Hightower v. General Motors Corp.
Decision Date | 31 May 1985 |
Docket Number | No. 70164,70164 |
Citation | 332 S.E.2d 336,175 Ga.App. 112 |
Parties | , 41 UCC Rep.Serv. 1312 HIGHTOWER et al. v. GENERAL MOTORS CORPORATION et al. |
Court | Georgia Court of Appeals |
Lewis N. Jones, Atlanta, for appellants.
Byron Attridge, Chilton D. Varner, J. Comer Yates, Edward D. Buckley III, Daniel A. Angelo, Atlanta, for appellees.
On October 15, 1981, the appellants, Steve and Linda Hightower, purchased a 1981 Chevrolet Corvette from Leiphart Chevrolet. On December 10, 1981, while Steve Hightower was driving the vehicle, the rear axle became dislodged and pierced the fiberglass rear compartment. The vehicle, of course, was rendered inoperable. Pursuant to the Chevrolet new car warranty, the Hightowers took the vehicle to the nearest Chevrolet dealer, the appellee Martin Burks Chevrolet in Clayton County.
Repair of the vehicle took longer than anticipated because of delays in receiving parts that had to be ordered. On January 21, 1982, it appears that Martin Burks informed the appellants that, except for installation of carpet in the rear compartment, repairs were completed and they could use the vehicle until the carpet arrived. It is unclear exactly when the appellants picked up the vehicle, but on February 4, 1982, another repair order was written up by Martin Burks for several problems (including inoperative power radio antenna and burglar alarm) unrelated to the axle repair. (The appellants claimed that they returned the car the same day that they had picked it up after the axle repair.) Martin Burks made these additional repairs under the warranty, but the appellants declined to accept the vehicle until the carpet was installed. Martin Burks, unable to obtain the right carpet from its regular sources, eventually resorted to an independent supplier, and on or about April 5, 1982, the carpet was installed. The appellants were charged for none of the above repairs. During the entire period of time that the vehicle was being repaired, the appellants had use of at least one other vehicle owned by them and the use of a car owned by Linda Hightower's parents.
Subsequently, the Hightowers commenced this action against Martin Burks Chevrolet, Inc., and General Motors Corporation, seeking damages of $1,920 for the depreciation of the vehicle, $13,000 for the loss of use of the car, and $5,000 for the loss of warranty time and bad faith of the defendants. Shortly before the case went to trial, the appellants sold the vehicle for what they considered to be its fair market value. Following the close of the appellants' evidence, the trial court directed verdicts for both defendants on the claim for the loss of use of the vehicle and on the claim for bad faith damages; the jury returned a verdict for the defendants on the depreciation claim. Judgment for the defendants was entered on October 5, 1984, and this direct appeal followed. Held:
1. On May 8, 1983, less than 3 months after the complaint was filed in this case, two men hired by Steve Hightower "stole" and burned another car owned by Hightower, and Hightower was indicted for this act. He subsequently pleaded guilty to third-degree arson and was sentenced to two years' probation and a $350 fine under the provisions of the First Offender Act (OCGA § 42-8-60 et seq.). At trial, the appellees were allowed to produce this first offender record to impeach Hightower, and the appellants contend that this was error. We reject that contention.
Notwithstanding the fact that under the First Offender Act a conviction does not result unless the person sentenced fails to complete satisfactorily the probationary period, the record of a first offender sentence may be used to impeach a witness in a criminal case. Favors v. State, 234 Ga. 80, 214 S.E.2d 645 (1975) (state's witness); Moon v. State, 154 Ga.App. 312, 268 S.E.2d 366 (1980) (defendant's witness). See also Miller v. State, 162 Ga.App. 730, 292 S.E.2d 102 (1982). If such evidence may be used against a criminal defendant's witness, where the defendant's liberty is in jeopardy, this court is under even less compulsion to exclude it in a civil action.
The dissent argues that Moon v. State, supra, does not stand for the proposition that the state may impeach a defense witness with the witness's first offender record, because the decision does not specify whether the witness was for the state or for the defense. Such specificity may be desirable, but it certainly was not necessary in Moon. In Moon the defendant appealed from his criminal conviction and contended that the trial court erred in allowing a witness to be impeached by a first offender record. Certainly the defendant neither would nor could complain of his own impeachment of a state's witness. The obvious and indubitably only possible situation presented in Moon was that the defendant was appealing from the state's impeachment of a defense witness.
From Favors and Moon, it logically follows that a first offender record may be used to impeach a witness in a civil case. To hold otherwise would honor pecuniary interest over liberty interest.
2. The appellants also contend that the trial court erred in directing a verdict for the appellees on the claims for loss of use of the vehicle and for bad faith damages. We disagree.
In this case, the warranty extended by General Motors Corporation limited the buyer's remedy to return of the goods and repayment of the price, or to repair and replacement of any non-conforming goods; the warranty further specifically excluded any damage for loss of use of the vehicle while repairs were made. OCGA § 11-2-719 generally allows such limitations of remedies unless the limitations are unconscionable. Frick Forest Prods. v. Intl. Hardwoods, 161 Ga.App. 359, 288 S.E.2d 625 (1982); Jacobs v. Metro Chrysler-Plymouth, 125 Ga.App. 462, 188 S.E.2d 250 (1972). A breach of such a limited warranty results from the refusal to remedy within a reasonable time or a lack of success in the attempts to remedy, and the usual measure of damages is the "difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." OCGA § 11-2-714(2). See Teledyne Indus. v. Patron Aviation, 161 Ga.App. 596, 288 S.E.2d 911 (1982).
It was undisputed in this case that the defendants neither refused nor failed to repair the appellants' vehicle. The breach of the new car warranty thus occurred, if at all, in the failure to complete the repairs in a reasonable time. Even accepting the evidence most favorable to the defendants, most of the repair of the rear axle required over 5 weeks to complete; at worst, the appellees took approximately 115 days to complete the repairs (albeit that several unrelated repairs were also made during the interim.) We find this circumstance to preclude holding as a matter of law in this case that the repairs were made within a reasonable time. Such questions of reasonableness usually remain most appropriate for the jury. Hub Motor Co. v. Zurawski, 157 Ga.App. 850, 278 S.E.2d 689 (1981).
OCGA § 11-2-719(2) provides that "[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." Regardless of whether this case is considered in terms of the lengthy delay in repairing the appellants' vehicle constituting a breach of the limited warranty to repair or replace, or as a defeat of the essential purpose of that limited warranty, the only real damage possible obviously was loss of use of the vehicle, which also was specifically excluded by the new car warranty. Compare Teledyne Indus. v. Patron Aviation, supra. The breach or defeat of a limited warranty to repair or replace, of course, does not simultaneously invalidate other limitations of damages contained in the new car warranty, but the other limitations must still be conscionable. In the situation presented by this case, where the only identifiable damage was the loss of use of the vehicle, enforcement of this additional limitation would in effect deprive consumers in the position of the plaintiff here of any remedy.
Unfortunately for the appellants, however, there was no proof of damages in this regard. The appellants claimed $13,000 in loss of use damages, based upon the daily rental rate of similar automobiles in Las Vegas, Nevada; this evidence of Las Vegas rental rates was properly excluded as irrelevant. Further, while the repairs were made, the appellants had free use of the spare car of Linda Hightower's parents. Even assuming that the delay in completing the repair on the vehicle was unreasonable, the appellants simply failed to prove the requisite element of damage, and directed verdict for the defendant was proper.
The trial court also properly directed a verdict for the appellees on the appellants' claim for bad faith damages. The only possible damages for bad faith in this case would be for expenses of litigation under OCGA § 13-6-11. Such bad faith damages are not recoverable where there exists a bona fide controversy. Jeff Goolsby Homes Corp. v. Smith, 168 Ga.App. 218, 308 S.E.2d 564 (1983). Defense of the appellants' claim for depreciation of the vehicle during the lengthy time before repairs were completed certainly would not support an award for litigation expenses since the defendants prevailed by jury verdict on that claim. Concerning the appellants other legitimate claim, i.e., for loss of use of the vehicle, there obviously was a bona fide controversy both over liability, since the limited warranty expressly excluded that type of damage, and over the amount of damages. See Georgia-Car. Brick etc. Co. v. Brown, 153 Ga.App. 747, 266 S.E.2d 531 (1980).
Judgment affirmed.
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