de la Houssaye v. Star Chrysler, Inc.

• Decision Date: 26 September 1973
• Docket Number: No. 5521,5521
• Citation: 284 So.2d 63
• Parties: Malcolm L. de la HOUSSAYE v. STAR CHRYSLER, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 63

284 So.2d 63

Malcolm L. de la HOUSSAYE v. STAR CHRYSLER, INC.

No. 5521.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 26, 1973.

Rehearing Denied Nov. 2, 1973.

Writ Refused Dec. 19, 1973.

Dudley A. Philips, Jr., New Orleans, for Malcolm L. de la Houssaye, plaintiff-appellant.

Salomon & Farmer, I. Bernard Salomon, Richard I. Farmer, New Orleans, for Star Chrysler, Inc., defendant-appellee.

Milling, Benson, Woodward, Hillyer & Pierson, J. Broocks Greer, III, New Orleans, for Chrysler Corp. and Chrysler Motors Corp., third party defendants.

Before LEMMON, BOUTALL, and SCHOTT, JJ.

BOUTALL, Judge.

This is an appeal from a judgment dismissing plaintiff Malcolm L. de la Houssaye's suit in redhibition in favor of defendant Star Chrysler, Inc. In dismissing the suit, the trial judge held that plaintiff failed to prove either redhibition or quanti minoris, and also ruled that defendant's exception of prescription, previously referred to the merits, should be maintained.

In the proceedings before the trial court, defendant, Star Chrysler, Inc., filed a third-party demand against Chrysler Corporation and Chrysler Motors Corporation for indemnity. These latter have filed a motion to dismiss them from the appeal because the brief of Star Chrysler, Inc. alleges them to be responsible, although Star neither appealed the judgment nor answered the appeal of plaintiff. Under these circumstances the third-party defendants are not parties to plaintiff's appeal. See Thomas v. Kilgore Ceramic Corporation, 265 So.2d 617 (La.App.2nd Cir . 1972). All parties orally concede that they are not parties to this appeal and we so hold.

The facts are as follows: On December 4, 1969 plaintiff purchased from defendant a new 1969 Imperial LeBaron automobile for the price of $6,465.00. On numerous occasions plaintiff complained of defects which he felt needed correction, and he quite often brought the automobile in for repairs. There are in evidence 52 repair orders from December 8, 1969 to April 2, 1971.

Most of these complaints were minor matters and are not the type of defect upon which redhibition can be based. We refer for example to some of the initial complaints made on December 8, 1969 and note the following:

Panel box on left front door warped, squeak in left front window, gasoline gauge only registers 3/4 full when completely full, light under driver's arm rest did not work, missing spare wheel cover, red light on high beam did not work, stitching needed on two arm rests, lining of ceiling in automobile falling down in one place, black glue on chrome in front vents, cords showing under seat, leak in rear window, white substance on several portions of car, vinyl top does not fit under metal trim, and brake system warning light not working. These items were all satisfactorily repaired, along with a more serious item, replacement of the front windshield because of scuff marks on the interior of the glass. It must be further noted that all of these items were not fixed on one day, but that the car remained in the shop for several days, and due to unavailability of parts, some of these items were not corrected until much later.

On December 18th, plaintiff listed another eleven complaints, some of which were repetitive, and on January 12th, 1970 listed another eight complaints. At this time in addition to the minor type complaints mentioned above, he had serious complaints of wind noises and noise in the rear end of the car. It had previously been discovered on December 18th, when the car had been driven only 111 miles, that the drive shaft in the automobile was bent and caused vibration, and this had been replaced. Since we feel that the difficulties plaintiff experienced along the drive train and particularly in the differential and rear end assembly prove a defect sufficient for redhibition, we shall discuss this first.

Although plaintiff continued to complain of the noises and problems in the rear end of the car, defendant insisted there was nothing wrong, except an excessive noise made because of the type of tires that plaintiff had installed on his car. Nevertheless it became necessary on June 2nd, 1970 to completely recondition the rear end and install new gears, bearings, gaskets, etc. by the time the automobile had been driven only 4007 miles. Similarly it was necessary on November 24, 1970 to replace the axle bearings and seals. A week later the driveshaft was again replaced and the shaft bearing replaced. It was then discovered that the yoke in the differential had excessive slack, was making noise and needed to be replaced. Problems continued because of the grease leaking along both rear axles onto the brakes causing the replacement of both inner axle seals and the left rear brake shoes. It was again necessary to replace the axle bearings on February 2, 1971. On February 15, 1971 it was necessary to replace leaking gaskets again. Similar trouble was encountered and repaired on April 2, 1971 when the brakes locked.

On January 21, 1970, plaintiff had written a letter asking recision and finally, on or about March 3, 1971, plaintiff tendered the automobile to defendant requesting recision of the sale. Defendant refused to rescind the sale, thus causing plaintiff to bring this suit in redhibition.

Suit was filed on April 6, 1971, and plaintiff still continued to complain of difficulties with his rear end. Althou...