#### Mrs. Myrtle Avril JONES v. Charles L. WRIGHT, Jr., and The Home Indemnity Company. Sidney F. MULLER v. Charles L. WRIGHT, Jr., and The Home Indemnity Company.

No. 4773.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 7, 1972.

Rehearing Denied March 7, 1972.

Writ Refused April 13, 1972.

*196Normann & Normann, Gerald R. Cooper, New Orleans, for third party defendants-appellants.

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James C. Murphy, Jr., New Orleans, for defendants-appellees.

Before REGAN, SAMUEL and BAILES, JJ.

BAILES, Judge.

This is an appeal from the judgments of the trial court rendered in favor of third party plaintiffs, Charles L. Wright, Jr., and Home Indemnity Company against Howard Motors, Inc., and its insurer, Zurich Insurance Company, third party defendants. The court a quo held that the third party defendants were indemnitors of the third party plaintiffs for the amount paid by the latter as damages inflicted by Charles L. Wright, Jr., on plaintiffs in a rear end collision. Plaintiff, Sidney F. Muller, was the owner and operator of the automobile in which Mrs. Myrtle Avril Jones, plaintiff in the other suit, was a guest passenger.

Although these suits were filed as separate actions, the facts and circumstances controlling the result reached by us is common to both actions. These suits were consolidated in the trial court, and inasmuch as the original plaintiffs are no longer parties interested in the outcome, the appeals are consolidated in this court and one judgment will be dispositive of the entire matter.'

Plaintiffs’ actions against defendants are based on these allegations:

> “That on March 31, 1964, at or about 5:30 P.M. at the intersection of Codifer Blvd. and Beverly Garden Drive, Me-tairie, Louisiana, the defendant, Charles L. Wright, Jr. negligently and carelessly drove his vehicle into the rear of a vehicle driven by Sidney F. Muller and in which Petitioner was a passenger.

> “That the vehicle of said Sidney F. Muller was stopped in obedience to a sign on Codifer Blvd., and while so stopped, Charles L. Wright, Jr., ran into the rear of the Muller vehicle.”

Defendants, Wright and Home Indemnity Company, in their joint answer in each case, denied the above allegations of negligence.

These defendants in the main demand filed third party actions against Howard Motors, Inc., and Zurich Insurance Company, alleging they are entitled to indemnification from third party defendants of the full amount of any judgment which might be rendered against them. The basis for this third party action was that on October 9, 1963, Howard Motors, Inc., had defectively performed certain mechanical repair work on the brake system of the Wright vehicle which ultimately, on March 31, 1964, at the time and on the occasion of the accident, caused the brakes on the Wright vehicle to fail; that this failure caused the Wright vehicle to strike the rear of the Muller automobile.

Alternatively, third party plaintiffs allege, that in the event they are not entitled to indemnification, then they are entitled to contribution from third party defendants as joint tortfeasors for the alleged negligence of Howard Motors, Inc., in the faulty repair of the brakes.

Prior to trial of the third party demand, the main action was settled by compromise between the plaintiffs and defendants, Wright and Home Indemnity Company.

The trial court awarded third party plaintiffs judgment, in solido, against third party defendants for the amount that had been paid in settlement of the claims.

Exception of Prescription

We will first make disposition of the exception of prescription filed herein.

These consolidated cases were argued and submitted to the court for decision on January 6, 1972. On January 10, 1972, the third party defendants filed with the Clerk of this court an exception of prescription.

*197LSA-C.C.P. art. 2163 provides:

> “The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.

> “If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.”

Under the provisions of the above quoted article, a consideration of the exception of prescription is prohibited as it was filed too late.

On the Merits

The facts on the merits are not in dispute. Defendant, Wright, was driving his automobile some distance in rear of the Muller vehicle. On two occasions within a few minutes of the subject accident, Mr. Wright had effectively and uneventfully made application of the brakes on his vehicle. On attempting to stop his automobile as he approached the rear of the Muller vehicle he made the usual and customary application of the foot brake pedal whereupon he heard a pop and he was without brakes. Instantly he reached for and applied the hand brake but not in time to avoid the collision with the rear of the Muller vehicle.

As a finding of fact, the trial judge stated:

> “By a clear preponderance of the evidence, Mr. Wright proved that the brake hose was improperly and negligently installed and it eventually wore thin and broke, causing the March 31, 1964 accident.”

We agree with the trial court that the evidence herein clearly preponderates in favor of the position of Mr. Wright that his automobile was afflicted with a latent defect which caused the accident. The brake system had been overhauled and new brake hoses were installed by Howard Motors, Inc., five months prior to the accident. The vehicle had been driven during the interim between repair and accident a distance of only 1300 miles. The brake hose was viewed by the trial court. It showed that a hole had worn through from rubbing on the control arm of the steering mechanism. Mr. Wright testified that the policeman who investigated the accident found hydraulic brake fluid from the worn ruptured brake hose at the scene of the accident. Nothing had occurred in the operation of the vehicle or application of the brakes to suggest to, warn him of or put him on notice that there was anything about to fail in the brake system. There had been no untoward braking action prior to Mr. Wright hearing the pop at the time the brakes failed momentarily before the accident. We find that Mr. Wright had exercised reasonable care in the maintenance of his vehicle.

The courts of this state have long recognized the doctrine of latent defects in automobiles as a valid defense to actions ex de-licto arising out of accidents. See Hassell v. Colletti, La.App., 12 So.2d 31 (1943); Ross v. Tynes, La.App., 14 So.2d 80 (1943) ; Trascher v. Eagle Indemnity Co. of New York, La.App., 48 So.2d 695 (1950); Breaux v. Valin, La.App., 138 So.2d 405 (3rd Cir. 1962); Delahoussaye v. State Farm Mutual Automobile Insurance Company, La.App., 202 So.2d 287 (4th Cir. 1967); and Cartwright v. Firemen’s Insurance Company of Newark, New Jersey, 254 La. 330, 223 So.2d 822 (1969).

We are convinced both by reason of the finding of the trial judge and our own evaluation of the evidence that had the third party plaintiffs asserted the available defense of latent defect of the brake system of defendant Wright’s vehicle, the tort action of plaintiffs could have been successfully defended.

Where an action brought by an injured person against an alleged tort-*198feasor results in the alleged tortfeasor compromising the claim or being cast in judgment, no indemnification or contribution can be recovered by the party cast against a third party if the party cast had a defense available which would have defeated the action but failed to assert it. As a complete defense was available to third party plaintiffs and this they failed to assert, they are not entitled to either indemnification or contribution from the third party defendants.

For the foregoing reasons the judgments appealed from in favor of Charles L. Wright, Jr., and Home Indemnity Company against Howard Motors, Inc., and Zurich Insurance Company are reversed, annulled and set aside, and there is judgment herein rejecting the demand of the third party plaintiffs at their costs.

Reversed.