Fox v. R. D. McKay Motor Co.

• Decision Date: 10 November 1961
• Docket Number: No. 42353,42353
• Citation: 366 P.2d 297,188 Kan. 756
• Parties: Victor L. FOX, Appellee, v. R. D. McKAY MOTOR CO., Inc., a Kansas Corporation, Appellant.
• Court: Kansas Supreme Court

Page 297

366 P.2d 297

188 Kan. 756

Victor L. FOX, Appellee, v. R. D. McKAY MOTOR CO., Inc., a Kansas Corporation, Appellant.

No. 42353.

Supreme Court of Kansas.

Nov. 10, 1961.

Syllabus by the Court

1. In an action for damages for the breach of an express new automobile warranty in a contract of sale the plaintiff sought damages in the sum of $4,698 (the price paid for the automobile plus the sales tax), also $1,500 for the loss of the use of said automobile, and further damages for inconvenience in the sum of $500. The evidence disclosed that plaintiff retained possession of the automobile and upon submission of the case to the jury, it returned a verdict in the sum of $4,750 upon which the trial court entered judgment. On appeal it is held: (a) The verdict is excessive because it is obvious the jury awarded damages for the loss of the use of the automobile and/or for inconvenience for which there is no supporting evidence in the record; (b) the jury was improperly instructed that it could award damages for the loss of the use of the automobile; (c) the jury should have been instructed that recovery of damages for inconvenience, separate and apart from the loss of use, was improper; and (d) the trial court erred in its failure to grant a new trial.

2. It is improper to establish the value of the loss of use of an automobile in an action such as described in Syllabus 1 by showing the purchase price paid for an additional automobile.

3. An instruction to the jury as to an item of damage for which there is no supporting evidence in the record is an invitation to the jury to make an award on such item, and it is therefore erroneous.

4. Inconvenience in an action for breach of contract, separate and apart from the loss of use of an automobile, in an action such as described in Syllabus 1, is not a proper basis for the recovery of damages.

5. In an action for the breach of a written new automobile warranty, more specifically described in the opinion, the burden is upon the plaintiff to prove (a) that the automobile was found to be defective; (b) that it was returned to the dealer to give it an opportunity to remedy the defects; and (c) that the dealer failed or refused to remedy the defects; and when the plaintiff has made a prima facie case, the burden is cast upon the defendant to prove its affirmative defense to show compliance with the written warranty, or of moving forward with its evidence to overcome, if possible, the prima facie case made by the plaintiff.

6. Generally speaking, the measure of damages for breach of a warranty is the loss directly and naturally resulting from the breach of warranty. Generally speaking, in the absence of evidence showing a greater amount of damage, the measure of damage is the difference between the value of the automobile involved at the time of delivery and the value it would have had if it had conformed to the warranty. But on facts more particularly set forth in the opinion, this rule is subject to modification to the extent that the value of the new automobile in its condition at the time of delivery might appreciably be affected by the subsequent correction of some of the defects pursuant to the terms of the written warranty.

George W. Ball, Wichita, argued the cause, Dale Kidwell Jack H. Greene and Kenneth M. Nohe, Wichita, were with him on the briefs for appellant.

Robert A. Thiessen, Wichita, argued the cause, Dale Kidwell, Jack H. Greene and Holmes and Nicholas W. Klein, Wichita, were with him on the briefs for appellee.

SCHROEDER, Justice.

This is an appeal by the defendant in the lower court from a money judgment in favor of the plaintiff in an action for breach of a written new automobile warranty.

The primary questions presented are whether the amount of the verdict is supported by the evidence, and whether the jury was properly instructed.

On the 5th day of July, 1957, the plaintiff (appellee), Victor L. Fox, purchased a new Chrysler automobile from the R. D. McKay Motor Co., Inc. (defendant-appellant), who was a franchised dealer in Chrysler automobiles in Wichita, Kansas. The purchase order listed the price of the automobile at $4,636. The appellee paid $3,100 and traded in a 1953 Hudson Hornet for which he received a trade-in allowance of $1,536. In addition he paid the sales tax of $62. The new automobile was delivered to the appellee on the 7th day of July, 1957, and an express written warranty (identical in all material respects to the Uniform Written Warranty for New Motor Vehicles set forth in Allen v. Brown, 181 Kan. 301, at pages 303 and 304, 310 P.2d 923) was delivered to the appellee on the 9th day of July, 1957, as a part of the purchase.

It is established by the evidence that the appellee brought the automobile to the appellant's service department with various complaints on numerous occasions during and after the ninety-day period specified in the written warranty. Extensive repairs and replacements were made to the new Chrysler automobile by the appellant remedying various defects without cost to the appellee. Before the ninety-day period had expired all of the various defects, concerning which the appellee made complaint, were satisfactorily taken care of by the appellant except one. The automobile still had a rumbling, grating and vibration which was never fully corrected. The appellee testified the rumbling and grating in the underneath part of the automobile caused vibration that was 'like you would get on one of those things you step on to rest your feet or what the barber uses on the back of your neck.' He further said as early as July, 1957, 'The difficulty I had; vibrating and noise and everything, and the front end was getting to where I was afraid to take it on the road.' In viewing the evidence most favorable to the appellee this defect in the automobile was never corrected.

The appellee in his petition sought damages in the sum of $4,698 (the price paid for the automobile plus the sales tax). He also sought damages in the sum of $1,500 for the loss of the use of said automobile, and further damages for inconvenience in the sum of $500. There is no evidence in the record to indicate the appellee at any time tendered a return of the automobile to the appellant, other than for the repairs heretofore mentioned. On the contrary the evidence discloses the appellee retained the automobile and at the time of trial had it stored at his home. The action was definitely alleged and tried on the theory of contract--breach of a written warranty.

The jury returned a verdict in the sum of $4,750 upon which the trial court entered judgment. Appeal has been duly perfected from such judgment, and other specified rulings of the trial court, presenting the various questions hereinafter discussed.

The appellant contends there is no substantial evidence to support the jury's verdict as to the amount of damages awarded.

It must be noted the jury returned a verdict in a sum greater than the amount the appellee paid for the automobile, including the sales tax of $62, and he still has the automobile. Only one expert witness was called by the appellee to show the value of the Chrysler automobile which the appellee retained in his possession. This witness, Gene Walton, qualified as an expert on automobile values and said in substance on direct examination that the automobile had no retail value. On cross examination, however, he testified:

'Q. Do you want this Jury to understand that your opinion is that a fifty-seven Chrysler Windsor car in driveable condition in the period of between July 9, 1957, and October 7, 1957, had actually no value? A. No I wouldn't say it has no value.

'Q. You just wouldn't know how to put a value on it? A. Oh, as far as putting a retail value on the car to sell to you or to any buyer that would be awfully hard to do because you just wouldn't buy it.

'Q. You don't know how to place a value on it? A. You can place a value on it but you would have to place a value of fifteen hundred or two thousand dollars in order to move any car of that caliber due to the fact that you don't know what is wrong with it. When somebody hears and knows, or hears anything wrong with the car----'.

The most that can be said of this testimony as evidence upon which the jury could rely to base a verdict is that it established a minimum value of $1,500 on the automobile delivered. The appellant offered no evidence of value whatever.

In Allen v. Brown, supra (a case upon which the appellee relied throughout the trial of this case), the following statement was made as to the measure of damages in a case of this kind:

'The measure of damages for breach of warranty is the loss directly and naturally resulting from the breach of warranty. In the absence of special circumstances showing proximate damage of a greater amount, this is the difference between the value of the goods at the time of delivery and the value they would have had if they had conformed to the warranty. It is thus clear that consequential damages, if properly pleaded and proved, may be recovered by reason of breach of warranty.' (181 Kan. p. 309, 310 P.2d p. 929.)

The record in the instant case discloses no evidence of consequential damages. Nothing was introduced in evidence to show the value of the use of the automobile. The most that can be said of the evidence is that each time the appellee returned the automobile to the appellant for repairs, it was retained for 'a couple of days' to make such repairs, except on one occasion when it was retained for only three or four hours. This is insufficient to prove the actual damages for loss of use. There must be some evidence to show the value of that loss of use.

The appellee contends on this point the appellant is responsible for invited error, and therefore is in no position to rely upon this failure in the record, citing Hawkins v. Wilson, 174 Kan. 602, 605, 257 P.2d 1110. The appellee attempted to introduce...