T & J Trucking Co. v. Day Motors, Inc.

518 So. 2d 1159, 1988 La. App. LEXIS 112, 1988 WL 4775
CourtLouisiana Court of Appeal
DecidedJanuary 6, 1988
DocketNo. 86 CA 1569, C/W 87 CA 0439
StatusPublished
Cited by1 cases

This text of 518 So. 2d 1159 (T & J Trucking Co. v. Day Motors, 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
T & J Trucking Co. v. Day Motors, Inc., 518 So. 2d 1159, 1988 La. App. LEXIS 112, 1988 WL 4775 (La. Ct. App. 1988).

Opinion

SAVOIE, Judge.

This is a suit in redhibition involving a diesel truck. T & J Trucking Company brought suit against Day Motors, Inc., d/b/a Peterbilt of Louisiana, PACCAR, Inc., and Nelson Dupuis.1 These defendants were the seller of the truck, manufacturer of the truck and the service manager of Day Motors, Inc. respectively. Day Motors third partied Cummins Engine Company, Inc., the manufacturer of the engine. Subsequently, plaintiff added Cummins as a defendant.

T & J Trucking purchased a used 1981 Peterbilt truck from Day Motors on May 81, 1983. The truck was equipped with a diesel engine manufactured by Cummins. At the time of the purchase by T & J Trucking, the truck had been driven approximately 124,000 miles by the previous owner. Day Motors had acquired the truck by a repossession. It was necessary for Day Motors to have the truck towed from Lafayette to Baton Rouge because the front and rear differential assembly needed to be overhauled. The internal repair orders of Day Motors reflected a total of $9,337.37, in labor and parts, spent in repairing the truck prior to T & J Trucking receiving the truck. The internal repair orders represent work done on the truck and billed to Day Motors. Timmy Martin, the owner of T & J Trucking, examined the truck and test drove it before purchasing it for a total price, including tax and license, of $50,824.50. A portion of the work reflected on one of the internal work orders was for repairs requested by Martin after test driving the truck.

A few days after purchase of the truck, Martin took possession of the truck and drove the truck to Houston to purchase a trailer. Subsequently, he began using the truck for commercial hauling. The truck was driven approximately 3,500 miles in an eight to ten day period, at which point the crankshaft broke.

When the crankshaft broke, Martin had the truck towed to Williams’ Diesel and Gas Repair, where the engine was removed and disassembled. The following day Phil Burnett, a salesman at Day Motors, phoned Martin to see how the truck was working out. Martin informed Burnett of the breakdown. Nelson Dupuis and Burnett then went to Williams’ Diesel to inspect the engine. In order for the repairs to receive warranty coverage, it was necessary for the work to be done in the shop of Day Motors, an authorized Cummins dealer. The replacement of the crankshaft was completed in one and a half days by Day Motors. The total cost of the repairs for the broken crankshaft was $4,388.72. At the time, Cummins provided a limited warranty on its engines which included a warranty on the crankshaft for 300,000 miles. [1161]*1161Under that warranty, Cummins offered coverage for the cost of the crankshaft in the event that replacement was necessary. Pursuant to that warranty, Cummins paid $2,440.17 which represented more than one-half of the costs of repairs with tax.

The repaired engine was returned to Williams’ Diesel to be reinstalled in the truck. After the engine was reinstalled and cranked up, it was discovered that one of the cylinder heads was damaged. As a result of that damage, a second set of repairs became necessary. Day Motors replaced all of the cylinder heads with reconditioned heads. Cummins provided warranty coverage and paid $573.17, approximately half of the total costs of repairs. T & J Trucking paid for these repairs with a check for $605.86 yet promptly stopped payment on the check. After these repairs were completed, T & J Trucking had no further problems with the engine.

Six months after T & J Trucking purchased the truck, the rear differential assembly malfunctioned and was replaced. The rear differential assembly had been overhauled by Day Motors a few days prior to the purchase of the truck by T & J Trucking.

Day Motors installed a dual exhaust flex pipe at the request of T & J Trucking on June 6, 1983. Five months later, it was necessary for T & J Trucking to replace one of the exhaust flex pipes.

Eight months after T & J Trucking purchased the truck, it replaced the clutch and other worn parts in the transmission. Other various items were repaired at various times during the sixteen months plaintiff owned the truck.

On September 26, 1984, T & J Trucking traded in the Peterbilt truck for a smaller Mack truck and received $24,000.00 credit on the trade-in and $5,000.00 in cash.

Trial on the merits was heard in two parts, on January 30,1986 and on February 28, 1986. On June 3, 1986, judgment was rendered in favor of plaintiff, T & J Trucking and against defendants, Day Motors and Cummins. The judgment cast Day Motors in judgment for $9,000.00 for a reduction in the purchase price of the truck in addition to expenses incurred in repairing the truck in the total amount of $7,604.05, subject to a credit of $2,407.45 representing the total of checks written to T & J Trucking by Day Motors. The judgment also cast Cummins in judgment as third party defendant for the sum of $8,000.00, representing the reduction in purchase price of the truck in addition to the sum of $5,992.06, representing expenses for repairs by T & J Trucking subject to the same credit given Day Motors. The court further awarded $3,500.00 against Cum-mins to plaintiff’s attorney for attorney’s fees. The court awarded judicial interest on all of the above awards, including the award for attorney’s fees.

The court denied the plaintiff's claim for damages for down time and denied the claim for repair expenses incurred on some items.

Defendants, Dupuis and PACCAR, Inc., were dismissed with prejudice.

Day Motors appealed seeking reversal of the judgment rendered against it in favor of plaintiff and, in the alternative, full indemnity and attorney’s fees from Cum-mins. Cummins filed a motion for new trial. In response to said motion the court, on January 20, 1987, modified the original judgment against Cummins in two respects. The court increased Cummins’ credit for warranty payments from $2,407.45 to $3,013.87 and the court awarded- attorney’s fees in the amount of $3,500.00 to the plaintiff rather than to his counsel. In all other respects, the judgment remained the same. Cummins has appealed from this new judgment.

Plaintiff answered both appeals requesting an increase in attorney’s fees and damages for its down time.

Appellants and appellee listed numerous assignments of error. However, all assignments of error can be concisely covered by review of the following issues:

1. Whether the trial court was clearly wrong in finding the existence of redhibi-tory vices at the time of sale.
2. Whether the trial court was correct in finding that plaintiff was entitled to a [1162]*1162reduction in the purchase price of his truck.
3. Whether the trial court was correct in denying defendants’ claim for a credit for use.
4. Whether the trial court was correct in denying plaintiffs claim for damages as a result of down time.
5. Whether Day Motors and/or Cum-mins are liable for attorney’s fees.
6. Whether legal interest can be awarded on attorney’s fees.
7. Whether a claim for attorney’s fees against a defendant who is not sued within the prescriptive period is interrupted by suit against a co-defendant who is sued timely but is not cast for attorney’s fees.

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83 So. 3d 250 (Louisiana Court of Appeal, 2011)

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Bluebook (online)
518 So. 2d 1159, 1988 La. App. LEXIS 112, 1988 WL 4775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/t-j-trucking-co-v-day-motors-inc-lactapp-1988.