Rester v. Morrow, 54971
| Decision Date | 04 June 1986 |
| Docket Number | No. 54971,54971 |
| Citation | 491 So.2d 204 |
| Parties | 1 UCC Rep.Serv.2d 751 Norman L. RESTER v. Tommy MORROW, etc., et al. |
| Court | Mississippi Supreme Court |
Susan K. Steadman, Eugene L. Fair, Hattiesburg, for appellant.
William A. Weinischke, R.A. Gray, III, Gray, Montague & Pittman, Norman W. Pauli, Jr., James H.C. Thomas, Jr., Hattiesburg, for appellees.
En Banc.
I.
This case presents twin questions regarding the rights of the purchaser and duties of the seller of an automobile which turned out to be a lemon. First, what must the purchaser show before he may revoke his acceptance of the automobile and recover the purchase price? Second, by reference to the standard to be given in answer to the first question, what quantum of proof must the purchaser offer before he has created a jury question on his right to revoke his acceptance?
Norman L. Rester (Rester) appeals from a directed verdict judgment in favor of the defendants Tommy Morrow A.M.C., Inc. (Morrow), Martin Motor Sales (Martin), Mississippi corporations, and American Motor Sales Corp. (AMC), a foreign corporation, in the Circuit Court of Forrest County. Rester had sued these defendants alleging his right under the Mississippi Uniform Commercial Code 1 (UCC) to revoke his acceptance of a demonstrator Renault automobile, and recover the purchase price.
We are of the view that the trial judge erred in holding that Rester failed to make out a jury issue on the question of whether he was entitled to revoke his acceptance and, for the reasons explained below, we reverse and remand.
II.
On April 13, 1981, Rester purchased a demonstrator 1981 model Renault series 18i with 2,915 miles from Morrow in Hattiesburg, paying $8,800 cash. He then financed the car through a local bank. The car carried AMC manufacturer's limited warranty against defects for the first occurring of 12,000 miles or 12 months.
While driving the car preparatory to purchase, a piece of chrome trim about one inch square fell off the windshield in heavy traffic. Rester did not stop to pick it up, and Morrow promised to replace it.
Just after his purchase, Rester drove the car to Florida on vacation, and was gone ten or eleven days. He reported to Morrow the following defects he had found in the car:
(1) When the hazard light (flasher signals) were turned on, the radio also came on.
(2) There was a gasoline odor in the car, noticeable mainly while driving without the air conditioner on. The odor could be detected in the trunk.
(3) When operating the air conditioner leaked heavily on the right side of the car.
(4) The car was equipped with a gauge which indicated the oil level, which Rester called the oil indicator gauge (not to be confused with an oil pressure gauge). This oil indicator gauge was not working.
About two weeks later the car was taken to Morrow's shop for repair. The hazard flasher/radio problem was fixed. The air conditioner started leaking again when Rester got home. Rester's main complaint at that time was Morrow did not replace the piece of chrome or fix the oil indicator gauge.
He telephoned Morrow that the air conditioner had started leaking again, and Morrow told him to bring the car in. After being in the shop the second time, Rester noticed the low speed fan motor of the air conditioner was not working. Morrow told him this was a problem with these cars, and the dealers had been directed by the manufacturer to put a new wiring harness on air conditioners having these problems, but he would have to order the part. When the parts came in and Rester took the car to the shop, he told the mechanic the oil indicator gauge was not working, either, and the mechanic promised to order another gauge.
Rester then changed jobs, and had to drive back and forth from his home in Carriere to New Orleans.
He noticed the air conditioner leaking again. He took the car to Morrow's on a Monday, Morrow told Rester that the mechanic had quit. Rester told Morrow he wanted another oil gauge, and Morrow told him if he could get another mechanic he would do so; otherwise, Rester would have to take the car to another local dealer. Rester did get his car on the following Friday afternoon, and the air conditioner had been fixed. He drove the car from Hattiesburg to his home, and approximately a week later he drove to Baton Rouge to a fire school he was attending. Rester said the air conditioner went out of control while he was attending school in Baton Rouge; when the air conditioner was turned off it still ran. If the heater was turned on, the air conditioner ran instead. Rester said he could still smell gas in the car if the car was running, the windows were down, and the air conditioner was off. He said the air conditioner and gas fumes were a real annoyance, aside from the delay factor.
Rester left Baton Rouge for New Orleans. While in New Orleans late one night, after he had filled the gas tank, Rester drove for some distance with the car running smoothly, and then the lights began to get dimmer and dimmer, the battery progressively weaker. Finally, the car went dead, and Rester had to tow it to a friend's house. Rester telephoned Morrow and told him he wanted his money refunded on the car's purchase. Morrow replied he had sold his agency to Martin.
Morrow told Rester to take the car to a New Orleans dealer, who Rester called, and the car was picked up on a Thursday. On the next day he got his car, and was informed by the shop personnel he had left his wipers on intermediate and run the battery down. They had charged the battery. Rester told them more than simply a dead battery was causing the problems, but was again told there was no electrical problem. Rester paid the agency $49 for towing, checking the electrical system, and charging the battery. He returned home in the car, and a week later drove it back to New Orleans. For the next month he had no problems with the car.
One night after he returned to New Orleans, Rester went to a night club in Metairie, Louisiana. As he was leaving around midnight, the car had no power. There were no lights, it would not crank. Rester telephoned Morrow around 12:30 a.m., who gave him the name of Ron Foshee, the factory representative of AMC, and who lived in Georgia.
Morrow also called Rester later and told him to take the car to a New Orleans dealer. Rester called the same New Orleans dealer who had the car for repair the first time, and was told to get a Metairie dealer, which he did. When he got his car from the Metairie dealer, he was charged $119.00. Part of the charge was for a new battery.
Rester telephoned Foshee and told him what was wrong with the car, that the air conditioner was all messed up. Foshee told him he would order the parts and send them to Martin's. Rester told Foshee he did not want a Martin or Morrow mechanic working on the car, and was promised by Foshee that he would bring the parts to Hattiesburg, and also his own mechanic from Stone Mountain, Georgia, to fix the car.
In September, while he was waiting on his car to be repaired, it stalled twice. Rester also smelled gas fumes. When he drove the car home, he could hear the "battery frying". When he opened the hood, the car was burning the battery up, and Rester thought the alternator was charging too much.
When he later met with Foshee at Martin's in Hattiesburg, Rester reported to Foshee the following problems with the car:
1. The air conditioner was worse than ever.
2. The piece of chrome was still missing.
3. The carpet was bad from water leaking on it.
4. A problem had developed in the rachet adjusting in the passenger seat.
5. Gas fumes could still be detected.
6. The fuse panel had fallen from under the dash.
7. The oil indicator gauge was not working.
8. The stalling problem.
9. The battery smelled like it was burning up.
At one time Morrow had drilled a hole in the gasoline cap, but this still did not stop the odor. They told him to cut some apples and put in the trunk, but this still did not stop the odor.
As for the battery sizzling problem, Foshee informed Rester when he examined the car that the dealer who installed the new battery put in too small a battery. Foshee also told Rester that part of his problem was the close proximity of the battery to the catalytic converter, which would be repaired by simply putting a shield between them, which they would install.
Rester said he was promised the car would be ready for delivery the next afternoon. He also said, "I loved the car as far as performance, the ride was excellent in the car, the handling was excellent, it was just this nick-pick stuff, and the car was not fitting up to the demands of transportation." He said while you could expect a car to quit every now and then, his had stalled twice in a month. 2
Two days later, Rester inquired by telephone about his car, and was told by the Martin service manager that they had discovered something wrong with the alternator, and had ordered parts from California, which would take about seven days delivery.
Rester told the service manager he needed a car for transportation 300 miles away or he would lose his job. He then called Foshee and told him if they did not fix the car he was going to see a lawyer.
On the following Friday Rester called Martin's who told him they had the parts but could not put them in because they had no mechanic. This was fourteen days after he had delivered the car. Rester called Foshee again, who was apologetic and said he would call back. Foshee did not call back, however.
Rester bought a 1980 model Oldsmobile, paying $4,900 for it. It was needed in order to have transportation to work.
Approximately 21-22 days after his delivery of the car to Martin's, they telephoned Rester's home and left a message the car was ready.
When Rester returned home from his job and learned the car was ready, he drove to Hattiesburg for it. When he got to Martin's...
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