Cox v. Galigher Motor Sales Co.
| Citation | 158 W.Va. 685,213 S.E.2d 475 |
| Decision Date | 08 April 1975 |
| Docket Number | Nos. 13300,13301,s. 13300 |
| Court | West Virginia Supreme Court |
| Parties | , 16 UCC Rep.Serv. 1390 Melvin H. COX v. GALIGHER MOTOR SALES COMPANY et al. (two cases). |
Syllabus by the Court
1. Where a party is not entitled to recover in any view of the evidence, a verdict should be directed for the adverse party.
2. 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Point 3, Syllabus, Walker v. Monongahela Power Company, 147 W.Va. 825 (131 S.E.2d 736) (1963).
3. 'A jury verdict based on conflicting testimony, involving the credibility of witnesses and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.' Point 1, Syllabus, Levine v. Headlee, 148 W.Va. 323 (134 S.E.2d 892) (1964).
4. The determination of whether a witness has sufficient knowledge of the matter in question so as to be qualified to give his opinion is largely within the discretion of the trial court and will not ordinarily be disturbed on appeal unless clearly and prejudicially erroneous.
Hudgins, Coulling & Brewster, Paul S. Hudgins, Bluefield, for Galigher Motor Sales.
Kay, Casto & Chaney, George S. Sharp, Charleston, for Ford Motor Credit Co. et al.
Hostler, Logsdon & Shinaberry, Sterl F. Shinaberry, Charleston, for appellee.
This case is before the Court on appeal from a final judgment order of the Circuit Court of McDowell County. Melvin H. Cox instituted a civil action in that court against defendants Galigher Motor Sales Company, a corporation; Ford Motor Company, a corporation; Ford Motor Credit Company, a corporation, and General Motors Corporation, a corporation, seeking damages allegedly resulting from a breach of warranty which necessitated costly repairs to a dump truck purchased by the plaintiff.
At the conclusion of a jury trial in the aforesaid action, the jury returned a verdict in favor of plaintiff Cox against defendants General Motors Corporation, Ford Motor Company and Galigher Motor Sales Company in the amount of $7,500.00; against Ford Motor Credit Company in the amount of $6,880.00; and against Ford Motor Company in the sum of $3,640.00. The plaintiff tendered a remittitur of $3,640.00, the sum of the separate verdict against Ford Motor Company, and that verdict was declared to be null and of no effect. General Motors and the plaintiff settled their differences and that defendant was dismissed and is no longer involved in this appeal. The motions of the remaining defendants to set aside the verdicts having been overruled, they prosecute this appeal.
In August, 1968 the plaintiff, Melvin H. Cox, purchased a new Ford dump truck from Galigher Motor Sales at the cost of $27,435.00. The body of the truck was manufactured by Ford Motor Company and the engine was a product of General Motors. Both Ford and General Motors gave Cox written warranties. The Ford warranty covered the truck and engine and the General Motors warranty covered the engine. The truck was sold to the plaintiff under a retail installment contract, which, after being executed by Cox, was assigned to Ford Motor Credit, hereinafter sometimes referred to as Credit Co., a wholly owned subsidiary of Ford Motor Company.
During the purchase negotiations the plaintiff informed the Galigher salesman of the purpose for which he proposed to use the truck and requested that an exhaust brake be installed similar to those on other trucks owned by him. Galigher, through its salesman, recommended the installation of a Jacobs brake, and according to the testimony of Cox, guaranteed the brake. This being agreeable to Cox a provision was inserted in the sales contract whereby Galigher agreed to install a Jacobs brake. The plaintiff took delivery of the truck in August and in October the Jacobs brake was installed by Galigher. Cox testified that he had never before owned or used a truck equipped with a Detroit diesel engine or a Jacobs brake and that in making this purchase he relied entirely upon the representations and guarantee of the salesman.
From the voluminous evidence adduced at the trial it appears clear that the truck was unsatisfactory from the time of purchase. Cox testified that prior to the installation of the Jacobs brake it used more oil than it should and that it lacked the power to haul the amount of coal for which it was designed. After the installation of that brake the consumption of oil became extremely excessive and the general performance of the truck continued to be particularly poor. One of the drivers employed by the plaintiff testified that he was the first driver of the truck and that he drove it for approximately one month during which it was This was prior to the installation of the Jacobs brake. Drivers who drove this truck subsequent to the installation of the brake testified that it had insufficient power, that it used excessive oil and that it was unsatisfactory for the purpose for which it was purchased.
The subject truck was returned to Galigher for necessary repairs on numerous occasions. On some of these occasions the repair work was performed under the warranty and on others Cox was required to pay. The truck finally became entirely in-operable and Cox requested Galigher to repair it. Galigher refused and referred him to Ray C. Call Company, a General Motors authorized agent. After making an examination of the truck, Call, stating that the engine had been abused, recommended that repairs be refused under the warranty.
Upon the refusal of Galigher and General Motors to repair the truck, Cox withheld further payments thereon. After the payments were two months in arrears a representative of Credit Co. approached Cox and requested payment. Cox testified that he told the representative that he had already written the checks for the past due payments and would deliver them when the truck was repaired. What transpired thereafter is in conflict. The plaintiff related that the credit representative asked permission to take the truck to Pikeville, Kentucky, where Galigher had a garage, for the needed repairs and that he acceded to that request. He further testified that several days after the truck was towed away he received a notice from Ford Motor Credit Company that the vehicle had been repossessed and would be sold at auction. Credit Co. denied that it had made any misrepresentation to Cox but maintained that the repossession was peaceful and therefore lawful. Upon learning of the intention of Credit Co. to sell the truck, the plaintiff instituted the subject action and was granted an injunction prohibiting the sale of the vehicle pending its outcome.
In addition to damages for the cost of repairs, the plaintiff seeks recovery for the replacement of parts and damage which he alleges were missing and occurred after the truck was removed from his lot by Credit Co. Cox and his brother Artie, who has had over twenty years experience as a truck mechanic and an owner and operator, testified that the cost of replacement of parts missing from the truck, after it was taken to Galigher's in Pikeville, would be between $2,000.00 and $3,500.00. In relation to damages sought, Artie Cox also testified that proper repair of the truck necessitated replacement of the engine with a new one and that in his opinion the cost thereof would be $7,500.00.
As hereinbefore noted the two verdicts to be considered on this appeal, both of which are in favor of plaintiff Cox, are (1) $6,880.00 against Ford Motor Credit Company and (2) $7,500.00 against Galigher Motors and Ford Motor Company. Our first consideration will be the appeal of Ford Motor Credit Company.
Ford Motor Credit Company filed a counterclaim against the plaintiff seeking recovery of the unpaid balance still due and owing on the truck. It was its position that it should have received a directed verdict in the amount of $12,775.05 on the following grounds: (1) the plaintiff acknowledged in his complaint that he still owed $13,657.20 on the purchase price of the truck and that he was two months in arrears in his payments (2) under a provision of the installment contract Cox agreed that he would not set up any claim against a subsequent holder, Credit Co. being such a subsequent holder; and (3) there was no competent evidence to support the verdict of $6,880.00. Credit Co. further asserts that the submission to the jury of form verdicts which ignored its counterclaim constituted reversible error.
Upon consideration of the errors assigned by Ford Motor Credit Company and upon examination of the record and the law applicable to the facts reflected by the record, we are impelled to reverse the judgment entered against Credit Co. The plaintiff readily admits that he still owes a balance in excess of $13,000.00. Although this is undisputed, the plaintiff claims certain setoffs against that indebtedness. These claims arose from his assertion that he refused to make further payments until the truck was repaired; that the truck was illegally repossessed; that during the repossession many parts were taken from the truck; and that by reason of the illegal repossession the plaintiff suffered loss of profits which would have been earned but for the alleged illegality.
Upon the foregoing exchange between Credit Co. and plaintiff Cox, the former must prevail. A provision of the installment contract provides that the buyer (Cox) agrees that he will settle any claim he has with the seller (Galigher) 'and that Buyer shall not setup and such claim,...
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