No. 86-601 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

PATRICK EMICK, 

Plaintiff and Appellant, 

-vsKEN KOCH and GARY KOCH, d/b/a 

CENTRAL AUTO, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dunaway, O'Connor & Moe; Stewart R. Kirkpatrick argued, 

and William J. O'Connor, I1 argued, Billings, Montana 

For Respondent: 

George T. Radovich argued, Billings, Montana 

Submitted: June 10, 1987 

Decided: July 91 1987 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Mr. Emick sued the defendants for misrepresentation and 

unfair practices in violation of state and federal statutes, 

in the sale of a used Chevy Blazer. After trial to the 

court, judgment was entered for defendants. The District 

Court concluded that Mr. Emick had failed to carry the burden 

of proof to show defendants' liability. Mr. Emick appeals. 

We affirm. 

The issues are: 

1. Did the District Court err in concluding that Mr. 

Emick's proof failed to show that Mr. Lightfield misrepresented the Blazer? 

2. Did the District Court err in finding no violation 

of $ 30-14-103, MCA, et seq., when defendants failed to 

inspect the Blazer? 

3. Did the District Court err in finding that defendants did not have the duty to inspect the Blazer prior to 

its sale? 

Central Auto is a partnership of Kenneth Koch and Gary 

Koch. It sells used vehicles in Billings, Montana. Lee 

Lightfield used a portion of the space belonging to Central 

Auto to market his own vehicles. They had a working arrangement whereby Central Auto could sell vehicles belonging to 

Lee Lightfield on a consignment basis, and Central Auto would 

receive a commission for the sale. 

Mr. Emick purchased a 1976 Chevrolet Rally Blazer off 

the Central Auto lot in October 1983. Lee Lightfield sold 

the Blazer to Mr. Emick. He told Mr. Emick that the Blazer 

was in good condition. Mr. Emick did not know that the 

Blazer was owned by Lee Lightfield. Mr. Emick test drove the 

Blazer before paying $5,250 to Central Auto for its purchase. 

Lee Lightfield signed the Central Auto sales receipt as the 
"salesman." Central Auto transferred the money, less a lot 

fee and a percentage of the profit, to Lee Lightfield. The 

bill of sale indicated conspicuously on its face that the 

Blazer was being sold "as is." 

Mr. Emick testified that after he had the Blazer for 

several days, he became aware of the following defects: 

(a) The gear ratio was too low; 

(b) There was vibration in the steering wheel at 

speeds over 55 m.p.h.; 

(c) The rear window did not operate properly; 

(d) The roof had a pin hole leak; 

(e) The odometer was crooked; 

(f) The gas gauge didn't work; and 

(g) The radio antenna was loose. 

Mr. Emick testified that he took the Blazer to a mechanic, 

but that mechanic did not testify at the time of trial. Mr. 

Emick testified that with the help of the mechanic, he observed that the A frame was cracked at the shock absorber 

mounting, the transmission leaked, the rings and rods were 

bad, and the brakes were not functioning properly. Mr. Emick 

testified that he contacted Central Auto and demanded his 

money back but that Central Auto refused to accept the return 

of the Blazer. Mr. Emick also testified that he had not 

repaired the Blazer by the time of trial. He did not state 

whether or not he continued to use the Blazer. 

Mr. Emick brought suit against Central Auto, which 

brought in Lee Lightfield as a third-party defendant. Mr. 

Lightfield was dismissed without prejudice, by stipulation. 

At trial, Mr. Emick testified on his own behalf. Central 

Auto presented testimony by Ken Koch and by Janice Koc~, the 

Central Auto employee who prepared the bill of sale. 

The District Court found that Mr. Emick had ample opportunity to inspect the Blazer before he bought it and concluded that the defects testified to by Mr. Emick were 
discoverable by reasonable inspection. The central finding 

and conclusion of the District Court was that none of the 

alleged defects "rendered the automobile inoperable or presented a safety hazard." In addition the District Court 

concluded that Mr. Emick had failed to carry his burden of 

proof to show a breach of warranty and that he had failed to 

show that the vehicle did not conform to the representations 

made by Mr. Lightfield. Finally, the District Court concluded there had been no violation of the state or federal Consumer Protection Act and that Mr. Emick had failed to carry 

his burden to prove liability on the part of the defendants. 

I 

Did the District Court err in concluding that Mr. 

Emickls proof failed to show that Mr. Lightfield misrepresented the Blazer? 

Mr. Emick testified that when he asked Mr. Lightfield if 

there was anything wrong with the Blazer, the answer was, 

"No, it is a good truck." He also testified that Mr. 

Lightfield told him he had driven the Blazer home and it was 

in wonderful shape. He argues that these representations 

were false, because of the defects he later discovered in the 

Blazer. The District Court concluded " [tlhat the evidence 

reveals that the defects discovered by the Plaintiff were 

discoverable by reasonable inspection and none of them rendered the automobile inoperable or presented a safety 

hazard. " 

Mr. Emick presented only his own testimony about the 

defects in the Blazer. Although he stated that, in his 

opinion, the vibration in the steering wheel could be dangerous, he did not claim to be a mechanic or an expert witness 

in any sense. On cross-examination, he admitted that the 

gear ratio that he complained was too low is set at the 

factory. 
It is within the power of the trier of fact to believe 

or disbelieve the testimony of a witness. Section 26-1-302, 

MCA. The testimony of Mr. Emick established that he had 

limited knowledge of automobiles and he certainly did not 

qualify in any sense as an expert. While Mr. Emick did 

testify with regard to certain claimed defects, his testimony 

had to be classified as weak. By his own admission Mr. Emick 

was allowed to test drive and examine the Blazer before he 

bought it. After hearing all of the evidence, the District 

Court concluded that Mr. Emick had failed to prove the automobile did not conform to the representations made by Mr. 

Lightfield. We hold the record supports the conclusion of 

the District Court that the proof failed to show a misrepresentation on the part of Mr. Lightfield. 

I1 

Did the District Court err in finding no violation of 

$$ 30-14-103, MCA, et seq., when defendants failed to inspect 

the Blazer? 

The statutes cited are also known as the Consumer Protection Act (Act). Section 30-14-103, MCA, sets forth the 

general scope of the Act: 

Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade 

or commerce are unlawful. 

We have carefully reviewed the slim transcript in this matter. Mr. Emick has submitted no proof, other than his own 

statements, that any of the defects in the Blazer were 

present. He submitted nothing to demonstrate any dangerous 

or latent defects other than his own statement that the 

vibration in the steering could be dangerous. We conclude 

that the District Court could reasonably determine that the 

defects in the Blazer as alleged by Mr. Emick are not 
unexpected in a used vehicle. We conclude that the record 

supports the holding that Mr. Emick failed to prove an unfair 

or deceptive act or practice which would justify application 

of the Act. We hold that the District Court was correct in 

concluding there was no showing that the defendants violated 

the Act. 

Did the District Court err in finding that defendants 

did not have the duty to inspect the Blazer prior to its 

sale? 

The District Court found that ". . . the Defendants, Ken 

Koch, Gary Koch and Central Auto, were totally without knowledge concerning the condition of the vehicle and, since this 

was a consignment sale, were without obligation to inspect 

the vehicle or examine it for defects." Mr. Emick argues 

that the duty to inspect the Blazer should be placed upon the 

defendants because he was misled to believe that he was 

buying it from them. He says defendents are responsible 

under a theory of ostensible agency. 

It may be true that a duty could be ascribed to 

defendents. However, no defects have been proven here, as 

discussed above. Mr. Emick has failed to prove his case. 

Where there has been a failure to establish a case against a 

supposed agent, it would be impossible to impute the same 

liability to the principal. Knowlton v. Sandaker (1968), 150 

Mont. 438, 451, 436 P.2d 98, 105. Even if there is error in 

the District Court's finding that defendants did not have the 

duty to inspect the Blazer prior to its sale, the error is 

harmless because it could not have altered the judgment. 

Affirmed. 
We Concur: A