Home Indemnity Company, 140 So.2d 653 (La.App. 2nd Cir. 1962); Holmes Brick and Salvage Company, Inc. v. Reo Construction, Inc., 253 So.2d 562, (La.App. 1st Cir. 1971); writ refused 260 La. 127, 255 So.2d 353. Loss Profit is determined by deducting the cost of labor and materials from the total contract price. Minyard v. Culotta, 128 So.2d 797 (La.App. 4th Cir. 1961); Housecraft Division v. Jones, 120 So.2d 662 (Orl.La.App.1960). It is recoverable notwithstanding the fact that it is not susceptible of proof to a legal certainty. Southern Television Electronics v. L.O.D. Read, 244 So.2d 624 (La.App. 4th Cir. 1971); Sheeks v. McCain-Richards, 226 La. 578, 76 So.2d 892 (La.1954); Pelican Printing Company v. Pecot, 216 So.2d 153 (La.App. 4th Cir. 1968).

While White stated that he had expected to profit by approximately 31^ per cubic yard on the project, he actually did not net that amount. His average profit over the contract period was 13.95^ per cubic yard. This is computed from the testimony of Mr. Schram, White’s bookkeeper, who stated that White’s net income per cubic yard in 1972 was 25.8^ and in 1973 was 2.1 Thus the total damage caused White by R & G, Inc. is $2,001.83 (14,350 x 13.-95‡).

For the reasons assigned, the judgment of the trial court is amended to order payment by Rimmer and Garrett, Inc. to John H. White, d/b/a White Construction and Equipment Rental Company, in the sum of $2,001.83. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to the appellee, White,

AFFIRMED, AS AMENDED.

CULPEPPER, J., dissents and assigns reasons.

PAVY, J., dissents for reasons assigned by CULPEPPER, J.,

CULPEPPER, Judge

(dissenting).

It is my view that the original subcontract, as amended by the first and second supplements, is not ambiguous as to the provision that the plaintiff, White, had the right to excavate and haul all dirt needed under Item 203(5), except for that portion located north of I — 10 and that included in the “scraper item”, which defendant was going to move with its scrapers.

The majority agrees that the original subcontract is not ambiguous in this respect. The majority also agrees that the first supplement, dated October 14, 1971, is likewise free of uncertainty, in that the insertion of the word “minimum” can mean only that White was entitled to excavate and haul a minimum of 1,000,000 cubic yards. However, the majority holds that the insertion of the words “1,000,000 yards guaranteed” in the second supplement, dated April 10, 1972, injects ambiguity. It is my view that this clause can mean only that White was guaranteed he could excavate and haul at least 1,000,000 cubic yards. It cannot mean that this was the maximum amount which White could haul, nor can it mean that the plaintiff White lost his right, as clearly agreed to in the original subcontract and the first supplement, to excavate and haul all dirt needed for Item 203(5).

However, even if the use of the term “guarantee” in the second supplement does inject some ambiguity, it is my view that the agreement should be construed in favor of White. My first reason is that it should be construed against the defendant, Rimmer & Garrett, Inc., who prepared all of these agreements. A fundamental rule of the construction of contracts is that the agreement is interpreted against him who drew it. Monsur v. Thompson, 300 So.2d 655 (La.App. 3rd Cir. 1974), and the authorities cited therein. If defendant intended the agreement to restrict White to 1,000,000 cubic yards, it could easily have so specified.

Furthermore, I think a consideration of the parol evidence shows clearly that the intention of the parties was at all times that White should excavate and haul all of the dirt required for Item 203(5). The first significant fact to me is the way in which this word “guarantee” was added to the second supplement. It was not added by plaintiff nor by defendant, and I think the reason is they both understood their agreement to be that White could haul all of the dirt. The word “guarantee” was added with pen and ink to the typewritten second supplement by Mr. Young, who had sold the equipment to White. Clearly, the only reason Mr. Young had for adding the word “guarantee” was to protect Mr. White, because the more dirt White hauled, the better chance Young had of being paid for the equipment. It is certain that Young did not add the word “guarantee” to benefit the defendant.

The majority argues its construction of the contract is supported by the fact that the second supplement designated only one pit from which dirt could be excavated. The majority states that “it appears that it was known by the parties at the time when Supplement 2 was executed that there was not sufficient fill in the new exclusively designated area to satisfy 203(5).” I do not find this statement is supported by the record. There is no evidence in this record to show how much fill was in the pit, nor does it show how much fill was ultimately excavated from this pit. Furthermore, White’s agreement was to haul all the dirt needed for Item 203(5). Defendant agreed to supply the pit or pits as necessary. If this pit was not sufficient, then clearly defendant had the duty to obtain another one.

The majority further argues its construction is supported by the new agreement in the second supplement that White would receive a flat $0.915 per cubic yard. I cannot follow this argument. The reason for the increasd flat rate was that the defendant changed the configuration of the pit from a simple rectangle, from which it was easy to excavate and haul. The new pit was semi-cir.cular in shape and surrounded the residential subdivision. This made White’s job much more difficult, and was the reason for the increased rate.

Finally, the majority- argues that its construction of the parol evidence is supported by the fact that after the second supplement was signed the defendant put its own equipment in the pit to excavate and haul along with the plaintiff, and that plaintiff did not object to this for about two months. I see no justification for this reasoning. The plaintiff White did object, although he didn’t do it formally through his attorney for about six weeks, and he finally filed this suit in which one of his principal contentions is that the defendant had no right to move into the pit and start hauling dirt for use on Item 203(5). After all, the basic agreement was that White was to haul all of the dirt needed for this item. The defendant was to furnish whatever pits were necessary to haul whatever dirt was needed for this item. It was mentioned during oral argument, although I don’t believe the record contains any evidence to that effect, that in addition to the pit agreed to in the second supplement, the defendant was also hauling from another pit on adjacent land. White’s basic right under the contract was not to haul dirt from a certain pit. His right under the contract was to haul all of the dirt needed for Item 203(5).

The evidence shows with sufficient certainty that, not counting approximately 86,000 cubic yards of fill hauled north of I — 10, nor about 100,000 cubic yards which was moved by defendant’s scrapers, a total of 1,378,686 cubic yards of dirt were used for Item 203(5). Plaintiff actually hauled and was paid for 985,650 cubic yards. Thus, he is entitled to damages for loss pf profit on the difference of 393,036 cubic yards. The record shows his loss of profit was $0.1395 per cubic yard, for a total of $54,828.52. It is my view that plaintiff is entitled to this amount in damages.

For the reasons assigned, I respectfully dissent.

      . The evidence shows that the primary contract estimated the excavating and hauling to consist of approximately 1,738,540 cubic yards of fill. It was estimated that there was an “underrun” of about 10%. R & G, Inc. was responsible for a “scraper item” of approximately 100,000 cu. yds. and approximately 86,000 eu. yds. of fill hauled from north of 1-10. These conclusions are not contested. Therefore, insofar as White is concerned 1,-378,686 cu. yds. would be the most that he could expect to be involved with.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Gloria A. JAMES v. SCHWEGMANN BROS. GIANT SUPERMARKETS, INC. and XYZ Insurance Company.
    No. 7387.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Dillon & Williams, William S. Marshall, Jr., New Orleans, for appellant.
    Stephen C. Kogos, New Orleans, for plaintif f-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This case involves a claim for Workmen’s Compensation benefits. The case was submitted to the trial court upon a stipulation entered into by counsel for both parties. The trial court granted plaintiff, Gloria James, benefits of $51.48 for ten weeks. Schwegmann Brothers Giant Supermarkets, Inc. has appealed. We affirm.

Gloria James was injured while performing her duties as a cashier at Schweg-mann’s store. She was struck in the right eye by glass fragments from a bottle broken near her. She was taken to Touro Infirmary where Dr. Anthony removed the glass particles, patched her eye and gave her medication. The accident occurred on May 19, 1974 and it was Dr. Anthony’s opinion that Mrs. James would be able to return to work on May 22, 1974.

Apparently Mrs. James did not return to work on May 22 because on June 4, 1974 Schegmann’s sent her to the Victor C. Smith Memorial Eye Clinic. Dr. Schoel examined Mrs. James and found no foreign bodies in her eye. He did find evidence of pinguecula in both eyes. He attributed the pinguecula to a non-industrial origin. It was his opinion that Mrs. James could return to work right away.

Apparently again Mrs. James did not return to work and instead sought out her own eye doctor. On June 24, 1974 she saw Dr. Pollard who examined her and found the interior of her eyes to be within normal limits. He prescribed decongestant eye drops for her. Mrs. James eyes continued to bother her and she returned to Dr. Pollard on July 16, 1974. At this examination Dr. Pollard found keratitis and iritis present in the right eye. He prescribed eye drops and asked her to return. On July 22, 1974 the inflammations were healing but still present. On August 4, 1974 Mrs. James no longer complained of any irritation and upon examination the inflammations were found to be completely healed.

Defendant contends that plaintiff has failed to show the requisite causal relationship between the inflammations allegedly arising on July 16, 1974 and the accident of May 19, 1974. There is no testimony or depositions in this case, there is merely the stipulation of counsel and the various medical reports of Drs. Anthony, Schoel and Pollard. Construing this stipulation in a light most favorable to plaintiff, as is the intent of the Workmen’s Compensation Act, we find the requisite causal link.

The stipulation in pertinent part reads as follows:

.; that as a result of this accident Plaintiff received medical treatment, and all medical reports in connection with this treatment are stipulated to and marked for identification as follows: Marked as Plaintiff 1 is Dr. Pollard’s report dated September 12, 1974;

We interpret this to simply mean that both parties agreed that the accident required treatment and the extent of the treatment is outlined in the medical reports. In effect the stipulation says that the accident caused the listed treatments to be administered to Mrs. James. Dr. Pollard’s report shows that his treatment did not stop until August S, 1974.

We can find no other explanation in the record for the inflammations of Mrs. James’ eyes. There is sufficient evidence in the record to sustain the finding of the trial court and we find no evidence of manifest error.

For the above reasons the judgment of the trial court is affirmed. Defendant is to pay all costs.

AFFIRMED.

      . Pinguecula is a yellowish spot on the eye caused by a thickening of the cunjunctiva. It is found most often in older people.

      . Iritis is an inflammation of the iris, characterized by pain, photophobia (abnormal intolerance of light), laerimation (discharge of tears), and interference with vision. The Simplified Medical Dictionary for Lawyers 419 (3rd Ed. 1960). Keratitis is an inflammation of the cornea.


author: WATSON, Judge.

text:
    KAPLAN & ASSOCIATES, INC., Plaintiff-Appellee, v. COASTAL AIR CONDITIONING AND ELECTRICAL WORKS, INC., Defendant-Appellant.
    No. 5399.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 7, 1976.

      Emile C. Toups, Lafayette, for defendant-appellant.
    Caliste Beard, Jr. by David H. Clarke, Lafayette, for plaintiff-appellee.
    Before WATSON, CUTRER and PETERS, JJ.
   ON MOTION TO DISMISS APPEAL

WATSON, Judge.

The plaintiff-appellee, Kaplan & Associates, Inc. moves to dismiss the appeal of the defendant-appellant, Coastal Air Conditioning and Electrical Works, Inc., on the grounds that the defendant-appellant failed to timely post its appeal bond.

We dismiss defendant-appellant’s appeal.

Judgment was rendered in this matter on June 4, 1975, and notices of judgment were mailed to all parties on June 10, 1975. On June 19, 1975, the defendant-appellant timely filed a Motion for a' New Trial which was heard on July 21, 1975 and taken under advisement. On August 4, 1975 judgment was rendered denying the defendant-appellant’s Motion for a New Trial and Notices of this judgment were mailed to all parties on August 4, 1975.

On October 31, 1975 the defendant-appellant moved for and was granted a de-volutive appeal to this court. The devolu-tive appeal bond was set for $500.00, which the defendant-appellant did not file until December 29, 1975.

Article 2087(3) provides that a devolu-tive appeal must be taken within ninety (90) days of the date of the mailing of notices of the court’s refusal to grant a timely application for a new trial. Notices of the trial court’s judgment denying the defendant-appellant’s Motion for a New Trial were mailed to all parties on August 4, 1975 and, therefore, the ninety (90) day period provided by LSA-C.C.P. art. 2087(1) for taking a devolutive appeal commenced to run on August 5, 1975, and expired on November 3, 1975 [November 2, 1975 being a legal holiday], fifty-six (56) days prior to the defendant-appellant’s filing its appeal bond.

The defendant-appellant’s appeal must, therefore, be dismissed, for it is well settled that an appellate court does not acquire jurisdiction of a devolutive appeal unless the bond is filed within the time prescribed. Pan-American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968) and cases cited therein; Freeman v. Liberty Mutual Insurance Co., 289 So.2d 875 (La.App.3rd Cir. 1975).

APPEAL DISMISSED.


author: LANDRY, Judge.

text:
    Robert MUSE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
    No. 10587.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      Robert L. Raborn, Baton Rouge, for La. Health and Human Resources.
    Robert L. Kleinpeter, Baton Rouge, for Chas. A. Tyler and Transamerica Ins. Co.
    Donald S. Zuber, Baton Rouge, for Chas. A. Tyler, St. Paul Fire & Marine Ins.
    Ronald F. Plaisance, New Orleans, for plaintiff-appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendants Charles Alvin Tyler and his malpractice insurer Transamerica Insurance Company (Appellants) appeal from judgment in favor of Plaintiff, Robert Muse (Client) for the sum of $1,873.33 as compensation for losses sustained due to Tyler’s alleged misrepresentation of Client in the collection and disposition of the proceeds of a health and accident insurance policy. Louisiana Health and Human Resources Administration (LHHRA), made third party defendant by Tyler and Trans-america, appeals from judgment in favor of said third party plaintiffs in the sum of $1,873.33 which the trial court found to have been erroneously paid to LHHRA by Client pursuant to Tyler’s advice. We affirm in part and reverse in part.

Client sued Tyler, Transamerica and St. Paul Fire and Marine Insurance Company (St. Paul), as Tyler’s insurers, alleging that Tyler negligently advised Client to pay Charity Hospital of New Orleans (Charity) $1,873.33 for medical services rendered Client, which sum Tyler collected from Client’s health and accident insurer and which Tyler erroneously believed to be subject to a lien in favor of LHHRA. All defendants third partied LHHRA. St. Paul was dismissed from the action upon a finding that its coverage of Tyler expired before the alleged malpractice occurred, which dismissal has not been appealed by any party.

The facts are largely undisputed and, as between Appellants Tyler and Transameri-ca and Muse, are almost all stipulated. Although LHHRA did not join in the stipulation, it raises no serious question as to the facts thereby established or shown by the evidence.

On January 8, 1972 Client, whose education extends to the tenth high school grade, was employed by Louisiana Welding and Press Company. On that same date Client was injured in non-work related automobile accident in which he sustained serious personal injury. Client was taken to Charity where he was hospitalized for approximately 8 months for treatment of his said injuries. Client’s employer arranged for dual income protection of its employees pursuant to a policy issued by Colonial Life and Accident Insurance Company (Colonial). All premiums payable under the policy were paid by Client. In May 1972 Client retained Tyler to collect the benefits due Client under Colonial’s policy. Between May 1972 and January 1973 Tyler collected one or two checks from Colonial as payments of benefits due Client. The record implies that Tyler was paid a percentage of the amounts recovered. On January 16, 1973 Colonial received notice from Ronald L. Faia, Special Counsel for Charity, that Charity was asserting a privilege upon the proceeds of Colonial’s policy for medical treatment furnished Client and that Charity also was exercising its right to subrogation to Client’s claims under said policy, all as provided for by La.R.S. 9:4752 et seq. and La.R.S. 46:8 et seq. A copy of Faia’s letter was sent to Tyler. Thereafter, Colonial made two payments on its policies by checks dated March 14, 1973 and August 16, 1973, for $800 and $1,073.33, respectively, both payable to Client, Tyler and Charity. Upon Tyler’s advice, Client agreed to send the checks to Charity in payment on the hospital bill. Accordingly, the checks were endorsed by Client and Tyler and sent to Faia on September 12, 1973. Tyler arranged with Faia to receive, as attorney’s fees, 25% of the monies paid Charity in accordance with La.R.S. 9:4752. The record indicates that Tyler was never paid the agreed fee. During late September or October 1973, Client became dissatisfied with Tyler’s service, discharged Tyler and engaged present counsel to continue Client’s claim for future benefits under Colonial’s policy. Client’s present counsel concluded that Charity did not have a lien on the proceeds of Colonial’s policy because La.R.S. 9:4752 et seq. and La.R.S. 46:8 et seq. apply only to claims against third parties and also because the benefits payable under a disability policy are specifically exempt from lien or claims of creditors pursuant to La.R.S. 22:646. Present counsel so informed Faia, and thereafter, on September 5, 1974, Faia advised present counsel that he no longer believed Charity had a lien on the policy proceeds and that Charity would make no claim to further payment by Colonial.

Client claims reimbursement from Tyler for the sum of $1,873.33 allegedly paid Charity as a result of Tyler’s negligence in failing to know and to inform Client that the proceeds of Colonial’s policy were not amenable to lien by Charity.

Appellants deny any negligence on Tyler’s part and contend further that Client has failed to bear the burden of proof required to show that Tyler’s skill and expertise in handling the matter falls below the standard of care exercised by prudent practicing attorneys in the community in similar matters. In this regard we note that Client did not produce any local attorney whomsoever to testify regarding this issue. Appellants additionally claim that Client had a natural obligation to pay for the services rendered by Charity, and that, therefore, pursuant to La.C.C. art. 1759, Client may not recover for payments made on such an obligation even if mistakenly made. Alternatively, Appellants maintain that LHHRA is responsible for the erroneous payments and should respond in judgment to Appellants if Appellants are cast to pay Client.

LHHRA contends: (1) that Client’s natural obligation to pay for the services rendered by Charity amply supports the payments even if made in error; (2) that La.R.S. 22:646, which exempts proceeds of health and accident policies from liability for debts of the insured, is unconstitutional insofar as concerns claims by the State; (3) that Client’s voluntary acquiescence to the payments bars his recovery; and (4) that the alleged exemption provided by La.R.S. 22:646 has been impliedly repealed by subsequent adoption of La. R.S. 9:4752 et seq. and La.R.S. 46:8 et seq.

In this court LHHRA has filed an exception of no cause or right of action predicated upon its asserted sovereign immunity. It suffices to say, in this regard, that said exception is without merit inasmuch as the doctrine of sovereign immunity no longer obtains in this state, even with respect to a cause of action arising prior to the effective date of La.Const. 1974. Darville v. Associated Indemnity Corporation, La., 323 So.2d 441, 1975; Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Company, Inc., La., 273 So.2d 19.

The obligation of an attorney to his client is stated in Ramp v. St. Paul Fire and Marine Insurance Company, 236 La. 774, 269 So.2d 239, 55 ALR(3d) 967, as follows:

“An attorney is obligated to exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality. He is not required to exercise perfect judgment in every instance. However, the attorney’s license to practice and his contract for employment hold out to the client that he possesses certain minimal skills, knowledge, and abilities. The fact that an attorney’s judgment in confect-ing contracts, handling suits and doing other business may result in litigation is not in and of itself, a breach of a duty to the client. Risk of future litigation is often a necessary element or result of legal advice and legal representation. The very fact of litigation is a result of the disparity of professional judgment of those in the legal profession. However, lawyers are obligated to scrutinize any contract which they advise their clients to execute, and are required to disclose the full import of the instrument and the possible consequences that may arise upon execution of it.”

In any given instance, the standard of care owed by an attorney to his client may be established by expert testimony or recognized by the trial court, which is familiar with the standards of practice in its locality, without the assistance of expert testimony. Watkins v. Sheppard, La.App., 278 So.2d 890. There may even be instances wherein a practitioner’s conduct is such as to constitute failure to use due care under any reasonable standard, thereby making the use of expert testimony unnecessary to establish a criteria of care. Watkins v. Sheppard, above.

In this case Client produced no expert testimony to establish the standard of care practices by attorneys in Tyler’s community, and the trial court did not assign written reasons for its judgment finding Tyler guilty of legal malpractice. We must therefore determine whether this is an instance in which the attorney’s action amounted to negligence or actionable lack of expertise under any reasonable standard of care dictated by the circumstances of this case.

We find that a reasonable standard of professional conduct in this instance would have required a study of the statutes on which Charity’s claim and lien were based and recognition of any doubt or invalidity as to Charity’s claim which might appear from a careful perusal thereof. The pertinent statutes are as follows:

LA.R.S. 46:8

“8. Subrogation to right of action for patient’s injuries against employer or third person
Where a patient in any state supported or veterans administration hospital in the state has been injured by the negligence of another person other than his employer, or by an employer in employment falling outside of the provisions of the employer’s liability laws, and has a right of action for the recovery of compensatory damages against that person, the board of administrators of the state supported hospitals or the United States in the case of veterans administration hospitals in the state shall be subrogated to the right of action to the extent of reasonable charges for services rendered to the patient, in accordance with like charges in other hospitals of the first class, including physicians’ and surgeons’ fees.”

La.R.S. 9:4752 and 4753

“4752. Privilege on net proceeds collected from third party in favor of hospitals for services and supplies furnished injured persons
A hospital that furnishes services or supplies to any injured person shall have a privilege for the reasonable charges or fees of such hospital on the net amount payable to the injured person, his heirs, or legal representatives, out of the total amount of any recovery or sum had, collected, or to be collected, whether by judgment or by settlement or compromise, from another person on account of such injuries, and on the net amount payable by any insurance company under any contract providing for indemnity or compensation to the injured person. Provided, however, the privilege of an attorney shall have precedence over the privilege created under this section.
“4753. Written notice
The privilege created herein shall become effective if, prior to the payment of insurance proceeds, or to the payment of any judgment, settlement, or compromise on account of injuries, a written notice containing the name and address of the injured person, the date the injury was incurred, the name and location of the interested hospital, and the name of the person alleged to be liable to the injured person on account of the injuries received, shall be mailed by the interested hospital, certified mail, return receipt requested, to the injured person, to his attorney, to the person alleged to be liable to the injured person on account of the injuries sustained, to any insurance carrier which has insured such person against liability, and to any insurance company obligated by contract to pay indemnity or compensation to the injured person. This privilege shall be effective against all persons given notice according to the provisions hereof, and shall not be defeated nor rendered ineffective as against any person that has been given such notice, because of failure to give such notice to all those persons named herein.”

La.R.S. 22:646

“646. Exemption of proceeds; health and accident
The proceeds or avails of all contracts of health and accident insurance and of provisions providing benefits on account of the insured’s disability which are supplemental to life insurance or annuity contracts heretofore or hereafter effected shall be exempt from all liability for any debt of the insured, and from any debt of the beneficiary existing at the time the proceeds are made available for his use.”

Mr. Tyler’s testimony does not indicate that he gave consideration to, or was aware of, or studied any of the pertinent statutes. He testified merely that upon receipt of Faia’s letter giving notice of the claim and lien, he cooperated with Charity as he had customarily done with state agencies on many prior occasions. We find Tyler professionally remiss in failing to question the validity of Charity’s claim to subrogation to Client’s rights against Colonial under La.R.S. 46:8, above, because the statute clearly applies only to claims against third party tort feasors and their insurers. However, since Charity did not exercise its alleged right of subrogation, no damage resulted to Client from this oversight.

The validity or invalidity of Charity’s claimed privilege under La.R.S. 9:4752 is not so clear and unambiguous. On its face, this statute applies to any “net amount payable by any insurance company under any contract providing for indemnity or compensation to the injured person,” indicating inclusion'of income protection insurance similar to that involved herein. On the other hand, La.R.S. 22:646 is in direct contradiction of La.R.S. 9:4752, in that the former provides -in unmistakably clear language that the proceeds of policies of the nature issued by Colonial are exempt from liability for any debt of the insured existing at the time the policy proceeds are made available for his use. We are unaware of jurisprudence touching upon this apparent statutory conflict.

We believe that as a general rule, an attorney must be accorded considerable latitude in the exercise of his professional judgment and evaluation of legal issues which are not specifically resolved by legislation or jurisprudence. In such instances, an attorney may not be held liable for malpractice so long as his determination of such a question, whether ultimately proved right or wrong, is based upon reasonable consideration of applicable legal rules and principles. In short, an attorney does not generally guarantee the correct solution of an ambiguous or unsettled legal issue, just as a doctor does not generally guarantee a cure. The attorney, however, owes his client the duty of diligent investigation and research of the basis of any claim against his client and the utilization of all that such investigation and research should disclose. We find in this instance that diligent investigation and research should have disclosed to a reasonably prudent attorney the existence of La.R.S. 22:646 and raised doubts sufficient to cause such an attorney to question Qient’s liability to Charity.

It is clear that the attorney did not discharge his duty in this instance. It is not shown that Tyler ever considered any aspect of the issue other than to rely upon Faia’s letter asserting the lien and counsel’s own personal policy of cooperating with public agencies in matters of this nature. In so doing, Tyler negligently breached his duty to Client by failing to recognize the possible invalidity of Charity’s claim and to so advise Client and in failing to inform Charity of a potential defense.

As in any tort action, Client must establish causation between the duty breached and the alleged loss. In this instance, Client must show either that had its claim been resisted, Charity would have abandoned the claim or that a court of law would have found the claim invalid. Vessel v. St. Paul Fire & Marine Insurance Co., La.App., 276 So.2d 874; Toomer v. Breaux, La.App., 146 So.2d 723. We find the required causation established herein. When Client’s present counsel directed Faia’s attention to La.R.S. 22:646, Faia wrote Colonial and Client’s present counsel on September 5, 1974, acknowledging that Charity had no lien on the proceeds of disability income insurance and advising that Charity would make no claims to further payments due Client.

We pretermit consideration of Charity’s claim of unconstitutionality of La.R.S. 22:646 because the validity of the statute, per se, is not required to be decided under the circumstances. Since the record shows that Charity wás not at that time claiming a privilege on the proceeds of disability policies, whether it had a valid claim or not, there is no reason to determine whether such a claim was valid or invalid.

We find no merit in the argument of Tyler and Transamerica that Client is barred from recovery against Tyler because the money was paid to Charity pursuant to Client’s natural obligation to pay for the hospital services rendered. The answer to this position is simply that Client does not seek recovery herein from Charity, but only from Tyler and Trans-america, whose liability is predicated upon Tyler’s negligence. Tyler and Transamer-ica base their claim of recovery from LHHRA on the ground that one should not enrich himself at the expense of another. Conversely, LHHRA contends that Client was under a natural obligation to pay and therefore may not now recover even if payment was by mistake.

A natural obligation, as defined in La. C.C. articles 1756 and 1757, is one which cannot be enforced by legal action, but which is nevertheless binding on the party who makes it, in conscience and according to natural justice. The above definition is expanded by La.C.C. article 1758, as follows :

“Art. 1758. Natural obligations are of four kinds:
1. Such obligations as the law has rendered invalid for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust.
2. Such as are made by persons having the discretion necessary to enable them to contract, but who are yet rendered incapable of doing so by some provision of law.
3. When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.
4. There is also a natural obligation on those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective for want of form only.”

Although our jurisprudence exhibits some uncertainty regarding whether the listing in article 1758, above, is exclusive or illustrative, we find the authorities establish that the examples therein included are in fact illustrative. Notwithstanding Succession of Miller v. Manhattan Life Ins. Co., 110 La. 652, 34 So. 723 (1903), which held article 1758, above, exclusive, numerous subsequent decisions have found other obligations to be natural obligations although they do not fit within either of the four categories in said article. See, for example, Foster & Glassell Co. v. Harrison, 168 La. 500, 122 So. 595, a son being held to pay an unenforceable debt against his parent’s estate; Interstate Trust & Banking Co. v. Irwin, 138 La. 325, 70 So. 313, a bank director held liable on a note given to prevent impairment of bank stock, and Mortgage Investment v. Natal, 181 La. 651, 160 So. 128, an endorser held liable despite a release of his obligation resulting from an extension granted the principal obligor. See also comments on the question and authorities therein cited, Martin, Natural Obligations, 15 Tulane L.R. 497; Comment, Natural Obligations, 12 La.L.R. 79; 17 Tulane L.R. 310.

Under general contract law, an individual unquestionably is obligated to pay the fair cost of medical services rendered to him by a hospital, either private or state supported. However, our legislature has established the policy that this obligation is not to be enforced against indigents receiving medical service in a state supported hospital. See La.R.S. 46:1 et seq. Nevertheless, an obligation to pay exists, albeit unenforceable, against the indigent, as is evidenced by statutory provision permitting enforcement against non-indigents and third parties liable to the indigent in either contract or tort. La.R.S. 46:6-11; La.R.S. 9:4751-4755.

We believe the unenforceable obligation of an indigent to pay for such services falls squarely within the definition of natural obligations contained in articles 1757 and 1758, above. The instant case may be analogized to Campbell v. Parker, La.App., 209 So.2d 337, which held a prescribed hospital debt sufficient consideration to support a note given a finance company assignee of the original debt. We also note that in Factors and Traders’ Ins. Co. v. City of New Orleans, 25 La.Ann. 454; Campbell v. City of New Orleans, 12 La.Ann. 34 and Cook v. City of Shreveport, La.App., 144 So. 145, payment of a void municipal tax or lien was held unrecoverable because it was supported by the payor’s natural obligation to share the cost of municipal operation.

La.C.C. article 1759 states in clear terms that no action will lie to recover what has been paid or given in compliance with a natural obligation. While La.C.C. article 2302 provides that he who pays through mistake, believing himself to be a debtor, may reclaim what he has paid, La.C.C. arti-ele 2303 conditions such right of recovery-on the absence of a civil or natural obligation to pay.

We conclude that Client could not recover payments to Charity, even those made mistakenly. In this regard we note Michiels v. Succession of Gladden, 190 La. 917, 183 So. 217, which held that an insured waived the exception provided by La.R.S. 22:646 by a testamentary declaration that his debts be paid, and Smith v. Unity Industrial Life Ins. Co., La.App., 13 So.2d 129, which decreed a similar waiver where the insured agreed that future benefits be applied to his obligation to the insurer for unpaid, past due premiums.

However, Client’s right to recover from Tyler is not predicated upon a mistaken payment. Client has not paid Tyler anything whatsoever, neither does Client owe Tyler any obligation, natural or otherwise. Contrarily, Tyler is obligated to Client for damages caused Client by Tyler’s negligence, which in this instance aggregates $1,873.33.

It is ordered, adjudged and decreed that the judgment of the trial court in favor of Robert Muse against Defendants Alvin Tyler and Transamerica Insurance Company in the sum of $1,873,33 be affirmed and that the judgment in favor of third party plaintiffs Alvin Tyler and Transamerica Insurance Company, against third party defendant Louisiana Health and Human Resources Administration, be and the same is hereby reversed and set aside and said third party demands dismissed with prejudice; all costs of these proceedings to be paid by Alvin Tyler and Transamerica Insurance Company.

Affirmed in part, reversed in pai;t, and rendered.


author: DOMENGEAUX, Judge.

text:
    AMERICAN GUARANTY & LIABILITY INSURANCE COMPANY, Plaintiff-Appellee, v. Gray LITTLE, Jr., et al., Defendants-Appellants.
    No. 5331.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Raggio, Farrar, Cappel & Chozen by Stephen A. Bemiard, Jr., Lake Charles, Holt & Woodley by Edmund E. Woodley, Lake Charles, for defendant-appellant.
    Brame,' Bergstedt & Brame by Joseph A. Brame, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMEN-GEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

This is a subrogation suit by plaintiff-appellee, American Guaranty & Liability Insurance Company, to recover the sum of $10,544.51 which amount it paid to its insureds, Bryan Bell, and Streuby Drumm d/b/a Suffolk Manor Apartments, Lake Charles, Louisiana, for property losses sustained on February 9, 1973, when a fire broke out in apartment number 148 of the complex. Made defendants in the suit are Gray Little, Jr., his insurer, Travelers Insurance Company, and Fisher Radio Corp.

After trial on the merits the District Court concluded that the fire causing the damages sued for resulted from the joint negligence of the defendant Gray Little, Jr. (the owner of the Fisher Model 390 stereo receiver referred to hereafter) and Fisher Radio Corporation (the manufacturer of said unit), and rendered judgment accordingly against those defendants and Travelers Insurance Company.

Defendants have appealed suspensively to this court. We affirm.

We find that the trial judge has adequately and correctly treated the facts and circumstances surrounding the fire and its cause, and we quote in part from his written reasons as follows:

“A fire occurred in Apartment 148 of the Suffolk Manor Apartments on February 9, 1973. At that time the apartment was leased to Gray Little, Jr., William H. Hines and Erwin A. Burge, Jr. The fire originated in the living room of the apartment. It originated at precisely the point where a Fisher Model 390 receiver was located. The Fisher receiver was a part of a stereo component system which consisted of the receiver, a record changer — player, and two speakers . . .
The Fisher 390 stereo receiver was a combination radio and amplifier. Its radio function received AM and FM signals and its amplifier function amplified those signals. Its amplifier also amplified the signals received from other sources such as a record player. There was a Garrard record player attached to the receiver by wires. There were also two speakers attached to the receiver by wires. The speakers were on either side of the receiver and the record player was on one side of it, all on the floor. The receiver was sitting on the floor, which was covered by a shag carpet. The receiver was plugged into a wall receptacle. Mounted directly above the receiver was a table model television set which was also plugged into that same receptacle.
The Fire Chief of the City of Lake Charles, Pete Cascio, testified that the fire started at the base of the south wall of the living room at the precise location occupied by the receiver. He said that the fire was put out with 70 gallons of water sprayed a little over 30 seconds. The receiver itself was burned almost beyond recognition. The shell of the metal box in which the electronic parts were housed was recognizable but everything that could be subject to ignition was burned out of and off of its contents. Likewise burned beyond recognition was the television set above it. However, none of the parties to the case thought enough about the television set and its possible contribution to this fire to have it examined or produced in court.
The chassis of the receiver was metal and it had numerous ventilation holes in it on the bottom and the top. The chassis sat upon short plastic feet estimated by the court to be i/£" to high by comparison to a new Model 390 which was introduced in evidence for comparison purposes. When the set was mounted on shag carpet, it is obvious that these feet would sink to the floor and cause the fabric of the carpet to impede free air flow through the ventilation holes on the bottom of the chassis.
When Mr. Little bought this stereo receiver from Fisher he was furnished with a booklet entitled ‘Operating Instructions Manual’ and this booklet contained the following language:
‘While installation is relatively simple, certain precautions must be observed. PLEASE KEEP IN MIND THAT OUR WARRANTY DOES .NOT COVER DAMAGE CAUSED BY MISHANDLING, MISUSE, EXCESSIVE LINE VOLTAGE, OR INSUFFICIENT VENTILATION. We therefore urge you to follow the instructions in this section (Keyed to figure 1) carefully and in sequence; you may then proceed directly to the [sic — next] section, OPERATING THE RECEIVER.’

Additionally, the operating instructions contained the following language:

‘Place the receiver on any conveniently located shelf or table that is away from radiators, warm-air ducts, or other sources of heat. Never place the unit on a soft [sic — or] yielding surface; this could impede ventilation through the underside of the chassis. Allow at least two inches clearance above and behind the unit for ventilation.’
The evidence convinced me beyond any doubt that the fire originated in the receiver. The firemen who testified explained that any fire takes a classic V pattern and that based upon that classic pattern, they could pinpoint the origin of the fire as the space occupied by the receiver. Additionally, there was the highly incriminating (so far as the receiver is concerned) showing that material from the shag carpet was baked onto the bottom side of the receiver which was sitting on the shag carpeted floor. Furthermore, only the receiver and the television set which was directly above it were totally burned. The record changer which was to the side of the receiver was not so badly damaged by fire and the speakers not as much as the record changer. In fact, only those sides of the speakers facing the receiver were charred.
A considerable amount of testimony by way of experts was introduced by the defendants. Their purpose in eliciting this testimony was to show that the fire could not have started with the receiver. A Fisher representative who qualified as an electrical engineer testified by deposition that the fire could not have started in the receiver. Also, defendants used a local electronics expert in whom the court has much confidence, and he testified that it was unlikely that the fire started from the receiver. Plaintiff produced an electrical engineer of equal qualifications to the defendants’ experts who explained that the fire could have originated with the Fisher product.
While the court has much respect for the experts testifying on behalf of defendants, the essential and unchanging fact that stands out in this case that renders their testimony useless to the court is that the fire did in fact start with the Fisher receiver.
The evidence so completely preponderates that the fire originated in the receiver that the court has little difficulty in making this determination of fact. There is no other point of origin that reason more compelling dictates was the cause than the receiver. To deny that the receiver was the source of the fire is almost the same as denying the fire itself.
The mechanics of how it happened is a question the court cannot answer, two of the experts could not answer, and one thought he could answer. The Fisher expert testified that the printed circuit boards in the set are made of flame retardant material to meet UL requirements. I cannot accept an explanation of why flame retardant material is used on a printed circuit board in an electronic instrument if that material has no usefulness in retarding flames. This witness also testified that the power transistors in that set are mounted on a ‘heat sink’ the purpose of which is to ‘conduct — off’ heat generated by transistors Obviously, these transistors generate a certain amount of heat. Heat produces fire. The operating instructions advised owners to ‘never place the unit on a soft yielding surface; this could impede ventilation through the underside of the chassis.” (Underscoring by the court) In view of what happened, I cannot accept an explanation that the hazard which this warning was intended to avoid was limited to the proper operation of the equipment rather than fire.
The fire occurred late in the afternoon. The three boys who occupied the apartment had left the apartment earlier that morning. There was testimony that sometimes the receiver was left on by accident, not by choice, because Mr. Gray did not want the receiver left on when no one was present. However, it sometimes happened that the receiver was left on. Mr. Gray came into the apartment at noon on the day of the fire but he went only as close to the amplifier as the kitchen telephone, several feet away, and it cannot be determined from the testimony if he noticed whether the amplifier was on or not on. The fire occurred late in the afternoon when no one was present in the apartment. The burned out receiver was not examined by professionals until months after the fire. Because of that, the court cannot place any reliance upon, testimony as to the position of the on — off switch when it was examined. Only the shaft remained of that switch after the fire. The defendants attempted to show that because one of their experts concluded that the switch was in an off position when he saw it (judging from the position of the flat side of the shaft that was once part of the on — off switch), the set was off when the fire occurred. This proves only one thing, and that is that the set was off at the time the professional examined it. It does not prove that the set was off at the time of the fire.
Defendants also attempted to show that the television set might have caused the fire. This was an early model TV set that had a remote control tuning device unfortunately tuned to a frequency that could be matched by a multitude of everyday sounds — keys rattling or being thrown on a formica shelf, airplanes passing overhead, the telephone, doors slamming. The result was that this peculiar television came on unpredictably. The Fisher expert was eager to blame the television set as the culprit, despite the fact that the TV is an electronic device that presumably would have as many fail-safe gadgetry in its system as any other electronic piece of equipment. We considered very carefully the possibility the fire could have been caused by the television set, especially considering its complete state of destruction apparently equaling that of the receiver.
The problem in laying the blame on the TV set is the classic V pattern of fires. If the TV set had caught fire first, it is simply inconceivable that the receiver beneath it could have been so completely destroyed, and nearby objects, such as the turntable and speakers, only relatively damaged. The classic V pattern principle convinces me that the fire had to originate with the receiver and not the TV set no matter how old and eccentric it was.
Given a condition of abnormal heat, such as we have here with the ventilation ducts closed in the receiver, it is logical to conclude that the abnormal heat produced fire. In view of the conflict in expert testimony and the court’s limitations as to personal knowledge of matters electronic, I cannot trace the precise events between abnormal heat and fire. But, it is clear there was abnormal heat in the receiver and the fire originated in the receiver. The facts and circumstances suggest the negligence of Gray Little, Jr. rather than some other factor, as the most plausible explanation. The ‘Operating Instruction Manual’ was explicit. Not only were the instructions explicit, but human experience would suggest that it is unsafe to place an electronic instrument equipped with ventilation holes onto a surface which would stop up those ventilation holes. If the negligence of Little needs further definition, it may be supplied by res ipsa loquitor. I rely herein upon Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621; Fireman’s Fund Insurance Company v. United States Fidelity & Guaranty Company, 276 So.2d 754 (3rd Cir., 1973); Wilson v. Four States Realty Company, Inc., 276 So.2d 810 (3rd Cir. 1973); Clark v. Central Louisiana Electric Company, Inc., 284 So.2d 621 (3rd Cir., 1973) ; and, Hanover Insurance Company v. Jacobson-Young, Inc., 294 So.2d 564 (4th Cir. 1974).”

Other possible causes of the fire were the wall receptacle and wiring, the speakers, the television and the turntable. The record strongly preponderates that none of these sources caused the fire.

We conclude, for the reasons of the District Judge hereinabove set forth that defendant, Gray Little, Jr. was negligent in placing the Fisher 390 stereo receiver on the shag carpet which obstructed the ventilation holes on the bottom of the set, thereby causing the fire.

Concerning the negligence of the defendant manufacturer, Fisher Radio Corp., the District Judge found that said corporation was negligent in failing to warn the consumer of the fire hazard which could result from the location of its stereo receiver on a soft, yielding surface. The “Operating Instructions Manual” does not warn, caution or suggest that fire may result by an impeding of the ventilation on the underside of the receiver chassis.

The case of Rey v. Cuccia, 298 So.2d 840 (La.1974) dealt with a situation wherein the seller had installed a trailer hitch six inches higher than had been recommended by the manufacturer of the camper trailer. After having been pulled for approximately 200 miles on paved highways, the camper trailer virtually collapsed. Concerning the responsibility of the manufacturer, our Supreme Court stated:

“. . . . There is no warning that there might be such damage occasioned as was here by the failure to so install the hitch. If the trailer were so constructed that such a slight deviation from a recommended procedure of installation of the hitch would cause this type of damage, then this constitutes a defect for which the manufacturer would be responsible, absent at least some warning of the danger involved. . . . ”

If the manufacturer was liable as in Rey for failing to warn of the danger involved with a slight deviation from a recommended procedure, then, a fortiori, the manufacturer herein, Fisher, is responsible for failing to warn of the hazard of a gross deviation.

Considering that the fire in the instant case was caused by placing the ventilated bottom of the unit on a soft, yielding shag rug, thereby obstructing the ventilation, we conclude that the defendant Fisher was obligated not only to warn that such placing would impede ventilation, but also to warn that said action could cause fire.

Accordingly, we agree with the trial judge that the defendant Fisher is also liable for its failure to warn of the danger involved. For the above and foregoing reasons the judgment of the District Court is affirmed.

All costs at trial and on appeal to be assessed equally against defendants— Travelers Insurance Company and Fisher Radio Corp.

Affirmed.


author: CULPEPPER, Judge. DOMENGEAUX, Judge

text:
    James Charles JANISE, Plaintiff and Appellee, v. Magdalene Gobeil JANISE, Defendant and Appellant.
    No. 5368.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    Writ Refused June 2, 1976.

      Nathan A. Cormie and Ronald Bertrand, Lake Charles, for defendant-appellant.
    Levingston & Liles by Henry R. Liles, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

The mother filed a rule against the father to have past due child support payments made executory, to have the father held in contempt, and for attorney’s fees for prosecution of this rule. Defendant-in-rule filed a reconventional demand seeking to have the child support payments previously fixed by the court reduced and also seeking reasonable attorney’s fees.

The district court ordered that the past due child support payments in the sum ofn $152.50 be made executory, that defendant-in-rule be held in contempt but without penalty, and that the child support be reduced from $187.50 to $160 per month. But it denied all claims for attorney’s fees. Plaintiff-in-rule appealed. Defendant-in-rule answered the appeal, seeking to have the child support further reduced.

The issues are: (1) Whether the district court abused its discretion as to the reduction of child support payments. (2) Whether plaintiff-in-rule is entitled to attorney’s fees necessary to litigate the rule for past due child support payments. (3) Whether the trial court abused its discretion in assessing the wife with one-third of the court costs.

The facts show that the parties were separated from bed and board by judgment dated April 24, 1975. In that judgment, the mother received custody of the three year old child of the marriage. The father was ordered to pay for the support of the child the sum of $187.50 per month, payable in two equal installments of $93.75 on the 1st and 15th of each month. This figure was agreed to by joint stipulation of the parties.

REDUCTION OF CHILD SUPPORT

The first issue is whether the trial judge erred in reducing the child support by the father from $187.50 to $160 per month. Of course, both fathers and mothers have the duty to support their minor children. LSA-C.C. Article 227. The amount should be in proportion to the needs of the child and the ability of the parents to pay. LSA-C.C. Article 231. A previous award of child support may be reduced where there is a change of circumstance either in the needs of the child or the ability of the person obligated to pay. LSA-C.C. Article 232; Collette v. Olivier, 309 So.2d 894 (La.App., 3rd Cir. 1975). The trial judge has great discretion in fixing the amount of child support and in the modification thereof. His judgment will not be disturbed on appellate review in the absence of a showing of abuse of discretion. Wingo v. Cook, 306 So.2d 370 (La. App., 3rd Cir. 1975).

Under these rules, let us examine the facts of the present case. On April 24, 1975, when the original judgment ordered the father to pay $187.50 per month, he was employed as a construction worker on a job at Cities Service Refining Corporation. He was earning about $8 an hour. During the year 1974, he had earned a total of $11,647. At that time, the mother was also employed, earning $2 per hour. Under these circumstances, the father was ordered to pay $187.50 per month for the support of the child, whose custody was awarded to the mother.

About one month after the original judgment, the father’s employment on the job at Cities Service terminated. He then worked on other construction jobs in different places in Louisiana with intermittent periods of unemployment. However, the evidence shows that by the time of the trial of the present rule on September 5, 1975, Mr. Janise had received an income of about $7,100 during the first eight months of 1975. On this basis, the trial judge calculated that the father’s income had decreased after the original judgment from about $1,000 per month to about $800 per .month. Another factor which the trial judge considered in reducing the child support by the father, was that by the time of the trial of this rule the mother’s earnings had increased to $2.50 per hour. On this basis, the district judge reduced the father’s child support obligation to $160 per month, payable $80 on the 1st and 15th of each month.

We find no abuse of the trial court’s great discretion in this reduction of the child support by the father.

ATTORNEY’S FEES

The next issue is whether the mother is entitled to attorney’s fees necessary to litigate the rule to make past due child support payments executory. In his reasons dictated into the record at the conclusion of the trial, the district judge rejected the wife’s claim for attorney’s fees. He stated that under the circumstances of this case, where the relief sought by the wife and that sought by the husband were intertwined, and the husband was partially successful in that he secured a reduction in child support payments, the parties should pay their own attorneys.

The facts show that when the father agreed to the original judgment on April 24, 1975, he had hopes that he could obtain permanent employment at Cities Service and would be able to make the payments of $93.75 in child support on the 1st and 15th of each month. He made the payment due on May 1. However, his job at Cities Service was terminated on about May 3, and he had no funds with which to make the payment due on May IS.- He testified he received an income tax refund check of $90.80 payable to him and his wife and that he kept $40 and gave her the remaining $50.80 during the latter part of May. He does not contend this $50.80 paid part of the May 15 installment, but he considered it did help his wife care for the child.

During June and July he worked on different construction jobs at different places in Louisiana but was unable to find steady employment. He was a member of a union based in Kansas City and priority on these jobs was given to members of Louisiana unions. Nevertheless, using his earnings from these jobs and some of the unemployment compensation which he drew, he made the child support payments through that due on August 1.

The mother filed the present ruled on August 11, 1975, alleging that one installment in the sum of $93.75 (the one due on May 15) was past due. She also prayed for $750 for attorney’s fees.

At the trial of the rule on September 5, 1975, the father testified he had not made the payment due on May 15 because he simply did not have the funds. He related his story about having difficulty finding jobs and not being able to work steadily. Due to decreased earnings and to the increased expense of traveling and living on these jobs, he had not been able to make up the May 15 payment. However, he stated that he wanted to support his child, and that he was going to pay it as soon as he could.

There was no evidence that the wife had made any demand on the father to pay this May 15 installment before she filed the present rule.

The evidence at the hearing also showed that the father had paid only $35 on the installment due on September 1, leaving $58.75 due on that payment. Thus, on the date of the trial on September 5, a total of $152.50 was past due, and this amount was made executory.

In the recent case of Gauthreaux v. Gauthreaux, 315 So.2d 402 (3rd Cir. 1973) a different panel of this Court (Fruge, Miller and Domengeaux) discussed in detail the unsettled state of the jurisprudence on the question of whether the mother can recover from the father attorney’s fees incurred in prosecuting an action for past due child support. In Gauthreaux, the court logically started with the well established general rule that attorney’s fees are not allowed in the absence of a statute or contract which provides for them. The court then noted that jurisprudence has initiated a few exceptions to this rule. As to the particular exception at issue here, the court noted that in Newson v. Newson, 176 La. 694, 146 So. 473 (1933) our Supreme Court allowed attorney’s fees. However, in Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950), that Court, without discussing the prior Newson case, denied the mother’s claim for attorney’s fees with the statement: “We know of no law and have been referred to none which provides for such fees in a case of this kind.”

In Stoltz v. Stoltz, 162 So.2d 103 (4th Cir. 1964), our brothers of the Fourth Circuit Court of Appeal denied the wife’s claim for attorney’s fees, citing Wainwright as authority but making no mention of the Newson case. Our Supreme Court denied writs in Stoltz, 246 La. 349, 164 So.2d 352, with the statement: “No error of law in the judgment.”

After calling attention to the above unsettled state of the jurisprudence, the panel of this Court in Gauthreaux, stated that it preferred to follow Newson. Accordingly, the Gauthreaux panel awarded the mother an attorney’s fee of $100. There was no application for writs in Gauthreaux.

The panel in Gauthreaux stressed the reasoning in Newson that where it is necessary to employ an attorney to collect past due child support, the mother should not have to use part of the amount collected to pay the attorney’s fees. The rationale is that this would tend to defeat the purpose for which the support payments were ordered.

On the other hand, where the father has reasonable cause for his failure to make the payments as ordered, such as unemployment or illness or other causes beyond his control, then a strong argument can be made that the trial judge should have the discretion to consider all of the circumstances and decide whether attorney’s fees should be allowed. Perhaps the rule should be that the father should be assessed with attorney’s fees only where he is arbitrary or capricious in failing or refusing to pay child support. Also, maybe the rule should require demand for payment as a prerequisite to recovery of attorney’s fees.

This case illustrates the difficulty of developing an exception to a rule through jurisprudence, on a case-by-case basis, rather than by drafting a comprehensive statute.

We conclude that in the present case we should not follow the rule as stated by a different panel of this Court in Gauthreaux v. Gauthreaux, supra. Our reasons are as follows: (1) The basic well established general rule is that attorney’s fees are not allowed in the absence of a statute or contract providing for them. (2) Although our Supreme Court departed from this general rule in the Newson case in 1933, it adhered to the general rule in Wainwright in 1950, and by the denial of writs in Stoltz in 1964, these latter rulings being the last expressions of our Supreme Court on this matter. (3) Even if an exception to the general rule is to be recognized, we think it should be strictly limited to those cases where the father has been arbitrary or capricious in his failure to pay, and that this matter should be left largely to the discretion of the trial judge. (4) In the present case, we find no abuse of the discretion of the trial judge in refusing attorney’s fees.

We would like to add that if attorney’s fees are to be allowed in these cases, this could best be accomplished by appropriate legislation. In the absence of legislation, we respectfully suggest that our Supreme Court grant writs in the present case and decide whether attorney’s fees can be recovered in these cases, and, if so, that the court state a comprehensive jurisprudential rule as a guide to the lower courts.

COURT COSTS

The district judge reasoned that since each party was partially successful, the mother should pay one-third and the father two-thirds of the costs in the district court. The trial judge has much discretion in assessing court costs. We find no abuse of that discretion here.

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

AFFIRMED.

DOMENGEAUX, J., concurs in part and dissents in part and assigns written reasons.

DOMENGEAUX, Judge

(concurring in part and dissenting in part).

I agree that it was within the discretion of the trial judge to reduce the monthly support payments. This reduction was made on the basis that the father had been laid off subsequent to the time when the original award was made. The father was a boiler maker, worked in construction, made good money ($8.00 per hour), and his job was such that layoffs were rather customary. Actually the wife testified that during the six or seven years that he was in this employment, the layoffs were a fairly regular pattern in his work. Be that as it may, the trial judge was on the ground floor, and I do not feel that he abused his discretion in reducing the support payments. (However, it is interesting to note that since this appeal has been taken the wife has filed a new rule to increase child support claiming that since September 5, 1975, the date that the award was reduced, the father is now again employed, currently making approximately $10.00 per hour, presumably as a boiler maker. This hourly rate, if correct, is actually $2.00 per hour more than he was making before.)

On the Court cost question, the trial judge caused the wife to pay one-third of the costs on the rule because the husband was successful in getting the child support reduced. The majority affirms this ruling, and I find no abuse of discretion.

On the question of denial of attorney’s fees, I feel compelled to disagree with the majority, although I recognize the respectability of their argument on that question; and their calling attention to the generally unsettled state of the jurisprudence. Notwithstanding, it cannot be denied that the father was behind in his payments, the trial judge made these arrearages executory, and finally found the father in contempt for non-payment as required by the Court’s order. No authorities are required for the elementary proposition that a support judgment under the facts of this case, remains in effect until it is changed by the court which ordered it. The fact that there was a reduction ordered in this case does not affect the father’s responsibility up to that time. The Supreme Court decision of Newson stands for the definite proposition that if the father is delinquent in his child support payments and the wife has to sue to collect same, she is entitled to attorney’s fees. The Gauthreaux case, which I authored (panel of Fruge, Miller, and Do-mengeaux) followed Newson. Concerning the subsequent Supreme Court Wainwright case, which was followed by the Fourth Circuit in Stoltz (1964), it is evident that neither court was cognizant of the existence of the Newson case. I noted in Gauthreaux (Footnote 7) that none of the Justices of the Supreme Court in 1933 (when Newson was decided) were also on the court in 1950 (when Wainwright was decided). Additionally the headnote in Newson is not carried in the Digest. The Newson case is not properly indexed and not catalogued on the question of attorney’s fees. The Digest, under “Divorce, Key 222” carries the Wainwright and Stoltz cases, but not the Newson case.

I feel bound to follow Gauthreaux and therefore dissent from the portion of the majority opinion which affirms the trial court’s judgment denying attorney’s fees. On that score, however, I would join my colleagues in suggesting that the Supreme Court grant writs in this case to clear up the jurisprudence.

For the above and foregoing reasons I respectfully concur in part and dissent in part.


author: MORIAL, Judge.

text:
    Albert HOWARD v. Cecil G. JOHNSON and Liberty Mutual Insurance Company.
    Nos. 7438, 7439.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      Robert T. Hughes, New Orleans, for plaintiff-appellee/appellant.
    Borrello, Huber, Katz, Richard and Pratt Metaire, A. Miles Pratt, III, New Orleans, for defendant-appellant.
    Robert J. Young, Jr., Edward L. Levert, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, MORIAL and BEER, JJ-
   MORIAL, Judge.

This is an appeal from a judgment of the District Court holding Liberty Mutual Insurance Company liable to plaintiff, Albert Howard, for damages in tort.

On September 14, 1973 plaintiff was injured in a vehicular accident while in the course and scope of his employment with Dixie Labor Service, Inc. (Dixie Labor). The accident occurred while plaintiff was a passenger in a truck being operated by his co-employee, Cecil Johnson. The vehicle involved had been leased by Branton Insulators, Inc. from Dixie Leasing, Inc. Except for the similarity in names, Dixie Leasing, Inc. has no connection whatsoever with Dixie Labor Services, Inc.

On May 13, 1974 plaintiff filed suit against Dixie Labor and its insurer, Insurance Company of North America, (INA) seeking recovery of workmen’s compensation benefits. On June 7, 1974 INA answered and made a third party demand for indemnity against the driver of the vehicle, Cecil Johnson and the insurer of the vehicle, Liberty Mutual Insurance Company (Liberty Mutual). Thereafter, plaintiff brought suit in tort against Cecil Johnson and Liberty Mutual. The two suits were subsequently consolidated for trial.

After trial on the merits the negligence of Johnson was found to have been the sole cause of the accident and judgment was rendered in favor of plaintiff and against Liberty Mutual in the amount of $2,000.00. Judgment was also rendered in favor of third party plaintiff, INA and against third party defendants, Liberty Mutual and Cecil G. Johnson, jointly, severally and in solido in the amount of $726.-34 representing reimbursement for the amount paid Howard in workmen’s compensation benefits. Liberty Mutual appeals. We reverse.

The single issue for our determination on this appeal is whether plaintiff may recover damages under the terms of the liability insurance policy issued by Liberty Mutual to its insured, Dixie Leasing, Inc.

The policy provides as follows:

“III Definition of Insured (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse, if a resident of the same household and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by named insured or said spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or said spouse does not apply:
“(2) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.”

Liberty Mutual contends that under the so-called “fellow employee exception” contained in subsection (2), coverage is excluded for injuries inflicted by one employee upon a fellow employee where, as in the instant case, said employees are in the course and scope of their employment.

Plaintiff contends that the “fellow employee exception” is inapplicable in this case due to the absence of an employer-employee relationship between the owner of the truck and plaintiff.

We believe Welch v. National Surety Corporation, 206 So.2d 545 (La.App. 1 Cir. 1968), is entirely dispositive of the issue before us. This case involved the same policy provision and a collision wherein an employee was injured in a truck which had been loaned to his employer and which was being driven by a fellow employee while both were in the course and scope of their employment. In denying liability, the court held that under the clear and explicit wording of the policy, the driver was not covered under the definition of “the insured” when his fellow-employee was injured. It was argued, as plaintiff argues here, that the phrase “same employer” contained in the “fellow employee exception” should be construed to mean “the same employer who is also the owner of the truck.” The court dismissed this contention by stating at page 547:

“It is not within the province of this court to rewrite the provisions of an insurance policy which is clear and unambiguous. In order for intervenor’s views to prevail, this court would be compelled to insert words ‘named insured’ in place of the phrase ‘same employer’. This we cannot do.”

We fully agree with the reasoning of Welch. The wording of the exception is clear and unambiguous. It is of no moment that the truck’s named insured and plaintiff’s employer are not one and the same. In order for the exception to apply it is only necessary that the employees be in the course and scope of their employment with the same employer when the accident occurs. Clearly, these conditions are satisfied here. Accordingly, there is no liability coverage.

For the reasons assigned, the judgment of the trial court is hereby reversed and it is now ordered that there be judgment dismissing plaintiff’s suit against Liberty Mutual Insurance Company and also dismissing the third party demand of Insurance Company of North America against Liberty Mutual Insurance Company. Plaintiff and third party plaintiff are to pay all costs.

REVERSED.