Kure v. Chevrolet Motor Division

Decision Date26 June 1978
Docket NumberNo. 4859,4859
Citation581 P.2d 603
Parties24 UCC Rep.Serv. 293 John W. KURE, Appellant (Plaintiff below), v. CHEVROLET MOTOR DIVISION, J. A. Chevrolet-Cadillac, Inc. and Tyrrell Chevrolet, Appellees (Defendant below).
CourtWyoming Supreme Court

Philip P. Whynott, Cheyenne, for appellant.

John W. Pattno, Cheyenne, for appellees, Tyrrell Chevrolet and Whisler Chevrolet Co.

Peter J. Mulvaney, Cheyenne, for appellee, Chevrolet Motor Division.


RAPER, Justice.

This appeal, pursued by plaintiff-appellant, arises from entry of judgment by the district court in favor of all defendants, save one, at the close of plaintiff's case. Plaintiff asserts the judgment in favor of defendants, Chevrolet Motor Division and Tyrrell Chevrolet, was error and that the damages awarded against defendant J. A. Chevrolet were insufficient. We shall reverse the district court judgment as to the action against Chevrolet Motor Division and J. A. Chevrolet and otherwise affirm.

On March 1, 1975, plaintiff took delivery of a 1975 Chevrolet Corvette from Whisler Chevrolet in Rock Springs, Wyoming. On July 3, 1975, during a trip from Cheyenne to Rock Springs, both fan belts on the engine broke near Rawlins, Wyoming, causing the engine to severely overheat. The car was then towed from a service station near Rawlins to the J. A. Chevrolet Company in Rawlins where the engine was repaired. On August 16, 1975, the same day plaintiff picked the car up from J. A. Chevrolet, the engine overheated again after being driven less than 20 miles, this time because of sudden oil loss caused by improper repair work done by J. A. Chevrolet. Plaintiff then had the car towed to Tyrrell Chevrolet in Cheyenne, where, following additional repair work, it was returned to him on September 25, 1975. Because of continuing mechanical problems, plaintiff's vehicle was returned to Tyrrell Chevrolet for repair work on September 26, October 6, November 3, and December 12, 1975. Never at any time was plaintiff charged for any of the work involved, it being treated by all defendants, particularly Chevrolet Motor Division, as warranty repair work. Being still dissatisfied with the vehicle, plaintiff put it into storage and eventually sold it in August, 1976.

On April 26, 1976, plaintiff filed his action herein against Chevrolet Motor Division, J. A. Chevrolet Cadillac, Inc. of Rawlins, Whisler Chevrolet of Rock Springs, and Tyrrell Chevrolet of Cheyenne, alleging breach of express warranty, § 34-21-230, W.S.1977, breach of implied warranty, § 34-21-231, W.S.1977, and deceptive trade practices, § 40-12-105, W.S.1977. 1 Following presentation of plaintiff's case to the court only, the district judge granted defense motions on all three allegations in favor of Chevrolet Motor Division, Whisler Chevrolet and Tyrrell Chevrolet, and then entered judgment against J. A. Chevrolet Cadillac in the sum of $2,600.00. Plaintiff has appealed from the judgment except for that portion entered in favor of Whisler Chevrolet of Rock Springs.

While not properly denominated as such, the defendants moved for dismissal of plaintiff's action and claims, pursuant to Rule 41(b), in pertinent part:

"(1) By Defendant. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in the rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. * * * " (Emphasis added.)

This court in Angus Hunt Ranch, Inc. v. REB, Inc., Wyo.1978, 577 P.2d 645, citing Arbenz v. Bebout, Wyo.1968, 444 P.2d 317, has set out an approved approach to be used by a trial judge in considering such a motion, which we follow. When plaintiff's proof fails in some aspect, the motion must be granted. When plaintiff's evidence is overpowering, the trial judge's work is easy and the motion should be denied. When the plaintiff has presented only a prima facie case founded on unimpeached evidence, the district judge should not grant the motion, even though he sits in the stead of a jury as the trier of facts and may not feel at that juncture of the trial that plaintiff has sustained his proof burden. When in the latter position, the trial judge should accept the Rule's alternative, whereby he "* * * may decline to render any judgment until the close of all the evidence * * * " and deny the motion. 2

With that standard confronting the trial court and keeping in mind that such a dismissal on the merits provides a means to dispose of a case at the first opportunity, Brydon v. Brydon, Wyo.1951, 365 P.2d 55, we must also consider our review of the trial court's judgment. We are provided a guide by the Rules. Rule 41(b) requires that the trial court make findings as provided in Rule 52(a), which Rule provides:

"(a) General and Special Findings by Court. Upon the trial of questions of fact by the court, or with an advisory jury, it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant, unless one of the parties request it before the introduction of any evidence, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing its special findings of fact separately from its conclusions of law; provided, that without such request the court may make such special findings of fact and conclusions of law as it deems proper and if the same are preserved in the record either by stenographic report or by the court's written memorandum, The same may be considered on appeal. Requests for findings are not necessary for purposes of review. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of court." 3 (Emphasis added.)

Rule 41(a) W.R.C.P., makes it mandatory that when a motion to dismiss is granted at the end of the plaintiff's case, the trial judge makes findings of fact and conclusions of law. The requirement of a request, as set out in Rule 52(a), supra, does not in that instance apply.

Another standard we must apply is that the evidence must be considered in the light most favorable to the plaintiff. Angus Hunt Ranch, Inc. v. REB, Inc., supra. The conclusions of law are freely reviewable. U. S. v. Mississippi Valley Generating Co., 1961, 364 U.S. 520, 526, 81 S.Ct. 294, 297, 5 L.Ed.2d 268.

The trial judge in this case did not make formal findings of fact and conclusions of law. The court did, however, set out its findings and conclusions orally, preserving them by stenographic reporting in the transcript before us as part of the record. That meets the technical requirements of Rule 52(a), though we would, for purposes of review, prefer the formal variety. We shall align his findings into this opinion, as necessary.

Accompanying plaintiff's vehicle when delivered to him was an express contractual warranty, provided by Chevrolet Motor Division, warranting the car for a specified period against defects in material or workmanship and agreeing to correct any such defects within a reasonable time. 4 In order for the plaintiff to prevail, he must show first that there was a defective product, second, how it was defective, and third, that a defendant is responsible under Wyoming law. Colorado Serum Company v. Arp, Wyo.1972, 504 P.2d 801, 805.

There is apparently no dispute that the product here was defective and the evidence demonstrates how it was defective. The trial judge held there was no liability as to Chevrolet Motor Division or Tyrrell Chevrolet because neither ever refused to do any work requested nor charged plaintiff for any parts replaced or work done on his vehicle, pointing out that the warranty did not assure that the vehicle was free of defects but only that defective items would be repaired or replaced without charge. 5

Because Chevrolet Motor Division undertook to perform all work requested by the plaintiff without charge, it must be concluded that all defects fell within its warranty. We hold the trial court applied an erroneous conclusion of law in dismissing the case against the Chevrolet Motor Division. The evidence of the plaintiff clearly shows that there was a breach of the manufacturer's express warranty based upon the generally accepted rule that an unsuccessful effort to remedy defects found to exist renders the seller-warrantor liable; the buyer is not bound to allow him a second opportunity or permit him to tinker with the article indefinitely in the hope that it may ultimately be made to comply with the warranty. Schroeder v. Fageol Motors, Inc., 1974, 12 Wash.App. 161, 528 P.2d 992, 995, aff'd. in part, rev'd, in part on other grounds, 86 Wash.2d 256, 544 P.2d 20; Judd Construction Company v. Bob Post, Inc., Colo.App.1973, 516 P.2d 449; Steele v. J. I. Case Co., 1966, 197 Kan. 554, 419 P.2d 902; Kaiser Cement & Gypsum Corporation v. Allis-Chalmers Manufacturing Company, 1973, 35 Cal.App.3d 948, 111 Cal.Rptr. 210; Seely v. White Motor Company, 1965, 63 Cal.2d 9, 45 Cal.Rptr. 17, 403...

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