author: STOKER, Judge.

text:
    William T. WALLER et al., v. FARMLAND INDUSTRIES, INC. et al.
    No. 7843.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.

      Kramer & Laird, Bernard Kramer, Alexandria, for plaintiffs-appellants.
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellees.
    Before FORET, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This is a personal injury suit brought by two pipe fitter-welders against Farmland Industries, Inc., (Farmland) and its employee Jewell Jackson. Farmland is a fertilizer manufacturer. The injuries causing the damages for which plaintiffs seek recovery occurred at a fertilizer plant owned by Farmland which was nearing completion at Pollock in Grant Parish, Louisiana. Plaintiffs William T. Waller and Donald Jones were construction workers for a company sometimes referred to as Pullman-Kellogg Contracting Company and also at times as M. W. Kellogg Company, a division of Pullman, Inc. Plaintiffs were injured in an accident which occurred on March 19, 1977, while attempting to remove an obstruction referred to as a “blind” in a ten inch pipeline which was a part of the plant facility.

Plaintiffs have pled that Farmland is liable to them for the damages sustained by them in the explosion on the grounds of strict liability and negligence.

The first line of defense adopted by Farmland and Jewell T. Jackson is that the petition fails to set forth a cause of action against them. Plaintiffs were employees of M. W. Kellogg Company (hereinafter referred to as Pullman-Kellogg). Pullman-Kellogg designed the fertilizer plant and constructed it. The plant was being turned over to Farmland in stages as portions of the plant were completed. The area of the plant where the explosion and subsequent fire occurred had been tendered by Pullman-Kellogg to Farmland as completed and start-up-operations had actually been commenced by Farmland át the time of the explosion. In the process of the start-up an obstruction was discovered by Farmland officials or employees. Pullman-Kellogg was requested to remove the blind causing the obstruction. Plaintiffs as employees of Pullman-Kellogg were involved in opening a flange in the ten inch pipe referred to above. The explosion and fire occurred when a welding torch or cutting torch was used in an attempt to remove a bolt on the flange.

Under the circumstances related above, Pullman-Kellogg and Jewell T. Jackson filed a peremptory exception of “no right or cause of action”. The exception was grounded on the allegation that a contract for the work in question existed between Farmland and Pullman-Kellogg and that a relationship of principal-contractor existed between them. Further, they urge that the work contracted by Farmland to Pullman-Kellogg was a normal and integral part of the trade, business and occupation of Farmland. Therefore, it was alleged by excep-tors that Farmland was a “principal” in the meaning of LSA-R.S. 23:1032 and LSA-R.S. 23:1061 and that plaintiffs were the statutory employees of Farmland with all rights against Farmland governed by the workmen’s compensation law of this state. Therefore, it is urged that plaintiffs’ exclusive remedy against Farmland would be in workmen's compensation, thus barring any action in tort by them against Farmland. It is alleged that Jackson was at all times an employee of Farmland within the meaning of LSA-R.S. 23:1032 and that he is immune from civil suit. Through joint stipulation of the parties, filed in the record it was stipulated that the court’s ruling on the peremptory exception should be referred to the merits of the case and tried as a part of the merits. Hence, the defense of exclusiveness of remedy under the workmen’s compensation law is an issue in this case.

Farmland and Jewell Jackson filed án answer denying any negligence on their part in which they reiterated the defense of exclusiveness of remedy. The defendants set up the special defenses of contributory negligence on the part of the plaintiffs and also the defense of assumption of the risk.

The trial judge found that the explosion did not occur as a result of the negligence of Farmland or Jackson. It rendered judgment against the plaintiffs rejecting their demands. In this appeal the plaintiffs-appellants specify the following errors on the part of the trial court:

(1) Failure to specifically overrule the exception of exclusiveness of remedy.

(2) Finding that Farmland was not guilty of negligence under Article 2315 of the Louisiana Civil Code.

(3) Treating the case solely as one of negligence under Article 2315 of the Louisiana Civil Code instead of a case to be considered as governed by Article 2317 of the Louisiana Civil Code.

Before us the defendants-appellees, Farmland and Jackson, contend that the trial court was correct in finding no negligence on their part. Alternatively, they contend that their defenses of contributory negligence and alternatively assumption of the risk are good defenses. Specifically the defendants-appellees contend with respect to LSA-C.C. art. 2317 that the plaintiffs failed to prove a vice or defect in the design of construction of the plant. The reliance of the plaintiffs-appellants on LSA-C.C. art. 2317 focuses on the interpretation of that article of the Civil Code as announced in Loescher v. Parr, 324 So.2d 441 (La.1975). The defense of lack of vice or defect in the design of construction of the plant is predicated on the necessity for such before liability may be imposed under Article 2317 of the Civil Code. As additional defenses to liability under Article 2317 defendants-ap-pellees contend that the accident resulted from the fault of a . third person, namely Alan Lasher. Finally, as above observed, the exclusiveness of remedy defense is still part of this appeal.

FACTS

The Farmland plant where the accident in question took place was designed and was being built by Pullman-Kellogg. Farmland has numerous other plants at various other locations. This particular plant was designed to produce anhydrous ammonia which is used as a fertilizer in growing agricultural crops. Various portions or sections of the plant were turned over to Farmland by Pullman-Kellogg as completed. The particular area in question had just been completed but was not producing ammonia at the time of the accident. This area had been tendered by Pullman-Kellogg to Farmland for acceptance on March 19, 1977. Farmland was beginning what was referred to as “start-up” operations. This merely means that Farmland with the assistance of a special group of Pullman-Kellogg people commenced operation of this portion of the plant. The Pullman-Kellogg people who assisted in the start-up operation were apparently referred to by some as “commission men” meaning that they were there to assist in putting this portion of the plant in operation as distinguished from those Pullman-Kellogg people who were involved in construction. These commission men were assisting in putting this portion of the plant into “commission”.

The defendant Jewell Jackson as an employee of Farmland had the classification of Daylight Supervisor. He had various duties but basically he was a go-between between shift supervisors and the operations superintendent of the plant. One of his duties was to coordinate between the supervision of Farmland and the supervision of Pullman-Kellogg. In other words, he functioned in a liaison capacity. Jackson’s immediate supervisor was Sidney H. Sander-son. Sidney Sanderson bore the title of Operations Superintendent for Farmland. His duties included seeing that the plant was successfully started up. On the morning in question Jackson reported to Sander-son that he had discovered a blind in a flow pipe which required removal before the new part of the plant being put in operation would be operational. Start-up operations had already begun.

Sanderson held a discussion with his superior and it was decided that, inasmuch as the construction contract between Farmland and Pullman-Kellogg placed responsibility on the latter for removal of the blind, Pullman-Kellogg would be requested to remove the blind. Sanderson went to see one Mike Silvers and one Red Powers with Pullman-Kellogg and requested that they remove the blind. Mike Silvers was Kellogg’s resident construction manager and Red Powers was Kellogg’s chief starter operator. Silvers was the top man for Pullman-Kellogg on the job.

At this point, it is necessary to describe as nontechnically as we can the mechanics and layout of the portion of the plant’s system which bore relationship to the area where the blind had been located. For this purpose we have adapted a schematic diagram from Exhibit P-9 submitted on behalf of the plaintiffs. This schematic design is attached to this opinion as Exhibit 1 and is designated as “Schematic Design of Portion of Plant of Farmland Industries, Inc.”.

Anhydrous ammonia is manufactured from natural gas. Although we do not understand the process of manufacture in Farmland’s plant, the evidence indicates that natural gas is injected into flow pipes at a point marked “D” on the schematic design from a structure referred to as the 108D zinc oxide vessel. From point “D” the natural gas proceeds in the direction indicated by the arrow to point “C” past point “F” and finally out into the atmosphere at point “G”. As shown on the left side of the sketch at point “A” and “B” another structure is located which we understand is referred to as a shift converter consisting of a high shift and a low shift. Pipes or vent headers run from the high shift and low shift portions of the shift converter and ultimately lead to the opening to the atmosphere. The pipe or vent header for the high shift leaves at point “B”, proceeds to point “F” as indicated by the arrows on the sketch, and from point “F” proceeds on to point “G”. That steam which comes from the high shift then emits into the atmosphere at point “G”. Under normal circumstances the material or substance which is emitted by the low shift goes into the low shift vent header at point “A”, proceeds to point “C”, passes point “F” and flows on to point “G” for release into the atmosphere. The normal direction of flow from the low shift to the atmosphere (from point “A” to point “G”) is shown on Exhibit 1 by a dotted line with directional arrows and is designated as “normal direction of flow”. The blind which was discovered by Jewell Jackson is indicated by the circle between point “A” and “G” and is marked as “Blind" with an arrow pointing to it indicating “fire and explosion”.

This blind consisted of a round piece of thick steel. The purpose of such a blind is to close off a line at a particular point so that the flow is interrupted at that particular point. This blind was located, apparently, at a connection between two lines where the connection was made by a flange or flanges. A number of large bolts bolted the flanges together. In order to take out the blind it was necessary to unscrew the bolts, spread the flanges with a device referred to as a flange spreader and then remove the blind.

The request from Sanderson to remove the blind went to the Pullman-Kellogg organizational command and was transmitted to one Alan Lasher who was a start-up advisor for Pullman-Kellogg. He was asked to obtain a crew of pipe fitters to pull the blind. For this purpose he went to the general foreman of the pipe fitters. The crew was provided and included both of the plaintiffs in this case, Donald Jones and William Waller. Lasher testified that he together with Bill Vining, also a start-up advisor for Pullman-Kellogg, and two pipe fitters who were never identified then went to the area of the blind. Lasher testified that he told the two pipe fitters what was to be done and also informed them that natural gas was in the line. Thereafter Lasher’s only job was to generally “overlook the job”.

Some considerable evidence was taken on the question of whether or not defendant Jewell Jackson or any other Farmland personnel were present at this time. There is no question that Jewell Jackson was present at some time when the pipe fitter crew began their operations. Whether or not he was there at the precise moment of the explosion is in dispute. Jackson testified that - early in the morning he had checked the lines and there was no gas in the lines. Perhaps this point is immaterial because the start-up operation itself required the injection of natural gas into the system at point “D”. Also the testimony of both Alan Lasher and Sidney Sanderson is to the effect that natural gas was in the line at the time of the explosion. The fact that the explosion took place is moot testimony of the fact that some explosive material was in the line. Otherwise the explosion and fire would not have taken place.

Both of the plaintiffs in this case deny that they were ever advised that natural gas was contained within the line in which the blind was located. This particular line as indicated on Exhibit 1 was a ten inch line and was referred to as the low shift vent header. The gas in question ran from point “C” back to the point where the blind was located.

It is undisputed that gas was in the low shift vent header line. There is also no question that this fact was known by Sidney Sanderson, the Operations Superintendent of Farmland, and all of the Pullman-Kellogg people who were involved in the start-up process. The very process of starting up the plant required natural gas to be induced into the system, a fact well understood by the Farmland personnel and those involved in commissioning or starting up the plant who were employees of Pullman-Kellogg.

A great deal of testimony was taken by both sides from Jewell Jackson concerning whether he knew or did not know that gas was in the pipe at the time the efforts were begun to remove the blind. We regard this as immaterial in view of the disposition we make of the case. It should be noted, however, that the construction workers employed by Pullman-Kellogg and the so-called commission men involved in the start-up operation were involved in the entire process. As we appreciate the evidence, there would be no particular reason for the pipe fitters who were a part of the construction operation to know anything about the start-up operations and particularly that gas had been induced into the system. Despite the fact that Alan Lasher stoutly maintains that he told two pipe fitters who were part of the crew that there was gas in the line, there is no proof in the record that either of the plaintiffs knew there was gas in the line.

After having been directed to do so, the crew of pipe fitters and welders began to remove the bolts from the flanges where the blind was located. Various types of wrenches were .used in this operation. All went well until the last bolt was reached. Before this last bolt was reached a gaseous substance had begun to blow from the opening made by separating the two flanges. Jewell Jackson seems to have been present at some time when the operation of removing the blind was started, but he was of the impression that the substance was steam. His explanation is that he had checked the line in the morning and that no gas was present. Apparently the pipe fitter crew assumed that they were confronted with steam only. The steam did pose something of a problem because of its force and the possibility of being injured by the heat and force of the steam.

For some reason the last bolt did not respond to the mechanical efforts and use of the hand tools. It was then suggested that a welding torch or cutting torch be used to cut it loose. Someone made the decision to do this and the cutting torch was brought to the work site. When the welding torch was ignited, the explosion took place and a fire resulted. Both of the plaintiffs were seriously injured.

Jackson testified that he was not present when the cutting torch was brought up but was in the control room in another part of the area. Alan Lasher was present and was within ten feet of the explosion. After the explosion Jackson determined that the natural gas was coming from the 108D zinc oxide vessel by means of shutting off certain valves. Jackson also stopped the fire through this means. Jackson testified that the steam running in the pipe designated as “SP-71 vent header” was proceeding from point “B” with the eventual intention that it be emitted into the atmosphere. It is apparent that at some time prior to the time that the operations were begun to remove the blind natural gas had moved from the 108D zinc oxide vessel at point “D” to point “C” at which time it moved backwards against the normal direction of flow in the low shift vent header and towards the blind. After the flange was open there would be a release of pressure which would tend to draw out the contents from the pipe or afford an additional reason for the natural gas to move from point “C” toward the blind rather than moving out into the atmosphere.

Pertinent testimony of Jewell Jackson concerning some of these points as recorded on page 82 of the transcript is as follows:

“Q. ... the normal flow in the low shift vent header is to the atmosphere, isn’t it?
A. Yes.
Q. The natural gas that was being backed down the low shift vent header in a direction that these, this direction of flow shows, it was going backward, wasn’t it?
A. Yes.
Q. ... And that’s how the natural gas got there?
A. Yes.
Q. ... And you didn’t know that would happen until after the fire started?
A. I didn’t know there.was gas there.
Q. Did you determine what had actually happened by turning off valves and stopping the fire afterwards?
A. Yes.
Q. Who, what employees were responsible for operating the valves and maintaining the flow of any gaseous material in those lines, Farmland’s employees or Pullman-Kellogg’s employees?
A. You’re talking about the actual flow of the gases and valving?
Q. Yes.
A. Farmland.”

The explanation as to why the natural gas was in the low shift vent header, that is the area between the blind and point “C”, is reasonably clear. Steam was flowing through the SP-71 vent header proceeding from point “B”. Natural gas was flowing from the 108D zinc oxide vessel from point “D” to point “C” and then toward the blind. This was the result of steam pressure from point “F”. The tendency of the natural gas when it reached point “C” would be to seek the line of least resistance. Testimony to this effect was given to corroborate this fact. Therefore, natural gas under pressure from point “D” would proceed both to point “F” and backwards from point “C” in a direction toward the blind. For gas to proceed from point “C” “backwards” toward the blind constituted a flow contrary to the normal intended direction of flow.

It is quite evident that the blind served some temporary purpose and had apparently been forgotten when the area in question was tendered by Pullman-Kellogg to Farmland. As an obstruction in the low shift header line, the blind constituted a defect when the attempt was made to make this portion of the plant operational through the start-up efforts. Hence, the removal of the blind was referred back to the construction personnel of Pullman-Kellogg. As we have noted the plant in its entirety was designed by Pullman-Kellogg. It was also entirely constructed by Pullman-Kellogg. Irrespective of this fact, the plant had been turned over, or to use the words of the witnesses, had been tendered to Farmland. In starting up its operations, we conclude that Farmland had taken custody and control of this part of the plant. Irrespective of the fact that it had nothing to do with the design of the plant or the construction of it, it nevertheless had control and custody of the plant with a blind in place which resulted in natural gas flowing into the low shift vent header contrary to normal intentions so as to create a hazard and risk at the site of the blind when the attempt was made to remove it.

THE CONTROL ELEMENT OF ARTICLE 2317

We will pretermit the question of negligent fault on.the part of the defendants for the reason that we believe this matter may be disposed of on the basis of non-negligent fault as provided in Article 2317 of the Louisiana Civil Code. Article 2317 (LSA-C.C. art. 2317) regulates responsibility for acts of others and of things in our custody. The article provides as follows:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

As construed in Loescher v. Parr, supra, we believe that the element of guardianship, custody or control has been established in this case. Loescher v. Parr, supra, makes it clear that liability results from mere guardianship or custody of the risk-creating thing or person. It stated that the legal fault thus arising is sometimes referred to as strict liability. It is in fact fault without negligence. In discussing other articles of the Louisiana Civil Code in which this principle had already been applied, the author of the opinion set forth the following rationale for application or determination of this type of non-negligent fault:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.
The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.”

In the case before us, even if we consider that Pullman-Kellogg had guardianship, custody or control of the area where the blind was located, that is the flanges being handled and spread by the crew of pipe fitter-welders, this does not affect the liability of Farmland. It is clear that the presence of the natural gas at the site of the blind proceeded from apparatus within the control of Farmland. It had control of the natural gas; it had control of the valves or other controls which permitted the flow of the natural gas into the pipe system; it had control of the low shift vent header.

The description of the role of the so-called commission men of Pullman-Kellogg would indicate that their purpose was to advise and assist Farmland in starting up the new plant facilities. Under such an arrangement, even if it be considered that Pullman-Kellogg had joint control with Farmland, it would not alter our decision in this matter. It is our belief, however, that Farmland had control rather than divided control. Furthermore, it is immaterial that the defect built in by the leaving of the blind in place and any defects which may have existed as a result of design originated with Pullman-Kellogg. These defects were in the plant facilities over which Farmland had taken control. Regardless of who was responsible for the defect, they were under the guardianship of Farmland up to the time that the pipe fitter crew was called in. As noted previously, irrespective of how the matter of control of the area of the pipe where the blind was located is resolved, it was the system which put the gas in proximity to the flange.

VICE OR DEFECT UNDER ARTICLE 2317

Defendants vigorously contested the notion that any defect or vice as required by LSA-C.C. art. 2317 existed in this system or the facilities. We are convinced that the facts recited above and the analysis that we have gone through make it clear that such a vice or defect existed. In applying the rationale of Loescher v. Parr, supra, as it construes Article 2317 of the Louisiana Civil Code, it must be recalled that negligence factors are not at issue. A person who has “the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal act or inattention on the former’s part is proved.” Also the defendant’s “fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates an unreasonable risk of harm to others.”

Defendants urge alternatively that, if LSA-C.C. art. 2317 should apply, plaintiffs still may not recover under that article because of the specific defenses to this type of liability which have been recognized, namely victim fault and third party fault. Loescher v. Parr, supra, provides that once it is proved that a vice or defect caused damage, “the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.”

We have been able to perceive no fault on the part of plaintiffs. There is no proof that they knew of the gas in the line at the site of the flanges and the blind. Even if we accept the fact that two pipe fitter-welders were warned of the presence of gas by Alan Lasher, there is no proof that either of these two workers was William Waller or Donald Jones. In their brief defendants urge the defense in terms of contributory negligence and assumption of risk. Without deciding whether victim fault is equated with contributory negligence or assumption of risk, we do not deem either to have existed in- fact. There is no proof that plaintiffs should have known or anticipated the presence of the gas. Without knowledge of the presence of the gas we do not see how there could be an assumption of the risk.

We are of the opinion that there is no merit to the defense of third party fault. This defense rests on the argument that the accident was the fault of Pullman-Kellogg. That company designed the facility. It constructed the facility and left the blind in the pipe. Pullman-Kellogg also was in charge of removing the blind and Alan Lasher admittedly was aware of the presence of gas in the pipe. We do not believe these facts constitute a defense. In our discussion of control and custody (guardianship), we have pointed out that Farmland had assumed control of the vices and defects of the system. Assuming there may have been joint control between Farmland and Pullman-Kellogg, we do not consider that divided control would relieve Farmland of responsibility. It is our belief that the references to fault of third persons in Loescher v. Parr contemplate the exclusive fault of a third person, which means that a defendant-guardian or owner must prove the harm was caused, not by his fault in any respect, but, rather, was caused by the fault of a third person or third persons. Cf. Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978) and Rodrigue v. Dixilun Corporation, 620 F.2d 537 (Fifth Circuit, 1980). Some cases indicate that the fault of the third party need only be a substantial factor in causing harm and not the sole cause. See Kasperski v. Patterson Services, Inc., 371 So.2d 1254 (La.App. 3rd Cir. 1979), writ denied, 373 So.2d 530 (La.1979).

For the foregoing reasons we reject the special defenses to liability based on fault without negligence urged by defendant, namely that the accident was either caused by victim fault or fault of third parties.

FAULT OF JEWELL JACKSON

The foregoing discussion of liability without negligence relates solely to the liability of Farmland. The liability we find under LSA-C.C. art. 2317 cannot result in imposing liability on Jewell Jackson. He was not the owner, guardian or custodian, caretaker or person in control of the Farmland plant facility. Any liability on his part would have to be based on negligent fault. We have not found any conduct of Jewell Jackson which we deem to have been negligence. The only action of Jackson’s which we consider may have approached negligence is his assumption that the gaseous substance which blew out of the opening between the pipe flanges was steam. We find nothing in the evidence or testimony which establishes that Jackson owed a duty to know that natural gas was in the pipe line or that he owed a duty to give the pipe fitter crew any warnings. He was not present when the welding or cutting torch was brought out and did not know gas was in the line until after the explosion. Moreover, Alan Lasher of Pullman-Kellogg knew gas was in the line and we believe that he did tell two members of the crew that gas was in the line.

For these reasons we find no liability on the part of Jewell Jackson.

EXCLUSIVENESS OF REMEDY DEFENSE

No extensive discussion is required with respect to the defense that the exclusive remedy of plaintiffs was in workmen’s compensation and therefore they may not maintain this action based on tort liability. The simple and short answer to the defense is that our jurisprudence holds that construction of a new facility is not a part of the trade, business, or occupation of the concern which is to use the facilities. Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973); Tuberville v. Georgia Pacific Chemical Co., 385 So.2d 366 (La.App. 1st Cir. 1980); Boudreaux v. Boudreaux, 369 So.2d 1117 (La.App. 1st Cir. 1979); Moak v. Link-Belt Company, 229 So.2d 395 (La.App. 4th Cir. 1969); Ball v. Kaiser Aluminum & Chemical Corporation, 112 So.2d 741 (La.App. Orl. Cir. 1959). Under the circumstances it is our conclusion that the plaintiffs in this case were not the statutory employees of Farmland. Hence, the defense of exclusiveness of remedy under workmen’s compensation is not available to defendant.

For the foregoing reasons we find that the trial court was correct in rejecting plaintiffs’ demands against Jewell Jackson. As we find liability on the part of Farmland, we will reverse that portion of the trial court’s judgment which rejected recovery against that defendant and we will grant recovery against Farmland. This brings us to the assessment of the separate damages of the two plaintiffs in this case.

DAMAGES OF WILLIAM T. WALLER

At the time of the explosion and fire on March 19, 1977, plaintiff William T. Waller was on a scaffold over or about the blind about eight to ten feet above ground. The force of the blast apparently threw Waller to the concrete below. In his fall he may have hit the pipe or some other structure. He was aware of the situation after he was brought to a control room. If he was knocked unconscious, as seems likely, it was not of long duration. Waller was confined to the Rapides General Hospital for approximately ten days primarily for the treatment of severe burns about the face, head, arm and leg.

Waller also sustained injury to his right wrist and right knee. Waller complained of pain in the lumbosacral area of his back but he sustained no fractures or dislocations. Initially there was no complaint as to pain in the neck. On April 4, 1977, Dr. Cappel saw William Waller in his office. Waller was ambulatory and the burns were healing and the skin was beginning to peel. By May 2, 1977, the burns were well healed.

On March 31, 1977, Dr. Joseph Villard saw Mr. Waller. Dr. Villard is a specialist in diseases and surgery of the ears, nose, throat, face, head and neck. Dr. Villard determined that Waller was completely deaf in his left ear and had a 50% loss of hearing in his right ear. This impairment of Mr. Waller’s hearing is permanent and cannot be corrected. A hearing aid would not help the left ear. Dr. Villard did not recommend a hearing aid for the right ear because of the complicated procedure involved, although he thought an aid might help to some extent.

Dr. Cappel continued to treat Mr. Waller and saw him on April 4, 18, and 29 and on May 2 and 11, 1977. On April 18, 1977, Dr. Cappel diagnosed Waller’s injuries, other than his hearing impairment, as consisting of a contusion to the back and knee and probably a sprained wrist. These injuries were treated symptomatically through the prescription of analgesics and muscle relaxants. By April 29, 1977, Mr. Waller reported that his back was getting worse and he also complained of pain in the back part of his neck. Waller was essentially the same on May 2. On May 11,1977, Waller reported he was feeling better and was seeing Dr. John T. Weiss, an orthopedist, concerning his right knee. As the burns were well healed on May 11,1977, Dr. Cappel released Mr. Waller to Dr. Weiss as he considered his remaining problems to be of an orthopedic nature.

Dr. Cappel next saw Mr. Waller on June 15,1977, at which time Waller reported that he had been in an automobile accident on June 10, 1977. At that time Waller was driving his automobile and was struck from the rear by another vehicle driven by Duane B. Revoir belonging to Turrentine Company. William T. Waller claimed damages from his accident, principally injury to his neck, and brought a separate suit against the parties alleged to be responsible. That suit was tried before the same trial court which heard this case. Waller recovered a judgment in the suit growing out of the automobile accident, and the defendants in that suit have appealed the judgment. The appeal in that case was docketed to be heard at the same time as Mr. Waller’s suit growing out of the explosion and fire. Appeals in both suits are being decided by the same panel of this court.

The occurrence of the second accident has brought on the usual complications of deciding the effect of each accident on Mr. Waller’s physical condition, disability and well being.

A further complication in assessing Mr. Waller’s claims of back injury arising out of the March 19, 1977, accident result from a confusion between Dr. Cappel and Dr. Weiss as to which doctor was treating Waller for his back problem.

William'T. Waller saw Dr. Weiss on May 5, 1977. Dr. Cappel, who was advised of this on May 11,1977, stated that he released Mr. Waller to Dr. Weiss as his problems then were of an orthopedic nature. Mr. Waller saw Dr. Weiss after the automobile accident on June 24,1977, but led Dr. Weiss to believe that he was being followed by Dr. Cappel for his injuries sustained in the automobile accident. Hence, Dr. Weiss confined his attention on June 24, 1977, to Waller’s knee and wrist. The result was that Dr. Weiss made no assessment of any injuries Waller may have sustained in the automobile accident of June 10, 1977.

It would appear that the wrist and knee complaints of Mr. Waller were not of an incapacitating nature. In this case plaintiff William Waller claims that he is disabled from performing work as a pipe fitter because of injury to his low back or lumbar spine. It is Waller’s position, however, that either of the two 1977 accidents would have disabled him. It is his further position that insofar as this suit against Farmland is concerned, it is immaterial that he may have sustained disabling injuries in the automobile accident of June 10, 1977.

In September of 1977, William Waller returned to work as a pipe fitter and worked for Redrock Construction Company during portions of nine months. The hours worked in the various months were as follows:

1977 - September 95 hours
October - 24 hours
November 131 hours
December 124 hours
1978 - January 128 hours
. February 147V2 hours
March 134V2 hours
April 126'/2 hours
May 32 hours

At this point we will briefly review Mr. Waller’s medical history up to the point of the explosion and fire at the Farmland plant on March 19, 1977. Records of the clinic of which Dr. Weiss is a member disclosed that Mr. Waller had a history of lumbosacral and cervical spine problems dating back to 1959. Lumbar disc surgery was performed in 1959. He had very significant persisting back complaints in 1965, 1966, and 1967. Waller sought medical attention at the clinic of which Dr. Weiss was a member twice in 1965, six times in 1966 and twice in 1967. On June 4, 1971, Waller was in an automobile accident and sustained a sprain of the cervical and lumbar spine. Conservative treatment was administered. In 1971 Waller was seen or treated six times. In October of 1971 Waller complained that he could not do the climbing incident to pipe fitter work. On February 4, 1972, Waller had significant complaints and findings related to his back which he said resulted from heavy work done in Alabama.

Despite the history traced above the evidence does not disclose any treatment of William Waller for lumbosacral problems or cervical spine problems from 1972 until the explosion and fire of March 19, 1977. At that time Mr. Waller was sixty-one years old.

When Dr. Cappel began treating Mr. Waller after his March 19,1977, accident no initial complaint was made of neck pain and Dr. Cappel did not consider the pain in the low back to be significant. Moreover, the hospital stay for treatment of the burns confined Waller to bed rest and thus acted incidentally as conservative treatment for any back condition. Later on April 29, 1977, Waller mentioned having pain in his neck. Dr. Cappel states that on May 11, 1977, he released Waller to Dr. Weiss.

Dr. Cappel saw Mr. Waller after his June 10, 1977, automobile accident on June 15, 1977. Waller had initially been seen at the emergency room at the Rapides General Hospital. On June 15, 1977, Waller made no complaint of low back pain and his complaints were confined to his neck. Dr. Cap-pel continued to treat Waller for his cervical or neck injury and saw him on subsequent occasions on June 27, July 12, September 19, October 3, 19, and November 1, 1977. He saw him on February 21, 1978, and last on January 5, 1979.

On June 27, 1977, Dr. Cappel reported that Waller continued to have stiffness and pain in the posterior aspect of the neck. Waller reported that he had developed headaches in the back of his head. Dr. Cappel treated Waller symptomatically with analgesics and muscle relaxants. Waller reported headaches again on July 12, and September 9,1977. On October 3,1977, Waller reported pain in the lower portion of his back. He related that he was doing well and had been working for about three weeks. On October 19, 1977, Waller still complained of neck pain but had no back complaint. On November 1, 1977, Waller reported he was doing much better. He had been off work for about three weeks and wanted to return to work. Dr. Cappel approved the return to work. On February 21, 1978, Waller advised Dr. Cappel that he was still working but his neck still troubled him.

In Dr. Cappel’s opinion given on June 15, 1977, William Waller was disabled from performing the duties of a pipe fitter from March 19, 1977, (first accident) through the time of the second accident on June 10, 1977. At the time his deposition was taken on March 28,1979, Dr. Cappel expressed the opinion that both accidents were factors in producing disability. In his opinion Waller eventually wound up disabled, but he stated he did not know how to relate the two accidents to the disability. Both accidents contributed. Contrary to the contentions of Waller, Dr. Cappel did not testify that either accident would have resulted in disability.

Dr. John T. Weiss made an orthopedic examination when he saw William Waller on May 5, 1977. This examination was made at a time between the two accidents. On examination Waller made complaints of tenderness in the lower cervical and upper cervical spine. He had a full range of motion of the neck, but Waller complained of a popping and discomfort on extreme motion. In examining Waller’s back he exhibited some discomfort in the mid and lower lumbar region. There was a suggestion of positive straight leg raising on the right at 60 degrees. There was irritation in Waller’s right wrist and vague pain around the right knee but no effusion or instability.

X-ray examination by Dr. Weiss disclosed marginal cervical arthritic change (termed spondylitis by Dr. Weiss). Also there was some degenerative disc disease in the lower cervical spine. X-rays of the lumber spine showed some mild spondylitis and mild space narrowing at the lumbar level.

On May 5, 1977, Dr. Weiss was of the impression that William Waller had a lumbar spondylitis, or arthritic change in his lumbar spine; degenerative disc disease in the cervical spine; the right wrist would not be a serious problem and was probably only a contusion; Dr. Weiss made no further check of the knee at that time. In his deposition testimony Dr. Weiss stated he had no way of making a diagnosis as to whether Waller had sustained a lumbo-sacral sprain or any kind of soft tissue injury to the lumbar spine because he did not know what Waller’s back condition was before the explosion accident. However, from the history given him he thought it apparent that the explosion accident did aggravate Waller’s back condition. The accident history — being blown off a scaffold eight to ten feet off the ground and striking a concrete surface and piping — was compatible with aggravation of a pre-exist-ing arthritis, or spondylitis, and degenerative disc disease.

Dr. Weiss treated Waller symptomatically on May 5, 1977, and prescribed muscle relaxants and a mild analgesic as medication and use of a lumbosacral corset. On May 5, 1977, it was Dr. Weiss’ opinion that William Waller was not able to perform the duties of a pipe fitter.

On May 20, 1977, Dr. Weiss saw Waller again. The right wrist was still sore but there was no swelling. An orthogram of the knee disclosed no tears inside the knee. Repeated x-rays of the neck did not change Dr. Weiss’ opinion as to the neck. The x-rays of the cervical spine showed some degenerative disc disease but there did not appear to be any nerve root involvement. On May 20, 1977, Dr. Weiss was still of the opinion that William Waller was unable to work as a pipe fitter.

Dr. Weiss saw Waller on June 24, 1977, which was shortly after Waller’s automobile accident. Dr- Weiss states Waller told him that Dr. Cappel was treating him for his back. As a consequence Dr. Weiss confined his examination to Waller’s knee and wrist, primarily the wrist. Dr. Weiss testified that the wrist problem on June 24, 1977, would not have prevented Waller from working. Dr. Weiss declined to give an opinion as to Waller’s back on June 24, 1977, because he did not examine the back on the assumption that Dr. Cappel was treating Waller for the back. Dr. Weiss did testify that he found sufficient back pathology on June 24, 1977, to warrant treatment by an orthopedist. Apparently Dr. Weiss did not examine Waller’s cervical spine either. He had previously prescribed anti-arthritic medication — Naporosyn and Ascrip-tin A.D. — and advised him to continue with this.

As noted above William Waller returned to work in September of 1977, and worked through April of 1978 and thirty-two hours in May of 1978.

On April 11, 1978, William Waller returned to Dr. Weiss. He complained of still having soreness in the right wrist, of catching in his low back and some problem in moving around because of this. There was vague soreness and deep palpation of the mid and lower lumbar spines. X-rays showed some narrowing of spaces in the lumbar region and also moderate osteoar-thritic spurring. Waller told Dr. Weiss that working gave him trouble. At this time, April 11,1978, Dr. Weiss recommended that Waller consult Dr. John M. Patton, a neurosurgeon.

Dr. Weiss last saw Waller on January 23, 1979, but he did not treat him as he was then seeing Dr. Patton. As of January 23, 1979, Dr. Weiss was of the opinion that Waller was unable to work and that his degenerative disc disease was progressing.

In summary, Dr. Weiss declined to give any testimony concerning William Waller’s back condition following the automobile accident on June 10, 1977. He thought that the lumbar spondylitis, or arthritic change, and the condition caused by degenerative disc disease of the spine which he found on May 5, 1977, were more likely to have occurred whether or not Waller had been involved in the explosion accident. These conditions would have resulted from the natural aging process. However, Dr. Weiss testified that the severity of the condition may be hastened by trauma and Waller did state to him that the condition became a lot worse symptomatically after the explosion accident. Dr. Weiss specifically stated that he could not evaluate the “percentage involvement” of Waller’s troubles stemming from the March 1977 explosion accident and the June 1977 automobile accident because he did not examine him for injury sustained in the automobile accident.

Dr. John M. Patton gave William Waller a neurological examination on April 14, 1978. Dr. Patton was able to produce pain in Waller’s neck but there was no radiation of pain in the arms. This usually indicates that the source of the pain is in bone or ligamentous structures and that there is no nerve pressure. From x-ray film from Dr. Weiss’ office Dr. Patton noted extensive degenerative joint disease involving both the lumbar spine and cervical spine. Dr. Patton elected to treat Waller as conservatively as possible and on May 3, 1978, performed a myelogram. The myelogram test indicated that Waller had cervical and lumbar spondylosis. Dr. Patton described the results of the test by saying that “Waller had one of the most severe myelograms I have ever seen.” Every joint looked at “was affected by “very bad disease”.

Dr. Patton testified that Waller had no problems as a result of his condition except pain. The pain was being produced from so many joints that surgical relief was not practical as each joint would have to be operated on. It was apparent that Dr. Patton thought the condition was the result of the aging process. He expressed the opinion that Waller should not be doing construction work and that as of May 23, 1978, Waller was permanently disabled from doing construction work as a pipe fitter.

It was Dr. Patton’s belief that William Waller’s degenerative spine disease had developed over the years and that he had a bad lumbar and cervical spine in 1977. He emphasized, however, that he had not had access to x-ray pictures prior to March of 1977 and did not see him until April of 1978. He agreed that Waller's condition, as it probably existed prior to the explosion, predisposed him to traumatic injury. It was Dr. Patton’s opinion that in view of Waller’s probable condition and age “that Waller would eventually have the same problems he has now whether he had ever had any accident at all, however, I couldn’t deny that any accident he had could have speed-ed up the process.” Dr. Patton testified that “given a man with Mr. Waller’s degree of spondylosis, he was 61 when I first saw him [actually he was older], he probably would have been totally incapacitated within two or three years if he had never had an accident.” (Dr. Patton’s deposition, page 16) He stated he definitely agreed that any accident more probably than not accelerated the onset of Waller’s symptoms. (Dr. Patton’s deposition, pages 16 and 17) Dr. Patton further stated that it would only be a guess as to whether the speeding up of Waller’s incapacity was due to the explosion accident or the automobile accident. (Dr. Patton’s deposition, page 16)

CONCLUSION AS TO WILLIAM T. WALLER’S DISABILITY

A large part of the medical expert testimony relative to William Waller’s back and neck problem is understandably inconclusive. All three physicians who testified concerning the back considered Waller to be incapacitated from doing pipe fitter work at some point of time. There was confusion between Dr. Cappel and Dr. Weiss after the automobile accident as to which physician was following Mr. Waller’s back condition. Dr. Weiss apparently never examined Waller's cervical spine as a treating physician. Dr. Patton appears not to have had the benefit of any x-rays or history prior to March of 1977.

It is our conclusion from all the testimony that Waller was disabled as a result of the explosion which knocked him off a ten foot scaffold on March 9, 1977, at the plant of defendant, Farmland. It can hardly be denied that Waller’s body was subjected to severe trauma in that accident. The medical testimony leads us to believe that it was more probable than not that the trauma sustained from the blast of the explosion and the subsequent fall on to the pipe and concrete base below aggravated Waller’s pre-existing arthritic and degenerative disc disease. It is also our belief that, without accident, Waller would have arrived at the same state of disability within a very few years. Dr. Weiss was of the opinion that Waller was disabled both times he saw him in May of 1977. Although Waller put in substantial work time from September 1977 into May of 1978, his condition gradually worsened.

A fair and reasonable conclusion is that without the accident on March 19, 1977, Waller would have had approximately three years remaining to his work life. Since Mr. Waller was forced to cease work at approximately the end of April 1978, it would appear that his work life was shortened by approximately two years. In all likelihood, the explosion accident would have brought about this result and the trauma sustained in the automobile accident merely made eventual disability more certain.

In the year 1976 William Waller earned $26,785.00 as a pipe fitter. For eleven weeks in the months of January, February and through March 19, 1977, he earned $7,372.95 plus fringe benefits in the amount of $741.00, for a total of $8,113.95. Averaging this income to arrive at a weekly wage of $737.63 and projecting earnings for 52 weeks yields $38,356.85. On behalf of Waller it is suggested that we should make an award based on an annual income of $30,-000. Considering that Waller’s 1976 earnings were nearly $27,000 and wage increases, we consider the $30,000 to be a reasonable estimate. An annual wage of $30,000 amounts to average monthly earnings of $2,500 per month. Therefore, we will compute Waller’s wage loss as follows:

1. March 19, 1977 to May 19,
1978 (14 months at $2,500 per month) $35,000.00
Less earnings in 1977 and 1978:
Earned at Pullman-Kellogg before first injury 8,113.95
Earned at Redrock in 1977 and 1978 6,624.20 14,738,15
$20,261.85
2. Two years additional lost
earnings 60,000,00
$80,261.85

For the foregoing reasons we will award William T. Waller the sum of $80,261.85 in actual and future lost wages.

As general damages to cover all of William T. Waller’s injuries, the shock and pain and suffering experienced as a result of the injuries as well as any future pain, suffering, discomfort and limitation of physical capacity we will award the sum of $75,-000.00.

DAMAGES OF DONALD JONES

Plaintiff-appellant Donald Jones suffered injuries similar to those of his co-worker, William Waller. Jones was twenty-six years old at the time of the explosion and fire at the Farmland plant and, fortunately, he did not suffer the permanent disabling type spinal injuries Waller did. Donald Jones was the crew member who lit the torch. The explosion and fire caused Jones to sustain burns, cervical and upper low back sprain and permanently impaired hearing with ringing in his ears. The medical prognosis is that his hearing will worsen at a much earlier age than would be normal.

Donald Jones was hospitalized for one week at Rapides General Hospital where Dr. Jack T. Cappel treated him for his burns. These were first and second degree burns about the face and ears. The burns were treated with topical cream and after healing left no permanent scarring. The burns healed by April 8, 1977.

On March 29, 1977, Jones complained to Dr. Cappel of discomfort in his lower back and right shoulders. Jones consulted Dr. T. E. Banks, an orthopedic specialist, on April 25,1977. Dr. Banks diagnosed Jones’ condition as subsiding cervical and lumbar strains with no bony injury. He was disabled from working at the time. On July 5, 1977, Dr. Banks advised Jones that he could return to work. Jones was still experiencing some discomfort but suffered no limitation of motion. Dr. Banks stated that upon returning to work Jones might have a period of adjustment in which he would experience stiffness and soreness because of lack of use of his muscles during his disability. The adjustment might last a few months. Although Jones experienced discomfort because of his back and cervical injury, it apparently was not of exceptional severity.

Dr. Joseph Villard, a specialist, treated Jones with reference to his hearing. Dr. Villard found that Donald Jones had a permanent impairment of his hearing of 75% of high frequency sound and 33‘/3% of his hearing as a whole. The impairment affected both ears. In addition Jones has a permanent ringing in both ears. On May 17,1977, it was necessary for Dr. Villard to do a surgical procedure to drain fluid from one ear. In addition to the present hearing loss Dr. Villard stated that as Jones grows older his hearing will deteriorate at a much faster rate than it would normally for a man of his age.

In the eleven weeks of 1977 that Jones worked before the explosion accident, he earned an average of $630.84 per week including fringe benefits. His disability lasted from March 19,1977, until July 5,1977, a period of fifteen weeks. Assuming that his wages during that period would average $630.84, Jones’ loss of wages amounted to $9,462.60. We will award this amount as actual past loss of wages. No future wage loss is involved.

As general damages to cover all of Donald Jones’ injuries, the shock and pain and suffering experienced as a result of the injuries as well as any future pain, suffering, discomfort and limitation of physical capacity we will award the sum of $50,-000.00.

The Travelers Insurance Company, as the workmen’s compensation insurer of Pullman-Kellogg paid compensation to William T. Waller and Donald Jones. Travelers did not file a formal intervention in this case, but the parties entered into a written stipulation filed in the record covering Travelers’ rights to recover reimbursement in the event of recovery by plaintiffs against defendant, Farmland Industries, Inc. The stipulation reads as follows:

“JOINT STIPULATION
Now into Court, through undersigned counsel, come William T. Waller and Donald Jones, plaintiffs herein, through their undersigned counsel, and Farmland Industries, Inc., defendants, and who agree to stipulate as follows:
1.
At all pertinent times herein, the Travelers Insurance Company was the workmen’s compensation insurer for Pullman-Kellogg, Inc.
2.
That all pertinent times herein, Donald Jones and William Waller were employees of Pullman-Kellogg, Inc. and were working in the course and scope of their employment for Pullman-Kellogg at the time of the accident giving rise to the suit.
3.
That pursuant to its policy obligations, the Travelers Insurance Company paid to Donald Jones workmen’s compensation benefits in the amount of $10,675 and medical benefits in the amount of $1841.02.
4.
That pursuant to its policy obligations, the Travelers Insurance Company paid to William Waller as of the date of trial on October 23, 1979 and is continuing to pay weekly benefits, and on the date of the trial had paid 135 weekly benefits in the amount of $12,825, and medical benefits in the amount of $3183.36.
5.
That stipulation is entered into in lieu of an intervention by the Travelers Insurance Company by agreement of all counsel that the Travelers Insurance Company is entitled to reimbursement of workmen’s compensation benefits and medical expenses paid to Donald Jones and William Waller by the Travelers Insurance Company by preference and priority out of any judgment awarded to the plaintiffs herein, and, in the case of William Waller is entitled to credit against the future obligations for workmen’s compensation in the event a judgment is rendered against defendant in excess of workmen’s compensation benefits paid to date.”

In view of the stipulation we will recognize the rights of the Travelers Insurance Company.

DECREE

For the foregoing reasons we affirm that portion of the trial court’s judgment which dismisses the claims of plaintiffs William T. Waller and Donald P. Jones against Jewell Jackson; we also affirm that portion of the trial judgment which fixed the fees of the expert medical witnesses. We reverse that portion of the trial court’s judgment which rejects the demands of plaintiffs against Farmland Industries, Inc., and which assesses the costs of court to plaintiff.

IT IS NOW THEREFORE ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of plaintiff-appellant William T. Waller and against defendant-appellee, Farmland Industries, Inc., in the full sum of $158,445.21 together with legal interest thereon from date of judicial demand until paid and for all costs of these proceedings including the costs of this appeal, less the amount awarded in the following paragraph to the Travelers Insurance Company. .

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of Travelers Insurance Company and against Farmland Industries, Inc. in the full sum of the amount that Travelers Insurance Company has actually paid, or will actually pay prior to the date of satisfaction of this judgment, to or on behalf of William T. Waller as weekly workmen’s compensation benefits and medical expenses (which sum as of October 23, 1979 was $16,008.25), plus legal interest on the amount of each payment of such benefits which has been or will be made by the Travelers Insurance Company to William T. Waller from date of such payment until payment of the amounts awarded to this judgment, the sum to be paid the Travelers Insurance Company to be paid by preference and priority out of the award made herein to plaintiff, William T. Waller.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that such portions of the amount of the judgment herein in favor of William T. Waller which exceeds the amount which the Travelers Insurance Company is entitled to be paid shall be credited against any obligation which the Travelers Insurance Company may owe to William T. Waller for future workmen’s compensation benefits, medical expenses, or otherwise occurring after the date of the satisfaction of this judgment; all in accordance with the provisions of LSA-R.S. 23:1103.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of plaintiff-appellant Donald P. Jones and against defendant-appellee, Farmland Industries, Inc., in the full sum of $61,303.62 together with legal interest thereon from date of judicial demand until paid and for all costs of these proceedings including the costs of this appeal, less the amount awarded in the following paragraph to the Travelers Insurance Company.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of Travelers Insurance Company and against Farmland Industries, Inc., in the full sum of $12,516.02, representing payment of weekly compensation benefits and medical expenses paid by Travelers Insurance Company to Donald P. Jones, together with legal interest on the amount of each payment of such benefits from date of each such payment until paid, the payment of which sum shall be paid in preference and priority over all sums due under this judgment in favor of plaintiff-appellant, Donald P. Jones.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . Farmland Industries, Inc. argues that the real reason that Pullman-Kellogg was requested to remove the blind was to avoid any labor union jurisdictional dispute. Farmland makes this assertion in connection with the contention that it could have done this work with is own personnel and therefore, removing the blind was a part of the trade, occupation or business of Farmland. Avoidance of labor problems may have influenced Farmland’s decision to call on Pullman-Kellogg. Nevertheless, the testimony makes it clear that the work was the contractual responsibility of Pullman-Kellogg. In this respect Pullman-Kellogg had simply left a part of its 'work incomplete and was called back to rectify the deficiency. We find no merit to the contention that the removal of the blind was work within the trade, occupation or business of Farmland so as to make it the statutory .employer of plaintiffs.

      . The cause of action growing out of Waller’s automobile accident before us on appeal bears docket number 7844 and is entitled William Thomas Waller v. American National Fire Insurance Company et al., and is reported at 392 So.2d 1117.

      . Apparently Dr. Weiss made some cursory examination of William Waller’s back on July 24, 1977, which was sufficient to permit him to express this opinion but was not extensive enough to justify him in giving a considered orthopedic opinion.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    William Thomas WALLER v. AMERICAN NATIONAL FIRE INSURANCE COMPANY et al.
    No. 7844.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.
    Kramer & Laird, Bernard Kramer, Alexandria, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendants-appellees-appellants.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal arises from a judgment in a tort action awarding plaintiff, William Thomas Waller (“Waller”) $15,000 for general damages, $18,000 for lost wages and $711 for medical expenses against defendants Duane B. Revoir (“Revoir”), Turren-tine Company, Inc. (“Turrentine”) and American National Fire Insurance Company (“American”) and defendant Willie L. Harris (“Harris”), Elvin Graham (“Graham”) and Employers Mutual Liability Insurance Company of Wisconsin (“Employers”). The trial court’s factual determinations as to liability and the damages awarded to plaintiff are the issues on appeal. We reverse that portion of the judgment awarding Waller $18,000 for lost wages. In all other respects, the judgment is affirmed.

Waller was injured on June 10, 1977 while he was driving a 1972 Chevrolet automobile in a northerly direction on U.S. Highway 167 in Dry Prong, La., when Willie L. Harris, an employee of Elvin Graham, who was driving in a southerly direction on U.S. Highway 167, in a fully loaded Mack pulpwood truck, insured by Employers, abruptly turned left in front of Waller, causing him to brake to avoid a collision. At that time, Waller was struck from the rear by a 1973 Dodge van owned by Turren-tine, operated by Revoir, and insured by American.

Waller filed this suit alleging that he sustained severe and permanent injuries to his back and neck directly as a result of the collision and additionally that his extensive pre-existing injuries had been aggravated.

The trial judge held that Harris and Re-voir were jointly negligent and thus solidar-ily liable unto Waller in the amount of $18,000 in lost wages, $15,000 in general damages, and $711 for medical expenses.

All parties have appealed on various grounds. Revoir, Turrentine, and American only urge the trial court’s abuse of discretion regarding the damages awarded Waller.

We will first treat the issue of liability of the parties. The trial court found that Harris had made an improper left turn. Harris admitted to the investigating officer that “Waller’s car was much closer than he had realized,” and he later voluntarily paid a fine for this traffic violation.

A careful reading of the transcript reveals no error in the finding of the trial court. LSA-R.S. 32:104 imposes a high standard of care upon motorists making a left turn and require them to do so when such maneuver will not unreasonably interfere with oncoming traffic. Bond v. Jack, 387 So.2d 613 (La.App.3rd Cir. 1980).

The testimony reveals that Revoir was actually looking at the school in Dry Prong when he failed to maintain a proper lookout and rear-ended the Waller vehicle. We hold that the trial court’s finding of liability is clearly correct. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The real issue in this case focuses on damages. After a lengthy trial, the District Court awarded Waller $18,000 for loss of earnings, $15,000 for general damages and $711 for medical expenses. Defendants appeal alleging error in the assessment of any loss of earnings against them and, alternatively, abuse of discretion in the present loss of earnings award. They also allege abuse of discretion in the general damage award. Plaintiff appeals and asks for an increase in both of these awards based on abuse of discretion.

We begin by noting that because the parties failed to appeal the medical expenses allowed, that portion of the trial court’s award remains undisturbed.

The trial court awarded loss of earning damages to Waller. Defendants contend that because Waller’s loss of earnings resulted from an earlier explosion accident and not from the rear-end collision, the trial court erred in assessing any loss of earnings against them. We agree. For this reason we must reverse the trial court’s award for lost wages. Our disposition of the lost wages award pretermits the need to address defendant’s contention that the award is too high and plaintiff’s contention that the award is too low.

The trial court awarded Waller $15,-000 in general damages. The record as a whole supports this award. Waller had a history of lumbosacral and cervical problems dating back to 1959 when he underwent back surgery. Between 1965 and 1972, Waller was treated for low back complaints. In 1971, he was rear-ended in an automobile collision after which he complained of injury to his cervical spine. On March 19,1977, Waller was injured at work when an explosion blew him off of a scaffold and onto concrete some ten feet below. As a result of those injuries, Waller was hospitalized for several days.

Shortly after the explosion accident, Waller was involved in another accident. This is the June 10, 1977 rear-end collision caused by the joint negligence of defendants. Waller received additional injuries, among them a serious neck injury. Medical testimony established that Waller is totally and permanently disabled and that while the June 10, 1977 rear-end collision may not have been the sole cause of this disability, it at least contributed to his condition.

At the trial of this matter, Waller testified that he is bothered by headaches and that twisting or bending movement is painful. Medical testimony indicated that surgery would not alleviate Waller’s pain. Waller appears destined to experience permanent pain.

The trial court took these particular facts and circumstances into account before awarding Waller $15,000 in general damages. We feel the award is supported by the record and is well within the trial court’s much discretion. We may not disturb this award on appeal.

Waller appeals the general damage award as insufficient. We observe that Waller did have a history of back problems leaving him with an arthritic back. Also, Dr. Patton testified that just by being 61 years old Waller was in an age group that commonly begins to have problems with the neck and back. Dr. Patton further testified that Waller was not weak, he is not paralyzed, he does not have a foot drop, and he has good use of his arms. We think the general damage award is supported by the record and is well within the trial court’s much discretion. Thus, the award may not be disturbed on appeal.

For the reasons assigned, the judgment of the trial court is amended to deny the $18,000 award for lost wages. In all other respects, the judgment of the trial court is affirmed. Costs on appeal are taxed against the defendants.

AMENDED AND AFFIRMED.

      . Waller filed suit to recover damages for personal injuries he received in the earlier explosion accident. That case was tried before the same trial court which heard this case. Waller was denied recovery in the explosion suit. He appealed. The appeal was docketed for hearing by the same panel of this court and in the same cycle as Waller’s suit growing out of the automobile accident. It bears docket number 7843 and is entitled William T. Waller, et al v. Farmland Industries, Inc., et al and is reported at 392 So.2d 1099, La.App. 3rd Cir. (1980). On appeal in the explosion suit this court determined that Waller was entitled to recover damages, and that the lost wages portion of these damages was attributable to the explosion accident. Accordingly, on appeal in that case, Waller was awarded an appropriate amount for his lost wages.


text:
    J. C. THORNBURG et al., Plaintiffs-Appellants, v. Terry McMILLIN, Indiv. and d/b/a “Hungry Fisherman & Escape Hatch”, Defendant-Appellee.
    No. 7963.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 1980.
    Rehearing Denied Feb. 9, 1981.

      Philip A. Letard, Yidalia, for plaintiffs-appellants.

      Lloyd F. Love, Ferriday, for defendant-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   STOKER, Judge.

Plaintiffs J. C. and Iown Thornburg and Elton and Pansy Jolly filed this suit for injunctive relief and damages. Plaintiffs seek to enjoin defendant, Terry McMillin, from operating a lounge on his property. The basis for this suit is that the operation of this business violated restrictive clauses contained in the act of sale by which defendant acquired his property and that the business constitutes a nuisance. The trial judge rejected plaintiffs’ demands and found that no nuisance existed at the time of trial. A judgment was signed ordering the defendant to install a sound monitor in his lounge to insure that the noise level does not exceed 100 db A. The judgment also ordered defendant to install speed bumps for the purpose of controlling traffic entering and leaving his premises.

The issues presented by this appeal are:

(1) May the restrictive clauses contained in the act of sale to defendant’s property be enforced against defendant by plaintiffs? This issue is to be determined by the classification of these clauses as either building restrictions, predial servitudes, or personal obligations.

(2) Are the plaintiffs entitled to injunc-tive relief and damages because a nuisance exists on defendant’s property?

The plaintiffs-appellants contend that the trial court erred in holding that: (1) the plaintiffs could not enforce the restrictive clauses because they were personal obligations enforceable only by the defendant’s vendor, and (2) plaintiffs were not entitled to injunctive relief or damages because a nuisance did not exist at the time of trial.

Defendant-appellee contends that the restrictive clauses are personal obligations enforceable only by defendant’s vendor. Defendant argues that these clauses do not satisfy the requirements for building restrictions under LSA-C.C. arts. 775 through 783. Defendant also maintains the clauses do not satisfy the requirements for predial servitudes under LSA-C.C. arts. 646 through 774.

FACTS

All the parties to this suit own property on Lake Concordia in Concordia Parish. The defendant McMillin operates a restaurant and lounge on his property. McMillin purchased the property on which he built the Hungry Fisherman restaurant from William H. Cuthbertson on June 25, 1973. Defendant acquired the property on which he built the Escape Hatch lounge from Cuthbertson on July 10, 1975. These are adjoining tracts of land.

The plaintiffs Thornburg reside in a home on property to the north of defendant’s property. The Thornburgs purchased their property from Cuthbertson on July 1, 1975. The plaintiffs Jolly purchased their property from J. L. Ferrill on June 19,1972. The Jolly property is north of the Thorn-burg property. The plaintiffs constructed the homes in which they reside subsequent to the construction of the Hungry Fisherman restaurant but prior to the construction of the Escape Hatch lounge.

At the heart of this litigation are the following restrictive clauses contained in the act of sale conveying the property upon which the Escape Hatch lounge is located.

“SUBJECT ALSO TO the following protective restrictions, which shall be real rights, running with the land, binding upon the Purchaser, his heirs and assigns, for a period of fifteen (15) years from and after this date;
(1) Purchaser agrees and binds and obligates himself, his heirs and assigns to use the premises in a quiet, peaceful and lawful manner compatable with a permanent residential area of current Federal Standards.
(2) Any commercial operations on this property shall be conducted in a manner so as not to disturb adjacent property owners.
(3) The sale of alcoholic beverages on the premises will be permitted only if in conjunction with the operation of a restaurant as the primary business venture, and in such event, the sale of alcoholic beverages or the operation of any lounge on the premises shall be permitted only within hours when the restaurant kitchen is open and in operation for restaurant business.
(4) No portion of the property herein conveyed shall be used for commercial camping or as the site for a trailer park, commercial apartment or motel.”

(Although the restrictive clauses applicable to the Hungry Fisherman restaurant property are not at issue in this case, we note that the act of sale for this property contains restrictive clauses (1) through (3).)

The act of sale for the Thornburg property includes the following restriction:

“Subject also to the restriction that the property shall be used for residential purposes only and shall not be used for any commercial purpose whatsoever at any time within fifteen (15) years after date of this Act of Sale.”

No restrictive clauses are contained in the act of sale conveying the Jolly property.

The plaintiffs contend that the defendant violated the restrictive clauses by operating the Escape Hatch lounge separately from the Hungry Fisherman restaurant and selling alcoholic beverages after the restaurant is closed. Plaintiffs complain that the Escape Hatch is not operated in a quiet, peaceful and lawful manner and that continuing disturbances caused by the Escape Hatch deprive plaintiffs of the peaceful use and enjoyment of their properties. Plaintiffs also urge us to hold that the Escape Hatch lounge constitutes a nuisance.

Plaintiff’s major complaints are directed at the noise emanating from inside the lounge and the parking areas servicing it. The plaintiffs maintain that the loud music, parking lot noises and patron activity begin in the early evening and last until past 2:00 A.M. thus preventing them from relaxing and sleeping. Increased traffic is another item of nuisance alleged by the plaintiffs, who complain of people turning around in their driveways and cutting across their yards. Plaintiffs also complain that trash and litter from the Escape Hatch is strewn across their property.

I. CLASSIFICATION OF THE RESTRICTIVE CLAUSES.

A. Building Restrictions

The law concerning building restrictions is contained in LSA-C.C. arts. 775 through 783. Article 775 requires that building restrictions must be part of a general plan that is feasible and capable of being preserved. Article 783 provides that when there is doubt as to the existence, validity, or extent of building restrictions, resolution must be made in favor of the unrestricted use of the property. The record in this case reflects that these restrictive clauses were not inserted in the act of sale pursuant to a general plan of development. This is evidenced by the difference in the restrictive clauses contained in the defendant’s act of sale and the plaintiffs Thornburgs’ act of sale from the vendor Cuthbertson.

B. Predial Servitudes

Restrictions imposed on individual lots without regard to a general plan of development may constitute predial servitudes. LSA-C.C. articles 646 through 774 contain the rules governing predial servitudes. Key elements include the existence of a dominant and a servient estate belonging to different owners. The servitude exists for the benefit of the dominant estate. Article 739 provides that non-apparent servitudes may be acquired by title only. Clauses restricting the use of property for various activities create non-apparent servitudes.

In the instant case the restrictive clauses were inserted in the act of sale by defendant’s vendor. In order for these clauses to operate as predial servitudes they must have been established by the owner of the dominant estate for the benefit of his estate or by a person acting in his name or in his behalf. LSA-C.C. arts. 735. The trial judge in her written reasons for judgment stated that there was no evidence in the record that the vendor Cuthbertson owned any lake properties which could be classified as a dominant estate. Our search of the record reveals the following testimony of defendant McMillin on cross examination at page 409 of the transcript:

“A This was a ... this was an agreement that he had that he put in there about the trailer park because he ... he had intentions of putting a trailer park or possibly something there ... no, he was ... I had that put in because he ... that he couldn’t put a restaurant on the property joining me and this was the reason why that was put in. He wanted to put that in because of the ... that I couldn’t put a trailer park in beside him. Beside my place. That’s what I meant. So he put those, that 15-year restriction on this.
Q On your heirs and assigns running with the land?
A About the trailer park, right. Because he has a trailer park and he didn’t want me to put a trailer park anywhere on the premises, which I didn’t have any intentions of putting one anyway.”

This is the only evidence in the record as to the existence of a dominant estate belonging to Cuthbertson. We will assume that this testimony indicates Cuthbertson owned other property which could serve as the dominant estate.

At the time the Thornburgs purchased their property from Cuthbertson he had not yet sold the Escape Hatch property to the defendant. If the restrictive clauses at issue do create a predial servitude, this servitude was not in existence at the time the Thornburgs acquired their property from Cuthbertson. The Thornburgs were not parties to the act containing the restrictive clauses. If these clauses are to operate in their favor this would be the result of a stipulation pour autri. The cardinal rule of contractual interpretation is that the intention of the parties must govern. In our opinion the language of the restrictive clauses does not indicate that Cuthbertson intended these restrictive clauses to benefit the Thornburgs.

Non-apparent servitudes may be acquired by title only. LSA-C.C. arts. 739. The Jollys did not acquire their property from Cuthbertson. Their property is not carved from any of Cuthbertson’s property which might have been the dominant estate. They were not parties to the contract containing the restrictive clauses, nor are they in privity with a party to the agreement. Nor do we find that these clauses were intended by Cuthbertson to benefit the Jollys. Thus they may not avail themselves of these clauses through the concept of stipulation pour autri.

The Civil Code provides in Article 730 that any doubt as to the existence, extent or manner of exercise of a predial servitude must be resolved in favor of the servient estate. Our reading of the record does not persuade us that a predial servitude exists to benefit the estates of the plaintiffs Thornburg and Jolly. We affirm the holding of the trial court that the restrictive clauses are personal obligations between the vendor Cuthbertson and defendant McMil-lin which are unenforceable by the plaintiffs in this case.

II. NUISANCE

LSA-C.C. articles 667 through 669 are the foundation for nuisance actions in our law. These articles detail the obligations of proprietors of property toward one another. Jurisprudence interpreting these articles establishes that “work” includes activity as well as structure under Article 667. Chaney v. Travelers, 259 La. 1, 249 So.2d 181 (1971). Whether or not an activity constitutes a nuisance is a question of fact dependent upon the circumstances of each particular case. Fos v. Thomassie, 26 So.2d 402 (Orl.La.App.1946). The operation of a nightclub is not a nuisance per se in Louisiana. Scott v. LeCompte, 260 So.2d 345 (La. App. 1st Cir. 1972).

Plaintiffs complain principally of noise emanating from the Escape Hatch in the form of loud music and patron activity in the parking lot which prevents them from sleeping and relaxing in their homes.

Under the jurisprudence noise constitutes a nuisance subject to an action for damages and injunction when the noise is excessive, unreasonable in degree, and of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities. The Court in Hobson v. Walker, 41 So.2d 789 (La. App. 2nd Cir. 1949) said:

“It must be conceded that the creation of excessive, unreasonable and disturbing noises, particularly during the night hours, unquestionably constitutes a nuisance, to the abatement of which parties disturbed thereby are entitled. However, it must be borne in mind that noise is not necessarily a nuisance, and a determination of this point can be made only after thorough consideration of all the surrounding circumstances and facts developed in a particular case.
It is impossible to lay down any hard and fast rule inasmuch as numerous factors and elements must be taken into consideration, among which may be briefly noted the character of the locality, the nature of the noises, and the effect thereof upon persons of ordinary sensibilities. The determination of these points rests upon purely factual issues with respect to which the plaintiff in an action of this kind must bear the burden of proof.”

The trial judge in her written reasons for judgment reviewed the testimony of each witness and concluded that a nuisance did not exist at the time of trial. Our reading of the record does not reveal that this finding is clearly wrong. We affirm.

We find the testimony of Dr. Charles I. Berlin, an expert witness for the defendant, particularly persuasive on the question of whether or not the noise escaping from the Escape Hatch would be annoying to a person of ordinary sensibilities. Through a discovery motion defendants secured a court order allowing them to measure the sound levels in plaintiffs’ bedrooms. These tests were conducted by Dr. Charles I. Berlin and Dr. John K. Cullen, Jr. of the LSU Medical Center in New Orleans. Dr. Berlin is a professor of physiology and otorhinolar-yngology and is director of the Kresge Hearing Research Laboratory. Dr. Cullen is assistant director of the laboratory. Dr. Berlin and Dr. Cullen made two trips to measure the sound levels at the Escape Hatch. On the first trip on March 24,1978, the sound level of the band performing at the Escape Hatch measured between 90 and 100 db A inside the Escape Hatch. The sound level at the property line was 56 db

A. The level in the area of the Jolly driveway was 46 db A. On the second trip on April 11, 1978, a new band was playing at the Escape Hatch. The sound level inside the Escape Hatch measured between 80 and 92 db A. At the time of the second visit several changes had been made at the Escape Hatch. A vent through which noise escaped from the Escape Hatch had been blocked off and a fence had been erected on the property line. Both of these changes contributed to the decreased sound levels. The readings upon the second visit were 26 db A in the Thornburg bedroom and 39 to 40 db A on the porch of the home. The reading in the Jolly bedroom was 20 db A.

Dr. Berlin testified that the Environmental Protection Agency and other researchers have studied the incidents of complaint for various noise levels and found that if the noise level in a bedroom exceeds 48 db A there are unlimited complaints of noise. If the noise level is 33 db A and below, there are no complaints. Dr. Berlin was of the opinion that if the sound level in the Escape Hatch did not exceed 100 db A the sound level in plaintiffs’ bedrooms would be about 40 db A, a level which would not be annoying to the average person.

For the foregoing we affirm the judgment of the trial court.

In affirming the trial court we emphasize the following points.

First, it should be noted that we are bound by the well established rule that the findings of fact of the trial court are not to be disturbed on appellate review unless the findings of fact of the trial court are clearly wrong. This standard of appellate review of facts was enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) wherein the Louisiana Supreme Court stated:

“... the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Secondly, we wish to specifically note that the trial court found no “nuisance to exist as of this time.” We take the words “as of this time” to mean the date of trial.

Finally, we wish to state that our affirmance in this case should not be taken as an indication by us that music or any recorded sound under amplification shall not constitute a nuisance under any circumstances. It should be pointed out that the noise level tests conducted by defendant’s experts were conducted in a situation in which defendant controlled the production and volume of noise at the time those tests were conducted. Plaintiffs produced no experts of their own. The record does not contain any evidence, other than testimonial, as to what the noise level was in plaintiffs’ homes at the times of the playing of alleged loud music which provoked plaintiffs to bring this law suit.

The costs of this appeal are assessed equally between the parties, plaintiffs to pay one-half and defendant to pay one-half. The trial court saw fit to divide the costs of the proceedings in the trial court on an equal basis and we think this is fair and equitable.

AFFIRMED.

      . Louisiana Civil Code articles 667-669 provide:
      Art. 667. Limitations on use of property. Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. Art. 668. Inconvenience to neighbor. Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
      Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.
      Art. 669. Regulation of inconvenience. If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.

      . The tests conducted by Dr. Berlin measured sound energy in decibels. The measurements were made on the db A scale. This scale measures how much sound is audible to a normal human listener.