Opinion
36814.
DECIDED SEPTEMBER 13, 1957. REHEARING DENIED OCTOBER 2, 1957.
Breach of warranty. Before Judge Henson. Fulton Civil Court. June 5, 1957.
Tindall Tindall, Joseph D. Tindall, Jr., J. Frank Kemp, for plaintiff in error.
Matthews McClelland, J. Ralph McClelland, Jr., contra.
Where, as here, an automobile is purchased under a warranty, express or implied, and when the automobile is shown by evidence not to meet the terms of the warranty, and time passes and the defects are not corrected, a plaintiff is entitled to recover such damages as may be reflected by the record. (Demurrers may be presented, pleadings amended, and demurrers sustained, or overruled, the case may proceed to trial.) The court gave a proper charge and the verdict will be upheld, under the pleadings and evidence.
DECIDED SEPTEMBER 13, 1957 — REHEARING DENIED OCTOBER 2, 1957.
William H. James, hereinafter called the plaintiff, filed suit against Atlanta Packard Motors, Inc. After demurrer, and by amendment meeting the demands of the demurrer, the suit was brought against George M. Couch, Inc., hereinafter referred to as the defendant. To the original petition the defendant filed general and special demurrers. The plaintiff amended. The defendant again filed demurrers and the plaintiff amended. The defendant filed objections to the amendments having been allowed, which objections were overruled and denied. The demurrers, both general and special, were overruled with the exception of demurrers numbered 8 and 9. In the final outcome demurrer number 8, to paragraph 24 of the petition, was sustained because paragraph 24 of the original petition was stricken by the court in a previous order, without leave to amend and there was nothing left to amend by. Demurrer number 9, to paragraph 24-a as amended, was sustained and paragraph 24-a was ordered stricken.
The defendant filed a plea and answer.
The case proceeded to trial before a jury and resulted in a verdict for the plaintiff for $1,350, together with costs.
The defendant filed a motion for new trial on the statutory grounds and later amended by adding 3 special grounds.
It is on the rulings on the demurrers and the denial of the motion for new trial that the case is here for review.
The evidence shows substantially as follows: William H. James, the plaintiff, testified that on July 2, 1955, he purchased from Atlanta Packard Motors a 1955 Clipper Super 4-door sedan for $3,725.72 and accepted delivery on July 5, 1955, receiving along with his new car an owner's manual and a service policy; that he is not a mechanic and had not examined the car mechanically; that on the first morning he drove it, it failed to start twice after he made stops and on both occasions he had to contact the Packard people; that from then on as long as he tried to drive it he had habitual trouble with it in traffic with continual jerking and balking and particularly with the engine dying when he stopped for red lights; that he drove or had the car towed in to the Packard service department almost every week or at least three times a month from July until January, the plaintiff describing numerous specific instances of trouble requiring service; that the car was never corrected to his satisfaction; that it often gave him trouble the next day after it had been in the Packard shop; that he never allowed the car to be altered or repaired by anyone other than the mechanics at Packard during the time he drove it; that he was frustrated and inconvenienced by the car's failure to function, frequently having to get other means of transportation; that he notified the company both orally and in writing of his complaints during the 90-day warranty period; that he was told just to forget about the 90-day warranty period and that after its expiration he continued to try to get them to fix it until January 9th or 10th when the plaintiff went to his garage to get his car to go home and it failed to start; that he phoned the Packard people and a Mr. Van Stavoren came down, and he also could not start it and had to have the car towed in; that the next morning his car was delivered to him at the garage with the message that it was in perfect condition; that he drove it home and the following morning, January 13, 1956, he got in the car to leave town and the automatic transmission lever was limp, failing to go in any proper notch, and he stepped on the starter and nothing happened. The plaintiff further testified substantially that he notified the Packard people that the car was in his carport for them and tendered them the key; that they did not pick it up or do anything; that he met with Mr. Couch, the defendant, and asked him for a good 1955 Clipper or his money refunded; that Mr. Couch offered to trade on a 1956 Packard; that on January 20, 1956 he wrote Mr. Couch, but the Packard people did nothing about it; that after a month or six weeks he tried unsuccessfully to sell it; that he got a Mr. Dobbs to repair it and finally sold it to Downing for $1,650; that in the time he had the car it furnished transportation only half the time and his work required the use of a car at all times.
On cross-examination the plaintiff testified substantially that he had put approximately 6,000 miles on the car from July 5 to January 12; that he bought a Cadillac in March; that he had Mr. Dobbs repair the Packard in May; that he was never charged by the Packard people for any of the repairs during the warranty period.
James Cochran, service manager at the plaintiff's parking garage, and Joseph H. Porter, the plaintiff's business partner both testified to the effect that the plaintiff did have frequent trouble with his Packard and they described various instances in detail but were not able to give exact dates.
William F. Mosely, an experienced automobile mechanic, testified that in April of 1956 he inspected the plaintiff's car and attempted to start it; that he found the fuel pump would not operate and that it apparently needed some automatic transmission work, which he did not do.
Albert M. Dobbs testified that he had the plaintiff's Packard towed to his place of business where he installed a new fuel pump, replaced a pin out of the automatic transmission, tuned the motor and got the car in running condition.
Orville G. Harrington, the present owner of the car, testified that he had had trouble with the car starting.
John Sewell, service manager for Atlanta Packard Motors, testified that he was in charge of various work done on the plaintiff's car and identified repair orders which were placed into evidence.
Walter Moore, service salesman for Atlanta Packard Motors, testified that he recalled the plaintiff's complaints about the car and described in detail the various repairs which were made.
George M. Couch, president, general manager and principal owner of Atlanta Packard Motors and the defendant here, testified substantially that his first contact with the plaintiff was in January of 1956, at which time the plaintiff described the trouble he had had with his car; that the defendant offered to see personally that the car was put in standard operating condition and he would provide a car for the plaintiff's use while this was being done; that the plaintiff refused the offer and said that he wanted a new 1955 Packard Clipper or his money refunded; that he, the defendant, was unable to deliver a 1955 car because they had become obsolete; that he had never refused to make any repairs on the plaintiff's car.
On cross-examination the defendant testified substantially that the plaintiff's letter of September 13, 1955, addressed to him was referred to the service department and that his specific attention was not called to the matter until the plaintiff came to see him in January 1956; that he had other customers with the same amount of trouble and he had made them happy.
1. Counsel for the defendant argues, in regard to the court's rulings on the demurrers and to the order overruling the defendant's objections to the plaintiff's amendments, that the petition could not be amended by abandoning the contract first alleged and setting up another and different contract. Counsel cites in support of this theory Lamar v. Lamar, Taylor Riley Drug Co., 118 Ga. 850 (1) ( 45 S.E. 671). That case differs from the case at bar and expresses a correct legal premise but is not applicable to the facts of the instant case. Spikes v. Spikes, 89 Ga. App. 139 ( 79 S.E.2d 21) is likewise not applicable. We see no similarity between the instant case and the following cases: Chattanooga, Rome c. R. Co. v. East Rome Town Co., 89 Ga. 732 ( 16 S.E. 308); Cooper v. Oglethorpe Savings c. Co., 147 Ga. 570 ( 94 S.E. 1006); and McKenzie v. Miller Co., 6 Ga. App. 828 ( 65 S.E. 1071). A careful reading of Allison v. Allman, 82 Ga. App. 574 ( 61 S.E.2d 672) and Wild v. Krenke, 206 Ga. 83 ( 55 S.E.2d 544) will show that the pleadings and facts are entirely different and therefore are not applicable. Counsel relies on Oxford Knitting Mills v. Wooldridge, 6 Ga. App. 301 ( 64 S.E. 1008), as a basis for reversal. In that case the court said that in the event of a sale of goods with a warranty of quality, delivered to and accepted by the buyer, if the goods should prove not to correspond with the warranty, the measure of damages is the difference between the contract price and the actual value of the goods when and where delivered. That case concerned a sale of coal. The court held that the coal should have been rejected entirely as worthless, and having received and used the coal, the plaintiff would not be entitled to a reduction from the contract price to the actual alleged value of the coal when used. It is elementary that goods which are used, such as coal in that case, are not produceable for comparison and there can be no basis for determining the damages. Such is not the case in regard to the Packard involved here.
It is our opinion that the cause of action originally laid by the plaintiff was constant and consistent throughout the proceedings. The only change was that by amendment the amount for damages claimed was reduced. Such was an advantage to, and not harmful to the defendant. The court did not err in any of the rulings regarding the demurrers and objections.
2. We have set out the evidence somewhat in detail and find that it amply supports the verdict of the jury. The general grounds are not meritorious. The defendant's motion for a judgment notwithstanding the verdict is not meritorious.
3. Special grounds 1 and 2 insist that a verdict and judgment was demanded for the movant, under the evidence. We have passed on this substantially hereinabove. This contention is not meritorious.
Special ground 3 assigns error because it is alleged that the court erred in giving the following charge to the jury: "Gentlemen, those are the express warranties, and in the opinion of the court, those warranties do not exclude what we know as the implied warranties, the implied warranties being those warranties which the law writes into each contract for the sale of chattels. The implied warranties are that the seller has valid title and right to sell, that the seller knows of no latent defects undisclosed, and that the thing sold is reasonably suited for the use intended. Those are the implied warranties which are applicable in the case."
The defendant alleges that this excerpt was erroneous and injurious because it was not applicable to the issues in the case as formed by the pleadings and the evidence; that it was misleading to the jury in that it had no proper guide as to what liability rested on the defendant under the implied warranty and under the express warranty; that it had the effect of nullifying and destroying the defendant's defense of express warranty by injecting the issue of implied warranty when such implied warranty was not applicable to the issues in the case as made by the pleadings and the evidence; and that such charge was erroneous and not sound as an abstract principle of law. Under the pleadings and the evidence of this case and when we consider the charge as a whole, this assignment of error is not meritorious. The court charged fully regarding the pleadings and the evidence. The following cases are not applicable under the pleadings and facts of the case at bar: Brandon Co. v. Franklin Co., 46 Ga. App. 303 (3) ( 167 S.E. 612); Frick Co. v. Smith, 70 Ga. App. 118 (4) ( 27 S.E.2d 795) and Springer v. Indianapolis Brewing Co., 126 Ga. 321 (3) ( 55 S.E. 53).
The court did not err in any respect.
Judgment affirmed. Townsend and Carlisle, JJ., concur in the judgment of affirmance.