Burkhimer v. WB LINDSAY FURNITURE COMPANY

182 S.E.2d 834 (1971) 12 N.C. App. 254

Walton Peter BURKHIMER
v.
W. B. LINDSAY FURNITURE COMPANY, a corporation, and W. E. Shaw, Individually.

No. 7125DC422.

Court of Appeals of North Carolina.

August 18, 1971. Certiorari Denied October 5, 1971.

L. H. Wall, Lenoir, for plaintiff appellant.

Townsend & Todd by J. R. Todd, Jr., Lenoir, for defendants appellees.

Certiorari Denied by Supreme Court October 5, 1971.

MORRIS, Judge.

Plaintiff testified that he purchased the refrigerator from defendant through Mr. Shaw who "said it would do the job, that it was a no-defrosting model and had an automatic ice maker." The refrigerator did not function properly from the day it was installed. The refrigerator was installed on Saturday and the installer had trouble with the ice maker and came back on Monday. Several months later "it iced up completely and frost got in the back and iced up completely and we found milk spoiling and other food spoiling." Plaintiff had trouble with it icing up several times and would ask defendant to send someone out to get it to stop icing. Defendant would send someone out and it would function fairly well for a while and then start back icing up in the freezing compartment and not being cold enough in the lower or food compartment. This went on until the spring of 1969. On cross-examination, plaintiff testified he never saw an owner's guidebook or warranty, that he had only one refrigerator in his home, that the refrigerator in question was still there and had food in it at the time. On redirect examination, plaintiff testified "We lost considerable amounts of milk, ice cream, lettuce, chicken, meat, vegetables and other foods. This loss has been over virtually the whole time we have had the refrigerator. We averaged losing about two gallons of milk per week, a couple of heads of lettuce, about three half-gallons of ice cream, some chicken, about a chicken a week, and other vegetables and stuff it's hard to figure a record on that we'd lose about one item of vegetables or meat a week. We had trouble losing food when it iced up and sometimes in between times. We learned that if we kept the food in the freezer compartment instead of the food compartment and after it iced up we would transfer it to the food compartment to thaw it out."

On recross-examination, plaintiff testified as follows:

"I stated that about two months after we purchased the refrigerator, we had some milk to spoil in it, about two gallons per week. I am telling the jury we put milk in this defective refrigerator every week for the past three years knowing it would spoil.

REDIRECT EXAMINATION By Mr. Wall:

Since Mr. Shaw would not supply us with a new refrigerator, we had to use something and we tried to use it to the best advantage possible.

RECROSS EXAMINATION By Mr. Todd:

My explanation is that the best advantage we could use the refrigerator was to put milk in it every week knowing it would spoil and not be fit for use. After I brought the lawsuit in April, 1970, we continued to put milk and food in the refrigerator knowing it would spoil. We did everything we could to keep it from spoiling."

At the end of plaintiff's evidence defendant moved for dismissal. The motion was denied, renewed at the end of all the evidence, and again denied. Five issues were submitted to the jury: (1) Whether there was an "expressed warranty" with the refrigerator, (2) If so was it breached, (3) Whether there was an impied warranty, (4) If so was there a breach, (5) Amount of recovery, if any. The jury answered the first issue "yes" and the second issue "no."

Plaintiff brings forward and argues 33 assignments of error based on 49 exceptions. Some of the exceptions are directed to the admission or exclusion of evidence and some to the charge of the court. There is merit in some of the exceptions, particularly those directed to the charge. However, "where the judgment is in conformity with the ultimate rights of the parties, or the appellant, as a matter of law, is not entitled to the relief sought, mere technical error will not justify disturbing the judgment" of the trial tribunal. 1 Strong, N.C.Index 2d, Appeal and Error, § 47, and cases there cited.

In our opinion this case is controlled by Nationwide Mutual Insurance Co. v. Don Allen Chevrolet Co., 253 N.C. 243, 116 S.E.2d 780 (1960). The facts are strikingly similar. There the Court, through Bobbitt, J. (now C. J.), quoted with approval Sutherland on Damages, Fourth Edition, Vol. 1, p. 317, § 89: "* * * where property is sold with a warranty of fitness for a particular purpose, if it be of such a nature that its defects can be readily, and in fact are, ascertained, yet the purchaser persists in using it, whereby losses and expenses are incurred, they come of his own wrong and he cannot recover damages for them as consequences of the breach of warranty." The trial court should have granted defendants' motion at the close of plaintiff's evidence. Since the matter should not have been submitted to the jury, errors in the charge cannot be held to be prejudicial. Exceptions to the admission or exclusion of evidence did not constitute prejudicial error.

Because of this disposition of the appeal, we do not discuss plaintiff's exception to the trial court's refusal to strike defendants' motion to dismiss and for default judgment. Nor do we discuss defendants' motion, on appeal, to dismiss for failure to state a cause of action upon which relief can be granted. A discussion of the sufficiency of the complaint would be time consuming and is unnecessary.

Affirmed.

BRITT and PARKER, JJ., concur.