
    Melvin J. DOUGHTY et al. v. GENERAL MOTORS CORPORATION et al.
    No. 6381.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 7, 1974.
    Airhart & Copenhaver, Harris D. Co-penhaver, Jr., Baton Rouge, for plaintiffs-appellants.
    Bernard, Micholet & Cassisa, Paul V. Cassisa, Metairie, for defendant-appellee, General Motors Corp.
    Daniel E. Becnel, Jr., Reserve, for defendant-appellee, Faucheaux Chevrolet, Inc.
    Before SAMUEL and LEMMON, JJ., and MARCEL, J. Pro Tem.
   CLEVELAND J. MARCEL, SR., Judge Pro Tem.

This is an appeal from a judgment maintaining an exception of prescription.

Melvin Doughty purchased a new automobile from Faucheaux Chevrolet, Inc. on May 30, 1967. On August 6, 1968 he was killed in an accident in that automobile, which was completely demolished.

In July of 1972 plaintiffs (Doughty’s parents, brothers and sisters) received a “campaign” letter from General Motors Corporation, notifying that a possible safety hazard existed in 1967 Chevrolets, which under certain circumstances and on rapid acceleration from low speeds could cause temporary loss of control of the vehicle.

Theorizing that Doughty’s vehicle had contained such a defect and that the defect had caused his accident, plaintiffs instituted this suit against Faucheaux and General Motors, seeking return of the purchase price of the car and recovery of funeral expenses and of damages for loss of support, companionship, love and affection. Both defendants filed exceptions of prescription, which were maintained.

The issue is: What is the nature of the suit, one in tort or one in redhibition ?

C.C. art. 2315 grants a cause of action for recovery of the asserted damages in favor of certain beneficiaries of a tort victim against the person “by whose fault it (the damages) happened.” However, that cause of action prescribes in one year from the date the damage was sustained. C.C. arts. 3536, 3537.

Plaintiffs attempt to get around the prescription period for quasi-offenses by characterizing this suit as one in redhibition. We cannot agree.

Redhibition postulates the existence of a contract, and of necessity it is encum-bent upon the plaintiff in the suit to establish privity of contract.

There is no privity of contract between or among the pl'aintiffs and the defendants, as the plaintiffs did not purchase the automobile alleged to have caused the death of Melvin B. Doughty. They are the ascendants and collateral heirs of the deceased purchaser.

We believe that the Supreme Court in Cartwright v. Chrysler Corp. et al., 255 La. 598, 232 So.2d 285 (1970), is dispositive of this case.

“While there are numerous appellate court decisions providing ‘A manufacturer or seller of a product which involves a risk or injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part sustains an injury caused by a defect in the design or manufacture of the article, if the injury might have been reasonably anticipated,’ the fact remains that such action is one in tort and not in contract. There existing no privity of contract between the plaintiff and defendants in this suit, the mere allegations of breach of warranty is not enough to change the character of the action into one arising out of contract and bring it within the ten year prescriptive period.”

(Italics ours.)

The judgment is affirmed.

Affirmed.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge

(concurring).

Plaintiffs are essentially attempting to assert two causes of action, one for redhi-bition and one for wrongful death. I agree that the claim for any damages recoverable in a wrongful death action is clearly prescribed.

Plaintiffs, however, also seek recovery of the purchase price under the redhibition articles. The issue of prescription as to the claim in redhibition is not so clear and simple.

An action to avoid a sale on account of defects in the thing sold must be instituted within one year from the date of the sale. C.C. art. 2534. But when the seller had knowledge of the defect and neglected to declare it, this limitation does not apply, and the action may be commenced at any time within one year of the discovery of the defect. C.C. art. 2546.

If the automobile in fact contained a redhibitory defect (which existed at the time of sale), a cause of action for redhi-bition existed in favor of the buyer. When Melvin Doughty died, this cause of action constituted an asset in his succession. Therefore, plaintiffs’ action in redhibition should not be dismissed on the basis that these plaintiffs lacked privity of contract with these defendants. The true issue in my opinion is whether these plaintiffs asserted their cause of action for redhibition before prescription tolled.

In this regard it is necessary to first determine when prescription started to run.

Plaintiffs contend the prescriptive period did not commence until they discovered the defect upon receipt of the “campaign” letter. Since this suit was filed within a year thereafter, they insist this suit timely interrupted prescription as to General Motors.

In my opinion the defect in this automobile, if one existed, manifested itself at the time of the accident. If a defect was the cause of Doughty’s losing control, as alleged, then he (the buyer) discovered the defect at that time.

Perhaps Doughty or the successors to his cause of action could have filed a timely suit for redhibition within a year of the accident, even though the accident occurred more than one year from the date of the sale. But no timely suit could be filed more than a year after the defect manifested itself. The purpose of C.C. art. 2546 is to prevent a defect-concealing seller from pleading prescription in cases where the known defect does not appear within one year of the sale; the article is not designed to keep open the cause of action forever, even years after the defect has manifested itself.

I am cognizant that C.C. art. 2546 provides that discovery is not presumed, but must be proved by the seller. I believe this provision inapplicable to the present situation where the alleged defect appeared, the thing .sold was destroyed, and the alleged defect was never again discoverable.

Another problem with plaintiffs’ theory is that their receipt of the letter did not constitute an event which would commence the running of prescription. Indeed, if the time of plaintiffs’ discovery is significant, they have not yet truly discovered a defect. The “campaign” letter, which is inadmissible to prove the existence of a defect in that particular automobile, [Landry v. Adam, 282 So.2d 590 (La.App. 4th Cir. 1973)], only informed plaintiffs that some 1967 Chevrolets contained defects which under certain conditions might cause accidents.

Any cause of action for redhibition against the manufacturer, based on presumed knowledge of a defect and failure to declare it, has long since prescribed.

As to the seller, any cause of action for redhibition against Faucheaux, who had neither actual nor constructive knowledge of a defect at the time of sale, is clearly prescribed under C.C. art. 2534. 
      
      . They also seek damages under C.C. art. 2545, contending the manufacturer had presumptive knowledge of the defect and failed to declare it,
      I pretermit discussion as to whether the damages sought are collectible in a redhibition action.
     
      
      . Plaintiffs alleged sufficient facts to show that they inherited this cause of action, although there was no evidence of any succession proceedings.
     