author: FORET, Judge. HOOD, Judge

text:
    Michael G. NORRIS, Plaintiff-Appellee, v. Brian KING, Defendant-Appellant.
    No. 6007.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 1978.
    Dissenting Opinion Jan. 17, 1978.
    Rehearing Denied March 1, 1978.
    Brame, Bergstedt & Brame by Bret L. Barham, Lake Charles, David A. Sheffield, Alexandria, for defendant-appellant.
    Kramer & Davis by Bernard Kramer, Alexandria, for plaintiff-appellee.

      Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

This suit was instituted by Michael G. Norris against Brian King alleging that King’s action in erecting a bulletin board in his place of business, upon which were placed photographs of the plaintiff taken while he was in the act of committing a theft upon the defendant’s premises and which also contained captions referring to the subsequent guilty plea entered by Norris for the commission of the theft, caused him embarrassment, humiliation and constituted harassment. Judgment was rendered in favor of Michael Norris, and defendant, Brian King, appealed. Plaintiff, Michael Norris, has answered the appeal asking that the award of damages be increased.

Plaintiff, Michael Norris, was arrested for the theft of money taken from a Coke machine located in a washateria in the City of Alexandria which is owned by defendant, Brian King. On November 5,1974, Michael Norris pled guilty to the charge of theft in the Alexandria City Court. For the commission of the theft, Norris was given a $100.00 fine, a suspended jail sentence, and was placed on probation for a period of one year.

During the above mentioned theft, photographs were taken of Norris and an alleged accomplice by means of a hidden security camera located in the washateria. Subsequent to the guilty plea entered by Norris, defendant, Brian King, erected in his was-hateria a bulletin board upon which he posted two photographs of Michael Norris and one photograph of his alleged accomplice taken during the commission of the theft. Posted at the top of the bulletin board was the following printed heading:

“CAUGHT IN THE ACT!
THESE ARE ACTUAL PHOTOGRAPHS TAKEN BY HIDDEN CAMERAS OF A THEFT IN PROGRESS.” Immediately below this heading was a typewritten caption which read:
“ANY THIEVES OR VANDALS OPERATING ON THIS PRIVATE PROPERTY SHOULD REMEMBER TO SMILE
. . . THEY’LL BE ON CANDID CAMERA!”

Immediately below this caption were two typewritten captions printed on cut out arrows, each of which pointed to one of the photographs taken of Norris and which read:

“HMMMM . . . HERE WE HAVE MICHAEL NORRIS OF RT. 1 BOX 556, PINEVILLE, LOUISIANA. MICHAEL IS CAREFUL — HE WANTS TO BE SURE NO ONE IS WATCHING!”
“WOW . . . MICHAEL IS SWIFT — IF HE RUNS FAST ENOUGH WHILE HOLDING THE MONEY BOX WITH BOTH HANDS — MAYBE HE WON’T GET CAUGHT.”

Immediately following the above two captions was another caption which stated: “TOO BAD . . . MICHAEL ISN’T

FASTER THAN OUR CAMERAS! AND MICHAEL ISN’T FASTER THAN THE POLICE!
MICHAEL PAYS THE COURT $105.00
MICHAEL GETS 91 DAYS IN JAIL (suspended)
MICHAEL MUST REPORT TO A PROBATION OFFICER FOR 1 YEAR MICHAEL NOW HAS A POLICE RECORD”

Below the caption immediately quoted above was located a photograph of the alleged accomplice in the theft and located to the left of this photograph was the following typewritten caption which was placed on an arrow pointing to the alleged accomplice’s photograph:

“WELL . . . ANOTHER ONE!
THE POLICE SAY THIS SPECIMEN IS NONE OTHER THAN MARVIN SHARP OF RT. 1, BOX 181, PINE-VILLE, LOUISIANA, THE POLICE SAY MARVIN WAS WITH MICHAEL NORRIS DURING THE ABOVE THEFT.
WAS MARVIN AN ACCOMPLICE? WAS MARVIN A LOOKOUT?
WHAT WILL THE JUDGE SAY?
WHEN WILL HIS TRIAL BE HELD?
WHAT WILL HAPPEN TO MAR-YIN?”

Norris brought suit against Brian King alleging that the publication of the photographs and captions referring to the theft and subsequent guilty plea caused him considerable humiliation and embarrassment and constituted undue harassment. The trial court rendered judgment in favor of Norris in the amount of $500.00 and permanently enjoined the defendant, Brian King, from further publicizing in any manner the arrest and conviction of Michael Norris.

The trial judge stated that the issue facing the Court was whether the actions of Brian King constituted an unlawful invasion of the “Right of Privacy” of the plaintiff, Michael Norris. He further stated that the award was to compensate the plaintiff both for the improper use of his name and picture on the bulletin board and for any over-zealous attempts to collect for the damages resulting from the theft.

ISSUES

A. Did the actions of Brian King constitute an invasion of the privacy of Michael G. Norris?

B. Does the holding of the trial court violate the rights of Brian King which are guaranteed by the First Amendment to the United States Constitution?

Defendant denies that he displayed the pictures to pressure the plaintiff into making restitution. We find difficulty in reconciling that contention of the defendant with the fact that he delayed six or seven months before posting the pictures in his place of business. The defendant stated that his purpose in displaying the pictures was to discourage or deter others from burglarizing his place of business. When questioned on cross-examination as to why he could not have omitted the name and address of the plaintiff, and/or have blacked out the identifiable facial features of the plaintiff, defendant replied that the desired effect of the publication would have been lost, because they would not appear as authentic, and therefore be of less benefit to the defendant.

The cause of action known as “invasion of privacy” has long been recognized and pronounced by the jurisprudence of this State . Tooley v. Canal Motors, Inc., 296 So.2d 453 (La.App. 4 Cir. 1974) described the right of privacy as follows:

“ . . . ‘the right to be let alone’ and as ‘the right to live one’s life in seclusion without being subjected to unwarranted and undesirable publicity’.”
“As appears from the cited cases and as discussed at length in the Comment at 28 La.Law Rev. (April 1968) malicious intent on the part of the defendant is not a necessary element in the prosecution of an invasion of privacy claim. If the defendant’s conduct is unreasonable and seriously interferes with plaintiff’s privacy the invasion is actionable.”

This tort has usually been associated with conduct falling into one or more of the following classifications:

(1) Intrusion (Lucas v. Ludwig, 313 So.2d 12 (La.App. 4 Cir. 1975), certiorari denied, 318 So.2d 42 [La.]);
(2) Public disclosure of private facts (Lambert v. Dow Chemical Co., 215 So.2d 673 (La.App. 1 Cir. 1968); Hamilton v. Lumbermen’s Mutual Cas. Co., 82 So.2d 61 (La.App. 1 Cir. 1955);
(3) False light in public eye (Tooley v. Canal Motors, Inc., supra);
(4) Appropriation of another’s name (Tooley v. Canal Motors, Inc., supra; McAndrews v. Roy, 131 So.2d 256 (La. App. 1 Cir. 1961).
See also Prosser, 48 Calif.Law Review, 383.

We are unable to find, and nor was any case in this State or any other state cited to us, wherein the issue involved herein was met squarely. In Briscoe v. Reader’s Digest Association, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971), the California Supreme Court was faced with a conflict between the right of freedom of the press and the right to privacy. The trial court in the case at bar had this to say in reference to Briscoe :

“Without quoting extensively from that opinion, it suffices to say that the court concluded that one of the major objectives of society and of the administration of our penal system is the rehabilitation of the fallen. Where a person has rehabilitated himself, he should be permitted to continue in the path of rectitude rather than be thrown back into a life of shame or crime. The court pointed out that even the thief on the cross was permitted to repent during the hours of his final agony. The court went on to say that:
‘One of the premises of the rehabilitative process is that the rehabilitated offender can rejoin that great bulk of the community from which he has been ostracized for his anti-social acts. In return for becoming a “new man” he is allowed to melt into the shadows of obscurity.’
“The California court then went on to hold that it is for the trier of fact to determine (1) whether the plaintiff has become a rehabilitated member of society, (2) whether identifying him as a former criminal would be highly offensive and injurious to the reasonable man, (3) whether defendant published its information with a reckless disregard for its offensiveness, and (4) whether any independent justification for printing plaintiffs identity existed. This Court accepts the above test and applying it here finds that the plaintiff has married and become a rehabilitated member of society, that the defendant’s conduct is highly offensive and injurious to the reasonable man, that the defendant published the information with total disregard for its offensiveness and that there is not sufficient independent justification for defendant’s act.
“A factor to be considered in making the above determination and in assessing damages is the recentness of the criminal offense. There seems little doubt that the defendant was entitled to truthfully discuss this criminal act and even to publish it on the bulletin board in his business. However, this Court feels that as of the filing of this suit the plaintiff had rehabilitated himself and that the continued publication of his offense served no public interest. It is extremely difficult if not impossible to point out an exact time after which the defendant’s conduct was legally impermissible. It is also difficult to allocate the embarrassment and humiliation which the plaintiff suffered between the period when the publication was permissible and the period thereafter. All things considered, the Court feels that an award of $500.00 would adequately compensate the plaintiff both for this improper use of his name and the picture on the bulletin board and for any overzealous attempts to collect for damages resulting from the criminal act.”

In addition to awarding the monetary damages hereinabove mentioned, the trial court also permanently enjoined the defendant, Brian King, from publicizing in any manner the arrest and conviction of the plaintiff, Michael G. Norris.

Defendant cites several United States Supreme Court decisions for his contention that the conduct did not constitute an invasion of privacy and that the ruling of the trial court violated defendant’s Constitutionally-guaranteed freedoms of speech and press. However, without going into an extensive discussion of the various cases cited by defendant-appellant, we find these cases not applicable to the case at bar. These cases cited by defendant-appellant all involve publication by either the news media, or by some other organization acting in the public interest. This case involves a publication by one individual, involving information concerning another individual. The cases cited by defendant-appellant involve the privilege and/or responsibility of the news media to openly publish, and this case involves a private citizen’s right and privilege to do so. The responsibilities of the news media are very different from those of the individual citizen. The whole purpose and aim of the news media is to bring forth information to the public, to apprise the public of the events transpiring from day to day. That responsibility, duty, and purpose are not shared by the ordinary individual. At least no cases to the contrary have been brought to our - attention by defendant-appellant.

The facts of this case illustrate the repeated harassment by defendant King of plaintiff and his family. That harassment was unreasonable, and seriously interfered with plaintiffs privacy. Accordingly, the invasion is actionable. Tooley v. Canal Motors, Inc., supra. Instead of pursuing restitution in a civil proceeding, defendant King instead chose to telephone plaintiff and his mother and make threats to plaintiff, the mother, and the integrity of the entire family. When these threats did not produce the results which he sought, defendant finally chose to display the photographs of plaintiff in a manner most ridiculing to plaintiff, and to announce to the world that plaintiff had been convicted of a crime, in a manner motivated by reasons which would continuously enure to defendant’s benefit (and to plaintiff’s detriment) by aiding defendant in safeguarding his property from theft, etc.

We are unable to discern any public interest to be served by defendant’s actions such as to bring him within the protection of the rights of free speech and press. Any such right that he might have had were lost to him when his motives evolved into continued punishment and harassment of the plaintiff; and his selfish motive of protection of his property became the main motivation for his continued publication of plaintiff’s picture and the information pertinent thereto.

It appears obvious, from the record, that one of defendant’s motives in displaying plaintiff’s picture in defendant’s washateria was to coerce payment of that which defendant claims that plaintiff took from him. Accordingly, the Louisiana jurisprudence dealing with the extent to which a creditor may apply pressure on a debtor should be examined.

A creditor may employ any reasonable, non-coercive methods in an attempt to collect that which is owed to him. However, when he oversteps the bounds of propriety and takes unreasonable, coercive action, he has committed tortious conduct for which the law provides a remedy. In the following cases it was found that the conduct of the defendant-creditor was actionable: Tuyes v. Chambers, 144 La. 723, 81 So. 265 (1919) (the defendant printed and published plaintiff’s name on a list of delinquent debtors); Booty v. American Finance Corp. of Shreveport, 224 So.2d 512 (La.App. 2 Cir. 1969) (the defendant sent a series of letters — no less than ten — -to plaintiff’s employer informing it of the status of its employee’s debt; creditor telephoned the office of employer and requested assistance in the collection of the debt; agents of the defendant told plaintiff that they would have him fired from every job until he left town); Boudreaux v. Allstate Finance Corp., 217 So.2d 439 (La.App. 1 Cir. 1968) (the creditor telephoned plaintiff’s neighbors and characterized plaintiffs as deadbeats, apprised the neighbors of plaintiff’s delinquency in payment of the debt due defendant); Pack v. Wise, 155 So.2d 909 (La.App. 3 Cir. 1963), writ refused 245 La. 84, 157 So.2d 231 (the defendant-creditor contacted plaintiff’s employer of an alleged delinquent indebtedness; he telephoned the employer and explained the situation; he furnished the employer with a letter received by him from plaintiff’s attorney informing him of potential litigation were he to continue his collection efforts; plaintiff was fired as a result of the foregoing). See also Malone, 25 La.Law Rev., 341 (1965).

Plaintiff has answered this appeal seeking an increase in the damages awarded by the trial court. While the award may be somewhat low, we do not find it to be outside of the perimeters of Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976). Accordingly, we will not disturb the award.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-appellant, King.

AFFIRMED.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I disagree with some of the conclusions which were reached by my colleagues in this case. I would affirm that part of the trial court judgment which enjoins defendant from further publicizing the conviction of plaintiff. I would reverse that part of the judgment appealed from, however, which condemns defendant to pay damages to plaintiff.

Some of the facts are presented in the majority opinion, but I think the most significant facts essential to a proper disposition of this case were omitted. For that reason I am stating here some of the important facts which obviously were overlooked by my colleagues. Practically all of these facts are uncontradicted.

Defendant King has been managing a washateria in Alexandria since about 1970. From 1970 until 1974, a period of less than four years, many thefts and serious crimes were committed in and around his place of business. At least 36 known thefts were committed in his washateria during that time. Most of those thefts were of clothes and money from Coke machines, but they also included thefts of pieces of furniture, a baby crib, rolling baskets, plumbing fixtures and cases of Cokes. At least ten complete eases of Cokes were stolen from the washateria. On one occasion a purse was taken from a woman while she was in defendant’s place of business. At another time, defendant caught two persons in the act of stealing clothes and bottles, and he held them physically until the police arrived. Besides the thefts which were actually committed, the evidence shows that a number of attempted thefts also occurred in the washateria during that time. The locks on defendant’s washing machines were damaged many times in the course of those attempted thefts.

In addition to the thefts which occurred in the washateria, several other serious crimes were committed in that immediate neighborhood. These included a nighttime robbery of the nearby Bonanza Steak House in 1974, the robbery of a service station where the attendant was severely beaten, and a daylight armed robbery of a neighboring business after which the offenders ran by plaintiff’s washateria in making their escape. In another instance, the owner of a business located adjacent to the washateria was held at gunpoint by thieves who were attempting to break into a jewelry store.

King was justifiably alarmed by the many crimes which were being committed in and around his place of business, so for his own protection he took some security measures. These included his participation in a security patrol service whereby his washateria was checked by patrol officers at regular intervals. On one occasion he employed detectives to maintain a stake-out to catch offenders. He painted the coin boxes on his machines with special paint so that they could be identified easily, and he used fluorescent powder on those boxes to assist in obtaining finger prints. These security measures, however, did not noticeably reduce the number of thefts which were committed or attempted in his place of business.

In October, 1973, as another security measure, King installed a camera in the washateria which he felt would help in apprehending those who committed thefts there. The camera could be seen by anyone in the washateria, and the fact that it was there apparently brought about some reduction in the number of thefts committed after it was installed. Despite the presence of the camera, however, other thefts and many attempted thefts were committed while it was there, and the locks on defendant’s washing machines were damaged during those attempts.

On three different occasions, within one year after the camera was installed, adequate pictures were obtained of persons committing thefts in the washateria. On the first two occasions pictures were obtained of a person named Rex Countee committing thefts. By means of those pictures Countee was identified, and after being apprehended he confessed that he had committed those thefts, and that he had committed several other thefts in the washate-ria which had not been photographed by the camera. Charges were filed against him for committing a total of seven thefts of that place of business. He pleaded guilty to all of those charges and was sentenced by the court. Thereafter he made restitution to King of all the moneys he had stolen from him.

The third occasion on which the camera functioned properly was in October, 1974, or about one year after it was installed, when a theft was committed in the washateria by plaintiff Norris and by an accomplice named Marvin Sharp. The camera managed to get pictures of Norris and Sharp while they were in the act of committing the theft, and both of those offenders were identified through those photographs. Charges were filed against them, and Norris was arraigned in November, 1974. He pleaded guilty to the charge which was filed against him, and he was sentenced by the court. The record does not show whether his accomplice, Sharp, has been arraigned or has been sentenced.

The court records relating to the charges against Norris and Sharp, including the plea of guilty which was entered by Norris and the sentence which was imposed on him, are public records which are available to anyone.

After the apprehension of Countee, Norris and Sharp, and the sentencing of the first two named offenders, there was a decrease in the number of thefts committed in defendant’s place of business. The evidence shows, however, that a number of attempted thefts were committed in the washateria after that time, but the pictures taken by the camera were not clear enough for the offenders to be identified.

In April, 1975, or about five months after Norris was sentenced, some more thefts were attempted in the washateria, during the course of which three machines owned by defendant were damaged. The offenders were not detected. Immediately following those incidents King decided that, as another measure designed to reduce thefts in his establishment, he would display in his place of business pictures of the three people who had been photographed in the act of committing thefts. He hoped that that would serve as a deterrent to other would-be thieves. King stated “I just had to do something because of the increase in what was going on.”

In April or May, 1975, therefore, shortly after three of his machines were damaged, defendant erected in his washateria two separate bulletin boards, about equal in size, which faced in opposite directions. On one of those boards, he displayed three pictures of Countee, with labels giving Coun-tee’s name and address, explaining how he committed two thefts in the washateria on separate days, and stating that Countee had pleaded guilty to the charges and had been sentenced. One of those labels contained the statement that “Rex paid an additional $40.00 for stolen property.” Defendant explained that that payment constituted restitution to King of the amount which Coun-tee had stolen. The labels on the bulletin board showed, therefore, that Countee had made full restitution before his pictures were publicized.

On the other bulletin board, King displayed two pictures of Norris and one of his accomplice, Marvin Sharp. That display also included labels giving Norris’ name and address, explaining how he committed the theft and stating that Norris had been sentenced and that he now has a police record. On the same bulletin board, opposite Sharp’s picture, there was a label giving Sharp’s name and address, containing statements showing that Sharp was an accomplice in committing the theft, and showing that criminal charges had been filed against him.

The majority opinion correctly describes the pictures and labels which were posted on one of the above bulletin boards, that is the bulletin board which contained the display relating to plaintiff Norris. Not a word is mentioned in the majority opinion, however, about the other bulletin board, that is the one that was devoted entirely to describing the thefts committed by Rex Countee. The majority obviously did not consider the fact that defendant displayed pictures and information about Countee and Sharp, as well as those relating to Norris, on the bulletin boards. I think that is a significant fact which should have been considered.

My colleagues have held that one of King’s motives in erecting the bulletin boards was “to coerce payment of that which defendant claims that plaintiff (Norris) took from him.” I do not think that is a valid issue, since the majority apparently concedes, and the evidence shows, that King had another motive which clearly justified the display. I also feel strongly that the evidence shows that King did not have any such motive. Assuming that it is a valid issue, however, I believe that the majority has erred in considering only a part of the evidence.

I suggest at least six serious errors which my colleagues have made in deciding this case.

One such error is the majority’s failure to consider the fact that Countee had already made restitution of the amount which he had stolen, and that defendant had no claim at all against him when the bulletin boards were erected. King thus could have had no motive in displaying Countee’s picture, other than to help in reducing the number of thefts in his washateria. Yet, the display on' the bulletin board relating to Countee was more prominent than was the one which related to plaintiff Norris. The majority does not attempt to explain, and I submit that it cannot do so with any degree of logic, why King displayed Countee’s pictures so prominently on a bulletin board, if his motive was to coerce Norris into making restitution of the money which the latter had stolen. The only plausible explanation which can be given for his act in displaying all of the pictures, including those of Norris, is that it was done to deter other would-be-thieves.

A second error is the majority’s failure to note that a picture of Sharp also was included on the same bulletin board as that which contained pictures of Norris. King never made a demand on Sharp, and no one has suggested that he was trying to coerce Sharp into making a payment to him. One of Norris’ complaints, in fact, is that King did not look to Sharp for recovery of a part of his loss. The majority did not, and it cannot, logically explain why King included Sharp’s picture on the same bulletin board as that containing Norris’ picture, if his motive in fact was to coerce Norris into paying money to him.

A third error was made by my colleagues in overlooking the fact that the money which was stolen by Norris was very small, and under no circumstances could defendant’s claim for that small amount justify the erection of two bulletin boards and arranging displays on them. King estimated that Norris had stolen the total sum of $50.00. Norris thinks it was less than that amount, and his parents offered to make restitution of $25.00. The evidence does not show the cost of erecting the two bulletin boards which were used by defendant, but it is obvious that the expense of erecting those boards was substantially more than the full amount of any possible claim which King might have had against Norris. It is unreasonable, I think, to hold that King used such an elaborate and expensive means to coerce the payment by Norris of such an insignificant amount.

The fourth error made by the majority was in failing to consider the fact that King had taken several security measures prior to the erection of the bulletin boards in an effort to deter crime in his washateria. The erection of those bulletin boards was consistent with the earlier steps he had taken. It clearly was another security measure, and it was the only such measure which proved to be successful. After the bulletin boards were erected in defendant’s washateria, not a single theft has been committed or attempted in that establishment. Defendant King testified that “The time when all crimes ceased was when the display went up,” and that there have been “absolutely zero” crimes since that time.

The fifth error made by my colleagues is in failing to consider the fact that no request was ever made by plaintiff Norris, or by either of his parents or by his attorney, for the removal of the display. All of them knew that the display was in the washate-ria, because plaintiff testified that he went to that establishment and saw it when it was first erected. There is some evidence to the effect that plaintiff’s employer asked King to take down the display on one occasion, but that was only a casual request and it was not made in behalf of plaintiff or any members of his family. The first demand for removal of the display which was made in behalf of plaintiff was communicated to defendant King by the filing of the instant • suit. It is manifestly unjust, I think, to allow plaintiff to recover damages from King because of the display, after plaintiff had remained silent and had acquiesced in the existence of the bulletin boards, without protest, until the suit was filed.

The sixth error made by my colleagues is in holding that defendant’s actions constituted “harassment” of plaintiff and his family. The evidence shows that King never contacted plaintiff Norris or Norris’ father at any time. He asked the judge at the time Norris was sentenced if the court would order restitution, as had been done in the Countee case, but the judge declined that request with the explanation that there was a dispute as to the amount which was stolen, and that the question of restitution was a civil matter. Shortly after plaintiff was sentenced King talked to Norris’ attorney in the court room, and the latter agreed to confer with his client. Later that afternoon King talked to plaintiff’s mother by telephone and asked for restitution, but Mrs. Norris suggested that he talk to the attorney they had engaged to represent her son. King thereupon talked to the attorney again and eventually Mr. or Mrs. Norris, through their attorney, offered to pay $25.00 as a settlement. That attorney testified that he “probably had three or four conversations with him (King) the week following the conviction,” and that he then had no further contact with defendant until five or six months later, in May, 1975. King testified that after talking to plaintiff’s attorney, he felt that further efforts to collect were useless, and that he thereupon abandoned the claim. His testimony, in part, is:

“A. Well, it’s too small of amount to really go through any kind of trouble as far as civil proceedings. And if it wouldn’t work by simple understanding between two people, two adults, or three adults, as the case was,- — uh—I figured it wasn’t worth messing with, that it was a waste of time.”

The record shows that King again talked to Mrs. Norris, plaintiff’s mother, and to plaintiff’s attorney several months later, in May, 1975, about restitution. Mrs. Norris’ testimony conflicts with that of King as to how many calls were made and as to what was said. Mrs. Norris stated that King called her three or four times in November or December, 1974, and that he did not contact her again until five or six months later, in May 1975, when he talked to her by telephone from five to eight times. She stated that in each of those two series of calls King threatened to publish plaintiff’s picture and to embarrass the family if they didn’t pay him the small sum he demanded. King concedes that he talked to Mrs. Norris in November, 1974, and in May, 1975, but he says that he did not talk to her nearly as many times as she contends, and he vehemently denies that he ever made any threats of any kind to her or to anyone else.

My colleagues have found that there was “repeated harassment by defendant King of plaintiff and his family,” and that defendant King made “threats to plaintiff, the mother, and the integrity of the entire family.” I strongly disagree with those findings, and base that disagreement not only on the evidence, as summarized above, but also on three other important circumstances.

One such circumstance is that, according to the testimony of the attorney who was engaged to represent plaintiff in the criminal proceeding, Mrs. Norris talked to him several times relative to their negotiations with King. She apparently did not mention •to that attorney one single time, however, that King had threatened to publish her son’s picture or to embarrass the family in any way. The nearest thing to a threat which is suggested in the attorney’s testimony was that Mrs. Norris left a note with his secretary on one occasion in May, 1975, indicating that King had threatened to “sue” plaintiff’s father. I find nothing menacing about a threat of that kind, if it in fact was made, particularly since plaintiff’s own attorney had just suggested to King that he would have to “sue” to obtain restitution and the judge in the criminal case had told him substantially the same thing. It is inconceivable to me that Mrs. Norris would not have told her own attorney about the threats of publication if any such threats, in fact, had been made. The testimony of the attorney supports and corroborates the statements of defendant King that no threats of publication and no threats of any other kind were made.

The second circumstance which convinces me that no harassment or threats occurred is the fact that the trial judge did not find that there had been any threats or harassment by King. The trial judge, instead, agreed that King had the right to erect the bulletin board display and to maintain it for a period of time. The judge eventually decided to award damages to plaintiff, but he based that decision solely on a California case, Briscoe v. Reader’s Digest Association, 483 P.2d 34 (1971), and on a finding that defendant had allowed the display to remain up after Norris had become a “rehabilitated member of society.”

The trial judge said:

“There seems little doubt that at the time of the offense and for a period of time thereafter the defendant was entitled to truthfully discuss this criminal act and even to publish it on the bulletin board in his business. However, this Court feels that as of the filing of this suit the plaintiff had rehabilitated himself and that the continued publication of his offense served no public interest. It is extremely difficult if not impossible to point out an exact time after which the defendant’s conduct was legally impermissible. It is also difficult to allocate the embarrassment and humiliation which the plaintiff suffered between the period when the publication was permissible and the period thereafter.”

The third circumstance which convinces me that there was no harassment is that, according to the record, King did not contact plaintiff or his attorney, or any member of plaintiff’s family, after May, 1975, which was about the time the display was erected. The bulletin boards remained in the washateria from that date until about August, 1976. During that entire period of time, about 15 months, King did not make a single demand for payment, he did not offer to remove the boards if payment was made and he had no further contact of any kind with plaintiff, his attorney or his family, until this suit was filed. I think King would have pressed plaintiff for payment while the display was up, if it actually was his purpose to harass him. Also, when plaintiff’s employer casually asked King to take down the display, it seems that King would have said something then about payment if the purpose of the display was to coerce restitution.

I think my colleagues erred in concluding, contrary to the findings of the trial court, that King made threats against plaintiff. The evidence establishes, I think, that defendant erected the bulletin board displays solely to deter further thefts in his was-hateria, and not to coerce anyone into paying a debt. The evidence shows that it effectively accomplished that purpose. Even if we accept my colleagues’ holding that one of defendant’s motives was to coerce payment, they cannot deny that his principal motive was to reduce the number of thefts which were being committed, for his own protection and that of his customers. I think that that is a reasonable and justifiable reason for the display.

My colleagues have noted that “several United States Supreme Court decisions” were cited to support defendant’s position. They brush off those authorities, however, without even citing them, by stating that the cases are not applicable here because they “involve publication by either the news media, or by some other organization acting in the public interest.” They then hold, as I understand the opinion, that the news media has a much greater right of freedom of speech under the First Amendment than does “the ordinary individual.” The majority then proceeds to apply the case of Briscoe v. Reader’s Digest Association, supra, a California Supreme Court case, which also involves a publication by the news media. They don’t discuss Briscoe, except to quote extensively what the trial judge had to say about it

I distinguish Briscoe, supra, because of the great difference in facts and because I do not feel that it supports the majority’s holding, even if we should be inclined to follow the California rule. The facts were that plaintiff Briscoe participated in hijacking a truck in 1956. Thereafter he became entirely rehabilitated, and none of his friends knew about the incident. Eleven years later, in 1967, the defendant magazine published an article on the general subject of the hijacking of trucks, and it specifically referred to the hijacking which had been committed by Briscoe, naming him in the article and stating that he fought a gun battle with the local police. The article did not mention that that hijacking had occurred in 1956, eleven years earlier. Some other dates, ranging from 1965 to the date of publication, 1967, were mentioned in the article, however, and it left the reader with the impression that the hijacking committed by Briscoe was very recent. Briscoe’s friends and his 11-year-old daughter learned of the hijacking for the first time from that article. No worthwhile purpose was served by publishing Briscoe’s name and the facts relating to the incident.

The facts in Briscoe thus are vastly different from the facts presented here, but even under those facts the California Court did not award damages to the plaintiff. The trial court had sustained a demurrer and dismissed Briscoe’s suit, and thereafter the Supreme Court reversed and remanded the case for trial. In doing so, the Supreme Court made it plain that it did not hold that plaintiff must prevail in the action. It found simply that Briscoe had been “completely rehabilitated,” and that under the assumed set of facts, “there was no independent reason whatsoever for focusing public attention on Mr. Briscoe as an individual at this time.” It remanded the case for the trier of fact to determine several things, one of which was “whether any independent justification for printing plaintiff’s identity existed.” Presumably, the plaintiff would not be permitted to recover if the printing of his name served a useful purpose.

In the instant suit the publicizing of Norris’ name occurred shortly after the theft was committed. It was publicized only in defendant’s place of business where that offense and many others had occurred. It demonstrated to would-be-thieves and to customers, the probable victims, that offenders would be caught and punished. And, it effectively reduced thefts. There was an' independent justification for the display, therefore, and I believe that recovery of damages for the invasion of plaintiff’s privacy should be denied even under the California rule.

Also, in Briscoe, the evidence showed that plaintiff had become rehabilitated. My colleagues do not, and I submit they cannot, make such a finding relative to Norris in this case. The record shows that when the bulletin board display was erected by King, Norris was under a suspended sentence and was on probation. It cannot be said that he had become rehabilitated by that time. Norris remained on probation for at least six or seven months after the display was first erected, and he then moved to Oklahoma to obtain a better job. There is nothing in the evidence to show whether he became any more “rehabilitated” in Oklahoma than he was here.

Although my colleagues rely solely on Briscoe, supra, they have overlooked the fact that that case did not involve any questions of harassment or coercion at all. The decision was based solely on a finding that the plaintiff had rehabilitated himself after eleven years. Having cited that case as its authority, however, the majority then departed completely from the holding in Briscoe and from the holding of the trial court in the instant suit, and instead found that King’s purpose in erecting the display was to harass plaintiff and to coerce restitution. I believe that if the display was for the purposes of harassment or coercion, then defendant would have had no right to erect it at all, not even for one minute. The trial court, consistent with the California Court in Briscoe, conceded that defendant had the right to erect the display and to maintain it for a period of time. The majority in the instant suit, however, bases its holding on a factual finding and on a principle of law which is entirely different from that found or applied by either the trial court in this instance or by the California Court in Briscoe. I think my colleagues have made a mistake in doing so.

The majority apparently did not consider the fact that the information publicized about plaintiff Norris was a matter of public record. I believe that they would have arrived at a different conclusion if they had considered that fact and the case of Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), which was cited by defendant.

The Cox Broadcasting Corporation case originated in Georgia. The Supreme Court of that state, citing and relying on the California case of Briscoe, supra, held that the First Amendment rights of freedom of speech or of the press did not protect the defendant from a claim for damages for invasion of privacy, where the defendant disclosed in a news broadcast the name of a rape victim while it was reporting the rape case. (See 231 Ga. 60, 200 S.E.2d 127). An appeal was granted to the United States Supreme Court, and that tribunal reversed the Georgia Court on the ground that the victim’s name was a matter of public record. The decision of the United States Supreme Court in that case clearly super-cedes the ruling of the California Court in Briscoe. In Cox Broadcasting, the United States Supreme Court said:

“Thus even the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record." [Emphasis added]
“By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on. the publication of truthful information contained in official court records open to public inspection.”

I agree with the majority that for many years courts in Louisiana have recognized a cause of action for “invasion of privacy.” My colleagues concede, however, that the issues presented in the instant suit are res nova in this state. My own view is that in this case the majority has gone much too far in allowing the judicially-created right of privacy to prevail over the constitutionally guaranteed right of freedom of speech.

I realize that defendant should not be permitted to leave the display up indefinitely, because eventually it would cease to serve the purpose intended and the continued maintenance of it would constitute an abuse of the latter’s right of freedom of speech. For that reason I would concur in that part of the trial court judgment which enjoins him from continuing to publicize plaintiff’s conviction. I believe, however, that the display was justified and that it was maintained for only a reasonable length of time.' For that reason, I cannot agree with that part of the trial court judgment which condemns defendant, who was the victim of the crime, to pay damages to the person who committed that crime, solely because defendant informed his other customers of the fact that the theft had been committed.

For these reasons, I respectfully dissent.

      . Denis v. Laclerc, 1 Mart., O.S. 297 (1811).


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Clifford BOSWELL, Plaintiff-Appellee, v. ROY O. MARTIN LUMBER COMPANY, INC., Defendant-Appellant.
    No. 6197.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 1978.
    Rehearing Denied March 1, 1978.

      Gold, Little, Simon, Weems & Bruser by Charles S. Weems, III, Alexandria, for defendant-appellant.
    Roy B. Tuck, Jr., Leesville, for plaintiff-appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   HOOD, Judge.

Clifford Boswell claims damages allegedly sustained by him when defendant, Roy O. Martin Lumber Company, Inc., deadened some trees on Boswell’s property. The trial court rendered judgment for plaintiff. Defendant appealed.

The issues are (1) whether the timber deed which plaintiff executed in favor of defendant authorized the latter to deaden trees less than eight inches in diameter on plaintiff’s land; and (2) whether the award of damages made by the trial court is excessive.

Plaintiff owns a 50-acre tract of land in Vernon Parish. On December 14, 1962, he executed a timber deed conveying to defendant all hardwood, cypress and pine trees located on that tract of land which are “. . .8 inches and larger in diameter at stump when and where cut.” The timber deed also contained the following provision:

“Vendee shall have a period of 5 years or until December 14, 1967 from the date hereof in which to cut and remove timber, trees and other forest products, and to conduct its operations hereunder, together with full right of ingress, egress and regress for all purposes pertaining to its business on said land or adjacent tracts of land. Vendee may use roads and trails existing or hereafter constructed, including bridges, and may widen, repair or rework all roads, trails, and bridges. Vendee may construct additional bridges and roads as needed, and shall have all other incidental, necessary or essential rights for the cutting, removal, manufacture, and/or storing of the aforesaid trees, timber, logs, wood or wood products. . . ”

The parties later entered into other written agreements, under the terms of which they extended the time allowed defendant for cutting and removing timber to December 14, 1977.

On or about June 25, 1974, employees of the defendant lumber company went on plaintiff’s land and performed or carried out a procedure known in the forestry industry as “Timber Stand Improvement,” or “TSI.” The TSI project consisted of injecting a chemical or herbicide into certain trees, which caused the trees so treated to be deadened or killed. The purpose of that procedure was to remove cull, trash or weed trees from the property, so that the merchantable trees would have more room to grow. The TSI project was conducted on plaintiff’s land without prior notice to Boswell of defendant’s intent to conduct it.

Plaintiff instituted this suit on May 22, 1975, contending as the basis for his claim that defendant injected and destroyed many trees which were not included in the timber sale, and that the trees so treated had present and future commercial value. An expert called by him testified that 6,220 trees were killed by defendant, the great majority of which were under 8 inches in diameter, and only about one-third of them were “weed trees.” He estimated that the trees of that size which were destroyed would have yielded about 50 cords of firewood, and that that timber when cut and delivered would have had a total retail value of about $2,500.00.

Defendant contends that the only trees below 8 inches in diameter which were destroyed were cull, trash and weed trees that had no commercial value at all, present or future. Its experts testified that from 75% to 100% of the trees injected would have been destroyed anyway in the course of conducting normal logging operations on the property, as defendant was authorized to do, that literally thousands of pine and hardwood trees less than 8 inches in diameter were left standing on the property, and that the TSI project served to greatly “enhance” the value of the land and the remaining timber on it.

Defendant argues that the killing of small cull or weed trees which have no merchantable value is an incidental and necessary right to the logging operations authorized by the timber deed, and that defendant was “expressly authorized” by that deed to conduct those operations. In that connection it points out that the timber deed gave it the right “to cut and remove timber, trees and other forest products,” and that that contract grants to it “all other incidental, necessary or essential rights for the cutting, removal and/or storing of the aforesaid trees, timber, logs, wood or wood products.”

The first question to be answered is whether defendant was authorized by the original timber deed, dated December 14, 1962, to conduct a TSI project on plaintiff’s property, which involved the injecting and killing of trees under 8 inches in diameter.

The trial judge concluded that “the timber deed did not authorize Timber Stand Improvement activities on the Boswell tract,” and he rendered judgment in favor of plaintiff awarding him general damages for the unauthorized deadening or destroying of trees on his property.

As already noted, the timber deed gives defendant the “right of ingress, egress and regress for all purposes pertaining to his (its) business,” and “all other incidental, necessary or essential rights for the cutting, removal, manufacture, and/or storing of the aforesaid trees.” We find that the project conducted by defendant in June, 1974, resulting in the destruction of small trees on plaintiff’s property, was not necessary to defendant’s right of ingress and egress to and from the property, and it was not incidental, necessary or essential to the cutting and removal of the trees which were sold. The obvious purpose of the project was to improve the quality or value of the larger timber which defendant expected to cut and remove at a later date.

We think defendant had the right under the provisions of the timber deed to destroy such small trees as were necessary in connection with the cutting and removal of the timber which was sold, but it did not have the right under that contract to destroy the smaller trees solely for the purpose of increasing the value of the larger timber. We agree with the trial judge, therefore, that defendant did not have authority under the above timber deed, or by law, to .destroy trees on plaintiff’s property under 8 inches in diameter by means of the procedure known in the forestry industry as Timber Stand Improvement, that is, by injecting a chemical into specific trees under the above size for the purpose of killing or deadening them.

A person who possesses a timber cutting contract and violates it by cutting undersized timber from the property is considered to be a trespasser. Terry v. Butler, 240 La. 398, 123 So.2d 865 (1960). Applying that rule to the instant suit, we believe that defendant must be held to have been a trespasser in conducting the TSI project on plaintiff’s land, since it had no authority to deaden and destroy the undersized timber.

We agree with the trial judge that defendant committed a trespass on plaintiff’s property in conducting the above project, and that it is liable to plaintiff for the damages he sustained as a result of that trespass.

We turn now to the question of whether the award made by the trial court is excessive.

The trial judge apparently concluded that the evidence failed to establish that plaintiff had sustained any pecuniary loss as a result of the TSI project. He found, however, that plaintiff sustained “general damages” in the amount of $5,000.00 as a result of that project, and he rendered judgment in favor of plaintiff for that amount. He stated in his reasons for judgment that “actual damages are not limited to the pecuniary loss sustained,” and that he “took into consideration the amount of acres involved, the denuded condition of the land, the effect this situation has on a sole proprietor who is obviously over 50 years of age.”

In Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847 (1951), the Louisiana Supreme Court stated:

“The measure of damages allowable for the unlawful cutting of timber is well settled in this State. If the trespass has been reckless and willful, the trespasser is said to be guilty of moral bad faith and is liable for the converted value of the timber without allowance or deduction for costs and expenses. In cases where the trespasser believes himself to be owner but should have known otherwise, either from information available to him or other ascertainable facts which would have placed a reasonably prudent man on notice, he is held to be in legal bad faith and the actual expenses incurred by him in converting the timber are to be deducted in assessing the damages. And in cases where the trespasser is in good faith, that is, where he believes that the timber belongs to him and there is no valid reason for him to suppose otherwise, he is liable only for its stumpage value. Bolles Wooden Ware Co. v. U. S., 106 U.S. 432, 1 S.Ct. 398, 27 L.Ed. 230; Guarantee Trust & Safe Deposit Co. v. E. C. Drew Inv. Co., et al. [107 La. 251, 31 So. 736], supra; St. Paul v. Louisiana Cypress Lumber Co., et al., 116 La. 585, 40 So. 906; State v. F. B. Williams Cypress Co., 131 La. 62, 58 So. 1033 and State v. Jefferson Island Salt Mining Co., 183 La. 304, 163 So. 145 and authorities therein cited.”

In the instant suit the employee of defendant who authorized the conducting of TSI operations on plaintiff’s property knew that defendant owned only the timber which was eight inches and above in diameter, and he conceded that he did not notify plaintiff of his plan to inject and destroy trees under that size before the project was started. He testified that this was the first time defendant had ever gone on a tract of land, on which it had only short term timber cutting rights as in this case, and deadened trees not included in the timber sale without the landowner’s prior consent.

We find that the trespass committed by defendant here was reckless and willful. It necessarily follows, therefore, that defendant was in moral bad faith, and that it is liable to plaintiff for the converted value of the timber less than eight inches in diameter which it destroyed, without allowance or deduction for costs and expenses, if plaintiff actually sustained any such damage. Kennedy v. Perry Timber Co., supra; Huddleston v. Knotts, 56 So.2d 227 (La.App. 2 Cir. 1951); Quatre Parish Co. v. Beauregard Parish School Board, 220 La. 592, 57 So.2d 197 (1952); Estate of Boyett v. L. L. Brewton Lumber Company, 223 So.2d 495 (La.App. 2 Cir. 1969); and Knoll v. Delta Development Company, 218 So.2d 109 (La. App. 3 Cir. 1969).

We conclude, as we assume the trial judge did, that the evidence fails to show that plaintiff sustained any actual pecuniary loss as a result of the TSI project which was conducted on his land.

Defendant had the right under the above timber deed to cut and remove trees which were eight inches and larger in diameter. Some of the trees which were killed in the TSI project were large hardwood trees which were included in the sale. It is immaterial whether the right granted by the timber deed included the right to inject and deaden trees that size or larger, because in any event plaintiff suffered no pecuniary loss as a result of the deadening of the timber which defendant had the right to cut and remove.

The trees less than eight inches in diameter which defendant destroyed were never converted into firewood or any other marketable product. They, in fact, were never cut down or converted into logs, so those trees never had any actual “converted value.” The evidence is conflicting as to whether any of the small trees killed by defendant could have been used for firewood or for any other purpose. Assuming, however, that some of the small trees which were injected could have been converted into firewood, we are unable to determine from the evidence how much firewood might have been produced from them, or approximately how many of those trees, or even what percentage of them, would have remained standing and available for that purpose after the larger timber was cut. It is impossible to determine from the evidence what the converted value of the injected trees might have been if an attempt had been made to utilize them for some purpose.

As already noted, the TSI project was conducted on plaintiff’s property in 1974. This suit was filed in 1975, and the case was tried on July 1, 1976. Defendant had not cut any timber on plaintiff’s land up to the date of the trial. Both parties state in their briefs filed on this appeal that defendant cut and removed all of the trees included in the timber sale some time after the trial and before the case was argued on appeal. The evidence does not show, of course, how those cutting operations affected the remaining small timber. We are unable to speculate from the facts shown in the record how many of the injected trees under eight inches in diameter would have survived the timber cutting operations which defendant was authorized to conduct on plaintiff’s property, or how much the “converted value” of those trees might have been if an attempt had been made to put them to some useful purpose.

Plaintiff argues, that the small timber which was destroyed had a “potential” market value, and that he is entitled to recover the “projected value of marketed timber based on current prices and then discounting that value to the present time.” The trial judge rejected that argument, correctly we think.

In Quatre Parish Co. v. Beauregard Parish School Board, supra, our Supreme Court held that damage to young timber resulting from the negligent cutting by a defendant who was held to be in bad faith was toó speculative to permit recovery. And, in Estate of Boyett v. L. L. Brewton Lumber Company, supra, the reviewing court held that “plaintiff’s claim for the loss of the value of the future growth of timber prematurely cut had been properly denied by the trial court.”

We, like the trial judge, find no merit to plaintiffs claim in the instant suit for the loss of the projected value of the small timber which defendant destroyed. The proof of such a loss is too speculative to permit recovery.

The evidence indicates that the value of plaintiff’s land was not adversely affected by the TSI project which was conducted on it. Plaintiff’s property is unimproved swampy land, which is not located on a public road and is relatively inaccessible. It apparently was used for no purpose other than for squirrel hunting. There is nothing in the evidence to show that the value of the property was diminished as a result of the above project. Plaintiff thus is not entitled to be compensated for damages to his property.

Plaintiff contends, finally, that he is entitled to recover damages for the invasion of his property rights, and for mental anguish, distress and humiliation resulting from the trespass on his property. In support of that demand, he testified that he frequently hunted squirrels on that property, and that defendant’s deadening of the small hardwood trees makes the property less suitable for that purpose. The trial judge obviously was impressed with plaintiff’s testimony, since he awarded plaintiff $5,000.00 as general damages resulting from the trespass.

On this appeal, which was after the larger trees had been removed pursuant to the timber deed, plaintiff argues that “the face of the land has been changed,” that “the hardwood forest existing on the land owned by the plaintiff has been destroyed,” that “for a period of time the land will be covered essentially by brush and briars,” and that plaintiff, who is an elderly man, “has suffered great mental anguish as a result of the wrongful destruction of the hardwood trees owned by him.”

We do not question plaintiff’s statements that the cutting and removal of timber pursuant to the timber deed made, or will make, his property less suitable - for squirrel hunting purposes. Plaintiff voluntarily sold his timber to defendant, however, and we assume that he knew at the time of that sale that all of the timber eight inches and larger in diameter would be cut and removed from his property. The evidence does not convince us that the deadening of the smaller trees in 1974 affected the squirrel population on that property. Even if it did, however, we feel that plaintiff must have anticipated as early as 1962, when he first sold the timber to defendant, that his hunting activities on the property would be interrupted or affected in some way by the timber cutting which he specifically authorized.

We agree with the trial court that plaintiff is entitled to recover general damages for the invasion of his property rights and for mental anguish. See Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955). Considering all of the facts, however, we believe that the award of general damages made in this case is grossly excessive and must be reduced. We conclude that an award of $500.00 would be fair and adequate.

For the reasons assigned, the judgment appealed from is amended by reducing the amount of the award from $5,000.00 to the sum of $500.00. In all other respects the judgment is affirmed. The costs of this appeal are assessed to defendant-appellant.

AMENDED AND AFFIRMED.


text:
    Edwin K. HUNTER, Plaintiff-Appellee, v. William F. WILSON, Jr., Defendant-Appellant.
    No. 6201.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 1978.
    Rehearing Denied March 1, 1978.

      Joseph Greenwald and W. Ellis Bond, Lake Charles, for defendant-appellant.
    Camp, Carmouche, Palmer, Carwile & Barsh, by J. A. Delafield, Lake Charles, for plaintiff-appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   HOOD, Judge.

Plaintiff, Edwin K. Hunter, seeks a reduction in the price of a home which he purchased from defendant, William F. Wilson, Jr. He alleges as grounds for his demands that the roof of the building leaked, and that the heating and air conditioning equipment failed to function properly. The trial judge found that the roof was defective at the time of the sale, but that the evidence failed to show a vice in the heating and air conditioning equipment at that time.

Judgment was rendered by the trial court in favor of plaintiff, awarding him $2,845.00 as a reduction in the purchase price. Defendant appealed. Plaintiff answered the appeal, praying that the amount of the award be increased.

The issues are: (1) Was the roof of the building defective and, if so, was that defect apparent to the purchaser by simple inspection? (2) Was the heating and air conditioning equipment in that structure defective and, if so, was the defect of such a nature as to entitle plaintiff to a reduction of the purchase price?

Defendant Wilson owned a residence building in Lake Charles, which was constructed in 1950. He occupied it as his home from the time it was built until he moved out and offered it for sale in August, 1972. On October 16, 1973, after the building had been for sale and unoccupied for over a year, Wilson and Hunter entered into a buy and sell agreement under the terms of which Hunter agreed to purchase the property from defendant. An act of sale was executed by the parties conveying the property to Hunter on October 26, 1973. Hunter moved into the building with his family on November 2, 1973, and he has occupied it as his home since that time.

The home was constructed originally with a “built up” roof, which differs from an ordinary shingle roof in that it is covered with crushed marble, gravel or some type of crushed rock or brick, instead of with shingles. Wilson replaced the entire roof of the building in 1960, and at that time the new roof was constructed in the same manner as was the old one.

After the contract to buy had been entered into, but before the sale was completed, Hunter discovered a leak in the living room of the home near and on the east side of the fireplace, and he immediately called that fact to Wilson’s attention. Defendant explained that the leak came from the flashing around the fireplace, and he assured Hunter that the condition would be repaired. Shortly thereafter the sale was completed and defendant began occupying the property.

About two or three weeks after Hunter had moved into the home, a rain occurred and in the course of that rain numerous leaks in the roof began to manifest themselves. Leaks appeared on the west side of the fireplace, and in the living room, the hallway and the bedroom of the house, and they were sufficient to make it necessary for plaintiff to place several pans on the floor in various parts of the house in order to catch the water as it dripped through the ceiling.

Hunter promptly contacted several roofing contractors, who examined the roof and advised him that the roof would have to be replaced. Hunter then obtained bids from three roofing contractors, and he accepted the low bid of one of them, Jerome Korn, to have the roof replaced. Korn performed that work for plaintiff, and Hunter paid him $2,845.00 for the job. The record shows that bids were submitted by the contractors during the latter part of November, 1973, and that the roof was replaced by Korn on or about February 4, 1974.

Plaintiff informed defendant of the defective condition of the roof shortly after the defects were discovered. The record contains a copy of a letter which plaintiff wrote to defendant on December 31, 1973, advising him of the condition of the roof and of the fact that he was having it replaced.

The home which plaintiff purchased was equipped with a central heating and air conditioning unit. The heater was not used much during the winter of 1973, due to the mild weather which prevailed at that time. When plaintiff first used the heater some time after he moved into the house, he noticed an odor of oil being emitted from it, but he attributed that odor to the fact that the unit had not been used for a prolonged period of time. In February, 1974, the heater ceased to function. The fan would not run, and the unit produced no heat. Hunter did not have the heater inspected or repaired immediately after the above discovery was made, but instead, he simply did not use the heating unit during the last part of the winter season. In the summer of 1974, Hunter used the equipment to air condition and cool his home. During that summer he had the heating unit inspected and was advised that the heat exchanger had a crack in it and that the heat exchanger, the fan and the thermostat would have to be replaced. He thereupon had parts of the air conditioning and heating unit replaced or repaired by Moreno’s Air Conditioning Service in the fall of 1974, at a cost of $1,279.90.

Hunter then made demand on defendant for a reduction in the purchase price of $2,845.00 for replacing the roof, and of $1,172.00 for repairing the heating unit, making a total reduction of $4,017.00. That demand was rejected by defendant, and this suit was filed on October 25, 1974.

The trial judge found that the roof was defective at the time the sale was completed, and that the defect was of such a nature that plaintiff was entitled to a reduction in the price of the house equal to the amount which he paid to have the roof replaced. He found that the evidence did not support plaintiff’s other demands. Judgment was rendered in favor of plaintiff for the sum of $2,845.00. Defendant appealed, and plaintiff answered the appeal.

The law provides that the seller warrants the thing sold against hidden defects. LSA-C.C. arts. 2475, 2476. Hidden defects are those which cannot be discovered by simple inspection. LSA-C.C. art. 2521. If the thing sold has a hidden defect which renders it either absolutely useless, or its vice so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice, the purchaser may avoid the sale. LSA-C.C. art. 2520. Whether the defect in the thing sold be such as to render it useless, or whether it be such as merely to diminish its value, the purchaser may limit his demand to the reduction of the price. LSA-C.C. arts. 2541, 2542, 2543. In the instant suit plaintiff has demanded only a reduction of the price.

The trial judge found that the roof of the home purchased by Hunter leaked badly at the time of the sale, and that the defect in the roof was sufficient to entitle plaintiff to a reduction of the price. With reference to the roof, the trial judge said:

“Hunter proved the essential elements of the redhibitory action with respect to the roof. The roof was defective. It leaked badly. Its condition was described by three roofing experts who saw it shortly after the purchase. They testified it was in sore need of replacement. Whether it leaked much during the year before the sale is not known; no one lived in it for over a year. It was leaking immediately after the sale. It was thirteen years old, but defendant’s expert roofer said that a properly applied “built up” roof will last far longer than thirteen years. This one did not. However, the question is not why the roof was bad, but whether it was bad. The court regards the testimony as conclusively establishing that at the time of the sale, it was a bad roof. It leaked. A leaking roof is a defect. DiPietro v. LeBlanc, 68 So.2d 156 (La.App. 1st Cir. 1953).”

We agree with the trial court that the roof of the home purchased by Hunter leaked badly at the time of the purchase, and that the defect in the roof diminished the value of the building and rendered it so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice.

A leaking roof on a building is a defective roof, and such a defect may be sufficient to entitle the purchaser to demand a reduction of the price. DiPietro v. LeBlanc, 68 So.2d 156 (La.App. 1 Cir. 1953); Russell v. Bartlett, 139 So.2d 770 (La.App. 4 Cir. 1961); Glynn v. Delcuze, 149 So.2d 667 (La.App. 4 Cir. 1963); Busenlener v. Peck, 316 So.2d 27 (La.App. 1 Cir. 1975); Sallinger v. Mayer, 304 So.2d 730 (La.App. 4 Cir. 1974); Verlander v. Hoffer, 351 So.2d 229 (La.App. 4 Cir. 1977).

Defendant contends that the roof involved here was not defective, that it was merely an “old and worn” roof, and that the condition of the roof did not entitle plaintiff to demand a reduction of the price. He relies on Goldberg v. Oliver, 212 So.2d 277 (La.App. 3 Cir. 1968), where we held that an “old and worn roof, which was not leaking at the time of the purchase, is not a vice or defect under the contemplation of the Civil Code articles on redhibitory actions, where the vendor made no representations whatsoever pertaining to its condition.”

In Goldberg, the roof of the house was 12 years old. There was no evidence, however, indicating that the main roof of the building had any leaks at the time of the sale, or even at the time of the trial, although the evidence showed that there was a leak in the flat portion of the roof on the back of the house. The purchaser had a complete new roof put on the entire house at a cost of $1,167.00, of which amount $134.50 was paid to repair the leak in the flat roof in the back of the building. The trial judge awarded plaintiff the full’amount which he paid to replace the entire roof. We held that since the roof was merely old and worn, but did not leak, the purchaser was not entitled to recover the cost of replacing the entire roof, but that he was entitled to have the purchase price reduced by the cost incurred in repairing the leak in the flat part of the roof in the rear of the house. We thus reduced the award to the sum of $134.50. We think the rule applied in Goldberg is consistent with that applied in the other cases cited above.

Defendant argues, however, that the condition of the roof in the instant suit was discoverable by a simple inspection, and that plaintiff is not entitled to maintain an action in quanti minoris against defendant because he failed to act as a reasonably prudent buyer, in that he failed to inspect the house and to observe that the roof was “a blatantly old and worn roof.”

The evidence shows that plaintiff Hunter did not get on the roof of the house and inspect it prior to the completion of the sale.

The trial judge held that the condition of the roof was not discoverable by simple inspection. In that connection the trial court said:

“The condition of the roof was not discoverable by simple inspection, and therefore, it was a hidden defect. The fact that one leak appeared before the sale did not charge the purchaser with the knowledge that the whole roof was bad. Hunter was assured that this leak was repaired. A layman could not have looked at this roof before the purchase and known that it was going to leak. Foremost among the witnesses to testify thusly was defendant’s own expert, “Chick” Schexnider, who said the condition of built up roof is especially hard to evaluate. He himself could not testify whether it was bad or not, since he had never seen it. Even after he was shown excellent photographs taken by plaintiffs father-in-law, he said he was still uncertain about its condition and that he would have had to examine the roof itself before he could express an opinion. A layman like Hunter could not have determined its condition by a simple inspection, and therefore, its defects were hidden to him as far as the law is concerned. Similarly, in Glynn v. Delcuze, 149 So.2d 667 (La.App. 4th Cir. 1963) plaintiff knew before the sale that the roof had loose shingles, but he was allowed a reduction in price because the true condition of the roof involved many more defects not discoverable by simple inspection.”

We agree with the trial judge that the defect in the roof was a hidden defect, and that it was not discoverable by a simple inspection on the part of the purchaser. An inspection of the roof may have revealed to the purchaser that it was old and worn, but we find that plaintiff could not have determined whether it leaked by getting on the roof and looking at it closely. Even if such a procedure would have revealed leaks in it, we do not believe that the purchaser has the burden of making that type of inspection. See Glynn v. Delcuze, supra; Sallinger v. Mayer, supra; and Kozlowski v. Fowler, et al., 71 So.2d 246, La.App. (Orl.1954).

Our conclusion is that plaintiff is entitled to recover from defendant the amount which he was required to pay to replace the roof of the house. We find no error in the award of $2,845.00 made by the trial court for that part of plaintiff’s claim.

We turn now to the question of whether the trial judge erred in rejecting plaintiff’s demands for a reduction in price because of alleged defects in the heating equipment.

The evidence shows that the heating equipment was functioning at the time of the sale. The home was conveyed to Hunter on October 26,1973, and he moved into it a few days later, on November 2. He used the heater thereafter for a period of approximately three months, until it ceased to function in February 1974. An inspection of the heating equipment was made several months later, during the summer of 1974, and it was discovered at that time that the heat exchanger was cracked. Assuming that a crack in the heat exchanger constitutes a vice or defect which ordinarily would entitle the purchaser to a reduction in price, we find that the evidence here fails to show that that defect existed at the time the sale was made to Hunter. The fact that the heater emitted an oily odor when it was used for the first time does not establish that the heating equipment was defective at that time.

Even if the evidence should be held to establish that the heat exchanger was defective at the time of the sale, we agree with the trial court that it nevertheless is not sufficient to entitle plaintiff to a reduction in price because of that defect.

The trial court found, and we agree, that in the fall of 1974, plaintiff had the summer air conditioning parts of the equipment, as well as the heat exchanger, replaced. The evidence shows that there were no defects in the summer air conditioning parts of the unit. Plaintiff, in fact, used the equipment to air condition his home during the summer of 1974. The person who replaced those units was not called as a witness, and the record does not contain a statement from him indicating how much of his charges related to replacing the heat exchanger. In concluding that the evidence was not sufficient to justify an award for defects in the heat exchanger, the trial judge said:

“Although plaintiff introduced in evidence the invoice of the air conditioning and heating specialist to show the expense of replacing the entire system, plaintiff did not call that specialist, or anyone else, to testify. The court must conclude that at least with respect to the air conditioning function of the system, it was old age alone that justified its replacement. We have seen earlier that old age alone is not a redhibitory defect. Plaintiff is accordingly not entitled to recover for the air conditioning and since he has offered no evidence upon which an award for the lesser amount which replacement of the heater function alone would have cost, no award can be granted for the heater function even if a redhibitory defect existed at the time of the sale.”

Our conclusion is that the evidence fails to establish that the heating equipment in the home which plaintiff purchased was defective at the time of the sale. Assuming that it was defective at that time, however, we agree with the trial judge that the evidence fails to show how much expense was incurred in repairing the heating unit. Under those circumstances, we find no error in the judgment of the trial court which rejected plaintiffs demand for a reduction in price because of alleged defects in the heating unit.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


author: JONES, Judge.

text:
    Mrs. Nellie Crouch MASON et al., Plaintiffs-Appellees, v. Mrs. Johnnie NATTIN, Defendant-Appellant.
    No. 13420.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    En Banc. Rehearing Denied March 1, 1978.
    Ford E. Stinson, Benton, for defendant-appellant.

      James R. Phillips, Bossier City, for plaintiffs-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiffs, a widow and her two children, seek to annul a tax sale of their property to defendant, Mrs. Johnnie Nattin. The trial court annulled the sale on the basis of improper notice to the parties plaintiff as required by LSA-R.S. 47:2m{A) We reverse and set aside the judgment herein and remand for further proceedings.

Plaintiff and her husband purchased the subject community property in 1945. Plaintiff’s husband died intestate in 1956 and his one-half interest in the community was inherited by his two children (a son and daughter). No succession proceeding was filed. In 1969 the city taxes on the property were unpaid. The tax collector mailed a registered letter concerning the delinquency of taxes on the subject property. This letter was received and signed for by decedent’s 20 year old son, then legally a minor. There is no copy of this letter in the record and we do not know its exact contents or to whom it was addressed. The property was sold on July 22, 1970, at a tax sale to defendant. The plaintiffs, widow and son, have continued to live on the property since the sale. City, state and parish taxes accruing after the tax sale have been paid by defendant.

When plaintiffs filed suit against defendant, Mrs. Nattin, they failed to include her husband who is an indispensable party to an action to annul a tax sale in which the community of acquets and gains is the tax purchaser. There is no evidence in the record establishing the defendant and her husband are separate in property. The law presumes property purchased in the name of either spouse during the existence of the community is community property in the absence of the deed of acquisition containing the double declaration that it was acquired by the purchasing spouse with her separate funds for her separate estate. The tax deed contained no such declaration. There is no evidence that the wife made this purchase with her separate funds for her separate estate.

This court may notice on its own motion the nonjoinder of an indispensable party. C.C.P. Art. 927. Accordingly, we reverse and set aside the judgment annulling the tax sale and remand the case to the district court for joinder of the defendant’s husband as a party, and for further proceedings in accordance with the law and views expressed herein.

The record before us does not show recordation of the proces verbal detailing the tax collector’s notification to tax debtors as required by LSA-R.S. 47:2180(B). In such cases the burden of establishing the proper notice of tax delinquency to owners rests upon the purchaser of the property at the tax sale. If the proces verbal is recorded, the burden of establishing irregularities in the tax sale rests upon the party attacking the validity of the sale. Succession of Windes v. Yerger, 234 So.2d 224 (La.App., 2d Cir. 1970).

On remand, the litigants should establish whether the proces verbal has been recorded, and if so, a certified copy should be included in the record to allow the trial court to evaluate it with the other evidence in determining compliance with the statute.

The judgment is reversed and the case is remanded for further proceedings in accord with this opinion.

      . § 2180(A) “On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes, which have 'been assessed to him on immovable property, or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.”

      . § 2180(B) “ * * * After the tax collector shall have completed the service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation. . . . This proces verbal shall be received by the courts as evidence. . . .” (Emphasis added)


author: HALL, Judge.

text:
    Succession of George Randolph ROGERS, Plaintiff-Appellee, v. Cecil S. READ, Sr., Defendant-Appellant.
    No. 13429.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    En Banc. Rehearing Denied March 1, 1978.

      Rabun & Post by Armand F. Rabun, Farmerville, Lemle, Kelleher, Kohlmeyer & Matthews by Mack E. Barham, New Orleans, for defendant-appellant.
    Walker, Holstead & Smith by R. Wayne Smith, Ruston, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

John Hodge, as administrator of the succession of George Randolph Rogers, sued Cecil S. Read, Sr. to rescind a sale of 120 acres of land made by decedent to defendant, on grounds of lesion beyond moiety. In June 1974, a year before his death, the 94-year-old decedent sold his “home place” for $4,000. He died intestate in June 1975, survived only by collateral heirs.

Defendant filed an exception of no cause and no right of action alleging that the administrator had no right of action because collateral relations cannot maintain an action for lesion beyond moiety and no cause of action because it was not alleged that the disposition of the property impaired the heirs’ legitime. Defendant also filed an exception of improper party plaintiff and failure to join indispensable parties plaintiff, contending that the action is personal as to the heirs and must be filed by each of the heirs, all' of whom must be made parties plaintiff. The district court overruled all exceptions.

At trial, the parties stipulated that Rogers died intestate without any ascendants or descendants; that decedent was never interdicted nor was there ever any application filed for his interdiction; that the act of conveyance dated June 16, 1974, was executed in authentic form; that $4,000 was the only consideration paid on the date of the sale; that the property was the separate and paraphernal property of Rogers; and that at the time of the sale decedent was 94 years old. Expert evidence was offered as to the fair market value of the property on the date of sale. The trial court determined that the fair market value of the property on the date of sale was $200 per acre or $24,000, and that the sale price of $4,000 was less than one-half the value of the property. Defendant’s alternative defense that the decedent intended to donate the value of the property in excess of the market value was rejected. Judgment was rendered declaring the sale lesionary, establishing the market value at the date of sale as $24,000, giving defendant the election of either retaining title by paying the difference between the sale price and the market value or returning title to the succession, and ordering defendant to reimburse the succession for income produced from the property since the date of filing suit in the amount of $320 in the event of election to return title. Defendant appealed. We affirm, being of the opinion that the trial court correctly disposed of each of the legal and factual issues presented by this case in well-reasoned and authoritative reasons for judgment.

On appeal, defendant specifies the trial court erred in the following respects: (1) In permitting plaintiff to prosecute this action without producing evidence as to his qualification as administrator of the succession; (2) In concluding that collateral relations, as opposed to forced heirs, can maintain an action of rescission for lesion beyond moiety; (3) In rejecting the alternative defense that decedent intended to donate to defendant any excess in the market value of the land over and above the sale price; (4) In determining that the market value of the property at the time of the sale was $24,-000; and (5) In determining that defendant was indebted to the succession in the amount of $320 for income received after the suit was filed.

FIRST SPECIFICATION OF ERROR

Defendant argues that the record contains no evidence that the plaintiff is in fact the duly qualified administrator of the decedent’s succession. There is no indication in the record that plaintiff’s qualification as administrator was ever questioned at any stage of the proceeding until raised for the first time in defendant’s brief on appeal. The defendant’s exception of improper party plaintiff did not question plaintiff’s qualification as administrator but only questioned his right to act on behalf of the collateral heirs of the decedent in this action, an issue not asserted on appeal. Any question as to plaintiff’s appointment as administrator of the succession should have been raised by the dilatory exception of lack of procedural capacity. If not filed prior to answer, dilatory exceptions are waived. LSA-C.C.P. Art. 926. Since defendant did not file a dilatory exception questioning plaintiff’s procedural capacity as administrator prior to answer, defendant waived this defense and cannot raise it on appeal.

SECOND SPECIFICATION OF ERROR

Defendant’s major contention in this case is that the action of rescission for lesion beyond moiety is limited to forced heirs and cannot be raised by collateral heirs. Defendant argues that the harshness of the remedy for lesion and its derogation from the principle of individual freedom to alienate property support a decision that the action is strictly personal and if heritable at all its heritability should be limited to forced heirs. It is contended that the action to rescind a sale of an immovable for lesion beyond moiety is analogous to actions to rescind a simulated sale or declare a sale to be a donation in disguise or to annul a prohibited donation such as a donation to a concubine or a donation omnium bonorum, which latter actions have been limited to forced heirs.

The analogy between an action by heirs to set aside a sale on the grounds of lesion beyond moiety and actions of heirs to set aside simulated sales, donations in disguise, or prohibited donations, is not valid. There is a significant distinction between actions granted to forced heirs so that they may enforce the right of forced heirship and actions given to individuals to enforce a right granted in the law of contracts or property. The former are actions which proceed from the principle of forced heir-ship and are in essence attacks on the acts of their ancestor. Forced heirs are suing not as representatives of their parent but as “quasi-creditors” of their parent. “With respect then to their legitimate portion, children have rights, which not only are independent and distinct from those of their parents, but may be . directly at war with those which their parents wish to exercise.” Croizet’s Heirs v. Gaudet, 6 Mart. (O.S.) 524 (1819).

The latter are those actions in which the representatives or heirs stand in the shoes of the ancestor and assert those rights vested in their ancestor. An heir enforcing the right of rescission for lesion beyond moiety is not asserting a right of forced heirship but is asserting instead a contractual or statutory right of his ancestor. He does not assert the right against his ancestor or attack the act of his ancestor as do forced heirs in their attack on simulated sales and donations in disguise. He asserts those rights not strictly personal to his ancestor which have been transferred to him through the law of succession.

Important to the resolution of the second specification of error is a determination of whether the action for rescission of a sale of an immovable for lesion beyond moiety is personal or heritable.

The law relating to lesion is found in the sections of the Civil Code dealing with the law of obligations. It is found generally in Book III Title IV “Of Conventional Obligations” and more specifically as it relates to Sales in Book III Title VII “Of Sales.”

Lesion is a ground for rescission of certain contracts and is limited to sales of immovable property and to partitions. LSA-C.C. Art. 1861.

A sale is a commutative contract in which equivalents are supposed to be given and received. LSA-C.C. Art. 1860. When the price is less than one-half the value of the object given, the vendor is presumed to be in error and one element of a valid sale, consent, is vitiated. The law gives the vendor a remedy to demand rescission of the sale. LSA-C.C. Art. 2589. The vendee is given the option to “restore the thing and take back the price which he has paid, or make up the just price and keep the thing.” LSA-C.C. Art. 2591. This presumption of error is “so strong and conclusive that even if the vendor should know and expressly declare he knows the value of the property exceeds twice the price received, and should even declare that it is his purpose to give the purchaser the surplus of the thing’s value over the price received, and that he expressly abandons the right to rescind the sale, nevertheless the law still gives him that right. Civ. Code, Art. 2589; Fernandez v. Wilkinson, 158 La. 137, 103 So. 537.” Blaize v. Cazezu, 210 La. 176, 26 So.2d 689 (1946).

This presumption of error and its legal remedy, the right to rescind, are implied in all sales of immovables where the price is lesionary, unlike the right of redemption which is not implied in contracts of sale, but must be expressly agreed upon by the parties. Both are causes of rescission or dissolution of sales and have many similarities. LSA-C.C. Art. 2566. The right to rescind for lesion, however, is no less a part of every contract of sale because not expressly agreed to by the parties.

The reference in LSA-C.C. Art. 2600 to “heirs” exercising the action of rescission for lesion beyond moiety and making applicable by reference the rules of LSA-C.C. Arts. 2581 and 2582 relating to the right of redemption, necessarily implies the heritability of the action for lesion. Defendant’s argument that the reference to “heirs” in this article should be limited to forced heirs, while the reference to “coheirs” in the redemption articles is not so limited, is without express codal or jurisprudential basis. The argument might have some merit if rescission for lesion were deemed to be a strictly personal right of action, but such is not the case.

“Every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed, or necessarily implied from the nature of the contract.” LSA-C.C. Art. 1999. The contract of sale has not been expressly designated as personal and is, thus, deemed to be heritable. Since the right to rescind for lesion is implied in all contracts of sale involving immovable property then it too is heritable.

The Louisiana Supreme Court has declared the right to rescind a sale for lesion beyond moiety to be one which is not personal in Belcher and Creswell v. Johnson, 114 La. 640, 38 So. 481 (1905). That suit was brought by creditors wishing to exercise the right of their debtor to demand rescission of a sale for lesion beyond moiety. The court first considered “the broad rule that all the debtor’s property is bound for his debt. Civ. Code, art. 3182.” Then the court said that a creditor can exercise all the rights of his debtor, except those exclusively personal. After listing those rights which are strictly personal the court stated that the right to rescind the sale for lesion beyond moiety “is not ,a mere personal right. It is subject to seizure.” The right to rescind a sale for lesion was likewise determined to be subject to seizure in Nugent v. McCaffrey, 33 La.Ann. 271 (1881).

Upon a determination that the right is not a personal one granted only to an individual and which would abate on death, it follows that the right is necessarily one which is heritable and a part of the decedent’s patrimony which passes to his successors at his death. LSA-C.C. Arts. 871, 872. We, therefore, hold that the right to rescind a sale for lesion beyond moiety may be exercised by anyone who succeeds to the patrimony of a decedent whether a forced, collateral or legal heir or a testamentary legatee. The right is likewise subject to seizure and exercise by creditors. When a succession is under administration, as in this case, the administrator is the proper party to assert the right of the succession. LSA-C.C.P. Arts. 3191, 3196, 3211.

THIRD SPECIFICATION OF ERROR

This specification of error is directed toward the trial court’s failure to determine that the decedent intended to donate the value of the property in excess of the $4,000 cash consideration received. Defendant argues that the donation was either gratuitous or remunerative. Various acts of kindness are alleged to have been performed for the decedent by defendant and defendant’s father, but these are isolated instances which by no stretch of the imagination can be said to be services with a value approximating that of the property in question. There is some evidence that decedent traded at a store operated by defendant and his father and that there was a friendly relationship. There is, however, no evidence to indicate that the authentic act purporting to be a sale was intended to be anything but a sale. To the contrary, the evidence is that decedent intended to sell the property for what he erroneously believed to be a fair price.

FOURTH SPECIFICATION OF ERROR

Defendant contends that the trial court should have determined the market value of the property at the time of the sale was $175 per acre or $21,000 rather than $200 per acre or $24,000.

The trial court heard testimony from four experts, two each for plaintiff and defendant. The 120-acre tract consisted of three types of land roughly equal in size: one-third classified as swampland with a small amount of nonmerchantable hardwood; one-third described as woodland; and the remaining one-third described as farmland. A pipeline servitude occupying four acres runs through the property. The buildings and improvements on the property were given no value by any of the appraisers. Plaintiff’s appraisers used the market data approach and comparable sales in the area to determine that the fair market value was $250 per acre and $275-$300 per acre, respectively. Defendant’s experts used income production or use value to determine that the fair market value was $88.28 per acre and $175 per acre, respectively.

The trial court noted as significant that no comparable sale was cited in which the per acre value was less than $175. The court stated in reasons for judgment that “the vast disparity in the respective values argued for by the defendant is simply not reasonable.” The plaintiff has the burden of proving the value by strong and conclusive proof. Value may be determined by a combination of many factors.. Recent sales in the area and highest and best use are indications of market value which go to the weight. Blaize v. Cazezu, supra. This court finds that there is strong and convincing evidence supporting the trial court’s determination of market value.

FIFTH SPECIFICATION OF ERROR

Defendant argues in brief that there is no evidence that the $320 income was received by the defendant prior to the filing of plaintiff’s suit. Suit was filed March 31, 1976. Defendant testified he received $200 in the fall of 1976 for an agricultural lease covering the growing season of that year. Defendant also testified that $120 annual delay rental from an oil, gas and mineral lease was received in 1977. Clearly, plaintiff is entitled to credit for these amounts in the event the defendant elects to return title to the property to plaintiff.

The judgment of the district court is affirmed at appellant’s cost.

Affirmed.