author: STOKER, Judge.

text:
    Diane FAULK, Plaintiff-Appellee, v. SCHLUMBERGER WELL SERVICES, et al., Defendants-Appellants.
    No. 8625.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Woodley, Barnett, Cox, Williams & Fen-et, E. E. Woodley, Lake Charles, Harold T. Buckley, Jr., New Orleans, for defendants-appellants.
    Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, Raleigh Newman, Stockwell & Associates, Robert Dampf, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   STOKER, Judge.

These three consolidated actions arise out of the death of Michael K. Faulk in an intersectional collision. Primary issues are the alleged negligence of the defendant Robert Trosclair and the alleged contributory negligence of the deceased, Michael K. Faulk. Other issues are raised, including as an alternative the complaint of appellants that the quantum of the awards is excessive.

The accident and death took place on December 8, 1979, in Cameron Parish, Louisiana. At the time Michael K. Faulk (Faulk) was married to Diane Faulk who brought this suit on her own behalf and on behalf of her minor son, Michael John Faulk, born of the marriage. Faulk had two daughters by a prior marriage to Sherry Ann Dinger who brought suit on behalf of the two daughters who are minors, Melanie Michelle and Mia Margaret. We render a separate opinion in that suit on this same day. A third suit was brought by State Farm Mutual Automobile Insurance Company and the estate of Faulk for the automobile damages sustained, by the Faulk vehicle and the medical expenses incurred. We also render a separate opinion in that suit on this same day.

The defendants are Robert Trosclair (Trosclair), his employer, Schlumberger Offshore Well Services, Inc. (Schlumberger), and their liability insurer, Travelers Indemnity Company.

Aside from the negligence of the two drivers, the appeals bring up issues relating to the refusal of the trial court to grant defendants a change of venue, objections to the jury selection, and the jury’s answers to specific interrogatories in which the jury found that the deceased, Faulk, had been negligent but that his negligence played no part in causing the accident.

FACTS

The accident occurred during dark hours at a T-intersection in marsh country at the intersection of Louisiana State Highway 82 and a private road which enters Highway 82 from the South. Traffic approaching the state highway from the south is faced with a stop sign granting the right of way to the state highway. The state highway is a standard two-lane highway which runs generally east and west. The private road is a shell road leading south from Highway 82 to the off-shore dock facilities of Crain Brothers. Defendant Trosclair was employed by Schlumberger and was driving a long wheel base truck which was blue in color at approximately 2:00 o’clock AM on the morning of December 8,1980. Trosclair drove north on the shell road and made a left turn into Highway 82 to proceed west. Faulk crashed into the right rear of the Schlumberger truck and was apparently killed immediately. Faulk had been traveling west on Highway 82 prior to the crash and was being followed at some distance by James Duhon. Faulk was driving a 1979 Ford pickup truck which belonged to him and he was alone. Therefore, Duhon is the only known witness to the accident. State Farm Mutual Automobile Insurance Company was the insurer of the Faulk pickup truck and is subrogated for all damages to the truck less the deductible portion and for all medical expenses.

Prior to the accident Faulk had been drinking. Defendants produced the testimony of experts who expressed the opinion that Faulk was speeding.

The jury returned a verdict for all the plaintiffs.

ASSIGNMENTS OF ERROR

One brief has been filed in this appeal on behalf of the defendants and is submitted by both counsel for the defendants. No assignment of error is listed challenging the jury’s finding that Robert Trosclair was negligent and that his negligence was a cause of the accident.

The listed assignments urge that the trial court erred in the following respects:

1. In not granting defendant’s motion for change of venue.

2. In not answering a question from the jury concerning the preponderance of the evidence relative to the alleged contributory negligence of the deceased Michael K. Faulk.

Defendants allege that the jury erred in the following aspects:

1. In finding that the negligence of Michael K. Faulk was not a legal cause of the accident.

2. The jury awards are excessive and beyond the highest range the evidence can justify.

MOTION FOR CHANGE OF VENUE

Prior to trial Schlumberger filed a motion for a change of venue under LSA-C.C.P. art. 122 seeking to have the trial of the case transferred from Cameron Parish. The motion was apparently denied. Various reasons were given to justify the change. Defendant alleged that an indictment for negligent homicide had been sought from the Grand Jury in Cameron Parish and that, although a no true bill was returned, the presentation of the matter to the Grand Jury was given wide media coverage in the Cameron Parish area. Schlumberger also alleged that the deceased was a police jury member in Cameron Parish and his widow, Diane Faulk, had campaigned extensively for election to Faulk’s police jury seat which became vacant upon his death. This campaign resulted in further publicity being given to Faulk’s death. It was then alleged that, because the population of Cameron Parish was small, most if not all the members of the jury venire had been exposed to publicity relating to the accident which caused Faulk’s death and to the candidacy of plaintiff Diane Faulk in seeking to succeed her husband.

During the jury selection process, counsel probed particularly into the relationships of all prospective jurors subjected to voir dire examination which might indicate close friendship with plaintiffs’ counsel, the deceased, or any of the plaintiffs. Several were challenged for cause, and the trial court excused all but one of five jurors so challenged by Schlumberger’s counsel. Throughout voir dire examination, the trial judge was alert to discover any close relationships or friendships between the prospective jurors and the parties and counsel. Many were excused by the court on its own motion without the necessity of counsel having to challenge the prospective jurors either for cause or peremptorily. The trial court was quite diligent in screening the jury of jurors who might possibly have been unable to be objective and fair.

At the end of the jury selection process counsel for Schlumberger again renewed its motion for a change of venue on the ground that the jury selection had shown that it was impossible to obtain a jury in Cameron Parish which would be fair to non-residents (or little known residents) of Cameron Parish which involved local plaintiffs, particularly those represented by local counsel.

We have carefully read the transcript of the record covering the jury selection including the voir dire examination. We are not convinced that the trial court committed error in denying a change of venue. It may be that the situation in Cameron Parish is unique because of the fact that it is largely marsh land and has a small population. However, it is not the only parish in Louisiana whose population is sparse and where the number of local lawyers is small.

LSA-C.C.P. art. 122 provides that a party may be granted a change of venue “upon proof that he cannot obtain a fair and impartial trial because of the undue influence of an adverse party, prejudice existing in the public mind, or some other sufficient cause”. Diligent counsel has made a strong effort in favor of his client’s motion for change of venue, but we do not find that the record proves any undue influence in favor of plaintiffs or that defendants were prejudiced or that they did not receive a fair trial. We have previously noted the special situation existing in Cameron Parish. Hocut v. Insurance Company of North America, 254 So.2d 108 (La.App. 3rd Cir. 1971), writ refused, 260 La. 411, 256 So.2d 292 (La.1972). However, we hardly see how the trial court could have been more fair. The situation of which defendant complains is endemic in many parishes throughout this State and is probably inherent in the jury system everywhere.

Defendant Schlumberger has not shown a cause for relief because of the trial court’s failure to grant a change of venue.

ADDITIONAL JURY INSTRUCTION AS TO PREPONDERANCE OF EVIDENCE AND LEGAL CAUSE

The trial court furnished written interrogatories to be answered by the jury. The jury answered that Robert Trosclair and Michael K. Faulk were both negligent but answered that only Trosclair’s negligence was a legal cause of Michael Faulk’s death. Prior to reaching a verdict the jury requested additional instructions in the following words written on a sheet of legal sized ruled paper:

“QUESTION NO. 4
If you find Michael Faulk negligent, was such negligence a legal cause of his death? Answer Yes or No.
ANSWER_
“Supposing that we deciede (sic) that both parties are negligent, is Question No. 4 the preponderance (sic) of evidence you were talking about?
“(example 49-51%)
“Also, exactly what does legal cause mean?”

Attached to this sheet is the trial court’s response which reads as follows:

“You have asked what the legal cause is. This is not an easy question. Causation is a matter of what has in fact occurred. If a persons (sic) act was a substantial factor in bringing about the result it is a legal cause.”

Defendant’s brief makes little issue as to the trial court’s additional instruction. The thrust of the argument is largely that the jury erred in concluding that the negligence of Michael K. Faulk was not a legal cause of the accident. Defendant’s position as set forth in their brief is as follows:

“It. is respectively submitted that on the basis of the evidence, the jury’s findings that the deceased Michael Keith Faulk was negligent, but that such negligence was not a ‘legal’ cause of his death constitutes manifest error.
“On the basis of the evidence adduced, the jury must have concluded that Faulk was at the time of the accident: (1) under the influence of alcohol; (2) driving at an excessive rate of speed; or (3) guilty of both.
“If the jury felt that either of these possibilities existed, there is simply no reasonable basis for finding that Faulk’s negligence did not contribute to the accident.
“The physical evidence shows without question that at the time of the impact, the Schlumberger truck was almost straight in the road, that it could not have been going over 15 miles per hour and that even at a high rate of speed, Mr. Faulk should have had time to stop.
“The plaintiffs do not dispute that Faulk had been drinking. No effort was made to show this although the evidence obviously existed in the testimony of persons he saw that night. Rather, the plaintiffs attack the extent of the alcohol content in the blood of the deceased as found by the Southwest Louisiana Crime Lab’s tests and the taking of the sample by Dr. LeBlanc.
“The plaintiffs do not seriously dispute the fact that the deceased was travelling at a high rate of speed that night. The only plaintiff witness, the expert, Ray Herd, placed Faulk’s speed in range of 50 miles per hour [Transcript p. 1015] which figure takes into account the loss of speed caused by braking [Transcript p. 1046].
“The jury’s verdict was motivated by its sympathy for Mr. Faulk’s survivors, their friends and neighbors in the community.
' “Further, it is very likely, as noted earlier, that the jury decided who it deemed the most negligent, to be Robert Trosclair and in doing so, applied some kind of comparative negligence, ‘49% to 51%’. [Transcript p. 95].”

Defendants discuss the evidence relating to proof of intoxication and speeding and what Faulk should have seen or done in detail in eleven separate synopses. Defendants then state the following conclusion:

“From the evidence, the jury concluded that, at the least, Michael Keith Faulk was guilty of contributory negligence. While statutory violations (such as driving while intoxicated or speeding) are not in and of themselves definitive of civil liability, they may be used as guide lines in determining standards in assessing negligence and liability. Smolinski v. Taulli, 276 So.2d 286 (La.1973).
“The law is clear that a motorist entering a right-of-way street is not required to wait until no traffic is in sight. He may assume that other vehicles will observe the speed limit. The test is whether he acts reasonably. Camet v. Guillot, 291 So.2d 438 (La.App. 4th Cir. 1974).
“Here Trosclair concluded that he had time to complete his entry without inter-ferring with the oncoming Faulk pickup truck. He would have been correct had Faulk been travelling at a lawful speed.
“There are, of course, numerous cases with facts like this one. It is submitted that a consideration of all the evidence here, particularly the physical evidence, should convince anyone that the jury, while correct in finding Michael Faulk negligent, fell into error when it held that such negligence did not contribute to the accident.
“It is respectively submitted that this court should find manifest error here. Arceneaux v. Dominque, 365 So.2d 1330 (Sup.Ct.1978).”

The arguments of defendants are persuasive but then so are the arguments of the plaintiffs. The evidence of speed and intoxication consists almost exclusively of the testimony of experts. The validity of the blood-alcohol test was put in question. The facts required the triers of fact to resolve the issues of speed and intoxication, inasmuch as either might have been a contributory cause of the accident, on the basis of expert opinion evidence. Moreover, the ultimate question is one of causation. No citation of authority is required for the proposition that the defendant who relies on contributory negligence as a defense bears the burden of proof and thus must produce proof that the negligence of the plaintiff was a contributory cause of the accident.

The state of the evidence made the questions of Michael K. Faulk’s intoxication and speed questions of causes in fact. If the deceased’s negligence was not a cause in fact, it could not be a legal cause. On this matter we cannot say that the jury’s findings were clearly wrong. See Case v. Arrow Trucking Co., 372 So.2d 670 (La.App. 1st Cir. 1979), writ denied, 375 So.2d 944 (1979) and Bennett v. United States Fidelity & Guaranty Company, 373 So.2d 1362 (La.App. 1st Cir. 1979), writ denied, 376 So.2d 1269 (1979).

For the foregoing reasons we affirm the jury’s finding of liability in this case.

QUANTUM

The jury made lump sum awards as dictated by the jury verdict sheet furnished to them. Therefore damage awards, which are as follows, were not itemized:

Diane Faulk (widow) $200,000
Michael John Faulk 225,000
Melanie Faulk 225,000
Mia Faulk 225,000
$875,000
State Farm Mutual
Automobile Company $ 10,237

Defendants-appellants contend on appeal that these awards are excessive. Plaintiff-appellee, Diane Faulk, answered the appeal and urges that the award to her is inadequate and should be increased by this court to $450,000.

Defendants-appellants contend that the evidence shows that the marriage between the deceased and Diane Faulk was not close, and there were indications that the marriage would not be more successful than the deceased’s first marriage. On behalf of Diane Faulk it is argued that the defense unfairly suggested to the jury that she would have divorced her deceased husband and would have remarried. With reference to the children, appellants argue that the sum of $225,000 awarded to each of them evidently reflected loss of future support. The fact that Melanie and Mia were approximately nine and eleven years of age when their father died, the fact that he was paying $225 in child support for their maintenance, the fact that they did not live with him, and the fact that their mother’s antipathy toward the father would be likely to affect their feelings toward their father in a negative way are cited by appellants as reasons why the two girls should not be awarded $225,000 each. Appellants urge that, in any event, the award for the two girls should be proportionately lower than the award to the son who was a little over three years old at the time of the death of the father. At the time of his death Faulk was paying a total of $225 per month in child support for both girls. On this basis appellants argue that Mia could have expected approximately $15,000 in support until she reached eighteen years of age and Melanie could have expected approximately $13,500.

Viewing all four awards together, it does appear that the jury abused its discretion and that some adjustment is required. In making appropriate adjustment we must conform to the rules for appellate review of quantum awards set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and Reck v. Stevens, 373 So.2d 498 (La.1979).

In order to establish the special damages in the form of economic loss of support, the plaintiffs produced the expert testimony of Donald W. Cornwell, an Economist who taught at the University of Southwestern Louisiana. He made projections of the loss of income from the date of death until the date of trial and also the future economic loss based on a work-life expectancy. Mr. Cornwell based his projections on an age of 30.3 years for the deceased at the date of his death with a work life expectancy of 32 years. Michael Faulk had been a wage earner in offshore operations primarily but in recent years had engaged in farming operations at a loss. Mr. Cornwell also included in his projections the police jury salary which Faulk would have begun to earn on July 1, 1980, of $600 a month and which Cornwell said would have increased to $800 a month on December 1, 1980. He also included the value of a hospitalization policy he would have had with the police jury in the amount of $1,623.72 per annum.

Although Mr. Cornwell was furnished with income tax information for Faulk for the years 1976,1977, 1978, and 1979 he used only the figure for 1976. This established an income for the year 1976 of $23,002.25. Mr. Cornwell testified that he used this figure as a base because in years thereafter Faulk became involved in a farming operation and in the early years of farming he was building his business and operating at a loss. Mr. Cornwell stated that Fauik “had demonstrated capacity of having earned this amount”. From his projections he deducted a percentage which he referred to as personal maintenance of the deceased, that being the amount Faulk would have spent on himself for food, clothing, shelter, and other basic needs.

Based on the above data, Mr. Cornwell calculated that the economic loss of the widow and three children as of the date of the trial to be $28,619.96.

In calculating future wages, he applied an annual growth rate to wages of 6.65%, an annual growth rate to police jury wages of 6.22%, and an annual growth rate for the value of the police jury insurance of 8.12%. Mr. Cornwell increased the personal maintenance factor to 23.9% because, as the children grew older and became less dependent on him, the amount Faulk would spend on himself would increase proportionately.

After arriving at certain figures, he discounted them in order to render the loss into the present value. He used an 8% discount rate and 9% discount rate. At 8% the present value of the future loss of income and support was $669,'738.66. At 9%, it was $585,692.80. To these figures he added the actual loss at the time of trial. Future loss at 8% plus loss to date would yield a total loss of support of $698,358.62, and at 9% it would amount to $614,312.76.

The defense argues that these figures are not realistic for several reasons. The defense points out to begin with that it would be improper to assume that Michael Faulk would have continued to be elected to the police jury throughout his life. Also, they challenge the failure of Mr. Cornwell to take into consideration the lower income for the years following 1976 and his assumption that Michael Faulk had demonstrated a capacity to earn what he earned in 1976, which was $23,002.25.

After hearing the testimony of Mr. Corn-well, the jury might very well have been more conservative than he and may have actually taken into account certain other factors which the defense urges should be taken into account.

Considering the facts of this case and the unitemized jury awards, we make the following comparisons. In total damages exclusive of automobile damages, the jury awarded $875,000. Mr. Cornwell’s estimate of loss of economic support was $700,000 in round figures. The jury treated the three children equally. We infer from this that the jury probably considered that each child sustained the same amount for general damages, that is, for loss of love and affection. If we projected general damage awards of $40,000 for each child and $100,-000 for Diane Faulk, total general damages would equal $220,000. Taking $220,000 from the total award of $875,000 would leave $655,000 to be allocated to loss of economic support. If the jury had made itemized awards for general damages in accordance with the projection stated above, the jury’s total award for loss of economic support would have been closely in line with the $700,000 loss estimated by plaintiffs’ economic expert. As we will explain we feel that the jury abused its discretion in making its awards.

Inasmuch as the trier of fact is not bound by the opinions of experts which are to be given such value as the trier of fact deems they should have, future loss of economic support should not stand or fall on the testimony of an economic expert who gives projections of earnings. Giving due weight to the arguments of defendants-appellants, particularly to the fact that Mr. Cornwell used a demonstrated higher capacity for earning as a wage earner as contrasted with the actual earnings of the deceased as a farmer with the addition of a salary as an elected public official, we do not consider a projected economic loss in this case of between approximately $614,-000 and $700,000 to be exceptionally wide of the mark. See Coco v. Winston Industries, Inc., supra, headnotes 11 and 12 on page 338. Estimates of such losses are recognized to be sj>eculative in character and incapable of calculation with absolute, mathematical certainty. Robinson v. Graves, 343 So.2d 147 (La.1977) and Viator v. Gilliert, 253 La. 81, 216 So.2d 821 (1968).

In making what we consider to be appropriate adjustments we will utilize the projections stated above as general damages. We will utilize the figure of $655,000 as total loss of support, past and future, to be appropriately apportioned between the four claimants. The figure of $655,000 is reasonably supported by the testimony of Mr. Cornwell whose high and low estimates were $698,358.62 and $614,312.76 respectively-

General Damages of the Children of the Deceased.

Despite the arguments the daughters of the deceased suffered less loss in love and affection than they would have had their parents remained married and had not become estranged, we are inclined to treat the three children on an equal basis with reference to general damages. We consider that an award of $40,000 to each child would be fair. It is our opinion, however, that the jury abused its discretion measured against the guidelines laid down in Coco v. Winston Industries, Inc., supra, in awarding equal overall amounts to the three children for loss of economic support. This is because the awards do not take into consideration the periods of dependency of the three children which will vary because of their varying ages.

Loss of Support of the Children of the Deceased.

We have concluded that a fair distribution of the sum of $655,000 in loss of support between Diane Faulk and the three children of the deceased will result by awarding one-half to Diane Faulk and awarding one-half to the three children. At the time of the death of their father the children would have reached the age of eighteen, the age of majority, as follows: Mia Faulk in approximately nine years, Melanie Faulk in approximately eleven years and Michael John Faulk in approximately sixteen years. These years represent years of dependency of the children and total 36 years. A fair allocation of $327,500 (V> of $655,000) among the children may be made by fixing the awards on a proportional basis of “/se, n/36 and 16/36. Accordingly, we make the following awards to the children for loss of support:

Mia Faulk $ 81,875.00
Melanie Faulk 100,069.44
Michael John Faulk 145,555.56

When these amounts and the amounts awarded the children as general damages are added together, they will represent, in our opinion, the highest amounts the jury could have awarded each child.

General Damages and Loss of Support of Diane Faulk.

As we propose to increase the jury’s award to Diane Faulk, the widow of the deceased, we may increase it only to the extent of the lowest amount the jury might have awarded her. We fix her recovery for general damages at $100,000. In plaintiffs’ brief it is urged that in order to be consistent with Coco v. Winston Industries, Inc., supra, the minimum award which should be made to her for general damages should be $100,000 and the loss of support should be a minimum of $350,000 for a total of $450,000. We will fix the award for loss of support at one-half of $655,000 so as to award her $327,500 for this item. Therefore, we will amend the jury’s award of $200,000 to Diane Faulk to $427,500, the lowest amount which, in our estimation, it could have awarded her.

Recapitulation of Awards.

To sum up and recapitulate the amendment of the jury’s award, we set forth the total awards as follows:

Mia Faulk
Loss of love and affection $ 40,000.00
Loss of support 81,875.00 $121,875.00
Melanie Faulk
Loss of love and affection $ 40,000.00
Loss of support 100,069.44 $140,069.44
Michael John Faulk
Loss of love and affection $ 40,000.00
Loss of support 145,555.56 $185,555.56
Diane Faulk
Loss of love and affection $100,000.00
Loss of support 327,500.00 $427,500.00
$875,000.00

CONCLUSION

For the foregoing reasons the judgment of the district court in this case is affirmed but amended to award Diane Faulk individually the sum of Four Hundred Twenty-seven Thousand Five Hundred and no/100 ($427,500.00) Dollars and to award Diane Faulk, as natural tutrix of the minor Michael John Faulk, for his use and benefit the sum of One Hundred Eighty-Five Thousand Five Hundred Fifty-five and 56/100 ($185,555.56) Dollars. As thus amended, the judgment in this case is affirmed. The costs of this appeal are assessed equally between plaintiff-appellees and defendant-appellants.

AMENDED AND AFFIRMED AS AMENDED.

      . Sherry Ann Dinger, Natural Tutrix of Melanie Michelle Faulk and Mia Margaret Faulk v. Schlumberger Well Services, et al., 412 So.2d 171 (La.App. 3rd Cir. 1982).

      . State Farm Mutual Automobile Insurance Company and Estate of Michael K. Faulk v. Schlumberger Offshore Well Services, et al., 412 So.2d 171 (La.App. 3rd Cir. 1982).

      . The record contains no transcript of the court minutes, orders, or reasons for judgment. However, defendant-appellant complains on appeal of the trial court’s failure to grant a change of venue and the case was tried in Cameron Parish.

      . If evils inherent in the jury system permit development in a particular judicial setting of an intolerable condition in which nonresidents (or others whose interests are not identified with the local residents eligible for jury service) cannot obtain a fair.trial, relief can only be given in particular litigation if the evil is clearly reflected in the trial records. In the absence of such record evidence, general relief must, come from sources or agencies outside of the context of particular litigation.

      . Questions 1 through 4 of the jury verdict sheet with the answers given reads as follows:
      “JURY VERDICT SHEET
      “QUESTION NO. 1
      “Was Robert Trosclair, as agent or employee of Schlumberger negligent? Answer Yes or No.
      ANSWER s/Yes
      “If your answer is no, proceed no further.
      “QUESTION NO. 2
      “If you find Robert Trosclair, as agent or employee of Schlumberger negligent, was such negligence a legal cause of the death of Michael Faulk? Answer Yes or No.
      ANSWER s/Yes
      “If you answer to both questions No. 1 and 2 were yes, proceed to Question No. 3 and No. 4.
      “QUESTION NO. 3

        “Was Michael Faulk negligent? Answer Yes or No.
      ANSWER s/Yes
      “QUESTION NO. 4
      “If you find Michael Faulk negligent, was such negligence a legal cause of his death? Answer Yes or No.
      ANSWER NO
      “If your answer to Question NO. 4 is yes, proceed no further. If your answer to Question NO. 4 is no, proceed to the next questions.”

      . There is no presumption of intoxication in civil cases based on the results of blood-alcohol tests. Expert testimony may show that a person’s driving ability and judgment becomes impaired at a given level of blood-alcohol. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976). Such testimony necessarily depends upon the integrity of the blood-alcohol testing process.

      . The respective birthdays of the children are: Mia, August 14, 1970; Melanie, February 22, 1972; and Michael John, October 2, 1977.


source: Caselaw Access Project

license: Public Domain

text:
    Sherry Ann DINGER, Natural Tutrix of Melanie Michelle Faulk and Mia Margaret Faulk, Plaintiffs-Appellees, v. SCHLUMBERGER WELL SERVICES, et al., Defendants-Appellants.
    No. 8626.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Woodley, Barnett, Cox, Williams & Fen-et, E. E. Woodley, Lake Charles, Harold T. Buckley, Jr., New Orleans, for defendants-appellants.
    Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, Raleigh Newman, Stockwell & Associates, Robert Dampf, Lake Charles, for plaintiffs-appellees.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

For the reasons stated in the companion case of Diane Faulk v. Schlumberger Well Services, et al., 412 So.2d 171 (La.App. 3rd Cir. 1982), in which a separate opinion is being rendered this date, the judgment of the district court is affirmed but amended so as to award Sherry Ann Dinger, as natural tutrix of the minor Mia Margaret Faulk and for her use and benefit, the sum of $121,875.00, and to award Sherry Ann Ding-er, as natural tutrix of the minor Melanie Michelle Faulk for her use and benefit, the sum of $140,069.44. As thus amended the judgment in this case is affirmed. The costs of this appeal are assessed equally between plaintiff-appellee and defendants-appellants.

AMENDED AND AFFIRMED AS AMENDED.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Estate of Michael K. Faulk, Plaintiffs-Appellees, v. SCHLUMBERGER OFFSHORE SERVICES, Robert S. Trosclair and Travelers Insurance Company, Defendants-Appellants.
    No. 8627.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Woodley, Barnett, Cox, Williams & Fen-et, E. E. Woodley, Lake Charles, Harold T. Buckley, Jr., New Orleans, for defendants-appellants.
    Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, Raleigh Newman, Stockwell & Associates, Robert Dampf, Lake Charles, for plaintiffs-appellees.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

For the reasons stated in the companion case of Diane Faulk v. Schlumberger Well Services, et al, 412 So.2d 171 (La.App. 3rd Cir. 1982), in which a separate opinion is being rendered this date, the judgment of the district court is affirmed.

The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Iram Patrick FUSILIER, Plaintiff-Appellant, v. ESTATE OF Lionel J. PESCHIER, Defendant-Appellee.
    No. 8667.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    Donald Soileau, Mamou, for plaintiff-appellant.
    Thomas W. Sanders, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, SWIFT, and LABORDE, JJ.
   DOMENGEAUX, Judge.

Iram Patrick Fusilier (plaintiff) instituted this action on February 12, 1979, and named as defendant, the Succession of Lionel Joseph Peschier, through its testamentary executrix, Marjorie Morris Peschier. Plaintiff and Lionel Joseph Peschier (decedent) entered into an agreement on June 9, 1976, under which plaintiff conveyed to decedent six tracts of land and his mineral interest in a seventh tract of land, all of which are located in Evangeline Parish, Louisiana. Plaintiff reserved to himself the right of redemption in that agreement, which is recorded under original Act No. 331573, Conveyance Book No. C-46, pages 346, et seq., of the records of Evangeline Parish.

After the death of Lionel Joseph Peschier, plaintiff brought this action against defendant succession alleging that he has sought to exercise his right of redemption, but defendant refused to convey the property back to him. Plaintiff, by means of a supplemental and amended petition, made a claim for property damages allegedly sustained by him when a building located on one of the tracts of land was destroyed by fire. In addition to said claim, plaintiff seeks a credit against the redemption price for certain mineral royalties received by defendant.

Defendant filed a number of declinatory and dilatory exceptions to plaintiff’s action, and a hearing was held on March 27, 1981. The trial judge overruled all exceptions filed by defendant except the dilatory and declinatory exceptions pleading improper cumulation of actions and improper venue, respectively, which exceptions were sustained, and plaintiff’s suit was dismissed without prejudice as it related to a claim for damages. Judgment dismissing plaintiff’s claim for damages was rendered on July 10, 1981, with judgment being signed on July 28, 1981.

Plaintiff appeals the trial court’s ruling contending that the sustaining of defendant’s exceptions and dismissing his claim for damages was in error. Defendant subsequently moved to dismiss the plaintiff’s appeal, which motion has been referred to the merits. Alternatively, defendant answers the appeal suggesting that the trial court erred in overruling all other exceptions filed on its behalf.

Thereafter, on August 20, 1981, by joint motion, plaintiff and defendant moved to proceed with the plaintiff’s right to redemption. The court so ordered, and defendant was allowed to withdraw the deposited funds from the registry of the court. Pursuant to this agreement, each party reserved unto themselves all rights to litigate any present or future claims arising out of said sale with right of redemption.

MOTION TO DISMISS THE APPEAL

Defendant contends, in its motion to dismiss this appeal, that the judgment rendered below is not a final judgment but merely an interlocutory decree which is not appealable absent a showing of irreparable injury. We disagree, and deny the motion to dismiss.

The well established rule is that a judgment of dismissal without prejudice, i.e., as of non-suit, is a final judgment from which an appeal will lie. Rapides Savings & Loan Association v. Lakeview Development Corporation, 326 So.2d 511 (La.App. 3rd Cir. 1976); Pasquier, Batson & Company v. Ewing, 367 So.2d 28 (La.App. 2nd Cir. 1978), writ denied 368 So.2d 136 (La.1979).

Therefore, the judgment dismissing plaintiff’s claims without prejudice is appealable and accordingly the motion to dismiss is denied.

ON THE MERITS

As mentioned above, the primary issue on appeal involves the propriety of the trial judge’s sustaining defendant’s exceptions of improper cumulation of actions and improper venue, and dismissing plaintiff’s suit for damages. The trial judge in addressing these issues in his reasons for judgment made the following determinations, which we adopt as our own:

“Defendant contends that plaintiff has improperly cumulated his actions by failing to meet the requirements of LSA-C. C.P. Article 462(1), that each of the cumulated actions be brought in the proper venue. Defendant argues that plaintiff has brought an action against it quasi ex delicto for the destruction of a building by fire, which was situated on one of the tracts of land, and for an accounting of oil royalties produced on one of the tracts of land. These being personal actions, defendant argues that under LSA-C.C.P. Article 81(1), Calcasieu Parish is the only parish of proper venue.
LSA-C.C.P. Article 81(1) provides:
‘Art. 81. Action involving succession
When a succession has been opened judicially, until rendition of the judgment of possession, the following actions shall be brought in the court in which the succession proceeding is pending:
(1) A personal action by a creditor of the deceased; but an action brought against the deceased prior to his death may be prosecuted against his succession representative in the court in which it was brought;’
LSA-C.C.P. Article 74 provides:
‘Art. 74. Action on offense or quasi offense
An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. An action to enjoin the commission of an offense or quasi offense may be brought in the parish where the wrongful conduct occurred or may occur.
As used herein, the words “offense or quasi offense” include a nuisance and a violation of Article 667 of the Civil Code. As amended Acts 1962, No. 92, § L’
LSA-C.C.P. Article 45(1) provides:
‘Art. 45. Conflict between two or more articles in Chapter
The following rules determine the proper venue in cases where two or more articles in this Chapter may conflict:
(1) Article 78, 79, 80, 81, 82, or 83 governs the venue exclusively, if this article conflicts with any of Articles 42 and 71 through 77;’

There is a conflict in the venue provisions applicable to this case. The conflict is between the permissive provision of LSA-C.C.P. Article 74, supra, which allows an action in negligence (quasi, offense) to be brought in the parish where the damages were sustained (here, Evangeline Parish) and that mandatory provision of LSA-C.C.P. Article 81(1), which provides that a personal action by a creditor of the deceased shall be brought in the court in which the succession proceeding is pending (here, Calca-sieu Parish).

There has been no judgment of possession rendered in the Succession of Lionel Joseph Peschier and plaintiff instituted his actions after the death of Lionel Joseph Peschier. Thus, the proper venue for his negligence action is Calcasieu Parish.

LSA-C.C.P. Article 464 provides, in pertinent part:

‘Art. 464. Improper cumulation, effect When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, that action shall be dismissed.’
This court has no alternative but to dismiss plaintiff’s action for damages quasi ex delicto.”

For the reasons stated hereinabove, we affirm the trial judge’s granting of defendant’s exceptions as they relate to plaintiff’s claim quasi ex delicto.

As previously mentioned, defendant had answered plaintiff’s appeal suggesting that the trial court erred in overruling the other exceptions filed in this proceeding. Due to instances occurring subsequent to the trial judge’s ruling on these exceptions, we find that the defendant’s exceptions of improper venue and improper cumulation of actions, relative to plaintiff’s mineral royalty claim, now have merit.

Defendant alleges that the proper venue for plaintiff’s claim for redemption of the property, as well as plaintiff’s claim for a credit against the redemption price for certain oil royalties, is in Calcasieu rather than Evangeline Parish. The trial judge held that plaintiff’s claim for redemption was a real action, i.e., an action brought to enforce rights in, to, or upon immovable property, and under La.C.C.P. Article 80(1) Evangeline Parish is the parish of proper venue for plaintiff’s action to compel defendant to convey the immovable back to him.

The trial judge went on to hold that plaintiff’s claim for credit (arising out of the mineral royalties) against the price of redemption is based on the same factual allegations as his action to compel the defendant to transfer the immovable property back to plaintiff. As such plaintiff’s claim for credit was properly cumulated with plaintiff’s claim for redemption, therefore, venue in Evangeline Parish was proper for this claim as well. Smith v. Baton Rouge Bank & Trust Company, 286 So.2d 394 (La. App. 4th Cir. 1973); Albritton v. McDonald, 363 So.2d 925 (La.App. 2nd Cir. 1978), writ denied 366 So.2d 561 (La.1979).

Since the ruling of the trial judge on this issue, redemption has occurred, and therefore, plaintiff’s redemption claim has become moot. Plaintiff now owns his mineral rights as originally conveyed, and the only issue for determination is whether appellant is entitled to have the redemption price diminished by the royalty payments received before the redemption. This remaining claim of plaintiff’s is a personal action (as opposed to a real action) by a creditor for a sum of money certain, i.e., a money judgment, to be brought in the court in Calcasieu Parish, where this estate is under administration. La.C.C.P. Article 81(1) supra. Therefore, defendant’s original exception to the venue of the royalty accounting claim should now be maintained, and plaintiff’s claim in this respect is hereby ordered dismissed without prejudice.

The trial judge denied the remainder of defendant’s exceptions with reasons as follows:

“DECLINATORY EXCEPTIONS OF INSUFFICIENCY OF SERVICE OF PROCESS AND INSUFFICIENCY OF CITATION.
Defendant failed to present any evidence or make any argument regarding these exceptions. I consider these exceptions abandoned.
DILATORY EXCEPTION OF PREMATURITY
Defendant cites LSA-C.C.P. Article 423, and contends that plaintiff’s action is premature. Essentially, defendant argues that plaintiff failed to tender the entire sum due for redemption of the property as required by the agreement.
The evidence shows that plaintiff has placed in the Registry of this Court the full sum necessary for him to exercise his right of redemption. Thus, this exception is now moot.
DILATORY EXCEPTION OF WANT OF AMICABLE DEMAND
Defendant contends that plaintiff failed to make amicable demand upon it as required by the agreement. I have reviewed the provisions of that agreement and find no such requirement therein. Further, defendant admitted that plaintiff had sent several letters to it expressing his desire to exercise his right of redemption prior to instituting this action. I find no merit in this exception.
DILATORY EXCEPTION OF UNAUTHORIZED USE OF SUMMARY PROCEEDING AND MANDAMUS
Plaintiff has conceded that it was improper for him to use summary procedure and the extraordinary remedy of mandamus. Plaintiff has agreed to convert his action to ordinary procedure and therefore, this exception is now moot.
DILATORY EXCEPTION OF VAGUENESS OR AMBIGUITY OF THE PETITION
Defendant's first contention is that plaintiff failed to specify in his petition the mode of procedure he will use in prosecuting his action. I know of no provision of law requiring a plaintiff to do this, and no authority has been cited to this court to show any such requirement..
Defendant’s second contention is that plaintiff failed to identify the document evidencing his agreement with decedent and failed to state where that document is recorded. Plaintiff’s supplemental and amended petition clearly identifies that document and provides specific information on where it is recorded.
Defendant’s third contention is that plaintiff failed to adequately describe the property, which is the subject of this action. Plaintiff’s original petition sets forth the exact same description of the property as those used in the agreement. The descriptions are adequate.
Defendant’s fourth contention is that plaintiff failed to set forth in his petition the manner in which he tendered performance. I have already noted that the evidence shows that plaintiff has placed the full sum necessary to exercise his right of redemption in the Registry of this Court.
Defendant finally contends that plaintiff failed to allege in his petition that he made an unconditional tender to defendant. The evidence, as noted, shows otherwise.
I find no merit in this exception.”

We have carefully reviewed the record, and find the trial judge properly denied these exceptions. Accordingly, for the reasons provided by the trial judge, we likewise deny the remainder of defendant’s exceptions.

For the above and foregoing reasons the judgment of the trial court is reversed in part, affirmed in part, and recast as follows:

It is hereby Ordered, Adjudged, and Decreed that the defendant’s Dilatory and Declinatory Exceptions of Improper Cumulation of Actions and Improper Venue, respectively, as concern plaintiff’s actions for damages quasi ex delicto and as concern plaintiff’s actions for return of mineral royalties improperly received by defendant are hereby granted, and plaintiff’s claims in these regards are hereby dismissed without prejudice.

It is further Ordered, Adjudged, and Decreed that defendant’s Declinatory Exception of Insufficiency of Service of Process and Insufficiency of Citation, Dilatory Exception of Prematurity, Dilatory Exception of Want of Amicable Demand, Dilatory Exception of Unauthorized Use of Summary Proceedings and Mandamus, and Dilatory Exception of Vagueness of Ambiguity of Petition are hereby denied.

It is further Ordered, Adjudged, and Decreed that costs incurred in connection with these exceptions at trial and on appeal are set equally between the parties.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . La.C.C.P. Article 80:
      “Art. 80. Action involving immovable property
      The following actions shall be brought in the parish where the immovable property is situated:
      (1) An action to assert an interest in immovable property, or a right in, to, or against immovable property, except as otherwise provided in Articles 72 and 2633; and”

      . La.C.C.P. Article 121:
      “Art. 121. Action brought in improper venue; transfer
      When an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice transfer it to a court of proper venue.”


author: FORET, Judge.

text:
    Richard Craig BROUSSARD, Plaintiff-Appellee, v. Donald James BREAUX, et ux, Defendants-Appellants.
    No. 8671.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.

      Leithead, Scott, Boudreau, Myrick & Richard, Everett R. Scott, Jr., Lake Charles, for defendants-appellants.
    McClain, Morgan & Savoy, R. Scott McClain, Lake Charles, for plaintiff-appel-lee-appellant.
    A. J. Fazzio, Lake Charles, for defendant-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

Richard Craig Broussard and his wife, Mary Joan Marye Broussard, (plaintiffs) brought this action in redhibition seeking the rescission of a sale of a certain piece of land, together with a house constructed thereon, they purchased from defendants, Donald James Breaux and his wife, Lucille Dever Breaux. Plaintiffs, by means of a supplemental and amending petition, subsequently limited their demand to a reduction of the price.

Defendants, after filing certain exceptions and answering plaintiffs’ petition, reconvened against plaintiffs, seeking a reduction of the sale conditioned upon the trial court’s taking of certain actions with respect to plaintiffs’ main demand. In addition, defendants brought a third party demand against Century 21 Guglielmo Real Estate Corporation, Inc., Jules E. Gugliel-mo, Pat Rawlins, and Dwight Anderson, (third party defendants) seeking full indemnity and/or contribution for any damages defendants might be condemned to pay plaintiffs and to recover from third party defendants any damages they might suffer as a result of plaintiffs’ successful prosecution of their action.

Trial of plaintiffs’ main demand, and the incidental actions, resulted in a judgment in favor of plaintiffs and against defendants, condemning defendants to pay to plaintiffs the full sum of $10,046.25 with legal interest from date of judicial demand until paid. The trial court further rendered judgment in favor of third party defendants and against third party plaintiffs (defendants), denying the third party demand.

Defendants appeal suspensively from the trial court’s judgment and raise the following issues:

(1) Whether the trial court abused its discretion in allowing plaintiffs to file a supplemental and amending petition limiting their demand to a reduction of the price just two days prior to trial;
(2) Whether a tender of the defective object of the sale back to the seller is a condition precedent for bringing an action for a reduction of the price;
(3) Whether the trial court committed manifest error in finding that plaintiffs were entitled to a reduction in the price based on the evidence presented;
(4) Whether the trial court committed manifest error in failing to order a rescission of the sale because of an alleged error in the principal cause or motive of defendants for entering into the contract, i.e., the price.

Plaintiffs have answered the appeal and raise the following issue:

Whether the trial court committed manifest error in basing its award to them on the cost of repairing the defects in the house at the time of sale, rather than at the time of trial.

Plaintiffs seek to have this Court raise the trial court’s award to them to $13,-060.12.

FACTS

Plaintiffs purchased a lot, together with a house constructed thereon, from defendants, on November 16, 1977, for the price of $54,000. The property is located in Lake Charles and bears municipal number 624 West LaGrange Street. Plaintiffs began to notice certain defects in the house shortly after moving therein, which grew worse with the passage of time. These defects included such things as: cracks where two walls met; floors that were slanted, not level; rotted and deteriorated eaves; ceilings that began to crack and sag; cracks in the exterior brick work; cracks in the cement slab on which the house was constructed; cracks appearing around door and window frames; and, the complete absence of insulation in the attic.

Plaintiffs instituted this action on October 5, 1978, alleging: the existence of some of the above mentioned defects in the house; that defendants had assured them that the house was in good order and repair; that a simple inspection by them had revealed no apparent defects in the house; that defendants were aware of these defects, but concealed them from plaintiffs; and, that if plaintiffs had known of the existence of these defects, they would not have purchased the house. Plaintiffs prayed: that the sale be rescinded; that defendants be ordered to reimburse them for certain expenses they incurred in purchasing and owning the house, i.e., interest payments made on the loan used to purchase the house, property taxes, expenses incurred in closing the sale, and premiums paid for insurance on the property; that they recover damages from defendants in the amount of $5,000 for inconvenience, embarrassment and mental anguish; and, that defendants be ordered to pay reasonable attorney’s fees of $4,000.

Defendants filed a dilatory exception of vagueness alleging that plaintiffs’ petition failed to sufficiently identify the structural defects in the house of which they were complaining. A hearing was held on this exception and the trial court overruled it. Defendants then filed a peremptory exception of no cause of action arguing that plaintiffs’ petition failed to allege that defendants had been tendered any specific demands to repair, remedy, or correct the defects or vices complained of. An answer, consisting of a general denial, was contained in the same pleading as the exception of no cause of action and included a prayer that plaintiffs’ claims and demands be dismissed at their costs. There is no indication in the record of how the trial court ruled, if at all, on the exception of no cause of action.

As for defendants’ third party demand, it is sufficient to simply note that defendants have raised no issue on appeal concerning the trial court’s judgment denying it, and that portion of the judgment is final.

Defendants filed a reconventional demand alleging that if the trial court found that redhibitory vices or defects existed in the house at the time of sale, and that plaintiffs were entitled to recover damages in an amount exceeding '/aith of the purchase price, then an error in the principal cause or motive for entering into the sale on their part existed, i.e., the price was below that for which they would have consented to or effected the sale. In this event, they prayed that the trial court declare the sale invalid and order it rescinded.

PLAINTIFFS’ AMENDMENT OF PETITION

Defendants contend that the trial court abused its discretion in allowing plaintiffs to amend their petition to convert their redhibitory action to an action for a reduction of the price since the supplemental and amending petition was filed just two days before trial.

LSA-C.C.P. Article 1151 provides, in pertinent part:

“Art. 1151. Amendment of petition and answer; answer to amended petition
A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.”

There was no written consent given by defendants to allow plaintiffs to amend their petition.

Under Louisiana jurisprudence and LSA-C.C.P. Article 1151, when there is no written consent to allow such by the adverse party, it is within the sound discretion of the trial court to accept or refuse an amendment to the petition after answer has been filed. The trial judge has much discretion in allowing amendments after an answer is filed, and his ruling will not be disturbed unless there has been an abuse of that discretion. Sikes v. McLean Trucking Company, 383 So.2d 111 (La.App. 3 Cir. 1980). That an amendment involves a departure from the facts previously alleged or a change in the theory of recovery or the relief requested, is no bar to its allowance, since consistency in pleading is not required. Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267 (La.1981).

Defendants argue that they filed their reconventional demand seeking, in the alternative, a rescission of the sale after plaintiffs filed their original petition, but prior to the time plaintiffs filed their supplemental and amending petition. They seem to argue that the trial court’s order allowing plaintiffs to file their supplemental and amending petition somehow precluded them from obtaining a rescission of the sale as prayed for in their reconventional demand. In essence, they contend that a seller should have the option of taking back the property sold, if the buyer proves the existence of some redhibitory vice or defect in the thing.

We find no merit to defendants’ contention. The right to rescind the sale for a redhibitory defect is personal to the buyer. LSA-C.C. Article 2520; Aucoin v. Fontenot, 334 So.2d 773 (La.App. 3 Cir. 1976).

We find no abuse of discretion by the trial court in allowing plaintiffs to file their supplemental and amending petition.

TENDER FOR REPAIR, REMEDY, OR CORRECTION OF VICES OR DEFECTS

Defendants contend that plaintiffs’ action for a reduction of the price should have been dismissed by the trial court because they failed to tender the house to defendants for repairs, remedy, or correction of the vices or defects alleged to exist therein. Defendants base their contention on the provisions of LSA-C.C. Articles 2544 and 2531.

LSA-C.C. Article 2544 provides:

“Art. 2544. Rules governing action for reduction of price
Art. 2544. The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.”

LSA-C.C. Article 2531 provides, in pertinent part:

“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.”

A tender of the object sold for repair of vices, while usually a condition precedent to an action in redhibition, is not required to maintain an action in quart ti minoris. Coffin v. LaBorde, 393 So.2d 915 (La.App. 4 Cir. 1981), writ denied, 396 So.2d 1349 (La.1981); Dunn v. Pauratore, 387 So.2d 1227 (La.App. 1 Cir. 1980); Rausch v. Hanberry, 377 So.2d 901 (La.App. 4 Cir. 1979); Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4 Cir. 1975).

We find no merit in defendants’ contention. However, we note that the evidence shows that plaintiffs contacted defendants on three occasions, prior to instituting their action, asking that defendants come to the house so that the defects could be pointed out to them. Defendants admit that they did nothing in response to these requests.

PROOF THAT VICES OR DEFECTS EXISTED AT TIME OF SALE

Defendants contend that plaintiffs failed to prove that the vices or defects complained of existed in the house at the time it was sold to them. Defendants argue that, in the absence of such proof, plaintiffs are unable to maintain an action for a reduction in the price. They base their argument on the provisions of LSA-C.C. Articles 2544, reproduced above, and 2530.

LSA-C.C. Article 2530 provides:

“Art. 2530. Proof of existence of vice before sale
Art. 2530. The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

A buyer who institutes an action for a reduction of the price bears the same burden of proof as one who institutes the redhibitory action, and must prove that the vice or defect existed, before the sale was made to him. Langlinais v. Soileau, 58 So.2d 274 (La.App. 1 Cir. 1952); Myers v. Southern Bus Sales, Inc., 347 So.2d 894 (La.App. 3 Cir. 1977); King v. Moore, 61 So.2d 253 (La.App. 2 Cir. 1952); Dwyer Lumber Company, Inc. v. Murphy Lumber and Supply Co., Inc., 116 So.2d 64 (La.App. 1 Cir. 1959).

LSA-C.C. Article 2541 provides:

“Art. 2541. Reduction of price for vices warranting redhibition
Art. 2541. Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”

It can be seen that, under the provisions of LSA-C.C. Articles 2530 and 2541, a buyer may maintain an action for a reduction of the price by proving that a defect existed in the thing sold, at the time of sale, which diminished the value of the thing, and it is not necessary that he prove the existence of a redhibitory vice or defect in the thing.

Pat Denby, a foundation repairman, was accepted by the court as an expert in the field of foundation repair. He testified that he inspected the house on July 13, 1978, some eight months after plaintiffs had purchased it. He stated that he found that the slab on which the house was constructed had failed in such a manner that parts of it were no longer level and that it would take quite a bit of work to relevel it. He was asked if he could determine how long this condition had existed, and it was his opinion that it had happened over a period of several years.

Denby based his opinion on a number of factors which he related to the court. He noted that when a slab fails, it will cause cracks to open up around window frames and that is what happened here. He found quite a bit of caulking around the window frames which was placed there in an apparent attempt to fill the cracks. He stated that it looked like the caulking had been painted over with what appeared to be relatively fresh paint. We note that defendants testified that they had painted the house just eight months before the sale. Denby also found evidence which indicated that certain doors on the inside of the house had been adjusted to compensate for effects the failing slab had on the door frames and that repairs had been made to sheetrock cracking under the stress being placed on it.

Earl Miller, a general contractor, was accepted by the court as an expert in the field of renovation and repair of residences. He stated that he inspected the house on July 18,1978, and found places where the soffit and fascia of the eaves of the house had deteriorated. He estimated that it would take approximately a year for conditions such as he observed to develop. This would place the beginning of the deterioration of these parts of the house some four months before the sale took place. Miller was unable to determine any specific cause for the cracks appearing in the sheetrock or around the window frames.

Fred Harris testified that he was an estimator and field superintendent for Realeo, Ltd., a general contracting firm. He was accepted by the court as an expert in the field of construction estimating for repair work. He stated that he inspected plaintiffs’ house shortly before trial for the purpose of estimating the cost of repairing some of the alleged defects. His testimony indicated that the defects had grown worse with the passage of time. He summarized his observations as follows:

“A Well, the outside, the brick is cracked; the slab is cracked, and the bricks are caved away, given away, windows away, cornice rotted, the overhang, several spots just — just about all the way around. All your caulking is pulled away. You can stick your fingers in it right now, and because of the slab cracking, all your sheetrock throughout, your doors are out of line, and just about all your ceilings and walls are cracked, both your ceilings, and that’s pretty general. You’d just about have to repaint and re-work the whole inside of the house.”

Harris was of the opinion that excessive amounts of caulking had been applied around window frames, etc., in a number of layers, in an effort to fill in the ever-widening cracks caused by the failing slab. He felt that the problems with the slab had existed for several years, although he couldn’t really say just how long they had existed. He expressed the opinion that the deterioration he observed in the soffit and fascia of the eaves was of such a degree that it had taken longer than three years to develop. Again, this would place the defects in those items as existing prior to the sale. He stated that these deteriorated areas had been painted over, but he was unable to tell if the paint had been applied to wood that was already rotten.

We find that plaintiffs have proved, by a preponderance of the evidence, that the defects complained of existed at the time they purchased the house from defendants.

APPARENCY OF DEFECTS

Defendants next contend that any defects that did exist in the house at the time of sale were such that plaintiffs could have discovered them by simple inspection. They argue that because of this, plaintiffs are unable to maintain an action for a reduction of the price. Defendants base this contention on the provisions of LSA-C.C. Articles 2544 and 2521.

LSA-C.C. Article 2521 provides:

“Art. 2521. Apparent defects discoverable by buyer
Art. 2521. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

The action for a reduction of the price being subject to the same rules and to the same limitations as the redhibitory action, it follows that if the defects complained of by the buyer are apparent, that is, such as he “might have discovered by simple inspection”, he cannot recover. Bayou Rapides Lumber Co. v. Davies, 221 La. 1099, 61 So.2d 885 (1952).

Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963), found that the term “simple inspection” as used in LSA-C.C. Article 2521 relieves the buyer of examining the inner or hidden parts of the object of the sale for the purpose of ascertaining the existence of latent defects. See also Olmstead v. Perrio, 401 So.2d 595 (La.App. 3 Cir. 1981).

Plaintiff, Mary Broussard, testified that she visited the house four times before she and her husband purchased it. On each of these visits, the house contained defendants’ furniture and the closets were filled with defendants’ clothing. This made it difficult for her to see any defect existing in the house. However, the defects began to manifest themselves after defendants moved all of their belongings out and she began to clean the house. By that time, plaintiffs had already purchased the house. Mrs. Broussard testified that she never saw any defects in the house on any of the visits she made prior to the sale.

Plaintiff, Richard Broussard, testified that he saw only two minor problems with the house on the visits he made prior to purchasing it. He saw that one of the gutters had what looked like putty on it, but it didn’t concern him since he was going to remove them. He also noticed a hairline crack above one of the bedroom doors. Mr. Broussard stated that he asked defendants if there were any problems with the house and they indicated to him that there were none. Mr. Breaux told him they had put a new roof on the house and that it had been painted recently. Mr. Breaux also told him that the attic of the house was insulated, but after he purchased the house, and crawled up in the attic, he found that there was none.

Pat Denby, accepted by the court as an expert in the field of foundation repair, acknowledged that he had written a letter, introduced in evidence, in which he stated, “... that a lot of caulking and painting concealed cracks and true condition of foundation to the average person, however being in this line of work it was obvious to me.” The letter was written at the same time that he made his inspection of the house, which was some eight months after the sale.

Rodney Reddoch testified that he was a real estate broker and appraiser, and that he appraised the house in connection with plaintiffs’ loan application to Guaranty Federal Savings & Loan Association of Lake Charles. He was accepted by the trial court as an expert in the field of real estate appraisal. He stated that he inspected the house when he made his appraisal and observed nothing that indicated the existence of any serious defects in it. His report, introduced in evidence, reflects this.

Jules Guglielmo testified that he had been engaged in the real estate business for over twenty years, and that he was licensed through the Louisiana Real Estate Commission. He stated that he accompanied plaintiffs to the house on one of their visits before they purchased it. Mr. Broussard asked him to look at the outside of the house, in particular, and asked him questions about the house as they walked around observing it. Plaintiff pointed to the spot where he observed putty on one of the gutters and Guglielmo advised him to remove them as they tended to rot the fascia boards behind them. Guglielmo then pointed out an area where some bricks had been regrouted, but told plaintiff that it probably had been done because the bricks had cracked. He could remember seeing nothing else of any significance on the exterior of the house. He stated that he thought the house was rather nice on the inside and that he didn’t really notice anything out of the ordinary. The only crack in the sheetrock he noticed was over one of the doors.

Dwight Anderson accompanied Mr. Broussard and Guglielmo on their walk around the house. He remembered Mr. Broussard asking about the crack in the bricks and suggested that Mr. Broussard get a structural engineer to take a look at it, if he was concerned about it. He, like Guglielmo, testified that there was no evidence of any crack in the slab itself directly below the area where the crack in the bricks was located.

Patricia Hawkins testified that she accompanied plaintiffs on their first visit to the house. She is also licensed by the Louisiana Real Estate Commission. She stated that she took plaintiffs around the interior of the home. She noticed the crack above one of the doors and that the door itself was dragging. She then suggested that Guglielmo and Anderson accompany plaintiffs on their next visit as she was relatively inexperienced in the real estate business, and did not fully understand what the crack and dragging door might indicate. She did believe that it could mean that the house was settling somewhat. However, she stated that she agreed with Guglielmo’s assessment that the house was a good buy for plaintiffs as they were able to get it for less than defendants had been asking for it.

We find that the defects existing in the house at the time of sale were such that they were not apparent upon a “simple inspection” by average persons such as plaintiffs and, in fact, were not apparent to some persons knowledgeable in the real estate business.

We conclude that the trial court correctly found that plaintiffs are entitled to a reduction in the price.

ALLEGED ERROR IN THE PRINCIPAL MOTIVE FOR CONTRACTING

Defendants contend that the trial court should have ordered a rescission of the sale as prayed for in their reconventional demand. They argue that an error exists in their principal motive for entering' into the contract of sale, i.e., they would have never sold their house at the reduced price ordered by the trial court. We find no merit to this contention. We would be reading LSA-C.C. Article 2541, quoted supra, out of the Civil Code if we accepted defendants’ contention.

AMOUNT OF REDUCTION IN PRICE

Plaintiffs have answered this appeal contending that the trial court committed manifest error in condemning defendants to pay $10,046.25 to them for repair of the defects found to exist in the house and, in effect, reducing the price by that amount. The record shows that this was the amount found necessary by the trial court to repair the defects as of the time of sale. Plaintiffs argue that the correct measure of recovery in cases such as this is the amount necessary to repair the defects at the time of trial. We agree with plaintiffs.

The measure of recovery in an action in quanti minoris involving a building is the amount necessary to convert the unsound structure into a sound one. Fraser v. Ameling, 277 So.2d 633 (La.1973); Lemoine v. Hebert, 395 So.2d 353 (La.App. 1 Cir. 1980); Maguire v. Masino, 325 So.2d 844 (La.App. 4 Cir. 1975).

It is our opinion that, in actions such as this, the proper measure of recovery is the amount necessary to convert the unsound structure into a sound one as of the date of trial, or the amount actually expended by the buyer to do so prior to trial.

David Lundy testified that he had been engaged in the building supply business for approximately twenty years. He estimated that it would cost $892.50 to insulate the attic at the time of trial. Defendants objected to this testimony on the ground that it would enlarge the pleadings. Defendants argued that plaintiffs had asked for only $491.40 for this item in their supplemental and amending petition. The trial court apparently agreed with defendants, but awarded plaintiffs only $446.25, finding this to be the amount necessary to insulate the attic at the time of sale. We conclude that the trial court committed manifest error in basing its award on the amounts necessary to remedy this defect on the date of sale. In addition, we find that Lundy’s testimony was not an enlargement of the pleadings.

Plaintiffs’ allegations contained in their supplemental and amending petition clearly identify the amounts set forth therein for repair of defects as being based on estimates obtained in mid-1978. Paragraph 11 of that pleading then sets forth the following:

“11.
“In as much as the estimates for re* pairs set forth in paragraph 10, as amended herein, were obtained three years ago, that the costs for such repairs will have increased substantially since then and your petitioner is entitled to recover the actual costs of such repairs as of the date of trial of this matter.”

It is clear that the allegations contained in paragraph 11 raise the issue of what would be the actual cost of repairs at the time of trial. Thus, Lundy’s testimony was directed toward an issue raised by the pleadings and should have been considered by the trial court. We find that the cost of insulating the attic at the time of trial is $892.50. However, see footnote 5, infra.

The trial court awarded plaintiffs $3,600 for repair of the soffit and fascia boards, sheetrock, etc. This was the amount estimated by Earl Miller as the cost of making those repairs on July 18, 1978, some eight months after the sale. Fred Harris estimated the cost of making those repairs on May 18,1981, some two days before trial, as being $6,655. The trial court accepted Miller’s estimate since it was made closer to the date of sale and was within the amounts set forth in plaintiffs’ supplemental and amending petition. For the reasons expressed above, we find that the trial court committed manifest error in awarding plaintiffs only $3,600 to make these repairs. See footnote 5, infra.

Finally, the trial court awarded plaintiffs $6,000 for the cost of repairs to the slab. This award was based on an estimate given by Pat Denby in mid-1978. Bill Chalmers estimated that it would cost $6,350 to repair the slab as of May 4, 1981, less than a month before trial. See footnote 5, infra.

We amend the trial court’s judgment to increase plaintiffs’ award to $13,060.12, the amount sought by plaintiffs in their answer to this appeal.

For the above and foregoing reasons, the trial court’s judgment is amended to increase the award in favor of plaintiffs and against defendants to $13,060.12 with legal interest thereon from date of judicial demand until paid. The trial court’s judgment is affirmed as amended.

All costs of this appeal are assessed agai nst defendants-appellants.

AFFIRMED AS AMENDED.

      . This suit was originally brought by Richard Craig Broussard as plaintiff. However, in response to a peremptory exception filed by defendants questioning his right to proceed without naming his wife, Mary Joan Marye Brous-sard, as a party plaintiff, the trial court allowed Broussard to orally amend his pleadings to name her as such with leave to file a written amendment to that effect.

      . The soffit,is the underside of the eaves of a house.

      . The fascia are the flat horizontal boards composing the eaves of a house.

      . Regrouting refers to the act of removing old mortar from bricks and replacing it with new mortar.

      . The evidence shows that it would have taken $13,897.50 to convert plaintiffs’ house from an unsound structure to a sound one at the time of trial. However, plaintiffs sought to have this Court increase the trial court’s award to only $13,060.12 in their answer to the appeal, and we will accordingly limit the increase to that amount.


author: CUTRER, Judge.

text:
    Warren  O. CHESSON, Sr. and Dories Chesson, Plaintiffs-Appellees, v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 8676.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Warren D. Ponder, Baton Rouge, for plaintiffs-appellants.
    Brame, Bergstedt & Brame, Joe A. Brame, Scofield & Associates, Richard E. Gerard, Lake Charles, for defendants-appel-lees.
    Baggett, McCall, Singleton & Ranier, Drew Ranier, Lake Charles, for plaintiffs-appellees.
    Before FORET, CUTRER and DOUCET, JJ.

      . The name in the caption is in error. “Warren O. Chesson’s” name is properly referred to in pleadings in the record as “Walter O. Ches-son.” We shall use the correct name in this opinion.

   CUTRER, Judge.

This appeal arises from a suit for damages incurred as a result of an intersectional vehicular collision.

The facts in this case are as follows:

On June 8, 1979, at approximately 5:00 P. M., plaintiff, Walter Chesson, Sr. (Walter), was driving the family automobile, with his wife, Dories Chesson (Dories), as a passenger, westerly on Louisiana Highway 3059 in Calcasieu Parish, Louisiana, approaching the intersection of La. 3059 and U. S. 171. This intersection forms a “T” as traffic on La. 3059 can only turn right (north) or left (south) onto U. S. 171. The intersection is controlled by semaphore traffic signals.

As Walter approached the intersection, the traffic signal controlling La. 3059 was red. Walter came to a stop. His light changed to green and he proceeded into the intersection with the intention of making a left turn so as to head south on U. S. 171. As he went into the intersection, his car was struck by the vehicle operated by defendant, Guy Dyess, who was proceeding north on U. S. 171.

The resulting impact overturned the Chesson vehicle twice with it landing on its roof. Walter was thrown out of the car and Dories was trapped inside. Several witnesses to the accident helped turn the Toyota over on its wheels and Dories was extracted by a rescue unit from Lake Charles. All parties suffered injuries and were transported by ambulance to a local hospital for treatment.

Walter and Dories filed suit to recover for their damages naming as defendants: Guy Dyess, individually (Dyess); Guy’s Cash & Carry Lumber Co. (Guy’s); his insurer, American Indemnity Company (American); and plaintiff’s uninsured and/or underinsured insurance carrier, Insurance Company of North America (INA).

A third party demand was filed by Dyess, Guy’s and American against the Louisiana Department of Transportation and Development (the Department), alleging that the accident was precipitated by a malfunction; ing light. The Chessons also added the Department as a party defendant.

Before trial could be had, Dyess died and his succession representative was made a party defendant. Later, and still before trial, Walter and Dories settled their claims against all defendants except the Department.

Following trial, judgment was rendered against the Department in the amount of $152,198.99. From that judgment the Department appealed. We affirm.

On appeal the Department raises the following issues:

(1) Whether the trial court erred in finding that the semaphore traffic signal was malfunctioning at the time of the accident;
(2) Whether the trial court abused its discretion in determining the amount of damages awarded; and
(3) Whether the trial court erred, as a matter of law, by not proportionately reducing the amount of damages awarded due to plaintiffs’ release of alleged joint tort-feasors.

MALFUNCTION OF TRAFFIC SIGNAL

The Department raises in its first assignment of error that the trial court erred in factually determining that the malfunctioning traffic signal caused the accident. The trial court considered the testimony of both plaintiffs’ and defendant’s witnesses concerning the traffic signal and concluded that the accident was caused by its malfunction.

Dories and Walter both testified that as they approached the intersection, the light showed red. They stopped and waited until the light turned green before proceeding into the intersection. Jerry Summers was proceeding north on U. S. 171 following the Dyess vehicle with one car intervening. Summers testified that as Dyess proceeded into the intersection, the light was showing green for Dyess. He stated that at the time of the impact the light changed to yellow.

This signal light had a history of malfunctioning. Five persons, who live in the vicinity of the light and who traveled through the intersection practically daily, testified that this signal regularly malfunctioned. Sam Tarleton, one of those local residents, testified that he had seen the light malfunction on numerous occasions prior to the accident. He stated that two days before the accident the signal was malfunctioning. He called the State Police each time he saw the malfunction. The most common malfunction was described by the witnesses as one where the light changes from green to red without the intermediate amber light coming on or that the amber light only comes on for just an instant. This was creating a dangerous condition as vehicles traveling on U. S. 171 would have no prior warning of the impending red light.

The state patrolman who investigated the accident stated that the light appeared to operate properly but did state that both drivers told him that they each had a green light.

William Sonnier, an apprentice electrician working for the Department on signal light maintenance, testified that he examined the light three days after the accident but found nothing wrong with it. He did state, however, that he had responded to numerous calls reporting this light to be malfunctioning or out of order prior to the accident. He also stated that it is possible for two signals to reflect the same color at the same time in different directions and that he had seen this occur.

After considering the evidence the trial judge concluded as follows:

“The Court must conclude that at the time of the accident, the traffic signals at the intersection of Highway 171 and Old Town Road [La. 3059] were functioning improperly so that both Walter O. Ches-son and Guy Dyess were relying on green lights facing their respective lanes of traffic."

We have examined the record thoroughly and conclude that the evidence supports the trial judge’s conclusion that the signal light was malfunctioning at the time of the accident. We cannot say that the trial judge was clearly wrong in this conclusion.

The testimony also reflects that the Department had notice of the inadequacy of such equipment. Numerous reports of the prior malfunction were made to the State Police, the most recent being two days before the accident.

As a matter of law, a high degree of care must be exacted of those whose obligation it is to maintain traffic signals. This rule is well founded and thoroughly established by the very nature of things. The speed of and increasing volume of traffic on our highways poses added control problems to authorities charged with the obligation of its regulation. “The greater degree of volume of traffic, the greater is the need for effective vehicular control, which includes properly functioning signals upon which motorists may rely with confidence." McDaniel v. Welsh, 234 So.2d 833 (La.App. 1st Cir. 1970).

We conclude that the Department was negligent in not properly maintaining or replacing this signal after repeated malfunction problems occurred. Such negligence led to the existence of a malfunctioning light which was the cause of the accident in question. We agree that the trial court properly held the Department liable for plaintiffs’ resulting injuries.

DAMAGES

The Department contends that the award of damages to Walter and Dories was excessive. We disagree.

The awards complained of appear in the judgment as follows:

“Pain and suffering of Walter 0. Chesson, Sr., disability and loss of earnings $60,000.00
“Pain and suffering of Dories Chesson, disability and loss of earnings and disfigurement 70,000.00”

The Department, in its brief, does not question the loss of earnings and refers to these two awards as general damages. We note that an element of special damages, “loss of earnings,” is included in each of the awards. The loss of earnings is not itemized and we do not know what amount the trial judge may have attributed to the “loss of earnings.” We have examined the record and find that there may have been some loss of earnings but such was insignificant compared to the general damages due to the injuries received by Walter and Dories. Even if the awards were solely general damages for personal injuries, the awards would not be excessive.

At impact, Walter was thrown from his car and suffered serious injuries. He was treated by Dr. David Drez, Jr., for “a fractured right third metacarpal shaft and an intertrochanteric fracture of the left hip which was minimally displaced.” The left hip required surgery whereby a hinge-plate was attached to the shaft of the femur and the hip. This kept pressure on the bone to allow healing to take place. Walter was hospitalized for six days and remained on crutches for six weeks before he could put full pressure on the leg and hip. Walter, at the time of trial, had a slight limp on his left side, complained of pain and the inability to do heavy lifting and squatting which is required of a paint and body man. The pain of which Walter complains is not uncommon for his injuries. As the leg and hip have mended, surgical removal of the plate may be necessary as its presence, some two years after implantation, has caused Walter to experience pain from bursitis. This removal will require surgery and a hospital stay of two or three days with the patient’s movements restricted to crutches for six weeks. Dr. Norman Morin examined Walter and noted that the fracture of the right third metacarpal resulted in a fifteen percent disability to his right hand and the hip injury resulted in a ten percent disability to his left hip.

Dories was seen by Dr. Clark Gun-derson in the emergency room and noted multiple injuries to her cervical spine. “Roentgenograms of the cervical spine showed a fracture of the ring of the first cervical vertebra; fracture through the pedi-cles of the seventh cervical vertebra and a complete dislocation of the body of the seventh cervical vertebra in relation to the first thoracic vertebra.” There was no injury to the spinal cord. Dories was placed in a “halo skeletal traction device” (a device whereby a metal halo is surgically attached to the skull by screws) which immobilizes the head and neck and traction is applied to reduce the dislocation of the cervical spine. In effect, the body is maintained rigid and immobile. This was required for four weeks before a “posterior cervical fusion from C6 to T1 was performed by wiring the spinous processes posteriorly and bone grafting from the posterior pelvis.” The patient was then placed back in traction and subsequently fitted with a cervical thoracic brace and discharged on August 1, 1979. Dories also sustained “a chipped fracture from the triquetrum as well as the lateral portion of the base of the fifth right metacarpal. In addition there was an avulsion fracture of the ulnar styloid process. This was treated with a splint to her right arm.” Dr. Gunderson was pleased with her recovery and anticipated no further surgery.

Dr. Morin examined Dories in April 1980 and noted that she complained of a loss of rotational mobility of her neck. She also complained of pain in her right hand, wrist and forearm as well as in the top of her left hand. Dories also testified at trial to pain associated with her injuries as well as an impairment of her ability to perform household and other activities. Dr. Morin estimated Dories’ injuries have resulted in a twenty-five percent partial permanent disability of the body as a whole with the right hand and wrist injury representing a five percent partial permanent disability of the right hand and wrist. He also noted that Dories would experience disabling neck pains from activities which require prolonged positions of the head and neck.

To buttress the Department’s argument for reduction of the award, it cites several cases. We have examined them but do not deem it necessary to discuss the awards in those cases. LSA-C.C. art. 1934(3) gives the trial court and/or jury much discretion in the assessment of general damages. The Supreme Court in Reck v. Stevens, 373 So.2d 498, 499-500 (La.1979), states in regard to appellate review of such an award:

‘“The primary question before the appellate court, then, is whether the judge or the jury in fixing the amount of the award has abused its great discretion vested in them by law. . . . [Prior deci-sional awards] relied upon may be similar in that each of them involve a similar injury such as broken arm, the loss of an eye or eyes, or the loss of some member of the body. Thereafter, however, the similarity ceases for each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances peculiar to the case under consideration. The primary purpose of the judge or jury in fixing the award in a personal injury case is to adequately compensate the injured person for his injury under the facts shown to exist in his case.’

We cannot find from our perusal of the record that the trial court clearly abused its discretion in making the awards. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). We find the awards to be adequate.

JOINT TORT-FEASORS: RELEASE

The Department urges that due to the release of the remaining defendants, it is entitled to a reduction of the awards proportionately. We disagree.

In order for the Department to be entitled to such a reduction, it must prove that the released defendants were joint tort-feasors with the Department. The mere allegation of negligence does not establish co-tort-feasor status. Richard v. Southwest Louisiana Hospital Association, 383 So.2d 83 (La.App. 3rd Cir. 1980), writ den., 385 So.2d 274 (La.1980). As we have previously noted, the sole cause of the accident in question was the malfunction of the signal light. The Department’s negligence was the cause of the accident. No other defendant was found to be at fault.

The Department cites Raley v. Carter, 401 So.2d 1006 (La.App. 1st Cir. 1981), to support its contention that the released defendants must be considered joint tort-fea-sors and reduction allowed. In Raley, the reduction was allowed. The court pointed out that:

“In this case, there is no evidence in the record from which we may determine the negligence or non-negligence of the parties released.”

The court in Raley held that since there was no evidence from which it could determine the negligence of the released parties, the plaintiff was bound by his pleadings and a reduction was allowed.

We distinguish Raley from the case at hand. The evidence conclusively reflects that the accident was caused solely by the negligence of the Department. The lack of negligence of the released defendants was also proven. The equitable result reached in Raley is not applicable to the facts at hand. The Department’s claim for reduction will be disallowed. In conclusion, we note that the trial judge assessed costs of the trial court as follows:

“... insofar as applicable, costs are assessed against the said Defendant State of Louisiana through the Department of Transportation and Development.”

This portion of the trial court judgment must be amended in order to comply with LSA-R.S. 13:5112(A) which requires that a judgment for costs assessed against the State shall set forth such costs in a dollar amount. The trial court judgment shall be amended to comply with this statute.

For the reasons assigned, the judgment of the trial court against the State of Louisiana through the Department of Transportation and Development is amended to fix all costs of the trial court against the State of Louisiana through the Department of Transportation and Development, pursuant to LSA-R.S. 13:5112(A) in the sum of $1,107.25 In all other respects, the judgment of the trial court is affirmed.

Costs of this appeal are fixed in the amount of $385.00 and are to be paid by the State of Louisiana through the Department of Transportation and Development.

AMENDED AND AFFIRMED.

      . The settlement reserved plaintiffs’ rights against the Department and would hold harmless defendants for the first $80,000.00 in a judgment and would equally divide any judgment in excess of $80,000.00 between plaintiffs and defendants. Defendants would apportion their half in proportion to the amount each contributed to the settlement figure.

      . Writs were granted in this case on October 16, 1981. The writs are pending at this time. See 406 So.2d 616 (La.1981).