Carr v. Jacuzzi Bros., Inc.

*75Evans, Judge,

dissenting in part.

Carr purchased certain water pumps from Jacuzzi Brothers, Inc., and used said pumps for a period of several years. During this time, Carr encountered various difficulties with the pumps; and finally Carr sued Jacuzzi, alleging defendant had made false representations; had negligently designed and manufactured the product; and had breached the implied warranties of suitability for the purposes for which the pumps were sold; as well as to merchantability of the pumping equipment. He prayed for damages, an accounting as to the pumping equipment which Carr alleged he had returned to Jacuzzi, and the payment of freight, and credit for defective parts which had to be replaced.

At the end of plaintiffs testimony, defendant moved for a directed verdict and contended: (a) No evidence of defects was introduced; (b) No breach of warranty, express or implied, had been proven; (c) There had been an accord and satisfaction by and between the parties, as to return of the equipment with a mutual accounting, and including the submersible pumps; (d) The claims for repairs were premature; (e) All lost profits were purely speculative; (f) There was a failure to prove notice of the alleged breach of warranty as to the pumps; (g) There was a failure to prove the claims for transportation expenses. The court then directed the jury to return a verdict against plaintiff and for the defendant as to all counts. Plaintiff appeals.

In considering a motion for directed verdict, all of the evidence and all inferences arising therefrom must be construed most favorably toward the party opposing the motion. Sellers v. Wolverine Soap Co., 19 Ga. App. 295 (1) (91 SE 489); McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178, 179 (129 SE2d 408).

The majority opinion affirms the trial judge in its direction of the verdict. I disagree. The direction of a verdict is proper only when there is no conflict in the evidence as to any material issue; and when the evidence as introduced, with all reasonable deductions, demands a verdict. Code Ann. § 81A-150 (a) (§ 50 CPA; Ga. L. 1966, pp. 609, 656); State Farm Mut. Auto Ins. Co. v. Snyder, 125 Ga. App. 352 (187 SE2d 878); Isom v. Schettino, 129 *76Ga. App. 73 (199 SE2d 89).

1. As to defendant’s contention that the evidence is speculative as to repairs and future maintenance; as to loss of profits due to breakdown of pumps already installed, and which would cause plaintiff to lose certain business while making repairs, I agree with the majority opinion in Divisions 3 and 6 that said items of damages are too remote and wholly speculative for a recovery. See Georgia Grain Growers Assn. v. Craven, 95 Ga. App. 741, 747 (98 SE2d 633) as follows: "Profits which are remote, or speculative, contingent or uncertain are not recoverable.”

2. But I do not agree with that part of the opinion which asserts that there was a total absence of evidence in support of plaintiff’s damages. The plaintiff offered testimony which was properly admitted and was sufficient for the jury to make a determination as to whether or not the resulting damage from red (rusty) water, swelling bearings, breaking shafts, stuffing boxes locking up, and the wearing out of bowl assemblies were due to the faulty equipment or to faulty installation, or other causes. Plaintiff testified that he installed the equipment properly; and the jury very easily could have determined that the history of necessary replacement on the various jobs indicated the replacement was necessary because of impellers wearing out prematurely, and other defects in the machinery. The resulting wear and increased rusting was evidence to show that the pumps were unsuitable for the purposes intended.

3. A very important phase of this case is the question of warranty. Defendant contends that there was no implied warranty because there was an express warranty; and that express warranty excludes implied warranty.

But there was never any proof introduced to show that there was an express warranty in this case. Plaintiff’s complaint did not so allege; defendant’s answer did not so allege; the depositions and interrogatories of plaintiff and defendant give no such testimony.

Plaintiff testified that he had never read the conditions of sale or an express warranty in this case; he *77had never read the catalogue which may or may not have had such express warranty therein; he had never been involved in a warranty on pumps since he had been in the pump business; that he had "at some point in time” become aware that customarily the turbine pump industry as a whole carries a one year guarantee on parts and workmanship; that his "understanding” was that Jacuzzi Brothers warranted the merchandise and equipment against defect for one year — but he did not testify as to when he gained this understanding nor from whom he gained it. (Tr. pp, 56-59). He may have gained this understanding from mere hearsay only, and at a time long after the transaction between the parties had ended, perhaps two or three days before the actual date of trial of the case.

In this situation it became the duty of defendant to prove a one year warranty if it wished to rely on same and to use it as proof that no implied warranty existed. All testimony and evidence and inferences arising from evidence in motions for directed verdict must be construed most favorably towards the party opposing the motion. Whitaker v. Paden, 78 Ga. App. 145 (1) (50 SE2d 774); Curry v. Durden, 103 Ga. App. 371 (1) (118 SE2d 871); Northwestern University v. Crisp, 211 Ga. 636, 647 (88 SE2d 26).

While there is authority that suggests an express warranty may exclude implied warranty, it depends entirely and solely on the language in the express warranty as to whether there is an exclusion. See Code Ann. §§ 109A-2—315, 109A-2—316 (Ga. L. 1962, pp. 156, 190; 1971, pp. 457, 458).

In this case, if defendant is to prevail in its contention that express warranty excludes implied warranty, then it was absolutely incumbent upon defendant to introduce and prove the express warranty; so the court could study it and ascertain whether by its language implied warranty was excluded. But defendant did not introduce and prove an express warranty. We do not have it before the court; and consequently no one can say that implied warranty is excluded in this case.

4. The question of accord and satisfaction and mutual accounting by and between the parties with the *78return of the equipment was a factual question and issue for determination by the jury. The jury would be required to decide as to the amount due if there was a mutual accounting; and whether there was an accord and satisfaction between the parties.

5. Also the alleged settlement as to the submersible pumps, with their return and the acceptance of credit, created a question of whether or not there was an accord and satisfaction of these items. As to the common carrier transportation rates, plaintiff testified he returned the items himself to Arkansas and defendant promised to pay as expenses the common carrier rates. If his expense does not exceed the common carrier transportation rates, plaintiff would be entitled to recover same; otherwise, he would be limited to the amount of common carrier charges for these items. Of course, if the jury decided that defendant did not promise to pay these expenses, plaintiff would not be entitled to recover for same.

While some of plaintiffs testimony was technical, there was ample evidence to authorize a finding by the jury in plaintiffs behalf. I therefore would vote to reverse the lower court in granting a directed verdict on all counts except as to the claim for lost profits and future repairs which appear to be too speculative and remote.

I am authorized to state that Judge Deen joins in this dissent.