{ "id": 8548864, "name": "WALTON PETER BURKHIMER v. W. B. LINDSAY FURNITURE COMPANY, a corporation, and W. E. SHAW, Individually", "name_abbreviation": "Burkhimer v. W. B. Lindsay Furniture Co.", "decision_date": "1971-08-18", "docket_number": "No. 7125DC422", "first_page": "254", "last_page": "257", "citations": [ { "type": "official", "cite": "12 N.C. App. 254" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "116 S.E. 2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624197 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0243-01" ] } ], "analysis": { "cardinality": 484, "char_count": 8211, "ocr_confidence": 0.541, "pagerank": { "raw": 2.478301876283894e-07, "percentile": 0.8072547858967839 }, "sha256": "41ce28a1ff6ed777b6a5c7fae0b48150ed7385514b777c258e522f4eef286d04", "simhash": "1:5fa5788ba2a1bcc6", "word_count": 1379 }, "last_updated": "2023-07-14T18:50:27.087613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Parker concur." ], "parties": [ "WALTON PETER BURKHIMER v. W. B. LINDSAY FURNITURE COMPANY, a corporation, and W. E. SHAW, Individually" ], "opinions": [ { "text": "MORRIS, Judge.\nPlaintiff testified that he purchased the refrigerator from defendant through Mr. Shaw who \u201csaid it would do the job, that it was a no-defrosting model and had an automatic ice maker.\u201d The refrigerator did not function properly from the day it was installed. The refrigerator was intailed on Saturday and the installer had trouble with the ice maker and came back on Monday. Several months later \u201cit iced up completely and frost got in the back and iced up completely and we found milk spoiling and other food spoiling.\u201d 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\u2019s 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 \u201cWe 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\u2019s hard to figure a record on that we\u2019d 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.\u201d\nOn recross-examination, plaintiff testified as follows:\n\u201cI 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.\nRedirect Examination By Mr. Wall:\nSince 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.\nRecross Examination By Mr. Todd:\nMy 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.\u201d\nAt the end of plaintiff\u2019s 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 \u201cexpress warranty\u201d with the refrigerator, (2) If so was it breached, (3) Whether there was an implied warranty, (4) If so was there a breach, (5) Amount of recovery, if any. The jury answered the first issue \u201cyes\u201d and the second issue \u201cno.\u201d\nPlaintiff 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, \u201cwhere 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\u201d of the trial tribunal. 1 Strong, N. C. Index 2d, Appeal and Error, \u00a7 47, and cases there cited.\nIn our opinion this case is controlled by Insurance Co. v. 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, \u00a7 89: \u201c . . . 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.\u201d The trial court should have granted defendants\u2019 motion at the close of plaintiff\u2019s 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.\nBecause of this disposition of the appeal, we do not discuss plaintiff\u2019s exception to the trial court\u2019s refusal to strike defendants\u2019 motion to dismiss and for default judgment. Nor do we discuss defendants\u2019 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.\nAffirmed.\nJudges Britt and Parker concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "L. H. Wall for plaintiff appellant.", "Townsend and Todd, by J. R. Todd, Jr., for defendant appellees." ], "corrections": "", "head_matter": "WALTON PETER BURKHIMER v. W. B. LINDSAY FURNITURE COMPANY, a corporation, and W. E. SHAW, Individually\nNo. 7125DC422\n(Filed 18 August 1971)\n1. Sales \u00a7\u00a7 14, 17\u2014 breach of warranty \u2014 malfunctioning refrigerator \u2014 plaintiff\u2019s knowledge of malfunction \u2014 plaintiff\u2019s continued use of refrigerator\nIn plaintiff\u2019s action against a retailer to recover for breach of warranty of a new refrigerator and for the spoilage of food caused by the malfunctioning of the refrigerator, the trial court improperly submitted the case to the jury where the plaintiff admitted on cross-examination that, notwithstanding his knowledge that the refrigerator was malfunctioning and that food and milk were continually spoiling, he persisted in using the refrigerator.\n2. Appeal and Error \u00a7 47\u2014 technical error \u2014 judgment in conformity with rights of the parties\nWhere 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.\nAppeal by plaintiff from Sigmon, District Judge, 8 February 1971 Session, District Court, Caldwell County.\nPlaintiff instituted this action on 30 April 1970. He alleges that on 22 July 1967, the corporate defendant, acting through its agent, W. E. Shaw, sold to plaintiff a refrigerator which was delivered and installed in plaintiff\u2019s home. At the time of the sale, the defendant and its employees represented to the plaintiff that \u201csaid refrigerator was in new condition, would preserve food placed in it, would not require defrosting and would properly make ice cubes.\u201d The complaint further alleges that \u201cbetween the date of purchase, July 22, 1967, and July 3, 1969, the refrigerator did not operate properly thereby causing considerable amounts of food to be spoiled and rendered unfit for human consumption, which condition still persists.\u201d Plaintiff alleged that he complained to defendant many times during that period that the refrigerator was not operating properly and causing considerable waste of food, that defendant several times had its employees work on it until spring of 1969 when defendant refused to do anything further, that the refrigerator \u201chas been virtually worthless to the plaintiff\u201d and \u201cremains worthless to the plaintiff and costs the plaintiff considerable sums of money in food lost and time wasted trying to get it to operate properly.\u201d Plaintiff sought to recover the sum of $469.49, the cost of the refrigerator, and $1000 for food spoiled.\nDefendants\u2019 answer denied the material allegations of the complaint and averred that the refrigerator carried a manufacturer\u2019s warranty which specified the terms and conditions of parts and repairs. The warranty was alleged to be attached to the answer. It is not a part of the record. The matter was submitted to the jury who answered the issues in favor of defendants. Plaintiff appealed.\nL. H. Wall for plaintiff appellant.\nTownsend and Todd, by J. R. Todd, Jr., for defendant appellees." }, "file_name": "0254-01", "first_page_order": 280, "last_page_order": 283 }