161 A.2d 69 (N.J. 1960), A--50, Henningsen v. Bloomfield Motors, Inc.

Docket Nº:A--50.
Citation:161 A.2d 69, 32 N.J. 358
Opinion Judge:[10] Francis
Party Name:Claus H. HENNINGSEN and Helen Henningsen, Plaintiffs-Respondents and Cross- Appellants, v. BLOOMFIELD MOTORS, INC., and Chrysler Corporation, Defendants-Appellants, and Cross-Respondents.
Attorney:[6] Mr. Bernard Chazen argued the cause for plaintiffs (Mr. Carmen C. Rusignola, attorney; Messrs. Baker, Garber & Chazen, of counsel; Mr. Martin Itzikman, on the brief).
Case Date:May 09, 1960
Court:Supreme Court of New Jersey
 
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161 A.2d 69 (N.J. 1960)

32 N.J. 358

Claus H. HENNINGSEN and Helen Henningsen,

Plaintiffs-Respondents and Cross- Appellants,

v.

BLOOMFIELD MOTORS, INC., and Chrysler Corporation,

Defendants-Appellants, and Cross-Respondents.

No. A--50.

Supreme Court of New Jersey.

May 9, 1960

Argued Dec. 7, 1959.

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[32 N.J. 364] Bernard Chazen, Hoboken, argued the cause for plaintiffs. (Carmen C. Rusignola, Newark, attorney; Baker, Garber & Chazen, Hoboken, of counsel; Martin Itzikman, Newark, on the brief).

Samuel Weitzman, Newark, argued the cause for defendant Bloomfield Motors, Inc. (Parsonnet, Weitzman & Oransky, Newark, attorneys).

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Sidney M. Schreiber, Newark, argued the cause for defendant Chrysler Corporation. (Schreiber, Lancaster & Demos, Newark, attorneys; Roger F. Lancaster, Newark, of counsel).

The opinion of the court was delivered by

FRANCIS, J.

Plaintiff Clause H. Henningsen purchased a Plymouth automobile, manufactured by defendant Chrysler Corporation, from defendant Bloomfield Motors, Inc. His wife, plaintiff Helen Henningsen, was injured while driving it and instituted suit against both defendants to recover damages on account of her injuries. Her husband joined in the action seeking compensation for his consequential [32 N.J. 365] losses. The complaint was predicated upon breach of express and implied warranties and upon negligence. At the trial the negligence counts were dismissed by the court and the cause was submitted to the jury for determination solely on the issues of implied warranty of merchantability. Verdicts were returned against both defendants and in favor of the plaintiffs. Defendants appealed and plaintiffs cross-appealed from the dismissal of their negligence claim. The matter was certified by this court prior to consideration in the Appellate Division.

The facts are not complicated, but a general outline of them is necessary to an understanding of the case.

On May 7, 1955 Mr. and Mrs. Henningsen visited the place of business of Bloomfield Motors, Inc., an authorized De Soto and Plymouth dealer, to look at a Plymouth. They wanted to buy a car and were considering a Ford or a Chevrolet as well as a Plymouth. They were shown a Plymouth which appealed to them and the purchase followed. The record indicates that Mr. Henningsen intended the car as a Mother's Day gift to his wife. He said the intention was communicated to the dealer. When the purchase order or contract was prepared and presented, the husband executed it alone. His wife did not join as a party.

The purchase order was a printed form of one page. On the front it contained blanks to be filled in with a description of the automobile to be sold, the various accessories to be included, and the details of the financing. The particular car selected was described as a 1955 Plymouth, Plaza '6', Club Sedan. The type used in the printed parts of the form became smaller in size, different in style, and less readable toward the bottom where the line for the purchaser's signature was placed. The smallest type on the page appears in the two paragraphs, one of two and one-quarter lines and the second of one and one-half lines, on which great stress is laid by the defense in the case. These two paragraphs are the least legible and the most difficult to read in the instrument, but they are most important in the evaluation [32 N.J. 366] of the rights of the contesting parties. They do not attract attention and there is nothing about the format which would draw the reader's eye to them. In fact, a studied and concentrated effort would have to be made to read them. De-emphasis seems the motive rather than emphasis. More particularly, most of the printing in the body of the order appears to be 12 point block type, and easy to read. In the short paragraphs under discussion, however, the type appears to be six point script and the print is solid, that is, the lines are very close together.

The two paragraphs are:

'The front and back of this Order comprise the entire agreement affecting this purchase and no other agreement or understanding of any nature concerning same has been made or entered into, or will be recognized. I hereby certify that no credit has been extended to me for the purchase of this motor vehicle except as appears in writing on the face of this agreement.

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'I have read the matter printed on the back hereof and agree to it as a part of this order the same as if it were printed above my signature. I certify that I am 21 years of age, or older, and hereby acknowledge receipt of a copy of this order.'

On the right side of the form, immediately below these clauses and immediately above the signature line, and in 12 point block type, the following appears:

'CASH OR CERTIFIED CHECK ONLY ON DELIVERY.'

On the left side, just opposite and in the same style type as the two quoted clauses, but in eight point size, this statement is set out:

'This agreement shall not become binding upon the Dealer until approved by an officer of the company.'

The two latter statements are in the interest of the dealer and obviously an effort is made to draw attention to them.

The testimony of Claus Henningsen justifies the conclusion that he did not read the two fine print paragraphs referring [32 N.J. 367] to the back of the purchase contract. And it is uncontradicted that no one made any reference to them, or called them to his attention. With respect to the matter appearing on the back, it is likewise uncontradicted that he did not read it and that no one called it to his attention.

The reverse side of the contract contains 8 1/2 inches of fine print. It is not as small, however, as the two critical paragraphs described above. The page is headed 'Conditions' and contains ten separate paragraphs consisting of 65 lines in all. The paragraphs do not have headnotes or margin notes denoting their particular subject, as in the case of the 'Owner Service Certificate' to be referred to later. In the seventh paragraph, about two-thirds of the way down the page, the warranty, which is the focal point of the case, is set forth. It is as follows:

'7. It is expressly agreed that there are no warranties, express or implied, Made by either the dealer or the manufacturer on the motor vehicle, chassis, of parts furnished hereunder except as follows.

"The manufacturer warrants each new motor vehicle (including original equipment placed thereon by the manufacturer except tires), chassis or parts manufactured by it to be free from defects in material or workmanship under normal use and service. Its obligation under this warranty being limited to making good at its factory any part or parts thereof which shall, within ninety (90) days after delivery of such vehicle To the original purchaser or before such vehicle has been driven 4,000 miles, whichever event shall first occur, be returned to it with transportation charges prepaid and which its examination shall disclose to its satisfaction to have been thus defective; This warranty being expressly in lieu of all other warranties expressed or implied, and all other obligations or liabilities on its part, and it neither assumes nor authorizes any other person to assume for it any other liability in connection with the sale of its vehicles. * * *." (Emphasis ours.)

After the contract had been executed, plaintiffs were told the car had to be serviced and that it would be ready in two days. According to the dealer's president, a number of cars were on hand at the time; they had come in from the factory about three or four weeks earlier and at least [32 N.J. 368] some of them, including the one selected by the Henningsens, were kept in the back of the shop display purposes. When sold, plaintiffs' vehicle was not 'a serviced car, ready to go.' The testimony shows that Chrysler Corporation sends from the factory to the dealer a 'New Car Preparation Service Guide' with each new automobile. The guide contains detailed instructions as to what has to be done to prepare the car for delivery. The dealer

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is told to 'Use this form as a guide to inspect and prepare this new Plymouth for delivery.' It specifies 66 separate items to be checked, tested, tightened or adjusted in the course of the servicing, but dismantling the vehicle or checking all of its internal parts is not prescribed. The guide also calls for delivery of the Owner Service Certificate with the car.

This certificate, which at least by inference is authorized by Chrysler, was in the car when released to Claus Henningsen on May 9, 1955. It was not made part of the purchase contract, nor was it shown to him prior to the consummation of that agreement. The only reference to it therein is that the dealer 'agrees to promptly perform and fulfill and terms and conditions of the owner service policy.' The Certificate contains a warranty entitled 'Automobile Manufacturers Association Uniform Warranty.' The provisions thereof are the same as those set forth on the reverse side of the purchase order, except that an additional paragraph is added by which the dealer extends that warranty to the purchaser in the same manner as if the word 'Dealer' appeared instead of the word 'Manufacturer.'

The new Plymouth was turned over to the Henningsens on May 9, 1955. No proof was adduced by the dealer to show precisely what was done in the way of mechanical or road testing beyond testimony that the manufacturer's instructions were probably followed. Mr. Henningsen drove it from the dealer's place of business in Bloomfield to their home in Keansburg. On the trip nothing unusual appeared in the way in which it operated. Thereafter, it was used for short trips on paved streets about the town. It had [32 N.J....

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