Finks v. Viking Refrigerators

• Decision Date: 06 January 1941
• Parties: HARRY FINKS, RESPONDENT, v. VIKING REFRIGERATORS, INC., APPELLANT
• Court: Kansas Court of Appeals

147 S.W.2d 124

235 Mo.App. 679

HARRY FINKS, RESPONDENT, v. VIKING REFRIGERATORS, INC., APPELLANT

Court of Appeals of Missouri, Kansas City

January 6, 1941

Appeal from Jackson Circuit Court.--Hon. Allen C. Southern, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

David R. Derge for appellant.

(1) The court erred in refusing, at the close of all the evidence, to give the instruction offered by the defendant directing the jury to return a verdict for the defendant because: (a) There was not sufficient evidence offered by plaintiff to show a contractual relationship between him and the defendant. (b) Assuming a presumption was raised by plaintiff's evidence of such contractual relationship, it was entirely overcome by defendant's positive testimony and there was nothing to go to the jury. Degouveia v. H. D. Lee Merc. Co., 100 S.W.2d 336; Sowders v. St. Louis & S. F. R. Co., 104 S.W. 1122; Guthrie v. Holmes, 198 S.W. 854; State ex rel. Kurz v. Bland et al., 64 S.W.2d 638; Ross v. St. Louis Dairy Co., 98 S.W.2d 717. (2) The court erred in giving to the jury, over defendant's objection and exception, plaintiff's instruction numbered 2 in that said instruction permitted the jury to find damages for the plaintiff based on insufficient evidence as to value and for alleged loss of profits in his business when there was no definite evidence of such loss of profits. Anglo-American Mill Co. v. Twin City Merc. & Mfg Co., 35 S.W.2d 982; Phelps Mfg. Co. v. Burgert et al., 115 S.W. 107; Finn v. Indemnity Co. of America, 297 S.W. 175; Kearns & Lorton v. Western Union Telegraph Co., 157 S.W. 106; 50 Corpus Juris 646 667; 17 Corpus Juris 786.

Allan R. Browne, Wm. L. Bridges and Edwin Mills for respondent.

(1) Accompanying the sale of chattles is an implied warranty that they are fit for the intended use, where there is privity of contract. Fairbanks v. Baskett, 98 Mo.App. 53. Whether a presumption which arises naturally and logically from the facts proven has been overcome by evidence on behalf of him against whom it operates is for the jury. State ex rel. Bauman v. Doder (Mo. App.), 121 S.W.2d 263; Walters v. Adams, 141 S.W.2d 205. (2) The instruction on the measure of damages goes only to the question of a reversal and remanding as to damages alone since the instruction in no way affects the liability of appellant. Hoelzel v. C. R. I. & P. (Mo.), 85 S.W.2d 126. An owner may testify as to the value of his own property without qualifications as an expert, and the value he places upon it is treated as evidence of the reasonable market value. Hellums v. Randol, 40 S.W.2d 500, 502, an automobile case; Harris v. Nichols, 25 S.W.2d 484, 488; Bilheimer v. Metropolitan, 119 S.W. 502; Walton v. A. B. C. (Mo. App.), 124 S.W.2d 584, 591; Shouse v. Neiswaanger, 18 Mo.App. 236; Minneapolis v. Bradford (Mo. App.), 227 S.W. 628; Allaire v. Cole, 187 S.W. 816. If there is no reasonable market value, the reasonable actual value of the articles is proper to be shown. Mankofsky v. Carter (Mo. App.), 33 S.W.2d 1049.

OPINION

SHAIN, P. J.

--This is a suit on an implied breach of warranty. It appears that plaintiff being in the market for a refrigerated meat show case for his grocery store in Eldorado Springs, Missouri, made contact with a Mr. Taylor of the Associated Grocers Association in Kansas City, Missouri, who recommended that he purchase a Viking Refrigerator. Contact was had by calling the Viking Refrigerator Company over the telephone and a Mr. Hadley came out in response to the call and negotiations resulted in a purchase. The refrigerator was duly delivered to plaintiff and installed in his store in Eldorado Springs. Plaintiff's suit is based upon an alleged failure of the refrigerator to properly function.

The petition of plaintiff upon which case was tried is as follows:

"Plaintiff states that defendants are corporations duly organized and existing according to law.

"For cause of action against defendants, plaintiff states that on or about October 16, 1937, he purchased a Viking Electric Refrigerator with attachments for commercial use which was manufactured by defendants and sold to plaintiff by defendants for use by the public and by and to plaintiff for the same. He further states that defendants impliedly warranted that said machinery was satisfactory and was suitable for its intended use as a refrigerator; that said equipment was of intricate construction so that plaintiff was ignorant of the detailed construction thereof and defendants were the sole parties who had and who could have knowledge thereof.

"Plaintiff further states that said refrigerator was not suitable for its intended use in that it did not defrost and did not keep merchandise cooled properly and allowed said merchandise to spoil; that as a direct result of said breach of said implied warranty by defendant, plaintiff lost the sum of $ 632.94 in loss of profits and in repairs, an additional sum of $ 50, and in spilage, the sum of $ 100, and the reasonable market value of said refrigerator was $ 471 less than the sales price, and was damaged in said amounts.

"Plaintiff further states that demand has been made for reimbursement and that defendants refuse to pay said amount.

"Wherefore, plaintiff prays judgment against defendants in the sum of $ 1,264.64, and for his costs."

Defendant answered by general denial and trial was had before a jury. There was a jury verdict in favor of plaintiff and damage assessed by the jury at $ 500. Judgment was in conformity with verdict and defendant duly appealed.

For uniformity, we will continue to refer to respondent as plaintiff and to appellant as defendant.

Defendant makes assignments of error as follows:

"I.

"The court erred in refusing, at the close of all the evidence, to give the instruction offered by the defendant directing the jury to return verdict for the defendant because:

"(a) There was not sufficient evidence offered by plaintiff to show a contractual relationship between him and the defendant.

"(b) Assuming a presumption was raised by plaintiff's evidence of such contractual relationship, it was entirely overcome by defendant's positive testimony and there was nothing to go to the jury.

"II.

"The court erred in giving to the jury, over defendant's objection and exception, plaintiff's instruction numbered 2, in that said instruction permitted the jury to find damages for the plaintiff based on insufficient evidence as to value and for alleged loss of profits in his business where there was no definite evidence of such loss of profits."

Defendant's first claim of error is based (a) on the general rule that no recovery for damages on warranty of fitness of chattels sold can be had without privity of contract and second (b) that presumptions are overcome by positive testimony.

As propositions of law, both claims are sound. The first proposition is definitely upheld by this court in an opinion by BLAND, J., in DeGouveia v. H. D. Lee Mercantile Co. et al., 100 S.W.2d 336.

In the aforesaid case, this court held that a wholesale company was not liable in damages for injury arising from consumption of a can of salmon purchased by plaintiff from a retail merchant for reason that there was no privity of contract between plaintiff and wholesaler.

The second proposition also presents a sound statement of law and was applied in Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717. In the aforesaid case, a presumption of ownership of an automobile, arising from name of the dairy company appearing thereon, was declared to be overcome by direct and unequivocal contrary evidence.

To determine as to whether or not the above fundamental principles have application to the situation presented in the case at bar, the evidence must be reviewed in its most favorable inferences to plaintiff.

As to proposition (a), supra, it appears that after plaintiff connected with the personnel of the Associated Grocers, the following questions and answers reveal what occurred in Kansas City, Missouri:

"Q. Then what was done with reference to calling someone? A. I contacted Mr. Walter Taylor there, he is the field representative, and he suggested the Viking Refrigerating Company to me and he immediately called or had one of the girls call the Viking refrigerator salesroom.

"MR DERGE: I object to the statement of the witness that somebody called the Viking refrigerator salesroom.

"THE COURT: Let it be stricken.

"Q. (MR. BROWNE): Did he look it up in the book? A. He looked it up in the phone book and discovered the Viking location.

"Q. Did you see that in the book Viking Refrigerators, Inc.? A. Yes, sir.

"Q. And what address? A. I did.

"Q. What address were they listed in that book? A. There was one at seven hundred something Delaware and the other one was at 7500 Wilson, I believe it is.

"Q. Did a man come out then, did Mr. Hadley? A. Yes, sir.

"MR. DERGE: I object to his leading questions.

"MR. BROWNE: It is preliminary.

"Q. When a man did come out what did you do? A. We talked about meat cases to Mr. Hadley and he brought us to the down town sales office.

"MR. DERGE: I object to that description, 'down town sales office,' That is a conclusion.

"Q. Brought us down to 704 Delaware.

"Q. (MR. BROWNE): Since it is a controverted matter, we will call this 704 Delaware. A. He brought us down to 704 Delaware.

"Q. 704 Delaware? A. Yes, sir.

"Q. I will ask you whether or not on the front of that store you saw the words 'Viking Refrigerators' up there? A. Yes, sir, they were.

"Q. And you were in the store or not? A. Yes, sir, I went in.

"Q. Were you able to find or see there the kind of refrigerated show case you wanted? A. No. He had a few on display but not the type I was...