Hoffman v. All Star Ins. Corp.

• Decision Date: 08 January 1974
• Docket Number: No. 5969,5969
• Citation: 288 So.2d 388
• Parties: George HOFFMAN et al. v. ALL STAR INSURANCE CORP. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 388

288 So.2d 388

George HOFFMAN et al. v. ALL STAR INSURANCE CORP. et al.

No. 5969.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 8, 1974.

Rehearing Denied Feb. 6, 1974.

Writ Refused March 15, 1974.

Porteous, Toledano, Hainkel & Johnson, Geoffrey H. Longenecker, New Orleans for Scottie-Craft Boat Corp. of America and All Star Ins. Corp., defendants-appellants-appellees.

Kronlage, Dittmann & Caswell, Robert M. Caswell, New Orleans, for plaintiffs-appellees-appellants.

Pitard, Pitard & Porobil, Gregory M. Porobil, New Orleans, for Bob's Mercruiser, defendant-appellee.

Before BOUTALL and SCHOTT, JJ., and BAILES, J. Pro Tem.

SCHOTT, Judge.

Plaintiffs' suit arose out of an incident in which a boat just purchased by plaintiff Hoffman almost sank in the Gulf of Mexico because of a defect in its construction. Defendant, Scottie-Craft, was manufacturer of the boat; All Star, its liability insurer; Bob's Mercruiser, the vendor of the boat, and Lumberman's Mutual, Hoffman's insurer under a combination policy which included hull insurance. The case was tried to a jury with resulting verdicts in favor of Hoffman for $20,000; Chappetta, $2,000; Schmidt, $1,000, and Spadafora, $3,500, against Scottie-Craft and All Star. The claims against Bob's and Lumberman's Mutual were dismissed. From the judgment appeals have been taken by Scottie-Craft and its insurer as well as the four plaintiffs all with respect to the amounts awarded.

Before considering the legal issues a review of the facts is warranted. On October 16, 1971, Hoffman for the first time put his new boat into the water at Empire, Louisiana, and set out on a pleasure fishing trip accompanied by the other three plaintiffs. When the boat was 15 or 20 miles out in the Gulf in open water beyond sight of land the motor began to falter and the boat was found to be taking water. When Hoffman tried to start the bilge pump he was unable to do so because the battery had become submerged, so he then began to bail the boat out with initial assistance from Chappetta and Spadafora. Chappetta soon became seized of chest pain which he feared was symptomatic of a heart attack, whereupon he discontinued bailing and took a seat at the bow of the boat so as to balance it against the stern which was now near submerged. Schmidt from the beginning became sick to the point where he was vomiting continuously and was unable to be of any assistance in bailing. All four men were with good reason fearful that they would drown, but after about four hours of this ordeal the boat drifted within sight of an oil rig. Hoffman stripped to his underclothes, tied a rope around his waist and swam three or four hundred yards to the rig so as to save his companions and the boat. He gave dramatic testimony of his feelings just before diving into the Gulf, describing the fear he had of sharks since he had caught some 17 to 18 feet long in these waters. Upon reaching the rig he had to shimmy up a barnacle encrusted piling to reach the floor of the platform about 20 feet above the water. Shortly thereafter he gained the attention of a chartered fishing vessel in the vicinity and a radio message was sent to the Coast Guard for help. Before long a rescue vessel arrived and brought Hoffman, Chappetta, Spadafora and the disabled boat to Grand Isle, Louisiana. Schmidt chose to remain on the rig, fearing to accept transportation to shore in the Coast Guard cutter and preferring the larger chartered fishing vessel which returned him to shore some three or four hours later when its fishing trip was completed.

The jury's verdict of $20,000 in favor of Hoffman and against Scottie-Craft and All Star was reduced to a judgment but this judgment was subsequently amended following a motion for a new trial by Scottie-Craft so that it alone was cast unto Hoffman for $7,601.25, being the purchase price of the boat, while both Scottie-Craft and All Star were cast for the remaining $12,398.75 in favor of Hoffman.

In connection with the purchase price portion of the judgment, at the beginning of the trial Scottie-Craft's counsel made the following statement:

'The parties have agreed, and I have agreed, to stipulate the cause of the accident in question was a latent defect in the hull of the boat resulting from a mistake in the construction of the boat on the part of Scottie-Craft Boat Corporation and my client.'

Notwithstanding this stipulation, Scottie-Craft contends that its liability should be limited to the price it charged Bob's Mercruiser for the boat, namely $4,450 and not the amount which defendant paid Bob's. It also contends that the Civil Code Articles on redhibition do not apply to this situation because the boat was never returned to defendant and because there was a warranty agreement which gave to Scottie-Craft the right to either repair or replace the vessel.

In Media Pro. Consult, Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377, it was held that the purchaser of a defective automobile has a cause of action for the full purchase price against the distributor and manufacturer and is not relegated to an action against his immediate vendor, the dealer. It was also held that in the absence of an express waiver of the warranty of reasonable fitness for the product's intended use provided by LSA-C.C. Arts. 2475 and 2476, a purchaser cannot be deprived of same simply because of the existence of a contractual warranty on the article. As to the contention that a return of the boat was a prerequisite to Hoffman's action in redhibition, the evidence shows that after this boat was towed to Grand Isle it was taken to Bob's Mercruiser by its proprietor where it remained until the time of the trial. The boat was there inspected by representatives of the defendant and was available to defendant and its experts for this entire period. We therefore find that the boat was in fact returned to defendants through their agent, Bob's, from when the boat was purchased in the first place. Therefore, the award to Hoffman of $7,601.25 against Scottie-Craft was supported by the evidence, was founded on sound legal principles and will not be disturbed.

On the other hand, there is considerable difficulty with the remaining $12,398.75, which was awarded to Hoffman.

Hoffman's injuries consisted of extensive, painful and ugly cuts over a great part of his body resulting from his climb up the barnacle encrusted piling. When he returned to shore peroxide was applied to the cuts causing him great pain and when he returned to his home he calld his physician who prescribed a salve to be applied to his wounds. Bandages were applied by his wife. He was handicapped in his work and suffered pain and discomfort until these custs healed. They left no scars and there is no permanent disability sought or proved in connection with them. He never saw a doctor and his actual medical expenses consisted of a $15 fee for the telephone call to the physician and $7.40 for the salve prescription.

Hoffman was the owner and operator of a 'Chuck Wagon' which is a truck outfitted to sell food items to customers at jobsites, such as construction projects. These food items were actually cooked and prepared by Hoffman on the truck as in short order restaurants. For the first two days after the accident he was unable to work and for a couple of weeks thereafter he was handicapped from the full performance of his customary duties. He summed up his losses by testifying that in an average week he would net $200 but for the four weeks after the accident he was able to net only $530. In addition to this direct loss he testified that because of his inability to serve his customers fully, business competitors took some of his business; that some customers and locations were permanently lost, but that it was not possible to trace exactly how much of a loss was sustained.

Hoffman contends that his verdict is well within the discretion of the jury and should not be disturbed by this Court. But alternatively he joins the other plaintiffs in contending that the verdicts were too low and should all be increased. It is therefore incumbent upon us to review the verdicts and determine whether they are excessive, inadequate or to be left undisturbed.

We are not favored with written interrogatories to the jury and consequently do not know what each verdict was intended to include. We have pleadings originally filed by plaintiffs and, in this case, the complete oral argument to the jury by all counsel which we must presume had some influence on the jury in its deliberations. In analyzing Hoffman's award it appears to include his medical expenses in the amount of $22.40 and an insurance premium covering the boat pending the outcome of this litigation in the amount of $240. It must include Hoffman's damage to or loss of numerous articles of fishing tackle and clothing, which in the closing argument his counsel suggested were worth $175. Undoubtedly Hoffman lost earnings as a result of this incident. His uncontradicted testimony was that he lost a net of $270 for the first four weeks which must be included in the verdict. While his testimony on future earnings was not corroborated by any records and while he admitted that his total earnings for the year of the incident were the same as the year before and the year after, there was no contradiction to his testimony and he obviously could not account for his losses with mathematical certainty. Therefore, the jury was entitled to exercise some discretion in arriving at the proper amount. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151, Fox v. State Farm Mutual Automobile Insurance Company, et al, La., 288 So.2d 42 (1973). In closing argument plaintiff's attorney suggested to the jury a figure of $1,000 in future earnings, so that we might presume that the jury included approximately this figure in their verdict. If this total of $1,707.40 for the aforementioned items was included in...