Payne v. Valley Motor Sales, Inc., 12136

Citation146 W.Va. 1063,124 S.E.2d 622
Decision Date27 March 1962
Docket NumberNo. 12136,12136
CourtSupreme Court of West Virginia

Syllabus by the Court

1. Effect will be given to an express warranty as written where it specifically excludes implied warrnties and limits amount of damages.

2. A breach of warranty may be proved by circumstantial evidence as well as direct evidence but the jury must not be left to guess the cause of the alleged breach.

Lively, Light & Francis, William T. Lively, Jr., Charleston, for plaintiff in error.

Kay, Casto & Chaney, John S. Haight, Charleston, for defendant in error.

BERRY, Judge.

On October 9, 1961, the Court granted a writ of error to a judgment of the Circuit Court of Kanawha County of September 8, 1961, which reversed and set aside a $1768.18 judgment of the Common Pleas Court of Kanawha County in favor of the plaintiff, Clayton O. Payne, against the defendant, the Valley Motor Sales, Inc.

This case involves a point of law not heretofore directly considered by this Court dealing with the effect of an express warranty given by an automobile dealer limiting the damages recoverable under such warranty and specifically excluding all other warranties, either express or implied. The Circuit Court held that the plaintiff had elected to proceed upon implied warranty, and that the express warranty excluded all implied warranties and limited the damages to replacement of defective parts.

On or about May 31, 1957, Clayton O. Payne purchased from the Valley Motor Sales, Inc. a new 1957 F-250 Ford three-quarter ton pickup truck on which the dealer issued a specific warranty on the back of a purchase order signed by the plaintiff, in the form commonly used by automobile dealers in the following words:

'Dealer warrants to Purchaser (except as hereinafter provided) each part of each Ford Motor Company product sold by Dealer to Purchaser to be free under normal use and service from defects in material and workmanship until such product has been driven, used or operated for a distance of four thousand (4,000) miles or for a period of ninety (90) days from the date of delivery to Purchaser, whichever event first shall occur. Dealer makes no warranty whatsoever with respect to tires or tubes. Dealer's obligation under this warranty is limited to replacement of, at Dealer's location, or credit for, such parts as shall be returned to Dealer with transportation charges prepaid and shall be acknowledged by Dealer to be defective. This warranty shall not apply to any Ford Motor Company product that has been subject to misuse, negligence or accident or in which parts not made or supplied by Ford Motor Company are used, if, in the sole judgment of Dealer such use affects its performance, stability or reliability, or which shall have been altered or repaired outside of Dealer's place of business in a manner which, in the sole judgment of Dealer, affects its performance, stability or reliability. This warranty is expressly in lieu of all other warranties, express or implied, and of all other obligations or liabilities on the part of Dealer, except such obligation or liability as Dealer may assume by its Authorized Ford Dealer's Service Policy or separate written instrument. * * *'

An accident involving the Ford truck occurred on Route 119, two miles above Clendenin, West Virginia, when plaintiff and a friend, Mark Brown, were returning from a frog-hunting expedition on June 9, 1957, at about 1 o'clock a. m. Their testimony was to the effect that it 'seemed like' something hit the right side of the truck and it suddenly began to shimmy, make a noise and travel erratically, with these manifestations coming, as near as they could tell, from the right rear of the truck. It then struck a car parked on the left berm and a utility pole which the plaintiff stated was on the left of the road, although Brown, who was in the truck with the plaintiff, testified that the pole they struck was on the right of the road. The truck went over a five foot embankment on the left of the road and downhill 40 feet into a meadow, where it came to rest about 15 feet below the road surface. Personal injuries were not sustained, but the front of the truck was damaged to such extent that it was sold for $650.00, the salvage value, and the plaintiff bought a new one. The damages to the truck amounted to $1768.18, the difference between its original cost and its salvage value.

The wheel on the plaintiff's truck consisted of a center with four projections, called a disc, in the form of a Maltese cross, which was pressed into a circular rim on which the tire is mounted. During the manufacturing process a press forces portions of the rim from the outer circumference into three holes in each of the four projections, making 12 points at which the disc and rim lock together by what are called 'extruded rivests'. Examination of one wheel of the truck after the accident showed that the tire and rim were separated from the disc. The driver, occupant, and a tow-truck driver all testified that the broken wheel was on the right rear of the truck.

Plaintiff's theory of the case was that the rim and disc came apart and caused him to wreck. In order to do so, the extruded rivets had to be partially sheared at their extreme ends and the wheel introduced as an exhibit shows this condition. He contends that this constituted a defect covered by the warranty, and warrantor would be responsible for all consequential damages. Defendant on the other hand contends that the wheel was not defective, or if it was, all the warrantor owes is for a new wheel. Plaintiff takes the alternative position that if the express warranty does not cover it, there is an implied one that does. Plaintiff did not introduce any evidence by an expert as to why the wheel came apart. He merely showed that the accident happened and he was damaged.

Defendant introduced only one witness, a quality control engineer of the Ford Motor Company named Robert Riding, who testified in connection with photographs, measurements, examinations and physical facts. His evidence was as follows: The company had conducted experiments and found that a force of 4,000 pounds was required to separate a tubeless tire from the rim, and still more force would be required coming from the side against a portion of the rim to separate the rim from the disc. This force cannot be easily applied running straight, but may come if a vehicle is suddenly turned sideways at high speed so that the force applied to the bottoms of the wheels results from a sideways skid; and even this will not do it unless there is something of loose consistency at the bottom of the wheel, such as dirt or gravel that will pile up and resist the skid. For any loosening of the rim from the disc, two of the four projections (spokes) would have to be loose. If a rim and tire came off while the vehicle was on the highway, the brake drum would hit the highway and produce damage visible on the drum.

The expert testified that separation of the tire and marks thereon showed some external force applied, that there was no evidence in the right rear fender well that a tire had been loose there, that such rubbing marks were visible in the right front fender well, that no brake drum damage was evident, that the whole front-end suspension had been moved over to the left by a blow from the right, that the right front spindle on which the wheel turns had been bent down 1/4 inch, indicating a blow on the bottom of the wheel.

The expert thereupon testified that the defective wheel must have been on the right front, not the right rear of the truck. Furthermore, he stated, the rim is pressed in and the rivets extruded before painting, so that paint could not get into the joints unless there was looseness and the wheel showed no paint had penetrated between the disc and the rim and around the rivets; that had the rim come loose during travel, the rivets would wear, which they had not done. The conclusions reasonably following from his evidence are that the wheel was solidly put together and became separated as the result of an external blow, not an internal defect.

The photographs and wheel assembly introduced as exhibits confirm the testimony of the expert. Also, the steel rim shows that a segment was knocked out of it about 1/2 inch deep and 3/8 inch wide, indicating that it had received a severe blow.

The wheel disc did not become disengaged from the hub or axle. The tire and rim were introduced as Plaintiff's Exhibit No. 3, and the wheel disc was introduced as Plaintiff's Exhibit No. 4. The disc was sprung, indicating that it had been subjected to considerable force.

Plaintiff's assignments of error in this Court raise the following questions: (1) Can both express and implied warranties exist as to the same defect? (2) Does the express warranty cover consequential damages?

Error was cross-assigned in this Court by the defendant that the plaintiff failed to prove a breach of warranty.

A suit on a warranty may be either in assumpsit or tort under the old forms of pleadings which were in effect at the time this case was brought and tried, and a count for deceit was sometimes added to the tort action. Steel v. American Oil Development Co., 80 W.Va. 206, 92 S.E. 410, L.R.A.1917E. 975; Schaffner v. National Supply Co., 80 W.Va. 111, 92 S.E. 580; Burgess v. Sanitary Meat Market, 121 W.Va. 605, 5 S.E.2d 785, 6 S.E.2d 254.

A question has been raised in the instant case in connection with the Circuit Court's decision as to whether the defendant was proceeding under the theory of an express warranty or on an implied warranty, or on both. Under the old rules of procedure the same pleading could support both theories. The form of the declaration was that the defendant 'undertook and promised'. The same allegations could allow proof of either an express or implied...

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13 cases
  • Anderson v. Chrysler Corp.
    • United States
    • West Virginia Supreme Court
    • March 15, 1991
    ...whether a plaintiff has made a prima facie case of breach of warranty. Nearly thirty years ago, in Syllabus Point 2 of Payne v. Valley Motor Sales, Inc., 146 W.Va. 1063, 124 S.E.2d 622 (1962), modified on other grounds, Dawson v. Canteen Corp., 158 W.Va. 516, 212 S.E.2d 82 (1975), we dealt ......
  • Nettles v. Imperial Distributors, Inc.
    • United States
    • West Virginia Supreme Court
    • January 16, 1968
    ...implied in the circumstances, the defendant could have insisted that the writing expressly exclude implied warranties. Payne v. Valley Motor Sales, Inc., 146 W.Va. 1063, pt. 1 syl., 124 S.E.2d 622. The fact remains that the parties entered into a written contract which is silent on the subj......
  • Smith v. Edward M. Rude Carrier Corp.
    • United States
    • West Virginia Supreme Court
    • December 13, 1966
    ...Butler v. Smith's Transfer Corp., 147 W.Va. 402, 128 S.E.2d 32; Spaur v. Hayes, 147 W.Va. 168, 126 S.E.2d 187; Payne v. Valley Motor Sales, 146 W.Va. 1063, 124 S.E.2d 622; Webb v. Harrison, 127 W.Va. 124, 31 S.E.2d 686; Barry v. Tyler, 171 Va. 381, 199 S.E. As stated in 32A C.J.S. Evidence ......
  • Skeen v. C & G Corp.
    • United States
    • West Virginia Supreme Court
    • December 14, 1971
    ...we cannot consider the provisions of the Uniform Commercial Code in the disposition of this case. The cases of Payne v. Valley Motor Sales Co., 146 W.Va. 1063, 124 S.E.2d 622, and Williams v. Chrysler Corporation, 148 W.Va. 655, 137 S.E.2d 225, would therefore have to be considered, and if ......
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