Foreman v. Jordan

• Decision Date: 19 June 1961
• Docket Number: No. 65,65
• Citation: 131 So.2d 796
• Parties: Givens L. FOREMAN, Plaintiff and Appellee, v. Lena L. JORDAN et al., Defendants and Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 796

131 So.2d 796

Givens L. FOREMAN, Plaintiff and Appellee, v. Lena L. JORDAN et al., Defendants and Appellants.

No. 65.

Court of Appeal of Louisiana, Third Circuit.

June 19, 1961.

Rehearings Denied July 12, 1961.

Gold, Hall & Skye, by William E. Skye, Alexandria, for defendant-appellant.

Stafford & Pitts, by Grove Stafford, Jr., Alexandria, for 3rd party defendant-appellant and 3rd party plaintiff-appellant.

Bernard Kramer, Alexandria, for plaintiff-appellee.

Gist, Murchison & Gist, by DeWitt T. Methvin, Jr., Alexandria, for 3rd party defendant-appellee.

Before TATE, SAVOY and HOOD, JJ.

HOOD, Judge.

In July, 1957, the plaintiff, Givens L. Foreman, purchased a house in Alexandria from the defendant, Mrs. Lena L. Jordan, for the sum of $11,500. About six months later he discovered extensive termite damage in the house, and as a result of this discovery he instituted this suit against Mrs. Jordan in February, 1958, for a diminution of the purchase price. Mrs. Jordan filed an answer, and she also filed a third party petition impleading Cecil R. Blair, who by contract had agreed to provide termite control services for the house, and Great American Indemnity Company, Blair's surety under the statutory bond required of licensed pest control operators. See LSA-R.S. 40:1268. Blair and Great American Indemnity Company filed an answer to this third party demand, and by means of another third party petition they impleaded Hartford Accident and Indemnity Company, alleging that in the event they are held responsible in damages they are entitled to recover against Hartford under a public liability or manufacturer's and contractor's public liability insurance policy which it had issued to Blair. Plaintiff Foreman then amended his petition, naming Blair, Great American Indemnity Company and Hartford Accident and Indemnity Company as additional parties-defendant.

The trial court rendered judgment on February 5, 1959, sustaining an exception of no cause of action filed by Hartford Accident and Indemnity Company, and dismissing the suit as to that defendant. The case was then tried on its merits, and following that trial judgment was rendered on November 12, 1959, in favor of plaintiff, Foreman, and against the defendant, Mrs. Jordan, for the principal sum of $1,618.50, but the demands of plaintiff and Mrs. Jordan against Blair and his surety, Great American Indemnity Company, were rejected. From these judgments, Mrs. Jordan, Blair and Great American Indemnity Company have appealed.

All appellants contend that the trial court improperly overruled an exception to the jurisdiction ratione personae initially filed by Mrs. Jordan. By this exception, the appellants contend that Rapides Parish was not the proper venue for this suit, instituted in 1958, because Mrs. Jordan left that parish in 1952 and since that time she has resided and worked in East Baton Rouge Parish.

The uncontradicted facts show that Mrs. Jordan lived in Alexandria, in the residence building sold to the plaintiff, until March of 1952, when (following the death of her husband) she moved to Baton Rouge where she has been employed as a house mother by a social fraternity at Louisiana State University. In 1956 she registered to vote in East Baton Rouge Parish. From 1952 until the middle of 1957 she rented her Alexandria home to tenants, reserving a room in the house during those years to store her furniture. Each year, until February 2, 1957, she applied for and obtained a homestead tax exemption in Rapides Parish, based upon the allegation that this Alexandria residence was her home.

The trial court sustained plaintiff's contention that Mrs. Jordan's domicile remained in Rapides Parish until she sold her Alexandria home in July, 1957, and that since she never executed and recorded a written declaration of change of domicile, as provided by LSA-C.C. Art. 42, she was still subject to suit in Rapides Parish during the year following her removal therefrom. C.P. Art. 167; State ex rel. Jagneaux v. Jagneaux, 206 La. 107, 18 So.2d 913. This suit was instituted less than one year after she sold her home, so accordingly the district court held that it was properly instituted in Rapides Parish.

The trial judge in his written reasons for judgment pointed out that the retention by Mrs. Jordan of her personal room in her Alexandria residence, the somewhat temporary nature of her employment in Baton Rouge where her meals and room were furnished by the fraternity, and her annual application for homestead exemption benefits in Rapides Parish, all tended to disprove an actual intention to change her domicile and to leave Alexandria permanently, even though she actually had been living in Baton Rouge for purpose of employment for several years.

A residence is one thing and a domicile another. A person may have as many residences as he may choose, but cannot have but one real domicile.' Oglesby v. Turner, 127 La. 1093, 1096--1097, 54 So. 400, 402. 'A change of domicile is brought about by the actual residing in another place with the intention of making it the principal establishment or home.' Succession of Rhea, 227 La. 214, 78 So.2d 838, 842. 'The party who seeks to avail himself of a change of domicile bears the burden of proving it. So long as any reasonable doubt remains, the presumption is that it has not been changed. The domicile of origin continues until another is acquired.' Succession of Simmons, 109 La. 1095, 1097, 34 So. 101, 102; In re Rials, 220 La. 484, 56 So.2d 844; 28 C.J.S. Domicile § 18, p. 41, et seq. See also Civil Code Articles 38, 41, 42 & 43.

Applying these legal principles to the facts in this case, we cannot say that the trial court erred in holding that Rapides Parish is the proper venue for this suit.

The evidence convinces us, as it did the trial judge, that the plaintiff-buyer is entitled to judgment against the defendant-seller, decreeing a diminution of the purchase price because of the extensive termite damage found in the house which he purchased. These damages constituted latent defects of such a nature that it must be supposed that the buyer would not have purchased it had he known of the vice. Because of this damage and of the seller's implied warranty against such hidden defects, the buyer is entitled to recover the diminution in value of the thing sold attributable to these redhibitory defects. See LSA-C.C. Arts. 2476, 2520, 2521 and 2541.

It is suggested that the buyer should have noticed the termite damage, and that 'apparent defects, that is, such as the buyer might have discovered by simple inspection are not among the number of redhibitory vices.' LSA-C.C. Art. 2521. Although several expert witnesses, including termite experts, building contractors and an architect, testified that at the time of the sale the termite damage was easily ascertainable on their expert examinations, their special knowledge in that field, obtained from their specialized training and experience, cannot be attributed to the plaintiff-purchaser here. See Ruehmkorf v. McCartney, La.App. 2 Cir., 121 So.2d 757, certiorari denied. Both the buyer and the seller's real estate agent, who had negotiated the sale of the house to him, testified that these defects were not apparent to the untrained eye. The experts, in fact, testified that the major portion of the termite damage could not be detected without crawling under the house and probing with a screw driver or a sharp instrument, and that some of the termite damage could not be detected without removing portions of the siding on the house, which was done several months after the sale had been completed, but shortly before this suit was instituted. We think the old termite damage to the house was not an apparent defect, such as the buyer might have discovered by simple inspection, but on the contrary it constituted a latent defect warranting a diminution in the purchase price.

Also, we find no error in the trial court's award of $1,618.60, as the amount which reasonably would be required to repair the termite damage. A detailed estimate in a larger amount was furnished by the plaintiff's expert, while similar estimates in smaller amounts were furnished by the appellants' experts. The chief differences lay in a disagreement as to the extent of the replacement of materials and the refinishing which would be required to repair the damage. The award was within the discretion of the trial court, and in our opinion it is supported by the evidence.

The basis of Mrs. Jordan's third party demand against Blair and Great American Indemnity Company, his surety, is (1) Blair's alleged breach of a termite inspection and control contract relating to the Jordan residence, and (2) the alleged breach of a warranty by Blair that the house was not in need of repair, which warranty Mrs. Jordan asserts is contained in an FHA Termite Inspection Report, executed by Blair's employee on April 14, 1957, stating in effect that repair or replacement of any portion of the building was not recommended.

In dismissing Mrs. Jordan's third party demand, the trial judge held that she had failed to prove that the substantial termite damage in this 35-year-old residence building occurred After 1946, the year when Blair first undertook to provide termite control services for this building. The trial court also held that no reliance was placed by Mrs. Jordan on the FHA termite inspection report made by Blair's employee in 1957, and accordingly that she was not damaged in any manner by the statements contained in that report.

The record establishes that on March 26, 1946, plaintiff's husband entered into a contract with defendant Blair, under the terms of which Blair agreed to treat the Jordan residence for the control of subterranean termites, to make semi-annual inspections of the building thereafter, and to give additional treatment at any time during the term of the contract if termite infestation is found. Although this...