Jacobson v. Benson Motors, Inc., 55842

• Decision Date: 27 March 1974
• Docket Number: No. 55842,55842
• Parties: 14 UCC Rep.Serv. 359 Robert JACOBSON, Appellee, v. BENSON MOTORS, INC. and General Motors Corporation, Appellants.
• Court: Iowa Supreme Court

Page 396

216 N.W.2d 396

14 UCC Rep.Serv. 359

Robert JACOBSON, Appellee, v. BENSON MOTORS, INC. and General Motors Corporation, Appellants.

No. 55842.

Supreme Court of Iowa.

March 27, 1974.

Rehearing Denied April 18, 1974.

Prichard, Hanson, Doran & Bormann, Emmetsburg, for appellant General Motors Corp.

Charles H. Barlow, Emmetsburg, for appellant Benson Motors, Inc.

Fitzgibbons Brothers, Estherville, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, REES and McCORMICK, JJ.

RAWLINGS, Justice.

Appeal by defendants Benson Motors, Inc. (Benson) and General Motors Corporation (GM) from judgment on jury verdict for plaintiff Robert Jacobson (Jacobson) in action for damages arising from claimed breach of warranties by both defendants and negligence on Benson's part. We reverse.

Our review is on errors properly assigned and argued. See Iowa R.Civ.P. 344(a)(3), The Code 1971. But see Iowa R.Civ.P. 344(a)(2), The Code 1973. While there must be some substantial evidence on which to submit an instruction, all relevant and material evidence, including justifiable inferences favorable to plaintiff must be accepted at face value in determining whether a jury issue is created. Also, our function is not to weigh the testimony but to determine whether substantial evidence was presented upon which a jury could find for plaintiff. And in that regard we view the evidence in a light most favorable to the party prevailing in trial court. See Claude v. Weaver Construction Co., 261 Iowa 1225, 1228, 158 N.W.2d 139 (1968).

Mindful of the foregoing was turn now to the factual situation disclosed by the record.

August 2, 1968, Jacobson placed an order with Benson, a GM dealer in Emmetsburg, for the purchase of a 1968 Chevelle Super Sport 396.

August 15th Jacobson received the car for which he, as best determinable, paid Benson about $4000. It was raced seven or eight times that fall. Sometime in October or November Benson offered to sponsor Jacobson in his racing endeavors but the proffer was not accepted.

Also in the fall of 1968 plaintiff encountered heating problems with the Chevelle. He took it to Benson several times but the fault was never corrected.

In January 1969, while being driven between towns, the vehicle developed a radiator hose leakage. It was then nighttime and the temperature 20 degrees below zero so plaintiff, assuming there was sufficient water in the radiator, drove into town.

Replacement of the leaking hose and addition of antifreeze failed to remedy the heating situation. Plaintiff thereupon returned his Chevelle to Benson for repairs under the warranty which had then come to his attention for the first time.

Initially Benson denied there was any such coverage because of asserted engine abuse. Jacobson and Benson then talked by phone with a GM representative. He instructed Benson to effect a warranty covered repair of the Chevelle engine. This representative also stated that if the motor was so repaired it would no longer be under warranty.

Thereupon Jacobson asked Benson whether the existent 350 h.p. motor could be replaced by a totally new 375 h.p. engine. Benson said it could be done and in such event the replacement would be under full warranty. Jacobson was also advised he would be required to pay the difference over for a new increased power engine plus necessary parts and labor.

Benson was then told by Jacobson he wanted a new block and 375 h.p. motor but 'more or less left everything to Benson up to the best of his knowledge to get it running.' Jacobson also testified he relied on Benson's judgment.

March 16, 1969, plaintiff called for his newly motorized Chevelle and was told it was ready, except for a tune-up but Benson had no mechanics trained for that job. Jacobson offered to do the work himself. After such tuning the car operated satisfactorily. That night, however, the weather turned quite cold. Resultantly the block and radiator froze completely. When inquiry was made Benson stated, 'someone called down and said not to put antifreeze in it.' Nevertheless Benson charged GM for two quarts of antifreeze in connection with the motor replacement under warranty project.

After Jacobson had thawed the engine it ran well for 10 or 11 days then the motor locked and would not run. When plaintiff asked Benson to pick up the car the latter refused and stated there was no warranty.

Jacobson and a friend, Kenneth Hansen, then took the engine apart and discovered Benson had not put in a new block. Furthermore, marks on the top of the new high dome 375 h.p. pistons were also discovered.

The engine was then taken to Bradshaw & Short, a GM dealer in Estherville. Jacobson and Hansen were there advised by a mechanic the pistons for a 375 h.p. motor would not work in plaintiff's unreplaced 350 block.

Plaintiff and his friend then went to Benson Motors, looked at the repair work parts 'shop order' and found a new block had not been ordered. In response to an inquiry directed to him Carl Benson stated a new block had been installed in Jacobson's Chevelle. When asked why it was not covered by warranty Benson replied to the effect he did not know. Hansen further asked whether '375 pistons would work with the heads that were left on it' to which Benson responded in the affirmative. When Hansen said he and Jacobson had already stopped at the aforesaid GM agency in Estherville they were told by Benson 'to get the hell out of his office and stay out'.

Thereafter plaintiff and Hansen repaired the engine.

May 5, 1969, the instant action was commenced.

As best we can determine the jury found for plaintiff against GM and Benson for breach of warranty and against Benson alone for negligence, then determined Benson was also liable to plaintiff for punitive damages.

In this joint appeal defendants rely on ten asserted errors. More specifically they contend trial court erred (1) in admitting evidence as to (a) cost of vehicle repairs and loss of use, (b) advertisements purportedly showing specifications for vehicles other than that here involved, (c) a newspaper article; (2) in failing to direct a verdict for Benson on the basis of plaintiff's contributory negligence; and (3) in submitting to the jury instructions regarding (a) express warranty, (b) implied warranty of fitness for a particular purpose, (c) damages, (d) punitive damages as to Benson, (e) existence of an agency relationship between GM and Benson and (f) negligence on Benson's part.

These assignments will not be entertained in the order presented.

I. Did the introduction in evidence of a newspaper article constitute reversible error? Ordinarily newspaper articles are not admissible as proof of their contents. See Rotman v. Hirsch, 199 N.W.2d 53, 55 (Iowa 1972) and citations.

This is because such articles generally constitute evidentially impermissible hearsay. See Rotman v. Hirsch, Supra; Fanning v. Mapco, Inc., 181 N.W.2d 190, 197 (Iowa 1970); 32 C.J.S. Evidence § 726. They are also commonly subject to the best evidence rule. See 4 Wigmore on Evidence, § 1174 (Chadbourn rev. 1972); McCormick on Evidence, §§ 195--198 at 408--411 (1954); 29 Am.Jur.2d Evidence, § 448.

On the other hand a newspaper article may be admitted in evidence for some limited purposes, including imputation to a party of a commonly known fact. See Fanning v. Mapco, Inc., Supra; 2 Jones on Evidence, § 12:30 (6th ed. Gard.1972); 32 C.J.S. Evidence § 726.

In resolving the issue at hand we look first to the underlying factual situation.

During trial John Dodson, a service manager for Chevrolet Motor Division was called as a defense witness. Under cross-examination he stated:

'On the average, General Motors doesn't have a lot of trouble with Chevelles, 1965, 1966, 1967 and 1968. * * * I have seen nothing as far as notification to General Motors from the National Highway Traffic Safety Administration concerning fixing engine mountings on 1965 through 1969 Chevelles.'

There followed these questions by plaintiff's attorney and Dodson's answers thereto:

'Q. I hand you what Mr. David marked Plaintiff's Exhibit T which is last Sunday's Register and call your attention to the article on the front page which indicates that the National Highway Traffic Safety Administration required G.M. to bring in some hundreds of thousands of these Chevelles, 1965 through 1969 because the engines weren't put on right, isn't that the substance of the article? A. (No response.)

'Q. That's the substance of that article, isn't it, Mr. Dodson? A. Could I have the question restated, please, or reread?

'Q. Isn't the effect of that article a notification by the National Highway Traffic Safety Administration to G.M. demanding that they take these machines back, these Chevrolets back to the dealers and get the engine mountings corrected?'

At this point defense counsel objected for the reason Exhibit T was not the best evidence; secondary in nature; incompetent, irrelevant and immaterial.

Thereupon plaintiff's attorney declared:

'Your Honor, the article plainly states in Sunday's Register that the engine mount defects have caused vibrations in the engine and the way I understand it, lock up the engine just like this did, and there have been hundreds of thousands of them that G.M. put out that do that.'

Trial court then overruled all objections and admitted Exhibit T in evidence.

At the outset the foregoing declaration by plaintiff's attorney discloses the newspaper article was introduced in evidence as proof of its content.

Next, it was clearly subject to defendants' 'not the best evidence' objection. Furthermore, Exhibit T purportedly dealt extensively with the National Highway Traffic Safety disclosure of Defective motor mounts on GM cars, including Chevelle, which were found to cause partial or total loss of vehicular control. Significantly no such issue is instantly involved. Consequently defendants' objection on the grounds of irrelevancy and immateriality was appropriate. See ...