Philippe v. Browning Arms Co., 66001

• Decision Date: 19 May 1980
• Docket Number: No. 66001,66001
• Parties: Dr. Doyle F. PHILIPPE v. BROWNING ARMS COMPANY et al.
• Court: Louisiana Supreme Court

Page 310

395 So.2d 310

Dr. Doyle F. PHILIPPE v. BROWNING ARMS COMPANY et al.

No. 66001.

Supreme Court of Louisiana.

May 19, 1980.

Dissenting Opinion Sept. 24, 1980.

On Rehearing March 2, 1981.

John A. Lieux, Gonzales, A. Kennon Goff, III, Goff, Goff, Levy & Hearn, Ruston, for plaintiff-respondent.

Raymond Morgan Allen, Allen, Gooch & Bourgeois, Lafayette, for defendants-applicants.

ELLIS, Justice Ad Hoc.

Dr. Doyle F. Philippe filed this suit to recover damages for personal injuries suffered when his shotgun accidentally discharged and severed his right thumb. The trial court found that the cause of the accident was a defect in the design and manufacture of the safety mechanism of the shotgun, and rendered judgment in favor of plaintiff for $900,067.00. On appeal, the Court of Appeal amended the judgment to award $25,000.00 in attorneys' fees, and otherwise affirmed. Defendants have applied for writs of certiorari, assigning as error, inter alia, the award of attorneys' fees and the award of $800,000.00 in loss of future earnings. We granted certiorari to review the ruling of the Court of Appeal in both respects.

In ruling on plaintiff's demand for attorneys' fees herein, the Court of Appeal summarized plaintiff's argument, and its holding as follows:

"Plaintiff, in his answer to this appeal, alleges the trial court erred in failing to award him reasonable attorney fees under Civil Code Article 2545, which provides:

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.

"He contends that since a manufacturer is presumed to have knowledge of the defect and since the defect in the shotgun was not declared to him, this article should apply and allow him to recover reasonable attorney fees in addition to damages for pain and suffering and loss of future earnings. Although this article is contained in the section of the Code dealing with redhibition, plaintiff claims it may be applied in cases where personal injury damages alone are sought. He reasons that since Louisiana courts employ fact pleading rather than requiring a litigant to plead the 'theory of the case', he is entitled under the facts actually proven to whatever relief the law allows, and it makes no difference whether the suit is technically termed an act in redhibition or one in tort. Plaintiff argues that any time a plaintiff buyer shows he has suffered damage caused by a defect in a product manufactured by the defendant, the relief provided in article 2545 is available to him regardless of whether his petition includes a demand for the return of the purchase price of the defective product.

"We agree. In Harris v. Bardwell, 373 So.2d 777 (La.App. 2d Cir. 1979), this court recently stated there is no difference in 'damages' as contemplated by Civil Code Article 2315 and 'damages' under Article 2545. There we noted that recovery for damage caused by a defective product smacks of both contract and tort and that recovery may be had under either theory. Although these statements in that case may be dicta since the plaintiff had sought recovery under both theories, we find they are a correct statement of the law. See also Albritton v. McDonald, 363 So.2d 925 (La.App. 2d Cir. 1978); Townsend v. Cleve Heyl Chevrolet Buick, Inc., 318 So.2d 618 (La.App. 2d Cir. 1975); C. T. Boudreaux Lumber Co. v. Sherrwood Homes, 371 So.2d 326 (La.App. 4th Cir. 1979).

"We have held that article 2545 does not exclude personal injury damages which are factually and legally caused by the defective product. See Harris, supra. This permits an award of attorney fees despite the fact that plaintiff's petition does not demand rescission of the sale. Whenever plaintiff's petition alleges facts sufficient to entitle him to redhibition (defect, damage and causation), he is also entitled to recover reasonable attorney fees under article 2545 regardless of whether his suit is labeled in tort or in redhibition.

"The trial of this case took six days and required extensive discovery and pre-trial preparation. We award $25,000.00 as reasonable attorney fees."

It is, of course, true that Louisiana has a fact pleading system, and that recovery may be had under any legal theory which is justified by the well pleaded facts in the petition. See Articles 862, 891, 1841, Code of Civil Procedure. It is likewise true that the same set of facts might give rise to more than one cause of action, based on more than one legal theory.

If, as in this case, one is injured by a defective product which one has purchased, there arises a redhibitory action, for the rescission of the sale, and a tort action for the personal injuries suffered. See Articles 2520 et seq. and 2315 et seq., Civil Code. Article 2545 of the Civil Code, which is found in the section thereof dealing with the redhibitory action, provides:

"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."

If, as argued by plaintiff, and as found by the Court of Appeal the "damages" contemplated by the above article include those for personal injuries and loss of future income which are caused by the defective product, then plaintiff would be entitled to attorneys' fees under Article 2545. Defendants, however, argue that the redhibitory action, which is founded on the breach of an implied warranty, is purely an action in contract, and that damages in a contract action are limited by Article 1934 of the Civil Code to "the amount of the loss he has sustained, and the profit of which he has been deprived...." They point out that the courts of this state have consistently interpreted Article 1934 so as to preclude the recovery of non-pecuniary damages in suits arising in contract. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). This same line of reasoning would appear to preclude the award of other types of personal injury damages, including loss of future earnings, in a redhibitory action. This court has held that, in cases in which one is injured by a defective product, the duty of the manufacturer is fixed by that part of the Civil Code dealing with sales, but that recovery for the injury arises under Article 2315. See Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978). It would therefore seem obvious that, although a plaintiff is not required to restrict himself to one theory for recovery, the courts must, in many cases, characterize the cause of action so as to determine the appropriate standard for recovery.

Admittedly, there is nothing in the language of Article 2545 itself which would preclude the award of damages for personal injuries, and appropriate attorneys' fees as well. However, that article is only part of the series of articles dealing with the redhibitory action. These form a scheme by virtue of which the purchaser of a defective product can recover the purchase price and expenses of the sale, and, in the case of the bad faith seller, such damages as relate to the transaction, as well as reasonable attorneys' fees in connection therewith.

His right to recover for personal injuries, which are caused by the same defect, arises under Article 2315, et seq., which do not provide for the recovery of attorneys' fees. See Gordon v. General Motors Corporation, 323 So.2d 496 (La.App. 3rd Cir. 1975); Reeves v. Great Atlantic & Pacific Tea Co., 370 So.2d 202 (La.App. 3rd Cir. 1979).

We therefore hold that in this case, in which rescission of the sale was not sought by plaintiff, but only damages arising from his personal injuries, attorneys' fees under Article 2545 are not payable.

As to the second assignment of error, defendants argue that the trial court erred in awarding $800,000.00 for loss of future earnings. Defendants contend this award to be an abuse of discretion of the trier of fact; contrary to the jurisprudence and to the facts established at trial.

The trial court was supplied with expert testimony from three economists. Each one produced different sets of figures based upon various combinations of factors. When superimposed upon a time continuum, these calculations produced figures which were less or greater than the amount awarded. The trial court states that it was most impressed by the testimony of Dr. Chisholm who related that the fairest computation would be based on a three per cent annual productivity increase, a four per cent annual inflation rate, and a seven per cent discount rate. The court went on to note that a deduction was made from his final figure of $970,000.00, owing to mitigation by Dr. Philippe, who had found a position as dental consultant with the State.

The trial court made no deduction for the contributions made to his earnings by Dr. Philippe's wife, who was her husband's receptionist, dental assistant, and general record keeper, and who never drew a salary. One of the economists, Dr. Boudreaux, who relied on the Survey of Dental Practice published by the American Dental Association, figured her contribution in accord with the general ratio of dentists' payments to employees per dollar cash receipts or income. This ratio of 16-161/2% placed the value of Mrs. Philippe's contribution to the dental practice at approximately $11,700.00 in 1976.

Mrs. Philippe was not injured in the accident. She can continue to work in the future, and therefore her contribution to the income of the couple should be subtracted from his earnings in order to project a more accurate picture of his past and future earning loss.

For the foregoing reasons, the decision of the Appellate Court is affirmed in part and reversed in part. The decision of the trial court to deny attorneys' fees is reinstated. The case is remanded to the Court of Appeal to determine the proper...