Smart v. Tidwell Industries, Inc., 46488

• Decision Date: 27 March 1984
• Docket Number: No. 46488,46488
• Citation: Smart v. Tidwell Industries, Inc., 668 S.W.2d 605 (Mo. App. 1984)
• Parties: 38 UCC Rep.Serv. 450 William J. SMART and Pauline Smart, Plaintiffs-Respondents, v. TIDWELL INDUSTRIES, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 605

668 S.W.2d 605

38 UCC Rep.Serv. 450

William J. SMART and Pauline Smart, Plaintiffs-Respondents, v. TIDWELL INDUSTRIES, INC., Defendant-Appellant.

No. 46488.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 27, 1984.

Jeffry S. Thomsen, Evans & Dixon, St. Louis, for defendant-appellant.

Steven J. Schroeder, Davis, Schroeder & Davis, St. Charles, for plaintiffs-respondents.

GAERTNER, Presiding Judge.

Defendant appeals from a judgment in the sum of $9,000 in favor of plaintiffs on a jury verdict finding defendant had breached an express warranty. We affirm.

On September 6, 1977, plaintiffs accepted delivery of a mobile home manufactured by defendant. Plaintiffs also received a homeowner's manual which included an express warranty by the defendant that the mobile home "is and will be, assuming normal use and proper maintenance and servicing, free from any defects in material and workmanship for a period of one year...." The warranty also provided that defendant's obligations "are limited to remedying defects covered hereby and the cost thereof" and expressly excluded incidental or consequential damages. Plaintiffs immediately began to experience problems resulting from defects in material and workmanship. Since defendant does not challenge the sufficiency of the evidence, these defects need not be described in detail. Representatives of defendant came to the home thirty or more times in an effort to remedy the defects. Employees of the dealer who sold the mobile home to plaintiff also endeavored to do so. Additionally, defendant and the dealer shared the cost of certain repairs undertaken by a third party. These efforts were of no avail. Plaintiffs' evidence, in the form of expert testimony by an experienced appraiser of mobile homes damage claims, was that the defects were caused by inferior materials and poor workmanship.

Defendant's evidence was limited to the testimony of its service manager from Haynesville, Alabama, who identified numerous "service forms" reflecting the repair work performed on plaintiffs' home from November 1977 through September 1978, when he advised plaintiffs that defendant would no longer be liable for factory warranty service. He had not personally examined the mobile home. Defendant offered no evidence of probative value tending to refute the existence of the defects or that the defects resulted from any cause other than defective materials or workmanship.

Pauline Smart testified that in her opinion the mobile home as represented to them was worth $21,000, but that with the defects they discovered after delivery, the market value of the home was $7,500. Plaintiff also presented expert testimony that the cost of repairing the defects was at least $10,000. Before trial plaintiffs had settled their claim against the seller for $1,000. The jury returned a verdict against the manufacturer for $9,000.

Defendant contends it is entitled to a new trial because of the admission in evidence of seventeen photographs depicting various defective conditions of the mobile home. The photographs were taken at different times over the five years between delivery of the mobile home and the date of trial, some only a few months before the latter date. Defendant argues that the photographs failed to accurately represent the conditions as they existed at the time of delivery or within one year thereafter and that there was no evidentiary foundation explaining the changes from that time until the photographs were taken.

Our review of this point is governed by the rule that "[t]he determination of relevance and materiality of a photograph and its admission or rejection rests in the first instance in the discretion of the trial judge, and his ruling will not be disturbed on appeal unless that discretion has been abused...." Dudeck v. Ellis, 399 S.W.2d 80, 96 (Mo.1966). We find no abuse of discretion here. The jury was informed of the approximate time each photograph was taken and could not have been misled into believing the photographs purported to depict the conditions as they existed at the time of delivery or within twelve months thereafter.

The evidence clearly pointed out that, with regard to some of the defects, especially the use of particleboard as flooring in the bathroom, the effects were progressive. With that foundation, the photographs were relevant toward proving the existence of the defects in material and workmanship which were shown by the testimony to have existed from the time of delivery and to have been discovered within one year thereafter. Defendant's first point is without merit.

Defendant next asserts error in the giving of Instruction No. 5, the plaintiffs' verdict directing instruction based on MAI 25.07--Breach of Express Warranty under Uniform Commercial Code. The instruction reads:

Your verdict must be for plaintiffs if you believe:

First, defendant manufactured and plaintiffs purchased a mobile home, and

Second, defendant represented by written document the mobile home would be free from any defects in material and workmanship for a period of one year, and

Third, such representation was made to induce plaintiffs to purchase or was a material factor in plaintiffs decision to purchase the mobile home, and

Fourth, the mobile home did not conform to such representation made by defendant, and

Fifth, within a reasonable time after plaintiffs knew or should have known of such failure to conform, plaintiffs gave defendant notice thereof, and

Sixth, defendant failed to remedy such defects, and

Seventh, as a direct result of such failure to remedy such defects, plaintiffs were damaged.

Defendant argues, without reference to any supporting authority, that the instruction improperly omitted the provisions of the warranty which excluded from its coverage damage resulting from actions of the owner, transportation and installation, repair or alteration by unqualified persons, misuse, neglect, accident, or act of God and natural phenomena such as ground settlement. These were exclusions from, not conditions precedent to, coverage under the warranty. Although a purchaser may have the burden of proving compliance with the conditions of an express warranty, Venie v. South Central Enterprises, Inc., 401 S.W.2d 495, 501 (Mo.App.1966), the defense that the parties expressly limited the extent of a warranty is an affirmative defense which must be pleaded and proven by a defendant. Miller v. Andy Burger Motors, Inc., 370 S.W.2d 654, 659 (Mo.App.1963). Defendant did not plead the applicability of any of the exclusions set forth in the warranty and, other than speculative possibilities, there was a complete absence of evidence even suggesting that any of the complained of defects resulted from any of the matters excluded from coverage. To have included the provisions of the warranty in the instruction would have served only to inject false issue into the case--issues raised by neither pleading nor proof.

Defendant also attacks Instru...