General Motors Corp. v. Tate

Decision Date09 December 1974
Docket NumberNo. 74--133,74--133
Citation516 S.W.2d 602,257 Ark. 347
CourtArkansas Supreme Court
Parties, 15 UCC Rep.Serv. 1094 GENERAL MOTORS CORPORATION and Scudder Chevrolet, Inc., Appellants, v. Thomas Allen TATE, Administrator of the Estate of Marcelyn C. Tate, Deceasedand Thomas Allen Tate, Individually, Appellee.

Barber, McCaskill, Amsler & Jones, Little Rock, for appellants.

Hall, Tucker & Lovell, Benton, for appellee.

FOGLEMAN, Justice.

On this appeal the granting of a new trial after a successful defense of a wrongful death action is brought into question. Review here is complicated by our inability to ascertain the ground or grounds upon which the motion was granted. Ordinarily, the trial court has a wide latitude of discretion in granting or refusing a new trial. Security Insurance Co. v. Owen, 255 Ark. 526, 501 S.W.2d 229; Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S.W.2d 724. We do not reverse such an order in the absence of an abuse of that discretion that is manifest or clearly shown. Security Insurance Co. v. Owen, supra; Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815. Furthermore, the showing of abuse of discretion must be much stronger where, as here, the appeal comes from an order granting a new trial than when a denial is involved. Security Insurance Co. v. Owen, supra. We have said that when an order granting a new trial is expressed in general terms without a specification of grounds, it must be affirmed if it can be supported on any ground alleged in the motion. Missouri Pacific Railroad Co. v. Clark, 246 Ark. 824, 440 S.W.2d 198. Hall v. W. E. Cox & Sons, 202 Ark. 909, 154 S.W.2d 19. The motion specified six grounds. The order granting the new trial simply recited that 'it is the opinion of this court that justice would best be served by the granting of a new trial. . . .' Although we are committed to a review of all grounds of a motion for new trial in such a case to ascertain whether it can be sustained on any grounds, appellee argues that the granting of the motion could be justified on any one of three grounds. No reliance is placed upon any of the other grounds. Those three are:

I The trial court erred in refusing a jury instruction requested by appellee which would have permitted him to recover for breach of warranty.

II The trial court erred in refusing to give a jury instruction requested by appellee which would have permitted him to recover upon the basis of strict liability.

III The verdict was not sustained by substantial evidence.

We are confident that appellee would present any other ground upon which he felt that the order could possibly be sustained. Consequently we will review only those grounds which appellee feels are justification for granting this motion. As we do so, we must also consider that it is an abuse of discretion to set aside a jury verdict without reasonable cause. Ellsworth Brothers Truck Lines v. Mayes, supra.

Thomas Allen Tate brought this action against appellant General Motors Corporation and Scudder Chevrolet, Inc. in his capacity as personal representative of his deceased wife, Marcelyn C. Tate in his own right. He sought damages for wrongful death on behalf of the estate and next of kin and for his own personal injuries. He alleged causes of action against General Motors based upon strict liability, breach of warranty and negligence. His complaint against Scudder Chevrolet, Inc., the automobile dealer, was based upon breach of warranty and negligence.

Before their marriage, Tate's wife purchased a 1966 Model Chevrolet Caprice from Chalmers Precise, Jr. about December 18, 1969. Title was placed in Tate and his wife after their marriage. Precise had purchased the automobile, manufactured by General Motors, from Scudder Chevrolet, Inc. on December 13, 1965. Marcelyn C. Tate was fatally injured and Thomas A. Tate injured, on June 2, 1972, when the vehicle, being driven by Tate, went out of control and crashed into a highway sign on Interstate Highway 30 in Saline County. Appellee alleged that the injuries were attributable to an unusual and uncontrolled acceleration of the automobile resulting from a rotation of the vehicle's engine caused by failure of defective engine mounts. Appellant pleaded the statute of limitations and alleged that Tate's own negligence was the proximate cause of the injuries.

At the conclusion of the evidence on behalf of appellee, the dealer's motion for a directed verdict was granted. The grounds for the motion were that there was no evidence of negligence on its part and that the cause of action on breach of warranty was barred by the statute of limitations. Appellant's motion upon the same grounds was denied. Appellant's motion for a directed verdict at the conclusion of all the evidence was likewise denied.

The case went to the jury upon the question of negligence only, the circuit judge having refused to submit the issues of breach of warranty and strict liability by refusing instructions requested by appellee on those issues. A unanimous verdict for appellant was returned. After a hearing on appellee's timely motion for new trial, the circuit judge took the motion under advisement. Later, he advised the parties of his opinion by letter. Thereafter, he denied appellant's motion for a specification of the grounds for granting the motion and entered an order setting aside the jury verdict and granting a new trial upon the vague and general grounds hereinabove set out. By way of clarification the court entered an order stating that the granting of the new trial did not apply to Scudder, but that the directed verdict in its favor should stand. Appellant's motion for a specification of the grounds upon which the motion for new trial was granted was denied.

Turning now to the three potential bases for the circuit judge's action, we will discuss them in order.

I

Appellant has contended throughout that any cause of action appellee might have had was barred by the statute of limitations. On the other hand, appellee contends that the cause of action was not barred and that the statute of limitations did not begin to run until the breach was discovered. The parties agree that appellee's allegations and proof constituted the assertion of a cause of action for breach of an implied warranty. They also agree that this cause of action accrues when the breach occurs and the breach occurs when tender of delivery is made. See Ark.Stat.Ann. § 85--2-- 725 (Add.1961). The tender of delivery, insofar as appellant is concerned, was on the date of the sale by the dealer, Scudder Chevrolet Co., to Precise, i.e., December 13, 1965. This action was brought on December 21, 1972. It is evident that more than five years intervened. The action was clearly barred by the failure to bring the action within four years after the cause of action accrued as required by Ark.Stat.Ann. § 85--2--725, unless the action fell within the exception stated in Ark.Stat.Ann. § 85--2--725(2). That subsection states that a breach of warranty occurs when tender of delivery is made except when a 'warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.' It does not seem logical that the Code intended that an implied warranty be explicitly extended to future performance. The words 'explicit' and 'implied' are contradictory. 'Explicit' has been defined as meaning express, not implied. Webster's Third New International Dictionary; Webster's New International Dictionary, Second Edition; The Random House Dictionary of the English Language, Unabridged Edition. The exception relied upon by appellee is immediately preceded by the statement that the cause of action accrues when the breach occurs, regardless of lack of knowledge of the breach. It could not have been intended that an implied warranty be an exception, where injury results from a defect in goods, to the general rule. See White-Summers, Handbook on Uniform Commercial Code 341, § 11--8; Anderson, Uniform Commercial Code, 2d Ed. 563, § 2--725:24. Other jurisdictions have rejected the contention made by appellee. Ohio-Val Decker Packing Co. v. Corn Products Sales Co. (6 Cir. 1969) 411 F.2d 850; Everhart v. Rich's, Inc., 128 Ga.App. 319, 196 S.E.2d 475 (1973); Constable v. Colonie Truck Co., 37 A.D.2d 1011, 325 N.Y.S.2d 601 (1971); Moody v. Sears, Roebuck & Co., 324 F.Supp. 844 (D.C., Ga., 1971). See also, Mendel v. Pittsburgh Plate Glass Co., 57 Misc.2d 45, 291 N.Y.S.2d 94 (1967). This conclusion is also consistent with pre-code law in Arkansas. Peterson v. Brown, 216 Ark. 709, 227 S.W.2d 142. We do not see how the statute can be construed to bring this action within the exception to the applicable four year statute of limitations, so appellee's cause of action was clearly barred. In spite of the circuit judge's concern about his failure to submit the cause of action on breach of warranty to the jury, expressed when he took the motion for new trial under advisement, a new trial was not granted against the automobile dealer. It seems to us that the same evidence and the same warranty applied to both the dealer and the manufacturer. Be that as it may, the failure to give the requested instruction could not have afforded a basis for granting a new trial.

II

Appellee contends that Act 111 of 1973 (Ark.Stat.Ann. § 85--2--318.2 (Supp.1973)) providing for strict liability was applicable to this case in spite of the fact that the cause of action accrued and the action was commenced prior to the effective date of the act. We had steadfastly refused to adopt the doctrine of strict liability in cases such as this by judicial action. Appellee contends that the legislative act providing for strict liability was intended to have retrospective effect as shown by a clause stating that it is remedial in nature. Furthermore, says appellee, the act did not create new...

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