#### Joann A. TREME, Plaintiff and Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al., Defendants and Appellees.

No. 3729.

Court of Appeal of Louisiana, Third Circuit.

March 2, 1972.

Rehearing Denied April 18, 1972.

Writ Refused May 23, 1972.

*42Edwards & Edwards by Homer E. Bar-ousse,( Jr., Crowley, for plaintiff-appellant Joann A. Treme.

Pugh, Buatt, Landry & Pugh, by Lawrence G. Pugh, Jr., Crowley, for defendant-appellee, Village of Mermentau.

Davidson, Meaux, Onebane & Donohoe, by Edward C. Abell, Jr., Lafayette, for 3rd party defendants-appellees, Cleoo Co. and Continental Ins. Co. (Continental Ins., appellant).

Mouton, Roy, Carmouche & Hailey by Harmon F. Roy, Lafayette, for 3rd party defendants-appellees, Lormand Construction Co. and American Mutual Ins. Co. (American Mutl., appellant).

Before CULPEPPER, MILLER and DOMENGEAUX, JJ.

CULPEPPER, Judge.

Plaintiff seeks damages for personal injuries sustained when the automobile which she was driving allegedly fell into an excavation or struck an object on a public street in the village of Mermentau. Named as defendants are: (1) Lormand Construction Company, which was installing a sewage system in the village, and its insurer, American Mutual Liability Insurance Company; (2) Elco Electric, Inc., which was installing a water system in the village, and its insurer, Continental Insurance Company; (3) the village of Mer-mentau and its insurer, United States Fidelity & Guaranty Company. The district judge found plaintiff failed to prove the nature or location of the object she struck or that any of the defendants were guilty of negligence. Plaintiff appealed.

Additionally, judgment in the sum of $1,500 was rendered in favor of the village of Mermentau on its third party demand against Elco Electric, Inc. and Lormand Construction Company for attorney’s fees under the indemnity provisions of the construction contracts. The contractors appealed the third party demand.

The accident occurred at the intersection of Highway 90, which runs east and west, with Fourth Street, which runs north and south. Highway 90 is paved and has gravel shoulders and ditches on each side. Fourth Street has asphalt paving about 16 feet in width with gravel shoulders and ditches on each side about 8 feet in width.

The sewage and water systems had been under construction for several months. *43Both the sewer and water lines had been laid along the north shoulder of Highway 90. At the Fourth Street intersection, a manhole for the sewer was installed at a point adjacent to the asphalt paving on Fourth Street and 6 or 8 feet from the northeast corner of the intersection.

On a clear day at about 1:30 p. m., plaintiff was driving in a westerly direction on Highway 90, intending to turn north on Fourth Street. She says she slowed to about 10 miles per hour, and immediately on leaving Highway 90 and entering Fourth Street the under-side of her vehicle violently struck an object of some kind, causing her face to strike the steering wheel and resulting in loss of teeth and cuts on her mouth and face.

The village marshal, the mayor and the state policeman who investigated the accident testified that plaintiff first told them she had struck the manhole cover. These three witnesses examined the area and found that on the west side the manhole cover was flush with the pavement on Fourth Street, but on the east side there was a depression 3 or 4 inches deep, which caused the manhole cover to be above ground level on the east side. The testimony of these witnesses shows it is improbable that plaintiff’s car struck the manhole cover.

At the trial, plaintiff’s position was that she did not strike the manhole cover, but instead struck a piece of pipe, encased in concrete, about 6 inches in diameter and 6 feet in length. Plaintiff testified that on the afternoon of the accident, after returning from the doctor’s office, she found this piece of pipe almost totally submerged in water in an excavation or depression between the manhole cover and the northeast corner of the intersection. She theorized that when her automobile struck this depression the under-side hit the submerged pipe. She and one of her relatives testified that a week or two after the accident they returned to the scene and dug up the pipe.

The piece of pipe in question was clearly shown to be the lower portion of a stop sign. The mayor and the city marshall stated that immediately after the accident there was no such object on the street and there was no excavation or depression deep enough to hold such a pipe. The marshal testified that he did see such an old stop sign located in the ditch on Fourth Street. He theorized that plaintiff must have run into the ditch and struck the sign there.

The issues are factual and depend largely on the credibility of the witnesses. We find no manifest error in the following conclusions of the trial judge:

> “Without reviewing in detail here the evidence offered to support plaintiff’s claim for damages resulting when her automobile struck an object in the Village of Mermentau, suffice to say that it does not preponderate to establish to my satisfaction actionable negligence of any of the defendants which would allow recovery. The testimony is conflicting and uncertain as to the object Mrs. Treme contends she struck, its exact location and to which, if any, of these defendants fault should be assigned.

> “Plaintiff having failed to sustain her burden of proof required in such cases, her suit is dismissed at her costs.”

The next issue concerns the village of Mermentau’s third party demand against the contractors for attorney’s fees. Both contracts contain the following provision:

> “ ‘The contractor agrees to *indemnify, save and hold harmless the owner and engineer from all claims, demands, or causes of action, whether for property damage, personal injuries or death, arising or growing out of the performance of the contract by the contractor, including all court costs and attorney’s fees;*but any such indemnity shall not apply to any claim of any kind arising out of the *44existence or character of the work.’ ” (Emphasis supplied)

The quoted language is clear. The contractor agrees to hold harmless the owner from all claims or demands arising out of the performance of the contract, “including attorney’s fees.” The present suit is a demand by the plaintiff for damages arising out of the performance of the contract. The village of Mermentau first requested the contractors to defend the suit. On their refusal, it was necessary for the village to employ its own attorneys. The village has the right to be indemnified for these fees, under the express language of the contracts.

The principal argument of the contractors is that the clause in question presupposes the existence of fault on the part of the contractors, and since the contractors were not found liable they are not required to indemnify the village for its attorney’s fees. The answer to this argument is that the written agreement does not require a finding of fault on the part of the contractor as a prerequisite to indemnification. The contractor agrees to indemnify and hold harmless the village from all “claims, demands, or causes of action ... including . . . attorney’s fees” regardless of actual fault or ultimate liability.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant and the two defendants-appellants in equal proportions.

Affirmed.

MILLER, Judge

(dissenting).

The majority opinion quotes the trial court’s entire opinion insofar as it relates to plaintiff’s claim. The only discredited witness (in that opinion) is the plaintiff Mrs. Treme. The record abundantly supports the finding that plaintiff’s testimony was discredited. When the accident occurred on March 19, 1969, plaintiff had separated from her fifth husband. Tr. 191. She had been treated for a mental condition on March 18, 1969 (the day before the accident), and was committed to Central Louisiana Hospital on April 8. She was discharged from Central on April 30. Tr. 194. Her treating physician testified that plaintiff “was having a nervous breakdown all the time.” Tr. 196. Her testimony at trial (that she struck a pipe or concrete base to a stop sign) was totally inconsistent with her statements at the time of the accident.

It appears that the rule applied was that where plaintiff gives uncertain and contradicting testimony, plaintiff may not recover. The proper rule, as I see it, is to disregard her testimony as proving nothing. If this rule is applied, I sharply disagree with the statement that “it is improbable that plaintiff’s car struck the manhole cover.”

These facts were established. Mrs. Treme’s 1962 Corvair suffered damage to its front bumper, axle, undercarriage and front mounted gasoline tank.1 At impact, her face hit the steering wheel causing injury to her face and teeth. She bled extensively.2 She was able to back her car *45away from the accident and drove a distance of one-half block to Duhon’s grocery store.3 On the day of the accident plaintiff told the Village Marshall (Tr. 122, 123, 337), the State Trooper (Tr. 286, 289), and the grocer Mr. Duhon (Tr. 352, 360) that she had hit the manhole in the street. That same day she told her physician that she had hit a deep hole in the street. Tr. 181. An independent eyewitness, Mr. LeBlanc, saw plaintiff hit the manhole. Tr. 76, 316.4 Debris was found at the manhole.5 The conditions surrounding the manhole were such that the front end of plaintiff’s Corvair was likely to strike the top of the manhole.6 The area around the manhole was repaired early the next morning.7

Some of the evidence to support these facts may have been discounted by the trial court, but the trial judge did not state which if any testimony (other than that of plaintiff) was rejected.

I hold the settled conviction that this record proves that plaintiff ran into an unmarked hazard at the intersection of US 90 and Fourth Street in the Village of Mermentau. Traffic was permitted at this intersection and heavy usage (without *46maintenance) caused deep ruts in the recently excavated area east and south of the manhole. Plaintiff could not see this because the ruts were filled with water. Plaintiff is entitled to damages.

1

. The Village Marshall found damage underneath and gas leaking from the Corvair. Tr. 122, 339. The grocer Daniel Henry Duhon found damage under the Corvair. Tr. 355. The State Trooper found damage to the bumper, undercarriage and gas line. Tr. 289. Noah LeBlanc was an eyewitness to the accident and saw the front axle hit the manhole. Tr. 76. Plaintiff’s mother was a passenger in the car with her, but passed away before the case was tried. Tr. 393.

2

. The grocer Mr. Duhon saw plaintiff shortly after the accident and observed that she was “all bloodied up.” He gave her some water and napkins to wash her face. Tr. 351. He also gave her some salt and a glass of water to rinse her mouth. Tr. 355. The Village Marshall testified that he observed that she was bleeding in the mouth and her blouse was bloody. Tr. 339. These facts were not mentioned in his statement given shortly after the accident. Tr. 122-124. Mr. Norman Joseph *45Clinch saw her after the accident and observed that her mouth was all bloodied up. Tr. 294. The eyewitness Mr. LeBlanc observed blood on plaintiff’s face immediately after the accident. Tr. 76. Her treating physician saw her on the afternoon of the accident and found bruises and contusions on the side of her face ■ and two loose teeth. Tr. 181. Her dentist found a damaged bridge, both central incisors were fractured. She had lost her left lateral incisor. Tr. 155.

3

. This totally demolishes the theory that plaintiff drove into the ditch to hit the concrete base on the stop sign. Had she driven into the ditch it would have been impossible to remove the car without a wrecker. See photographs P-3, P — 4 at Tr. 201 — explained at Tr. 390. There is no suggestion in the record that a wrecker was used to remove plaintiff’s car from the scene.

Mr. LeBlanc saw plaintiff back her caraway from the manhole and drive to the front of Duhon’s store. Tr. 76. Plaintiff testified that she backed her car from the accident then drove the car to Du-hon’s store. Tr. 395.

4

. On cross examination by counsel for one of defendants, the State Trooper testified at Tr. 289:

> “Q. Would you say that that car liad hit the manhole cover?

> “A. Yes, sir. She said that when she turned off the highway, the nose of it went down and hit that manhole cover.”

5

. Although the Village Marshall denied seeing debris on the manhole cover (Tr. 339), the State Trooper examined the area at about the same time and found debris from the Corvair on the manhole. Tr. 289, 290. Mr. Duhon found evidence that the manhole had been hit. Tr. 352, 361.

6

. The manhole is approximately four feet north of the north edge of the paved portion of US 90 and located in about the center of the east half of the blacktopped portion of Fourth Street. (Exhibit P-5, Tr. 202, explained at Tr. 455, 9 lines up from bottom.) There is a 3 to 4 inch drop-off from US 90 to Fourth Street. Tr. 282. According to the State Trooper, the manhole was level with the street on the west and north sides, but was 3 or 4 inches higher on the south and east sides. Tr. 283. The ruts were filled with water according to all witnesses. All witnesses admit that the area was not signed or barricaded. Mr. Duhon estimated the ruts to the east of the manhole were 6 to 8 inches deep. Tr. 353, 359. Mr. LeBlanc estimated that the ruts were about 8 inches deep on the east side. Tr. 309. (NOTE : When the manhole was installed, a ditch was dug across Fourth Street. Traffic turning from US 90 onto Fourth Street [the only paved north-south street in Mermentau] wore these deep ruts into this ditched area.)

7

. Mr. Clinch (a totally disinterested witness) found the holes filled at 6:45 a. m. the following day. Tr. 297. Mr. Duhon found repairs had been made when he walked by the following afternoon. Tr. 354, 364. Mr. LeBlanc saw the Village grader working dirt over the lióles the following morning. He named the grader operator. Tr. 310. The denial that the Village grader reworked this area was extremely weak. Tr. 434-36. The same operator was still employed, but not called as a witness. The Street Commissioner admitted that the grader operator was to do what is necessary; and the Commissioner refused to deny that the grader worked this area. Tr. 436.