Smith v. Ford Motor Co.

• Decision Date: 15 September 1959
• Docket Number: No. 30333,30333
• Citation: 327 S.W.2d 535
• Parties: J. Hugh SMITH (Plaintiff), Appellant, v. FORD MOTOR COMPANY, a corporation (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 535

327 S.W.2d 535

J. Hugh SMITH (Plaintiff), Appellant, v. FORD MOTOR COMPANY, a corporation (Defendant), Respondent.

No. 30333.

St. Louis Court of Appeals, Missouri.

Sept. 15, 1959.

Rehearing Denied Oct. 16, 1959.

J. Hugh Smith, pro se.

Oliver & Oliver, Gerald B. Rowan, Cape Girardeau, for respondent.

WOLFE, Presiding Judge.

This action was brought upon an alleged breach of warranty respecting an automobile purchased by the plaintiff. The car was purchased from a dealer who sold Mercury automobiles manufactured by the defendant. The defendant, after duly answering, moved for a judgment on the pleadings. It is from this judgment dismissing his petition that the plaintiff has appealed.

The petition alleged that on April 20, 1957 the plaintiff purchased a Mercury automobile from the Goodwin Motor Company. It alleged that this company was a 'respresentative, dealer or agent' of the defendant. It was also alleged that in June of 1957 the plaintiff purchased some additional equipment for the sum of $334.31. He paid cash for the car and the equipment subsequently purchased in the total sum of $4,703.31.

It was alleged that the defendant 'impliedly represented to the plaintiff, the ultimate purchaser, that said automobile was safe and dependable, properly constructed, workable and in good condition and free from defects.' It was stated that the car was defective in the following particulars:

'Defective and improperly constructed wheels which caused abnormal wear on tires so that the same became useless within a short time;

'windshield wipers which did not and do not operate properly in that the same do not operate so as to clear the windshield of said automobile quickly enough for vision during rain or as quickly as other automobiles generally for such purpose;

'power steering which has repeatedly become and is now useless, faulty and defective;

'a power antenna and radio which were and are faulty, defective and partially inoperative;

'a power seat which is faulty and defective;

'the entire system of mechanism which serves to operate said car mechanically, in that said automobile was and is so constructed that liquid, water and antifreeze, escapes from the radiator thereof in great quantities and frequently, causing subsequent overheating, in turn causing said automobile to become inoperative and useless on many occasions, which said defects caused various other portions of said mechanism to become damaged, particularly the motor which was thereby caused to consume and does consume greatly excessive quantities of oil; and plaintiff is informed by various dealers of the defendant and alleges that said damage has become extensive, serious and highly costly in repairing or in the lesser value of said automobile;

'in leaky and improperly constructed air vents at the top sides of the inside of said automobile;

'floor mats which were defective and became useless within a few days;

'in a system of speedometer and odometers which were and are defective, faulty and inoperative.'

Plaintiff alleged that the defects set out were present at the time of the purchase or developed within ninety days thereafter and before the car had traveled 4,000 miles. He stated that the dealer was unable to properly correct the defects mentioned, and he made in the petition an offer of a tender of the automobile to the defendant. He alleged expenditures for repairs and damages by reason of loss of use of the automobile. He concluded his petition with a prayer for a judgment for all money paid the dealer for the purchase of the car and the extra equipment plus the repair cost and damages for loss of use. The total recovery sought was $6,971.09.

The defendant's answer denied that it had any transaction with the plaintiff and alleged that it sold the car in question to the Goodwin Motor Company, that the Goodwin Motor Company paid the defendant for the car, and that no part of the money that plaintiff paid to the Goodwin Motor Company was paid to the defendant. It alleged that the relation with the Goodwin Motor Company is governed by a contract in which the Goodwin Motor Company is not an agent of the defendant but a dealer. The contract contains the following relevant clauses:

'This agreement does not in any way create the relationship of principal and agent between the Company and the Dealer; and under no circumstances shall the Dealer be considered to be the agent of the Company. The Dealer shall not act or attempt to act, or represent himself, directly or by implication, as agent of the Company or in any manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of the Company.

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'The Company Warranty. The Company warrants to the Dealer (except as hereinafter provided) each part of each Company Product sold by the Company to the Dealer to be free under normal use and service from defects in material and workmanship for a period of ninety (90) days from the date of delivery of such product to the original retail purchaser, or until each product has been driven, used or operated for a distance of four thousand (4,000) miles, whichever event first shall occur. The Company makes no warranty whatsoever with respect to tires or tubes. The Company's obligation under this warranty is limited to replacement, without charge to the Dealer, of such parts as shall be returned to the Company and as shall be...