Douglas v. W. C. Mallison and Son, 28

• Decision Date: 29 September 1965
• Docket Number: No. 28,28
• Citation: 265 N.C. 362,144 S.E.2d 138
• Court: North Carolina Supreme Court
• Parties: Paul DOUGLAS v. W. C. MALLISON AND SON, a Partnership consisting of S. M. Mallison, Jr., Fred M. Mallison, Mrs. S. M. Mallison, Sr., and Mary Mallison Baker.

Page 138

144 S.E.2d 138

265 N.C. 362

Paul DOUGLAS v. W. C. MALLISON AND SON, a Partnership consisting of S. M.

Mallison, Jr., Fred M. Mallison, Mrs. S. M.

Mallison, Sr., and Mary Mallison Baker.

No. 28.

Supreme Court of North Carolina.

Sept. 29, 1965.

John A. Wilkinson and LeRoy Scott, Washington, for plaintiff.

James & Speight, William C. Brewer, Jr., W. W. Speight, Greenville, and Hallett S. Ward, Washington, for defendants.

LAKE, Justice.

The appellant's first three assignments of error do not comply with this Court's Rule 19(3) in that they are not sufficient, within themselves, to present the errors relied upon. For example, Assignment #1 simply states:

'1. The ruling of his Honor on that portion of the direct examination of Paul Douglas, an objection to which was sustained. (R p 18) This is PLAINTIFF APPELLANT'S EXCEPTION #1.'

The rule requires that the assignment of error show what question is intended to be presented for consideration without the necessity of paging through the record to find the asserted error. A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. Hunt v. Davis, 248 N.C. 69, 102 S.E.2d 405. The assignment of error should have set forth, within itself, the question asked, the objection, the ruling of the objection, and what the witness would have answered if he had been permitted to testify.

Had these three been the only assignments of error, the appeal might properly have been dismissed on this ground alone, but since the appeal is from a judgment of nonsuit, which is Assignment #4, it is not subject to dismissal under this rule.

Having gone upon the voyage of discovery, to which we are directed by the references to the record in the first three assignments of error, we find that they are without merit. Assignment #1 relates to no question propounded to the witness, but to plaintiff's counsel's statement as to what the answer alleges. The witness stated clearly the plaintiff's view of the fact in question, so, in any event, the plaintiff was not prejudiced by the sustaining of this objection. As to Assignment #3, the record shows only the question to which objection was sustained. It does not show what the witness would have said if he had been permitted to answer. Thus, again, there is no showing of prejudice to the plaintiff by this ruling.

Assignment #2 relates to the sustaining of an objection to a conversation between the plaintiff and one, Henry Hamilton, identified only as a mechanic employed by the defendants. Had the plaintiff been permitted to answer, he would have testified that Hamilton told him, when he went back to get the machine from the defendants' shop, 'It was ready.' Even if the statement by an authorized agent of the seller of a machine that it is 'ready' could be deemed a warranty or representation of fitness for a particular use and purpose, there is nothing in the record to indicate that Hamilton was authorized by the defendants to make any statement as to the condition of this machine or that he knew what use of it was contemplated, or that he had done any work on it. There was no error in sustaining this objection.

The appellant must, therefore, stand or fall on his contention that it was error to allow the defendants' motion for judgment as of nonsuit in view of the evidence offered by him and admitted.

The complaint, liberally construed, proceeds upon two theories of recovery: (1) That the defendants, at the time of the sale, warranted that this particular loader was in good condition and could be operated with safety; and (2) that the defendants negligently sold and delivered the machine when they knew, or should have known, that it was not properly braced and, therefore, was not safe for use.

The plaintiff's testimony shows that he purchased this specific, designated, second-hand machine, selecting it himself as the machine he wanted because he recognized it and had formerly used it. He thoroughly inspected it at the time of the sale. Under those circumstances, no warranty as to its quality or fitness for the intended use can be implied. Driver v. Snow, 245 N.C. 223, 95 S.E.2d 519; 46 Am.Jur., Sales, § 360; 77 C.J.S. Sales § 315; Anno. 78 A.L.R.2d 594, 616.

There may, however, be an express warranty as to the quality and safety of an article sold as second-hand and there is authority to the effect that an agreement to overhaul a second-hand machine and put it in first class shape may constitute a warranty that the machine delivered pursuant to that agreement is free from structural defects. 46 Am.Jur., Sales, § 327. Any affirmation of fact or promise by the seller relating to the article sold is an express warranty if the natural tendency of the statement is to induce her buyer to purchase the article and the buyer does purchase it in reliance upon such statement. Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908. If such a warranty is given, the seller's liability for its breach does not depend upon proof of his negligence but arises out of his contract. Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21; Williston on Sales, Revised Edition, § 327.

'The liability of the seller of an article in damages for breach of warranty includes all damages which the buyer incurred as a result of a breach of the warranty which may fairly be supposed to have been in the contemplation of the parties at the time of the sale, that is, which might naturally be expected to follow the breach of warranty, and the buyer may, in an action for breach of warranty, recover damages for personal injuries sustained in consequence of the breach complained of, if such injuries were in the contemplation of the parties at the time of the sale, or if they are such as might, in the natural or usual course of things, result from a breach of the warranty.' 46 Am.Jur., Sales, § 801. See also: Price v. Goodman, 226 N.C. 223, 37 S.E.2d 592; Hodges v. Smith, 159 N.C. 525, 75 S.E. 726.

The burden is upon the plaintiff to prove the giving of the warranty as alleged in his complaint, its breach and his injury as a natural consequence of the breach and one which was contemplated by the parties at the time of the sale as likely to result therefrom. Furst v. Taylor, 204 N.C. 603, 169 S.E. 185; Strong, N.C. Index, Sales, § 14.

In the absence of a warranty, the liability of the seller of a machine for injuries sustained by the user thereof due to a defective condition must rest upon the theory that the seller was negligent in selling the machine for the contemplated use. The care required of a seller is certainly no greater than that required of a manufacturer. In this instance, the defendants were the manufacturers of the machines but had sold it and had reacquired it after it had been used for a long period of time. The plaintiff does not contend that the machine, as originally designed and constructed, was defective. His complaint is that at some later time a part was broken off and disappeared. He contends that the defendants, who were the original designer-manufacturers, should have observed the loss of this part when the machine came back into their hands. The difficulty confronting the plaintiff, upon this theory of his case, is that the absence of this part was equally observable to him and he had used this machine when it was in its original condition and the part in question had not been broken off.

It is true that a manufacturer, who produces and sells a new article, which, in the exercise of reasonable care, he should know is likely to cause injury in its ordinary use because of some latent defect or because it is inherently dangerous for such use, is liable to the buyer who, without any negligence of his own, so uses it and is...