Continental Volkswagen, Inc. v. Soutullo
| Decision Date | 26 February 1975 |
| Citation | 309 So.2d 119,54 Ala.App. 410 |
| Parties | CONTINENTAL VOLKSWAGEN, INC., a corporation v. Charles Ray SOUTULLO. Civ. 428. |
| Court | Alabama Court of Civil Appeals |
Mylan P. Engel, Mobile, for appellant.
No brief for appellee.
Appellant-defendant appeals from a jury verdict and judgment thereon against him for $8,000.
The complaint, as received by the jury, contained four counts. The first count alleges fraud on the part of appellant. The other three are based on alleged breach of warranties.
We find it necessary to set out in some detail the evidence, as revealed by the record.
Appellee and his wife, while on a Sunday drive, passed appellant's car lot and noticed a vehicle they liked. They visually inspected the vehicle, a used 1971 Volkswagen van with 23,935 miles, and found on the windshield the business card of used car salesman Dean Hagler.
They called Mr. Hagler the next day about purchasing the vehicle. Apparently, virtually all negotiations were carried out over the phone. The sale was actually consummated on March 26, 1973, for a cash price of $2,558.78, which included down payment and trade-in.
There is some dispute as to whether or not appellee drive the vehicle before actually closing the deal. Mr. Hagler claimed that he did, while appellee could not remember. In any event, appellee did drive it that day and then informed Mr. Hagler the car was 'missing' somewhat.
Mr. Hagler testified that he informed appellee that the car had a thirty-day, 1,000 mile, 100% Warranty and that appellee should drive it for a week and make a list of all things wrong and appellant would correct them.
Appellee, on the other hand, testified that when he informed Hagler the car was 'Missing,' Hagler said it only needed to be driven some, but that if it did not straighten out to bring it back. Appellee testified, however, that he did not ask that the car be fixed that day.
The car was returned in a week and put in the repair shop for one day. Even after this, appellee testified the car was not only 'missing' but also using oil heavily and he returned it a second time, approximately two weeks later. It was kept in the repair shop two days this time and after getting it back appellee testified that it 'was some better in the running condition.'
Sometime after this second repair job, on May 11, 1973, appellee took the car to another car dealer and had a diagnosis run. The person performing this service testified at the trial that in his opinion the vehicle was in 'poor condition' and that it would cost a lot of money to have the vehicle repaired.
Even though appellee learned of the condition of the vehicle from the test, there is no direct evidence that appellee contacted appellant and informed it of this 'poor condition.' Witnesses for appellant testified they did not hear from appellee after their second repair attempt until the vehicle finally broke down, several months later. Appellee himself testified he did not remember contacting appellant after having the diagnosis made, and he admitted he did not know how he would expect appellant to make adjustments if he did not contact it.
A few months after May 11, the car finally 'died.' Appellee testified he was driving home from work when noticed something was wrong. He testified he saw a red light--apparently a warning device--light up, but that he continued to drive the car for some distance, approximately 5 miles. He then smelled something burning and stopped. His investigation revealed the fan belt had broken. His own personal attempts to repair it were unsuccessful and appellee had the vehicle hauled to a friend's service station.
The car remained at the service station for some weeks until, finally, it was towed to appellant's place of business by appellant, free of charge to appellee.
There is some dispute between appellee and appellant's witnesses as to why appellant towed the vehicle free of charge, and also a contradiction in the testimony as to whether appellee ordered the vehicle to be fixed. Suffice it to say for purposes of this opinion, that the vehicle remained on appellant's lot, unrepaired, until repossessed by the bank in October. At the repossession sale, appellant repurchased the vehicle for $1,200. They then overhauled the motor completely because, according to the testimony of the manager of the used car division of appellant, the engine had been burned up as a result of being driven without a fan belt.
Appellant originally assigned twenty assignments of error, afterwards adding two more, pursuant to Supreme Court Rule 2(2), by permission of this court.
Appellant argues seven of these assignments in brief. We find the dispositive assignment of error to be that the learned trial, court erred in refusing to grant appellant's motion for a new trial in that the verdict is contrary to the great weight of the evidence and that the jury verdict is excessive.
At the outset, we note that the jury verdict was for $8,000 and that the total cost of the vehicle was only $2,558.78. It is clear that substantial punitive damages were awarded by the jury. The only cause of action submitted to the jury which would support punitive damage award was the fraud allegation. See Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24.
Appellant contends that the jury verdict is excessive in that even if the fraud allegation is proven there is no fraud so 'malicious, oppressive, or gross' as to form a basis for the award of punitive damages. Appellee makes no response to this as he has not favored this court with a brief.
In his allegation of fraud, appellee alleges that he was fraudulently induced to buy the vehicle because of false and fraudulent representation by appellant's salesman that the motor 'was in good working order.'
The definition of legal fraud, as apparently appropriate in this instance, is found in Tit. 7, § 108, Code of Ala. (1940), which reads as follows:
The evidence in the record which tends to show any fraudulent misrepresentation comes from the testimony of appellee and of his wife.
Appellee's testimony is that Mr. Hagler told him that the vehicle was in 'good condition' and that all it needed was to be driven some. Appellee's wife testified that Mr. Hagler made the remark that 'it was in perfect condition,' and all it needed was to be driven as it had been sitting up for several months.
Even assuming that this is enough to establish legal fraud under Tit. 7, § 108, Code of Ala. (1940), in light of decisions by the supreme court of this state on the issue of fraud and punitive damage awards, it is not, under the facts of this case, enought to justify an award...
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