
    Huey C. DUBOIS, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
    No. 4143.
    Court of Appeal of Louisiana, Third Circuit.
    April 25, 1973.
    Robert L. Kennedy, Colfax, for plaintiff-appellant.
    Stafford, Pitts & Stafford by John L. Pitts, Alexandria, for defendant-appellee.
    Before SAVOY, MILLER and DO-MENGEAUX, JJ.
   SAVOY, Judge.

This case is a sequel to that of Travelers Indemnity Company v. Dubois, 236 So.2d 912 (La.App. 3 Cir. 1970) (writ denied), and Dubois v. Travelers Indemnity Company, 261 So.2d 94 (La.App. 3 Cir. 1972).

In Dubois v. Travelers, supra, plaintiff filed a suit against Travelers for damages resulting from the illegal seizure of his property by Travelers in Travelers Indemnity Company v. Dubois, supra. Travelers filed an exception of no cause of action which was maintained by the district court. Plaintiff appealed. On appeal we reversed and remanded the case to the district court, stating:

“A cause of action exists where a * * party aggrieved by a wrongful seizure is entitled to recover not only the special damages caused him thereby, but also general damages (if proven) by way of mortification, humiliation, mental worry, etc., caused by this intentional violation of his property rights.’ Moses v. American Security Bank of Ville Platte, 222 So.2d 899 at page 904 (La.App. 3 Cir. 1969); and Hernandez v. Harson, 237 La. 389, 111 So.2d 320 at page 324 (1958).”

After the remand, the case was tried in the district court to determine the amount of damages owing to plaintiff because of his alleged mental anguish, embarrassment, mortification, humiliation and trespass. The district judge awarded plaintiff $50.00. Plaintiff has appealed.

At the trial of the instant matter on June 29, 1972, the parties stipulated, among other things, the following:

“Seventh: A writ was issued for seizure by Travelers on the sanie 18.79 acres, Parish of Grant, on May 28, 1969, which seizure was personally served on Huey Dubois on that date. Also, a second writ was issued for seizure by Travelers for the same 18.79 acres, Parish of Grant, on November 7, 1969, which seizure was personally served on Huey Dubois on December 7, 1969; which were the writs and seizures enjoined by Proceedings Number 16,479, Eighth Judicial District Court. No notice of either seizure was made to Travelers by the Sheriff’s office.”

Plaintiff testified that for a ten-month period beginning with the seizure of the property to the refusal of the writ in Travelers v. Dubois, supra, he suffered mental anguish in not knowing whether he would retain his home.

Appellee’s counsel has not cited any cases in support of its position as to quantum. Plaintiff has cited several in support of his position.

We are of the opinion that an award of $50.00 herein is inadequate, and that an award of $750.00 is more in keeping with our jurisprudence on the subject.

For the reasons assigned the judgment of the district court is increased from the sum of $50.00 to the sum of $750.00, and as amended, is affirmed at appellee’s costs.

Amended and affirmed.

MILLER, Judge

(dissenting).

I submit that the majority has disregarded the trial court’s factual determination of credibility of the witnesses and respectfully dissent.

In written reasons the trial court stated that the evidence did not support an award for special or general damages, but $50 was awarded because of the testimony that plaintiff worried about the seizure.

The claim for damages is based on the improper issuance of a writ of fieri facias on November 7, 1969. This writ was served on Dubois on December 7, 1969. On December 15, 1969 Dubois obtained a temporary restraining order preventing proceedings under the seizure. A permanent injunction preventing further proceedings under the seizure was issued on January 16, 1970, and later affirmed by this court at 236 So.2d 912 (La.App. 3 Cir. 1970). Writs were denied by the Louisiana Supreme Court on September 30, 1970. 256 La. 871, 239 So.2d 364 (1970).

When the seizure was made, Dubois was made keeper of the property. The property was not advertised for sale. Although a notice was posted on the property at the time of the seizure, Dubois immediately destroyed it. Dubois expressly testified that this seizure did not lower the value of his property. He did not suggest that the seizure interfered with the use of his property. Typical of his testimony on direct is the following excerpt:

Q. Well, how did you feel when you were out in the Gulf and had no communications back with Grant?
A. Well, I figured whatever they would do, I would stand a chance when I come back trying to do something else.
Q. Well, were you worried, upset and nervous ?
A. Well, naturally, yes.
Q. Were you mad during this time period?
A. Married ?
Q. Mad.
A. Well, I didn’t know exactly what to be mad at. I was mad at myself,
Q. Did you truly believe that your home might be sold ?
A. For a while I did, yes.

My understanding of Dubois’ testimony is that the worry which most concerned him was his negligence which resulted in the $5,000 judgment which Travelers was seeking to enforce. His testimony concerning the improvidently issued seizure was not impressive in the cold record. I fail to understand how the majority can read so much into the statement that he worried “for a while.”

The cases which awarded up to $750 in damages relied on by the majority (but not cited) are easily distinguished. Each case involved an actual physical displacement of the plaintiffs or seizure followed by public advertisement of the pending sale. Furthermore the facts in those cases lead to the conclusion that the seizures were undertaken without regard to the rights of the various owners and in clear derogation of the law. Dubois was not physically displaced. There was no advertisement stating that the property would be sold. The seizure was wrong (236 So.2d 912), but not in clear derogation of law. Had Travelers judgment (which had been timely recorded in Rapides Parish) been recorded in Grant Parish before Dubois filed for bankruptcy, the seizure would have been valid.

This court has awarded fifteen times more in damages than the trial court awarded. Just as we are admonished to refrain from drastic reductions in trial court awards [Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); and Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971)], we should find substantial manifest error before we drastically increase the trial court’s award.

I respectfully dissent from the rejection of the trial court’s finding of credibility.  