Douglas v. W. C. Mallison & Son , 265 N.C. 362 ( 1965 )

144 S.E.2d 138 (1965) 265 N.C. 362

Paul DOUGLAS
v.
W. C. MALLISON AND SON, a Partnership consisting of S. M. Mallison, Jr., Fred M. Mallison, Mrs. S. M. Mallison, Sr., and Mary Mallison Baker.

No. 28.

Supreme Court of North Carolina.

September 29, 1965.

John A. Wilkinson and LeRoy Scott, Washington, for plaintiff.

James & Speight, William C. Brewer, Jr., W. W. Speight, Greenville, and Hallett S. Ward, Washington, for defendants.

LAKE, Justice.

The appellant's first three assignments of error do not comply with this Court's Rule 19(3) in that they are not sufficient, within themselves, to present the errors relied upon. For example, Assignment #1 simply states:

"1. The ruling of his Honor on that portion of the direct examination of Paul Douglas, an objection to which was sustained. (R p 18) This is PLAINTIFF APPELLANT'S EXCEPTION #1."

The rule requires that the assignment of error show what question is intended to be presented for consideration without the necessity of paging through the record to find the asserted error. A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. Hunt v. Davis, 248 N.C. 69, 102 S.E.2d 405. The assignment of error should have set forth, within itself, the question asked, the objection, the ruling on the objection, and what the witness would have answered if he had been permitted to testify.

Had these three been the only assignments of error, the appeal might properly have been dismissed on this ground alone, but since the appeal is from a judgment of nonsuit, which is Assignment #4, it is not subject to dismissal under this rule.

Having gone upon the voyage of discovery, to which we are directed by the references to the record in the first three assignments of error, we find that they are without merit. Assignment #1 relates to no question propounded to the witness, but to plaintiff's counsel's statement as to what the answer alleges. The witness stated clearly the plaintiff's view of the fact in question, so, in any event, the plaintiff was not prejudiced by the sustaining of this objection. As to Assignment #3, the record shows only the question to which objection was sustained. It does not show what the witness would have said if he had been permitted to answer. Thus, again, there is no showing of prejudice to the plaintiff by this ruling.

Assignment #2 relates to the sustaining of an objection to a conversation between the plaintiff and one, Henry Hamilton, identified only as a mechanic employed by the defendants. Had the plaintiff been permitted to answer, he would have testified that Hamilton told him, when he went back to get the machine from the defendants' shop, "It was ready." Even if the statement by an authorized agent of the seller of a machine that it is "ready" could be deemed a warranty or representation of fitness for a particular use and purpose, there is nothing in the record to indicate that Hamilton was authorized by the defendants to make any statement as to the condition of this machine or that he knew what use of it was contemplated, or that he had done any work on it. There was no error in sustaining this objection.

The appellant must, therefore, stand or fall on his contention that it was error to allow the defendants' motion for judgment as of nonsuit in view of the evidence offered by him and admitted.

The complaint, liberally construed, proceeds upon two theories of recovery: (1) That the defendants, at the time of the sale, warranted that this particular loader was in good condition and could be operated with safety; and (2) that the defendants negligently sold and delivered the machine when they knew, or should have known, that it was not properly braced and, therefore, was not safe for use.

The plaintiff's testimony shows that he purchased this specific, designated, second-hand machine, selecting it himself as the machine he wanted because he recognized it and had formerly used it. He thoroughly inspected it at the time of the sale. Under those circumstances, no warranty as to its quality or fitness for the intended use can be implied. Driver v. Snow, 245 N.C. 223, 95 S.E.2d 519; 46 Am.Jur., Sales, § 360; 77 C.J.S. Sales § 315; Anno. 78 A.L.R.2d 594, 616.

There may, however, be an express warranty as to the quality and safety of an article sold as second-hand and there is authority to the effect that an agreement to overhaul a second-hand machine and put it in first class shape may constitute a warranty that the machine delivered pursuant to that agreement is free from structural defects. 46 Am.Jur., Sales, § 327. Any affirmation of fact or promise by the seller relating to the article sold is an express warranty if the natural tendency of the statement is to induce the buyer to purchase the article and the buyer does purchase it in reliance upon such statement. Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908. If such a warranty is given, the seller's liability for its breach does not depend upon proof of his negligence but arises out of his contract. Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21; Williston on Sales, Revised Edition, § 327.

"The liability of the seller of an article in damages for breach of warranty includes all damages which the buyer incurred as a result of a breach of the warranty which may fairly be supposed to have been in the contemplation of the parties at the time of the sale, that is, which might naturally be expected to follow the breach of warranty, and the buyer may, in an action for breach of warranty, recover damages for personal injuries sustained in consequence of the breach complained of, if such injuries were in the contemplation of the parties at the time of the sale, or if they are such as might, in the natural or usual course of things, result from a breach of the warranty." 46 Am.Jur., Sales, § 801. See also: Price v. Goodman, 226 N.C. 223, 37 S.E.2d 592; Hodges v. Smith, 159 N.C. 525, 75 S.E. 726.

The burden is upon the plaintiff to prove the giving of the warranty as alleged in his complaint, its breach and his injury as a natural consequence of the breach and one which was contemplated by the parties at the time of the sale as likely to result therefrom. Furst v. Taylor, 204 N.C. 603, 169 S.E. 185; Strong, N.C. Index, Sales, § 14.

In the absence of a warranty, the liability of the seller of a machine for injuries sustained by the user thereof due to a defective condition must rest upon the theory that the seller was negligent in selling the machine for the contemplated use. The care required of a seller is certainly no greater than that required of a manufacturer. In this instance, the defendants were the manufacturers of the machines but had sold it and had reacquired it after it had been used for a long period of time. The plaintiff does not contend that the machine, as originally designed and constructed, was defective. His complaint is that at some later time a part was broken off and disappeared. He contends that the defendants, who were the original designer-manufacturers, should have observed the loss of this part when the machine came back into their hands. The difficulty confronting the plaintiff, upon this theory of his case, is that the absence of this part was equally observable to him and he had used this machine when it was in its original condition and the part in question had not been broken off.

It is true that a manufacturer, who produces and sells a new article, which, in the exercise of reasonable care, he should know is likely to cause injury in its ordinary use because of some latent defect or because it is inherently dangerous for such use, is liable to the buyer who, without any negligence of his own, so uses it and is injured by such defect or dangerous nature. Wyatt v. North Carolina Equipment Co., supra; Gwyn v. Lucky City Motors, Inc., 252 N.C. 123, 113 S.E.2d 302; Lemon v. Buchan Lumber Co., 251 N.C. 675, 111 S.E.2d 868; Tyson v. Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170, 78 A.L.R.2d 588. However, in the absence of a warranty, the manufacturer-seller of even a new article is not liable for injury to the buyer-user by reason of a condition which is plainly observable.

The plaintiff's own testimony, interpreted in the light most favorable to him, shows that the defect, which he says was the cause of his injury, was not latent but was observable by anyone who inspected the machine. He, himself, had used this machine in the pulpwood operations of its former owner. There was then a chain running from each side of the A-frame to a steel arm projecting from the corresponding side of the chassis. When he and his employees set up the machine for his own operation of it, they knew the nature and purpose of the chain on the left side and they attached it to the A-frame. There was at that time, on the right side of the chassis, the broken stub of what had been the projecting arm from which a chain was originally intended to run to the right side of the A-frame. This condition was readily observable by anyone raising the A-frame into its working position. We think the plaintiff's evidence fails to show negligence on the part of the defendants in not calling the absence of this chain to the plaintiff's attention.

We do not think the evidence offered by the plaintiff is sufficient to prove a warranty by the defendants that the machine, at the time it was sold and delivered to the plaintiff, was in a safe working condition and ready for use. Other parts were to be attached by the plaintiff and, after the A-frame was raised into the working position, it had to be braced in that position by the plaintiff. The statements that the salesman would get it "in working order" and "get it ready to go" would seem to mean only that the repairs he and the plaintiff had discussed would be made.

Even though the seller of a machine has expressly warranted it to be in good condition and safe for the contemplated use, or has been negligent in selling the machine in an unsafe condition, the buyer-user may not recover damages for injuries resulting from its use if he used it when he knew, or in the exercise of reasonable care should have known, that the machine was not in a safe condition and so contributed to his own injury. Nationwide Mutual Insurance Co. v. Don Allen Chevrolet Co., 253 N.C. 243, 116 S.E.2d 780; Williston on Sales, Revised Edition, § 614b; 46 Am.Jur., Sales, §§ 801, 808.

A judgment of nonsuit on the ground of contributory negligence may be entered only when the plaintiff's evidence, considered alone and taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. Cowan v. Murrows Transfer Co., 262 N.C. 550, 138 S.E.2d 228; Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; Strong, N. C. Index, Negligence, § 26. For such a ruling to be proper, it is also necessary that the answer has alleged the negligent act or omission on the part of the plaintiff which is so shown by the evidence, Maynor v. Pressley, 256 N.C. 483, 124 S.E.2d 162; Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785; Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654; Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326; G.S. § 1-139.

The plaintiff contends in his brief that the answer alleges contributory negligence only in that the plaintiff used the pulpwood loader in a manner and for a purpose other than that for which it was designed. He contends that the defendants have not alleged contributory negligence consisting of the plaintiff's use of the machine when he knew, or ought to have known, that it was unsafe due to the absence of the chain brace on the right side of the A-frame.

The answer alleges as one of the ways in which the plaintiff was negligent: "(e) Plaintiff knew or should have known by the exercise of reasonable care, observation and prudence, that the A-frame folded back towards where he was seated for the purpose of transportation * * * and plaintiff failed and neglected to take precautions to prevent said frame from falling back towards him * * *."

G.S. § 1-151 provides: "In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties." We believe that the answer, so construed, alleges contributory negligence in the respect in question.

The record shows that the plaintiff filed a motion to make the answer more definite and certain as to the acts or omissions constituting contributory negligence. Thereupon, the defendants amended one subparagraph of the answer, dealing with a different specification of contributory negligence, but did not amend the allegation above quoted. The record does not show any order with reference to the motion to make the answer more definite and certain, so we conclude that the plaintiff elected to go to trial without seeking a more definite statement of the contention made by the above quoted allegation. He evidently understood the allegation as we now interpret it, for he offered evidence designed to justify his use of the machine in the condition in which it was. It is his evidence, and his alone, which is now under consideration.

The plaintiff's evidence shows clearly: He, and at least one of his employees, had used this identical machine before and, at that time, it had a chain on each side of the A-frame. He and his employees took the machine into the woods with the A-frame folded back upon the chassis. There they raised the A-frame and fastened the chain on the left side. He and his employees understood that the purpose of this chain was to brace the A-frame so as to prevent it from falling backward when power was applied to the cable. They saw, or could have seen, on the right side of the A-frame a broken remnant of the steel arm similar to that to which the chain on the left side was attached. This should have been a sufficient reminder or notice to them that the machine originally had, and needed, a chain on each side of the A-frame to prevent the A-frame from falling backward when strain was applied. This evidence, offered by the plaintiff, leads to the single conclusion that, if the defendants were negligent in selling and delivering the machine to the plaintiff without a chain and projecting arm on the right side of the A-frame, as the plaintiff contends, the plaintiff was also negligent in attempting to use the machine when he knew, or should have known, it to be in that condition, and his own negligence was one of the proximate causes of his injury.

The judgment of nonsuit is

Affirmed.