Walker v. Woolbright Motors, Inc., 11253

• Decision Date: 05 December 1979
• Docket Number: No. 11253,11253
• Parties: Lendell D. M. WALKER, Plaintiff-Respondent, v. WOOLBRIGHT MOTORS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 289

591 S.W.2d 289

Lendell D. M. WALKER, Plaintiff-Respondent, v. WOOLBRIGHT MOTORS, INC., Defendant-Appellant.

No. 11253.

Missouri Court of Appeals, Southern District.

Dec. 5, 1979.

Charles M. Wesley, Waynesville, for plaintiff-respondent.

J. Max Price, David L. Steelman, Salem, for defendant-appellant.

PER CURIAM:

Defendant's predecessor, a Rolla Pontiac dealer, sold plaintiff a 1971 2-door Pontiac Trans Am automobile on January 15, 1975. Inter alia, on the reverse side of defendant's order form was printed: "(Defendant) warrants this car to be 100 percent 'Certified Conditioned' and unconditionally guaranteed. For a period of 30 days or 2,000 miles from purchase, (defendant) will repair or replace any defective part of component below at no cost to the purchaser for any parts or any labor." The day after plaintiff purchased the Trans Am he experienced unspecified mechanical difficulty with the vehicle and returned it to defendant for repairs. Defendant kept the car in its shop for about two weeks and returned it to plaintiff who immediately drove to Detroit, Michigan, where further mechanical difficulties developed. In his "Breach of Warranty" petition, plaintiff sought to recover $750.81 from defendant. The sum was what plaintiff allegedly had paid a Detroit Pontiac dealer "to replace engine, crankshaft, pistons and straighten oil pan" on the vehicle within the warranty period. A jury found for plaintiff in the full sum of his prayer and defendant appealed.

Albeit the prayer in plaintiff's petition was limited to the recovery of the "expended $750.81 to repair said defective vehicle", as his sole witness on the subject plaintiff was somewhat unartfully asked, through five transcript pages, for his opinion as to the difference between the actual value of the Pontiac on the date sold and what its value would have been at that time had it been as represented by defendant. Defendant's objections to the numerous questions of plaintiff in this vein were all sustained because "its (sic) outside the scope of the pleadings" and, as volunteered by the court, "he hasn't asked the proper question." In any event, no allowed answer went to the jury on the subject. But in spite of an absolute dearth of evidence relating to the matter, the court, at plaintiff's request and over defendant's objection, gave instruction number 5: "If you find in favor of the Plaintiff, then you must award Plaintiff such sumS as you believe was the difference between the actual Cash value of the 1971 Pontiac Sedan on the date it was sold to Plaintiff and what It would have been on that date had the 1971 Pontiac Sedan been as represented by Defendant." (Emphasis supplied). ¹

As defendant urges here on appeal, since no evidence existed from which the jury could find the issues as submitted by Instruction No. 5, it was error to give the charge. "There is nothing more firmly entrenched in the law than the requirement that issues submitted in instructions to the jury be supported by evidence from which the jury could reasonably find such issue. 'An instruction which is not supported by the evidence is erroneous in that it is misleading and confusing.' " Brassfield v. Sears, 421 S.W.2d 321, 323 (Mo.1967); Dickey Company, Inc. v. Kanan, 537 S.W.2d 430, 434(7) (Mo.App.1976).

Although, as above noted, the judgment nisi must be reversed because of error in giving Instruction No. 5, we shall briefly examine defendant's point relied on (mislabeled "Points and Authorities" in disregard to Rule 84.04(d), V.A.M.R.) that the trial court erred in overruling its motion for a directed verdict and its post-judgment motion for judgment n. o. v. because plaintiff "failed to satisfy the condition...