ALDISERT, Circuit Judge:
A jury awarded the purchaser of a 1969 Lincoln Mark III automobile $30,000 in damages against Ford Motor Company for breach of warranty and negligent repair of certain defects. Appellant Ford insists that the district court erred in withdrawing from the jury the question whether the dealer acted as its agent, and argues that the damages were excessive as a matter of law. Having concluded that both contentions are correct, we must reverse and remand the cause for a new trial.
Appellee purchased his new automobile from a Florida dealer at a cost of $8,476.00, and Ford issued a self-styled "New Vehicle Warranty."
Dissatisfied with the car's condition, appellee wrote to Ford setting forth in detail his complaints, and requesting Ford "to direct me to a dealer employing
Because the negligence count is predicated on the alleged negligence of Robinson Brothers, recovery against Ford depends on a showing that the dealer was, in fact, an agent of the manufacturer. The evidence on this issue was conflicting. The contract between Ford and Robinson Brothers provided:
Furthermore, Ford owned no stock in the dealership, paid no portion of its employees' salaries, paid no rental for the building it occupied, and had no employees stationed there for supervision or control. It is undisputed, however, that Robinson Brothers sent its mechanics to Ford's training school, received "factory campaign notices" relating to particular problems with certain models, and sold Lincoln-Mercury automobiles manufactured by Ford.
During the re-direct examination of William H. Robinson, the court interrupted testimony regarding the agency issue:
In this diversity action, we are referred to Alabama law for the relevant substantive law principles which will govern this case. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). It has long been the law of Alabama that "the question of agency is a matter of fact, which it is the province of the jury to determine upon, under the instructions of the court." Bank of Montgomery v. Plannett's Adm'r, 37 Ala. 222 (1861). See Sloss-Sheffield Steel & Iron Co. v. Watson, 239 Ala. 416, 194 So. 887 (1940); Wunderlich v. Southern Constr. Co., 27 Ala.App. 458, 174 So. 317 (1937). Cf. American Can Co. v. Horlamus Corp., 341 F.2d 730 (5 Cir. 1955).
We turn now to the argument that the award of damages was excessive as a matter of law. Ford offers two theories in
Title 7A Code of Alabama § 2-316(2) permits a seller to "exclude or modify" the common law warranties of merchantability and fitness,
See Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So.2d 638 (1969); General Motors Corp. v. Earnest, 279 Ala. 299, 184 So.2d 811 (1966).
The question whether the remedy provided in Ford's warranty did "fail of its essential purpose" was presented to jury in somewhat different terms. The district court charged that it was for the jury to decide whether "the defendant, Ford Motor Company, has breached its warranty and [whether] they were given a reasonable opportunity to repair it, and they didn't."
At the same time, however, we cannot validate the jury's award of $30,000. The district court correctly instructed as to the measure of damages:
This was consistent with the directive of 7A Code of Alabama § 2-714:
Under this standard, the jury's award here was clearly excessive.
The purchase price of the automobile was $8,476. In response to questions propounded by the trial court, plaintiff declared that the car "hasn't been worth anything to me." Even accepting this testimony as sufficient to establish that the automobile was worthless at the time of delivery, "the difference in the value of the automobile as it was represented and warranted to be and the value it was at the time of delivery" could not have exceeded the price of $8,476. Adding to this the reasonably incurred cost of a substitute means of transportation, which, at the most, amounted to $430.43, plaintiff's total recovery would have been limited to $8,906.43.
We agree that that $30,000 jury verdict was not supported by the evidence. The court erred in entering judgment upon it. S. D. Winn Cigar Co. v. Wilson, 36 Ala.App. 466, 48 So.2d 64, citing Stetson v. Stindt, 279 F. 209, 211 (3 Cir. 1922): "[A] verdict * * * which is perverse and directly violative of the charge of the court and is wholly without evidence to support it, cannot stand. * * *"
Reversed and remanded for a new trial.
12 months from the date of the original retail delivery or 12,000 miles of operation, whichever occurs first, with respect to all parts (except tires and tubes); 5 years from the date of original retail delivery or 50,000 miles of operation, whichever occurs first, with respect to the engine block and head, internal engine parts, water pump, intake manifold, transmission case, internal joints, rear axle, and differential.
The warranty further recited:
Ford assumes no responsibility for the loss of use of the vehicle, loss of time, inconvenience or other consequential expense. This warranty is expressly IN LIEU OF any other express or implied warranty, condition, or guarantee on the vehicle or any part thereof, including any implied WARRANTY OF MERCHANTABILITY OR FITNESS, and of any other obligation on the part of Ford or the Selling Dealer.
General Motors Corp. v. Earnest, supra, 279 Ala. at 302, 184 So.2d at 814.