Givan v. Mack Truck, Inc.

• Decision Date: 23 May 1978
• Docket Number: No. 38597,38597
• Citation: Givan v. Mack Truck, Inc., 569 S.W.2d 243 (Mo. App. 1978)
• Parties: , 24 UCC Rep.Serv. 1077 Randy I. GIVAN and Charles Givan, Plaintiffs-Appellants, v. MACK TRUCK, INC., Defendant-Respondent. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 243

569 S.W.2d 243

2 A.L.R.4th 567, 24 UCC Rep.Serv. 1077

Randy I. GIVAN and Charles Givan, Plaintiffs-Appellants, v. MACK TRUCK, INC., Defendant-Respondent.

No. 38597.

Missouri Court of Appeals, St. Louis District, Division Four.

May 23, 1978.

Motion for Rehearing and/or Transfer Denied July 14, 1978.

Application to Transfer Denied Sept. 12, 1978.

John L. Oliver, Jr., Oliver, Oliver & Jones, P.C., Cape Girardeau, for plaintiffs-appellants.

Limbaugh, Limbaugh & Russell, Rebecca Cook, Joseph J. Russell, Cape Girardeau, for defendant-respondent.

DOWD, Presiding Judge.

A warranty case.

Plaintiffs Charles and Randy Givan brought suit to recover damages for breach of warranty regarding a truck which had been manufactured by defendant. ¹ The trial court, sitting without a jury, found for the defendant and plaintiffs appeal.

The facts: On or about September 27, 1972 Charles Givan purchased a 1972 Mack Truck from Harris Truck and Tractor Sales of Cape Girardeau. He bought it for the purpose of leasing it to Sam Tanksley Trucking Company. He and his son Randy had made an agreement whereby the title to the truck would be in Charles Givan's name and Charles Givan would make the down payment. Randy Givan was to pay the balance due, drive the truck for Sam Tanksley Trucking Company, maintain the truck, and would receive a salary from his father for his efforts. The evidence showed that Charles Givan paid $3500 as a down payment. The unpaid balance, including cost of collision insurance and finance charge, was $36,476.16 to be paid in 48 monthly payments of $759.92. Randy made the first monthly payment on November 17, 1972. No further payments were ever made, although Randy Givan continued to operate the truck and his father received monthly notices of nonpayment.

Randy Givan was plagued with numerous problems with this truck. Some of these malfunctions happened only once, like the failure of the heater, (he had to go 100 miles in snowstorm without a defroster), the windshield cracked, the exhaust tube needed replacing, the truck cab leaked water, the oil pressure gauge needed repair, two wheels fell off while he was driving, oil leaked out of the engine around valve covers, and once 21 quarts of oil leaked out. Twice the stack brace broke. The throttle arm broke about four times. There were several problems with the overheating, but the problems were finally repaired in May, 1973. Other problems were recurring and were never properly repaired even after many efforts by authorized Mack Truck dealers around the country. These included loss of engine power, difficulty with the clutch and transmission (which made it difficult to change gears after coming to a stop), problems with steering, and with the air conditioner.

The evidence showed that the Mack truck dealers willingly serviced the truck whenever Randy Givan brought it in with a problem. Most of the work was done without charge under the Mack truck warranty.

In total there were about 30 different occasions that something went wrong with the truck in the nine months that Randy Givan possessed it, and it was in repair shops for 107 days. Sixty of these days were attributed to the incident when the wheels fell off.

Randy Givan remained in possession of the truck until June 9, 1973 when the turbocharger burned up in Laramie, Wyoming and the engine stopped running. The odometer read 51,500 miles at this time. ² Harris Truck and Trailer was notified and they retrieved the truck. It was towed back to Cape Girardeau and repaired. At the time of trial it was still in possession of Harris Truck and Trailer Sales. The attorneys filed a stipulation with this court following oral argument that the truck had been sold and all claims for deficiency against plaintiffs had been released.

In this court-tried case, we must affirm unless the judgment below is not supported by substantial evidence, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30(1) (Mo. banc 1976).

Mack Truck's express warranty limits its liability to repair and replacement of defective parts. Mack Truck entitled this warranty "Standard Vehicle Warranty." It reads:

"The Manufacturer warrants each new Mack motor vehicle sold by it or by any of its authorized distributors to be free from defects in material and workmanship under normal use and service, its obligations under this warranty being limited to repairing or replacing, as hereinafter provided, at its option any part or parts of said vehicle found to the Manufacturer's satisfaction to be defective upon examination by it, . . ."

The disclaimer provision of its express warranty states in bold print:

"THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND OF ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF THE MANUFACTURER."

Our statutes and case law grant the right to limit remedies to repair and replacement of parts. § 400.2-719(1)(a); Russo v. Hilltop Lincoln-Mercury, Inc., 479 S.W.2d 211, 213(4) (Mo.App.1972). However, "where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter." § 400.2-719(2). In this case, there were recurring problems with the steering, the engine losing power, the transmission, and the air conditioner, which were never satisfactorily repaired. The steering difficulty was present the first day the Givans took delivery of the truck. The steering problem was described by Randy Givan as follows: "You couldn't depend upon making a turn with the steering. If you started into a turn, you could turn the wheel and it wouldn't respond, it would turn but the wheels themselves didn't want to respond, and then it would all of a sudden come around." He took it in for repair about seven times, but it was never fixed. The problem with the transmission was described by Randy Givan as follows: "you just couldn't shift the truck. Sometimes it would hang in reverse and you just couldn't hardly get it out, and other times in fourth and fifth; it was very hard to shift." There were also problems with the clutch which made it difficult to shift gears. This shifting difficulty was described by Randy Givan as: "you could put the clutch in and try to get it in gear, and if you didn't just go ahead and ram it in gear, sometimes you just couldn't get it into gear." On about five occasions he put the truck in a shop to get the problem remedied. A third constant difficulty plaguing the operation of the truck was loss of engine power. The problem was worked on about nine times. At one point, in San Jose, California, the engine lost its power, and the accelerator linkage was sticking. The Mack truck dealer in San Jose refused to repair it under the warranty. Randy Givan continued driving by pulling up the accelerator with the side of his foot. Apparently the problem was never completely remedied. Other recurring problems included problems with the engine overheating. More than once it overboiled, and Randy Givan would stop, let it cool, refill it with antifreeze and find the nearest Mack dealer. According to Randy Givan: "they would check it and say nothing was wrong." It was worked on six times before it was finally corrected in May in Boise, Idaho. He paid $90.69 for installation of new thermostats there, but after ten miles it overheated again, so he returned to the Boise Mack truck dealer and had metal shavings flushed out of the radiator. This second procedure cost Randy Givan $55.75, which was 45% Of the total bill. ³ Another recurring problem was malfunction of the air conditioner, which "kicked out"; on one occasion it also leaked freon, and was recharged, but not repaired, which cost Randy Givan $15.18. It was worked on about six times but never satisfactorily repaired. Randy Givan made a list of these recurring problems and gave a copy to the Mack truck dealer in Cincinnati and another copy to Harris Truck and Tractor Sales. Since he lived in Cincinnati, he preferred to have warranty work done there when possible to save motel expenses.

For the most part, Randy Givan maintained the truck himself. He greased it and changed the oil and tightened nuts and bolts periodically.

When a manufacturer limits its obligation to repair and replacement of defective parts, and repeatedly fails to correct the defect as promised within a reasonable time, it is liable for the breach of that promise as a breach of warranty. ⁴ Thus, the fact that the manufacturer in good faith attempts to repair the defect whenever requested to do so is not a fulfillment of the warranty; he must demonstrate that the defect is permanently remedied as promised in the express warranty. ⁵ He can be liable for failure to fulfill the warranty obligation even if his failure to repair is neither wilful nor negligent. Soo Line R. Co. v. Fruehauf Corp., 547 F.2d 1365, 1371, n. 7(6) (8th Cir. 1977); Beal v. General Motors Corp., 354 F.Supp. 423, 427, n. 2 (D.Del.1973). Furthermore, the buyer is not bound to permit the warrantor to tinker with the article indefinitely in the hope that it may ultimately be made to comply with the warranty. ⁶ The limited, exclusive remedy fails of its purpose and is thus avoided under § 400.2-719(2) whenever the warrantor fails to correct the defect within a reasonable period; and when this occurs, all contractual remedies are available to the buyer. ⁷

We hold that Mack truck breached its express warranty by failing to repair within a reasonable time the recurring problems in the steering, the transmission, the loss of engine power, the air conditioning, and by "tinkering" so long before finally repairing the overheating. Since this is so, the limitation of remedy has failed of its essential purpose and all other contractual remedies are available. The most commonly...