author: WATKINS, Judge. GREENE, Judge.

text:
    ALLSTATE INSURANCE COMPANY v. HARTZOG REALTY & CONSTRUCTION CO., INC. and Sid Carroll, d/b/a Sid Carroll Electric Co.
    No. 82 CA 1113.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      James F. Abadie, Baton Rouge, for plaintiff.
    Donald M. Fendlason, and Michael J. Pa-duda, Jr., Bogalusa, for defendants.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Allstate Insurance Company reimbursed its insured, Janet S. Singletary (now Volen-tine) for fire damage to her house, and was subrogated to her claim against the general contractor who built the house, Hartzog Realty & Construction Co., Inc. (Hartzog), and the electrical subcontractor, Sid Carroll, d/b/a Sid Carroll Electric Co. (Carroll), for any claims she might have against them. The fire insurance policy issued by Allstate to Mrs. Singletary had a $100.00 deductible. The total loss was stipulated in the present proceeding to have been $20,599.68. Of this amount Allstate paid Ms. Singletary $20,-499.68. The trial court rendered judgment against Hartzog and Carroll for the full amount of $20,499.68 in solido. Only Hart-zog has appealed.

The only expert witness called at the trial, George Hero of Belle Chasse, Louisiana, testified that the fire started in an electrical fixture, but would have done damage only to the fixture itself but for the fact the ground wire was not connected. The failure to connect the ground wire was the responsibility of the subcontractor and contractor. The trial court obviously considered this testimony to be reliable and accurate and followed Mr. Hero’s testimony in its written reasons for judgment. We have thoroughly reviewed the record, and find that the fire did indeed start in a fixture but spread only because of failure of the builders to attach a ground wire. Thus, the trial court did not commit manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In fact its analysis of the facts is entirely correct, and demanded by the transcript of the testimony. We annex a copy of the trial court’s written reasons for judgment for a full statement of the facts and of the trial court’s factual analysis, in which, as we have stated, we fully concur.

Counsel for appellant, Hartzog, contends that Allstate went beyond the allegation of the defect set forth in its petition when it presented its evidence. We cannot agree. The petition alleged “The proximate and sole cause of the fire was the faulty electrical wiring in the house.” In so stating, counsel for Allstate obviously meant the proximate and sole cause of the larger fire upon which the subrogation claim was founded. The fire started in the fixture, not the wiring. However, the fire would have been confined to the fixture, had not the wiring been faulty, and the larger conflagration was caused, in fact, solely and proximately by the defective wiring, as the petition filed by Allstate alleges.

The judgment of the trial court is affirmed, all costs of appeal to be paid by appellant.

AFFIRMED.

REASONS FOR JUDGMENT

GREENE, Judge.

Plaintiff seeks to recover from defendants the amount which it paid its insured for a residential fire loss. Defendant, Hart-zog Realty & Construction Co., Inc., was the general contractor in the construction of the residence damaged by this fire. Defendant, Sid Carroll, performed the electrical work on this residence for the general contractor.

The parties stipulated that Allstate paid its insured $20,399.68 (sic) representing the insured’s loss from this fire and that- the insured incurred an additional $100 in fire damage to her residence. It was also stipulated that Allstate was subrogated to its insured’s rights to collect this damage from the parties responsible for this damage, if proof substantiated this responsibility.

Testimony establishes that Hartzog Realty & Construction Company, Inc. constructed a house for Allstate’s insured in 1978, with defendant, Sid Carroll, providing the electrical work for the general contractor. The fire occurred on July 23, 1978 between the hours of 5:00 p.m. and 6:30 p.m. The fire started either in or around a lighted medicine cabinet located in a bathroom on a wall which was common to a second bathroom. The evidence further establishes that this light fixture was faulty and started the fire which damaged this house. There apparently was an arching of electricity within the junction box which ignited the paneling and insulation located immediately around the junction box.

It is not clear from plaintiff’s petition filed in this action whether he seeks to recover under the theory of tort or contract. When a party has been damaged by the conduct of another arising out of a contractual relationship, the plaintiff may have two remedies, a suit in contract, or an action in tort, and he may elect to recover his damages in either of the two actions. Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972). This Court will treat this action as being in contract.

Actions on implied warranty are covered by Louisiana Revised Civil Code, Articles 2762 and 2769. An owner may recover under these Articles when a contractor fails to perform work in a workmanlike manner. A & M Pest Control Service, Inc. v. Fejta Construction Co., Inc., 338 So.2d 946 (La.App. 4th Cir.1976). The contractor and subcontractor are solidarily liable for any defective work of a subcontractor. Joyner v. Aetna Casualty & Surety Company, 259 La. 660, 251 So.2d 166 (1971).

Plaintiff is attempting to prove this case with evidence which is largely circumstantial in nature. If circumstantial evidence is used, in order to carry the burden of proof, the circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty; however, this does not mean that the circumstantial evidence must negate all other possible causes. When taking all of the evidence, both circumstantial and direct, as a whole, proof is sufficient if the fact or causation sought to be approved is more probable than not. A & M Pest Control Service v. Fejta Construction Co., Inc., supra.

This Court finds that the faulty electrical fixture where the fire started had not been grounded properly. Mr. George Hero, III, an expert electrical engineer with expertise in the origin of fires, testified that one of the three wires located in the wall leading to the faulty electrical fixture had not been hooked up. Testimony established that this light worked prior to this fire. Mr. Hero deducted that in order for the light fixture to work, two of the three wires had to be hooked up properly, leaving the third wire which had to be a grounding wire not hooked up. Defendant, Sid Carroll, testified that he did not remember actually hooking up the ground wire but it was his normal procedure to hook up all ground wires. Plaintiff carried the burden of proof in showing that this faulty electrical outlet was not grounded when the fire occurred.

Mr. Hero’s testimony was uncontradicted that if the faulty electrical fixture had been properly grounded, the fire “probably” would not have occurred or would have been confined to the area within the fixture. The circuit breaker which was to act as the safety system by breaking the circuit as a result of the electrical current going through the ground wire, was not called upon to operate since there was no ground wire. Testimony establishes that if the circuit breaker had failed, the wires leading into the breaker would be burned; however, the wires leading into the breaker were not burned indicating that the.circuit breaker was not called upon to perform its task or role in the safety system designed to prevent fires.

Defendants contend that since this fire was caused by a faulty fixture, failure to attach the ground wire, which fact they deny, did not cause the fire and therefore they have no liability. It is necessary for the failure to hook up this ground wire to be a cause-in-fact of the fire before liability can be determined.

An act will be found to have been a cause-in-fact of an accident only when, viewed in the light of all the evidence, it is concluded that it is a substantial factor without which the accident would not have happened. Ganey v. Beatty, 391 So.2d 545 (La.App. 3rd Cir.1980). In this case the accident is the fire. This Court finds that the fire would have damaged no more than the electrical box where it started had it not been for the fact that the ground wire was not connected.

Defendants cite Ganey v. Beatty, supra, to support their claim that since the alleged failure to connect the ground wire did not cause the initial fire, they have no liability. Actually, the Court in Ganey held that plaintiff would have suffered his damages regardless of defendant’s negligent acts concerning the condition of his property. Therefore, Ganey does not support defendants’ argument.

This Court finds the failure to hook up this ground wire to be a cause-in-fact of the damage suffered by this building outside the defective light fixture. To hold otherwise in this case would be tantamount to absolving from liability all parties installing equipment designed to prevent the spread of fires once they start.

Therefore, this Court finds defendants to be liable to plaintiff, Allstate, for $20,399.68 and to plaintiff, Janet Singletary, for $100.00. All costs are to be paid by defendants.

This Court will sign a judgment in accordance with these reasons when one is presented to it.


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    Joseph LYTELL, et al. v. The GOODYEAR TIRE & RUBBER CO., et al.
    No. 82 CA 1120.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Bernard S. Smith, Covington, for plaintiffs-appellants.
    Peter Feringa, New Orleans, for defendant-appellee, Goodyear Tire & Rubber Co.
    Marsha Healy, Metairie, for defendant-appellee, Liberty Mut. Ins. Co.
    Wilson Krebs, Covington, for defendant-appellee, Town of Mandeville.
    Don Richard, New Orleans, for defendant-appellee, Kelsey Hayes Co.
    William Hamlin, New Orleans, for defendant-appellee, Firestone Tire & Rubber.
    Mike Balen, Covington, for defendant-ap-pellee, James Campbell Repair.
    John H. Musser, IV, New Orleans, for defendant-appellee, O’Keefe Tire & Auto Inc.

      John McGuckin, Metairie, for defendant-appellee, General Fire & Aec.
    France W. Watts, Franklinton, for defendant-appellee, Travelers, Ins.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal from a trial court judgment dismissing, by summary judgment, the Goodyear Tire and Rubber Company from a products liability suit.

On September 2, 1980, plaintiff, Joseph Lytell and his nephew went to the Mande-ville Town Barn to inspect a 1967 Ford dump truck, which he contemplated purchasing. During his inspection of the truck, Lytell noticed that one of the right rear tires was underinflated.

Lytell borrowed the city’s air compressor and a tire gauge to inflate the tire. He then proceeded to inflate the tire to 50 lbs. p.s.i. Lytell returned the gauge and resumed a crouched position in front of the tire. Before Lytell could replace the valve cap on the valve stem, the rim of the wheel exploded, and Lytell was injured.

Lytell instituted this products liability suit naming as defendants the Town of Mandeville (the alleged owner of the truck), General Accident, Fire and Life Assurance Corporation, Ltd. (the town’s insurer), The Travelers (the town’s joint insurer), Ford Motor Company (manufacturer of the truck), Goodyear Tire and Rubber Company (manufacturer of the tire), Firestone Tire and Rubber Company (manufacturer of the side ring), and Kelsey-Hayes Company (manufacturer of the rim).

Goodyear filed a motion for summary judgment, contending that the tire manufactured by Goodyear did not cause or contribute to the harm complained of. The trial court granted the motion for summary judgment finding that there was no genuine issue of material fact as to Goodyear’s liability.

Lytell subsequently filed a motion for new trial based on Goodyear’s failure to allow discovery. The trial court denied Ly-tell’s motion for new trial on the summary judgment.

Lytell appeals asserting that the trial court erred in two respects: (1) in granting Goodyear’s motion for summary judgment; and (2) in denying Lytell’s motion for new trial.

Motion for Summary Judgment

The issue in this assignment of error is whether, based on the pleadings, answers to interrogatories, depositions, and other evidence, a genuine issue of material fact was presented and whether mover is entitled to judgment as a matter of law.

Plaintiff alleged in his petition that the tire ■ manufactured by Goodyear, at least partially, caused his injuries.

From the depositions of Joseph Lytell, Joseph Milton Johnson, and Jules Edward Walder, Jr., it is undisputed that Lytell put 50 lbs. of air in one of the tires on the truck and an explosion resulted. Plaintiff’s expert, Charles Strader, by deposition stated that the tire was not the direct cause of the explosion. Strader testified that although the tire showed a little age, “it was a tire I would have pulled the nail out of and wouldn’t have been afraid to put back into service.” He later testified that he would have been willing “to 'mount it on a safe wheel and put it back into certain service.” In his failure analysis report, Strader concluded:

“The tube Mr. Lytell recovered several weeks after the accident is not the tube involved in explosion. I was unable to find nail penatration (sic) in tube and hole in valve area is not type of injury to expect with this type of failure. The tube was delivered to me in a plastic bag. The Goodyear tire was manufactured the 19th week of 1973 and despite the age could be placed in limited service after removing nail and making suitable repair. The side ring has been abused from beatings in the mounting and dismounting operation. The rusted, corroded, worn and abused components should have been discarded and not placed in service. This type wheel is dangerous when new, and the hazards are exacerbated when used in this condition. This wheel is defective by reason of design. Because of the large number of injuries and fatalities, the National Highway Traffic Safety Administration persuaded the manufacturers in June 1973 to phase out this wheel and replace it with a new and safer design. Because of the location and type of side ring locking mechanism, it is not possible visually to determine if the side ring is properly seated in rim gutter before inflating tire. The manufacturer has replaced this wheel with the XL. which enables operator to determine if lock or side ring is properly situated.”

It is undisputed that the Goodyear tire remains in usable condition and is not defective.

An injured claimant has the burden of proving that the product was defective, i.e. unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. Hebert v. Brazzel, 403 So.2d 1242 (La.1981); LoBrono v. Gene Ducote Volkswagen, Inc., 403 So.2d 723 (La.1981); Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (La.1971).

Plaintiff strenuously argues that Goodyear knew of the danger which existed when one of its tires was mounted on a split-rim wheel. Lytell specifically points to the warnings in the National Wheel and Rim Association manual in support of his position that Goodyear had a duty to warn of the dangers inherent in its product.

We agree that a manufacturer has a duty to give adequate warning of unreasonable danger involved in the normal use of its product, where the manufacturer knows or should know of such danger. Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978); Cobb v. Insured Lloyds, 387 So.2d 13 (La.App. 3rd Cir.1980), writ denied, 394 So.2d 615 (La.1980). However, such a duty does not extend to a manufacturer whose product is not the legal cause of the injury complained of.

In Lovell v. Earl Grissmer Co., Inc., 422 So.2d 1344 (La.App. 1st Cir.1982), writ denied, 427 So.2d 871 (La.1983), this court set forth the distinction between cause-in-fact and legal cause. In Lovell, defendant was the manufacturer of an electrically-powered, high pressure water sprayer known as the “Blue Lustre Dirt Buster.” The plaintiff in Lovell died from an electrical shock received while using the Dirt Buster to clear the outside of his house. The electric shock received by Lovell was causally related to his use of the Dirt Buster, but the death of Lovell was not found to be the cause resulting from any unreasonably dangerous condition of the machine. The death was the result of the failure of the electrician to properly ground a receptacle in which the Dirt Buster was plugged. See Lovell v. Earl Grissmer Co., Inc., supra.

Similarly, in the case subjudice, the injuries to the plaintiff were not caused by any unreasonably dangerous condition of the Goodyear tire, but were the result of the split-rim wheel on which the tire had been mounted. The tire mounted on a safe rim posed no hazardous condition, just.as the “Blue Lustre Dirt Buster” plugged into a properly grounded receptacle posed no hazardous condition.

Louisiana Code of Civil Procedure Article 966 provides that a mover is entitled to summary judgment if the proceedings, depositions, admissions on file, affidavits, and answers to interrogatories show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Hebert v. Vice, 413 So.2d 342 (La.App. 3rd Cir.1982).

Summary judgment is not a substitute for trial on the merits and cannot be rendered in the absence of a clear showing that there is no genuine issue as to material fact. Landry v. Brandy, 389 So.2d 93 (La.App. 4th Cir.1980); Fly v. Hand, 376 So.2d 1016 (La.App. 1st Cir.1979). In determining the genuineness of the issue, the courts are not permitted to consider the merits of the facts at issue, the credibility of witnesses, or whether or not the party alleging the fact will be able to sustain the burden of proving it. Gulf-Wandes Corp. v. Vinson Guard Serv., Inc., 393 So.2d 207 (La.App. 1st Cir.1980), writ denied, 397 So.2d 1359 (La.1981).

The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Chaisson v. Domingue, 372 So.2d 1225 (La.1979). Further, all doubt concerning a dispute as to a material issue of fact must be resolved against granting a motion for summary judgment. Odom v. Hooper, 273 So.2d 510 (La.1973); Hebert v. Vice, supra.

Stated another way, only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981).

Since the evidence presented on the motion for summary judgment presents no genuine issue of material fact as to Goodyear’s liability and because reasonable minds must inevitably conclude that Goodyear is entitled to a judgment on these facts as a matter of law, the motion for summary judgment was properly granted.

Motion for New Trial

In this assignment of error, the issue is whether the trial judge abused his discretion in denying the plaintiff’s motion for new trial.

Plaintiff alleged in his motion for new trial that Goodyear consistently failed to allow discovery and that the granting of the motion for summary judgment was contrary to the law and the evidence.

In motions for a new trial, the Code of Civil Procedure requires that a new trial be granted “where the judgment appears clearly contrary to the law and the evidence.” The granting of a new trial is within the discretion of the trial court “in any case if there is good grounds therefor.” LSA-C.C.P. art. 1973.

Although plaintiff alleged one peremptory ground (judgment contrary to the law and the evidence) and one discretionary ground (Goodyear’s failure to allow discovery) in his original motion for new trial, his appeal addresses only the discretionary ground. Therefore, we will only address the issue as to Goodyear’s failure to allow discovery.

It is clear from the record that plaintiff made numerous attempts at discovery, without success. Plaintiff, however, has not set forth any relevant evidence that he has been denied as a result of Goodyear’s failure to respond to discovery devices, but merely makes an assertion that the information sought to be discovered was to be used by plaintiff in opposition to the motion for summary judgment.

Where a motion for new trial is based on discretionary grounds, LSA-C.C.P. art. 1973, the appellate court will not reverse the trial court unless an abuse of discretion is established. Simas v. Hicks, 381 So.2d 949 (La.App. 3rd Cir.1980). Under the circumstances of this case and without knowledge of what supportive evidence plaintiff contends that he was denied, we cannot say that the trial court abused its discretion in refusing to grant a new trial.

Furthermore, a motion for new trial is not the proper procedural vehicle to enforce discovery sanctions. The Code of Civil Procedure provides numerous remedies against a recalcitrant party avoiding discovery. See LSA-C.C.P. arts. 1469-1473.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal to be paid by appellant.

AFFIRMED.

      . The specific allegations in plaintiffs petition, as amended, which address Goodyear’s liability provide:
      “III A
      The truck which caused plaintiff Joseph Lytell’s injuries was manufactured by Ford; the rim base from which the side ring, lock ring, or flange exploded was manufactured by Kelsey; the side ring, lock ring, or flange (hereinafter referred to as the side ring) was manufactured by Firestone; the tire which was mounted to the wheel base and side ring was manufactured by defendant Goodyear.
      * * * * .* ⅞!
      VIII
      In the alternative, upon information and belief, the damages to plaintiffs were caused jointly and severally with Ford by defendant Goodyear’s negligence in:
      (a) Manufacturing a product which was unreasonably dangerous to normal use.
      (b) Failing to give adequate warning of unreasonable dangers involved in the normal use of its product where they knew or should have known of such dangers.
      (c) Other acts of negligence that will be brought out at the trial of this case.
      ⅜ ⅜ ⅝ ⅜ ⅜⅞ #
      X
      Plaintiffs specifically and further claim the defendants Ford, Goodyear, Kelsey and Firestone are strictly liable in tort and guilty of gross negligence in manufacturing a product for public use when they knew said product was dangerous and/or had caused serious injury repeatedly and/or despite having knowledge proceeded on a cost analysis basis to continue putting their product on the market place. Further, and therefore, they are each liable in solido to plaintiffs for reasonable attorney fees and costs for having to bring this suit.”

      . Joseph Milton Johnson, nephew of Lytell, accompanied Lytell to the Mandeville Town Barn on September 2, 1980. Jules Edward Walder, Jr. is the Street Commissioner of the Town of Mandeville. Both were eye-witnesses to Ly-tell’s actions immediately prior to his injury.

      . LSA-C.C.P. art. 966 provides:
      “The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      “The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

      . LSA-C.C.P. art. 1972, which sets forth the peremptory grounds for new trial, provides:
      “A new trial shall be granted, upon contradictory motion for any party, in the following cases:
      (1)Where the judgment appears clearly contrary to the law and the evidence;
      (2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
      (3) In jury cases, as provided in Article 1814.”


author: CRAIN, Judge.

text:
    Fred G. HAMILTON v. The AMERICAN INSURANCE COMPANY.
    No. 82 CA 1121.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Charles W. Wilson, III, Baton Rouge, for plaintiff-appellee Fred G. Hamilton.
    James L. Donovan, Metairie, for defendant-appellant The American Ins. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant appeals the judgment of the trial court awarding the plaintiff workmen’s compensation benefits.

The plaintiff, Fred G. Hamilton, and his wife own approximately 40 rental units. Prior to plaintiff’s injury, Mrs. Hamilton handled the accounting and administrative end of the business, while the plaintiff performed part of the maintenance, minor renovations and repairs. On September 30, 1980, the plaintiff was injured while trimming tree limbs on rental property he maintained. The property in question is actually owned by the plaintiff’s daughter subject to a usufruct in favor of Mr. and Mrs. Hamilton. Rentals from this unit are the property of the Hamiltons. Mr. Hamilton was hospitalized for three weeks after the accident and continued to be disabled after his discharge for approximately one year.

American Insurance Company had issued plaintiff a workmen’s compensation policy which was in effect at the time plaintiff’s claim arose. On October 6, 1980, the plaintiff submitted a proof of claim to the defendant requesting payment of compensation. In response, the defendant forwarded a draft in the amount of $599.94 for compensation due for the period September 30, 1980 through November 15, 1980. The plaintiff, thinking the amount tendered was in error, declined to negotiate the draft and subsequently furnished the defendant verification of medical expense in the sum of $3,974.22. Finally, on March 24, 1981, plaintiff received a letter from the defendant’s attorney indicating that the defendant considered the claim non-compensable.

Plaintiff brought this suit to recover workmen’s compensation benefits, related medical expenses, and statutory penalties, including a reasonable attorney’s fee, he alleges are due him because of defendant’s arbitrary and capricious denial of coverage. The defendant filed a third party claim against the plaintiff’s daughter, as owner of the property. The trial court rendered judgment in plaintiff’s favor and against the defendant in the amount of $17,709.00 together with legal interest for compensation benefits and medical expenses. The court also found that there was no ground for awarding penalties and attorney’s fees for the defendant’s alleged arbitrary and capricious refusal to pay. From that judgment, the defendant appeals. Plaintiff appeals that part of the judgment disallowing penalties and attorney’s fees.

On appeal, the defendant lists three assignments of error:

“1. The Trial Court erred in failing to hold that plaintiff’s policy did not cover him while he was performing duties on someone .else’s property.
2. The Trial Court erred in finding that Plaintiff had lost wages when there was nothing in their record to prove he received wages from the owner of the property, Mary Gail Hamilton.
3. The Trial Court erred in awarding judgment against the defendant, American Insurance Company, and in not granting judgment against third-party defendant, Mary Gail Hamilton, as the owner of the property.”

In support of his first assignment of error, defendant claims that the policy issued to Fred Hamilton and his wife only included coverage for buildings and operations owned or leased by them and thus excluded coverage for injuries occurring on property owned by someone else. The defendant fails to point out in his brief these so-called “clear terms of the policy” which would exclude coverage. Defendant apparently relies on the language contained on the declarations page of the policy under “Item 4, Classification of Operations.” Listed under this item is the following: “Buildings NOC (not otherwise classified) Operation by Owner or Lessee”. However, also under that item we note the following language: “Entries in this item, except as specifically provided elsewhere in this policy, do not modify any of the other provisions of this policy.”

Nowhere in the policy do we find a limitation of coverage to injuries occurring on property owned or leased by the plaintiff. The policy only provides that “all of the provisions of the workmen’s compensation law shall be and remain a part of this policy as fully and completely as if written herein, so for as they apply to compensation and other benefits provided by this policy. ..”. La.R.S. 23:1035, a provision of the Workmen’s Compensation law entitled “Employees Covered”, states in pertinent part:

“A. The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his own trade, business, or occupation, or in the course of his employer’s trade, business, or occupation, except that the bona fide president, ... or a sole proprietor with respect to such sole proprietorship may by written agreement elect not to be covered by the provisions of this Chapter.”

There is no question that plaintiff’s business was the ownership and maintenance of rental units and that he was injured while in the process of maintaining one of those units from which he received rentals as usufructuary of the property.

Our review of the policy and workmen’s compensation law reveals no provision that excludes coverage of this injury. At best, the item classification on the declarations page is ambiguous and as such, is to be strictly construed against the party who prepared the contract. La.C.C. Art. 1957; Rayford v. Louisiana Savings Association, 380 So.2d 1232 (La.App. 3rd Cir.1980), writ denied, 384 So.2d 793 (La.1980). Accordingly, we agree with the trial judge that plaintiff’s injury was covered under the workmen’s compensation policy issued by the defendant.

Defendant next argues that even if coverage is afforded under the policy, plaintiff is not entitled to compensation benefits because the plaintiff’s disability did not actually diminish his earning capacity. In support of this argument, defendant relies on the fact that plaintiff’s entire income was derived from rental payments which remained the same despite his disability. Therefore, defendant concludes that the trial court erred in calculating plaintiff’s lost wages under La.R.S. 23:1021(7), by taking plaintiff’s share of rental income for the year in the amount of $20,500.00 and dividing it by 52 to get a weekly “wage” of $394.23.

In 1979, the legislature amended La.R.S. 23:1035 to include self-employed persons under the Workmen’s Compensation Statute. Prior to that amendment, the courts had held that sole proprietors were not entitled to collect compensation benefits. Carney v. Liberty Mutual Insurance Company, 277 So.2d 175 (La.App. 3rd Cir.1973). Since the statute’s amendment, we find no case in which a sole proprietor’s wages were calculated for purposes of determining workmen’s compensation benefits. Neither does La.R.S. 23:1021(7) give us any guidance. However, we do find an analogous situation in the line of cases involving independent contractor’s claims for compensation.

In Burgess v. Southern Casualty Insurance Company, 203 So.2d 434, 437 (La.App. 3rd Cir.1967) the court stated:

“When the injured party is an independent contractor, engaged in manual labor of the same kind as that done by his employees, then his profits and overhead cannot be included as a part of his ‘wages’ in computing the weekly rate of Workmen’s Compensation Benefits which may be due him. In such a situation, the courts will determine the prevailing wage basis for work similar in character to that performed by the claimant, and will use that amount in computing the amount of compensation which may be owed. Carter v. Consolidated Underwriters, 62 So.2d 682 (La.App. 2d Cir.1953); Webb v. Crosby Lumber and Manufacturing Co., 105 So.2d 290 (La.App. 1st Cir.1958); Malone, Louisiana Workmen’s Compensation Law and Practice, P. 185 of 1964 Supplement.”

It is our opinion that a sole proprietor’s “wages” should be calculated in the same way that an independent contractor’s “wages” are calculated for purposes of determining workmen’s compensation benefits. To calculate a sole proprietor’s wages as the trial judge did in this case “leads to a result in the terms of profits from operations, and, in our opinion, has no relationship to wages which should and must serve as the basis for an award of compensation.” Carter, 62 So.2d at 684. In this case, the testimony reveals that the Hamiltons employed at least one man who performed maintenance work along with the plaintiff. It would be appropriate then to use that employee’s wage basis or another’s in a similar job in order to calculate Mr. Hamilton’s “wages”. However, since the record fails to disclose the basis on which this employee was paid, or the amount of work he did in comparison to the plaintiff, it is necessary to remand this ease in order that this evidence may be taken and used in calculating the plaintiff’s actual wages and resulting benefits.

Finally, the defendant argues that if the plaintiff is indeed entitled to receive benefits then plaintiff’s daughter, Mary Hamilton, is the proper party to respond to those benefits under La.R.S. 23:1061 which provides that when maintenance and repair services are performed by a subcontractor at the premises of the principal, the principal becomes the statutory employer of the subcontractor. We find no evidence of any principal-subcontractor relationship between Mary Hamilton and her father. The record reflects that plaintiff was doing the work for himself and his wife as the recipients of the rentals from the property. The naked ownership of the property by Mary Hamilton appears to have been mainly for tax purposes with plaintiff and his wife remaining the actual parties at interest.

Plaintiff lists as error the failure of the trial court to award statutory penalties and attorney’s fees under La.R.S. 22:658, claiming that the withholding of benefits by the defendant was arbitrary and capricious. In his reasons for judgment, the trial judge found no ground for awarding penalties and attorney’s fees, noting that defendant did initially tender a payment that was rejected by the plaintiff and that defendant’s denial of coverage was based on its attorney’s legal opinion. Although the record reflects that defendant denied compensation for different reasons at different times, we find no abuse of discretion on the part of the trial court, especially in view of the difficulty in determining the amount of compensation owed.

For the foregoing reasons we affirm that portion of the district court’s judgment holding plaintiff entitled to workmen’s compensation benefits. We remand for a determination of the amount of benefits based upon plaintiff’s loss of wages determined according to the views expressed herein. Costs are to be paid by the defendant.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Defendant’s assignment of error referred to allowing compensation for wages when no wages were received from Mary Hamilton. In issues presented by the appeal, defendant questions loss of wages when plaintiff’s income consisted of rentals which defendant claims did not decrease. We treat the latter issue here because the other issue is resolved by our holding that Mary Hamilton is in no way responsible in this matter.

      . La.R.S. 23:1021(7) states:
      (7) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; (b) If the employee is paid on a monthly basis, his monthly salary divided by four; (c) If the employee is employed at an annual salary, his annual salary divided by fifty-two; and (d) If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceeding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four; provided, however, that if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by four.

      . In order to determine the amount of compensation benefits due, it is necessary to first determine the extent of disability under La.R.S. 23:1221. The trial judge in this case found that the plaintiff was temporarily totally disabled for a period of one year based on the fact that the plaintiff was unable to engage in any gainful occupation for wages during that period. La.R.S. 23:1221(1). We find no manifest error in that finding by the trial judge. Therefore, the only question left to be determined on remand is the amount of wages the plaintiff was earning at the time of his injury and the resulting benefits based on those wages.

      . La.R.S. 22:658 states:
      All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.


text:
    LOUISIANA NATIONAL BANK OF BATON ROUGE v. Lawrence F. O’BRIEN, Jr.
    No. 83 CA 0008.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9, 1983.

      Fredrick Tulley and Ashley Moore, Baton Rouge, for plaintiff-appellant La. Nat. Bank of Baton Rouge.
    Larry Bankston, Baton Rouge, for defendant-appellee Lawrence F. O’Brien, Jr.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal of a judgment of the trial court dismissing the suit of Louisiana National Bank of Baton Rouge (LNB), as pledgee of a demand note in the sum of $280,000.00, against the maker of the note, Lawrence F. O’Brien, Jr.

The Hilton Hotel in Baton Rouge, Louisiana, was financed, built and owned by a partnership in commendum named Jules B. LeBlanc, Ill-Corporate Hotel Partnership (hereafter partnership). The principal person involved in the partnership was Jules B. LeBlanc, III. The hotel project was part of the development of Corporate Square in Baton Rouge. The major lender on the property was Chase REIT Bank in New York. When Chase required $2,250,000.00 be infused into the partnership to avoid closing down the project, LNB loaned the money to a Don Odom, who bought a 50 percent interest in the partnership with the money and then pledged that entire interest to the bank to secure the loan. The record reflects that LNB thought it was receiving 50 percent of the ownership pledged for its loan, but the documentation does not reflect that, and LNB became concerned about its security after learning of the transaction between the partnership and O’Brien.

The transaction between the partnership and O’Brien apparently occurred when the partnership incurred further financial difficulties and needed additional investors. On December 2, 1975, O’Brien gave the partnership $220,000.00 in cash and executed a “negotiable in rem note” to the partnership for $280,000.00. The nine percent partnership interest was pledged to the partnership to secure the $280,000.00 note.

O’Brien appointed the partnership of Le-Blanc & Brinkley to act as his agent in matters relative to the hotel partnership. The note executed by O’Brien was subsequently transferred by the partnership to Jules B. LeBlanc, III, individually, on December 5, 19.75. The record indicates that O’Brien was aware of this transfer, and at least for tax purposes, it was treated as payment of a fee for the work LeBlanc had done in relation to the hotel.

Charles W. McCoy, chairman of the board and chief executive officer of LNB, testified that during early 1976 he began to believe that LNB had not received all of the security it thought it was to receive when it granted the two and one quarter million dollar loan. McCoy then contacted LeBlanc and insisted that LeBlanc collaterally pledge to LNB the note executed by O’Brien. LeBlanc did so in February of 1976.

In late 1977, the partnership and Jules B. LeBlanc, III, individually, were placed in bankruptcy. The $280,000.00 note was listed in LeBlanc’s individual bankruptcy petition. The bankruptcy court ordered the note returned to LNB.

In September, 1979, LNB served notice on O’Brien to pay the note. This was the first notice received by O’Brien that the note had been pledged to LNB three and one-half years earlier. O’Brien refused to pay the note, and suit was brought against him by LNB.

The trial court ruled that the note in question was a non-negotiable note. As such, written notice of its transfer had to be given to O’Brien within a reásonable time. Based on its finding that such notice was not given for over three years, the trial court ruled that the pledge to LNB was invalid, and consequently LNB had no right of action on the note.

LNB filed this appeal alleging, in addition to other errors, the trial court erred in concluding that LNB had no right of action because of an invalid pledge. We find that the judgment of the trial court was incorrect.

I. VALIDITY OF THE PLEDGE

A. EFFECT OF NONCOMPLIANCE WITH LA.C.C. ARTS. 3158 AND 3160 ON VALIDITY OF THE PLEDGE AS TO THE DEBTOR ON THE NOTE PLEDGED.

The trial court ruled that the note in question was a non-negotiable note, despite the fact that the note itself states that it is a “Negotiable In Rem Note”. The correctness of this ruling is conceded by all parties. Consequently, all of LNB’s rights are contingent on the validity of the pledge of the non-negotiable instrument. The validity of the pledge depends on whether compliance with La.C.C. Art. 3158 is necessary to have a valid pledge as against the debtor on the pledged instrument, and if so, whether there was compliance with La.C.C. Art. 3158 in the instant case.

La.C.C. Art. 3157 provides that a pledgee can satisfy his debt in preference to other creditors of his pledgor, out of the asset pledged. Further, La.C.C. Article 3158 provides:

But this privilege shall take place against third persons only in case the pledge is proved by some written instrument, in which shall be stated the amount of the debt intended to be secured thereby, and the species and nature of the thing given in pledge; or the description of the thing pledged may be contained in a list or statement annexed to the instrument of pledge and giving its number, weight or descriptive marks.
When a debtor wishes to pledge promissory notes, bills of exchange, bills of lading, stocks, bonds, policies of life insurance, or written obligations of any kind, he shall deliver to the creditor the notes, bills of exchange, bills of lading, stocks, bonds, policies of life insurance, or other written obligations, so pledged, and such pledge so made, except as hereinafter provided with regard to life insurance policies, shall without further formalities be valid as well against third persons as against the pledgor thereof, if made in good faith, provided that where the pledge of instruments not negotiable, the debtor must be notified thereof, it being understood that no notification is required in the case of the pledge of certificates of corporation stock.

Additionally, La.C.C. art. 3160 provides that: “When the thing given in pledge consists of a credit or instrument not negotiable, the pledge shall be complete as to all the world, as soon as the debtor of such pledged credit or instrument shall have been notified in writing of the giving of such pledge.”

The scheme of these articles then is as follows: A pledgor can pledge an asset to a pledgee, and thereby give the pledgee the right to proceed directly and by preference to collect the asset and apply it to the pledgor’s debt to the pledgee. La.C.C. art. 3157. If there are other creditors of the pledgor, and the pledge is of a nonnegotiable instrument, these creditors lose their rights to the pledged instrument if the debtor on the instrument is notified of the pledge. Under La.C.C. art. 3160 this notification must be in writing.

This interpretation of these articles is consistent with the jurisprudence. In Williams v. Succession of Robertson, 133 La. 640, 63 So. 250, 251 (1913), quoting from Commercial Bank of Alexandria v. Shanks, 129 La. 861, 56 So. 1028 (1911), the statement is made that: “A pledge of a nonnegotiable instrument not only requires delivery but written notice thereof to the debtor himself. Civil Code, arts. 3158, 3160, as amended by Act No. 157 of 1900, pp. 239, 240.” It is noteworthy that this statement was made with reference to both La.C.C. arts. 3158 and 3160. The reason obviously is because these articles both apply to validity of a pledge as to other creditors of the pledgor, which was the factual situation in both cases.

Only in Foote v. Sun Life Assur. Co. of Canada, 173 So. 477 (La.App.Orleans 1937) was the court faced with an attack on the pledge by the pledgor. There it was held that La.C.C. Art. 3160 was,

without application to the immediate parties to the agreement and may only be invoked by a third person. The obvious purpose of its enactment was to prevent the debtor of the security pledged from paying his obligation to the pledgor or to anyone else, other than the pledgee, where he has written notice of the pledge. 173 So. at 481.

The appellate court further noted that the Commercial Bank and Williams cases, were inapplicable. Consequently, Foote recognized that La.C.C. Art. 3158 was also applicable only to third party creditors of the pledgor.

It is argued that the debtor on the security pledged is in the same position as a third party referred to in La.C.C. Art. 3158 and 3160. We do not agree.- In none of the cases cited did the debtor on the security pledged attack the pledge. In fact, in all of the cases it was a basic assumption that the debtor on the security owed someone, depending on the effectiveness of the pledge.

Third parties referred to in La.C.C. Arts. 3158 and 3160 are obviously creditors of the pledgor because their rights to an asset of their debtor are being affected by the pledge as a result of La.C.C. Art. 3157. The debtor on the security pledged certainly stands in place of the pledgor. He has no more rights than the pledgor with reference to the pledge itself. Since La.C.C. Arts. 3158 and 3160 cannot be invoked by the pledgor to invalidate the pledge, they cannot be invoked by the debtor on the security for the same purpose.

Consequently, the trial court was incorrect in applying La.C.C. Arts. 3158 and 3160 to invalidate the pledge herein.

B. EFFECT OF THE SEVEN DAY NOTICE PROVISION CONTAINED ON THE NOTE.

The note in question provides that a “transfer from the payee named herein to another party or any subsequent transfer shall require ... that notice of said transfer be sent to the undersigned within seven days thereof.” This language contemplates seven days notice in order to effect a valid transfer of title. It does not require seven days notice in order to effect a valid pledge. A transfer of title does not take place with a pledge. People’s Bank v. Cookston, 142 So. 285 (La.App. 2d Cir.1932). A pledgee acquires the right to proceed against the security pledged up to the amount of the debt owed the pledgee by the pledgor. La.C.C. Art. 3220. The pledged property is only a deposit to secure the pledge by the pledgor. La.C.C. Art. 3166. A depositor remains the owner of the thing deposited. La.C.C. Art. 3222.

Consequently, the note does not require seven days notice to the maker in order to effect a valid pledge.

Argument was made that the note was transferred from the partnership to Jules LeBlanc, III, individually without complying with the transfer provisions. Consequently, it is argued that Jules Le-Blanc, III, individually did not have ownership of the note when he pledged it. The court is satisfied after reading the endorsement that it effects a transfer to Jules B. LeBlanc, III from the partnership. Additionally, the trial court found that the maker of the note knew of the transfer thus satisfying the seven day notice requirement. We find no manifest error in this holding. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Thus, we agree that Jules LeBlanc, III, individually had title to the note when he pledged it to the plaintiff.

Consequently, it is our determination that the trial court erred in finding that the plaintiff has no right to proceed on the note in question. The extent of plaintiff’s right remains to be resolved.

II. CLASSIFICATION OF THE “IN REM” NOTE AND EFFECT THEREOF

The note in question is secured by the pledge of a nine percent interest in the partnership which the note along with $220,000.00 cash was given to purchase. It is contended that the maker of the note has no personal liability and that the owner is limited to execution on the nine percent partnership interest which was the security given for the note.

Two questions are raised. Does the note attempt to limit liability to the security? If so, what effect does this limitation have on the liability of the maker of the note in this state?

A. INTERPRETATION OF THE NOTE

We conclude that the note clearly attempted to limit the liability of the maker to the security furnished. The note provides:

This note is secured by an instrument entitled Collateral Pledge of Limited Partnership Interest of even date herewith. Said Collateral Pledge defines and describes the sole and absolute security for payment of this note in the event of nonpayment upon demand and is incorporated herein and made a part hereof, (emphasis added)

The pledge agreement incorporated into the note by the above language provides:

This instrument is in all respect to be construed as a special mortgage, pledge, hypothecation and confession of judgment under the laws of the State of Louisiana by Pledgor in favor of said Pledgee and any Future Holder of said note as the sole security for the payment of the principal and interest of the said in rem note above described in the event of non performance thereof, (emphasis added)

The use of the terms “sole and absolute security” and “sole security” in the note and pledge are indications that the parties intended some limitation of liability on the note, although by themselves, we do not find they are sufficient to limit liability. However, the note is labeled and described throughout both the note and the pledge as an “in rem” note. “In rem” is a technical phrase or term of art whose meaning is accepted by those who deal in such matters. La.C.C. art. 1947. Its accepted meaning is, “a shorthand identification for a mortgage that stipulates no personal liability on the part of the mortgagor”. Nathan, The “In Rem” Mortgage, 44 Tul.L.Rev. 497, 497 (1970).

In the least, all of the above language creates ambiguity as to the true intent of the parties which must be resolved by parol evidence. La.C.C. art. 1950. A careful review of the record indicates that the only evidence as to the intent of the parties when the note and pledge were executed is the testimony of Lawrence O’Brien, Jr. that there was to be no personal liability on his part on the note.

It is argued that the terms of the partnership agreement itself must be looked to in order to determine the intent of the parties. That agreement indicates that the capitalization schedule was changed to reflect a $500,000.00 contribution by O’Brien. Capital contributions were required to be in cash or its equivalent. This indicates personal liability on the part of O’Brien else the ownership of the partnership itself would be used for capitalization of the partnership.

There may be serious questions as to whether O’Brien properly contributed to the partnership for the interest he received and as to the extent of his liability to creditors of the partnership. However, the terms of the partnership agreement are not persuasive in interpreting the documents at issue before the court — the note and the pledge agreement.

We therefore hold that the note and the pledge agreement constitute an agreement by O’Brien to be liable only to the extent of the 9% partnership interest pledged, excluding any personal liability on his part for the $280,000.00 note.

B. VALIDITY OF THE AGREEMENT

Pledges in Louisiana are accessory obligations which depend on primary personal obligations for their validity. It is contended that pledges would not exist if the debtor on the security pledged was liable only to the extent of the property pledged by him to the creditor.

With reference to mortgages, although there has been no jurisprudence specifically sanctioning the “in rem” mortgage in this state, its usage is apparently widespread. See Nathan, supra. The Louisiana Supreme Court, while not faced specifically with a case involving the validity of the “in rem” mortgage, has not been reluctant to use the term in considering acceptable means of financing. See, Keene v. Williams, 423 So.2d 1065 (La.1982), Kavanaugh v. Berkett, 407 So.2d 645 (La.1981). We approve the analysis of Mr. Max Nathan in The “In RemMortgage where he states:

If C loans D $25,000 which is repayable only out of specified assets, there is a “duty” to repay the $25,000, even though not all of D’s estate is obligated to repay it. Whether the correlative aspect of C’s right to be repaid the $25,000 which he has advanced is called a “duty” or an “obligation” or a “debt”, it seems perfectly apparent that C is entitled to be repaid. And it appears naive to contend that the correlative aspects of that right are not in the nature of a debt or obligation. In any event, the transaction is patently “some engagement” within the terms of Articles 3290 of the Code even if it does not give rise to a personal obligation or debt. Article 3290 defines mortgage in terms of securing “the execution of some engagement”, and it strains semantics to belabor distinctions between duty, obligation, debt and “some engagement”. In other words, unless C intends the $25,000 as a gift to D, there is a duty to repay. That duty to repay should suffice as a principal obligation and ought to be sufficient to support an accessorial obligation” (footnotes omitted), Nathan, supra, at 509.

According to La.C.C. art. 3133, “the pledge is a contract by which one debtor gives something to his creditor as a security for his debt.” Mortgage is simply a species of pledge binding the thing mortgaged for payment of the debt. La.C.C. art. 3279. Mortgage and pledge are similar in that in both they are given to the creditor to secure his debt. La.C.C. art. 3280. They differ in the “pledge has for its object only movables, corporeal or incorporeal”, and that in pledge the thing pledged is delivered. La. C.C. art. 3281. There is nothing in the nature of the two security devices which would render an “in rem” mortgage valid and an “in rem” pledge invalid. There is a real “debt” in both sufficient to support an accessory obligation, whether or not that “debt” involves personal liability.

We therefore hold that the obligation of O’Brien is limited to the security pledged for his indebtedness.

Accordingly, we reverse the judgment of the trial court dismissing plaintiff’s suit due to no right of action. We further render judgment dismissing the suit of plaintiff, LNB, against defendant, Lawrence P. O’Brien, Jr., personally. We reserve to LNB the right to proceed, in accordance with law, to collect its debt against the asset pledged for payment of the promissory note sued upon. We assess all costs equally between the parties.

REVERSED AND RENDERED.

      . Although termed a “negotiable in rem” note, the note contained language incorporating the terms of the pledge of the partnership interest. Consequently, the note becomes nonnegotiable under La.R.S. 10:3-105(2)(a).

      . This interpretation of the note is supported by the sentence in the paragraph containing the seven day notice requirement, which states that, “This note is negotiable”. Obviously, after stating the note is negotiable the transfer language was to specifically provide the method of negotiating or transferring the negotiable note. Being negotiable, the ownership of the note was subject to transfer by simple endorsement. Thus, the seven day requirement was to provide added protection to the maker in the event the title to the note was transferred.

      . LNB’s argument centers more on what the note and pledge lack than on what they contain. They lack a provision expressly excluding personal liability. Without the “in rem” language in both the note and the pledge this argument would be persuasive.

      . The actions of the parties to the note give some indication of their intent. Even when the Partnership and LeBlanc were going into bankruptcy the note was never called, indicating it was not considered to be a source of revenue separate and apart from the value of the partnership interest. Additionally, the Referee in Bankruptcy undoubtedly did not consider it an asset that would contribute to satisfying the creditors.

      . Neither does the treatment of the note and pledge by the partnership make the note and pledge contra bonos mores. Our concern is with the note and its effect, not with any problems that may exist in and with the Partnership.

      . See, however, La.C.C. art. 3135 providing for antichresis, the pledge of an immovable.

      . If the 9 percent Partnership interest were considered to have a value equal to or in excess of $280,000.00, the argument over “debt” would lack any meaning whatsoever. If the $280,000.00 could be recovered by execution on the partnership interest then when LNB received the $280,000.00 they certainly would be collecting on O’Brien’s debt.

      . Our holding moots the question raised by O’Brien as to the court’s jurisdiction over the person.


author: LANIER, Judge.

text:
    Marcell O’CONNER v. HAMMOND POLICE DEPARTMENT, et al.
    No. 83 CA 0009.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Milton Osborne, Jr., Baton Rouge, for plaintiff-appellant Marcell O’Conner.
    Reginald McIntyre, Hammond, Michael Clegg, Baton Rouge, for defendants-appel-lees Hammond Police Dept, and Merle Adams.
    Grayson Brown, Baton Rouge, for defendant-appellee Bill Gong d/b/a Anthony’s Dept. Store.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for damages in tort alleging false imprisonment and malicious prosecution. The trial court rendered judgment from the bench in favor of the defendants and dismissed the plaintiffs suit. This de-volutive appeal followed.

FACTS

On October 1,1979, Billy R. Gong was the manager of Anthony’s Department Store located in the City of Hammond, Parish of Tangipahoa, Louisiana. Two males entered Anthony’s and Gong unsuccessfully attempted to sell a leather jacket to them. Approximately thirty minutes later, nine leather jackets valued at $1,060.00 were stolen from Anthony’s. Gong did not observe the theft, but an employee of the store (the record does not reflect who this employee was) advised Gong that the jackets were taken by the same two persons that Gong had tried to sell the leather jacket to earlier.

The Hammond City Police Department was notified of the theft. Detective Melvin Wells was assigned to investigate the case. At Anthony’s, Wells got an automobile license plate number of the car allegedly used in the theft. (The record does not reveal the source of this information.) Wells ran a check on the license number and it came back with a Baton Rouge address. Wells then contacted Lieutenant Gill (no first name given) of the Baton Rouge Police Department and gave him a description of the car and the license number. Gill ran a check on the car and sent four photographs of possible suspects to Wells for identification purposes. Wells showed the photographs to Gong and Gong identified the photograph of the plaintiff, Marcell O’Conner, as one of the persons to whom he attempted to sell the leather jacket prior to the theft.

On October 24, 1979, Wells obtained a warrant for the arrest of O’Conner from the Judge of the City Court of Hammond. On that same day, Wells notified the Baton Rouge City Police of the warrant and O’Conner was arrested in Baton Rouge by Lieutenant Gill. Wells went to Baton Rouge to pick up O’Conner and brought Gong with him. In Baton Rouge, Gong observed O’Conner but could not positively identify him as the person he saw in Anthony’s. Wells took O’Conner back to Hammond for booking and possible identification by other people from the store.

O’Conner remained in jail from October 24, 1979, until October 30, 1979. During this time, people from Anthony’s came to the police station to view him, but none could identify him. On October 30, 1979, Wells, on his own authority, released O’Conner on his own recognizance. O’Conner then filed this suit against the Hammond City Police Department, Merle Adams, Chief of the Hammond City Police Department, and Billy R. Gong.

FALSE IMPRISONMENT

The tort of false imprisonment has two essential elements: (1) detention of a person; and (2) the unlawfulness of such detention. Fontenot v. Lavergne, 365 So.2d 1168 (La.App. 3rd Cir.1978). Unlawful detention is restraint without color of legal authority. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977); Moss v. Maryland Casualty Company, 392 So.2d 772 (La.App. 3rd Cir.1980). Thus, if an arrest is made either without any legal process or warrant or under a warrant void and null upon its face, a false imprisonment has occurred. De Bouchel v. Koss Const. Co., 177 La. 841, 149 So. 496 (1933); Cox v. Cashio, 96 So.2d 872 (La.App. 1st Cir.1957). However, if a person is arrested pursuant to statutory authority, there is no liability for damages for false imprisonment. Kyle, 353 So.2d at 971; Gerard v. Parish of Jefferson, 424 So.2d 440 (La.App. 5th Cir.1982), writs denied 430 So.2d 75, 78 (La.1983). The burden is on a plaintiff to prove that the arrest was made without color of legal authority. Cerna v. Rhodes, 341 So.2d 1157 (La.App. 1st Cir.1976), writ denied 343 So.2d 1067 (La.1977).

In the instant case, O’Conner’s arrest was pursuant to a warrant of arrest issued by the Judge of the City Court of Hammond which is apparently valid on its face. O’Conner’s detention was under color of this legal authority. O’Conner cannot prevail on his action for false imprisonment. Conques v. Fuselier, 327 So.2d 180 (La.App. 3rd Cir.1976); Cox, 96 So.2d at 875.

MALICIOUS PROSECUTION

The elements of the tort of malicious prosecution are as follows: (1) commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff. Johnson v. Pearce, 313 So.2d 812, 816 (La.1975); Robinson v. Goudchaux’s, 307 So.2d 287, 289 (La.1975).

The trial court ruled that O’Conner failed to prove malice by Gong, Wells, Merle Adams or the Hammond City Police Department. Malice exists where the charge is made with knowledge that it is false or with reckless disregard for whether it is false or not. Bristow v. Messer, 336 So.2d 44 (La.App. 2nd Cir.1976). A citizen is not guilty of malice for inaccurately reporting criminal conduct when there is no intent to mislead. Arellano v. Henley, 357 So.2d 846 (La.App. 4th Cir.1978). If a citizen in good faith makes an identification which is the basis for the arrest of another, and subsequently has doubts about the identification and recants same, no malice has been proven. Roche v. Aetna Casualty & Surety Co., 303 So.2d 888 (La.App. 1st Cir.1974), writ refused 307 So.2d 372 (La.1975); Tillman v. Holsum Bakeries, Inc., 244 So.2d 681 (La.App. 4th Cir.1971), application denied 258 La. 352, 246 So.2d 199 (1971). A police officer who acts on the good faith identification of a witness has probable cause to act, and he is not guilty of malice even though the witness subsequently recants on the identification. We have carefully reviewed the evidence of record and conclude that the trial judge’s factual finding on the issue of malice is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed. The appellant is cast for all costs of this appeal.

AFFIRMED.


text:
    Danny Glenn MILLER v. McDONALD’S CORPORATION, et al.
    No. 83 CA 0014.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Fred R. DeFrancesch, Baton Rouge, for plaintiff-appellant Danny Glenn Miller.
    Vincent P. Fornias, Baton Rouge, for defendants-appellees McDonald’s Corp. and McDonald’s Perkins Road, Inc.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This case is before us on an appeal from a judgment which sustained an exception of no cause of action and dismissed Danny Glenn Miller’s (plaintiff) suit. For this reason, the facts below are stated in the light most favorable to plaintiff and are taken from his original and supplemental petitions.

Plaintiff entered the McDonald’s hamburger restaurant on Perkins Road in Baton Rouge and placed an order. The order amounted to less than $2.00. Plaintiff paid with a $10.00 bill but received change for a $5.00 bill. He became involved in an argument with the manager about the “shortchanging.” Some of the other customers present “passed remarks” regarding the argument. After an uncertain interval and without getting any more change, plaintiff “left the enclosed restaurant to sit at one of the exterior tables on the premises.” He was followed out by three women who had been directly behind him in line at McDonald’s. These three women “had become part of the manager’s argument” involving the disputed change. They began shouting obscenities at plaintiff and continued to do so as they entered an automobile. The automobile pulled up next to the table where plaintiff was sitting, and a gunshot was fired which struck plaintiff. One of the three women fired the shot.

Plaintiff brought this suit against McDonald’s Corporation, McDonald’s Perkins Road, Inc., and the XYZ Insurance Company to recover for the damages he sustained from the shooting. The original petition was found by the trial court to state no cause of action. Plaintiff amended to expand upon the allegations of negligence and included a claim for the $5.00 change he never received. The trial court sustained the second exception of no cause, and the case was appealed. This court reversed the trial court’s ruling because of the claim for the $5.00 change. Defendants then deposited into the registry of the court the $5.00. The parties stipulated that the “shortchanging” claim had been satisfied by this tender. They resubmitted the issue to the trial court and anticipated its ruling would be adverse to plaintiff. The trial court again sustained the exception of no cause of action and dismissed plaintiff’s suit. Plaintiff has appealed again.

The peremptory exception of no cause of action tests the legal sufficiency of the pleadings. When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Miller v. McDonald’s Corporation, 415 So.2d 418 (La.App. 1st Cir.1982) and authorities cited therein. Taking the well-pleaded factual allegations as true, the issue is whether the petition on its face presents a case which legally entitles plaintiff to redress. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Mercier v. Flugence, 408 So.2d 52 (La.App. 3rd Cir.1981).

Whether or not plaintiff has stated a cause of action entitling him to redress in this case will be determined by applying to the facts, as stated in his petitions, the duty-risk analysis established by our Supreme Court in Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962) and its progeny. Under this approach, a plaintiff must prove the following elements:

(a) that the conduct of which he complains was a cause in fact of the harm;

(b) the existence of a duty on the part of the defendant which was imposed to protect against the risk involved;

(c) breach of that duty by the defendant; and

(d) actual damage to his person or property as a result of defendant’s action or omission.

Applying this law to plaintiff’s petitions, we see that plaintiff alleged “[t]he manager of the McDonald’s did nothing to deflate a potentially explosive situation and in fact his violent and active participation was a primary cause of the resulting injury to your named petitioner.” Yet the only fact alleged as to the manager’s actions is that he was involved in an argument with plaintiff. We find that “potentially explosive situation,” “violent and active participation,” and “primary cause” are merely vague and eonclusory statements, not well-pleaded factual allegations necessary to a cause of action. La.C.C.P. art. 891.

Plaintiff’s amended petition added paragraphs which stated as follows:

IY — A
Petitioner was followed out shortly by three women who were directly behind him on (sic) line at McDonald’s. They started shouting obsenities (sic) at your petitioner and continued to do so as they entered their automobile.
V — A
The automobile contained the three women who had become part of the manager’s argument over the shortchanging of your petitioner. One of these women fired the shot which severely injured your petitioner.

Accepting these allegations as true, we fail to see any act or omission by the McDonald’s manager which was a cause-in-fact of the shooting. Plaintiff’s argument with the manager over the amount of change ceased when plaintiff left the store and the manager remained inside. Nothing in the petition alleged that the manager had anything to do with the three women following plaintiff out of the restaurant, shouting obscenities at him and shooting him. Since the manager’s actions were not a cause-in-fact of the shooting, recovery against McDonald’s for injuries sustained from the shooting is legally impossible under a duty-risk analysis.

The plaintiff alleged that this McDonald’s was the site of prior criminal disturbances and was “frequented by youths who are many times doped up, high, drunk, or in various combinations of states,” and that McDonald’s failure to maintain reasonable security on the premises breached a duty owed the plaintiff. We disagree. An owner of a business who permits the public to enter its establishment has a duty to exercise reasonable care to protect those who enter. When the independent, intentional, tortious, or criminal acts of a third person constitute the unreasonable risk, the duty can be discharged by summoning those entrusted by law with the power of immediately maintaining the peace, the police, at the time the proprietor knows or should reasonably know of the third person’s intention and apparent ability to execute the intended acts. Rodriguez v. New Orleans Public Serv., Inc., 400 So.2d 884 (La.1981). There are no allegations establishing that McDonald’s knew that the three women possessed a gun or that they intended to shoot plaintiff; nor is there any allegation that McDonald’s refused or failed to summon the police. The trial court’s ruling implies a finding that McDonald’s failure to hire a security guard is not a breach of its duty of reasonable care to protect its patrons. We cannot say, based on the duty as expressed in Rodriguez, that the trial judge’s conclusions were manifestly erroneous.

Plaintiff’s amended petition alleges as follows:

Petitioner’s sister ran into McDonald’s to call for help. She was informed that McDonald’s policy was not to let anyone use the telephone. She screamed and cried but to no avail; McDonald’s employees kept the door locked and continually refused her admittance. She ran outside in frustration and her uninjured brother ran in and only through the use of threats of force was he reluctantly admitted to use the telephone.

Plaintiff’s amended petition further alleges McDonald’s liability because of its “willful and knowledgeable refusal to assist one injured on [its] premises,” and “the failure to train employees in first aid.” We find no authority in Louisiana jurisprudence to impose a duty upon the defendants to come to the aid of one injured on its premises by a third person. We do note that the Restatement (Second) of Torts § 314A provides:

f. The defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered, or is ill or injured. He is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. He is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance.

We agree with the Restatement and hold that a proprietor of a business establishment has an ordinary duty of care to render reasonable aid under the circumstances after he knows or has reason to know that a person on his premises is ill or injured.

Plaintiff’s damages, as alleged, stem from the shooting itself and not from any actions or omissions after the shooting. Under the duty-risk analysis, plaintiff must allege actual damage to his person as a result of the alleged “refusal to assist and/or refusal to render first aid” after defendants knew or should have known that plaintiff had been shot. We will afford plaintiff an opportunity to again amend his petition to allege, if he is able, a breach of duty owed to him after the shooting which resulted in damages to him. La. C.C.P. art. 934.

For the foregoing reasons, the judgment of the trial court is reversed, and the case js remanded to the trial court with instructions to permit an amendment of plaintiff’s petition in accordance with the reasons set forth herein. If plaintiff fails to amend within twenty days after this decision is final, the trial court shall dismiss his suit. Costs of this appeal are taxed to defendants.

REVERSED AND REMANDED.

      . Miller v. McDonald’s Corporation, 415 So.2d 418 (La.App. 1st Cir.1982).


author: SHORTESS, Judge. PER CURIAM

text:
    Marshall BLOUNT v. PEABODY SHORELINE GEOPHYSICAL, et al.
    No. 83 CA 0017.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Jonathan R. Schmidt, Hammond, for plaintiff.
    Richard F. Zimmerman, Jr., Baton Rouge, for defendants.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

This is an appeal from a judgment of the trial court awarding the plaintiff property damages against the defendant, Peabody Shoreline Geophysical (Peabody), and its insurer, Transportation Insurance Company.

Plaintiff, Marshall Blount, alleged that on or about February 8, 1981, Peabody conducted geophysical exploration activities near the plaintiff’s home. These activities involved the detonation of explosive charges which the plaintiff claims resulted in extensive damage to his property. Peabody admitted that it conducted blasting activities in the area of plaintiffs home in early January 1981 but claimed that their last day of blasting in the area was January 7,1981, more than a month prior to the date of the blasting complained of by the plaintiff. Peabody also pointed out that at least three other companies were in that area at the same time doing similar work and remained there after Peabody pulled out.

At the completion of plaintiff’s case in chief, the defendant made a motion to dismiss which was denied by the trial judge. After trial on the merits, the trial court found that the detonations complained of were conducted by Peabody and resulted in the damages to plaintiff’s property. The trial court subsequently rendered judgment in plaintiff’s favor in the sum of $8902.30 plus 12% interest and all court costs, including an expert witness fee of $300.00 payable to L.E. Courtney, Jr. From that judgment, defendant appeals raising eight assignments of error.

In his first assignment of error, the appellant alleges that the trial court erred in failing to grant Peabody’s motion to dismiss at the close of plaintiff’s case. Peabody claims that it was essential that plaintiff establish the identification of the party that detonated the explosives on February 8, 1981. This, the appellant claims, the plaintiff failed to do.

La.C.C.P. art. 1810(B) provides:

B. In an action tried by the court with a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

As we read La.C.C.P. art. 1810(B), the trial judge may choose not to determine the facts on a motion for directed verdict but may choose to “decline to render any judgment until the close of all the evidence.” Thus, when the trial court declines to grant a directed verdict, there is nothing for the appellate court to review. This assignment of error is without merit.

Upon review of the record, however, we find that the trial judge was clearly wrong in his finding that Peabody conducted blasting operations in the vicinity of plaintiff’s house on or about February 8, 1981.

Plaintiff testified that seismographic work was conducted near his home in February of 1981. He pinpointed February 8, 1981 as one of the days blasting occurred which shook his house, because he happened to be home that day. He claimed that Peabody was the company doing the blasting because at one time an employee of Peabody’s came into his yard and asked permission to park and check a break in their line. Plaintiff testified the blasting lasted five to seven days and the work was being done 500 to 750 feet away from his house. A neighbor testified he was present in plaintiff’s home during some of the blasting, but was never asked to give the exact date. Plaintiff’s brother-in-law, who lived about 50 yards from the Blount residence, testified he began having problems with his water well after the blasting — sometime in February of 1981. Finally, another neighbor who lived ¼ mile away from Blount testified she was aware of the blasting around their home in February, 1981. Her testimony concluded plaintiff’s case.

Defendant’s geophysical supervisor on the job, James McNew, testified that Peabody did conduct blasting in the area of plaintiff’s house, but pulled out of the area on January 7, 1981. Defendant also introduced a document, a daily report, which showed that the last day of drilling by Peabody in that area was January 7, 1981. McNew also testified that he was aware of at least three other seismographic companies conducting blasting operations in the same general area as Peabody that remained working after Peabody left.

The trial judge appeared to rely on McNew’s testimony, that when he returned and examined the area in response to plaintiff’s complaint he noticed no holes other than those made by Peabody, as proof that only Peabody had blasted close to plaintiff’s house. However, McNew’s testimony clearly indicates that he only walked Peabody’s line, and was referring to holes only in the immediate area in which their line was located. Additionally, during the month of February, Peabody was working thirteen miles from plaintiff’s house.

Based on the record, it is our opinion that the plaintiff failed to prove by a preponderance of the evidence that Peabody conducted blasting activities in the area of his house on or near February 8, 1981. Therefore, we find the trial judge’s judgment finding liability on Peabody’s part, clearly wrong, and reverse that judgment. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), Canter v. Koehring Co., 283 So.2d 716 (La.1973).

For the reasons assigned, we reverse the judgment of the trial court and dismiss plaintiff’s suit. Costs are to be paid by the plaintiff.

REVERSED AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM

The decision of this court was rendered on October 11, 1983, and mailed that same date. This application for rehearing was filed on November 9, 1983. Pursuant to La.C.C.P. art. 2166, as amended by Act 451 of 1983 ánd effective August 30, 1983, an application for rehearing must be filed within fourteen days of the mailing of the notice of judgment and the opinion of this court. This application is not timely.


author: SAVOIE, Judge.

text:
    CON-PLEX, DIVISION OF U.S. INDUSTRIES, INC. v. LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.
    No. 83 CA 0026.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Michael D. Hunt, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellee Con-Plex, Div. of U.S. Industries, Inc.
    Sharon F. Lyles, La. Dept, of Transp. and Development, Baton Rouge, for defendant-appellant La. Dept, of Transp. and Development.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Louisiana Department of Transportation & Development (DOTD), appeals the trial court’s ruling that it violated the public bid law by failing to sufficiently set forth written specifications and plans of the work to be accomplished.

In March, 1973, the DOTD advertised for bids to construct a new bridge across the Intracoastal Waterway in Calcasieu Parish and to remove the existing pontoon bridge. Plaintiff, Con-Plex, Division of U.S. Industries, Inc. (Con-Plex), obtained a set of plans and specifications and conducted a contractually required on-site inspection. Relying upon the aforementioned plans, specifications, and site inspection, Con-Plex prepared and submitted its bid. Con-Plex, being the lowest qualified bidder, was awarded the job and a formal contract was executed on June 8, 1973.

The new bridge was built in accordance with the plans and specifications and is not at issue in this litigation. Rather, this litigation involves the removal of the existing pontoon bridge.

Upon commencing removal of the' existing pontoon bridge, it became apparent that the plans and specifications relating to it did not accurately reflect the number or size of pilings to be removed. Due to the extra removal work required, Con-Plex requested additional compensation from the DOTD. The DOTD refused to pay the additional compensation.

Con-Plex brought this action for compensation for the removal of the pilings not identified in the DOTD’s plans and specifications. By joint stipulation, the trial was bifurcated with only the issue of liability for compensation being determined in the instant case.

The trial court found that the looseness of the contract’s language could well lead to favoritism and, as such, to an abuse of the public bidding process. It held that the DOTD could not “pass on” to the bidder a job that the DOTD itself should have done in order to comply with the purpose of the public bid law.

The DOTD asserts that the trial court erred in finding that it had violated the public bid law when it prepared a contract which “passed on” or imposed a duty to inquire upon the bidders.

While we affirm the judgment of the trial court, we do so on contractual grounds.

The DOTD contends that the contract’s language put all bidders on sufficient notice that the plans and specifications as received by them did not indicate all the pilings then in existence. Further, they contend that the site inspection required by the contract cured any failure or deficiency in the plans and specifications.

The pertinent contractual language to the case at bar is contained in the State of Louisiana, Department of Highways Book entitled “Standard Specifications for Roads and Bridges”, dated October, 1971, and the Plan Sheet No. 207. Standard specifications provide that:

“102.05 EXAMINATION OF PLANS, SPECIFICATIONS. SPECIAL PROVISIONS, AND SITE OR WORK. The Department will prepare full, complete and accurate plans and specifications giving such directions as will enable any competent contractor to carry them out. The bidder is expected to examine carefully the site of the proposed work, the proposal, plans, specifications, supplemental specifications, special provisions and contract forms before submitting a proposal. The submission of a bid shall be considered prima facie evidence that the bidder has made such examination and is satisfied as to the conditions to be encountered in performing the work and as to the requirements of the plans, specifications, supplemental specifications, special provisions and contract. (Emphasis added).
“105.04 COORDINATION OF PLANS, SPECIFICATIONS, SUPPLEMENTAL SPECIFICATIONS AND SPECIAL PROVISIONS.
These specifications, the supplemental specifications, the plans, special provisions and all supplementary documents are essential parts of the contract and a requirement occurring in one is as binding as though occurring in all. They are intended to be complementary and to describe and provide for a complete work .... (Emphasis added).

Plan Sheet No. 207 provides the following pertinent contractual language, to-wit:

“(1) For information Purposes Only (Emphasis added).
“(2) Additional details of existing pontoon bridge may be obtained upon request from the Bridge Design Section, Louisiana Department of Highways. (Emphasis added).
“C. Special Provisions:
* ⅝: * sfc ⅜ ⅝:
“The contractor shall familiarize himself with the conditions at the site with regard to all pilings to be removed; the existing concrete cap (partially submerged) to be removed; and the existing submarine cables to be removed. He may contact the Department’s District Office in Lake Charles for any specific information he may desire in this regard.” (Emphasis added).

Section 102.05 of the Standard Specifications provides that the DOTD “will prepare full, complete and accurate plans and specifications giving directions as will enable any competent contractor to carry them out.” The courts of this state have interpreted the intent of this provision to require municipal corporations engaged in competitive bidding for public improvement contracts to adopt such plans and specifications fixing the extent and character of the work to be done so that all bidders are given an opportunity to bid on the same thing. Sylvester v. Town of Ville Platte, 218 La. 419, 49 So.2d 746 (1950). Further, it is well settled that the requirement of public bidding is not fulfilled unless the plans and specifications are sufficiently definite and explicit beforehand. Pelican Aviation Corporation v. Airport Authority for the Parish of Iberia, 372 So.2d 1266 (La.App. 3rd Cir.1979); Sylvester, supra; see also 64 Am.Jur.2d Public Works and Contracts § 51 (1972).

Both parties agree that the plans and specifications did not show the correct number and location of the pilings to be removed. Accordingly, we find that the DOTD’s contract, plans, and specifications neither set forth adequate information nor adequately “warn” prospective bidders of the true number and location of the pilings to be removed. For this reason, we find the DOTD has failed to provide sufficiently definite and explicit plans and specifications as required by the public bidding law. As such, the DOTD is liable for the additional cost incurred in the removal of the additional pilings.

Further, it is well settled in Louisiana that legal agreements have the effect of law between the parties and that courts are bound to give legal effect to all such contracts according to the true intent of the parties. L.S.A.-C.C. art. 1945; and Pendleton v. Shell Oil Company, 408 So.2d 1341 (La.1982). The intent of the parties is to be determined by the words of the contract, and when they are clear and explicit, the terms of the contract must prevail. Smith v. Moncrief, 421 So.2d 1127 (La.App. 3rd Cir.1982), writ denied, 426 So.2d 177 (La.1983); and Baker v. Life General Security Insurance Company, 405 So.2d 1162 (La.App. 1st Cir.1981). It is only where the terms of the agreement are unclear, ambiguous or will lead to absurd consequences that the court may go beyond the original agreement to determine the true intent of the parties. Tiara Corporation v. Delta Electronics Company of Louisiana, Inc., 424 So.2d 459 (La.App. 5th Cir.1982); and Bohm v. CIT Financial Services, Inc., 348 So.2d 132 (La.App. 1st Cir.), writ denied, 350 So.2d 673 (La.1977).

Assuming, arguendo, that the contract’s language indicates some intent to put the bidders on notice that the plans and specifications did not indicate all the pilings then in existence, we find the language to be ambiguous. Interpreting the contract against the drafter, as we must in such instance, L.S.A.-C.C. arts. 1957, 1958; and Fishbein v. Bankston, 426 So.2d 649 (La.App. 1st Cir.1982), writ denied, 430 So.2d 665 (La.1983), we find that the DOTD is liable for the additional cost incurred by Con-Plex.

For the above and foregoing reasons, the judgment of the trial court is affirmed and this case is remanded back to it for a determination of quantum. Defendant, Louisiana Department of Transportation & Development, is liable for costs in the amount of $895.60.

AFFIRMED.

      . The record reflects that over the years, the pontoon bridge had been damaged on several occasions and all or nearly all of the original pilings had been replaced without removing the damaged pilings. Many of these damages pilings were below the surface of the water.

      . This statement was attached to the only drawing given to the bidders for this project. This drawing was of the bridge as originally constructed and did not reflect any pilings added subsequent to the bridge’s original construction.


author: COLE, Judge.

text:
    Hiram ALLISON v. CITY OF BATON ROUGE, et al.
    No. 83 CA 0028.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9, 1983.

      Rhett E. Ryland, Baton Rouge, for plaintiff-appellant Hiram Allison.
    Samuel R. Cicero, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge and Parish of East Baton Rouge.
    Gracella Simmons, Baton Rouge, for defendant-appellee Fidelity and Cas. Co. of New York.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

Plaintiff Hiram Allison, a state policeman, was riding his motorcycle on the Pride-Port Hudson Road in East Baton Rouge Parish. As he entered into a curve of the road he noticed several buzzards feeding on a large dead dog which lay on the road’s shoulder. As his motorcycle approached the area the buzzards scattered and one struck the windshield of his motorcycle. Allison attempted to maintain control of his vehicle but was unsuccessful. The motorcycle apparently flipped over and Allison was thrown to the ground. He sustained serious abrasions and injured internally his right shoulder.

Allison filed suit against the City of Baton Rouge, the Parish of East Baton Rouge, and Fidelity and Casualty Insurance Company, the alleged insurer of the City-Parish. The claim against the insurance company was later dismissed. The basis for liability was the City-Parish’s failure to maintain the roadway in a safe condition.

Prior to trial the parties stipulated as to the following facts: One, the road involved is a parish road and in the custody of the City-Parish. Two, there is no standard procedure for the City-Parish to remove dead animals from the road. Three, the animals are picked up only if the City-Parish receives a call about the animal, and then only if the City-Parish employees determine the animal is a hazard. Finally, there is no written procedure existing between any of the various governmental agencies as to removing dead animals from the road.

After trial on the merits the court rendered judgment against plaintiff and in favor of defendants, finding no liability on defendant’s part. Plaintiff filed this appeal.

On appeal plaintiff contends the trial court failed to apply the duty-risk analysis as set forth in Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), rehearing denied 1962. This analysis, as reiterated by the recent case of Naylor v. La. Dept. of Public Highways, 423 So.2d 674 (La.App. 1st Cir.1982), writs denied 427 So.2d 439 and 429 So.2d 127, 134 (La.1983), consists of four inquiries which must be answered affirmatively in order to hold defendant liable.

The first of these questions is whether or not the defendant owed a duty to the plaintiff. It is well settled in this state the governing authority owes a duty to motorists to keep the roadways and shoulders in a safe condition. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), rehearing denied 1980; Rue v. State Dept. of Highways, 372 So.2d 1197 (La.1979), rehearing denied 1979. The second query is whether or not defendant breached the duty. This question is subject to some debate in the present case but, without so holding, we will assume arguendo that the City-Parish’s failure to pick up the large carcass, which had obviously been there for several days, and of which the parish had constructive notice, was a violation of the duty to keep the roadways reasonably safe.

The third issue is whether or not the breach of the duty was a substantial factor in bringing about the harm to the plaintiff, i.e;, was it a “cause-in-fact” of the harm which occurred. Certainly, but for the City-Parish’s failure to remove the carcass the buzzards would not have been in that particular spot and would not have collided with plaintiffs motorcycle.

The final and crucial question is whether or not the risk and harm encountered by plaintiff fall within the scope of the protection afforded by the duty breached. Applying this question to the facts of this case, does the duty to maintain a safe roadway (and specifically to remove a large carcass from the shoulder of the road) include the duty to protect motorists from buzzards which may stop to feast on the carcass? We think not. Although we can envision other hazards associated with the large carcass, such as it being an obstacle to a vehicle using the shoulder of the highway, we do not conclude the hazard of buzzards gathering to feed and then flying suddenly into the path of passing vehicles to be one within the scope of the protection afforded by the duty breached.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay costs.

AFFIRMED.

SAVOIE, J., concurs in the result.

      . The dead animal was described by the investigating officer to have been “bloated” and in an advanced state of decomposition.

      . Officer Tommy Lane of the East Baton Rouge sheriff’s department testified he had seen the dead dog and the buzzards about 30 minutes before the accident. He stated one buzzard narrowly missed striking his vehicle.