Cummins Engine Co., Inc. v. Invictus Motor Freight, Inc.

Decision Date04 February 1994
CourtAlabama Supreme Court
PartiesCUMMINS ENGINE COMPANY, INC. v. INVICTUS MOTOR FREIGHT, INC., and General Motors Acceptance Corporation. 1921460.

Craig A. Alexander of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.

James H. Starnes and Stephanie W. Cliett of Roden, Hayes, Carter & Starnes, Birmingham, for appellees.

HOUSTON, Justice.

Cummins Engine Company, Inc., appeals from a judgment based on a jury verdict for Invictus Motor Freight, Inc., and General Motors Acceptance Corporation in the amount of $318,000.

The pertinent facts are as follows: Invictus Motor Freight, Inc., a one-truck freight company, was formed by Doug Lowry and his father and stepmother, Robert and Jean Lowry. On April 19, 1988, Invictus purchased from Great Basin Trucks, Inc., in Salt Lake City, Utah, a Volvo-White GMC truck equipped with an NTC-444 Cummins diesel engine, which, according to Doug, the truck dealer said came with a Cummins 5-year/500,000-mile express warranty. The buyer's order contained a handwritten note reading: "Cummins 5 year/500,000 mile warranty document from Cummins." In August 1988, he received a letter from Cummins Alabama, Inc. (a distributor and authorized dealer for Cummins engines), stating in part:

"New trucks purchased with NTC-444 engines and delivered by June 30, 1989, will carry (at no charge) 'Custom Registry Plus.' Custom Registry Plus is our 5 year/500,000 mile major components coverage which covers the cost of parts and labor for its duration."

Furthermore, in the summer of 1988, Doug received a packet of information containing information about various warranty plans offered by Cummins, including the "Custom Registry Plus" plan.

After it had been driven approximately 100,000 miles between May 1988 and April 1989, the truck began using what Doug considered to be excessive amounts of oil. Consequently, White-GMC Trucks of Birmingham ("White-GMC") (operator of a truck sales and repair facility where the truck had been repaired) "rebuilt" the engine; Cummins paid the cost of the "rebuild," except for replaced bearings, under a 2-year/100,000-mile warranty. The rebuild was complete by May 6, 1989.

On June 28, 1989, as Doug was leaving Albany, Georgia, the engine quit and the truck had to be towed to a Volvo-White dealer. The shop foreman who inspected the truck notified Doug that the injectors and the valves in the engine needed repair but that he was not going to go on with the inspection to determine the engine trouble because, he said, the cylinder liners had been honed, contrary to Cummins's standard repair practice, and this honing "kicked" the engine out of warranty. (The evidence indicated that Invictus had had the Cummins engine repaired only by authorized service dealers.) Having determined that the cylinder liners had been honed, the shop foreman told Lowry that he would have to pay $1,500 cash before any repairs could be made on the engine. White-GMC Trucks of Birmingham denied that it had honed the cylinder liners during the engine rebuild the previous month. Thereafter, Doug had the truck towed to Roanoke, Alabama, where it has been stored.

Invictus Motor Freight sued Cummins Engine Company, Inc. (the manufacturer of the truck's diesel engine), Volvo GM Heavy Truck Corporation (the truck manufacturer), Great Basin Trucks, Inc. (the truck dealer), Eaton Corporation (the manufacturer of the truck's transmission), and White-GMC, alleging breach of warranty, negligence (negligent manufacture or assembly), and fraud (mistaken or reckless misrepresentation).

Invictus also sued General Motors Acceptance Corporation (the company that had financed the purchase of the truck), but GMAC was realigned as a plaintiff. (For purposes of this opinion, we will refer simply to Invictus as the plaintiff.) The claims against Great Basin Trucks, Inc., were dismissed for lack of personal jurisdiction; a summary judgment was entered for Eaton Corporation; and Volvo GM Heavy Truck Corporation and White-GMC were voluntarily dismissed. Cummins was the only remaining defendant.

At the close of the plaintiff's case and at the close of all the evidence, Cummins moved for a directed verdict on all of the plaintiff's claims. The trial court denied the motions and submitted the case to the jury under the claims of breach of warranty, negligent manufacture or assembly of the truck, and mistaken or reckless misrepresentation. The jury returned a general verdict for the plaintiff in the amount of $318,000, awarding compensatory damages only. The court overruled Cummins's motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. Cummins appeals.

Cummins argues that the plaintiff offered no evidence--and certainly no substantial evidence--that Cummins committed some negligent act or omission in manufacturing or assembling the engine. Therefore, it argues, the trial court erred in denying its motion for a directed verdict.

In Aspinwall v. Gowens, 405 So.2d 134, 138 (Ala.1981), the Court held:

"[I]f a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of those counts, he must challenge this by motion for directed verdict, specifying the count which is not supported by evidence and detailing with specificity the grounds upon which the particular count is not supported by the evidence. If this is not done and all counts go to the jury and a general verdict is returned, the court will presume that the verdict was returned on a valid count."

See Charter Hospital of Mobile v. Weinberg, 558 So.2d 909 (Ala.1990); American General Life & Accident Insurance Co. v. Lyles, 540 So.2d 696 (Ala.1988).

" 'Where a trial court denies a defendant's motion for directed verdict on a count that is not supported by the evidence, a reviewing court may not presume that the jury returned its general verdict on a count that is supported by the evidence.'

"[American General Life & Accident Insurance Co. v. Lyles ], 540 So.2d [696, 700 (Ala.1988) ]. The inference is that, if the trial court is presented with the argument that the reviewing court eventually reverses on, then the presumption of Aspinwall will not apply and the case will be remanded for trial on the valid count."

Georgia Casualty & Surety Co. v. White, 582 So.2d 487, 496 (Ala.1991). This is the situation presented by the facts in this case.

Specifically, in this case, Cummins moved for a directed verdict on Count IV of the complaint, which alleged negligent assembly of the truck and sought money damages and rescission of the purchase of the truck. After the jury returned its general verdict for $318,000, Cummins again presented to the trial court its argument that the count was not supported by the evidence, by a motion for a judgment notwithstanding the verdict or for a new trial.

No evidence at trial indicated that Cummins assembled the truck; and, although it is undisputed that Cummins manufactured the engine, no evidence indicated the manner or method used by Cummins to assemble the engine, and no evidence indicated proper or improper methods of engine assembly. Furthermore, no expert or other testimony indicated that Cummins did not properly manufacture or design the engine. In fact, the only testimony at trial concerning the manufacture or design of the Cummins engine was given by the plaintiff's expert witness, who testified that he had no complaints about the way the Cummins engine was designed, and that he "definitely" thought that Cummins made "a good engine."

Because the trial court was presented with the opportunity to rule on the negligent assembly claim and failed to hold--as it should have held--that there was insufficient evidence to submit the negligent assembly claim to the jury, we cannot "presume" that the jury verdict was based on a count that was supported by the evidence. It is clear that the court submitted an invalid count to the jury, after the defendant had informed the trial court of the invalidity of that count.

Cummins also maintains that the fraud claims stated in the plaintiff's amended complaints were barred by the two-year statute of limitations governing fraud actions. Ala.Code 1975, § 6-2-38(l ).

According to the plaintiff, however, the fraud claims added by amendment are saved from the operation of the statute of limitations because, it argues, under Rule 15(c), A.R.Civ.P., those claims relate back to the date the original complaint was filed. Rule 15(c) states in part:

"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth ... in the original pleading, the amendment relates back to the date of the original pleading...."

Thus, for an amendment to relate back to the date of the original pleading, the claim stated in the amendment must have arisen from the same conduct, transaction, or occurrence set forth in the original pleading. See Georgia Casualty & Surety Co. v. White, 582 So.2d 487 (Ala.1991). Where the amendment adds a new theory of liability and that new theory is based upon the...

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