author: SWIFT, Judge. STOKER, Judge,

text:
    Louis PRINCE, Plaintiff-Appellant, v. Dianne JACOBS, et al., Defendants-Appellees.
    No. 8233.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Michael Harson and Kenneth W. Cole, Lafayette, for plaintiff-appellant.
    McBride & Brewster, Norman P. Foret, Lafayette, for defendant-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   SWIFT, Judge.

On December 22, 1978, a vehicle owned by Dianne Barras Jacobs and driven by her sixteen year old minor son, Milton T. Jacobs, collided with the rear of Louis Prince’s automobile.

Prince sued Milton T. Jacobs, Dianne Jacobs and State Farm Mutual Automobile Insurance Company (State Farm), for damages. Mrs. Jacobs died before the trial and her brother, Michael A. Barras, was appointed executor of her succession and substituted as a defendant. An attorney was appointed to represent the minor.

In accordance with a stipulation of counsel the question of liability was submitted to the trial judge for decision and the amount of plaintiff’s damages was determined by an eight person jury. The judge ruled in favor of the plaintiff on liability issue. The jury rendered a verdict of $66,-000.00 as the damages sustained by plaintiff over and above his property damages. The amount of the latter was stipulated.

Both plaintiff and defendant were covered by insurance policies issued by State Farm. Prior to trial State Farm paid plaintiff $25,000.00 as its maximum bodily injury liability limit under the policy issued to Dianne Jacobs, $1,083.00 for the agreed property damages, legal interest on the two sums and the court costs then incurred. After these payments were made the trial judge dismissed State Farm from the suit as the liability insurer of the Jacobs, reserving plaintiff’s rights under the policy issued to him.

State Farm paid Prince, $5,000.00 under his policy as the maximum medical payments coverage per person. This policy also contained uninsured-underinsured motorist coverage with a limit of $50,000.00 for each person.

As the jury award of $66,000.00 was less than the insurer’s total bodily injury liability limit of $75,000.00 under both policies, the trial judge, citing Roberie v. State Farm Mutual Automobile Insurance Company, 291 So.2d 923 (La.App. 3 Cir. 1974), writ refused, 294 So.2d 830 (La.1974), and Taylor v. State Farm Mutual Automobile Insurance Company, 237 So.2d 690 (La.App. 4 Cir. 1970), credited State Farm with the $5,000.00 it paid plaintiff under the medical payments provisions of his policy. State Farm was also credited on the total $66,-000.00 award with the $25,000.00 it paid to plaintiff under the Jacobs’ policy.

The plaintiff has appealed the judgment of the trial court, alleging three specifications of error.

The first is that the jury abused its discretion when it awarded plaintiff, a machinist, only $66,000.00 for general and special damages, because the evidence reflects that plaintiff’s special damages of medical expenses and lost wages exceeded this amount.

We do not agree.

Only one treating physician testified at trial. Dr. Robert Rivet, a neurosurgeon, said that he first saw the plaintiff for complaints from this accident on February 7, 1979. Prince had received conservative treatment from another doctor before seeing Dr. Rivet. This included pain medication, muscle relaxants and heat treatments, but they afforded plaintiff no relief. Prince complained to Dr. Rivet of pain in the neck and discomfort in the left shoulder and left upper extremities. The doctor determined that plaintiff had a spasm or a tightness of the left neck muscle which indicated an injury to the neck.

No fractures or malalignment of the cervical vertebrae were noted in the x-rays. However, a myelogram was performed and Dr. Rivet decided that Prince had multiple abnormalities at four disc spaces. More therapy was performed, again with no benefit.

On March 1, 1979, Dr. Rivet performed surgery on Prince, an antereocerv-ical inter-body fusion, involving C 5-6 and C 6-7. He was discharged from the hospital ten days later. Thereafter, the doctor saw plaintiff periodically in 1979 and into 1980. One month prior to trial on April 17 and 18, 1980, Dr. Rivet suggested additional surgery which Prince declined. The physician testified that if Prince had the additional surgery he would be disabled by 15%. Otherwise, he would continue to suffer a 20% disability. Without another operation the doctor did not think plaintiff could resume his employment which involved some heavy activity. With successful surgery he thought that within six to eight months Prince could do any type of work that did not require heavy lifting or peculiar body positions.

The cost of the first operation and plaintiff’s other medical expenses amounted to $8,095.51. The estimated cost of a second operation with doctor’s fees and rehabilitation expenses was between $5,000.00 and $8,000.00. Thus, the evidence indicates past and future medical expenses of approximately $13,000.00 to $16,000.00 if the second operation is performed.

Dr. Rivet further testified he had treated Prince in 1969 after a 1968 automobile accident for injuries similar to those for which he was seen in 1979 and 1980 following the subject accident. There was a narrowing of his C 5-6 interspace then with a degenerative arthritis process going on in his neck that the plaintiff had managed to live with up to the 1978 accident. Thus, the jury was faced with the issue of whether or not all of Prince’s symptoms and the medical expense claimed were caused by the subject accident.

As for the plaintiff’s claim for lost wages, his income tax returns reflect that while he was employed as a machinist with LOR, Incorporated, his maximum annual income was $21,241.00 which he earned in 1978. For the five year period before the accident his average annual income was approximately $15,500.00. Although Prince did not work for the sixteen months between the accident and the trial, the jury had to decide if and when he was to resume gainful employment and how long he might continue therein with or without the second operation.

Pursuant to a stipulation the jury was instructed by the court to determine the total amount of the plaintiff’s damages, exclusive of property damages, without regard to the prior payments. Presumably, it did so in spite of being given the insurance policies involved for examination. While the total award for both general and special damages for the plaintiff’s neck injuries may seem low, we are unable to say that it constituted an abuse of the much discretion accorded the trier of fact in determining quantum. La.C.C. Art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Appellant’s second specification, somewhat related to the first, is that the trial judge erred in instructing the jury concerning the law applicable to the amount payable under the UM coverage of the policy issued to Mr. Prince. He contends that the jury apparently fell into error in an attempt to determine this amount in its consideration of the ability of the two Jacobs to pay an award and as a consequence the verdict is much less than it should have been.

We, of course, cannot speculate as to just how the jury arrived at the amount of plaintiff’s damages. Nor is it necessary for us to determine whether the trial judge erred in this regard, because the record does not show that counsel for appellant entered any objection to the jury charge or to the procedure that was followed. A party may not complain of an erroneous jury instruction or of the failure to give an instruction without his having entered in the record an objection in this respect and his grounds therefor. La.Code of Civil Procedure Article 1793, Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3 Cir. 1975), writ denied, 321 So.2d 363 (La.1975); Helaire v. Liberty Mutual Insurance Company, 397 So.2d 8 (La.App. 3 Cir. 1981).

We were informed by counsel for both parties at oral argument that appellant’s third specification of error is now moot. Although the judgment awarded plaintiff interest on the award from an incorrect date, the defendant properly paid the interest from the correct date of judicial demand.

For the foregoing reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

STOKER, Judge,

dissenting in part.

I agree with the majority opinion in this case in all respects except for the affirmance of the jury award of $66,000.00 in damages to the plaintiff. In my opinion the amount awarded is inadequate to cover all of plaintiff’s damages and the jury abused its discretion in that regard. Following the guidelines and tests laid down in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and Reck v. Stevens, 373 So.2d 498 (La.1979) it is my opinion that the judgment of the trial court should be amended in part to award at least $90,-000.00 which I regard as the least amount the jury might properly have awarded.


source: Caselaw Access Project

author: JIM GARRISON, Judge.

license: Public Domain

text:
    Geraldine N. CARTER v. BERGERON PLYMOUTH-CHRYSLER, INC., Chrysler Credit Corporation and Chrysler Corporation.
    No. 11709.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 1981.
    Rehearing Denied July 13, 1981.

      Fitzpatrick, Fitzpatrick & McMillan, Walter R. Fitzpatrick, Charles W. Fasterling, New Orleans, for plaintiff-appellant.
    Roger B. Jacobs, New Orleans, for defendant-appellee.
    Levy, Smith & Gennusa, Thomas A. Gen-nusa, II, Adolph J. Levy, New Orleans, for defendant-third-party defendant-appellee.
    McGlinchey, Stafford & Mintz, Wayne J. Fontana, New Orleans, for defendant-third-party defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   JIM GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s action in redhibition to rescind the sale of a 1976 Plymouth Volare that she purchased from the defendant, Bergeron-Chrysler, Inc. The case was referred to a commissioner and the commissioner’s findings were adopted by the trial court. The trial court rendered judgment accordingly. From that judgment, which we affirm, plaintiff appeals.

On appeal, plaintiff seeks to relitigate the facts of her case. She does not specify an error of law, but rather recites the facts and testimony from below. The plaintiff’s major complaint is that the car loses engine power when passing or accelerating on inclines. Upon our independent review of the evidence and testimony presented we cannot conclude that the trier of fact was manifestly erroneous in his factual determinations under Canter v. Koehring Co., 283 So.2d 716 (1973), and Arceneaux v. Domingue, 365 So.2d 1330 (1978). The commissioner concluded, as does this court, that the alleged major defect, a loss of engine power which made passing and acceleration on inclines difficult, was the result not of a “defect” but rather of plaintiff’s choice in purchasing a 6-cylinder motor instead of an 8-cylinder motor. The difference between the capacities of 6-cylinder motor and an 8-cylinder motor were explained to plaintiff prior to purchase and she chose a 6-cylinder motor vehicle.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    SWANCO BROADCASTING, INC. d/b/a FM Radio Station WBYU v. RED JANITORIAL SERVICE COMPANY, INC.
    No. 12022.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 1981.
    Rehearing Denied July 13, 1981.

      Jones, Walker, Waechter, Protevent, Carrere, & Denegre, Ashton R. Hardy, Madeleine Fischer, New Orleans, for plaintiff-appellant.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittman, Kay W. Eagan, New Orleans, amicus curiae brief for Greater New Orleans Association of Broadcasters and Louisiana Association of Broadcasters.
    DeVan D. Daggett, Baton Rouge, for defendant-appellee.
    Before GARRISON, CHEHARDY and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing the suit of SWAN-CO Broadcasting, Inc. d/b/a WBYU-FM (hereinafter “BYU”) against Red Janitorial Service Co. Inc. (hereinafter “Red”) to collect a past-due bill in the amount of $1,003.85. From that judgment, which we reverse, BYU appeals.

BYU’s sales agent solicited Red’s general sales manager for the purpose of selling radio time. Red’s sales manager told BYU to see Ann Klein. That same day, Klein telephoned BYU and ordered several radio spots. Klein’s final bill, which was paid by Red, included the cost of the BYU time. Klein failed to pay BYU and BYU sued Red. BYU’s suit was brought as a suit on an open account.

At trial, BYU argued that Klein was the agent of Red, against whom they should be allowed to collect. They also argued that in the absence of a written contract of agency, they should be allowed to rely upon Klein’s authority. Red argued that because they did not pay her a fee for her services, but rather her payment consisted of a 15% commission or “agency discount” from BYU, she was the agent of the radio station. The evidence further indicated that it is customary in the advertising industry to offer “agency discounts” as a means of encouraging the public to use the services of an ad agency and to relieve the advertising medium of internal production and administrative costs which are assumed by the agency. Defendant’s advertising expert further testified that agency discounts do not imply contracts of employment or agency. The trial court’s judgment is primarily anchored in the “concept” that the agency discount is an improper business practice. The legality of an agency discount was not an issue before the trial court and we find that the trial judge was manifestly erroneous in resolving the case on this point.

At trial, Red’s general sales agent testified that he directed BYU to Ann Klein. This holding out of Klein as Red’s agent by Red is sufficient to bind Red as principal and protect good faith third parties dealing with Red’s agent upon Red’s instructions.

Because BYU has complied with all provisions of R.S. 9:2781, it is entitled to reasonable attorney’s fees.

For the reasons discussed, the judgment of the district court is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff SWANCO BROADCASTING, INC. d/b/a FM RADIO STATION WBYU and against the defendant, RED JANITORIAL SERVICE CO., INC. in the amount of ONE THOUSAND THREE AND 85/100 ($1,003.85) DOLLARS, plus legal interest from the date of judicial demand until paid, plus all costs and attorney’s fees in the amount of 25% of the principal and interest.

REVERSED AND RENDERED.

      . Red had also contracted directly with BYU to buy additional time but Red paid BYU and that transaction is not at issue.


author: BARRY, Judge. SCHOTT, Judge,

text:
    TAURUS LEASING CORPORATION v. Bianca I. Nelke, wife of and Frank M. CHALAIRE, M.D.
    No. 11655.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.
    Francis J. Demarest, Jr., New Orleans, for plaintiff-appellee. •
    Jerald N. Andry and Gilbert V. Andry, III, Edwin R. Fleischmann, Jr., New Orleans, for defendants-appellants.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   BARRY, Judge.

Dr. and Mrs. Frank M. Chalaire appeal from a judgment dismissing their suit to annul a Sheriff’s sale by executory process on an exception of no cause of action filed by the mortgagee.

On November 27, 1974 Dr. Chalaire was the lessee in a sale/leaseback agreement with Taurus Leasing Corporation — the lease was secured by a five year $42,750.00 second mortgage signed by both appellants on their home. The Chalaires’ last monthly payment on January 15, 1979 made their mortgage paid through October 27, 1978. The mortgagors made no further payments and on July 25,1979 Taurus filed a petition for executory process alleging an unpaid balance of $8,550.00 and a writ of seizure and sale was issued.

The sheriff was unable to serve the defendants so Taurus filed a supplemental petition alleging the Chalaires could not be found and a curator ad hoc was appointed upon whom notice of demand and seizure was served. Defendants’ mortgaged property was duly advertised and sold on October 18,1979 for $81,025.00 by public auction to the highest bidder. Taurus’ claim including interest and fees amounted to $10,-482.34, defendants’ vendor’s lien and other expenses were deducted, leaving a balance of $52,146.84 which was subsequently paid to Dr. and Mrs. Chalaire.

On November 30, 1979 defendants filed an unverified Motion to Vacate Judgment alleging the executory proceedings were defective because Dr. Chalaire was on active duty with the United States Army prior to and at the time of the executory process, and that Taurus’ counsel was aware of Dr. Chalaire’s military status. Additionally, defendant’s Motion to Vacate included a charge of deficiency in the authentic evidence and procedural errors in the executo-ry process.

Taurus filed exceptions of no cause and no right of action. The district court maintained the exception of no cause of action and dismissed the Motion to Vacate without providing reasons for judgment.

Defendants’ appeal raises one issue and specification of error:

The district court erred manifestly in ruling that the Soldiers and Sailor’s Civil Relief Act does not provide a cause of action in Louisiana law.
Where a serviceman’s property is seized and sold without any notice to him, does the Soldiers and Sailor’s Civil Relief Act provide a cause of action and relief to him under Louisiana law?

Defendants argue and cite, and we agree, that the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C.A. App. § 501 et seq. has been adopted and followed in Louisiana. Pailet v. Ald, Inc., 194 So.2d 420 (La.App. 4th Cir. 1967). Defendants interpreted the trial court’s dismissal of their Motion to Vacate as meaning that the Act does not provide a cause of action in Louisiana. We interpret the trial court’s decision as meaning that the defendants simply failed to state a cause of action under the Act because Taurus did what it was required to do, i. e., petition the court for appointment of a curator to represent the absent defendants. Section 520(1) of the Act provides:

If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment.

The appointment of a curator was the proper means to effect service on the two absentee mortgagors and meets the requirements of the Act which are designed to protect members of the military. A creditor cannot be expected to file a nonmilitary affidavit if the status of the debtor is unknown. The creditor’s alternative is to have a curator appointed to receive notice of demand and any other pleadings.

We fail to find any evidence in the record which shows that Taurus or its counsel had knowledge of Dr. Chalaire’s military status. Counsel for Taurus executed a sworn affidavit that to the best of his knowledge, information and belief the address and location of the defendants were unknown necessitating appointment of an attorney upon whom notice of demand and seizure was effected. There is no claim that Mrs. Chalaire, the co-defendant and co-mortgagor, was in the military.

Section 520(4) of the Act provides for setting aside a judgment against a person in the military service “provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof”. Defendants’ argue that they had legal defenses which could have been available, but we fail to find any meritorious evidence or any proof to contradict the fact that Dr. Chalaire defaulted on the mortgage and that both defendants owed the balance sued upon.

We feel that LSA-R.S. 13:4112 is applicable:

No action may be instituted to set aside or annul the judicial sale of immovable property by executory process by reason of any objection to form or procedure in the executory proceedings, or by reason of the lack of authentic evidence to support the order and seizure, where the sheriff executing the foreclosure has either filed the proeés-verbal of the sale or filed the sale for recordation in the conveyance records of the parish.

If there are substantive defects in the executory proceedings the sale may be attacked as a nullity even though the debt- or failed to exercise his right to take a suspensive appeal or enjoin the sale providing the creditor is the adjudicatee at the sale. Brown v. Everding, 357 So.2d 1243 (La.App.2nd Cir. 1978). However, here the sheriff’s proeés-verbal of the sale shows the “... last and highest bidder for the account of Vivian Dougherty, wife of/and Alvin C. Huber ...” as the adjudicatees of the auctioned property. This is obviously an effort to prevent fraud and makes an exception where a disinterested third party is the buyer, as in this case.

We are cognizant the Act was passed in 1940 and the intent was to protect members of the military who are interested in foreclosure sales of mortgaged property, but the Act also provides relief to mortgagees who could suffer financial loss if compelled to wait until military service is terminated before exercising appropriate legal remedies. The Act is not intended to grant immunity to a mortgagor from liability, but rather to establish safeguards to protect members of the military during their absence.

For the foregoing reasons the judgment of the District Court is affirmed with appellants to pay all costs.

AFFIRMED.

SCHOTT, Judge,

concurring:

This is an appeal from a judgment sustaining an exception of no cause of action. In order to test the validity of the judgment we must determine if appellants are entitled as a matter of law to the relief which they sought considering only the allegations of their petition and accepting them as true.

Appellants’ cause of action is based upon Sec. 520 of the Soldiers’ and Sailors’ Civil Relief Act. They allege that their property was seized in the executory proceedings instituted by Taurus and that it was sold to Mr. and Mrs. Alvin C. Huber at the sheriff’s sale. They pray that the “judgment” be vacated, the sale of the property cancelled and “clear title to the property” be reinstated to them.

Section 520(4) of the Act provides that vacating any judgment because of the provisions of the Act “shall not impair any right or title acquired by any bona fide purchaser for value under such judgment.” In an attempt to circumscribe this provision appellants alleged in their motion to vacate that “[p]rior to the consummation of the sale, Mr. and Mrs. Huber were placed on notice, both verbally and in writing, that the aforesaid judgment was under attack, and that a Notice of Lis Pendens had been filed.”

Accepting this allegation as true for purposes of this opinion I do not believe that it is sufficient to remove the Hubers from the class of bona fide purchasers for value. Yerbal and oral warnings to prospective third party purchasers at public auctions could hardly be sufficient to place those purchasers in bad faith if they disregard such warnings. As far as the alleged notice of lis pendens is concerned unless that notice was recorded or registered in the public records it has no bearing or effect on third parties.

While we do not ordinarily look beyond the four corners of the petition in deciding the merits of an exception of no cause of action, appellants in this case did incorporate by reference in their petition all of the proceedings leading up to the sheriff’s sale. The copies of certificates ordered by the sheriff do not disclose any notice of lis pendens filed by appellants.

In addition, an examination of the entire record in this case shows that appellants are not in a position to have the sheriff’s sale set aside because they have acquiesced in those proceedings. The record shows that the judgment appealed from was signed on January 11, 1980, but in the meantime on January 7 appellants had filed a motion to compel the sheriff to turn over to them the $52,000 remaining in his hands after the mortgages and the cost of the sale were paid out of the $81,000 for which the house was sold. In that motion appellants recited that they “desire and are entitled to have this balance released to them...” A week after the judgment appealed from was signed the court signed a judgment in favor of appellants, ordering the sheriff to turn over to appellants this sum of $52,000.

C.C.P. Art. 2085 prohibits an appeal by a party who voluntarily and unconditionally acquiesces in a judgment rendered against him. Appellants are appealing from a judgment denying them the right to seek a rescission of the sheriff’s sale in a case where the purchasers paid the price and appellants not only accepted that price but indeed demanded the delivery of the price to them.

Summing up, I believe that the provisions of the Soldiers’ and Sailors’ Civil Relief Act specifically prevent appellants from asserting the claim that they have since the property has been sold to bona fide purchasers at the sheriff’s sale, and even if there was any merit to appellants’ claim they have lost their right to appeal from the adverse judgment because of their acquiescence in that judgment by insisting that the sheriff turn over the proceeds to them and by their acceptance of those proceeds.


author: SAMUEL, Judge.

text:
    FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS v. Juanda L. WASHINGTON.
    No. 11766.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, R. Patrick Vance, New Orleans, for plaintiff-appellant.
    Before SAMUEL, KLIEBERT and McBRIDE, III, JJ.
   SAMUEL, Judge.

Plaintiff appeals from a judgment granting a preliminary injunction which orders defendant “to return all items she took from” her husband’s safe deposit box in the plaintiff bank, and enjoins her from “alienating or otherwise disposing of all items taken from” that box.

Appellant contends the preliminary injunction should describe with particularity those items to be returned and that injunction is too general and thus does not conform to Code of Civil Procedure Article 3605.

The suit arose as a result of plaintiff’s action in permitting the defendant to enter two safe deposit boxes, one of which she had authority to enter (along with her husband), and the other (# 250), which was registered only in her husband’s name and which she had no authority to enter. She had secured the key to his box by taking it from his wallet.

The only evidence regarding the contents of the husband’s box and what was removed therefrom is the testimony of defendant and her husband. According to defendant’s testimony, she removed from her husband’s box only some insurance policies, pictures, a birth certificate, a profit sharing certificate, and other items not in contest here. She saw no money or jewelry in the box; and all of the items she removed were her personal property. According to the husband, $25,000 in cash, jewelry valued at $20,000 and shares of A.T. & T. and other stock, and other items, all of which were his separate property, were missing from his box after the plaintiff had entered therein.

In compliance with the court order, defendant returned those items which she admits to have taken. However, plaintiff claims defendant has not complied because she has not returned all of the items her husband states were in the box.

It is appellant’s position that the matter involves the credibility of witnesses and, since the bank has no way of verifying the husband’s alleged loss, the trial court was required to render a judgment describing in reasonable detail exactly what items the defendant was required to return to the plaintiff.

Code of Civil Procedure Article 3605 provides:

“An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.”

We agree that the preliminary injunction does not satisfy the pertinent “describe in reasonable detail” provision of Article 3605. But it was incumbent upon the plaintiff to present at least a prima facie case justifying issuance of the preliminary injunction.

In view of the diametrically conflicting testimony of the only two witnesses who testified on the subject (which testimony, as we have said, is the only evidence on the subject), the trial judge found that without further evidence he was unable to determine whether the defendant in fact had removed any items other than those she admitted removing and subsequently returned. We agree with this finding, especially in view of other testimony by the husband which casts some doubt on the likelihood of this possessing the $25,000 in cash, $20,000 in jewelry, and stock he claims were in the bank box. Accordingly, we find, as also did the trial judge, that plaintiff has failed to present evidence sufficient to justify the issuance of a preliminary injunction ordering the defendant to return those and other items.

Finally, we note defendant had not appealed or answered plaintiff’s appeal, and indeed has made no appearance in this court. Consequently, we must affirm the judgment of which plaintiff complains.

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

AFFIRMED.

      . It admits its obligation to protect the depositary’s property and acknowledges the wife had no authority to enter the box in suit.

      . See General Motors A.C. v. Daniels, La., 377 So.2d 346, 348; Southwest Sales and Mfg. Co. v. Delta Exp., Inc., La.App., 342 So.2d 281, 284.


text:
    Ellis T. LABORDE v. EMPLOYERS LIFE INSURANCE COMPANY.
    No. 11793.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.

      Michael R. Holmes and Gerald Thos. La-borde, New Orleans, for plaintiff-appellee.
    Hammett, Leake & Hammett, Robert E. Leake, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

This is a suit for total disability benefits, penalties and attorney’s fees under an injury and sickness policy issued by plaintiff to defendant. Plaintiff alleges he was injured in an automobile accident on January 16, 1970. Following trial, judgment was rendered in favor of plaintiff for $200 per month for life from the date of the accident, reimbursement of premiums paid and judicial interest on all sums due from date of judicial demand. The claim for penalties and attorney’s fees was denied.

Defendant has appealed and plaintiff has appealed from that part of the judgment denying his claim for penalties and attorney’s fees.

The basic issue is whether plaintiff is totally disabled within the meaning of the policy as a result of the accident in suit. The policy provision pertinent to this issue reads as follows:

“Coverage A. Total Disability due to Injury: If injury sustained by the Insured results in total disability commencing within ninety days from the date of the accident .. . the Company will pay periodically, the Monthly Indemnity Benefit for each month throughout which such disability continues ... but for not longer than the period indicated in the Schedule under Maximum Indemnity Period .... If, due to injury a period of total disability ... commences ... more than ninety days after such injury ... such total disability shall ... be deemed to have been due to sickness.” (Emphasis ours).

The schedule of monthly benefits provides for $200 per month for total disability for injury for “Lifetime” and the maximum indemnity period for sickness is $200 per month for 24 months.

Under the clear unambiguous terms of the policy we conclude that unless the total disability commenced within 90 days from the date of the accident, the insurer is correct in treating the claim as deemed to have been due to sickness.

The trial court found plaintiff was totally disabled from May, 1970, but awarded benefits from the date of the accident. If, as found by the trial court, the total disability did not occur until May, 1970 (more than 90 days from the date of the accident), plaintiff’s claim is limited by the schedule to a maximum award of $200 per month for two years.

We note the policy definition of total disability differs depending upon the period of disability. Prior to the payment of benefits, plaintiff must be completely unable to perform every duty pertaining to his occupation.

However, after monthly indemnity benefits have been payable under the policy, Definitions (2) provides:

“... ‘total disability’ means the complete inability of the Insured to engage in any and every gainful occupation for which he is reasonably fitted by education, training or experience, due to such sickness or injury, provided that ‘total disability’ shall not exist for any purpose of this policy during any period in which the Insured is engaged in his or any other gainful occupation.’’

Plaintiff’s occupation prior to the accident was that of a journeyman carpenter. He performed rigorous duties, such as climbing and lifting heavy objects. Since the accident, plaintiff avers he has worked only as a foreman, directing others in those strenuous duties.

The medical evidence does not convince us that plaintiff was totally disabled within 90 days of the accident. His treating physicians until 1971 (including an orthopedic surgeon) diagnosed plaintiff’s back problems as referable to preexisting arthritis. All of the doctors, with the exception of Dr. Kenneth E. Vogel, who performed a lami-nectomy on plaintiff in March, 1971, failed to relate plaintiff’s problems to the accident. While Dr. Vogel stated plaintiff had a 20% disability of bodily function referable to the accident, and would be unable to do heavy lifting or climbing, he did not state plaintiff was unable to work in any capacity. In fact, Dr. Vogel advised plaintiff to return to work but to avoid lifting, pushing or pulling weights over 35-50 pounds.

Plaintiff had an exemplary work record following the accident. According to the report of Dr. George C. Battalora, Jr., plaintiff’s orthopedic specialist, plaintiff worked after January 16, 1970 until five weeks prior to July 8, 1970, was off until July 20, 1970 and then returned to work. In examinations by this physician on July 29, and August 26, 1970 the doctor approved of plaintiff’s continuing to work.

Plaintiff worked for Hugh O’Connor Construction Company from January 16 to June 11, 1970, for 843 hours, or an average of 40 hours per week. The work history furnished to defendant indicates from January, 1970 to January, 1971 plaintiff also worked at Fishman Construction Company for 304 hours, Fassulo Drugs 84V2 hours and Benning’s Construction Company.

Dr. Battalora’s report indicates plaintiff was able to resume his previous work on October 17, 1970. On the basis of that information, defendant treated plaintiff’s disability as a sickness claim [i. e., disability occurring more than 90 days after the accident] and on April 21,1971 paid that claim.

On June 21, 1971 plaintiff filed a further claim for neurosurgical consultation, with surgery in April, 1971 by Dr. Vogel. Defendant then paid benefits through April 29, and on July 9 paid benefits through May 29,1971. At that time Dr. Vogel felt plaintiff could return to light duty work.

In April, 1971 plaintiff received medical reports from Dr. Battalora indicating specific periods of disability from July 8, 1970 to July 21, 1970 and September 20, 1970 to October 17, 1970. There was further evidence of disability from March 20, 1971 to March 29, 1971. Dr. Vogel’s report of July 17, 1971 indicated plaintiff returned to work on May 19, 1971. As we have indicated, plaintiff was paid benefits through May 29, 1971.

The evidence is clear that plaintiff worked for extended periods on many jobs following the accident. He worked on construction at the Hilton Hotel, at the Dome garage, constructing Woolco Department Store, working for American Seating (again in the Dome), when he had a heart attack while employed by that company in 1974 and 1975. He is now totally unable to work since his heart attack.

Plaintiff’s tax returns for 1970-1977 (with the exception of 1971 which is not in evidence) clearly show he was gainfully employed. He listed his occupation as carpenter, except for the year 1977, when he described his occupation as construction supervisor.

Since we are not dealing with a tort or a workmen’s compensation claim, we are bound by the clear provisions of the policy. We find that plaintiff was not totally disabled within 90 days from the occurrence of the accident, nor was he totally disabled from engaging in any gainful occupation for which he was fitted. The position of a carpenter foreman may not have afforded plaintiff as much overtime as he received as a carpenter, but it is a position that he not only was capable of filling, but in fact did fill.

We also note that under the policy provisions plaintiff was not entitled to benefits during any period in which he was gainfully employed. We are of the opinion plaintiff was paid at least as much, if not more, than he was entitled to under the clear terms of the policy.

For the reasons assigned, the judgment appeal from is reversed and it is now ordered that there be judgment in favor of defendant, dismissing plaintiff’s suit at his cost in both courts.

REVERSED.

      . Subject to a credit for payments made.

      . Defendant has raised again in this court an exception of lack of notice and proof of loss denied by the trial court. The policy calls for notification within 20 days of the accident and defendant claims they were not notified of the accident until August 3, 1970, although a claim was made on or about March 1, on another matter [plaintiff has been beaten up by police]. We pretermit a lengthy discussion on this allegation because we prefer to base our opinion on other grounds, and because we do not find defendant was prejudiced by the notification delay. See Miller v. Marcantel, La.App., 221 So.2d 557; Kinchen v. Dixie Auto Ins. Co., La.App., 343 So.2d 263; Barnes v. Lumbermen’s Mutual Casualty Co., La.App., 308 So.2d 326.

      . It will be noted this provision distinguishes this case from Massengill v. Aetna Life Ins. Co., La.App., 394 So.2d 764. In Massengill the policy did not provide that total disability must commence within 90 days.

      . The policy also provides benefits of one-half the monthly benefit for partial disability for a period up to six months for injuries resulting from one accident, but plaintiff made no claim under this provision.

      . See Foret v. Aetna Life & Cas. Co., La.App., 337 So.2d 676, for a somewhat similar provision.


author: GULOTTA, Judge.

text:
    Cyrille Leonard SALVANT v. Thomas M. LOCKWOOD, et al.
    No. 11926.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.

      Adams & Reese, Mark C. Surprenant, Oscar L. Shoenfelt, III, Rebecca Bush, New Orleans, for defendant-appellee Herald Life Ins. Co.
    Albert L. Dart, New Orleans, for plaintiff-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the trial court’s judgment affirming the decision of the Board of Review of the Department of Employment Security. The Board of Review had upheld a determination by the Appeals Referee disqualifying Cyrille Leonard Sal-vant from receipt of unemployment compensation benefits for the reason that he had voluntarily resigned “without good cause connected with his employment” from his sales representative job with Herald Life Insurance Company.

According to Salvant, because he was compelled to pay his employer any shortages in collections in order to balance his account and was required to pay the employer four paychecks and an additional $222.00, he was being deprived of salary and wages. Salvant claims this requirement constituted good cause for his resignation entitling him to unemployment compensation benefits. We do not agree. Accordingly, we affirm.

At the time plaintiff commenced employment, approximately two years before his resignation, and during the time of that employment, he was aware that if his collection account were “short” he would be required to make payments to balance the account. In this connection plaintiff testified:

“MR. CRAYON: Did you understand at the beginning of your employment alright that at any time during the course of the training period that if your account was short that you would have to make the shortage good?
CLAIMANT: Yes, I understood that.”

Resignation by an employee for dissatisfaction with his compensation where no changes or increased burdens have been imposed by an employer during the course of his employment does not constitute “good cause” for leaving his employment which would entitle him to unemployment compensation benefits. See Morock Ford, Inc. v. Garsaud, 168 So.2d 345 (La.App. 3rd Cir. 1964); Perry v. Brown, 162 So.2d 444 (La.App. 3rd Cir. 1964). See also, Ellis v. Doyal, 330 So.2d 370 (La.App. 4th Cir. 1976) where we concluded that refusal by an employer to grant a wage increase did not furnish the employee with “good cause” to terminate his employment.

Under the circumstances, we find no error in this claimant’s disqualification from receipt of unemployment compensation benefits. The judgment is affirmed.

AFFIRMED.

      . LSA-R.S. 23:1601(1) reads as follows:
      “An individual shall be disqualified for benefits:
      (1) If the administrator finds that he has left his employment without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.”


author: CHEHARDY, Judge.

text:
    ROSCO, INC. v. The CONSOLIDATED SEWERAGE DISTRICT OF the CITY OF KENNER.
    No. 11931.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.
    Gordon K. Konrad, Metairie, for plaintiff-appellee.

      Vondenstein & Power, Michael J. Power, Kenner, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Defendant, The Consolidated Sewerage District, City of Kenner, suspensively appeals a district court decision in favor of plaintiff, Robco, Inc., enjoining the City of Kenner through its agents, employees, and all other persons, firms or corporations acting or claiming to act on its behalf from using any of the three sewerage lines which exist on the plaintiff’s property. The judgment also provided it was to take effect at 12 noon on June 9,1980 and that should the City of Kenner violate the injunction after that time, each 24-hour period during which any use of the said lines does occur shall constitute a separate violation of this injunction and the defendant shall be fined the sum of $500.

A review of the record reveals it was stipulated the plaintiff was in fact the owner of the property described in its petition and the surveys introduced in the record do correctly show the location of three sewer lines on the subject property. It was further stipulated that the defendant, City of Kenner, was at that time moving sewerage through all three of said sewerage lines, that the two lines shown on the survey on the northern portion of the property had been accepted by the City for maintenance and that the lines on the south side of the plaintiff’s property had not been accepted by the City of Kenner for maintenance but that the defendant was in fact moving sewerage and accepting sewerage moved through the said lines.

An additional stipulation was that the lines described and shown on the survey were installed and are in place without benefit of the defendant or anyone else having a servitude which would grant them the right to install said lines or maintain them at that location.

In giving his reasons for judgment from the bench, the trial court judge stated:

“All right, gentlemen, the Court has no alternative in connection with this matter. The property belongs to Robco, Inc. and has been since the beginning of this proceeding. When was this first filed, Mr. Konrad?
MR. KONRAD:
November 14, 1979.
THE COURT:
It has been six months and the City of Kenner has been aware of these proceedings that the Court prevailed on Mr. Roy as the president of Robco, Inc. to hold off any action in this matter to see if some type of agreement can be reached and the Court is aware of the facts in this matter and it feels that it did every thing it could to notify the City of Kenner the importance of this matter of law. The United States constitution does provide the right for a person to own his own property. It is one of the basic principles of the United States’s constitution and the City of Kenner has went into this property without any attempt to work out some type of agreement. I don’t mean no attempt by the attorneys but it has been six long months for the City of Kenner to take whatever action they could to work this thing out. Apparently, the City of Kenner has not done any thing in this matter. In the mind of the Court it is totally unjust of the taking of this property and accordingly I enjoin the City of Kenner of the use of these lines * * * »

Defendant’s first assignment of error is that the trial judge erred when he failed to grant a continuance. LSA-C.C.P. art. 1602 provides that a continuance shall be granted on peremptory grounds if at the time a case is to be tried, the party applying for the continuance shows he has been unable, with the exercise of due diligence, to obtain evidence material to his case or that a material witness has absented himself without contrivance of that party.

LSA-C.C.P. art. 1601 provides, however, that a continuance may be granted in any case if there is good ground therefor. It has also been held that under certain cir-eumstances where there was an inability to serve and cite a third party defendant, or to try the third party demand at the same time as the principal demand, the district court judge did not abuse his discretion in refusing to delay the progress of the principal demand. Commercial National Bank in Shreveport v. Calk, 207 So.2d 578 (La.App. 3d Cir.1968). In the present ease, because the relief sought by the plaintiff was solely injunctive, there was no abuse of discretion on the part of the district court judge in denying the continuance which the defendant alleged was sought by the third party defendant, Urban Redevelopments, Inc., and proceeding with trial of the main demand.

Defendant also argues on appeal that its exception of res judicata was improperly denied by the district court judge due to their allegation that in a suit entitled “Robco, Inc. versus Urban Redevelopments, Inc., et al,” bearing Docket No. 152-169 of the 24th Judicial District Court for the Parish of Jefferson, Robco sought the issuance of a preliminary writ of injunction restraining and enjoining the defendants (which included the City of Kenner) from entering upon, in any fashion, any of the plaintiff’s property described therein, which was denied. Certainly the denial of the request for a preliminary injunction does not preclude a judge from granting a permanent injunction after hearing all of the merits of a case. Since no final judgment had been rendered in the previously filed case at the time this case was heard in the district court, the exception of res judicata was properly overruled.

Neither can we find merit in the urging of the defendant that its exception of lis pendens was improperly overruled by the district court judge. A review of this previously referred to case, which was ongoing in another court at the time the present suit was filed, reveals relief was sought, among other demands, in the form of restraining the defendants in the case from “entering” the plaintiff’s property; whereas in the present case the plaintiff sought to prevent the defendant from moving sewerage through lines situated on his property, actions which would constitute continuing acts of trespassing if no rights to engage in these acts could be established. Since the issues in the two cases were not identical, the exception of lis pendens was properly overruled by the district court judge.

This court, moreover, can find no error in the district court’s granting of injunctive relief to the plaintiff in the present case. In the case of Moorhead v. State, Department of Highways, 322 So.2d 330 (La.App.2d Cir. 1975), the court established that injunctive relief was available to protect ownership, possession and enjoyment of immovable property, citing LSA-C.C.P. art. 3663, and the court affirmed the granting of a preliminary injunction against the Department of Highways, because the plaintiff had established a prima facie case in the trial court.

In the case of McGee v. Yazoo & M. V.R. Co., 206 La. 121, 19 So.2d 21 (1944), the court addressed the appropriateness of the granting of injunctive relief, although the plaintiff also sued for money damages, for a continuing nuisance and stated at 23:

“First. Defendant’s exception of no cause or right of action is based on the proposition that plaintiffs are not entitled to injunctive relief because having sued for monied judgments, plaintiffs thereby admit that the damage complained of is not irreparable, ‘but is clearly subject to be measured and established, and recovery could be granted (if there was liability) in dollars and cents.’
“The trial judge held that the position of defendant was not tenable, since the acts of which plaintiffs complain as constituting a nuisance are continuing acts; that if plaintiffs could not obtain an injunction to restrain such acts, their only remedy would be to file suits every year for the damage caused them by the wrongful and negligent acts committed by defendant during the previous year. We find no error in the ruling.
“In Froelicher v. Oswald Ironworks, 111 La. 705, 35 So. 821, 64 L.R.A. 228, the Court, in considering the question of a nuisance caused by noise and smoke not only condemned the defendant to pay damages, but also restrained the defendant from carrying on the work producing the noise and smoke.”

Lake, Inc. v. Louisiana Power & Light Company, 330 So.2d 914 (La.1976), held that a power line was a discontinuous apparent servitude. The court observed that the cumulative experience of the civil law is that only servitudes which are both continuous and apparent should be susceptible of acquisition by prescription. We interpret this to mean that a nonapparent servitude such as a sewer main is not susceptible of acquisition by prescription but must be acquired by title. The fact that the court in Lake, supra, made its ruling prospective only in its overruling of the “St. Julien doctrine” is irrelevant to this case due to the fact that in St. Julien v. Morgan’s L. & T. R. & S. S. Co., 39 La.Ann. 1063, 3 So. 280 (1887), it was held that where an owner had permitted a servitude to be imposed upon his land he was not permitted, under certain circumstances, to reclaim it free of the servitude, but he should be restricted to his right of compensation. In our present case, it has not been established that Robco ever permitted the trespass now being imposed by the defendant, rendering the St. Julien doctrine therefore inapplicable to the present case.

The City of Kenner’s citation of LSA-R.S. 19:14 is also irrelevant to the present case. Although this statute states that when the state or its political corporation or subdivision in good faith, believing it had authority to do so, takes possession of privately owned immovable property of another, such owner is not entitled to contest the taking but shall be entitled to bring an action for compensation. A review of the record does not reveal any facts put before the district court judge that would allow him to find “good faith” on the part of the defendant in the present case. Moreover, the instant case was filed on November 14, 1979 long after the June 7, 1977 judgment denying the City of Kenner’s request to be recognized as owner of the least part of the plaintiff’s property in No. 232-646 in the 24th Judicial District Court for the Parish of Jefferson, entitled City of Kenner v. Robco, Inc. In that case the district court judge also noted in his reasons for judgment that no statutory dedication was made, although the court declared there was no need for it to decide whether any common law dedication had ever taken place.

This court can only conclude, therefore, as did the district court judge, that the actions of the defendant, the City of Kenner, on the plaintiff’s property in absence of compliance with any specific expropriation procedure is not unjust taking of the property, and the granting of injunc-tive relief to the plaintiff was proper under the circumstances. This court, however, cannot agree with the district court’s setting of a fine for violation of the injunction in the amount of $500 for each 24-hour period during which any use of the said sewerage lines by the defendant does occur. LSA-R.S. 13:4611 grants trial courts the power to punish a party adjudged guilty of contempt of court for disobeying a permanent injunction by a fine of “not more than $500.” In the present case there were no allegations of specific damages made by the plaintiff nor was it even alleged by that party that the passage of sewerage through the lines existing on the plaintiff’s property was interfering with the use and enjoyment of the subject property or causing any inconvenience or problems whatsoever. Moreover, any fines paid by defendant for violation of the injunction would not enhance the plaintiff’s position in any way. This court can only conclude, therefore, that the setting of such a fine, at the maximum amount allowed by LSA-R.S. 13:4611, would only serve as an unfair burden on the taxpayers who would ultimately pay such a fine and was an abuse of discretion on the part of the district court judge. Therefore, in accordance with the provisions of LSA-C. C.P. art. 2164, which gives this court the power to render any judgment that is just, legal and proper upon the record on appeal, we reduce the penalty for each violation from $500 to $50.

For the reasons assigned, the district court judgment is amended in part and it is hereby ordered, adjudged and decreed that should The Consolidated Sewerage District, City of Kenner, violate the district court injunction, each 24-hour period during which any use of the said lines by the defendant does occur shall constitute a separate violation of that injunction and the defendant shall be fined the sum of $50 for each such violation. In all other respects, the trial court judgment is affirmed.

AMENDED IN PART; AFFIRMED IN PART.


text:
    Ame LEHN, Jr. v. CLEARVIEW DODGE SALES, INC., Chrysler Corporation and Chrysler Motors Corporation.
    No. 11932.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.

      Corey, Reed, Bethay & Kogos, Edward J. Lassus, Jr., New Orleans, for plaintiff-ap-pellee.
    Edwin A. Stoutz, Jr., New Orleans, for defendant-appellant Clearview Dodge Sales, Inc.
    Monroe & Lemann, Stephen B. Lemann, A. Justin Ourso, III, New Orleans, for defendant-appellee Champion Home Builders’ Co. •
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

This redhibitory suit by an owner of a new motor home is directed against Clear-view Dodge Sales Inc. (dealer), Champion Home Builders Company (manufacturer of the body of the home), and Chrysler Corporation (manufacturer of the cab and chassis of the vehicle.) Defendants third partied each other and Clearview filed a reconven-tional demand against plaintiff for storing the vehicle after it was returned to the dealer.

Judgment was rendered in favor of Ame Lehn, Jr. and against Clearview and Champion, in solido, for $6,000.00 and for $1,000.00 in attorney’s fees. In written reasons, the trial judge stated:

“The Court is convinced from the testimony that when plaintiff purchased and took possession of his mobile home in June, 1977 it contained defects that rendered it unusable for the purpose intended... . Plaintiff is entitled to at least a reduction of purchase price and damages, but the primary question of whether he is entitled to rescission must be first resolved. ...
The Court concludes from the testimony that the vehicle was defective at the time of its manufacture, and that Champion is responsible and liable in this area to the plaintiff for damages. The Court further concludes that Clearview Dodge was dilatory in effecting any repairs that it could and should have made while the vehicle was in its control and thus delayed the vehicle being sent to Champion for the ultimate repairs that were made. The Court feels that the plaintiff should be compensated by both the manufacturer and Clearview Dodge, in that both companies are equally responsible to plaintiff for his damages resulting in the loss of use of his vehicle, inconvenience and depreciation. The Court concludes that plaintiff should be compensated in the amount of $6,000.00.”

Citing LSA-C.C. Art. 2531, Clearview contends on appeal that as a good faith seller it is only bound to repair and can only be held liable for a reduction in the purchase price and expenses incidental to the sale. Accordingly, it argues that a vendor and a manufacturer cannot be held liable in solido for damages to the vendee. Clear-view further contends that the second paragraph of LSA-C.C. Art. 2531 entitles it as seller to full indemnity from Champion for manufacturing defects. Clearview finally contends that non-pecuniary damages for inconvenience and loss of use are not recoverable in an action to rescind the sale of a motor vehicle and that it is entitled to credit for storage fees on its reconventional demand.

In answer to Clearview’s appeal, Champion contends that since Clearview did not make timely repairs to the Lehn vehicle and failed to cure the easily remedied defects or inform Champion of the problems until four months after Lehn returned his vehicle, Champion is entitled to indemnity and/or contribution from Clearview for payment of the judgment in favor of Lehn.

BACKGROUND

Plaintiff purchased his Dodge Tuffy motor home from Clearview for $15,700.02 on June 22, 1977. At the time of purchase, Lehn noticed that a door molding was out, that a roll-up shade did not function properly, and that there was a small stain on paneling in the bathroom. According to plaintiff, he returned the vehicle to Clear-view twice for repairs during July, 1977 but the initial defects and other problems persisted.

Lehn experienced water leaks in the vehicle during rain on a trip to Mississippi in early September, 1977. In a letter of complaint to Clearview on September 7, he noted problems with rear window leaks, rear-side door leaks, improper wheel alignment, improperly adjusted headlights, a weather stripping problem on the door, the initial window shade problem on the door, gasoline tank leaks, water pouring in during rain, fading bathroom paneling, a problem with the power steering, improperly working propane and gasoline gauges, and the absence of owner’s manuals for the hot water heater and central heating system. Lehn returned the vehicle to Clearview on September 12.

Clifton G. Kitchens, Champion’s service manager, testified that his company had a course of dealing whereby Clearview, upon receiving a customer complaint, called Champion for a parts request and authorization for repair on the unit. According to Kitchens, Clearview called Champion on several occasions from September through December, 1977 and obtained authorization for repair or replacement of parts on Lehn’s vehicle.

After suit was filed in January, 1978, Champion picked up Lehn’s vehicle from Clearview in mid-January and drove it to Champion’s service center in Georgia. Based on Lehn’s list of defects in his letter of September 7, Champion inspected the vehicle and completely repaired and reconditioned it for the purpose of tendering it back to Lehn and settling the litigation, even though it considered some of the complaints unfounded. Kitchens resealed the entire roof of the vehicle, replaced the entire propane tank and gauge, and installed new carpet and paneling. In his opinion, the windows and the doors of the vehicle did not leak, but he found that the refrigerator roof vent had not been properly sealed at the time of manufacture, resulting in water leakage down the interior wall of the vehicle.

Champion returned the motor home to Clearview in mid-February, 1978. According to Clearview’s officials, they informed Lehn’s attorney that the vehicle had been completely repaired. Lehn’s attorney denied receiving any such call, however, and plaintiff stated that he did not talk to anyone at Clearview from September 12, 1977 until a deposition on April 4, 1979.

NATURE OF RECOVERY

The evidence clearly supports the trial judge’s conclusion that the motor home contained defects rendering it unusable for the purpose intended. The more difficult issue, however, is whether the $6,000.00 judgment in favor of plaintiff should be viewed as “damages” or as a reduction of the purchase price.

Plaintiff’s suit was to rescind the sale and recover damages for redhibitory defects. In a suit for redhibition the judge may decree a reduction of the price. LSA-C.C. Art. 2543. An action for reduction is subject to the same rules and limitations as the redhibitory action. LSA-C.C. Art. 2544.

In Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1974), writ denied, 303 So.2d 186 (La.1974), we held that a trial judge, in estimating the amount of reduction in price, properly considers not only the cost of repairs but also “the numerous problems, the frequent inconvenience associated with breakdowns and repairs of these problems, and the overall poor performance in relation to that expected.... ” See also, Bendana v. Mossy Motors, Inc., 347 So.2d 946 (La.App. 4th Cir. 1977).

In his written reasons, the trial judge stated that plaintiff was entitled “at least to a reduction of purchase price and damages”, but in compensating plaintiff in the amount of $6,000.00, the judge mentioned only “damages resulting in the loss of use of his vehicle, inconvenience and depreciation,” and did not refer to a price reduction. We are of the opinion that despite the trial judge’s use of the term “damages”, the $6,000.00 award is in essence a reduction of the purchase price rather than a damage award. In light of the Menville case, supra, it appears that loss of use, inconvenience and depreciation are factors considered by a judge in estimating the amount of the reduction.

Accordingly, because we conclude plaintiff’s judgment is in essence a reduction of the price, Clearview’s reliance on Meador v. Toyota of Jefferson, 332 So.2d 433 (La.1976) in support of its argument that non-pecuniary damages are not permissible in an action for a rescission of the sale of a motor vehicle has no application to our case.

SOLIDARY LIABILITY

We reject Clearview’s argument that it should not be held solidarily liable with Champion. Since the award in Lehn’s favor is in essence a reduction in the price rather than a damage award, Clearview can be held liable under LSA-C.C. Art. 2531, supra, for the reduction, even without a showing of bad faith under LSA-C.C. Art. 2545. Dealers and manufacturers have been held solidarily liable for restitution of the purchase price and repayment of the buyer’s expenses. Media Pro. Consult., Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972); Clark v. McBride Dodge, Inc., 289 So.2d 841 (La.App. 4th Cir. 1973). Similarly, judgment for a reduction in the purchase price of a motor vehicle has been rendered in solido against a manufacturer and a dealer for redhibitory defects. Huffman-Euro Motors v. Physical Therapy, Etc., 373 So.2d 565 (La.App. 3rd Cir. 1979).

INDEMNIFICATION

Both Clearview and Champion seek indemnification from each other.

By Act No. 673 of 1974, LSA-C.C. Art. 2531 was amended to afford a seller a right of action against the manufacturer of the thing for any loss sustained by the seller because of redhibitory defects in the thing sold. In Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir. 1978), we held, however, that a dealer “ought not recover loss caused by his own fault, at the expense of the manufacturer.” We stated:

“It is common knowledge that, for whatever reason, new car buyers sometime experience considerable difficulty in getting minor complaints remedied by the dealer. The resulting determination by the buyer to demand redhibition might be the dealer’s fault rather than the manufacturer’s. If the dealer’s failure to cure easily remediable defects—as he is presumably obliged towards the manufacturer to do—is the basis of a redhibition, it would be unjust to make the manufacturer accept return of the now-used car and pay to the dealer not merely the wholesale price it received but, much worse, the retail price of the car, including the dealer’s profit, plus attorney’s fees. The dealer ought not to recover loss caused by his own fault, at the expense of the manufacturer.”

In our case, the record supports the trial judge’s conclusion that Clearview was “dilatory” in repairing Lehn’s motor home despite his persistent complaints from the time of sale. Accepting Lehn’s testimony, he returned the vehicle to Clearview for repairs twice before demanding rescission on September 12, 1977. The vehicle remained in Clearview’s custody from September, 1977 through mid-January, 1978, when Champion took it back to Georgia for extensive repairs that were finally completed in February, 1978. Under these circumstances, even though the defects arose at the time of manufacture and are attributable to Champion, Clearview’s tardiness in repairing the vehicle and notifying Lehn of the progress of the repairs precludes Clear-view from receiving indemnification by Champion. We cannot say that the trial judge’s conclusion that Clearview is “equally responsible” with the manufacturer for a reduction of the price is erroneous. Clear-view is not entitled to indemnification.

By the same token, Clearview’s failure to remedy the defects in the Lehn vehicle does not exonerate Champion from liability or entitle the manufacturer to indemnification by the dealer. Manufacturing defects and delays in repair by both the dealer and the manufacturer caused Lehn’s problem. The failure by Clearview to notify Champion of those problems or to repair them timely does not excuse Champion from responsibility for the defects, where Champion took a month to repair the vehicle. Thus, Champion is not entitled to indemnification from Clearview.

ATTORNEY’S FEES

Although both defendants are solidarity liable for the $6,000.00 judgment, we conclude the trial court erred in holding Clearview liable with the manufacturer for plaintiff’s attorney’s fees. There is simply no showing in the record of Clearview’s bad faith or knowledge of the defects at the time of the sale. LSA-C.C. Art. 2545, supra, makes a seller liable for reasonable attorney’s fees if he “knows of the vice of the thing he sells and omits to declare it.” Although Champion as a manufacturer has a presumptive knowledge of those manufacturing defects, there is no showing that Clearview knew of them and failed to declare them to Lehn. Accordingly, only Champion, not Clearview, can be held liable for the judgment of $1,000.00 for attorney’s fees.

STORAGE FEES

We find no merit to Clearview’s claim for entitlement to storage fees for storing the motor home on its lot after Lehn returned it on September 12, 1977. Although Clearview’s service manager, Richard Brandhurst, testified that Clear-view leases its business premises and hires a guard to watch over the vehicles in the lot, and that a vehicle occupying space there prevents the service department from working on another vehicle, the fact remains that Clearview’s inability to repair the vehicle and remedy the defects ultimately caused Lehn to return it in exasperation and seek rescission. Under these circumstances, Clearview is not entitled to any set off against plaintiff for any storage costs incurred from September 12.

We are not persuaded to hold otherwise by Clearview’s reliance on Robertson v. Jimmy Walker Chrysler-Plymouth, 368 So.2d 747 (La.App. 3rd Cir. 1979), writ denied, 371 So.2d 833 and 371 So.2d 834 (La.1979), which allowed defendants a credit of $.08 per mile for each mile the defective vehicle had been driven by the plaintiff-purchaser. In Robertson, the purchaser clearly derived a benefit from use of the vehicle. In our case, however, Clearview’s storage of the defective vehicle conferred no such benefit on Lehn and it would be unfair to require him to pay storage fees resulting from Clearview’s failure to repair.

DECREE

Accordingly, that portion of the judgment casting Champion Home Builders Company and Clearview Dodge, in the sum of $1,000.00 for attorney’s fees is reversed and set aside. Judgment is now rendered in favor of plaintiff in the sum of $1,000.00 for attorney’s fees, but only against defendant, Champion Home Builders Company. In all other respects, the judgment is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

      . A judgment granting a “directed verdict” in favor of Chrysler was rendered at the conclusion of trial, dismissing the main and third party demands against Chrysler. This judgment of dismissal is final and Chrysler’s liability is not before us on appeal.

      . LSA-C.C. Art. 2531 provides:
      “Art. 2531. Liability of seller in good faith for restitution of price.
      Art. 2531. The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it. In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

      . Although Champion initially filed a devolu-tive appeal from the judgment in favor of plaintiff, it subsequently paid plaintiff the full amount of the judgment, reserving all rights, including those of indemnity and contribution, against Clearview.

      . According to Kitchens, Clearview called Champion on September 20, 1977 and obtained authorization for repair of the window shades for the rear door, damaged paneling in the bathroom and a rear-window seal. Champion’s shipping order at this time indicates these parts and owner’s papers for hot water heater and furnace were sent to Clearview.
      In another shipping order dated October 7, 1977, Clearview ordered from Champion a gold lavatory and some touch up paint for paneling. Another shipping order of November 21 indicates Champion again shipped two pieces of bath paneling for Lehn’s unit.
      In December, Clearview called Champion again because it still had not received the paneling for the Lehn vehicle. The shipment was traced however, and found to have been delivered to the body shop at Clearview rather than the service department.

      . LSA-C.C. Art. 2545 reads as follows:
      “Art. 2545. Liability of seller for concealment of vice.
      Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

      . Marsh v. Winnebago Industries, Inc., 394 So.2d 670 (La.App. 4th Cir. 1981).


text:
    Betty Jean LOKEY, wife of/and Ernest F. Lokey v. DIXIE BUICK, INC., and Holiday Rambler Corporation.
    No. 11975.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.

      Kronlage, Dittmann & Caswell, Charles A. Kronlage, Jr., New Orleans, for plaintiffs-appellees.
    John David Cassanova, Metairie, for Dixie Buick, Inc., defendant-appellant-appellee.
    Robert H. Fray, Gretna, for Holiday Rambler Corp., defendant-appellant-appel-lee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Defendants, Dixie Buick, Inc. (Dixie), and Holiday Rambler Corporation (Holiday), appeal a district court decision in favor of plaintiffs, Betty Jean Lokey, wife of/and Ernest F. Lokey, and against the defendants jointly, severally and in solido in the full sum of $18,294.70 with legal interest thereon from date of judicial demand and for all costs of the proceedings. The judgment further decreed that:

“* * * there be judgment herein, in favor of Dixie Buick, Inc., and against Holiday Rambler Corporation, in the full sum of Two Thousand Nine Hundred Twenty-seven and 15/100 Dollars ($2,927.15), representing twenty percent (20%) of the total amount of judgment for which Dixie Buick, Inc., has been cast in judgment in the main demand, with legal interest thereon from date of judicial demand;
“* * * there be judgment herein in favor of Holiday Rambler Corporation and against Dixie Buick, Inc., in the full sum of Fourteen Thousand Six Hundred Thirty-five and 76/100 Dollars ($14,635.76), representing eighty percent (80%) of the total amount for which Holiday Rambler Corporation has been cast in judgment in the main demand, with legal interest thereon from date of judicial demand;
“* * * as relates to the respective third-party demands by and against Dixie Buick, Inc., and Holiday Rambler Corporation, that each of the parties bear their respective costs.”

In a later judgment on the plaintiffs’ claim for attorney fees, the petitioners’ request for such was denied, the court being of the opinion such a request should have been included in the pleadings and submitted to the jury for its consideration. Consequently, plaintiffs have answered the defendants’ appeal asking that only that part of the judgment refusing to grant the plaintiffs attorney fees be reversed.

Plaintiffs also have appealed a subsequent judgment of the trial court in favor of Holiday and against the plaintiffs and Dixie, ordering that the 1978 “Free Spirit 26' Motor Home,” which is the subject of this lawsuit, be sold at public sale to the last and highest bidder for cash, with appraisal, and after due legal advertisement.

The jury’s answers to interrogatories stated the plaintiffs’ claim should be paid in the proportions of Dixie 80% and Holiday 20%.

On June 8, 1978, plaintiffs purchased a 1978 Free Spirit 26' Motor Home, manufactured by Holiday, from Dixie for the price of $17,544.70. Mrs. Lokey testified that the reason for buying the vehicle was she and her family like to travel but they did not care to stop at motels. They wanted to be “self-contained” so as to eat, sleep and live together in comfort.

Mrs. Lokey said that on the day before the purchase she rode around the block in the vehicle and was informed by the salesman that after the purchase of the vehicle she should read the accompanying booklets to figure out what was supposed to be done in operating it. She added that on the night of the sale her husband drove the motor home from Dixie and on the way home the engine would die every time they stopped; the air conditioner generator would not function and was making a loud noise; and there was some problem with the steering.

Mrs. Lokey also stated she returned to Dixie on the day after the purchase with a list of problems which had evidenced themselves and which included, in her words:

“The wood was loose on the side of the door. That was the door frame. The butane gas valve was broken. The front speaker didn’t work. There was no toilet paper holder. The opening door hit the air conditioner. The toilet wouldn’t flush. The shower wouldn’t work. The right headlight was out. The generator wouldn’t start properly or function properly. There was no TY lead in wire for the TV hookup. The holding tank hose was missing, the water hose was missing, the lock, we couldn’t lock the dead bolt. There was no level for the refrigerator. The car died every time you stopped. The motor air conditioner didn’t cool. The gas gasoline pipe was loose. It was hard to steer. There was some sort of leak when you turned the corner to the left, it appeared to be water. The exhaust. This is the generator again but the little bit of time it would work it would make a tremendous noise and shoot out some sort of brown water. The antenna, the TV antenna wouldn’t rotate and there was a burning, a rubber burning smell coming from the engine.”

She stated Dixie was unable to repair the air conditioner and refrigerator but suggested she bring the vehicle back to them on Tuesday, June 13. She added she went ahead and made the trip she had planned from Kentwood to Colleen, Louisiana, and she experienced a vibration problem with the steering; she was unable to get the generator to work for more than two or three minutes at a time, necessitating that she move the vehicle to a camp in order to plug into electricity; and she and her children had no bathroom facilities or refrigerator working in the vehicle during the trip.

Mrs. Lokey said she brought the vehicle back to Dixie on June 13 and picked it up on Friday, June 16. Although Dixie had repaired some of the items on the list she had given them, the door to the bathroom still scraped the air conditioner, the right headlight was still not working, the generator did not function, the television antenna did not rotate, the pipe to empty the sewerage tank was not provided nor was the water tank hose, the air conditioning was still not functioning, the gauges on the tanks had not been fixed nor was the refrigerator repaired. She said she and her family took the motor home to a campground anyway that weekend, but they were only able to stay one night because of the difficulties with the vehicle.

Mrs. Lokey testified she again left the motor home at Dixie for repairs from Tuesday, June 20, to Friday, June 23, and also brought it back to them on Monday, June 26, but they were unable to even repair the refrigerator. She said she then called the manufacturer of the refrigerator, who referred her to a place called “Barrows”; however, she was told by Mr. Barrows that due to the fact the vehicle was bought from Dixie he did not plan to work on it and asked her to leave his premises.

Subsequently, on June 29, Mrs. Lokey and her family left on another trip and located a place in San Antonio, Texas, which offered to repair the refrigerator; however, when she called Dixie they would not “okay” the repair work but told her they would get the part and repair it when she returned. However, when she went back to Dixie the dealership had changed hands and it was then called “Eagle,” which establishment did not have the part nor did it offer to repair the refrigerator. She added that on the way home from the trip to Texas the entire exhaust fell off the generator.

Mrs. Lokey said Eagle was also unable to repair most of the problems with the motor home and on another trip in the vehicle a tire blew out; the lug wrench did not fit the lugs on the tire; the spare tire had no air in it and had a small leak; the generator was still not working and they had to stay in motels and campgrounds where' they could plug into electricity practically every night of the trip. She said there was trouble with the headlights dimming, a wire dropped out from the generator, and several fan belts in the motor broke and had to be replaced.

Upon returning from this trip Mrs. Lo-key, who had been to either Dixie or Eagle seven times previously made one more attempt to get satisfaction from Eagle but was told they felt they had done all they should do for someone who didn’t buy the vehicle from them. Upon contacting Holiday, Mrs. Lokey was told that she could drive the motor home to either Indiana or Texas for repair. She, however, stated this was impossible to do since the generator muffler had fallen off. It was also suggested that she take it back to Barrows, but she did not care to do this because he had previously invited her off of his lot.

The Lokeys left the motor home for the next year at their country home in Kent-wood, Louisiana; and the plaintiffs were not contacted by a Holiday representative until May of 1979. This employee of Holiday, Albert Pettengill, testified at trial that he inspected the vehicle at that time and he confirmed most of Mrs. Lokey’s problems with it. He did say, however, the problems could have been remedied through a dealer, although he did not inspect the generator because, according to his testimony, there was not enough gas in it to get it started.

The law and jurisprudence surrounding an action in redhibition was discussed by this court in the similar case of Dixon Enterprises v. Restaurant Products, 389 So.2d 859 (La.App. 4th Cir. 1980), wherein we noted at 861-862:

“In the case of Rey v. Cuccia, 298 So.2d 840, 842-843 (La.1974), the Supreme Court, regarding actions in redhibition, stated:
‘A redhibitory defect entitling the buyer to annul the sale is some defect in the manufacture or design of a thing sold “which renders it either 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.” Article 2520. Upon proof of such a defect, the buyer is entitled to annul the sale and recover the purchase price, rather than being limited to recovering the cost of curing any such substantial defects. Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973).
‘The buyer must prove that the defect existed before the sale was made to him. Article 2530. However, if he proves that the product purchased is not reasonably fit for its intended use, it is sufficient that he prove that the object is thus defective, without his being required to prove the exact or underlying cause for its malfunction. J. B. Beaird Co. v. Burris Bros., 216 La. 655, 44 So.2d 693 (1949); Crawford v. Abbott Automobile Co., Ltd., 157 La. 59, 101 So. 871 (1924); Stumpf v. Metairie Motor Sales, Inc., 212 So.2d 705 (La.App. 4th Cir.1968); Fisher v. City Sales and Service, 128 So.2d 790 (La.App.3d Cir.1961).
******
‘If the defect appears within three days following the sale, it is presumed to have existed before the sale. Article 2537. However, even where the defect appears more than three days after the sale (as here, when it appeared on the second day of use, but ten days after the sale), if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale. Andries v. Nelson, 46 So.2d 333 (La.App. 1st Cir.1950); Standard Motor Car Co. v. St. Amant, [18 La.App. 298,] 134 So. 279 (1st Cir.1931). See, for similar principle, when a constructed thing fails shortly after being put into use. Joyner v. Aetna Casualty & Surety Co., 259 La. 660, 251 So.2d 166 (1971).’ ”

In the present case the large number of defects in the motor home evidenced themselves immediately after the sale, and the plaintiffs were unable to have them repaired in spite of repeated efforts on their part to have Dixie remedy the problems. It is obvious, therefore, the plaintiffs carried their burden of proving redhibitory defects existed at the time of the sale and under our present law, they are entitled to annul the sale and recover their purchase price.

Also, in regard to the issue of tender, which is required by our jurisprudence before a sale can be rescinded, formal tender is not required when the vendor has indicated one would be useless White v. Martin GMC Trucks, Inc., 359 So.2d 1094 (La.App.3d Cir.1978). Certainly the facts presented justified the jury’s concluding that formal tender would have been useless, and, therefore, not required in the present suit.

Furthermore we find no error in the finding that the seller and the manufacturer are liable in solido to the plaintiffs. As was said in Rey v. Cuccia, 298 So.2d 840, 845 (La.1974):

“When the sale is annulled for redhibi-tory defect resulting from the original manufacture, the purchaser can recover the pecuniary loss resulting from the unusable thing sold from the manufacturer as well as the seller. Media Productions Consultant v. Mercedes Benz of N. A., Inc., cited above. As there stated, 262 La. 80, 262 So.2d 377: ‘Louisiana has aligned itself with the consumer-protection rule, by allowing a consumer without privity to recover, whether the suit be strictly in tort or upon implied warranty.’ * * *»

In Dixon Enterprises, supra, this court also reversed part of the trial court judgment and allowed the seller to recover the damages for which he was cast from the manufacturer. However, in that case it was held the seller did not contribute to the plaintiff’s problems with the subject machinery due to the fact the seller was not itself in charge of servicing the machine or responsible for the delivery of service parts. In that case this court noted LSA-C.C. art. 2531, which states:

“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.

“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

In Dixon Enterprises, additionally, this court stated:

“We hold, moreover, that the present case is similar to the factual situation in Reeves v. Great Atlantic & Pacific Tea Co., 370 So.2d 202 (La.App.3d Cir.1979), where a plaintiff made a redhibitory claim against the Alexandria Coca-Cola Bottling Company, Ltd., as manufacturer of a defective bottle of Coke and A & P as the seller. The court found that A & P did not know of the vice at the time of the sale and held both defendants liable in solido for return of the purchase price. In considering A & P’s third party demand against Alexandria, however, the court held at page 212, citing Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App. 1st Cir.1973):
‘A & P raises the contention that, if it is responsible to Mrs. Reeves for return of the purchase price, it is entitled to recovery of this amount against the Alexandria Coca-Cola Bottling Company, Ltd. Pursuant to this end, it made a third party demand at the trial level; however, the trial judge failed to rule on this demand. A & P is entitled to judgment on their third party demand against the bottling company. * * *’
This rationale was similarly followed in the case of Breaux, supra, where the court held both the seller, Quality Mobile Homes, Inc., and the manufacturer, Winnebago Industries, Inc., liable in solido to the buyer in an action in redhibition and also held, regarding the third party demand of the seller against the manufacturer, at page 770:
‘Quality has third partied Winnebago for indemnity in the event the sale is rescinded. We grant Quality indemnity since they are only vicariously responsible for the defects which were obviously present when delivered by the manufacturer. Appalachian Corporation, Inc. v. Brooklyn Cooperage Co., Inc., 151 La. 41, 91 So. 539 (1922).’” 389 So.2d at 862-863.

In the present case many of the defects in the motor home, although not all of them, were of the kind that could have been remedied by Dixie, which was responsible for servicing the vehicle. Some of the other problems with the motor home, however, such as the defective refrigerator and the generator, were obviously the responsibility of the manufacturer, Holiday, to replace or repair. The jury’s appraisal of the liability involved, therefore (80% Dixie, 20% Holiday), was correct; however, because the parties were correctly cast in judgment in solido for the entire cost of the motor home plus damages, and such judgment had not yet been executed, the award of specific money damages as between the two defendants was inappropriate. In following the directives of the jury, therefore, this court will cast Holiday in judgment for 20% of any damages that Dixie may have to pay upon execution of the judgment in favor of the plaintiffs, and we will cast Dixie in judgment for 80% of any damages Holiday is required to pay upon execution of the judgment in favor of the plaintiffs.

Addressing ourselves to the plaintiffs’ request for attorney fees, this court also refers to the law articulated in Dixon Enterprises, supra, where, as in the present case, attorney fees were not prayed for in the plaintiff’s petition. Accordingly, this court said:

“In regard to the plaintiff’s request for attorney fees for prosecution of the case on the trial court and on the appellate levels, a review of the record indicates that no attorney fees were prayed for in the plaintiff’s petition. In this regard we refer to the case of Davis v. Aetna Casualty & Surety Company, 329 So.2d 868 (La.App.2d Cir. 1975), where the court said at page 876:
‘The remaining issue is whether we may award plaintiff attorney fees of $5000 when he only prayed for $2500 in attorney fees in the event the case was appealed.
‘Defendants contend a party may not be awarded more attorney fees than he prayed for in his petition. Plaintiff argues that Code of Civil Procedure Articles 862 and 2164 vest this court with the power to award attorney fees in an amount it finds to be proper and just regardless of the amount he prayed for in his petition.
‘We disagree with plaintiff’s interpretation of these articles of the Code of Civil Procedure. These articles are not controlling in the area of special damages. Article 861 provides items of special damage must be specifically alleged. In this case there was no evidence offered on the amount of attorney fees and, therefore, by the clear and unambiguous language of C.C.P. Art. 861, plaintiff may not recover more attorney fees than he alleged to be due, i. e., $2500.’
“Moreover, it is an established rule that evidence of the value of an attorney’s services is not necessary where the services are rendered under the supervision of the court. Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (La.App. 4th Cir.1977), and Clinkscales v. Superior Pontiac-GMC, Inc., 365 So.2d 895 (La.App. 4th Cir.1978).
“Furthermore, this court addressed itself to that issue in Boudreaux, supra, at page 506:
‘Finally, on authority of C.C. 2545 (as amended, Acts 1968 No. 84), we grant plaintiff’s request for attorney’s fees for the appeal alone. C.C.P. 862 provides that “a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.” And C.C.P. 2164 provides that “[t]he appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” We have increased attorney’s fees awarded by the trial court to recompense for additional services on appeal in Dunlap v. Chrysler Mtrs. Corp., La.App. 4 Cir. 1974, 299 So.2d 495. We now implement C.C. 2545 for attorney’s fees for the appeal by itself, although attorney’s fees were not prayed for (except in brief) or awarded in the trial court. We award $500 for representation on the appeal alone.’
“It is also a well-established rule of jurisprudence in Louisiana that a manufacturer is presumed to know the vices of the thing he sells and actual knowledge is not required. Moreover, LSA-C.C. art. 2545 provides for an award of attorney fees in redhibitory action if the seller knows the vice of the thing he sells and omits to declare it.
“There was no evidence that Loubat knew of the vices in the Purofryer Systems. Accordingly, we will cast Products alone in judgment for attorney fees for prosecution of the plaintiff’s case on the appeal alone, and set the fee for $750 on the theory that this amount is reasonable under all the circumstances. Clinkscales, supra.389 So.2d 863-864.

In the present case, therefore, this court will deny the plaintiff’s request for attorney fees for services rendered at the district court level; however, since there was no clear evidence allowing the factual conclusion that the defendant Dixie had actual knowledge of the defects existing in the motor home at the time of the sale, but Holiday, because it was the manufacturer of the vehicle, is presumed, by law, to know the defects, we will cast Holiday alone in judgment for attorney fees for prosecution of the plaintiffs’ case on only the appeal, and we set $1,000 as a reasonable fee.

In regard to the district judge’s July 29,1980 order for the motor home to be sold at public sale, this court also holds that such decree was in error due to the fact both Dixie and Holiday had been granted a sus-pensive appeal from the district court judgment in favor of the plaintiffs on June 3, 1980 and returnable to this Court of Appeal on August 1, 1980, rendering the plaintiffs unable to execute that part of the judgment awarding them a sum of money for rescission of the sale.

For the reasons assigned, therefore, that part of the district court judgment granting each of the defendants specific monetary damages from the other is hereby reversed and this court orders that Dixie Buick, Inc., be cast in judgment for 80% of any damages that Holiday Rambler Corporation is required to pay the plaintiffs upon execution of the judgment in their favor; this court, accordingly, also orders that Holiday Rambler Corporation is cast in judgment for 20% of any damages Dixie Buick, Inc., is required to pay the plaintiffs upon execution of the judgment in their favor. The decision of the district court ordering the sale of the subject motor home is also reversed and the motion of Holiday Rambler Corporation petitioning the trial court for such sale is denied. Additionally, the district court judgment is amended to grant plaintiffs the sum of $1,000 against defendant Holiday Rambler Corporation as a reasonable fee in prosecution of the case on appeal. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED IN PART.