author: CUTRER, Judge.

text:
    PLANTERS SECURITIES CO., INC., Plaintiff-Appellee, v. Daniel RICHARD et al., Defendants-Appellants. STELLY CONSTRUCTION, INC., Plaintiff-Appellee, v. Daniel RICHARD, Defendant-Appellant.
    Nos. 7530, 7531.
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 1980.
    On Rehearing Aug. 14, 1980.

      Donald J. Richard, Opelousas, for defendants — appellants.
    John Haas Weinstein, Opelousas, Devillier & Ardoin, Kenneth Pitre, Eunice, Lewis & Lewis, Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for plaintiff-appellee.
    Before CUTRER, SWIFT and DOUCET, JJ.
   CUTRER, Judge.

MOTION TO DISMISS

An ex proprio motu order was issued herein directing appellant, Daniel Richard, to show cause why his appeal should not be dismissed. The appellant has not answered the order to show cause.

On January 23, 1978, Stelly Construction, Inc. instituted suit against defendant, Daniel Richard, seeking to recover the sum of $1,920.00 allegedly due under a contract in which Stelly agreed to clear defendant’s land.

On May 3, 1978, Planters Securities, Inc. filed suit against Daniel Richard and Stelly Construction, Inc. seeking damages sustained as a result of the defendant’s trespass on plaintiff’s land.

On motion of Daniel Richard, the two cases, presenting common issue of fact, were consolidated for trial.

Following a trial, on June 11, 1979, a judgment was rendered by the court in favor of Stelly Construction, Inc. and against Daniel Richard in the sum of $990.00. The judgment further ordered that costs in Stelly Construction, Inc. v. Daniel Richard (Number 7531) be divided equally between the parties. The judgment is silent as to the claim of Planters Securities against Daniel Richard and Stelly Construction, Inc.

On June 11, 1979, Daniel Richard filed a motion for new trial in the cause entitled Planters Securities Co., Inc. v. Daniel Richard, et al. (Number 7530). On June 25, 1979, the trial judge denied the motion for new trial. On July 20, 1979, Daniel Richard moved for an appeal in the cause entitled Planters Securities Co., Inc. v. Daniel Richard, et al. The trial judge entered an order of appeal granting Daniel Richard’s motion.

The issue which faces this court is whether Daniel Richard perfected a valid appeal from the judgment rendered in Stelly Construction, Inc. v. Daniel Richard.

The jurisprudence has held that unless a party obtains an order of appeal duly granted by the trial court, there can be no appeal. Davis v. Funderburk, 274 So.2d 781 (La.App. 3rd Cir. 1973).

An examination of the record reveals that although appellant did obtain an order of appeal in Planters Securities Co., Inc. v. Daniel Richard, et al., no order of appeal was granted by the court in Stelly Construction, Inc. v. Daniel Richard. Since no order of appeal was granted the purported appeal in Stelly Construction, Inc. v. Daniel Richard is dismissed.

We need not consider the appeal in Planters Securities Co., Inc. v. Daniel Richard, et al., because appellant has advised this court that the matter has been settled.

Accordingly, the motion to dismiss is made absolute and the appeal in Stelly Construction, Inc. v. Daniel Richard is dismissed.

APPEAL DISMISSED.

ON REHEARING

By an order of this court, we dismissed the appeal of Daniel Richard, ex proprio motu, on the ground that Richard had not effectuated an appeal in the case of Stelly Construction, Inc. v. Daniel Richard, but that the order of appeal only pertained to the consolidated case of Planters Securities Co., Inc. v. Daniel Richard, et al. This court was notified that the Planters case had been settled, thus, we did not consider the appeal in that case.

Following the dismissal of the appeal in the Steliy case, more documents were filed in the record; namely, the transcript of the arguments for a new trial, a memorandum and a letter submitted to the trial court regarding the motion for a new trial. The memorandum and letter were captioned Stelly Construction, Inc. v. Daniel Richard. A reconsideration of the record along with the additional filings convinces us that we committed error in our dismissal of the appeal. We now agree that Daniel Richard intended to and did appeal the judgment rendered in the Steliy case and not the Planters case.

On January 23, 1978, Steliy Construction, Inc. brought suit against Daniel Richard, seeking to recover $1,920.00 allegedly due Steliy for the clearing of Richard’s land.

On May 3, 1978, Planters Securities Co., Inc. brought suit against Daniel Richard and Steliy Construction, Inc. for damages arising out of an alleged trespass on Planters’ land by defendants.

These two cases were consolidated for trial.

At the beginning of trial, counsel for all parties stipulated that Planters had sustained damages in the amount of $1,300.00. The only issue remaining in Planters was the question as to who was liable for the $1,300.00. The trial on the merits concerned principally the issue of the price to be paid Steliy for the land cleared in error.

Reasons for judgment were filed by the trial court on April 23, 1979. The reasons contained the caption of both the Planters and Steliy cases, but a reading of the reasons reflects that they only dealt with the Steliy case. The trial court awarded Steliy “50% of 12 acres at $165.00 per acre” ($990.00).

A formal judgment was signed June 11, 1979 rendering judgment in favor of Stelly Construction, Inc. and against Daniel Richard for the sum of $990.00 plus interest. This judgment was captioned Stelly Construction, Inc. v. Dan Richard and Planters Securities Co., Inc. v. Daniel Richard, et al. On the same day, June 11, 1979, a motion for a new trial was filed by counsel for Richard. This motion carried the caption of the Planters suit but reflected the docket number of both suits. The motion referred to the judgment rendered on June 11, 1979 (judgment in favor of Steliy and against Richard).

A rule, mailed by the clerk, was addressed to Steliy Construction, Inc., ordering Steliy to show cause on June 22, 1979 why the judgment dated June 11, 1979 should not be set aside.

The motion for a new trial was heard on June 22, 1979. The arguments were transcribed, and since our dismissal, have been included in the record. A reading of these arguments reflects that the motion for a new trial concerned only the Steliy case. The memorandum, which has also been included in the record since our dismissal, pertains to Richard’s argument for a new trial in only the Steliy case.

On June 25, 1979, the trial court handed down reasons for denying the motion for a new trial. This document is captioned Planters Securities Co., Inc. v. Daniel Richard, et al. A reading of the reasons, however, reveals that they were reasons for denying the motion for a new trial filed in the Steliy case.

On July 20, 1979, Richard filed a motion for a suspensive appeal wherein he stated:

“Petitioner desires to appeal suspen-sively from the final judgment rendered in the above cause on the 25th day of June, 1979.”

A cash appeal bond of $1,500.00 was filed July 23, 1979.

No formal judgment appears in the record disposing of the Planters case.

We note that caption errors appear in the record as we have pointed out above. When we consider all the proceedings, however, the judgment in the Stelly case, the arguments of counsel at the hearing on the motion for a new trial, memorandum submitted in support thereof, the fact that the only judgment rendered in these cases was a judgment in the Stelly case, the sequence of events and the dates thereof, we come to the conclusion that the errors of captions were inadvertent and that Richard intended to and did actually appeal the judgment rendered in Stelly Construction, Inc. v. Daniel Richard.

The law of this state favors appeals and appeals are to be maintained unless a legal ground for dismissal is clearly shown. Davidge v. Magliola, 346 So.2d 177 (La.1977). The inadvertent errors of captions herein do not present such a legal ground for a dismissal.

For these reasons, the application for a rehearing is granted, our original order dismissing the appeal herein is hereby vacated and set aside. It is ordered that the appeal herein shall be reinstated and shall be considered as an appeal from the judgment rendered in the case of Stelly Construction, Inc. v. Daniel Richard, bearing our Docket Number 7531.

REHEARING GRANTED; APPEAL REINSTATED.

      . This date was erroneously set forth as “1970” in the rule but this was obvious error and should be 1979.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Arenithie WHITE, for the Use and Benefit of James Henry White v. C. Paul PHELPS et al.
    No. 13388.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Cyrus J. Greco, Baton Rouge, for plaintiff-appellant, Arenithie White.
    Arthur E. Stallworth, Staff Atty., Baton Rouge, for defendant-appellee, C. Paul Phelps, et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a wrongful death action filed on behalf of a minor, James Henry White, whose father, James Henry Munson, was stabbed to death by two fellow inmates at Louisiana State Penitentiary at Angola. From a trial court judgment denying relief, the plaintiff has appealed.

At issue is whether the State and/or its employees breached their duty of care in allowing the two inmates to possess knives which were used in the stabbing death of inmate Munson.

The plaintiff, Arenithie White, mother and natural tutrix of the minor White, filed suit December 1, 1977, for the wrongful killing of Munson which occurred January 5, 1977. Named as defendants are the State of Louisiana, Through the Department of Corrections; C. Paul Phelps, Secretary of the Department; Ross Maggio, Warden of Angola; Ronald Dupree and Mulen Moses, shift supervisors at Angola; and Pat Turk, Floyd R. Payne, Michael Lachney and Wayne Mayeaux, correctional officers at Angola.

The plaintiff’s principal allegation is that the defendant Moses had actual knowledge prior to the stabbing that several fights had occurred between Munson and one of the inmates accused of killing him, but that Moses and the other defendants took no action to assure that physical harm to the plaintiff’s father did not ensue. The defendants denied that they knew or had reason to know that such a violent killing would befall inmate Munson. They claimed, alternatively, that the plaintiff’s suit is barred by Munson’s contributory negligence and assumption of risk.

The testimony showed that the killing took place at around noon on January 5, 1977, while the inmates were lining up to eat lunch in the medium security yard kitchen. The officers on duty noticed a disturbance in the lunch line and immediately thereafter saw the two inmates chasing Munson away from the line. The officers reacted quickly to the disturbance, but the stabbing occurred so swiftly that they were helpless to do anything about it. The two inmates each made three quick thrusts with their homemade knives into Munson’s body, and Munson was dead by the time he reached the prison hospital. There are indications in the testimony and in the briefs filed by counsel that Munson had attempted to homosexually harass one of his killers prior to the stabbing. While such harassment may have been the motive for the killing, it has little if any bearing on the outcome of this case.

The evidence also shows that defendant Moses witnessed an altercation between Munson and one of his killers some 10 to 15 days prior to the killing. There was no disciplinary action taken as a result of this fight, but Moses testified he spoke to each of the inmates involved and was later assured by Munson that the rift between him and the other inmate had been settled.

Other evidence indicates that Angola authorities conducted random searches for contraband on a daily basis at the prison. Besides the random searches, inmates who entered their dormitory areas from outside areas were frisked as they entered their living quarters. While not every prisoner was searched for weapons every day, the evidence as a whole indicates that the Angola shakedown schedule was conducted with sufficient frequency to detect much of the contraband that filtered into the prison.

Warden Maggio admitted that the shakedown system, which was partially effected by the use of metal detectors, was not 100 per cent foolproof. Nevertheless, he claimed that the shakedowns had been a major deterrent in decreasing violent crimes since the prison came under federal court order in 1975. Maggio suggested that the rigorous shakedowns contributed to transforming Angola from perhaps the bloodiest prison in the nation between 1971 and 1975 to perhaps one of the safest prisons in the country at the time of the killing in this case. The stabbing death of Munson was the only one which occurred in 1977, compared to 11 in 1975, 10 in 1973 and 8 in 1972.

The Warden also explained that Angola’s policy is to segregate any prisoners who have enough bad blood between them to indicate that future violence is likely to occur. A minor fist fight or scuffle, however, will seldom merit permanent segregation and lockdown. The Warden also said that about 50 per cent of the stabbings in the penitentiary are homosexually related, and that the pattern of aggressive homosexual violence was partially the reason for the federal court order in 1975. Since the prison came under federal court order, additional cell blocks have been built to accommodate aggressive homosexual individuals.

The Angola employees who testified at trial said they had no indication that the two inmates planned to stab Munson, that the two inmates possessed knives or that any warning whatsoever of danger to Mun-son’s personal well-being had been given.

The standard of care to which the state penitentiary and its employees is held in cases of violence by one inmate upon another was laid down by the Louisiana Supreme Court in Parker v. State, 282 So.2d 483 (La.1973). In Parker, the court adopted the majority rule that penal authorities will be held liable for injury inflicted upon one inmate by another inmate if they know or have reason to anticipate that the harm will ensue. The penal institution is not an insurer of an inmate’s safety against attacks from other inmates, but must use reasonable care in preventing any harm. Notice of a feared attack alone is insufficient to support liability. For liability to attach, the court said, “the law requires at least adequate reason to anticipate harm and failure to take reasonable action to avert it.” 282 So.2d at 486.

The trial judge found as a fact that the stabbing incident took place suddenly and without warning. He also found as a fact that Officer Moses witnessed an altercation between Munson and one of his adversaries, but that Moses learned in later casual conversations that the problems between the two inmates had been settled. Based primarily upon these two factual findings, the court found that the plaintiff had failed to prove her case by a preponderance of the evidence.

We do not feel that the trial court’s factual findings were erroneous. The preponderance of the evidence shows that the only knowledge that the prison officials had of bad blood between Munson and his adversaries was the minor altercation that Officer Moses witnessed some 10 to 15 days prior to the stabbing death. Moses reasonably believed that no further violence would result. The evidence is also clear that the stabbing took place so quickly that none of the officers on the scene could react swiftly enough to prevent it. Additionally, the evidence is clear that Angola’s system of random shakedowns for contraband was reasonable under the circumstances and that the prison did not violate its duty by failing to detect the knives used in this killing.

These findings lead to the inescapable conclusion that the prison and its employees fulfilled their duty of care to the inmate who was killed. The stabbing death of Munson was a tragic occurrence which reflects the violent atmosphere seething in Angola and other prisons throughout this country. We cannot hold, however, that the mere fact that a stabbing occurs is sufficient to impose liability upon the State and its employees.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Wanda G. REYNAUD v. Morris REYNAUD.
    No. 13389.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Joseph P. Brantley, IV, Baton Rouge, for plaintiff-appellee, Wanda G. Reynaud.
    George F. McGowin, Baton Rouge, for defendant-appellant, Morris Reynaud.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

Wanda G. Reynaud and Morris Reynaud, both of whom were domiciliaries of Texas at the time, were divorced in Texas on November 29, 1971. Mrs. Reynaud was awarded custody of their 2% year old child. She was also awarded the sum of $80.00 monthly as child support, which monthly payments have been regularly made and are not in arrears. After the divorce, she and the child moved to live with her mother in East Baton Rouge Parish, Louisiana. She is presently employed by Guaranty Income Insurance Company at a salary of about $800.00 monthly. On February 2, 1976, Mr. Reynaud also moved to East Baton Rouge Parish where he makes his domicile. He has remarried, and he and his wife have two children. Defendant is employed as senior instrument designer for Process Services, Incorporated at a salary of between $2,100.00 and $2,300.00 per month. Both parties list their expenses as absorbing their incomes.

Mrs. Reynaud has instituted this suit to have the Texas divorce judgment recognized and made executory in Louisiana for the purpose of having the award of child support increased. The defendant excepted to the jurisdiction of the Louisiana court over the subject matter of the action on the ground that the Texas court had already assumed jurisdiction over the matter, had rendered judgments thereon, and was exercising continuing jurisdiction which prevented the Louisiana courts from taking jurisdiction or concurrent jurisdiction over the instant suit. The exception was overruled, and in due course the suit came on for trial, after which the judge rendered judgment recognizing and making executo-ry the Texas decree, and increasing the award of child support to the sum of $175.00 per month, payable semimonthly. The defendant has appealed. We affirm.

It is established that a judgment of a sister state ordering payment of child support is not entitled to full faith and credit in Louisiana if the laws of the state which rendered the judgment allow modification as to accrued installments. Lee v. Lee, 343 So.2d 428 (La.App. 3 Cir. 1977). On the other hand, if the accrued installments are not subject to modification at the discretion of the court under the laws of the state rendering the judgment, the judgment of a sister state ordering payment of child support must be given full faith and credit. Childers v. Childers, 373 So.2d 1388 (La.App. 1 Cir. 1979). Where modification is not permitted under the laws of a sister state, the judgment is considered final even though it may be modified as to future payments, and must be recognized and enforced when suit is brought on the judgment in a state other than the state in which the judgment was rendered. Baldwin v. Baldwin, 337 So.2d 245 (La.App. 3 Cir. 1976).

We have examined the laws of the state of Texas and are convinced that the Texas judgment in the instant case, insofar as accrued installments are concerned, can not be modified. Hence, this judgment of our sister state, Texas, is a final judgment entitled to full faith and credit and recognition by Louisiana courts.

In interpreting Texas laws where the mother sought to have a Texas divorce judgment recognized in this State, to have arrearages in child support payments fixed, and judgment rendered for the amount due, the Court in Baldwin v. Baldwin, supra, held that since the support decree could not be modified as to accrued installments under Texas laws, the judgment was entitled to full faith and credit in Louisiana.

The Texas judgment decreeing child support in the instant case, like the Baldwin judgment, can not be modified as to accrued installments; consequently, we find that we are required to give full faith and credit to it.

The defendant-appellant states his position as follows:

“Appellant, however, is appealing only that part of the judgment wherein the trial judge extended full faith and credit to (apparently) the whole of the foreign decree, which necessarily embraces the Texas court’s award of future periodic alimony [child support] payments, as well as his subsequent modification thereof. “Appellant does not appeal the recognition of the Texas divorce per se, nor does he appeal the merits of the support increase to $175.00 per month, if it is finally determined that the trial court had the authority to proceed as it did and to render the judgment complained of. If appellant’s position is determined to be correct, then, of course, no change from the original $80.00 award would be possible.”
(Emphasis by appellant.)

In other words, it is the appellant’s contention that if Louisiana courts must give full faith and credit to this divorce judgment, only the Texas court rendering the judgment has jurisdiction over the question of child support or any modification thereof. The appellant’s argument is that in order to modify this Texas support decree, the parties, although now domiciled and living in Louisiana, must return to Texas if they want to change the amount of child support.

In order to decide whether or not Louisiana courts are permitted, to modify the award of child support fixed in the Texas judgment, we again must consider the Full Faith and Credit Clause and its implementing statute, 28 U.S.C. § 1738, as construed by the jurisprudence. See Simons v. Miami Beach First National Bank, 381 U.S. 81, 85 S.Ct. 1315, 14 L.Ed.2d 232 (1965); Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963); Annot. 14 L.Ed.2d 917.

We believe that the constitutional clause and the implementing statute mandate that the courts of each state must give judgments of the courts of every other state the same effect which the judgment would be accorded in the state which rendered it. It is clear that a foreign judgment has no constitutional claim to a more conclusive effect in the forum state than in the rendering state; the forum state is required to attach no greater importance to a foreign judgment than the state rendering it. State ex rel. Cahill v. James, 172 So.2d 299 (La.App. 1 Cir. 1965). Thus, so far as the full faith and credit clause is concerned, what Texas could do to modify the support decree, Louisiana may do. See State ex rel. Girtman v. Ricketson, 221 La. 691, 60 So.2d 88 (1952). In Texas, a child support decree is subject to modification of future payments (not accrued payments) for changed circumstances. Consequently, it was proper for the Louisiana court below to consider whether to grant an increase in child support payments. Where a party petitions for an increase in the support award, as in the instant case, the party seeking the modification need only prove changed circumstances of a nature to convince the court that the requested change (increase/decrease) is warranted. Gardner v. Gardner, 366 So.2d 1022 (La.App. 1 Cir. 1978); Mittelbronn v. Mittelbronn, 363 So.2d 1312 (La.App. 4 Cir. 1978).

Por the foregoing reasons, we hold that constitutional full faith and credit allows Louisiana courts to modify this Texas judgment as to future support payments. Accordingly, we affirm the trial court’s judgment at the appellant’s costs.

AFFIRMED.

      . The Full Faith and Credit Clause, Article IV, Section 1, of the Constitution of the United States provides:
      “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
      This Clause is implemented by 28 U.S.C. § 1738 which sets out the manner for authenticating the documents for use in other states. This statute also provides:
      “Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.”

      . The Texas Family Code provides as follows in Section 14.08(c):
      “After a hearing and on finding that the circumstances of the child have materially and substantially changed and that modification is in the best interest of the child, any order or part of an order may be modified, except that an order providing for support for a child may be modified only as to obligations accruing subsequent to the motion to modify-”

        The parties stipulated that under Texas law a Texas court is powerless to modify the support provisions of a divorce decree as to installments which have accrued. (R 60).

      . It is well settled that Louisiana courts are powerless to deny a final judgment of a sister state full faith and credit unless the court of the state rendering the judgment lacked jurisdiction over the parties or the subject matter involved in the action. Holden v. Holden, 374 So.2d 749 (La.App. 3 Cir. 1979).

      . The Louisiana court below had personal jurisdiction over the defendant since he was domiciled in East Baton Rouge Parish, Louisiana, and was properly served with process. A judgment for child support is a personal judgment, and the court has legal authority and power to render such a judgment only if it has jurisdiction over the person of the party against whom judgment is sought. See Imperial v. Hardy, 302 So.2d 5 (La.1974).
      The Court in Imperial v. Hardy, supra, explained (302 So.2d at 7):
      “While custody involves status and jurisdiction over the status is prdper at the domicile of the children, alimony (child support) does not involve status. It requires a money judgment supported by personal jurisdiction over the party cast. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878); Baker v. Jewell, 114 La. 726, 38 So. 532 (1905). Jurisdiction over the person is the legal power of the court to render a personal judgment against a party to an action or proceeding.”

      . In his brief, appellant concedes the “merits” of the support increase to $175.00 per month if the trial court had authority to modify the Texas judgment.


author: COLE, Judge.

text:
    RAMSEY RIVER ROAD PROPERTY OWNERS ASSOCIATION, INC. v. Charles E. REEVES et al.
    No. 13391.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      J. Arthur Smith, III, Frederick W. Ellis, Jr., Baton Rouge, Neville M. Landry, Cov-ington, for plaintiff, appellee.
    Perrin C. Butler, New Orleans, Larry J. Green, Covington, for defendants, appellants.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a suit by a property owners association which seeks to enjoin the construction of a bridge over an allegedly navigable waterway.

The defendants are owners of real estate located in Sections 15, 16, and 44 of Township 6 South, Range 11 East of St. Tammany Parish, Louisiana, some of which is adjacent to the Bogue Falaya River. They propose to build a bridge across that river in the vicinity of their property to facilitate the development of a subdivision.

Plaintiff contends the river is navigable in law because it was, in fact, navigable at the time Louisiana was admitted to the Union in 1812 and is, therefore, a public waterway which cannot be privately bridged. The district court granted the relief sought by the plaintiff and permanently enjoined construction of the span. We conclude the judgment must be affirmed.

The legal considerations pertaining to a determination of the navigability of a body of water have been set out by the courts of this state on many occasions. Upon its admission to statehood, the state of Louisiana became the owner of the beds of the navigable waters within its boundaries. Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975); Smith v. Dixie Oil Co., 156 La. 691, 101 So. 24 (1924). In D’Albora v. Garcia, 144 So.2d 911 (La.App. 4th Cir. 1962), these settled principles are stated:

“A test of the navigability of water bottoms is that those which are navigable in fact must be regarded as navigable in law, and they are navigable in fact when they are so used or are susceptible to such use, or are shown to be capable of commercial use. United States v. Utah, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844; Packer v. Bird, 137 U.S. 661, 667, 11 S.Ct. 210, 211, 34 L.Ed. 819; The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999, 1001; Olin Gas Transmission Corp. v. Harrison, La.App. 1st Cir. 1961, 132 So.2d 721, 726 (writs refused).
“It was particularly noted in the Packer case that it is the susceptibility of use as highways of commerce which gives sanction to the public right of control to the exclusion of private ownership of either the waters or the soils under them. Thus, it has been emphasized that the capability of use by the public for purposes of transportation and commerce affords the true criterion of navigability rather than the extent and manner of use. Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 123, 41 S.Ct. 409, 412, 65 L.Ed. 847; United States v. The Montello, Etc., 20 Wall. 430, 22 L.Ed. 391. Nor, as was pointed out in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243, does the lack of commercial traffic preclude a conclusion of navigability where personal or private use by boats demonstrates the navigability of the stream for a type of commercial navigation.
“Thus, the general rule is stated in 56 Am.Jur., p. 645, ‘Waters,’ § 179:
‘Navigability, in the sense of actual usability for navigation or navigability in fact, as a legal concept embracing both public and private interests, is not susceptible of definition or determination by a precise formula which fits every type of stream or body of water under all circumstances and at all times. A general definition or test which has frequently been approved is that rivers or other bodies of water are navigable when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.
This general rule has been followed and applied in numerous cases by the United States Supreme Court. In addition to the authorities hereinabove cited, reference is made to the following cases: United States v. Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267; United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465; Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140; Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820. The jurisprudence of the State of Louisiana likewise supports the general rule. State v. Jefferson Island Salt Mining Co., 183 La. 304, 163 So. 145; State v. Sweet Lake Land & Oil Co., 164 La. 240, 113 So. 833; State ex rel. Board of Com’rs of Atchafalaya Basin Levee Dist. v. Capdeville, 146 La. 94, 83 So. 421 [cert. den. 252 U.S. 581, 40 S.Ct. 346, 64 L.Ed. 727],
“It was particularly pointed out in the United States v. Appalachian Electric Power Co. case, supra, that the conditions of exploration and settlement of an area explained the infrequency or limited nature of such use of waters as highways of commerce, and that the lack of commercial traffic does not preclude the conclusion that a body of water is navigable where personal or private use demonstrates the capability of the stream for a type of commercial navigation; the question of the availability of the body for navigation is controlling rather than the extent of commerce conducted thereon. A similar observation was made by the Louisiana Supreme Court in State v. Jefferson Island Salt Mining Co., supra.
“Nor, has it been held that in order for a water body to be navigable it must be such as all times, inasmuch as its navigability is not destroyed because of interruptions by occasional obstructions (Goodwill v. Police Jury of Bossier Parish, 38 La.Ann. 752); * * * ”

Our courts have also recognized that a determination of navigability does not necessarily involve an inquiry into whether the body of water is susceptible to modern means of travel, but rather, that methods of transportation used in the era involved in the particular case being considered must be examined. As quoted in Smith v. Dixie Oil Co., supra:

“ ‘It must be remembered that navigation in 1812, and for a number of years thereafter in the South, meant transportation by scows, rafts, dugouts, and canoes.’ ”

Therefore, if the waterway in question was used for the purposes of trade and commerce in 1812, it is to be considered to have been a navigable body of water although it may no longer serve that purpose. From our review of this record, we are persuaded, as was the trial judge, that the Bogue Falaya River, at the site of the proposed bridge, was navigable at that period of time and after, and that it is now within the domain of the state of Louisiana.

The site of the proposed bridge is approximately four miles north of the city of Covington, Louisiana. At that location, the evidence indicates the river is about ninety to one hundred feet in width and is shallow, having a usual depth of one to two feet. However, during the spring high water period, its depth increases greatly and it is not uncommon for the river to overflow its banks during those times.

The historical information presented shows in the area with which we are concerned landowners in the early nineteenth century commercially operated sawmills and grist mills and the river was an important part of the local economy. Considerable evidence was presented which demonstrated timber and other forest products were regularly floated down the Bogue Fa-laya for marketing by way of rafts and in the time period before railways appeared, the river was the only economically feasible way available to transport logs. The remains of a milling operation in that area has been located and identified.

Of great importance also is the decision of the Supreme Court of this state in Ingram v. Police Jury of the Parish of St. Tammany, 20 La.Ann. 226 (1868). At issue there was the navigability of the Bogue Falaya at a point about one mile north of the city of Covington. There, the court said:

“If this bayou or river be navigable, the defendants have no right to build the contemplated bridge, unless it be erected on such a plan that it will not obstruct the free navigation of said river.
“Captain John Thompson, testified:
‘He is captain of the steamer Aurora, running from the Sulphur Spring to New Orleans, carrying bricks: The Sul-phur Spring is on the Bayou Falia river in the parish of St. Tammany. This Steamer runs above that point and place to the brick-yard of plaintiff. The Aurora carries 20,000 bricks; her tonnage is forty-five tons registered; where the brick-yard is, the channel is about twenty feet wide in low-water, and about thirty feet in high-water; the draft of this boat is four feet loaded; he has been running this boat a month and has made regular trips from the brick-yard to the Basin in New Orleans; from his knowledge of this river, it is navigable between the two points mentioned for vessels and small size steamers that usually navigate Lake Ponchartrain; the bricks are manufactured for a company in New Orleans and Mr. Ingram is the foreman. Witness had already made in October, 1867, three trips, and was on his fourth; had carried between 17,000 and 18,000 bricks in low-water; there is ebb and flow in the river up to the brick-yard; generally twice a day ebb and flow; the length of the Aurora is ninety feet, breadth fourteen feet three inches.’
“It appears from the testimony of other witnesses, that this Bayou Falia has often gone over the bridge, which was carried away; that at the place of the bridge, the waters of the Bogue Falia have risen from low-water-mark, to about twenty feet perpendicular in a freshet. This Bayou Falia empties into the Tchefuncta river, and the latter into Lake Ponchartrain.
“The residence of plaintiff is about a mile by land from the town of Covington in St. Tammany parish.
“Upon the whole, we are of opinion that this river Falia is navigable in the intendment of the law, and that no plea of prescription can avail in such a case as this, involving a thing hors de commerce and a public right. [Abert v. Bayon ] 3 N.S. 650; [Municipality No. 2 v. Orleans Cotton Press ] 18 L. 272 [36 Am.Dec. 624].
“It is therefore ordered and decreed that the verdict of the jury be set aside, and the judgment rendered thereupon be annulled and avoided. It is further ordered and decreed that the injunction be made perpetual, without prejudice to the defendants’ rights to build and erect such a bridge that will not obstruct the free navigation of said river Falia; the defendants and appellees to pay costs in both courts.”

Ingram substantiates the conclusion the river was used for logging purposes in 1812 and in the years that followed. The testimony of many witnesses who worked and lived on the river is set out at length in this record. They verify the long standing commercial uses and importance of the river to residents in those times. Additionally, legislative acts during the early nineteenth century were enacted to protect and improve the navigability of this river. The defendants presented no evidence to the contrary and called no witnesses. We conclude the plaintiff has proven its case by a clear preponderance of the evidence.

The appellants also contend the Ramsey River Road Property Owners Association, Inc. has no standing to bring this suit. They reurge here their objections of lack of procedural capacity, nonjoinder of necessary and indispensable parties and no cause and no right of action. This issue must also be resolved in favor of the plaintiff.

Suits by non-profit corporations are specifically sanctioned by law. See LSA-R.S. 12:207. Although this question has apparently been infrequently litigated in the courts of this state, the right of an association to prosecute a suit such as this has been approved in state and federal decisions. In Garden District Property Owners Association, Inc. v. City of New Orleans, 98 So.2d 922 (La.App. Orl.Cir. 1957), such a suit was sanctioned. There, the court observed:

“Counsel for the plaintiff corporation frankly states in his brief that so far as he knows ‘never * * * has any Louisiana appellate court been confronted with the question before this Court’, and he states that question as follows: ‘Can a property owners’ association whose membership individually would have the right, as neighboring property owners, to bring an action to restrain a zoning violation, institute such an action on their behalf?’
“While it is true that no Louisiana cases are found and while it must be conceded that we are not controlled by decisions in other jurisdictions on such questions, still, where the reasoning of those other decisions is persuasive, we find ourselves much affected by it and we therefore direct attention to several cases from other jurisdictions in which this identical question was presented. These cases are: Neponsit Property Owners’ Association v. Emigrant Industrial Savings Bank, 278 N.Y. 248, 15 N.E.2d 793, 118 A.L.R. 973; In Matter of City of New York, Public Beach, Borough of Queens, 269 N.Y. 64, 199 N.E. 5; City of Omaha v. Glissmann, 151 Neb. 895, 39 N.W.2d 828; North Shore Beach Property Owners Ass’n., Inc. v. Town of Brookhaven, Sup., 115 N.Y.S.2d 670 and Merrionette Manor Homes Improvement Association v. Heda, 11 Ill.App.2d 186, 136 N.E.2d 556.
“In the Neponsit case, supra, the Court said [278 N.Y. 248, 15 N.E.2d 798]:
‘The corporate plaintiff has been formed as a convenient instrument by which the property owners may advance their common interest. We do not ignore the corporate form when we recognize that the Neponsit Property Owners’ Association, Inc., is acting as the agent or representative of Neponsit property owners. As we have said in another case: When Neponsit Property Owners’ Association, Inc., “was formed, the property owners were expected to, and have looked to that organization as the medium through which enjoyment of their common right might be preserved equally for all,” * * *.’

“It is argued that the same reasoning is applicable here and that the statement made by the Court of Appeals of New York in that decision is most persuasive. There the Court quoted with approval the following from its earlier decision in Matter of City of New York, Public Beach, Borough of Queens, supra :

‘It may be difficult, or even impossible, to classify into recognized categories the nature of the interest of the membership corporation and its members in the land. The corporate entity cannot be disregarded, nor can the separate interests of the members of the corporation * * *.’

and the Court then added:

‘Only blind adherence to an ancient formula devised to meet entirely different conditions could constrain the court to hold that a corporation formed as a medium for the enjoyment of common rights of property owners owns no property which would benefit by enforcement of common rights * * *.’
[278 N.Y. 248, 15 N.E.2d 798]
# # * * # *
“We wonder, however, how it can be said that a corporation, which is organized for the very purpose of bringing such suits as this, has no real and actual interest in such a matter. The Nonprofit Corporations Statutes, LSA-R.S. 12:101 et seq., authorize the creation of such a corporation and section 109 provides that while the acts which such corporations may perform are somewhat limited, they may perform ‘those acts which are necessary or proper to accomplish the purpose or purposes as expressed or implied in the articles, or that may be incidental thereto.’
“If a corporation organized to accomplish just such a purpose and which is authorized to do any act necessary to accomplish that purpose, surely it is authorized to bring such suit as may be required.
“And section 120 of LSA-R.S. 12, which section has reference to such nonprofit corporations, provides for the bringing of suits. And while it is provided that the president or the vice-president ‘may, on behalf of the corporation, authorize the institution of any legal proceedings * * * without other general or special powers from the board of directors,’ we do not take this to mean that the board cannot authorize the secretary-treasurer to institute such a suit as this. It is alleged that the suit is brought in the name of the corporation and there is attached to the petition the affidavit of the secretary-treasurer to the effect that he was authorized to institute it by resolution of the Board of Directors. See Prince Hall Grand Lodge, etc. v. M. W. Prince Hall Grand Lodge, La.App., 79 So.2d 97.
“We think that the suit was properly brought and that the plaintiff corporation had the legal right to institute it.”

The appellants rely upon the recent decision of Save Our Wetlands, Inc. v. Werner Brothers, Inc., 372 So.2d 231 (La.App. 4th Cir. 1979) in which the plaintiff’s failure to establish its standing to sue resulted in the dismissal of the suit. While the majority opinion in that case does not elaborate upon the reasons for the court’s judgment, we note the concurring opinion speculated as regards the composition of the plaintiff corporate entity, “SOWL.” It was stated: “Presumably SOWL is pushed by some human beings-perhaps adults, perhaps residents of the place; but also perhaps not.” The writer then concluded: “The law does not grant the right to a non-profit corporation to exercise the citizenship rights (if any) of its anonymous members, * * Unlike SOWL, the facts of this case establish the corporate plaintiff’s real and justiciable interest in the preservation of the river’s present condition and the, direct effect the outcome of this lawsuit will have upon its members. This association is obviously composed of citizens who are landowners in the immediate area of the proposed construction and its purposes are stated to be:

“The purposes for which this corporation is organized are non-profit purposes, to-wit: to study and conduct public education concerning ecology, environmental and flood control problems, needs and facilities in the Ramsey River Road area of Covington, Louisiana; to promote political responsibility in environmental and ecological areas; to take action on local, state and national government matters relating to the above purposes; to cooperate with other persons or entities having similar purposes; to perform or have performed studies of the environmental impact, of the costs and benefits, and of the legalities of proposed facilities; to institute, defend, or participate in appropriate legal, administrative, or other proceedings to serve the above purposes or to seek protection of the environment and compliance with all laws and regulations related to matters affecting it; to raise and use funds (on a non-profit basis) for the above purposes, express or implied; and to do those acts incidental thereto, including the power to lease, acquire, receive, own, use, mortgage, sell and dispose of movable and immovable property; and to do any lawful activity for which corporations may be formed under Chapter 2, of Title 12 of the Louisiana Revised Statutes (the Non-profit Corporation Law).”

As in the Garden District case, supra, we think this association’s interest to be sufficient to prosecute this action.

For the reasons stated above, the judgment of the district court is affirmed, all costs of this appeal to be paid by appellants.

AFFIRMED.


author: LOTTINGER, Judge. PER CURIAM.

text:
    Kathryn LAWES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al. Vickie A. JAMES v. Eric MATHERNE et al. Donald P. WALTHER v. Eric MATHERNE et al.
    Nos. 13392, 13393 and 13394.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearings Denied Sept. 8, 1980.

      Larry P. Boudreaux, Thibodaux, for plaintiff-appellant, Kathryn Lawes in No. 36397.
    Sidney Ordoyne, Thibodaux, for plaintiff-appellant, Vickie James in No. 37268.
    David Cambre, New Orleans, for defendants-appellants, City of Thibodaux and National Fire & Marine Ins. Co.
    Johnny X. Allemand, Thibodaux, for plaintiff-appellant, Donald P. Walther in No. 36816.
    Rudolph Hargis, Houma, for defendants-appellees, Vickie James and Travelers Ins. Co. in Nos. 36397 and 36816.
    Robert Butler, III, Houma, for defendants-appellees, Eric Matherne & Alvina Matherne and State Farm Mut. Auto. Ins. Co.
    Charles LeBlanc, Thibodaux, for defendant-appellee, Commercial Union Ins. Co.
    John Ladd Lanier, Thibodaux, for defendants-appellees, Vickie James and Aet-na Cas. & Surety Co. in Nos. 36397 and 36816.
    Denis Juge, New Orleans, for defendant-appellee, Government Emp. Ins. Co.
    Joseph Clark, Jr., New Orleans, for defendants-appellees, Donald Walther and Government Emp. Ins. Co.
    Michael Holmes, New Orleans, for inter-venor.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

These consolidated cases arise out of a three car accident in the City of Thibodaux, Louisiana. All of these suits will be handled in this opinion.

Two issues are before us on appeal:

(1) Is the absence of a stop sign at an intersection which has a blinking overhead red light a cause — in-fact of an accident which occurs when a motorist runs the red light? And if it is, does a municipality whose officials have been informed of the missing stop sign owe a duty to motorists to replace the stop sign timely?

(2) Does the impecuniosity of one joint tortfeasor require a reduction in the amount of damages assessed against the other tortfeasor in solido who is capable of paying the full amount of the judgment?

These issues arise in a suit involving personal injury claims resulting from a three car collision at the intersection of Plantation Road and Ridgefield Road in the City of Thibodaux on January 25, 1977, shortly after noon. Ridgefield Road is a two lane blacktop street running generally north and south, whereas Plantation Road is a two lane blacktop road running generally east and west. Plantation Road is the favored street, and both streets have posted speed limits of 25 miles per hour. Plaintiff Donald P. Walther, alone in his vehicle, was proceeding in an easterly direction on Plantation Road, and plaintiff Vickie A. James, accompanied by her guest passenger, plaintiff Kathryn Lawes, was proceeding in a westerly direction on Plantation Road. At the same time, defendant Alvina Matherne, alone in her vehicle, was proceeding in a southerly direction on Ridgefield Road. The three vehicles collided in the intersection and sustained extensive damage.

The intersection was regulated by traffic control devices. The east-west traffic on Plantation Road was regulated by a yellow flashing overhead traffic light. Traffic proceeding in a northerly or southerly direction on Ridgefield Road was regulated by a red flashing overhead traffic light, which had been in existence since 1960. In addition to the red flashing light, the Ridgefield Road traffic was also controlled by a stop sign. However, the stop sign regulating south bound traffic on Ridge-field Road was not in place.

Walther, James and Lawes filed suit against the Mathernes, the Mathernes’ insurer, their own insurers under the uninsured motorist coverage, and the City of Thibodaux and its insurer. James and her insurer were sued by Walther, and Lawes sued the insurers of Walther and James. Various third party demands were also filed.

Judgment was rendered in favor of Kathryn Lawes against State Farm Mutual Automobile Insurance Company (the liability insurer of the Mathernes) and the City of Thibodaux in the sum of $24,599.91, with the liability of State Farm being limited to the extent of its liability policy.

Judgment was also rendered in favor of Vickie A. James and against the defendants, Eric and Alvina Matherne; their insurer, State Farm Mutual Automobile Insurance Company; and the City of Thibo-daux, in the full sum of $2,767.67. The liability of State Farm was limited to the extent of its liability policy, and because of the financial inability of the Mathernes to stand in judgment, their liability was limited to and satisfied by their policy with State Farm.

Lastly, judgment was rendered in favor of Donald P. Walther and against the defendants, Eric and Alvina Matherne, State Farm Mutual Automobile Insurance Company and the City of Thibodaux and its insurer, National Fire and Marine Insurance Company, in the full sum of $18,-920.70. The liability of State Farm was limited to the extent of its liability policy, and because of the financial inability of the Mathernes to stand in judgment their liability was limited to and satisfied by their policy with State Farm.

Various expert witness fees were also awarded, and all incidental demands which had been filed were dismissed.

In appealing these judgments, the City of Thibodaux and its insurer, National Fire and Marine Insurance Company, contend that the trial court erred in holding that the absence of the stop sign was a legal cause of the accident and that the City had a reasonable opportunity to erect the stop sign. The City and its insurer also claim that the trial court erred in failing to find contributory negligence on the part of Donald Walther and Vickie A. James, and in limiting the liability of the Mathernes to their policy limits.

Donald P. Walther and Kathryn Lawes both appealed, contending that the trial judge was in error in failing to render judgment against Vickie James. Plaintiff, Vickie A. James, also took an appeal in the suit in which she was a plaintiff, seeking an increase in damages.

LIABILITY OF THE CITY

In his written reasons for judgment the trial judge said:

“Regarding the liability of the City, the preponderance of the evidence establishes as fact:
“1) that the stop sign controlling traffic for the southbound lane of Ridge-field Road was missing at the time of the accident,
2) that its absence had been called to the City’s attention on at least two occasions prior to the accident,
3) that the City had a reasonable time after such notice to replace the sign, and,
4) that the absence of the stop sign created a very deceptive and dangerous situation.
Evidence further showed that Ridgefield Road is the favored thoroughfare over all other intersecting streets until it reaches the intersection with Plantation Road and, that when the stop sign is in place the danger of someone failing to stop for the flashing red light is substantially reduced. The Court therefore finds that there was a direct relationship between the accident and the absence of the stop sign and that the City’s failure to replace the stop sign was a substantial factor without which the accident would not have occurred.
“Conduct is a cause-in-fact of harm to another if it was a substantial factor without which the accident would not have occurred, i.e., if it had some direct relationship to the accident. Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972).”

We find the trial court clearly erred in its findings of fact and conclusions of law regarding the city’s liability. The fact that the stop sign was missing and that the city had a reasonable amount of time to replace it does not, in our minds, lead to the conclusion that “a very deceptive and dangerous situation” was created thereby, nor to the conclusion that the failure to replace the sign was a cause-in-fact of the accident. The cause-in-fact of this accident-and the sole cause-in-fact-was Mrs. Matherne’s running of the flashing red light. Under the facts and circumstances of this case, failure to replace the stop sign had little, if any, actual causal link to the accident. Certainly, the city’s failure to replace the sign was not a substantial factor without which the accident would not have occurred. We are convinced that Mrs. Matherne would have driven through the intersection regardless of whether a stop sign accompanied the flashing red light which controlled the traffic flow.

Even assuming, arguendo, that absence of the stop sign was, somehow, causally linked to the accident, we find that the trial judge failed to carry the analysis to its necessary conclusion. For even if the city’s omission to act can be considered to be a cause-in-fact of the accident, the city will escape liability unless the plaintiffs can show that the city owed a duty to motorists to replace a stop sign at an intersection which is also controlled by an overhead flashing red light.

Once the city undertook the duty of providing traffic control at this relatively dangerous intersection, it fulfilled that duty when it placed the electric traffic control device in the intersection. Under La.R.S. 32:234(A)(1), a flashing red light is considered to be a stop sign and imposes a mandatory duty on the drivers to stop before entering the intersection when faced with such a device. While an additional stop sign at the intersection would not modify or conflict with this duty and would, therefore, be permitted under La.R.S. 32:41(A)(13), it would add nothing to the regulation of the traffic.

The assumption of the duty to control traffic at an intersection does not include the installation of multiple control devices, nor the maintenance thereof so long as one traffic control device is functioning properly. It is not practicable nor a sound legal precept to impose a duty to maintain a certain number of signs having the same purpose at a given intersection depending upon what is perceived to be the degree of attendant danger. Since a flashing red light is tantamount to a stop sign so far as the duty of a motorist facing it to stop is concerned, it follows that there is no need to install both devices and no corresponding duty on the part of a municipality to maintain an auxiliary sign.

We therefore reverse the trial court’s finding of liability on behalf of the city.

LIABILITY OF JAMES

The record points out that as Ms. James approached the intersection she slowed her automobile in anticipation of a dip in the road which immediately preceded the intersection, and then continued to drive at this slow rate of speeded into the intersection. She testified that she looked first to her right, the direction from which the Matherne vehicle was approaching, but did not see the Matherne vehicle. She then looked to her left. When she looked back to her right she saw a blur which turned out to be the Matherne vehicle moving at a fast rate of speed. She had no time to take evasive action. She was on the favored street, slowing as she approached the caution light, and had no reason to anticipate that the Matherne vehicle would not stop for the flashing red light or the supposed stop sign. We agree with the trial judge that there is no fault on the part of Ms. James.

QUANTUM

Plaintiff Vickie James is the only party who has questioned the trial judge’s monetary award on appeal. As noted above, the trial court awarded Vickie James the sum of $2,767.67, representing $2,500.00 in past, present and future mental and physical pain and suffering and $267.67 in medical expenses. Ms. James seeks to have the award increased to $34,209.37 on appeal.

Our examination of the record and exhibits in this case reveals that, as a result of the accident, Ms. James suffered a number of cuts, bruises and abrasions. Ms. James testified that she received a cut above her eye, two black eyes, a cut on the wrist, two bruised knees, a sore shoulder and sore ribs. She also received a laceration on her left buttock when she extricated herself from the vehicle. The lacerations on her wrist and forearm required stitching, and, some three months after the accident, a piece of glass and some calcium buildup was surgically removed from her Wrist on an out-patient basis.

Ms. James suffered pain in her right shoulder for about IV2 months following the accident, while the pain in her ribs lasted approximately three weeks. She and her mother testified that she was bedridden for two to three weeks following the accident, during which time she could not bathe or dress herself. Ms. James was never hospitalized as a result of the accident and suffers no permanent disability from her injuries, although the orthopedic surgeon who examined her testified that she may experience numbness in her left hand on occasion in the future.

Although Ms. James’ counsel cites a number of cases in which damages were awarded in excess of those awarded in the case at bar, our review of the record in this case convinces us that the trial judge did not abuse the great discretion given to him in cases of this nature. While the $2,500.00 general damage award is perhaps on the low side, we cannot say it is low enough to shock our consciences or to constitute an abuse of the trial court’s discretion. See Hanzy v. Sam, 385 So.2d 355 (La.App. 1st Cir. 1980), No. 13208 on the Docket of the First Circuit Court of Appeal. We will therefore affirm the trial court’s award of $2,500.00 in general damages and $267.67 in medical expenses.

APPORTIONMENT OF DAMAGES

The city and its liability insurer in appealing also argue that the trial court was in error in limiting the liability of the Math-ernes to their policy limits without also reducing the liability of the alleged joint tortfeasor, the city, to its virile share. Were it not for our finding above that the city is not liable and is therefore not a joint tortfeasor, we would agree with the city’s contention that the trial court erred in limiting the liability of the Mathernes under the “inability to pay” doctrine for the reasons recently handed down by the Louisiana Supreme Court in Daniels v. Conn, 382 So.2d 945, Nos. 66104 and 66416 on the Docket of the Supreme Court (1980). Our finding, however, that the city is not a joint tortfeasor with the Mathernes gives us cause to evaluate the holding of Daniels v. Conn, supra, in relation to the turn of events which transpired in the case at bar.

The court in Daniels said “that where there are solvent and insolvent joint tort-feasors liable in solido, evidence of the insolvent defendant’s inability to pay may not be considered by the trial judge in determining damages to be awarded to the plaintiff, or in apportioning damages as between those joint tortfeasor defendants at the trial on the merits of plaintiff’s claim.” Although there is some language in the Daniels case which indicates that the evidence of impecuniosity is irrelevant, we do not find the holding in Daniels to mean that the evidence is inadmissible and thus must be excluded.

Whether two or more defendants are found to be solidary joint tortfeasors is a question ordinarily answered after the trial is completed. In some cases, a court may find only one defendant liable for the claims sued upon by the plaintiff, and in other cases it may find two or more of the defendants liable for the plaintiff’s damages. The issue of a defendant’s impecu-niosity is material and relevant in the event that that defendant alone is cast for the plaintiff’s damages. Whether evidence of impecuniosity should be considered will depend upon whether the trial judge finds one or more of the defendants liable for the damages. If he finds a joint tortfeasor relationship, then the evidence of impecu-niosity becomes irrelevant until contribution is sought.

The point is that determination of the relevance or irrelevance of the evidence of impecuniosity cannot be made until a court decides whether one or more of the defendants are liable. The evidence should, therefore, be admitted at the trial, but it should only be considered if the defendant whose impecuniosity is at issue is found to be solely at fault for the plaintiff’s damages. We find, therefore, that the trial court correctly admitted the evidence of the Math-ernes’ impecuniosity, but he incorrectly considered it after finding that a solvent joint tortfeasor was solidarily liable with the impecunious defendant. The issue of impecu-niosity, however, became relevant again when this court decided above that the city was not a solidary joint tortfeasor with the Mathernes.

We hold that the Mathernes’ liability should be limited to the extent of their policy, but for different reasons than those assigned by the trial court.

INTERVENTION

After the trial of this case, plaintiff Vickie James retained a new attorney to handle her case on appeal. The attorney who handled her case at trial filed a motion with this court to intervene to recover fees and other expenses incurred at trial. This court allowed the intervention. An opposition to the intervention has been filed by counsel presently handling Vickie James’ appeal. Because this intervention will necessitate the taking of additional testimony to determine the amount of fees owed to the inter-venor, this case will be remanded for the narrow purpose of taking testimony relative to this intervention.

DECREE

Therefore, for the above and foregoing reasons, the decision of the trial court casting the city in judgment is reversed. In all other respects, the trial court opinion is affirmed, but this case is remanded for the sole purpose of hearing evidence relative to the claim of intervention. Costs of this proceeding will be paid by defendants-appellants, the Mathernes and their insurer, State Farm Mutual Automobile Insurance Company.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED IN PART.

ON REHEARING.

Before COVINGTON, LOTTINGER and COLE, JJ.

PER CURIAM.

In his application for a rehearing, plaintiff-appellant, Donald P. Walther, points out that “through inadvertance” the original opinion of this court “failed to render judgment in favor of Donald P. Walther and against his uninsured motorist carrier, Government Employees Insurance Company; after having released the City of Thibo-daux and its insurance carrier from liability thus leaving Mr. Walther with a judgment partially uncollectable.”

The point is well made, and thus we amend the original judgment of this court to award judgment in favor of Donald P. Walther and against Government Employees Insurance Company to the extent and for that portion that the Walther judgment against the defendants Eric and Alvina Matherne and State Farm Mutual Automobile Insurance Company is not satisfied by the State Farm policy.

In all other respects the original judgment of this court as amended is affirmed and all applications for rehearing are denied.

REHEARING DENIED.


text:
    Robert Cyce LEWIS, III v. Edna Ann Monday LEWIS.
    No. 13397.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    P. David Carollo, Slidell, for plaintiff, appellant.
    Jacqueline Carr, Slidell, for defendant, appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

The plaintiff-husband brought this suit for divorce and the defendant-wife reconvened, claiming that a post-separation community property settlement was invalid because she had been threatened into signing it by her husband. The validity of the settlement is the sole issue on appeal. From a judgment nullifying the community property settlement, the plaintiff-husband has appealed.

The Lewises were legally separated on November 7, 1977, in a judgment rendered in favor of Mrs. Lewis on the grounds of cruel treatment. On December 23, 1977, the Lewises entered into a community property settlement, authentic in form, to settle and liquidate the community of acquets and gains. An authentic “Act of Correction” dated January 24, 1978, was later signed, and both documents were recorded in the St. Tammany Parish clerk of court’s office on January 25, 1978.

In the community property settlement, Mrs. Lewis received a 1974 automobile, all her personal belongings, a television set, certain household appliances, and $10,000.00 payable in $400.00 monthly installments, with the balance due at the time of the final divorce. Mr. Lewis assumed all the community debts and agreed to hold Mrs. Lewis harmless from all the debts. Mr. Lewis also received certain immovable property owned by the community, some of which was apparently used to stable horses owned by Mr. Lewis and other persons who rented stalls from him. In the act of correction, Mrs. Lewis received one registered quarter horse in return for her signing over to Mr. Lewis three businesses operated by him-Lewis Feed and Tack, Lewis Stables, and Lewis Trailer Sales.

On April 12,1979, Mr. Lewis brought this suit for divorce based upon living one year separate and apart following judgment of separation without reconciliation. La.R.S. 9:302. The wife answered on April 26, 1979, and reconvened, claiming the community property settlement had been signed by her under duress and fear for her life. She also claimed the settlement was invalid because of lesion beyond moiety and because she was not represented by an attorney, but these claims were dismissed during trial. Mr. Lewis generally denied the allegations of threats and duress.

Mrs. Lewis testified that most of the threats against her regarding the community property settlement were made before she moved to Shreveport from her Slidell home. She said her husband also threatened her once over the telephone. She said Mr. Lewis’s threat was that if she did not sign the community property settlement and peacefully accept what she received in the settlement, she “would be taken care of.”

Both documents relating to the community property settlement were prepared by Mrs. Lewis’s attorney and mailed to her in Shreveport, where she signed them out of the presence of her husband, who retained the family residence in Slidell.

She explained that she felt forced to sign the documents because her husband told her he would quit sending her money until she signed. Jobless and with a young child to raise, Mrs. Lewis said she had no other choice but to sign the agreements. She admitted, however, that her husband had sent her a number of checks timely before the community property settlement was prepared and signed; that her husband never visited her in Shreveport, nor bothered her there; and that her husband never interfered in her request to see her son, who was living with the husband.

Mrs. Lewis also testified she was “scared to death” of her husband. She said the separation judgment was based on cruel treatment because her husband beat her, cursed her in front of others and slapped her around. Mrs. Lewis did not know whether her husband would carry out the threats, but she apparently concluded that he would not because he had made the threats in front of so many other people:

“At the time [of the threats] I thought he would [carry out the threats], but when I thought about it, that he said it in front of so many people, I didn’t think he would.”

Nevertheless, she added: “Right now, I’m afraid of him.”

Two close friends of both of the Lewises testified that Mr. Lewis had a short, easily aroused temper. One witness, said he heard Mr. Lewis threaten Mrs. Lewis, but only out of her presence. He added, too, that he never heard any threats made concerning the community property settlement. Another witness said she heard Mr. Lewis threaten Mrs. Lewis regarding the community property settlement, but she did not know what community property settlement was being referred to. She admitted on cross examination that the “threats” were made during a husband/wife argument, and that Mr. Lewis did not actually threaten to kill his wife.

Mr. Lewis testified that if he ever said his wife would be taken care of, he only meant he would take care of her financially. He said that though he and Mrs. Lewis had numerous arguments, he never intended to inflict bodily harm upon her. He said he never denied her any money and never bothered her in Shreveport. He was never arrested for threatening his wife or for any other offenses against her.

James R. Strain, Jr., the attorney who drafted the community property settlement, said that he always considered himself to be Mrs. Lewis’s attorney, and that he refused to answer Mr. Lewis’s questions without Mrs. Lewis’s consent. Strain said Mrs. Lewis never told him she was forced to sign the community property settlement. On the contrary, the document was discussed at length between the parties before it was signed. “In my conferences with Mr. Lewis and Mrs. Lewis, she never indicated in her actions, mannerisms, or questions that she was in any way duressed or forced.” Not until three to six months after the documents were executed did Mrs. Lewis complain to Mr. Strain about the amount of money she had received in the settlement.

In oral reasons for judgment, the trial court accepted the testimony of Mrs. Lewis and her two witnesses concerning the alleged threats, and concluded that Mrs. Lewis had been coerced into signing the documents. He ruled that the documents should be rescinded since Mrs. Lewis’s consent was not freely and voluntarily given.

The law governing the rescission of contracts because of consent induced by violence or threats is found in Articles 1850 and 1851 of the Louisiana Civil Code of 1870.

Article 1850 provides:

“Consent to a contract is void, if it be produced by violence or threats, and the contract is invalid.”

Article 1851 states:

“It is not every degree of violence or every kind of threat that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health, temper and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration.”

Exactly what standard courts are to apply to determine whether violence or threats have vitiated consent to a contract is difficult to determine, given the apparent contradictory standards in Article 1851. The first sentence of Article 1851 lays down an objective standard: Only that degree of violence or those types of threats which would lead a person of “ordinary firmness” into fearing great harm to person, reputation or property will be found to undermine his free and voluntary consent. The second sentence, however, requires courts to give weight to the subjective characteristics of the individual who claims his or her consent was coerced by violence or threats. Among these characteristics are age, sex, state of health, temper and the situation of the party-

In the few Louisiana cases which have interpreted this article as it applies to contracts between husband and wife, the courts seem to have placed greater weight on the subjective characteristics listed in Article 1851. In a case involving fraud against the wife in a community property settlement, the Louisiana Supreme Court said it would scrutinize community settlement contracts “with the utmost care” to determine whether the husband coerced the wife “by any circumstances into signing an unfair settlement agreement.” Lee v. Lee, 214 La. 434, 38 So.2d 66 (La.1948), at 69.

In Succession of Smith v. Smith, 23 La.Ann. 240 (1871), the husband threatened to kick the wife out of the home unless she relinquished her first mortgage in favor of the second mortgagee on property belonging to the husband’s mother. The court invalidated the relinquishment because of the husband’s threats. The fact that the threats were made to the wife privately did not weaken the wife’s testimony as to duress and coercion. The court found that such threats are not likely to be made in public because publicizing them would likely defeat their purpose.

The husband in Vicknair v. Trosclair, 45 La.Ann. 373, 12 So. 486 (La.1893), threatened to leave the wife and her children unless she signed over her one-eighth interest in property to one of the husband’s friends. Immediately after signing, the friend conveyed the property to the husband, who later exchanged the entire piece of property for another piece of property burdened by a mortgage. The court invalidated the sale because of the coercion and influence exercised upon the wife by the husband. The court noted that the wife received nothing as a result of the sale, whereas the husband stood to benefit by the series of transactions. The Vicknair court, like the court in Smith, gave little weight to the fact that the husband’s threats were made in private to the wife.

Mollere v. Harp, 36 La.Ann. 471 (1884) involved a case in which an uncle threatened to kill his nephew unless the nephew allowed the uncle to be a partner in the nephew’s business and unless the nephew further settled the pretended partnership. Because of the uncle’s “savage disposition” and the “terrible dilemma” in which the nephew was placed by the uncle’s threats, the court invalidated the settlement con-fected by the nephew and uncle. The Moliere court, too, also seemed to place great weight on the subjective characteristics of the nephew.

The only case cited by counsel for appellant in support of his contention that the trial judge incorrectly invalidated the contract is Wilson v. Aetna Casualty and Surety Company, 228 So.2d 229 (La.App. 3rd Cir. 1969). There, an illiterate 66 — year-laborer who was severely injured in an automobile accident settled his personal injury claim with the insurance company for $5,000.00. Thereafter, the plaintiff was awarded some $16,600.00 by a jury for the injuries he received. The trial court allowed the jury award to stand by invalidating the release, holding that the plaintiff was induced into signing the release because of his intolerable physical and financial circumstances. The appellate court reversed, finding that lack of bargaining power and strong economic duress are not grounds to rescind a compromise under Article 1851. The duress contemplated by Articles 1851 through 1853 “is that which proceeds from a fear of force or violence which wipes out freedom of consent; it connotes an actor performing an exterior act which gives rise to the duress, rather than the entire set of objective circumstances causing the victim to act as he does.” 228 So.2d at 232. The court further noted that the bad advice of a third party or a stranger is, by itself, insufficient to invalidate the consent of a party to a contract. The Wilson court apparently found that there was only a fear of economic problems which led the plaintiff to sign the release and not a fear of force or violence being used against the plaintiff to exact his consent.

French commentators looking at a similar provision in the French Code Civil (Art. 1112) have also noted the apparent inconsistency in the standards for determining whether a contract should be vitiated because of violence or threats. See Aubry & Rau, 1 Civil Law Translations, Obligations, § 343a; and Planiol Civil Law Treatise, Volume 1, Nos. 277, 278 and Volume 2, Nos. 1070, 1072 (LSLI Translation, 1959).

Planiol felt that the use of subjective qualities in deciding whether a person has been forced into consenting to an obligation destroys the objective standard. This is so “because instead of determining the violence according to the impression it would make on a reasonable person, it appreciates its effect in a concrete manner on a child or an old man, on a woman, on a dumb or an ignorant person.” Civil Law Treatise, Volume 2, No. 1072.

Despite the apparently inconsistent standards in Article 1851, our goal is to attempt to reconcile the standards without emasculating either one. The redactors of the code probably realized that applying an objective standard to all situations could result in an injustice to those individuals who sincerely fear they will suffer great harm if they do not consent to an obligation, but whose fear would not be shared by a person of ordinary firmness. This may be the reason the redactors added the subjective qualities to the objective standard of Article 1851. On the other hand, the redactors probably felt that a defense based on threats or violence should not be taken lightly because of the relative ease with which a person can claim he or she has been forced into agreeing to a contract. This may have been the reason for giving Article 1851 its predominately objective flavor. As a compromise, the redactors adopted both standards, and a proper interpretation of this Article must necessarily focus on objective and subjective characteristics. This can be done by first determining the subjective characteristics of the individual who claims he or she was forced by violence or threats into agreeing to a contract and then deciding whether other reasonable persons with the same subjective characteristics would have felt forced into signiftg the contract under the same type of threat or violence.

In the case at bar, the wife, whose age was not in the record, was separated from her husband on the grounds of cruel treatment. A meager amount of evidence indicated some physical cruelty was involved. At the time she signed the agreement, the wife was living in Shreveport many miles away from her husband. She admitted she was in fairly dire need of money. The wife and two witnesses testified that the husband threatened to “take care of” the wife if she failed to sign the community property settlement. But the same two witnesses admitted either that the threats were not made in connection with the community property settlement or that the threats were made during a normal husband-wife argument in the presence of other persons. And even the wife could not testify to any degree of certainty that she felt her husband would carry out his threats. At one point in her testimony, Mrs. Lewis claims that it was not necessarily the fear of violence but the lack of money which caused her to sign the documents. As noted previously, there is no evidence in the record to show that Mrs. Lewis was unfairly treated in the settlement agreements.

We find that, under this set of circumstances, a reasonable person with the subjective characteristics of Mrs. Lewis would not have felt forced by violence of threats into signing the community property settlement upon which this suit is based. We realize that the trial judge in matters of this nature must, of necessity, be given great discretion. He alone observes the witnesses and notices their demeanor. The trial judge in this case chose to believe the testimony of the wife and the two witnesses in finding that Mrs. Lewis had been coerced by threats of violence to sign the community property settlement. The facts as presented above, particularly the fact that Mrs. Lewis received $10,000.00 in the settlement and the fact that she signed the settlement in Shreveport, lead us inexorably to the conclusion that the trial judge was clearly wrong in his determination. Mrs. Lewis has presented no evidence that the settlement was lesionary. In fact she abandoned such a claim at trial. Her basic complaint, it seems, is that she signed the settlement because she was in need of money. The court in Wilson, under circumstances of duress which seem much more severe than those in this case, found that strong economic duress, by itself, was insufficient to vitiate the consent given to an otherwise valid contract. We feel the same rule must be applied in the case of the community property settlement between the husband and the wife.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed and the defendant-wife’s claim is dismissed. The appellee will pay the costs of this appeal.

REVERSED AND RENDERED.


text:
    Walter J. HORRELL v. Walter L. SMITH, d/b/a Smitty’s TV Service.
    No. 13399.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Walter J. Horrell, pro se.
    J. J. Williams, Jr., Covington, for defendant, appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a suit against a television repairman for improper repairs and the ruin of a television set.

In December 1974, Walter J. Horrell requested that Walter L. Smith come to his home and repair a 1968 Curtis-Mathis console television set. Smith had satisfactorily worked on this set on prior occasions. On December 23, Smith came to Horrell’s residence and attempted to repair the set but was unable to do so there and, with Hor-rell’s permission, he then took it to his shop to complete the work.

Approximately a month later, Smith returned with the television supposedly repaired and proceeded to test it. When he did so, smoke and acrid odors began coming from it, apparently the result of an electrical fire or malfunction.

Smith immediately made efforts to correct that difficulty but was unable to do so and he again took the set to his shop. A few months later, Smith informed Horrell that the television set could not be repaired because of the fire damage.

Horrell filed this suit for the value of the television set and for the inconvenience he sustained as a result of being deprived of its use. The matter was tried and Horrell’s suit was dismissed by the district court. We find the trial court’s judgment must be reversed.

When Smith undertook the repair of the plaintiff’s television set for a price and removed it to his shop for that purpose, a relationship of depositor-compensated depositary was entered into between the parties. See Miller Car Washes, Inc. v. Crowe, 245 So.2d 485 (La.App.2d Cir. 1971) and the authorities cited therein.

On numerous occasions, the courts of this state have determined that such a repairman, characterized as a compensated depositary, is one against whom the obligation of preserving the property is rigorously enforced.

Insured Lloyds v. Liberty Mutual Insurance Company, 295 So.2d 206 (La.App.3d Cir. 1974); Home Insurance Company v. Southern Specialty Sales Company, 225 So.2d 776 (La.App.4th Cir. 1969).

The rules pertaining to the relationship are specifically set out in Civil Code Articles 2937 and 2938, to-wit:

“Art. 2937. The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.
“Art. 2938. The provision in the preceding article is to be rigorously enforced:
1. Where the deposit has been made by the request of the depositary.
2. If it has been agreed that he shall have a reward for preserving the deposit.
3. If the deposit was made solely for his advantage.
4. If it has been expressly agreed that the depositary should be answerable for all neglects.”

In Insured Lloyds, supra, the court stated:

“In fact once the existence of a deposit is established as well as the loss or damage to the property deposited, a presumption arises that the same resulted from the depositary’s lack of due care, negligence, or fault and the burden is then on the depositary to exonerate himself from such negligence or fault. Coe Oil Service Inc. v. Hair [283 So.2d 734] supra; Federal Insurance Co. v. C. & W. Transfer & Storage Co., Inc., 282 So.2d 563 (La.App.4th Cir. 1973); Chrysler Credit Corporation v. Caulfield, 252 So.2d 461 (La.App.4th Cir. 1971).”

When the defendant returned Hor-rell’s television set after it had supposedly been repaired and a fire or electrical malfunction took place immediately upon it being turned on, it became incumbent upon Smith to establish he was free from fault.

The evidence indicates that a short circuit took place in the wiring of the printed circuit board of the set. According to the statement for the services presented by the defendant, repair work had been done by Smith on the printed circuit board. Therefore, it would appear not only has the defendant failed to exonerate himself, but the most likely cause of the fire was the work he had just completed. Based upon that evidence, we find the defendant’s liability to be established.

We further find the plaintiff has failed to satisfactorily establish the value of the television set which is now beyond repair. As noted in LeBlanc v. Southern Farm Bureau Cas. Ins. Co., 104 So.2d 279 (La.App.1st Cir. 1958), relief must be denied for plaintiffs failure, on the trial on the merits, to afford any basis for a money judgment on this item of damages. We do find, however, some measure of inconvenience to the plaintiff has been satisfactorily proven in that he was deprived of a color television set for the better part of a year. He is entitled to damages in the amount of $150.00 for that period of time.

The judgment of the district court is reversed and judgment is rendered against the defendant in the amount of $150.00, together with legal interest thereon from date of judicial demand until paid and for all costs of court.

REVERSED AND RENDERED.


text:
    Thomas D. MILLIN et al. v. Robert C. DAWSON, III, d/b/a Bob Dawson’s Garden Homes et al.
    No. 13401.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      Stewart M. Thomas, Jennings, for plaintiff s-appellants Thomas D. Millin and Cheryl R. Millin.
    Joseph R. Raggio, Baton Rouge, for defendants-appellants Robert C. Dawson, III dba Bob Dawson’s Garden Homes, Inc. and Bob Dawson’s Garden Homes, Inc.
    Sera H. Russell, III, Baton Rouge, for third-party defendant-appellee Celtic Corp.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit to rescind the sale or reduce the price of a defective mobile home purchased by the plaintiffs, Thomas D. Millin and his daughter, Cheryl R. Millin, from the defendant, Bob Dawson’s Garden Homes, Inc. (Dawson). The defendant filed a third party demand against the mobile home manufacturer, Celtic Corporation. From a trial court judgment in favor of the plaintiffs, Dawson has appealed. The Millins have answered his appeal and appealed on their own. Celtic Corporation answered both appeals.

The plaintiffs purchased the mobile home from the Dawson dealership on December 2, 1977, for $14,859.08. During their inspection of the home prior to closing of the sale, they spotted almost all of the defects complained of in this litigation. These defects were typed on to the purchase agreement as items to be corrected by Dawson, presumably at or near delivery. One major defect went unnoticed by the Millins in their pre-sale inspection: a quarter-inch seam in the vinyl flooring rippled across the width of the home in the kitchen-living room area.

Listed on the purchase agreement as defects to be cured by Dawson were “touch-up and repaint exterior masonite panel to match existing panels, waterproof and seal as required. Stop leaks over living room and kitchen windows and replace Celotex ceiling panels as required. Install eight (8) anchors and level house. Include white steps, replace hot water door.”

During delivery of the home to the Mil-lins’ property the towing truck became stuck in a muddy ditch after backing the mobile home into a fence surrounding the plaintiffs’ lot. ■ As a result of this incident, the trailer tongue was bent. The tongue has not been repaired.

Upon taking delivery of the trailer, the Millins noticed that few, if any, of the defects they had noticed had been repaired by Dawson. They also noticed the floor seam for the first time. Attempts to have the defects repaired were unsuccessful, and the Millins brought this suit.

The fact that the mobile home purchased by the plaintiffs contained a number of defects is not seriously questioned. The trial judge found that, while the defects were not sufficient to merit rescission of the contract because of redhibitory defects, they were of sufficient substance to allow the plaintiffs a reduction in the purchase price, as well as damages for repair of the various defects. He ruled that Dawson and Celtic Corporation would be solidarily liable for $400.00 to repair the seam that developed in the mobile home floor. On Dawson’s third party demand against Celtic, the court cast Celtic for the $400.00 floor seam damage charge, apparently concluding that the floor seam was a manufacturing defect. Additionally, the court cast Dawson alone for $1,338.50. Though we have no indications from the written reasons or from the judgment as to how the trial court arrived at the damages, our calculations indicate that he assessed Dawson $1,000.00 for a reduction in purchase price and the remaining $338.50 for the following repairs: leveling, $25.00; bleaching and touching up the stained ceiling tiles, $25.00; repair of a hutch and the cabinet, $9.00; repair of leaks, $12.50; repair of exterior seams, $55.00; repair of the hot water heater door, $12.00; repair of the tongue, $100.00; and repair of panels, $100.00.

Finally, the trial court cast Dawson alone for $1,200.00 in attorney fees for the plaintiffs’ counsel. Dawson was also required to bear the costs of the case.

On appeal Dawson claims the trial court erred in denying its third party demand against the manufacturer for all sums that Dawson was required to pay to the plaintiffs; that the court erred in not allowing Dawson to recover the attorney fees it was required to pay to the plaintiffs and the attorney fees of its own attorney; that the trial court erred in awarding the plaintiffs $1,738.50 for damages and reduction in the purchase price; and that the trial court erred in assessing the costs against Dawson alone.

The plaintiffs answered that portion of the defendant’s appeal which sought a reduction in the damages, seeking instead to have the trial court’s award affirmed. The plaintiffs also appealed and asked for attorney fees for answering the appeal and handling other appellate matters in this case.

Celtic Corporation seeks to have the $400.00 judgment against it reversed. Celtic’s primary argument is that Dawson’s president was aware of the floor seam before the sale was consummated, but did not inform the Millins of this defect. As a result, Celtic claims that Dawson’s right to indemnity from the manufacturer under La.C.C. art. 2531 is inapplicable in this case because Dawson knew of all of the vices in the thing he sold.

DAMAGES

The trial court’s apparent conclusion that the floor seam was a redhibitory defect is supported by the evidence in the record. The floor seam was a hidden defect which went unnoticed by the plaintiffs until the trailer was delivered. However, the seller had express knowledge of its existence prior to the sale and the manufacturer was presumed to have knowledge of its existence. Porche v. Robinson Brothers, Inc., 349 So.2d 975 (La.App. 1st Cir. 1977), writ refused, 351 So.2d 171 (La.1977). The-trial court correctly cast both defendants in solido for the floor seam damage and correctly allowed Dawson’s third party claim against Celtic for the $400.00.

Celtic’s claim that the manufacturer should escape liability for the defects if the dealer learns of the defects prior to the sale to the ultimate customer is untenable. The fact that the seller also knows of the defects in the thing that the manufacturer has manufactured has no effect on the relationship between the dealer and the manufacturer. Under La.C.C. art. 2531, in any case in which the seller is held liable for redhibitory defects (or a reduction in the price in damages), the seller has a right to indemnity against the manufacturer for the damages he is required to pay to the consumer.

We disagree, however, with the trial court’s damage assessment against Dawson. As noted above, the court found Dawson solely liable for $1,338.50, with $1,000.00 of that figure representing a reduction in the purchase price. The items of damage for which Dawson was cast were all apparent defects for which the action in redhibition is not allowed. La.C.C. art. 2521. And because the action for reduction in price is subject to the same rules as a redhibitory action, La.C.C. art. 2544, there can be no action for reduction in price when the defects complained of are apparent defects. Dawson bound itself contractually to repair the damaged items listed on the purchase agreement. Dawson was bound either contractually or in tort for the damages incurred during delivery. The trial court erred in assessing $1,000.00 for a reduction in the purchase price against Dawson, and the award against Dawson solely shall be reduced to $338.50. As to Dawson’s claim that damages for some of these defective items should be cast against the manufacturer, we find that Dawson has failed to prove that these defects were caused in the manufacturing process.

BUYER’S ATTORNEY FEES

Under Article 2545 of the Civil Code, the seller who knows the vice of the thing he sells and omits to declare it is answerable to the buyer for reasonable attorney’s fees, among other things. Both the seller and the manufacturer in this case knew either actually or presumptively of the redhibitory defect in the trailer. The $1,200.00 award for attorney’s fees should therefore be assessed in solido against both the seller and the manufacturer. The seller, however, should be awarded judgment on his third party demand for the full amount of the attorney fees. Additionally, the award to the plaintiffs shall be increased by $500.00 for their attorney’s fees on appeal. Again, both defendants will be cast solidarily liable for this amount of attorney’s fees, and Dawson will be awarded judgment in like amount on its third party demand against Celtic.

VENDOR’S ATTORNEY FEES

Under the holding of Porche v. Robinson Brothers, Inc., supra, the vendor in a redhibition action is allowed to obtain attorney’s fees from the manufacturer who is responsible for the redhibitory defects sued upon. We find that Dawson should be allowed a judgment of $600.00 against Celtic for the attorney’s fees Dawson incurred in defending this litigation.

DECREE

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

IT IS ORDERED, ADJUDGED and DECREED, that there be judgment on the main demand in favor of plaintiffs, Thomas D. Millin and Cheryl R. Millin, and against defendants, Bob Dawson’s Garden Homes, Inc., and Celtic Corporation, in solido, for the sum of Four Hundred and No/100 ($400.00) Dollars, together with the legal interest from date of judicial demand until paid, plus attorney’s fees in the sum of One Thousand Seven Hundred and No/100 ($1,700.00) Dollars, together with legal interest thereon from November 15,1979, until paid.

IT IS FURTHER ORDERED, ADJUDGED and DECREED, that there be judgment on the main demand in favor of plaintiffs, Thomas D. Millin and Cheryl R. Millin, and against defendant, Bob Dawson’s Garden Homes, Inc., for the additional sum of Three Hundred Thirty Eight and 50/100 ($338.50) Dollars, together with legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED and DECREED, that there be judgment on the third party demand in favor of third party plaintiff, Bob Dawson’s Garden Homes, Inc., and against third party defendant, Celtic Corporation, for the sum of Four Hundred and No/100 ($400.00) Dollars, together with legal interest from date of judicial demand until paid, plus the additional sum of One Thousand Seven Hundred and No/100 ($1,700.00) Dollars, together with legal interest thereon from November 15, 1979 until paid.

IT IS FURTHER ORDERED, ADJUDGED and DECREED, that there be judgment on the third party demand in favor of third party plaintiff, Bob Dawson’s Garden Homes, Inc., and against third party defendant, Celtic Corporation, for the sum of Six Hundred and No/100 ($600.00) Dollars, together with legal interest from date of this judgment until paid.

AND IT IS FURTHER ORDERED, ADJUDGED and DECREED that Bob Dawson’s Garden Homes, Inc. and Celtic Corporation pay equally all costs of this proceeding.

AFFIRMED IN PART, REVERSED IN PART, AMENDED AND RENDERED.