Fredrick v. Dreyer, 11895

• Decision Date: 23 September 1977
• Docket Number: No. 11895,11895
• Parties: 23 UCC Rep.Serv. 55 Ted C. FREDRICK and Wanda Fay Fredrick, Plaintiffs and Respondents, v. Cecil DREYER, d/b/a Dreyer Trailer Sales, Defendant, Third-party Plaintiff and Appellant, v. FALCON COACH COMPANY, INC., Third-party Defendant.
• Court: South Dakota Supreme Court

Page 835

257 N.W.2d 835

23 UCC Rep.Serv. 55

Ted C. FREDRICK and Wanda Fay Fredrick, Plaintiffs and Respondents, v. Cecil DREYER, d/b/a Dreyer Trailer Sales, Defendant, Third-party Plaintiff and Appellant, v. FALCON COACH COMPANY, INC., Third-party Defendant.

No. 11895.

Supreme Court of South Dakota.

Argued March 25, 1977.

Decided Sept. 23, 1977.

Wally Eklund of Johnson, Johnson & Eklund, Gregory, for plaintiffs and respondents.

John J. Simpson, Winner, for third-party plaintiff and appellant.

DUNN, Chief Justice.

This is an action for breach of warranty in the purchase of a 1972 Falcon Motor Home. In addition to his answer, defendant Dreyer filed a third-party complaint against Falcon Coach Company which alleged that any warranty on the trailer was the sole responsibility of Falcon. Falcon attempted to quash service for lack of jurisdiction and later instituted bankruptcy proceedings. The trial judge found Falcon in default and removed it from trial of the issues before the jury.

A jury trial of the matter was held in the Sixth Judicial Circuit Court, and the jury awarded the plaintiffs $8,100 in damages. Judgment was entered on March 1, 1976. The defendant's motions for a new trial and for judgment n. o. v. were denied by the court's order of March 30, 1976. The defendant appeals the judgment and order. We affirm the jury verdict as to liability, but reverse and remand for a new trial on the issue of damages.

In October of 1972, plaintiffs, Mr. and Mrs. Fredrick, sought to hire the defendant Dreyer, a mobile home dealer, to move their mobile home to Nebraska from South Dakota. After defendant advised them that he could not tow any trailers other than his own, the parties discussed a possible sale. Later in October, they agreed to a possible sale. Dreyer was to deliver the trailer to O'Neill, Nebraska, and "set it up." The Fredricks traded their old trailer, which was valued at $3,400, and financed the balance of $8,100 through the Ranchers National Bank of Winner.

The trailer was delivered in early December 1972, and service was hooked up. Problems immediately arose, the chief one being water leaks, which plaintiffs' witnesses stated caused carpet and flooring rot and mildew, insulation sag and deterioration, an unpleasant odor, underbelly sag, and rust of the heat ducts. There was also testimony as to the frame being bent, resulting in the doors not latching, and as to improper wiring, necessitating the constant burning of kitchen lights to keep the refrigerator operating. Dreyer and the bank loan officer testified that there was much less damage than plaintiffs claimed. Defendant admitted that he had done nothing to repair the problems, but he did state that he told plaintiffs to call a plumber and send him the bill. This was contradicted by plaintiffs. The Fredricks made two payments on the trailer and then stopped making them because of the problems they had encountered.

Before trial, the court found Falcon in default and excluded it from the trial before the jury. It also denied the defendant's motion to amend his answer on the day of trial to include a defense of contributory negligence. These rulings, along with others, are claimed as error by the defendant.

We will first decide whether there was sufficient evidence to support the jury's conclusion that a warranty was breached. SDCL 57-4-30 states that "(u) nless excluded or modified, * * * a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." It is undisputed that Dreyer was a "merchant" of mobile homes. SDCL 57-2-7. To be merchantable, goods must be at least such as are "fit for ordinary purposes for which such goods are used * * *." SDCL 57-4-31(3).

In addition to various other problems, plaintiffs introduced evidence that none of the doors would latch, that the frame was crooked, that the wiring was hooked up incorrectly, and that the plumbing did not work properly. We hold that this evidence was sufficient to justify the jury's decision that an implied warranty had been breached.

Defendant contends that a seller does not impliedly warrant against latent defects. There is nothing in the Uniform Commercial Code to support that proposition. As the United States Court of Appeals for the Third Circuit stated:

"The entire purpose behind the implied warranty sections of the Code is to hold the seller responsible when inferior goods are passed along to the unsuspecting buyer. What the Code requires is not evidence that the defects should or could have been uncovered by the seller but only that the goods upon delivery were not of a merchantable quality or fit for their particular purpose. If those requisite proofs are established the only exculpatory relief afforded by the Code is a showing that the implied warranties were modified or excluded by specific language under Section 2-316. * * * The gravamen here is not so much with what precautions were taken by the seller but rather with the quality of the goods contracted for by the buyer." Vlases v. Montgomery Ward & Company, 1967, 377 F.2d 846, 850.

The defendant next raises as a point of error the ruling of the trial court that Falcon, the third-party defendant, be removed from the trial of the issues before the jury. SDCL 15-6-20(b) allows a court to "order separate trials or make other orders to prevent delay or prejudice." In discussing Federal Rule 20(b), Wright & Miller Federal Practice and Procedure: Civil § 1660 states in part:

"Rule 20(b) furthers this policy by giving the court authority to order separate trials or make any other order to prevent a party from being * * * delayed * * * or put to unnecessary expense by the joinder of a party against whom he asserts no claim and who asserts no claim against him."

The Fredricks asserted no claim against Falcon, and it was within the trial court's discretion to remove Falcon from the trial before the jury to prevent delay. Davison County v. Watertown Tile and Construction Co., 1925, 48 S.D. 24, 201 N.W. 1005; Garber v. Randell, 1973, 2 Cir., 477 F.2d 711. We find no abuse of discretion here.

The next allegation of error involves alleged misconduct of the plaintiffs' attorney, which defendant urges should have resulted in a mistrial being granted by the trial court. The incidents involve cross-examination of a witness and comments made in final argument.

The circumstances surrounding the first incident involved the testimony of Mr. Shoemaker, the loan officer for the bank which financed the mobile home purchase. He was called by defendant to testify as to the market value of the home and also as to the difficult time he had finding plaintiffs to collect his payments and, finally, to repossess the mobile home. On cross-examination, the attorney for plaintiffs asked whether Shoemaker had discussed return of the trailer with the Fredricks or their attorney, at which point both counsel engaged in a heated discussion in front of the jury. It appears that both attorneys were arguing about the settlement and return of the trailer prior to trial. The judge admonished the attorneys and instructed the jury to "completely disregard" the discussion.

It is well settled in this state that the scope and extent of cross-examination rests in the sound discretion of the trial court. Johnson v. Chicago & N. W. R. Co., 1949, 72 S.D. 580, 38 N.W.2d 348; State v. Ness, 1954, 75 S.D. 373, 65 N.W.2d 923. See also 98 C.J.S. Witnesses § 317. This court stated in Plank v. Heirigs, 1968, 83 S.D. 173, 179, 156 N.W.2d 193, 197, that "(t)he extent to which a witness may be cross-examined as to facts which are otherwise immaterial for the purpose of testing his reliability and to show bias and prejudice is ordinarily within the discretion of the trial court and much latitude is to be allowed in this line * * *."

Since it is the policy of the courts to encourage settlement, it is normally error to allow discussion of the settlement negotiations in front of the jury. Annot., 99 A.L.R.2d 737. It is generally held, however, that such error can be cured by proper instruction to the jury. See cases cited Annot., 99 A.L.R.2d at 741-743. Although we by no means condone the intemperate actions of both attorneys, we feel that the matter was properly handled by the trial court and that any prejudice was cured by the admonition and instruction to the jury.

Defendant also alleges misconduct by plaintiffs' attorney in his closing argument. In addition to commenting on the ability of the defendant to pick up the trailer, discussed above, error is also alleged from his statements that the bank held a note on the trailer and that Dreyer could get indemnity from Falcon. The challenged statements were made in the rebuttal argument after defendant's attorney had made his closing argument, which included the following statements:

"Mr. Dreyer didn't install this electrical system and this plumbing system. Falcon Coach Company did. * * *

"It looks to me like Mr. and Mrs. Fredrick are trying to get a trailer house without paying for it. * * *

"If you would give them the damages for this lawsuit, they keep the trailer and the damages. So that's where that stands."

It is the general rule that a party whose counsel pursues improper argument and invites a reply is estopped to complain of the reply argument. 88 C.J.S. Trial § 194, citing Binegar v. Day, 1963, 80 S.D. 141, 120 N.W.2d 521. Even if the defendant correctly contends that plaintiffs' attorney was engaged in improper argument, which we need not decide, the defendant's attorney made similar arguments, and defendant is estopped from raising error as to issues which were provoked by his own counsel's statements. Hinman v. Gould, 1939, 205 Minn. 377, 286 N.W. 364. As this court pointed out in Binegar, supra, the granting of a new trial should not be used to discipline counsel, and an appellate court should interfere with a trial...