The opinion of the court was delivered by: GOURLEY
This matter comes before the Court on motion of defendant for summary judgment.
This action is brought in trespass to recover damages to a motor coach manufactured by the defendant and sold to the plaintiff by reason of its having been destroyed by fire alleged to have been caused by the gasoline tank breaking on the street, thereby causing the gasoline to be ignited from sparks caused by friction.
The alleged negligence was the manner in which the tank was attached and the failure of the material used for that purpose to properly support the gas tank.
The Standard Warranty appearing on the reverse side of the purchase agreement is as follows:
'We warrant each new Reo Truck and Reo Bus manufactured by us, to be free from defects in material and workmanship under normal use and service, our obligation under this warranty being limited to making good at our factory any part or parts thereof, including all equipment or trade accessories (except tires) supplied by the Truck Manufacturer, which shall, within 90 days after making 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 us with transportation charges prepaid, and which our examination shall disclose to our satisfaction to have been thus defective; this Warranyty being expressly in lieu of all other Warranties expressed or implied and of all other obligations or liabilities on our part, and we neither assume or authorize any other person to assume for us any liability in connection with the sale of our vehicles.
'This Warranty shall not apply to any vehicle which shall have been repaired or altered outside of an authorized Reo Service Station in any way so as, in the judgment of the Manufacturer to affect its stability, or reliability, nor which has been subject to misuse, negligence, accident, or loaded beyond the factory rated capacity.
'In Witness Whereof we have caused this Warranty to be signed by our duly authorized officers.
It is stipulated and agreed that the motor coach had been driven more than four thousand miles and had been in the possession of the plaintiff for a period in excess of ninety days at the time of the alleged destruction.
The issue for determination of this Court is whether the warranty attached to and made a part of the purchase contract is a bar to recovery by the plaintiff under the cause of action alleged in the complaint.
The motion for summary judgment authorized by Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., has an important place in preventing undue delay in the trial of actions to which there is no real defense, but it should be granted only where it is specifically clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. The moving party is entitled to judgment only where no genuine issue remains for trial, for the purpose of the rule is not to cut litigants off from their right to trial by jury if they really have issues to try. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S. Ct. 724, 88 L. Ed. 967; Merchants Indemnity Corp. of New York v. Peterson, 3 Cir., 113 F.2d 318. All doubts as to the existence of a genuine issue must be resolved against the party moving for a summary judgment. Sarnoff v. Ciaglia, 3 Cir., 165 F.2d 167.