Wells v. Oldsmobile Co. of Oregon

• Decision Date: 31 July 1934
• Citation: 35 P.2d 232,147 Or. 687
• Parties: WELLS et ux. v. OLDSMOBILE CO. OF OREGON.
• Court: Oregon Supreme Court

35 P.2d 232

147 Or. 687

WELLS et ux. v. OLDSMOBILE CO. OF OREGON.

Supreme Court of Oregon

July 31, 1934

Department 1.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Action for breach of warranty by William Bittle Wells and his wife against the Oldsmobile Company of Oregon, a corporation. From an order sustaining a demurrer to plaintiffs' second amended complaint and dismissing the action, plaintiffs appeal.

Reversed and remanded.

Leland F. Hess and William L. Dickson, both of Portland (Ashby C. Dickson, of Portland, on the brief), for appellants.

James A. Powers, of Portland (Senn & Recken, of Portland, on the brief), for respondent.

KELLY, Justice.

In their second amended complaint, plaintiffs allege that on or about the 26th day of March, 1930, defendant sold plaintiffs a certain automobile "expressly representing and warranting to the plaintiffs, at the time when the contract of sale was made, that said automobile was a new demonstrator."

Plaintiffs also allege that they are husband and wife and as such constitute a family; that they purchased an automobile for family use, and in doing so "believed and relied upon all representations and warrants of defendant."

It is further alleged that unknown to plaintiffs, the automobile aforesaid was a much-used secondhand car at the time when it was sold to these plaintiffs, and was in a defective dangerous, and worn condition, and unsuited for the purpose for which it was intended to be used and unsafe to drive particularly in that the steering apparatus, mechanism, and parts were constructed in a defective manner with faulty materials, and worn to such an extent as to be unsafe for use.

It is also recounted in said amended complaint: "That on or about June 15, 1930, while plaintiffs were driving said Oldsmobile sedan automobile in a careful and prudent manner at a moderate rate of speed along a smooth, paved highway about eight miles from the town of Hebo, in Tillamook County Oregon, the steering apparatus and mechanism of said automobile, because of its faulty and defective condition, suddenly and unexpectedly and without the intervention of any force whatsoever, gave way and broke, thereby causing the said automobile in which the plaintiffs were riding to turn sharply at right angles from the highway, turn, pinning the plaintiffs in said automobile and injuring each of them severely and permanently, the particulars of which injuries will be hereinafter described."

The injuries alleged to have been sustained by each of the plaintiffs are described in said amended complaint and the amount of damages to each plaintiff respectively is set forth.

It is also averred that by reason of the aforesaid accident and the injuries sustained therefrom as aforesaid, the plaintiffs were compelled to and did employ the services of a physician and surgeon, for their medical treatment and hospitalization, all to their further special damage in the sum of $1,000.

A description of the physical injury to the car is set forth, concluding with the phrase, "all to their damage in the sum of $478.40."

Paragraph XI of said amended complaint is as follows: "That the accident above described and the consequent injuries to plaintiffs and the damages to their said automobile was caused as the result of the breaking and collapsing of the defective and worn steering apparatus as hereinabove alleged; and the warranties made by the defendant were such as were within the contemplation of the parties at the time when plaintiffs purchased said automobile from defendant, or were such as may reasonably be said to have been contemplated by the parties at the time when they made said purchase; and the breach of said warranties on the part of the defendant was the direct, natural, and proximate cause of the said accident and the injuries sustained by the plaintiffs, and each of them, and the damage occasioned to their said Oldsmobile automobile."

The original complaint herein was filed June 16, 1932. The summons was placed in the hands of the sheriff of Multnomah county on June 16, 1932. The second amended complaint was filed on May 10, 1933. Defendant demurred to the second amended complaint on the ground "that more than two years have expired between the happening of the accident and the time of the filing of the original action, and also the second amended complaint."

The trial court entered an order sustaining said demurrer, for the reason that the statute of limitations had run against plaintiffs' action, and dismissing plaintiffs' action.

The propriety of the trial court's course in this respect depends upon whether this is an action for injury to the person and rights of plaintiffs not arising on contract. If it is such an action, the terms of section 1-206, Oregon Code 1930, apply which require such an action to be instituted within two years after the cause of action shall have accrued. If, however, it is to be deemed to be an action upon a simple contract, under the terms of section 1-204, Oregon Code 1930, it could be instituted at any time within six years after the accrual of the cause of action.

We think that the action is one for breach of an express warranty. Prior to 1778, the action of warranty sounded purely in tort. In that year it was held that assumpsit was the proper form of action in a suit for breach of warranty. Stuart v. Wilkins, 1 Doug. (K. B.) 18. Soon thereafter warranty came to be treated almost universally as contractual in nature. 1 Street, Foundation of Legal Liability, 389. Now such an action may be ex contractu or ex delicto. Gary Coast Agency, Inc., v. Lawrey, 101 Or. 623, 201 P. 214; 55 C.J. 819, § 801; 24 R. C. L. 242, § 518. In this case, as we construe the second amended complaint, it is an action ex contractu.

For that reason, error was committed in sustaining defendant's demurrer.

It is argued that plaintiffs' second amended complaint fails to state a cause of action. The requirements thereof are: (1) A statement of the consideration for the warranty; (2) an allegation of the warranty; (3) reliance thereon; (4) breach of said warranty; and (5) resultant damage.

The consideration, namely, the purchase, is alleged.

There is an allegation of warranty to the effect that the automobile...