Mullins v. Sam Scism Motors, Inc., 7764

• Decision Date: 08 January 1960
• Docket Number: No. 7764,7764
• Citation: 331 S.W.2d 185
• Parties: Mrs. Jewell MULLINS, Plaintiff-Respondent, v. SAM SCISM MOTORS, INCORPORATED, and Sam Scism, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 185

331 S.W.2d 185

Mrs. Jewell MULLINS, Plaintiff-Respondent, v.SAM SCISM MOTORS, INCORPORATED, and Sam Scism, Defendants-Appellants.

No. 7764.

Springfield Court of Appeals, Missouri.

Jan. 8, 1960.

Briney & Welborn, Bloomfield, for appellants.

Bloodworth & Bloodworth, Poplar Bluff, for respondent.

McDOWELL, Judge.

This is an action for breach of warranty growing out of the sale of an automobile.In the trial below the cause was submitted to the jury for breach of implied warranty resulting in a verdict and judgment for plaintiff in the sum of $1,160 and interest of $110.21.Defendants appealed.

The suit was against defendants, Sam Scism Motors, Inc., and Sam Scism, and the Ford Motor Company.

The petition alleged inter alia that on November 9, 1956, plaintiff purchased a new Ford automobile from Sam Scism Motors, Inc., and Sam Scism; that the vehicle was manufactured by defendant, Ford Motor Company; that all of the defendants impliedly warranted said motor vehicle to be new and in first class condition and free from all defects; that appellants-defendants warranted the same 'by both implication and by their contract in writing' to be in first class condition, of superior quality and free from defects; that said automobile so purchased by plaintiff was not in first class condition, was not of superior quality and was not free of defects but was poorly constructed and of greatly inferior quality in that its steering mechanism was faulty, its frame and wheels were sprung, the body was sprung and misshapen causing the rain to enter the interior of the automobile around the windshield, doors, back windows and trunk and that the heater leaked and when in operation and because of the misfitting windshield excessively loud and whistling noises were produced and that the exterior paint was a poor quality and soon faded.That as a result of the windshield and back window leaks, the interior of said automobile had been damaged; that as a result of the heater leaks the floor rugs have rotted and come apart and plaintiff has been deprived of the use of said automobile to plaintiff's damage in the sum of $2,000.

Defendant, Ford Motor Company, in its answer admitted it was the manufacturer and that the defendant, Sam Scism Motors Inc., was the Ford Dealer and denied all other allegations and specifically denied any warranty as alleged.DefendantsSam Scism Motors Inc., and Sam Scism admitted the Ford dealership, the sale to plaintiff of the new Ford in question but denied all other allegations.

Said defendants likewise filed a cross claim against the Ford Motor Company alleging that if said motor vehicle was defective, as alleged, the defects were caused by the Ford Motor Company and that if Sam Scism and Sam Scism Motors, Inc., were adjudged liable to plaintiff, prayed judgment against the Ford Motor Company for such sum and for attorney fees for being forced to defend the petition.A separate trial was awarded by the court on the cross claim.

At the close of plaintiff's evidence the court directed a verdict in favor of defendantFord Motor Company and against plaintiff and the cause proceeded against defendantsSam Scism Motors, Inc., and Sam Scism.

Plaintiff's evidence shows that she is a resident of Farmington and that defendantSam Scism is engaged in the sale of automobiles in Flat River under the corporate name of Sam Scism Motors Inc.; that on November 9, 1956, plaintiff purchased from defendants a new 1957 Ford automobile, price $2,132.The day prior to the purchase, one Hubbard, salesman for defendants, took the car to Farmington to show plaintiff and her husband; he took them for a ride a few blocks about town; plaintiff's husband remarked to the salesman that the car rattled and he didn't think it was any good.Hubbard stated that the car had just come in and they had not had time to correct the rattles but that the car would be checked and be all right if plaintiff bought it.

The next day plaintiff went to defendants' place of business and purchased the car.At time of purchase she talked to both the agent, Hubbard, and defendant, Sam Scism, about the rattles and was informed by them that they would certainly take care of that; that immediately after the purchase she discovered the heater was leaking and the windshield was making a noise; that when it rained the windshield leaked a little; that the first windshield did not leak as much as the second one; that the doors and trunk leaked from the very first time it rained.She gave this testimony:

'Q.How about the rear window?A.That is right, on both corners at the bottom.

'Q.What effect, if any, did this water entering around the windshield have upon the interior of your automobile?A.It shows it has leaked.

'Q.How does it show it?A.Rain spots.

'Q.Where are those spots?A.Around the windshield, they are on the upholstery, on the sides, around the doors.'

Plaintiff complained about these leaks to the defendants as soon as she noticed them after it rained.She went to defendants' place of business and talked to them about it.She testified:

'Q.What, if anything, did they do to correct them?A.They dabbed some stuff around the windshield, they said to correct the wind.They didn't pay much attention to the other, in the first windshield.'

Her evidence is that the car never steered properly; that it always pulled to the side; that the paint on the right fender was discolored and looked like it had been repaired; that the heater leaked from the beginning and let the anti-freeze come through on the interior of the car; she had to have the heater disconnected.Some sixty days after the purchase plaintiff was introduced by defendant, Scism, to an adjuster of the Ford Motor Company at defendants' place of business.The adjuster examined the windshield and said it was a misfit and ordered a new one.The new one was not replaced until August due to a cyclone striking in the community and injuring so many cars that defendants could not get to it.The evidence is that the new windshield did not fit; that it was improperly installed and leaked at the top.Nothing was ever done by the defendants to remedy the leaks in the doors and heater.Witness said she talked to defendant many times with reference to these defects and he would say 'I don't make the cars, Jewell, I just sell them', and laugh about it.

On cross-examination plaintiff testified at the time she bought the automobile she did not rely upon any advertisements over the radio or television programs and had not seen any pamphlets regarding automobiles made by the Ford Company.She stated that at the time the salesman brought the car over to demonstrate it, she looked at it and it was the same car she bought.Plaintiff admitted she had driven the car 11,000 miles and had had it about eighteen months.She gave this evidence:

'Q.How soon was it that you started noticing something wrong with it, was it just as soon as you got it, the first day?A.I think I had it about a week, maybe two weeks, something like that.I drove it to St. Louis.I just happened to be in front of a place on Broadway and it wouldn't feed any gas and I couldn't do a thing about it then, I just had to stop.This fellow said it was a bolt or screw fell out.'

She testified she took the car back to defendant for the ninety day check-up and at that time told them of the windshield and the heater trouble and the leaks.She gave this testimony:

'Q.What do you mean, the leaks around the windshield?A.Around the doors, around the trunk, around the back window.

'Q.They did take some sticky cement or something of that sort and put up around the windshield, didn't they?A.Yes, and the back glass too.

'Q.Who all have you taken the car to, to try to have something done to it, besides Scism, anybody?A.Yes, I have taken it to Farmington Body Shop to have them look at it.'

She stated that Bill Hughes at the Farmington Body Shop looked at the car after the matter was turned over to Judge Swink for suit and that she had a Mr. Boone at Farmington test the car.

Witness testified that she called the Ford Motor Company and they sent their man down to the defendants' place of business where she talked to him in the office, which was after the second windshield was installed, about two weeks; that she told him about the windshield and complained about the heater, leaks and everything, including the paint on the quater paneling.She gave this answer: 'A.He didn't offer to put in a windshield, he said there was nothing wrong with that windshield.'She testified that he and Mr. Scism tried the car out.

Billy Gene Hughes testified for plaintiff that he operated a body shop in Farmington and had been in that business about seven years; that he had been to Fisher Body School.He said he examined plaintiff's car in November, last year; that the first thing he did was to drive it on rough road and pavement; that plaintiff complained the car did not drive right and had a few rattles; that he drove it possibly 15 or 20 miles and brought it back to the shop, checked it over and found that the windshield did not fit the opening panel; that the whole roof panel and front body pillars were not put in satisfactorily; that as a result of the windshield not fitting, he observed leakage of water seeping in; that water stains were in both right hand corners of the car and water ran down across the dash and under it, down over the kick pads where it fits up against the wall; that the windlace that goes around the door on the inside to keep the wind from coming in was stained with water and had turned white; that he observed in the back where the head liner comes down on the side of the back glass, above the back seat lining that the car was water stained where the back glass had leaked.He said that the windshield did not fit and the back glass was almost like the windshield, not quite as bad, the water had leaked in around both...