360 So. 2d 621 | La. Ct. App. | 1978
Lead Opinion
This case is before us again after remand for additional evidence.
In our original opinion we set forth the rule that, although it is not necessary for the buyer to prove the particular and underlying cause of the defect in a complicated piece of machinery, the burden of proof is upon the plaintiff to establish both the existence of a redhibitory defect and its existence at the time of the sale when the defect does not manifest itself within the three day presumptive period provided by Civil Code Art. 2530.
On remand, plaintiff introduced the deposition of Jim Williams, the owner of Jim Williams Motor Company, a Fiat dealer in Laredo, Texas. The Williams’ dealership was authorized by Alfa Romeo to replace a head gasket which apparently had blown and caused lack of engine compression. Williams testified only that the head gasket was replaced, after which the engine still had no compression. He stated the engine was disassembled at his dealership and inspected by a machine shop in Laredo. He further stated that while the engine was still disassembled it was inspected by an Alfa Romeo representative. He did not state who authorized the disassembly of the engine. He did state his business records reflected neither a charge nor a payment for that service, but he also said his service department, particularly the manager thereof (who was no longer employed by
Also on remand, defendants offered the testimony of Aquiles A. Gemba, service representative of Alfa Romeo, who inspected the vehicle’s engine when it was in a disassembled state on a workbench in the service department of the Williams company. Gemba testified he reported to his company that he “presumed” the original cause of the malfunction of the automobile was a burned out head gasket. However, he testified he based his report on information obtained from Williams and from Williams’ service manager because the head gasket was not with the automobile’s engine when he examined it.
Gemba further testified he could not determine what caused the head gasket to fail, if indeed it had, because the car’s failure could have been driver abuse, insufficient coolant in the engine, a broken hose, a leaking clamp, or a multitude of other conditions. He further testified he did not know the engine had been disassembled pri- or to his arrival at Williams’ dealership to inspect it, and he did not know who ordered its disassembly.
The evidence produced on remand eliminates the problem of proper tender. Defendants did not prove plaintiff authorized the disassembly of the engine, thereby destroying his ability to properly tender'the vehicle back to them.
As pointed out in this court’s original opinion,
Just as defendants were unable to prove the origin of the engine’s failure because of its disassembled state, plaintiff is likewise in the same position. Since the jurisprudence establishes a plaintiff who secures major engine repairs which result in his inability to return the automobile in substantially the same condition to the seller cannot rescind the sale because of improper tender,
Considering the record as a whole, we conclude that while the plaintiff bears the burden of proving a redhibitory defect and its existence at the time of the sale, the plaintiff in this case was prevented from producing such proof by the actions of defendant’s agent, Jim Williams Motor Company, in Laredo, Texas. Consequently, plaintiff should be allowed to recover.
For the reasons assigned, the judgment of the trial court is affirmed.
AFFIRMED.
REDMANN, J., concurred with written reasons.
. See Margan v. Precision Motors, Inc., La.App., 317 So.2d 664.
. See Margan v. Precision Motors, Inc., Id., at page 668.
. See Johnson v. H. W. Parson Motors, Inc., La.App., 231 So.2d 73.
. See Margan v. Precision Motors, Inc., supra, note 1, at 667-668.
. See Johnson v. H. W. Parson Motors, Inc., supra note 3; LaFleur v. Boyce Machinery Corporation, La.App., 282 So.2d 819.
. Margan v. Precision Motors, Inc., supra, note 1.
. 262 La. 80. 262 So.2d 377.
Concurrence Opinion
concurring.
Because a new automobile’s engine is designed and warranted for months of normal use, failure within that time supports the inference that the failure resulted from some defect which existed at the time of manufacture and sale; Moreno’s Inc. v. Lake Charles Cath. H.S., Inc., 315 So.2d 660 (La. 1975).
The disassembly of the engine deprived the manufacturer and the seller of the opportunity to prove the nature of the defect. That the defect was not a simple blown head gasket is reasonably proved because gasket replacement didn’t restore the engine’s compression. But disassembly is not attributable to plaintiff. Therefore there is no unfairness in holding defendants to the burden of exculpating themselves in respect to the facially redhibitory defect of a nonfunctional engine (not repairable even by replacing the head gasket).