author: SAMUEL, Judge.

text:
    Igor MARGAN v. PRECISION MOTORS, INC., et al.
    Nos. 6794, 7047.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.

      Fine & Waltzer, Bruce C. Waltzer, New Orleans, for plaintiff-appellant-appellee.
    Satterlee & Mestayer, Henry F. Mestayer, New Orleans, for defendants-appellants-appellees.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Precision Motors, Inc., the dealer, Alfa Romeo, Inc., the distributor, and Alfa Romeo (Manufacturer) for recision of the sale of a 1973 Alfa Romeo automobile and for damages. The defendants answered, denying any redhibitory defects.

After trial, there was judgment in favor of the plaintiff and against defendants, “ALFA ROMEO, INC., NEW JERSEY and ALFA ROMEO (Manufacturer), jointly and in solido” in the sum of $11,076.35. The judgment dismissed plaintiff’s suit against Precision Motors. The two defendants cast have suspensively appealed from that judgment. Plaintiff also has appealed seeking judgment against Precision Motors in addition to the other two defendants and further seeking an increase in the amount of damages awarded. Plaintiff also has filed a motion to dismiss the appeal taken by Alfa Roméo (Manufacturer) .

ON THE MOTION TO DISMISS

Plaintiff seeks to have the Alfa Romeo (Manufacturer) appeal dismissed on the ground that appellant failed to appeal timely-

Insofar as applicable here, Article 2123 of the Code of Civil Procedure provides a suspensive appeal may be taken, and the security therefor furnished, only within fifteen days of “(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely; ”. In pertinent part, Article 1974 provides that when notice of the judgment is required under Article 1913 the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, that notice. Also insofar as here applicable, Article 1913 provides that when a case has been taken under advisement by the court, notice of the signing of a final judgment therein shall be mailed by the clerk of court to counsel of record for each party, and that the clerk shall file a certificate in the record showing the date on which, and to whom, notice of the signing of the judgment was mailed.

In the instant case the judgment appealed from was read, rendered and signed May 28, 1974. There was no application for a new trial and the clerk did not mail a notice of the signing of the judgment. Alfa Romeo (Manufacturer) filed its petition for a suspensive appeal, and the appeal order was signed by the trial judge, on March 26, 1975. The appeal bond was furnished on April 10, 1975.

Under these circumstances, without other considerations it would appear the appeal of Alfa Romeo (Manufacturer) was not taken timely. However, immediately following the conclusion of the trial, the trial judge gave oral reasons for judgment from the bench. After giving those reasons, he also made the following oral statement:

“There will be a judgment totalling eleven thousand seventy-six dollars thirty-five cents in favor of the Plaintiff, only against Alfa Romeo, Inc. I don’t know if there is such a thing as ‘Alfa Romeo Manufacturer.’ If there is such a corporation, maybe it would be against both.”

The written judgment was signed later during the same day (May 28, 1974) on which the oral reasons and statement were given and made from the bench. As has been pointed out, that judgment did not cast only Alfa Romeo, Inc., the specific ruling mentioned in the oral statement; it cast both Alfa Romeo, Inc. and Alfa Romeo (Manufacturer), in solido. Thus, there is a marked discrepancy between the oral statement made from the bench at the conclusion of the trial and the written judgment signed later the same day.

Since he changed his mind regarding the liability of Alfa Romeo (Manufacturer), the trial judge must have reconsidered the matter between- the time he made the oral statement and the time he signed the judgment. Under these circumstances, we must conclude he took the matter under advisement after making the statement.

As has been pointed out, when a case has been taken under advisement notice of the signing of the judgment must be mailed by the clerk of court to counsel of record for each party and in the absence of such notice neither the delay for applying for a new trial nor the time for taking the appeal and furnishing the bond begins to run. Applying this law to the instant case, we conclude the time for taking the appeal and furnishing the bond had not begun to run on the dates when the appeal was taken and the bond furnished. Therefore, the appeal of Alfa Romeo (Manufacturer) was taken timely and we deny the motion to dismiss that appeal.

ON THE MERITS

Plaintiff purchased the then new Alfa Romeo automobile from Precision Motors on May 24, 1973 for the price of $5,828.88. The car was manufactured by Alfa Romeo (Manufacturer) and distributed in the United States by Alfa Romeo, Inc., a New Jersey corporation. On May 27, 1973, within three days after the purchase, a leak in the convertible top appeared on the inside near the driver’s seat. Precision Motors was notified of the leak, but nothing was done at the time. After several complaints and inspections, a new top was ordered. This top was never installed for the reasons stated below.

On September 21, 1973, plaintiff drove the automobile to Monterrey, Mexico. He testified that on the trip he checked the oil every time he stopped for gasoline. On his return trip, while still in Mexico approximately 10 miles from Monterrey, the car’s engine stopped running. The vehicle was pushed to a Mexican service station, but the attendant refused to attempt repair because of his lack of knowledge of Alfa Romeo automobiles. It then was towed to Laredo, Texas, where it was brought to a Volkswagen dealership.

Plaintiff telephoned the manager of Precision Motors, who in turn called Alfa Romeo, Inc. in New Jersey. As a result of these calls, plaintiff was given telephone authorization to bring the vehicle to Jim Williams Motor Company in Laredo for minor repairs only. Apparently it was determined at the Williams Company that the head gasket had blown and the car would not run because of diminished engine compression. The Williams Company was a Fiat dealer, so the nearest Alfa Romeo dealer, in Houston, was ordered to ship a head gasket package for installation. After the head gasket was replaced, the motor still would not run and plaintiff came back to New Orleans, leaving the automobile at Jim Williams Motor Company in Laredo.

Following his arrival in New Orleans, plaintiff received a request to have his automobile sent to California for repairs. Plaintiff refused, and the car was brought back to New Orleans in the back of a Williams Company truck on or about November 3. When the car was returned to New Orleans, its engine had been completely disassembled and the parts thereof were in the automobile’s trunk compartment. Plaintiff and defendants’ representatives all deny ordering or authorizing Jim Williams Company to disassemble the engine.

Plaintiff and defendants produced persons qualified as experts in the repair of Alfa Romeo automobiles. The testimony of these witnesses is long, involved and at times self contradictory. The only conclusion which can definitely be drawn therefrom is that the cause of the malfunction of the automobile in suit is a mystery to them.

A common threat in the testimony of the experts, as well as some of the other witnesses, is an implication that the major cause of the damage to plaintiff’s vehicle occurred in Laredo and at Jim Williams Motor Company. The Williams firm, a Fiat dealership, is not equipped for major repairs to Alfa Romeo automobiles. The expert testimony tends to establish that if plaintiff’s engine were reassembled with proper parts it probably could run. Moreover, there are distinct markings on the portions of the engine returned with plaintiff’s automobile to establish that improper tools, equipment, and procedures were used while repairs were being attempted.

Article 2520 of the Civil Code provides that redhibition is the avoidance of a sale on account of some vice or defect in the thing sold which renders it either absolutely useless or its use so inconvenient and imperfect it must be supposed the buyer would not have purchased the thing sold had he known of the vice. Article 2530 further provides the plaintiff in a redhibi-tory action must prove the vice existed before the sale was made to him, unless the vice manifested itself within three days of the sale.

The convertible top leak did manifest itself within three days of the sale and was made known to the defendant, Precision Motors. However, a leak in a convertible top is not the type of defect which renders an automobile absolutely useless or its use so inconvenient and imperfect as to come within the purview of Article 2520. Thus, such a defect cannot be the subject of redhibition. In Menville v. Stephens Chevrolet, Inc., this court refused to grant redhibition in a case where a leak in a convertible top was one of many complaints by the plaintiff. The court instead chose to grant a reduction in the purchase price on the theory that the problem was principally in the nature of excessive and extraordinary maintenance rather than red-hibitory defects. Such is the case in the matter now before us, and we conclude that the leak in the plaintiff’s convertible top was not of such a nature as to warrant the recision of the sale. Had the motor problem not occurred, a new top could have been installed on plaintiff’s automobile and we cannot presume the problem would not have been corrected thereby.

The question of the motor failure and its cause is more troublesome. Defendants correctly argue that recision because of redhibition requires proof of a defect which existed at the time of the sale. Because the automobile’s engine had been completely disassembled, no one could testify as to the defect which caused the engine failure. For the same reason, no one could testify whether such a defect existed at the time of the sale.

After the three day presumptive period provided by Article 2530 has ended, it is clear the burden of proof is upon the plaintiff to establish both the existence of the redhibitory defect and its existence at the time of the sale. Many cases have stated the principle that while it is not necessary for the buyer to prove the particular and underlying cause of the defects in a complicated piece of machinery, it is nevertheless necessary that he prove the defect existed.

Further, the record leaves unanswered the question of whether, as a matter of law, plaintiff made sufficient tender of the vehicle to defendants. In Johnson v. H. W. Parson Motors, Inc., the court approved a jury’s finding of the existence of redhibitory defects in a vehicle at the time of its purchase by the plaintiff, but refused to order recision of the sale because the plaintiff secured major engine repairs and was not in a position to return the automobile in substantially the same condition in order to restore the status quo. The court in that case noted the Louisiana rule that if the purchaser undertakes to perform major repairs on the subject of a sale he loses his right to rescind the sale and is relegated to an action in quanti minoris.

Because of the necessity of proof by plaintiff of a defect which existed at the time of the sale and the effect of a major disassembling of the engine upon plaintiff’s ability to determine such a defect and properly tender the vehicle back to defendants, the evidence in the knowledge of Jim Williams Company becomes most apparent. If actions on the part of the defendants prevented plaintiff from determining and proving a redhibitory defect, or prevented him from making a proper tender, plaintiff probably is entitled to a judgment. Plaintiff and defendants all deny having authorized the Williams firm to disassemble the engine and the record does not disclose why it was disassembled nor who paid for the work, if any such payment was made. It is highly doubtful the Williams firm of its own accord would have taken that action and then returned the vehicle to Precision Motors without specific instructions and directions and without payment therefor. Consequently, the case will be remanded to the trial court for the introduction of evidence on the issues mentioned above and for judgment following a determination of those issues.

We abstain from any implication of a result to be reached by the trial judge on remand. However, should he again find in favor of plaintiff, we direct his attention to the decision of the Louisiana Supreme Court in Media Pro. Consult., Inc. v. Mercedes-Benz of N. A., Inc., insofar as that decision relates to the solidary liability of an automobile vendor and manufacturer in redhibitory actions.

For the reasons assigned, the motion to dismiss the appeal is denied, the judgment appealed from is annulled and set aside, and this matter is remanded to the trial court for further proceedings in accordance with law and with the views expressed in this opinion; imposition of costs to await a final determination.

Judgment set aside and remanded.

      . Alfa Romeo (Manufacturer) is also referred to in the record as Alfa Romeo of Italy.

      . As amended in 1974, effective July 31, 1974, the article now allows thirty days instead of fifteen.

      . Plaintiff definitely received a telegram, and it also appears from the record that he discussed the matter by telephone.

      . One expert testified one theory regarding the cause of the nonfunction of the engine was gasoline vapor lock, which would not have completely disabled the engine if it had been properly treated subsequent thereto. In addition, plaintiff’s expert stated the possibility that the entire problem could have been caused by the engine overheating because a water hose ruptured or by an improperly secured clamp.

      . 300 So.2d 858.

      . See Civil Code Article 2543 et seq.

      . Article 2520.

      . Article 2530.

      . See Segall Co., Inc. v. Rountree Olds Cadillac Co., Inc., La-App., 270 So.2d 629.

      . La., 231 So.2d 73.

      . See also LaFleur v. Boyce Machinery Corporation, La.App., 282 So.2d 819.

      . 262 La. 80, 262 So.2d 377.


source: Caselaw Access Project

author: STOULIG, Judge. REDMANN, Judge

license: Public Domain

text:
    Mrs. Susie Daigle, wife of/and Walter DELGRANDILE v. EMPLOYERS INSURANCE OF WAUSAU and Younger Brothers, Inc.
    No. 6758.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Rehearing Denied Sept. 9, 1975.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for plaintiffs-appellants.
    Francipane, Regan & St. Peé, Chester Francipane, Metairie, for defendants-appel-lees.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiffs, Mr. and Mrs. Walter Del-grandile, filed suit against Younger Brothers, Inc., owner of a tractor-tanker rig, and its liability insurer, Employers Insur-anee of Wausau, for damages incurred when their automobile, driven by Mrs. Del-grandile, collided with the rear wheel of the heavy rig in the traffic circle on the west bank of the Huey Long Bridge approach in Jefferson Parish. Finding plaintiff driver guilty of contributory negligence, the trial court dismissed this' suit. Plaintiffs have appealed.

We affirm. The record reveals both drivers, familiar with this area, entered the circle from Highway 90 and intended to cross to the east bank of the Mississippi River. The circle is composed of two unusually narrow lanes (estimated by the state trooper who conducted the accident investgation at 11 feet) divided only by a broken-dash white center line. From the testimony it is evident that Jerry Jones, driving the rig, entered the circle first. He was moving in low gear at approximately 5 miles per hour in the right lane and the left rear wheels of the tanker were riding the center stripe. Shortly afterward Mrs. Delgrandile reached the entrance to the circle and maneuvered her car into its left lane after ascertaining there was no traffic approaching from her left that would impede her safe entrance. After accelerating to a speed of 20 miles per hour at a distance she alternately estimates at either two car lengths or 100 feet (apparently an honest discrepancy caused by her inability to gauge distance), she felt an impact to the right side of her car and then noticed that she had collided with the left rear tanker wheel. After the initial contact, plaintiff’s car continued for a distance of 20 feet before stopping. At no time before impact did Mrs. Delgrandile see the rig she was in the process of passing and she was not able to state in what position its wheels were when they came in contact with her car.

Plaintiff driver, who frequently passes through this circle, agrees the lanes are unusually narrow. Thus she should have been aware that a passing maneuver in this narrow, curved roadway was more precarious than it would have been had she been on a straight standard-sized two-lane highway. It is difficult to perceive how she could have avoided seeing the unusually large truck she was overtaking when the accident occurred. Jones testified the rig cannot negotiate the circle in the right lane without having its left wheels riding the center line. The police officer stated most trailers on these rigs cross over the center line into the left lane.

Under these circumstances, plaintiff driver was obliged to observe traffic in the right lane and to ascertain she could safely pass before attempting to do so. Not only was she unable to establish the point of impact but also she failed to prove her attempt to pass was begun when it was safe to do so. Her failure to see the rig on this hazardous stretch of highway establishes her contributory negligence.

Plaintiffs argue the physical evidence establishes her freedom from fault because it proves the wheels of the tanker drifted into the passing lane after Mrs. Delgrandile began to overtake it. The investigating officer testified the automobile laid down 5 feet of skid marks within the left lane, 2 feet from the center line. It is argued this proves the truck drifted into plaintiff driver’s lane; however, this theory is discredited by the police officer’s statement that the point of impact could not be determined. He said skid marks in a sideswipé accident establish nothing. They were obviously made after impact since she did not see the truck.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

REDMANN, J., dissents with written reasons.

REDMANN, Judge

(dissenting).

There are two uncontradicted physical circumstances which together require reversal.

First, the forward-folding damage to plaintiffs’ door shows that, at least during part of the collision-time, defendants’ truck at five mph was moving forward faster than was plaintiffs’ car. Second, the presence of plaintiffs’ five-foot skid marks two feet within plaintiffs’ lane shows that plaintiffs’ car’s strong deceleration (from a speed greater than ten mph) occurred well within plaintiffs’ lane.

The trial judge reasoned that the forward-folding damage could as easily have occurred in defendants’ lane as in plaintiffs’, and that plaintiffs’ skid marks in plaintiffs’ lane could have occurred after “the truck pushed the [car] back into the left lane.”

This reasoning is correct in concluding that the truck “pushed” the car (to make forward-folding damage). But it is incorrect in failing to recognize that the truck, while making forward-folding damage, had to be moving faster than the car. Because the truck was only going about five mph, the car would have been going the same speed or slower when "pushed” back into its own lane where it left five feet of skid marks: but it is not possible for a car going only five mph to produce five feet of skid marks. (See Blashfield, Cyclopedia of Automobile Law and Practice, § 6237, which gives four and a half feet as the braking distance to stop at ten mph.) Thus the trial judge’s hypothesis must be rejected.

It is physically possible that plaintiff driver should first have made the skid marks in her own lane (thus reducing her speed from about 20 to less than five mph), and then, at her reduced speed, have let up on her brakes and crossed into defendants’ lane, where the trailer-truck’s rear wheels and bumper could have produced forward-folding damage to the car. But this physically possible combination is not a reasonable supposition: it is unreasonable to suppose that the driver would have skidding-braked to a near-stop in a safe position and then crept over into the side of a moving truck-trailer. This supposition must be rejected as less probable than not; see Boudreaux v. American Ins. Co., 1972, 262 La. 721, 264 So.2d 621.

The probable explanation is that, as the trailer-truck first entered the traffic circle in the right lane, turning to its right, the rear of the trailer remained more to the right of the tractor-cab and thus to the right of the line dividing the circle lanes. Then, as the tractor-cab got into the circle, it had to turn left to follow the circle, and the trailer’s relative position shifted towards the left of the cab. Meanwhile the car, too, was entering the circle in the left lane (at a higher speed), and began to overtake the trailer just as the trailer was making its shift to the left (following the. cab’s turn to the left). Because collision did occur while the car was traveling slower than the truck (as the damage proves), and because the car’s slow-down occurred two feet within its own lane, the probable explanation is that the trailer’s leftward drift brought it over the dividing line into plaintiff’s lane, where collision occurred. The truck driver’s own testimony was that, even with the tractor-cab’s front wheel “jamming” the outer curbing of the circle, “my trailer wheel is still . . . hanging over the [center] line. ... It had to be.” The driver modified this to assert that the rear part of the trailer “is right on that line and never goes over.”

In my opinion the location of the skid marks and the damage showing the truck’s speed exceeded that of the car, taken together with the other factual circumstances, affirm the plaintiff driver’s testimony that collision occurred in her lane.

The truck driver’s testimony proves that he was well aware that the trailer tended to encroach upon the left lane. His failure to keep the truck within his lane constituted fault within C.C. art. 2315 (or want of skill, art. 2316) which damaged plaintiffs.

Plaintiff driver’s failure to observe the truck was not contributory negligence. She was entering a circle at which traffic could lawfully approach only from her left and she therefore need not have looked to her right. Even had she looked to the right and seen the truck, it would not have been unreasonable - for her to assume that the truck would stay within its own lane. We should therefore conclude that no fault on her part contributed to the collision.

      . The rig, consisting of tractor and a 6,000-gallon-tank trailer, measured 40 feet in overall length and had a cargo weight of 73,000 pounds.


author: MILLER, Judge. FRUGÉ, Judge MILLER, Judge.

text:
    Donald R. COLLINS, Plaintiff-Appellee-Appellant, v. A. Jerry SLOCUM et al., Defendants-Appellants-Appellees.
    Nos. 4803 and 5059.
    Court of Appeal of Louisiana, Third Circuit.
    July 16, 1975.
    Rehearings Denied Aug. 28, 1975.

      Provosty & Sadler by LeDoux R. Pro-vosty, Jr., Alexandria, for St. Paul.
    Guste, Barnett & Colomb by Sidney L. Shushan and J. Harry Henderson, III, New Orleans, for A. Jerry Slocum, and others.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for McSween & McSween.
    Polk, Foote, Randolph, Percy & Ledbet-ter by William P. Polk, Alexandria, for Morgan Walker.
    Walter M. Hunter, Jr., Alexandria, for Donald R. Collins.
    Gold, Hall, Hammill & Little by Donald Sharp, Alexandria, Stafford, Pitts & Stafford by Grove Stafford, Jr., Alexandria, as one of counsel for defendant-appellant-ap-pellee.
    Before FRUGÉ, MILLER and DO-MENGEAUX, JJ.
   MILLER, Judge.

This case was remanded by this court to obtain a complete record with signed judgments affecting all parties. Collins v. Slocum, 304 So.2d 675 (La.App. 3 Cir. 1975). For a statement of facts, see 304 So.2d pp. 676, 7. After complying with our order of remand, the trial court transmitted the entire record back to this court.

This case was consolidated for trial with another suit involving related issues. Slocum v. St. Paul Fire & Marine Insurance Company, et al., 317 So.2d 683 (La.App. 3 Cir. 1975, # 4933 and 5060), which is being this date decided in a separate opinion.

We first consider three alleged procedural errors raised to this appeal, which are:

1) LSH’s appeal is not properly before this court.
2) The trial court erred in denying
LSH’s motions, after remand, seeking to amend their pleadings and add new parties defendant.
3) This case should again be remanded to allow evidence to determine the extent of Humble’s pipeline servitude and its effect on LSH’s property.

We consider these issues in that order.

1) Collins and third party defendants Walker, Jr., and Walker, Sr., contend that LSH’s appeal is not properly before this court. They contend that there is no continuing appeal after a remand. Higgins v. Haley, 28 La.Ann. 216 (1876). In effect, they argue that this court was divested of jurisdiction when it remanded the case, and jurisdiction cannot be reinstated absent a new motion for appeal and a new appeal bond. Since the only appeal taken, a-fter remand, was by Gremillion from the judgment sustaining third party defendant’s peremptory exception to his third party claims against Daigre and McSween, it is argued that LSH’s appeal is not before this court.

LSH contend there were no new judgments adverse to their claim and therefore they had nothing new to appeal. Higgins v. Haley, supra, involved a second judgment which was adverse to appellant and they distinguish it on that basis.

The confusion results from our decree. Although we said “Remand” we intended to hold the judgment in abeyance and remand the case for trial of the remaining issues. See Simmons v. Beauregard Parish School Board, 293 So.2d 226 (La.App. 3 Cir. 1974).

We hold that the briefs and arguments of the original appeal present those sanie issues to this court at this time. The contention that some parties were unaware at oral argument that the issues of the first appeal were to be argued is unsupported. The trial court’s order put all attorneys on notice that he was transmitting the entire record back to the court of appeal. Furthermore some of the briefs submitted on this argument simply adopted their original brief. The others addressed all issues.

2) After the remand, LSH attempted to file new third party demands against Louis J. Daigre d/b/a Louis J. Daigre Associates; McSween & McSween, a partnership; Harold B. McSween and Jack P. Brook, individually; Rapides Savings and Loan Association; and Humble Oil Company. The trial judge denied leave to file these new demands and LSH sought supervisory writs from this court, which were denied.

The trial court correctly disallowed these new pleadings. The case was “. . . remanded to enable the court to try the remaining issue or issues and to decide all claims presented by the pleadings.” We intended only that the trial court render decisions and sign judgments as to all parties in the suit. We did not intend the case to be opened for new issues and for bringing in new parties. LSH had ample time prior to trial to bring in all parties.

3) LSH contends that this case must be remanded because Humble Oil is a “necessary party” and the liability issue cannot be determined without the ultimate determination of the scope of Humble’s servitude, limitations, rights, duties, liabilities, and use. In support of this contention, LSH cite the case of Greer v. Sumney, 41 So.2d 526 (La.App. 1 Cir. 1949).

Humble was originally third partied in this suit by LSH, but was dismissed on the peremptory exception of no cause of action. Collins v. Slocum, 284 So.2d 98 (La.App. 3 Cir. 1973). Accepting the statement from Greer v. Sumney, supra, as true that Humble Oil is a “necessary party” LSH waived its right to plead the dilatory exception of “non-joinder of a necessary party.” LSA-C.C.P. art. 928. See also State Farm Fire & Casualty Company v. Sentry Indemnity Company, 317 So.2d 683 (La.App. 3 Cir. 1975, # 5013).

The statement in Greer v. Sumney, supra, that a court on its own motion, may take cognizance of lack of necessary parties to the suit, though no exception of non-joinder of such parties is filed, was legislatively overruled by C.C.P. art. 643. See Official Revision Comment (a) of that article.

Principal Demand

This suit was brought by Collins against his vendors, LSH. He purchased the property by warranty deed, and the pipeline servitude was not excepted from his deed.

Prior to the purchase, on April 23, 1953, Morgan Walker, Sr., had granted a pipeline servitude across the entire section without designating where the pipeline would cross. The servitude provided that no improvements could be erected over the pipeline.

This pipeline servitude prohibited the erection of improvements above the line. To this extent it is a non-apparent servitude — such as the prohibition of building on an estate, or of building above a particular height. These servitudes have no exterior sign of their existence. Lallande v. Wentz, 18 La.Ann. 289 (1866).

Generally, one of seller’s obligations is to warrant buyer’s peaceful possession against claims of third persons, both as to title to the thing sold and as to charges thereon not declared at the time of the sale. LSA-C.C. art. 2501. If there is only a partial eviction from the thing sold, buyer cannot claim rescission of the sale, but is relegated to an action against seller for reimbursement of a proportionate amount of the purchase price. LSA-C.C. art. 2514. Where, as here, the property sold is encumbered by a non-apparent servitude, buyer has the option of seeking indemnification for the encumbrance of his property or of having the contract canceled, provided the magnitude of the encumbrance is such that it could be fairly presumed he would not have purchased the property had he been aware of its existence. In all events, purchaser cannot recover if the servitude was declared at the time of the sale. LSA-C.C. art. 2515. See O’Reilly v. Poche, 162 So.2d 787 (La.App. 4 Cir. 1964). This servitude was not declared at the time of the sale.

It was conceded that Collins would not have purchased the lot had he known of the servitude. This constitutes a partial eviction where the magnitude is such that Collins is entitled to rescind the sale.

We next consider the extent of Collins’ damages. He seeks a return of the $4,000 purchase price, the enhanced value of the land due to his improvements, attorney fees, and damages for mental anguish.

The trial court awarded Collins the purchase price plus his actual expenses incurred in building the home which totaled $22,484.45, plus all insurance premiums and interest payments due on his related loans.

The following Civil Code articles are relevant :

2506. When there is a promise of warranty, or when no stipulation was made on that subject, if the buyer be evicted, he has a right to claim against seller:
1. The restitution of the price.
2. That of the fruits or revenues, when he is obliged to return them to the owner who evicts him.
3. All the costs occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff.
4. The damages, when he has suffered any, besides the price that he has paid.
2509. The seller is bound to reimburse, or cause to be reimbursed, to the buyer, by the person who evicts him, all useful improvements made by him on the premises.

LSH contend that Collins cannot recover because he had constructive knowledge of the existence of the servitude, because Humble’s servitude was recorded. The trial judge rejected this contention and the record supports his findings. Collins did not have the title examined prior to buying the lot. When he borrowed money from the Savings & Loan to build his house, they had the title examined at Collins’ expense. However, this title examination was for the Savings and Loan and not Collins.

There is no evidence in this record to indicate Collins had actual or constructive knowledge. The trial court properly awarded Collins the $4;000 he paid for the lot.

Collins’ itemized expenditures totaling $19,065.52. Expert testimony indicated the improvements by Collins enhanced the value of the land by $24,000.

We apply LSA-C.C. art. 2506(4) rather than 2509. Article 2509 is based on the principle of equity that one should not enrich himself at another’s expense. Pearce v. Frautum, 16 La.Ann. 414 (1840). LSH have not been enriched by this building because the building will have to be removed under the terms of Humble’s servitude. Collins paid $19,065.52 for his improvements and therefore suffered damage in that amount. These damages were foreseeable by LSH because they knew Collins intended to construct a home on his lot.

The trial court properly rejected the claim for attorney fees associated with this warranty action. Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (1955); Miller v. Patterson, 240 So.2d 22 (La.App. 2 Cir. 1970).

The trial court properly rejected Collins’ claim for mental anguish. Collins based his claim on LSA-C.C. arts. 2516 and 1934 and cases allowing damages for mental anguish under art. 1934. We do not reach the issue, for Collins did not prove mental anguish.

The trial court properly rendered judgment against LSH in solido.

Intervention by Savings & Loan

Rapides Savings & Loan intervened to recover the amount Collins owes on the loan which is secured by their mortgage. The Savings & Loan employed their attorney to examine the title to determine whether a loan to Collins should be made. It was established that this examination was not made on Collins’ behalf, although Collins paid for the title examination. The title examiner failed to discover the existence of the pipeline servitude, and a loan was granted to Collins. Had the title examiner reported the possibility of the pipeline crossing the lot, further inquiry would have been made to determine its exact location before approving the loan.

Although we have grave doubts concerning the propriety of this intervention (and the award to the Savings & Loan), our hands are tied. No one sued the Savings & Loan. Collins’ answer to the intervention denied the claim, but he did not appeal the trial court’s judgment awarding the Savings & Loan the amount of its loan. Collins’ answer to LSH’s appeal did not complain about that award.

When an appellee answers an appeal, LSA-C.C.P. art. 2133 requires appellee to state the relief demanded. Since the award to the Savings & Loan was not properly before us, the trial court’s recognition of the intervention will stand.

Third Party Demand Against Gremillion

Prior to purchasing the 256 acre tract from Walker, Jr., LSH employed Gremil-lion to examine the title. The pipeline servitude affected the entire section in which the 175.8 acre tract is located, and did not indicate its route. Based on Daigre’s survey which did not show a pipeline crossing the tract, Gremillion certified that the recorded rights-of-way and servitudes “in no manner encroach upon the property above described and shown on the Plat of Survey attached hereto.”

In this suit LSH seek indemnification from Gremillion and his insurer St. Paul Fire & Marine Insurance Company, in the event they are cast in judgment to Collins. In a separate suit, LSH seek damages from Gremillion for the pipeline servitude crossing the entire 175.8 acre tract. See Slocum v. St. Paul Fire & Marine Insurance Company, 317 So.2d 683 (La.App. 3 Cir. 1975, # 4933 and 5060).

The trial judge found no negligence on the part of Gremillion. We disagree, but affirm the dismissal of the third party claim on different grounds.

The recorded servitude did affect the 256 acre tract, and Gremillion certified that it did not. The servitude was recorded and had been discovered and properly excepted by another attorney examining titles for LeBlanc affecting adjacent and nearby lands. Two attorneys testified that attorneys are required to call attention to the possibility that recorded servitudes might affect the described property.

We must determine whether this negligence was a legal cause of LSH’s injury or damage.

An attorney is liable to his client for damages caused by the attorney’s negligence in handling the client’s business, providing the client proves by a preponderance of evidence that such negligence is the legal cause of the loss. Toomer v. Breaux, 146 So.2d 723 (La.App. 3 Cir. 1962) and cases therein cited.

Walker Jr. testified that he told LeBlanc of the pipeline. They went on nearby property when the clearing showed where the pipeline traversed. Additionally, Le-Blanc had a plat showing the pipeline’s location on the adjacent tract which he purchased shortly before this purchase was confected. Although the survey did not show the pipeline continued into the subject property, there was no way the pipeline could have avoided the subject property. LeBlanc was on notice that the pipeline continued through the 256 acre tract.

The trial judge found that Le-Blanc had actual knowledge of the existence of the servitude, although he may have forgotten at the time of the purchase. We know of no law or jurisprudence that relieves a person for failure of memory. LeBlanc acted as agent for Slocum and Henderson and therefore his actual knowledge is chargeable to them. Culver v. Culver, 188 La. 716, 178 So. 252 (1938); Mayer v. Ford, 12 So.2d 618 (La.App. 1 Cir. 1943).

Accepting the trial court’s finding that LeBlanc had actual knowledge and that Slocum and Henderson are chargeable with this knowledge, LSH failed in their burden to prove Gremillion’s negligence was the legal cause of their loss. Toomer v. Breaux, supra. The legal cause of LSH’s loss, was their purchasing the subject property with the knowledge that a pipeline servitude existed.

We will not reverse the trial court’s factual determination that LeBlanc had actual knowledge at the time of the purchase. There is a reasonable basis in the record to support that holding. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For different reasons, we therefore affirm the trial court’s judgment dismissing LSH’s claim against Gremillion. Having found no liability on the part of Gremil-lion, we do not reach the issues presented by his third party demands against Daigre, McSween & McSween, a partnership, or McSween and Brook individually.

LSH’S Demand Against Walker, Jr., and Sr.

Walker Jr. purchased the tract from his father Walker, Sr. with full warranty of title and no exceptions. Walker, Sr. knew of the pipeline servitude because he granted the servitude to Humble. Walker, Jr. knew of the pipeline when he purchased the property. This was confirmed when he executed an agreement with Humble concerning that pipeline.

Walker, Jr. sold the tract to LSH with full warranty of title and no exceptions.

LSH third partied both Walker,' Jr. and Sr. to recover whatever amount they may be cast to pay Collins. The trial court held that since LSH had an attorney examine the title prior to purchasing the property, they were chargeable with “constructive notice” of what appears on the public records. This was based on our prior decision dismissing LSH’s third party suit against Humble on the peremptory exception of “no cause of action.” Collins v. Slocum, 284 So.2d 98 (La.App. 3 Cir. 1973). We stated in that case that “all persons have constructive notice of the existence and contents of recorded instruments affecting immovable property. * * * The record reveals that the title was examined by an attorney-at-law, and therefore, anyone building on the right of way servitude did so at his peril.”

We distinguish that case. That suit was not in warranty, but was instead a suit in tort for Humble’s negligence in failing to mark the pipeline. We do not agree that a title examination prior to purchase defeats the warranty action. The cases cited by Walkers [Martin v. Schwing Lumber & Shingle Co., 228 La. 175, 81 So.2d 852 (1955); Juneau v. Laborde, 219 La. 921, 54 So.2d 325 (1951); Board of Commissioners Lafourche Basin Levee District v. Elmer, 268 So.2d 274 (La.App. 4 Cir. 1972); Burt v. Valois, 144 So.2d 196 (La. App. 1 Cir. 1962); Dinwiddie v. Cox, 9 So.2d 68 (La.App. 2 Cir. 1942)] to support their contention that it does, do not address that issue. Instead, these cases deal with knowledge chargeable to a purchaser to defeat “good faith” acquisitive prescription.

When a sale is made with an exception to the warranty clause, “constructive knowledge” will not defeat the warranty action. Only actual knowledge will suffice. LSA-C.C. art. 2505; New Orleans & C.R.R. v. Jourdains Heirs, 34 La.Ann. 648 (1882); Citizens’ Bank of La. v. Freitag, 37 La.Ann. 271 (1885); Peters v. Daniel, 19 So.2d 583 (La.App. 1 Cir. 1944). See also, 23 T.L.R. 154, 168. It would be illogical to hold that a warranty, without exceptions, would defeat the action in warranty when a warranty with an exception to the warranty, would not.

In this case LSH purchased with full warranty. LeBlanc’s actual knowledge of the danger of eviction was chargeable to Slocum and Henderson. When a sale is made subject to express warranty, even actual knowledge by the purchaser, at the time of the purchase, of the danger of eviction will not defeat the warranty action. Actual knowledge will defeat the purchaser’s right to recover damages, but not his right to recover the purchase price, LSA-C.C. art. 2506; Hall v. Nevill, 3 La.Ann. 326 (1848). See 23 T.L.R. 140, 148.

LSH have not sought to rescind the sale. The pipeline servitude is only a partial eviction. Therefore, LSH can only recover for the proportionate part from which they have been evicted. LSA-C.C. art. 2514.

LSH purchased 256 acres from Walker, Jr. at a price of $128,025. Collins’ lot consisted of approximately 2.9 acres. Therefore, LSH is entitled to $1450.28 from Walker Jr. and Sr. The recovery against both Walkers is based on LSA-C.C. art. 2506. Walker, Jr.’s liability is based on his role as vendor, and Walker, Sr.’s comes by virtue of the subrogation of warranty against prior vendors. LSA-C.C. art. 2503; Hoggatt v. Halcomb, 250 So.2d 471 (La.App. 2 Cir. 1971).

We do not consider Walker, Jr.’s third party demand against Walker, Sr. There is a signed judgment disallowing this claim, and Walker, Jr. did not appeal or answer the appeal.

The trial court judgment allowing the intervention of Rapides Savings & Loan and rejecting LSH’s third party demand against Gremillion and St. Paul Fire & Marine Insurance Company is affirmed.

The trial court judgment allowing Collins to rescind the sale and receive damages, in addition to all interest and insurance expenses associated with his loan is also affirmed. The judgment is amended however, to award Collins a total of $23,065.00 [to correct an error in calculation].

The judgment rejecting LSH’s third party demand against Walker, Jr. and Walker, Sr. is reversed. Judgment is hereby rendered in favor of LSH and against Walker, Jr. and Walker, Sr., in solido, in the full sum of $1,450.28, with legal interest from date of judicial demand.

Costs of this and the earlier appeal are to be paid three-fourths by defendants LSH, and one-fourth by third party defendants Walker, Jr. and Sr.

In part, affirmed; in part amended and affirmed; and in part, reversed and rendered.

FRUGÉ, J., concurs in decree.

FRUGÉ, Judge

(concurring).

The majority opinion concludes that the third party defendant Gremillion was negligent in the preparation of a title opinion for the defendants LeBlanc, Slocum and Henderson. I respectfully disagree. The trial judge found no negligence on Gremil-lion’s part. In the title opinion Gremillion stated:

“Our examination of the records indicate a number of rights-of-way and servi-tudes affecting this property which in no manner encroach upon the property above described and shown on the plat of survey attached hereto. . . . ”

The trial judge concluded:

“This should have indicated to the purchasers that these rights-of-way existed and it was incumbent upon the purchasers to determine the exact location of the rights-of-way. An attorney only examines the public records and does not know where pipelines traverse property.”

I agree with the ruling of the trial court and therefore would find no negligence on the part of Gremillion. Since the majority finds no liability on the part of Gremillion, I concur in the decree.

It is to be noted that the right-of-way granted to Humble for the pipeline in question was over the entire 256 acre tract originally purchased by LSH from Walker, Jr. There was no designation of where the pipeline would run. Although Humble did have servitude rights over the entire tract, had Humble recorded the actual position of this pipeline after it was built the problem in this suit may not have arisen. As no such duty to record now exists, see Collins v. Slocum, 284 So.2d 98 (La.App. 3rd Cir. 1973), perhaps the legislature should consider the requiring of such rec-ordation.

I concur in the decree.

ON APPLICATION FOR REHEARING

MILLER, Judge.

Applications for rehearing have been filed by plaintiff Donald R. Collins; defendants, Gwin LeBlanc, A. Jerry Slocum, and J. Harrison Henderson, III; and third party defendant, Morgan W. Walker, Jr. We address ourselves to only a few specifications of error because most alleged errors were considered in the original opinion.

Defendant, LSH contend we erred in rendering judgment against them in solido for the full sum of $23,065.00.

Joint owners of immovable property are not subject to solidary judgment for recovery of the purchase price. A joint sale of land gives rise to only joint obligations of warranty. Suthon v. Laws, 127 La. 531, 53 So. 852 (1911); Schultz v. Ryan, 131 La. 78, 59 So. 21 (1912); Soule v. West, 185 La. 655, 170 So. 26 (1936); Hodges v. Long-Bell Petroleum Company, 240 La. 198, 121 So.2d 831 (1960). Therefore $4,000 of the $23,065 judgment (that part attributable to the purchase price) should have been rendered against LSH jointly rather than in solido. The $19,065 portion of the award in damages was properly rendered against LSH in solido.

We reject LSH’s contention this case cannot properly be decided without Humble, because it would be prejudicial to decide the case without first determining Humble’s limitations, rights, duties, liabilities and uses under the servitude. The pipeline goes directly under Collins’ house.

He had been evicted. No matter what happens, Collins is entitled to recover in warranty without further delay. LSH has not been prejudiced.

The trial court found Gwin LeBlanc had actual knowledge of the pipeline, and we affirmed. We inadvertently stated he had actual knowledge of the servitude, which contained the prohibition against building above the servitude. No evidence was introduced to show he had knowledge of this prohibition which is a non-apparent servitude. However LSH’s remedy was limited to the return of the proportional amount of the purchase price because they should have been placed on notice to investigate restrictions connected with the pipeline.

Walker, Jr. contends it is unfair to excuse Gremillion although he was found negligent, on finding LSH’s actual knowledge of the pipeline barred recovery —and then require Walker to return the purchase price when LSH had knowledge. Gremillion was negligent under general tort principles (See Steel v. Aetna Life & Casualty, 304 So.2d 861 [La.App. 3 Cir. 1974]), and LSH were barred from recovery because of their contributory negligence. As to Walker, Jr., he was found liable under warranty against eviction as defined by the Civil Code. This is an entirely different action. The civil code and jurisprudence require Walker, Jr. to return the purchase price even though LSH had actual knowledge. Walker, Jr., cannot be heard to complain. He failed to except the servitude in the deed when he sold the property to LSH.

Our decree in this case is amended so that the $23,065 awarded Collins is against LeBlanc, Slocum, and Henderson jointly as to $4,000, and in solido as to $19,065.

As amended our original decree is reinstated. All applications for rehearing are denied.

Rehearings denied.


author: MILLER, Judge.

text:
    A. Jerry SLOCUM et al., Plaintiffs-Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Defendants-Appellees.
    Nos. 4933 and 5060.
    Court of Appeal of Louisiana, Third Circuit.
    July 16, 1975.
    Rehearing Denied Aug. 28, 1975.
    Provosty and Sadler by LeDoux R. Pro-vosty, Jr., Alexandria, for St. Paul.
    Guste, Barnett and Colomb by Sidney L. Shushan and J. Harry Henderson, III, New Orleans, for A. Jerry Slocum, and others.
    Gist, Methvin and Trimble by DeWitt T. Methvin, Jr., Alexandria, for McSween & McSween.
    Polk, Foote, Randolph, Percy & Ledbet-ter by William Polk, Alexandria, for Morgan Walker.
    Walter M. Hunter, Jr., Alexandria, for Donald R. Collins.
    Gold, Hall, Hammill and Little by Donald Sharp, Stafford, Pitts & Stafford by Grove Stafford, Jr., Alexandria, for defendant-appellee.
    Before FRUGÉ, MILLER and DO-MENGEAUX, JJ. '
   MILLER, Judge.

For the reasons assigned in Collins v. Slocum, 317 So.2d 672 (La.App. 3 Cir. 1975), handed down this date, the trial court’s judgment is affirmed at appellants’ costs.

Affirmed.

FRUGÉ, J., concurs in decree.


author: ELLIS, Judge.

text:
    Wilma M. BILLIOT, Indiv., etc. v. Lyes BOURG, d/b/a Lyes Bourg Truck Lines, et al.
    No. 10356.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.
    Writ Granted Oct. 24, 1975.
    Philip E. Henderson, Houma, for appellant.
    Henry L. Klein, New Orleans, Ralph D. Hillman, Thibodaux, for plaintiffs appel-lees.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   ELLIS, Judge.

This is a suit for damages for personal injuries and wrongful death arising out of an automobile accident which happened on Louisiana Highway 27 at about 9:30 o’clock p. m. on September 8, 1972. A cane truck, owned by Lyes Bourg Truck Lines, operated by William Jasper, and leased to South Coast Corporation, being driven south, ran out of gas and stopped at the west edge of the southbound lane of the highway. Some time later, an automobile owned and operated by Joseph J. Bil-liot, Sr., also headed south approached the truck from the rear, and swerved into the northbound lane of traffic in an attempt to avoid striking the truck. The right rear of the Billiot vehicle struck the left rear of the truck, causing the automobile to spin around broadside in the northbound lane, where it was struck by a car operated by Leopold Gil. As a result of the collision, Mr. Billiot, and his young daughter, Charlotte Marie, were killed, and his wife, Wilma M. Billiot, and son, Joseph J. Billiot, Jr., were injured.

This suit was filed by Mrs. Billiot, individually, as natural tutrix of Joseph, Jr. and as administratrix of the estates of her deceased husband and daughter, seeking damages for the wrongful death of Mr. Billiot and Charlotte Marie, and for the personal injuries suffered by herself and her son.

Defendants named were Lyes Bourg, doing business as Lyes Bourg Truck Lines, William Jasper, South Coast Corporation, Aetna Casualty and Surety -Company, and Jim Walter Homes, Inc. Answer was filed denying negligence and pleading the negligence and contributory negligence of Mr. Billiot. Defendants also third partied the plaintiff in her various capacities, for contribution of one half of any damages for which they might be cast because of the negligence of Joseph J. Billiot, Sr. The suit was later voluntarily dismissed as to South Coast Corporation and Jim Walter Homes, Inc.

The case was tried before a jury and a verdict was rendered finding that both William Jasper and Joseph J. Billiot, Sr. were negligent, but that the negligence of Mr. Billiot was not a proximate cause of the accident. Damages totalling $100,000 were awarded to Mrs. Billiot individually, and $17,500 was awarded to Joseph J. Bil-liot, Jr. Judgment was signed against Bourg, Jasper and Aetna, in solido, in accordance with the verdict and they have appealed.

William Jasper testified that when he took over the truck, he checked the gas gauge and it read" full. When the truck stopped, only a few minutes after he began his trip, the gauge still showed full. He did not pull off the highway because he thought he could get the truck started again. He did pull the truck to the extreme edge of the travelled surface, however, leaving three or four feet between the truck and the center line of the highway. After attempting, unsuccessfully, to start the truck, he put out his reflectors, one about 75 feet behind the truck, one next to the cab, and one in front of the truck. He stated that he then moved the rear reflector a little further from the truck. He testified that during the entire time the truck was stopped on the road, all of his running lights, except the head lights were lit, and his emergency flashers were operating. He also testified that, after he put out the reflectors, he stood at the rear of the truck to flag traffic. He stated that he remained there except for three occasions when he renewed his efforts to start the truck.

The testimony of the other witnesses as to the condition of the lights on the truck before, during and after the accident is extremely conflicting. Alton Bouquet, who passed the truck heading south at about 9:00 p. m., testified that he saw the truck with dim lights on it as he approached. He did not see anyone flagging traffic, and saw no reflectors on the road.

Claude Bourg, son of defendant, Lyes Bourg, testified that he saw the lights on the stopped truck from across the bayou, and came over to see if he could give assistance. He determined that the truck was out of gas, although the gauge read full. He said that the clearance light, the running lights, and the front and rear flashers were all operating, and that the reflectors were out. He paced off 75 steps to the rear reflector after the accident. He went to get some gas, and when he returned, the accident had happened.

Wilford Brunet, another Bourg driver, passed the truck before the accident. The flashers and running lights were lit, and the driver was standing at the rear of the truck.

Louis Lecompte testified that he stopped to offer help to Jasper before the accident, and was told that Mr. Bourg was bringing gas. He saw the reflectors out, the running lights on and the flashers operating. He said Jasper was standing behind the truck.

Mrs. Sybil Mitchell, who was a passenger in Mr. Claude Bourg’s truck, confirmed his testimony relative to the lights on the truck.

David Altom was a passenger, in the rear seat of the Gil vehicle, which was involved in the accident. They passed the truck shortly before the accident heading south, and he said he saw no lights on it at that time, and did not see the driver. He saw a reflector 25 to 30 feet behind the truck on the centerline of the highway, and another by the cab of the truck. A few minutes later, they returned along the highway, heading north, and at that time, he observed no lights on the truck. As they passed the truck, they were involved in the collision with the Billiot vehicle.

Randal Hebert was driving North along the highway, ahead of the Gil vehicle. He said he saw the fog lights on the truck but did not notice any reflectors or flashing lights on the truck. He saw the driver standing in the door of the cab. The red tail lights of the truck were on. He passed the Billiot vehicle just after he passed the truck, and watched the accident take place in his rear view mirror. He immediately returned to the scene, and saw that the flashing lights on the truck were operating.

Mr. and Mrs. Louis Price, who were also driving north, ahead of Mr. Hebert, testified that they saw the truck when still half a mile from it. They saw some reflectors on the road marking out the truck, and the flashing lights. They turned into a driveway several hundred feet north of the truck, and the Billiot car passed them and they heard the crash. They immediately returned to the scene of the accident, and observed that the lights and flashers on the truck were still operating.

Mrs. Wilma Billiot, the plaintiff, testified that her husband was driving their car south on the highway at 55 to 60 miles per hour. She testified that there were no lights on the truck and that when they first observed it, it was too late to stop. On cross-examination, she testified that they were two or three car lengths past the south edge of Terrebonne High School when they first saw the truck. A survey in the record shows the distance from the school to the truck to be almost 900 feet.

Because the jury’s verdict is couched in terms of conclusions as to negligence and proximate cause, we do not have the benefit of their findings of fact, and must reach our own conclusions in that respect. Rowe v. Travelers Insurance Company, 253 La. 659, 219 So.2d 486 (1969).

With respect to the lights on the truck, only two witnesses, Mrs. Billiot and Mr. Altom testified that there were none. Mr. Altom saw the reflectors on the road. Mr. Bouquet, plaintiff’s witness, saw dim lights on the truck, some time before the accident. Mr. Hebert, plaintiff’s witness, saw fog lights on the front of the truck and the red tail lights of the truck immediately before the accident happened, although he did not observe the flashers. Mr. and Mrs. Price, defendants’ witnesses, saw the lights of the truck from a distance of a half mile, observed the reflectors on the road, and saw the flashers operating, immediately before the accident.

The reflectors were observed by various other witnesses, and the rear reflector was estimated to have been located anywhere from 30 feet to 225 feet behind the truck.

From all of the above, we conclude that the preponderance of the evidence is to the effect that at least the running lights of the truck were lit at the time the accident happened, and that the reflectors were, in fact, placed on the highway.

R.S. 32:368(A) provides:

“A. Whenever any freight carrying vehicle, passenger bus, truck tractor, trailer, semi-trailer, or any motor vehicle pulling a house trailer or other vehicle, is disabled upon the traveled portion of any highway of this state, or the shoulder thereof, at any time when lighted lamps are required on vehicles, the driver of such vehicle shall display the following warning devicés upon the highway during the time the vehicle is so disabled on the highway except as provided in Subsection B of this Section:
(1) A lighted fuse, a lighted red electric lantern or a portable red emergency reflector shall be immediately placed at the traffic side of the vehicle in the direction of the nearest approaching traffic.
(2) As soon thereafter as possible, but in any event within the burning period of the fuse (15 minutes), the driver shall place three liquid burning flares (put torches), or three lighted red electric lanterns or three portable red emergency reflectors on the traveled portion of the highway in the following order:
(a) One, approximately 100 feet from the disabled vehicle in the center of the lane occupied by such vehicle and toward traffic approaching in that lane.
(b) One, approximately 100 feet in the opposite direction from the disabled vehicle and in the center of the traffic lane occupied by such vehicle.
(c) One at the traffic side of the disabled vehicle approximately 10 feet rearward or forward thereof in the direction of the nearest approaching traffic.”

R.S. 32:141(B) provides:

“B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.”

R.S. 32:314(B), which has been amended since the time of the accident, then provided :

“B. Whenever a vehicle is parked or stopped upon a roadway or shoulder adjacent thereto, whether attended or unattended, during the hours between sunset and sunrise and there is not sufficient light to reveal any person or object within a distance of 500 feet upon such highway, such vehicle so parked or stopped shall be equipped with one or more lamps meeting the following requirements :
(1) At least one lamp shall display a white or amber light visible from a distance of 500 feet to the front of the vehicle; and
(2) The same lamp or at least one other lamp shall display a red light visible from a distance of 500 feet to the rear of the vehicle; and
(3) The location of the said lamp or lamps shall always be such that at least one lamp or combination of lamps meeting the requirements of this section is installed as near as practicable to the side of the vehicle which is closest to passing traffic.

The foregoing provisions shall not apply to a motordriven cycle.”

We think the record reflects that Jasper was in substantial compliance with R.S. 32:368(A) and R.S. 32:314(B), and that he had therefore “protected” traffic in accordance with R.S. 32-141 (B).

Neither do we believe that Mr. Jasper acted unreasonably in not pulling his truck onto the shoulder when it began to slow down. There were three gas tanks on the truck, and the gauge read full for the third tank. He was of the opinion that he could restart the truck by switching tanks.

We are of the opinion that Mr. Jasper was in compliance with the law, and was therefore not negligent in his behavior. We hold that the jury erred in holding otherwise. Since we have found the defendants not negligent, and therefore not liable, we need not consider the contributory negligence of Mr. Billiot.

The judgment appealed from is reversed, and there will be judgment in favor of defendants and against plaintiff, dismissing plaintiff’s suit at her cost.

Reversed and rendered.


author: STOULIG, Judge.

text:
    Cora DOLAN v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 6916.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Refused Nov. 14, 1975.

      Gregory M. Porobil, New Orleans, for plaintiff-appellee.
    Gordon F. Wilson, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Mrs. Cora Dolan, was awarded $25,791 as general and special damages for an injury sustained while she was a passenger on a public streetcar operated by defendant, New Orleans Public Service Inc., on June 21, 1972. Defendant has appealed.

Mrs. Dolan’s status as a transit passenger and her injury is conceded by defendant; therefore, in reviewing liability, we must determine whether defendant proved its freedom from fault. It is well settled that proof of an injury to a fare-paying passenger on a public conveyance imposes on the common carrier the burden of exculpating itself from negligence. Because common carriers owe their passengers the “highest degree of care,” it devolves on the defendant transit company to prove its operator was free from the slightest negligence that might be a causative factor of the accident. This it failed to do.

The undisputed facts are that Mrs. Do-lan boarded a St. Charles streetcar at a regular car stop at the corner of South Carrollton Avenue and Hickory Street. She paid her fare and began walking from the front entrance toward a seat. As she was in the aisle near the parallel seats that are located at the front of the streetcar, the motorman abruptly slammed on the air brakes and the sudden deceleration threw Mrs. Dolan off balance. She fell backward and struck her back on the metal stripping on the edge of the step between the entry platform and the seating area on the streetcar.

Nelson C. Washington, Jr., the motorman, testified he braked the streetcar abruptly because a vehicle moving on South Carrollton Avenue in the same direction as the transit car suddenly turned left into the Hickory intersection and a collision seemed imminent. However, under cross-examination, he admitted there is a mirror on the right outside of the streetcar that gave him a view of traffic proceeding in the street in the same direction the streetcar was moving. Although he denied seeing the car before it began its turn into Hickory Street, this is contradicted by the following colloquy between him and the trial judge:

“THE COURT: That mirror is to determine if cars are coming or making left turns; is that what that is for?
THE WITNESS: I guess so.
THE COURT: Did you look in the mirror ?
THE WITNESS: Yeah.
THE COURT: And you didn’t see that car approaching?
THE WITNESS: Well, I had him beat across the intersection.”

Thus the motorman’s statements demonstrate he breached the duty of care owed to the passenger in his operation of the streetcar. The tenor of his testimony, when considered as a whole, is to the effect he saw the approaching vehicle but miscalculated his ability to clear the intersection before it began its turn. This miscalculation, which created the emergency necessitating the sudden and vigorous application of the brakes, constituted the breach of the “highest degree of care” owed to the plaintiff-transit passenger, causing'her injury. We have no difficulty concluding Washington’s testimony falls far short of the evidence required to conclude New Orleans Public Service Inc. carried its burden of proof to exculpate it from negligence.

Defendant argues this case is factually analogous to Carter v. New Orleans Public Service, Inc., supra. We disagree.

In Carter, the driver, having committed no negligent act, was confronted with an unexpected emergency requiring him to suddenly brake his bus. In this case, the attempt to “beat the car” across the intersection helped precipitate the emergency situation. When Washington slammed on the air brakes of the streetcar, he was acting to avoid a danger which he helped create and, in so doing, was a causative factor in Mrs. Dolan’s injury.

We next consider quantum. Appellant complains an award of $25,000 is excessive general damages for the injury Mrs. Dolan sustained. The medical evidence, all submitted by plaintiff, establishes she suffered a compressed fracture of the body of the L-l vertabra. Compressed to 50 percent of its normal height, it was described as a painful and inoperable condition. Mrs. Dolan was hospitalized for three weeks shortly after the accident, during which time she was fitted with a Jew-ett (ramrod) brace. It was attached to her body at three points — the pubic region, midback and at the windpipe — and held her body in a rigid position. The wearer has extreme difficulty moving from a sitting to a standing position. Mrs. Dolan wore this brace for four months. She was treated by an orthopedic team in New Orleans until mid-July, 1972, when she visited her daughter in California so that she could help take care of her. Plaintiff was treated by a California orthopedist, who discharged her in October, 1972 because of her planned return to New Orleans. The physician noted in his report:

“COMMENT: In my opinion this patient did sustain as a result of the incident of 6-21-72, when she fell as a result of a sudden bus jerk, a fracture of the D-12 and L-l vertebral bodies. She continued to improve while under care in this office although she did have evident distress in the lumbosacral spine area. However, she should continue to convalesce and ultimately her prognosis is quite good.”

Dr. John F. Nabos, the New Orleans orthopedist who testified, said her permanent residual disability consisted of a permanent alteration of her spine because the height of the damaged vertabra, compressed to 50 percent of its normal size, will not increase. He said her complaints of intermittent back pain after her discharge were to be expected and would probably continue because people of her advanced age (70 years at the time of the accident) and with the amount of compression she suffered usually experience pain.

Under these circumstances an award of $25,000 general damages, while on the high side of the spectrum for this type of injury, is not an abuse of the much discretion vested in the trial court and under Gaspard, the award must not be disturbed.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

      . Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963).

      . Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1974).

      . Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).


author: PRICE, Judge.

text:
    Mrs. Marsha Swofford JOHNSON, Plaintiff-Appellant, v. John James “Ned” JOHNSON, Defendant-Appellee.
    No. 12628.
    Court of Appeal of Louisiana, Second Circuit.
    July 1, 1975.
    En Banc.
    Rehearing Denied Sept. 3, 1975.
    Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Bice, Wiley & Russell by Charles B. Bice, Winnfield, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

In the separation proceeding brought by Marsha Swofford Johnson against her husband, John James Johnson, plaintiff was awarded the sum of $300 per month following trial of a rule for alimony pendente lite. She has appealed this judgment, contending the trial judge abused his discretion in not awarding a sum sufficient to maintain her in the style she had been accustomed to during the marriage.

The record shows these parties were married on June 30, 1971, in Las Vegas, Nevada, and were separated on August 3, 1973. During the marriage they resided in Winnfield, Louisiana, where defendant was a prominent businessman and owned extensive properties. No children were born of the marriage. Plaintiff testified they enjoyed a rather high standard of living which included considerable travel and entertainment. According to her testimony the apartment used as their matrimonial domicile was situated in a hotel owned by defendant and was very comfortably furnished. She was of the opinion the rental value on such an apartment would be about $200 per month. Domestic help was furnished to assist her in maintaining the apartment. She was provided with a 1972 El Dorado Cadillac automobile for her personal use by one of defendant’s businesses.

She further testified her husband traveled extensively in connection with his business and she accompanied him regularly and was given the best in accomodations and entertainment. She contends she was allowed to purchase expensive clothing in New Orleans where they were regular visitors.

Since the separation plaintiff testified she has rented an apartment in Bossier City at $275 per month and at the time of trial of the rule she was unemployed. She continued to have possession and use of the Cadillac automobile. Her list of estimated living expenses totaled $905 per month.

Plaintiff submitted a financial statement prepared and signed by defendant on June 1, 1973, showing his net worth to be $1,289,980.00.

Although defendant did not testify on trial of the rule, his attorney filed on his behalf an income tax return showing his gross income from all sources for the year 1972 to be $12,570.00. Based on this evidence defendant contends the trial judge correctly awarded $300.00 a month to plaintiff and asserts the correctness of the trial judge’s findings that the award is commensurate with defendant’s income and ability to pay and th'at it sufficiently provides for plaintiff.

Plaintiff’s counsel contends the sum awarded is grossly inadequate to allow plaintiff to live as she had during the marriage and that defendant has ample separate funds and resources which he is obligated to use to provide for his wife during the pendency of these proceedings.

LSA-C.C. Art. 148 provides:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

In Cabral v. Cabral, 245 So.2d 718, 720 (La.App. 4th Cir. 1971), the wife’s rights under this article are concisely stated as follows:

“Alimony pendente lite being a judicial enforcement of the husband’s obligation to support his wife during the existence of the marriage, where justified by the facts (and each case is dependent upon its own facts), the wife is entitled to such alimony in an amount sufficient to maintain her in a style comparable to that which she enjoyed prior to her separation from her husband by reason of his means and position. * * *
“Where the wife, who is a litigant in a suit for separation from bed and board, has no income of her own, she is not required to obtain employment in order to support herself; the law imposes the obligation of support upon the husband.”

We find the jurisprudence also to support the plaintiff’s argument that the court is required to consider all of the assets of the husband in deciding his ability to pay the sum needed by the wife for her support during the pendency of separation or divorce proceedings. King v. King, 255 So.2d 225 (La.App. 1st Cir. 1971); Bowsky v. Silverman, 184 La. 977, 168 So. 121 (1936).

The financial statement of defendant shows he possesses cash on hand of some $32,000.00, and has accounts receivable and marketable stock of approximately $300,000.00.

It is therefore apparent defendant has ample ability to pay a sum in excess of that awarded by the trial court.

Under present economic conditions we do not consider the sum of $300.00 sufficient to support plaintiff in the manner or style provided her by defendant while these parties were living together. Although we are reluctant to disturb the discretion vested in the trial court in fixing the amount of alimony, we conclude he has erred in this instance.

The judgment appealed from is therefore amended to increase the sum awarded plaintiff as alimony during the pendency of these proceedings to the sum of $600.00 per month, and as amended is affirmed. Costs of this appeal are assessed to defendant.