Rogers v. Zielinski

• Decision Date: 07 May 1965
• Docket Number: No. 10102,10102
• Citation: 99 R.I. 599,209 A.2d 706
• Parties: , 22 A.L.R.3d 1381 Winifred W. ROGERS v. Norbert U. ZIELINSKI. Ex.
• Court: Rhode Island Supreme Court

Page 706

209 A.2d 706

99 R.I. 599, 22 A.L.R.3d 1381

Winifred W. ROGERS v. Norbert U. ZIELINSKI.

Ex. No. 10102.

Supreme Court of Rhode Island.

May 7, 1965.

Alexander G. Teitz, Newport, for plaintiff.

Corcoran, Peckham & Hayes, Patrick O'N. Hayes, Newport, for defendant.

PAOLINO, Justice.

This is an action of the case in the nature of assumpsit to recover damages arising out of the sale of a used 1956 Mercedes-Benz automobile by the defendant to the plaintiff. The case was tried by a justice of the superior court sitting without a jury and resulted in a decision for the plaintiff in the amount of $94.65 plus interest of $23.66 and costs. The case is here on the plaintiff's bill of exceptions to such decision and to certain evidentiary rulings.

In a previous appeal, we sustained plaintiff's exception to the trial justice's decision and remitted the case to the superior court for a new trial. See Rogers v. Zielinski, 92 R.I. 479, 170 A.2d 294. However, the disposition of that appeal has no bearing here.

The case at bar was tried on plaintiff's second amended declaration which contains five counts. The plaintiff alleges in substance that defendant made certain prior oral warranties which induced her to purchase the automobile from defendant. The declaration alleges four express oral warranties, each in a separate count. The first alleges a breach of a representation that there was nothing wrong with the car and that it was therefore in first-class mechanical condition; the second alleges a breach of a representation that the car was guaranteed for 64,000 miles; the third alleges a breach of a representation that the car had traveled only 8,000 miles; and the fourth alleges a breach of a representation that it would get thirty miles to a gallon of gasoline. The fifth count alleges a breach of an implied warranty that the car was reasonably fit for transportation. The defendant filed a plea of the general issue.

The plaintiff has expressly waived any claim she may have under counts 3 and 4. For that reason we shall consider only her claims under counts 1, 2 and 5. She presented evidence to prove that as a result of defendant's alleged breaches she sustained damages for repair charges for labor and materials totaling $1,326.54, in addition to a loss of at least $400 in the sale of the car. The sum of $94.65 which the trial justice awarded to plaintiff is for the cost of installing two new mufflers and a ring starter gear for which defendant admitted he promised to pay.

The plaintiff testified that defendant was her physician; that she had known him socially and professionally since 1953; and that in June 1957 she purchased his car for $3,600. Her testimony in substance supports the allegations of her declaration. In addition she presented the testimony of several mechanics as to the repairs made to the car after she purchased it.

In his testimony defendant denied that he had made any of the representations claimed by plaintiff. He testified that with the exception of the mufflers and the ring starting gear there was nothing wrong with the car as far as he knew. He presented the testimony of certain witnesses who had testified for plaintiff in the prior trial. They testified that the car had normally good operational qualities. In brief, defendant's witnesses supported his testimony that there was nothing wrong with the car.

General laws 1956, § 6-3-12, relating to express warranties, provides that:

'Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty.'

The trial justice considered the evidence relating to plaintiff's claims under counts 1 and 2 in the light of the provisions of § 6-3-12. He stated that in order for plaintiff to prevail she had the burden of proving that the natural tendency of any statements or affirmations of fact or promises made by defendant induced her to purchase the car and that she purchased it relying thereon. After considering the testimony of the parties and their witnesses and their interest or lack thereof, as well as their demeanor and manner of testifying, the trial justice made a finding of fact that defendant did not tell plaintiff 'that there was nothing wrong with the car' and that he did not state that the car was guaranteed for 64,000 miles. He expressly stated that he based this finding on the weight of the credible evidence. Consequently, as to counts 1 and 2, he found that plaintiff had not maintained her burden of proof except with respect to the matter of the mufflers and the ring starter gear under count 1.

In count 5 plaintiff alleges an implied warranty of fitness under § 6-3-15(1) which provides that:

'(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.'

In considering the evidence and contentions in this issue the trial justice stated in substance that plaintiff had the burden of proving that she relied on defendant's skill and judgment. In reviewing the pertinent evidence he pointed out that defendant was a practicing physician with no particular skill and judgment in so far as cars were concerned; that plaintiff had more than one opportunity of driving the car and at least fifty years' familiarity with motor vehicles; and that plaintiff had become unduly impressed with and expected much more from this car than she should have. After making such observations, the trial justice found as a fact that plaintiff did not rely on defendant's skill or judgment and that therefore there was no implied...