Dubinsky v. Lindburg Cadillac Co.
| Decision Date | 17 June 1952 |
| Docket Number | No. 28450,28450 |
| Parties | DUBINSKY v. LINDBURG CADILLAC CO. |
| Court | Missouri Court of Appeals |
Norman Begeman, St. Louis, and Lowenhaupt, Waite, Chasnoff & Stolar, St. Louis, of counsel, for appellant.
Jerome F. Duggan, St Louis, and Dubinsky & Duggan, St Louis, of counsel, for respondent.
This is an action at law to recover damages claimed by plaintiff (respondent) as a result of his purchase from defendant (appellant) of a defective Cadillac automobile. The case was tried to the court, a jury being waived. Plaintiff recovered a judgment for damages in the sum of $1,848.22, together with accrued interest. Defendant has duly perfected its appeal.
Plaintiff testified that in January, 1949, he purchased a new Cadillac from defendant and paid therefor $4,274.23. In July of that year he discovered that water was getting into the oil in the crank case and was advised by defendant that it would be necessary to put in a new main gasket, which would require leaving the car in the garage for three or four days. The plaintiff needed an automobile at once for a required business trip and at the suggestion of defendant's sales manager traded his car for a new Fleetwood Cadillac, paying an additional sum of $1,448.82. Within a week he began having trouble with the new car. His principal complaint was that in going up hills or in attempting to accelerate the motor sufficiently to pass other automobiles the motor would cut out suddenly and throw the passengers forward in their seats; that the motor would miss and as far as speed was concerned it had no power at all; that he took the car to defendant's garage early in August and complained of the defective operation of same and the defendant's employees tried to correct the defects but failed so to do. It appears that plaintiff took the car to defendant on an average of at least once a month from that time until this suit was filed in April of 1950, and on each occasion he would report that he was still having the same trouble and they would try to correct the same, but failed in their efforts. In one instance toward the last of September, 1949, the plaintiff made a vigorous complaint to defendant's sales manager, Lee Kline, who stated to him, 'Now be patient, we will get this thing corrected for you or we will give you a brand new automobile of like kind.' On this occasion, in the presence of Mr. Kline, one of defendant's mechanics stated,
On two occasions Mr. Kline had plaintiff bring the automobile to the garage to be checked by factory representatives, but plaintiff testified they were not able to correct the defects. It appears that each time defendant's employees worked on the car they told plaintiff to go ahead and drive the car and use it in order to make a test as to the work they were doing. Plaintiff testified that in the operation of this motor vehicle he followed the instructions in the book furnished him by defendant and also the instructions given him by defendant's agents and employees. The defendant failed to furnish plaintiff with a new automobile in accordance with the conversation plaintiff had with defendant's sales manager in September, 1949. Apparently after the suit was filed there was some effort to settle the controversy, but when these efforts failed, plaintiff, on May 12, 1950, sold the automobile for $2,800. The defendant's sales manager had previously placed a valuation upon it of $2,750.
Defendant presented the testimony of Mr. Kruse, its service manager. He stated that he first knew of plaintiff's complaint in December of 1949; that on December 16 he and a supervisor for the Cadillac Company tested the car and found that it would not attain high speed and that upon examination of the engine this condition was found to result from carbon that had accumulated around the valves, causing them to stick; that there was nothing unusual or serious about this condition and after the valves were ground and valve lifters corrected they made a test and found that the automobile operated normally at 90 miles an hour.
The testimony of Walter Plough was also offered by defendant. This witness related that he purchased the automobile from the plaintiff and immediately drove it to the airport, going from 75 to 100 miles an hour and that it performed all right. It was sold by him very shortly thereafter to a purchaser from Tulsa, Oklahoma, under a guarantee that it would prove satisfactory and the witness had never received any complaint from him.
The plaintiff in his petition had sought recovery for the entire amount he had paid the defendant in the purchase of both Cadillacs. At the time of entering the judgment the court filed a written opinion in which the principal fact issues were determined in favor of the plaintiff. The court refused to allow any damages as a result of the defect in the first car, and computed the damages by deducting the resale price of the second automobile from the purchase price thereof, which resulted in an item of damage in the sum of $1,848.22, for which amount, together with interest, judgment was rendered.
Although this is a law action, since it was tried before the court, it is our duty to review the whole case and reach our own conclusions upon the law and the evidence as in suits of an equitable nature. Section 510.310, subd. 4 RSMo 1949, V.A.M.S. Toler v. Atlanta Life Ins. Co., Mo.App., 248 S.W.2d 53. However, we are admonished by this statute to give due regard to the opportunity of the trial court to judge of the credibility of the witnesses and not to set aside the judgment unless it is clearly erroneous.
In the sale of an automobile there is an implied warranty that it is reasonably fit for the use intended. Harvey v. Buick Motor Co., Mo.App., 177 S.W. 774. In the event of breach the purchaser has two remedies, (1) he may keep the vehicle and recover from the seller the difference in value between the chattel as warranted and its actual value in view of its defective condition, or (2) he may, within a reasonable time, return the car to the seller and recover the full purchase price. If the purchaser is persuaded by the seller to keep the automobile for a while to give it proper trial or to permit the seller to correct the defect and it is not made to come up to the warranty he may still return the same and recover the purchase price. Laumeier v. Dolph, 145 Mo. App. 78, ...
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