author: CULPEPPER, Judge. PER CURIAM.

text:
    Bruce CHAMPION, Jr., et al., Plaintiffs & Appellees, v. PANEL ERA MANUFACTURING COMPANY, et al., Defendants & Appellants, v. KAISER ALUMINUM & CHEMICAL CORPORATION and Mosinee Paper Corporation, Third-Party Defendants & Appellees.
    No. 8428.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearings Denied March 24, 1982.

      Porteous, Taledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for defendants-appellants.
    Trimble & Associates, Harry F. Randow, Alexandria, Mayer, Smith & Roberts, Alex F. Smith, Jr., Shreveport, for defendants-appellees.
    Gahagan & Gahagan, Henry C. Gahagan, Jr., Brittain & Williams, Jack 0. Brittain, Natchitoches, for plaintiffs-appellees.
    John G. Williams, Natchitoches, for inter-venors.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is a products liability case. Plaintiffs and intervenors are the owners of chicken houses. They seek damages caused by allegedly defective insulation material used on the roofs of their houses. The original petition was filed August 29, 1978 by 21 chicken house owners against Panel Era as the finished product manufacturer, Kaiser Aluminum & Chemical Corporation, manufacturer of the aluminum foil component used in the insulation, various building contractors who had built poultry houses for the plaintiffs, and the manufacturers of the corrugated metal roofing used in the houses. A petition of intervention was subsequently filed by two more chicken house owners. Mosinee Paper Corporation and Diamond Alkali Company, manufacturers of other components of the insulation, were named as additional defendants by amending and supplemental petitions. On March 4, 1980, a supplemental and amending petition was filed by the plaintiffs to add as a defendant American States Insurance Company, an Indiana corporation, the alleged products liability insurer of Panel Era. American States answered, denying coverage, and, alternatively, made a third party demand against Kaiser and Mosinee for indemnity and/or contribution. Panel Era filed a third party demand against American States on the coverage issue.

All defendants except Panel Era, American States, Kaiser and Mosinee were eventually granted summary judgments or judgments of dismissal. Kaiser and Mosinee settled with the plaintiffs and were thereafter released as principal defendants.

When plaintiffs learned that the defendant, American States Insurance Company, was merely the excess insurer of Panel Era, further pleadings were filed to add as primary insurer American States Insurance Company of Texas, which in turn filed a third party demand against Kaiser and Mo-sinee. The insurers, hereinafter referred to as “American States”, filed an exception of no right or cause of action on the grounds that since this is an action in contract, not tort, the insurers cannot be sued by direct action. This exception was denied at a hearing held October 9, 1980. At the same time, the trial court ruled that the settlement agreements between plaintiffs and the previously released defendants, Kaiser and Mosinee, were inadmissible as evidence at trial before a jury.

At the time of trial, the parties were aligned in the following manner:

1) Principal demand: Plaintiffs and In-tervenors v. Panel Era, American States of Texas, and American States.
(2) Third party demands:
(a) Panel Era v. American States of Texas and American States (coverage issue).
(b) Panel Era, American States of Texas, and American States v. Kaiser and Mosinee (indemnity and/or contribution claim).

A lengthy trial by jury was held, resulting in a verdict on the principal demand in favor of the plaintiffs and intervenors and against Panel Era, American States of Texas and American States. The verdict on the first third party demand was in favor of Panel Era and against American States of Texas and American States. On the second third party demand for indemnity or contribution, the verdict was in favor of Kaiser and Mosinee and against American States. Judgment was rendered pursuant to this verdict. The defendants, American States of Texas and American States, appealed. Plaintiffs and intervenors answered the appeal, seeking increases in the damages and in the attorneys’ fees for services rendered on appeal.

The following issues have been raised for our consideration: (1) Do the plaintiffs have a right of direct action against American States under LSA-R.S. 22:655, and, if so, did their tort action prescribe before sued upon? (2) Is there coverage under the policies issued to Panel Era by American States? (3) Should coverage have been denied for the claims of the intervenors by reason of Panel Era’s delay in notice? (4) Should the settlement and hold harmless agreements executed by plaintiffs and in-tervenors with Panel Era, Kaiser and Mosi-nee have been admitted as evidence before the jury? (5) Did the amount of damages awarded by the jury constitute an abuse of discretion, and was there double recovery by plaintiffs and intervenors for the purchase price of the insulation? (6) Should the defendants receive a credit for use of the insulation up until the date of trial? (7) Did the court err in absolving Kaiser and Mosinee from any and all liability to insurers for plaintiffs' damages? (8) Should the letter to the defendant by plaintiffs’ attorney have been admitted into evidence as an admission by one of the parties? (9) Were the expert witness fees excessive? (10) Should the award of attorneys’ fees be increased?

GENERAL FACTS

Panel Era’s product has the tradename “Insul-Sheath”. It obtains from Kaiser Aluminum rolls of thin aluminum foil, to which is glued on one side a flame-retardant kraft paper, obtained by Kaiser from Mosinee. This bonded foil and paper is used by Panel Era as the outside walls of Insul-Sheath, with the foil on the outside. The rolls are fed through a machine that adds a polyurethane core in a gaseous form between the outside walls. This gas is expanded by heat to a width of approximately one inch. It then solidifies and constitutes the insulating material between the outside walls. The Insul-Sheath is then cut into sheets of various dimensions.

When Panel Era first started making In-sul-Sheath it used a paper which was not flame-retardant. Later it started using a fire-resistant paper. The flame-retardant characteristic was derived from water soluble chemicals impregnated in the paper purchased by Kaiser from Mosinee. The switch to a flame-retardant paper was made because Panel Era felt that such a characteristic would be an additional selling point for its product. The president of Panel Era, Frank Roberts, testified the company performed no product testing nor chemical analysis to determine the compatibility of the chemicals producing the flame-resistant feature with the known construction uses of the finished product in buildings with tin roofs.

In order to expand its poultry-producing capacity, Country Pride Foods, Ltd. began during 1977 to solicit contract growers in Natchitoches Parish to build large scientifically designed chicken houses. Its expansion coordinator, Wayne Babin, provided each grower with Country Pride’s written recommendations for the size, location and approved building materials for the poultry houses. Panel Era’s sales manager met with Babin in Natchitoches in July, 1977 to examine the chicken houses during construction to see if their product would be suitable.

The houses were “A-frame” structures measuring 32 feet in width by one of three different lengths. The studs and rafters were either wood or metal. The sheets of Insul-Sheath were nailed directly on top of the rafters, with the aluminum foil up. The galvanized metal roofing was then nailed directly over the insulation. After viewing the method of construction, Panel Era’s representative gave express assurance that its product would be suitable. The Insul-Sheath was then listed by Country Pride as acceptable for use in construction by its poultry growers.

The plaintiffs began to notice corrosion of the galvanized metal in various houses in April of 1978. Mr. Babin of Country Pride was informed of the problem and subsequently confirmed that it was limited to those growers whose houses had been constructed using the Panel Era insulation.

The cause of corrosion was established through testing by experts in chemistry and metallurgy. The fire-resistant chemicals in the Mosinee paper were dissolved by moisture from various sources, including rain water leaking through nail holes, condensation of water along the under side of the metal chicken houses, and the mere presence of high humidity sucked into the core of the insulation through “capillary action” of the polyurethane. The corrosion occurred when the dissolved chemicals came in contact with the zinc exterior of the galvanized tin roofing, causing the zinc to dissolve and the tin to rust. Holes around the roofing nails rusted, the roof leaked, the foil and paper came apart and the insulation fell down inside the houses.

There was no warning by any of the three manufacturers involved as to the possible corrosive effects of these chemicals in conjunction with metal and humidity.

Panel Era was notified of the corrosion problem in April, 1978. This suit was filed in August, 1978. However, American States of Texas was not formally notified of the claim until August, 1980, when this insurer was added as a defendant by supplemental and amending petition.

RIGHT OF DIRECT ACTION AGAINST INSURERS

Defendant-insurers contend the trial court erred in overruling its exception of no right or cause of action, since the direct action against insurance carriers provided for by LSA-R.S. 22:655 is available only in tort actions. They claim that until after the hearing on this exception, plaintiffs had only alleged a cause of action in redhibition, and first alleged a cause of action based on tort in an amending and supplemental petition filed October 9,1980. They argue that, by this time, plaintiffs’ tort action had prescribed, leaving only a cause of action in redhibition, which may not be pursued against them directly.

The plaintiffs contend, of course, that the trial court ruling was correct since the buyer of a defective thing can claim damages under theories of either redhibition or tort and is not required to plead the theory of the case. Plaintiffs further argue that since the facts set out in the original petition are sufficient to state a cause of action in tort, their tort action did not prescribe because the subsequent amendment of the petition relates back to the date of the filing of the original petition, under LSA-C.C.P. Article 1153 which states:

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

We agree with plaintiffs and intervenors.

Direct actions authorized by LSA-R.S. 22:655 are limited to torts liability only. They are not authorized in actions resulting from breach of contract. LaCour v. Merchants Trust & Savings Bank, 153 So.2d 599 (La.App. 4th Cir. 1963); Tyler v. Walt, 184 La. 659, 167 So. 182 (1936). However, as the First Circuit stated in Gray & Company, Inc. v. Ranger Insurance Company, et al., 292 So.2d 829 (La.App. 1st Cir. 1974):

“In any case involving an obligation, liability must result from a breach of duty, whether the duty arises out of the undertakings of the parties, from their voluntary acts, by operation of law or otherwise. It is entirely possible that the same duty might have more than one source, as in the case of the negligent breach of a contractual obligation, in which case a cause of action arises from both the breach and the negligence. One set of circumstances might produce multiple duties arising from multiple sources.”

Under our system of fact pleading it is ordinarily not necessary for a party to characterize his cause of action or state the theory of his case. He is entitled to relief under any theory of law which may be justified under the relevant facts properly proven at trial. LSA-C.C.P. Articles 862, 2164; Gray & Company, supra; Dean v. Hercules, Inc., 314 So.2d 430 (La.App. 1st Cir. 1975); writ granted 318 So.2d 55 (La.1975); Veazey v. W. T. Burton Industries, Inc., 407 So.2d 59 (La.App. 3rd Cir. 1981).

In the recent case of Philippe v. Browning Arms Company, 395 So.2d 310 (La.1980), on rehearing the Louisiana Supreme Court stated:

“While C.C. arts. 2315 and 2316 are the fountainhead of tort responsibility, the court which determines tort responsibility in a particular case must decide the applicable standard of conduct by consulting the many other codal articles, statutes and law which provide for certain responsibilities according to the person involved or to the relationship or activities involved. Langlois v. Allied Chem. Corp., 258 La. 1067, 249 So.2d 133 (1971).

The court held that the appropriate standard of conduct in a suit by the purchaser of a defective thing is derived from the code articles on sales, and went on to say:

“[14] There is no compelling reason to require a person injured by a defective product he has purchased to proceed either in contract or in tort. The seller’s (manufacturer’s) act of delivering a defective thing, when he knows of the defect, gives rise to delictual, as well as contractual, liability, (citations omitted) “[15, 16] We conclude that the right and the extent of recovery by the purchaser of a thing against the seller or manufacturer is governed by the codal articles providing for responsibility in the seller-purchaser relationship, as applied through C.C. art. 2315.”

It is therefore clear that the factual allegations of a petition for redhibition may also state a cause of action in tort, and indeed the trial judge here correctly found that the claims could arise from redhibition, tort, breach of contract, negligence or products liability. Thus, the exception of no right or cause of action was properly overruled, as was the exception of prescription, since the original petition properly stated a cause of action in tort.

COVERAGE ISSUES

The next issue is whether the liability policies issued to Panel Era by American States of Texas and by American States provide coverage for the damage suffered by the plaintiffs and intervenors.

The first question is whether Panel Era’s failure to give formal notice of the claim until long after this suit was filed voids the policy, as claimed by American States. This presents a conflict of laws issue. Under Texas law, the failure to perform the condition of giving notice of the claim to the insurer as soon as practicable constitutes an absolute defense to coverage, absent a waiver or other special circumstances. Breach of the condition voids policy coverage. Dairyland County Mutual Insurance Company of Texas v. Roman, 498 S.W.2d 154 (Tex.Sup.Ct.1973); Broussard v. Lumbermen's Mutual Casualty Company, 582 S.W.2d 261 (Tex.Civ.App.1979). The rule in Louisiana is that an insurer must prove actual prejudice in order to deny a claim on the basis of not receiving notification as stipulated in the policy contract. Fakouri v. Insurance Company of N. A., 378 So.2d 1083 (La.App. 3rd Cir. 1979); West v. Monroe Bakery, Inc., 217 La. 189, 46 So.2d 122 (1950).

The trial court applied the law of Louisiana, and the jury found that American States was not prejudiced as a result of the delayed notice. The insurer contends that Texas law should apply, and, alternatively, that the jury’s finding of no prejudice was error. We find the trial court’s holdings on these questions are correct.

Louisiana courts have now adopted the interest analysis approach in choice of laws with respect to both torts and contracts, in preference to the former rigid approach of applying the law of the place where the tort was committed or where the contract was executed. Jagers v. Royalty Indemnity Company, 276 So.2d 309 (La.1973); Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir. 1976), writ denied 332 So.2d 805, 332 So.2d 820; 333 So.2d 242 (La.1976); Succession of Dunhan, 359 So.2d 674 (La.App. 1st Cir. 1978).

We recognize that Texas has a certain interest in this issue of notice to the insurer and interpretation of the policy provisions, inasmuch as the policies involved were issued to a Texas manufacturer (Panel Era), one by a Texas insurer (American States of Texas), and the other by an insurer foreign to both Louisiana and Texas (American States, an Indiana corporation). The apparent purpose of the Texas rule on notice is protection of its insurers against collusive tactics on the part of their insureds and those with claims against them. However, we find no indication of such tactics in the instant case. Panel Era cooperated fully with American States in defending against Panel Era’s liability to plaintiffs and inter-venors.

Another consideration is that Texas also has an interest in protecting its manufacturing industry from suffering large losses for products liability claims which have been insured against, even by Texas insurers. As to the excess insurer, which is an Indiana corporation, Texas has even less interest in extending its rule on notice.

On the other hand, the plaintiffs and intervenors are Louisiana residents. The defendant manufacturer conducts substantial business in this State. In fact, that company sent its representative to Louisiana to solicit business here actively, and he was quite successful. It cannot be said that this insurer was not aware that such interstate transactions would be and did take place when it issued the policy, especially since it conducted a yearly audit of the Texas manufacturer. Thus, the contemplation of the parties to the insurance contract must have been that it would have effect in any state in which the manufacturer did business and was potentially liable for damages due to doing such business. The insurer surely did not anticipate that only Texas law would be applicable to the insurance contract issued to such a business.

The focus of the Louisiana rule requiring proof of actual prejudice is to prevent insurers from using the notice requirement to evade the fundamental protective purpose of the insurance contract and to assure payment of liability claims up to the policy limits for which they collected premiums. Fakouri, supra; Miller v. Marcantel, 221 So.2d 557 (La.App. 3rd Cir. 1969). Thus, the Louisiana interest underlying its rule involves not only protection of its insured residents, but protection of Louisiana plaintiffs and the general public as well. From a comparison of the Texas interest with the Louisiana interest in protecting those who are damaged within its borders and those who do business within its borders, and in light of the reasonable contemplation of the parties, we conclude that Louisiana’s notice rule should apply.

American States contends that it suffered actual prejudice by reason of the fact that it was not given the opportunity to participate in pretrial discovery which took place prior to the time of actual formal notice. The record shows, however, that ample opportunity was afforded American States to re-take any depositions which had already been taken, or pursue any other discovery deemed necessary by counsel. They had at least seven months in which to prepare their case. As they chose to accept the discovery as already taken, and had ample time in which to prepare a case, it cannot be said that the delay in notice prejudiced them in this regard. The only indication of possible harm was the self-serving testimony of the company’s claims representative that the insurer would possibly have tried to mitigate damages and would have told Panel Era not to give the intervenors a guarantee. In light of the fact that the company ultimately denied coverage, the first claim is highly improbable. The claim with regard to the guarantee also carries little weight, since Panel Era gave it shortly after the problem first arose, in the good faith belief that it was not their product which was causing the corrosion. The jury clearly felt, as do we, that this testimony deserved little weight, and found as a fact that there was no showing of actual prejudice. We discern nothing clearly wrong in this finding.

Defendants also rely on four standard policy exclusions to deny coverage, each of which appears in both the general liability policy and the umbrella policy. The first of these has been called the “sistership exclusion”, which precludes coverage for damages claimed for the withdrawal, inspection, repairs, replacement or loss of use of the insured’s products, if such products are withdrawn from the market. Panel Era’s expert witness in linquistics and grammar testified that the first preferred meaning of withdrawal is to “take back”, and is considered synonymous with the word “recall”, rather than a mere discontinuation of the sale of the product. American States argues that the Insul-Sheath product was withdrawn from the market since Panel Era stopped selling it sometime after the corrosion problem arose.

This exclusion has been taken to mean simply that the insurer is not liable for cost of preventive or curative action taken by its insured in connection with the recall of products discovered to have a common fault. Yakima Cement Products Company v. Great American Insurance Company, 22 Wash.App. 536, 590 P.2d 371 (1979). We do not feel the actions of Panel Era in this case constitute a withdrawing of the product from the market, as that term is commonly construed. However, even if that were the case, the damages claimed here are not in connection with the withdrawal of the product. These are damages caused by a defective condition, the discovery of which occasioned the discontinuation of the product. Therefore, the exclusion in question is not applicable here.

The next clauses relied on exclude from coverage property damage to work performed by or on behalf of the insured, or damage to the insured’s product. These clearly do not apply as the property damage here was to the roofs of the chicken houses, not merely to the insulation, nor was there any damage to any work performed by Panel Era or on its behalf.

The last exclusion claimed applicable by American States reads:

“This insurance does not apply:
“(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from
(1) * * *, or
(2) The failure of the named insured’s products ... to meet the level of performance, quality, fitness or durability warranted or represented by the named insured;” (emphasis supplied)

This will not serve to exclude coverage for the damage which has occurred here, since there has been definite physical injury and destruction, not a mere loss of use of property.

American States makes a special argument as to coverage of the claims by the intervenors. The insurer argues that it suffered actual prejudice as a result of the delayed notice because, had they been notified of the claim immediately, the insurer would not have allowed the insureds to make to the intervenors a written guarantee of its product in the face of the known problems involving that product. While it is logical to assume that American States would have advised its insured not to guarantee the product, if it had known of the claims, this does not prove that Panel Era would have followed the advice. Furthermore, the mere testimony by an American States’ representative that this is what they would have done does not serve to prove by a preponderance of the evidence that the insurer could have escaped liability under the policy for the intervenors’ claims. We therefore hold that the jury was not clearly wrong in finding that no actual prejudice was suffered by the insurer with regard to the intervenors’ claims.

ADMISSIBILITY OF SETTLEMENT AGREEMENTS

Kaiser and Mosinee settled the claims of plaintiffs and intervenors against them well before trial of this matter, and they were dismissed as principal defendants. They remain parties to the suit solely by virtue of the third party claims against them by American States and Panel Era. Their position as third party defendants was clearly explained to the jury by counsel for the plaintiffs and intervenors. The trial court refused to allow introduction by American States of the settlement agreements as evidence. The insurers now claim this was error because the jury should have been informed of the reasons Kaiser and Mosinee did not actively contest plaintiffs’ claims.

Panel Era settled with the plaintiffs and intervenors during the trial. Plaintiffs agreed Panel Era’s liability would be limited to $25,000 in the event that insurance coverage was not afforded it under the policy, and that plaintiffs could recover more than that amount only if insurance coverage was provided, and then only up to the amount of the coverage provided. Thus, Panel Era would not be exposed to any excess liability. It was further agreed that Panel Era would admit its product was used in the poultry houses.

American States argues that the agreement should have been revealed to the jury, and, because it was not, the jury was deceived. They contend that the agreement resulted in lack of incentive for Panel Era to contest the claims against it and adversely affected the jury’s ability to evaluate the evidence and demeanor of the witnesses.

The general rule in Louisiana on admissibility of compromises and settlements was stated by this court in Broussard v. State Farm Mutual Automobile Insurance Company, 188 So.2d 111 (La.App. 3rd Cir. 1966);

“A compromise and discharge of one of two joint tort-feasors will restrict the claimant’s recovery against the other tort-feasor to one-half, Harvey v. Travelers Insurance Co., La.App. 3 Cir., 163 So.2d 915, but the compromise itself is not admissible for the purpose of showing that the alleged co-tort-feasor was jointly negligent, while the amount of the compromise is relevant for no purpose.
“[22, 23] This is so because an earlier compromise or offer to compromise a disputed claim is not admissible to establish liability upon the claim, if objected to by a compromisor or offeror who is a party to the suit in which the compromise or offer is sought to be introduced into evidence. * * * The basic reason for this privilege of preventing admissibility is the policy danger of discouraging compromises, favored by laws, if they can be used adversely to the compromiser in other proceedings.”

The cases relied on by American States involve jointly and/or solidarily liable co-defendants. In Daniel v. Penrod Drilling Company, 393 F.Supp. 1056 (W.D.La.1975), the settling defendant participated at trial but agreed not to aggressively defend the suit. In Ward v. Ochoa, 284 So.2d 385 (Fla.1973) and Leger v. Drilling Well Control, Inc., 69 F.R.D. 358 (W.D.La.1976), the settling defendants stood to have their liability reduced by an increase in the liability of the co-defendant. In these cases, it was held that an unfairness resulted because the jury was unaware of the true alignment of the parties. Therefore, it was concluded that the agreements should have been revealed at trial, so that the jury would be able to make a fair evaluation of the true stance of each party and his witnesses. This was especially important in Leger where the settling defendant was not present at trial, but the key witnesses were its employees.

In the instant case, however, we think the true alignment of the parties was clear to the jury. With respect to Kaiser and Mosinee, the jury was well aware that the plaintiffs and intervenors were not pursuing a claim against them. Therefore, the lack of a vigorous defense to the plaintiffs’ case did not deceive the jury. It is true that the key witnesses on the issue of their liability to American States for indemnity and contribution were their own employees. However, since the testimony introduced was in the form of depositions taken before settlement, the agreement could have had no prejudicial effect on it.

As regards the agreement limiting Panel Era’s liability to the plaintiffs and interve-nors, we feel that here also to allow its submission to the jury would have defeated the policy of encouraging compromise and settlement. The jury was well aware that American States and Panel Era were adverse to each other on the coverage dispute. Furthermore, counsel for Panel Era and its officers and employees cooperated fully with American States throughout the entire suit. While it is true that, as in Ward, supra, and Leger, supra, Panel Era would have its maximum liability reduced or eliminated by a finding against its co-defendant, American States, the situation here does not produce unfairness because this is a normal incident of the insurer-insured relationship, not merely the result of an agreement between it and the plaintiffs. The agreement to admit that the Panel Era product was used in the chicken houses also makes no difference, as this was quite easily shown by a preponderance of the evidence at trial to the jury’s satisfaction. Thus, we find in the present case none of the potential unfairness pointed to in the cases relied on by the defendants. We find no error by the trial judge in applying the general rule that such agreements are inadmissible.

QUANTUM

With respect to computation of damages, the defendant contends that the award of $1.75 per square foot for repair to the chicken houses is not supported by the evidence in the record. The plaintiffs contend the award is too low, since the only precise estimation by an expert of the cost of repair was $2.20 per square foot. Plaintiffs argue the award should be increased to that amount.

Defendants rely principally on the testimony of one of the builders of these poultry houses to the effect that ten good workers could put on a new roof in as little as one day. Plaintiffs’ expert estimated that it would take a crew of six to eight workers some two and one-half to three days to install a new roof. Most of the testimony was to the effect that it would probably take longer to remove the old roof and prepare the beams for the new roof than it would to put on the new roof. Plaintiffs’ expert estimated 18 hours for demolition. In light of the fact that the labor estimated by plaintiffs’ expert was shown on cross-examination to be somewhat inflated, and the testimony as to the length of time required which defendant relies on is somewhat unrealistic, we find that the jury award of $1.75 per square foot is amply supported by the record. Certainly, there is no abuse of discretion by the jury in its award for the cost of repairs.

Defendant also contends that the plaintiffs and intervenors are not entitled to recover their purchase price of the insulation, since they were awarded an amount for the repair and replacement of the roof as a whole, including the insulation. With this contention we agree.

The object of the provisions governing redhibitory vices is to restore the purchaser, as much as possible, to the condition he enjoyed prior to the sale. Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978). Thus, where a defendant is obliged to replace the defective item in connection with the repair of the damage caused by the defective condition, the plaintiff is not entitled also to recover the purchase price of the defective thing. See Fox v. American Steel Building Company, Inc., 299 So.2d 364 (La.App. 3rd Cir. 1974); Bu senlener v. Peck, 316 So.2d 27 (La.App. 1st Cir. 1975). Since the money damages awarded for demolition and reconstruction of the roofs of the chicken houses takes into account the cost of replacing the defective insulation, a return of the purchase price would result in double recovery for the cost of the insulation. The judgment appealed must be amended to delete the award to each plaintiff and each intervenor for the purchase price of the insulation as itemized by the jury.

CREDITS

Defendants further claim that they are entitled to a credit for the use of the roof and insulation up until the time of the trial, inasmuch as the chicken houses had been in operation the entire time with no loss of income. We recognize that where a plaintiff has derived benefit from the use of a product, even though it is defective, Louisiana courts have allowed the seller a credit for such use. Alexander v. Burroughs Corporation, supra. However, as the record is totally devoid of any evidence to establish the value of the benefit to the plaintiffs and intervenors by their use of this insulation, no credit can be awarded here.

THIRD PARTY CLAIM AGAINST KAISER AND MOSINEE

The jury found that neither of the third party defendants was at fault in causing the damage to plaintiffs and inter-venors, and that they were not liable for reimbursement to Panel Era or American States of any amount assessed against them in damages. American States contends that this finding is in error and that the Kaiser and Mosinee products were defective and were the sole cause of the damages. In the alternative, they argue that Kaiser’s and Mosinee’s products contributed to the defective condition of Panel Era’s product and American States should receive contribution and/or indemnification from them.

It, was shown at trial that the corrosion was caused by the chemicals in the fire-resistant paper, when they dissolved by the moisture entering the core of the Insul-Sheath. The chemicals leeched out of the paper in part through the pinholes in the aluminum foil to reach the tin on the top, and in part through nail holes in the insulation. Moisture entered the insulation material partly through the pinholes in the foil and partly through the nail holes, as well as through the exposed outer edge of the insulation.

These component parts of the insulation were furnished by Kaiser, and in turn by Mosinee, according to the direct specifications from Panel Era employees. The foil-kraft paper laminate was to conform both to written specifications and to a sample given to the Kaiser representative by the Panel Era representative. Panel Era wanted a product comparable to the sample shown to Kaiser at a comparable price. They asked for a .0003 gauge aluminum foil. There was testimony that this is such a thin gauge that pinholes cannot possibly be avoided. In any event, even if there had been no pinholes, moisture also entered the insulation via nail holes and the outer edge, so that the chemicals would have dissolved and corroded the foil and the tin anyway.

Neither of the component manufacturers provided a warning that the chemicals which imparted a fire-resistant feature were water-soluble and would corrode metal with which they came in direct contact. However, Kaiser, as the direct supplier of Panel Era, was only aware that the end product was to be used in double-walled construction where there would be no direct contact with any type of metal. This, then, was the normal and intended use for which Kaiser furnished its foil-kraft paper product. The insulation has never produced any problem when used in such construction, even in metal buildings. Thus, it may be said that the foil-kraft paper laminate was safe and suitable for the use intended by Kaiser.

Moreover, the ultimate responsibility for determining whether the end product or its components will be safe and suitable for the purpose for which it is finally sold lies with the finished product manufacturer. He is held to a duty of reasonable care in selection of components, which is something more than mere inspection. His technical knowledge should be sufficient to enable him to select material, the use of which will secure a safe finished product. He should use reasonable care to ascertain the material out of which the other manufacturer’s part is made and the plan under which it is made, and have sufficient technical knowledge to form a reasonably accurate judgment as to whether these are such as to secure a safe finished product. See Restatement of Torts, 2d, Sec. 395. Considering all of the foregoing, we find no manifest error in the jury’s holding that the principal defendants are not entitled to contribution or indemnity from Kaiser or Mosi-nee.

PLAINTIFFS’ LETTER OF ADMISSION

Defendants-appellants also attempted at trial to introduce a letter, written by counsel for the plaintiffs to counsel for Panel Era, as an admission by one of the parties. The text of the letter informed the appellants’ attorney of the developments in the case from the beginning up to the time he became involved therein. It also contained counsel’s representation as to the amount of actual damages sustained by his clients and his legal opinion as to which parties should be ultimately liable. American States contends that the trial court’s refusal to admit the letter was error, since it constitutes an admission on behalf of the attorney’s clients. The trial court found that the letter was prejudicial, by reason of the many strong opinions contained therein, and confusing to the jury, because of the numerous party defendants involved in the suit at that point, which were subsequently released before the trial. We find, for the same reasons as expressed by the trial judge, that exclusion of this evidence was proper under the circumstances.

EXPERT WITNESS FEES

American States also argues that the expert witness fees assessed by the trial court are excessive. In light of the evidence in the record as to the expertise of each witness, and the time spent by each on the case, we find no abuse of discretion by the trial court in its awards.

ATTORNEYS’ FEES

The next issue concerns attorney’s fees. In Philippe v. Browning Arms Co., 395 So.2d 310 (La.1980), our Supreme Court held the purchaser of a defective product is entitled to both damages and attorney’s fees from the manufacturer. On rehearing, the court states:

“The manufacturer of products introduced into commerce has the obligation to produce a product which is reasonably safe for its intended use. Weber v. Fidelity & Cas. Ins. Co., 259 La. 599, 250 So.2d 754 (1971). Breach of this obligation gives rise to a cause of action in favor of the purchaser of the product not only to demand the return of the purchase price, but also, because the manufacturer is presumed to know of defects in its products, to demand all damages caused by the defect and reasonable attorney’s fees. C.C. art. 2545; Rey v. Cuccia, 298 So.2d 840 (La.1974).

Plaintiffs and intervenors have answered the appeal to request an increase in attorneys’ fees for services rendered on appeal. In view of the extreme length of the record, the complexity and variation of the issues, and the relative difficulty of the case as a whole, we find that additional awards are warranted in the amount of $1,000 for plaintiffs and $1,000 for intervenors.

For the reasons assigned, the judgment appealed is amended to delete the awards to each plaintiff and to each intervenor for return of the purchase price of the insulation, itemized in the jury verdict as follows:

“Cheryl Broadway $ 5,365.44
William F. Carter $ 5,786.73
James Clayton Manasco $ 7,335.93
Bruce Champion, Jr. $ 14,209.94
Kenneth Colston $ 12,874.41
Dewayne Dillard $ 9,602.61
Jack Dockens $ 6,437.21
Benny Funderburk $ 7,417.48
Kenneth Funderburk $ 7,104.97
Danny C. Hall $ 3,549.41
Larry L. Lambert $ 6,437.21
William Liles, Jr. $ 3,218.60
Sidney Lucius $ 7,136.53
Maurice Martinez $ 7,104.97
Crawford Mitchell $ 11,528.88
Richard B. Olive $ 22,803.58
Steve Rains $ 7,104.97
Robert C. Rachal $ 7,335.93
Charles Spears $ 9,689.46
Robert Strahan $ 7,545.10
J. A. Gibson $ 18,254.74
Edward Gibson $ 18,254.74 ”

The judgment is also amended to increase the awards of attorneys’ fees in the amount of $1,000 for plaintiffs-appellees and the amount of $1,000 for intervenors-appellees. Otherwise than as amended, the judgment appealed is affirmed at the cost of appellants.

AMENDED AND AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

The intervenors-appellees, J. A. Gibson and Edward Gibson, have filed an application for rehearing in which they point out that in our original opinion we made a clerical error in reducing the award to each intervenor by the sum of $18,254.74. Inter-venors call our attention to the fact that in the trial court the original judgment of date November 3, 1980 awarded to each of the intervenors a sum which included $18,-254.74 representing the purchase price of insulation material. This was the result of a clerical error by the jury. The total of the purchase prices of the insulation materials of both intervenors was actually the sum of $18,254.74, of which $6,134.89 was the purchase price paid by J. A. Gibson and $12,117.87 was the purchase price paid by Edward Gibson. Accordingly, the original judgment in the trial court was amended on February 2, 1981 to reduce the awards to the intervenors accordingly.

In our original opinion on appeal we erroneously used the purchase prices of the insulation materials as shown in the trial court’s original judgment instead of that shown in the amended judgment, the result being that in our original opinion the award to each of the intervenors was reduced by the sum of $18,254.74. We should have reduced the award to J. A. Gibson by only the sum of $6,134.89 and the award to Edward Gibson by only the sum of $12,117.87.

Accordingly, we hereby amend our original opinion so as to reduce the trial court award to J. A. Gibson by only the sum of $6,134.89 and to reduce the trial court award to Edward Gibson by only the sum of $12,117.87. Subject to this correction of clerical error, the application of the interve-nors for a rehearing is denied.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Elma S. BRIDGES, et ux., Plaintiffs & Appellants, v. RELIANCE INSURANCE COMPANY, Defendant & Appellee.
    No. 8460.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Rester & Van Norman, Adam L. Ortego, Lake Charles, for plaintiffs & appellants.
    Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant & appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

The plaintiffs, Ruben L. Bridges and Elma S. Bridges, filed this suit against the defendant, Reliance Insurance Company, seeking benefits under a fire insurance policy covering plaintiffs’ home. The defendant answered, alleging arson as a defense, and reconvened seeking judgment for sums paid under the insurance contract to the mortgagee of the insured. From a judgment rejecting their demand, the plaintiffs appeal. Although the district court did not rule on the reconventional demand, Reliance did not answer the appeal and makes no argument on appeal urging its reconven-tional demand.

The only issue presented on appeal is whether the trial judge erred in his factual determination that defendant proved its defense of arson.

The claims of the plaintiffs, Elma and Ruben Bridges, arise out of a fire loss which occurred on the night of Sunday, May 14, 1978, to a wood frame house located in Natchitoches, Louisiana. On the date of the loss, defendant, Reliance Insurance Company, had issued to Elam Bridges a homeowner’s policy providing coverage on the dwelling located in Natchitoches. Coverage provided was the amount of $40,000 on the dwelling, $4,000 for appurtenant structures, $20,000 for unscheduled personal property, and $8,000 in additional living expense coverage.

After the fire, defendant, Reliance Insurance Company, in cooperation with the Natchitoches Parish Fire Prevention Bureau, commenced an investigation of the fire. It was determined by the investigators that the fire was of incendiary origin. The claims of Mr. and Mrs. Bridges were denied by Reliance Insurance Company, and this suit was filed in September of 1978. On September 11, 1978, defendant Reliance Insurance Company paid to City Bank and Trust Company, the mortgage holder on the property, the sum of $36,828, representing the balance due on the mortgage.

In his written reasons, the trial judge found the following facts:

“Now moving to the central issue in the case, the court is of the opinion that a loss was sustained by the insured which loss was covered by the insurance contract and that the loss occurred during the policy period and unless the affirmative defense of intentional and deliberate arson is proven then the plaintiff must prevail. The court has no trouble whatsoever in concluding that this fire was a direct result of arson. Two expert witnesses, Captain Donald Desadier with the Natchitoches Fire Department and head of the Fire Prevention Bureau for the city of Natchitoches and Mr. Don Hicks of Conroe, Texas an employee of I.N.S., Inc., and an experienced fraud and fire investigator were both qualified as expert witnesses and both testified that in their expert opinion this was a classic example of a fire that had been set with a flama-ble liquid.
“The only matter then left for the court to decide on the defense of intentional arson is the question of whether or not MR. AND MRS. BRIDGES set the fire or contrived to have it set. The evidence is abundantly clear that Mr. and Mrs. Bridges did not set the fire because a number of witnesses testified that they were in the city of Baton Rouge spending the night with relatives on the night of the fire. The court is of the opinion, however, that Mr. and Mrs. Bridges did contrive to have the fire set because of the events which took place in the days immediately preceding the fire. The evidence before the court indicated that Mr. and Mrs. Bridges had been on an extended visit of approximately two weeks with Mrs. Bridges’ daughter in Biloxi, Mississippi. The Bridges intended to terminate this visit on the day following the fire. However, two days before the fire occurred Mrs. Bridges and her daughter from Biloxi, returned to Natchitoches for the express purpose of picking up more clothing and Mr. Bridges’ tools which they stated were needed in Biloxi. On this trip to Natchitoches on Thursday before the fire occurred on Sunday, Mrs. Bridges picked up clothing and some cherished photographs. The testimony of the witnesses does not make it absolutely clear whether the Bridges were going to return to Natchitoches on Monday for the purpose of terminating their visit or for the purpose of picking up Mr. Bridges’ automobile. However, the evidence is clear that the Bridges intended to return to Natchitoches on Monday. Despite the fact that she had been gone for two (2) weeks or more and was going to be back in Natchitoches on Monday, May 16, (Monday was actually May 15) Mrs. Bridges found it necessary to come to Natchitoches on Thursday, May 12, (Thursday was actually May 11) to pick up more clothing and certain photographs and other items which she treasured and which incidentally were irreplaceable. The court does not believe that a person on a two or three week vacation returns home on Thursday to get more clothing (and cherished photographs) when they intend to leave for home on Sunday unless they have reason to believe those items will not be present on their return. “Also of significance was the fact that a substantial loan had been secured by a mortgage on the insured residence and the plaintiffs in this action were not in a financial position to provide from current funds the debt service required on this loan. Of significance also is the fact that some thirty minutes before the fire was reported, Mrs. Bridges’ daughter, Mrs. James Simmons, and a nearby neighbor, Mr. Perkison, had seen an automobile backed up to the insured dwelling and they were of the opinion that this was the vehicle of Mr. Ronald Garrett, with whom the Bridges were staying in Biloxi. Also, there was no forced entry to the insured dwelling.”

The evidence also shows Mrs. Bridges and her husband had decided they would develop a subdivision out of the lot of ground that they owned. In order to do so, Mrs. Bridges borrowed approximately $40,000 from the City Bank and Trust Company of Natchitoches, Louisiana, and purchased Lots 12, 13 and 14 from her son, James Ronnie Simmons. Mrs. Bridges used the borrowed money to move their wood frame house from its original location on the lot to another location, in order that they might have room to construct a street for her proposed subdivision. At the time of the fire, the Bridges owed to the City Bank and Trust Company the sum of $36,868, and the note was due on September 8, 1978 in full payment. The interest on the loan was in excess of $300 per month. This note was secured by a collateral mortgage held by the City Bank and Trust Company covering the subdivision lots in question. The plaintiffs would have had to sell the property to pay the mortgage. The Bridges’ monthly income was only approximately $100 a month insurance annuity and $489 social security checks.

The Bridges had submitted their plans for the development of their subdivision to the Natchitoches Planning Commission on several occasions, and on each occasion they had been turned down. They were meeting stiff opposition from the neighborhood where they proposed to develop this subdivision, because their plan was to subdivide the acreage in small lots. It was further shown that the Bridges would need, at a minimum, an additional $80,000 to $100,000 in order to develop their subdivision.

In the recent case of Rist v. Commercial Union Insurance Company, 376 So.2d 113 (La.1979) our Supreme Court stated the applicable law as follows:

“By raising the affirmative defense of arson, the insurer has the burden of establishing, by convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. An insurer need not prove its case beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Sumrall v. Providence Washington Ins. Co., 221 La. 633, 60 So.2d 68 (1952). In addition, we stated in Sumrail:
“Proof, of course, may and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire .... Accordingly, the question presented in matters of this sort are answered by the particular facts of the controversy, [cases omitted]”

Also applicable is the rule that findings of fact by the trial judge, particularly those involving credibility of witnesses, will not be disturbed on appeal unless manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We have carefully reviewed the record and conclude the trial judge was not clearly wrong in finding as a fact that the fire was of incendiary origin and that plaintiffs were responsible for it, even though the evidence is entirely circumstantial.

In their appellate brief, plaintiffs argue they were not in such a dire financial position that they had to commit arson. They point to the testimony of the president of City Bank and Trust Company that the mortgaged property furnished ample security for the loan, and that he had loaned money to the plaintiffs on previous occasions and found them to be honest. Plaintiffs point to the testimony of some of their other creditors to the effect that they were of good character and had good credit rating.

Plaintiffs also argue there were other white Mercury Cougar automobiles in the neighborhood similar to that owned by Ron Garrett, and, thus, the testimony that such a vehicle was in the Bridges’ driveway the night of the fire is not convincing that Garrett was actually there. Plaintiffs also argue the trial judge failed to give proper weight to testimony by Don Garrett that on the night of the fire he left Baton Rouge at approximately 6:30 p. m. and drove to Biloxi, and that Janice Simmons, Mrs. Bridges’ daughter who lived in Natchitoch-es, telephoned the Garrett home in Biloxi at about 11:00 p. m. and talked to Mrs. Garrett, who stated that her husband was asleep. The testimony of Mrs. Garrett was not introduced into evidence by either party.

Plaintiffs also attempt to explain the trip by Mrs. Bridges to Natchitoches on Thursday before the fire to obtain more clothing, valuable papers and Mr. Bridges’ tools. They argue the reasoning of the trial judge, that this was very damaging evidence against the plaintiffs, is confusing and contradictory, because the trial judge was not sure of the dates or the reason why Mrs. Bridges went to Natchitoches on Thursday.

Finally, plaintiffs argue there is another reasonable hypothesis than that plaintiffs committed arson. They say the neighbors who lived near their proposed subdivision strongly opposed the plan for small lots, and that it could have been one of the neighbors who set the fire, motivated by a desire to prevent the subdivision.

Our answer to all of these arguments by plaintiffs is that the trial judge saw and heard the witnesses and weighed their credibility and found as a fact that plaintiffs committed arson. We do not find the trial judge was clearly wrong.

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

AFFIRMED.


author: FORET, Judge.

text:
    PHILIP WHITE PLUMBING COMPANY, INC., Plaintiff-Appellee, v. BARICEV/WAGUESPACK, LTD., et al., Defendants-Appellants.
    No. 8473.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Seidel & Bailey, Fred K. Bailey, Lafayette, for defendants-appellants.
    William H. Lambert, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

Philip White Plumbing Company, Inc. (plaintiff) brought this action to enforce a labor and materialman’s lien and to collect certain amounts due on open account. O.S. South Louisiana, Inc. and Baricev/Wagues-pack, Ltd. were named defendants.

The trial court rendered judgment in favor of plaintiff upon confirmation of a default judgment. Plaintiff obtained the default judgment when defendants failed to answer its petition, within the time prescribed by law, after having been properly served with it and cited to appear.

Defendant, Baricev/Waguespack, Ltd., brings this suspensive appeal from the judgment rendered against it and raises the sole issue of whether or not plaintiff has carried its burden of proof necessary to confirm a judgment of default.

FACTS

Plaintiff instituted this action on February 3, 1981, alleging that defendants were indebted to it for building materials and labor it delivered to a construction site in Lafayette. Apparently, O.S. South Louisiana, Inc. had entered into an agreement with Baricev/Waguespack, Ltd. for the construction of a commercial building at the site. Plaintiff alleged that defendants were indebted to it in the sum of $8,931.00 for the materials and labor supplied and for 25% attorney’s fees. Plaintiff further alleged that defendant, Baricev/Waguespack, Ltd. was indebted to it in the sum of $1,545.00 for building materials, plumbing labor and a water meter tap permit furnished it by plaintiff. These items were apparently delivered to the same construction site. Plaintiff recorded a notice of lis pendens describing the property at the site.

The record shows that personal service and citation was made on agents of the defendants. Plaintiff obtained a preliminary default judgment on March 13, 1981. Confirmation of the default judgment was rendered on March 19, 1981.

PLAINTIFF’S BURDEN OF PROOF

Defendant contends that plaintiff failed to meet its burden of proof necessary to confirm a judgment by default. We agree.

LSA-C.C.P. Article 1702 provides:
“Art. 1702. Confirmation of default judgment
A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. Amended by Acts 1968, No. 88, § 1.”

The record contains no itemized statement of account showing what, or when, building materials and labor were supplied to defendant, Baricev/Waguespack, Ltd. It also contains no affidavit or testimony, or any evidence whatsoever, with respect to the correctness of such an account. We find that plaintiff has fallen far short of establishing a prima facie case against Bari-cev/Waguespack, Ltd.

In order to obtain reversal of a default judgment appealed from, or to obtain a remand, defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is correct. Succession of Rock v. Allstate Life Insurance Co., 340 So.2d 1325 (La.1976); Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972). However, this presumption does not exist where the record contains a note of the evidence introduced or a transcript of the proceedings in the trial court. Acme Poster Advertising Company v. State, Through Department of Highways, 352 So.2d 397 (La.App. 3 Cir. 1977); Guillory v. Deshotels, 254 So.2d 505 (La.App. 3 Cir. 1971); Schueler v. Schueler, 362 So.2d 1146 (La.App. 2 Cir. 1978).

The record before us apparently contains a complete transcript of the confirmation proceedings. Thus, there is no presumption that the trial court’s judgment, rendered in the action before us, was based upon sufficient evidence and that it is correct. The transcript shows that plaintiff’s counsel stated to the trial court that a document was attached to the petition showing there is an unpaid balance on open account in the sum of $1,545.00 owed to it by Baricev/Waguespack, Ltd. This document is nowhere in the record. In any event, an itemized statement of account without an affidavit or testimony attesting to its correctness provides an insufficient basis upon which to confirm a judgment by default.

For the above and foregoing reasons, that portion of the trial court’s judgment rendered in favor of plaintiff and against Bari-cev/Waguespack, Ltd. is reversed and set aside and the case is remanded for further proceedings in accordance with law.

All costs of this appeal are assessed equally against plaintiff-appellee and defendant-appellant, Baricev/W aguespack, Ltd. Assessment of costs in the trial court shall await final disposition of this matter.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Defendant, O.S. South Louisiana, Inc. has failed to perfect an appeal from the trial court’s judgment. Thus, the judgment is final as to it.


text:
    Earl H. GUIDRY, et al., Plaintiffs-Appellants, v. Lionel PRIMEAUX, et al., Defendants-Appellees.
    No. 8492.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Offices of Charles N. Wooten, Keith A. Rodriguez, Lafayette, for plaintiffs-appellants.
    Patrick L. Colomb, Lafayette, for defendants-appellees.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

Earl Guidry, Sr. and his wife, Ethel Web-ber, and Robert P. Brenham and his wife, Julie Guidry (Plaintiffs), appeal from a judgment of the trial court denying their motion for a preliminary injunction. Plaintiffs sought to enforce certain building restrictions affecting the subdivision in which they reside. Lionel Primeaux and his wife, Lynn Mouton, were named defendants.

In essence, plaintiffs raise the following issue:

Whether the trial court clearly abused, or erroneously exercised, its discretion in denying plaintiffs’ motion for a preliminary injunction.

FACTS

Plaintiffs are property owners in a subdivision known as “Ridge Hollow Estates” (the subdivision) which is located in Lafayette Parish. On June 23, 1977, an act of dedication was formally passed creating this subdivision and making certain building restrictions applicable to the property encompassed within it. Among these restrictions was building restriction number 2, which provides that: “Mobile homes will not be permitted within the subdivision”.

Defendants had purchased a lot within the subdivision and on March 24,1981, they moved a mobile home onto it. They immediately removed the wheels and the axles and placed the mobile home on a permanent slab of concrete. Defendants then began to construct a wooden frame structure around the mobile home with the intention of ultimately building a two-story residence that would incorporate it within the residence.

Plaintiffs instituted this action on March 26, 1981, alleging that defendants had moved a mobile home onto their lot in violation of building restriction number 2. Plaintiffs requested the issuance of a preliminary injunction enjoining defendants and anyone acting on their behalf from: placing a mobile home on defendants’ property and/or allowing a mobile home to remain on that property; or, doing any work on the mobile home or on the property in an attempt to convert the mobile home to a permanent structure; and, ordering defendants to immediately remove the mobile home placed on their lot. Plaintiffs also sought to ultimately have a permanent injunction issued, in the form and substance of the preliminary injunction. On the trial of the rule for a preliminary injunction, the trial court denied plaintiffs’ demand for the preliminary injunction, but reserved plaintiffs’ right to pursue a permanent injunction at the trial on the merits.

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs contend that the trial court abused its discretion in denying their motion for a preliminary injunction. They argue that the trial court erroneously considered such factors as the expense that would be incurred by defendants in removing the structure constructed around the mobile home and the great effort that would be required to remove it from its foundation.

The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court, although that discretion is reviewable if erroneously exercised. LSA-C.C.P. Article 3601; Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979); Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, 290 So.2d 312 (La.1974); Lamb v. Quality Inspection Services, Inc., 398 So.2d 643 (La.App. 3 Cir. 1981); Silberman v. Beaubouef, 175 So.2d 873 (La.App. 3 Cir. 1965).

Defendants stipulated that they had moved a mobile home onto their lot in the subdivision and that it remained there. Thus, they, in effect, admitted that they had violated building restriction number 2 by their actions.

LSA-C.C. Article 779 provides:

“Art. 779. Injunctive relief
Building restrictions may be enforced by mandatory and prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil Procedure.”

A preliminary injunction is a procedural device, interlocutory in nature, designed to preserve the status quo pending a trial of the issues on the merits of the case. LSA-C.C.P. Article 3601, et seq.; Haughton Elevator Division v. State of Louisiana, Through the Division of Administration, 367 So.2d 1161 (La.1979); Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, supra; Ridge Park v. Police Jury of Jefferson Parish, 27 So.2d 128 (La.1946); Smith v. West Virginia Oil & Gas Co., supra.

The main difference between a preliminary injunction and a permanent injunction is that the former may be issued through summary (rather than ordinary) proceedings and may be based upon verified pleadings or affidavits, as well as upon ordinary proof, which present a prima facie case justifying its issuance, whereas the latter requires full proof by the preponderance of the evidence at (unless waived) a full trial under ordinary proceedings. Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, supra; Haughton Elevator Division v. State of Louisiana, Through the Division of Administration, supra; Smith v. West Virginia Oil & Gas Co., supra.

The trial court’s reasoning in denying the motion for preliminary injunction that it would be inequitable and costly to the defendants has little or no relevance to the issue of whether defendants had violated and still were in violation of the building restriction. If great cost would be incurred by the defendants, this is a phenomenon which is of their own doing. Plaintiffs filed suit within hours after they detected the violation, and defendants were duly served with the petition, but yet they proceeded with great vigor and at considerable expense to, what they contend to be, a demobilization of the mobile home after the violation. In our view, to hold that this expense incurred by the defendants gives them some equity or standing to defeat the preliminary injunction is reversible error.

The record does not show to what extent, if any, that defendants proceeded to enclose the mobile home after the hearing on the preliminary injunction. However, it is quite conceivable that since the preliminary injunction was denied, that the defendants have completed the enclosure. In such a case, the refusal of the preliminary injunction preserving the status quo, by the trial court judge, may very well result in much greater expense, etc. to the defendants in the event that a permanent injunction is issued after a trial on the merits.

There is testimony in the record by the defendants that to preserve the status quo could have caused rain and weather damage to the structure. Again, this is of their own doing. However, the trial court could have issued a limited preliminary injunction by permitting the placing of a temporary roof to protect what was already there, but ordering the defendants to proceed no further pending a trial on the merits and final judgment rendered.

We find that the trial court abused its discretion in refusing to order the issuance of the preliminary injunction sought by plaintiffs. Defendants were in violation of a valid building restriction, and plaintiffs were entitled to a preliminary injunction prohibiting any further violation of that building restriction pending a full hearing on the merits for a permanent injunction.

For the above and foregoing reasons, the judgment of the trial court denying plaintiffs’ motion for a preliminary injunction is reversed. The case is remanded to the trial court with instructions to immediately order the issuance of a preliminary injunction maintaining the status quo between the parties, pending trial of plaintiffs’ demand for a permanent injunction.

All costs of this appeal are assessed against defendants-appellees. The assessment of costs in the trial court will await the final disposition of this matter.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    J. W. DELAHOUSSAYE & SONS, INC., Plaintiff-Appellant, v. Clovis J. DARDEAU, Jr., Defendant-Appellee.
    No. 8548.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Gerald C. deLaunay, Lafayette, for plaintiff-appellant.
    Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, J. W. Delahoussaye & Sons, Inc., initiated this proceeding seeking recognition of its materialman’s lien on the property of defendant, Clovis J. Dardeau, Jr., and further seeking personal judgment against him. From a judgment of the trial court dismissing his claims, plaintiff has appealed.

The sole issue presented on appeal is whether or not plaintiff’s lien was timely filed in accordance with the Private Works Act. LSA-R.S. 9:4812.

In the early part of 1978 defendant, Clovis J. Dardeau, Jr., owned and operated a small grocery store in Ville Platte, Louisiana. Around the same time he decided to build a new and larger store behind his old one, and immediately commenced work thereon. Defendant contracted out the work himself, and did not enter into or record a construction contract.

During the course of this project, the defendant hired and contracted with Charles Goudeau, d/b/a Stelly Builders, to perform a certain part of the work on the roof of the new building for the sum of $36,813.00. Charles Goudeau in turn entered into a sub-contract agreement with plaintiff to finish and install the roof deck system on the building for the sum of $9,833.00. When plaintiff was unable to secure the payment due him by Charles Goudeau for the work performed, a lien was filed herein on March 6, 1979, against the property of the defendant, and thereafter this suit for a money judgment and for recognition and enforcement of that lien was commenced.

No reasons were rendered by the trial judge for his decision, but in light of the fact the sole issue at trial, as here, was whether or not the lien was timely filed, we must conclude by his dismissal of the plaintiff’s action that he found the lien to be filed untimely. For the reasons hereinafter stated, we find the trial judge committed manifest error in failing to recognize the validity of the materialman’s lien herein.

LSA-R.S. 9:4812 provides:

“When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, the owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. (Emphasis added).
* * * »

Pursuant to the cited provision, and since no affidavit of completion was ever filed, the time period for filing the lien in this case did not expire until sixty (60) days after the date of the last delivery of materials, last furnishing of services, or the last performance of labor on the new store. Since the lien herein was recorded on March 6, 1979, it is clear that plaintiff’s lien was timely filed if the last date of delivery of materials, furnishing of services, or performance of labor was January 5, 1979, or later.

Without dispute two significant occurrences relative to the completion of the new store took place after January 5,1979. The old store was razed, and in its place a parking lot was constructed to accommodate the new one; and installation of the refrigeration equipment was completed, i.e., charging the system, checking for defects, and setting the controls.

The defendant candidly admitted at trial and in deposition that the razing of the old store and the construction of the parking lot in its place was an integral part of the construction of the new store as originally envisioned. We find that the construction of this parking area alone represents delivery of equipment and/or performance of labor within the meaning of LSA R.S. 9:4812, supra, and as such, the time delays for filing plaintiff’s lien did not begin to run until after its completion in late January or early February of 1979. McGill Corporation v. Dolese Concrete Company, 201 So.2d 125 (La.App. 1st Cir. 1967); Albert K. Newlin, Inc. v. Weingarten’s Markets Real ty Company, 253 So.2d 594 (La.App. 3rd Cir. 1971). Accordingly, plaintiffs lien filed on March 6, 1979, was timely.

Although we find that the building of the parking lot in and of itself shows that the new store project was still under construction in late January or early February of 1979, our position, recognizing the timeliness of plaintiffs lien, is further bolstered by the record which clearly indicates that completion of the refrigeration system in the new store did not take place until some time after January 5,1979. The installer of the refrigeration system, Sherman Roberts, testified that part of the overall job on any installation project includes charging and testing the system upon completion, which cannot begin until after the electricity is connected. Mr. Roberts further testified that he spent at least two days setting the controls, testing the newly installed equipment, and charging the refrigeration system. According to Mr. Roberts, this testing and charging of the refrigeration system is not touch up or repair work as defendant contends, but rather this last check is considered as the final stage of the completion of the system as a whole. Mrs. Melba Brou, a Central Louisiana Electrical Company representative, testified that the electricity at the new store was not connected until January 5,1979. Therefore services continued to be rendered and labor performed in completion of the refrigeration system beyond January 5,1979, and for these reasons as well as those stated above, the time delays for filing the labor and material-man’s lien had not run by the time plaintiff’s lien was filed.

Additionally, plaintiff contends that the time delays for filing his lien did not begin to run until after the completion of a compressor shed in middle to late January of 1979. At a glance it appears that plaintiff’s contention is probably correct, but inasmuch as we have concluded that both the construction of the parking lot and the completion of the refrigeration system occurred less than sixty days prior to the filing of plaintiff’s lien, we see no reason for further elaboration.

For the above and foregoing reasons the judgment of the district court is reversed, and it is hereby Ordered, Adjudged, and Decreed that there be judgment in favor of plaintiff, J. W. Delahoussaye & Sons, Inc., and against defendant, Clovis J. Dardeau, Jr., in the sum of Nine Thousand, Eight Hundred Thirty-three and no/100 ($9,833.00) Dollars, plus the additional sum of Fifty-five and no/100 ($55.00) Dollars for costs incurred in the recordation of the privilege, with seven percent (7%) per an-num interest on said sums from March 6, 1979, until September 12, 1980, and ten percent (10%) per annum interest thereon thereafter until paid. It is further Ordered, Adjudged, and Decreed that there be judgment recognizing the validity of plaintiff’s materialman’s lien found in the mortgage records of Evangeline Parish in Book No. 182 at page 766 on the property described as follows:

“That certain parcel of ground located in Evangeline Parish, Louisiana, and believed to be in the City of Ville Platte, being the property and improvements thereon belonging to Clovis J. Dardeau, Jr., located on North Dupre Street, and on which is located the Dardeau Grocery Store. Said property is believed to be lots one (1), two (2) and three (3) of Block No. Six (6) of J. Ellis Dupre Subdivision for the town of Ville Platte, acquired by Clovis J. Dardeau, Jr., from Douglas J. Ardoin on or about February 13, 1965 by Act Number 232745.”

All costs at trial and on appeal are to be taxed against defendant-appellee, Clovis J. Dardeau, Jr.

REVERSED AND RENDERED.

      . The record is silent as to whether Stelly Builders is a separate corporate entity or whether it merely represents the trade name employed by Charles Goudeau for his business. For the purpose of this opinion we will refer to Stelly Builders as Charles Goudeau.

      . After completion of the work on the roof of the new building Charles Goudeau was paid in full after which he filed for bankruptcy. Evidently this is the reason Charles Goudeau failed to pay plaintiff for the work performed.

      . At trial defendant testified concerning his intent to construct the parking lot from the outset as follows:
      “Q. Let’s put the house aside at the beginning. When you started this project from the very beginning it was your intention to build a new store and tear down the old store and build a parking lot where the old store was to serve the new store. Is that correct?
      A. That is correct.
      Q. This was not an idea that came after the original construction began?
      A. No sir.
      Q. Would it be fair to say that the total work including the construction of the new store, tearing down the old store, and building of this parking lot was one project? OBJECTION: BY MR. FRUGE, Counsel for Defendant:
      Your Honor, I am going to object to that question. I think that is a matter for the Court to decide and not for the witness to be able to answer.
      BY MR. deLAUNAY, Counsel for Plaintiff:
      Your Honor, I think it’s a question of fact that the witness can answer. I think he has already answered the question but I was trying to get it a little more succinctly stated.
      BY THE COURT:
      He said yes. He answered yes.

      . See LSA R.S. 9:4801.


text:
    Doyal BURRELL, et al., Plaintiffs-Appellants, v. Sandra F. KIRKPATRICK, et al., Defendants-Appellees.
    No. 8556.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Garrett & Ryland, Donald M. Garrett, and Cicardo & Rodenbeck, Eugene P. Cicar-do, Jr., Alexandria, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay, Ronald J. Fiorenza, Alexandria, for defendants-appel-lees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is a non-jury suit for property damage and personal injuries resulting from a fire which occurred on the premises of 444 Highland Drive, Pineville, Louisiana, on February 6,1979. The plaintiffs-lessees appeal from a judgment which granted defendants Sandra F. and Thomas K. Kirkpatrick’s motion to dismiss. We affirm.

The plaintiffs are Doyal and Doris Bur-rell. They rented an unfurnished apartment located at 444 Highland Drive, Pine-ville, Louisiana, from the defendant, Sandra Kirkpatrick, wife of Thomas K. Kirkpatrick, on or about November 1, 1978. The record shows that on January 2, 1979, the central heating unit in the apartment stopped functioning and was repaired by Ben 0. Squires of Air Conditioning Appliance Corporation. When the repairs were completed the heating unit was fully operational. Mr. Squires testified that the heating unit was located in the attic in the center of the apartment. On February 5, 1979, the evening before the fire occurred in the apartment, only Doris Burrell and her son Michael Burrell were present. Doyal Burrell was at work. The weather was cold with a misty rain, and, according to some witnesses, there was occasional lightning and thunder in the area. Mr. Burrell testified that no cooking had been done, nor were any kitchen appliances used that evening. Both Mrs. Burrell and her son Michael testified that around 11:00 to 11:30 P.M. that evening the lights blinked off and on momentarily, and there was a noise in the attic. Mrs. Burrell had fallen asleep on the living room floor. When she woke up and saw the apartment on fire, she got her son up from bed and they exited through the front door. The fire occurred at approximately 3:15 A.M. on February 6, 1979.

The firemen who responded to the fire found it to be severe. They fought it from the rear and the inside of the building, and remained on the scene until approximately 6:15 A.M.

Plaintiffs-appellants attempted to establish the cause or origin of the fire through the testimony of Assistant Fire Chief Lee Deville of the Pineville Fire Department, who had been a firefighter for some twenty-seven years. He testified that the fire started in the back bedroom but that he could not tell if it started up in the attic or down on the floor. Mr. Deville was not allowed to give his opinion as to the cause of the fire due to the timely objection entered and sustained. No attempt at trial was made to qualify Mr. Deville as an expert on the causes of fires. At the conclusion of the plaintiffs’ evidence, defendants’ counsel moved for a dismissal of plaintiffs’ suit under the provisions of La.C.C.P. Art. 1810(B), on the basis that plaintiffs failed to prove facts that would warrant recovery. The whole of that statute reads as follows:

“Art. 1810. Directed verdicts; motion to dismiss at close of plaintiff’s evidence
A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

The trial court granted the Motion, and the issue before us is whether the trial judge erred in so doing.

According to the provisions of La.C. C.P. Art. 1810, in a non-jury action, after the plaintiff has completed the presentation of his evidence, any party may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. Trial judges have much discretion in determining whether a motion for a directed verdict should be granted. Broussard v. Missouri Pacific Railroad Company, 376 So.2d 532 (La.App. 3rd Cir. 1979).

In determining whether the plaintiff has shown a right to relief in the instant case, we must consider whether the trial judge erred in refusing to allow Assistant Fire Chief Deville to testify as an expert witness as to the cause of this fire. Discretion in qualifying experts rests with the trial court and absent an abuse of that discretion, the court’s ruling will not be disturbed. Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir. 1981).

We observe however from the evidence that regardless of whether the Assistant Chief should have been allowed to testify as an expert witness, the plaintiffs have not shown their right to relief because they have not met their burden of proof. The Louisiana Supreme Court in Latham v. Aetna Casualty & Surety Company, 377 So.2d 350 (La.1979) summarized the plaintiff’s burden of proof in an action to recover damages from his lessor under La.C.C.P. Art. 2695, as follows:

“Under this article, the occurrence of an accident or fire on leased premises does not give rise to a presumption that a defect in the premises caused the accident or fire. In order for a lessee to recover damages from his lessor because of an alleged defect, vice or condition in the leased premises, the burden rests upon the lessee to prove by a preponderance of the evidence that a defect existed and that the defect caused the damages.” (Citations omitted).

In Hartford Fire Insurance Company v. Maytag Company, 374 So.2d 1269 (La.App. 3rd Cir. 1979), even though it was conceded that the fire originated in the clothes dryer alleged to be defective, this court held that a defect was not proved, nor was causation proved, and therefore plaintiff’s suit was dismissed.

The trial court did not err in granting the motion to dismiss because the plaintiffs showed no right to relief.

The plaintiffs, Doyal and Doris Burrell, contend that the trial court erred in refusing to allow the firefighter, Assistant Chief Lee Deville, to testify as an expert witness as to the cause of the fire. Mr. Deville had 27 years experience as a fireman. It is not always necessary to have formal training or education to qualify as an expert in a particular field, and experience alone may be sufficient to so qualify. However, no evidence was introduced at trial to prove Mr. Deville’s competence as an expert in determining the causes of fires. A firefighter with many years experience is not necessarily an expert on the causes of fires. If he actually is, it would be a relatively simple task to lay the proper foundation to so prove. Here, no effort was made to qualify Mr. Deville as such an expert at trial. It was therefore not an abuse of discretion for the trial court to refuse to allow Mr. Deville to testify as to the cause of the fire in question.

Even if Mr. Deville’s opinion testimony would have been allowed, the plaintiffs’ evidence would have still remained insufficient to meet their burden of proof in this action. If the plaintiffs had proved the fire originated in the heating unit, it would have still been insufficient to support their claim. As illustrated by our decision in Hartford Fire Insurance Company v. Maytag Company, supra, where the origin of the fire was not disputed on appeal, the existence of a defect and causation must also be proved. Doyal and Doris Burrell failed to prove that a defect existed and that the defect caused the damages. They did not prove that the cause of the fire was more probable than not a defect , for which the defendants as lessors were responsible. For example, the possibility that the fire was caused by light-mng was not eliminated by the evidence. Neither was the possibility that the blaze was caused by a faulty appliance or by the fault of the plaintiffs. The only evidence designed to indicate that the heating unit caused the fire was the testimony by the plaintiffs which is suggestive and speculative at best. Mrs. Burrell and her son testified that the evening before the fire the lights blinked off and on momentarily and there was a noise in the attic. The repairman, Ben Squires had stated at trial that the heating unit was located in the attic. However, there was no other evidence adduced that this incident linked the heating unit to the fire. Additionally, it is possible that the lightning of the rainy evening caused the lights to flicker and the noise in the attic, and also later caused the fire early the next morning.

It is therefore evident that the plaintiffs did not prove that the cause of the fire was more probable than not a defect in the premises. Thus, the trial court did not err in granting the defendants’ motion to dismiss. It was not an abuse of discretion to decide that the plaintiffs had not shown their right to relief.

For the above and foregoing reasons, the trial court’s judgment is affirmed and all costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . Two other defendants, Sentry Insurance Company and Air Conditioning Appliance Corporation were dismissed from this suit prior to trial due to an amicable settlement with plaintiffs.

      . In considering a motion to dismiss in a non-jury trial, under La.C.C.P. Art. 1810(B), the preponderance of evidence standard applies. Sevin v. Shape Spa For Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980); Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir. 1981). This standard is different than that for a motion for a directed verdict under La.C.C.P. Art. 1810(A) in a jury trial as set out in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979). See also Breithaupt v. Sellers, 390 So.2d 870 (La.1980).


author: LABORDE, Judge.

text:
    Michael Scott HALE, Plaintiff-Appellee, v. COURTNEY EQUIPMENT COMPANY OF ALEXANDRIA, INC., et al., Defendants-Appellants.
    No. 8566.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Gist, Methvin, Hughes & Munsterman, Victor H. Sooter, Alexandria, for defendants-appellants.
    Stafford, Stewart & Potter, Russell L. Potter, Gold, Little, Simon, Weems & Bruser, Larry Feldman, Jr., Alexandria, for defendants-appellees.
    Führer & Flournoy, George A. Flournoy, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

This is a workmen’s compensation suit. The plaintiff, Michael Scott Hale, injured his back while in the course and scope of his employment with Courtney Equipment Company of Alexandria, Inc. (Courtney). Seeking benefits, medical expenses, penalties and attorney’s fees, plaintiff sued Courtney and Courtney’s workmen’s compensation carrier, North-West Insurance Company (North-West).. Courtney and North-West filed third party claims against plaintiff’s subsequent employers, T. L. James and Company, Inc. (T. L. James) and McAdams Barbeque Restaurants, Inc. (McAdams), seeking contribution from them.

The trial court rendered judgment in favor of plaintiff and against Courtney and North-West for total and permanent disability benefits, medical expenses, penalties and attorney’s fees. The trial court dismissed defendants’ third-party demands against T. L. James and McAdams. Defendants, Courtney and North-West, appeal. We affirm.

It is undisputed that plaintiff, Michael Scott Hale, sustained a back injury on April 15, 1980, during the course and scope of his employment with Courtney. He notified his employer on the day of the accident and was sent to Dr. Daniel Kingsley. Mr. Hale was hospitalized for three days and placed in traction for an acute lumbosacral strain. Dr. Kingsley’s examination revealed that plaintiff was in such a degree of pain that he was unable to stand straight. He recommended plaintiff only perform light duty work.

Mr. Hale had continued complaints and was next examined by Dr. Donovan Perdue on May 2, 1980. Dr. Perdue prescribed muscle relaxers and bed rest. Plaintiff was then treated by Dr. John T. Weiss, an orthopedic surgeon. The first visit was on August 12, 1980. Dr. Weiss’ opinion was that Mr. Hale had a moderate amount of pain with probable disc pathology, either a bulge or herniation. Dr. Weiss later examined him on August 19, August 26, and November 14 of 1980, each time recommending hospitalization. However, in each instance the plaintiff declined hospitalization because he could not afford to pay for it, nor could he afford to miss work. On the November 14th visit, Dr. Weiss diagnosed a rather marked bulge or a rupture of a disc. Plaintiff had a mylogram on January 21, 1981, and a laminectomy on January 23, 1981.

After the accident, Mr. Hale returned to work for Courtney. On May 5, 1980, Mr. Hale quit his job with Courtney to work as an oiler with T. L. James. This job paid more and the duties were lighter. Because of the pain and on the advice of Dr. Weiss, plaintiff quit this job as an oiler on August 17, 1980. Mr. Hale was then employed by McAdams as a manager trainee from September, 1980, through December, 1980, when the restaurant closed. He has been unemployed since that time.

Demand for weekly compensation benefits was made on August 21, 1980. Subsequent to the demands, however, defendants refused to pay plaintiff any benefits. Plaintiff received his first benefits on January 21, 1981, in the amount of $3,404.00. On March 11, 1981, plaintiff received benefits in the amount of $1,332.00 and another check payable to Rapides General Hospital for $2,471.75.

The trial court found the plaintiff totally and permanently disabled as of the date of trial and found the defendants liable for penalties and attorney’s fees, awarding attorney’s fees of $5,000. It also dismissed the third-party demands against T. L. James and McAdams.

The defendants contend on appeal that the trial court erred in three respects; (1) in dismissing the third party demands of Courtney, (2) in awarding plaintiff penalties and attorney’s fees, and (3) in setting the attorney’s fee at $5,000.

LSA-R.S. 23:1031 provides that if an employee receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation as provided in the workmen’s compensation statutes. (Emphasis ours.) The trial court ordered Courtney’s third party claims against plaintiff’s subsequent employers dismissed because there was no showing of an “accident” involving plaintiff during either of these later employments.

The facts in the record clearly support the trial court’s dismissal of the third party claims on the basis of insufficient proof of an “accident”. No evidence was presented that any second accident or incident occurred during plaintiff’s employment with T. L. James or McAdams. Without such evidence, there is no basis to hold either of these two subsequent employers liable. The trial court did not err in dismissing the third party demands.

Defendants next contend that it was error to award penalties and attorney’s fees and alternatively that the attorney’s fee awarded was excessive.

It is undisputed that a disabling accident occurred while plaintiff was within the course and scope of his employment with Courtney. On August 22, 1980, plaintiff’s attorney sent a letter to Courtney’s compensation carrier demanding weekly compensation payments, payment of medical expenses incurred to date, and reimbursement of travel expenses. Enclosed was a medical report from plaintiff’s treating physician, Dr. Weiss, which clearly showed plaintiff’s disability was causally related to his accident while employed by Courtney. Notwithstanding this August 22, 1980, letter, plaintiff did not receive any weekly compensation benefits until January 21, 1981, when a draft of $3,404.00 was sent covering the period of August 4, 1980, through January 10, 1980. A second draft for $1,332.00 covering the period of January 11, 1981, through March 14, 1981, was received on March 11, 1981. At trial, no satisfactory explanation was offered as to why these benefits were not timely payed. We conclude such action was arbitrary, capricious, and without probable cause under LSA-R.S. 23:1201.2 and as a result, penalties and attorney’s fees were properly assessed.

Equally without merit is defendants’ contention that the award of $5,000.00 for attorney’s fees was excessive.

The attorney’s fee awarded plaintiff was well within the discretion of the trial court. Cullivan v. Fish Engineering and Construction Company, Inc., 354 So.2d 597 (La.App. 3rd Cir. 1977). Such an award for similar cases requiring approximately the same degree of skill and volume of work by the prosecuting attorneys has been upheld as reasonable. DeVillier v. Highlands Insurance Company, 389 So.2d 1133 (La.App. 3rd Cir. 1980) and Moreau v. Houston General Ins. Co., 386 So.2d 151 (La.App. 3rd Cir. 1980).

For the above and foregoing reasons, the trial court’s decision is affirmed and all costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

      . In his original petition, plaintiff incorrectly named as defendants Courtney Construction Company of Alexandria, Inc. and Mid-Continent Underwriters, Inc. By a supplemental and amending petition, the correct names, appearing above, were substituted.