McGuire v. Nelson
| Decision Date | 29 March 1973 |
| Docket Number | No. 12216,12216 |
| Citation | 162 Mont. 37,508 P.2d 558 |
| Parties | , 12 UCC Rep.Serv. 619 Douglas R. McGUIRE, Plaintiff and Respondent, v. Howard NELSON d/b/a Harmony House, Defendant and Appellant. |
| Court | Montana Supreme Court |
Bennett & Bennett, Bozeman, Lyman H. Bennett III, argued, Lyman H. Bennett, Jr., Bolinger & Willcome, Bozeman, Page Wellcome, argued, Bozeman, for appellant.
Berger, Anderson, Sinclair & Murphy, Billings, Richard Anderson, argued, Billings, for respondent.
This is an appeal from judgment entered on a jury verdict in the district court of the eighteenth judicial district, county of Gallatin. The jury returned a verdict in the amount of $45,000 in favor of plaintiff. After denial of defendant's motion for a new trial, defendant appealed the final judgment and order denying a new trial.
Plaintiff brought the action to recover damages for personal injuries sustained in a motorcycle accident which occurred on July 5, 1970. Defendant Howard Nelson, d/b/a Harmony House, is an authorized Honda dealer.
Plaintiff purchased a used 1966 Honda Trail 90 motorcycle from a friend in April 1970. The front tire of the Honda was badly worn so plaintiff desired to replace it. Since plaintiff was working full time during the day and as a musician at night, he sent his girl friend, now his wife, sherrie Johnson McGuire, to Harmony House to purchase the new tire. He instructed her to ask for a tire for a '1966 Honda Trail Bike 90'. Sherrie contended she went to Harmony House and purchased a tire, although defendant and his employees denied selling her any tire. Plaintiff's witnesses placed her near the store with a tire at the time of the alleged purchase. She testified she specified a tire 'for a 1966 Trail Bike Honda 90'. Allegedly, an employee of Harmony then checked some catalogs, conversed with other employees, and then brought out a tire from the back room and sold it to her. She took the tire to the store where plaintiff worked and placed the tire in his car.
Plaintiff testified that a day two later he took the tire and motorcycle to a service station to have the tire mounted. However, the owner of the servide station contended plaintiff could not have had the tire mounted at his station because he had a set policy not to mount motorcycle tires. Further, he did not have proper equipment to mount motorcycle tires. In any event, the tire was mounted on the Honda Trail Bike 90.
Plaintiff maintains the crux of the case lies in the difference between the proper front tire size listed in the manufacturer's specifications and the size of the tire actually mounted on the motorcycle. The size of the tire purchased by Sherrie McGuire and mounted on the motorcycle was a 2.75 17. The proper front tire, according to manufacturer's specifications was a 2.50 17 size. The tire Sherrie purchased was the proper size for the rear wheel but at the time of the purchase she did not specify whether she wanted a front or rear tire.
The day of the accident, plaintiff and Sherrie went to an area called 'the pits' near Bozeman. The motorcycle was designed as a trial bike and plaintiff intended to use it there for that purpose. Sherrie was hesitant about riding down a particular incline and plaintiff teased her by edging the bike over the hill. As the bike began to roll, it encountered a rise or bump in the terrain about 2 1/2 feet from the top of the hill. The motorcycle suddenly pitched forward throwing Sherrie to the side. Plaintiff plummeted down the hill with the bike landing on top of him. He sustained a fractured pelvis and dislocated hip. Sherrie received no serious injury and makes no claim for any. That plaintiff requires further surgery and perhaps even total hip replacement was not contested by defendant.
The exact cause of the accident was unknown to plaintiff at that time. He speculated to an ambulance driver that he may have applied the front brake. Some nine months after the accident, plaintiff was riding the same cycle, with the same equipment, over a bumpy terrain of first-size rocks. As he drove over the rocks, he felt a momentary seizing of the front wheel. He observed that when he hit a rock the wheel would move up in the front fender housing and freeze as it hit the upper limit of travel. He told friends with him that he had just discovered the cause of the accident. One friend tried the same thing and observed the same results.
Later, plaintiff compared his cycle with one nearly identical to his and noticed that his front tire was a 2.75 17, while the other cycle's front tire was a 2.50 17. He then took his bike to a cycle shop operator, Ron Abelin, for further checking. Abelin placed a furniture clamp on the handlebars and the front wheel axle to compress the front shock absorber to the limit of travel. Upon doing so, the front tire would not turn.
This same demonstration was conducted at trial. When the clamp was placed on the left side the tire would turn slightly; when placed on the right side the tire would not turn at all. When the 2.75 17 tire was replaced with the 2.50 17 tire, the tire rotated freely with the clamp placed on either side. Defendant objected to the demonstration on the grounds that similarity of conditions could not be shown; that is, there was no showing the normal operation of the cycle would place the same pressure on the front fork as did the furniture clamp. The demonstration was performed; defendant was allowed a continuing objection.
Just prior to trial on December 10, 1971, plaintiff moved to amend his complaint to encompass a theory of implied warranty of fitness, as provided in section 87A-2-315, R.C.M.1947. Hearing on the motion to amend was held the day of trial, December 14, 1971. Defendant maintained the motion was not timely in that it changed the theory of the law on the case for which defendant had no time to prepare. Plaintiff contended the amendment merely explained and clarified the complaint. The court granted the motion to amend, denied defendant's motion for continuance, and ordered the trial to begin.
Defendant presents seven issues for review on appeal, but we will discuss only those issues determinative of this case.
While warranties of fitness for a particular purpose, as expressed in section 87A-2-315, R.C.M.1947, are not novel before this Court, this case presents the first instance in which we need consider the substantive problems raised under the statute. We will first consider whether the motion to amend should have been granted.
We cannot agree that plaintiff's amendment merely clarified the original complaint. The original complaint was clearly based on the alleged negligence of defendant. The pretrial order was no different. This remained the theory of the case until very shortly before the trial. In fact, as heretofore noted, the motion to amend was not granted until the very day of trial. If the complaint and pretrial order so clearly stated a theory of implied warranty of fitness, as plaintiff contends, why was it not expressly stated? Obviously, it was not contemplated until shortly before the motion the amend was filed.
It was error for the trial court to grant plaintiff's motion to amend the complaint to include the theory of implied warranty of fitness. Although Rule 15(a), M.R.Civ.P., establishes that leave to amend shall be freely granted, amendments should not be allowed where the theory presented by the amendment is totally inapplicable to the case, as is the situation here.
Negligence, either on the part of defendant or plaintiff, has no place in an action for an alleged breach of warranty. Similarly, warranty theories are irrelevant to a negligence case. In Picker X-Ray Corp. v. General Motors Corp., 185 A.2d 919, 922, the Municipal Court of Appeals for the District of Columbia, said:
(Paraphrased material added).
See also: 2 Frumer & Friedman, Products Liability, § 16.01(1); 3 Bender's U.C.C....
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Wright v. State
...plaintiff when it was not made clear admission was solely for illustrative purposes and therefore was prejudicial); McGuire v. Nelson, 162 Mont. 37, 508 P.2d 558, 562 (1993) (holding it was reversible error to permit in-court demonstration using furniture clamp applied to motorcycle to simu......
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Anderson v. Werner Enterprises, Inc.
...and received a total damage award of $45,000, an amount fifteen times less than the amount received by Anderson. See McGuire v. Nelson (1973), 162 Mont. 37, 508 P.2d 558. ¶44 We reject Werner/Freeman's arguments concerning excessive damages. The mere fact that a damage award exceeds that re......
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Kearns v. McIntyre Const. Co.
...pleading, whichever period may be the longer, unless the court otherwise orders." (Emphasis added.) Defendants cite McGuire v. Nelson, 162 Mont. 37, 42, 508 P.2d 558, for the proposition a plaintiff is denied the right to amend his complaint when the amendments materially change the theory ......
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Yellowstone Conference of United Methodist Church v. D.A. Davidson, Inc.
...audit and evidence gathered through discovery served to place the Church on notice of its cause of action. In McGuire v. Nelson (1973), 162 Mont. 37, 42, 508 P.2d 558, 560, we held it was an abuse of discretion to grant an amendment to the pleadings on the eve of trial, when the amendment c......