Hill v. Coleman Oldsmobile, Inc.

424 So. 2d 1049, 1982 La. App. LEXIS 8410
CourtLouisiana Court of Appeal
DecidedNovember 16, 1982
DocketNo. 82 CA 0131
StatusPublished
Cited by2 cases

This text of 424 So. 2d 1049 (Hill v. Coleman Oldsmobile, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill v. Coleman Oldsmobile, Inc., 424 So. 2d 1049, 1982 La. App. LEXIS 8410 (La. Ct. App. 1982).

Opinion

LOTTINGER, Judge.

In this appeal by defendant, Coleman Oldsmobile, Inc., from the trial court judgment ordering a complete rescission of the [1050]*1050sale, defendant assigns the following specifications of error:

I.The trial court erred in its finding that a redhibitory defect existed in the vehicle at the time of the sale to the plaintiffs-appellees.
II.The trial court erred in failing to find that the existence of any problem in the heads was an apparent defect, or one which had been disclosed to the plaintiffs-appellees.
III. The trial court erred in failing to consider the limitation of warranty provisions contained in the Act of Sale which were explained to the plaintiffs-appellees.
IV. The trial court erred in failing to find that the seller should be given an opportunity to repair the vehicle and that it was in fact repaired.
V.The trial court erred in ordering a complete rescission of the sale, inasmuch as the minor nature of the problem in the vehicle would warrant only a reduction of the price.

The trial judge’s written reasons, a copy of which is appended hereto, adequately set forth the facts of this case.

I

The trial judge concluded that the cracked engine heads existed at the time of the sale. In arriving at this factual conclusion, the trial judge apparently disbelieved the response of Robert Neal, a mechanic at Coleman Oldsmobile, to a test performed on the engine heads, when all Neal did as a result thereof was replace the head gaskets. The results of the test were excluded as hearsay. The trial judge had the opportunity to view the witness vis-a-vis a reading of a cold record, and given the great discretion a trial judge has in fact finding, we cannot say he is clearly wrong.

II

Mere knowledge that there is a water leak with subsequent information that the head gaskets had to be changed does not create in the buyer knowledge of an apparent defect with the engine heads.

III

The limitation of warranty provision appear in the act of sale, to wit:

“LIMITED WARRANTY
“This car has 30 days 50-50 warranty on transmission, engine, and differential, work to be done in our shop or 1,000 miles whichever comes first,”

is not sufficient to put a buyer on notice that he has either waived or limited his rights under La.Civ.C. art. 2520, et seq.

IV AND V

We are convinced that the trial judge was in error in declaring an avoidance of the sale rather than a reduction of the price. La.Civ.C. art. 2543. It is not apparent from the evidence in this record that plaintiffs would have refused to purchase this vehicle if they would have been originally informed that there were cracked engine heads, but same would be replaced. In fact plaintiffs’ own independent mechanic stated that once the heads would be changed, there should be no further problems.

The plaintiffs purchased a used vehicle with 18,483 miles on it. Though redhibition also applies to used vehicles, it is not unreasonable for a purchaser to expect some problems subsequent to the purchase. Thus we conclude that the defects and inconveniences were not sufficient to void the sale. The-sale price will be reduced by the bills from Woodway Gulf of Houston, Texas for $100.75 for radiator repairs and the Polk Chevrolet bill of $855.01. Inasmuch as plaintiffs took the vehicle to Adams Repair [1051]*1051Works, Inc. without first giving Coleman an opportunity to repair, we cannot allow a reduction for this amount.

Therefore, for the above and foregoing reasons, the judgment of the trial court is amended and there is now judgment in favor of plaintiffs, Fred Hill and Betty Hill, against the defendant, Coleman Oldsmobile, Inc. in the full and true sum of $955.76 with legal interest from date of judicial demand until paid, and for all costs both in the trial court and in this court.

AMENDED AND AFFIRMED.

APPENDIX

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WRITTEN REASONS FOR JUDGMENT

Fred Hill and Betty Hill filed this redhi-bitory action to rescind the sale of a 1979 Chevrolet pickup truck purchased from Coleman Oldsmobile, Inc. and manufactured by General Motors Corporation.

On Saturday, May 31, 1980, petitioners saw a black 1979 Chevrolet Silverado diesel pickup on the used car lot of Coleman Oldsmobile. Petitioners inquired of J. Bill Bullock, a salesman at Coleman Oldsmobile, Inc., about the pickup. After test driving the pickup, the petitioners decided to buy it. Mr. Hill left for work, leaving Mrs. Hill to sign the necessary documents. The purchase price was $7,500.00 with $360.00 for taxes and $15.00 for registration for a total price of $7,875.00. Petitioners traded a vehicle in for which they were allowed $1,500.00, leaving a balance of $6,375.00.

Mr. Hill testified that after test driving the pickup on Saturday, May 31, 1980, the salesman, Mr. Bullock, informed him that it appeared that water was leaking under the vehicle which needed to be checked. Monday, June 2,1980, was given as the delivery date of the pickup.

Robert Neal, a mechanic at Coleman Oldsmobile, testified that when the pickup was brought to him for repair, he was informed that it leaked water. Mr. Neal stated that he fixed a water hose, replaced the water pump and thermostat. He also noticed that there was a burned head gasket. The heads were sent to another concern to ascertain if the heads were cracked. No testimony was given as to this test. Mr. Neal placed a new head gasket on the pickup.

Mr. Hill testified that Mr. Bullock phoned him Monday, June 2,1980, informing him of the need of a head gasket and that delivery would be after the head gasket was replaced. The vehicle was subsequently delivered.

[1052]*1052Approximately three weeks after the purchase, Mr. Hill noticed the temperature gauge rising. Upon checking he found the water level low. Water was added. Approximately three weeks later, the temperature gauge registered hot. The water was low and more was added.

Mr. Hill made two trips to Houston in the pickup. On the later trip the vehicle registered hot and the radiator was repaired at a cost of $100.75 (see Exhibit P-2).

Due to the frequency of running hot, Mr. Hill took the pickup to Adams Repair Works, Inc. on September 9, 1980, to have the vehicle repaired. Mr. J.C. Kelly, owner of Adams Repair Works, Inc., testified he removed the heads and after being magna flushed, it was discovered that the heads were cracked, which would be the source of causing the vehicle to overheat. Due to the cost of repair, Mr. Hill informed Mr. Kelly to reassemble the vehicle. The bill of Adams Repair Works, Inc. was $514.05 (Exhibit P-3).

Mr. Hill contacted Coleman Oldsmobile, Inc. concerning the cracked heads and was referred to a General Motors truck distributor, Polk Chevrolet. Mr. Hill contacted General Motors’ representatives about the cracked heads (Exhibits P-5, P-6, P-7) and was basically advised to take the vehicle to Polk Chevrolet for examination. Polk charged $855.81 and refused to release the pickup until its charge was paid. The truck remains at Polk Chevrolet.

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Related

Sonfield v. Burleson
543 So. 2d 488 (Louisiana Court of Appeal, 1989)
Hill v. Coleman Oldsmobile, Inc.
430 So. 2d 77 (Supreme Court of Louisiana, 1983)

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Bluebook (online)
424 So. 2d 1049, 1982 La. App. LEXIS 8410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-coleman-oldsmobile-inc-lactapp-1982.