author:
LOTTINGER, Judge.
      PONDER, Judge,

text:
    William J. MOSS, et al v. Anthony J. GUARISCO, Sr., et al. William J. MOSS v. Anthony J. GUARISCO, Sr., et al.
    Nos. 14395, 14396.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.

      Peter C. Piccione, Lafayette, and John E. Conery, Conery & Breaux, Franklin, for plaintiffs.
    Nathan A. Levy, Jr., and Joseph R. Stre-va, Jr., Levy & Burleigh, Morgan City, for Anthony Guarisco, Sr. and Guarisco Motor Co.
    George H. Robinson, Jr., Liskow & Lewis, Lafayette, for General Motors Corp.
    Jerome J. Barbera, III, Thibodeaux, for Guarisco-Barbera Pontiac-Cadillac-GM C, Inc. and Sam J. Barbera.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

These consolidated suits allege breach of contract, inducement to breach contract, and illegal conspiracy in restraint of trade. Plaintiffs appeal the sustaining of the peremptory exception of no cause of action in favor of all defendants except Anthony J. Guarisco, Sr.

The original suit, No. 14395, was brought by William J. Moss, individually and on behalf of Guarisco-Moss Motors, Inc. as a result of an alleged breach by Anthony J. Guarisco, Sr. (Guarisco) of a buy-sell contract. The contract involved a transfer of the Pontiac dealership in Morgan City, Louisiana, which at the time of the making of the contract was operated by Guarisco and his brother John in the corporate name of Guarisco Motor Company, Inc. Moss, the alleged purchaser, sued alleging breach of the buy-sell agreement and demanding specific performance of the agreement from Guarisco, Sr. and from General Motors Corporation, Pontiac Motor Division, the franchisor for Pontiac and GMC automobiles. The original petition was subsequently amended to add Guarisco Motor Company, Inc., Sam C. Barbera, Jr. (Barbera), and Guarisco-Barbera Pontiac-Cadillac-GM C, Inc. (Guarisco-Barbera) as parties defendant, and to allege that all the defendants engaged in an illegal conspiracy in restraint of trade which caused damage to the plaintiffs.

A second suit, No. 14396, was simultaneously filed by William J. Moss individually, maintaining the same allegations.

Exceptions of no cause of action were brought by Sam C. Barbera, Jr., Guarisco-Barbera Pontiac-Cadillac-GMC, Inc., and by General Motors Corporation. The exceptions were sustained, but plaintiffs were afforded additional time to amend their petition(s) so as to state a cause of action. A second supplemental and amending petition was filed as to both consolidated cases, alleging that these parties defendant had induced Guarisco, Sr. to breach his contract with Moss, and further alleging an illegal conspiracy in restraint of trade. All parties again raised the peremptory exception of no cause of action, which was sustained in favor of Guarisco Motor Company, Inc., Sam C. Barbera, Jr., Guarisco-Barbera Pon-tiae-Cadillac-GMC, Inc., and General Motors Corporation; and which was denied as to Anthony J. Guarisco, Sr. Plaintiffs now appeal the ruling of the trial court dismissing their suit as to the other four defendants.

FACTS

The petition(s) filed by plaintiffs make the following allegations of fact: In February, 1976, Moss contacted Guarisco regarding a possible future sale of the Pontiac dealership in Morgan City, Louisiana. At that time Guarisco advised Moss that the dealership (in which Guarisco and his brother John each owned fifty percent) would be for sale in the near future. Moss allegedly maintained contact with Guarisco in this vein through August 1978, at which time Guarisco advised Moss that Guarisco was to buy out his brother’s interest in the present Pontiac dealership (i.e., Guarisco Motor Company, Inc.). Guarisco agreed to enter into negotiations with Moss. Moss then contacted General Motors Corporation, Pontiac Division, to ascertain the requirements for a transfer of the Pontiac franchise to him. Pontiac told Moss that a formal application would have to be submitted for approval, together with a written buy-sell agreement between Moss, and Guarisco.

On October 1, 1978, Moss and Guarisco purportedly finalized negotiations for the transfer of the Pontiac dealership and the parties agreed that a written contract would be signed on October 20, 1978. On October 9, 1978, Moss received the application for sales agreement from Pontiac which had to be submitted to Pontiac in order for Moss to be awarded the Pontiac dealership. On October 20, 1978, Moss and Guarisco approved and signed the buy-sell agreement as well as the application to Pontiac, both of which were immediately forwarded to GMC’s Pontiac Division in Memphis, Tennessee. The buy-sell agreement between Moss and Guarisco provided that Guarisco was obligated to do the following:

(1) Purchase his brother’s (John Guarisco) 50% stock interest in the old Guarisco Motor Co., Inc., which would then give Anthony Guarisco a 100% interest therein,
(2) Purchase in his name all of the assets from Guarisco Motor Co., Inc.,
(3) Form a new corporation with Moss under the name of Guarisco-Moss Motors, Inc. as the new dealership with the following provisions:
(a) $200,000 paid in capital, with Guar-isco owning 75% and Moss owning 25%;
(b) Guarisco would pay in part for his shares by transferring to the new corporation certain assets of Guarisco Motor Co., Inc. (the old corporation).
(c) Moss would be Chairman of the Board, President, Pontiac Dealer and Manager, and Guarisco would be the Vice President of the new corporation;
(d) Moss or Guarisco-Moss Motors, Inc. would lease from Guarisco the land and buildings on which Guarisco Motor Co., was presently located for a term of 21 years;
(e) Guarisco-Moss Motors, Inc. would be a closed corporation, and Guarisco was obligated to sell to Moss all of his 75% stock ownership in the new corporation over a 5 year period from date of incorporation.

The buy-sell agreement was dated October 20, 1978 and was recorded in the conveyance records of St. Mary Parish on October 23, 1978. As per the buy-sell agreement, Moss deposited an unencumbered $50,000 into the Guaranty Bank and Trust Company of Morgan City on October 23, 1978.

On or about October 24, 1978, Moss was advised by Pontiac that his application was being returned unopened. Moss immediately contacted Guarisco, who told Moss that he was negotiating with a third party for sale of the dealership. Moss alleged that the reason his application to Pontiac was returned unopened was because Pontiac was requested to do the same by Guarisco. On or about October 27,1978, Guarisco flew to Memphis, Tennessee to confer with Pontiac. At that time Guarisco admitted to Pontiac that he had signed a written buy-sell agreement with Moss, but Guarisco represented that he did not consider himself bound by the agreement. Pontiac requested Guarisco to submit the name of the party to whom Guarisco wished the sales and service application granted. Guarisco formally notified Pontiac on November 6, 1978, that he wished to remove Moss from consideration for the Pontiac dealership in Morgan City. On November 13,1978, Moss caused the incorporation of Guarisco-Moss Motors, Inc. pursuant to the buy-sell agreement.

After making written formal demand on Guarisco for performance of the October 20 buy-sell agreement, Moss filed the first suit, No. 14395, on December 22, 1978, alleging breach of contract. Moss simultaneously filed a notice of lis pendens in the public records of St. Mary Parish.

In the original and supplemental and amending petitions in the consolidated suits, plaintiffs allege that one Sam C. Barbera, Jr. at some indefinite time subsequent to the execution of the Moss-Guarisco buy-sell agreement, approached Anthony Guarisco, Sr. and offered him more consideration for the Pontiac dealership than had been offered by Moss. Subsequently, Guar-isco removed Moss’s name from consideration by Pontiac for the new dealership. Negotiations between Guarisco and Barbera continued, culminating in a deal whereby Guarisco-Barbera Pontiac-Cadillac-GM C, Inc. was formed.

Subsequent to the' first suit and . .the lis pendens being filed, the assets of the old Guarisco Motor Company, Inc. were transferred to the new Guarisco-Barbera corporation, and a lease of the lands formerly occupied by the old dealership was executed in favor of the new corporation. Thereafter Pontiac named Sam G. Barbera, Jr., as the new Pontiac dealer-operator for Morgan City, Louisiana, presumably at the request of Guarisco.

The above allegations of facts have been gleaned from a thorough reading of the petition in the first suit No. 14395, and the first supplemental and amending petition thereto, the petition from the second suit, No. 14396, and the second supplemental and amending petition (pertaining to both suits.) Since the two consolidated cases are before us on exceptions of no cause of action, all well pleaded facts of the plaintiffs’ petition must be accepted as true and interpreted most favorably to the plaintiffs. It is then our duty to determine whether the allegations set forth a cause of action. Haskins v. Clary, 346 So.2d 193 (La.1977); Linzay v. Tangipahoa Parish Farm Bureau, 387 So.2d 1343, (La.App. 1st Cir. 1980).

ASSIGNMENTS OF ERROR

Plaintiffs assign the following specifications of error:

(1) The District Court erred in finding that plaintiffs’ suits failed to state a cause of action ex delicto for tortious interference with contract.
(2) The District Court erred in holding that plaintiffs’ suits failed to state a cause of action based on fault, conspiracy, La.C.C. arts. 2315 and 2324, and conspiracy to restrain trade and commerce.
(3) The District Court erred in holding that plaintiffs’ suits failed to state a cause of action ex contractu for specific performance, damages for breach of contract and breach of implied contract.

INDUCING BREACH OF CONTRACT

Plaintiffs ascribe as error the holding of the trial court that Louisiana does not recognize an action ex delicto for inducing a party to a contract to breach same. Plaintiffs assert that pronouncements in dicta in National Safe Corporation v. Benedict and Myrick, Incorporated, 371 So.2d 792 (La.1979) by the Supreme Court, and by this court in Linzay v. Tangipahoa Parish Farm Bureau, 387 So.2d 1343 (La.App. 1st Cir. 1980), indicate that such a tort may be recognized by Louisiana courts.

Plaintiffs allege that Sam C. Barbera, Jr. induced Anthony Guarisco to breach his buy-sell agreement with Moss by offering more money for the transfer of the Pontiac dealership. Pontiac is accused of inducing Guarisco to breach the buy-sell agreement by failing to award the franchise to Moss, even though Pontiac admittedly did not need the cooperation or permission of Guar-isco to award the franchise. Similarly, Guarisco and Barbera are accused of inducing Pontiac to breach an implied contract with Moss, whereby Moss alleges that Pontiac bound itself to award the franchise to him if he filled out and submitted the proper applications. No allegations of inducing breach of contract are made against the other named defendants, Guarisco Motor Company, Inc. and Guarisco-Barbera Pontiac-Cadillac-GMC, Inc. The trial judge held that no claim for inducing breach of contract could be asserted against any party defendant because such a cause of action ex delicto is not recognized in Louisiana.

The early Louisiana cases on this subject primarily dealt with tenant-farmers or laborers who were driven from their fields because of harassment, coercion, or threats. The lessor or employer was allowed to recover on the grounds that the third party transgressed lawful means in settling a dispute, by conduct that was violative of the criminal laws or tortious vis-a-vis the tenant or laborer who fled the fields. It was stated that the damages to the lessor or employer (usually a loss of crops as rent) was the direct result of the unlawful conduct of the third party. These early cases are the basis for Professor Prosser’s statement that Louisiana does not recognize a cause of action for inducing breach of contract unless the method of inducement is of itself unlawful.

Yet, a review of the jurisprudence does reveal two cases where recovery was allowed even though the conduct of the third party was not actionable per se. In Martin v. Sterkx, 146 La. 489, 83 So. 776 (1920), the defendant uninvitedly entered a house belonging to the plaintiff, and informed the plaintiff’s tenants that they would have to leave the premises, since there was a lawsuit pending involving title to the property. The pending suit involved not the claim of the defendant, but that of the aunt of the parties, who had sold the property to the plaintiff. The tenants, for fear of eviction, failed to make improvements on the property, and as a result no crop was raised, a part of which was to accrue to plaintiff as rent. The Supreme Court held that the defendant was liable on the grounds that her conduct was “officious and meddlesome,” although it appears that this conduct was not unlawful or actionable per se. Similarly, in Carson v. Stephens, 14 La.App. 272, 129 So. 381 (2nd Cir. 1930), recovery was allowed when the plaintiff, a building contractor, was advised by one Gladney, a black man, not to proceed with their contract to build Glad-ney’s house. Gladney was persuaded to cancel the contract when his prospective neighbors called upon him and informed him that he would not be permitted to take residence if the building was completed. The Second Circuit allowed the building contractor to recover against the neighbors even though no direct threats of violence or harassment were made to Gladney. Martin and Carson are exceptional cases in that recovery was allowed although the conduct of the third party was not of itself unlawful or actionable, but are explainable in that the third party went much farther than merely inducing a party to break the contract. In the instant case, the plaintiffs do not allege any unlawful or actionable conduct by Barbera or Pontiac against Guaris-co which may have coerced Guarisco into breaching the buy-sell agreement. Nor do the plaintiffs allege any unlawful or actionable conduct by Barbera or Guarisco against Pontiac which may have coerced Pontiac to breach its implied contract to award Moss the dealership.

The vast bulk of the Louisiana jurisprudence deals not with the exceptional types of cases mentioned above, but rather, as in the instant case, involves a third party’s mere inducement of a contracting party to breach his contract, as opposed to threats and coercion. The initial case, Kline v. Eubanks, 109 La. 241, 33 So. 211 (1902) has been by far the most influential and most often cited. Kline involved the classic luring away of a competitor’s employee, in this case a farm laborer. The Supreme Court upheld the trial court, holding that the allegations of enticing away and knowingly employing a laborer under contract with another did not set forth a cause of action under Civil Code Article 2315. The rationale for the decision was that the laborer, who deserted his former employer, was the cause of damages. The laborer, who was a free agent, was the proximate cause, and the enticing employer was but a remote cause of the damages. The Supreme Court expressly distinguished the mere inducement to breach from those prior cases where the breach was caused by coercion. The coercion-type cases were held inapplicable since in those cases the third party’s only intention was to injure the plaintiff. In Kline, the Supreme Court stated that the third party was attempting to benefit himself, and not merely trying to injure the plaintiff. Thus, a mere inducement to breach was not of itself actionable under Civil Code Article 2815. Justice Breaux added parenthetically that Civil Code Article 2315 was meant only to encompass those quasi-offenses which were recognizable at its inception, and that tortious inducement to breach a contract had not been at that time recognized.

Kline was not decided on the basis of any Louisiana statute or jurisprudence. Although prior Louisiana cases were distinguished, an objective reading of the opinion shows that the decision was made primarily after a survey of the commentators and cases from common-law states. Particular cases from Kentucky, Maryland, California, and Missouri are cited. Also cited as persuasive are the common-law commentators Cooley and Jaggard. These common-law authorities were not a proper basis for an interpretation of Article 2315 of the Louisiana Civil Code; however, Kline was cited as controlling for the next fifty years. This is a situation where the Supreme Court made a particular stand on an issue, after examining its treatment by other states, and from that moment onward, further discussion of the issue was neglected because the original position taken had magically become “well-settled law.” Significantly, the four states whose decisions were cited in Kline have long since reversed or modified their refusal to recognize tortious breach, of contract. In recent years, Louisiana appellate courts have cited Cust v. Item Co., 200 La. 515, 8 So.2d 361 (1942), as authority for refusing to recognize a cause of action for inducing breach of contract. Yet, Cust relied solely on Kline v. Eubanks and its progeny, and provided no rationale for the present position. Louisiana’s refusal to recognize this tort is apparently unique in the United States.

The last case in which the Supreme Court dealt with this question in more than a parenthetical manner amply illustrates the harshness of the Louisiana position. In Templeton v. Interstate Electric Co., 214 La. 334, 37 So.2d 809 (1948), the plaintiff operated a franchise store on behalf of the defendant. The plaintiff negotiated a sale of the franchise to one Hearne. The defendant refused to approve the transfer until the plaintiff settled his open account for inventory with the defendant. The plaintiff protested that the only way he could liquidate enough to settle the open account was to sell the franchise. The defendant promptly cancelled the franchise agreement and awarded the franchise to Hearne. Hearne then breached the buy-sell agreement with the plaintiff. The Supreme Court recognized that the defendant apparently wanted to force the plaintiff to sell off his inventory to Hearne at a bargain price, since no other method of liquidation would be available to the plaintiff, since the franchise sales agreement was breached. The Supreme Court further stated that the refusal to allow a transfer of the franchise, and the immediate granting of a new franchise to Hearne by the defendant illustrated the complete insincerity of the defendant. Nonetheless, damages were assessable only against Hearne and not against the defendant franchisor, since the Supreme Court reiterated its position that one who is not a party to a contract is not liable in damages to one of the parties to the contract for inducing the other party to break the contract, citing Cust v. Item Co., supra. Thus, in Templeton even conduct which was obviously substandard was left uncompensated because of blind adherence to Kline and its progeny.

Civil Code Article 2315 reads in pertinent part, “Every act of man that causes damage to another obliges him by whose fault it happened to repair it.” This article and its emphasis on fault is the basis for the general law of torts in Louisiana. There is no definition of what constitutes fault for purposes of Article 2315. It may be said that fault occurs when one does not that which he ought to do, or when he does that which he ought not to do. Thus, inherent in the notion of fault is the idea that some actions or failures to act cannot be condoned by society or by the judiciary, because such conduct does not measure up to the standards which society imposes upon its individual members. However, it is axiomatic that the standards which society imposes upon individuals are in a constant state of flux. Morals, mores, customs, and folkways of the populace form the basis of what is perceived as “oughts” and “ought nots,” and are ever changing. Thus, Justice Breaux’s assertion in Kline v. Eubanks that Civil Code Article 2315 included only those torts which were recognized at its inception is wholly untrue. The Supreme Court cannot and does not interpret Article 2315 on the basis of nineteenth century morality. The greatness of the civilian tradition in general and Article 2315 in particular is its ability to adapt the interpretation of law to the needs of the people. Professor Ferdinand Stone expressed this idea in this manner:

“Louisiana, with her heritage of civilian doctrine in a broad principle of tort liability of which 2315 ... is a great example, is possessed of a system of liability at once simple and coherent which is broad enough to encompass the changing behavior pattern of the people and developing social and legal notions of wrongful conduct.”

Thus, the Louisiana Supreme Court has been unjustified in its unflinching adherence to Kline v. Eubanks and the cases which follow it, since this adherence has been without any examination of the changing social and economic conditions of the twentieth century. The adherence to Kline has resembled the common-law doctrine of stare decisis in that one case decision instantly became “well-settled law.”

Virtually every state in the Union (other than Louisiana) recognizes a cause of action for inducing breach of contract. France, whose Code Napoleon Article 1382 was the direct source for our Article 2315, also has recognized such a cause of action. These civil and common law jurisdictions have recognized that although a contract binds only those party to its making, third persons may not unjustifiably interfere with a party’s reasonable expectation in having the contract performed. Modern business considerations have led the judiciary to afford greater protection to a contracting party’s specific right to performance than that afforded to an outsider’s general right to compete. Louisiana’s refusal to recognize a cause of action for inducing a breach of contract has been ably criticized and the time is ripe for re-evaluation of the Louisiana position.

However, as an intermediate appellate court, we are duty-bound to apply the law as it is pronounced by our Supreme Court. The last direct pronouncement was in 1948 in Templeton v. Interstate Electric Co., supra. The Supreme Court did not recognize a cause of action for inducing a breach of contract in Templeton, and this we are bound to follow. The initial recognition of an interpretation of Article 2315 which would allow a cause for inducing breach of contract is of necessity left to our Supreme Court, see Johnson v. St. Paul Mercury Insurance Company, 256 La. 289, 236 So.2d 216 (1970); National Safe Corporation v. Benedict & Myrick, Inc., 364 So.2d 169, 171 (La.App. 1st Cir. 1978); Henderson v. Travelers Insurance Company, 346 So.2d 816, 819 (La.App. 1st Cir. 1977). We must reluctantly hold that the trial court was correct in finding that as yet no cause of action exists in Louisiana for inducing breach of contract.

The plaintiffs’ reliance on Linzay v. Tangipahoa Parish Farm Bureau, supra and National Safe Corporation v. Benedict and Myrick, Incorporated, supra, for its contention that a cause of action for inducement is possible in Louisiana, is misplaced. In National Safe Corporation, the Supreme Court held that the suit involved was not brought ex delicto, but rather ex contractu. After being sued on an open account, Benedict and Myrick brought a reconventional demand against National Safe, alleging that National Safe breached its contract with Benedict and Myrick by luring away one of its employees. The Supreme Court expressly declined to discuss tortious inducement to breach of contract, and decided the issue solely on the basis of the contract between the parties. In Linzay supra, this court recognized that no cause for inducement exists at present, and went on in dicta to explain that the tort could not have occurred under the facts presented. The case is not, as appellants argue, an implicit recognition that such a cause of action is available under Civil Code Art. 2315. Neither of the cases cited by the appellants modified or reversed the present Louisiana position.

We note parenthetically that even were Louisiana to recognize tortious inducement to breach of contract, the allegations of the appellants pleading state at best only a cause of action against Sam C. Barbera, Jr. As will be explained further below, no implied contract existed between Pontiac and Moss, since the dealership transfer application expressly negated the formation of same. Thus no inducement of Pontiac to breach an implied contract by Guarisco and Barbera could have occurred. In addition, Pontiac could not have induced Guarisco to breach the buy-sell agreement with Moss, under the allegations made by the appellants. The appellants allege that Guarisco told Pontiac that he did not consider the Guarisco-Moss agreement to be binding upon him. This allegation by appellants negates the possibility that Pontiac induced a breach by Guarisco, since Guarisco himself represented to Pontiac that he was not bound to honor the buy-sell agreement. The only allegations of plaintiffs-appellants’ pleadings which would state a cause of action for inducing breach are those made against Barbera, which allege that he induced Guarisco to breach the buy-sell agreement by offering Guarisco a better price.

Because we hold that as yet no cause of action for tortious inducement to breach of contract exists in Louisiana, the plaintiffs-appellants’ assignment of error is without merit.

ARTICLE 2324 AND RESTRAINT OF TRADE

The plaintiffs argue that the trial court erred in finding that plaintiffs failed to state a cause of action based on fault, conspiracy, Civil Code Articles 2315 and 2324, and conspiracy to restrain trade and commerce.

The trial court found that La.R.S. 51:122, dealing with illegal conspiracy to restrain trade and commerce, had not been violated, since the second contract between Barbera and Guarisco was actually in promotion of competition, rather than restraining same. The trial court noted that La.R.S. 51:122 is similar in content to Section 1 of the Federal Sherman Anti-Trust Act, and found that the allegations of fact made by the plaintiffs did not place the actions of Pontiac beyond the permissible ambit of corporate decision making. Since the sale of automobiles in interstate commerce was not suppressed or suspended in any appreciable manner, the trial court found no violation of La.R.S. 51:122 which could have inflicted civil liability on the defendants.

Plaintiffs-appellants now argue that liability under Civil Code Articles 2315 and 2324 is possible regardless of whether or not trade is actually restrained. The plaintiffs allege a conspiracy which amounts to fault within the meaning of Articles 2315 and 2324. However, as pointed out by the Supreme Court in Cust v. Item Co., supra, and in Hartman v. Greene, 193 La. 234, 190 So. 390, (1939); cert. denied 308 U.S. 612, 60 S.Ct. 180, 84 L.Ed. 512; an action under Article 2324 will lie only if the conspirators have joined forces in the commission of an offense or quasi-offense. Thus Article 2324 does not impose liability by itself. Its applicability depends on the commission of an offense or quasi-offense. The only offenses or quasi-offenses alleged by plaintiffs involved inducing breach of contract and restraining trade. We have already held that at present no cause of action exists in Louisiana for inducing breach of contract. We agree with the trial court that the plaintiffs did not sufficiently allege an illegal restraint of trade and commerce under La.R.S. 51:122, since it was not alleged that the sale of automobiles in Morgan City was impaired by the actions of the defendants. Thus, since no viable offense or quasi-offense was alleged, no conspiracy could have occurred under Civil Code Article 2324 that might subject defendants to civil liability as joint tort-feasors.

SPECIFIC PERFORMANCE

Plaintiffs-appellants sued Anthony J. Guarisco, Sr. for specific performance of the buy-sell agreement. They assert also that a cause of action for specific performance exists against Pontiac; Barbera; Guarisco Motor Company, Inc.; and Guaris-co-Barbera Pontiac-Cadillac-GMC, Inc.; since performance by all parties would be necessary to restore the contractual rights which were denied the plaintiffs, due to the present circumstances of the Pontiac dealership in Morgan City.

The following provisions of the Louisiana Civil Code are pertinent:

Article 1926:
“On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all of these cases damages may be given where they have accrued, according to the rules established in the following section.”
Article 1927:
“In ordinary cases, the breach of such a contract entities the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the courts.”
Article 1928:
“The obligee may require that any thing which has been done in violation of a contract, may be undone, if the nature of the cause will permit, and that things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the injured party to do it himself at the expense of the other, and may also add damages, if the justice of the case require it.” (emphasis ours)

It is clear from a reading of these articles that specific performance is not a cause of action of itself as is argued by plaintiffs-appellants, but is rather a remedy which the Civil Code allows for a breach of contract. Thus, the existence of a contract is necessary in order to compel a party to perform. The trial court correctly stated that specific performance as a remedy was only available against Anthony J. Guarisco, Sr., since Guarisco was the only defendant who was a party to the buy-sell agreement. The other defendants were not party to the contract, and the remedy of specific performance is not available against them. Thus, no cause of action for a breach of the buy-sell agreement is assertable against Sam C. Barbera, Jr.; Pontiac, or Guarisco-Barbera Pontiac-Cadillac-GMC, Inc.

We note further that the buy-sell agreement, which was an appendix to the original petition, states that Anthony J. Guarisco, Sr. was obligated to personally buy and obtain all of the assets of Guarisco Motor Company, Inc. (the old dealership), and to personally buy the real estate where the dealership was located, and was obligated to transfer the assets and lease the real estate to the plaintiffs. Guarisco did not sign the buy-sell agreement in his corporate capacity. Because the assets of Guarisco Motor Company, Inc. were to be purchased individually by Guarisco before being transferred to the plaintiffs, then Guarisco Motor Company was not a party to the contract, since Guarisco acted upon his own behalf and not on behalf of the old corporation in signing the buy-sell agreement. Nor were the acts of Guarisco tantamount to the acts of the corporation in this respect particularly in light of the fact that John Guarisco still owned fifty percent of the stock in Guarisco Motor Company at the time Anthony Guarisco, Sr. signed the buy-sell agreement with Moss. Since the transfer of assets to the plaintiffs was to be by Anthony Guarisco personally, after his purchase of same from the old corporation, then Guarisco Motor Company cannot be said to have been party to the buy-sell agreement; and thus, specific performance as a remedy for breach of contract cannot be asserted against Guarisco Motor Company, Inc.

Plaintiffs-appellaiifs contend that the actions and representations of Pontiac created an implied contract whereby Pontiac bound itself to award Moss the Morgan City dealership if he filled out and submitted the proper applications. Plaintiffs demand specific performance of the implied contract of Pontiac. We find that no such implied contract came into being. The “Application for Pontiac Dealer Selling Agreement” was made a part of the original petition in the first suit. The application reads in pertinent part:

“In making this application, I acknowledge and agree that: ....
(2) No one other than the General Manager, General Sales Manager or Assistant General Sales Manager of Pontiac has the authority to approve this Application for a Pontiac Dealer Selling Agreement for any dealership location; that such approval, if given, will be solely in the form of a written Dealer Selling Agreement executed on behalf of Pontiac and the party named as “Dealer” in the introductory paragraph thereof; and that any action taken, any expenditures made, or commitments assumed, by me, by anyone to be associated with me in the proposed dealership, or by the proposed dealership itself, prior to receipt by me of such written Dealer Selling Agreement shall be at my or their sole risk and responsibility without any liability or obligation whatsoever on the part of Pontiac or any of its representatives.
(8) No representative or employe of Pontiac, or any othér person, has the authority or power to approve or effect in any manner whatsoever any change in or modification of the terms of this Application.
(4) Prior to receipt by me or the entity on behalf of which I am acting of an executed Pontiac Dealer Selling Agreement, I acknowledge that neither I nor it will be entitled to rely upon any representation or statement made to me or anyone else acting for such entity by any representative or employe of Pontiac, or any other person whatsoever.”

The signature of William J. Moss appears at the bottom of the page of the Application containing these conditions. In light of these express conditions of the Pontiac dealership application, we find that no implied contract was formed, and pretermit any discussion of statements and/or representations made to Moss by or on behalf of Pontiac.

In summary, since Anthony J. Guarisco, Sr. was the only defendant who was a party to the buy-sell agreement, specific performance as a remedy for breach of contract is available only against Guarisco. Nonetheless, since Guarisco-Moss Motors, Inc. was not a party to the buy-sell agreement (since the Guarisco-Moss corporation had not yet come into existence), there is some question whether Guarisco-Moss Motors, Inc. as a party plaintiff may demand specific performance of the buy-sell contract. We hold that Guarisco-Moss Motors, Inc. may demand specific performance, inasmuch as Guarisco obligated himself to transfer assets of the old corporation to Guarisco-Moss Motors, Inc. in exchange for 75% of the Guarisco-Moss stock. This obligation is a written subscription for corporate shares, which according to La.R.S. 12:71(C) may be enforced by the corporation in its own name, after corporate existence has begun.

Additionally, the trial judge was mistaken when he stated that the plaintiffs could not obtain cancellation of the Guaris-co-Barbera contract since plaintiffs were not a party to that contract. Plaintiffs promptly and properly recorded the buy-sell agreement in the public records of St. Mary Parish on October 23,1978; and on December 22,1978, filed a notice of lis pendens as to the affected real estate involved. The transfer of the assets of Guarisco Motor Company by Guarisco to the new Guarisco-Barbera Corporation and the lease of the real estate by Guarisco to the new corporation came subsequent to December 22,1978. The suit for specific performance is a claim by plaintiff Guarisco-Moss Motors that the assets of the old dealership are owned by it. Thus, Article 2453 of the Civil Code is applicable which states:

“Art. 2453. The thing claimed as the property of the claimant can not be alienated pending the action, so as to prejudice his right. If judgment be rendered for him, the sale is considered as a sale of another’s property, and does not prevent him from being put in possession by virtue of such judgment. Nor shall it be lawful for debtors or third possessors of property, subject to a mortgage of any kind, to transfer or alienate such property, pending an action to enforce the mortgage, and any transfer or alienation made in contravention of the provisions of this article, shall have no effect as against the plaintiff, or plaintiffs, in such pending action.”

Should the trial court find eventually that the plaintiffs are entitled to specific performance of the buy-sell agreement, Civil Code Article 2453 will enable the trial court to cancel the transfer of assets to Guarisco-Barbera, in light of the fact that the prior Moss-Guarisco contract was recorded in the public records. Barbera is presumed to have knowledge of the prior contract, and cannot complain of a denial of due process should the transfer of assets to Guarisco-Barbera be eventually cancelled. Similarly, the lease to Barbera and/or Guarisco-Barbera Pontiac-Cadillac-GMC, Inc. of the real estate on which the dealership is situated can be voided because of the lis pendens filed by Moss prior to the execution of the Guarisco-Barbera lease.

On remand, it will be the task of the trial court to determine whether a specific performance of the Moss-Guarisco buy-sell agreement is warranted under the circumstances of the case, should plaintiffs prevail ex contractu against Anthony J. Guarisco, Sr. The trial judge will be guided by the recent pronouncements of the Supreme Court in J. Weingarten, Inc. v. Northgate Mall, Inc., 404 So.2d 896 (La.1981), in determining whether specific performance is a proper remedy in this case.

We note ex proprio motu under the authority of La.C.C.P. art. 927 that Sam C. Barbera, Jr. and Guarisco-Barbera Pontiac-Cadillac-GMC, Inc. are indispensable parties to these consolidated suits inasmuch as these parties hold assets and/or are parties to contracts which may be affected by the final outcome of these proceedings. Therefore, on remand plaintiffs shall join these parties by necessary pleadings within 15 days of the finality of this judgment or suffer dismissal of their suits.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed and the consolidated cases are remanded for further proceedings consistent with the views expressed hereinabove. All costs of this proceeding are assessed to plaintiffs-appellants.

AFFIRMED AND REMANDED.

PONDER, Judge,

dissenting.

I dissent.

My quarrel with the majority is that they do not make the step to which their reasoning and conclusions logically lead, the holding that plaintiff has a cause of action for inducement of breach of contract.

It is ironic that the common law sources upon which the court in Kline v. Eubanks, 109 La. 241, 33 So. 211 (1902), relied have since been overruled in those states despite the stare decisis principle which prevails here and that we are the sole, or practically. sole follower of the original jurisprudence that there is no such cause of action, even though we say that stare decisis does not control our decisions.

In accord with the spirit — and words — of Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978), I would look to the Civil Code as the primary source, recognize that Kline v. Eubanks incorrectly relied on other state sources, later abrogated by those states and that stare decisis “should not be thought controlling in this state” and make the holding that the majority so obviously hopes the Supreme Court will make.

      . Cf. Sandlin v. Coyle, 143 La. 121, 78 So. 261 (1918); Kernan v. Humble, 51 La.Ann. 389, 25 So. 431 (1889); Dickson v. Dickson, 33 La.Ann. 1261 (1881).

      . Prosser, Law of Torts, P. 930 (4th Ed. 1971).

      . Citing Dickson v. Dickson, supra note 1.

      . Kentucky: H. Fiiedberg, Inc. v. McClary, 173 Ky. 579, 191 S.W. 300 (1917). Maryland: Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. 556, 69 A. 405 (1928). California: Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 112 P.2d 631 (1941). Missouri: Downey v. United Weatherproofing Co., 363 Mo. 852, 253 S.W.2d 976 (1953).

      . Prosser, Law of Torts, p. 930 (4th Ed. 1971); see in dicta National Safe Corporation v. Benedict and Myrick, Incorporated, 371 So.2d 792 at 794 (La.1979).

      . See 2 Planiol, Traité Éémentaire De Droit Civil, §§ 363-366, (1939), see also Louisiana Civil Code Article 2316.

      . Stone, “Tort Doctrine in Louisiana,” 16 Tul.L. Rev. 489, 511 (1942).

      . Simmons and Kabacoff, “Inducing Breach of Contract,” 30 La.L.Rev. 713, 724 Note 52 (1970).

      . See generally, Simmons and Kabacoff, “Inducing Breach of Contract”, 30 La.L.Rev. 713 (1979).

      . 15 u.s.c. § l.

      . See State, Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 279 So.2d 671 (La.1973) for a discussion as to what is an indispensable party.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Jerry A. STEWART v. SAM WALLACE INDUSTRIAL COMPANY and/or Swico, Inc. and/or Sam P. Wallace, Inc., Highlands Insurance Company and Shell Oil Company.
    No. 14428.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Writs Denied April 27, 1982.

      John W. Degravelles, Baton Rouge, for plaintiff-appellant Jerry A. Stewart.
    A. S. Easterly, III, Baton Rouge, for defendants Sam P. Wallace Indus. Co., Inc., Highlands Ins. Co., and Shell Oil Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto in which the plaintiff, Jerry A. Stewart, sought damages for personal injuries allegedly sustained when he stepped into a fence-post hole located on the property owned by defendant Shell Oil Company (hereinafter “Shell”). Also made defendants were Sam Wallace Industrial Company (hereinafter “SWICO”) and Highlands Insurance Company. The defendants answered with a general denial, and specifically pleaded the affirmative defenses of assumption of risk and contributory negligence. SWICO further asserted that plaintiff’s exclusive remedy against it was in workmen’s compensation, under La. R.S. 23:1032 and 1061.

The plaintiff proceeded under two theories of recovery, negligence and strict liability under Louisiana Civil Code Article 2317. After trial on the merits, the case was taken under advisement by the trial court. Subsequently, the trial court rendered judgment for defendants. Plaintiff timely perfected an appeal to this court.

The incident which gave rise to the instant litigation occurred on May 28, 1976. At that time, plaintiff was employed by Boh Brothers Construction Company as the foreman of a pile driving crew. The defendant SWICO was the general contractor on a project to build a biotreatment facility for defendant Shell at Geismar, Louisiana. Boh Brothers Construction Company, plaintiff’s employer, was a subcontractor on the project.

The area of the Shell plant at Geismar where the plaintiff and his crew were to drive pilings was undeveloped and overgrown with weeds and bushes. On the day before the accident, plaintiff was informed that a fence was to be removed from the area by SWICO and that the area was going to be “dressed up” i.e., cleared of undergrowth and levelled. The next day, when plaintiff arrived at the work area on the morning of the accident, the fence had been removed; however, the area from which the fence was removed had not been “dressed up.” The plaintiff testified that the exact prior location of the fence was not ascertainable due to the high weeds, grass, and bushes. Several fence posts lay on the ground in no particular sequence or order.

Shortly after work commenced, the plaintiff and the crew had need for a container of air. The plaintiff began to walk back toward the main plant area to obtain same. In so doing, the plaintiff traversed the rough terrain left behind after the removal of the fence. Soon after embarking on his trek back to the main plant area, plaintiff stepped into a hole that was left by the removal of a fence post. The hole was approximately eighteen inches in diameter and three feet deep. As a result of stepping into the hole, plaintiff tripped and sustained serious injuries to his back.

The trial court held that the plaintiff assumed the risk of injury and was thus barred from recovery either under negligence theory or under Louisiana Civil Code Article 2317. In so doing, the trial court pretermitted discussion of the elements of strict liability under Civil Code Article 2317, SWICO’s statutory employer defense, and all other issues.

On appeal, the plaintiff contends that the trial court’s determination that the plaintiff had assumed the risk of injury was erroneous as a matter of law, and plaintiff prays for judgment in his favor, reversing the trial court.

I

We note initially that the statutory employer defense of SWICO is well taken. SWICO was the general contractor on the biotreatment facility construction project undertaken at the Shell plant in Geismar. In that capacity, SWICO subcontracted the pile driving work to Boh Brothers, the plaintiff’s employer. We find that the work done by plaintiff was a part of SWI-CO’s regular trade, business, or occupation as per La.B.S. 23:1061, and that plaintiff’s exclusive remedy against SWICO is in workman’s compensation, La.R.S. 23:1032; Wilson v. Werner Co., Inc., 393 So.2d 779, (La.App. 2nd Cir. 1981); Fultz v. McDowell, 344 So.2d 410 (La.App. 1st Cir. 1977). Thus, only Shell in the instant case could incur ex delicto liability.

II

We note additionally that Shell could not have committed actionablfe negligence under the facts alleged and admitted into evidence at the trial court. Under the construction contract between Shell and SWICO, SWICO was to furnish Shell with a completed facility, with Shell’s only interest being in the result. The method of construction was left completely to SWICO. SWICO pulled the fence posts which left holes behind. SWICO failed to “dress up” the work area as it said it would. SWICO failed to fill or mark the holes or otherwise provide warnings. None of these acts or failures to act can be attributed to Shell, assuming they constitute actionable negligence. Since the hole which plaintiff fell into existed but a single day before the accident, Shell did not know and cannot be presumed to have known of the dangerous condition of its property created thereby. This lack of knowledge, either actual or constructive, negates the possibility of Shell’s negligence.

However, lack of knowledge of an unreasonably dangerous condition does not preclude liability under Louisiana Civil Code Article 2317. According to the Supreme Court in Loescher v. Parr, 324 So.2d 441 (1975), liability under Article 2317 vests when the plaintiff shows that the thing which caused the damage was in the custody of the defendant, that the thing had a vice or defect, and the defect or vice occasioned the damage. This showing creates a presumption of legal fault against the defendant, and the defendant can exculpate himself only by showing that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistable force.

III

The trial court pretermitted discussion of whether Article 2317 applied to Shell in the instant case because it found that the plaintiff had assumed the risk of injury. Thus, the plaintiff was barred from recovery even if the hole in question constituted a vice or defect presenting an unreasonable risk or harm, since the trial court held that the plaintiff’s actions amounted to victim fault. The plaintiff argues on appeal that he could not have been found to have assumed the risk, since his subjective knowledge of the specific risk involved was not proven.

We find the plaintiff’s argument in this vein persuasive. Even though the evidence shows that the plaintiff knew that the fence had been removed, knew that the area around the fence had not yet been “dressed up,” and knew for a virtual certainty that he was at the time of his injury walking through or near the fence row, he did not assume the risk of falling into a fence-post hole for one simple and basic reason: he was not proven to have been aware of the location of any hole. Both J. E. Devillier and Ricky Harrison corroborated plaintiff’s testimony that no one on the work crew knew the location of the hole prior to the time plaintiff stepped into it. Since it was not proven that plaintiff subjectively knew the location of the hole, he cannot have known of the impending risk and cannot have appreciated and understood the danger of the risk involved. See Dorry v. LaFleur, 399 So.2d 559 (La.1981); Fonseca v. Marlin Marine Corporation, 410 So.2d 674, Supreme Court, March 2, 1981.

IV

Although we hold that Stewart did not assume the risk of injuring his back by stepping into a hole, a question which remains is whether contributory negligence can be equated with “victim fault” so as to bar recovery under Article 2317. Loescher, supra at 449. The Supreme Court in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 at 140 (1971), stated categorically that contributory negligence could not be urged as a defense to a strict liability action, inasmuch as contributory negligence presupposed negligence on the part of the tortfeasor and such negligence was not an ingredient of the defendant’s fault under strict liability. However, it must be noted that Langlois was decided some four years prior to Loescher, and was based upon an interpretation of Civil Code Articles 2315 and 2316, rather than Article 2317. Langlois dealt with gas inhalation injuries sustained by a fireman responding to a call at the plant of the defendant. The fireman was stricken though he was but the driver of the fire truck. The court held that the ultrahazardous activity pursued by the defendant (i.e., storage of highly-poisonous gas) imposed strict liability upon defendant when such gas escaped and caused damage. The basis for this holding was a determination that “fault” for purposes of Article 2315 was broader than the term “negligence.” It was in this context that the Court stated that contributory negligence could not be asserted as a strict liability defense, though assumption of the risk could so be asserted.

Thus, we agree with our brethren of the Third Circuit that after thorough consideration of Langlois, we do not regard it as holding that in every case of liability because of non-negligent fault on the part of the actor, contributory negligence is unavailable as a defense. See Parker v. Hanks, 345 So.2d 194 at 198, (La.App. 3rd Cir. 1977). See also Hebert v. United Services Automobile Association, 355 So.2d 575, (La.App. 3rd Cir. 1978).

In addition, in Langlois the Supreme Court held that the plaintiff had not assumed the risk, and further implied that his failure to use a breathing apparatus was not unreasonable, inasmuch as other men on the truck did not consider it necessary to use breathing devices. Thus, in Langlois the court showed that contributory negligence was not attributable to the plaintiff under the circumstances.. For this reason, the statements made regarding contributory negligence as a strict liability defense were but dicta, since such statements were not essential to the outcome of the case. As dicta, the statement that contributory negligence can never be a defense to strict liability is not wholly binding upon this court. Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (La.1971).

In our own circuit, we have in certain cases equated ordinary contributory negligence with “victim fault” as a defense to Article 2317 liability. See Sullivan v. Gulf States Utilities, 382 So.2d 184, (La.App. 1st Cir. 1980), writ denied 384 So.2d 447 (La.1980); Korver v. City of Baton Rouge, 348 So.2d 708 (La.App. 1st Cir. 1977). Another decision in this circuit interpreting Article 2317 held that a victim will be prevented from recovering if his conduct was a cause in fact of the harm-producing incident. American Road Insurance Company v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1977); writ denied 356 So.2d 430, 434, 435 (La.1978).

Furthermore, Langlois has been critized in a recent plurality opinion of the Supreme Court. In Dorry v. LaFleur, 399 So.2d 559 (La.1981), a plurality of the Supreme Court stated that the suggestion in Langlois that contributory negligence may never be a defense to strict liability was overbroad. In Dorry, the plaintiff was injured when he slipped in a puddle on the floor of a skating rink. The Supreme Court stated in its plurality opinion that a plaintiff’s contributory negligence as an available defense to strict liability should be developed on a case-by-case basis. The court in Dorry refused to apply contributory negligence as a defense to the plaintiff’s claim under Article 2322 on the ground that the “ruined” building housed a commercial enterprise to which plaintiff had paid the price of admission. Although we disdain a resort to common-law distinctions between “licensees” and “invitees,” we find that the reasons for not applying contributory negligence as a defense to strict liability in Dorry are not present in the instant case. Nor were the activities of Shell in the instant case the type of ultrahazardous activities which in Langlois properly prevented the application of contributory negligence. In short, we see no deeper, underlying policy reasons which would prevent our application of contributory negligence as a defense to strict liability in the case at bar, contra to the circumstances presented in Langlois and Dorry. Under all the facts of this case, we hold that contributory negligence may be availed of by Shell as an Article 2317 strict liability defense.

V

Clearly, the conduct of the plaintiff was a substantial cause of the harm-producing incident. Evidence in the record indicates that the plaintiff knew that he was walking through or near the fence row. Fence posts were scattered about the area, including one near the hole in which plaintiff fell. The route plaintiff chose to take was overgrown with weeds and bushes. Under these facts, we find that the plaintiff did not use due care either to discover a dangerous hole or to understand the hazards he might encounter. In other words, the plaintiff did not keep a proper lookout as he traversed the undergrowth. Even though the hole was obscured by knee-to-waist high weeds, evidence shows that the hole was some eighteen inches wide and three feet deep. Thus, even considering the high undergrowth, we find that a hole of this size was discoverable by the exercise of due care, and that the plaintiff was contrib-utorily negligent in failing to notice and avoid the hole, Sullivan, supra and American Road Insurance Company, supra. Therefore, because the conduct of the plaintiff was a substantial cause of the harm-producing incident, we hold that the plaintiff was guilty of “victim fault” which bars his recovery under Civil Code Article 2317. Loescher, supra, at 449; American Road Insurance Company, supra.

VI

Since we find “victim fault” by the plaintiff in this case, we expressly pretermit discussion of whether all of the requisites of Article 2317 liability have been proven as against Shell, particularly the troublesome question of whether a landowner who has relinquished control over a construction site to a general contractor, under a “turn-key” contract, can be considered to have still the custody or “garde” over the construction site. Assuming arguendo that all of the requisites of Article 2317 liability have been proven against Shell, we find that plaintiff’s recovery is barred because of “victim fault.”

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed, all costs to be assessed to plaintiff-appellant.

AFFIRMED.

      . Loescher, supra at 449.

      . This court has stated that “victim fault” for Article 2317 purposes might even transcend the traditional negligence defenses of assumption of the risk and contributory negligence, see Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370 (La.App. 1st Cir. 1981) writ denied 401 So.2d 988 (La.1981). See also Lastille, “Fault of the Victim: The Limits of Liability Under Civil Code Articles 2317, 2318, and 2321,” 38 La.L.Rev. 995 (1978).

      . We have considered also whether “third party fault” could be asserted as an Article 2317 defense by Shell, since SWICO employees created the hole and failed to correct the hazard. However; under the standards elucidated in
        Olsen v. Shell Oil Company, 365 So.2d 1285 at 1293, 1294 (La.1978); we find that SWICO was not a “third party” in the instant case.

      . I.e., that the defendant has custody over the thing which occasions damage, that the thing has a vice or defect, and that the damage occurred through the defect or vice; Loescher v. Parr, 324 So.2d 441 at 449 (La.1975).


author: CHIASSON, Judge.

text:
    Agnes David LANGLOIS and Francis Gussie Langlois v. David Norman JARREAU and Beverly Ann Jarreau.
    No. 14464.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Writ Denied April 27, 1982.

      Myron A. Walker, Jr., Baton Rouge, for plaintiffs-appellants.
    Weldon J. Hill, II, Baton Rouge, for defendant-appellee Beverly Ann Jarreau.
    Ralph Brewer, Baton Rouge, for defendant-appellee David Norman Jarreau.
    Before COVINGTON, CHIASSON and COLE, JJ.
   CHIASSON, Judge.

This is an action brought by Agnes David Langlois and her husband,- Francis Gussie Langlois against David Norman Jarreau and his former wife, Beverly Ann Jarreau (now Cole), divorced wife of David Jarreau, to set aside an act of sale dated July 9, 1966, of a tract of land in Pointe Coupee Parish. At the time of the execution of the act of sale from plaintiffs to defendants, the Jarreaus were not divorced. David Jarreau is Mrs. Langlois’ son and Mr. Langlois’ stepson.

Mr. Jarreau answered admitting that the act of sale was passed without consideration, and judgment was rendered against him. Mrs. Cole filed the following answer to an interrogatory propounded to her asking whether or not consideration had been paid for the purported sale:

“No money was paid because the land was a donation, a gift, from Agnes David Langlois and Francis Gussie Langlois to their son, David Norman Jarreau and their daughter-in-law, Beverly Ann Flee-gle Jarreau (Cole) for their use and benefit. The donation being made for the consideration of the love and affection which Agnes David Langlois and Francis Gussie Langlois had for their son and daughter-in-law.”

At the trial, over reciprocal objections for which the trial court overruled, plaintiffs introduced parol testimony showing no consideration was paid for the purported sale, and defendant Mrs. Cole introduced parol testimony that the plaintiffs had intended to donate the property to defendants. Plaintiffs denied donative intent, and testified that they merely intended for defendants to use the land.

It appears that plaintiffs had previously leased the land in question to one Samuel Devillier, and that defendants wanted to buy a camp that Devillier had caused to be built on the land from Devillier. The purported sale price of the camp was $1,500.00. On the very day of the execution of the act of sale in authentic form, defendants mortgaged the land to Mr. David, Mrs. Langlois’ brother, as security for a loan of $1,500.00 from David. Also, the sales price recited in the sale from plaintiffs to defendants of the land was $1,500.00.

The trial court sustained the validity of the transfer as a donation. We affirm. Mrs. Cole filed an answer to the appeal praying in the alternative that in the event this court set aside the sale, the question of the ownership of the camp be remanded to the trial court for hearing. In view of the result, it is unnecessary for us to rule on the alternative plea.

Plaintiffs-appellants make two basic contentions: (1) That parol was improperly used to show donative intent. (2) That the facts as testified to by parol by plaintiffs’ witnesses clearly show the absence of dona-tive intent, but that there was merely a desire to permit defendants to use the property.

Plaintiffs contend that they proceeded properly in introducing testimony that no consideration was ever paid, as Mrs. Cole admitted in answers to interrogatories that no consideration was paid. Mrs. Cole on appeal does not seriously question that plaintiffs properly introduced this testimony. However, Mrs. Cole contends that it was likewise proper to introduce evidence of donative intent on the part of plaintiffs.

The basis of the introduction of parol evidence showing absence of consideration was Mrs. Cole’s answer to one of several interrogatories. However, the answer to the interrogatory must be considered as a whole. Taken as a whole, the answer to the interrogatory indicates in the same paragraph, in fact, that Mrs. Cole and her former husband received the property by donation, as a gift.

Answers to interrogatories, which are a form of judicial confession, must be taken as a whole, and cannot be divided against the party making the answers. LSA-C.C. art. 2291; Henderson v. Guerin, 10 Orleans App. 243 (1913). A party seeking to use answers to interrogatories to vary the terms of an authentic act is bound by the interrogatories, which stand in lieu of a counter letter. Godwin v. Neustadt, 42 La.Ann. 735, 7 So. 744 (1890); Miles v. Miles, 328 So.2d 394 (La.App. 3d Cir. 1976); Barnett v. Barnett, 339 So.2d 495 (La.App. 2d Cir. 1976), writ refused 341 So.2d 1127 (1977); Milton v. Milton, 364 So.2d 173 (La.App. 1st Cir. 1978), writ refused 366 So.2d 574 (1979).

It is well settled that an act of sale in authentic form under which consideration was not in fact paid may be sustained as a donation. Nofsinger v. Hinchee, 199 So. 597 (La.App. 1st Cir. 1941); Milton v. Milton, supra.

Thus, plaintiffs could not introduce parol under the justification of a judicial admission (answers to interrogatories) to show lack of consideration, and validly object to the use of parol to show a gift was in fact intended. Plaintiffs were bound by the answers to interrogatories as a whole, at least to the extent of their being unable to object validly to Mrs. Cole’s use of parol to support her answers. Thus, the use of parol was proper.

The evidence does not support the contention of the plaintiffs that they merely intended to let the defendants “use” the land. The trial court accepted as true Mrs. Cole’s version of the facts, that plaintiffs intended to “give” the land to defendants. The trial court was not clearly wrong, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Thus, the judgment of the trial court is affirmed, one half of the cost of the trial court to be paid by plaintiffs and one half to be paid by David Norman Jarreau; all costs of this appeal to be paid by plaintiffs.

AFFIRMED.

      . The tract of land was described in the act of sale as follows:
      “A certain lot or parcel of land, with all rights, ways, privileges, servitudes and appurtenances thereunto belonging or in any wise appertaining, and with the batture and accretion in front thereof, situated on what is commonly called the Island of False River, in the Parish of Pointe Coupee, State of Louisiana, having a front of fifty (50.0) feet on the right of way of the Louisiana State Hardsur-faced Highway which runs along False River (known as La. State Hwy. No. 413), by a depth between parallel lines extending to False River, which said lot or parcel of land is bounded as follows: Southeast by the right of way of said State Highway along False River, on the lower side or Southwest by property of Harold David, formerly, now of Joseph W. Jines, on the upper side or Northeast by remainder of the property of Agnes David Langlois and Francis Gussie Langlois, from which property the lot of ground herein presently described is taken, and on the Northwest by False River.
      Being a portion of the same property which was acquired by the present vendors, as follows: said Mrs. Agnes David Langlois inherited an undivided Vsth interest therein from her father and mother, Augustin David and Mrs. Maria David David, as per judgment of court, rendered and signed in the matter of the Succession of Augustin David, No. 2049 of the docket of the 18th Judicial District Court of the Parish of Pointe Coupee, Louisiana, on June 10, 1938, recorded on same date under Entry No. 976 of Book ‘N’, conveyance records of said Parish; and said Francis Gus-sie Langlois and Agnes David Langlois purchased the remaining undivided interests therein from their co-heirs, Mrs. Eva David Guidroz, et al, by act of sale passed before J. Thos. Jewell, Notary Public, by act of sale dated Dec. 13, 1953, recorded Dec. 14, 1953, under Entry No. 263 of Book 37 of the conveyance records of Pointe Coupee Parish, Louisiana.”

      . There was no counter letter mentioned in the present case, and we assume none was executed.


author: COLE, Judge.

text:
    Tommy Louis DIXON v. Myrt E. TUGWELL, et al.
    No. 14468.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Jacque B. Pucheu, Eunice, for plaintiff-appellant Tommy Louis Dixon.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellee Myrt E. Tugwell.
    Vincent P. Fornais, Baton Rouge, for in-tervenor-appellant American Cas. Co. of Reading, Pa.
    Jam,es B. Doyle, Baton Rouge, for defendant-appellee Continental Ins. Co.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COLE, Judge.

The issue presented in this personal injury suit is whether or not the defendant is the plaintiff’s statutory employer under La. R.S. 23:1061. We agree with the trial court’s ruling that defendant is a statutory employer, therefore we affirm the dismissal of the suit since plaintiff is limited to seeking workmen’s compensation from this defendant. La.R.S. 23:1032.

This litigation arose from the following facts. Plaintiff-appellant was employed by the construction firm of Je Rock, Inc. (referred to as Je Rock) as a construction worker. Defendant-appellee Myrt Tugwell hired Je Rock to construct a metal building on Tugwell’s property. On September 25, 1977, appellant was “hanging sheet metal” while standing on an “H” beam about twelve to sixteen feet above the ground. Tugwell, who wanted to learn more about the construction of metal buildings, was helping the Je Rock crew by operating a forklift nearby. For reasons unknown, Tugwell’s forklift made contact with the frame of the metal building and Dixon was knocked from the “H” beam to the concrete below. Dixon contends he is permanently and totally disabled as a result of the foot and back injuries he sustained from the fall. He has been receiving workmen’s compensation benefits from his employer Je Rock and has filed this suit against Tugwell and his insurer, Continental Insurance Company, seeking to recover in tort for the damages allegedly caused by Tugwell. Je Rock’s workmen’s compensation insurer, American Casualty Company of Reading, Pennsylvania, joined the suit as an interve-nor.

The trial court rendered judgment in favor of defendant Tugwell, finding that at the time of the accident Tugwell was engaged in the trade, business or occupation of construction and rental of warehouses. Because Mr. Dixon was injured while constructing a warehouse, the situation was held to be one of statutory employment under La.R.S. 23:1061. Mr. Dixon was therefore limited to seeking workmen’s compensation from Mr. Tugwell. La.R.S. 32:1032. The plaintiff and the intervenor have both appealed devolutively.

Appellants contend the court erred in characterizing the situation as one of statutory employment. The gist of appellants’ argument is that Mr. Tugwell was not engaged in the business of construction. Appellants argue that Mr. Tugwell had no contractor’s license, did not advertise himself as a contractor and had no records showing a building business for the year 1977. However, a substantial amount of evidence was offered to show that Mr. Tug-well was involved in the construction business. He testified he had been in the building and remodeling business for ten to fifteen years prior to the time of the accident and had constructed two metal warehouses in the years 1976 and 1977. Mr. Tugwell testified that he built the warehouses “for himself” and rented them to third persons. His 1977 tax returns reflect the rent earned from these buildings. The building permit issued in connection with the warehouse built by Je Rock showed Mr. Tugwell was the contractor for the building. He owned a tractor with which he did the grading. He also painted and performed general labor. He stated he “contracted out” each phase of the construction to various subcontractors. He testified he expected to clear sixty to seventy thousand dollars from his warehouse business in the year 1980.

Whether or not an independent contractor’s activity is part of his principal’s business, so as to render the principal liable in workmen’s compensation (and immune from tort suit) is to be decided from the facts of each case. Sisk v. Insurance Co. of North American, 356 So.2d 1109 (La.App. 2d Cir. 1978).

After considering the facts of this case, the trial court concluded this was a situation of statutory employment. As always, we give great weight to the factual conclusions of the trial court. Its findings will not be disturbed unless the record reveals manifest error has been committed. The entire evidence here obviates a definite and firm conviction on our part that a mistake was committed by the trial court in finding Mr. Tugwell was engaged in the construction business. Therefore, we decline to upset the judgment of the trial court. It is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

It is true Mr. Tugwell listed his occupation on his 1977 tax return as a route salesman. He explained he and his father owned a corporation, H. O. Tugwell and Son Myrt, Inc., which was a cleaning supply business. This fact alone does not convince us Mr. Tugwell was not engaged in the construction business, for a person may be engaged in more than one trade or business for the purposes of the workmen’s compensation law. Slocum v. Lamartiniere, 369 So.2d 201 (La.App. 3rd Cir. 1979), writ denied 1979. See also, Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972).

We are further convinced of the correctness of the trial court’s determination by a case involving a very similar factual determination. In Hebert v. Gulf States Utilities Co., 369 So.2d 1104 (La.App. 1st Cir. 1979), the plaintiff was an employee of Southern Structure, Inc. Southern had been contracted by Kelly Parrino to construct a metal building on Parrino’s property. In the course of his employment Mr. Hebert was injured and sued Mr. Parrino in tort, both individually (as the landowner) and as a business entity. The trial court found, and this court affirmed, that Mr. Parrino was a statutory employer of Mr. Hebert, therefore no tort suit was allowed. The court found that Mr. Parrino was a general commercial contractor and constructed buildings as a part of his trade, business or occupation. The building which Southern was constructing was going to be used by Parrino as a warehouse in connection with his construction business.

In the present case, as in the Hebert case, once the court determined the defendant was engaged in the construction business, that the building being constructed was to be used in the defendant’s business, and that the plaintiff had been contracted (through his employer) to construct the building, the obvious conclusion is that the defendant is the plaintiff’s statutory employer under La.R.S. 23:1061.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellants are cast equally for all costs of court.

AFFIRMED.

      . Continental Insurance Company was granted a summary judgment because of a policy exclusion which deleted coverage from injuries arising from “new construction.”


text:
    Naomi CARTER and William E. Carter v. The CITY PARISH GOVERNMENT OF EAST BATON ROUGE, et al. Mrs. Mary JONES v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    Nos. 14473, 14474.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Rhett R. Ryland, Baton Rouge, for plaintiff-appellants Naomi Carter and William E. Carter.

      Owen M. Goudelocke, Baton Rouge, for defendant-appellee State of Louisiana through the Dept, of Transp. and Development.
    Anthony J. Clesi, Baton Rouge, for defendant-appellee State Farm Mut. Auto. Ins. Co.
    John T. Bennett, Marksville, for plaintiff-appellant Mrs. Mary Jones.
    Lynn E. Williams, Parish Atty., Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, for defendant-appellees City of Baton Rouge and the Parish of East Baton Rouge.
    Before COVINGTON, CHIASSON and COLE, JJ.
   CHIASSON, Judge.

These are consolidated actions for damages resulting from the drowning deaths of Larry Davis and Greta Denice Carter. Plaintiff in the suit for the death of Larry Davis (No. 14,474) is his former wife, Mrs. Mary Jones, who divorced Mr. Davis and remarried (whether before or after the death of Mr. Davis is unclear). Mrs. Jones brought the suit in her individual capacity and as confirmed natural tutrix of the three minor children born of her marriage to Mr. Davis, namely, Larry Davis, Jr., born September 19, 1967, DeJuan Davis, born June 19,1969, and Roy Jevaugh Davis, born September 7, 1980. Plaintiffs in the suit for the death of Greta Denice Carter (No. 14,-473), a minor aged 10 at the time of her death, are her adoptive parents, Naomi Carter and William E. Carter. Defendants in both suits are the State Department of Transportation and Development (DOTD), the Parish of East Baton Rouge, and the City of Baton Rouge. Also named as defendant in the suit brought by Mr. and Mrs. Carter is State Farm Insurance Company (or State Farm Mutual Automobile Insurance Company, to correct the name incorrectly given in the Carters’ petition), the motor vehicle liability insurer under separate policies of Larry Davis and of William Carter, respectively, both policies providing uninsured motorist coverage.

The trial court dismissed with prejudice all of the above named plaintiffs’ suits, after trial on the merits. It rendered judgment in favor of Naomi Carter and against the Estate of Larry Davis in the sum of $25,000.00, and in favor of William E. Carter and against the Estate of Larry Davis in the sum of $25,000.00.

At the outset, we note that the Estate of Larry Davis w,as not made a party defendant in the suit brought by Mr. and Mrs. Carter, and hence the judgment against the Estate of Larry Davis was in error, and must be reversed.

We affirm the judgment of the trial court in all other respects for the reasons given below.

The drownings took place as the result of Larry Davis’ apparently driving past barricades erected to close Interstate 110 and encountering deep water while driving the car under a railroad trestle on the said Interstate highway. There were no witnesses to the tragic course of events, but apparently Mr. Davis and Greta got out of the ear, walked into still deeper water under the railroad trestle, and drowned.

Heavy rains fell in the Baton Rouge area beginning Friday, April 20, 1979. We do not know the exact amount of rainfall, as the rainfall amount is not in the record, either in the form of National Weather Service records or less formal records. However, the rain seems to have been of a nature and extent encountered only once a decade or even less frequently. The rains did not cease until Sunday, April 22.

Many of the streets and highways in East Baton Rouge Parish were flooded, and some homes were flooded. Among other roadways, 1-110 began to flood under the railroad trestle near the Governor’s Mansion. The dip in 1-110 at the railroad trestle is drained in times of heavy rain by a pump, which empties the water into a canal which in turn drains into Capitol Lake. Capitol Lake is drained into the Mississippi River, by pump when the water is high, as it was at the time. During the rain in question, Capitol Lake approached flood stage, as the pump into the Mississippi River could not accomodate the heavy downpour. The evidence established that the pumps on Capitol Lake were not able to keep up with the flood waters being pumped into the lake and draining into the lake from other areas, as a result of which there was the danger of the lake seriously overflowing. Some of the overflow would have backed up onto this section of Interstate 110, it was feared, and could have shorted out the electrical pumps on the said Interstate. There was also testimony showing that due to high level of water in the lake and on the 1-110 the two pumps were recirculating most of the water, and that the rapidly rising waters in Capitol Lake threatened immediate flooding of the Capitol Lake pump. This in turn would have shorted out that pump and led to the flooding of a large section of northern and downtown Baton Rouge and would, of course, have increased the flooding at the 1-110 railroad trestle. In order to prevent the greatest damage the decision was made by the officials of East Baton Rouge Parish and the Department of Transportation and Development to stop the 1-110 pumps and close off I — 110 in both directions. The responsible officials came to the conclusion that without the additional drainage into Capitol Lake from the 1-110 area, the Capitol Lake pumps could handle the overflow into the lake and prevent the lake from continuing to overflow or back up onto the said highway.

At the underpass, 1-110 runs east and west, although it is generally a north-south highway. At the point of the tragic accident, the northbound lane runs east. Larry Davis’ automobile was found facing east in the northbound lane, slightly to the west of the railroad trestle itself, as the descent for the underpass began. Thus, only the manner of closure of the northbound traffic of 1-110 is of direct interest to us in this case. Going northbound, 1-110 was closed by the placing of Type I barricades (a sawhorse type barricade made of wood painted alternately orange and white) completely across 1-110 at Florida Boulevard. The entrance ramps between Florida Boulevard and the underpass were closed by Type I barricades as well. Police cars with flashing lights were placed on 1-110 at Florida Boulevard, but no police cars, policemen, highway patrolmen, or flagmen were placed at the entrance ramps between Florida Boulevard and the underpass. Ruts were found where vehicles had gone across the curb to get past the barricades, and some barricades were moved. The barricades were checked approximately every two hours by officers of the City-Parish or the DOTD.

On Sunday, April 22, 1979, Larry Davis drove with Greta, his niece, and Frances Harris, his common-law wife, to Woodville, Mississippi. Ms. Harris works the night shift at the telephone office in Baton Rouge. After returning to Baton Rouge, Mr. Davis went to his apartment and then drove with Ms. Harris to the telephone company office which is at 333 North 6th Street, Baton Rouge. Greta went with them. Mr. Davis dropped Ms. Harris at 9:55 p.m., and told Ms. Harris he was going to take Greta home, who lived with her adoptive parents in Baton Rouge. His customary route took him left on Florida, down to 10th Street to the Interstate, then in the northbound lane to the Plank Road exit, then home to Greta’s parents. No witness at the trial saw Mr. Davis or Greta alive after Ms. Harris was left at the telephone company office.

Mr. Davis’ car was found Monday, April 23, 1979, with water halfway up the seats, the doors closed, on I — 110 in the northbound lane west of the railroad trestle near the Governor’s Mansion. Nothing was found in the car. The northbound and southbound lanes of I — 110 are separated by a wire mesh fence at the railroad trestle. East of the railroad trestle, Greta’s shoe was found caught in the wire mesh fence.

Dragging operations were commenced at the railroad underpass which was partly flooded. Mr. Davis’ and Greta’s bodies were discovered in the flood waters at the underpass. A sample of Mr. Davis’ blood was obtained from his body, and was found to have .14 alcoholic content.

LIABILITY OF THE DOTD, PARISH OF EAST BATON ROUGE, AND CITY OF BATON ROUGE

Plaintiffs contend, basically, that the DOTD, Parish of East Baton Rouge, and the City of Baton Rouge should be held liable for negligence in improperly designing 1-110 and the underpass drainage pumps, in cutting off the pumps, in putting up improper and inadequate barricades, in failing to post personnel at the barricades, in failing to give proper warning at the barricades in the form of flares or signs, and in failing to erect additional barricades at the point of flooding. Also, plaintiffs contend that the above-named defendants are strictly liable under LSA-C.C. art. 2317, citing the recent Louisiana Supreme Court case of Dorry v. LaFleur, 399 So.2d 559 (1981).

We cannot know precisely what route Mr. Davis took to arrive at the point where he encountered the flooded underpass. All we know is that 1-110 was barricaded at Florida Boulevard and all entrance ramps north of that point were barricaded by Type I Barricades.

It appears that there are three types of barricades. Type I are large sawhorse-type barricades striped alternately orange and white used to close roadways temporarily. Type II are smaller A-frame barricades used to block temporary work or construction, such as manholes that are open. Type III barricades are used to block roads or bridges on a long-term basis, usually because they are involved in a construction project. They are mounted in the ground through posts or firmly secured by sandbags.

Experts on highway safety and engineering were called by both plaintiffs and the defendant governmental bodies. Dr. Brenner testified for plaintiffs and Dr. Ned Walton for the governmental bodies. It appears from the testimony of both that there is a federal and state manual on highway safety and both recommended Type I barricades be used for temporary closings such as closings by floods. However, Dr. Brenner testified these manuals set forth only minimum requirements, and that Type III barricades should have been used.

Dr. Brenner’s recommendation is not practical. Type III barricades are designed for long-term closing, and to. require the use of that type of barricade, which has posts firmly secured to the ground, would place an unduly heavy burden upon road crews, especially if many highways were flooded, as was the case here. Type III barricades were not suitable for emergencies, it is obvious. Type I barricades were clearly the type dictated by established usage and by common sense.

It is clear that Dr. Brenner’s other recommendations — that flashing lights or smudge pots of some sort should have been placed at the barricades, that flagmen should have been placed at the barricades, that barricades should have been erected at the point of flooding, and that sandbags should have been placed on barricades — were neither prescribed by custom or the manual nor practical under the circumstances. The barricades were designed to be “retroreflec-tive”, so the use of flashing lights or smudge pots would have effected no significant additional benefit, while entailing unnecessary effort on the part of an already overtaxed highway crew. We do not know how Mr. Davis traveled to the flooded portion of the Interstate. Police cars with flashing lights were posted at the Florida Boulevard barricades. While no flagmen were posted on the entrance ramps to 1-110 at the other barricades, it would have been impossible to post flagmen at every barricaded roadway in the area. Flooding was widespread. It was not customary or required by the manual to post more than the initial set of barricades. Furthermore, if Mr. Davis ignored the initial barricade, especially in view of the alcoholic content of his blood, it is unlikely he would have heeded barricades positioned at the underpass. The use of sandbags to prevent barricades from being moved was contrary to the manual and harmful to the purpose of barricading the Interstate, as placing sandbags on the top of barricades would have made them top-heavy.

Nor was there a proper sign to post on the barricades or adjacent to them. The sign most nearly appropriate was “Road Closed”. However, testimony indicated a “Road Closed” sign should only be used when the road closure was of a relatively long-term nature. Furthermore, a “Road Closed” sign would not have indicated the closure of 1-110 more forcefully than the barricades themselves.

It is apparent that the accident resulted solely from Mr. Davis’ traveling past one of the barricades. The barricades were correctly posted. We find no negligence on the part of the DOTD, the Parish of East Baton Rouge, or the City of Baton Rouge in erecting the barricades. Rather, the proximate cause of the accident was Mr. Davis’ recklessness in ignoring proper warning furnished by the barricades. There can thus be no liability on a theory of negligence.

Under the theory of strict liability, plaintiffs argue the condition of the highway constituted a defect in a “thing” defendant governmental bodies had in their custody. However, that argument is without merit for the reason that the alleged defective portion of the highway was closed to all traffic. It is true that Dorry v. LaFleur, supra, imposed strict liability on a skating rink owner, the floor of whose rink was known to have water on it in two places. The patron fell in a third puddle of water while roller-skating. The owner had failed to close the rink. The case states that the doctrine of contributory negligence per se is not a defense to strict liability, but rather a must have known (of the defect) test to be applied. However, in Dorry, unlike the present case, the premises containing the defective thing were still open to the public. In our case, the highway was closed. If we apply the “must have known” test, clearly Davis, seeing the barricades, must have known that danger faced him if he went past the barricades. We do not think that reason or justice requires us to extend strict liability to cases in which the allegedly defective “thing” is closed to the public with adequate notice. The premises were closed to the public with proper and indisputably clear notice by the erecting of barricades. Hence, there can be no strict liability.

Having reached the conclusions stated above, it is unnecessary to decide whether or not the highway was improperly designed or the pumps improperly turned off. The proximate cause of the accident was Davis’ driving past the barricades.

We find the DOTD, the Parish of East Baton Rouge, and the City of Baton Rouge free from liability, and affirm the judgment of the trial court in so holding.

LIABILITY OF STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Larry Davis and William Carter each had policies of automobile liability insurance issued by State Farm with policy limits of $10,000 each person, $20,000 each occurrence. The Carters contend that if it is assumed that Larry Davis was negligent, then State Farm is liable for Greta’s drowning as liability insurer of Mr. Davis and uninsured motorist insurer of Mr. Carter. The policies in providing basic liability coverage state that the insurer is obligated to pay all sums up to the policy limits that the insured is obligated to pay for bodily injury including death “arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile... ”, and in providing uninsured motorist coverage state the insurer is obligated to pay any sums an uninsured (underinsured) motorist is obligated to pay because of bodily injury including death “arising out of the ownership, maintenance or use of such uninsured automobile...”

In a recent case, Sherville v. National Union Fire Ins. Co., 387 So.2d 1181 (La.App. 1st Cir. 1980), this Court quoted with approval the following language found in a Third Circuit case, Baudin v. Traders & Gen. Ins. Co., 201 So.2d 379 (1967), writ refused, 251 La. 224, 203 So.2d 557 (1967), setting forth the test to be applied in determining whether or not an accident resulted from the “use” of an automobile:

“(1) The dangerous situation causing injury must have its source in the use of the automobile; (2) The chain of events resulting in the accident must originate in the use of the automobile and be unbroken by the intervention of any event which has no direct or substantial relation to the use of the vehicle; (3) The accident must be a natural and reasonable incident or consequence of the use of the vehicle for the purposes contemplated by the policy, although not necessarily foreseen or expected; (4) The accident must be one which can be ‘immediately identified’ with the use of the automobile as contemplated by the parties to the policy; (5) The accident must be of a type reasonably associated with the use of the automobile as contemplated by the contracting parties; (6) The accident must be one which would not have happened ‘but for’ the use of the automobile.” (201 So.2d 379, 384, 385)

We find that criterion (2) is crucial and not present in the present case, just as it was absent in Sherville, because there was a break in the chain of causation.

The trial court in the case now before us found, in written reasons for judgment, that the accident resulted from the fact Davis and Greta had left the automobile and proceeded on foot into deeper water.

Thus, the death of Greta resulted not from the use of the automobile, but from the decision of Davis, or Greta, or both, to attempt to traverse deeper water. The chain of causation that originated in negligently driving past the barricade was broken by the action of Davis and Greta, in no direct way connected with the use of the automobile, in attempting to traverse still deeper water after alighting from the automobile.

The trial court’s conclusion is well supported by the record. Greta’s shoe was found in the mesh fence dividing the northbound and southbound lanes of the highway, at a point beneath which the flooding on the highway was deeper than the waters in which the automobile was found. Apparently, Greta attempted to walk along the elevated median to the Interstate and was swept out of her shoe, or lost her grip on the fence. The doors on the car were found to be locked by former Chief of Police Kidder, suggesting the flight from the automobile was deliberate and considered rather than hasty. (There was other testimony that the doors were unlocked, but obviously the trial court, who had the benefit of observing the demeanor of witnesses, believed Kidder. We cannot say that the trial court abused its broad discretion in evaluating the testimony of witnesses in accepting Kidder’s testimony as true.) The trial court found that it was evident that Davis and Greta got out of the car and locked the doors. It reasoned that the car had been driven into several feet of water and the engine had stalled, and that Davis’ blood alcohol content of .14 was responsible in whole or in part for his inability to cross the flooded area on foot. In addition, Davis had bad legs as the result of having been struck by a car many years before, which the trial court stated might have contributed to the drownings.

Thus, in sum, the trial court appears to have found that the chain of causation involving use or misuse of the automobile was broken by the further negligent action of Larry Davis in attempting to traverse still deeper water with Greta. In that conclusion, we cannot say it was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Accordingly, the judgment of the trial court dismissing State Farm is affirmed.

The judgment of the trial court is affirmed in all respects, except that the judgment rendered in favor of Naomi and William E. Carter and against the Estate of Larry Davis is reversed and set aside. All costs shall be paid by plaintiffs.

AFFIRMED IN PART; REVERSED IN PART.

      . Counsel for William and Naomi Carter seeks to find something nefarious in a remark made by the trial judge to Dr. Walton that he could find out what the doctrine of the “forgiving highway” meant off the record. However, the remark read in context was made in a moment of levity during a lengthy trial and obviously was not intended to be taken seriously.