Ford Motor Co. v. Gunn

• Decision Date: 16 March 1971
• Docket Number: No. 1,No. 45603,45603,1
• Citation: 123 Ga.App. 550,181 S.E.2d 694
• Parties: , 8 UCC Rep.Serv. 1180 FORD MOTOR COMPANY v. Dudley GUNN et al
• Court: Georgia Court of Appeals

Page 694

181 S.E.2d 694

123 Ga.App. 550, 8 UCC Rep.Serv. 1180

FORD MOTOR COMPANY v. Dudley GUNN et al.

No. 45603.

Court of Appeals of Georgia, Division No. 1.

March 16, 1971.

Rehearing Denied April 1, 1971.

Congdon & Williams, W. Barry Williams, Augusta, for appellant.

George W. Fryhofer, Waynesboro, for appellees.

Syllabus Opinion by the Court

WHITMAN, Judge.

Dudley Gunn's complaint against Ford Motor Co. and Midville Motor Co., Inc. alleged in substance that he had purchased a new 1967 Ford station wagon automobile with a 'new vehicle warranty,' upon which he had relied, but that the warranty had been breached and he had been damaged. A trial was had with the jury finding in favor of the plaintiff for a certain sum against the defendant Ford Motor Co. The appeal is from the judgment on the verdict. Held:

1. By the warranty in question Ford Motor Company warrants every part of the vehicle, under normal use and service, to be free from defects in material and workmanship for 24 months or 24,000 miles, whichever comes first. With regard to the 'power train' and the 'steering, suspension and wheels,' there is a similar warranty for a longer period of 5 years or 50,000 miles, whichever comes first. The warranty's general provisions specify that the particular warranties are conditioned upon a requirement that the owner maintain the vehicle in accordance with a service-maintenance schedule. It is also specified that 'All the warranties shall be fulfilled by the selling dealer * * * (except where residence changes or during travels) replacing with a genuine new Ford or Ford authorized reconditioned part, or repairing at his place of business, free of charge including related labor, any such defective part.' Certain parts, e.g., tires, filters, wiper blades, hoses and appearance items, and certain normal maintenance services, e.g., engine tune-up, brake and clutch adjustments, are expressly excluded from warranty.

The warranty contemplates that the warrantor shall have an opportunity to remedy defects. Thus the warranty is not instantly breached if the car is found on delivery or at some time thereafter within the warranty period to have a defective part or operational deficiency. The language of the warranty provides that in such event the manufacturer, through its selling dealer or other appointed agency, will replace or repair (except those items and adjustments expressly excluded), and do what is necessary to bring the vehicle to normal at no cost to the purchaser. Assuming the purchaser has maintained his vehicle in the manner specified, it is the refusal to remedy within a reasonable time, or a lack of success in the attempts to remedy which would constitute a breach of warranty. Generally, see 77 C.J.S. Sales § 340.

Ford contends that the trial court erred in failing to direct a verdict against Gunn at the conclusion of the trial. The evidence was that Gunn had discovered a great many defects in the car shortly after it was delivered. Gunn testified that there was a drill-hole in the roof; that the headlights blinked; that the electric windows and ignition switch did not operate properly; that the radio-stereo installation was inoperative; that some doors were out of line; that there were numerous water and dust leaks; that oil consumption was too high; and that there was an abnormal amount of vibration in the steering wheel, seats, and the body of the car. Gunn testified that most of the items had been taken care of under the warranty to his complete satisfaction and to such extent there could be no contention of a breach of warranty. But there was evidence that the vibration was not normal and that all efforts by Ford dealers to correct it (including the replacement of all tires and the realignment of the drive shaft) had not been successful. The jury would have been authorized to find a breach of warranty with regard to the vibration problem. There was evidence as to the value of a car having such a problem. The trial court did not err in denying Ford's motion for a general directed verdict.

2. It is contended that the trial court should have charged, even without request, that the proper measure of damages was the cost of repair and that the charge as given was erroneous.

The trial court charged in effect that the measure of damages was the difference between the purchase price and the value of the vehicle delivered in a defective condition. This charge conforms to the general rule and we find no error. Studebaker Corporation v. Nail, 82 Ga.App. 779, 784, 62 S.E.2d 198. Generally, see Annot. 99 A.L.R.2d 1419, 1440.

In support of its contention that the court erred in failing to charge the jury without request that the measure of damages was the cost of repair of the defective parts of the automobile involved which were covered by the terms of an express warranty, the appellant relies on the case of Davis-Pickett Chevrolet, Inc. v. Collier, 106 Ga.App. 660, 127 S.E.2d 923. The Davis-Pickett case is not only distinguishable from the case sub judice, but it rather supports the charge as given in the present case on the measure of damages as the difference between the contract price and the value of the automobile in question. The record in Davis-Pickett shows that the plaintiff therein sued for a certain amount as the alleged cost paid by him for repairs, consisting of one-half of a repair bill on repairs made by the defendant on a 50-50 written guaranty under which the defendant was to pay one-half of the cost of the repair, and also for a repair bill paid by him, the plaintiff, for additional repairs which he had made by a third party. One of the grounds of a motion for new trial by the defendant was that the trial court erred in failing to charge, without request, the law as to the proper measure of damages; and should have charged, even without request, that should the jury find in favor of the plaintiff the measure of damages would be the purchase price of the automobile and its actual value at the time of the sale. It was held in Davis-Pickett that the court erred in failing to charge the jury that the measure of damages would be the difference between the purchase price of the automobile and its value at the time of the sale.

It is also to be noted that the brief for appellant takes the position that the trial court 'erred in charging the jury the measure of damages for breach of a new car warranty is the difference between the value of the motor vehicle when delivered in a defective condition and the value it would have had had it met the terms of the warranty,' because this charge, characterized by appellant as a restricted measure of damages, was erroneous because it omitted a charge, without request, that a measure of damages was the cost of repair of defective parts of the automobile; relying on the same authority, namely, the Davis-Pickett case.

3. One of the enumerations of error urges that the court erred in charging the jury on the limits of its verdict. This evidently has relation to that portion of the charge wherein the court instructed the jury that in the event they should find in favor of the plaintiff and against Ford Motor Company, the form of the verdict would be, 'We, the jury, find in favor of the plaintiff against Ford Motor Company in the amount of, and you would write in the amount not to exceed $4117.52.' At the conclusion of the charge and out of the presence of the jury counsel for Ford Motor Co. excepted to that portion of the charge that the jury could bring in a verdict not to exceed $4,117.52, the colloquy between counsel and the court being as follows: 'We would like to except to the court charging in effect that the jury could bring in a verdict not to exceed $4117.52, because we feel that that amounts to an opinion of the court, based on evidence in the case, and particularly Mr. gunn, which was that he wouldn't give one thousand dollars for the car. And we submit...