General Motors Corp. v. Dodson

• Decision Date: 15 January 1960
• Citation: 338 S.W.2d 655,47 Tenn.App. 438
• Parties: GENERAL MOTORS CORPORATION, Plaintiff-in-Error-Defendant, v. Mrs. R. P. DODSON, Defendant-in-Error-Plaintiff. GENERAL MOTORS CORPORATION, Plaintiff-in-Error-Defendant, v. R. P. DODSON, Defendant-in-Error-Plaintiff.
• Court: Tennessee Court of Appeals

Page 655

338 S.W.2d 655

47 Tenn.App. 438

GENERAL MOTORS CORPORATION, Plaintiff-in-Error-Defendant, v. Mrs. R. P. DODSON, Defendant-in-Error-Plaintiff.

GENERAL MOTORS CORPORATION, Plaintiff-in-Error-Defendant, v. R. P. DODSON, Defendant-in-Error-Plaintiff.

Court of Appeals of Tennessee, Middle Section at Nashville.

Jan. 15, 1960.

Rehearing denied Feb. 26, 1960.

Certiorari Denied by Supreme Court Sept. 9, 1960.

Braly Craig, Lewisburg, Frank C. Gorrell of Bass, Berry & Sims, Nashville, for plaintiff in error.

Wade & Forrester, Pulaski, for defendants in error.

HICKERSON, Judge.

R. P. Dodson and Mrs. R. P. Dodson are husband and wife. They bought a new Oldsmobile automobile from Kemp Motor Company, Gallatin, Tennessee, an authorized dealer of General Motors Corporation, the manufacturer of Oldsmobile automobiles.

The brakes of this new automobile were defective from the beginning. While Mrs. R. P. Dodson was driving the automobile the brakes locked and as a result the automobile plunged into a ditch near Pulaski, Tennessee, and Mrs. Dodson was severely and permanently injured.

R. P. Dodson and Mrs. R. P. Dodson filed their separate suits against General Motors Corporation to recover the damage each sustained as a result of the wreck. The suits were based upon an alleged breach of warranty or contract on the part of General Motors.

General Motors filed the following plea:

'Comes the defendant General Motors Corporation and for the plea of the averments and allegations contained in plaintiff's declaration says:

'1. That it is not indebted to the plaintiff for any breach of contract or warranty.

'2. That it has not committed any breach of contract or warranty, expressed or implied, to which the plaintiff was a party.

'3. That the warranty covering the automobile described in plaintiff's declaration had expired by lapse of time or by the usage of the automobile.

'Therefore defendant says that it is not guilty of the things and matters alleged in plaintiff's declaration, and prays to be dismissed.'

The cases were tried together by a judge and jury. Judgments were entered upon jury verdicts, as follows: For Mrs. R. P. Dodson against General Motors in the sum of $30,000; and for R. P. Dodson against General Motors in the sum of $15,000.

To review these judgments General Motors has appealed in the nature of a writ of error to this Court.

1. Assignment one makes the question that the trial judge erred when he refused to direct verdicts in favor of General Motors and to dismiss plaintiffs' suits upon such directed verdicts.

This assignment is based upon four grounds set forth in the assignment: (1) There was no privity of contract between plaintiffs and General Motors; (2) there was no evidence that General Motors breached any warranty; (3) by using the automobile, plaintiffs waived any right to recover for breach of warranty; and (4) the automobile was sold to a partnership and plaintiffs, as individuals, could not maintain a suit for breach of warranty.

The rules relating to the consideration by the Court of a motion for directed verdict are fully and accurately stated by this Court in an opinion prepared by Judge Felts, Poole v. First National Bank of Smyrna, 29 Tenn.App. 327, 196 S.W.2d 563, 567, wherein the Court said:

'The rule for determining a motion for a directed verdict has often been stated in numerous cases. It has been fashioned to preserve the constitutional right of trial by jury and to administer the common law separation of function by which the jury try the fact and the judge the law. It requires the trial judge, and the appellate court on review, to look to all the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion, to allow all reasonable inferences from it in his favor, to discard all countervailing evidence; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. Wildman Mfg. Co. v. Davenport Hosiery Mills, supra; Brenizer v. Nashville, C. & St. L. Ry., 156 Tenn. 479, 3 S.W.2d 1053, 8 S.W.2d 1099; Provident Life & Acc. Ins. Co. v. Prieto, 169 Tenn. 124, 83 S.W.2d 251; Osborn et al. v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510; Patillo v. Gambill et ux., 22 Tenn.App. 485, 492, 124 S.W.2d 272, 276; Tennessee Cent. Ry. Co. v. McCowan, Tenn.App., 188 S.W.2d 931.'

The evidence in the record supports a finding by the jury of the following facts: Plaintiffs bought the new Oldsmobile in question from Kemp Motor Company, which was an authorized dealer for General Motors Corporation, Oldsmobile Division. General Motors, the manufacturer of Oldsmobile automobiles, gave Kemp, the dealer, a booklet entitled, 'Direct Dealer Selling Agreement.' This booklet contained the contract or agreement under which General Motors and Kemp dealt with each other.

Section 9, page 8 of the agreement provides:

'Warranty. There are no warranties, expressed or implied, made by Seller to Dealer on the Oldsmobile motor vehicles, chassis or parts furnished hereunder except to the extent comprehended in the following:

"The Manufacturer warrants each new motor vehicle, including all equipment or accessories (except tires) supplied by the Manufacturer, chassis or part manufactured by it to be free from defects in material and workmanship under normal use and service, its obligation under this warranty being limited to making good at its factory any part or parts thereof which shall, within ninety (90) days after delivery of such vehicle to the original purchaser or before such vehicle has been driven 4,000 miles, whichever event shall first occur, be returned to it with transportation charges prepaid and which its examination shall disclose to its satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties, expressed or implied, and all other obligations or liabilities on its part, and it neither assumes or authorizes any other person to assume for it any other liability in connection with the sale of its vehicles.

"This warranty shall not apply to any vehicle which shall have been repaired or altered outside of an authorized Oldsmobile Service Station in any way so as in the judgment of the Manufacturer to affect its stability and reliability, nor which has been subject to misuse, negligence or accident."

Section 34, page 20 provides:

'This agreement is to be governed by and construed according to the laws of the State of Michigan. If, however, any provision in anywise contravenes the laws of any state or jurisdiction where this agreement is to be performed, such provision shall be deemed not to be a part of this agreement therein.'

When Kemp, the authorized dealer, sold this new Oldsmobile to plaintiffs, General Motors required the dealer to deliver a booklet to the purchaser or consumer (plaintiffs) entitled, 'Oldsmobile Owner Protection Policy and Operating Manual.' This manual was the contract or agreement under which plaintiffs purchased and owned the automobile. This manual provides, page 1:

'On New Oldsmobile motor vehicles, purchased by the Dealer issuing this Policy from Oldsmobile Division, General Motors Corporation (the Manufacturer), Manufacturer gives Dealer the Warranty quoted below. On each new Oldsmobile motor vehicle sold by Dealer, Dealer, as seller thereof and not as agent of Manufacturer, gives Purchaser a like Warranty.

"The Manufacturer warrants each new motor vehicle, including all equipment or accessories (except tires) supplied by the Manufacturer, chassis or part manufactured by it to be free from defects in material and workmanship under normal use and service, its obligation under this Warranty being limited to making good at its factory any part or parts thereof which shall, within ninety (90) days after delivery of such vehicle to the original purchaser or before such vehicle has been driven 4,000 miles, whichever event shall first occur, be returned to it with transportation charges prepaid and which its examination shall disclose to its satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties, expressed or implied, and all other obligations or liabilities on its part, and it neither assumes nor authorizes any other person to assume for it any other liability in connection with the sale of its vehicles.

"This warranty shall not apply to any vehicle which shall have been repaired or altered outside of an authorized Oldsmobile Service Station in any way so as in the judgment of the Manufacturer to affect its stability and reliability, nor which has been subject to misuse, negligence or accident."

Wherefore, it is seen that General Motors gives the dealer a written express warranty; and General Motors, the manufacturer, requires its dealers to give the ultimate purchaser the same identical express warranty which the manufacturer gives the dealer.

The booklet containing the warranty which the manufacturer gave its dealer; and the manual which contained the warranty from the dealer to the ultimate consumer, were both prepared by General Motors and sent with the new automobile to the dealer. General Motors was dictating the two warranties completely: one from itself to the dealer, and one from the dealer to the purchaser or consumer. And, as stated, the two warranties were identical. The practical effect of this entire plan was that General Motors gave the warranty to the ultimate consumer; but for reasons satisfactory to itself, General Motors devised and put into operation the plan whereby General Motors dealt only with its dealers and never with the purchasers who were in fact the beneficiaries of the warranty. Defective parts or workmanship would only be discovered by the use of the automobile, and it was only used by the consumer.

(1) The principal defense pleaded by General Motors is that plaintiffs cannot recover on...