Turner v. Central Hardware Co.

Decision Date02 April 1945
Docket Number39214
Citation186 S.W.2d 603,353 Mo. 1182
PartiesJohn B. Turner, Appellant, v. Central Hardware Company, a Corporation
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Reversed and remanded (with directions).

Henry C. Stoll for appellant; Orville Richardson of counsel.

(1) Plaintiff did not seek a recovery upon negligence, fraud or implied warranty. Cases distinguished: Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66; State ex rel. Jones Store Co. v. Shain, 179 S.W.2d 19. (2) The rule of caveat emptor does not apply where, as here, the buyer protects himself by an express warranty. Lindsay v Davis, 30 Mo. 406; London Guarantee & Acc. Co. v Strait Scale Co., 322 Mo. 502, 15 S.W.2d 766; Barton v. Dowis, 315 Mo. 226, 285 S.W. 988; Hunter v. Waterloo Gasoline Engine Co., 260 S.W. 970. (3) Express warranties are distinguishable from implied warranties, in that the former are based on the intention of the parties, while the latter are obligations raised by the law. The existence of one excludes the other. Belt Seed Co. v. Mitchelhill Seed Co., 153 S.W.2d 106. (4) A cause of action on express warranties is well pleaded upon allegations that representations were made by the defendant upon which plaintiff relied, and which induced him to purchase. It was not necessary to use the word "warranty," though that was done, or to use the word "express." Kenney v. James, 50 Mo. 316; International Shoe Co. v. Lipschitz, 72 S.W.2d 122; Long Bros. v. The J.K. Armsby Co., 43 Mo.App. 253; Haines v. Neece, 116 Mo App. l.c. 510, 92 S.W. 919. (5) The evidence well supported the allegations of the petition and established that express warranties were made and breached, and that as a result thereof plaintiff was injured. The ultimate question was one of intention, and the court may resort to the usual rules in ascertaining and construing intent. Wertheimer-Swarts Shoe Co. v. McDonald, 138 Mo.App. 238, 122 S.W. 5; Childs v. Emerson, 117 Mo.App. 671, 93 S.W. 286; State Bank v. Cape Girardeau, etc., R. Co., 172 Mo.App. 662, 155 S.W. 1111; 55 C.J. 673. (6) The advertisement, admitted without objection, was evidence of the intent of the parties and the warranties made, and could be considered together with the oral warranties of the clerk. Blair v. Hall, 201 S.W. 945; Burns v. Limerick, 178 Mo.App. 145, 165 S.W. 1166; Chouteau v. Missouri-Lincoln Trust Co., 310 Mo. 665, 276 S.W. 49; 55 C.J. 683; 28 A.L.R. 991. (7) Intention may be expressly proven or inferred. Young v. Van Natta, 113 Mo.App. 550, 68 S.W. 123; 55 C.J., pp. 687, 697, 698. (8) Other cases showing that an express warranty was made. Steel v. Brown, 19 Mo. 312; Murphy v. Gay, 37 Mo. 536; Carter v. Black, 46 Mo. 384; Kenney v. James, 50 Mo. 316; Danforth & Co. v. Crookshanks, 68 Mo.App. 311; Faust v. Koers, 111 Mo.App. 560, 86 S.W. 278; Haines v. Neece, 116 Mo.App. l.c. 510, 92 S.W. 919; Detjen v. Moerschel Brewing Co., 157 Mo.App. 614, 138 S.W. 696; Davis v. Cramer, 188 Mo.App. 718, 176 S.W. 468; Menihan v. Lipschitz Barack Shoe Co., 206 S.W. 232; Bowen v. Zaccanti, 203 Mo.App. 208, 208 S.W. 277; Holman v. West, 215 S.W. 766; International Shoe Co. v. Lipschitz, 72 S.W.2d 122; St. Louis Auto Parts & Salvage Co. v. Indiana Auto Salvage Co., 89 S.W.2d 134. (9) The buyer's or seller's knowledge or means of knowledge of the existence of the defect and whether it was patent or latent are immaterial in an action on an express warranty. J.A. Tobin Const. Co. v. Davis, 81 S.W.2d 474; Thompson v. Botts, 8 Mo. 510; Branson v. Turner, 77 Mo. 489; Moore v. Miller, 100 S.W.2d 331; Blair v. Hall, 201 S.W. 945; Moore v. Koger, 113 Mo.App. 423, 87 S.W. 602; Bell v. S.S. Kresge Co., 129 S.W.2d 932; Carter v. St. Louis Dairy Co., 139 S.W.2d 1025. (10) The question is one for the jury, but may be declared as a matter of law. Lindsay v. Davis, 30 Mo. 406; Childs v. Emerson, 117 Mo.App. 671, 93 S.W. 286; Young v. Van Natta, 113 Mo.App. 550, 88 S.W. 123; Burns v. Limerick, 178 Mo.App. 145, 165 S.W. 1166. (11) Consequential damages may be recovered. Hope Engineering & Supply Co. v. D. N. Lightfoot & Sons, 193 S.W. 624; Mayfield v. Geo. O. Richardson Machinery Co., 231 S.W. 288; Tower v. Pauly, 67 Mo.App. 632; London Guarantee & Acc. Co. v. Strait Scale Co., 322 Mo. 502, 15 S.W.2d 766; Mark v. Cooperage Co., 204 Mo. l.c. 266, 103 S.W. 20; Busch & Lata Painting Co. v. Woermann, 310 Mo. 419, 276 S.W. 614; Nemela v. Coca-Cola Bottling Co., 104 S.W.2d 773, 776.

John F. Evans for respondent.

(1) The retailer is not required to inspect for, or to guarantee against, latent defects in manufactured articles, and would not be liable either on the theory of negligence or warranty, unless there was an express warranty against such latent defect. 46 Am. Jur. 930, sec. 805; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66; State ex rel. Jones Store Co. v. Shain, 179 S.W.2d 19; Zesch v. Abrasive Co., 183 S.W.2d 140. (2) Before a representation concerning the retail sale of a manufactured article can be construed as an express warranty there must be a showing that: (1) the representation constituted an affirmation of fact, as distinguished from opinion or judgment; (2) it must be made as a part of the transaction; (3) both parties understand that a warranty is intended; (4) there must be a reliance thereon by the buyer. 46 Am. Jur. 494, 503, secs. 313, 322; Belt Seed Co. v. Mitchellhill, 236 Mo.App. 142, 153 S.W.2d 106. (3) Advertisements published prior to the sale, for the purpose of inducing the buyer to attend the sale or to examine the goods, are not to be construed as express warranties. Annotation, 28 A.L.R. 999; Ransberger v. Ing, 55 Mo.App. 621. (4) The statements made by the salesman at the time plaintiff purchased the ladder were no more than expressions of opinion or judgment, responsive to plaintiff's questions, and did not constitute express warranties. Bates Co. Bank v. Anderson, 85 Mo.App. 351; Lindsay v. Davis, 30 Mo. 406; Matlock v. Meyers, 64 Mo. 531; Belt Seed Co. v. Mitchelhill, 236 Mo.App. 142, 153 S.W.2d 106; 46 Am. Jur. 506, sec. 326. (5) The order granting a new trial must be affirmed if supported by any assignment of error in defendant's motion. Cole v. St. Louis-S.F. Ry. Co., 332 Mo. 999, 61 S.W.2d 344; Gaty v. United Rep. Co., 286 Mo. 503, 227 S.W. 1041; Laclede Co. v. Epright, 265 Mo. 210, 177 S.W. 386. (6) The order for new trial is supported by ground II of the motion, assigning error in the exclusion of material, competent and relevant testimony. (7) The order for new trial is supported by error in plaintiff's Instruction 1, which erroneously declared that the representations made by defendant's salesman constituted express warranties as a matter of law, and excluded from the jury's consideration the question of intent. Ransberger v. Ing, 55 Mo.App. 621; Thompson v. Botts, 8 Mo. 710; Burns v. Limerick, 178 Mo.App. 145, 165 S.W. 1166; Matlock v. Meyers, 64 Mo. 531; Offutt v. Battogala, 44 S.W.2d 202. (8) The order for new trial is supported on grounds VII and VIII of the motion, because of the excessiveness of the verdict. Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27; Heitz v. Voss Truck Lines, Inc., 175 S.W.2d 583; Willis v. A., T. & S.F. Ry. Co., 178 S.W.2d 341; Sullivan v. St. L. & S.F. Ry. Co., 321 Mo. 697, 12 S.W.2d 735; Kleinlein v. Foskin, 321 Mo. 887, 13 S.W.2d 648.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION
BARRETT

In this personal injury action for damages for breach of warranty in the sale of a ladder the jury found for the appellant, John B. Turner, and assessed his damages at $ 15,000.00. The trial court sustained the respondent's, Central Hardware Company's, motion for a new trial on the assigned grounds that it should have given demurrers to the evidence and instructed the jury to find for the respondent. As indicated by its ruling on the motion for a new trial, it was the view of the trial court that there was no liability on the part of the Central Hardware Company, even though the facts were assumed to be in accordance with the appellant's evidence and as the jury found them.

It may have been that the appellant once relied upon and plead that he was entitled to recover because of negligence but the action is not one for negligence in selling a defective ladder. Shroder v. Barron-Dady Motor Co. (Mo.), 111 S.W.2d 66. There may have been a time when the appellant's theory of liability was that there had been a sale of the ladder for a particular purpose and a breach of an implied warranty against a latent defect. State ex rel. Jones Store Co. v. Shain, 352 Mo. 630, 179 S.W.2d 19. But, the action is against a retail merchant and the theory of liability is that there was a breach of an express warranty against a latent defect in the retail sale of the ladder. Lindsay v. Davis, 30 Mo. 406; Bell v. S.S. Kresge Co. (Mo. App.), 129 S.W.2d 932, 935. And the decisive question is whether the jury found facts constituted an express warranty.

The Central Hardware Company is a retail store in St. Louis. The ladder was one of a stock of ladders purchased from the manufacturer, The J.R. Clark Company of Minneapolis. In April 1943 the Central Hardware Company inserted an advertisement in the St. Louis Post-Dispatch directing particular attention to the ladders it had for sale. The headlines of the advertisement were:

"SENSATIONAL FACTORY PURCHASE OF

'SAFETY FIRST'

LADDERS

"In designing our ladders the prime consideration was SAFETY -- and that's exactly what you'll find in these splendid ladders!"

Three types of ladders were advertised; a "'Clarkbilt' platform Stepladder," "'Central's' Celebrate Extension Ladder" and the "2-in-1" ladder involved...

To continue reading

Request your trial
12 cases
  • Hill v. St. Louis Public Service Co.
    • United States
    • Missouri Supreme Court
    • 13 de junho de 1949
    ... ... Willis v. Atchison T. & S.F.R. Co., 352 Mo. 490, 178 ... S.W.2d 341, 346; Turner v. Central Hardware Co., 353 ... Mo. 1182, 186 S.W.2d 603, 610; Hill v. Terminal R ... Ass'n., ... ...
  • Bailey v. Interstate Airmotive
    • United States
    • Missouri Supreme Court
    • 14 de março de 1949
    ... ... Joice v. Missouri-K.-T ... R. Co., 189 S.W.2d 568, 161 A.L.R. 383; Turner v ... Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603, 158 ... A.L.R. 1402; Middendorf v ... ...
  • Hill v. Terminal R. Ass'n of St. Louis
    • United States
    • Missouri Supreme Court
    • 13 de dezembro de 1948
    ... ... Davis, 279 U.S. 34, 73 L.Ed. 601, 603; Hogan v. New ... York Central & H.R. Co., 223 F. 890; Atchison, T. & S.F.R. Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896; ... Co. v ... Kelley, 74 F.2d 80. (4) The verdict of the jury is ... grossly excessive. Turner v. Central Hardware Co., ... 186 S.W.2d 603. (5) Plaintiff's testimony is so ... ...
  • Van Campen v. St. Louis-San Francisco Ry. Co.
    • United States
    • Missouri Supreme Court
    • 13 de dezembro de 1948
    ... ... 1233, 70 S.W.2d 1085; Williamson ... v. Wabash R. Co., 196 S.W.2d 129; Turner v. Central ... Hardware Co., 353 Mo. 1182, 186 S.W.2d 603; Johnson ... v. Terminal R. Assn., ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT