text:
    Lloyd Leo BRAUD v. DIXIE MACHINE WELDING & METAL WORKS, INC.; American Home Assurance Company; Freeport Chemical Company; Liberty Mutual Insurance Company; John Werling, d/b/a Werling Woodworks; and Idso Investments, Inc.
    No. 5-167.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.

      Adams & Reese, Robert E. Couhig, Jr., Mark J. Spansel, Jones, Walker, Waechter, Poitevent, Carrere, & Denegre, John J. Weigel, New Orleans, for IDSO Investments, Inc., Dixie Mach. Welding & Metal Works, Inc., American Home Assur. Co., and Freeport Chemical Co., defendants-ap-pellees.
    Cave & McKay, Donald G. Cave, Baton Rouge, for plaintiff-appellant.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   CHEHARDY, Judge.

Plaintiff, Lloyd Leo Braud, has appealed from a summary judgment dismissing his tort suit against Freeport Chemical Company (Freeport), IDSO Investments, Inc. (IDSO), Dixie Machine Welding & Metal Works, Inc. (Dixie), and American Home Assurance Company (American). We reverse as to Freeport, finding an unanswered question of material fact. We affirm as to the other defendants, however, finding that there are no questions of fact material to their liability and that they are entitled to judgment as a matter of law.

Lloyd Leo Braud was an ironworker employed by Welding and Manufacturing Company (WAMCO) on a job for Freeport Chemical Company. Braud was severely injured when he suffered a 40-foot fall on the job, when a board on which he was standing broke. WAMCO is an unincorporated division of Dixie; Dixie is owned entirely by IDSO; and American was the liability insurer of Dixie and IDSO.

Freeport produces phosphoric acid. To produce that acid, Freeport buys sulphur, converts the sulphur to sulphuric acid, buys phosphate rock and reacts the phosphate rock with sulphuric acid to make phosphoric acid. The phosphate rock must be ground into smaller particles as a preliminary to this process. At the time of Braud’s accident, WAMCO was installing a new bin bottom and conveyor belt at Freeport’s plant as part of a $4.5 million project by Freeport to convert from a system of dry rock grinding to wet rock grinding.

Braud sued Dixie, IDSO, American and Freeport in tort. All filed for summary judgment, alleging plaintiff’s exclusive remedy against them was for workmen’s compensation. The district court granted summary judgment as to all defendants.

The major issue on appeal is whether Freeport was Braud’s statutory employer under LSA-R.S. 23:1061. As in all such cases, that question requires a factual determination that the work in which plaintiff was engaged was part of the trade, business or occupation of Freeport.

The affidavits submitted by Free-port. uneontroverted by plaintiff, establish the following facts:

Freeport is a major producer of phosphoric acid. Freeport decided to convert its rock-grinding system to the wet rock method because the dry rock method formerly in use was becoming economically unfeasible. The design of the system and much of the work on it were supervised by Freeport employees. Part of the conversion process required installation of a new bin bottom on the storage silo and replacement of the conveyor system running from the bin bottom. This was the work being performed by WAMCO at the time Braud was injured.

Freeport had the equipment and personnel to perform the actual conversion work it contracted out, but the overall project demanded more time than Freeport could devote to it. Freeport did allocate part of its labor crew to portions of the conversion project, and maintained 24-hour supervision over the project. At the time of Braud’s accident, Freeport’s 160-member maintenance crew had 50 laborers capable of doing the type of work Braud performed, and these laborers often performed this type of work at the plant.

A recent First Circuit case is on point with our factual situation. In Blount v. Exxon Corp., 395 So.2d 355 (La.App. 1st Cir.1981), a pipe fitter brought a tort action for injuries sustained in a fall during work on a major reconversion by Exxon of one type of alcohol production facility into another type of such facility. In that case, the court stated, at page 360:

“There is no essential dispute that maintenance and repair services performed by non-Exxon employees at Exxon’s chemical plant are part of Exxon’s trade, business or occupation. This statement, however, does not answer the question of whether Exxon’s trade, business or occupation includes a major reconversion of one type of alcohol production facility into another type of alcohol production facility. There is no evidence in the record before us as to whether Exxon regularly engaged in the business of converting its production facilities from one type of unit to another. Although one affidavit stated that Exxon had the design capacity to design the entire expansion project, the same affidavit noted that Exxon chose to contract out some of that work because Exxon design personnel were needed elsewhere.
“As noted above, the plaintiff filed no countervailing affidavits or other evidence to show that there was a genuine issue of material fact. But even if the opposing party does not show that there is a genuine factual dispute, the party moving for a summary judgment must bring forth sufficient evidence to show that it is entitled to a judgment as a matter of law. [Citation omitted.] To be entitled to judgment as a matter of law in this case, Exxon had to prove that reconversion projects of the type at issue in this case were regularly done as a part of Exxon’s trade, business or occupation. * * * »

That reasoning precisely describes the matter now before us. Accordingly, we find there remains a question of material fact as to whether Freeport regularly engaged in the business of converting its production facilities from one type of unit to another. This factual issue precludes summary judgment as to Freeport.

See also, Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973); Ball v. Kaiser Aluminum & Chemical Corporation, 112 So.2d 741 (Orl.App.1959); Blanchard v. Engine & Gas Compressor Services, Inc., 613 F.2d 65 (5th Cir.1980); Murphy v. Georgia-Pac. Corp., 628 F.2d 862 (5th Cir.1980).

It is uncontested that Braud was injured in the course and scope of his employment with WAMCO. Clearly, therefore, his exclusive remedy against Dixie (his employer) and IDSO (sole stockholder of his employer) is for workmen’s compensation. LSA-R.S. 23:1032. In addition, the de-fense of tort immunity under this section is not personal to the immune party but can be invoked by his insurer sued under the direct action statute. Carlisle v. State, Dept. of Transportation and Development, 400 So.2d 284 (La.App. 3d Cir.1981), writ denied 404 So.2d 1256. Therefore, American properly was accorded the protection of the statute.

Braud, however, contends the exclusivity of R.S. 23:1032 cannot extend to Dixie, IDSO and American for two reasons:

1. They were contractually liable to protect, indemnify, and save Freeport harmless from liability of the type asserted by plaintiff; and
2. Braud contends it is unresolved as a matter of law whether an employer who is the manufacturer or supplier of a defective product may be liable both in tort and for compensation to its employee injured by the product.

There is no merit to either contention. The indemnity obligation of WAMCO (and through it of Dixie, IDSO and American) exists purely by virtue of the contract between WAMCO and Freeport. Plaintiff was not a party to that contract. Therefore, he cannot assert any rights under it.

The issue of liability of an employer to his employee for injuries caused by a defective product was settled succinctly and correctly in Atchison v. Archer-Daniels-Midland Co., 360 So.2d 599 at 600, writ denied 362 So.2d 1389 (La.App. 4th Cir. 1978): “There is no cause of action in ‘products liability’ against one’s employer for injury for which the employer owes workmen’s compensation.”

For the foregoing reasons, the decision of the trial court is affirmed as to its dismissal of IDSO Investments, Inc., Dixie Machine Welding & Metal Works, Inc., and American Home Assurance Company. The decision of the trial court is reversed as to the summary judgment in favor of Freeport Chemical Company, and the case is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed against Freeport Chemical Company.

REVERSED AND REMANDED.

      . “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      “Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

      . “The rights and remedies herein granted to an employee or his dependent on account of an injury or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      “The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    Ervin J. ARNOUVILLE, Jr. v. JOINER ENTERPRISES, INC., d/b/a Liberty Waste Carriers, et al.
    No. 5-153.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.

      Ronald J. Landry, LaPlace, Bernard J. Rice, III, Gretna, for plaintiff-appellant.
    H.D. McNamara, Jr., Hailey, McNamara, McNamara & Hall, Metairie, for defendants-appellees.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal brought by Ervin Arnouville, Jr., plaintiff, from a judgment dismissing his claim in tort for damages against Joiner Enterprises, Inc., d/b/a Liberty Waste Carriers, Michael P. Morris and U.S. Fire Insurance Company, defendants.

After a trial on the merits, the jury concluded Michael Morris (hereafter Morris), the operator of the truck owned by his employer, Joiner Enterprises, Inc., was not negligent. The defendants did not appeal nor did they answer plaintiff’s appeal. The plaintiff asserts three assignments of error by the trial court: 1) Permitting defendants’ fact witness to testify out of turn over objections of the plaintiff causing confusion in the jury’s mind, 2) The trial judge’s refusal to give certain jury charges proposed by the plaintiff relative to the negligence of a left-turning vehicle and proposed jury charges relative to the obstruction of highways and contributory negligence, and 3) The verdict of the jury was contrary to the law and the evidence. We cannot say the trial judge abused his discretion or that the jury was clearly wrong, hence, we affirm the trial court.

At approximately 1:30 A.M. on March 12, 1978, Morris was operating a 1977 Ken-worth truck on Interstate 10 in the inbound lanes (towards New Orleans) near the exit from the Interstate to Veterans Boulevard. The exit ramp makes a semicircle from the inbound lanes of the Interstate into the inbound traffic lanes of Veterans Boulevard. At the point where the exit ramp meets the inbound traffic lanes of Veterans Boulevard, there is a stop sign. Veterans Boulevard has three inbound traffic lanes and three outbound traffic lanes separated by a median seven or eight feet in width. Interstate 10 passes over Veterans Boulevard two to three hundred yards towards New Orleans from the stop sign at the intersection of the I — 10 exit ramp and the inbound traffic lanes on Veterans Boulevard. There is a slight curve in the inbound traffic lanes extending towards Kenner from the stop sign.

According to the undisputed testimony of Morris, when he reached the stop sign at the intersection, he came to a complete stop and checked the flow of traffic in the inbound and outbound lanes of Veterans. When he believed the way was clear in the inbound lanes and outbound lanes, he proceeded across the inbound lanes with the intention of crossing the median and making a left turn (towards Kenner) in the outbound traffic lanes of Veterans Boulevard. When the cab of the truck entered the median, he noticed traffic flowing in the outbound traffic lanes; hence, he came to a complete stop to allow the traffic in the outbound lanes to clear before executing the left turn on Veterans. He stopped his truck with the bulk of the cab being in the median and the remainder of the truck extending into and blocking two inbound traffic lanes (those closest to the neutral ground) of the three inbound traffic lanes of Veterans.

The plaintiff testified he entered the traffic lanes of Veterans Boulevard with his 1977 Ford pickup truck from Downs Boulevard (about one thousand feet towards Kenner from the stop sign at the intersection of the Interstate exit ramp and Veterans Boulevard). He proceeded inbound in the middle traffic lane. When he was confronted by the Kenworth truck obstructing his lane of traffic, he placed both hands on the steering wheel, turned hard right, and applied his brakes. He remembers nothing else.

When the collision occurred, two police detectives, Sergeant Bond and Sergeant Hidding, with officer Hidding driving, were riding in the inbound traffic lanes of Veterans Boulevard. Although engaged in casual conversation, both officers testified they noted the defendant’s truck stopped on Veterans Boulevard from the time they came under the interstate at which point they were two to three hundred yards from the truck. Although neither officer saw the collision, they heard the impact and saw flying debris from the impact. The officers testified that after hearing the collision they turned their vehicle around at Downs Boulevard and reached the plaintiff’s vehicle within moments of the impact. According to both officers, when they opened the door to plaintiff’s pickup truck, they smelled alcohol. One of the doctors who treated the plaintiff testified, however, that a test of plaintiff’s urine and blood, drawn at the East Jefferson Hospital approximately one and one-half hours after the collision, showed zero alcohol in the blood and urine. The testimony of Sgt. Bond was submitted on plaintiff’s behalf, while the testimony of Officer Hidding was submitted out of turn by the defendants.

The 1977 Kenworth truck was a double tandem flatbed with a dumpster (a square container extending the entire length and width of the flatbed with a height protruding above the cab of the truck) mounted on the flatbed. The overall length of the truck was estimated at thirty-two feet. It was eight feet high. The only lights on the side of the truck facing the plaintiff was the one located on the extreme rear and one on the left front fender. Although there is some dispute as to the density and clarity of the light and/or the visibility of the truck for the traffic approaching from the plaintiff’s direction, there is substantial evidence showing the area where the accident occurred was illuminated by street lights and the defendant’s truck could be seen by traffic flowing in either direction on Veterans Boulevard.

We will consider the plaintiff’s first assignment of error, i.e., the asserted error due to the trial judge’s granting of permission to the defendants to submit the testimony of Sgt. Hidding out of turn. As stated by the plaintiff, the classical order or precedence in the trial court is the presentation of evidence by the plaintiff, followed by the presentation of evidence by the defendant, with the plaintiff then having an opportunity to submit rebuttal evidence. Under the authority of La.C.C.P. Article 1632, however, the classical order of presentation may be varied by the trial court “when circumstances so justify”. Here, the trial judge allowed Sergeant Hidding to testify because he was on detail and would be unavailable to testify the next day. The portion of his testimony which plaintiff asserts severely prejudiced his case was the testimony relative to the smell of alcohol in the plaintiff’s truck. We note, however, that Sergeant Bond, whose testimony was submitted by the plaintiff and, according to plaintiff was scheduled to testify before Sergeant Hidding, also testified that he smelled alcohol when the door of the plaintiff’s vehicle was opened. Further, we note that plaintiff interrupted the natural order of the trial by submitting the testimony of Dr. John Garoutte and interrupted the testimony of Sergeant Bond to introduce the testimony of Dr. Jackson. The latter testimony brought out the fact that the test of the blood and urine were negative for alcohol and was presented immediately after Officer Hidding’s testimony. Therefore, even if we considered the out of turn testimony as being prejudicial to plaintiff, we would have to conclude the jury would have the same evidence available through Sgt. Bond at the same time. Further, presenting all of the testimony as to the smell of alcohol and of the blood and urine test results together served to help rather than confuse the jury. We cannot say, therefore, that the trial judge abused his discretion in allowing Sgt. Hidding to testify out of turn or that this was prejudicial to plaintiff’s case.

Plaintiff next contends that the trial judge erred in disallowing jury charges proposed by the plaintiff. The rejected charges can be grouped into three separate categories: 1) The burden of care imposed on a left-turning motorist, 2) The duty imposed on an approaching motorist whose path is blocked by an unlighted truck, and 3) Per se negligence, contributory negligence and last clear chance. The jurisprudence cited by the plaintiff in support of the proposed charges on the duty of a left turning motorist concerns the duty of a motorist attempting a left turn from a public highway to an overtaking or oncoming motorist. In lieu of those proposed by the plaintiff, the trial judge’s instructions in this area consisted of the following:

“A left turning motorist has a strong duty to make sure that this maneuver can be made with safety. A driver turning across a highway must give a proper signal and make sufficient observation to insure that the turn can be made safely.”

Counsel for plaintiff argues the trial court erred most drastically when it failed to use the special charges proposed by plaintiff dealing with the per se negligence of the defendant Morris for violation of a specific safety statute. The statutes asserted as having been violated by Morris are L.S. A.-R.S. 32:141(0) and L.S.A.-R.S. 32:301 relative to the duty of placing signal lights on motor vehicles left parked on the highway at nighttime and L.S.A.-R.S. 32:308(A)(3) relative to lights required to be maintained on the side of the truck.

In a jury trial, the judge is not required to give the precise instructions submitted by either party but must give instructions which properly reflect the law applicable in light of the facts of the particular case. Beck v. Lovell, 361 So.2d 245 (La.App., 1st Cir.1978), writ denied 362 So.2d 802 (La.1978). The Judge has a duty to charge the jury as to the law applicable in a case and the correlative right and responsibility to require that the jury get only the correct law; it is the Judge’s responsibility to reduce the possibility of confusing the jury and he may exercise the right to decide what law is applicable to prevent counsel from arguing law which the trial judge deems inappropriate. Lauro v. Traveler’s Insurance Company, 261 So.2d 261 (La.App., 4th Cir.1972), writ denied 262 La. 188, 262 So.2d 787 (1972).

In view of the facts involved in this case, we cannot say the trial judge abused his discretion in refusing to give the special charges proposed by the plaintiff. The duty of care imposed on a left-turning vehicle in the cases cited by plaintiff in support of his proposed charges is not applicable here because this duty is owed toward overtaking and oncoming traffic. The trial court properly instructed the jury as to the defendant’s duty owed to this plaintiff. Also, there are no facts in the record from which the jury could have concluded the doctrine of last clear chance would have been applicable to absolve plaintiff of negligence. Consequently, the failure to charge the jury with the doctrine of last clear chance was not error. Since the defendant’s vehicle was in the process of crossing the inbound traffic lanes to enter the outbound traffic lanes of Veterans Boulevard and not parked on the highway, the provisions of LSA R.S. 32:141(C) and LSA R.S. 32:301 are not applicable to the facts present here. Therefore, we cannot conclude the trial judge erred in failing to accept plaintiff’s special charge.

The plaintiff argues there was a violation of LSA R.S. 32:308 A(3) because there were no lights in the middle of the truck or on the dumpster located on the flatbed. The statute does not require lights in the center. It requires “two side marker lamps and two reflectors, one of each at or near the rear or near the front of the vehicles”. The pictures of the defendant’s truck submitted in evidence shows one light located in the front and one located in the rear. LSA R.S. 32:311.1 referred to by the defendant permits combining a reflective device with a lamp to meet the requirements of a reflector and a lamp. The defendant contends an examination of the pictures of the truck submitted in evidence shows the rear light mounted on the frame of the truck was a lamp reflector combination and the one mounted on the left front fender was a directional signal lamp with a side reflector lens. We cannot determine from the pictures whether the defendant’s contentions are accurate or inaccurate, but in the light of LSA R.S. 32:308 A(3), we cannot say the trial judge erred in refusing to charge the jury with plaintiff’s proposed special charge of “negligence per se” based on a violation of LSA R.S. 308 A(3).

The plaintiff also contends the jury’s verdict was contrary to the facts and evidence. Although it is possible to conclude from the record that there was sufficient evidence to find the defendant Morris negligent, there is also sufficient evidence from which the jury could conclude Morris was not negligent. As a reviewing court, however, we cannot merely impose our views for those of the trier of the facts unless that conclusion was clearly wrong. After a careful review of the evidence submitted in this record, we cannot say the jury was clearly wrong. Morris’ movement across the inbound traffic lanes of Veterans Boulevard were not in violation of the traffic rules. He explained that he stopped his vehicle at the point that he did because of oncoming traffic which he could not see from his vantage point at the stop sign. This evidence was totally unrefuted. Accepting that evidence, the trier of the facts could reasonably conclude Morris was not guilty of any negligence for the way in which he proceeded through the intersection or for stopping to let the traffic flow. On the other hand, there is ample evidence from which to conclude the plaintiff should have seen the truck because the intersection was lighted and the failure to see what he should have seen, combined with an excessive speed, was the actual cause of the collision.

Accordingly, the judgment of the lower court is affirmed. All costs of the appeal to be borne by the appellant.

AFFIRMED.'


author: GAUDIN, Judge.

text:
    Gary D. ALLAN v. P.F. COLLIER, INC. et al.
    Nos. 82-C-5, 82-C-4.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.
    Gerald J. Martinez, Conner, Martinez & Miles, Metairie, for plaintiff-appellant.
    Claude D. Vasser, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

Appellant Gary D. Allan, a salesman, contends that he sustained injuries in an automobile accident and that the district court erroneously denied him workmen’s compensation benefits.

The record, however, substantiates the trial judge’s determinations and we affirm the judgment.

The unique facts are these:

Allan had paused for a stop sign on August 25, 1976, when his automobile was rear-ended by a vehicle operated by Warren Schlesinger and insured by Allstate Insurance Company.

The impact was not severe and Allan told the investigating police officer that he “... had a headache, it wasn’t bad...” and that “... everything seemed to be all right.” When he arrived at his home following the accident, Allan said he experienced “... shooting pains through the back and the headache was worse... ”, so he consulted a chiropractor and, later, various physicians.

Allan testified that he advised his supervisor about the accident but that he wasn’t interested then in making a workmen’s compensation claim against his employer and its compensation carrier, Travelers Insurance Company.

Instead, Allan made demand on Schlesinger and Allstate and entered into a compromise settlement for $7,200.00. Subsequently, Allan alleged that he was “... heavily sedated...” when he accepted the settlement funds and executed a release, and he filed suit to void the agreement. This litigation was unsuccessful.

Meanwhile, Allan had filed a workmen’s compensation petition against his employer and Travelers, who in turn made a third party demand on Schlesinger and Allstate. Three days prior to the workmen’s compensation trial, Allan, Schlesinger and Allstate entered into a second settlement whereby Allan received an additional $18,000.00 and agreed to indemnify Schlesinger and Allstate should they be cast in judgment as third party defendants. The record does not contain an explanation regarding the second settlement but perhaps it was because Allstate felt seriously exposed as a third party defendant.

It is Travelers contention that the indemnity agreement connected to the second settlement made the workmen’s compensation trial an exercise in futility. Had a judgment been rendered in Allen’s favor against Travelers, Travelers would necessarily have received a third party judgment against Schlesinger and Allstate, and Allan would then have had to indemnify Schlesinger and Allstate.

Nonetheless, the workmen’s compensation case was tried on October 1 and 2,1981.

Allan stated that he had been seen and/or treated by a number of doctors, that he was still experiencing pain and that he had suffered an adverse psychological reaction.

Following the two-day trial, the judge made these findings:

(1) The refusal of Travelers Insurance Company was not arbitrary or capricious;
(2) Plaintiff (Allan) was looking to Allstate for settlement;
(3) The psychological injury complained of by plaintiff was not causally connected with the accident;
(4) The compensation paid by Allstate was adequate compensation for the injury suffered by the plaintiff in the accident; and
(5) The plaintiff suffered no permanent injury as a result of this accident; his partial injury had long ceased to exist.

The record is uncertain as to Allan’s contacts with Travelers regarding first notice of the injury and his later demand for compensation benefits. While Allan did not give formal, written notice, Travelers’ records indicate that Allan discussed his accident with Nathan Gremillion, a Travelers adjuster, on March 16, 1977. As a result of this telephone conversation, Gremillion set up an appointment with Dr. E.J. Dabezies, an orthopedist.

Dr. Dabezies saw Allan on April 5, 1977, and found:

“... there was no impairment in mechanics of motion. From the objective view-point it would be concluded that the effects of the injury had resolved. I do not think that hospitalization for therapy, diagnostic procedures or surgery is anticipated. There are no objective findings on which to base a residual disability rating. I think that this man can continue at his job without restriction of activities.”

Primarily as a result of this report, Travelers declined compensation benefits.

Dr. Richard W. Levy, a neurosurgeon, saw Allan on November 3, 1976, at the request of Allstate. He testified that there were “... no objective findings at all... ” and that “. . . the examination was perfectly normal...” except for “. . . slight tenderness over the low back regions...”

The only medical testimony supporting Allan’s alleged psychological disability came from Dr. John Sullivan, who examined Allan for 80 minutes on September 1, 1978, and rendered this in-court opinion:

“. .. during the entire interview there were no signs of a sensorial abnormality nor of a formal thought disorder. The patient tended to take over the interview. He immediately asked me to avoid smoking because of his life long allergies. Unsurprisingly he wished to steer the conversation towards an explication of his troubles. Towards the end of the interview I find that his emotional state may be the cause or at least contributory to his problem. He did not vehemently deny this but rather was almost blandly unconcerned with this possibility. As noted above, when his background was probed he responded immediately with intimations of his sexual aggressiveness and virility. He described his marriage as one of constant sexual frustration and disappointment. He mentioned that his mother-in-law, whom he does not like, has lived in the family home for over a decade. He says that she had originally planned to live there a couple of weeks. “... the patient presents himself as a very aggressive, forceful, and hard working businessman who has been disabled as a result of an injury incurred in August, 1976. Yet, it is equally noticeable that he has not chosen to pursue positions of greater scope and responsibility. He has maintained a marriage with a woman who does not share his relish for sexual exuberance. He finds himself saddled with a clinging wife, son and mother-in-law. I think it is dynamically fair to say that he clings right back although he could not see it that way. Rather than the self-possessed image that he projects. We find a man who involves himself in hostile-dependent situations. This, I think, is the relationship that is operating with his insurance companies. The giving up of his somewhat obscure symptoms would end the unconscious dependent relationship. I would emphasize that I have no reason to suspect that he is consciously fabricating his pain or anxiety. He is, of course, frustrated with his immobility, pain and inability to provide for his family as he once did.
“... there is no doubt in my mind that this unfortunate man is disabled. It seems medically certain that his problem resides not in his spine but in his psyche. I believe that he became psychologically symptomatic in August, 1976. I can only suggest an analogy. In order for a plant to grow, not only a seed but also soil fertile to that seed must be present. The plant in this instance is the pain that he feels. The soil is that of a personality disorder and the seed is the accident of August, 1976.”

Actually, Allan has an extended medical history going back at least to 1963, when he consulted Dr. Hanckes Klein because of chest pains.

Approximately one year before the sued-on accident, Dr. Klein referred Allan to Dr. Morton Ziskind.

Dr. Ziskind wrote:

“I examined Gary Allan on August 14, 1975. He is a 38-year-old ... salesman of educational materials. He served in the United States Air Force for four years and has service-connected disabling allergy of the upper respiratory tract. His past medical history includes a tonsillectomy and a vasectomy, but the principal disorder is allergy going back to childhood. Multiple sensitivities have been noted. Originally, the hypersensitivity expressed itself by wheezing. Since the age of 19 he has had blockage of the nose with frontal headaches radiating about the head, popping of the ears, maxillary pain, and postnasal drip. The illness has become progressively worse and talking often becomes difficult because of hoarseness and blockage of the nose. Postnasal drip is almost continuous and has to be relieved frequently. He has also noted tightness of the chest with occasional wheezing. Sneezing has induced syncope. As a consequence, his sales activity has been reduced to one day per week. He has excessive reactions to drugs which he takes, notably adrenal corticoids. He is unable to sleep because of the blockage of the nose and dripping. The use of Cele-stone, an adrenal corticoid, produces ar-thralgias, nausea, and gastrointenstinal upsets. At present, he is being treated with a mixture of an adrenergic agent and histamine. Such drugs along or in combination are effective for only short periods of time. His weight is steady at about 200 pounds. He has never smoked cigarettes or used alcohol. He does not abuse narcotics.
“His activity is reduced. He has difficulty in climbing stairs. He cannot run and his ability to swim is reduced. He has burning of the epigastrium and a bloating sensation, also related to medications. He gets up once a night to urinate and drinks excessive amounts of water. Episodes of sneezing have produced faintness, and he is depressed. There is no season to his illness, but it is worse with dampness. There is no morning cough but he develops chest pain related to gas and possibly related to air swallowing. There is some blood streaking from his nose. There have been no recent lower respiratory infections and no history of pneumonia. There is occasional ankle swelling but no palpitation. In addition to the medications previously noted, Mr. Allen takes Valium.
“The physical and laboratory examinations confirm the presence of severe upper respiratory allergy which interferes with breathing, speaking, and sleeping, and has greatly reduced Mr. Allan’s ability to perform his ordinary line of work, which requires personal address and the ability to carry out prolonged conversations. His work is interfered with by the nasal block, discharge, and change of voice. In addition, his sleep disturbance makes it difficult for him to concentrate on his work and places him in a state of constant easy fatigability. All combinations of treatment to date have been ineffective in Mr. Allan’s case, and he has sought the aid of a chiropractor to reduce the discharge from his nose. Surgical correction of the nasal septum has not been attempted because of the risk of adverse drug reactions in the pre or postoperative period. At this time, his condition is growing worse. The principal modalities of treatment have already been tried in his case and there appears to be no basis for improvement at this time, and prognosis is therefore uncertain. The evidence indicates that he is incapable of performing any sustained physical or intellectual work, such as that he did in the past.”

Considering the medical testimony and evidence in toto, we cannot say that the trial judge was manifestly erroneous in deciding that Allan’s psychological problems were not causally related to the August 25, 1976, accident, and that Travelers acted neither arbitrarily nor capriciously.

Although appellant argues that Dr. Sullivan’s psychological findings were uncontro-verted and that witnesses are “weighed” and not merely counted, it was well within the trial judge’s discretion to conclude as he did and we affirm the district court’s judgment in favor of Allan’s employer and Travelers Insurance Company.

AFFIRMED.

      . No. 201-858, 24th Judicial District Court, Parish of Jefferson, Allan v. Schlesinger and Allstate Insurance Company; affirmed at 367 So.2d 86.

      . As in Brown v. Crown Zellerbach Corporation, 112 So.2d 150.

      .See Moore v. St. Paul Fire and Marine Ins. Co., 251 La. 201, 203 So.2d 548 (1967) for a discussion of notice and demand for payment.

      . As required by Canter v. Koehring Company, 283 So.2d 716 (La.1973).

      . See U.S. Fidelity and Guaranty Co. v. Fiffie, 211 So.2d 690.


author: DOUCET, Judge.

text:
    Charles N. LOFTON, Plaintiff & Appellee-Appellant, v. LOUISIANA PACIFIC CORPORATION, Defendant & Appellant-Appellee.
    No. 82-315.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearings Denied Jan. 6, 1983.

      Führer & Flournoy, George A. Flournoy, Alexandria, for plaintiff & appellee-appel-lant.
    Gaharan & Wilson, Donald R. Wilson and Paul Boudreaux, Jr., Jena, for defendant & appellant-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

This is a workmen’s compensation — social security coordination of benefits case. The trial court awarded workmen’s compensation benefits to plaintiff, Charles Lofton, we affirmed and the Supreme Court denied writs. Thereafter, defendant, Louisiana Pacific Corporation, filed a “Rule to Show Cause” and “Petition for Injunction to Arrest Execution of Judgment, for a Temporary Restraining Order, for Damages and for Attorney Fees” asserting it was entitled to a credit pursuant to LSA-R.S. 23:1225 due to plaintiff’s receipt of Social Security Disability benefits. The employee moved to make the entire award due and exigible pursuant to LSA-R.S. 23:1333 and further sought penalties and attorney’s fees pursuant to LSA-R.S. 23:1201.2. The trial court granted defendant a complete offset, effective the date of rendition of judgment, and relieved Louisiana Pacific from payment of workmen’s compensation benefits for such period of time as social security benefits were received. From that judgment Louisiana Pacific filed a suspensive appeal urging that the offset be retroactive to the date when social security benefits commenced. Plaintiff appealed devolutively, assigning as error the trial court’s offset award, refusal to accelerate workmen’s compensation benefits and denial of penalties and attorney’s fees.

The issues presented for our consideration are: (1) whether defendant is entitled to a credit, and, if so, what is the amount of the offset and when does it commence? and (2) whether plaintiff is entitled to an acceleration of the payment of workmen’s compensation benefits and penalties and attorney’s fees as a result of defendant’s actions.

The facts are as follows: On or about March 22, 1982, the judgment in favor of Lofton and against Louisiana Pacific Corporation, awarding workmen’s compensation benefits for total and permanent disability in the sum of $163.00 per week, plus penalties and attorney’s fees, became final by virtue of the decision of the Supreme Court refusing to grant writs of review to the judgment of this court. On March 23,1982, counsel for Louisiana Pacific contacted counsel for Lofton seeking verification of receipt of social security benefits, and their amount. Receiving no reply, on March 29, 1982, an additional request was made. On the same date, Lofton through his attorney, made demand for $20,004.00 and advised that if these funds were not paid immediately, a rule would be filed for acceleration and attorney’s fees. On March 31, 1982, Lofton was provided with a check in the amount of $9,077.38, representing all workmen’s compensation benefits from September 18, 1980, through February 28,1981 (the week prior to plaintiff’s receipt of federal benefits) with interest and attorney’s fees. Lofton was also provided with a check for $893.33 in medical expenses, and was advised that $3,669.95 in hospital and doctor bills had been paid directly to the provider.

On April 1, 1982, Lofton was provided with an additional payment in the amount of $163.00, being the weekly amount due, and was advised by letter that, since counsel for plaintiff and defendant were unable to agree as to whether or not the social security offset was applicable, that a rule would be filed, wherein the court would be asked to decide whether or not the offset was applicable, and if so, the extent thereof. On April 1,1982, the rule was filed. At the time, plaintiff was receiving federal benefits in the sum of $890.40 monthly. On May 3,1982, the judgment complained of by both parties was rendered. On May 17, 1982, Louisiana Pacific Corporation perfected a suspensive appeal, posting a surety bond in the amount of $18,000.00, to secure its liability for the amount of workmen’s compensation in dispute.

Thus, within 60 days of finality of judgment, payments were made either to Lofton or on his behalf in excess of $14,000.00. The only amount unpaid is the amount which is in dispute, workmen’s compensation benefits due from March 1, 1981 until April 1, 1982.

In 1978, La.R.S. 23:1225 was added to our workmen’s compensation laws in response to a controversy between the state and federal governments over which entity was to pay disability benefits. Legislative Symposium, 39 La.L.Rev. 237, 244 (1978). Prior thereto, an individual’s Social Security benefits were reduced to the extent of state workmen’s compensation disability benefits provided the claimant had not yet reached the age of 62. 42 U.S.C. § 424(a) (1976). The Louisiana Legislature apparently decided that if any entity was to have decreased liability as a result of benefit coordination, it should be the state or, as the case may be, the state employer or its carrier. Accordingly, R.S. 23:1225 was added. At least ten other states have similar provisions. 4 Larsen, Workmen’s Compensation § 97.35 (1978 & Supp.1982). The Louisiana provision states that there shall be an offset to permanent total compensation for federal disability benefits only to the extent that the combined amount would result in reduction of Old Age, Survivors, and Disability Insurance payments.

We note that defendant filed the aforementioned R.S. 23:1225 rule for reduction notwithstanding that the right to modify had not accrued per La.R.S. 23:1331, which provides in pertinent part “At any time six months after the rendition of judgment” a party may seek modification of a workmen’s compensation judgment. We have held, in other contexts, that “the words ‘rendition of judgment’ . .. must be taken to mean rendition of a final judgment ... ”, Housing Auth. of City of Lake Charles v. Minor, 355 So.2d 270, 271 (La. App. 3rd Cir.1977). The judgment herein became final on or about March 21, 1982 and defendant’s rule was filed within six months thereof. Plaintiff did not object to the timing of the rule, therefore, the dilatory exception of prematurity is deemed waived.

Mr. Lofton was notified of his entitlement to Social Security benefits by award certificate dated February 2, 1981. His entitlement commenced March 1, 1981 and the first payment was made on April 3, 1981. The workmen’s compensation trial was held on March 31, 1981. In interrogatories propounded to plaintiff four months prior to trial, Lofton denied receipt of any social security benefits. In this regard, plaintiff seeks to characterize defendant’s actions as a collateral attack on a final judgment. Plaintiff contends that the issue of social security benefits should have been raised at trial during the original proceedings. Under this rationale the failure to plead an affirmative defense would render it lost. Plaintiff further contends that the trial judge erred in considering the interrogatories introduced into evidence at the original proceeding inasmuch as the interrogatories were not introduced in conjunction with the rule to show cause. For the same reasons plaintiff asserts this court is precluded from considering same.

In support of his position plaintiff cites: Smith v. White, 411 So.2d 731 (La.App. 3rd Cir.1982), involving an action on a promissory note and a reconventional demand for cancellation of a gravel lease and damages for destruction of reconvenor’s fruit orchard and the removal by plaintiff of property not subject to the lease, wherein this court held, inter alia, that interrogatories not introduced into evidence could not be considered by either trial or reviewing courts. We consider Smith to be inapposite. The case at bar involves workmen’s compensation which by its very nature is not a final judgment, as thought of in the ordinary sense, but subject to modification, LSA-R.S. 23:1331, and to which proceedings courts are not bound by technical rules of evidence or procedure. LSA-R.S. 23:1317. There can be no serious dispute but that plaintiff was fairly apprised of the legal claim asserted. Plaintiff’s judicial confession in the earlier, related workmen’s compensation between the same parties should not prevent modification by defendant absent a showing that the former adversary was misled or deceived. If anything, the record indicates that plaintiff’s responses to the interrogatories misled defendant. Defendant was not required to file into evidence material already in the record of the companion case.

Another reason why defendant is not es-topped from asserting its right to a credit is supplied in plaintiff’s brief:

“Three requisites must exist before 1225 comes into play. First, a workmen’s compensation claimant must be adjudged to be totally and permanently disabled; secondly, this person must be awarded Social Security disability benefits; and thirdly, the combined amount of Social Security disability benefits and workmen’s compensation disability benefits must exceed the amount that would have been allowable without being subject to reduction, under federal law for Social Security disability benefits.”

At the proceedings wherein plaintiff sought to be adjudged totally and permanently disabled the first requisite was clearly missing, and while plaintiff may have been entitled to federal benefits at the time, he had yet to receive same as required by R.S. 23:1225. Defendant is not estopped from asserting its right to a credit.

As to when the offset takes effect, the pertinent portion of R.S. 23:1225 provides that benefits “... shall be reduced when anyone is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Sub-chapter II... ” (emphasis added). Therefore, under the clear wording of the statute, the offset calculation does not reach back to any waiting period (e.g. 42 U.S.C. § 423 (1972) requiring six month delay) when the claimant was eligible, but no federal benefit was in fact received.

The question remains whether the offset should apply from the date of plaintiff’s receipt of social security benefits or the date of defendant’s claim for offset. In light of the participatory scheme of social security, to wit: the employee having contributed half of the “premium” for his coverage, we find that defendant’s liability is reduced only prospectively from the date it exercises its right. The statute is not self-operative. Prior to the employer’s assertion of right the employee is entitled to Social Security benefits, the employer cannot retroactively recoup payments. Accord: Burley v. Santa Fe Community College, 393 So.2d 1185 (Fla.App.1981). As was stated in Department of Transportation, Division of Risk Management v. Lindsey, 383 So.2d 956, at 958 (Fla.App.1980):

“It is the responsibility of the employer or carrier to inform itself of Social Security payments ... and, in the absence of some reporting duty imposed on the recipient by law (there is none) or by a prior order of a judge of industrial claims (there was none here), the claimant-recipient of disability compensation benefits and Social Security benefits is not charged by Section 440.15(10)(c) with responsibility to calculate and remit the amount by which the aggregate pay-merits exceed 80 percent of Ms average weekly wage, nor with a duty to advise the employer or carrier of its opportunity to make that calculation and reduction.”

The final question concerning the effective date of offset is whether the trial judge erred in making rendition of judgment the effective date rather than that of judicial demand. We opine, without ruling, that ordinarily the set-off should take effect from the date of judicial demand. However, we find that under the circumstances of the case the trial judge did not exceed his equitable powers in granting relief from the date judgment was rendered. We reach this result in part because of the rule’s prematurity.

By affidavit, Mr. Leroy Seaux, district manager of the Alexandria, Louisiana Social Security Administration office and employee of the Administration for over 21 years, stated the method of calculating the offset if received by the Social Security Administration to be as follows:

“Offset calculation - If performed by Social Security
(a) Total Family Benefits (May, 1982) - $894.30
$596.20 Charles
$149.00 Wife
$149.10 Child
(b) Average Current earnings
High Year -1980 - $22,878.60 = $1906.55 12 month
(c) Average current earnings times 80% = $1525.24
(d) Total monthly payment effective May, 1982 including W/C and Total Family Benefit under Social Security cannot exceed - $1525.24
(e) Maximum payment due monthly from W/C, without being subject to reduction - $630.94
(f) Converting to weekly payment $630.94 x 3 divided by 13 = $145.60
(g) Weekly offset by W/C = ($163.00 - $145.60) = $17.40”

As aforementioned, the intent of R.S. 23:1225 was to give the compensation carrier, rather than the federal government, the benefit of the ceiling placed on both programs by the coordination of benefits. The statute did not effect a reduction below that which the federal offset provisions provided for. Thus the offset awarded by the trial court must be reduced to the sum of $17.40 per week.

R.S. 23:1333 provides:

§ 1333. Employer’s insolvency or failure to pay after judgment; acceleration of payments
If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.

The statute effects a forfeiture against the employer, therefore, it must be strictly construed. Johnson v. Continental Insurance Companies, 410 So.2d 1058 (La.1982). In view of the serious and genuine novel legal issues presented, the plaintiff’s failure to object to defendant’s premature motion and the employee’s adequate protection by virtue of receiving Social Security benefits, we find, as did the trial judge, that defendant’s actions do not justify the acceleration of payments. Furthermore, in accordance with our rejection of plaintiff’s acceleration demand, we find the trial judge properly denied penalties and attorney’s fees sought pursuant to R.S. 23:1201.2.

We are well aware of the holding of Lytell v. Strickland Transportation Co., Inc., 373 So.2d 138 (La.1979) that the possibility “that the judgment might be subject to modification under Section 1331 (i.e., if the disability lessens) is not, under the statutory scheme, relevant to the availability of the penalty provided by the succeeding Section 1333.” 373 So.2d at 140. The court therein noted defendant made no contention that the employee was no longer disabled or that the employer could meet its heavy burden of proving that the plaintiff’s indefinite total disability at the time of trial will terminate at some determinable date in the future. “In the absence of such showing.” The acceleration provisions applied. 373 So.2d at 144. For reasons assigned hereinabove, we find that defendant met its burden of showing entitlement to modification of judgment.

For the reasons assigned hereinabove the judgment appealed is amended to reduce defendant’s offset to workmen’s compensation liability to the sum of $17.40 per week. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are to be divided between the parties.

AMENDED AND AFFIRMED.

      . § 1225. Reductions when federal benefits payable
      The benefits provided for in this Subpart B for injuries producing permanent total disability shall be reduced when anyone is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and receiving benefits under 42 U.S.C. Section 423; provided that this reduction shall be made only to the extent that the amount of the combined federal and workmen’s compensation benefits would otherwise cause or result in a reduction of the benefits payable under the federal old age, survivors, and disability insurance act pursuant to 42 U.S.C. Section 424a and in no event will the benefits provided in this Subpart together with those provided under the federal law exceed those that would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. Section 424a.
      Added by Acts 1978, No. 750, § 1.


author: SAVOIE, Judge.

text:
    William Rocky KEMP v. Hadley HUDNALL and Clinton Construction Company.
    No. 82 CA 0040.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellant.
    Brent F. Kinchen, Baton Rouge, for defendants-appellees.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Plaintiff-appellant appeals the jury’s verdict failing to award him damages in tort. We reverse in part and affirm in part.

The damages claimed arose when defendants-appellees failed to compensate appellant when appellees severed a water line to appellant’s store. Appellant claims the severing of the water line caused the heating element of his hot water heater to burn out. Additionally, while attempting to repair the hot water heater in his loft, appellant fell from the ladder and sustained a back injury. Claim for compensation is made for both the burned-out heating element and the back injury.

Appellant assigns as error, the trial court’s: (1) submission to the jury, a question of the legal effects of an unambiguous contract, (2) failure to instruct the jury that the City of Clinton, through its agent, Clinton Construction Company, was strictly liable for appellant’s injury, and (3) allowing the jury’s legally and factually incorrect verdict to stand.

Appellant has based his cause of action in both contract and tort. Clinton Construction Company entered into a contract with the City of Clinton, Louisiana, to adjust water and gas utility lines in preparation for the widening of a road. The specifications and contract documents called for, in part, as follows:

“The existence and location of underground utilities indicated on the Drawings are not guaranteed and shall be investigated and verified in the field by the CONTRACTOR before starting work. Excavation in the vicinity of existing structure or utilities shall be carefully done by hand. The CONTRACTOR shall be held responsible for any damage to and the maintenance and protection of existing facilities and structures. (See Division II, Special Conditions, II.6, Existing Utilities and Structures, p. II — 3). (Emphasis added).
“During the excavation, pipe laying and backfilling operations, the CONTRACTOR shall take particular care not to damage, injure, disturb nor undermine any subsurface pipes, structures or conduits. The CONTRACTOR shall notify the interested party, as owner of the pipe, conduit, structure, etc. of his intention to disturb the obstruction. He shall abide by the regulations and instructions of the interested party in disturbing or passing, the prosecution of the work, and the CONTRACTOR shall immediately notify proper authorities and shall be responsible for all damage done to property or persons resulting from breaks or damage to the sub-surface structure, pipe, conduit, etc.” (Division III, Methods of Construction, 1.3.9, Underground Obstructions, pp. 1-11). (Emphasis added).

The Contractor was required to purchase and maintain insurance sufficient to protect him from claims for damages due to bodily injury or destruction of tangible property.

Our Supreme Court stated in Turregano v. Barnett, 127 La. 620, 53 So. 884 (1910), that the terms of a particular contract are a question of fact. However, whether that contract as made establishes a relationship between parties is a question of law. Federal Courts expounding on this idea have held that absent latent or patent ambiguities in a contract, the meaning of such contract is for the court to determine (i.e. a matter of law). Battig v. Hartford Accident & Indemnity Co., 608 F.2d 119 (5th Cir.1979). Contracts, subject to interpretation from the four corners of the instrument, without necessity of extrinsic evidence, are to be interpreted as a matter of law. Wilson v. Cost + Plus of Vivian, Inc., UDS, 375 So.2d 683 (La.App.2d Cir.1979).

In this instance, there has been no claim of contractual ambiguity or intent. Such issues would require a jury determination. Turregano, supra. The trial court was clearly wrong in allowing the jury to determine if the contract provided for a stipulation pour autrui. As its determination is a matter of law, the issue is whether the contract was a stipulation pour autrui.

Professor J. Denson Smith, in his discussion of third-party beneficiary contracts in Louisiana, stated:

“In fine, in undertaking to determine whether an advantage for a third party has been provided by a contract between others, the following factors are important: (1) the existence of a legal relationship between the promisee and the third person involving an obligation owed by the promisee to the beneficiary which performance of the promise will discharge; (2) the existence of a factual relationship between the promisee and the third person, where, (a) there is a possibility of future liability either personal or real on the part of the promisee to the beneficiary against which performance of the promise will protect the former; (b) securing an advantage for the third person may beneficially affect the promisee in material way; (c) there are ties of kinship or other circumstances indicating that a benefit by way of gratuity was intended.” Smith, Third-Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, 11 Tul.L.Rev. 18, 58 (1936).

In Freeman v. Town of Many, 394 So.2d 693 (La.App. 3rd Cir.1981), writ denied, 399 So.2d 598 (La.1981), the court had an opportunity to reflect on Professor Smith’s requirements for finding a stipulation pour autrui. In Freeman, supra, contract provisions required precautions be made to prevent damage to property by exercising care in locating sub-surface obstructions and preventing damage to them. The Contractor was also obligated to immediately repair or have repaired at his cost, any damage done during the course of his work. This contract to construct sewer lines resulting in damages to the plaintiff was held to constitute a stipulation pour autrui.

In the present case, the Contractor is under the same requirements. Under Freeman’s logic, the contract should, as a matter of law, be considered a stipulation pour autrui. The contract was to provide increased services (i.e. a wider road and new water pipe) for the citizens of the city. Contractually, the Contractor is responsible for any damage to existing utilities and structures. Under a stipulation pour au-trui, appellees should be liable for damages directly related to their contractual liability. This liability extends only to the cost of the heating element.

At trial, testimony expanded appellant’s claim to include one of negligence. In determining liability under negligence or strict liability, the initial question is one of cause-in-fact. “But for” appellees’ severing of the water line, would appellant have sustained the injuries claimed? We need not discuss liability of the Contractor as to the heating element, finding liability as per stipulation pour autrui. However, appellant’s claim for back injuries fails to withstand a duty-risk analysis. It cannot be said that appellant would not have fallen from the ladder “but for” appellees’ severing of the water line. Appellant testified he did not know why or how he fell. Absent any cause-in-fact relationship between the severing of the water line and the back injuries sustained, appellant’s claim for compensation is untenable.

For the foregoing reasons, the judgment of the trial court denying compensation for the heating element is reversed and appellant is awarded $4.64 for such loss. As to all other issues, the judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs below and one-half of the costs of this appeal. Defendants-appellees are to pay one-half of the cost of this appeal.

REVERSED IN PART AND AFFIRMED IN PART.


author: CARTER, Judge.

text:
    QUALITY FINANCE COMPANY v. Leo MITCHELL.
    No. 82 CA 0103.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Richard J. Brazan, Jr., Vacherie, for plaintiff-appellant.
    Larry P. Boudreaux, Thibodaux, for defendant-appellee.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an appeal from a judgment rendered by the trial court in favor of garnishee, Boddie’s Welding, and against plaintiff, Quality Finance Company, rejecting plaintiff’s rule for judgment pro confesso and disallowing attorney’s fees and costs on said motion. Appellant, Quality Finance Company, appeals, assigning as error the trial court’s failure to grant attorney’s fees and costs. Appellant contends that as a result of Boddie’s failure to answer written interrogatories in a garnishment proceeding, it was entitled to attorney’s fees and costs.

On September 22, 1980, appellant, the judgment creditor of Leo Mitchell, instituted garnishment proceedings against appel-lee, Boddie’s, the employer of Leo Mitchell. The original judgment was in the amount of $1,136.25 with eight percent per annum interest from December 5,1978, plus 25% of the principal and interest as attorney’s fees and all costs. The petition for garnishment, interrogatories, and notice of seizure were served on the garnishee on September 23, 1980. After service, Boddie’s notified the judgment debtor, Mitchell, that he had been served with garnishment proceedings and Mitchell immediately terminated his employment. Sometime after service of the garnishment proceedings and subsequent to the resignation of the judgment debtor, Mr. Camille Esenault, Jr., President and owner of Boddie’s Welding, testified that he instructed his secretary to telephone Quality Finance Company to inform them that Leo Mitchell was no longer in the employ of Boddie’s Welding. Mr. Esenault further testified as follows:

“Q. Do you recall what you were told, or what your secretary was told, and what was conveyed to you as to what you should do about it?
A. Well, I just told them the way I understood, and didn’t worry about it, you know, because he had just already quit, you know.
Q. Did you interpret that as indicating to you that it was not necessary for you to answer the petition and interrogatories?
A. That’s exactly right.
Q. Did you rely upon that information in not answering the interrogatories?
A. I didn’t pay no mind to it no more after I heard that. And I also talked to Joe Daigle, who is also a deputy. At that time, he said there was nothing to worry about.”

Appellee then proceeded not to answer the judgment creditor’s interrogatories and a rule for judgment pro confesso was filed by appellant on November 6, 1980. This rule sought a judgment against the defendant for the entire amount of the judgment, plus attorney’s fees and costs for the prosecution of this motion under Article 2413 of the Louisiana Code of Civil Procedure (1960).

Appellant contends that under the provisions of Article 2412 and 2413 of the Code of Civil Procedure, it was error for the trial court to deny its claim for attorney’s fees and costs for the prosecution of the motion, when answers to the interrogatories served with the petition were not filed before the initial setting of the rule for judgment pro confesso.

Article 2412 of the Code of Civil Procedure provides as follows:

“The sheriff shall serve upon the garnishee the citation and a copy of the petition and of the interrogatories, together with a notice that a seizure is thereby effected against any property of or indebtedness to the judgment debtor.
Service shall be made in the manner provided for service of citation, except that if the garnishee is an individual, service must be personal. If the garnishee has concealed or absented himself with the purpose of avoiding personal service, the court may order that service be made in any other manner provided by law.
The garnishee shall file his sworn answers to the interrogatories within fifteen days from the date of service.”

Article 2413 of the Code of Civil Procedure provides as follows:

“If the garnishee fails to answer within the delay provided by Article 2412, the judgment creditor may proceed by contradictory motion against the garnishee for the amount of the unpaid judgment with interest and costs. The failure of the garnishee to answer prior to the filing of such a contradictory motion is pri-ma facie proof that he has property of or is indebted to the judgment debtor to the extent of the judgment, interest, and costs.
Judgment shall be rendered against the garnishee on trial of the motion unless he proves that he had no property of and was not indebteded to the judgment debt- or. If on the trial of such motion, the garnishee proves the amount of such property or indebtedness, the judgment against the garnishee shall be limited to the delivery of the property or payment of the indebtedness, as provided in Article 2415.
Regardless of the decision on the contradictory motion, the court shall render judgment against the garnishee for the costs and a reasonable attorney’s fee for the motion."

Article 2413 clearly and unequivocally provides that in the event a garnishee fails to timely answer interrogatories, thus creating the necessity for a contradictory motion, the said garnishee shall be responsible for reasonable attorney’s fees and costs of the motion. This is true even though on the motion there is judgment in favor of the garnishee. Therefore, regardless of the decision on the contradictory motion, Article 2413 clearly provides that the court shall render judgment against the garnishee for the costs and reasonable attorney’s fees for the motion. Elizey Marine Supplies, Inc. v. Taylor, 237 So.2d 706 (La.App. 4th Cir. 1970); cf. Mid-City Investment Co. v. Batiste, 248 So.2d 88 (La.App. 1st Cir.1970). It is mandatory that plaintiff be awarded reasonable attorney’s fees and costs for a motion filed by the plaintiff because of the garnishee’s failure to file a timely answer. Associate Discount Corporation v. Haviland, 218 So.2d 59 (La.App. 3rd Cir.1969).

In the trial judge’s reasons for judgment, he stated:

“I can accept, and it’s entirely plausible to me, that what Mr. Esenault says, and taking his testimony, together with Ms. Long’s, is exactly what happened. He gets this thing, and he says, ‘Call and tell these people this fellow doesn’t work for me anymore. What do I have to do now?’
And I can see a general question like that getting to one of the secretaries and telling his secretary, ‘If he doesn’t work for you, forget about it.’ You can’t get blood out of a turnip, almost anybody’ll say that. It would be common sense.
Ms. Long didn’t, especially coupled with the addition that she was gracious enough to give us with her testimony, makes it clear that that’s not impossible, perhaps not even improbable, that that could happen.
To put it another way, I don’t think Mr. Esenault perhaps pursued entirely the proper legal remedy. And perhaps the employee or the creditor didn’t, either.
As a practical matter, I think this man was led to believe he could forget about it. It would just go against good conscience, in my grain, to have that man to have to pay it.
And I make this clear for the record: I accept and believe his testimony insofar as to what he told his secretary to do, what his secretary did, and what the secretary relayed back to him. And I don’t think Ms. Long’s testimony was intended to contradict that, and I don’t think it does contradict it.”

Equitable estoppel is defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance. There are three elements of estoppel: (1) a representation by conduct or word; (2) justifiable reliance; and, (3) a change in position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). A party may not invoke equitable estoppel except in good faith and after having exercised such diligence as would reasonably be expected under the prevailing circumstances to avoid mistake or misunderstanding. If the party pleading the estoppel had actual knowledge or had ready or convenient means of acquiring knowledge of facts concerning which the representations were made, he cannot successfully invoke estoppel. The representation relied upon by appellee in this ease was from the testimony of Mr. Esenault that he had his secretary call appellant’s secretary and appellant’s secretary made some statement to Mr. Esenault’s secretary to the effect not to worry about the garnishment proceeding.

Generally, a misrepresentation of law cannot be the basis for equitable estop-pel. It is horn-book law that for a misrepresentation of law to raise equitable estop-pel, the party relying upon the representation must have a confidential relation with the representing party, or the representing party must possess greatly superior knowledge of the subject. American Bank & T. Co. v. Trinity Universal Ins. Co., 251 La. 445, 205 So.2d 35 (La.1967); Wadley v. Gleason, 192 La. 1052, 190 So. 127 (La.1939); Straus v. City of New Orleans, 166 La. 1035, 118 So. 125 (La.1928); Brian v. Bonvillain, 111 La. 441, 35 So. 632 (La.1902). Further, a party who has means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim to have acted in good faith. Twillie v. H.B. Zachry Co., 380 So.2d 747 (La.App. 4th Cir. 1980); Harvey C. Richard, 200 La. 97, 7 So.2d 674 (La.1942).

Considering the above, it is clear that the trial court erred in applying the doctrine of equitable estoppel. Under the facts of the instant case, the judgment creditor stood in no relation of trust or confidence to the appellee. It is highly questionable as to whether or not the secretary of the appellant possessed greatly superior knowledge concerning a garnishment proceeding over the appellee. Further, ap-pellee could have easily contacted an attorney and ascertained his legal position and was so advised on several occasions. Clearly, appellee was unjustified in relying upon any statement of appellant’s secretary. Reasonable attorney’s fees and costs for the motion filed by appellant are required by Article 2413 of the Code of Civil Procedure.

Counsel for appellant contends that he was required to make three court appearances because of the matter being continued numerous times. However, we have carefully examined the record and find that although six continuances occurred, the first two were on appellant’s motion, the third continuance on appellee’s motion, the fourth continuance on appellant’s motion, and the fifth and sixth continuances by joint consent of appellee and appellant. Under the circumstances, we find that other than the work necessary to file the motion of judgment pro confesso, only one court appearance was required. Therefore, we are of the opinion that $200.00 would be a reasonable attorney’s fee as required by Article 2413.

For the above and foregoing reasons, judgment of the district court denying attorney’s fees and costs of the judgment to the appellant is reversed and set aside; and, judgment is rendered in favor of Quality Finance Company and against Boddie’s Welding in the full sum and amount of $200.00 and all costs of these proceedings.

REVERSED AND RENDERED.


author: SHORTESS, Judge.

text:
    DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF FAMILY SECURITY v. Matilda PERRY.
    No. 82 CA 0167.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Joseph A. Donchess, Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for appellant.
    Mary E. Howell, Howell & Bayer, New Orleans, for appellee.
    Robert R. Boland, Jr., Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for George Hamner, Director of the Dept, of State Civ. Service.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

The Department of Health and Human Resources, Office of Family Security (Department), appeals from a decision of the Louisiana Civil Service Commission (Commission) reversing the ten-day suspension of Matilda Perry (appellee), a permanent employee of the Department, classified as an Eligibility Worker.

The facts surrounding the suspension are as follows: On May 9, 1979, appellee left around noon for her lunch break, which, according to Department policy, was to last thirty minutes. Appellee did not return to her office until approximately 3:00 p.m. and missed two scheduled appointments and two visits from unscheduled clients. This extended lunch break was unauthorized. Prior disciplinary measures for similar infractions had been levied against appellee, so her supervisor, Louis Broussard, decided to recommend suspension for ten days. On the morning of May 11,1979, when appellee arrived at work, she was told to report to Broussard’s office which was five or six blocks down the street. When she arrived at his office, she was informed that her suspension was for ten working days beginning at 8:00 a.m. on May 11. It was conceded that it was after 8:00 a.m. when she received this notice. Although the exact time could not be ascertained, it was estimated to be between 8:05 a.m. and 8:20 a.m. On May 15, she received the required written confirmation of suspension.

On June 15, appellee filed, in proper person, a notice of appeal to the Commission, denying that she had blatantly disregarded her clients’ interests by failing to return from lunch and missing her scheduled and nonscheduled appointments. A public hearing was held before a referee on July 29. At that time, counsel for appellee orally raised a motion challenging the sufficiency of the suspension notice given on May 11. The motion for summary disposition of the case was submitted to the Commission.

At the time of the hearing, Civil Service Rule 12.2, which governs the notice requirements for suspensions, read in pertinent part as follows:

“(a) Any employee who is suspended without pay shall be so notified by his appointing authority on or before the effective date of the suspension.” [emphasis ours]

The Department argued that notice was proper under the rule, as appellee was notified on the effective date of the suspension. Appellee argued that unless notice was given prior to the commencement of the suspension, it was invalid. By opinion filed on January 29, 1982, the Commission granted appellee’s motion and appeal. It found:

“... the intent of Civil Service Rule 12.2 was to afford prospective notice or concurrent notice to employees of the disciplinary action.”

The Commission reasoned that if the rule were accorded any other meaning, an employer could allow an employee to work part of a day, or even the entire day, and then give notice that he had been suspended as of that morning, without pay for the work performed. Therefore, the Commission interpreted Rule 12.2 as requiring that notice be prospective or concurrent with the suspension.

Applying this interpretation to the facts at hand, the Commission held that insufficient notice had been given. The opinion of the Commission states:

“During the taking of testimony on the merits of this appeal, it was established that appellant was orally notified of her suspension sometime after 8:00 a.m. on May 11, 1979. The suspension became effective at 8:00 a.m. on May 11, 1979.”

Therefore, the Commission found that ap-pellee had been notified after the effective time of her suspension. The motion for summary disposition was granted, and it was ordered that the suspension be reversed. From this decision, the Department perfected this devolutive appeal.

There are two issues presented by this appeal:

(1) Was the Commission’s interpretation of Civil Service Rule 12.2 correct?
(2) Was there proper notice of the suspension?

Initially, we note that this hearing was conducted before a referee. Recently, we held in Wells v. Department of Corrections, Etc., 417 So.2d 377 (La.App. 1st Cir. 1982), writ denied, 420 So.2d 983 (La.1982), that members of the Commission must read and examine (or “hear”, if the transcript is in the form of a taped transcription) the transcript of testimony as made up before the referee, before reaching a decision. Further, the opinion of the Commission must indicate that due reading and ex-animation has taken place, mission’s opinion, dated January 29, 1982, does not indicate such an examination. However, because the entire transcript has been lodged with this court, and the issues presented are essentially questions of law, we will consider the case without ordering a remand for further information from the Commission. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). The Com-

The first issue is whether the Commission properly interpreted Rule 12.2. An administrative agency has the authority to interpret its own rules and such interpretations will become part of the rules. Department of Corrections, Louisiana State Penitentiary v. Cage, 418 So.2d 3 (La.App. 1st Cir.1982), writ application pending, No. 82-C-2411 (La. Sept. 27,1982); McNeely v. Dept. of Health & Human Resources, 413 So.2d 594 (La.App. 1st Cir.1982), writ denied 415 So.2d 949 (La.1982). Further, civil service rules have the effect of law and should be construed according to the rules of interpretation applicable to legislation in general. Sanders v. Dept. of Health & Human Resources, 388 So.2d 768 (La.1980). One such rule of construction is that courts should interpret statutes in light of their true intent and also to avoid absurd results. Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (1970). In Hayes, the Louisiana Supreme Court stated:

“The object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result. Bradford v. Louisiana Public Service Commission, 189 La. 327, 179 So. 442; See also City of Shreveport v. Gregory, 186 La. 407, 172 So. 435.” 237 So.2d at 684, citing Dore v. Tugwell, 228 La. 807, 84 So.2d 199 (1955).

As stated earlier, the Commission found that the intent of the rule was to provide prospective or concurrent notice to employees of their suspension. This policy was stated by the Louisiana Supreme Court in Sanders, supra, as follows:

“The provisions of the state constitution involving the Civil Service, La. Const, art. 10, § 1, et seq., and the rules of the Commission are designed to secure adequate protection to public career employees from political discrimination. They embrace the merit system, and their intent is to preclude favoritism. The purpose of the civil service rules is to guarantee the security and welfare of public service. Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971).” 388 So.2d at 771.

Also, the Commission sought to avoid the absurd result which might occur if an employee worked a partial or complete shift, and was then informed on that date that he had been suspended, and was not going to be paid for the work performed. Therefore, we hold that the Commission’s interpretation of Rule 12.2 is proper as it assures fair and adequate notice to employees and furthers the policy of guaranteeing the security and welfare of public service.

The second issue is the application of this interpretation to the facts before us. Our review of the record shows the only evidence surrounding the notification to ap-pellee is the testimony of Louis Broussard, which reads in pertinent part:

“Q Did you call Ms. Perry into your office on the morning of May 11th?
A Yes.
Q What was the purpose of calling her into your office?
A To explain to her that I made a recommendation that she be suspended for ten days.
Q What time did you call her in?
A Well she came immediately, right after 8:00. I think as soon as she came to the office I told her to report — to send her to Riverside.
Q What time does she report to work?
A Normally 8:00, you know.
Q So normally she would have been given either an oral or written note from her supervisor telling her to report to you?
A Not a note, just verbal, you know.
Q And she reports to work at 8:00?
A Yes.
Q Ok, so giving the sequence of facts you have just told me, do you have any indication about what time she got to your office?
A No I don’t.
Q Is it reasonable to believe from these facts that it was after 8:00 that she got to your office?
A Yes.
Q How long did your discussion last with her?
A I would say at the most twenty minutes, maybe less.
Q Ok, do you recall what time she left your office?
A No ma’am, I sure don’t.”

This testimony indicates that appellee was told when she arrived at work, sometime around 8:00, that she was to report to Mr. Broussard. She then walked five or six blocks to his office, where she was told of her suspension. There is no evidence to show that appellee did any work before receiving said notice. A similar situation existed in Broussard v. Department of Corrections, Etc., 405 So.2d 1219 (La.App. 1st Cir.1981), where an employee challenged the sufficiency of her suspension notice. Although the employee had exhausted her sick leave, she continued to be absent from work. When she finally returned to work, she was informed of her suspension, effective as of the date of her return. The employee was subsequently discharged. We found that the appointing authority had complied with Rule 12.2 by informing the employee of her suspension on the date of her return. Again, there was no indication in Broussard, that the employee performed work on the day she received notice. Under the present facts, we conclude that appellee received concurrent notice of her suspension, and that the appointing authority complied with the requirements of Rule 12.2.

Accordingly, we reverse the decision of the Commission, insofar as it ordered the Department to pay appellee for the period of her suspension, and further order that all details of this disciplinary action be returned to appellee’s personal folder. We affirm that part of the Commission’s decision requiring that notice of a suspension be prospective or concurrent. Costs are taxed to appellee.

AFFIRMED IN PART; REVERSED IN PART.


author: REDMANN, Chief Judge. PER CURIAM.

text:
    Manuel NUNEZ v. Joseph P. NUNEZ.
    No. 13235.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 22, 1982.
    Rehearing Denied Jan. 14, 1983.

      Evangeline M. Vavrick, New Orleans, for plaintiff-appellant.
    Kirk A. Vaughn, Edward S. Bopp, a Law Corp., Arabi, for defendant-appellee.
    Before REDMANN, C.J., and GULOTTA and SCHOTT, JJ.
   REDMANN, Chief Judge.

The issue on this appeal is whether a landowner can recover damages from a contiguous landowner because of the latter’s removing a fence erected by their common ancestor in title. Plaintiff bought from the common ancestor in 1963 when the ancestor owned both properties and the fence existed; and the ancestor sold to plaintiff by description “in accordance with” an attached survey that showed that the fence lay precisely along one 55-foot boundary of the land. Defendant bought in 1976, and the ancestor sold to him with survey (by the same surveyor) that showed that the fence lay not along the boundary but one to two feet on the land sold to defendant.

During plaintiff’s absence defendant removed not only the 55-foot fence that the ancestor had had but also one side of a large rectangular fenced dog pen plaintiff erected about six inches from the 55-foot fence. The trial court awarded a fourth of the cost of the rectangular dog pen but nothing for the 55-foot fence, reasoning that plaintiff had not proven his ownership.

Plaintiff appeals and we reverse.

The showing of ownership is plaintiff’s deed of purchase, which is silent about the fence but which describes the land “in accordance with” the attached survey, and the survey does show the fence as located on the boundary line. Perhaps more important, it shows that the fence is part of a complete inclosure of a quandrangular tract (divided in the survey into Lots A, B, and C) that includes the land sold to plaintiff (Lot B) and does not include the uninclosed land on the other side of the fence (although that land, too, was then owned by the common ancestor in title). We conclude both that the fence was the boundary of plaintiff’s land and that it constituted a common boundary inclosure belonging to the two adjoining landowners in common.

Plaintiff’s vendor could not, by proving that the fence shown as a boundary on the survey was one to two feet further than the distances from road to fence given on the same survey, have established that the boundary resulting from her sale to plaintiff was the mathematical line established by those measurements rather than the fence. The description in the sale must be construed “in favor of the vendee and against the vendor as to the extent of the property conveyed.” Texas Company v. O’Meara, 228 La. 474, 82 So.2d 769, 779-789 (1955). The title from a common owner most ancient in date prevails, and in determining boundary lines artificial monuments (such as a fence) must prevail over distances and courses. Dufrene v. Bernstein, 190 La. 66, 181 So. 859 (1938); Administrators of Tulane Ed. Fund v. Stair, 148 La. 11, 86 So. 595 (1920). The fence is therefore, as shown on the survey, the boundary of plaintiff’s land.

Moreover, the fact that plaintiff’s land was part of a tract inclosed by the fence obliges the conclusion that by his deed from the common ancestor plaintiff became at least an owner in common of the fence with the ancestor (who, we repeat, owned the adjoining land). The law is contained in C.C. (1870) 687 and 688 (prior to their revision in La.Acts 1977 No. 514).

Art. 687. In the country the common boundary inclosures between two estates are made at the expense of the adjacent estates, if the estates are inclosed; otherwise, the estate which is not inclosed is not bound to contribute to it.
Art. 688. Every fence, which separates rural estates, is considered as a boundary inclosure, unless there be but one of the estates inclosed, or unless there be some title or proof to the contrary.

Because of the silence of the deed about ownership of the fence, art. 688 must govern. If the common ancestor had not owned the adjoining land, anyone who bought the entire inclosed tract would be presumed to be the sole owner of the fence because of the fact that the adjoining tract was not itself inclosed. By the same reasoning one who (like plaintiff) purchased part of the inclosed tract up to the fence would also be presumed to be the sole owner of the fence constituting his boundary. But, reverting to art. 687, from the fact that the common ancestor owned the land on both sides of the fence it must be supposed that her payment for the fence was not an act exclusively in her capacity of owner of the inclosed portion of her land but as owner of both inclosed and unin-closed land; the owner of the adjoining “estate which is not inclosed,” although by art. 687 “not bound to contribute to” the cost of the common boundary inclosure, in fact did contribute to it. We therefore conclude that the fence constituted a co-owned, “common boundary inclosure” within art. 687. The common ancestor in title therefore could not have demolished the fence without plaintiff's consent, and defendant, as that ancestor’s later vendee, had no right to do so.

Plaintiff is entitled to the restoration of the 55-foot fence at its original location. Because, however, the fence will remain a fence in common, we cannot award the cost of replacement of the fence without obliging plaintiff to reconstruct the fence. The record would permit only a rough estimate of that cost in any event, and we therefore deem the following judgment appropriate under C.C.P. 2164.

The judgment appealed from is amended to cast defendant for the reasonable cost of replacing the 55-foot fence with similar materials and at its same location, and the matter is remanded to the trial court for establishment of that cost by reasonable contract between plaintiff and an appropriate contractor, for the benefit of plaintiff and defendant, to reconstruct the fence of similar materials at its original location. Defendant is to pay all costs.

ON APPLICATION FOR REHEARING

PER CURIAM.

Our decree is amended to specify that the reasonableness of the contract price is to be established by hearing at which both parties may present relevant evidence.

Rehearing is otherwise refused.