Beauchamp v. Wilson

• Decision Date: 25 October 1973
• Docket Number: No. 2,CA-CIV,2
• Citation: 21 Ariz.App. 14,515 P.2d 41
• Parties: Raymond L. BEAUCHAMP and Nina Jean Beauchamp, his wife, Appellants, v. Clarence J. WILSON and Florence Wilson, his wife; Clarence Wilson and Florence Wilson, his wife, doing business as Wilson Motors; R. Gary Gibson and Marguerite Gibson, his wife; International Harvester Company, a corporation; General Insurance Company of America, a Washington corporation; United States Fidelity and Guaranty Company, a Maryland corporation, appellees. 1286.
• Court: Arizona Court of Appeals

Page 41

515 P.2d 41

21 Ariz.App. 14

Raymond L. BEAUCHAMP and Nina Jean Beauchamp, his wife, Appellants, v. Clarence J. WILSON and Florence Wilson, his wife; Clarence Wilson and Florence Wilson, his wife, doing business as Wilson Motors; R. Gary Gibson and Marguerite Gibson, his wife; International Harvester Company, a corporation; General Insurance Company of America, a Washington corporation; United States Fidelity and Guaranty Company, a Maryland corporation, appellees.

No. 2 CA-CIV 1286.

Court of Appeals of Arizona, Division 2.

Oct. 25, 1973.

Rehearing Denied Nov. 20, 1973.

Review Denied Dec. 18, 1973.

Donald C. Cox, Eloy, for appellants

Stanfield, McCarville, Coxon & Ishmael, by Thomas A. McCarville, Casa Grande, for appellees Clarence J. Wilson, and Florence Wilson dba Wilson Motors, R. Gary Gibson, and United States Fidelity & Guaranty Co.

Jennings, Strouss & Salmon, by John S. Hobbs, Phoenix, for appellees International Harvester Co. and General Ins. Co. of America.

OPINION

HATHAWAY, Chief Judge.

Appellants, Plaintiffs below, were the purchasers of a 'tractor' (a diesel truck that pulled semi-trailers). They sued International Harvester, manufacturer of the tractor, the Wilsons, owners of Wilson Motors, the company which sold the tractor to them, the Gibsons, (Mr. Gibson was sales manager of Wilson Motors) and their respective bonding companies. The case was tried to a jury which returned a verdict in favor of all defendants and after denial of their motion for a new trial, the plaintiffs appeal.

The pertinent allegations of the plaintiffs' complaint were that: On December 22, 1967, they purchased the subject tractor upon the express representation that it was 'the latest thing out'; they took delivery of the tractor on or about January 10, 1968; the plaintiff-husband did not operate the tractor until on or about April 4, 1968, and after he commenced operating it, discovered it had defects and was not the latest thing out; the tractor was to be well-suited for the purposes for which it was to suited for the purposes for which it was to be used; plaintiff-husband advised the defendants was told to keep operating the tractor and then bring it back to see if work previously done was adequate'; there were many breakdowns and lost time, resulting in damage to the plaintiffs as a result of the breach of express and implied warranties; the plaintiffs relied on the defendants' continuing representation that the tractor was 'the latest thing out' and that it could be repaired and made operable, which was not done; and the plaintiffs had rescinded the contract of sale and demanded the return of all monies paid by them.

The prayer for relief requested that the contract of sale be rescinded, that the defendants return all money paid by the plaintiffs, and that plaintiffs have damages in a reasonable sum for the breach of warranty. It is interesting to note that the caption of the complaint reads 'Fraud, Deceit, Misrepresentation and Breach of Warranty'. The plaintiffs' complaint, however, despite any liberality in which we may indulge as to construction of pleadings, falls far short of satisfying the requisite averments for pleading fraud.

Although this lawsuit was instituted in December, 1968, the case was not tried until April, 1972. At the conclusion of the pretrial conference, the court made an order with reference to exchange of exhibits, prospective witnesses and updating interrogatories; further, pursuant to stipulation of counsel, no further pretrial order would be required. Thus we see that the record contained no pretrial order in accordance with Rule 6(c), Uniform Rules of Practice, 17A A.R.S. We therefore presume that the issues of fact to be litigated at the trial were those formed by the pleadings. Four days prior to trial, plaintiffs filed a document captioned 'Notice of Intent to Claim Punitive Damages', requesting leave of court to claim punitive damages at trial.

At the conclusion of the trial, the court did instruct the jury as to fraud, breach of warranty, innocent misrepresentation, and rescission. However, it declined to instruct the jury on struct liability in tort, punitive damages, and violation of the Consumer Fraud statutes.

The following evidence was presented at trial. In November, 1967, Mr. Beauchamp approached Mr. Gibson, sales manager for Wilson Motors, concerning the purchase of a truck and requested brochures on the various models. He later returned and informed Mr. Gibson as to the type of truck he was seeking and the type of goods he intended to haul, namely, aluminum products, and that he would be hauling from Casa Grande to San Diego. Wilson Motors was not an authorized dealer of large diesel trucks, and Mr. Gibson had never sold one prior to the time in question. Beauchamp knew that Wilson Motors did not handle this type of truck in their normal business, but instructed Gibson as to what he wanted in hopes that something could be found.

In the latter part of December, 1967, Gibson located a truck at Hamilton Motors in Tucson and both he and Beauchamp went to Tucson to inspect the truck. Beauchamp inspected the truck and according to Gibson (which was denied by Beauchamp) the line setting ticket which contained a list of all the major parts of the truck and the date of manufacture was with the truck and they both went over the list to see what equipment was on the truck.

On December 22, 1967, the contract of sale was executed--the purchase price was $26,779.92, of which $18,677.00 was to be financed. At that time, Beauchamp's father, who was present, inquired if there was a newer model than this about to come out. According to Beauchamp, Gibson responded not so far as he knew, and that the truck 'was the latest thing coming out'. According to Gibson, however, he never used the expression, 'the latest thing out' but simply responded that it was a new truck. The contract for sale designates the truck as being a new 1968 model. The truck was actually manufactured in 1966, but since trucks do not come out in regular model years as do automobiles, the policy of International Harvester and the trucking industry was to use the year the model was sold as the 'model year'. This policy was registered with the Motor Vehicle Department of every state and the federal government.

In January, 1968, Mr. Beauchamp received his line setting ticket, together with his warranty. The ticket reflected that the date of manufacture was 1966, but Beauchamp admitted that he did not read it. He made no extensive use of the truck until April, 1968, at which time he had driven it about 3,046 miles. In April, he commenced long-distance hauling under a contract with a transport company and while on a trip during that month, had to have the vehicle repaired in Nebraska. The repair work was done under warranty and at that time he learned of the 1966 date of manufacture. From April 4, 1968 until October 13, 1968, during which Mr. Beauchamp drove approximately 77,000 miles, numerous problems arose with the truck, most of which were repaired under the International Harvester warranty, although Beauchamp expended about $800.

In October, the engine froze and Beauchamp took it to International Harvester in Phoenix for repairs. The cost of repairs was $1,200 which was not covered by warranty, but International Harvester agreed to waive the repair charge if Beauchamp paid two delinquent payments of $612.19 each. Beauchamp did not have the money for the payments and he felt that he should be able to take the truck to see if they had fixed it, and catch up on the payments later. This was not acceptable to International Harvester, so Beauchamp 'decided the truck wasn't any good' and demanded the return of his money. There was some discussion concerning a new truck with a trade-in on the old one and Beauchamp finally told International Harvester that 'they could keep' the truck.

Mr. Beauchamp admitted that he relied on his own judgment as well as Gibson in deciding whether or not he wanted to buy the truck and that he signed the sales agreement, which included the warranty, without reading any of it except the part relating to his payments and the interest.

Appellants enumerate various grounds for reversal which appellees have characterized as a 'shotgun approach'. Appellants' response to this characterization is that a shotgun is the proper weapon when there is a 'covey of errors'. We are of the opinion, after reviewing the record, that appellants' weapon is loaded with blanks.

We find no error, as contended by appellants, in the court's refusal to instruct on strict liability in tort. Mr. Beauchamp purchased a truck which he claimed did not function properly and therefore he sought to recover his commercial losses, namely lost profits and a refund of the money he paid. The 'defects' did not cause physical harm to persons or property. Under these circumstances, the doctrine of strict liability in tort is not applicable....