Reech v. Coco

• Decision Date: 27 April 1953
• Docket Number: No. 40295,40295
• Citation: 223 La. 346,65 So.2d 790
• Parties: REECH v. COCO.
• Court: Louisiana Supreme Court

Page 790

65 So.2d 790

223 La. 346

REECH v. COCO.

No. 40295.

Supreme Court of Louisiana.

April 27, 1953.

Rehearing Denied June 1, 1953.

Coco & Bennett and Earl Edwards, Marksville, for plaintiff-appellant.

Philo Coco, Marksville, for defendant-appellee.

McCALEB, Justice.

This is a redhibitory action in which plaintiff seeks to rescind his purchase from defendant, on September 19, 1949, of a new 1949 model (98) Oldsmobile car for the price of $3,522.20. He alleges in substance that, notwithstanding that the car was expressly warranted against vices and defects, it began to exhibit mechanical failures within one week after his purchase; that the defects were such as to continuously cause the car to operate improperly; that, specifically, the motor misfired, became overheated, emitted a loud, disagreeable, grinding noise; that it would occasionally fail while being driven upon the highway and that, among other defects, the hydraulic valve lifters would stick causing irregular combustion and resulting in weak and inadequate horsepower. He further avers that he complained to defendant as soon as the defects manifested themselves; that he repeatedly expressed his dissatisfaction to defendant over many months, during which defendant and his mechanics had unsuccessfully attempted to remedy the vices and defects in the motor and that, on June 13, 1950, he returned the car to defendant as being unfit for the purpose intended.

The defendant denies plaintiff's charges. He professes that the automobile was delivered in good mechanical order and that, other than minor adjustments to the motor which are incident to the initial use of a new automobile, the car at no time exhibited such mechanical faults as to justify the maintenance of this action.

After a trial, there was judgment in favor of defendant dismissing plaintiff's suit, the judge being of the opinion that defendant's position that the car was free from serious mechanical defects was well founded. Plaintiff has appealed.

Article 2520 of the LSA-Civil Code defines redhibition to be 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'. Hence, the main issue in the case is one of fact, i. e., whether the automobile exhibited such imperfections which rendered its use so inconvenient that, had plaintiff known of them, he would not have bought it.

The evidence reveals, without serious contradiction, that the motor of the car began to operate imperfectly shortly after plaintiff's purchase; it misfired, was unnecessarily noisy and generally functioned unsatisfactorily. Plaintiff, who lives at Big Bend, Louisiana, approximately 27 miles from Marksville where defendant operates an Oldsmobile agency under the name of 'Midland Motors', brought the car immediately to defendant's place of business and defendant, assuring him that the engine needed only minor adjustments, attempted to remedy the defects. However, the efforts of his mechanics were unsuccessful as the motor continued to function improperly. Plaintiff testified, and he is corroborated by several witnesses, that the motor continuously misfired, became overheated and would occasionally stop on the road; that he would bring the car back to defendant's shop; that it would be worked on by defendant's mechanics but that the defects were not corrected; that defendant repeatedly assured him that the motor would be made to operate properly, advising him to use a special sort of oil and gasoline and to drive the car at a fast speed; that he carried out these instructions but that it did not alleviate the unsatisfactory condition; that, at approximately the time when the sixty day guarantee against mechanical defects was to expire, he made a special trip to defendant's place of business and that defendant told him not to worry about the guarantee '* * * that the car was yet his as long as it would make that noise'. ¹ It was further shown by plaintiff that he drove the car to the Oldsmobile agency in the city of Alexandria where it was examined, but not repaired, by its service manager. This witness, who testified for defendant, admitted that there was some 'valve tapping' and that the carburetor on that model Oldsmobile was imperfect ² but stated that the motor would not overheat and that these minor defects would not injure it. Plaintiff further testified that, during the nine month period that he kept the automobile, he brought it to defendant's place of business approximately eighty times for repairs. In fact, he says he brought it there so often that he was ashamed of his constant complaints. Finally, on June 13, 1950, after nine months of disillusionment and disgust, he returned the car to defendant and instituted this suit.

As above stated, the defendant maintains in his answer that the automobile was not below standard. He testified accordingly and, although he admits there was some 'valve tapping', he avouches that the defects were inconsequential and were remedied in his shop, only to recur. However, he implies that resppearance of the trouble was not due to any defect in the motor but might have been attributable to plaintiff's use of the car on a dusty, gravel road or that he was driving it too slow. Nevertheless, the record makes it evident that the defendant recognized that there was a serious defect in the functioning of the motor that he was unable to correct for, on June 2, 1950, he wrote Mr. Wayne Hubbard, District Service Manager, Oldsmobile Division in Memphis, Tennessee, advising him that plaintiff's car had been a source of constant trouble due to the sticking of the hydraulic valve lifters; that he and his mechanics were puzzled as to the cause of the disorder; that the inside of the motor had been flushed on two occasions and the valve lifters removed, cleansed thoroughly, reassembled and installed and he suggested that Mr. Hubbard make an inspection. In response to this letter, Mr. Hubbard came to Marksville, following the date on which plaintiff returned the car to defendant. He inspected the car and personally installed an entire new set of sixteen hydraulic valves. This apparently remedied the defective performance of the motor as several...