Womack and Adcock v. 3M Business Products Sales, Inc.

• Decision Date: 30 June 1975
• Docket Number: No. 10329,10329
• Citation: 316 So.2d 795
• Parties: WOMACK AND ADCOCK, Attorneys v. 3M BUSINESS PRODUCTS SALES, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 795

316 So.2d 795

WOMACK AND ADCOCK, Attorneys v. 3M BUSINESS PRODUCTS SALES, INC., et al.

No. 10329.

Court of Appeal of Louisiana, First Circuit.

June 30, 1975.

Rehearing Denied Aug. 26, 1975.

Donald L. Beckner, Baton Rouge, for defendant-appellant Lanier Business Products Sales.

J. Glenn Dupree, Baton Rouge, for plaintiff-appellee.

Eugene R. Groves, Baton Rouge, for defendant-appellant-appellee 3M Business Products Sales, Inc.

Before LOTTINGER, COVINGTON and BAILES, JJ.

COVINGTON, Judge:

This is a redhibitory action in which the plaintiff, Womack & Adcock, Attorneys, sued Lanier Company, Inc. of the Mid-South, the seller, and the 3 M Business Products Sales, Inc., the manufacturer, to rescind the sale of a 3 M copier machine, Model 191VQC, which is an electronic automatic copy machine. The seller and the manufacturer denied liability. After trial, the district court awarded judgment on January 3, 1975, in favor of the plaintiff and against the defendants solidarily in the amount of $1,445.90, and against the manufacturer for attorney's fees in the amount of $500.00. Both defendants suspensively appealed this judgment. We affirm.

Under the articles of the Louisiana Civil Code the buyer can bring an action against the seller to rescind the sale for breach of implied warranty; LSA-C.C. Arts. 2475, 2476, 2520, 2530. Since the now famous case of Media Pro. Consult., Inc. v. Mercedes-Benz of N.A ., Inc., 262 La. 80, 262 So.2d 377 (1972), noted in 33 La.L.Rev. 724 (1973) and 47 Tul.L.Rev. 473 (1973), the buyer's action for breach of implied warranty has been extended to all sellers in the chain of sales back to the primary manufacturer; see Rey v. Cuccia, La., 298 So.2d 840 (1974); Clark v. McBride Dodge, Inc., 298 So.2d 841 (La.App.4th Cir. 1973); Breaux v. Winnebago Industries, Inc., 282 So .2d 763 (La.App.1st Cir. 1973); Barham: Redhibition; A Comparative Comment, 49 Tul.L.Rev. 376 (1975).

As the Court aptly stated in the Media case, supra, at page 381:

'Louisiana has aligned itself with the consumer-protection rule, by allowing a consumer without privity to recover, whether the suit be strictly in tort or upon implied warranty.'

The record shows that on August 20, 1973, plaintiff bought the subject copier machine from Lanier; it had been manufactured by 3 M. At the time of the sale the copier was a new machine and it was represented by the seller as suitable equipment to adequately fulfill the copying needs of plaintiff's law office.

Almost immediately after the sale the plaintiff discovered that the copier produced a poor-quality copy and malfunctioned frequently . The evidence shows that the seller made repeated efforts to repair the copier, but to no avail. The copier contained an inherent manufacturing defect in an essential part of the machine, namely, the fuser blanket, which performs the function of fusing the image to the paper, in that the blanket was not built to meet the extended and prolonged use of the copier by a consumer such as plaintiff's busy law office. Eventually the seller installed a sensor kit, a device designed to monitor and control the temperature of the copier to give longer serviceable usage of the fuser blanket. In addition, there was a defective component of the paper-cutting blade, which often caused the copier to continue to run when it was supposed to shut off. Moreover, during the period of time August 20, 1973, until February of 1974, when the copier was in the plaintiff's office, the machine was repeatedly unavailable for use due to breakdowns, defective copies, paper jams, and service repairs . The testimony of the attorneys and the secretaries in plaintiff's law office who were familiar with the operation of the copier establishes the defective operation of the copier. The evidence further establishes that there were numerous service calls to repair the copier for various reasons. Finally, the buyer made tender of the thing to the seller which tender the seller refused.

We have reviewed the evidence and find, as did the trial court, that the plaintiff has presented direct and circumstantial evidence from which a reasonable inference can be drawn that the defect existed at the time of the sale. The copier was installed in plaintiff's law office in the latter part of August, 1973, and the problems experienced by the plaintiff began shortly thereafter in September. The evidence shows repeated and numerous mechanical breakdowns, poor-quality copies,...