Opinion
Decided October 14, 1925.
Sales — Motor truck — Cross-petition for damages for breach of warranty — Directed verdict against cross-petitioner — Evidence that damages due to defective material or negligent operation.
When the uncontradicted evidence in support of a cross-petition for damages for breach of warranty against defective material in a motor truck shows that the damages may have resulted because of defective material, or may have resulted from the negligence of the operator of the truck, and that one cause was just as probable as the other, it is not error to direct a verdict against the cross-petitioner.
Sales, 35 Cyc. p. 483.
ERROR: Court of Appeals for Ottawa county.
Messrs. Stahl Price, for plaintiff in error.
Messrs. True, Crawford True, for defendant in error.
The White Motor Sales Company was plaintiff in the trial court, and its action was based upon certain promissory notes given for the payment of a motor truck. The defendant Lampe did not controvert liability upon the notes, but set up in a cross-petition a claim that the contract of purchase for the motor truck contained a warranty for a period of 90 days against defective material, and he contends that the material of the connecting rod bolts was defective, by reason of which defect the bolts broke, resulting in serious injury to the truck. For this injury he claimed $1,500 damages.
The trial court directed a verdict for the plaintiff below for the full amount claimed and against the defendant on the cross-petition.
While the truck was being driven at a moderate speed by the defendant Lampe, something went wrong with the machinery, and he testifies that all of a sudden it cracked like a shotgun, and simply broke, and that he did not know what was the matter until after it was towed into a service station. The nature of the injury that happened and the cause of the injury are detailed only in the testimony of the witness George Swales, who repaired the truck, and who appears to have been fully qualified to testify on the subject. He was asked if he could tell what caused the break, and his testimony on this subject is as follows:
"There is three ways it could happen. It could happen by a bearing burning out and loosening his bolts by hammering and going through the case; it could happen by a man tightening the bearings too tight and loosening the nuts on the bolts."
Later in his testimony he states that the damage could have been caused by the breaking and burning out, and hammering of the bolts loose, or that a man could take them up too tight, where this motor did not have shims, and "instead of putting a shim in they just slacked off on the nuts, and it pounded out, or else it could be defective bolts which broke off." He states that he knew of no other way how it could happen, and that the bolt could be broken off by any one of the three methods. In his testimony he clearly states that the injury happened, not because of the bearings being burned out, but "because this bolt was defective, or else it had been taken up and loosened up.
"Q. You are unable to say which reason?
"A. I am unable to say which one."
From this resume of the evidence on this subject it is manifest that it does not appear whether the damage to the truck resulted from a cause within the warranty against defective materials or from a cause not covered by the warranty. That warranty was very narrow and very specific, being simply for the term of 90 days against defective material. In order to justify submitting the case to the jury, the evidence should, at least, have made it probable that the damage resulted from a cause covered by the warranty. The evidence must be such that this fact would appear more probable than any other. Such is the rule laid down in L.S. M.S. Ry. Co. v. Andrews, Admr., 58 Ohio St. 426, 51 N.E. 26, a case which has been many times followed by the courts. The evidence in this case is that the damage just as likely resulted from some cause not within the warranty as from defective material, and to permit the rendition of a verdict on such evidence would be to allow a jury to base a verdict upon a mere guess, which is abhorrent to the law.
The original verdict, and the journal entry of the same, show that it was for $2,120, in favor of the White Motor Sales Company, while the judgment, probably through inadvertence, is for $2,125. The judgment should be modified, and reduced to $2,120, to conform with the verdict, and, as so modified, it will be affirmed.
Judgment modified and affirmed.
YOUNG, J., concurs.
WILLIAMS, J., not participating.