Tadlock v. CL Snipes Motors, Inc.

239 S.E.2d 311 (1977)

34 N.C. App. 557

Lonnie D. TADLOCK v. C. L. SNIPES MOTORS, INC. and Ford Motor Company, Inc.

No. 778DC97.

Court of Appeals of North Carolina.

December 7, 1977.

*313 Barnes, Braswell & Haithcock by W. Timothy Haithcock, Goldsboro, for plaintiff-appellant.

Langston & Langston by W. Dortch Langston, Jr., Goldsboro, for defendant-appellee C. L. Snipes Motors, Inc.

Taylor, Allen, Warren & Kerr by Robert D. Walker, Jr., and Gordon C. Woodruff, Goldsboro, for defendant-appellee Ford Motor Company.

BRITT, Judge.

Plaintiff contends first that the court erred in allowing defendant Ford's motion for a directed verdict. We find no merit in this contention.

It will be noted that plaintiff's claim against defendant Ford is based solely on breach of an express warranty. The warranty made by defendant Ford and which plaintiff introduced into evidence and relies upon, provides in pertinent part:

WARRANTY FACTS BOOKLET ------------ 1974 Model Capri, Comet, Courier, Maverick, Mustang II and Pinto Warranty Ford and the Selling Dealer jointly warrant for each 1974 model passenger car or light truck (P400 or lower series) sold by Ford that for the earliest of 12 months or 12,000 miles, from either first use or retail delivery, the Selling Dealer will repair or replace free of charge any part except tires that is found to be defective in factory materials or workmanship under normal use in the United States or Canada. All Ford and the Selling Dealer require is that you properly operate, maintain and care for your vehicle, and that you return for warranty service to your Selling Dealer's place of business or to any authorized Ford or Lincoln-Mercury dealer if you are traveling, have moved a long distance or need emergency repairs. Warranty repairs will be made with Ford Authorized Service or Remanufactured Parts. To the extent allowed by law, this WARRANTY IS IN PLACE OF all other warranties, express or implied, including ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS. Under this warranty, repair or replacement of parts is the only remedy. * * * * * * Under this warranty, repair or replacement of parts is the only remedy, and loss of use of the vehicle, loss of time, inconvenience, commercial loss or consequential damages are not covered. In addition, damage from accidents, fire or other casualty, misuse, overloading, negligence, or racing, or failures caused by parts not supplied by Ford or by modification of any part of the vehicle are not covered by the warranty.

We construe said warranty strictly within the context of the pleadings and evidence in the instant case. We note again that plaintiff pled the warranty and relies upon it in his claim against defendant Ford. Since he does not attack the validity of the warranty, we do not consider that question but, for the purposes of this case, proceed on the assumption that the warranty is valid. See Rule 10, Rules of Appellate Procedure, 287 N.C. 671, 698.

The warranty limits Ford's liability to repair or replacement of "any part except tires that is found to be defective in factory materials or workmanship under normal use in the United States or Canada. * * * Under this warranty, repair or replacement of parts is the only remedy". With respect to defective parts, plaintiff's evidence at most tended to show a defective junction box but he presented no evidence tending to show the cost of repair to, or replacement of, that part. We hold that the court did not err in allowing defendant Ford's motion for directed verdict.

Plaintiff contends next that the court erred in granting the motion of defendant Snipes for a directed verdict. We think this contention has merit and hold *314 that the evidence was sufficient to take the case against defendant Snipes to the jury.

The evidence clearly showed that plaintiff's automobile caught fire; that the fire emanated from behind the dashboard; that there was no fire damage under the hood but the insulation on the wires under the dash was destroyed and the wires were melted together; and that some twelve days prior to the fire an employee of defendant Snipes altered the electrical system on the car by splicing the wires leading to and from a junction box, thereby bypassing said box.

Plaintiff's witness Cartrette, who qualified as an expert on motor vehicle electrical systems, testified that he examined the car prior to 1 November 1974 and found that the junction box had "burned up one time"; that he advised plaintiff to return the car to defendant Snipes; that thereafter he examined the car again and saw where the junction box had been bypassed; and that in his opinion it was "very possible" that bypassing the junction box as was done on plaintiff's car could cause a fire in the automobile.

We think the court properly permitted witness Cartrette to state his opinion aforesaid. In Teague v. Power Co., 258 N.C. 759, page 763, 129 S.E.2d 507, page 510 (1963), a case involving a fire allegedly caused by electrical wiring, Justice (now Chief Justice) Sharp said: ". . . However, an expert in a particular field may give his opinion, based on personal observation or in answer to a properly framed hypothetical question, that a particular event or situation could or could not have produced the result in question. Stansbury, Evidence, Section 137." See also Mann v. Transportation Company, 283 N.C. 734, 198 S.E.2d 558 (1975), and Lawrence v. Insurance Co., 32 N.C.App. 414, 232 S.E.2d 462 (1977).

It is true that defendant's witness Wilkins, who also qualified as an expert in automobile electrical systems, stated an opinion contrary to that given by plaintiff's witness Cartrette. But it was the province of the jury to resolve this conflict in the testimony and not that of the court.

Finally, plaintiff contends the court erred in not allowing the witness Daughetry to state in the presence of the jury that he determined that the cause of the fire was a shortage in the wiring. We find no merit in this contention for the reason that plaintiff did not lay a proper foundation for the witness to state the cause of the fire. See Stansbury's N. C. Evidence (Brandis Rev.), § 133.

As to defendant Ford, the judgment is affirmed.

As to defendant Snipes, the judgment is reversed and the cause will be remanded for further proceedings.

PARKER and VAUGHN, JJ., concur.