Arlеn LAFLEUR v. JOHN DEERE COMPANY, et al. Larry FONTENOT v. F. HOLLIER & SONS, INC., et al.
No. 85-C-2402.
Supreme Court of Louisiana.
June 23, 1986.
Rehearing Denied September 4, 1986.
491 So. 2d 624
CALOGERO, Justice.
John Haas Weinstein, Losavio & Weinstein, Baton Rouge, for plaintiff-respondent.
CALOGERO, Justice.*
Plaintiff Larry Fontenot purchased a farming implement (a grain drill) to use in planting a soy bean crop. Because it was defective his crop was disastrously poor and he suffered pecuniary as well as nonpecuniary damages.
The principal question for us to decide now is whether the $125,000 portion of his $276,901.75 jury award for mental anguish should be permitted to stand. For the reasons which follow we decide that it should not.
Fontenot purchased the John Deere 8300 grain drill manufactured by John Deere Company and Deere & Company (hereinafter referred to as Deere), from F. Hollier & Sons, Incorporated (herеinafter referred to as Hollier), a Deere franchised dealer, so that he could plant soybean crops for himself and Arlen Lafleur. Neither Fontenot‘s nor Lafleur‘s crop succeeded as expected and Fontenot filed suit against Deere and Hollier, alleging that the grain drill was defective and that the defect caused his low crop yield and resulting damages.
Lafleur also filed a separate suit against Deere to recover his damages allegedly caused by the defective grain drill. Fontenot‘s lawsuit was consolidated for a single trial with Lafleur‘s.
A jury decided Fontenot‘s case and the trial judge decided Lafleur‘s. Both the judge and the jury found that the John Deere 8300 grain drill with a Tru-Vee attachment was defective and that the defect caused Fontenot‘s and Lafleur‘s crop losses and damages. After considering the testimony and other evidence produced at trial the jury awarded Fontenot the following items of damages against Hollier and Deere:
Return of purchase price $ 6,178.00 Expenses incurred 15,678.75 Crop loss 60,820.00 Mental anguish 125,000.00 Attorney‘s fees 69,225.00 ___________ Total $276,901.75
The trial judge awarded Lafleur the following sums as damages against Deere:
Crop loss $55,388.03 Mental anguish, aggravation, stress and inconvenience 10,000.00 __________ Total $65,388.03
The court of appeal, 478 So. 2d 1390 and 478 So. 2d 1379, found no merit in defendants’ assignments of error which complained of the trial court‘s 1) refusing to
We granted writs primarily to consider relator‘s contention that the court of appeal erred in allowing damages for mental anguish or other nonpecuniary loss when the principal object of the contract was not intellectual enjoyment, and in the alternative, that the court of appeal erred in allowing these mental anguish or nonpecuniary damages to stand despite a lack of competent evidence to substantiate them. An incidentаl issue presented in the relators’ assignments of error (in fact the only assignment of error in relators’ writ application other than those relating to mental pain and anguish damages) concerns the admission into evidence of a video tape depicting the operation of the grain drill.
FACTS
In their opinion the court of appeal recited the following facts:
“For fifteen years prior to 1980, Fontenot worked as a laborer on Lafleur‘s farm. In 1980, Fontenot decided to start his own farm business on a 432 acre tract of land in Evangeline Parish and St. Landry Parish. In order to complete his 1980 soybean crop, Fontenot used $4,000.00 of his own money together with $71,000.00 that he borrowed from the F.H.A. and $6,000.00 that he borrowed from Lafleur. At that time Fontenot also entered into an agreement with Lafleur by which he agreed to plant and harvest Lafleur‘s 402 acres of soybeans in exchange for the use of Lafleur‘s farming equipment and bookkeeping system.
“To facilitate the planting of both crops, Fontenot purchased a John Deere 8300 grain drill with a Tru-Vee attachment, manufactured by Deere, from Hollier on April 8, 1980 for a purchase price of $6,178.00.
“One of the main selling features of the John Deere 8300 grain drill was that it is designed to accurately plant seеds at any depth selected by the farmer. The operation of the grain drill may be briefly explained as follows: The grain drill has a drill path with 16 runners which each plants one row of seeds. On each runner there is a disc blade which cuts into the soil to a pre-set depth and the seeds are dropped into the resulting trench. The depth of the trench is governed by a gauge wheel on each runner which controls the depth to which the disc blade cuts. The pressure of the disc cutting into the soil forces the gauge wheel on each runner all the way up to a stop at a pre-set position. As long as each gaugе wheel reaches the pre-set stop position, the seeds will be planted accurately at the pre-set depth chosen by the farmer. However, if the force of the disc cutting into the soil does not force the gauge wheel up to the pre-set stop position, the disc blade will not cut deeply enough into the soil resulting in the seeds being planted shallower than the pre-set depth. Once the seeds have been dropped into the trench made by the disc blade, a ‘packing wheel’ spreads dirt over the seeds so that they are adequately covered.
“On May 22, 1980, Fontenot started planting thе soybean seeds with the John Deere grain drill set at a depth of 1 1/2 to 1 3/4
“Fontenot had planted approximately 220 acres when he became ill on June 1, 1980 and was forcеd to stop planting. As a result, Lafleur began planting the remaining 614 acres on June 4, 1980. Lafleur testified that he randomly checked several runners every 80 to 100 acres and the grain drill seemed to be working properly. Before Lafleur finished planting the remaining acreage, Fontenot recovered from his illness. To insure that they would finish all of the planting within the prime time planting period, Fontenot and Lafleur borrowed an International Harvester planter from a friend and used both planters to complete their planting. On June 10, 1980, they finished planting the entire crop on all of their acreage.
“Sometime during the second wеek of June, Lafleur was cleaning the grain drill when he noticed that some of the gauge wheels which govern the planting depth were hard to move up and down. He found that the gauge wheels on only 2 or 3 runners in the drill path of 16 runners moved up easily. He thought they should move more freely on the rest of the runners so he checked the fields and found seeds lying only 1/2 inch deep in the fields planted with the John Deere grain drill. Lafleur showed this to Fontenot and they called a salesman at Hollier‘s, Ralph Miller.
“Miller inspected the fields and told them to wait a few days because if it rained their crop would come up anyway. One week аnd a half later it did rain, however, most of the crop still did not come up. At Hollier‘s request Deere‘s factory representative, Steve Hines, made a trip to Fontenot‘s farm to inspect the John Deere grain drill. He torqued the castellated nuts on the John Deere grain drill that govern the movement of the gauge wheels to 120 pounds and the gauge wheels would not move as freely as he wanted. Miller told Hines that one of Hollier‘s employees could adjust the grain drill to make it work correctly. The next day Miller sent Hollier‘s assembly man, Herb Hazelton, to adjust the John Deere grain drill. Hazelton loosened the castellаted nuts, which were torqued at 120 pounds in accordance with the owner‘s manual, on each of the runners until he could move each gauge wheel freely by hand.
“In the meantime the soybean crop was not growing as one would normally expect. Photographs introduced into evidence showed some rows were growing at an acceptable rate while other rows directly adjacent to the healthy rows were barely growing, if at all. The F.H.A. county supervisor, Russell Gibson, examined the field sometime during June and he testified that the fields had ‘skip areas’ just as were shown in the photographs. Gibson testified that the fields werе striped with healthy rows and poor rows growing side by side. He estimated that 50% of the rows had no plants on them when he toured the field.
“After Fontenot harvested the disappointing soybean crop he had his crop and Lafleur‘s weighed separately. Lafleur‘s tracts produced an average of 6.33 bushels per acre and Fontenot‘s tracts produced an
The court of appeal found the grain drill defective, and its condition the sole cause of the crop failure, affirming the trial judge and jury in the respective cases in this regard. They agreed with the fact finders’ determination that Deere and Hollier had full knowledge of a defect in the John Deere 8300 grain drill prior to the time of its sale to Fontenot. The court of appeal found that the warranty limitations were not applicable and binding on Fontenot, citing Edwards v. Port AMC/Jeep, Inc., 337 So. 2d 276 (La. App. 2nd Cir. 1976), writ den., 339 So. 2d 854 (La. 1976); and Hendricks v. Horseless Carriage, Inc., 332 So. 2d 892 (La. App. 2nd Cir. 1976). The court of appeal therefore affirmed the judgments rendered in the lower court.
We address in this opinion only the three assignments оf error urged in defendants’ writ application. The first and second assignments of error concern the adequacy of proof and legal entitlement to mental pain and anguish damages.
As noted hereinabove, in addition to a $6,178.00 return of purchase price and the $76,498.75 in pecuniary loss ($15,678.75 for expenses and $60,820.00 for crop loss) Fontenot was awarded $125,000 for mental anguish, a distinctly nonpecuniary loss.2
Defendants take the position that
Respondents question the correctness and continuing viability of Meador, supra. They contend, and the court of appeal stated, that “the Meador rule is no longer inflexibly applied to preclude awards of nonpecuniary damages” in breach of contract cases. This position is not well taken. In fact no opinion of this Court after Meador has repudiated its holding,3 despite criticism by some Law Review commentators. See e.g., Litvinoff, Moral Damages, 38 La. L. Rev. 1 (1977); Johnson, The Work
Furthermore, efforts to overrule Meador through legislation failed in 1984. With minor language change the Meador interpretation of
Article 1998 now provides:
Art. 1998. Damages for nonpecuniary loss
Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligеe.
So, today, nonpecuniary loss may not be recovered in a simple breach of contract case unless the contract is intended to gratify a nonpecuniary interest. The only changes to
The Legislature‘s resolution might have been otherwise. The reporter for the Louisiana Law Institute recommended a revision which would have allowed “moral damages,” damages for nonpecuniary loss, in all contract cаses, with the only reservation being that recovery be “according to the nature of the contract, or according to the circumstances surrounding an obligor‘s failure to perform.” He specifically recommended departing from the rule established in Meador v. Toyota of Jefferson, Inc., supra.6 The Council of the Law Institute did not follow that recommendation, for, as was recited in the minutes of the council meeting of September 18, 1981, “[t]he important policy decision was to limit nonpecuniary damages to those types of contracts that were made to gratify nonpecuniary interests.”
This case arose in 1980, before Art. 1934(3) was replaced by Art. 1998. Therefore, C.C. art. 1934(3) as interpreted in Meador is the law to be applied here. Nonpecuniary damages are not allowed in a simple breach of contract case unless the contract has for its object “the gratification of some intellectual enjoyment” (under the present article 1998, the counterpart standard is unless the contract because of its nature is “intended to gratify a nonpecuniary interest“).
This does not, however, resolve the principal legal issue in this case, for mental pain and anguish damages are not barred in all cases which “sound” in contract, as will be discussed hereinaftеr. Meador was a simple service contract, repair of an automobile, which involved a delay in performance with attending aggravation and distress. There was no element of delictual conduct in that case. The case under consideration, on the other hand, involves the sale of a product and it contains delictual as well as contractual elements. See Chappuis v. Sears Roebuck & Co., 358 So. 2d 926 (La. 1978). The only difference between this case and those like Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So. 2d 754 (1971), and Chappuis, supra is that here personal injury damages are not involved.
A normal breach of contract not involving delictual conduct is governed, as respects damages, by
But what about the product which is not reasonably safe, but rather simply useless, that is, it contains a vice or defect which qualifies under
These are tough questions. The answer, for instance, would tell the intervenors, the Motor Vehicle Manufacturers Association of the United States, Inc., and the Product Liability Advisory Council, Inc., whether a new car purchase contract and breach thereof is governed by the new
We leave that decision for another day. These difficult questions need not be answered in this case because there is simply no way to allow plaintiffs the $125,000 and $10,000 respective mental pain and anguish damages which were awarded them in the district court. Plaintiff Lafleur presented absolutely no evidence whatever to support mental pain and anguish damages. Fontenot did not do much better; his proof was scant. He testified essentially that he worried over the loss of his car and the loss of his first wife, matters, he implied, which were caused by the financial difficulties brought on because of Deere‘s defective grain drill and his poor crop. Objections to this testimony by the defendants prompted the trial judge to disallow the questions and answers. The trial judge was correct. Those “consequences” were too remote. The only testimony, or other proof in the record, supporting mental pain and anguish damages is Fontenot‘s testimony, essentially, that he worried because he had never before owed so much money and because he knew that he would not be able to pay the money back. He implied that that worry was prompted by failure of his crop, which was in turn caused by purchase of the defective grain drill from Deere and Hollier.
Even if we were to answer the questions posed hereinabove and conclude that Deere was akin to a Weber or Chappuis type “tortfeasor” in a situation such as this—a useless product, consequent pecuniary loss without personal injury, worry over a worsening financial situation caused by the purchase of that useless product—at the least we would have to conclude, and we do so conclude, that such worry is not within the scope of the risk to which is extended Deere‘s duty to deliver a useful grain drill. Dixie Drive It Yourself System, Inc. v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962); Cooks, Mental Anguish Arising From Property Damage, 3 So. U. L. Rev. 17, 27-29 (1976); Crowe, The Anatomy Of A Tort—Greenian, As Interpreted by Crowe Who Has Been Influenced By Malone—a Primer, 22 Loy. L. Rev. 903, 916 n. 51 (1976).
With this conclusion, we need not address further defendant‘s assignment of
We turn now to defendant‘s only remaining assignment of error. Defendants contend that the trial judge erred in allowing plaintiffs to play a video tape to the jury and trial court showing the plaintiffs’ expert witness, Dr. Maher, torquing the bolt “D” on the grain drill with a torque wrench and showing how the torqued bolt affected the operation of the drill. The court of appeal declined to consider whether the video tape was objectionable for the stated reason that counsel for the defendants failed to object timely to the showing of the tape at trial. The court оf appeal was of the opinion that the defendants’ failure to object constituted a waiver of the right to object and that they could not urge the objection on appeal. Richard v. Southwest Louisiana Hospital Association, 383 So. 2d 83 (La. App. 3d Cir. 1980), writ denied, 385 So. 2d 274 (La. 1980). A review of the record indicates that the defendants did not fail to object to the introduction of the video tape. The court of appeal was mistaken in its contrary conclusion. In fact defendants filed a Motion in Limine objecting to the introduction of the video tape, inter alia, and that motion was overruled by the trial judge. The determination of whether motion pictures or video tapes are admissible is lаrgely within the discretion of the trial court. Owens v. Thornton, 349 So. 2d 431 (La. App. 4th Cir. 1977); Ashley v. Nissan Motor Corp. in U.S.A., 321 So. 2d 868 (La. App. 1st Cir. 1975), writ denied, 323 So. 2d 478 (La. 1975); Carvell v. Winn, 154 So. 2d 788 (La. App. 3d Cir. 1963), writ refused, 156 So. 2d 603 (La. 1963). Furthermore the trial judge sustained defendants’ objection as to the audio portion of the tape. The only thing viewed by the jury was Dr. Mayer, the plaintiff‘s expert, torquing the bolt “D” on the drill with a torque wrench, exhibiting the grain drill and showing how the drill functioned at different torques. The machine, although not set up as recommended in the owners’ manual, was set up in substantially the same manner as it was when it was purchased new by Fontenot. The tape was shown without the sound, and Dr. Mayer was available for full cross-examination. We have viewed the video tape and do not perceive how defendants might have bеen prejudiced. The assignment of error is without merit.
Defendants complained in the court of the appeal of the jury‘s award of $69,225 for Fontenot‘s attorney‘s fees, contending it was an unreasonable sum.9 That sum just happens to be exactly one-third of the gross jury award excluding the fee. The only evidence introduced at trial to support Fontenot‘s claim for attorney fee was the one-third contingency fee contract with his lawyer. The court of appeal stated that an award of attorney‘s fees may be based on the litigant‘s contingency fee contract where the resulting amount is reasonable, citing Pillow v. Board of Commissioners, 425 So. 2d 1267 (La. App. 2d Cir. 1982), writ denied, 445 So. 2d 1225 (La. 1984). They properly pointed out in determining what is a reasonable amount for statutorily imposed attorney‘s fees in a redhibition case, the following factors which courts have deemed relevant:
(1) The responsibility incurred
(2) The extent and nature of the work performed
(3) The legal know how and skill of counsel. Sokol v. Bob McKinnon Chevrolet, 307 So. 2d 404 (La. App. 4th Cir. 1975). Anselmo v. Chrysler Corp., 414 So. 2d 872 (La. App. 4th Cir. 1982).
The court of appeal went on to affirm the attorney‘s fee award. They felt that there had been no abuse of discretion in the $69,225 award.
In light of the fact that the jury‘s award of attorney‘s fees represented precisely one-third of the damages otherwise awarded Fontenot (namely $207,676.75), and inasmuch as in this opinion we have reduced the allowable damages by $125,000, to $82,676.75, we deem it necessary to rеduce the attorney‘s fee as well. Upon consideration of the above enumerated factors, we find that a $27,558.91, or one-third of the $82,676.75 allowed damages, is appropriate.
Decree
For the foregoing reasons the judgments of the district court and court of appeal are affirmed in part and amended in part. There is deleted from Lafleur‘s judgment $10,000 for “mental anguish, aggravation, stress and inconvenience” and there is deleted from Fontenot‘s judgment $125,000 for “mental anguish,” with a corresponding reduction of the portion of the total award for attorney‘s fees, from $69,225 to $27,558.91
JUDGMENT AFFIRMED IN PART; AMENDED IN PART; AND REMANDED TO THE COURT OF APPEAL.
DIXON, C.J., and LEMMON, J., concur.
MARCUS, J., concurs and assigns reasons.
DENNIS, J., concurs in the result.
MARCUS, Justice (concurring).
I subscribe to the majority opinion; however, I would prefer simply to apply