Petrus Chrysler-Plymouth v. Davis, CHRYSLER-PLYMOUT

• Decision Date: 09 July 1984
• Docket Number: No. 84-89,CHRYSLER-PLYMOUT,A,84-89
• Citation: 283 Ark. 172,671 S.W.2d 749
• Parties: PETRUSppellant, v. Leonard DAVIS and Joyce Davis, Appellees.
• Court: Arkansas Supreme Court

Page 749

671 S.W.2d 749

283 Ark. 172

PETRUS CHRYSLER-PLYMOUTH, Appellant, v. Leonard DAVIS and Joyce Davis, Appellees.

No. 84-89.

Supreme Court of Arkansas.

July 9, 1984.

Frank W. Booth, Fort Smith, for appellant.

Martin, Vater & Karr by Charles Karr, Fort Smith, for appellees.

HOLLINGSWORTH, Justice.

The appellees were awarded compensatory and punitive damages against the appellant, Petrus Chrysler-Plymouth, Inc., (Petrus) after a fire destroyed a 1975 Dodge Ramcharger purchased by the appellees from the appellant. Petrus raises seven issues in its appeal from the jury's verdict. This appeal is before us under Sup.Ct.R. 29(1)(o) as it presents questions in the law of torts and contracts. We affirm.

On June 9, 1979, Mr. and Mrs. Davis, the appellees, test drove the Ramcharger. As it was being driven by the appellees, it began to smoke from underneath the dash. When they returned it to the lot, they told the salesman what had happened. They then negotiated an agreement and signed a buyer's order dated June 9. Under the agreement, Petrus was to "repair wiring" "adjust clutch" and "fix hood latch."

Two days later, on June 11, Petrus contracted with Wimberly's Gulf Service Center for the repair work. Ray Wimberly testified at trial that he told Jean Dolan, who works for Petrus, that the vehicle's wiring harness needed to be repaired or replaced. He also testified that she told him they were only going to show the vehicle and she wanted him to get the air conditioner and the radio working. He stated that she told him that if someone bought it and the wiring still gave them trouble they could bring it back and fix it at another time. Mr. Wimberly replaced the switch and made the repairs on the air conditioner wires, but he did not replace the wiring harness.

Mr. Davis returned to Petrus to take possession of the vehicle on June 11. It had not been repaired so he did not take delivery, but returned on June 13. The clutch had still not been repaired, but he testified that the salesman told him the wiring harness had been replaced. Petrus gave Mr. Davis a $100 check for him to use to repair the clutch. Mr. Davis signed a second buyer's order dated June 11, 1979, which contained the handwritten notations, "as is" and "paid $100.00 for repair of clutch."

On June 15, while Mrs. Davis was driving the Ramcharger, it started smoking from underneath the dash, caught fire, and was heavily damaged.

The Davises brought suit when they were unable to resolve the matter with Petrus. A jury awarded them $10,700 for compensatory damages and $5000 for punitive damages.

On appeal, the appellant argues that: (1) the trial court erred in failing to grant their motion for directed verdict; (2) the trial court erred in allowing appellees to introduce oral testimony to vary and contradict the terms of the written contract between the parties; (3) the trial court erred in instructing the jury on the question of breach of warranty; (4) the trial court erred in giving the damage instruction because there was no evidence of probable cause; (5) the trial court erred in instructing the jury on punitive damages; (6) the trial court erred in directing a verdict for the appellees on the question of abuse of process; and (7) there was no substantial evidence to support the verdict of the jury. We find no merit in any of the appellant's contentions.

The crux of the appellant's first argument is that the trial court should have granted their motion for a directed verdict because of the appellees' failure to prove the existence of a defect and that the defect caused the damage. There was conflicting testimony as to the probability that the cause of the smoke coming out from under the dashboard on the test drive was the same as the cause of the fire that subsequently destroyed the vehicle. However, we review the evidence in the light most favorable to the appellees. Norman v. Gray, 238 Ark. 617, 383 S.W.2d 489 (1964). Since it is within the province of the jury to believe the appellees' theory over the appellant's version, we only consider whether there is any substantial evidence to support the jury's findings. Id.

We have adopted the doctrine of strict liability in torts in products liability cases. See Ark.Stat.Ann. § 85-2-318.2 (Supp.1983). This, however, does not change the burden of proof as to the existence of a defect in a product. Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980). Such proof may be by circumstantial evidence. Id. In Southern Co., we stated:

It is true, as appellant argues, that liability cannot be based on mere conjecture and guess. (citation omitted). However, in the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus raises a reasonable inference that the defendant as argued here, is responsible for the defect.

Furthermore, in Harrell Motors, Inc. et al v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981), we stated that:

proof of the specific defect is not required when common experience tells us that the accident would not have occurred in the absence of a defect. In such a situation there is an inference the product is defective, and it is up to the manufacturer to go forward with the evidence.

Here, we find there was ample evidence from which the jury could have inferred that the vehicle was defective when sold to the appellees, and that that defect ultimately resulted in the fire which destroyed the vehicle.

The appellant's second argument is that the trial court erred by...