author: KLIEBERT, Judge.

text:
    Joseph T. LaFRANCE v. ABRAHAM LINCOLN MERCURY, INC., and Ford Motor Company.
    No. 84-CA-212.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Rehearing Denied Feb. 20, 1985.
    Writs Denied April 19, 1985.

      John David Cassanova, Metairie, for defendant-appellant Abraham Lincoln Mercury, Inc.
    Charles L. Chassaignac, Wiley G. Las-trapes, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellant Ford Motor Co.
    Harry T. Hardin, III, Mendoza & Hardin, Marrero, for plaintiff-appellee Joseph T. LaFrance.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   KLIEBERT, Judge.

This is an appeal by defendant seller, Abraham Lincoln Mercury, Inc. (Abraham) and defendant manufacturer, Ford Motor Company (Ford) from a judgment in favor of plaintiff purchaser, Joseph T. LaFrance, rescinding the sale of a 1979 Lincoln Mark V. Abraham answered plaintiff’s suit and filed a third party demand against its co-defendant, Ford, seeking indemnity and/or contribution. Ford answered plaintiff’s original petition and Abraham’s third party demand but did not file a third party demand. The trial court rendered judgment rescinding the sale and cast Abraham and Ford in solido for the purchase price plus the finance charges, interest and insurance premiums incurred by plaintiff together with $2,500.00 in attorney's fees. The trial court did not specifically rule on plaintiff’s third party demand, therefore, under the ruling of Financeamerica Corporation v. Thibodeaux, 419 So.2d 543 (3rd Cir.1982), we consider it rejected.

On appeal both defendants contend the trial court erred in finding that the automobile contained redhibitory defects. Abraham additionally appeals from the trial court’s failure to rule on its third party demand seeking indemnity and/or contribution from Ford and the award of attorney’s fees to the plaintiff. For the reasons which follow, we affirm.

In September of 1978, plaintiff, Joseph T. LaFrance, and his wife went to Abraham and while there custom ordered a silver 1979 Lincoln Mark V with a silver vinyl top.

A car arrived at the dealership on October 23, 1978 but had some slight differences from the one they had ordered. Plaintiff decided to take the automobile subject to certain changes listed on a work order, namely, the vinyl top was to be changed from grey to silver, a broken glass over the miles-to-empty gauge was to be replaced, the right hand entry light was to be repaired, and the rear arm rest was to be adjusted. Subject to those conditions, the plaintiff accepted the car.

Shortly after the purchase, the automobile developed a series of mechanical problems. First, the headlights would not function properly. The car was returned to the dealer numerous times before this problem was corrected. Next, the car’s engine began to knock at speeds in excess of 35 miles per hour or 1,800 rpms. Again the car was returned to the dealer for repairs.

The dealer returned the car in three days, explaining it cured the problem by cleaning the hydraulic lifters. Plaintiff questioned whether the work had been done because he noticed that the bolts on the valve covers were still freshly painted. The service manager conceded that it would be difficult if not impossible to clean the hydraulic lifters without removing the valve covers. He then told the plaintiff he would replace a defective cylinder head.

The plaintiff again returned to the dealership and was told the car was repaired; however, the engine noise persisted. The service manager then informed him that both cylinder heads would have to be replaced. The plaintiff left the car with the dealer for an additional three weeks to have this done.

The service manager then informed plaintiff that the entire engine was going to be replaced. When the car was finally returned, the engine had not been replaced and the original engine was poorly maintained. Further, the engine was improperly bolted and numerous hoses and bolts were poorly connected. The service manager once again asked that the car be returned for repairs.

Plaintiff left the car for an additional week. When he returned the automobile still had numerous broken or disconnected parts, hence, he left it there. Finally he concluded he could not receive satisfaction from the dealer and consulted with his attorney.

Both defendants now contend the trial court erred in rescinding the sale of the automobile because the defects were repairable.

Civil Code Article 2520 defines redhibition as follows:

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.

Although minor defects alone do not constitute sufficient grounds to rescind a sale, in our view, the cumulative defects shown here have rendered the use of the car so inconvenient and imperfect that any reasonable person would not have purchased it had he known of the vice. Further, the plaintiff gave defendants more than ample time to repair whatever malfunctions which could have been made to the vehicle to render its use less inconvenient. Perrin v. Read Imports, Inc., 359 So.2d 738 (4th Cir.1978). Hence, we cannot say the trial judge erred in rescinding the sale.

Abraham contends any redhibitory defects were the result of Ford’s improper manufacturing. Hence, it claims full indemnification under the provisions of C.C. article 2531 which provides as follows:

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

This article grants to a dealer, such as, Abraham, statutory right of action against the manufacturer of the thing sold, when the seller has been held liable to the purchaser because of redhibitory vices in the thing sold. To succeed in the action, however, the dealer must show the manufacturer of the vehicle was the sole cause of the redhibitory defect for which the dealer was cast in judgment.

In this case, both the manufacturer and the dealer were the cause of the redhi-bitory defect. Besides the defective engine which is attributable to Ford, the record is replete with instances in which the inconveniences and imperfections of the use of the car was a direct result of the improper repairs and services rendered by Abraham. The combination of these defects results in the redhibitory vice which leads to the res-cisión of the sale. Since Abraham cannot establish that the redhibitory vice was attributable exclusively to Ford it is not entitled to indemnity. Bacile v. Parish of Jefferson, 411 So.2d 1088 (4th Cir.1981); Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (4th Cir.1981); Perrin v. Read Imports, Inc., supra; Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (1st Cir.1973).

Both defendants contend the trial court erred in casting them liable in solido. On appeal they ask that this court assess the individual culpability of the defendants and apportion damages accordingly. In support of their contention they rely on Lokey v. Dixie Buick, Inc., 400 So.2d 322 (4th Cir.1981) for jurisdictional authority that damages may be apportioned under Louisiana law notwithstanding an in solido liability*

We find the Lokey case to be clearly distinguishable from the instant case. In Lokey, at page 328, the court stated:

[3] In the present case many of the defects in the motor home, although not all of them, were of the kind that could have been remedied by Dixie, which was responsible for servicing the vehicle. Some of the other problems with the motor home, however, such as the defective refrigerator and the generator, were obviously the responsibility of the manufacturer, Holiday, to replace or repair.

The jury in Lokey determined that 80% of the damages or defects in the mobile home were caused by mechanical problems which were attributable to the vehicle and therefore to the dealer manufacturer of the vehicle, while 20% of the defects were attributable to the mobile home and therefore to the manufacturer of the mobile home, Holiday. The mobile home in the Lokey case is physically distinguishable from an ordinary automobile. The mobile home consists of two distinct components — the vehicle component responsible for making the mobile home run, and the living quarters and its fixtures. The judgment rendered in Lokey recognizes that distinction and apportioned the amounts due by each according to that determination. Meanwhile, Dixie retained its right of action under La.C.C. Article 2531 against the manufacturer of the vehicle, Ford, who was not a co-defendant in the case. Thus, the effect of the Lokey case was to apportion between the manufacturer of each component in accordance with the defects attributable to the component manufactured by each. Consequently, it does not apply to the situation here.

In the instant case the trial court found that the redhibitory vice in the vehicle component which led to the rescisión was a combination of the defects of the manufacturer, Ford, and by the improper repairs and service by the dealer, Abraham. Once the trial court reached this factual conclusion, it could and did hold the dealer and the manufacturer solidarily liable to the purchaser for the purchase price and expenses necessary to restore the purchaser to the position he was in immediately prior to the sale. Lehn v. Clearview Dodge Sales, Inc., supra; Media Pro. Consult., Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972). Appellants point to none and we know of no statutory or jurisprudential authority by which we may apportion damages among co-defendants prior to the amendment of La.C.C. Article 2103. Each solidary obli-gor is liable for the whole with a right of contribution from their co-obligor of his virile share. La.C.C. Article 2103 (prior to the amendment); Appalachian Corporation, Inc. v. Brooklyn Cooperage Co., Inc., 151 La. 41, 91 So. 539 (1922).

Abraham also contends the trial court erred in holding it liable in solido for attorney’s fees because it is not a bad faith seller within the meaning of La.C.C. Article 2545 which provides as follows:

The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.

Ford, as manufacturer of the auto is presumed to have knowledge of the defects in the auto. Lokey v. Dixie Buick, Inc., supra. Abraham, as seller, must be shown to have had knowledge of the defects in order to be held liable for attorney’s fees.

As stated above, Abraham was responsible for numerous inconveniences and imperfections that rendered the auto unfit for its intended use. It had full knowledge and was well aware that its failure to effect repairs combined with the manufacturing defects were rendering the car useless for its intended use. Under those circumstances the seller is liable with the manufacturer for the attorney fees. Leathers v. Mobile Home Brokers, Inc., 382 So.2d 967 (1st Cir.1980).

Plaintiff argues in his brief for additional fees to cover the appellate portion of this case. We note that plaintiff has neither appealed the trial court’s judgment nor answered the defendants’ appeals. Further, we feel that $2,500.00 in attorney fees awarded by the district court is sufficient compensation for the work performed at both the trial and appellate levels.

Accordingly, the judgment of the trial court is affirmed. All costs of the appeal are to be borne by the appellants.

AFFIRMED.

      . The amendment of Article 2103 which allows apportionment of damages amongst solidary ob-ligors became effective August 1, 1980.


source: Caselaw Access Project

author: CURRAULT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ricky NICHOLAS.
    No. 84-KA-408.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      John M. Mamoulides, Dist. Atty., Gerald Alonzo, Dorothy A. Pendergast, Asst. Dist. Attys. Research & Appeals, Twenty-Fourth Judicial Dist., Parish of Jefferson, Gretna, for plaintiff-appellee.
    Martha E. Sassone, Twenty-Fourth Judicial Dist., Indigent Defender Bd., Gretna, for defendant-appellant.
    Before CHEHARDY, CURRAULT and DUFRESNE, JJ.
   CURRAULT, Judge.

On February 5, 1982, the grand jury for the' Parish of Jefferson returned a true bill of indictment charging Ricky Nicholas with the first degree murder of Pamela Nelson in violation of LSA-R.S. 14:30. The arraignment, set for March 10, 1982, was continued at the request of the assistant district attorney. A notation in the minute entry for that date reflects that the defendant was in “Jackson Hospital.” On or about March 16, 1982, the prosecution motioned for the issuance of a writ of habeas corpus ad prosequendum to secure the defendant’s presence at arraignment from the “East Louisiana State Hospital, Jackson, Louisiana”. On April 7, 1982, Nicholas appeared before Judge Alvin Rudy Ea-son for arraignment and through counsel entered a combined plea of not guilty and not guilty by reason of insanity. The trial was continued on June 21, 1982 at the request of the prosecution. The notation on the minute entry states that the matter was continued without date “until the defendant is competent to stand trial.” On September 7, 1982, Judge Lionel Collins, having been informed by the superintendent of the Feliciana Forensic Facility that Nicholas was presently able to stand trial, ordered the defendant returned to Jefferson Parish for re-examination by a sanity commission composed of Doctors Richard Richoux and Genevieve Arneson. On September 23, 1982, a contradictory hearing was conducted before Judge Lionel Collins to determine Nicholas’s capacity to stand trial. Following the hearing, Judge Lionel Collins found the defendant “mentally able to proceed and ... able to assist counsel under the circumstances of this case.”

Two additional sanity hearings were conducted, one at the request of the prosecution and one on motion by the defense. On both April 14, 1983 and June 9,1983, Judge Eason found Nicholas competent to proceed to trial. Shortly thereafter the defendant’s appointed counsel became ill and asked to be removed from the case. The motion was granted and new counsel was provided. The trial, scheduled for July 11, 1983, was continued and Nicholas’s newly appointed counsel was given an opportunity to file supplemental motions. These were substantially satisfied on August 31, 1983. On October 28, 1983, Nicholas through counsel tendered to the court a plea of guilty to second-degree murder.

Following a colloquy with the defendant, Judge Eason declared the plea voluntary. The defense counsel stated that a pre-sen-tence investigation would serve no purpose and waived all sentencing delays. In compliance with the penal provision of LSA-R.S. 14:30.1, Judge Eason then sentenced Nicholas to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Near the conclusion of the proceedings, the prosecution announced that the plea was satisfactory to the state and stated that, in accordance with the plea agreement, a rape prosecution pending in another division of court would be dismissed.

The defendant now appeals citing two single assignments of error.

Assignment of Error No. 1

The trial court committed reversible error in finding the defendant mentally competent to assist counsel and proceed to trial.

This assignment was not briefed or argued. Pursuant to the Uniform Rule 2-12.4 of the Uniform Rules, Courts of Appeal, the assignment is deemed abandoned. See State v. Smith, 452 So.2d 251 (La.App. 5th Cir.1984).

Assignment of Error No. 2

It was error patent, on the face of the record, for the trial court to accept the defendant’s plea of guilty to second degree murder.

Error Patent—Plea

In State v. Godejohn, 425 So.2d 750, 751 (La.1983), the Louisiana Supreme Court held:

[The] colloquy which occurs when court canvasses the matter with accused to make sure that accused has full understanding of what plea connotes and of its consequences is part of plea of the accused, and it is in the nature of pleading or proceeding, rather than testimony or evidence and, therefore, review of colloquy for error on appeal constitutes mere inspection of pleadings and proceedings without inspection of evidence.

By so holding, the issue of whether the defendant was properly “Boykinized” constitutes a proper subject for an “error patent” review.

The record (including the transcript of the plea colloquy) reflects that the judge advised the defendant of his right (1) to a trial by jury; (2) to confront his accusers; and (3) to remain silent as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The transcript of the plea proceeding reflects that the trial judge questioned the defendant regarding his understanding of the rights explained and ascertained whether he was voluntarily relinquishing them. Judge Ea-. son further examined the defendant and his counsel concerning the completion of the “Defendant’s Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty” form which Nicholas had signed, making sure from counsel that the form had been carefully explained to the defendant before he affixed his signature.

The trial judge also inquired into the merits of the allegations contained in the indictment and the details of the state’s proof. He explained the sentence to be imposed and questioned Nicholas as to whether he was satisfied with the counsel appointed to represent him. During the colloquy, Nicholas responded appropriately and adequately expressed to the court his willingness to waive the described rights and enter the guilty plea.

Based upon the record, we find no patent error as to the defendant’s guilty plea to second degree murder.

Error Patent—Record

The record shows that the defendant was brought from the forensic facility at Jackson, Louisiana for arraignment on April 7, 1982.

LSA-C.Cr.P. art. 642 states:

The defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed. (Emphasis added)

Information gleaned from the record indicates that prior to the time of the filing of the indictment, Ricky Nicholas had been committed to Jackson by Judge Thomas C. Wicker, Jr. in another prosecution in another division of court.

Despite this fact, the prosecution was not suspended in the instant case. While no objection was lodged to bring the issue before the court, the problem should not have gone unnoticed. The fact that the first setting of the arraignment had to be continued because the defendant was hospitalized at Jackson should have provoked an inquiry into his mental competency to proceed. Likewise the fact that a writ had to issue to Jackson to secure his presence for arraignment and that his counsel entered an insanity plea on his behalf should have made the proceedings suspect.

In State v. Rogers, 419 So.2d 840, 843 (La.1982), the Supreme Court in summarizing the applicable jurisprudence stated:

A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel,'and to assist in preparing and conducting his defense, may not be subjected to a trial. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); La.C.Cr.P. art. 641; State v. Bennett, 345 So.2d 1129 (La.1977). The failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

Because the proceedings should have been suspended according to law, the arraignment was conducted in error; however, we find the error is not such as to warrant a reversal under these facts. LSA-C.Cr.P. art. 921.

Generally, under LSA-C.Cr.P. art. 555, an irregularity in the arraignment proceeding which is not objected to is waived and defendant herein did not object to the court’s proceeding to arraignment without a finding of mental competency. Secondly, defendant pleaded guilty after being adjudicated competent to stand trial on three separate occasions subsequent to the arraignment and prior to tendering his guilty plea. As a result, defendant was not prejudiced by the arraignment proceedings. Consequently, a reversal of the conviction is not warranted.

Therefore, after a review of the record and law, the defendant’s conviction of second-degree murder is hereby affirmed.

AFFIRMED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . LSA-C.Cr.P. art. 555 provides:
      Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.
      The Official Revision Comment following the article states in pertinent part:
      (c) The last sentence of this article continues the rule of Art. 256 of the 1928 Louisiana Code of Criminal Procedure, that a defendant who pleads or proceeds to trial without for-" mal arraignment waives his right to an arraignment, and that if the defendant voluntarily enters upon the trial without arraignment it shall be considered as if he had pleaded not guilty. This clear statement was placed in the 1928 Code to avoid hypertechnical defenses based upon the early common law theory that there was no issue between the state and the defendant without a formal arraignment. State v. Epps, 27 La.Ann. 227 (1875).


text:
    Cleo Collins Wheeler, Wife of/and William WHEELER v. CLEARVIEW DODGE SALES, Chrysler Corporation, and Chrysler Credit Corporation.
    No. 84-CA-216.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      Edwin A. Stoutz, Jr., New Orleans, for defendant-appellant.
    Earl T. Lindsay, Jr., New Orleans, for plaintiff-appellee.
    William F. Bologna, Thomas E. Loehn, New Orleans, for defendant-appellee.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   CURRAULT, Judge.

This appeal arises from a jury verdict in favor of plaintiffs, Mrs. Cleo Wheeler and her husband Mr. William Wheeler, for rescission of a sale of a van purchased from defendant Clearview Dodge Sales, Inc. (Clearview) and which dismissed third-party suits against defendants Chrysler Corporation (Chrysler) and Gladiator, Inc. (Gladiator).

The facts reveal that on January 31, 1980, the plaintiffs purchased a 1979 Dodge B-200 van from defendant, Clear-view, for a deferred purchase price of Fifteen Thousand, Eighty-Three Dollars and Sixty Cents ($15,083.60). The van manufactured by Chrysler was bought and customized by defendant, Gladiator, who in turn sold the newly outfitted vehicle to the defendant-dealer, Clearview. Various problems arose with the van, including a transmission problem, shortly after the Wheelers brought the vehicle home which necessitated several trips to the dealership between January and June of 1980. On June 23, 1980, the Wheelers returned the vehicle specifically for repairs to the shifting mechanism and excessive noise in the engine. The van thereafter remained at the dealership. As a result, suit was filed against Clearview and Chrysler on October 10, 1980 for rescission of the sale.

Clearview then filed a third-party action against Chrysler, and both Clearview and Chrysler filed third-party demands against Gladiator.

The case was tried before a jury in July, 1983, resulting in a judgment in plaintiffs favor as to Clearview on August 2, 1983. All claims against Chrysler and Gladiator were dismissed. The jury verdict rescinded the sale and awarded plaintiffs Sixteen Thousand, Nine Hundred Two Dollars and Thirty-Five Cents ($16,902.35) plus judicial interest and costs.

Defendant, Clearview, consequently perfected this appeal alleging as error the following:

that (1) the plaintiffs did not carry their burden of proving redhibitory defects warranting rescission of the sale; that

(2) the amount of the award to the plaintiffs cannot be justified or substantiated as damages either actually suffered or proved by the plaintiffs in their purchase of the vehicle; that

(3) even if redhibition is maintained (or, alternatively, if quanti minoris relief is awarded by this court), third-party judgments against Chrysler (as the basic-vehicle’s manufacturer) and/or Gladiator (as the modifier/customizer of the vehicle) must be maintained and awarded; and that

(4) the jurors acted improperly in influencing other jurors to compromise their votes on jury interrogatories in order to be able to go home due to the late hour; in awarding by subterfuge attorney’s fees while stating that they were not doing so; and in considering evidence not within the record as a justification for awarding what is actually punitive damages against Clear-view Dodge.

On the first issue, appellant argues that the evidence was insufficient to prove a defect warranting rescission of the sale. The evidence, it is claimed, presented proof of minor problems that were easily repaired and corrected. Appellant alleges that after June 23, 1980 the plaintiffs refused to accept the repaired vehicle because it did not suit their needs and not because of the alleged defects.

Appellees, Mr. and Mrs. Wheeler, argue on the other hand that the jury was presented with evidence showing numerous trips to the dealer for multiple problems which resulted in some repairs, but which failed to correct others. Further, it is argued the jury chose to believe that Clear-view failed to notify plaintiff regarding the supposed repair of the van on June 23, 1980, and that Clearview was unresponsive to plaintiffs efforts to discover whether the vehicle was repaired and ready. Appel-lees state that the jury had to conclude that Clearview either could not or would not correct the defects in the transmission and engine.

LSA-C.C. 2520 provides that:

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.

The plaintiff in a redhibitory action must prove by a preponderance of the evidence that the item sold contained a hidden defect before the sale which was not apparent by ordinary inspection and which rendered the thing unfit for its intended use or so imperfect that the purchaser would have not bought it had he known of the defect. LSA-C.C. art. 2520; LSA-C.C. art. 2521; LSA-C.C. art. 2530; Prat v. Heymann, 410 So.2d 343 (La.App. 4th Cir.1982); Cloud v. Huffman Motor Co., Inc., 416 So.2d 266 (La.App. 3d Cir.1982).

Multiple defects can collectively form the basis of the redhibitory action even though many of the vices are minor or have been repaired. Davidson v. New Roads Motor Co., Inc., 385 So.2d 319 (La.App. 1st Cir.1980); writ den. 391 So.2d 454 (La.1980).

The facts herein show that the van was purchased by the plaintiffs on January 31, 1980, and was brought to the dealership for repairs at least seven to eight times in a five-month period to correct problems with the speed control, sun visor, engine roar, noise from a window, problems with the air conditioning vent, the temperature control, radio rattles, engine running after the key was turned off, alignment of the wheels and problems with the shifting mechanism. Appellant did not refute the evidence of the various problems and appellees’ numerous visits to the dealership, but argue that they did all that was required to correct them. Appellant also argues that the transmission problem was brought to their attention once, on June 23, 1980, which was the last time the Wheelers saw the vehicle. They claim the repairs were consequently made to the gears and that the appellees were notified that the van was ready. Their witnesses stated that the roaring noise complained of previously, and again on that date, was a natural function of the design of the vehicle and that the transmission problem was easily fixed. Appellant does not adequately explain why the vehicle was kept for six to eight weeks at one point even though the complaints were supposedly minor.

Appellant seeks to have this court disregard the testimony of the plaintiffs in deference to their experts and repair orders. The plaintiffs testified that on some occasions work orders were not completed for complaints previously made. Mr. Wheeler stated that repairs to the engine were noted on one order, but he wasn’t sure why. He and his wife stated that the problem with the transmission began immediately after the purchase and that at one point he instructed his wife not to drive the vehicle until the van could be brought in pursuant to the dealer’s appointment policy. However, his wife drove the van in the belief that the problem was due to the newness of the vehicle and because she needed the transportation. Appellees’ evidence indicates that Clearview may have been aware of the transmission problem although only one work order written on June 23, 1980 specifically recorded appellees’ complaint in this regard.

From February to June, 1980, most of appellees’ complaints were satisfied; however, after returning the vehicle for repairs on June 23, 1980, appellees stated that numerous phone calls to appellant failed to elicit any response as to whether or not the vehicle was repaired or ready. Appellant’s witnesses stated the appellees were notified by telephone, but the testimony showed that the alleged phone call was made at a time the dealer personnel knew the appellees were at work. A letter written in August, 1980, by appellees’ attorney failed to result in an explanation or offer to return the vehicle. Clearview’s attorney responded, but did so in obvious ignorance of the fact that the van was still at the dealership as the letter requested a tender of the vehicle for repair.

The standard of appellate review of facts as stated by the Louisiana Supreme Court in Canter v. Koehring, 283 So.2d 716 (La.1973) is as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” At page 724.

Manifest error means clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After reviewing the evidence and the record, we find no manifest error in the jury’s findings of fact herein and thus uphold the verdict rescinding the sale.

Appellant secondly complains that the amount awarded by the jury for the rescission of the sale against a good faith seller is excessive under the law of redhibition.

The object of the limitation on recovery in redhibition, it has been held, is to place the parties in the same position they were in before the sale as nearly as possible under the circumstances. Williams v. Daste, 181 So.2d 247 (La.App. 4th Cir.1965), writ den. 248 La. 916, 182 So.2d 664 (La.1966); Davis v. Bryan Chevrolet, Inc., 148 So.2d 800 (La.App. 4th Cir.1963), cert. den. (La.1963); Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2d Cir.1975); Harris v. Bardwell, 373 So.2d 777 (La.App. 2d Cir.1979).

LSA-C.C. Article 2531 provides in this regard:

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

Thus, the seller who knew not the vices of the thing sold is liable under Article 2531, while the seller in bad faith (or one who has knowledge of the vices) is liable for damages and. attorney fees along with the recoverable items under LSA-C.C. art. 2531. Gamble v. Bill Lowrey Chevrolet, Inc., 410 So.2d 1155 (La.App. 3d Cir.1982); Cobb v. Coleman Oldsmobile, Inc., 393 So.2d 402 (La.App. 1st Cir.1981), writ den. 397 So.2d 1358 (La.1981).

The jury herein rescinded the sale and awarded a total of Eighteen Thousand, Five Hundred Fifty-Two Dollars and Eighty-Five Cents ($18,552.85) to appellees, but awarded to Clearview a credit of One Thousand, Six Hundred Fifty Dollars and Fifty Cents ($1,650.50) for appellee’s use of the vehicle for five months. The award was thereby reduced to Sixteen Thousand, Nine Hundred Two Dollars and Thirty-Five Cents ($16,902.35). The deferred price of the van was Fifteen Thousand, Eighty-Three Dollars and Sixty Cents ($15,083.60) actually paid by appellees who continued to pay the three-year note on the vehicle although the vehicle was not in their possession for over two and a half years. Other expenses presented by appellees included payments made to a co-worker for transportation during the period from June 23, 1980 to early 1981, at which time another vehicle was purchased by appellees. From that point on, the appellees paid notes on two vehicles, one of which was in the possession of appellant who could not or would not return it to the appellees.

Under LSA-C.C. art. 2531, recovery in redhibition against a good faith seller is strictly limited to the purchase price, reasonable expenses occasioned by the sale and expenses incurred to preserve the thing. The evidence presented herein does not support a finding of bad faith in the sale as to Clearview under the law. The testimony of the witnesses as to the amounts over and above the purchase price fall in the category of damages not recoverable from a good faith seller as they are neither expenses of the sale nor expenses to preserve the thing. Whatever negligence Clearview may have been guilty of subsequent to the sale, appellees are not entitled to recover losses other than those expressly provided for in LSA-C.C. art. 2531. Consequently, as the jury erred in this respect, the award is reduced to Thirteen Thousand, Four Hundred Thirty-Three Dollars and Ten Cents ($13,433.10) reflecting Fifteen Thousand, Eighty-Three Dollars and Eighty Cents ($15,083.80) for the deferred purchase price minus a credit for appellees’ use of the vehicle for five months in the amount of One Thousand, Six Hundred Fifty Dollars and Fifty Cents ($1,650.50).

Appellant’s third issue relates to the seller’s right to recover from the manufacturer any losses sustained as a result of the seller’s liability. LSA-C.C. art. 2531.

Appellant is correct that normally the seller is entitled to recover his losses from the manufacturer.

LSA-C.C. art. 2531, paragraph 2 states:

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

There are, however, exceptions to this rule of law which apply in this case.

Indemnification has been denied the seller where the loss is caused by his own fault. Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir.1978). Failure to remedy easily repairable defects, the seller’s dilatory actions or tardiness in repairing the vices, or where the seller’s negligence is a substantial factor in aggravating or maintaining the defaults have been held to constitute fault such as to bar the seller’s recovery from the manufacturer. Fernandez v. Clearview Dodge Sales, Inc., 437 So.2d 1188 (La. 5th Cir.1983); Cefalu v. Leon Pickard Chevrolet, Inc., 428 So.2d 1063 (La.App. 1st Cir.1983); Guyon v. Camper Village, Inc., 428 So.2d 1014 (La.App. 1st Cir.1983), writ den. 431 So.2d 1 (La.1983); McManus v. Galaxy Carpet Mills, Inc., 433 So.2d 854 (La.App. 3d Cir.1983); Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir.1981), writ den. 406 So.2d 608 (La.1981); Perrin v. Read Imports, Inc., supra.

In this case, the evidence shows that the seller was dilatory and tardy in repairing the various defects they argue were easily repairable. Some of the problems were in fact corrected; however whether the van’s transmission problem was corrected as alleged by the appellant’s witnesses is suspect as the van was neither returned nor was an offer made to return the supposedly repaired vehicle to appel-lees.

Consequently, we find that the jury did not err in failing to grant indemnity to appellant, as the losses sustained herein by appellant were caused by its own fault in failing to repair the vehicle in a reasonable time and manner.

In appellant’s final specification of error, it is alleged inter alia that the jury conducted itself improperly in that some of the members were coerced into returning the verdict. The complaints as to the award as punitive and containing hidden attorney’s fees is disposed of by our previous findings.

It is well established that the appellate court is required to review the factual findings under the correct and appropriate legal principles and to render any judgment which is just, legal and proper. LSA-C. C.P. art. 2164.

When the jury is bribed or has behaved improperly so that impartial justice has not been done, a new trial is warranted upon contradictory motion of any party. LSA-C.C.P. art. 1972 (formerly contained in LSA-C.C.P. 1814). However the reviewing court will not interfere with the jury’s deliberations where it can be safely assumed that impartial justice was achieved. Thibeaux v. State Farm Mutual Automobile Insurance Company, 285 So.2d 363 (La.App. 3d Cir.1973), writ den. 287 So.2d 191 (La.1974). Further, it is well established in the jurisprudence that jurors are not permitted to impeach their verdict regardless of whether the misconduct occurred inside or outside the jury room. Lachney v. Jones, 373 So.2d 595 (La.App. 3d Cir.1979), writ den. 376 So.2d 959 (La.1979). Ryals v. Home Insurance Company, 410 So.2d 827 (La.App. 3d Cir.1982), writ den. 414 So.2d 375 (La.1982); Leblanc v. K-Mart Apparel Fashions Corp., 399 So.2d 753 (La.App. 3d Cir.1981); Wright v. State Farm Mutual Automobile Insurance Co., 445 So.2d 206 (La.App. 3d Cir.1984). The proposition has been applied assuming arguendo the misconduct occurred. Blandino v. Brown Erection Company, Inc., 341 So.2d 577 (La.App. 2d Cir.1977).

Keeping these principles in mind, we thoroughly reviewed the evidence herein and find that impartial justice was achieved, even assuming arguendo that some members of the jury were pressured into rendering the verdict. Thus, appellant’s motion was not improperly denied.

Therefore, for the foregoing reasons and after a review of the law and evidence, the judgment of the trial court is hereby reduced and amended to reflect an award of Thirteen Thousand, Four Hundred Thirty-Three Dollars and Ten Cents ($13,433.10) in favor of plaintiffs, Cleo Collins Wheeler, wife of/and William Wheeler, and against defendant, Clearview Dodge Sales, Inc. In all other respects, the judgment of the trial court is hereby affirmed.

Costs of this appeal are to be assessed against appellant, Clearview Dodge Sales, Inc.

AMENDED AND AFFIRMED AS AMENDED.


author: DUFRESNE, Judge.

text:
    STATE of Louisiana v. Victoria SANCHEZ.
    No. 84-KA-135.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Writ Denied March 22, 1985.

      Ronald S. Ruiz, New Orleans, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Asst. Dist. Atty., 24th Judicial Dist., Jefferson Parish, Gretna, for plaintiff-appellee.
    Before CHEHARDY, CURRAULT and DUFRESNE, JJ.
   DUFRESNE, Judge.

The defendant, Victoria Sanchez, was convicted by a jury of manslaughter, (LSA R.S. 14:31). She was sentenced to imprisonment for ten years at hard labor. The sentence was suspended and the defendant was placed on active probation for five years and a special condition was made that she return to Honduras permanently. We affirm the conviction, but remand for resentencing.

She relies on one assignment of error; that the trial judge erred in not granting the defendant’s motion to suppress inculpa-tory statements.

The basic facts are these:

On the evening of December 18, 1982, John Cassanova (neighbor of the defendant) upon returning home, observed Victoria Sanchez clad only in panties and a “flimsy” blouse, standing outside on the lawn between his house and hers. He also observed his wife standing nearby holding two bath towels.

He spoke first to his wife who informed him that there had been a disturbance at the Sanchez residence and that “Vicky had come over for help, and that Vincente had killed himself ...” She then handed her husband the bath towels for Ms. Sanchez. Cassanova then spoke to Ms. Sanchez who told him “Sanchez tried to kill me, and then killed himself ...” Having previously been a medic, Cassanova decided to enter the Sanchez residence to determine whether Vincente Sanchez was in need of assistance. As he reached the den area of the house he observed Vincente Sanchez lying on the floor “with all of the weapons around him, as though it was some type of ornamentation around him.” Cassanova felt for a pulse and as he touched the carotid artery, Sanchez’s head turned and blood came from his mouth. At that point Cassanova felt sure Sanchez was dead.

As he had been trying to ascertain the medical condition of Vincente Sanchez, Victoria Sanchez had been screaming incoherently and Cassanova felt that she was on the brink of hysterics. As he watched, she began to use the towel he had previously given her to wipe off the guns which were laying near her husband’s body. Cassano-va interrupted the activity and told her to put more clothes on while he called the police to report the homicide. While he was waiting for the officers to arrive, Ms. Sanchez returned to the den from the bedroom area, sat on the sofa, and looking at her husband stated, “Oh, why did you make me do this?”

Shortly thereafter, Officer Theresa Gauci arrived at the residence. She attempted to speak with Ms. Sanchez but received no response. Because of the injury to Ms. Sanchez’s arm, an ambulance was called and Ms. Sanchez, accompanied by two deputies, was transported to East Jefferson Hospital for treatment.

At the hospital, Ms. Sanchez received five (5) stitches on her left arm, and to calm her, an injection of vistaril. The hospital bill contained in the record also reflects that a tetanus shot was administered. She was discharged at 1:50 a.m. on the morning of December 19, 1982.

Detective Marco Nuzzolillo employed in the Homicide Unit of the Jefferson Parish, was called regarding the death of Vincente Sanchez at about 11:30 p.m. He arrived at the Sanchez residence at about 12:05 on the morning of December 19th, and began conducting the investigation. After directing the Crime Scene Technicians to process the scene, Nuzzolillo interviewed several witnesses, including the Cassanovas. He then proceeded to the East Bank Lockup to interview Ms. Sanchez who was being transported from the hospital to that location. Because he had been informed that Ms. Sanchez spoke only Spanish, he requested an interpreter from the Jefferson Parish Sheriff’s Office, but was told that no one was available. State Trooper John Escoto was contacted by a close friend of the defendant. Escoto contacted the First District Lockup and, after learning that an interview was to be conducted, volunteered his services as an interpreter. He was accepted as such and proceeded to the lockup on Metairie Road where he met with Nuzzolillo and Victoria Sanchez.

Following an explanation by Trooper Es-coto, a waiver of rights form was executed by Victoria Sanchez at 2:25 a.m. on the morning of December 19, 1982. Trooper Escoto testified that the initial interrogation lasted approximately twenty minutes, although Detective Nuzzolillo who conducted the questioning, stated it lasted closer to an hour.

Following the interview, they returned to the Sanchez house, at Nuzzolillo’s request, arriving at approximately 3:58 a.m. Ms. Sanchez re-enacted the struggle of the previous evening, with Trooper Escoto acting as Vincente Sanchez.

On December 21, 1982, at 3:12 p.m. following further investigation by Detective Nuzzolillo, conflicting information was developed and another statement was taken from Ms. Sanchez. This statement, taken through a different interpreter, was substantially similar to the one previously given, except that Ms. Sanchez admitted that during the struggle she may have shot her husband.

Following the second statement, Ms. Sanchez was arrested for murder and the present prosecution ensued.

Although the defendant did not file assignments of error with the trial court, she has incorporated the one assignment of error in her appellant brief.

In the past, this court has ruled that assignments of error which were not formally filed with the trial court and therefore not included in the record, but rather were incorporated into the brief, have not been properly presented for review. See State v. Blanchard, 450 So.2d 738 (La.App. 5th Cir.1984); State v. Jack, 448 So.2d 725 (La.App. 5th Cir.1984); State v. Sonnier, 441 So.2d 359 (La.App. 5th Cir.1983).

However, in the interest of judicial economy, rather than dismiss the defendant’s appeal, we will nevertheless consider the argument presented by the defendant.

Defense counsel maintains that the statement given by Victoria Sanchez on December 19,1982, was not freely and voluntarily made as she had been given 100 mg. of vistaril intravenously, a couple of hours earlier.

Before a confession can be introduced in evidence, it is incumbent upon the state to prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451; State v. Robinson, 384 So.2d 332 (La.1980). The state must also establish that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. State v. Kersey, 406 So.2d 555 (La.1981).

Officer Marco Nuzzolillo, the chief investigator of the homicide from the Jefferson Parish Sheriffs Office testified that he met and spoke to Victoria Sanchez concerning the death of her husband on two occasions, on December 19, 1982, at 2:25 a.m. and on December 21, 1982, at 3:12 p.m., each time advising her of her constitutional Miranda rights through an interpreter. Trooper John Escoto and Ms. Lenora Trombach acted as interpreters on December 19,1982, and December 21,1982, respectively. The Rights of Arrestee and Suspects form was signed by Mrs. Sanchez as well as by Officer Nuzzolillo and Trooper Escoto. Officer Nuzzolillo said Mrs. Sanchez signed a waiver of her rights and did not ask to speak with a lawyer.

Officer Nuzzolillo said Mrs. Sanchez spoke to him about the incident involving her husband’s death on December 19, 1982, through interpreter, John Escoto, and at no time was she promised anything, threatened or coerced in connection with making any statements. Officer Nuzzolillo said he was satisfied that Mrs. Sanchez was speaking to him freely and willingly.

Mrs. Sanchez gave oral statements on both December 19, 1982, and December 21, 1982. Officer Nuzzolillo related the substance of the statement given to him by the defendant on December 19, 1982, as follows:

She told me that her husband wanted to kill her because she objected to his having an affair with her niece in Honduras. She told me that while at their residence, they struggled over what possibly might have been a rifle. She wasn’t sure at that time. She told me that she struggled over a small, yellow box, which she later believed to be ammunition. She told me he attacked her with a machete, and she defended herself by using her hands to grab the machete.
She told me that she ran out of the house, and she was leaving the house, she heard another shot. And prior to that, she told me that they had begun struggling, this time with a rifle for sure. If you remember a little while ago, I said she struggled with what she thought might have been a rifle. But she wasn’t sure, then the machete. Now she is saying she struggled with a rifle with her husband. She said that his hand was near the trigger. Her hand was on his hand. They were struggling, and she heard several shots. Then when she ran out, she heard more shots.

With regard to the second statement he took on December 21, 1982, Officer Nuzzo-lillo said that Mrs. Sanchez gave him the same information about what had occurred, the only difference being that towards the end of the interview she said, “While I was fighting with him, I may have shot him.”

Officer Nuzzolillo testified that at the time Mrs. Sanchez gave her statements to him on both occasions, she seemed to him to be aware of her surroundings and in control of her talking.

When asked, “Was there at any time that you were under the impression that Mrs. Sanchez did not, either know where she was, what she was saying, or what she was doing?” Officer Nuzzolillo answered, “No”.

Trooper John Escoto testified that he read Mrs. Sanchez her rights on December 19, 1982, from a Jefferson Parish Sheriffs Office Rights Warning Certificate when he acted as an interpreter for Officer Nuzzolil-lo and translated each individual sentence in the rights warning procedure. Trooper Escoto said Mrs. Sanchez indicated to him that she understood her rights and signed the form in his presence. She indicated to him that she wished to waive her rights and give a statement.

Trooper Escoto said he thought Mrs. Sanchez was aware of what she was doing at the time she gave her statement. He said there were periods when she was sobbing but that she was coherent for the most part.

At the pre-trial hearing on the motion to suppress inculpatory statements, Trooper Escoto said he had been made aware of the incident involving Vincente Sanchez’s death by Officer Nuzzolillo before he began to act as an interpreter. Trooper Escoto said Mrs. Sanchez was somewhat nervous at the interview and at times rambled saying things that didn’t make sense to him. This did not surprise or concern Trooper Escoto.

In response to questioning by the assistant district attorney, Trooper Escoto testified that it never appeared to him during the course of the interview that Mrs. Sanchez was not aware of what she was doing and that her reactions to questioning were no different than those he had observed in other witnesses.

After Victoria Sanchez gave her statement on December 19, 1982, Officer Nuzzo-lillo obtained a consent to search the residence from her and he went there with the defendant, Trooper Escoto, the defendant’s sister, and the sister’s husband.

Officer Nuzzolillo explained that he wanted to go to the Sanchez residence to look over the scene with Victoria Sanchez and let her again re-enact what had happened. Officer Nuzzolillo said at that time, Mrs. Sanchez showed him the general area of the altercation and demonstrated defensive moves she made to block a machete blow.

The effect of 100 mg. of vistaril administered intramuscularly to Victoria Sanchez on December 19,1982, at 12:19 a.m. at East Jefferson Hospital was first addressed by psychiatrist, Dr. Robert Ancira, defense counsel’s medical witness at the hearing of motion to suppress.

Dr. Ancira testified he examined Victoria Sanchez in April and May of 1983 in order to evaluate her state of mind at the time of the crime, to determine the effect of the vistaril and to help her manage the anxiety and depression he found she was experiencing.

In response to defense counsel’s questioning on the effects of an injection of 100 mg. of vistaril on Mrs. Sanchez a couple of hours before she was questioned, Dr. Anci-ra described vistaril as a mild tranquilizer for reduction of anxiety and tension and said it is most commonly used for patients before going into surgery. The doctor said the usual dosage is anywhere from 50-100 mgs. intramuscular for a faster onset of action up to every 4-6 hours.

In Mrs. Sanchez’s case, Dr. Ancira said from what he understood, she was in an agitated state, tense and upset and the injection of the vistaril would have calmed her down and made her more cooperative.

An examination of the substance of Victoria Sanchez’s statement given on December 19, 1982, reveals that it is exculpatory, depicting a series of struggles between she and her husband and in the final struggle over a gun, some shots were fired and Vincente Sanchez died.

The United States Supreme Court in the case of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963) set forth the criteria for evaluating the admissibility of a confession.

If an individual’s “will was overborne” [footnote omitted] or if his confession was not “the product of a rational intellect and a free will”, [footnote omitted] his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement.

In the Physician’s Desk Reference Book, vistaril is described as a drug that induces a calming effect in anxious, tense, psycho-neurotic adults and also in anxious, hyper-kinetic children without impairing mental alertness. It is not a cortical depressant.

The trial judge asked Dr. Ancira during the pretrial hearing on the Motion to Suppress Inculpatory Statements whether Victoria Sanchez would have been coherent when questioned by officers an hour and a half after receiving the medication and the doctor said that she would be.

A review of the record in this case reveals that two inculpatory statements not challenged by the defense made by Victoria Sanchez were made when she was not under the influence of any medication.

The first inculpatory statement was made shortly after the incident in the presence of next-door neighbor, John Cassano-va. Mr. Cassanova said that Victoria Sanchez sat on the sofa in her house and looked at her dead husband and exclaimed, “Oh, why did you make me do this.”

On December 21, 1982, at approximately 3:12 p.m. at the time she gave a second statement to Officer Nuzzolillo in the presence of interpreter Lenora Trombach, Officer Nuzzolillo said Victoria Sanchez related the same story about the incident as she did on December 18, 1982; the only difference being that after describing a final struggle with a rifle, she said, “I may have shot him.”

The fact that Mrs. Sanchez corroborated in substance her first statement a second time on December 21, 1982, with the only difference being an inculpatory suggestion that she may have shot her husband and was able to return to the scene an hour after that initial statement and re-enact the events as she had related them earlier at the police district, gives additional support that the statement she made on December 19, 1982, was freely and voluntarily made.

The trial judge did not err in concluding that the defendant knowingly and intelligently waived her constitutional rights and freely and voluntarily made the statement.

Accordingly, the assignment of error has no merit.

ERROR PATENT

We have reviewed the record for error patent under La.C.Cr.P. art. 920(2) and it appears that the special condition of probation is violative of due process or equal protection.

At the conclusion of trial, the jury found Victoria Sanchez guilty of manslaughter. The trial judge sentenced Victoria Sanchez to ten (10) years imprisonment at hard labor. The judge suspended the sentence and placed the defendant on active probation and imposed, as a special condition of probation, that Victoria Sanchez leave the United States and return to Honduras, permanently.

In Rutherford v. Blankenship, 468 F.Supp. 1357, (U.S.District Ct., U.S.Va. 1979), the petitioner pled guilty to malicious wounding and driving an automobile after having been adjudicated a habitual offender. Rutherford received ten (10) years imprisonment on the malicious wounding conviction to be suspended and one (1) year unsuspended on the habitual offender conviction to run concurrently with a third charge. As part of the plea agreement (in order to obtain suspension of the ten (10) year sentence) Rutherford agreed to leave the State of Virginia on the expiration of the one year term. The court found the banishment condition null, void and unenforceable. The Rutherford court stated that “the power to banish, if it exists at all, is a power vested in the Legislature and certainly where such methods of punishment are not authorized by statute, it is impliedly prohibited by public policy, People v. Baum, 251 Mich. 187, 231 N.W. 95 (1930), 70 A.L.R. 98 (1931).” Rutherford v. Blankenship, supra at 1360.

The Rutherford Court found that one state could not banish a criminal to another as that was prohibited by public policy and not in the interests of safety and welfare.

In the case of Dear Wing Jung v. United States, 312 F.2d 73 (U.S. 9th Cir.1962), a Chinese national was sentenced to six months imprisonment suspended on the condition that he leave the United States. The court rejected the government’s argument that they had given the defendant a choice and found that the banishment condition of the sentence was either violative of due process or equal protection and was unconstitutional and remanded the case to the District Court for sentencing in accordance with the law.

It is apparent that the portion of trial judge’s sentence in the instant case which imposes banishment as a special condition of probation is unconstitutional.

The defendant’s conviction is affirmed. However, the sentence imposed is vacated and set aside and the case is remanded to the district court for resentencing.

CONVICTION AFFIRMED, SENTENCE VACATED, CASE REMANDED TO DISTRICT COURT FOR RESEN-TENCING.


author: DUFRESNE, Judge. GRISBAUM, Judge,

text:
    Alance HARTMAN v. JOHNS-MANVILLE SALES CORPORATION a/k/a Johns-Manville Products and Celotex Corporation.
    No. 84-CA-478.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Rehearing Denied Feb. 20, 1985.

      Thomas L. Gaudry, Jr., Gretna, Thomas M. Nosewicz, New Orleans, for defendant-appellant.
    Gertler & Gertler, Judith Defraites, New Orleans, for plaintiff-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Celotex, Corp., defendant-appellant, from a workman’s compensation award to its former employee, Alance Hartman, plaintiff-appellee, for a permanent impairment of his lungs due to exposure to fibrogenic dusts.

Alance Hartman, an electrician, was employed by Johns-Manville Sales Corp., from 1949 to 1970, during which time he was exposed to asbestos and silica dusts. From 1970 to 1981, he worked for Celotex Corp., spending 30% of his time in the shop and 70% in the plant. He testified that during his last year with Celotex, he began to experience shortness of breath and tired easily on the job. He decided to resign. Some months later he was diagnosed by Dr. Morton Brown, an expert in lung diseases, as suffering from “mixed dust pneu-moconiosis”, a scarring of the inside of the lungs caused by exposure to a number of industrial dusts such as asbestos, silica, talc and mica. Although several pulmonary studies indicated that his lungs functioned within normal limits, one such study revealed that he showed fatigue after exertion and that the oxygen level in his blood was abnormally low. Dr. Brown testified that such test results were not unusual in patients suffering from pneumoconiosis. It was his further opinion that while Hartman’s condition was probably initiated by asbestos and silica exposure at Johns-Man-ville, any further exposure to mica, talc and silica at Celotex would also have been a causative factor in the development of the disease.

In regard to the presence and levels of these latter substances, Hartman introduced a report prepared for Celotex in 1974 by Arthur Neilson, an industrial hygienist, which concluded that silica was present at levels in excess of allowable limits. Weldon McDonald, a paint mixer, testified that talc and mica were used to make certain paints. These substances came in bags which he broke open into the mixing tanks. He noted that although the mixers had dust removal systems, these systems often broke down or choked, and during such failures, dust would “fly all over”. He further stated that Hartman worked on the paint mixing machines from time to time and that conditions in the paint department were “dusty, plenty dusty”.

In rebuttal, Celotex called Dr. Robert Jones, also a specialist in lung diseases. He examined Hartman once and agreed that his chest X-rays showed evidence of damage due to asbestos exposure, but disputed whether that damage had reached a stage where it could properly be diagnosed as pneumoconiosis. He further stated that in his opinion, Hartman’s condition had not been exacerbated by exposure to dusts at Celotex. This opinion was based on information as to the silica, talc and mica levels at Celotex supplied to him by Dr. Yehia Hammad, an industrial hygienist. ' The results of three tests conducted at Celotex by Dr. Hammad between 1981 and 1983, indicated that at those times, the levels of all fibrogenic dusts in the plant were miniscule when compared to standards set by OSHA.

Two other physicians who only examined Hartman’s medical records basically concurred with Dr. Jones’ opinion that his condition could not yet be diagnosed as pneu-moconiosis, and that his lungs did not appear to be functionally impaired.

On the basis of this evidence, the trial court cast Johns-Manville in judgment for $49 per week for 50 weeks plus one-half of all past and future medical expenses relating to the disease, and Celotex for $163 per week for 50 weeks, plus the remaining one-half of the medical expenses. Although no reasons for judgment appear in the record, because the judgment reserved to Hartman the right to file another compensation claim if and when he becomes disabled as a result of the occupational disease, it is clear that this award was for an impairment of a physical function of the lungs pursuant to La.R.S. 23:1221(4)(p).

Celotex now appeals, and Hartman has answered that appeal. Johns-Manville has not appealed.

Celotex urges here that Hartman failed to prove that:

1) He has either a disability or an impairment of the lungs which is compensa-ble, and;
2) That if either of the above conditions do exist, that it was caused by his work at Celotex.

Because these allegations involve factual issues, our standard of review is not whether we might have reached a different conclusion from the evidence, but whether the trial court committed manifest error in its findings of fact, Canter v. Koehring, 283 So.2d 716 (La.1973). Because we find no such error here, we affirm those findings.

Addressing first the argument of Celotex that Hartman is not disabled because he can allegedly return to work, we need only repeat that the judgment was clearly not based on this consideration. It was instead based on La.R.S. 23:1221(4)(p), which provided that compensation may be awarded for impairment of a physical function, whether that impairment prevents the claimant from working or not, Clarius v. Fogleman Truck Lines, Inc., 367 So.2d 1264 (La.App. 3rd Cir.1979).

The next question is whether Hartman proved that his lungs were impaired. His case was basically the testimony of Dr. Morton Brown, his treating physician, to the effect that he suffers from “mixed dust pneumoconiosis”, and as a result he tires easily because his lungs no longer provide sufficient oxygen to his blood. We find this testimony, together with Hartman’s subjective complaints of tiredness and shortness of breath, sufficient to constitute a prima facia case of impairment of the lungs. •'

Celotex argues that because its three medical experts disputed the diagnosis of Dr. Brown, that it rebutted Hartman’s case. We note, however, that Dr. Brown saw Hartman regularly during an eight day hospital stay and did follow up tests on two other occasions. Dr. Jones, called by Celotex, saw Hartman once, and their other two doctors testified only from the medical records. We therefore find nothing manifestly erroneous in the trial court crediting the testimony of a treating physician over that of one other doctor who saw the patient once and two others who did not see him at all, especially when Dr. Jones admitted that Hartman’s lung X-rays showed the effects of asbestos exposure, Irvine v. Sentry Insurance Co., 415 So.2d 467 (La.App. 1st Cir.1982).

The next issue is whether Hartman proved that his work at Celotex caused or contributed to his condition. It is not disputed that silica, mica and talc are fibro-genic dusts that cause pneumoconiosis. The question is thus whether these substances were found at Celotex between 1970 and 1981, in sufficient quantities to have contributed to or caused Hartman’s problem. In regard to talc and mica, there is no question that these substances were used at the plant. Mr. McDonald’s testimony about the quantities of these dusts in the air, while not scientifically precise, was certainly graphic enough to show that they existed in substantial levels. It also showed that the vacuum system malfunctioned regularly. Further, the conclusion of Celotex’s own consultant that in 1974 the levels of silica in the plant were in excess of allowable limits, made a very persuasive case in Hartman’s favor.

The strongest rebuttal evidence introduced by Celotex were the reports of Dr. Hammad which showed only traces of these dusts. However, these tests were done after Hartman’s time of employment at the plant, and are therefore of questionable relevance. On these facts, we see nothing erroneous in concluding that it is more probable than not that these dusts were the cause of Hartman’s condition.

We finally turn to Hartman’s allegation in his answer to this appeal. His sole contention is that the trial court erred in casting Celotex for only one-half of the compensation and medical benefits. We agree. In Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1982), the court held that no contribution was owing from former employers of a worker, even though their conditions of work may have contributed to the disease, except as provided in La.R.S. 23:1031.ID. While that case was construing La.R.S. 23:1031.1, instead of La. R.S. 23:1221(4)(p) applicable here, we find no reason to distinguish the two statutes so as to reach a result different from Carter on this point.

For the foregoing reasons, we therefore amend the award of compensation owing by Celotex to $163 per week for 100 weeks plus all past and future medical expenses attributable to the disease. All costs of this appeal are assessed against the defendant-appellant.

AMENDED AND AS AMENDED, AFFIRMED.

GRISBAUM, J., concurs with written reasons.

GRISBAUM, Judge,

concurring.

I concur with the opinion but for different reasons. In Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1982), the court found the second employer fully liable for compensation payments to the plaintiff and released the first employer because, as the court held, the plaintiff failed to establish by a preponderance of the evidence that his exposure to harmful dust while working for the first employer caused him to contract silicosis and to become disabled. The plaintiff’s testifying physicians stated they could not offer opinions as to which job caused the silicosis because they did not know the concentration levels to which he was exposed. The court found the evidence indicated the plaintiff’s first place of employment might have played a part in his development of silicosis, but that the higher level of concentration at the second place of employment indicated this employment was the primary cause of the plaintiff’s disability. Likewise, in the instant case, the plaintiff failed to prove by a preponderance of the evidence that his exposure at Johns-Man-ville caused a serious and permanent impairment of his lungs. Dr. Brown, the plaintiffs own expert witness, stated at trial that it would be very difficult to apportion the contribution that each exposure played in the development of the plaintiffs impairment. In addition, he indicated that he gave considerable weight to the subsequent exposure to fibrogenic dusts present at Celotex since the subsequent exposure would have the effect of accelerating the disease process into a “clinically significant disease.”

Accordingly, I am able to concur with the majority opinion because of the plaintiffs failure to prove by a preponderance of the evidence his claim against Johns-Manville, but I do not read Carter as imposing in all eases a prohibition against assessing a compensation award against more than one employer.


text:
    Leonard R. COLE, Widower of Lalita S. Cole, Individually and as Natural Tutor of the Minor Child Devin Sears Cole v. The MISSISSIPPI RIVER BRIDGE AUTHORITY, et al. James R. BRIGHT, Individually and on Behalf of the Community of Acquets and Gains, and Linda Miller Bright v. Joseph E. METZLER, Jr., and State Farm Mutual Automobile Insurance Company.
    Nos. 84-CA-223, 84-CA-224.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      Law Offices of Guy W. Olano, Jr., David Bernstein, Kenner, for plaintiff-appellant Leonard R. Cole.
    Stassi & Rausch, Joseph W. Rausch, Lisa Waggoner Wall, New Orleans, for defendants-appellees Miss. River Bridge Authority and So. American Ins. Co.
    Deutsch, Kerrigan & Stiles, Victor E. Stilwell, Jr., Ethel H. Cohen, New Orleans, for defendant-appellee Modjeske & Masters.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Linda S.A. Burke, Thomas E. Schwab, New Orleans, for defendant-ap-pellee deLaureal Engineers, Inc.
    Poretous, Hainkel, Johnson & Sarpy, C. Gordon Johnson, Jr., New Orleans, for defendants-appellees Linda Miller, James Bright, State Farm Mut. Auto. Ins. Co.
    Before CURRAULT, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

These consolidated suits arise from a wrongful death claim. Leonard Cole, plaintiff in case number 84-CA-223, appeals from the granting of summary judgments dismissing his suit as to all defendants. (The second consolidated case, number 84-CA-224, was dismissed by joint motion after settlement and compromise. No appeal has been made in that case.)

Plaintiff’s wife, Lalita Cole, died of injuries suffered in an accident that occurred on October 2, 1979 on the Greater New Orleans Mississippi River Bridge. Mrs. Cole was driving her automobile westbound on the bridge when an automobile driven by Joseph E. Metzler, Jr., who was heading east, crossed over the center emergency lane and collided head-on with Mrs. Cole’s vehicle. Mrs. Cole’s car was then struck from the rear by the vehicle following immediately behind her on the bridge, an automobile owned by Linda M. Miller and being operated by James R. Bright. Mrs. Cole died a few hours later of the injuries received in the accident.

On January 24, 1980, Leonard Cole settled his claim against Mr. Metzler and Metzler’s insurer, State Farm Insurance Company, for $10,000.00, the policy limits. Cole signed a standard form release that did not contain any reservation of his rights against joint tort-feasors.

On October 2, 1980, Leonard Cole filed a wrongful death and survivorship action, individually and on behalf of Lalita Cole’s minor child, Devin Sears Cole. Made defendants were the State of Louisiana, Department of Transportation and Development [DOTD]; the Mississippi River Bridge Authority [MRBA]; David C. Treen, then-governor of the state; Modjeski & Masters, an engineering partnership; James R. Bright; Linda M. Miller; and all their respective insurers. By supplemental and amending petition, deLaureal Engineers, Inc., was added as a defendant.

The petitions alleged negligence in design and construction of the bridge against DOTD, MRBA, Modjeski & Masters and deLaureal Engineers; failure properly to patrol the bridge and to meet safety standards against DOTD and MRBA; and negligence in operating his automobile against Bright. Miller was sued as owner of the vehicle driven by Bright. In addition, MRBA was alleged to be Bright's employer and therefore responsible for his negligence under the theory of respondeat superior. Governor Treen was alleged to have been negligent in administration of highway safety programs.

Various of the defendants filed third-party demands for contribution and indemnification against one another. MRBA and its insurer, Southern American Insurance Company, also filed a third-party demand against Metzler and State Farm, as did deLaureal Engineers. Metzler and State Farm responded with a motion for summary judgment on the third-party demands against them, seeking to be dismissed on the ground they had been released by plaintiff Leonard Cole and therefore the other defendants had no claim against them.

Thereafter MRBA and Southern American filed a motion for summary judgment on the ground that the release of one joint tort-feasor with no reservation of rights as to the other tort-feasors results in a release of all tort-feasors. Defendants Miller and Bright filed a similar motion for summary judgment, as did Modjeski & Masters and deLaureal Engineers.

On November 5, 1982 the district court granted summary judgment in favor of MRBA and Southern American, and Miller and Bright. The claim of Leonard Cole only was dismissed, because the claim of the minor child, Devin Sears Cole, was not included in Leonard Cole’s release of Metz-ler and State Farm. (Cole had not been properly appointed tutor for the child when he signed the release.) The judgment also dismissed the third-party demands against Metzler and State Farm. Leonard Cole’s motion for rehearing on the summary judgment was denied.

On December 22, 1982 summary judgment was rendered in favor of Modjeski & Masters; on January 31, 1983 summary judgment was rendered in favor of deLau-real Engineers, Inc. These judgments also were as to the claim of Leonard Cole only. Cole has appealed all three judgments.

In the Reasons for Judgment attached to the November 5 judgment, the district court cited Louisiana Civil Code article 2203 and Dodge v. Central Louisiana Electric Company, 257 So.2d 802 (La.App. 3 Cir.1972), stating that the release of one solidary obligor without reservation of the right to claim from another discharges all solidary obligors from liability.

On appeal, Leonard Cole asserts the trial judge erred because the defendants were not solidary obligors with Metzler. Further, Cole contends, a determination of soli-dary liability depends upon a finding of concurring fault, a factual issue inappropriate for determination by summary judgment. He states the inferences to be drawn from the pleadings and the deposition in the record do not establish conclusively a joint tort-feasor relationship between Metzler and the other defendants.

LSA-C.C. art. 2203 states,

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter. * * * ”

The Dodge case, supra, cited by the trial judge, held that “the release of one soli-dary obligor, without reservation of the right to claim from another, discharges all solidary obligors from liability. * * 4 ” 257 So.2d 802, 806.. LSA-C.C. art. 2324 states, in pertinent part,

“Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; * *

In order to determine whether the defendants here were solidary obligors with Joseph Metzler, and thus released by Leonard Cole’s failure to reserve his rights against them, the court was required to decide that Metzler himself was at fault. Otherwise there could be no concurring fault between Metzler and the defendants.

Thus, for purposes of this motion, plaintiff was placed in the peculiar situation of absolving Metzler from fault; in contrast, defendants had to show him to have been negligent.

The only information presented on the motions for summary judgment relevant to Metzler’s fault were the allegations made in Leonard Cole’s pleadings and the deposition testimony of Metzler. There was no police testimony or copy of the accident report, nor was there deposition testimony or interrogatory answers by the defendant Bright, nor was there information available from any other persons who might have known relevant facts.

Cole’s petition simply alleged that the accident that resulted in the death of Lalita Cole was caused when “a third vehicle traveling in the opposite direction crossed over the emergency lane on the bridge and struck the vehicle driven by decedent, * * ” after which Mrs. Cole’s vehicle was then struck from the rear by the automobile driven by Bright.

In his deposition, Mr. Metzler stated he was on his way to work on the morning of the accident. He had undergone dental surgery the preceding evening and had been given a prescription for a painkiller. The dentist who prescribed it told him he would be able to work while taking it, but said nothing about any effects it might have on him. Metzler did not recall seeing any information about the medication printed on the bottle, other than as to how often to take it.

He stated he took one pill about eight or nine o’clock the evening before the accident, and went to bed. He took another at about three o’clock the morning of the accident, when he woke up in pain from the tooth extraction. He went back to sleep after that, then woke up again about 5:15 a.m. and left for work about 5:25. He was due to be at work at six o’clock. Mr. Metzler stated he did not feel drowsy when he woke up that morning, or when he was driving to work. He recalled driving away from his house, and getting on to the bridge approach, but remembers absolutely nothing after that. His next memory is when he woke up in the hospital several days later. He knows nothing about the accident except what other people have told him.

In assessing a motion for summary judgment, the court must consider all the pleadings, depositions, affidavits, answers to interrogatories, and admissions that have been filed in the cause. Summary judgment should be granted if these documents demonstrate there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

Neither plaintiff nor defendants dispute that the accident occurred because the Metzler car crossed over into Mrs. Cole’s lane of traffic. Nor do they dispute the statements made' by Mr. Metzler in his deposition. What is disputed is whether under the circumstances Mr. Metzler was negligent.

“The movant for summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt as to the existence of such issue of material fact is to be resolved against granting the motion. * * To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. * * * The papers supporting the position of the party moving for the summary judgment are to be closely scrutinized while the opposing papers are to be indulgently treated, in determining whether mover has satisfied his burden. * * * Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits and attached exhibits, reasonable inferences must be viewed in the light most favorable to the party opposing the argument. * * * No summary judgment will be granted even if the trial court has grave doubts regarding a party’s ability to establish disputed facts. * * * It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. * * The weighing of conflicting evidence on a material fact has no place in summary judgment procedure. * * * A motion for summary judgment is not appropriate for disposition of cases requiring a judicial determination of subjective facts, e.g., motive, intent, good faith, knowledge. * * * Making evaluations of credibility has no place in determining a summary judgment. * * * ” (Citations omitted.)

Watson v. Cook, 427 So.2d 1312 at 1315, 1316 (La.App. 2 Cir.1983).

Where the primary cause of a collision is a motorist’s act of driving his automobile into that part of the roadway reserved exclusively for traffic proceeding from the opposite direction, a prima facie case of negligence is made out. It becomes incumbent upon that motorist to show by clear and convincing evidence that his sudden presence in the opposing lane of traffic was due to unexpected and unforeseen circumstances over which he had no control and that he did not in any particular contribute to the mishap. Rizley v. Cutrer, 95 So.2d 139 (La.1957).

The occurrence of a head-on collision in Mrs. Cole’s lane of traffic created a rebuttable presumption of negligence on the part of Mr. Metzler. Thus for purposes of this summary judgment motion, the burden was placed on plaintiff Leonard Cole to rebut the presumption. Metzler’s deposition, the only evidence available, presents no positive fact to offset the presumption. Under the circumstances, there is no genuine issue of fact as to Mr. Metzler’s negligence.

Accordingly, we must determine next whether there is any question of material fact as to the solidary liability of defendants with Metzler. Appellant contends, “Whether the fault of each defendant was 'concurring fault’ under Article 2324 should be determined at trial by the ultimate trier of fact.” He argues that legal determination of the type of obligation depends on factual questions regarding the nature of the relationships between the defendants.

We disagree. LSA-C.C. art. 2091 states,
“There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.”
LSA-C.C. art. 2092 states,
“The obligation may be in solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; * * ⅜ ”

It is plain that any fault on the part of the defendants-appellees had to have concurred with Metzler’s fault to produce liability in them. Regardless of the theories upon which their respective liabilities may be based, they are all liable for “one and the same thing,” namely the damages suffered by Lalita Cole and her survivors as a result of the bridge accident. See Narcise v. Illinois Cent. R. Co., 427 So.2d 1192 (La.1983); Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982); Foster v. Hampton, 381 So.2d 789 (La.1980). We find no question of Raterial fact relative to solidarity among -the defendants. ¡

Considering these statements of law, we find that summary judgment was properly granted in the matter before us. Accordingly, the judgments are affirmed. The case is remanded for further proceedings relative to the claim of Devin Sears Cole. The costs of this appeal are assessed against appellant.

JUDGMENTS AFFIRMED; CASE REMANDED.


author: GUIDRY, Judge.

text:
    Charles BUNDRICK d/b/a Lafayette Sand & Gravel Co., Plaintiff-Appellant, v. LAFAYETTE PARISH POLICE JURY, Defendant-Appellee.
    No. 84-20.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Peter C. Piccione, Jr., Lafayette, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Sera H. Russell, III, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Charles Bundrick, d/b/a Lafayette Sand and Gravel Company, appeals the trial court’s denial of his request for a preliminary injunction against defendant, Lafayette Parish Police Jury. Plaintiff sought to enjoin the defendant’s enforcement of a load limit resolution adopted by the Police Jury of Lafayette Parish claiming that such resolution is not evenly applied throughout the parish and that it was arbitrarily enforced. We affirm the trial court’s ruling.

Plaintiff owns a 21 acre tract of land in Lafayette Parish which abuts a canal or coulee which separates it from the end of DuBarry Avenue in the Bissonnet Villa Subdivision. The property had no access to any street when the plaintiff first purchased it. Plaintiff obtained permission from the Lafayette Parish Police Jury to erect a bridge across the coulee in order to obtain access from his property onto Du-Barry Avenue. DuBarry Avenue is two blocks long, running from plaintiff’s property and intersects with Park Lane Road.

Plaintiff is in the dirt hauling business and began hauling dirt in May of 1983 from his property, down DuBarry Avenue, to various locations in the Lafayette area. The residents of the Bissonnet Villa Subdivision became concerned with the 18 wheel trucks passing through their neighborhood and approached the Lafayette Parish Police Jury with their complaints. On May 26, 1983, at a regular meeting of the Police Jury, a resolution was passed authorizing 10 ton weight limit signs to be placed in the Bissonnet Villa Subdivision, in accordance with Ordinance 330 which permits the Police Jury to limit loads on streets and bridges from time to time by resolution. On June 1, 1983, the Police Jury posted signs on DuBarry Avenue indicating a load limit of 10 tons. Plaintiff attended the following Police Jury meeting held on June 23, 1983 and argued that, because his 18 wheel trucks weighed in excess of 10 tons empty, the load limit would effectively force him to discontinue hauling dirt from his property and thus put him out of business. The Police Jury then decided to remove the load limit signs placed in the Bissonnet Villa Subdivision with the stipulation that plaintiff was required to maintain the surface of DuBarry Road in a clean condition. However, at a subsequent meeting held on July 14, 1983, the Police Jury voted to reinstate the 10 ton load limit on streets in the Bissonnet Villa Subdivision.

Plaintiff filed suit seeking a temporary restraining order (TRO), preliminary injunction and permanent injunction against the Police Jury's enforcement of the load limits on DuBarry Avenue. Plaintiff also sought damages for the loss of his business profits, for deprivation of his civil rights, and for the cost of the bridge which he constructed. A TRO issued. The rule on the preliminary injunction was set for August 1, 1983. A continuance was granted to plaintiff on July 29, 1983, wherein the TRO was also continued for an additional ten days.

The hearing on the preliminary injunction was held on November 7, 1983. The trial court denied plaintiff’s application for a preliminary injunction. The judgment was signed on November 10, 1983. Plaintiff thereafter was granted a suspensive appeal. The appeal order provided that the TRO was to remain in effect throughout the duration of the appeal.

Plaintiff-appellant cites the following as errors of the trial court:

1. The trial court erred in failing to find that the actions of the Lafayette Parish Police Jury were arbitrary and capricious and violated the Constitutional rights of the plaintiff; and,
2. The trial court erred in concluding that plaintiff did not carry his burden of proof for a preliminary injunction against the Lafayette Parish Police Jury.

ASSIGNMENT OF ERROR NO. 1

Plaintiff contends that the ten ton load limit imposed by the Police Jury is arbitrary and capricious and that the sole purpose of its imposition is to deny plaintiff access to DuBarry Avenue from his property. As was previously mentioned, plaintiff is in the business of hauling dirt. Plaintiff owns four eighteen wheel trucks which he uses in his business. Each of these trucks empty weighs in excess of ten tons. Thus, the ten ton load limit in the Bissonnet Villa Subdivision prevents plaintiff not only from hauling dirt from his property in these eighteen wheel trucks, but also from simply going to and from his property in those vehicles. Plaintiff therefore asserts that the actions of the Police Jury were aimed specifically at harming him and his business.

La.R.S. 33:1236 provides in part:
“The police juries and other parish governing authorities shall have the following power:
(28) To enact ordinances regulating the traffic on all public roads outside of incorporated municipalities and within recognized subdivisions other than state constructed and maintained streets and highways, including but not by way of limitation the right to establish speed limits and speed zones, to regulate the parking of vehicles, to establish rules and regulations for the movement of traffic, including the designation of one-way streets, and for such other similar rules and regulations; provided that insofar as such ordinances may affect state highways they shall not be in conflict with any rules and regulations established by the legislature for the use of highways forming part of the state highway system....”

La.R.S. 48:481 provides that:

“Parish governing authorities may pass all ordinances which they think necessary relative to roads, bridges, and ditches, and may impose such penalties to enforce them as they think proper.”

In light of the above statutes, it is clear that the Lafayette Parish Police Jury has the authority to regulate traffic within its jurisdiction. Such regulation includes the establishment of load limits within the parish. Louisiana Materials Company, Inc. v. Cronvich, 258 La. 1039, 249 So.2d 123 (La.1971), cert. denied, 405 U.S. 916, 92 S.Ct. 934, 30 L.Ed.2d 786 (1972). In Cronvich, the Supreme Court upheld a three ton load limit which, in effect, prohibited the plaintiffs shell-hauling trucks from passing on Lake Villa Drive in Jefferson Parish, whether empty or loaded. The court stated that, “The expulsion of these overweight trucks from the street is well within the regulatory authority of the parish.” Similarly, we find that the load limits in the present case are reasonable and fall within the Police Jury’s regulatory authority.

The police power is a power inherent in every governing authority to govern men and things and, within constitutional limits, to prescribe regulations for the promotion of the public health, safety, morals, and general welfare. Hi-Lo Oil Company v. City of Crowley, 274 So.2d 757 (La.App. 3rd Cir.1973), writ refused, 277 So.2d 673 (La.1973). The test of whether an ordinance or regulation is a constitutionally valid exercise of police power depends on whether, under all circumstances, the regulation is reasonable and whether it is de-signed to accomplish a purpose properly falling within the scope of the police power. Hi-Lo Oil Company v. City of Crowley, supra; Wes-T-Erre Development Corp. v. Parish of Terrebonne, etc., 416 So.2d 209 (La.App. 1st Cir.1982), writ denied 421 So.2d 251 (La.1982).

The Police Jury in the present case was confronted with complaints by the residents of the Bissonnet Villa Subdivision that the continuous use by plaintiffs huge trucks of the streets in the subdivision created noise-dust problems, were presenting a danger to the children of the neighborhood, and were creating a potential for damage to the narrow streets in the subdivision and to a nearby underground high pressure gas pipeline. This is precisely the type of situation which falls within the Police Jury’s power to remedy under the exercise of its inherent police power. Plaintiff asserts that the load limit is arbitrary and capricious in that it only applies to DuBarry Avenue, the only access road to his property. This contention .is not supported by the record. The minutes of the Police Jury meeting of May 26, 1983 reveal that the load limit was to apply throughout the Bissonnet Villa Subdivision and was not limited to DuBarry Avenue as plaintiff claims. A load limit was also placed on Park Lane Road which runs along the outskirts of the subdivision. While the Police Jury’s actions may have been motivated by the plaintiff's dirt hauling operations through the subdivision, the load limit in no way applies solely to plaintiff. The load limit resolution was passed in order to protect the residents and roads of the Bissonnet Villa Subdivision and applies to all vehicles passing through the subdivision. We find no evidence in the record that the Police Jury acted arbitrarily. We therefore hold that the load limit resolution adopted by the Police Jury was a constitutionally valid exercise of its police power.

ASSIGNMENT OF ERROR NO. 2

The plaintiff’s next contention is that the trial court erred in concluding that he failed to carry his burden of proof in order to obtain the preliminary injunction. In order for a plaintiff to be entitled to injunctive relief from the enforcement of an ordinance or resolution of the governing authority, he must show: (1) the clear invasion of a property right; (2) threatened irreparable injury; and, (3) the manifest unconstitutionality of the statute or ordinance. Borne v. City of New Orleans, 406 So.2d 748 (La.App. 4th Cir.1981), writ denied, 410 So.2d 763 (La.1982).

We have previously demonstrated that the Police Jury resolution was a valid exercise of the police power vested in that body. Plaintiff claims an invasion of his property rights in that he was unable to continue using his property in conjunction with his hauling business. We disagree. Granted, the plaintiff will no longer be able to haul' dirt from the site by eighteen wheelers. However, he can continue to haul dirt by the use of smaller trucks which fall within the ten ton weight limit. Plaintiff admitted at the hearing that he had used such smaller trucks in the past, but that he “... just chose to go with eighteen wheelers. I make a little more money”. Thus, by his own admission, plaintiff could continue to operate his dirt hauling business. Although it may be more costly for him to operate, the smaller trucks are available to him and would serve the same purpose as the larger ones. Mere inconvenience is not the basis for injunctive relief. We find that plaintiff has failed to prove that he would suffer irreparable injury due to the load limit. There are no facts in the record which support the plaintiff’s contention that he would be driven out of business because of the load limit imposed by defendant. Plaintiff has failed to meet the three-fold test as set forth in Borne, supra. We hold that the district court properly disallowed the preliminary injunction.

For the reasons assigned, the judgment of the lower court is affirmed and this matter is remanded to the trial court for further proceedings. All costs of this appeal are taxed to the plaintiff-appellant. The taxing of costs at the trial level are to await the final disposition of this matter.

AFFIRMED AND REMANDED.

      . Although neither party has raised the issue, we note that the TRO was not extended by the trial court prior to its expiration on July 10, 1983, and it therefore expired by its own terms some 19 days prior to plaintiff's motion for an extension of such. La.C.C.P.Art. 3604.

      . As previously noted, the TRO issued on June 30, 1983 expired ten days thereafter since no extension was granted within that time. Thus, there was no TRO in existence at the time of the hearing on the preliminary injunction. Had the TRO still been in effect on that date, a suspension of such would have nonetheless been improper. As the Supreme Court stated in Snowden v. Red River and Bayou des Glaises Levee and Drainage Dist., 172 La. 447, 134 So. 389 (La.1931), cert. dismissed, 284 U.S. 592, 52 S.Ct. 198, 76 L.Ed. 510:
      "The restraining order, however, ceased to operate, if it had not already ceased to be effective, pretermitting its dissolution by the trial judge, when he refused to grant the injunction. The order had then served its purpose. The law does not contemplate that a restraining order, granted by the trial judge, pending an application for a preliminary injunction, should be, as it were, reinstated by a suspensive appeal, and operate during the pendency of the appeal. It contemplates that such an order shall pass out of existence, and so remain, in the lower court.”

      . Unless the parties especially agree to submit a case for final decision at the hearing on the rule for preliminary injunction, the principal demand for a permanent injunction is determined only after a full trial under ordinary process, even though the summary hearing on the rule for a preliminary injunction may tentatively decide merit/issues. Haughton Elevator Division v. State, 367 So.2d 1161 (La.1979); and, Equitable Petroleum Corp. v. Central Transmission, Inc., 431 So.2d 1084 (La.App. 2d Cir.1983).