This is an appeal from a judgment rendered against defendants, H. W. Parson Motors, Inc., and H. W. Parson, in solido, and in favor of plaintiff, Freddie Johnson, in the sum of $6,000, with legal interest from date of judicial demand together with all costs, which judgment was rendered pursuant to a jury verdict in favor of the plaintiff. This litigation arose out of the sale of a used automobile to the plaintiff, which automobile the plaintiff contended was defective thereby entitling plaintiff to rescission of the sale together with damages sued for.
Defendants-appellants assigned several specifications of error, but they complain principally of (1) the finding of redhibitory defects in the vehicle sold; (2) the award of damages to plaintiff; (3) the alleged commenting upon the evidence by the judge in the presence of the jury; and (4) the rendition of judgment against H. W. Parson individually.
Without extensively recapitulating the evidence, we are satisfied that the trier of fact, in this case the jury, committed no manifest error in concluding that the vehicle sold to the plaintiff did in fact possess redhibitory vices and defects at the time of the sale. The evidence shows that plaintiff purchased the 1965 Chevrolet Super Sport automobile on April 23, 1968. The first notable trouble plaintiff had with the car occurred on May 3, 1968, when plaintiff had major brake work done on the vehicle by Firestone Stores in Baton Rouge, Louisiana. Plaintiff testified the next trouble he encountered with the vehicle involved its inability to start, as a result of which he took it to Al G. Canova of Highland Auto Repair in Baton Rouge, where it was discovered that the electrical system was improperly wired. Mr. Canova corrected the wiring and recharged the battery on May 22, 1968. Thereafter, plaintiff again brought his automobile to Mr. Canova's shop for adjustment of the valves. Subsequently, plaintiff returned to Highland Auto Repair with a complaint of water in the oil. Mr. Canova testified at this time he detected a small crack in the engine block which he then attributed as the cause of the oil and water mixing. Mr. Canova spoke with defendant H. W. Parson, who, according to Mr. Canova, paid half of the twenty-five dollar bill for the last services rendered with plaintiff paying the balance. Thereafter, the evidence reflects that plaintiff got in touch with Mr. Parson who requested that plaintiff take the automobile to Robinson's Chrysler Plymouth, Inc., in Denham Springs, Louisiana. While the automobile was at Robinson's, there then ensued a disagreement between plaintiff and Mr. Parson as to the proper repairs and payment therefor, as a result of which Mr. Parson instructed the representatives of Robinson's to place the vehicle out of the Service Department. Plaintiff subsequently retrieved his vehicle and ultimately had extensive engine repairs performed by Polk Chevrolet, Inc. of Baton Rouge. The mechanic who performed these repairs testified that the engine block was indeed cracked and this was the cause of the oil and the water mixing.
As previously stated, and after reviewing the record, we are satisfied that the jury committed no manifest error in concluding that there were redhibitory vices and defects existing in the vehicle at the time of its purchase by plaintiff. We are further satisfied, however, that plaintiff is not entitled to rescission of the sale inasmuch as he secured major engine repairs and is thus not in a position to restore the object of the sale in substantially its condition at the time of the sale thereby returning the parties to the status quo ante. We feel the situation presented in the instant case is indistinguishable from that encountered in Poor v. Hememway, 221 La. 770, 60 So.2d 310 (1952). In Poor the plaintiff who had purchased a sailing yacht subsequently discovered it was unfit due to a condition of rot, whereupon plaintiff sought to return the yacht by tendering it to the seller who refused to accept it. Plaintiff then, instead of instituting suit for rescission of the sale on ground of redhibition,
In order to be entitled to rescission, plaintiff, upon discovery of the redhibitory vices and defects, should tender the object of the sale to the vendor, and if the purchaser undertakes to perform major repairs of the object of the sale as was done by plaintiff in the instant case when he had the engine block repaired, such purchaser loses his right to rescind the sale and is relegated to the action in quanti minoris.
Accordingly, we will allow plaintiff to recover finance charges for the repairs as well as the principal cost thereof, or the sum of $1,008. We feel plaintiff has likewise proven as proper items for a reduction of the purchase price the cost of the major brake work performed by Firestone Stores on May 3, 1968, in the sum of $121.52 (Plaintiff Exhibit No. 5), in view of the proximity of these needed repairs to the date of purchase of the vehicle on April 23, 1968, as well as the related evidence. We will also allow plaintiff to recover the sum of $7.03 for the bill of Highland Auto Repair (Plaintiff Exhibit No. 8) for the electrical wiring repair and recharging of the battery, being of the opinion the evidence shows this defective wiring set-up existed at the time of the sale. Similarly, we find plaintiff to have proven his right to recover the sum of $23.09 representing the bill of Highland Auto Repair dated May 30, 1968 (Plaintiff Exhibit No. 9), in view of the testimony of Mr. Canova reflecting that this bill was incurred for valve readjustment and was reasonably related to the defective engine block. The same applies to the last bill of Highland Auto Repair dated June 12, 1968, in the sum of $25 (Plaintiff Exhibit No. 2), on which, however, plaintiff already received credit for one half thereof, thus entitling plaintiff to recover an additional $12.50. Plaintiff likewise sought recovery for the expense incurred at Delmont Mobil Service on September 27, 1968, for rear end work in the sum of $114.40 (Plaintiff Exhibit No. 7), but we are of the opinion that plaintiff has failed to prove the existence of this defective condition at the time of the sale, which we note was not corrected until five months thereafter, and we will accordingly not permit recovery of this item. We feel plaintiff has only proven his right to recover in quanti minoris the aforementioned expenses totaling $1,172.14.
With regard to appellant's specification of error concerning the jury's award of damages, we feel appellant's position is well founded. It is clear that damages are recoverable only where the seller knew or at least is charged with constructive knowledge of the defects in the thing sold and omits to declare same,
Appellants likewise complain that the trial judge improperly commented upon the evidence in the presence of the jury to their prejudice. The incident giving rise to this contention involves the following comment made by the trial judge to counsel for appellants prior to said counsel's questioning the witness, John Robinson, who was recalled to the stand as previously indicated after plaintiff concluded presentation of his rebuttal evidence:
"MR. ERVIN: Call Mr. Robinson.
"MR. ERVIN: Thank you, sir." (Record, p. 252)
Counsel for appellants argues that this statement by the trial court would reasonably indicate to the jury the trial court's opinion that John Robinson's testimony had been impeached and that he was an impeached witness, thus amounted to an improper commenting on the evidence. We are unable to attribute such opprobrious consequences to this passing remark by the trial court. We feel the trial court obviously merely had reference to the procedural stage of the trial and that he properly charged the jury that it was the sole arbiter of the evidence. We also note that no effort was made by counsel for appellants either at that stage of the trial or in conjunction with the trial court's charging of the jury to bring this matter to the attention of the trial court so that the jury could be expressly admonished to disregard the comment. We feel counsel for appellants should have made his objection before the trial court or if he
Appellants' final essential specification of error involves rendition of the judgment against H. W. Parson individually. Appellants contend that the evidence fails to support a judgment against anyone besides H. W. Parson Motors, Inc. We feel this contention is well founded. A review of the record discloses no evidence which would indicate H. W. Parson individually was the seller of this automobile. The bill of sale denominated "Retail Buyer's Order" (Plaintiff Exhibit No. 3) signed by the plaintiff himself clearly reflects the name of the seller as the corporation; and while it is signed or accepted by H. W. Parson, the bold print shows that the order would not be valid unless accepted by an official of the company. The testimony of Mr. Parson as well as that of Mr. Robinson clearly reflects that the car was sold by Robinson's Chrysler-Plymouth, Inc., to H. W. Parson Motors, Inc., the corporation, and not to Mr. Parson individually. There is nothing to reflect that Mr. Parson concealed, disguised or failed to disclose the existence of the corporation and the fact that the corporation was selling the vehicle to plaintiff. Under the circumstances, and in view of the Retail Buyer's Order signed by the plaintiff, the plaintiff either knew or at least is charged with constructive knowledge of the fact that he was dealing with a corporation and not with Mr. Parson individually. Nor does the record contain any evidence to indicate that Mr. Parson individually knew of any redhibitory defects in the vehicle sold or that he assumed any personal liability in connection with the sales transaction so as to give rise to any independent delictual or contractual liability on his part. The mere fact that Mr. Parson is the principal stockholder in the corporation does not per se justify a disregard of the corporate status and imposition of personal liability upon him resulting from this transaction in view of the circumstances. Accordingly, the judgment casting H. W. Parson liable in solido with H. W. Parson Motors, Inc., is erroneous and will be reversed.
In accordance with the foregoing, the judgment will be recast so as to read in pertinent part as follows:
Reversed in part, affirmed in part and rendered.
See, also, Articles 2521 through 2548.