author: HOOD, Judge.

text:
    Pierre LeBLANC, Plaintiff-Appellee, v. John C. GRECO, Defendant-Appellant.
    No. 5966.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Kenneth R. Williams, Baton Rouge, for defendant-appellant.
    J. Minos Simon and Edward J. Milligan, Jr., by Edward J. Milligan, Jr., Lafayette, for plaintiff-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   HOOD, Judge.

Pierre LeBlanc instituted this suit against Dr. John C. Greco to recover sums alleged to be due him for training defendant’s race horses. Greco reconvened, seeking to recover damages from plaintiff. Le-Blanc then filed other pleadings, including an exception of prescription to Greco’s re-conventional demand.

Trials were held on the exception of prescription and on the merits, and thereafter the following judgments were rendered by the trial court on August 24, 1976: (1) Judgment in favor of plaintiff and against defendant sustaining the exception of prescription filed by LeBlanc; and (2) judgment in favor of plaintiff and against defendant, condemning defendant to pay to plaintiff the sum of $5,944.45, and dismissing Greco’s reconventional demands. Greco has appealed from both of those judgments.

The issues presented are whether the claims asserted by Greco in his reconven-tional demand have prescribed; whether Greco is entitled to recover damages from LeBlanc; and alternatively, whether defendant is entitled to assert his claims for damages as a set off or as compensation against plaintiff’s demands.

We have decided that the evidence fails to support the reconvenor’s demands for damages against plaintiff, and that it also fails to establish that Greco is entitled to a set off against the claim urged by LeBlanc. Having reached those conclusions, it is unnecessary for us to consider the question of whether the trial court erred in sustaining the exception of prescription filed to Gre-co’s reconventional demand.

LeBlanc is a horse trainer in Lafayette. Pursuant to an agreement entered into between him and defendant, he trained race horses for defendant Greco from 1970 until 1974. He instituted this suit against defendant to recover the sum of $5,944.45, that being the amount alleged to be owed to him by Greco for training the above horses.

On this appeal, Greco does not question the correctness of the account which was submitted by plaintiff for training the horses. Defendant Greco filed a reconventional demand, however, in which he asserts the following claims against LeBlanc: (1) For damages in the amount of $15,000.00 for injuries to a horse owned by Greco, which injuries were suffered by the horse while it was being loaded on a trailer by plaintiff’s agents or employees; (2) for damages in the amount of $4,200.00, because of the alleged failure of LeBlanc to properly handle registration certificates for horses owned by defendant; (3) for damages in the amount of $500.00 for failing to properly train a gelding owned by defendant; and (4) for damages in the amount of $1,920.00 for plaintiff’s breach of contract in failing to properly train two mares and for his negligence in running those mares in races.

We consider each of the above claims separately.

Injury to Horse

Shortly before October 6, 1972, Greco asked LeBlane to send someone to Texas to pick up three of Greco’s fillies and to transport them to LeBlanc’s farm in Lafayette for training. In response to that request LeBlane sent his employee, Russell Louvi-ere, to the Vincent Farm, near Bridge City, Texas, on the above date, to pick up and transport the three horses to Lafayette. Louviere’s cousin, who was not an employee of LeBlane, accompanied Louviere to Texas for that purpose. Soon after their arrival on the farm, two of the horses were loaded into plaintiff’s trailer without difficulty. The third filly fell as it was being loaded into the trailer, and as a result of that fall it sustained permanent injuries to its hip or leg. The horse nevertheless was loaded into the trailer and was hauled to Lafayette without further mishap after that injury was sustained.

Defendant Greco claims in his reconven-tional demand that he is entitled to recover damages from plaintiff LeBlane, alleging that the accident which resulted in injuries to his horse was caused by the negligence of LeBlanc’s employees, and that LeBlane also breached his oral contract to deliver the horse safely to Láfayette.

Louviere’s cousin did not participate in getting the horses loaded into the trailer. Three other persons participated in the loading operations, however, none of whom was an employee of plaintiff. They were Charles Thermon, Clarence LeBlane and Mrs. Jerry Vincent. Thermon was an experienced horse trainer, and he was not employed by either of the parties to this suit or by the Vincent Farm. He was familiar with the three horses which were being loaded into the trailer, and he particularly was familiar with the horse which was involved in the accident.

The filly which was injured during the loading operations was nervous, and she resisted the attempts of Louviere and others to get her into the trailer. Louviere got inside the trailer, and he attempted to lead the horse into it by pulling on a leather shank attached to a halter on the horse’s head. Thermon and LeBlane tied a rope to the left rear part of the trailer, wrapped the rope around the back of the horse and they then pulled the rope tight against the rear of the animal, for the purpose of inducing the filly to enter the trailer. Mrs. Vincent stationed herself behind the horse and waved her arms in an attempt to scare or drive the horse into the trailer. While those attempts were being made to get the horse to enter the trailer, the horse slipped and fell, causing the above injury to its hip or leg.

Thermon testified in behalf of defendant Greco. Although he denied taking an active part in the loading operations, the evidence convinces us that he did actively participate to the extent above shown. He conceded that the method used in attempting to get the horse into the trailer “was a normal way to do it.”

It is unfortunate that the horse slipped and fell while the above attempts to load it into the vehicle were being made. We conclude, however, as the trial judge obviously did, that Louviere was not negligent in his attempts to load the injured filly into the trailer. The evidence shows that he performed the duties assigned to him in loading and transporting the filly in a proper, normal and accepted manner.

We find no error in that part of the trial court’s judgment which rejects Greco’s claim for damages because of the injuries suffered by the above horse. We also conclude that Greco is not entitled to a set off or to compensation against plaintiff’s claim because of the above injuries to that horse.

Handling of Registration Certificates

In 1971 Greco sent three thoroughbred horses to LeBlane for the purpose of having the horses offered for sale at the Louisiana Breeder’s Sale which was scheduled to be held in New Orleans. The understanding was that if the horses did not attract a high price, they would not be sold but would be returned to LeBlanc’s farm to be trained for racing. At or about the time the horses were taken to that sale, Greco mailed the registration certificates pertaining to those horses to the proper officials of the Louisiana Breeder’s Sale, in New Orleans. The evidence shows that registration certificates must be produced in order for thoroughbred horses to be sold or entered in races.

The horses did not attract a high price at the sale, so LeBlanc “bought them in,” as Greco’s agent. Our understanding of the transaction which took place at that time was that the ownership of the horses did not change. Dr. Greco continued to own them. He simply used that method of assuring himself that the horses would not be sold unless they brought at least the minimum price for which he was willing to sell them. The allegations in his reconventional demand and his testimony at the trial make it clear that both parties considered Greco to be the owner of the horses after the above transaction took place.

Shortly after it was determined that the horses could not be sold at a high price, Greco paid the fee or commission which he owed the sales officials, and he instructed LeBlanc to bring the horses back to Lafayette. LeBlanc thereupon brought the three horses back to his farm in Lafayette and began training them for racing, all pursuant to his agreement with Greco. Le-Blanc did not pick up the registration certificates for these horses when he left New Orleans, and he thus did not have those certificates while the training operations were being conducted. He trained the horses on his farm for seven months. He conceded that ordinarily it does not require seven months to train a horse, but he testified that some horses do not learn as quickly as others do and that it required that long to train these particular fillies. He stated that after that time he asked Greco to send the registration certificates to him so he could enter the horses in races, and that Greco told him that he would “attend to it.” He said that he received the certificates from Greco about two months later, and that the horses were entered in races after that time.

Greco testified that after the horses had been trained for seven months, he contacted LeBlanc to inquire why they were not being raced, and that he learned at that time that LeBlanc had not obtained the registration certificates; He contends that it was Le-Blanc’s duty to obtain the certificates when he left New Orleans with the horses, and that he was negligent in having failed to do so. Greco takes the position that because of LeBlanc’s negligence in that respect the horses could not be raced during the last month of races in New Orleans, that Le-Blanc kept the horses on his farm for a longer period of time than was necessary (7 months), and that the charges made by LeBlanc for training the horses thus are excessive. Greco claims that he sustained damages in the amount of $4,200.00 as the result of LeBlanc’s negligence.

The trial judge obviously concluded that LeBlanc either was not negligent in failing to obtain the registration certificates earlier, or that Greco sustained no damages as a result of the delay. We cannot say that he erred in either of those findings. It is apparent that Greco kept the registration certificates in his possession before the horses were taken to New Orleans to be sold, since the evidence shows that Greco himself mailed the certificates to the sales officials at that time. The ownership of the horses did not change, and after the hoped-for sale failed to take place Greco instructed plaintiff to return the animals to Lafayette. Considering all of the circumstances, we think LeBlanc was justified in assuming that Greco would recover the certificates from the sales officials, and that he would continue to keep them in his possession. We find no fault or negligence on the part of LeBlanc in failing to obtain the registration certificates when he left New Orleans with the horses. The evidence also fails to show that LeBlanc subjected the horses to a longer period of training than was necessary before he attempted to enter them in races.

Our conclusion is that there is no error in that part of the trial court’s judgment which rejects Greco’s demand for this item of damage.

Failure to Properly Train Gelding

On or about January 1,1973, Greco sent a gelding, named “Mr. A.P.,” to plaintiff’s farm for training. LeBlanc thought the colt was two years old, and he trained it at his farm from January 1, to March 24,1973, at a charge of $7.00 per day. He then trained the colt at the race track from March 25, until June 1,1973, at a charge of $12.00 per day. On or about the last mentioned date Greco informed plaintiff that the colt was only a yearling, and the animal was then removed from the track and returned to plaintiff’s farm. The evidence shows that the horse could not be raced until it was two years old, and that the additional cost of training it at the race track in 1973 was an unnecessary expense.

Greco argues that he relied on plaintiff’s judgment, as an expert, to train the gelding properly, and that LeBlanc was negligent in failing to determine that the colt was a yearling and in incurring the additional and unnecessary expense of training it at the race track. He claims damages, or a set-off, in the amount of $500.00 as the result of plaintiff’s alleged negligence, his demand being based solely on the contention that an unnecessary expense was incurred in training the colt.

The evidence shows that LeBlanc was not informed of the age of the colt when it was placed in his care. He nevertheless examined it and concluded, erroneously, that it was a two year old. He thereupon proceeded to train it as such. He did not know until he was told by Dr. Greco that it was only a yearling, and he then returned it to the farm immediately where the care and training of it was less expensive. The training of the colt at the race track did not injure the animal in any way. We find nothing in the evidence to support a holding that a trainer is negligent if he errs in determining the age of a colt such as this one.

The burden of proof rests on defendant Greco to establish LeBlanc’s negligence. We have concluded that the evidence does not show that plaintiff was negligent in failing to determine that the colt was a yearling at the time it was placed in his care. It would be just as logical, according to the evidence, to conclude that Greco was at fault in failing to inform LeBlanc as to the age of the colt when he placed it in plaintiff’s care. We think Greco has failed to meet the burden of proof which rests on him of showing negligence on the part of plaintiff in this respect.

Failure to Properly Train Two Mares

Greco argues, finally, that he is entitled to recover damages from plaintiff because of the latter’s failure to properly train two mares owned by Greco, and because of his negligence in entering those mares in races where there was no hope that they could win.

The evidence shows that LeBlanc trained two mares, named I. Angelina and Mattiola, for Greco. He entered them in several races at Evangeline Downs during the summer of 1973, but the mares did not win any races during that period. Greco contends that the mares were sore at the time of each race, indicating that they were not properly trained. He also claims that Le-Blanc should have discontinued racing them and returned them to his farm after they lost several races, and that his charges for training the mares were excessive because of his failure to remove the horses from the race track.

LeBlanc explained that the mares were in good condition, that they were good runners and that he thought they could win. He stated that he entered them in several races because he wanted to win races for Dr. Greco, and that he felt that either or both of the mares eventually would win. He denied that the horses were sore or were improperly trained. A jockey testified that he had ridden Mattiola three times in races, that he liked to ride that horse, that it was not handicapped by soreness, and that he thought the mare was in good condition and had the ability to win.

The evidence convinces us that the two mares were properly trained, that they were capable of winning races and that LeBlanc did not abuse the trust which Gre-co had placed in him by entering those horses in several races, despite the fact that they did not win. The trial judge, therefore, correctly rejected Greco’s demand for this item of damages.

Conclusion

We find, as did the trial judge, that defendant Greco is indebted to plaintiff for the sum of $5,944.45 for services rendered and materials furnished in connection with the training, boarding and transporting of race horses owned by defendant. The evidence fails to establish that LeBlanc is indebted to Greco for any of the damages or amounts claimed by Greco in his reconven-tional demand. Since the evidence does not show that LeBlanc is indebted to Greco, we conclude that defendant is not entitled to a set-off or to compensation for any of the amounts claimed by him in his reconven-tional demand. In view of those conclusions, it is unnecessary for us to consider whether the reconventional demands urged by defendant are barred by prescription.

For the reasons assigned, the judgments appealed from are affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    Dr. Dale REED, Plaintiff-Appellant, v. EVANGELINE PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 6014.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Young & Burson by I. Jackson Burson, Eunice, and Oscar E. Reed, Jr., Lafayette, for plaintiff-appellant.
    Fusilier, Pucheu & Soileau by J. William Pucheu, Ville Platte, and A. Bruce Rozas, Mamou, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

The trial court concluded that plaintiff, Dr. Dale Reed, is a tenured employee of defendant, the Evangeline Parish School Board, and rendered judgment prohibiting the board from reducing Reed’s salary. The trial court denied Reed a writ of mandamus for reinstatement as assistant superintendent and administrator of the vocational and technical school. A writ of mandamus was issued directing the board to appoint Reed to an equivalent position “or as near thereto as possible”. (TR. 41) Costs were assessed equally between the parties, and Reed was denied attorney fees.

Reed has appealed, alleging error in that part of the judgment which does not require the board to reinstate him in his former position. The board has also appealed, alleging that the trial court erred in finding Reed had tenure and is entitled to his former salary. The board also alleges that the trial court erred in directing the appointment of Reed to an equivalent position.

PERTINENT FACTS

It was stipulated that Reed was appointed as assistant superintendent and administrator of the vocational and technical school of Evangeline Parish on January 6, 1972, effective July 1, 1972; that Reed holds a valid teacher’s certificate from the State of Louisiana; that his job required this certificate; that he received a salary of $21,-006.83; that the position he had held was abolished on June 3, 1976, by a 7-6 vote of the school board; and that the school board had a $500,000 deficit on June 30, 1975.

Charles Norman Vidrine, chief accountant of the Evangeline Parish School Board, testified that Dr. Dale Reed was paid from the board’s general fund from 1972 through 1976. Vidrine said that approximately $30,-000 a year in federal funds goes into the general fund but the total is expended at the discretion of the board. If an employee is paid entirely with federal funds, the money is separately deposited in á federal fund account. Reed’s salary was not paid from such an account.

J. Hart Perrodin, superintendent of the Evangeline Parish Public School System, testified that the duties Reed had been performing would be required in the future. Some but not all were in federally funded programs. Perrodin said he had never recommended Reed’s dismissal to the board and had no complaints about Reed’s performance in his job.

Plaintiff Reed testified that all of his paychecks were received from the general fund of the Evangeline Parish School System and he was unaware of any specific federal funds being used. He had applied as superintendent of the Evangeline Parish School System in January of 1976, but did not receive the appointment and offered full cooperation to the new superintendent. It was suggested to him on three occasions by three separate board members, that, if he did not receive the position of superintendent, he might also lose his position as assistant superintendent. Reed said his duties as assistant superintendent would have to be assumed by someone else.

James Cecil Colligan, a member of the school board, testified that the seven members of the board who voted in favor of abolishing Reed’s job were the same seven who had voted for L. Sidney Ortego for superintendent; five of the other six had voted for Dr. Reed and the sixth member had voted for a third party. Colligan said there was no policy reason for abolition of Reed’s position. The same reduction in personnel could have been achieved by not filling Ortego’s position as assistant superintendent when he was promoted; not replacing Marshal Frank, curriculum director for the vocational system, when he retired; or not replacing another retiring supervisor, James Lafleur.

Dr. Roderick Perron, a school board member for seven-and-a-half years, admitted that the final question was whether Reed or someone else would be employed since the same reduction in expense could have been made by leaving Ortego’s job vacant when he was promoted.

Bobby W. Deshotel, a member of the board for six years, said the discharge of Reed was for financial and economic reasons but admitted abolishing Reed’s job rather than not filling the vacancy created by Ortego’s elevation was a matter of choice.

It was stipulated that the testimony of five other board members would be substantially the same as that of Drs. Perron and Deshotel. Some testimony by other parties was either cumulative or irrelevant.

The first issue is whether the trial court was manifestly erroneous in finding Reed to be a tenured employee of the board. Reed is a permanent teacher, as defined in LSA-R.S. 17:441 and 442, and has the tenure rights specified in LSA-R.S. 17:443. McGraw v. Iberia Parish School Board, 310 So.2d 139 (La.App. 3 Cir. 1975), writ refused, 313 So.2d 827. It is contended that the tenure law does not apply because Reed served in a federally funded program and the matter is governed by Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (1970). Hayes was an employee in a short term program financed entirely with federal funds. Reed occupied a position in the regular school system of Evangeline Parish and was paid from the general funds of the system. Reed’s appointment was not qualified, whereas Hayes held office for the duration “of funding by the Federal government.” 237 So.2d 682. Also cited by the board is Thompson v. East Baton Rouge Parish School Board, 303 So.2d 855 (La.App. 1 Cir. 1974), but Thompson dealt with a part-time employee in a veteran’s education program and is also distinguishable on its facts from the instant case. Here, there has been no loss of federal funds by the Evangeline Parish School Board; it is receiving exactly the same federal funds it received prior to Reed’s dismissal. There has been no change in the federal aid to the system; Reed was not a part-time employee; his salary was no more dependent on federal funds than that of any other employee of the school board. Hayes and Thompson are inapplicable.

As a tenured teacher, Reed is entitled to the salary he received in his previous position. Dugas v. Ascension Parish School Board, 228 La. 80, 81 So.2d 817 (1955).

The second issue is whether Reed is entitled to be restored to his former position. The trial court correctly found that Reed’s position was not abolished in the interests of economy or for the improvement of the Evangeline Parish schools. (TR. 39). The testimony that the performance of his duties will be required in the future was uncontradicted. Demotion of a tenured teacher can only be made after a superintendent’s written recommendation accompanied by valid reasons. Palone v. Jefferson Parish School Board, 306 So.2d 679 (La., 1975). Superintendent Perrodin made no recommendation for Reed’s removal or demotion.

The third specification of error relative to attorney’s fees has been abandoned by plaintiff.

For the foregoing reasons, the judgment of the trial court herein is affirmed insofar as it found Reed to be a tenured employee and entitled to his former salary. The trial court’s writ of mandamus is amended to order that Dr. Dale S. Reed be restored to a position equal to that of assistant superintendent.

In view of the failure of the school board to comply with statutory requirements in dealing with Dr. Reed, all costs, both at trial and appeal, are assessed to the Evangeline Parish School Board insofar as allowed by law.

AMENDED AND AFFIRMED.

      . L. Sidney Ortego had not assumed the office of superintendent at the time of trial.

      . Plaintiff Reed does not ask for reinstatement as “assistant superintendent and administrator of the vocational and technical school” but for a position of equal status.


author: CULPEPPER, Judge.

text:
    LAKE LAFLEUR, Plaintiff and Appellant, v. EVANGELINE PARISH POLICE JURY et al., Defendants and Appellees.
    No. 6015.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Preston N. Aucoin, Ville Platte, for plaintiff and appellant.
    J. William Pueheu, Fusilier, Pucheu & Soileau, Ville Platte, A. Bruce Rozas, Mam-ou, for defendants and appellees.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff, the grantor of a right of way for construction or improvement of a drainage canal, sues the defendant Police Jury, the grantee, for its alleged failure to comply with certain provisions of the right of way agreement. Specifically, plaintiff demands specific performance or damages for defendant’s alleged failure to comply with a provision of the right of way agreement requiring leveling of land adjacent to the canal. In addition, plaintiff seeks damages for destruction of his fences, a portion of his potato crop, and a portion of his pasture. The trial judge found the Police Jury had complied with the provision of the right of way agreement requiring leveling of the land, but awarded plaintiff $130 for damage for his fence and pasture. Plaintiff appeals those portions of the judgment rejecting his demand for specific performance or damages for leveling the land adjacent to the canal and rejecting his demand for damages to his potato crop.

The dispute arises out of the trial court’s interpretation of the following two conditions imposed on the Police Jury by the right of way agreement:

“C) Restore and level all adjacent land affected as per the contract between the Public Works Department and their contractor, which contractual conditions are made a part hereof.

D) Pay for damages to growing crops or planted grass occasioned by the digging.”

The issues are: (1) Since there never was a contract between the contractor and the Department of Public Works (of the State of Louisiana), is provision “C” a binding contract between plaintiff and defendant for restoration of the property adjacent to the canal? (2) Did the trial court err in holding plaintiff was not entitled to recover for damages to his potato crop, under provision “D”, on the grounds the potato crop was not planted until after the construction of the canal was complete?

GENERAL PACTS

The right of way agreement was executed on August 24, 1974. Prior to its execution, there were negotiations between plaintiffs counsel and the Police Jury. By a letter to the Evangeline Parish District Attorney, plaintiff’s attorney proposed to make the right of way subject to five conditions designed to protect plaintiff’s interest. Further negotiations resulted in the addition of four conditions to the right of way agreement, including provisions “C” and “D” which are quoted above. The right of way agreement was drafted by the district attorney of Evangeline Parish, in his capacity as legal counsel to the Police Jury.

The record shows there was never a contract between a contractor of the jury and the Public Works Department. The Police Jury contracted directly with Kent Construction Company to dig the canal. The Louisiana Department of Public Works is not a party to this contract. The written contract between Kent Construction Company and the Police Jury does not mention the Department of Public Works, nor does it specify any treatment of the spoil bank.

The Department of Public Works did supply the Police Jury with various engineering services in connection with the construction of the canal, including the specifications for treatment of spoil banks. In advertising for bids on the project, the Police Jury noted that the work had to be performed according to Department of Public Works specifications. A copy of these standard specifications was introduced into evidence at trial. In pertinent part, the specifications provide:

“Where the channels go through cultivated or open land or pastureland or orchards, the existing and new spoil banks shall be spread and dressed with a bulldozer, or other suitable equipment, so that the maximum height of the spoil shall not be more than two feet above natural ground unless otherwise shown on the plans or called for in the special provisions of these specifications . . The surface of the spread spoil shall be dressed to a smooth and uniform condition.”

The record shows that when the canal was complete, the construction company left the spoil banks at a level of about two feet, with some spots slightly higher and some lower. In response to plaintiff’s complaints about the condition of the spoil banks, Edgar Ortego, Police Juror from the ward in which plaintiff’s property was located, dispatched a Police Jury employee with a motor grader to level or smooth the spoil banks. In addition to leveling the bank, the grader operator dug three ditches to facilitate drainage of plaintiff’s property.

WAS THERE A CONTRACT TO LEVEL ADJACENT LAND?

Plaintiff argues that since the Police Jury drafted the right of way agreement, any ambiguity should be construed against the Jury. LSA-C.C. 1958. It follows, according to plaintiff, that because there was no contract between the contractor and the Department of Public works, provision “C” of the right of way agreement is ambiguous and should be interpreted by us to read as follows: “Restore and level all adjacent land affected.” We do not agree that this is the proper interpretation of the contract.

In his February 7, 1974 letter to the district attorney, plaintiff’s attorney proposed that the right of way be subject to this provision: “Restore and level all land affected to the same surface height it was before.” The Police Jury was apparently unwilling to accept this proposal, as it drafted the final copy of the right of way agreement with a provision making the land leveling obligation subject to the terms of a contract between the Department of Public Works and the contractor. Thus, the Police Jury did not intend to obligate itself to restore the land adjacent to the canal ,to its original condition.

There is no ambiguity in provision “C” of the right of way. It is susceptible of only one interpretation. It clearly states that adjacent land “will be leveled . as per the contract between the Department of Public Works and their contractor, . .” Since no such contract ever existed, there was never a “meeting of the minds” or the mutual consent necessary for formation of a contract.” LSA-C.C. Articles 1766, 1799 and 1945. In such a case, it is not within the province of the court to alter or make a new contract for the parties. LSA-C.C. Article 1945; Stack v. DeSoto Properties, 221 La. 384, 59 So.2d 428 (1952); Savoie v. Bills, 317 So.2d 249 (La. App. 3rd Cir. 1975). Since there is no contract between the parties to regulate the treatment of spoil banks adjacent to the canal, we must leave the parties as they are.

Our recent decision in Rozas v. Evangeline Parish Police Jury is distinguishable from the present case. In Rozas, the plaintiff asked the Police Jury to insert a provision in the right of way grant concerning the spreading of the spoils. In response to the grantor’s request, the Police Jury inserted the following provision: “That all spoil area will be spread.” We held that obscurity in the contract arose because plaintiff failed to clearly convey to the Police Jury his wishes concerning leveling of the spoil. Citing Article 1958, we then adopted the construction of the contract most favorable to the Police Jury. The present case differs from Rozas in that the present plaintiff clearly conveyed to the Police Jury his wishes concerning leveling of spoil. The Police Jury simply did not accept his proposal concerning leveling. Therefore, the Rozas case is inapplicable.

WERE DAMAGES FOR POTATO CROP PROPERLY DENIED?

Provision “D” of the right of way agreement obligated the Police Jury to “Pay for damages to growing crops or planted crops occasioned by the digging.” Plaintiff admitted he did not plant his potato crop until after work on the canal was complete. Plaintiff failed to prove the construction of the canal resulted in damage to any growing crop. Therefore, under the terms of Provision “D”, the trial court was correct in denying plaintiff recovery for alleged damages to his potato crop..

No error is assigned regarding the trial judge’s award for damages to plaintiff’s fence and pasture, nor do we find any.

In its brief, the Police Jury complains that the judgment appealed assessed against it “all costs” of the proceeding. The jury argues that under R.S. 13:4521, all costs cannot be assessed against a state agency. This is correct. However, the Police Jury has neither appealed nor answered the appeal in this case. Therefore, we cannot modify the judgment as requested in brief. LSA-C.C.P. Article 2133.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.


text:
    Michael A. O’BANION, Plaintiff-Appellant, v. ALLSTATE INSURANCE CO. et al., Defendants-Appellees.
    No. 6016.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Pharis & Pharis by F. Jean Pharis, Alexandria, for plaintiff-appellant.
    Provosty & Sadler by Albin A. Provosty, Gold, Hall, Hammill & Little by John Simon, Alexandria, for defendants-appellees.
    Before HOOD, FORET and HEARD, JJ.
   HOOD, Judge.

Michael A. O’Banion, individually and as administrator of the estate of his minor son, Garth D. O’Banion, seeks to recover damages for personal injuries sustained by young O’Banion when a motorcycle he was riding collided with an automobile being driven by Mrs. Veranee A. Johnson. Defendants are Mrs. Johnson and her husband, Henry P. Johnson, Allstate Insurance Company and Safeco Insurance Company of America. A summary judgment was rendered by the trial court dismissing the suit as to defendant Safeco. Plaintiff appealed.

The issue presented is whether plaintiff is entitled to recover from Safeco under the uninsured motorists coverage provided in an automobile liability policy which Safeco had issued to plaintiff.

The accident occurred on October 26, 1974. Plaintiff alleges that it was caused solely by the negligence of Mrs. Johnson. Garth D. O’Banion sustained serious injuries as a result of that accident.

At the time of the collision, there was in effect an automobile liability policy issued by Allstate to Henry P. Johnson, insuring the automobile involved in the accident, and providing liability coverage for bodily injury sustained by one person up to a maximum of $10,000 per occurrence. Mrs. Johnson was an insured under that policy.

There also was in effect at that time an automobile liability policy issued by Safeco to plaintiff O’Banion, insuring two automobiles owned by the insured, and providing uninsured motorist coverage up to $5,000 for each person per occurrence, on each of the two insured automobiles. By stacking the coverages, the Safeco policy provided uninsured motorist coverage up to a maximum of $10,000 per person for each accident.

Plaintiff alleges that the damages which he and his son sustained as a result of the above accident are in excess of $10,000, and that his claim thus will exhaust the limits of the liability policy which Allstate issued to defendant Johnson.

The policy which Safeco issued to O’Ban-ion was issued originally on January 6, 1974, for a term of six months, ending July 6, 1974. On or about the last mentioned date, the policy was renewed or extended to provide the same coverage for another term of six months, from July 6, 1974, through January 6, 1975.

At the time the above policy was issued by Safeco, and at the time it was extended for an additional term of six months, the policy was governed, in part, by LSA-R.S. 22:1406 D(2)(b), as amended by Act 137 of 1972. That section of the Revised Statutes, as amended in 1972, provided:

“(b) For the purposes of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.” (Emphasis added)

After the policy had been renewed or extended by Safeco, the above section of the Revised Statutes, LSA-R.S. 22:1406 D(2)(b), was amended again, this time by Act 154 of 1974, which amendment became effective on July 31, 1974. After that amendment became effective, the cited section of the Revised Statutes, as amended by the 1974 act, provided:

“(b) For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.” (Emphasis added).

The accident involved here occurred on October 26, 1974. It is apparent, therefore, that Safeco issued and renewed its policy to O’Banion before the 1974 amendment to LSA-R.S. 22:1406 D(2)(b) became effective. The accident occurred while the policy was in effect, but after the 1974 amendment to that section of the Revised Statutes had become effective.

The important and determining question presented here is whether LSA-R.S. 22:1406 D(2)(b) must be applied as that statute was worded after the 1974 amendment became effective, or whether it should be applied as it was worded when the policy was issued, that is, before the 1974 amendment became effective.

Plaintiff contends that the statute, as amended in 1974, is applicable. He argues that the Johnson automobile is an “uninsured motor vehicle,” as that term is used in the Safeco policy, since the liability coverage on it is less than the amount of damages suffered by plaintiff and his son. Defendant Safeco contends that LSA-R.S. 22:1406 D(2)(b), as worded prior to the 1974 amendment, governs plaintiffs claim in this instance. It argues that the Johnson car is not an “uninsured motor vehicle” under the Safeco policy, because the liability coverage on that automobile was equal to, and thus was not less than, the uninsured motorist coverage carried by O’Banion.

An issue similar to the one which is before us here was presented in Lorio v. Safeco Insurance Co., 316 So.2d 744 (La.App. 1 Cir. 1975), and in Lindsey v. Aetna Casualty & Surety Co., 324 So.2d 842 (La.App. 2 Cir. 1975).

In Lorio, supra, the policy was issued to plaintiff on November 15, 1972. LSA-R.S. 22:1406 D(2)(b) was amended by Act 137 of 1972, and that amendment became effective on January 1, 1973. The accident occurred on March 3, 1973. The First Circuit Court of Appeal held that the 1972 amendment could not be construed so as to change the terms and conditions of the policy which was issued before the amendment became effective.

The same amendment was involved in Lindsey, supra. There the policy was issued on October 20, 1972, and the accident occurred on October 15, 1973. The Second Circuit Court of Appeal held that the 1972 amendment to LSA-R.S. 22:1406 D(2)(b), which became effective on January 1, 1973, could not be construed to affect the policy which was issued before the effective date of that amendment.

We agree with the reasons assigned and the results reached by the reviewing courts in Lorio and Lindsey, supra.

A substantive law is presumed to be prospective in effect, and it should not be applied retroactively unless the language used by the Legislature shows a clear intent that it should be given a retroactive effect. Louisiana Insurance Guaranty Association v. Guglielmo, 276 So.2d 720 (La.App. 1 Cir. 1973). The provisions of Act 154 of 1974, amending LSA-R.S. 22:1406 D(2)(b), are substantive in nature, and we find no language in that statute which indicates that the Legislature intended for it to be applied retroactively. In the absence of an agreement to the contrary by the parties to the contract, therefore, we think the 1974 amendment to the above section of the Revised Statutes does not govern an insurance policy issued before the effective date of that amendment.

Plaintiff’s argument here is that Act 154 of 1974 had the effect of amending the insurance contract which previously had been entered into between Safeco and O’Banion. The amendment, if applied to that policy, would give the insured added benefits which he did not expect to receive, which the insurer did not agree to pay, and for which no premiums were paid. If we should hold that the policy was amended by the 1974 act, our holding would impair the obligations of that contract by imposing a more onerous obligation on the insurer than either party contemplated or agreed to when the policy was issued. We believe that applying that act retroactively to the Safeco policy, which was entered into before the act became effective, would violate Article 1, Section 23, of the Louisiana Constitution of 1974, which provides:

“No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.”

We are aware of the fact that in Richard v. Zurich Insurance Company, 318 So.2d 83 (La.App. 3 Cir. 1975), and in Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3 Cir. 1974), we indicated in each case that a cause of action would have existed under Act 154 of 1974 if that act had been in existence at the time the accident occurred. Our statements to that effect constituted dicta in each instance, since it was not necessary for a disposition of those cases to rule on that question. We have decided that we erred in expressing that view in each of those cases. We believe that the law was correctly applied in Lorio and in Lindsey, supra.

Our conclusion is that Act 154 of 1974 cannot be applied retroactively to insurance policies which were issued before the effective date of that act. We thus find no error in the judgment of the trial court which dismissed the instant suit as to defendant Safeco.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    Dallas WILSON, Plaintiff and Appellee, v. MILLERS MUTUAL INSURANCE ASSOCIATION, Defendant and Appellant.
    No. 6017.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Allen, Gooch & Bourgeois by Michael Harson, Lafayette, for defendant and appellant.
    Landry, Poteet & Landry by John G. Poteet, Lafayette, for plaintiff and appel-lee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit for workmen’s compensation benefits for total and permanent disability. Plaintiff was injured on October 7, 1974 while working as a truck driver for Ed-mundson Duhe Rice Mill, Inc. The defendant is the compensation insurer of the Rice Mill. The trial court rendered judgment awarding benefits for total and permanent disability, but denied plaintiff’s claim for penalties and attorney’s fees. Defendant appealed. Plaintiff answered the appeal, seeking penalties and attorney’s fees.

The issues are: (1) Is there a reasonable evidentiary basis for the trial court’s conclusion that plaintiff is totally and permanently disabled? (2) Did the trial court err in denying statutory penalties and attorney’s fees?

The evidence shows that the plaintiff, who was 61 years of age at the time of the accident, drove a rice truck for the mill. In connection with his duties he had to climb the sides of the truck during loading and unloading operations. The injury in question occurred when plaintiff fell while stretching a tarpaulin over the load of rice. Plaintiff testified he also had to climb a ladder onto a platform in the mill in connection with the loading operations.

The injury was a comminuted fracture of the left clavicle. The fracture healed in a bayonet position, i. e., with an overlap of the broken bone ends. Also, scar tissue developed. Plaintiff has about a 10% residual disability of the left shoulder, consisting principally of his inability to raise his arm above his shoulder without pain. The expert medical opinion is in conflict as to whether plaintiff can do the climbing required by the work which he was doing as driver of a rice truck at the time of the accident.

In written reasons for judgment, the trial judge weighed the expert medical testimony together with that of plaintiff and the laywitnesses. He concluded that a preponderance of the evidence shows plaintiff cannot do the climbing required by his employment as driver of a rice truck. Therefore, the trial judge found plaintiff is totally and permanently disabled. However, the judge concluded that the issue of permanent and total disability is sufficiently serious on a factual basis that the defendant was not arbitrary or capricious in terminating the payment of workmen’s compensation. Accordingly; the judge denied penalties and attorney’s fees.

Within the meaning of the Workmen’s Compensation Law, as it provided at the time of this accident, an employee is totally and permanently disabled if he is unable to perform work of the same or similar nature as he was performing at the time of injury. Knispel v. Gulf States Utilities Company, Inc., 174 La. 401, 141 So. 9 (1932); Cooley v. Insurance Company of North America, 216 So.2d 388 (La.App. 3rd Cir. 1968). Though there is conflicting testimony, the trial court’s conclusion that plaintiff is totally and permanently disabled is supported by a reasonable evidentiary basis and should not be disturbed on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Therefore, we affirm the trial court’s decision that plaintiff is totally and permanently disabled.

The only remaining issue concerns penalties and attorney’s fees. The record shows plaintiff was paid benefits for temporary total disability from the date of his injury, October 7, 1974, until April 1, 1975. Plaintiff does not argue that defendant acted arbitrarily or capriciously in discontinuing payments for total disability. Plaintiff argues, instead, that defendant acted arbitrarily and capriciously by delaying until June 25, 1976, to pay plaintiff $640 for partial loss of function of his left arm.

Defendant relied on medical reports that plaintiff could return to the same work he was performing at the time of the accident. This presented a substantial issue as to whether plaintiff suffered a loss of function of his arm and shoulder. The trial judge concluded that defendant did not act arbitrarily or capriciously in its dealings with plaintiff. A determination of whether the insurer has been arbitrary or capricious is a finding of fact which should not be disturbed on appeal unless it is manifestly erroneous. Panebiango v. Main Insurance Company, 293 So.2d 536 (La.App. 4th Cir. 1974), writ refused. Therefore, we affirm the decision of the trial court rejecting plaintiff’s claim for penalties and attorney’s fees.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


text:
    Calvin LAMBERT, Plaintiff and Appellant, v. The Heirs of Joseph ADAMS et al., Defendants and Appellees.
    No. 6021.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Kenneth W. Ford, Morgan City, for plaintiff and appellant.
    James A. Hammers, St. Martinville, for defendants and appellees.
    Before CULPEPPER, WATSON and. STOKER, JJ.
   CULPEPPER, Judge.

This case originated as a petitory action by Calvin Lambert against the Heirs of Joseph Adams. Lambert sought to be recognized as the owner of a tract of land by the acquisitive prescription of 30 years. In the petitory action, the district court rendered judgment dismissing Lambert’s suit. The Third Circuit Court of Appeal affirmed, 325 So.2d 331 (1976), and the Supreme Court denied writs, 329 So.2d 458 (1976).

After the judgment dismissing Lambert’s petitory action became final, the Adams’ Heirs filed the present rule against Lambert to show cause why he should not be held in contempt of court for willfully disobeying the judgment by continuing to possess the property. The district judge found Lambert in contempt, and ordered that he discontinue using the property and remove all of his buildings from the property within 30 days. From this judgment of contempt, Lambert appealed.

As stated above, the judgment which Lambert allegedly disobeyed only dismisses his petitory action. It is an adjudication that Lambert does not own the property. The judgment does not determine who is the owner, nor does it adjudicate who is entitled to possession. And, of course, it does not directly order Lambert to vacate the premises or to remove the buildings.

The applicable constitutional provision is found in Article 5, Section 2 of the Louisiana Constitution of 1974:

“A judge may issue writs of habeas corpus and all needful writs, orders, and process in aid of the jurisdiction of his court. . . . The power to punish for contempt of court shall be limited by law.”

The pertinent statutory provisions are found in the following articles of our Code of Civil Procedure:

“Article 221. A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. “Contempts of court are of two kinds, direct and constructive.”
******
“Article 224. A constructive contempt of court is any contempt other than a direct one.
“Any of the following acts constitutes a constructive contempt of court: .
“(2) Willful disobedience of any lawful judgment, order, mandate, writ or process of the court;”

Our jurisprudence has established the following general rules regarding contempt proceedings: First, the object and purpose of a contempt proceeding is to vindicate the authority and dignity of the court. It is not designed for the benefit of the litigants, even though infliction of punishment for contempt may inure to the benefit of the mover in the contempt rule. State ex rel. Duffy and Behan v. Civil District Court for Parish of Orleans, 112 La. 182, 36 So. 315 (1904); Robertson v. Robert son, 258 So.2d 125 (La.App.2d Cir. 1972). Second, unless a litigant willfully disobeys a direct order of the court issued prior to the contempt rule, he should not be held in contempt, even if his acts tend to frustrate the opposing litigant. State ex reí Duffy and Behan, supra. Third, proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Roy v. Berard, 227 La. 86, 78 So.2d 519 (1955); Junius Hart Piano House v. Ingman, 119 La. 1017, 44 So. 850 (1907). Fourth, as a general rule, contempt proceedings should not be resorted to where other specific remedies are provided by law. State ex rel. Duffy and Behan, supra; In re State ex rel. Hero, 36 La.Ann. 352 (1884); Junius Hart Piano House v. Ingman, supra.

Under the above rules it is clear that the trial court erred in holding plaintiff in contempt. Prior to the contempt rule, there was no direct order by the district court directing plaintiff to vacate the premises or to remove his buildings. Thus, the dignity and authority of the court has not been impaired. In addition, as appellant correctly points out in his appellate brief, the Adams Heirs have several specific remedies to enforce any right they may have to compel Lambert to vacate the premises and remove his buildings.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that Calvin Lambert is not in contempt of court. The contempt rule is recalled and set aside. All costs in the trial and appellate courts are assessed against the appellees.

REVERSED AND RENDERED.


author: WATSON, Judge. CULPEPPER, Judge,

text:
    Succession of Ignace DAVID, etc., Plaintiff-Appellant, v. Paul Ronald Dale DAVID, etc., et al., Defendants-Appellees.
    No. 6022.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Gary E. Theall, Abbeville, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Ltd. by Paul J. Breaux, Lafayette, for defendants-appel-lees.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

Plaintiff, Sigrid Ferrara, has appealed from a trial court judgment refusing a new trial with respect to an ex parte judgment of possession in the succession of Ignace David and has also appealed from the judgment of possession itself. The judgment of possession sent the three children of Ignace David into possession of all of the immovable property David owned in Louisiana and all of the movable property David owned in both Louisiana and Florida. The three children, defendants-appellees, are Joseph Bernie Wayne David, Paul Ronald Dale David, and Kathleen Alexis David, wife of Richard Broussard, all residents of Louisiana. Ig-nace David, although a resident of the state of Florida, died in the Abbeville General Hospital, Vermilion Parish, Louisiana, on August 6, 1975. David executed a Florida will on March 21, 1975, naming Sigrid Ferrara, his fiancé, who also resided in Florida, as testamentary executrix of his succession. The Florida will was recorded in the public records of Vermilion Parish on the day of David’s death. The will bequeathed all of decedent’s property in Florida to Sigrid Ferrara and the remainder of his estate to his three children.

The three children received the judgment of possession, as to which the new trial was asked, on the basis of affidavits. Sigrid Ferrara also filed a petition to annul the judgment of possession but the action of nullity is not at issue.

The trial court denied the new trial on the basis that this was not the proper procedure for disposing of the contest about the ex parte judgment of possession.

The legal proceedings subsequent to David’s death were as follows:

The three children filed a petition on August 13, 1975, alleging that the will of Ignace David was in the possession of Sig-rid Ferrara and asking that it be produced for filing in the succession record. Subsequently on September 9, 1975, a rule was filed to disqualify Sigrid Ferrara as executrix because she was a non-resident of the state who had allegedly not appointed an agent for service of process. The following month Sigrid Ferrara appointed her attorney, Gary Theall, as her agent. An exception of prematurity to the rule was filed, which was sustained, and the rule to have Sigrid Ferrara disqualified as executrix was dismissed.

An attempt was made to take Sigrid Fer-rara’s deposition but she moved to have the subpoena quashed and there was judgment in her favor on this rule.

In January of 1976, Sigrid Ferrara made a motion to withdraw the original will from the records of Vermilion Parish in order that it could be probated in the state of Florida. The three children opposed withdrawal of the will. The trial court denied the motion, concluding that a recorded document could not be removed from the conveyance records, citing LSA-R.S. 14:132. In the interim, Paul Ronald Dale David petitioned to be appointed provisional administrator on the ground that property taxes and mortgage payments were due on the immovable property; arrangements had to be made for leasing or re-leasing the property; there were outstanding medical bills; and various other matters which required immediate attention. He was appointed on January 15, 1976. The provisional administrator filed a detailed descriptive list of the assets of the succession, which were valued at $90,019.95.

The petition for possession by the three children alleges that: the decedent, Ignace David, was married but once to Audrey Langlinais, from whom he was judicially divorced; they were the sole issue of the marriage; all of the property owned by the deceased was separate property; they were the sole heirs and entitled to the ownership in equal shares of the property belonging to the succession of the deceased; there was no necessity for administration; they desired to accept the succession unconditionally and be sent into possession. The net estate was shown as $65,242.65 and inheritance taxes on this amount were paid the State of Louisiana. A judgment of possession was rendered June 25, 1976, recognizing the three children as the sole heirs of the deceased, sending them into possession of all of his immovable property in Louisiana and all his movable property in both Louisiana and Florida, and discharging the provisional administrator.

At the hearing on the motion for new trial, various items of evidence were introduced: a certified copy of David’s last will and testament; the Florida Probate Code; the property settlement between David and his former wife; a power of attorney given by David to Ms. Ferrara on July 22, 1975; David’s passport, obtained February 11, 1975; David’s Florida driver’s license; two checks written by David on a Florida bank; a receipt for 1975 Florida real estate taxes; and an unexecuted renewal application for a 1976 Florida tax exemption. It was stipulated that no notice of the petition for possession or the judgment was given to Sigrid Ferrara or her attorney and that no effort was made to determine whether she would consent to join in the petition. There was a subsidiary issue concerning non-payment by the provisional administrator of a mortgage debt to Dothan Savings and Loan on immovable property in Florida, allegedly not paid in spite of a petition and order authorizing the provisional administrator to do so. The detailed descriptive list of the succession property included movable and immovable property in the State of Florida.

The issue is whether the trial court erred in granting the judgment of possession and in refusing to grant a new trial under the circumstances.

Judgments'of possession are prima facie evidence of the right of the parties recognized therein to possession of the estate of the deceased. LSA-C.C.P. art. 3062. However, such a judgment is not conclusive. Succession of Feist, 287 So.2d 514 (La., 1973). A person claiming to be an heir of a deceased may appeal from an ex parte judgment placing others into possession of the estate and this remedy by appeal is independent of an action of nullity, which can be maintained at the same time. Succession of Lissa, 194 La. 328, 193 So. 663 (1940).

The word heirs includes testamentary legatees. LSA-C.C. art. 879; Succession of Dinwiddie, 263 So.2d 739 (La.App. 4 Cir. 1972). David’s testament, if valid in Florida, is also valid in Louisiana and may be probated in Louisiana. LSA-C.C.P. art. 2888.

Although a testament must be probated before it can have effect, LSA-C.C. art. 1644, it can be admitted into evidence without probate and is entitled to consideration in determining whether one opposing or proposing the will has a right of action. Succession of Feitel, 187 La. 596, 175 So. 72 (1937). Ignace David’s children here were aware of the existence of the will and executed an affidavit that they were his sole heirs to obtain the ex parte judgment of possession. An action of nullity is clearly appropriate. LSA-C.C.P. art. 2004. However, an action of nullity does not affect the right to appeal and a ground for nullity which appears on appeal should be considered by the appellate court. LSA-C.C.P. art. 2005.

The Code of Civil Procedure provides both peremptory and discretionary grounds for a new trial. The former are stated by art. 1972, as follows:

“A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence;
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
(3) In jury cases, as provided in Article 1814.”

Under art. 1972(1), a judgment clearly contrary to the law and the evidence entitles an aggrieved party to a new trial. An ex parte judgment of possession has, like all other judgments, certain requirements which must be met. LSA-C.C.P. art. 3061. The court under the law must examine the petition for possession and the record of the proceedings to determine that petitioners are entitled to the relief prayed for and that all taxes have been paid. The court “tries” these questions just as if witnesses were called and testimony taken in open court. A judgment not complying with these requirements of law is erroneous, contrary to the law and the evidence, and a new trial is mandated.

It was not the trial court which was responsible for the error in the present case. The error is attributable to the heirs who petitioned for possession, with full knowledge that there was an instrument recorded in Vermilion Parish, purporting to be the last will and testament of the deceased. The Code of Procedure covers the situation with which the children of Ignace David were confronted in LSA-C.C.P. art. 2853, as follows:

“If a person has possession of a document purporting to be the testament of a deceased person, even though he believes that the document is not the valid testament of the deceased, or has doubts concerning the validity thereof, he shall present it to the court with his petition praying that the document by filed in the record of the succession proceeding.
A person so presenting a purported testament to the court shall not be deemed to vouch for its authenticity or validity, nor precluded from asserting its invalidity.”

LSA-C.C.P. art. 2853 contains the mandatory word “shall” and David’s children were required to present the document to the court even though they wished to contest its validity or oppose the provision that Sigrid Ferrara be appointed executrix.

The failure to grant a new trial here was manifestly erroneous. The judgment of possession is contrary to the law and the evidence. Where substantial justice has not been done and a litigant has been deprived of legal rights, a new trial should be granted. Succession of Robinson, 186 La. 389, 172 So. 429 (1937); Hardy v. Kidder, 292 So.2d 575 (La. 1974).

Accordingly, it is ordered, adjudged and decreed that the judgment of possession signed in these proceedings on June 25, 1976, be and it is hereby set aside, a new trial is ordered, and the matter is remanded to the trial court for further proceedings according to law and not inconsistent with this opinion. All costs are assessed to defendants-appellees.

REVERSED AND REMANDED.

CULPEPPER, J., concurs and assigns reasons.

CULPEPPER, Judge,

concurring.

I concur except as follows. In view of the unsettled status of the jurisprudence as to whether a judgment granting or denying a new trial is appealable, I prefer to treat the present appeal as being only from the judgment of possession. This procedure has been used in several cases, Freuhauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (1968); Smith v. Hartford Accident & Indemnity Company, 254 La. 341, 223 So.2d 826 (1969); Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967), and King v. King, 253 So.2d 660 (La.App. 1st Cir. 1971), writ refused.

In the present case, the application for a new trial was not on the grounds of newly discovered evidence. At the time the judgment of possession was signed, the record contained evidence showing the existence of a will, and, therefore, the judgment of possession was clearly erroneous. I agree the judgment of possession must be reversed. However, I would not remand for a new trial. Instead, I would remand for further proceedings in accordance with law and the views expressed herein.

      . The trial court, in reasons for judgment (TR. 34-35), described the will as valid under the laws of Florida. We express no opinion on the validity of the will since that issue is not before us.

      . The following observations are those of the author and do not reflect the opinion of the other two members of the panel:
      There is conflict in the jurisprudence about whether a trial court’s refusal to grant a new trial is appealable. While the present appeal is from both the judgment of possession and denial of the motion for new trial, (Quaere: what is the point in drawing a distinction between an appeal from a judgment and an appeal from the denial of a new trial when the grounds urged for new trial are that the judgment is contrary to the law and the evidence under LSA-C.C.P. art. 1972?) it is appropriate to address the question of whether the denial of new trial is subject to appeal.
      In the past many cases have stated that there is no appeal from the denial of a motion for new trail. See for example: State v. Martin, 207 La. 410, 21 So.2d 481 (1945), and General Motors Accept. Corp. v. Deep South Pest Con., 247 La. 625, 173 So.2d 190 (1965).
      However, there are other cases which take precisely the opposite view: Succession of Robinson, 186 La. 389, 172 So. 429 (1937), and Hardy v. Kidder, 292 So.2d 575 (La., 1974).
      The Hardy case is particularly instructive since it is the latest expression of the Louisiana Supreme Court on the question. That court does not, either in its original opinion, the opinion on rehearing, or in the two dissents, express any reservation about entertaining an appeal from the denial of a new trial.
      In the original opinion by Justice Marcus, the “sole issue” was stated to be “whether the trial judge abused his discretion in denying defendant’s motion for a new trial . . .” (292 So.2d 576); and, on rehearing, Justice Tate said the “sole issue” was “whether the trial judge erred in denying defendant’s motion for a new trial . . .” (292 So.2d 577). A new trial was ordered in Hardy and there was no dispute on the Court about reviewing the case, the dissenters contending only that a new trial should not be ordered under the circumstances.
      In view of the current status of the jurisprudence as reflected by Hardy, the author believes that it is entirely appropriate to entertain the present appeal, either as to the judgment of possession or as to the denial of a new trial.


author: ROGERS, Judge.

text:
    Will B. BEVIL and Bill H. Bevil, Plaintiffs-Appellants, v. HEATH TIMBER COMPANY, INC., Terry Leger and Insurance Company of North America, et al., Defendants-Appellees.
    No. 6025.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Joseph W. Greenwald, Lake Charles, for plaintiff s-appellants.
    Jones, Patín, Harper, Tete & Wetherill by Kenneth R. Spears, Scofield, Bergstedt & Gerard by Robert L. Hackett, Lake Charles, Bishop & Rutledge by Tommy C. Rutledge, DeQuincy, Plauche, Smith, Hebert & Nies-et, Reid K. Hebert, Woodley Fenet & Rani-er, Drew A. Ranier, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

This personal injury action was instituted by Will B. Bevil on behalf of his minor son, Bill H. Bevil, against defendants Bennie J. Heath, d/b/a Heath Timber Company, Inc., Insurance Company of North America, Terry M. Leger, and Heath Timber Company, Inc., and in the alternative against the defendant, Lumberman’s Mutual and Casualty Company, a subsidiary of Kemper Insurance Company. Various third party demands followed involving defendants Louisiana State Department of Highways, Ford Motor Company, the City of DeQuincy, Louisiana, and Travelers Indemnity Company. After trial by jury, a verdict was returned in favor of plaintiff, Will B. Bevil, and against defendants, Terry M. Leger, Heath Timber Company, Inc., and Insurance Company of North America, for the sum of ten thousand and no/100 ($10,-000.00) dollars for medical expenses and property damage, and further granting plaintiff Bill H. Bevil the sum of ten thousand and no/100 ($10,000.00) dollars against defendants Terry M. Leger, Heath Timber Company, Inc., and Insurance Company of North America, for general damages. (During the course of the litigation, Bill H. Bevil became a major.)

The plaintiffs have filed a devolutive appeal alleging as their sole specification of error that the jury abused its discretion by inadequately awarding Bill Bevil the sum of ten thousand and no/100 ($10,000.00) dollars for general damages, and further urging that the evidence supported a minimum award of two hundred thousand and no/100 ($200,000.00) dollars.

The facts relative to the accident are undisputed. On July 30, 1974, at approximately twelve o’clock noon, Bill H. Bevil was operating his 1974 Honda 350 motorcycle at a moderate speed, traveling in a southerly direction on Page Street, a major thoroughfare which traverses the city of DeQuincy, Louisiana. When he approached the intersection of LeBlanc Street, a vehicle which was owned by Heath Timber Company, Inc., and driven by its employee, Terry M. Leger, failed to stop at the stop sign controlling traffic on LeBlanc Street, thereby causing defendant’s vehicle to strike plaintiff. At the time of the accident, the defendant’s vehicle was traveling in a westerly direction on LeBlanc Street and Leger, the driver, was acting in the course and scope of his employment with Heath Timber Company, Inc.

After the accident, Bill Bevil was taken by ambulance to the emergency room of the West Calcasieu-Cameron Hospital, where he was placed under the care of Dr. Jerome W. Ambrister, an orthopedic surgeon. A long history of medical treatment ensued, which history will be described in greater detail below.

The trial was commenced on September 23, 1976, and it resulted in a jury verdict that found defendant Terry M. Leger to be negligent, plaintiff Bill H. Bevil to be free from negligence, and awarded general damages to Bill H. Bevil in the sum of ten thousand and no/100 ($10,000.00) dollars, and awarded Will B. Bevil for medical expenses and property damage the sum of ten thousand and no/100 ($10,000.00) dollars. After plaintiff’s motion for additur and motion for a new trial were both denied, judgment was signed on October 21, 1976 in favor of plaintiffs and against defendants Terry M.' Leger, Heath Timber Company, Inc. and Insurance Company of North America, in accordance with the jury verdict. Plaintiffs thereupon perfected a de-volutive appeal to this court.

As mentioned above, the sole issue raised on this appeal is that of quantum.

Plaintiff presented two major arguments on appeal. After reviewing Bill Bevil’s injuries, resulting disabilities, and medical history, plaintiff contended that the evidence supported a much greater award than $10,000.00 for general damages. Next, plaintiff cited several personal injury cases involving allegedly similar injuries in an attempt to show that the award in the instant suit was greatly out of proportion, and thus was an abuse of the factfinder’s discretion.

Defendants responded to plaintiff’s medical history contending that Bill Bevil had recovered successfully from his injuries and had suffered little residual disability. Defendants further urged that their inability to pay a large sum of money was a factor that influenced the jury’s assessment of damages. And as to the argument that the instant award was out of proportion to pri- or reported awards, defendants briefed several personal injury cases which they alleged involved similar injuries and which resulted in general damage awards less than that granted in the case at bar.

We find that the quantum issue in the instant suit is controlled by Louisiana Civil Code Article 1934(3) and the recent Louisiana Supreme Court case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). In the landmark Coco decision, the Supreme Court, Justice Calogero writing, fully explored the “much discretion” principle of appellate review found in Article 1934(3) and traced the development of this principle through the various landmark Supreme Court cases that have interpreted it.

The section of Article 1934 which states the principle is quoted in pertinent part as follows:

“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury . . ..” (italics added)

While the Coco decision reaffirmed the constitutional authority of the Courts of Appeal to review quantum awards of the trial courts (p. 335 of the decision), the Supreme Court limited the exercise of that power in the following manner:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. (Citations omitted) Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. (Citations omitted) It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

And in the paragraph following the above, the Supreme Court met the question of how much importance should be given prior reported decisions involving similar injuries:

“Further we believe that, heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two cases are ever fully alike. And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal.”

In the recent case of Schexnayder et ux. v. Carpenter et al., La., 346 So.2d 196 handed down May 16, 1977, 338 So.2d 344 (La.App.1977), in a further elaboration of Coco, supra, our Supreme Court stated that since the jury does have, under the law, much discretion in fixing damages, the appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury.

In light of the foregoing instructions from the highest court of this state, and considering that both plaintiff and defendants are able to cite some similar cases where quantum awards were both greater and lesser than that before, we feel compelled to attach little significance to those cases, and instead, we base our decision herein solely on the evidence found in the record.

A careful review of the record uncovered the following evidence which we consider relevant in making a determination of whether the jury abused its discretion.

Three orthopedic surgeons testified at the trial in regard to Bill Bevil’s injuries. Two of them, Dr. Jerome W. Ambrister and Dr. David Drez, Jr., treated the young man, and the third, Dr. Norman T. Morin, examined him on only one occasion. Dr. Ambrister was the first to treat Bill Bevil, initially seeing him in the emergency room of the West Calcasieu-Cameron Hospital about noon, July 30,1974, the day of the motorcycle accident. Dr. Ambrister’s initial examination revealed that the patient had suffered three fractures, two in the left leg and one in the right leg. In the left leg, there was protrusion of bone through the skin which x-rays revealed to be the fractured tibia. The fibula of the left leg was also fractured, as was the distal right tibia. Dr. Ambrister observed and recorded gross deformity of the left lower extremity, deformity and swelling about the distal right leg, and pain and deformity of the right leg near the ankle. It was necessary to de-bride, that is, remove all non-living tissue from the compound wounds of the left tibia, and perform a relaxing incision to reduce the undue tension of the skin brought about by the swelling. The fracture was then reduced and immobilized by means of traction. A long leg cast was applied to the right extremity after it had been reduced by closed reduction manipulations. Dr. Ambrister continued treating the patient until August 3,1974, when he was transferred to the care of Dr. Drez at St. Patrick’s Hospital.

When Dr. Drez first examined the patient on the evening of August 3,1974, both lower extremities of the patient were encased in plastic casts. Dr. Drez continued observing the patient on a regular basis and during an examination on August 17, 1974, observed that the wound on the left leg was not properly healing. The bone which had previously been covered by some granulated tissue was open to the air. Dr. Drez was afraid to do any skin grafting at that time because the wound was still “angry looking”.

Eventually, on September 5, 1974, Dr. Drez was forced to do an involved skin grafting operation known as a rotational flap in an attempt to get some form of skin coverage over the open wound. Further skin grafting procedures were performed on September 7, 1974 and September 24, 1974. On September 28, 1974, the wound had improved to the point where Dr. Drez was able to discharge the patient, to be followed by regular office visits at intervals of approximately a week to ten days.

Around October of 1974, Dr. Drez felt that the skin coverage over the wound had improved to the point where he was able to do something more to get the bone to heal. At that time, he placed the patient in a patilla tendon bearing cast, which is a short leg cast that is placed on persons with a fractured tibia to help stimulate bone healing. The short cast enables the patient to begin placing weight on the fractured bone which stimulates circulation and thus helps the bone to heal.

On January 2,1975, Dr. Drez had the cast removed and the left leg x-rayed, which revealed no evidence that the bone was starting to heal. Then, in February of 1975, when the bone still showed no signs of healing, Dr. Drez discussed with Bill Bevil and his father the necessity of performing a bone graft and placing a metal plate over the fractured area. This procedure was performed on June 3, 1975, and the leg was placed in a cast following the operation. Finally, on July 22,1975, Dr. Drez felt that the fracture had healed sufficiently to allow removal of the cast and placement of the patient in a leg brace.

The patient had been in plaster casts for so long that he had developed a tight heel cord. He was also developing pain in his ankle due to the tightness of the cast and the immobilization of the extremity for so long. The patient was advised by Dr. Drez to walk as much as possible to stretch out the heel cord and to get the joints moving. On September 25, 1975, the patient was fitted with a %ths inch heel lift in an attempt to alleviate developing back pain that resulted from the shortness of his left extremity.

X-rays taken in December of 1975 revealed to Dr. Drez that the fracture was satisfactorily healed. At that time, the leg brace was removed and the patient was encouraged to walk and use his extremity, but was directed not to run or put significant stress on the left leg. The patient was again examined by Dr. Drex in May of 1976 where it was observed that the left leg was four centimeters or almost two inches shorter than his right leg. At that time, Dr. Drez discussed with the patient the possibility of again operating on the leg in about a year to remove the metal plate, due to the risk of bone cancer caused by the carcinogenic tendencies resulting from metal next to bone.

At the trial in September of 1976, Dr. Drez’s general assessment of the youth’s condition was that he was recovering exceptionally well relative to the seriousness of his injuries, injuries which Dr. Drez classified as “very painful”. In his opinion, the youth had suffered a twenty-five to thirty-five percent permanent disability to his left leg, and a two or three percent permanent disability to his right leg. It was Dr. Drez’s opinion that these disabilities would impair Bevil’s employment opportunities for any job requiring normal physical agility. As mentioned above, Dr. Drez felt that it might be necessary for the patient to undergo surgery in the future to remove the metal plate from his left leg. He also felt that Bevil faced the future possibility of developing arthritis in his left leg.

Dr. Morin examined the youth on February 28, 1975, and his assessment of the patient’s injuries generally coincided with that of Dr. Drez’s. He testified at the trial, however, that he was unable to make a determination of the boy’s permanent disabilities because at the time he examined him, the treatment and recovery period was not final.

Dr. Ambrister again examined the patient, subsequent to his earlier primary care administered immediately after the accident, on March 9, 1976. This later examination confirmed the shortness of the left leg, marked scarring, wasting of muscle about the fracture site, a limp favoring the left leg, and limited dorsal flexion of the left ankle joint. Dr. Ambrister opined that Bill Bevil suffered a permanent twenty-five percent disability of his left foot, and a permanent shortening of his left leg.

The record reveals that prior to the accident of July 30, 1974, Bill Bevil led the life of a typical teenager for the community in which he lived. That summer, Bevil was between the tenth and eleventh grades at DeQuincy High School, and was an average student with about a “C” grade point average. Subsequent to the accident, Bevil’s life-style was drastically changed as could be expected for someone who had to undergo the extensive medical treatment he experienced as outlined above. The youth was able to finish high school with his class, but only through the aid of home tutoring and other special accommodations.

On the basis of the above evidence, we feel that the jury abused its much discretion by awarding only $10,000.00 to Bill Bevil for general damages.

Counsel for defendants strongly and ably urged that the jury properly considered the ability to respond in damages of Terry Leger, a young man of modest means with a wife and one child, and Heath Timber Company, a small family concern with little assets, in refusing to grant an excessively large award. Barrett v. State Farm Mutual Automobile Insurance Company, 236 So.2d 900 (La.App. 3rd Cir. 1970); Adams v. Ross, 300 So.2d 192 (La.App. 1st Cir. 1974); Rollins v. New York Fire and Marine Underwriters, Inc., 225 So.2d 663 (La.App. 3rd Cir. 1969).

It is our belief, however, even after giving due consideration to defendants’ ability or inability to pay, that it was within the jury’s much discretion, based on the evidence found in the record, to grant an award ranging from $20,000.00 at the lowest point to $50,000.00 at the highest point for general damages.

Therefore, for the reasons assigned, the judgment appealed from is amended by increasing the award made to plaintiff, Bill H. Bevil, for general damages, from $10,-000.00 to the sum of $20,000.00. In all other respects the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendants-appellees.

AMENDED AND AFFIRMED.


author: FORET, Judge.

text:
    Henry W. MYERS, Plaintiff-Appellee, v. SOUTHERN BUS SALES, INC., Defendant-Appellant.
    No. 6028.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    David A. Sheffield, Alexandria, for defendant-appellant.
    Charles J. Yeager, Alexandria, for plaintiff-appellee.
    Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

This is a suit for a reduction in the purchase price of a used school bus purchased by plaintiff from the defendant. The trial court rendered judgment in favor of the plaintiff in the amount of $574.11 (the cost of repairs), and defendant has appealed. We reverse.

The facts are that on November 18,1975, plaintiff purchased the school bus in question from the defendant. The vehicle was a Chevrolet, 1972 model, and at the time of sale the odometer showed that the vehicle had been driven 67,111 miles. Two days later the school bus was delivered to plaintiff. On that same day, but a few hours after delivery, Myers returned the purchased vehicle to Southern and complained of an oil leakage and of a possible defect in the brakes. An employee of defendant operated the school bus and noticed no trouble in the brake system; however, he did not dismantle the brake drums. Plaintiff picked up his vehicle on the same day.

Four days later Myers again returned the school bus to Southern and made complaint concerning the brakes. This time the lining edge of the brakes was inspected, and the motor vehicle remained two days within the shop of the defendant.

On December 3, for the third time, plaintiff returned the school bus to Southern and complained that there was something wrong with the brake system. Again defendant kept the bus in its shop for two days. Myers was told that defendant’s mechanic had removed the covers and the hubs, checked the brake shoes through the portholes, and concluded that the brake shoes had forty to fifty per cent of wear left.

During the second week of February, 1976, after Myers had operated his school bus some forty-five days, and driven it 4,500 miles during that said forty-five days, the school bus stopped on the highway as a result of the lockage of the brakes, and Myers was required to locate other means of transportation for the school children who were in the bus at the time.

The record further reveals that during the some forty-five days in which plaintiff operated the school bus, he drove same for a total of approximately 4,500 miles, and that he made approximately ninety (90) starts and stops per day. At no time did the brakes fail until they locked during the second week in February, 1976. Further, the evidence reveals that for much of his school bus route, the plaintiff drove his bus on gravel roads which were wet much of the time because of winter weather. The evidence further reveals that such conditions are detrimental to, and can cause rapid deterioration of, brake shoes. ■

Plaintiff himself testified that he did not complain the brakes were not working, but rather that the “brakes did not feel right” (Tr., pg. 66), and that “it was operating fine than just for the soft brake pedal” (Tr., pg. 76). Myers finally agreed that he did not bring the bus back to Southern Bus Sales because he felt the guarantee had run out at the time the brakes failed (Tr., pg. 80).

The record reveals that the left rear brake shoes evidenced abnormal wear as a result of foreign material in the drums, and not as a result of mechanical failure. This abnormality is consistent with the theory of dirt and sand entering the left wheel and was further evidenced by the buildup of dirt, sand, and gravel found on the left rear wheel in examining Myers’ bus prior to trial.

Defendant contends that the trial court committed manifest errors:

1. In finding that a redhibitory defect in the brakes of the school bus existed at the time of the sale; and
2. In finding that no limited (thirty-day) guarantee existed as between Myers and Southern.

ISSUE OF A REDHIBITORY DEFECT

LSA-C.C. Art. 2520 provides as follows: “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
LSA-C.C. Art. 2541 provides as follows: “Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”

Plaintiff herein has not sought a rescission of the sale under the provisions of C.C. Art. 2520, but rather a reduction in the purchase price under LSA-C.C. Art. 2541.

Plaintiff has the burden of proof to establish that the alleged vice existed before the sale was made to him. In Langlinais v. Soileau, 58 So.2d 274 (La.App. 1 Cir. 1952), is found the following language:

“A buyer relying upon the redhibitory action must bear the burden of proof to establish the vice existed before the sale was made to him. Schexnayder v. Stansbury, La.App., 45 So.2d 545; Chas. A. Kaufman Co. v. Gillman, La.App., 142 So. 159; Womack v. Lafayette Furniture Co., Inc., La.App., 50 So.2d 843. These cases show Civil Code Article 2530 expressly places the burden of proof on the buyer, and the same rule applies even though a reduction of price is sought rather than a complete rescission of sale.”

In Guillory v. Morein Motor Company, Inc., 322 So.2d 375 (La.App. 3 Cir., 1975), we stated as follows:

“While we agree with the trial judge that the same warranties of fitness do not apply to old and new cars alike, the thing sold must still be fit for its intended purpose. The purpose for which one purchases an automobile is that of transportation, be it a used or new vehicle.”

In Guillory the automobile purchased had over 95,000 miles on it at the time of purchase. The evidence showed that it broke down four times within the first month of ownership. In the instant case, while plaintiff did complain to defendant about something not right about the brakes, and this complaint was made within the three-day period contemplated under LSA-C.C. Art. 2530, nevertheless the bus continued to function for the purposes intended for a period of some eighty (80) days after the sale. In fact, the bus was used for approximately 4,500 miles with no trouble or difficulty except that the brakes felt “soft”. Nevertheless, plaintiff was able to stop the bus approximately 90 times per day for a period of about forty-five (45) days. We cannot say that the brakes were so defective, assuming arguendo that a defect did exist at the time of sale, that plaintiff would not have purchased same had he known of the defect, or its use was so inconvenient and imperfect that it must be supposed that plaintiff would not have purchased it had he known of the vice.

In our opinion, while the brakes may not have been perfect at the time of purchase, they were not so imperfect that the provisions of Articles 2520 or 2541 could be brought into play, and that we must suppose that the buyer would not have purchased the bus had he known of such imperfection.

For the various facts mentioned in our summary of the evidence hereinabove set forth, we find that the defendant has effectively rebutted the presumption of any mechanical defect existing at the time of the sale. Further, defendant has convincingly shown that the bus and its brakes were in reasonably sound operating condition at the time of the sale, and that the brake stoppage in the early part of February, some eighty days after the sale, was due to abnormal wear and tear and continued usage of the bus under adverse conditions (wet gravel roads, etc.) such as to culminate in wearage of the brake shoes to a point where they were no longer functionable.

We are of the opinion that to hold otherwise would place an almost impossible obligation upon the sellers of used cars and trucks, and this we are not willing to do under the particular facts presented in the case at bar. It should be observed that plaintiff herein trusted the safety of the brakes on his bus to such an extent that he did not discontinue transporting forty-four school children back and forth to school for a period of some forty-five days prior to the brake failure. We cannot help but conclude that had the plaintiff believed the brakes to be so defective as to be dangerous, he would have discontinued the transportation of these school children under such circumstances.

Having found that no redhibitory defect existed at the time of the sale, and having found that the final wearing down of the brake shoes was due to conditions other than a mechanical defect or failure, we need not address ourselves as to whether or not a limited warranty of no more than thirty days existed by agreement between plaintiff and defendant.

For the foregoing reasons, we conclude that the trial court committed manifest error in finding that a redhibitory defect existed at the time of the sale, and accordingly, we reverse the trial court and render judgment in favor of defendant, Southern Bus Sales, dismissing plaintiff’s suit.

All costs of this appeal are to be assessed against the plaintiff-appellee, Henry W. Myers.

REVERSED AND RENDERED.

      . LSA-C.C. Art. 2530 provides that: “The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appear-anee within three days immediately following the sale, it is presumed to have existed before the sale.”