*1 612 matter,
“When a testify any witness refuses to as to his refusal on the constitutional basing privilege against self-incrimination, are not to draw from that fact you credibility inference the witness as any as to the defendant.” innocence of the guilt application has legislature qualified The California enactment of their Evidence Code 913 to by rule general § when it only requested party the instruction require it If the instruction is to serve its adversely purpose affected. care as where with the same degree applies should treated failed testify. defendant has refused or The instruction been it became the law of the having given case on the court counsel. SDCL 23-45-1 binding thereunder. annotations
EHLERS, CORPORATION, Respondent CHRYSLER MOTOR
Appellant N.W. 2d (226 157) (File 1975) February Opinion No. 11381. filed *3 Fuller, Chamberlain, R. E. & defend- Morgan, Morgan ant and appellant. Eklund and Charles Rick
Wally Johnson, Johnson, Johnson Eklund, & Gregory, plaintiff respondent.
WINANS, Justice.
This is an action for breach of warranty arising out of the sale of a Chrysler automobile Motor Ryan Company of Falls, breach, Sioux South Dakota. The alleged -and the so found, was that the vehicle was delivered with an undersized crankshaft, the car was windows were noisy, installed incorrectly and the transmission would not shift properly.
Upon realizing existence of these defects respondent returned the car to Ryan Motors for under repairs the warranty. Warranty repair work was refused because in Chrysler’s opinion the car’s had mileage been altered by disconnecting speedom- eter cable. Such an action would under negate warranty condition contained therein that “this will not apply vehicle on which the odometer is altered”. any mileage
We must first decide the question of a admissibility letter written by the to the plaintiff-respondent officers of Chrysler Corporation outlining problems had respondent experienced car, with the demanding Chrysler honor the The warranty. letter contained the following statement: “Further *4 a Chrysler Dealer informed me there have been in parts placed * * * * * * this car that are not the proper parts also in his we opinion would never hold a transmition in this car [sic] with this motor in it.”
It is contended by that this appellant statement is inadmis- sible as hearsay, as evidence opinion a concerning subject of nature, a highly technical which is beyond the everyday of most knowledge jurors. answers,
Respondent and we that agree, the letter was admissible properly to show notice of the defect had been given 57-7-15, to the seller. SDCL which is the of the counterpart Code, Uniform Commercial Section reads as follows: 2-607(3), a been accepted tender has “Where after must within a reasonable time buyer (1)The discovered breach any he discovers or should have any the breach be barred from notify seller of or * * remedy as for breach of to action one being litigated Due this as to was on the show buyer, the burden warranty, respondent, notice to The letter in that he had statute. given proper pursuant served this question purpose. Pred, Frocks Ree supported by This proposition Jan 696,
1942, 359, 2 to a Referring N.W.2d 68 S.D. breach, 57-7-15, the to seller of court forerunner of SDCL Notice stated: however, does the discharge of not
“Acceptance goods, remedy from in or other for liability seller contract, fails to buyer give unless the breach a reasonable to the of the breach within notice seller * * * he know of ought time after knows or it. has neither a of action for right The purchaser a of a nor defense for the promise breach unless the notice has been price, required purchase * * * must The such notice giving given. of to recover pleaded proved by seeking purchaser ” breach warranty. (citations defend and emphasis supplied) omitted (U.C.C. the notice of SDCL 57-7-15 Clearly, provision a is a fundamental prerequisite buyer’s recovery 2-607(3)), that warranty. breach We hold therefore the letter transmitted admitted to from was establish respondent Chrysler properly of breach was statutorily required given notice fashion. timely maintains that the trial court committed error next
Appellant motion for a directed verdict at close of by not its granting See testimony. 15-6-50(a). *5 a directed verdict the trial judge: On a motion for “must that evidence which accept is most favorable to whom the motion is and in- party against sought, all inferences in his can dulge legitimate favor that * * * If, be drawn fairly therefrom. when so viewed, there is substantial evidence any to sustain the cause of action or defense it must submitted to the 1961, 248, jury.” Myers Quenzer, 254, 79 S.D. N.W.2d
In ruling on this motion it was not the trial court’s function, ours, and is not now the evidence weigh judge of witnesses. Our credibility review is limited to the sole question whether, in the light most favorable to the nonmoving party, there was substantial “any evidence to sustain the cause of ac words, In tion.” other was there a failure of on the proof part the plaintiff-respondent to establish a valid cause of action?
Appellant bases its contention that a directed verdict was in order on evidence which it shows that argues vehicle’s mileage meter had (odometer) been tampered with. Under the terms of the warranty such would end tampering coverage.
The only supportive evidence offered by appellant Chrysler was the testimony of several Ryan Motor Company employees who stated observed they the speedometer cable was disconnected from the “speed set” on the car From question. the fact of disconnection the naked inference be drawn may that respondent had tampered with the cable.
In opposition to this inference evidence was produced several through witnesses the' vehicle’s oil change slips to the effect that the odometer on the car reading was accurate when it was delivered for work.
Respondent’s evidence stands in direct conflict with the inference of relied tampering by Chrysler. on This court believes evidential conflicts such as this are properly resolved a under instruction from the Trial Judge.
Because there is substantial evidence that did not respondent meddle odometer, with the vehicle’s cause well-grounded action was presented by respondent’s court, claim. The trial *6 case not short-circuit
therefore, correctly respondent’s decided to verdict. the directed by granting liability by to imposition avoid
Appellant attempts behind the disclaimer contained in the vehicle’s itself shielding and which to Chrysler’s obligation repair replace- limits ment: OF
“THIS WARRANTY IS IN LIEU ANY OTHER CONDITIONS, OR INCLUDING WARRANTIES A MERCHANTARILITY OR FITNESS FOR PARTIC- THE ULAR PURPOSE. REMEDIES UNDER THIS ARE WARRANTY EXCLUSIVE AND NEITHER NOR CHRYSLER CHRYSLER CORPORATION MO- NOR TORS CORPORATION ASSUMES AUTHORIZES TO THEM ANYONE ASSUME FOR ANY OTHER ORLIGATION.” obscure, appears somewhat it to be
Although Chrysler’s disclaimer be effect given contention should because it with complies pertinent provisions of Uniform Commercial as in Code forth SDCL. set (U.C.C.) SDCL 57-8-49 Specifically, Agreeements (U.C.C. 2-719(1), remedies, or in excluding pertinent part provides: limiting may provide The for remedies in addi- agreement “(1) provided tion to or in substitution for those in chap- 57-8, inclusive, ters 57-2 and limit or alter may to the measure of recoverable under said as remedies to re- chapters, buyer’s limiting turn of the and or goods repayment price goods or repair replacement nonconforming parts; Resort to a as is unless remedy
(2J provided optional exclusive, be remedy expressly agreed remedy.” which case it is the sole While this statute seems to the shield it provide Chrysler seeks, provision, 2-719(2)), strips another 57-8-50 (U.C.C. away the defense: remedy, “Failure exclusive limited effect.— cause an exclusive or limited
Where the circumstances remedy may to fail of its essential remedy purpose, had as in this title.” provided limitations contained does not contend that the
Respondent are unfair unreasonable. does intrinsically in the disclaimer H§ *7 that, Chrysler while the of remedies is limiting proper, contend because the breach has caused the rely not on its disclaimer may breach Chrysler’s “fail of its essential remedy to purpose”. limited when it failed for an time to unreasonably long repair occurred or defects in automobile. replace respondent’s U.C.C. the to parallel provision to
Referring 2-719(2), 57-8-50, it was stated that: ‘is not concerned with provision arrangements “[T]his which were their but rather oppressive inception, at with the of an to novel circum- application agreement ” the parties.’ White contemplated not stances J. Summers, R. Handbook Of The Law Under the Uni- form Commercial Code (1972).
Thus, fair, what was once but due to novel circumstances is no longer, is the of this statute. As stated in the Official purview Comment to U.C.C. 2-719(2) (SDCL 57-8-50):
“* * * where an fair and reasonable apparently clause because of circumstances fails in its purpose operates to either of the substantial value deprive party it must bargain, give way remedy to the general of this Article.” provisions
Ry
for an unreasonable
of time the
delaying
length
vehicle,
him of the
repair
respondent’s
appellant deprived
otherwise,
warranty
the
Stated
the
bargain.”
“substantial value of
available
“to fail of its essential
remedy
the
causing
was breached
all otherwise available
play
into
brings
failure
Such
purpose”.'
devices,
SDCL 57-8-39 (U.C.C. 2-715(1)),
to-wit:
remedial
breach; and
seller’s
57-8-40 (U.C.C.
from
Incidental
seller’sbreach.
from
Consequential damages
2-715(2)),
v. Ford Motor
Riley
is found
holding
for our
Support
1971, Cir.,
In
a case
Riley,
strikingly
Whether the
provided
if
them
jury by asking
was
to
purpose”
presented
essential
defendant,
has breached its warranty
Motor Company,
“the
Ford
* *
was asked
*”.
“Under the facts of
was
in its
that
unjustified
implicit finding
that
the
to
the
‘of the
warranty operated
deprive
purchaser
the
”
value of the
It is impermissible for to choose which appellant sections to be bound by. Appellant Chrysler’s actions in breaching warranty by to honor its refusing under obligations ,the it has caused limited remedy of repair replacement “to fail of its essential It purpose”. necessarily follows that plaintiff- respondent is entitled to seek damages incidental and conse quential lossescaused by appellant’s breach. the claim
Finally, is made by appellant that the jury’s verdict is so excessive patently as to conclusively the result of passion and prejudice. that “Excessive or by
It is provided 15-6-59(a)(5) to have been under given inadequate damages appearing influence of passion or prejudice”, grounds for a new trial. To “ this statute ‘the find an excessiveaward within the meaning must be flagrantly outrageous extravagant, * * line; have cannot undertake to draw the (we) court ” no'standard which to ascertain the excess.’ Brewer v. Mat tern, 1971, 356, 365, 327, 85 S.D. 182 N.W.2d we are also mindful
In
this determination
making
court,
we,
draw
inferences from the
like the trial
must
those
evidence which are
the successful
party. Byre
most favorable to
Wieczorek, 1974,
88 S.D.
Although do not find the in this damages case to “be and outrageous extravagant”. In flagrantly Riley a verdict of the court found Company, supra,
Ford Motor excessive; $30,000 $8,476 an for to be purchased automobile however, bar, presents and we The case at no such agree. vehicle was Respondent’s pur- example jury extravagance. $5,416 and the verdict was in the amount of jury’s chased for $3,500. The evidence adduced at trial shows a wide divergence and received. is unnecessary between the car that It paid the multitude of defects contained in the car. Suffice it to catalog that, the vehicle in say colloquially speaking, question appears a possess “Friday characteristics of identifying evening of discretion. abuse special.” We find no Affirmed. COLER,
DUNN, and concur. JJ., C. and DOYLE J., WOLLMAN, in and dissents in part. concurs J., part WOLLMAN, in in (concurring part dissenting Justice part). had Chrysler that finding I
Although agree jury’s affirmed, believe that breached I do not its should to this case. applicable 57-8-50 few situations where relatively “There are probably can fail of its essential Section remedy purpose. will be called into 57-8-50) probably 2-719(2) (SDCL Co., in cases like Ford Motor Riley action most often [v. Cir., when in- remedy 442 F.2d the exclusive 670] of defective replacement repair parts, volves in because the repair seller because of his negligence is unable to beyond repair, put goods are goods * * *” White and R. Sum- warranted condition. J. mers, Handbook of the Law Under the Uniform Com- Code, 12-10, mercial Sec. p.
Instruction No. to which defendant made no objection, fixed the measure of as the difference between the actual value the automobile at the time delivery to the *10 had if the value the would have plaintiff and the automobile This was presum- had been with. instruction complied Under this based ably upon (U.C.C. 57-8-37 2-714(2)). damages, measure of the cost is of of repair great significance. “The formula between the 2-714(2) (difference value as of and the value of as goods accepted goods is the same as the for- warranted) essentially pre-Code mula. A useful measurement of the difference objective in value as is and as is repair. warranted the cost of Thus, if buyer a a truck with a defective radia- accepts tor, a measure of the difference between value good of the as truck warranted and its value as delivered a new price faulty of radiator less value of the Summers, 10-2, one.” White and R. Sec. supra, p. J. 308. (footnote omitted) The verdict is clearly excessive.Plaintiff offered no probative evidence of other value than his that the car give opinion was worth only to him. was $500 There competent evidence intro- duced defendant to show that entire transmission could have been replaced approximately $400. For all plaintiffs motor, complaining about the mechanic who worked on the car at Willrodt Motors in Chamberlain testified the car ran well after he had worked on it in One February 1972. service men at Ryan Motors in Falls Sioux testified that after the manifold been bolts had tightened “was engine quiet run a like clock.”
I would reverse remand new trial the issue on damages. BROOKINGS, OF
CITY Respondent ROBERTS, Appellant 2d
(226 N.W. 380) (File 1975) Opinion February No. filed