No. 86-601
IN THE SUPREME COURT OF THE STATEOF MONTANA 1987

PATRICK EMICK,Plaintiffand 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, TheHonorableWilliam J. Speare, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Dunaway, O'Connor & Moe; StewartR. 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 911987

ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court.

Mr. Emick sued the defendants formisrepresentationand 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 thatMr. Emick had failed to carry theburden 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 theBlazer? 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 tomarkethis ownvehicles. Theyhad a working arrangement whereby Central Auto could sell vehicles belonging to Lee Lightfield on a consignmentbasis,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 Blazerwas ownedby Lee Lightfield. Mr. Emick test drove the Blazer beforepaying $5,250toCentralAuto for itspurchase. 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 Blazerwas being sold "asis." Mr. Emick testified that after he had the Blazer for severaldays,he became aware of the following defects:
(a) The gear ratiowas too low; (b) There was vibration in the steering wheel at speedsover 55m.p.h.; (c) The rear window did not operate properly; (d) The roofhad apin hole leak; (e) Theodometerwas crooked; (f) The gasgaugedidn't work; and (g) The radio antenna was loose.
Mr. Emick testified that he took the Blazer to a mechanic, but thatmechanic 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 thebrakeswere not functioningproperly. Mr. Emick testified that he contacted Central Auto and demanded his money back but thatCentralAuto 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 ornot 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 testimonyby Ken Koch and by Janice Koc~, the CentralAuto employeewho prepared thebill of sale. TheDistrict Court found thatMr. Emick had ample opportunity to inspecttheBlazerbefore he bought it and concluded that the defects testified to by Mr. Emick werediscoverable 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 ofwarranty 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 toprove liability on the part of the defendants. I Did the District Court err in concluding that Mr. Emicklsproof failed to show that Mr. Lightfield misrepresented theBlazer? Mr. Emick testified that when he askedMr. 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 itwas 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 steeringwheel could be dangerous, he did not claim to be amechanic 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 testifywith regard to certainclaimed defects, his testimony had tobe classified asweak. By his own admissionMr. Emick
was allowed to test drive and examine the Blazer before he bought it. After hearing all of the evidence, the District Court concluded thatMr. 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 misrepresentationon the part ofMr. 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 scopeof theAct:
Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerceareunlawful.
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 notunexpected in a used vehicle. We conclude that the record supports theholding thatMr. 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 theAct.

Did the District Court err in finding that defendants did not have the duty to inspect the Blazer prior to its sale? TheDistrict Court found that

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.. the Defendants,Ken Koch,Gary Koch and CentralAuto,were totallywithout 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 shouldbe 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. Knowltonv. Sandaker (1968), 150 Mont. 438, 451, 436 P.2d 98, 105. Even if there is error in the District Court's finding thatdefendantsdid nothave 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