Domingue v. Whirlpool Corp.
| Decision Date | 27 November 1974 |
| Docket Number | No. 4756,4756 |
| Citation | 303 So.2d 813 |
| Parties | Dennis DOMINGUE, Plaintiff-Appellee, v. WHIRLPOOL CORPORATION et al. (Patrick J. Babineaux, Sr., appealing), Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Fredric G. Hayes, Lafayette, and Chaffe, McCall, Phillips, Toler & Sarpy by Harry McCall, Jr., New Orleans, for defendant-appellant.
Voorhies & Labbe, by Vance R. Andrus, Lafayette, for plaintiff-appellee.
Before FRUGE , MILLER, and DOMENGEAUX, JJ.
This appeal stems from a suit in redhibition filed by the plaintiff Dennis Dominque against four defendants. Domingue is seeking the rescission of the sale of a central air conditioner which was installed when his house was built in 1971. Suit was filed against the vendor, Patrick J. Babineaux, Sr., d/b/a Pat's Building Materials, the installer, Shelton Stutes, d/b/a Stutes Plumbing Works, the manufacturer, Whirlpool Corporation, and Harold Glore who is in charge of Whirlpool's Consumer Service Division in New Orleans. Whirlpool and Glore filed an answer but Babineaux and Stutes failed to do so, although they were personally served. A default judgment was accordingly rendered against Babineaux and Stutes in solido, in the amount of $4,447.10. In addition, the trial court awarded attorney's fees of $1,500. Babineaux has appealed from this default judgment. There has been no appeal by Stutes. We amend and affirm.
The record in this case consists mainly of the testimony of the plaintiff Domingue and the evidence introduced on his behalf. Domingue purchased a Whirlpool central air conditioning unit for his new house from Pat's Building Materials on April 7, 1971, for a price of $845.25. The unit was installed in Domingue's house by Stutes Plumbing Works for a price of $710. Plaintiff testified that he moved into his house in June of 1971 and that soon afterward the compressor in the unit went bad. There is no testimony as to exactly when this occurred, but Mr. Domingue did state that it happened 'before (he) was really settled.'
When the compressor failed, Mr. Domingue was told (apparently by Pat's) that a compressor was not immediately available but that the whole outside portion of the unit could be replaced if he agreed to pay a difference of $66.15. Mr. Domingue agreed and the outside unit was replaced. Mr. Domingue paid the $66.15 by check dated August 24, 1971.
Mr. Domingue continued to have trouble with the unit in 1972 and 1973. During this period Stutes and Babineaux attempted to repair the unit. The compressor was changed three or four times and other repairs were attempted. Because the unit would not function, Mr. Domingue finally installed two window units in his home in order to cool it.
In the summer of 1973 the unit began leaking water onto the ceiling. Stutes attempted to correct this but has not been successful. At the trial Mr. Domingue stated that the unit was still leaking. In July of 1973 Domingue contacted Whirlpool. Whirlpool sent a regional service manager who inspected the unit along with Stutes and Babineaux. Whirlpool acknowledged that there was a problem but disclaimed any responsibility. In November of 1973 Mr. Domingue instituted this suit to rescind the sale of the air conditioner.
The appellant Babineaux has alleged several specifications of error to this court. The first specification is that Domingue's claim is prescribed. Civil Code article 2534 provides that the redhibitory action must be instituted within a year of the sale unless the seller is in bad faith. However, our jurisprudence has recognized that where the seller has attempted to remedy the defect, prescription does not begin to run until the seller abandons his attempt to repair the defect. de la Houssaye v. Star Chrysler, 284 So.2d 63 (La.App.4th Cir.), writ refused 286 So.2d 662 (La. 1973); Kennedy v. Vidalia Home Service, Inc., 256 So.2d 827 (La.App.3rd Cir . 1972); Brown v. Dauzat, 157 So.2d 570 (La.App.3rd Cir. 1963).
In this case there was a continuous attempt to repair the defect by Babineaux and Stutes from 1971 through the summer of 1973. The record shows that the compressor and condenser were changed several times and that a final attempt to repair the unit was made in July of 1973. Suit was instituted in November of that year. Since the one-year prescriptive period did not begin to run until July, Domingue's claim was not prescribed.
In order to have the sale rescinded for a redhibitory defect, plaintiff must prove that the defect existed at the time of sale. La.Civil Code art. 2530. If the defect does not manifest itself within three days, the burden is on the purchaser to prove that such a defect existed at the time of sale. La.Civil Code art. 2530. In this case the defect did not manifest itself within three days of the sale. Appellant contends that the plaintiff failed to prove that the air conditioner was defective at the time of sale.
This is a fact question. It is not necessary that the plaintiff prove the exact cause of the defect; he need only show that a defect in fact existed. Mid-City Finance Co. v. Coleman, 232 So.2d 918 (La . App.4th Cir. 1970); Hanna Investments v. Stovall, 171 So.2d 678 (La .App.2nd Cir. 1965); Glenn v. Caire, 164 So.2d 656 (La.App.3rd Cir. 1964). Since this appeal is before us from a default judgment, plaintiff need establish only a prima facie case that the air conditioner was in fact defective when sold. La.Code Civ.Pro. art. 1702. We note also the presumption of correctness accorded a default judgment:
Ascension Builders, Inc. v. Jumonville, 262 La . 519, 263 So.2d 875, 878 (1972).
The evidence in the record establishes a prima facie case in behalf of the plaintiff. The air conditioning unit failed soon after it was put in operation and has not operated satisfactorily since this failure despite repeated attempts at repair. We believe this to be a strong indication that the unit was defective when sold. Furthermore, appellant has cited no evidence which overcomes the presumption of correctness of the trial court's determination.
Appellant next contends that plaintiff has no right to attorney's fees as an element of damages. Article 2545 of the Civil Code provides:
'The seller Who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the...
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