Smith v. Andrepont

378 So. 2d 479
CourtLouisiana Court of Appeal
DecidedFebruary 15, 1980
Docket12855
StatusPublished
Cited by18 cases

This text of 378 So. 2d 479 (Smith v. Andrepont) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Andrepont, 378 So. 2d 479 (La. Ct. App. 1980).

Opinion

378 So.2d 479 (1979)

J. Pat SMITH et ux.
v.
Irl D. "Coti" ANDREPONT, Jr., Etc.

No. 12855.

Court of Appeal of Louisiana, First Circuit.

November 12, 1979.
Rehearing Denied December 27, 1979.
Writ Refused February 15, 1980.

*480 Charles S. McCowan, Jr., Baton Rouge, for plaintiffs-appellees J. Pat Smith and Mrs. J. Pat Smith.

Stacey A. Moak, J. D. DeBlieux, Norman W. Ershler, Baton Rouge, for defendant-appellant Irl D. "Coti" Andrepont, Jr., d/b/a Donco Quarter Horses.

Before COVINGTON, LOTTINGER and COLE, JJ.

COVINGTON, Judge.

This is a redhibitory action brought by the plaintiffs, J. Pat Smith and Mrs. J. Pat Smith, against the defendant, Irl D. "Coti" Andrepont, Jr., d/b/a Donco Quarter Horses, to rescind the sale of certain "yearling American Quarter Horse Association horse filly by `Triple Mayday' and of `Joe's Leo Lena,'" for which the plaintiffs allegedly paid the purchase price of $4,250.00. The sale was made on October 15, 1977, with delivery of the horse on October 22, 1977. The plaintiffs contend that on December 8, 1977, they learned that the horse had "founder" and would have to be destroyed. The plaintiffs further alleged that on December 9, 1977, they had the subject animal examined by veterinarians at the LSU Veterinary Center, and "learned that at the time of the sale the horse suffered from chronic laminitis, commonly known as `founder,' which condition makes the horse totally unfit for the purposes intended." The petition set out that the plaintiffs' express purpose in buying the horse, which was communicated to the defendant, was "to have a registered quarter horse which was fit for show, pleasure and breeding."

In addition to seeking return of the purchase price, the plaintiffs sought damages in the amount of $1,550.00 for expenses incurred in connection with the animal. The defendant denied the pertinent allegations of the petition; and asserted that the horse was sound in all respects; and if it was lame, the lameness resulted from the plaintiffs' acts. Subsequently, the plaintiffs increased their demand for damages to the amount of $2,686.00.

This matter was tried on December 18, 1978; thereafter, the trial judge decided the suit in favor of the plaintiffs, assigning written reasons therefor on January 22, 1979. Then, on January 24, 1979, he assigned supplemental written reasons to include additional items of damage. Judgment in the amount of $6,524.00[1] was signed on January 30, 1979. After a denial of the defendant's motion for a new trial, he appealed.

We have consistently recognized the principal that findings of fact reached by the trial judge (trier of fact) should not be reversed unless his conclusions are manifestly erroneous. Muller v. A. K. Durnin Chrysler-Plymouth, Inc., 361 So.2d 1257 (La. App. 1 Cir. 1978), writ denied, 363 So.2d 915 (La.1978). We have reviewed the record and find no manifest error; on the contrary, we are convinced that the evidence supports the trial court's finding that the horse contained a redhibitory vice at the time of the sale.

The general redhibition law is to be found in Articles 2520 and 2521 of the Louisiana Civil Code.

LSA-C.C. art. 2520 provides:

"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."

LSA-C.C. art. 2521 states:

"Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices."

The vices and defects in animals for which the redhibitory action may be *481 brought are latent vices of body and vices of character. LSA-C.C. arts. 2524-2528. Vices of the body are classified as absolute or relative. The "bare existence" of an absolute vice gives rise to the redhibitory action. LSA-C.C. art. 2525. "Founder" is one of the vices in a horse which is specifically declared to be an absolute vice. Article 2526 states:

"The absolute vices of horses and mules are short wind, glanders and founder."

In his Written Reasons for Judgment, the trial judge stated:

"In this case, the Court accepts the testimony of Drs. Baker, Waters[2] and O'Cain as being the more accurate and convincing. Drs. Waters and Baker gave detailed scientific reasons for their opinion that the horse was foundered at a minimum or more than 4 months prior to December 9, 1977.
"The testimony of Hubert Matthews corroborated the testimony of Drs. Baker and Waters. Matthews said that the horse was continually lame and had been feed foundered in February or March of 1977."

Dr. Clarence B. Baker, a veterinarian, testified by deposition. He examined the horse on December 8, 1977 and treated it for about one week. He diagnosed the condition as chronic laminitis or founder.

Dr. Baker's testimony:
"Q. So, in your expert opinion, you examined this horse in December; was there any way that this horse did not have this condition in September of 1977?
A. She should have had the condition at least for four and a half months; she would have had to have it at least four and a half months."
* * * * * *
"Q. In your expert opinion is there any way that this horse could not have had this condition in September of 1977, some three months before?
A. No. My opinion is that it occurred prior."
Then, Dr. Baker continued:
"Q. And it is your opinion that conservatively this filly foundered approximately four months from December the 9th?
A. I said a minimum of four and a half months."
* * * * * *
"Q. But you are certain that the filly foundered at least four and a half months prior to the time you saw it?
A. Yes, sir."

Dr. John W. Watters, a veterinary radiologist at L.S.U., testified at the trial as follows:

"Q. Now, does this condition leave physical evidence that it was there and how long it existed?

A. Yes, in this case, we are talking about chronic laminitis and it does leave by-products which can be identified later radiographically as well as physically."

* * * * * *

"Q. Now, what significance do those rings have in enabling you to tell how long this condition existed?

A. Well, it's commonly accepted that normal hoof grows at approximately one-quarter inch per month."

* * * * * *
"Now, getting back to your question awhile ago, what the significance of this is. A normal hoof grows approximately one-quarter inch per month and some authorities state that this can be up to three-eighths of an inch per month. Now this will vary, depending on feeds and weather conditions and so forth, but if we were to measure from Point A to B—I did that one time and I think it measured two and a quarter inches—even taking the slowest or the fastest possible growth here of three-eighths of an inch, I think that's going to come out better than four months' worth of hoof growth.

*482 Q. And so that would be from four months prior to December 9 when the first ring would have formed, is that correct?

A. That's true."

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Castille v. St. Martin Parish School Board
190 So. 3d 1225 (Louisiana Court of Appeal, 2016)
Blair v. Bad Boy Inc.
137 So. 3d 1223 (Louisiana Court of Appeal, 2014)
Jones v. Winnebago Industries, Inc.
92 So. 3d 1113 (Louisiana Court of Appeal, 2012)
Coleman v. Neel
590 So. 2d 1278 (Louisiana Court of Appeal, 1991)
Benoit v. Terrebonne Parish School Board
482 So. 2d 721 (Louisiana Court of Appeal, 1985)
Tyler v. Richardson
476 So. 2d 899 (Louisiana Court of Appeal, 1985)
Hayes v. Commercial Union Assur. Co.
459 So. 2d 1245 (Louisiana Court of Appeal, 1984)
Brown v. Southern Farm Bureau Ins. Co.
426 So. 2d 684 (Louisiana Court of Appeal, 1982)
Holmes v. Southeastern Fidelity Ins. Co.
422 So. 2d 1200 (Louisiana Court of Appeal, 1982)
Newitt v. Hospital Corp. of Louisiana
417 So. 2d 391 (Louisiana Court of Appeal, 1982)
Smith v. Lumbermen's Mut. Cas. Co.
414 So. 2d 1281 (Louisiana Court of Appeal, 1982)
Hardy v. State, Through Dept. of Highways
412 So. 2d 208 (Louisiana Court of Appeal, 1982)
Campbell v. Mouton
412 So. 2d 191 (Louisiana Court of Appeal, 1982)
Trichel v. Louisiana State Highway Department
402 So. 2d 784 (Louisiana Court of Appeal, 1981)
Leavitt v. St. Tammany Parish Hospital
396 So. 2d 406 (Louisiana Court of Appeal, 1981)
State v. Wilco Const. Co., Inc.
393 So. 2d 885 (Louisiana Court of Appeal, 1981)
Gleason v. City of Shreveport
393 So. 2d 827 (Louisiana Court of Appeal, 1981)
Smith v. Andrepont
380 So. 2d 102 (Supreme Court of Louisiana, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
378 So. 2d 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-andrepont-lactapp-1980.