Kopischke v. First Continental Corp.

Decision Date22 May 1980
Docket NumberNo. 14810,14810
Citation37 St.Rep. 437,187 Mont. 471,610 P.2d 668
Parties, 29 UCC Rep.Serv. 454 Rose KOPISCHKE, Plaintiff and Respondent, v. FIRST CONTINENTAL CORPORATION, Defendant and Appellant.
CourtMontana Supreme Court

Robert J. Emmons argued, Great Falls, for defendant and appellant.

Hoyt, Trieweiler, Lewis & Regnier, John C. Hoyt argued, Great Falls, for plaintiff and respondent.

DALY, Justice.

This is an appeal from judgment after a jury verdict in the District Court of the Eighth Judicial District, County of Cascade, in a negligence action.

The complaint herein consisted of three counts. Count III of the complaint, a claim predicated upon strict liability of the defendant, was dismissed by defense motion prior to trial. The remaining counts were submitted to the jury on special verdict, and the jury returned a verdict involving comparative negligence. Defendant was found to be 65 percent negligent and plaintiff was found to be 35 percent negligent. Total damages were assessed by the jury at $650,000, and the court entered judgment for plaintiff in the sum of $422,500.

Defendant moved for a new trial after judgment was rendered, but the motion was denied. From the final judgment and denial of the motion for a new trial, defendant appeals. Plaintiff cross-appeals.

Defendant, a used car dealer, sold a used car to plaintiff and her husband in late December, 1976. The car in question, a 1971 Datsun station wagon, was purchased through one of defendant's salesmen after a short test drive, during which the car pulled slightly to the left.

Additionally, plaintiff informed the salesman of several minor things she had noticed that were wrong with the car. Some of these were that the horn did not work, poor tires, a wire hanging out of a rear taillight assembly, and that the car pulled to the left. The sales invoice listed that a number of these corrections were to be made.

The salesman also advised plaintiff that they would take the tires off another 1971 Datsun and put them on plaintiff's car.

The sales invoice indicated an odometer reading of 83,615 miles and a disclaimer in fine print that read: "All used cars are sold on an as is basis with no guarantee either express or implied except as noted above." Above this disclaimer was set forth the aim of defendant: "To serve you courteously, completely and honestly. To profit, not only in money, but in the good will and friendship of our customers. To improve whenever possible and correct our errors when we learn of them. To do our best every day, in every way, to build an establishment which will be known as the finest in our field."

No explanation was given to plaintiff pertaining to the "as is" clause.

The 1971 Datsun had a somewhat checkered history. The car was purchased new in 1971 by a couple who lived in San Diego, California. They traded the car in to Melody Toyota, Inc., in 1975. At the time of the trade-in, the car's odometer registered 85,106.4 miles. However, the car was described to be "in very good mechanical condition." Through an unknown series of events, the car was acquired by Swanson Sales in California and resold in California to Pierotti Motors. At the time the car was purchased from Swanson by Pierotti, the odometer had been turned back to 41,194 miles.

Pierotti sold the car to a Robert Graff in July 1975. Graff owned the car until it was repossessed in 1976 by Credit Associates.

Graff testified that the car was not involved in any accidents and that there was nothing wrong with the car, except for the tires being in fair condition. However, he also testified that at times he noticed vibration in the steering.

A representative of Credit Associates testified that the Datsun was dirty, junky and dented, that the engine needed a tuneup, and the springs and shocks were shot.

The car was put out for bids and sold to defendant. Neither plaintiff, nor defendant's salesman, knew that the car was repossessed or that the odometer reading was incorrect. Plaintiff testified that had she known the car had over 120,000 miles on it, she would not have bought it.

Plaintiff took delivery of the car on December 27, 1976, had a C.B. radio installed, and drove it to Missoula a few days later. She experienced vibration in the car and a pulling to the left, but had no real trouble on this trip. She did, however, consult a mechanic about the car, and on two occasions repair work was done. This work involved a tuneup, fixing the speedometer, installing a heater, fixing the brakes, aligning the front-end, etc. On the last occasion, the mechanic recommended on a repair order, "Take the car back, needs lots of work, not safe on the road." Plaintiff testified that she thought this meant she was to bring the car back for repairs and that she did not think she would be in any danger if she drove the car, except maybe she could be stranded if the car broke down.

Plaintiff drove the car around Missoula until January 21, 1977, when she drove it back to Great Falls. She again experienced shaking and vibration in the car during this trip. On arrival in Great Falls, plaintiff called Dave Fender, one of defendant's salesman, about the problem and was advised that the car was merely "dieseling" and that premium gas would correct the problem.

The following day, January 22, 1977, plaintiff drove to Chester for an appointment with her doctor. Her husband told her she should probably take the couple's other car, but she thought she could use her C.B. and get assistance if she had any problems. Plaintiff testified it was a good day for driving, the roads were excellent, and the car handled fine on the way to Chester and all the way back to the point of the accident.

The accident occurred a few miles west of Carter on a good stretch of highway. The car suddenly started to vibrate, and the steering wheel and motor began shaking. The car went out of control, veered into the left lane, swung back to the right, went off the road and rolled over.

Plaintiff was thrown out of the car and sustained severe back injuries, which have left her paraplegic. A driver in the car following plaintiff's testified she was driving prudently and at about 50 m. p. h. just before the accident.

There is no question that plaintiff was not using the safety belt in her car at the time of the accident.

Raymond McHenry, a consulting engineer, was retained by plaintiff to determine the cause of the accident. McHenry examined the car, viewed the accident scene and discussed the accident with plaintiff. In addition, he removed the wheels, MacPherson struts, and carefully examined the vehicle to determine what caused it to go out of control.

McHenry examined the transverse link (lower control arm) on the right front suspension and found that it was cracked extensively, bent and had four compression marks on it, indicating that the bend had been caused by a tool. He also found that there were four white sidewall tires on the car. All of the white sidewalls turned outward in the normal manner except the right front white sidewall, which was reversed with the white sidewall turned inward. On the white side of that tire there was a tread separation several inches in length, and this tire was out of balance. In addition, McHenry found that the left side motor mount was completely separated and sitting in an unusual position, the stabilizer bar was disconnected, and the left rear brake lining showed lubricant on it which had been leaking since before plaintiff purchased the car.

McHenry performed various tests on a Datsun similar to plaintiff's, using bent transverse links, disconnected stabilizer bar and disconnected left rear brake to determine the effect on the car's handling. He also consulted with Dr. James Magor, a metallurgic engineer at North Carolina State University, who ran various tests on the transverse link. He concluded the transverse link had been deliberately bent to an angle of 30o and then straightened to an angle of 20o and, in straightening this link, cracks were formed. These cracks extended under the alternating loading conditions of plaintiff's car in a process called metal fatigue.

McHenry reconstructed the cause of the accident as follows: Prior to the accident the transverse link had deliberately been bent to an angle considerably greater than 10o and then reverse bent to an angle of approximately 10o . (Dr. Magor established with certainty that this had been done a long time prior to the acquisition of the car by plaintiff.) Through the process of metal fatigue, the transverse link had progressively weakened as the cracks propagated through the upper section and down the sides of the link. The smaller bend in the link or arm had already created a mild pull to the left.

Due to the process of metal fatigue, just prior to the accident the transverse link bent more, causing the wheel to toe-in. The vibration which plaintiff described served to accelerate the fatigue process causing the cracks to propagate in an accelerated manner which, superimposed upon the already weakened link, abruptly increased the angle of bend from 10o or less to approximately 20o . This occurred in approximately one second and resulted in a heavy pull to the left causing the vehicle to go into the lane for oncoming traffic.

The vibration or shimmy was caused by the unbalanced retread tires. With the tread separation on the right front and two inches of free play at the rim of the steering wheel and the MacPherson struts low on dampening fluid, the vibration occurred. In addition, the disconnected motor mount would allow the engine vibration to reach a larger amplitude therefore shaking the engine more. McHenry completely ruled out driver error.

The reason the car veered to the right was because of steering input by plaintiff.

With the right front stabilizer bar disconnected, the car veered farther to the right, causing it to face...

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