Ball v. Ford Motor Co.
| Decision Date | 23 November 1981 |
| Docket Number | No. 14408,14408 |
| Citation | 407 So.2d 777 |
| Parties | Keith BALL v. FORD MOTOR COMPANY and Richards Ford, Inc. |
| Court | Court of Appeal of Louisiana — District of US |
David M. Vaughn, John Dale Powers, Baton Rouge, for plaintiff-appellant, Keith Ball.
Joseph E. Juban, Baton Rouge, for defendant-appellant, Richards Ford, Inc.
A. S. Easterly, III, Baton Rouge, for defendant-appellee, Ford Motor Co.
Before CHIASSON, EDWARDS and LEAR, JJ.
This appeal involves a suit in redhibition for rescission of a sale of an automobile. The trial court ordered a reduction in the purchase price. We amend the trial court's judgment and affirm.
On September 1, 1978, Keith Ball purchased a 1978 Ford Thunderbird from Carl Millett for $7,300.00. Millett had purchased the automobile new from Richards Ford about three months earlier. The automobile was equipped with a "T-top", which consisted of two removable glass panels in the roof. When Ball purchased the Thunderbird from Millett, it had been driven for approximately 4,100 miles.
On the day after purchasing the Thunderbird, Ball took it to a commercial car wash facility. At that time he noticed a small water leak in the area of the T-top. Ball brought the automobile to Richards Ford to have the leak repaired. When Richards returned the automobile to Ball the leak was a little worse. Despite repeated attempts, Richards Ford was unable to remedy the leak. Ball brought the car in at least ten times for repair, but the leak progressively worsened. Testimony presented at trial indicates that the T-top leaks so extensively that the automobile cannot reasonably be used in inclement weather because the occupants of the car become drenched.
On December 21, 1979, Ball filed suit against Richards Ford, Inc. and Ford Motor Company, seeking rescission of the sale of the automobile, damages, and attorney fees. Both Richards Ford and Ford Motor Company answered Ball's petition, denying the allegations made therein. Additionally, Richards Ford filed a third party demand against Ford, seeking indemnity from the manufacturer for any sum which Richards might be ordered to pay Ball. At the time of trial, the automobile had approximately 34,000 miles on it. Additionally, the automobile was involved in an accident the week before trial, resulting in estimated damage slightly in excess of $1,000.00.
The trial judge concluded that reduction of the purchase price, rather than rescission of the sale, was the appropriate remedy. The court ordered a reduction in the purchase price of $3,000.00 and rendered judgment in favor of plaintiff against Richards Ford for that amount. All claims against Ford Motor Company were dismissed because the trial court was not satisfied from the evidence that Ford was responsibile for the severe leaking in the T-top. The court noted that the small leak should have been easily correctable but got much worse because Richards Ford was unable to repair it satisfactorily.
Richards Ford has suspensively appealed the judgment of the district court. Richards asserts that the trial court erred in allowing reduction in the purchase price because there was no proof of the existence of the defect at the time of the sale from Richards to Millett. Alternatively, Richards contends that the trial court erred in dismissing its third party demand against Ford for indemnity and in granting a reduction of price disproportionate to the actual loss of utility or inconvenience in the use of the automobile.
Ball answered this appeal contending that the appropriate remedy was rescission of the sale rather than reduction in the purchase price. Alternatively, Ball sought an increase in the amount of the reduction of price. Additionally, Ball took a devolutive appeal, asserting that the trial court erred in not holding Ford Motor Company responsible for rescission of the sale, return of the purchase price, damages and attorney fees.
A successful plaintiff in a redhibitory action must prove that there was a defect in the thing at the time of sale. LSA-C.C. art. 2530 provides as follows:
Richards Ford and Ford Motor Company contend that plaintiff failed to prove the existence of a defect at the time of the sale from Richards Ford to Carl Millett. Millett testified at trial that the car never leaked in the three months that he owned it. Defendants assert that this establishes that there was no defect at the time of the sale by Richards. 1
The existence of a redhibitory defect is a question of fact and the trial judge's conclusion should not be disturbed in the absence of manifest error. Clinkscales v. Superior Pontiac-GMC, Inc., 365 So.2d 895 (La.App. 4th Cir. 1978). The trial judge's factual finding that the defect existed at the time of the sale from Richards Ford to Millett is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).
The leak appeared in the T-top slightly more than three months after the original sale. If a defect appears soon after the thing is put into use a reasonable inference arises that the defect existed at the time of the sale. Rey v. Cuccia, 298 So.2d 840 (La.1974); Moran v. Willard E. Robertson Corporation, 372 So.2d 758 (La.App. 4th Cir. 1979). It is significant to note that the testimony at trial revealed that Millett had never taken the automobile to a commercial carwash, yet it was in such a place that Ball first noticed the leak in the T-top. Our review of the record reveals that the trial court's finding of the existence of a defect at the time of sale is not manifestly erroneous.
Ball maintains that the trial court erred in ordering a reduction in the purchase price rather than a rescission of the sale. He relies on LSA-C.C. art. 2520, which provides as follows:
"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."
Ball contends that rescission is required here because he has demonstrated that the T-top leaks so much that it must be supposed he would not have purchased the automobile had he known of the vice.
LSA-C.C. art. 2543 provides in pertinent part as follows:
"But in a redhibitory suit, the judge may decree merely a reduction of the price."
A trial court is vested with the discretion to award a reduction in the purchase price rather than rescind the sale in a suit based on redhibition. See Moran v. Willard E. Robertson Corporation, supra; Savoie v. Don Siebarth Pontiac, Inc., 345 So.2d 210 (La.App. 3rd Cir. 1977).
No showing has been made that the trial court abused its discretion in awarding a reduction in the price instead of rescinding the sale. As the trial judge noted, the leak was initially small but progressively grew worse. Furthermore, the record reveals that Ball had derived substantial use from the Thunderbird, having driven it for approximately 30,000 miles. These factors support the trial court's conclusion that reduction in the purchase price was the appropriate remedy. 2
Both Richards Ford and Keith Ball contend that the trial court erred in fixing the amount of the reduction in price. Richards asserts that the ordered reduction is too high, while Ball maintains that it is too low.
The diminution in price which the trial court may decree under LSA-C.C. art. 2541 et seq. is the difference between the sale price and the price a reasonable buyer and seller would have agreed upon if they had known of the defect. Lacey v. Baywood Truck & Machinery, 381 So.2d 863 (La.App. 1st Cir. 1980); Muller v. A. K. Durnin Chrysler-Plymouth, Inc., 361 So.2d 1257 (La.App. 1st Cir. 1978); Guillory v. Pitre Ford Co., 345 So.2d 1274 (La.App. 3rd Cir. 1977); Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1974). Menville held that factors to be considered in calculating the reduction in price, in addition to the cost of repairs, include "the numerous problems, the frequent inconvenience associated with breakdowns and repairs of these problems, and the overall poor performance in relation to that expected." See also, Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir. 1981).
The trial court ordered a reduction in the purchase price of $3,000.00. It stated that this considerable reduction was necessary because the automobile had a major problem, rendering it unusable in inclement weather. The record amply reflects the numerous times that Ball brought the car in for repairs and the inconvenience associated therewith. It also shows the expectations which plaintiff had when he purchased a Ford Thunderbird and the numerous problems caused by the leaking T-top. Neither Richards nor Ball have demonstrated that the trial court abused its discretion in setting the amount of the reduction in price. In the absence of any such showing, that portion of the trial court's judgment is affirmed.
The trial court dismissed all claims against Ford Motor Company because of its conclusion that Ford was not responsible for the severity which the leaking problem had attained. The court stated that the original small leak should have been easily correctable and got worse only because Richards Ford was unable to repair the Thunderbird satisfactorily. Ball's appeal maintains that Ford Motor Company should also be liable to him.
We conclude that the trial court erred in dismissing all claims against Ford Motor Company. This case does not involve a situation where the...
To continue reading
Request your trial
-
Robert v. Bayou Bernard Marine, Inc.
...not be disturbed in the absence of manifest error. Boyd v. Chrysler Corp., 487 So.2d 768 (La.App. 3 Cir.1986); Ball v. Ford Motor Co., 407 So.2d 777 (La.App. 1 Cir.1981). We do not find the trial court was manifestly in error in finding the boat ASSIGNMENT OF ERROR NUMBER 2 In its second as......
-
In re James Noel Flying Service, Inc.
...sued by its own purchaser. See, e.g., McManus v. Galaxy Carpet Mills, Inc., 433 So.2d 854 (La.App. 3d Cir. 1983); Ball v. Ford Motor Co., 407 So.2d 777 (La.App. 1st Cir.1981); Cernigliaro v. Marquis Marine, Inc., 381 So.2d 886 (La. App.2d Cir.1980); Dixon Enterprises, Inc. v. Restaurant Pro......
-
Ryan v. Case New Holland, Inc.
...sale price and the price a reasonable buyer and seller would have agreed upon if they had known of the defects. Ball v. Ford Motor Co., 407 So.2d 777 (La. App. 1st Cir. 1981) ; Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La. App. 4th Cir. 1974), writ denied, 303 So.2d 186 (La. 1974......
-
F & S Offshore, Inc. v. Service Mach. & Shipbuilding Corp.
...element in a redhibition action is that the vice or defect was present in the thing at the time of the sale. Ball v. Ford Motor Company, 407 So.2d 777 (La.App. 1st Cir.1981). If the defect appears within three days following the sale, it is presumed to have existed before the sale. La.C.C. ......