Winston Industries, Inc. v. Stuyvesant Ins. Co., Inc.
| Decision Date | 11 June 1975 |
| Citation | 317 So.2d 493,55 Ala.App. 525 |
| Parties | , 17 UCC Rep.Serv. 924 WINSTON INDUSTRIES, INC. v. The STUYVESANT INSURANCE COMPANY, INC. Civ. 443. |
| Court | Alabama Court of Civil Appeals |
James N. Brown, III, Birmingham, for appellant.
C. William Gladden, Jr., Birmingham, for appellee.
Appellant appeals a jury verdict rendered against it and in favor of appellee in the amount of $2,950.
Appellant was the manufacturer of a mobile home sold by a retailer to Freeman Floyd, hereinafter referred to as Purchaser. Appellee is an insurance company who insured the mobile home for Purchaser and is subrogee of Purchaser.
The mobile home was purchased on December 18, 1969, by Purchaser from a retailer for a purchase price of $7,200. The retailer was a Mississippi company. However, the mobile home was delivered by the retailer directly from appellant-manufacturer, an Alabama business, and was then 'set' up by the retailer. The Purchaser, in fact, had several dealings directly with appellant-manufacturer prior to delivery of the mobile home, e.g., picking out carpets. The mobile home was the personal residence of Purchaser.
The mobile home was insured by the appellee for Purchaser, apparently in January of 1970. Sometime during this same month Purchaser entered a hospital some two hundred miles from his home. While in the hospital Purchaser's wife spent much time with him, including some nights, and, of necessity, left the mobile home unattended.
After discharge from the hospital, Purchaser and his wife, who had been away from the mobile home for several days to be with her husband, returned home and discovered that the mobile home was saturated with water. Purchaser discovered that this flooding within the mobile home was caused by a waterline under the lavatory having come loose. This resulted in flooding the mobile home. In fact, according to testimony of Purchaser, the water reached a depth of sic inches as evidenced by water stains on the curtains.
This flooding resulted in extensive damage. Purchaser testified that the carpet became discolored, the curtains had to be replaced and the floor began to buck. Additionally, in the months following the flooding, other changes in the condition of the mobile home occurred. On the side of the main entrance of the front door the outriggers gave way. This resulted in the sidewall dropping; the front door being unable to be opened or closed; and the floor beginning to cave through. In fact, in the front bedroom the bed fell through the floor. The carpet that replaced the original discolored carpet rotted out. Certain personal property within the mobile home was also damaged.
Following his disocovery of the damages, Purchaser contacted both the retailer and the manufacturer-appellant and reported to them what had happened. Appellant-manufacturer sent someone out to inspect the damage. According to testimony of Purchaser, people representing appellant-manufacturer came out four or five times. Not only did manufacturer inspect the premises, but they also made several repairs, including replacing the carpet in the living room, replacing the tile in the half bath (site where the leak occurred) and the front bedroom, and also attempting to nail the buckled presswood back down.
Purchaser wrote appellee-insurance company a letter informing it of his damages. The claim was finally settled for $5,900 after Purchaser brought suit against appellee.
Purchaser testified that he purchased the mobile home for $7,200. He made thirty-three monthly payments on it, in an amount of $106.42 a month. He lived in the trailer, despite the damage to it, for three years. He eventually stopped making the payments on the mobile home. His case with the insurance company was settled shortly thereafter.
Appellee-insurance company, having settled its claim with Purchaser and, as subrogee of Purchaser, filed a petition for declaratory judgment against appellant (and other named defendants) alleging breach of express and implied warranties. The suit went to the jury on the issue of breach of express warranty resulting in the aforementioned verdict in favor of appellee in the amount of $2,850. Appeal was then taken to this court.
Appellant's argued assignments of error present three issues. The first issue raised is the contention by appellant that the verdict is against the weight of the evidence in that appellee did not prove that an express warranty existed from appellant to Purchaser. The second contention of appellant is that appellee did not prove any product or manufacture defect. The third contention is that the amount of damages is excessive in that the amount of payment by appellee to Purchaser is unsupported by the evidence.
The main contention of appellant is that appellee failed to prove that an express warranty existed from appellant to Purchaser upon which appellee, as subrogee, could rely in his claim against appellant-manufacturer. The basis of this contention is testimony by Purchaser, himself, that he did not receive a warranty nor know about one. Appellant relies on Alabama cases indicating reliance by a purchaser in order to prove an express warranty. Landman, Halsey & Co. v. Bloomer, Wolf & Michael, 117 Ala. 312, 23 So. 75.
Thus, the basis of this contention by appellant is that appellee, as subrogee, is erroneously being allowed to rely on an express warranty which Purchaser did not receive, and which appellant did not make in this Particular sale to Purchaser.
Express warranties in Alabama are created in the following manners as set out in Tit. 7A, § 2--313, Code of Ala.1940 (Recomp.1958):
'Express warranties by affirmation, promise, description, sample.--(1) Express warranties by the seller are created as follows:
'(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
'(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
'(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
'(2) It is not necessary to the creation of an express warranty that the seller use formal words such as 'warrant' or 'guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.'
Despite the persuasiveness of appellant's argument, after a thorough review of all the evidence, this court is of the opinion that despite the fact that the purchaser did not physically receive a copy of the written expressed warranty an express warranty was, in fact, in existence and does inure to the benefit of appellee.
There is much evidence in the record to indicate the existence of an express warranty. Foremost is the response by appellant to the following request for admission by appellee.
(Appellee):
(Appellant): 'In response to request for admissions numbered 2, Defendant admits a written warranty existed at the time of this sale, but Floyd has stated under oath that no written warranty was given to him on the mobile home in question.'
In accord with Rule 36(b) ARCP, this matter is conclusively established, to wit, that a written warranty on the subject property existed at the time of sale to Purchaser.
A copy of appellant-manufacturer's warranty was admitted into evidence.
The testimony of Ray Forrester, employee of appellant, was that appellant put a warranty similar to the one introduced into evidence by appellee in every home built and sent to a dealer, and that this was the business practice of the appellant during the years in question. He further testified that as far as appellant was concerned the procedure would be that the warranty would be delivered by the dealer to the ultimate purchaser.
We also find that the course of conduct of appellant from the very beginning was in conformity with the existence of an express warranty. Appellant made several trips to the mobile home after being informed of the damage. On some of these trips actual repairs were made by them. There is also the testimony of Mr. Forrester that the job was conducted completely in conformity with the idea that there was a written warranty.
Even more proof of the existence of a warranty is the following paragraph from the bill of sale of the retailer to Purchaser.
(Emphasis ours)
As we perceive appellant's contention, it would have us hold that even though it offered a warranty on its product, merely because the purchaser failed to receive a copy of the warranty (even if through no fault of his own) the purchaser would be barred from the protection offered by the warranty. We decline to do this, in this instance, and, accordingly find an express warranty to the purchaser. In view of the above, the trial court was not in error in allowing the introduction of appellant-manufacturer's express warranty.
Nor do we find those cases requiring reliance on the part of the purchaser applicable here.
As both counsel admit and the court concurs in, there is a dearth of cases on point.
As this court...
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