Baxter v. Ford Motor Co.

• Decision Date: 24 September 1934
• Docket Number: 25169.
• Parties: BAXTER v. FORD MOTOR CO.
• Court: Washington Supreme Court

35 P.2d 1090

179 Wash. 123

BAXTER v. FORD MOTOR CO.

No. 25169.

Supreme Court of Washington

September 24, 1934

Department 2.

Appeal from Superior Court, Lewis County; Geo. D. Simpson, Judge.

Action by San Baxter against the Ford Motor Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Battle Hulbert & Helsell, Whittemore & Truscott, and Harold A Seering, all of Seattle, for appellant.

J. O Davies, of Centralia, for respondent.

HOLCOMB Justice.

This case has been in this court Before , and is reported in 168 Wash. 456, 12 P.2d 409, 15 P.2d 1118, 88 A. L. R. 521. For the issues, see the former opinion.

The action was instituted against Ford Motor Company, a corporation, and the St. Johns Motors, a corporation, and upon the previous trial, at the conclusion of the evidence on behalf of plaintiff, a judgment of dismissal was entered in favor of both defendants. That judgment was appealed from by the plaintiff and resulted in an affirmance as to St. John Motors, thereby releasing it from liability, and reversal as to the present appellant.

The case was retried on June 27 and 28, 1933. The jury returned a verdict in favor of the present respondent upon which, after a denial of motions for judgment non obstante veredicto, or for a new trial, judgment was entered.

No contention is now made by appellant that the evidence on behalf of respondent on the retrial is substantially different than that on the first trial.

A motion made by respondent to dismiss this appeal which was passed to the merits for determination is now denied as not well founded.

In addition to the evidence that had been offered and received on the former trial, respondent testified to an entire lack of experience and an absence of familiarity with nonshatterable glass which would enable him to recognize that the glass in the windshield on the car purchased by him from St. John Motors was other than what it was represented to be, and that in purchasing the car he relied on the representations concerning the nonshatterability of the windshield made in the catalogues of appellant. This was received to conform to our decision that such testimony was competent.

In the former decision we held that it was for the jury to determine, under proper instructions, whether the failure of respondent Ford Motor Company to equip the windshield with glass which did not fly or shatter, was the proximate cause of appellant's (now respondent's) injury.

In that decision we held that, in an action for breach of warranty of nonshatterable glass in a windshield, catalogues and printed statements furnished the dealer for sales assistance are admissible against the manufacturer, although there was no privity of contract, since the falsity of the representations could not be readily detected, and that, in an action for a breach of warranty of nonshatterable glass in a windshield, plaintiff is entitled to show his absence of familiarity with nonshatterable glass, and that he had had no experience enabling him to recognize the difference between it and ordinary glass.

At the commencement of the retrial, appellant moved to file an amended answer, presented to the trial court for the first time on that day, in which it sought to set up in its pleadings an affirmative defense to the effect that it was not liable in this case by reason of the contract which existed between it and St. John Motors, the dealer, and by reason of the contract of sale entered into between respondent and St. John Motors at the time of the purchase of the automobile in question. Both of these contracts were Before this court on the prior appeal, and this appellant, on that appeal, contended that it was not liable to this respondent by reason of the legal effect of the two contracts between it and St. John Motors. The legal effect of those two contracts was extensively argued on that appeal, to which contention this court answered:

'When the car was sold to appellant, a written purchase order was entered into between the seller and the purchaser. Ford Motor Company was not a party to this agreement. Certain reading matter was printed on the back of the purchase contract, which printing purported to tell what constituted the Lincoln Motor Company warranty and the Ford Motor Company warranty. There was nothing in connection with the sales agreement which indicates that either the Lincoln Motor Company warranty or the Ford Motor Company warranty there set forth was made to, or accepted by, appellant or any other person.

'The instrument in question was devoid of any provision which would have given appellant the right to sue the Lincoln Motor Company or the Ford Motor Company, if privity of contract be a condition precedent to a suit predicated on misrepresentations perpetrated by a manufacturer upon the public, resulting in the sale of products put forth as possessing qualities which the victim of such misrepresentations later discovers, to his damage, were lacking. Hence respondent Ford Motor Company cannot successfully maintain that, so far as appellant is concerned, its warranties to appellant were set forth in the purchase agreement between appellant and the respondent dealer.' 168 Wash. 456, 12 P.2d 409, 410, 15 P.2d 1118.

The trial court refused leave to file the amended answer at that time, probably because of that part of our decision above quoted.

Appellant assigns eight errors as grounds for reversing the verdict and judgment, the principal of which devolves upon the question of whether or not our former decision should be overruled. Cases are cited from state, United States, and federal courts, to the effect that an appellate court by such former decision does not preclude itself from doing justice between the parties if it should be convinced that its former decision...