author: LANIER, Judge.

text:
    Milton E. QUATTLEBAUM v. HY-REACH EQUIPMENT INC., Et. Al. Don A. INGRAM v. HY-REACH EQUIPMENT, Et. Al.
    Nos. 83 CA 0713, 83 CA 0714.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writs Denied Oct. 26, 1984.

      Robert F. Kennon, Jr., Baton Rouge, for Milton E. Quattlebaum.
    Marvin F. Gahagan, Natchitoches, for Don A. Ingram.
    Gerald L. Walter Jr. and Vincent P. For-mas, Baton Rouge, for J.L.G. Industries Inc. and Hartford Acc. & Indem.
    Paul Marks, Jr., Baton Rouge, for Hy-Reach Equipment Inc.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

These are suits for damages in tort asserting causes of action in strict (products) liability. The plaintiffs, Milton E. Quatt-lebaum and Don A. Ingram, contend that they were injured when a self-propelled aerial work platform overturned. The platform was manufactured by JLG Industries, Inc. (JLG), owned by Hy-Reach Equipment, Inc. (Hy-Reach) and leased by plaintiffs’ employer, Eltek, Inc. (Eltek). The platform was transported to the Eltek jobsite by Nichols Construction Company, Inc. (Nichols). The liability insurer of Hy-Reach was United States Fidelity and Guaranty Company (USF & G) and that of JLG was Hartford Accident and Indemnity Company (Hartford).

USF & G, in its capacity as workmen’s compensation insurer of Eltek, intervened in both suits seeking reimbursement of workmen’s compensation and medical benefits paid and to be paid by it. Marlene Quattlebaum intervened in the Quattleb-aum suit claiming a portion of the recovery sought by her former husband. JLG filed third party demands against Hy-Reach, USF & G and Nichols in both suits. Hy-Reach and USF & G filed third party demands against Eltek in both suits.

Prior to trial, Quattlebaum and Ingram consummated settlement agreements with Hy-Reach, USF & G and Nichols. Quatt-lebaum received $846,560.74 and Ingram received $449,250.26. Pursuant to the settlement agreements, Hy-Reach and USF & G dismissed their third party demands against Eltek and USF & G dismissed its interventions. Hy-Reach and USF & G then filed a third party demand against Quattlebaum pursuant to the settlement agreement for indemnification in the event there was judgment in favor of Quattleb-aum on his main demand and in favor of JLG on its third party demand.

Quattlebaum and Ingram then proceeded to trial against JLG and Hartford. The district court rendered judgment in favor of JLG and Hartford and dismissed the plaintiffs’ suits. These suspensive appeals followed.

FACTS

In 1969, Fulton Industries, Inc., later succeeded by JLG, commenced developing and designing a new type of industrial machine known as a mobile aerial work platform. This machine combined the extending boom features of a mobile hydraulic crane with the capacity to transport workers in a basket or platform to elevated heights. The first models manufactured in 1970 had booms which ascended to heights of 27 and 40 feet. Stability for these models was provided by a counterbalance design (adding weight to the base of the machine). In 1971, a model capable of reaching heights of 60 feet was designed, manufactured and called the “JLG Model 60” (JLG-60). This model achieved stability with a system of outriggers which would enlarge the surface area of the base of the machine when extended. The outrigger design had been used previously in stabilizing mobile hydraulic cranes as crane booms got longer. This design contemplated that the outriggers would be fully extended before the boom was extended to insure stability and safe operation of the machine.

In the process of designing the JLG-60, a field study was conducted. This study indicated that the possibility existed that the machine would be operated without the outriggers extended. The original design of the JLG-60 provided for a placard to be located on the boom within sight of the operator which gave (among others) the following warning:

Outriggers must be set at all times for all operations. Machine must be level, with each outrigger set on firm footing.

After the machine was marketed, JLG received reports from dealers that machines were being used without properly setting the outriggers. Because of this, JLG sent a letter dated March 12, 1973, to all dealers instructing that under no circumstances should the machine be used without setting all four outriggers to prevent any possible tipping of the machine.

In 1975, JLG manufactured a JLG-60 bearing Serial No. 723985 which was sold to Hy-Reach on January 16, 1976. Hy-Reach was in the equipment rental business and had about 20 or 30 JLG-60s.

Pursuant to industry standards, manufacturers, such as JLG, are required to print and make available to dealers, such as Hy-Reach, a manual of operations, maintenance and parts. The copy of the manual filed in the record is dated August 30,1974, and was revised on February 1, 1977. At page 1-5 of this manual in Section 1 entitled “SAFETY PRECAUTIONS” appears the following:

OUTRIGGER BEAMS MUST BE FULLY EXTENDED AND ALL JACKS SET ON FIRM SURFACE, WITH MACHINE LEVELED, BEFORE ANY BOOM OPERATION IS PERMITTED.

On Page 3-10 of the manual in Section 3 on Operating Information appears the following warning:

ASSURE THAT OUTRIGGER BEAMS ARE FULLY EXTENDED AND JACKS ARE FIRMLY POSITIONED PRIOR TO ANY BOOM OPERATIONS.

Copies of this manual were made available to Hy-Reach.

JLG also prepared a pocket-sized handbook which essentially contained the facts in the operations section of the manual. This handbook was designed to be utilized by users of the machine. The first issue of the handbook came out in September of 1976. The evidence shows that 50 copies of the handbook were sent by JLG to Hy-Reach on November 17, 1976. The handbook was revised on June 1, 1977. The evidence shows that 200 copies of the handbook were shipped by JLG to Hy-Reach on November 15, 1977. The final revision of the handbook was made on May 1, 1978. On the inside flap of the handbook appears the following:

CAPACITIES AND STABILIZATION.
Raising boom above horizontal and/or extension of boom beyond retracted position with or without any load in platform, is based on the following criteria:
4. Outrigger machine — outriggers shall be fully extended and jack cylinders set, as required, to level machine. Use blocking if soil conditions require.

On page 14 of the handbook in a section entitled “OUTRIGGER CONTROLS” appears the following:

WARNING
DO NOT SET OUTRIGGERS ON TERRAIN THAT COULD CAUSE THE MACHINE TO TIP DURING BOOM OPERATIONS. DO NOT OPERATE THE BOOM UNTIL MACHINE IS STABLE AND LEVEL WITH OUTRIGGER BEAMS FULLY EXTENDED AND JACKS SET ON A FIRM SURFACE. USE SHORING ON SOFT SURFACE.

On page 32 of the handbook in a section marked “operation” appears the following:

IF APPLICABLE, ENSURE THAT EXTENDING AXLES OR OUTRIGGERS
ARE COMPLETELY SET BEFORE COMMENCING BOOM OPERATIONS

Joseph Sheridan, the operator trainer for Hy-Reach, testified that Hy-Reach tried to make sure that users of the JLG-60 received an operator’s handbook. Hy-Reach attempted to get the handbook to the user in a number of ways. First, the handbook was sealed in a plastic bag and strapped to the machine around the control box area. Second, Hy-Reach requested that the driver delivering the machine give a handbook to one of the operators. Third, handbooks were handed out to people in the field. The operations manual was not delivered to users. Sheridan testified that it was unnecessary to deliver the manual to users because only the operation section would be useful and this information was covered in the handbook.

On April 4, 1977, JLG issued a field service change letter to all dealers. This letter had “SAFETY RELATED — URGENT ACTION REQUIRED” coded in red as a heading. One of the field changes called for the installation of the following outrigger warning- placard:

Three of these placards were provided for each JLG-60 at no cost to the dealers. These placards were to be installed immediately upon receipt.

On February 17, 1978, JLG sent a field service change letter to all dealers containing the following:

SUBJECT: Installation of Outrigger Interlock Circuit.
PURPOSE: Provide an electrical circuit to limit boom function until the outriggers are securely set in accordance with current production standards.
REASON: Reports from the field indicate some personnel are ignoring warnings posted on the machine, in the safety and operation handbook, and the operating section of the manual. This circuit change will reinforce the warning by not permitting boom elevation above horizontal nor telescoping out until outriggers are set.
DATE TO BE ACCOMPLISHED: Immediately upon receipt of this service change and parts.

The words “SAFETY CHANGE REQUIRED” were color coded red across the first page of the letter. The records of JLG indicate that Hy-Reach ordered an interlock kit which was shipped on July 31, 1978. However, Joseph Sheridan testified that four or five interlock systems were installed on Hy-Reach’s machines.

On September 29, 1978, JLG sent a field service change letter to all dealers that an alarm system should be installed on all JLG-60s which did not have outrigger interlock circuits. This letter provided in pertinent part as follows:

MODELS AFFECTED: 60 with outriggers, prior to S/N 741217, not having outrigger interlock circuits.
SUBJECT: Installation of an outriggers not set alarm.
PURPOSE: To provide a parts listing, installation procedure, and functional check procedure for alerting machine users that a potential hazard exists if outriggers are not extended and lowered.
REASON: Reports and incidents from the field indicate some personnel are ignoring warnings posted on the machine, in the safety and operation handbook, and the operating section of the manual. This electrical circuit will alert users to return the boom to the stowed position until all outrigger full extension is assured.
DATE TO BE ACCOMPLISHED: Upon receipt of this service change and parts at dealer/customer discretion and expense.

The records of JLG indicate that Hy-Reach ordered eleven alarm warning kits for installation on their machines. In particular, an alarm warning kit was ordered for machine No. 723985 on December 7, 1978. These alarm warning kits were furnished to Hy-Reach at no charge. Joseph Sheridan testified that only one alarm warning kit was installed on a Hy-Reach machine. Included in the alarm warning kits was an additional warning placard for placement on the machines which provided as follows:

Hy-Reach leased JLG-60, Serial No. 723985, to Eltek on August 10, 1979. On that same day, Nichols delivered the machine to the Big Cajun No. 2 power plant jobsite located near New Roads in Pointe Coupee Parish, Louisiana. Present on the site when the machine was delivered were Morgan Vosburg (foreman for Eltek), Archie Girlinghouse (temporary foreman for Eltek on the day of the accident), Joseph Dietrich (electrical apprentice for Eltek) and Don Ingram (electrician for Eltek). A search was conducted for an operating or instruction manual for the machine, but none were found. No user handbooks were made available by Hy-Reach. Gir-linghouse attempted to extend the outriggers but was unsuccessful. He assumed that the outriggers did not work and drove the machine off of the truck. Girlinghouse and Ingram then proceeded to use the machine to do electrical work on two 60 foot towers under construction.

On August 11, 1979, a skeleton crew composed of Girlinghouse, Quattlebaum and Ingram was engaged in running lightning arrester cable on the inside ceiling of a cooling tower. Girlinghouse was the temporary foreman for that day. Girling-house discussed with Quattlebaum the operations of the JLG-60. Quattlebaum noticed the outriggers, but Girlinghouse explained that he could not get them to work and did not think that the failure to use them posed any danger. Quattlebaum and Ingram used the machine to install the lightning arrester cable while Girlinghouse supervised the work. The machine was used continuously from 7:15 a.m. until the accident occurred. Throughout this time, the outriggers were never extended. At 3:30 p.m. when Ingram and Quattlebaum were descending to take a break and pick up material, the machine tipped over causing the basket to fall 30-40 feet. Quattleb-aum and Ingram suffered severe personal injuries.

The accident machine did not have either the interlock or alarm safety device installed. Sheridan testified that he did not consider such installation mandatory. There is conflicting testimony about whether the original design warning placard was on the boom of the accident machine. The district court found as a fact that it was. We have reviewed the testimony and this finding is not clearly wrong. None of the warning placards subsequently furnished by JLG were placed on the accident machine by Hy-Reach.

PRODUCTS LIABILITY LAW

The foundation case in Louisiana products liability law is Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754, 755-756 (1971) wherein the Louisiana Supreme Court observed as follows:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiffs injuries were caused by reason of the defect.
If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.

The “normal use” of a product is its foreseeable use and may include something broader than use exactly in accordance with a manufacturer’s instructions. Pawlak v. Brown, 430 So.2d 1346 (La.App. 3rd Cir.1983), writ denied, 439 So.2d 1072 (La.1983).

However, in Chappuis v. Sears Roebuck and Company, 358 So.2d 926 (La.1978), it was held that a manufacturer’s product liability duty (standard of care) was established by Title VII of the Louisiana Civil Code on sales (and particularly Chapter 6 thereof defining the obligation of the seller —La.C.C. arts. 2474-2548). The court then observed that, although the standard of care is fixed by the civil code provisions on sales, the liability of the manufacturer is fixed by La.C.C. art. 2315. The court observed that there are many products which become dangerous for normal use in certain conditions and held that “when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally, the manufacturer must take reasonable steps to warn the user.” Chappuis, 358 So.2d at 930. (See discussion of Chappuis in W. Crawford, Work of Appellate Courts 1977-1978: Torts, 39 La.L.Rev. 687-693 [1979]).

In Hunt v. City Stores, Inc., 387 So.2d 585, 589 (La.1980), the court followed the Weber rule and characterized it as “a rule of strict liability for manufacturers of defective products”. The court found that the product (escalator) presented an unreasonable risk of harm in normal use which could have been anticipated by the manufacturer and held that because no warning of the defect was given that the manufacturer was liable for the resulting injury. The court observed that the risk of harm was known to the manufacturer but was not obvious to the public, and despite knowledge of the risk, the manufacturer did not warn of the hazard.

In Philippe v. Browning Arms Company, 395 So.2d 310 (La.1981) (on rehearing), the court observed that, while La.C.C. arts. 2315 and 2316 are the fountainhead of tort responsibility, the applicable standard of conduct is determined by consulting the many codal articles, statutes and laws which provide for certain responsibilities according to the person involved or to the relationship or activities involved. The standard of care owed by a seller or manufacturer of a thing to a purchaser of the thing is governed by the codal articles on sales as applied through La.C.C. art. 2315. A purchaser of a defective product may proceed either in tort or contract (redhibitory action) because the manufacturer’s act of delivering a defective thing gives rise to delictual, as well as contractual, liability. See also Storey v. Lambert’s Limbs & Braces, Inc., 426 So.2d 676 (La.App. 1st Cir.1982), writ denied, 433 So.2d 152 (La.1983).

In DeBattista v. Argonaut-Southwest Insurance Company, 403 So.2d 26 (La.1981), the court held that the word “fault” found in La.C.C. art. 2315 is defined for purposes of products liability in Weber. The words “unreasonably dangerous” were included in the definition of fault to prevent manufacturers from becoming insurers of their own products and mean simply that the article which injured a plaintiff was dangerous to an extent beyond which would be contemplated by an ordinary consumer. The liability of the manufacturer of a product is not governed by the law of contractual warranties but by the law of strict liability in tort. Rules defining and governing warranties which were developed to meet the needs of commercial transactions cannot properly be invoked to supersede Civil Code Article 2315 which serves the much broader purpose of governing the liability of a manufacturer or processor to those injured by his defective products.

In Hebert v. Brazzel, 403 So.2d 1242 La.1981), the court adopted the Weber statement of the law and observed that a product is unreasonably dangerous (defective) when it is dangerous to an extent beyond that which would be contemplated by an ordinary consumer or user. The plaintiffs presented no evidence that an ordinary user would fail to contemplate the danger involved in opening a valve with a wrench, and the trier of fact could reasonably conclude that an ordinary oilfield worker would appreciate the danger involved in greatly multiplying the torque to a valve stem by turning it with a 24" stillson wrench. The court further held that a manufacturer must give warning of any danger inherent in his product’s normal use which is not within the knowledge of an ordinary user. It then found that a reasonable trier of fact could conclude that the danger of breaking the valve stem with a large wrench due to excessive torque was obvious to an ordinary worker. (Implicit in this holding is that where there is an obvious danger there is no duty to warn.)

In Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982), the court observed that the word “fault” in La.C.C. art. 2315 contemplated three types of liability: absolute, strict and negligent. The distinction between strict liability and negligent liability is that the claimant in a strict liability case is relieved of proving that the defendant knew or should have known of the unreasonable risk (defect) involved. In 418 So.2d at 498 n. 6, the court observed as follows:

In products liability cases, the manufacturer is presumed to know the dangerous propensities of its product and is strictly liable for injuries resulting from the product’s unreasonable risk of injury in normal use. The claimant nevertheless must prove that the product presented an unreasonable risk of injury in normal use (regardless of the manufacturer’s knowledge), thus in effect proving the manufacturer was negligent in placing the product in commerce with (presumed) knowledge of the danger.

Finally, in Andries v. General Motors Corporation, Delco Batteries Division, 444 So.2d 1180, 1183 (La.1983), appears the following:

The trial court refused the requested special instruction, having already included the following in the court's instructions, a copy of which was provided to counsel prior to trial:
‘A manufacturer of a product must give an adequate warning of any danger inherent in any product made by him or in its use which he knows or should know, and which the user of the product would not ordinarily discover. The warning should be such that if followed, it would make the product safe for users. To comply with this duty, the manufacturer must appropriately label the product, giving due consideration to the likelihood of accident and the seriousness of the consequences from failure to label it to warn of any dangers that are inherent in it and its use or that may arise from improper handling or use of the product. However, the duty of a manufacturer to warn goes only to those dangers which are not obvious. A manufacturer is not compelled to warn knowledgeable purchasers of the dangers of which they know or should be aware.’
We conclude that the trial judge’s instruction on adequacy of warning was a complete and correct statement of the law, which included the substance of the requested instruction.

See also Lovell v. Earl Grissmer Company, Inc., 422 So.2d 1344 (La.App. 1st Cir.1982), writ denied, 427 So.2d 871 (La.1983).

In a strict products liability case, the plaintiff bears the burden of proving the essential elements of his cause of action. Lytell v. Goodyear Tire & Rubber Co., 439 So.2d 542 (La.App. 1st Cir.1983).

CONTENTIONS OP APPELLANTS AND HOLDING OF DISTRICT COURT

Quattlebaum and Ingram contend that the JLG-60 .was unreasonably dangerous in normal use (defective) because it was foreseeable that the machine would be used without its outriggers extended, that it was likely the machine would turn over if it was operated without the outriggers extended, that it was defective in design because it did not have appropriate safety devices and that appellants were not adequately warned and instructed about the danger of using the machine without the outriggers extended. The district court found as matters of fact that the machine was not defective and that the accident was caused by the negligence of Hy-Reach. The district court specifically found that Hy-Reach disregarded the warnings sent by JLG, failed to deliver an operations manual when the machine was leased to Eltek and did not install the alarm or interlock safety devices. An appellate court should not disturb a factual determination of the trier of fact unless it is clearly wrong considering all the evidence. Hebert v. Brazzel, 403 So.2d at 1244.

ADEQUACY OF WARNINGS

Even if we were to assume for purposes of argument that the failure originally to include the alarm or interlock devices on the JLG-60s was a defect in design and that it was foreseeable that the machine would be used in the field without the outriggers extended, the plaintiffs still cannot prevail in this action. As indicated in the above jurisprudence, if a product has dangerous propensities (which a manufacturer is presumed to know) that render it unreasonably dangerous (defective) to normal (foreseeable) use, the manufacturer is liable if it fails to give a warning adequate to apprise the user of the specific risk of harm which may be encountered by the user during the use of the product. Smith v. Formica Corporation, 439 So.2d 1194 (La.App. 1st Cir.1983). An adequate warning is one which, if followed, would make the product safe for the user, that is, had the injured person complied with the warning, there would have been no accident. Cf. Benoit v. Ryan Chevrolet, 428 So.2d 489, 493 n. 8 (La.App. 2nd Cir.1982). The warning must be given in such a manner that it can reasonably be brought to the attention of the user, such as placing it on the container in which the product comes, placing it on the product itself or, where appropriate, providing an instruction or operation manual. See, for example, Broussard v. Continental Oil Company, 433 So.2d 354 (La.App. 3rd Cir.1983), writ denied, 440 So.2d 726 (La.1983); Cobb v. Insured Lloyds, 387 So.2d 13 (La.App. 3rd Cir.1980), writ denied, 394 So.2d 615 (La.1980).

When originally designed, the machine had a placard on its boom within sight of the operator which warned that the outriggers must be set at all times for all operations. In March of 1973, JLG sent a letter to all of its dealers instructing that under no circumstances should the machine be used without setting all four outriggers to prevent any possible tipping of the machine. By letter dated April 4, 1977, JLG advised all of its dealers to place three more warning placards about the outriggers on each machine and provided the placards at no cost to the dealers. By letter dated February 17, 1978, JLG advised all dealers that interlock devices should be installed on the machines to preclude operation of the boom if the outriggers were not extended. Subsequently, at least one interlock device was furnished to Hy-Reach at no cost. By letter dated September 29, 1978, JLG advised all dealers that an alarm system should be installed on all machines that did not have the interlock device to warn if the boom was moved without setting the outriggers. Hy-Reach secured eleven alarm kits from JLG at no cost. In the alarm warning kits, JLG provided an additional warning plate advising that if the warning alarm sounded the boom should be restored to the stowed position and the outriggers should be set. JLG provided Hy-Reach with operation manuals and handbooks for use by their customers. The operational manual contained two warnings concerning operation of the boom without setting the outriggers, and the handbook had three such warnings. It is difficult to conceive of what additional warnings JLG could have given under the facts and circumstances of this case.

If Hy-Reach had complied with the warnings given by JLG, this accident could not have happened. Hy-Reach, however, failed to heed the warnings, failed to install the safety devices and failed to warn the users of its equipment. The record does not reflect that JLG had knowledge that Hy-Reach was ignoring the warnings. The warnings given by JLG were adequate and relieved it of liability.

This case is similar to Nishida v. E.I. Du Pont De Nemours & Company, 245 F.2d 768 (5th Cir.1957). In Nishida, a solvent manufactured by Du Pont was used by a second manufacturer to extract oil from soybeans. The soybean meal that remained after the extraction was then sold for cattle feed. Du Pont learned that its solvent might be associated with a disease in cattle which had eaten the soybean meal. Du Pont sent a letter to the second manufacturer warning that the soybean meal should not be sold as cattle feed. The second manufacturer disregarded the letter and continued to sell the soybean meal. The court held that Du Pont satisfied its duty to warn the second manufacturer and that the action of the second manufacturer of selling the cattle feed despite the warning constituted an intervening cause and relieved Du Pont of responsibility. The case of Thomasson v. A.K. Durnin Chrysler-Plymouth, Inc., 399 So.2d 1205 (La.App. 1st Cir.1981), cited by the plaintiffs, is factually distinguishable from the instant case. In Thomasson, although the manufacturer advised the dealer that a group of automobiles had defective control arm assemblies, no warning was given to either the dealer or owner (Thomasson) about the particular vehicle because it was not included on the computer printout sent to the dealer. In the instant case, there are extensive and numerous warnings from the manufacturer directly to the owner.

DUTY TO PROVIDE SAFETY DEVICES

Even if we were to assume that the machine was defective and the defect could have been remedied by the installation of either the alarm or interlock safety devices, the plaintiffs cannot prevail. After JLG learned that machines were being used without extending the outriggers, it advised the owner of the accident machine (Hy-Reach) more than one year in advance of the accident that these safety devices were available and would be furnished upon request. The records of JLG indicate that Hy-Reach ordered at least one interlock device. Sheridan testified that Hy-Reach secured four or five interlock devices. The records of JLG show that Hy-Reach ordered eleven alarm devices. This safety equipment was provided to JLG without cost and with instructions for proper installation. JLG also provided additional warning placards to Hy-Reach which would warn Hy-Reach’s customers of the danger of using the machine without the outriggers extended. These warning placards were furnished without cost. JLG also furnished operational manuals and handbooks containing appropriate warnings for use by Hy-Reach’s customers. There is no evidence in the record to indicate that JLG had knowledge that Hy-Reach was not utilizing the safety equipment, posting the warning placards or furnishing the manuals or handbooks. Under these facts and circumstances, even if the machine was defective by not having the appropriate safety devices, JLG complied with its duty to make these safety devices available to Hy-Reach. See K. Karnezis, Products Liability: Manufacturer’s or Seller’s Obligation to Supply or Recommend Available Safety Accessories in Connection with Industrial Machinery or Equipment, 99 ALR 3rd 693 (1980).

This case is similar to Ford Motor Co. v. Wagoner, 183 Tenn. 392, 192 S.W.2d 840 (1946). In Wagoner, a Ford dealer sold a Ford automobile to one of its salesmen. Ford learned when that model car was subjected to a severe jolt, the hood latch would sometime come loose causing the hood to rise and obstruct the vision of the driver. Ford immediately distributed to all of its dealers an auxiliary hood latch with instructions to install these latches on all cars of that model without charge. The dealer tendered one of the safety latches to the salesman and informed him about it, but he declined to accept it because he did not regard it as necessary. The salesman subsequently severed his connection with the dealer and later sold the automobile to a third person named Baxendale. A friend of Baxendale was driving the vehicle when the hood rose up, blocked her vision and an accident resulted. The Supreme Court of Tennessee ruled that Ford was not liable because of the intervening conscious acts of the salesman. The case of Bexiga v. Havir Manufacturing Corp., 60 N.J. 402, 290 A.2d 281 (1972), cited by the plaintiffs, is factually distinguishable from the instant case. In Bexiga, a manufacturer built a punch press with no safety devices of any kind except a guard over the flywheel. The press was sold to the plaintiff’s employer, and the plaintiff subsequently was injured by the defective press. The manufacturer provided no warnings to the employer or employee and did not furnish any additional safety devices.

DECREE

For the foregoing reasons, the judgment of the trial court is correct and is affirmed at the appellants’ costs.

AFFIRMED.

      . Hy-Reach and USF & G did not file third party demands against JLG and its insurer.

      . The record does not reflect if or when copies of this revision were furnished to Hy-Reach.

      . The meaning of "normal use” in a products liability tort action is different from the meaning of "intended use" found in the redhibitory action. Benoit v. Ryan Chevrolet, 428 So.2d 489 (La.App. 2nd Cir.1982).

      . The Louisiana Supreme Court has not yet held that the redhibitory action is available to a person injured by a defective product which he did not purchase. Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285 (1970); Sciacca v. Polizzi, 394 So.2d 1319 (La.App. 1st Cir.1981), rev’d on other grounds, 403 So.2d 728 (La.1981); Doughty v. General Motors Corporation, 303 So.2d 202 (La.App. 4th Cir.1974); W. Crawford, Developments in the Law 1980-1981: Torts, 42 La.L.Rev. 450-453 (1982); D. Robertson, Manufacturers’ Liability for Defective Products in Louisiana Law, 50 Tul.L.Rev. 50, 87 at n. 196, 100-103 (1975).

      . JLG argues that the danger in operating the machine without the outriggers extended is obvious, but we will assume that it was not for purposes of this discussion.

      . We specifically do not pass on the question of whether or not the intervening cause defense of negligent liability is equivalent to the third person fault defense of strict liability. Loescher v. Parr, 324 So.2d 441 (La.1975); Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973).


source: Caselaw Access Project

license: Public Domain

text:
    Theodora Gomez, Wife of/and Henry GOMEZ v. SCAFFOLD RENTAL & ERECTION COMPANY and Zurich Insurance Company.
    No. 83-CA-810.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Rehearing Denied Aug. 17, 1984.
    Writ Denied Nov. 9, 1984.

      Michael B. McColloster, and Carolyn N. Hazard, Metairie, for plaintiffs-appellants.
    Daniel Lund, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellees.
    Before BOUTALL and CHEHARDY, JJ., and CLEVELAND J. MARCEL, SR., J. Pro Tern.
   CLEVELAND J. MARCEL, SR., Judge Pro Tern.

This appeal originates in the Twenty-Ninth Judicial District Court, Division E, Parish of St. Charles, wherein the Honorable Joel T. Chaisson rendered judgment dismissing plaintiffs personal injury claim. We affirm.

Shell Oil Company performs a certain amount of its maintenance, repair and reconstruction work at its refinery in Norco, Louisiana, with independent contractors. In an area known as the GO-1 unit, Shell undertook in 1980 to remove, repair and replace three large vessels known as TLX Exchangers which were part of a furnace unit designated F-131.

Several contractors worked this job. Gaffney, Inc., plaintiffs employer, employed pipe fitters and welders. Delta Maintenance, Inc. employed boilermakers and iron workers. Scaffolding Rental and Erection Services, Inc. (hereinafter Scaffolding) employed carpenters who erected, maintained and revised the necessary scaffolding or decking.

These TLX Exchangers are large, round vessels running perpendicular to the ground. On level five of the GO-1 unit, the steel grating immediately surrounding each vessel was initially removed by Delta Maintenance. Once the necessary grating was removed, Scaffolding would deck over the open area. However, it was necessary that a small gap be left on either side of each vessel. This was to insure proper clearance for swinging as the vessel was removed by crane operations. After each vessel was removed, Scaffolding would then board over the entire area so that a consistent decking or platform surface would result.

After the exchangers were repaired, they were reinstalled one at a time. A portion of the board decking would be removed so that the exchangers could be reinstalled in their original positions. However, once reinstalled, there was a wider gap than before because the exchangers were reinstalled without their insulation wrapping.

Plaintiff, Henry Gomez, was employed by Gaffney, Inc. as a pipe fitter. He and Willis Reed, a welder, were assigned by their foreman, Melvin Larson, to perform certain work on level five of F-131.

On December 30, 1980, an exchanger was reinstalled in the immediate area where they were working. Noticing the gap, plaintiff reported the hazard to his foreman, who in turn contacted Scaffolding who responded by boarding in the hole. Plaintiff remained on level five and watched the Scaffolding crew work; and, when the decking was completed, resumed work.

On the following morning, December 31, 1980, plaintiff and Reed were instructed to finish the work they had begun on a particular exchanger the day before. When they were finished, Larson reassigned them to an exchanger on the opposite side of F-131. It was then that plaintiff observed essentially the same type of gap around this exchanger and so informed his foreman, as he had done the day before. At Larson’s instruction, he and Reed then sat in a construction shack for about an hour until Larson returned and told them it was fixed and to go back to work.

Plaintiff, accompanied by Reed, returned to the work site whereupon he observed a “fire cloth” draped over the area where the opening had been. Plaintiff stepped on the “fire cloth” and fell into the opening. Reed, upon hearing plaintiff yell, turned and rushed over to remove plaintiff from the opening.

Plaintiff filed suit against Scaffolding and their liability insurer, Zurich Insurance Company, alleging negligence and want of due care on the part of Scaffolding for failure to properly place scaffold boards over the area and, instead, covering the open hole with fire cloth, thereby setting a trap for plaintiff. After a lengthy trial and a parade of witnesses, the trial court found that plaintiff had failed to prove his case by a preponderance of the evidence. Plaintiff then filed a motion for new trial and, after hearing argument, such motion was denied.

Plaintiff has appealed and asserts the following specifications of error:

that (1) the trial court erred in finding plaintiff had failed to prove his case by a preponderance of the evidence; that

(2) the trial court incorrectly failed to apply the provisions of LSA-R.S. 40:1672; and that

(3) the trial court incorrectly failed to apply the industry standard for construction of scaffolding found in 29 CFR 1926.-451(4) and 26 CFR 1926.451(5). Appellee answered seeking a reduction in their share of the costs.

All errors raised by appellant can be reduced to a single question, that is whether or not the trial court was clearly wrong (manifestly erroneous) as to the finding of no liability on the part of defendant-appel-lee.

At trial, everyone including plaintiff was preoccupied with finding and proving who placed the fire cloth over the hole. At the motion for a new trial, however, plaintiff attempted to argue that defendant was negligent in failing to place a guard rail around the gap.

Now, on appeal, appellant does not dispute the essential findings of the trial court, but rather continues his argument first advanced at through the motion for new trial — the negligence of defendant in failing to place a guard rail around the gap.

Appellant has cited the applicable state law regarding scaffolding and handrails to be LSA-R.S. 40:1672 and 1673. However, we find these statutes inapplicable to the facts of this case as the requirements of LSA-R.S. 40:1671 have not been satisfied.

Even if, for argument sake, we were to consider such statutes applicable, we would conclude that the trial court was not clearly wrong in holding defendant not negligent by mere failure to place guard rails around the open area. LSA-R.S. 40:1673 requires guard rails only where it is practical. In denying plaintiffs motion for new trial, the trial court observed that “pipe [was] going in and pipe [was] going back.” The gap was necessary to allow for the swing of the vessel as it was being first removed, then replaced. The nature of the job itself proved that handrails around the open area would have been impractical.

Appellant additionally argues that, when defendant subsequently bidded to do more work at Shell, they bound themselves by a letter dated November 23, 1976 to do that work in accordance with 29 CFR 1926.-451(4). This OSHA standard requires that guard rails be installed on all open ends and sides of platforms more than ten feet above the ground. While plaintiff was working on a platform more than ten feet above the ground, the injury causing hole was neither an open end or side of that platform. We, therefore, find this regulation not applicable under these facts.

Appellant’s complaint and argument that the trial court incorrectly held that plaintiff did not prove his case by a preponderance of the evidence does not sway our opinion that the trial court’s ruling was sound. We too have wrestled long with this case, as did the trial court, but the conclusion that plaintiff failed to preponderate the evidence necessary to prove his case is inescapable.

Plaintiff attempted to have liability placed upon the defendant based solely on Melvin Larson’s testimony. Larson, the plaintiff’s foreman, testified that, on the morning of the accident, he requested defendant to board over the open area. Larson’s testimony was that he made his request directly with defendant’s foreman and that it was this man who later returned and told him the job was done. However, Larson could not name the defendant’s foreman nor could he identify him. All that Larson could recall was that he spoke to a white man.

Wayne Cavanaugh, employed by defendant as carpenter foreman, was the only foreman for defendant on this particular job. He contradicted Larson’s testimony when he testified that he was not requested to do any work on that job site on the day of the accident. Defendant’s time sheets bear witness to Cavanaugh’s testimony.

The work on F-131 in the GO-1 was designated by Shell with the job number 24942. Defendant’s time sheets clearly show that crews employed by defendant performed work on the day of the accident at seventeen other job sites at various locations throughout the Shell complex, but that no work was performed on job # 24942 at F-131, GO-1. These time sheets were signed not only by defendant’s foreman and superintendent, but also by Shell supervisory personnel. The work performed on job # 24942 by defendant’s crew the day before the accident and witnessed by plaintiff is well documented and accounted for in the time sheets. We agree with the trial court and do not believe that any work was performed by defendant on that job site on the day of the accident.

Appellant would, additionally, have this court believe that defendant was solely responsible for the placement of fire cloths at various job sites and that, since he fell through an opening draped with a fire cloth, defendant must be liable. However, considering the testimony of defendant’s five fact witnesses, we are in agreement with the trial court that, “the proof was totally lacking with respect to the hole where the accident actually happened.” The judgment appealed from is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Considering the discretion given the court in assessing costs, we cannot say that the assessment complained of by appellees constitutes abuse of such discretion. LSA-C.C.P. art. 1920.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed with the costs of this appeal to be shared equally by all parties.

AFFIRMED.

      . § 1672. Scaffolds, supports, or other mechanical contrivances
      All scaffolds, hoist cranes, stays, ladders, supports, or other mechanical contrivances erected by any person for use in the erection, repairing, alteration, removing, or painting of any building, bridge, viaduct, or other structure shall be constructed, placed, and operated so as to give proper and adequate protection to any person employed or engaged thereon or passing under or by it, and in such a manner as to prevent the falling of any material that may be used or deposited thereon.

      .§ 1673. Safety rails for scaffolding or staging
      In the construction or in the repairing, alteration, or removal of any structures, any scaffolding or staging, swung or suspended from any overhead support and more than twenty feet from the ground or floor, shall have, where practicable, a safety rail properly bolted, secured, and braced and rising at least thirty-four inches above the floor or main portion of the scaffolding or staging and extending along the entire outside length and along the ends thereof. Also, such scaffolding or staging shall be so fastened as to prevent it from swaying from the building or structure.

      . § 1671. Application of Part
      The provisions of this Part apply only in cities of more than fifteen thousand inhabitants.

      . (4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.


author: BOUTALL, Judge.

text:
    Drew PIZZO v. Margaret GRAVES, Malcolm Thibodeaux, and State Farm Automobile Insurance Company and Trinity Universal Insurance Company.
    No. 83-CA-606.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Rehearing Denied Aug. 17, 1984.

      Christopher E. Lawler, and James L. Donovan, Jr., Metairie, for Florists’ Mut. Ins. Co. defendant-appellant.
    Gerald J. Leydecker, New Orleans, for Drew Pizzo plaintiff-appellee.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   BOUTALL, Judge.

This case arises from an automobile collision in which the plaintiff, Drew Pizzo, was injured and subsequently lost the sight of his left eye. From a judgment in favor of the plaintiff one of the insurer defendants has appealed.

The accident occurred on February 2, 1980 in Metairie at an intersection governed by four-way stop signs. Pizzo was proceeding west on Seventeenth Street and had pulled out into Severn after stopping at the stop sign. In the middle of the intersection his vehicle was struck on the driver’s side by a pickup truck driven by a seventeen year old boy, Malcolm Thibo-deaux (“Malcolm”), who had failed to stop at the intersection. The car was owned by Margaret Graves, a friend of Malcolm’s step father, at whose home he was then living. Malcolm’s parents had been divorced for some time and the custodial parent was his mother, Delores Hill, who was separated from her second husband, John Hill, at the time of the accident. Although the exact date does not appear in the record, the Hills were divorced shortly thereafter and John Hill married Mrs. Graves in April, 1980.

Malcolm had been living with his mother in a home in Violet owned by her and John Hill, but left on November 26, 1979 after an argument with his mother. He then moved to Mrs. Graves’s home in Metairie and transferred to Bonnabel High School. He worked part time and paid Mrs. Graves $50.00 weekly for his room and expenses. Shortly before moving Malcolm had signed up for a Delayed Enlistment Program with the Marine Corps, which he was to enter after high school graduation in 1980.

Pizzo filed suit against Malcolm Thibo-deaux, Margaret Graves, State Farm Automobile Insurance Company (“State Farm”) as her insurer, and Trinity Universal Insurance Company as his own insurer. In three supplemental and amended petitions Pizzo added other persons and insurers as defendants, several of which were subsequently dismissed. Pizzo’s own automobile insurer, Trinity Universal Insurance Company, paid $5,000, the limits of uninsured or underinsured coverage. When trial was held on September 17, 1982, the defendants before the court were Malcolm Thibodeaux, State Farm, Delores Hill, and Florists’ Mutual Insurance Company (“Florists”) as liability insurer of John Hill and Delores Hill under their homeowners policy. The court rendered judgment against Florists' in the amount of $125,000. On March 28, 1983, upon hearing a motion for new trial and for amendment of judgment the judge signed an amended judgment. That judgment provides that Malcolm Thibodeaux and Delores Hill are liable in solido for $125,000, of which State Farm Mutual Automobile Insurance Company and Florists’ Mutual Insurance Company are liable for their policy limits of $25,000 and $100,000 respectively. State Farm paid its judgment. This appeal by Florists’ followed.

Although the appellant raises five separate issues, the issues before us may be summarized as follows: whether Delores Hill was vicariously liable for the acts of Malcolm Thibodeaux when he was not living in her home; whether the exclusionary clause of the homeowner’s policy is applicable to the facts and the plaintiff’s recovery should be denied; and whether the plaintiff was guilty of contributory negligence.

Vicarious Liability of Delores Hill

LSA-C.C. art. 2318 sets out the liability of parents for the torts of minor children as follows, in pertinent part:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
“The same responsibility attaches to the tutors of minors.”

The appellant questions the correctness of the trial judge’s interpretation of the article in finding Delores Hill vicariously liable for Malcolm’s accident.

Florists’ position is that Mrs. Hill is not liable because Malcolm was no longer living with her, and that the redactors of the Civil Code did not intend for liability to be found under such circumstances.

It is clear from the testimony of Malcolm, of John Hill, and of Mrs. Hill that Malcolm had been living at a residence other than his mother’s since November 26, 1979. After leaving home he did not return even to stay over night and saw his mother only once between his departure and the day of the accident. On December 4, 1979 Mrs. Hill executed an affidavit, introduced into evidence, attesting to her wish to permit Malcolm to live with Mr. Hill at 4921 Pike Drive, Metairie (Mrs. Graves’s residence), and transfer to public school in Jefferson Parish.

In the case of Turner v. Bucher, 308 So.2d 270 (La.1975) the Supreme Court overruled previous holdings and held that the liability imposed by article 2318 is strict liability. The liability lies with the father, if he is alive, unless the parental authority of the father has been suspended by law, as in the award of custody to the mother. Flannigan v. Valliant, 400 So.2d 225 (La.App. 4th Cir.1981) writ denied 406 So.2d 611 (La.1981); Frazer v. Day, 307 So.2d 733 (La.1975); Guidry v. State Farm Mutual Automobile Ins. Co., 201 So.2d 534 (La.App. 3rd Cir.1967). Parental authority and liability is not terminated merely by the minor’s physical absence from the custodial parent’s dwelling. Flannigan v. Valliant, supra; Deshotel v. Casualty Reciprocal Exch., 350 So.2d 283 (La.App. 3rd Cir.1977) at 287, and citations therein.

The appellant relies on Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968), where the court did say that vicarious liability would attach, “provided, of course, the minor is residing with the parent at the time” (Williams, supra, 214 So.2d at 143). The facts of that case are distinguishable from the one at hand in that the issue was whether the authority of the minor’s employer superseded parental authority and liability; the youth was working full time but living at home.

The appellant cites the recent case of Miranne v. New, 381 So.2d 584 (La.App. 4th Cir.1980). In Miranne the court exonerated a father from liability for a tort committed by the minor son. Although residing with his father, the boy had been hired by a caterer as a live-in cook, bartender, and dishwasher for a four-day fishing trip at a camp away from his home. The court held that article 2318 was not applicable to the facts of the case and said, at 585:

“... While this boy was residing with his father in general he was taken to the fishing camp by this group of sportsmen as a live-in servant for four days during which he was beyond the authority of his father. Plaintiff and his host and companions were the masters and Donald New was their servant. When the accident occurred Donald was on a mission for plaintiff and was driving plaintiff’s automobile with his specific authorization. We do not believe that the redactors of the Civil Code intended (nor does the legislature intend) for Art. 2318 to impose liability on Donald’s father under these circumstances.”

The Supreme Court has not as yet considered the liability of a parent for the tortious acts of a minor who has voluntarily moved from the parental home and is self-supporting. The Miranne holding is entirely contradictory to that of Flanni-gan, supra. The minor in Miranne was absent from home only four days. In Flannigan, a boy was in the legal custody of his mother but had left home to live elsewhere for over a year. The appellate court found the custodial parent liable, and said at 227:

“... Since she had legal custody of the minor son at the time of the alleged battery she had parental liability for the son’s tortious acts. The fact that Wayne resided outside of the mother’s abode does not relieve her of that liability .... ”

The Flannigan court further stated, at 228:

“Our jurisprudence makes it clear that the residence referred to [in article 2318] is legal residence. Toca v. Rojas, 152 La. 317, 93 So. 108 (1922) relied upon in Williams v. City of Baton Rouge, supra.

In Toca v. Rojas, cited above, the court declined to rule on whether parental authority and responsibility ends when a minor child voluntarily leaves the parental home.

In the case before us, the trial judge chose to follow Dofflemyer v. Gilley, 395 So.2d 403 (La.App. 3rd Cir.1981) because the facts were similar to those of our case. In Dofflemyer, the minor son lived with his parents until April 29, 1976, when he moved from his parents’ home and then became involved in an accident on June 26, 1976. Although the parents did not know the boy’s address, they were in fairly continuous contact with him and he returned for a meal or to wash clothes from time to time. The court found the father clearly liable under LSA-C.C. art. 2318.

As an additional defense against vicarious liability of the mother, the appellant argues that the Marine Corps had authority over Malcolm, as he had taken an oath on November 13, 1979. We find no merit to this argument. It was clear from the recruiting sergeant’s testimony that the Corps had no control over Malcolm prior to his reporting to boot camp. The sergeant met with Malcolm from time to time to counsel him on Marine Corps life but such counseling was not required.

Accordingly, we affirm the trial court’s finding that Delores Hill is vicariously liable for the torts of her minor son.

Liability of Florists’ Insurance Company

At the time of the accident, the home jointly owned by John Hill and Delores Hill was insured by Florists’, under a homeowners policy that included coverage for personal liability for bodily injury and property damage up to $100,000.

The policy was issued to “Delores Land-los [Landos] Hill w/o & John Perry Hill.” In the definitions section, “Insured” is said to mean:

“(1) the named Insured stated in the Declarations of this policy;
“(2) if residents of the Named Insured’s household, his spouse, the relatives of either and any other person under the age of twenty-one in the care of any Insured ...”

Section II provides coverage as follows:

“COVERAGE E—PERSONAL LIABILITY
This Company agrees to pay on behalf of the insured all sums which the Insured shall become legally obligated to pay as damages because of bodily damage, to which this insurance applies, caused by an occurrence _ [Emphasis supplied]”

In pertinent part, the exclusionary clause related to personal liability for bodily injury and property damage reads as follows:

“This policy does not apply:
1. Under Coverage E—Personal Liability ....
a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) any aircraft; or
(2) any motor vehicle owned or operated by, or rented or loaned to any Insured; but this subdivision (2) does not apply to bodily injury or property damage occurring on the residence premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the residence premises; or
(3) any recreational motor vehicle owned by any Insured, if the bodily injury or property damage occurs away from the residence premises; but this subdivision (3) does not apply to golf carts while used for golfing purposes.”

We agree that the trial judge was correct in following Dofflemyer v. Gilley, supra, and in finding that the homeowners policy afforded coverage to Mrs. Hill for her vicarious liability for the torts of her son. Malcolm clearly was not a “resident of the Named Insured’s [Mrs. Hill’s] household” and the exclusionary clause does not apply to him as “any insured.” He had been authorized by his mother to live under the care of Mr. Hill. In Dofflemyer the Geico policy’s personal liability provision, exclusionary provision, and the definition of “Insured,” as quoted in the decision, are identical to those clauses in the Florists’ policy in the case at hand. The minor driver was no longer a member of his parents’ household, but the named insured, the father, was held vicariously liable for his minor son’s torts under LSA-C.C. 2318.

The appellant cites the case of Hurston v. Dufour, 292 So.2d 733 (La.App. 1st Cir. 1974), writ denied, 295 So.2d 178 (La.1974), for the principle that a homeowners policy is not intended as a substitute for an automobile insurance policy. The exclusionary clause in the Hurston policy clearly denied coverage of liability for harm arising from any use of an automobile off the insured’s premises. The wording of that exclusionary clause is quite different from the wording in the Florists’ policy, where “any aircraft” is purely and simply excluded but “motor vehicle” is modified by specification as to the persons using the vehicle.

The appellant argues that, even if Malcolm was not an insured vis-a-vis Mrs. Hill, he was an insured as to Mr. Hill, the other named insured, because Mr. Hill and Mrs. Graves lived together. True, the trial judge found that Malcolm was living with Mr. Hill and Mrs. Graves, and the testimony, although conflicting, suggests this finding is correct. However, we point out that the policy contains the following severability clause, relating to conditions applicable to personal liability coverage:

“SEVERABILITY OF INSURANCE: The insurance afforded under Section II applies separately to each Insured against whom claim is made or suit is brought except with respect to this Company’s limit of liability.”

Assuming, but not deciding, that Malcolm was an insured as to Mr. Hill, we find that the coverage of Mrs. Hill’s liability was not excluded, although if the claim had been filed against Mr. Hill, the exclusionary clause would then have applied.

Contributory Negligence of Drew Pizzo

The trial court found and we agree that the accident resulted solely from the negligence of Malcolm Thibodeux, and Drew Pizzo was free from fault.

The appellant urges that Pizzo breached-his duty to keep a proper lookout and should have realized that the other vehicle was not going to stop. The accident occurred at night at an intersection controlled by four-way stop signs. Pizzo had stopped, then proceeded across, while Malcolm failed to stop at the stop sign. Although the case of Simmons v. Baumgartner, 393 So.2d 904 (La.App. 4th Cir.1981) concerned an accident at an uncontrolled intersection, we agree with the principle of due care enunciated at 906, as follows:

“One who is in charge of operating an automobile has a duty to look and observe, which never ceases; that which they can see, they must see and in legal contemplation they do see. Failure to see what they could have seen by the exercise of due diligence does not absolve from liability ....
“Even when the motorist has the right of way, she is not relieved of the necessity of looking into the direction from which others may be expected to come, and where such care would have prevented the accident, she who fails to look or to keep a proper lookout cannot recover, even though the other party was grossly at fault_” [Citations omitted.]

The testimony in the case at hand is not persuasive that Pizzo saw or should have seen the oncoming vehicle soon enough to avoid the crash. As the testimony of Malcolm by deposition and of Pizzo live provides an adequate basis for the trial judge’s finding of no fault on the part of Pizzo, we affirm. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

Accordingly, for the foregoing reasons, the judgment appealed from is affirmed.

AFFIRMED.


author: SEXTON, Judge.

text:
    Johana Walker COBURN, Plaintiff-Appellant, v. COMMERCIAL NATIONAL BANK, Defendant-Appellee.
    No. 16310-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Rehearing Denied July 6, 1984.

      Pittman, Matheny, Lewis & Moody, by Alton B. Lewis, Jr., Hammond, for plaintiff-appellant.
    Cook, Yancey, King & Galloway, by Sidney B. Galloway and Samuel W. Caverlee, Shreveport, for defendant-appellee.
    Before HALL, FRED W. JONES and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff, Johana Walker Coburn, appeals the rejection of her claim for damages against Commercial National Bank of Shreveport for failure to release a mortgage. We reverse.

The facts which surround the execution of the mortgage and the basis of the claim are complicated and must be set forth in detail. Johana Walker Coburn and James William “Bo” Coburn were married in Texas in the early 1950’s. They moved to Shreveport and bought a home on Richmond Street on October 14, 1975, which became their marital domicile. In order to purchase the home, they signed a promissory note secured by a mortgage for $48,-500.00 with Home Federal Savings and Loan on October 23, 1975.

Also in 1975, Bo Coburn established an unsecured loan relationship with Commercial National Bank. The loan remained unsecured until 1979 when the obligation exceeded $70,000.00. At this point, the Bank through its senior vice president, Will Jackson, demanded security. Mr. Coburn approached his wife and requested that she sign a second mortgage on the house on Richmond Street which had been prepared by Mr. Coburn’s attorney. Mrs. Coburn refused to sign and Mr. Coburn stated that he would “find another way.” Mrs. Co-burn went to the Bank on August 31, 1979 and met with Mr. Jackson, but it is unclear whether the mortgage was discussed at this meeting.

On October 1, 1979, notwithstanding the lack of his wife’s signature, Bo Coburn pledged a collateral mortgage note secured by a second mortgage on the Richmond Street property, and assigned a decreasing term life insurance policy on his life to the Bank as collateral for his debt. Thereafter, Commercial National Bank never contacted Mrs. Coburn for her signature on either the assignment or the collateral mortgage.

The Coburns ceased living together as husband and wife on or about November 20, 1978, and were divorced on December 17, 1980. As part of the community property agreement, Bo Coburn conveyed to Johana Coburn his interest in the house on Richmond Street by cash sale deed signed December 11, 1980. In the community property agreement, Bo Coburn assumed responsibility for the debt to Commercial National Bank, but no mention was made of the second mortgage Mr. Coburn had placed on the home with that bank. Mrs. Coburn assumed the obligation represented by the first mortgage to Home Federal Savings & Loan.

On February 23, 1981, Bo Coburn wrote Will Jackson informing him of the divorce and the transfer of the house to Mrs. Co-burn in the property settlement agreement. He requested that Commercial National Bank release the mortgage. Will Jackson replied by letter dated March 2, 1981, stating that the mortgage could not be released unless the note was paid, or other collateral could be substituted.

Finding that she was financially unable to continue the upkeep of the house, Mrs. Coburn decided to sell it. She agreed to purchase another house on Haynes Street in Shreveport from Carolyn and Jerry Webb, which contract was not made contingent upon the sale of her home. General Edgar Harris, Jr. agreed to purchase Mrs. Coburn’s house on Richmond Street and Mrs. Coburn intended to apply the money received from the sale of her home toward the purchase price of her new residence on Haynes Street. The Webbs formally acquired their new home on August 5, 1981, and Mrs. Coburn began preparations for moving into their former residence, her new home. An elaborate security system, as well as new carpet, was installed in the house on Haynes Street. Since the transactions were interrelated, Mrs. Coburn and General Harris scheduled closings for the same day, August 7, 1981.

On or about August 6, 1981, Johana Co-burn was advised that the attorney performing the title examination for General Harris had uncovered the second mortgage in favor of Commercial National Bank on the Richmond Street property which had been executed on October 1, 1979 by Bo Coburn.

When demand was made upon Mrs. Co-burn to extinguish the mortgage prior to transfer of title, she contacted Greg Nes-bitt, a family friend and former business associate of Bo Coburn. Nesbitt contacted Mr. Coburn who refused to extinguish the mortgage through payment of the debt. During the evening of August 6, Mr. Nes-bitt telephoned Will Jackson of Commercial National Bank and requested that he cancel the mortgage. Mr. Jackson told Mr. Nes-bitt that the mortgage could not be can-celled absent payment of the debt or substitution of other acceptable collateral for the loan.

On the morning of August 7, 1981, Greg Nesbitt, accompanied by Fred Miller, an attorney, went to Commercial National Bank on Mrs. Coburn’s behalf to meet with Will Jackson and the bank’s attorney. After seeking unsuccessfully to have the mortgage released, Mrs. Coburn’s representatives negotiated the purchase of the handnote executed by Mr. Coburn and received in return the collateral mortgage note and the decreasing term life insurance policy on Mr. Coburn’s life which had been assigned as additional collateral for the debt. In order to satisfy the obligation with Commercial National Bank, Mrs. Co-burn paid that bank the sum of $50,196.75. These funds were borrowed from the Bank of Commerce at twenty-one percent interest from August 7, 1981.

Notwithstanding written demand from Mrs. Coburn’s attorney, Bo Coburn has made only one payment on the note held by Mrs. Coburn, that being a $3,800 partial interest payment made in December, 1981.

Johana Walker Coburn brought suit against Commercial National Bank on November 27, 1981, claiming that the wrongful action of the defendant in failing to release the mortgage on community property, executed with express knowledge by the Bank of her refusal to sign, caused her monetary damage in the amount of the loan from the Bank of Commerce which she was required to pay to Commercial National Bank through duress and coercion, and mental and emotional damage, as well as inconvenience and embarrassment. She also sought attorney’s fees. The Bank countered by denying plaintiff's allegations and further asserted that by virtue of her action in purchasing the note from Commercial National Bank and obtaining the mortgage which secured that note, that she was estopped from asserting the claims made herein. The Bank also asserted that the indebtedness represented by the promissory note purchased by the plaintiff was an obligation of the community of acquets and gains between plaintiff and Mr. Co-burn, and that upon the dissolution thereof, the defendant Bank as a community creditor was entitled to set-off any damages of the plaintiff. The Bank further contended that the mortgage was not null and void but was rather voidable, and that upon the dissolution of the community, the mortgage became valid as to the interest of the mortgaged property belonging to Mr. Coburn.

The trial judge ruled in oral reasons that Mrs. Coburn’s problems stemmed not from the Bank’s failure to cancel the mortgage, but rather from her husband’s actions in executing and recording the mortgage and failing to extinguish the mortgage upon request. He opined that Mrs. Coburn, by negotiating the note of Mr. Coburn together with its collateral security for value and without recourse, was estopped from proceeding against the Bank.

Validity of Mortgage

At the time of the execution of the mortgage here involved, Civil Code Article 2334, as amended by Act 679 of 1976, governed the encumbrance of an immovable owned jointly by the husband and wife. Civil Code Article 2334 after amendment in 1976 read in pertinent part:

“Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. But when the title to community property stands in the name of the wife, it cannot be leased, mortgaged or sold by the husband without her written authority or consent.
“Where the title to immovable property stands in the names of both the husband and wife, it may not be leased, mortgaged or sold by the husband without the wife’s written authority or consent. Where the title to community immovable property declared to be the family home stands in the name of the husband alone it may not be leased, mortgaged or sold without the wife’s written authority or consent.
“The limitation on the husband described in the two immediately preceding paragraphs shall not apply where the wife has made a declaration by authentic act that her authority or consent are not required for such lease, sale or mortgage and has filed such declaration in the mortgage and conveyance records of the parish in which the property is situated.
“The declaration may be general as to all such property or it may specify property to which it shall or shall not apply. If the declaration so provides, it may apply generally to property which may be acquired in the future, but a contrary declaration of withdrawal of her authority or consent by the wife may be made and recorded.” (Emphasis supplied.) (Effective January 1, 1977)

The property located on Richmond Street was purchased jointly in the names of Mr. and Mrs. Coburn. No authentic act permitting Mr. Coburn to mortgage the property without his wife’s consent was executed by Mrs. Coburn. Therefore, under Article 2334 Mrs. Coburn’s signature was clearly necessary to mortgage the community property.

Pivotal to the decision in this appeal is the issue of whether the mortgage in question executed without Mrs. Coburn’s signature is an absolute or relative nullity. We recognize that Civil Code Articles 2347 and 2353 in their present form clearly state that the encumbrance by one spouse of property subject to equal management without the consent of the other who has not renounced the right to concur, results in a relative nullity.

Of interest in this regard is the recent Fifth Circuit decision of South Central Bell Telephone Co. v. Eisman, 430 So.2d 256 (La.App. 5th Cir.1983). In that case dealing with the relatively null aspect of the new law, the court found that a servitude contract signed only by the husband became an absolute nullity as Mrs. Eisman failed to ratify the servitude agreement. Finding no binding servitude contract, damages were awarded to the Eismans for South Central Bell’s trespass onto their property and Mrs. Eisman received a general damage award for the mental pain and suffering she incurred as a result of the trespass.

Also of interest in this regard is the possible argument that the instant mortgage executed under the old law was capable of ratification by virtue of Civil Code Article 3303. However, we believe that the later and more specific Civil Code Article 2334 as it existed at the time of the mortgage should supercede the provisions of Civil Code Article 3303. Our interpretation of the articles is buttressed by the general civilian principle of statutory construction that where a conflict exists between a general and a specific provision of law, the more specific provision must prevail, even if the application of the general principle is restricted. Smith v. Cajun Installation, Inc., 392 So.2d 398 (La.1980); State ex rel. Bickman v. Dees, 367 So.2d 283 (La.1978); Esteve v. Allstate Ins. Co., 351 So.2d 117 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976). Hence, the general rule of Civil Code Article 3303 regulating the actions of an agent and the effect of the abuse of authority must, in this case, be subordinate to the rule of Civil Code Article 2334, specifically regulating the authority of a husband to mortgage community property.

Civil Code Article 2334, as amended in 1976, was repealed by Act 709 of 1979, effective January 1, 1980. During the brief period that the article was in existence no cases were decided construing the effect of a mortgage executed in contravention of this article. Noting the lack of guiding jurisprudence on this point, we turn to Chapter III of the Civil Code which regulates the effects of laws. Therein Civil Code Article 12 states that whatever is done in contravention of a prohibitory law is void although the nullity be not formally directed.

A prohibitory law is one that is cast in the imperative form, but exhibits a negative, rather than a positive command. If a party’s conduct contravenes a prohibitory law, pursuant to Louisiana Civil Code Article 12, it is void and produces no legal consequences. Badon’s Employment, Inc. v. Smith, 359 So.2d 1284 (La.1978).

An examination of Civil Code Article 2334, as amended in 1976, reveals that the article contains a negative imperative command that the husband may not lease, mortgage, or sell immovable property owned jointly by both the husband and the wife without the wife’s written authority or consent. As such, the wording of the Civil Code Article 2334 places it squarely within the definition of a prohibitory law, and the mortgage which was accepted by the bank with express knowledge of Mrs. Coburn’s refusal to sign can have no legal effect under Civil Code Article 12.

The jurisprudence is in accord with this analysis. The 1976 amendment eliminated the affirmative duty of the wife to record her declaration before her consent to mortgage or sell was necessary. Under the law which existed prior to the 1976 amendment, when the wife filed a declaration that her consent was necessary, a subsequent sale or mortgage of the family home without prior consent by the wife was invalid. See R.S. 9:2801 before amendment by Act 679 of 1976, and its predecessor, Act 35 of the 1921 Extra Session. Therefore, the jurisprudence applying the previous law requiring the wife to take affirmative steps to make her consent indispensable to a valid sale, lease, or mortgage of community property should be consistent with the result obtained by applying the 1976 amendment to Civil Code Article 2334.

In Reymond v. Louisiana Trust and Savings Bank, 177 La. 409, 148 So. 663 (1933), appeal after remand, 179 La. 104, 153 So. 529 (1934), the wife, living in the family home but separate and apart from her husband, filed a declaration of homestead in accordance with Act 35, Extra Session of 1921. Nearly five months thereafter, without her knowledge or consent, her husband placed a second mortgage on the home which was subsequently foreclosed and sold at sheriff’s sale. The bank paid the sum due on the first mortgage to the sheriff and retained the excess. The wife filed suit seeking that sum and appealed the dismissal of this suit on an exception of no cause of action. In reversing the trial court decision on the exception, the Supreme Court noted the prohibitory language of Act 35 and specifically held that the mortgage was “therefore void, (C.C. art. 12).”

Smith v. Marino, 28 So.2d 780 (La.App. 1st Cir.1947), involved the sale of a home by a husband before his divorce from his wife and after her recordation of a declaration under Act 35 of 1921. After the sale of the home the wife was forced to pay rent to defendant-purchaser and was evicted when she was unable to continue paying rent. The court found that the defendants were bound by the fact that the public records revealed the declaration that her consent was required before the property could be sold. The purchasers were found to be in legal bad faith and the court awarded the wife rent and revenues from the property from the time she was evicted until possession was restored to her or the property could be partitioned.

Azar v. Azar, 185 So.2d 113 (La.App. 4th Cir.1966) is the most recent case decided under previous law construing the legal effect of a transfer or encumbrance of property after the wife filed a declaration requiring her consent to validate such transactions. The Fourth Circuit declared that after the wife filed her declaration in accordance with LSA-R.S. 9:2801, a transfer of community property by the husband as a dation en paiement was null and of no effect.

Thus both the Civil Code and the jurisprudence compel us to reach the conclusion that this mortgage confected without the wife’s consent is absolutely null and of no effect. The public records disclosed the property was in the name of both Mr. and Mrs. Coburn, and also disclosed that she had not specifically waived her right to consent to the mortgage by authentic act. Of course, the Bank is at least constructively charged with knowledge of facts disclosed by the public records. LSA-R.S. 9:2721, 9:2722; McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909).

Parenthetically, we note that the instant record fully documents that the Bank was aware that the security device was of questionable validity. The loan officer expressly knew that Mrs. Coburn declined to execute this mortgage jointly with her husband from whom she was living separate and apart. Additionally, the loan officer refused to release the mortgage upon request when Bo Coburn informed the Bank that he and his wife were divorced and that she had received the house on Richmond in the community property settlement agreement.

Commercial National Bank also knew that the insurance company who wrote the life insurance policy assigned by Mr. Co-burn as collateral for his debt was concerned about the conspicuous lack of the signature of the beneficiary, Mrs. Coburn, on the assignment agreement. In response to the insurance company’s inquiry, Mr. Jackson wrote that the Bank intended that the assignment agreement be recorded without the wife’s signature.

In summary, we hold that LSA-C.C. Article 2334, as it existed at the time of the confection of the mortgage in question, was a prohibitory act, and further hold that a mortgage taken in contravention thereof is null and of no effect.

Effect of Bank’s Failure to Release Null Mortgage

It will be recalled that plaintiff’s suit here sounds in tort in that she seeks damages in the amount she contends she was forced to pay in order to eliminate the offending mortgage, as well as damages for mental and emotional distress, inconvenience, embarrassment and attorney’s fees.

Delictual responsibility in Louisiana is based on fault. Civil Code Article 2315. Fault encompasses not only negligence but also acts which are not morally wrong but are merely violative of laws or legal duties. Langlois v. Allied Chemicals, 258 La. 1067, 249 So.2d 133 (1971). The elements of a cause of action in tort are fault, causation, and damage. Seals v. Morris, 410 So.2d 715 (La.1981). Utilizing this analytical framework, we must determine whether the Bank owed a duty to Mrs. Coburn, which was breached by the failure to release, and if so, whether Mrs. Coburn suffered damages as a result thereof.

We have little difficulty determining that the defendant bank owed a duty to release the mortgage in question which was at least constructively known to it to be void, which duty existed at least from the time the bank had actual or constructive knowledge that this plaintiff was the sole owner of the premises affected by the mortgage. The violation of this duty constituted legal fault under LSA-C.C. Art. 2315. We thus turn to the difficult question of the measure of damages which plaintiff has suffered thereby.

In this regard we note that the trial court found as a fact that Mrs. Coburn was unaware that a mortgage was on her home in favor of this defendant until the day before the closing of the sale of her house. Also, the Court noted that while she had thirty days to clear this defect by virtue of her contract with General Harris, she was on the other hand obligated to proceed with her purchase of her new home from Mr. and Mrs. Webb. In order to do so she needed the funds from the sale of her home to General Harris. These findings of fact are not manifestly erroneous and are to be accepted by us. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Although the mortgage was an absolute nullity, it secured a valid obligation represented by a note in favor of Commercial National Bank executed by Bo Coburn. As we will demonstrate hereinafter, the obligation secured by the mortgage is of a community nature. The defendant bank has alternatively contended that if it indeed has damaged Mrs. Coburn due to the maintenance of a null mortgage, that this sum should be set-off against the amount it received to satisfy the note because the note represented a community obligation.

Set-off, or to use the codal term, compensation, takes place by operation of law when two persons are indebted to each other. LSA-C.C. Arts. 2207, 2208 and 2209. However, for compensation or set-off to be applicable, two distinct debts, equally liquidated and demandable, must exist contemporaneously. Hartley v. Hartley, 349 So.2d 1258 (La.1977). The effect of compensation is reciprocal extin-guishment of the two debts to the amount of their respective sums, as soon as they exist simultaneously.

Although compensation operates by virtue of law, these articles must be read in tandem with LSA-C.C. Art. 2232, which requires that one who claims that he is exonerated from a debt must prove the payment or the fact which has produced the extinction of the obligation. Thus, construed with LSA-C.C. Arts. 2207 through 2209, the burden of proof rests with the proponent of the plea of compensation. To sustain his burden, the proponent must prove by a preponderance of the evidence that the claim urged as a set-off to plaintiffs claim is equally liquidated and demandable, i.e., that the debt is for a certain amount or for an amount capable of ascertainment by mere calculation in accordance with accepted legal standards, and that it is an obligation of the party against whom the plea is urged. Hughes Realty v. Pfister, 245 So.2d 757 (La.App. 4th Cir.1971); Olinde Hardware and Supply Co. v. Ramsey, 98 So.2d 835 (La.App. 1st Cir.1957).

The debt to Commercial National Bank represented by Bo Coburn’s promissory note of $48,173.19 principal, plus $2,023.56 interest, for a total amount of $50,196.75, is for a certain amount and is therefore a liquid claim. Additionally, Commercial National Bank has sustained its burden of proving that this debt is an obligation of the party against whom the plea is urged, Mrs. Coburn, under LSA-C.C. Art. 2357. This article states in pertinent part that an obligation incurred by a spouse before or during the community property regime may be satisfied from the property of the former community after termination of the regime, and from the separate property of the spouse who incurred the obligation. If a spouse disposes of property of the former community for a purpose other than in satisfaction of a community obligation, that spouse is liable for all obligations incurred by the other spouse up to the value of that community property. LSA-C.C. Art. 2357. Applying this article to these facts, Mrs. Coburn was liable for only one-half of the obligation represented by her husband’s promissory note at the time she paid that debt; however, she subsequently became liable for the total amount of the debt upon the sale of the house.

We therefore find that Commercial National Bank is indebted to Johana Co-burn for its wrongful act in maintaining the absolutely null mortgage in the amount of $50,196.75, the amount she paid for the release of the mortgage, and that Johana Coburn is indebted to the Bank for $50,-196.75, representing the amount of the promissory note executed by her husband for which she is liable by virtue of the community status of the obligation. Therefore, at this point, both sums are equally liquidated and demandable, and as a result, are reciprocally extinguished by operation of law.

Thus, the amount paid the Bank to effect removal of the offending mortgage is set-off and extinguished because the debt represented by the mortgage was a community obligation entirely owed by the plaintiff herein when this suit was filed.

Plaintiff also claims that as an item of special damages she is entitled to recover the interest on the loan she obtained from the Bank of Commerce which funds were used to satisfy the obligation with Commercial National Bank. We do not agree. As was previously discussed, Mrs. Coburn was indebted to Commercial National Bank for $50,196.75. Any award by this Court would be merely a speculation on the difference between the interest Mrs. Coburn was required to pay when she obtained the loan from the Bank of Commerce in August of 1981 and the interest she would be required to pay to obtain a loan at some future date when Commercial National Bank demanded satisfaction of the debt.

General damages are applicable in circumstances such as these. See Pack v. Wise, 155 So.2d 909 (La.1963). We set this award at $2,500. Plaintiff has, however, advanced no theory which would allow recovery of attorney’s fees herein and that claim is denied.

In summary, we find for the plaintiff in the amount of $50,196.75 which was required to pay off the note secured by the mortgage in question; and we further find that the defendant bank is entitled to a set-off, or compensation, in this same amount as representing a community obligation which plaintiff owed to the defendant.

Plaintiff is awarded Two Thousand Five Hundred Dollars ($2,500) in damages for mental anguish, inconvenience and embarrassment, together with legal interest on that sum. All costs of this litigation are assessed against the defendant. Plaintiffs other demands are rejected.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Johana Walker Coburn, and against the defendant, Commercial National Bank, in the sum of Two Thousand Five Hundred Dollars ($2,500), together with legal interest thereon until paid, and for all costs of this litigation.

REVERSED and RENDERED.

      . "Art. 3303. Mortgage by attorney on property of principal
      "An attorney can only hypothecate the property of his principal, so far as he has a special power for that purpose.
      "Nevertheless, if the attorney on effecting a loan for his principal, had granted a mortgage, and the latter had received the money for the loan, or if it had been usefully employed for his benefit, the principal would be bound to ratify the mortgage, and might be compelled to execute it.”

      . We are aware of the jurisprudence holding that set-off or compensation is not allowable in a suit for tortious or wrongful conversion because of LSA-C.C. Art. 2210(1), which provides:
      "Compensation takes place, whatever be the cause of either of the debts, except in case: (1) of a demand of restitution of a thing of which the owner has been unjustly deprived.”
      See Neff v. Ford Motor Credit Company, 347 So.2d 1228 (La.App. 1st Cir.1977), and the cases cited therein. However, the tortious conduct involved in this case was not a conversion of plaintiff’s funds, but was instead the Bank’s failure to release an absolutely null mortgage. We are also cognizant of those cases holding that compensation may not be asserted in tort cases. See for instance, Calvert Fire Insurance Co. v. Lewis, 231 La. 859, 93 So.2d 194 (1957). We construe these cases to mean that an unliqui-dated claim for damages may not be off-set against a liquidated claim. See American Bank & Trust Co. in Monroe v. Carson Homes, 344 So.2d 456 (La.App. 2d Cir.1977); Dial Real Estate, Inc. v. Isbell, 256 So.2d 133 (La.App. 3d Cir.1971); McDaniel v. Rumore, 110 So.2d 860 (La.App. 2d Cir.1959); Del Bondio v. Albrecht, 181 So. 610 (La.App.Orl.1938). Here both claims are equally liquidated and demandable. Had the Bank instituted suit against Mrs. Co-burn on a promissory note, and had she sought to offset this claim by claiming damages under Art. 2315, these cases would have pertinence.


author: WARD, Judge. PER CURIAM.

text:
    Lennon WALLACE v. Sam J. RECILE.
    No. CA-1506.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    On Rehearing Aug. 7, 1984.
    Kern A. Reese, Murray, Murray, Braden, Landry & Gonzalez, New Orleans, for plaintiff-appellee, Lennon Wallace.

      Gibson Tucker, Jr., Tucker & Schonekas, New Orleans, for defendant-appellant, Sam J. Recile.
    Before SCHOTT, WARD and LOBRA-NO, JJ.
   WARD, Judge.

This is an appeal from a judgment which held that Sam J. Recile owed Lennon Wallace $2,030.00 on a promissory note plus interest, costs, and attorney’s fees. Recile appeals, contending that the Trial Judge erred, first, in permitting Wallace to proceed in the action without the original promissory note, and second, because Wallace filed suit without advertising that the instrument had been lost or without posting bond as the Civil Code requires in suits on lost instruments. Finally, Recile contends that Wallace breached the parties’ agreement when he sued on the first note and remitted the balance of the debt by suing for a portion of the total amount. Because we believe that Wallace must first satisfy the requirements of the Civil Code before bringing suit on a lost note, we vacate the judgment.

Both parties agree that Recile executed two promissory notes payable on demand to Wallace, whom he employed as an attendant for his invalid son. The first note, for $675.00 in wages, was executed on April 25, 1978. The second, for $2,705.00, was executed on July 11, 1978, payable a year from date. Typewritten on the note was a notation: “This note supercedes all previous notes, particularly said note dated April 25th, 1978.”

Wallace testified that soon after receiving the second note in July of 1978, he consulted a lawyer, and gave her the notes to institute collection. Wallace claims to have next heard from his attorney when she sent him a sum of money he understood to be the first installment on Recile’s payment of the debt.

In the meantime, his attorney had filed suit against Recile on the $675.00 note, and she had received a check for $650.00 from Recile’s attorney with a letter stating the check represented “those sums due and owing.” After forwarding this money, less her fee, to Wallace, she notified Recile’s attorney of the amount claimed as due on the second note and demanded payment of it.

When Wallace failed to receive further payment from Recile, he became dissatisfied with his attorney’s services, and obtained his files from her with the help of the" Bar Association, but the promissory notes were not among the materials returned to him.

Wallace hired his present attorney and filed suit for the claimed balance of $2,705.00, attaching a photocopy of the second note. The Trial Judge rendered judgment for that amount in favor of Wallace and against Recile. We, however, believe he erred because Wallace did not satisfy the requirements of Louisiana Civil Code Article 2280:

In every case where a lost instrument is made the foundation of a suit or defense, it must appear that the loss has been advertised within a reasonable time in a public newspaper and proper means taken to recover the possession of the instrument; provided, that advertisement of a lost note shall not be necessary in any case where a surety bond given by a person who owns property liable to seizure, and who is domiciled in the parish where the security is to be given, or a commercial bond issued by an insurance company licensed to do business in the state of Louisiana, is furnished to protect the maker and/or his endorsers of said note from loss resulting from said note falling into the hands of a holder in due course provided that the bond must be in amount equal to the face of the note plus twenty-five percent thereof.

Even though Wallace may be able to prove the contents of the lost note by the photocopy, Article 2280 requires advertisement or posting of bond before the filing of a suit on a lost note to protect the maker, Recile, in the event the original note is negotiated to a holder in due course. Wallace did neither.

Consequently, the judgment against Re-cile is vacated. Therefore, we need not consider Recile’s other assignments of error, including the serious question of whether Wallace remitted the balance of the debt.

VACATED.

ON REHEARING GRANTED

PER CURIAM.

Rehearing granted for the sole purpose of amending the Judgment of this Court dated June 6, 1984 to remand the case for proceedings consistent with our Judgment.