Appeal from the Circuit Court of Bureau county; the Hon.
LEONARD HOFFMAN, Judge, presiding. Affirmed.
JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
This is a suit upon a written express warranty brought by the plaintiff, Clarence Haas, against the defendant, Buick Motor Division of the General Motors Corporation. At the close of the plaintiff's evidence the trial court directed a verdict for the defendant and judgment was entered accordingly. The plaintiff filed a post-trial motion for judgment notwithstanding the verdict, or in the alternative in arrest of judgment, or in the alternative, for a new trial, which motion was denied. This appeal by the plaintiff followed.
The plaintiff cites three alleged errors relied upon as grounds for reversal. However, only one that the trial court erred in granting the motion for directed verdict is sought to be supported by points and authorities and is argued in the brief. As to the other two, relating to the court's not allowing a motion for amendment of the complaint, and to the court's not allowing the post-trial motion, where the brief contains no citation of authorities and no argument in support of the alleged error, that alleged error may be considered waived: Rule 7, Appellate Court Rules, Ch. 110, Ill. Rev. Stats. 1957, Par. 201.7. The only matters referred to in the post-trial motion, in any event, are the allowance of the motion for directed verdict and the not allowing of the motion for amendment of the complaint.
The plaintiff's complaint sets forth, in substance, an alleged cause of action for a breach of a written warranty on the part of the defendant a failure to comply with the terms thereof, and the alleged resulting damages to the plaintiff. It appears that in May, 1956 the plaintiff purchased a new Buick automobile from an authorized Buick dealer. At the time of the purchase there was delivered with it, as part of the purchase contract, a booklet containing an express written warranty, the pertinent provisions of which are:
"It is expressly agreed that there are no warranties, expressed or implied, made by either the Dealer or the Manufacturer on the Buick motor vehicle, chassis or parts furnished hereunder, except the Manufacturer's warranty against defective materials or workmanship as follows:
`The Manufacturer warrants each new motor vehicle, including all equipment or accessories (except tires) supplied by the Manufacturer, chassis or part manufactured by it to be free from defects in material and workmanship under normal use and service, its obligation under this warranty being limited to making good at its factory any part or parts thereof which shall, within ninety (90) days after delivery of such vehicle to the original purchaser or before such vehicle has been driven 4,000 miles, whichever event shall first occur, be returned to it with transportation charges prepaid and which its examination shall disclose to its satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties, express or implied, and it neither assumes nor authorizes any other person to assume for it any other liability in connection with the sale of its vehicles.
`This warranty shall not apply to any vehicle which shall have been repaired or altered outside of an Authorized Buick Service Station in any way so as in the judgment of the Manufacturer to affect its stability and reliability, nor which has been subject to misuse, negligence or accident.'"
The plaintiff took delivery of the automobile and both he and his wife drove it. Later, after it had been driven a little over 500 miles, the automobile was given the usual 500 mile service inspection check by the Buick dealer from whom it was bought, and a minor adjustment was made to the accelerator pedal linkage. That was the only adjustment made. There is no argument by the defendant that the automobile was serviced elsewhere than at an authorized Buick garage.
In June, 1956, after the automobile had been driven slightly over 1300 miles, the wife of the plaintiff was driving it on a public highway. She noticed smoke coming from beneath the dashboard, pulled to the side of the road and stopped, and tried to turn off the ignition, but the key would not turn. She then left for assistance.
The plaintiff was notified, and when he arrived he found the dashboard melted and the windows smoked up, although the fire, if any, had been extinguished by someone before he arrived. The plaintiff called his insurance representative who came to the scene. The latter then called the Buick dealer's garage. The automobile was towed to the Buick dealer's garage, where it was stored for nine days, during which time "nothing was done," according to the plaintiff, and thereafter it was sold as salvage by or on behalf of the plaintiff or his insurance company.
While the car was at the Buick dealer's garage, the plaintiff saw it the day after the incident, and his insurance agent saw the car two or three days later. The Buick dealer testified he saw the automobile at the time of the 500 mile inspection, and after the fire when the car was towed to his garage. While the car was there he said the district manager of Buick Motor Division saw it in the garage.
Taking the evidence as a whole, in its most favorable light for the plaintiff, it appears undisputed that there was a written express warranty against defective parts; that no one other than the authorized Buick dealer had serviced the car; that on the occasion concerned smoke came from beneath the dashboard, the ignition would not turn off, the dashboard melted, the windows smoked up, and the car was damaged by fire during the warranty period; that the car had been used in a normal way; that the damaged automobile was towed to the Buick dealer's garage; and that a representative of the defendant saw the automobile in its damaged condition at the garage.
The plaintiff contends that the damage to the automobile being had under the circumstances above described it was incumbent upon the defendant to make an inspection and examination to determine whether or not there was a defect in the material and workmanship and that this was not done.
The defendant urges, on the other hand, that in a suit for damages for breach of a written express warranty, the burden of proof was on the plaintiff to show by a preponderance of the evidence the terms of the warranty, the failure of some warranted part, a demand upon the defendant to perform under the terms of the warranty, a failure of the defendant to do so, a compliance ...