Black v. Don Schmid Motor, Inc., 53947

Citation657 P.2d 517,232 Kan. 458
Decision Date14 January 1983
Docket NumberNo. 53947,53947
Parties, 35 UCC Rep.Serv. 448 B. Steven BLACK, Appellee, v. DON SCHMID MOTOR, INC., Appellant, v. PEUGEOT MOTORS OF AMERICA, INC., Appellee, v. NATIONAL BANK OF WICHITA, Intervenor.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. Under the Uniform Commercial Code the purchaser of a motor vehicle who seeks to enforce a revocation of his acceptance pursuant to K.S.A. 84-2-608 must establish (1) the nonconformity of the vehicle, (2) the needs and circumstances of the purchaser, and (3) that the nonconformity in fact substantially impairs the value of the vehicle to the purchaser.

2. In an action where the purchaser of a motor vehicle seeks to enforce the revocation of his acceptance of a vehicle, the nonconformity of the vehicle, the needs and circumstances of the purchaser, and substantial impairment of value of the vehicle to the purchaser are all issues to be determined by a trier of fact.

3. A seller's repeated failure to repair defects in a vehicle may constitute a nonconformity which substantially impairs the value of the vehicle to the purchaser, entitling him to seasonably revoke acceptance of the vehicle pursuant to K.S.A. 84-2-608.

4. To establish a breach of the implied warranty of merchantability under K.S.A. 84-2-314(2)(c) a buyer must show the goods were defective and the defect existed at the time of the sale.

5. A breach of implied warranty may be proved by circumstantial evidence.

6. A pretrial order should be liberally construed to cover any possible legal or factual theories that might be embraced in its language.

7. Under K.S.A. 60-251(b) Where no objection is made to an instruction it becomes the law of the case unless clearly erroneous.

8. Where damages result from the seller's failure or refusal to repair goods rather than from any manufacturing defect in the goods, the seller's right to indemnity against the manufacturer for breach of warranty is barred.

9. Error cannot be predicated on the refusal to give an instruction when its substance is adequately covered in other instructions. If the instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal.

10. The determination whether the probable effect of an instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends upon all the circumstances of the case, including a consideration of all the evidence.

11. An award of attorney's fees to a prevailing party under the Magnuson-Moss Federal Warranty Act, 15 U.S.C. § 2310(d)(2), is within the discretion of the trial court.

Paul Arabia, Wichita, argued the cause, and J. Larry Linn, Wichita, was with him on the brief for appellant.

C. Robert Bell, of C. Robert Bell, P.A., Wichita, argued the cause and was on the brief for appellee B. Steven Black.

Ron Campbell, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on the brief for appellee Peugeot Motors of America, Inc.

SCHROEDER, Chief Justice:

This action was filed by B. Steven Black (plaintiff-appellee) against Don Schmid Motor, Inc. (defendant-appellant), hereinafter referred to as Schmid, seeking to revoke acceptance of a 1977 Peugeot automobile purchased from Schmid for breach of express and implied warranties. In addition to recovery of the purchase price and consequential damages, the plaintiff sought damages under the Magnuson-Moss Federal Warranty Act, 15 U.S.C. § 2301 et seq., and the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. Schmid timely filed a third-party action against its seller, Peugeot Motors of America, Inc. (third-party defendant-appellee), seeking indemnification for any judgment against Schmid. The jury found the plaintiff was entitled to revoke acceptance of the automobile and recover the purchase price plus $3,471.15 in consequential damages. The jury further found that Peugeot was not liable to Schmid for any part of the judgment awarded to the plaintiff. Numerous trial errors are asserted by Schmid on appeal.

Initially the following facts are pertinent. In February 1978 the plaintiff entered into negotiations with the defendant for the purchase of a 1977 Peugeot automobile. The car had previously been driven by a Peugeot factory representative and had 22,967 miles registered on it. A salesman for Schmid told the plaintiff that because the car had been driven by a representative of Peugeot and had been properly maintained during that time, the car would be warranted as if new and would be given a standard "12 months or 12,000 mile" warranty. The sales order for the car, signed by a sales manager for Schmid, stated "Warranty to 2-16-79 or twelve thousand miles whichever comes first." The plaintiff purchased the car on February 22, 1978, for $8,028.85.

Within a few short weeks the plaintiff began to experience the first of many problems with the car. He noticed that the transmission was leaking fluid and returned the car to Schmid to have the leak repaired. They indicated a small leak was found and had been fixed. A short time later the plaintiff noticed the transmission was again leaking and the transmission made noise when turning corners. The plaintiff again took the car to Schmid for repairs and assumed the problems had been fixed.

A couple of weeks later the plaintiff noticed the leak in the transmission was worse. In addition, the accelerator would stick when the car was driven over 40 miles per hour, the radio began to malfunction, and the air conditioner would leak cold water when the car turned corners. The plaintiff took the car to Schmid and talked to a Schmid salesman about these problems. When the plaintiff went to retrieve the car two or three days later the car would not accelerate when the plaintiff pressed on the gas pedal. It was discovered that some linkage on the accelerator had not been reconnected. While driving home the plaintiff discovered that the problems had not been repaired; the car still accelerated by itself and the transmission still made noises. When he arrived at home the plaintiff called Mr. Don Schmid to express his anger over the continued failure of Schmid to repair the car. Mr. Schmid told the plaintiff that he had a business to run, that mechanics were expensive and hard to find, and that he did not have time to talk to every dissatisfied customer.

In addition to the persisting problems with the transmission, radio and accelerator, other problems emerged. The thermostat for the air conditioner did not work and a warning light for the exhaust gas recirculating system (EGR) on the dashboard stayed on all the time. For the fourth time the plaintiff took the car to Schmid with a list of these problems. The service writers "got a little angry" with him because the car had been brought in so often. The plaintiff told the service personnel that he had been told the transmission sounded like it did not have adequate fluid in it. However, when Schmid's employees attempted to check the fluid they could not find the transmission dipstick and had to be shown where it was by the plaintiff.

The car remained at Schmid's for several days. The plaintiff was told that they were having trouble finding out what the problem was with the EGR light and were checking with Peugeot about it. When the plaintiff picked the car up he was told everything had been fixed except the radio, which was not covered by warranty. Much to the plaintiff's chagrin, he again realized none of the problems had been corrected. When he arrived home he noticed the inside car lights did not come on and discovered that a group of wires had been pulled out of a box under the dashboard. The transmission leak was getting much worse and the plaintiff resorted to carrying transmission fluid in the trunk of the car. The plaintiff testified that every time he added fluid the transmission would be empty again and would need to be refilled within a day or two. The problems with the radio and air conditioner also continued.

In July 1978, five months after the car was purchased, the plaintiff took it to Schmid to be repaired for the fifth time. He left a list of all the problems he was having with the car. Three or four days later the plaintiff was told the car was ready. While driving the car back to work the clutch on the air conditioner fell out of the car onto the highway. Upon arriving at work the plaintiff called his attorney. He testified he has not driven the car since. This action for revocation of acceptance was subsequently filed. Conflicting evidence was presented indicating the plaintiff had driven the car between 5,300 and 7,000 miles since purchasing it. Additional evidence will be discussed as it becomes necessary.

The appellant first contends that the evidence presented was insufficient to support the jury's determination that the plaintiff was entitled to revoke his acceptance of the Peugeot automobile. Revocation of acceptance is a remedy provided by K.S.A. 84-2-608 which allows a buyer to rescind his purchase of defective or nonconforming goods. K.S.A. 84-2-608 reads:

"(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it

"(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or

"(b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

"(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

"(3...

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