Rogers v. Nelson Dodge, Inc.

407 So. 2d 443
CourtLouisiana Court of Appeal
DecidedNovember 10, 1981
Docket8474
StatusPublished
Cited by16 cases

This text of 407 So. 2d 443 (Rogers v. Nelson Dodge, 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
Rogers v. Nelson Dodge, Inc., 407 So. 2d 443 (La. Ct. App. 1981).

Opinion

407 So.2d 443 (1981)

W. R. ROGERS, Plaintiff-Appellee,
v.
NELSON DODGE, INC. and Chrysler Corporation, Defendants-Appellants.

No. 8474.

Court of Appeal of Louisiana, Third Circuit.

November 10, 1981.
Rehearing Denied January 4, 1982.

*444 Collings & Collings, R. William Collings, Lake Charles, for defendants-appellants.

Camp, Carmouche, Palmer, Barsh & Hunter, Wade N. Kelly, Lake Charles, for plaintiff-appellee.

Jones, Patin, Tete, Nolen & Hanchey, Kenneth Spears, Lake Charles, for defendant-appellee.

Before CULPEPPER, CUTRER and LABORDE, JJ.

CUTRER, Judge.

This is a suit to recover damages for a breach of a contract to repair a motor home.

The facts presented in this case are: On September 15, 1978, W. R. Rogers purchased a used 23 foot Dodge Motor Home from Tracey Cooper for the sale price of $14,500.00, of which $1,500.00 was paid and the remainder financed through Lakeside National Bank of Lake Charles at $244.95 per month for seven years. Including finance charges, Rogers would pay over $20,000.00 for the motor home. This vehicle, at the time of purchase, had 3,500 miles on the odometer and by the date of trial, December 10, 1980, the mileage was 11,500 miles.

During the first week after purchase Rogers took the motor home to defendant, Nelson Dodge, Inc. (Nelson), who was the factory authorized service center for Dodge-Chrysler products, complaining of engine noise and a loss of power steering. Service personnel at Nelson stated that they did not service such vehicles. A mechanic stated, however, that the noise sounded like a loose belt and he tightened it for Rogers. Rogers then drove the motor home to New Orleans and, in the process, discovered that the suspension sagged. He returned the motor home to Nelson on September 26, 1978, but was again told that Nelson did not work on these vehicles. Rogers continued to use the motor home even though the problems existed. On October 6, 1978, Rogers made a trip to Houston, Texas and experienced a loss of power and a squealing noise in the engine. He returned again to Nelson for help on October 9th but was refused.

Rogers parked the motor home in his driveway from October 9 to December 13, 1978. He again returned to Nelson hoping to have the motor home certified as fully operational for use in the up-coming swim season in which his son participated with the Y.M.C.A. One of the reasons for the purchase was that he wanted to avoid hotel/motel expenses as the family participated in various activities. Nelson again refused to check the motor home. On January 6, 1979, Rogers and family attended a swim meet in Baton Rouge. On this journey he experienced again the same loss of power and, upon return to Lake Charles, took the motor home to Nelson on January 10, 1979 where he was met with the same refusal.

The motor home was not used again until February 23, 1979. At that time, the motor home stalled in Lake Charles and Rogers was unable to start it. He telephoned Nelson who towed the motor home to their shop on February 27, 1979. Nelson disassembled the engine to ascertain the problem. The testimony indicates that a valve problem existed which Nelson contended it repaired. The engine was reassembled and turned over to Rogers on March 15, 1979.

While enroute home Rogers noticed there was no oil pressure registering on the dash board gauge. He called Nelson who sent out a wrecker on March 16th to return the motor home to the shop. Nelson replaced the oil pump and the motor home was returned to Rogers two weeks later.

Rogers then took a trip to Alexandria on Easter Sunday, April 15th. He experienced a noise in the engine and returned the vehicle on April 17th and 19th for inspection. On April 19th a mechanic informed him that the noise sounded like an engine knock but the service manager assured *445 Rogers that he would be able to make a trip to Houston that Rogers had planned. Rogers did so on April 19th. Upon his return he experienced loud noises and a loss of power, necessitating driving at 15-20 miles per hour from Beaumont to Lake Charles. He returned the motor home to Nelson on April 23, 1979.

Nelson then kept the motor home for more than three months. Rogers was told the problem was due to the main bearings having been installed incorrectly in the engine. Testimony by one of Nelson's mechanics indicated that the problem may have been due to the engine being started without it having been filled with oil at the time it was torn down for inspection February 27 through March 15, 1979.

To remedy the problems Nelson decided to make some major changes in the engine. Chrysler Corporation furnished a short block to Rogers for customer relations purposes and Nelson installed it. The installation of the short block evolved into a reduction of the size of the engine from 440 cubic inches to 360 cubic inches. A dispute over who was to pay for labor arose and Rogers paid a $1,001.55 labor charge under protest so he could regain possession of his motor home. Rogers got delivery of the motor home on July 16th. On this date he and a mechanic made a test drive and the vehicle's alternator indicator discharged due to improperly installed wiring. The motor home was then returned and picked up again on July 26th.

On July 27th, Rogers and his family attended a swim meet in Alexandria. On this trip he experienced unstable handling and extremely poor performance. He found the rear left springs were not properly tightened. He returned the motor home to Nelson on July 30th where the distributor was re-set and tightened down. This had not been done when the engine was installed in February 1979. The rear left springs were also tightened.

On August 1st, Rogers started on a trip to Wisconsin. While on this trip, engine noises developed again. Upon inspection by a mechanic in Missouri, it was found that the flywheel dust cover, oil line retaining clips and transmission line retainer were all left off at the time of the previous repair by Nelson. Also, there were several oil leaks. The mechanic in Missouri did not have parts for the necessary repairs. He told Rogers that he could drive the motor home with the existing problems and deficiencies but that Rogers would have to watch the oil level carefully in view of the leaks. Rogers managed to get back to Lake Charles by following such instructions and adding oil. He returned the motor home to Nelson on August 13th. Rogers made several calls requesting work to be done and when nothing was done by August 28th, he took the motor home to his house, parked it in his yard and instituted this suit.

Rogers filed suit for damages against Nelson Dodge and Chrysler Corporation. Chrysler's exception of prescription was sustained and suit was dismissed as to this defendant. After a jury trial, a general verdict was returned awarding damages to Rogers and against Nelson in the amount of $10,000.00. From that judgment, Nelson has perfected this appeal.

The issues presented on appeal are:

(1) Whether Nelson is liable to Rogers for the breach of a contract;
(2) Whether Rogers failed to mitigate his damages; and
(3) Whether the award by the jury was excessive.

BREACH OF CONTRACT

The first issue is whether Nelson is liable for damages to Rogers for a breach of contract to repair the motor home.

The obligations of one who undertakes the performance of a contract for services are set forth in the case of Tiger Well Service v. Kimball Production Co., 343 So.2d 1153, 1157 (La.App. 3rd Cir. 1977), where this court held as follows:

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Bluebook (online)
407 So. 2d 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-nelson-dodge-inc-lactapp-1981.