Century Dodge, Inc. v. Mobley, s. 59850
| Decision Date | 16 October 1980 |
| Docket Number | Nos. 59850,59851,s. 59850 |
| Citation | 272 S.E.2d 502,155 Ga.App. 712 |
| Parties | , 30 UCC Rep.Serv. 844 CENTURY DODGE, INC. v. MOBLEY. MOBLEY v. CENTURY DODGE, INC. |
| Court | Georgia Court of Appeals |
Phillip T. Raymond, III, Gainesville, Warren C. Grice, O. Hale Almand, Jr., Macon, for appellant.
Lawton Miller, Jr., Macon, for appellee.
Mobley purchased a new car from Century Dodge, Inc. (hereafter Century) and thereafter discovered the car had been involved in an accident. Unable to resolve his differences with Century, Mobley filed a four-count complaint. The court directed a verdict in favor of Century on Counts 1, 2 and 4; Mobley obtained a jury verdict on Count 3, which alleged fraud in the sale of the car. He was awarded general damages, punitive damages and attorney fees. Century appealed, enumerating several errors; Mobley filed a cross-appeal, contending it was error for the trial court to dismiss Counts 1, 2 and 4.
1. Century's first enumeration of error is that the trial court erred by allowing the transcript of former testimony of a witness to be read into evidence without a showing that the witness was inaccessible.
At the first trial of this case, which resulted in a mistrial, Gary Forbes, an Atlanta attorney, testified for Mobley. The only showing that Forbes was "inaccessible," as required by Code Ann. § 38-314, was a statement by Mobley's attorney that "on my previous dealings with Mr. Forbes he is almost, quote, inaccessible to get down here ..." There was no showing that Mobley or his attorney attempted to contact Forbes to determine his availability, or that they made any attempt to subpoena Forbes. As no attempt of any kind was made to obtain Forbes as a witness, there was no adequate showing that he was inaccessible; thus, it was error to allow the transcript of his testimony at a former trial to be read into evidence. Standridge v. Standridge, 224 Ga. 102, 103(4), 160 S.E.2d 377 (1968); Whatley v. State, 230 Ga. 523, 198 S.E.2d 176 (1973). As this error requires reversal, we need not discuss Century's remaining enumerations of error.
2. Mobley filed a cross-appeal, contending it was error for the trial court to grant a directed verdict as to Counts 1, 2 and 4. Count 1 alleged that Century breached an implied warranty of merchantability and fitness; Count 2 alleged a breach of an express warranty by Century, as a dealer that the automobile purchased by Mobley was a new car; and Count 4 alleged that Mobley rescinded the sales contract because of Century's fraud and suffered damage by this fraud. Each count, including Count 3 which alleged fraud and deceit, sought $1,750 general damages, $100,000 punitive damages and reasonable attorney fees. After a directed verdict was granted as to Counts 1, 2 and 4, the jury returned a verdict on Count 3 in favor of Mobley, awarding him $1,750 general damages, $3,575 punitive damages and $3,575 attorney fees.
Count 2 is a claim for breach of an express warranty that the car Mobley purchased was new, when in fact it had been involved in an accident. We are aware that the contract contained a disclaimer of all warranties, express or implied. We are also aware of the cases upholding such a provision and barring recovery for breach of contract (based on express or implied warranties) when the purchaser has acknowledged such a disclaimer by signing the contract. Attaway v. Tom's Auto Sales, 144 Ga.App. 813, 814, 242 S.E.2d 740 (1978); Harison-Gulley Chevrolet v. Carr, 134 Ga.App. 449, 450, 214 S.E.2d 712 (1975). Under those holdings a purchaser must rely on an action in...
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