Brothers v. Surplus Tractor Parts Corp., 12272

Decision Date27 February 1973
Docket NumberNo. 12272,12272
Citation506 P.2d 1362,30 St.Rep. 265,161 Mont. 412
PartiesWilliam L. BROTHERS, Plaintiff and Respondent, v. SURPLUS TRACTOR PARTS CORPORATION, Defendant and Appellant.
CourtMontana Supreme Court

Poore, McKenzie & Roth, Allen R. McKenzie, argued, Butte, for defendant and appellant.

Corette, Smith & Dean, Gerald R. Allen, argued, Butte, for plaintiff and respondent.

DALY, Justice.

This is an appeal from a judgment entered for plaintiff William L. Brothers in the amount of $3,500, on a jury verdict in the district court of the second judicial district, county of Silver Bow. From that judgment and from the court's denial of a new trial, defendant Surplus Tractor Parts Corporation appeals.

The action was brought to recover damages for claimed defective replacement tractor parts. Initially, the action was brought on a tort theory of negligence which was enlarged during the course of trial to include an additional contract theory of breach of warranty.

Defendant Surplus Tractor Parts Corporation hereinafter called Surplus, has assigned four grounds of error:

1. The trial court erred in allowing a variance between the claim pleaded, which was based on negligence, and the claim relied on at trial, which was based on breach of warranty.

2. The trial court erred in submitting jury instructions which were based on both theories and were conflicting, inconsistent and confusing.

3. The trial court erred in refusing to grant a new trial.

4. The evidence was not sufficient to justify the verdict on either contract or tort liability, or the amount of damages.

In September 1968, plaintiff William L. Brothers, hereinafter called Brothers, purchased from Surplus fourteen new rollers and other related tractor parts to be used as replacement parts on his TD 24 Tractor, at a total cost of $3,000, including freight. Borthers claimed to have installed and lubricated the rollers in accordance with competent mechanical practice. Surplus claimed that both the installation and lubrication were faulty.

Brothers claimed that after about 200 hours of operation, six of the rollers began leaking oil. He notified Surplus and received six new seals. Shortly after Brothers replaced the seals, the rollers again began to leak and he sent them back to Surplus for inspection. Upon the subsequent return of the rollers from Surplus, Brothers claimed they began leaking oil before they could be installed or used. Brothers then bought six rollers from another firm and installed them on his tractor.

At trial, Brothers testified that none of the rollers bought from the other firm were leaking oil after 900-1000 hours of use, but that seven of the eight remaining rollers purchased from Surplus were leaking oil. Brothers contended this kind of roller should last from 3000 to 4000 hours. He claimed total damages of over $9,000 due to the defective rollers and the consequential loss of employment while the tractor was inoperable.

The trial court issued seventeen instructions to the jury, including stock instructions. We will briefly examine the instructions relevant to assignment of error No. 2, in general terms.

Instruction No. 4 defines negligence and raised contributory negligence.

Instruction No. 5 defines contributory negligence.

Instruction No. 6 defines proximate cause.

Instruction No. 8 is a short statement about warranty.

Instruction No. 9 is a short statement on express warranty.

Instruction No. 10 reads: 'You are instructed that in this case the plaintiff seeks to establish liability by showing a breach of warranty. A breach of warranty may be established without proof of negligence on the part of the defendant.'

Instruction No. 11 instructs that there is an implied warranty of merchantablity in this case.

Instruction No. 12 instructs that plaintiff and defendant are bound by express warranty in defendant's catalogue.

Instruction No. 13 instructs that if improper use of the rollers is found, plaintiff cannot recover under breach of warranty.

Instruction No. 14 on damages reads:

'You are instructed that the measure of damages arising from the breach of an obligation arising from contract is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.'

Instruction No. 15 reads:

'The law does not permit you to guess or speculate as to the cause of the damage to the tractor parts in question. If the evidence is equally balanced on the issue of negligence or proximate cause, so that it does not preponderate in favor of the plaintiff, then he has failed to fulfill his burden of proof.

'To put the matter in another way, if after considering all the evidence, you should find that it is just as probable that either the defendant was not negligent, or if it was, that its negligence was not a proximate cause of the accident, as it is that some negligence on its part was such cause, then the case against the defendant has not been established and your verdict must be for the defendant.'

Instruction No. 16 reads:

'The resonable cost of repairs necessary to restore the property to the condition it was in immediately before the damage, and the reasonable value of loss of use pending repairs, are the determining factors in arriving at the amount of damages.

'It is only the reasonable and necessary cost of making such repairs, within a reasonable period of time after the damage occurred, that can be allowed; and the repairs allowable are only those which are actually necessary to put the property back into as good condition as it was before the damage occurred. The owner is not entitled to have the property put back into better condition than before the damage. Nor is the owner entitled to be compensated for loss of use beyond the time reasonably required to complete the necessary repairs.'

In light of the evidence presented at trial and considering the effect the instructions would have one the understanding of an would have on the understanding nations of fact he was required to make in arriving at a verdict, we find merit in the second assignment of error. Montana law pertaining to error in jury instructions as it has been construed by this Court is that the test of a jury instruction is not what the ingenuity of counsel for appellant can make of it, but rather the ordinary understanding of the instructions taken as a whole. Long v. Byers, 142 Mont. 46, 381 P.2d 299. That is the general rule. Here, we find the jury instructions, taken as a whole, to be inconsistent and contradictory to each other to a degree that would confuse the average juryman and require reversal.

Respondent Brothers contends in his brief: ...

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11 cases
  • Sherry v. Asing
    • United States
    • Hawaii Supreme Court
    • February 5, 1975
    ...terms and denote the same standard of care, and these terms are hereinafter used in such manner.10 Brothers v. Surplus Tractor Parts Corporation, 161 Mont. 412, 506 P.2d 1362 (1973); Smith Development Corp. v. Bilow Enterprises, Inc., R.L., 308 A.2d 477 (1973); West Virginia Department of H......
  • In re TC, No. 01-318
    • United States
    • Montana Supreme Court
    • December 13, 2001
    ...an adequate opportunity to prepare her case on the new issues raised by the amended pleadings. See Brothers v. Surplus Tractor Parts Corp. (1973), 161 Mont. 412, 418, 506 P.2d 1362, 1365. ¶ 23 Generally, a district court cannot grant leave to amend the pleadings arbitrarily or perfunctorily......
  • Bates v. Neva
    • United States
    • Montana Supreme Court
    • September 3, 2013
    ...the uncommon situation when an issue not pled is tried by the “parties' express or implied consent.” Brothers v. Surplus Tractor Parts Corp., 161 Mont. 412, 418, 506 P.2d 1362, 1365 (1973). In order to find that an issue was litigated by “implied consent,” the other party must be “put on no......
  • McJunkin v. Kaufman and Broad Home Systems, Inc.
    • United States
    • Montana Supreme Court
    • February 11, 1988
    ...of pleadings does not grant counsel carte blanche to advance new theories on an unsuspecting opponent. In Brothers v. Surplus Tractor Parts Corp. (1973), 161 Mont. 412, 506 P.2d 1362, we cautioned counsel in this state that any reliance on the liberality of the courts in granting amendments......
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