Melody Home Mfg. Co. v. Morrison
| Decision Date | 08 November 1973 |
| Docket Number | No. 16165,16165 |
| Citation | 502 S.W.2d 196,13 UCCRep.Serv. 1035 |
| Parties | 13 UCC Rep.Serv. 1035 MELODY HOME MANUFACTURING COMPANY, Appellant, v. Elby E. MORRISON et ux., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Christopher, Bailey & Taylor, M. Ward Bailey, Fort Worth, for appellant.
Malone, Murphy & Fenley, W. R. Malone, Huntsville, for appellees.
Melody Home Manufacturing Company appeals from a judgment rendered on jury findings that a mobile home which it had manufactured and delivered to a retailer, and which was subsequently purchased by appellees, was defective at the time of purchase. Judgment was for the sum of $4,000.00, which represented the difference between the reasonable cash market value of the mobile home at the time of purchase and the amount of its market value had it then been fit for the purpose intended. Interest at the rate of 6% Was awarded from the date of purchase.
The issues submitted and the jury's findings were as follows:
SPECIAL ISSUE NO. 1
'Do you find from a preponderance of the evidence that the Mobile home in question was not free from defects in workmanship and materials at the time it was delivered to the defendant Capri Mobile Home Sales, Inc., by the Defendant Melody Home Manufacturing Company?
'Answer: 'It was not free from defects.'
SPECIAL ISSUE NO. 2
(conditioned on Special Issue No. 1)
'Do you find from a preponderance of the evidence that the defects in workmanship and materials, if any you have found in answer to Special Issue No. 1 were in the workmanship and materials furnished or supplied by the defendant Melody Home Manufacturing in the construction of the Mobile home in question?
'Answer: 'We do.'
SPECIAL ISSUE NO. 3
(conditioned on Special Issue No. 2)
'Do you find from a preponderance of the evidence that the Plaintiffs Elby Morrison and wife, notified the defendant Melody Home Manufacturing Company of any defects in materials and workmanship, if any you have found in answer to the foregoing Special Issue No. 2 within a reasonable time after Plaintiffs discovered or should be discovered any such defects?
'Answer: 'We do.'
SPECIAL ISSUE NO. 4
(conditioned on Special Issue No. 3)
'Do you find from a preponderance of the evidence that the Defendant Melody Home Manufacturing Company failed to remedy the defects in workmanship and materials if any you have found in answer to Special Issue No. 2?
'Answer: 'We do.'
'Do you find from a preponderance of the evidence that at the time the Morrisons purchased the mobile home in question, it was not fit for the ordinary purpose for which such mobile homes are intended to be used?
'Answer: 'It was not fit.'
SPECIAL ISSUE NO. 6
(conditioned on Special Issue No. 5)
'Do you find from a preponderance of the evidence that the lack of fitness, if such you have found, was of such a nature as not to be ascertainable by the plaintiffs or persons situated as they were, in the exercise of ordinary care, upon inspection of the mobile home in question at the time it was purchased or within a reasonable time thereafter?
'Answer: 'It was of such a nature.'
'Do you find from a preponderance of the evidence that at the time the Morrisons purchased the mobile home in question, it was in substantially the same condition as it was in when it was delivered to Capri Mobile Home Sales, Inc., by the Defendant, Melody Home Manufacturing Company?
'Answer: 'It was.'
'Find from a preponderance of the evidence, the cash market value of the mobile home in question as it existed at the time it was purchased by the Plaintiffs in Pharr, Texas?
'Answer: $2,000.00.'
Melody Home complains, in seventeen points of error, that the trial court erred in overruling its motion to strike and in limine and in admitting in evidence testimony relating to noxious and toxic substances in the mobile home's water supply system; in overruling its motions for instructed verdict and for judgment n.o.v., and that the jury's verdict was not supported by sufficient evidence and was against the great weight and preponderance of the evidence and in certain respects indicated improper motivation. Appellant further complains the trial court erred in its award of interest from date of purchase rather than from date of judgment.
Prior to trial, Melody Home had entered into a settlement and release agreement with appellees, under which appellees, for consideration paid, released all claims for alleged personal injuries due to the defective mobile home. Melody Home, by its motion to strike and motion in limine, sought to prevent during trial any reference being made to the alleged noxious and contaminating substances in the water pipe system of the mobile home . In response to such motions, appellees' attorney stated to the court that any testimony would be limited solely to the question of the home being unsuitable for the purposes intended and that he would be agreeable to the court's instructing the jury to consider it only for such limited purpose. The trial court then overruled the motions but stated it would 'seriously limit' the testimony. The trial court also stated it would rule on the objections when made. Before any evidence was introduced, Melody Home stated it wished to renew its objections under its motions, which objections were overruled but there was never any request for or the granting of a running objection, to testimony on this point. The witnesses then were permitted, without objection being made, to testify extensively as to the noxious and contaminated condition of the water and its offensive odor and appearance, as well as its effect upon persons who used it. The testimony indicated that when pure water passed through the mobile home pipes, it came out contaminated and of a bad odor, even after efforts were made to remedy the defect, and we hold such evidence was admissible to demonstrate the unsuitability of the home for the purpose intended. Furthermore, no further motion was made by Melody Home to strike this testimony, nor was any request made upon the trial court to give a limiting instruction. Under the circumstances we cannot say the trial court erred and we overrule appellant's points of error 1 through 3.
Melody Home's fourth point of error complains that the trial court failed to instruct a verdict in its favor. Under this general point it argues it was not notified of the alleged defective condition within the time limit of its written warranty or within a reasonable time as required by the Business and Commerce Code. We do not believe this point of error was properly preserved because in its motion for new trial, as well as in its brief, the grounds are not specifically and clearly stated. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Rule 321, Texas Rules of Civil Procedure. However, even considering such point to be properly preserved we find same to be without merit under the facts of this case.
The evidence offered on behalf of Melody Home to show that appellees had notice of the contents of the company's written warranty was inconclusive, indicating only that a warranty is ordinarily contained in the mobile home when delivered to the customer. Appellees testified positively that they were not furnished a copy of the warranty. No issue was submitted or requested by Melody Home on the issue of whether a written warranty had been furnished to appellees; this ground of defense must be deemed waived. Rule 279, T.R.C.P.; McDonald, Texas Civil Practice, Rev.Ed. (1970), Vol. 3, Sec. 12.36.2, p. 433.
The question of whether appellees notified Melody Home within a reasonable time after the defective condition was discovered was also a controverted issue. Appellees moved into the mobile home in June, 1969. Mrs. Morrison, an appellee, testified:
'Q When did you call that factory?
'A I called him about the first--about the middle part of the second week in June.
'Q Middle of the second week in June?
'A I don't know exactly what date, but it was right after I got the trailer.
'Q And what did you tell Mr. Luther when you phoned him at the Melody Home Manufacturing Company factory?
'Q What did he tell you?
'A He told me to write him a letter and make him a list of all of the faults that was wrong with my trailer house and send it to him.
'Q Did he tell you whether or not he would do anything?
'A He said--they would fix it for me.
'A Yes, I did.
'Q And when did you mail it, if you did?
Mrs. Morrison further testified:
'Q Mrs. Morrison, do you recall from your notes what you wrote this man in the letter, and if so tell the jury?
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