50839 Precedential Processed

Chaney v. Travelers Insurance Company

Louisiana Supreme Court · Filed June 23, 1971 · 249 So. 2d 181

Also decided on this docket: La., September 30, 1970 239 So. 2d 358

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Opinion text

TATE, Justice (concurring). We granted certiorari on the defendant parish’s application. The only question before us is that presented by such pleading: Whether the parish is entitled to indemnification against Jenkins, the contractor and its insurer. The indemnification clause of the construction contract between the parish arid Jenkins provides “that the contractor [Jenkins] shall hold owner [the parish] free and harmless from all claims or damages to persons and/or property- which may arise out of or by reason of performance of the work * * * ”. The damages here clearly arose out of. and by reason of the performance of work contracted. Under this indemnification, agreement, without more, the - contractor Jenkins is in my opinion clearly liable.; to the parish for damages recovered from it by Chaney, the original plaintiff. It is ’not necessary, therefore, for this court to consider the possible application of Article 667 of our Civil Code to the liability of the parish to Chaney, nor for us to reconsider now the correctness of our decision in Reymond v. State, 255 La. 425 , 231 So.2d 375 (1970). - Further, however Article 667 is interpreted insofar as to the- extent of property *19 servitude is concerned, I do not think that such interpretation is necessarily applicable in determining what constitutes “fault” under Article 2315 so as to give rise to a cause of action against the fault-doer. By analogy, from the general principle of Articles 667-670, we may well conclude that an adjacent owner may recover damages caused him by activity on neighboring land, whether by the owner or another, such being “fault”. See Langlois v. Allied Chemical Corp., 256 La. 877 , 239 So.2d 539 (docket No. 50,852 rendered this date). I would be inclined so to hold, were we here concerned with a basis for liability of the parish and Jenkins to Chaney. This is not an issue before us, however. Since much of the discussion in the majority opinion is dicta, I do not join in it except to the extent I have above indicated. It seems to me preferable that we decide the application of 667 and other articles, directly or by analogy, to an instance when such issue is actually presented to us. I therefore respectfully concur.