Bowers v. S-H-S Motor Sales Corp., S-H-S

• Citation: 481 S.W.2d 584
• Decision Date: 03 April 1972
• Docket Number: S-H-S,No. 25575,25575
• Parties: Morris BOWERS and Pearl Bowers, Respondents, v.MOTOR SALES CORPORATION, a corporation d/b/a Midwest Motors, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 584

481 S.W.2d 584

Morris BOWERS and Pearl Bowers, Respondents, v. S-H-S MOTOR SALES CORPORATION, a corporation d/b/a Midwest Motors, Appellant.

No. 25575.

Missouri Court of Appeals, Kansas City District.

April 3, 1972.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 11, 1972.

Application to Transfer Denied July 17, 1972.

Billy S. Sparks, Harold T. Van Dyke, Kansas City (Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, of counsel), for appellant.

Clifford N. Jarrett & Bruce G. Heavner, Kansas City (Heavner, Jarrett & Kimball, Kansas City, of counsel), for respondents.

PER CURIAM:

Plaintiffs recovered a judgment against defendant for $225.00 actual and $10,000.00 punitive (After trial court remittitur of $700.00) damages on account of false representations of defendant in the sale of an automobile. The issues presented are (1) that the court erred in not directing a verdict for defendant because 'Plaintiffs' evidence shows conclusively that the plaintiffs did not sustain any damages;' (2) Instruction No. 3 was erroneously given because of lack of evidence to direct a verdict therein; that it did not require a finding of agency as required by MAI 18.01, or that plaintiffs had the right to rely on the alleged representation by failing to include the words of MAI 23.05 'in so relying plaintiff was using ordinary care'; and (3) the amount of the verdict, particularly punitive damages, was based upon bias and prejudice and was the result of the failure of the court to admit relevant material and competent evidence of defendant, and a remittitur is requested because of contended excessive damages.

In October, 1965, Morris Bowers decided to buy a car. He saw Midwest Motors advertisement on television, and his son, Dean, learned that Midwest had the car he wanted. Morris and Dean went to Midwest on the same day, arriving about 5:00 or 6:00 in the evening. A salesman, Harper, met them and Morris told him he was looking for a four-door Dodge, automatic, radio, heater, and with power steering. Harper showed him a lot of 1966 new cars but they were not equipped like the car Morris wanted. Harper then said they had about seventy-five 1965 models that had not been sold, and if Morris was interested in one they could sell him one cheaper, and 'Well, he said they were all new cars.' Morris then went with Harper across the street and to the west and there showed him the 1965 models, and found one which was equipped as Morris wanted. It appeared to be a new car, and Morris did not examine the tires 'because on a new car that is not necessary.' 'Q. Then at that time were you told it was a new car? A. Oh, yes. We didn't talk about anything only a new car. Used cars was never mentioned.' Morris' son drove the car away after he bought it, and his son happened to look at the speedometer and noticed it had 500 miles on it. The son called Harper's attention to it and Harper said, '(W)ell, they just drove it around from one lot to another and to show, such as that, and said it had never been used as a demonstrator.' Morris believed Harper when he told him this. On October 29, 1965, Morris gave Midwest his check for $2,400.00. He received a receipt and was told that he would get the rest of the papers (title and license) in the mail.

Morris then, on Friday, drove the car to his home in Hamilton, Missouri. On Sunday he looked the car over and found lube stickers on it and noticed that the spare tire had gravel in its tread, and that it had a puncture plug in it which was sticking out about two inches--it had not been cut off. He then noticed that the tires had dips in them, 'They were at least half wore out.' One of the two lube stickers said 4,500 miles and a date which Morris could not remember. Morris stopped payment on his $2,400.00 check on Monday.

On the following Tuesday Morris returned to Kansas City, drove to Midwest Motors, got out of the Dodge car and left his wife sitting there in it. He went inside and saw Harper and told him the car had a lot of miles on it and that he was going to expect them to do something about it, 'and he said it just couldn't have (happened) at all and so he took me into Mr. Brown and Mr. Brown couldn't believe it at all and I took him out and showed him the tires.' Mr. Brown told Morris, 'He said it just couldn't have any miles on it, but he looked at them tires and he said anybody can see them tires have been drove a lot of miles, but he couldn't figure out how it happened and he finally said that they had a whole lot--they had eighty-five men working there and he said somebody has switched them tires and he said they have quite a lot of trouble about that, and things like that. And he said that is what happened, somebody has switched them tires.'

Brown said he would put on a new set of tires, which was done, and he told Morris he did not know how the stickers got on the car unless they got their service sticker on the wrong car. Brown showed him the motor of the car and it was nice and clean as one could be, and Brown asked Morris and his wife if they thought a motor that could look like that could be a used one, 'one that had been drove a lot.' 'Q. And did he at that time tell you that it hadn't been driven? A. Oh, yes, he said it couldn't have been drove', and Morris finally believed him.

Some new papers, another bill of sale, were drawn up and Brown gave them back $50.00 for their trouble, 'He did say he wanted to make it right and make us feel good.' and Morris gave him another check for $2,350.00 which cleared his bank. 'Q. (By Mr. Jarrett) Mr. Bowers, I notice that on this exhibit the words 'Demo sold with mileage' and with an 'X' out there, and where you signed it. * * * A. Well, it's on there and all that, but I think it slipped by me when I signed it. I didn't look at it too close. Q. There wasn't anything said about it? A. No.'

A letter postmarked November 2 was received by Morris from Midwest Motors which enclosed a factory certicard, and which stated, 'Your recent purchase of a new Dodge from Midwest Motors was greatly appreciated and I wish to thank you personally. I trust that by now you're enjoying the many features of your automobile and the benefits of owning a new Dodge. * * * May I take this opportunity of welcoming you both as a new Dodge owner and also as a respected and valid Midwest Dodge customer. (signed) Harry Schwartz, President, Midwest Motors, Inc.' Another like letter was received by Morris on November 23.

Morris got to wondering whether he had purchased a new car when he got his 'deed'. He took the papers Midwest sent him and tried to get a license plate in Hamilton but 'They wouldn't sell them to me because the deed hadn't been signed right.' He came back to Kansas City and saw Mr. Brown, who had the secretary sign it. Morris 'got to looking at that deed and it said on there a title number and the previous title number and I began to wonder then about that previous title number.' He asked Mr. Brown about it and he told him that it didn't mean a thing. 'He said they sold a lot of cars there and every once in a while they lost a deed and they would have to send in and get another one.' Morris did not believe him, so his son sent the numbers in to Jefferson City to have them checked. This led to a confrontation with Mr. Brown and Morris then told him he had sold him a second-hand car instead of a new one, which Brown first denied but finally said the school district did have it but did not really own it. On cross-examination of Morris it was developed that the car had two lube stickers on it, 'Q. At the time you were down at Midwest the second time, at that time you had discovered I believe you told us two lube stickers on that car. A. That's right. Q. That indicated, as I recall you said it had over 9400 miles? A. The other was 9400 and the other was forty five.' As to the buyer's order, signed by Morris in two places, one place at the top said it had mileage on it--Morris knew it had 500, and it was not supposed to have more.

Clarence Rippeto, of the Motor Vehicle Registration Office in Jefferson City, established that the School District of Kansas City, East High School, applied for a certificate of title on a 1965 Dodge Coronet, Identification No. W--357 141761, on December 17, 1964. The title was issued December 30, 1964, and was assigned in July, 1965. Another certificate of title was issued to Midwest Motors August 4, 1965, and was assigned to Morris and Pearl Bowers in November, 1965. A new certificate of title was issued to the Bowers on December 30, 1965. Rippeto testified further that it is not necessary for a dealer to title a new car in its own name.

Benson Harper checked the tires on the 1965 Dodge for Morris. He found 6/32nds tread depth, 11/32nds being the usual tread depth on original equipment which are possibly good for 20,000 miles. He did compare the mileage on the door (lube) stickers with the tread measurements of the tires, and they seemed to be compatible.

Guy N. Burton was vice principal of the Kansas City School system. For driver education purposes he received a Dodge Coronet in the fall of 1964. In June, at the end of the school year, he turned the car in to Midwest Dodge. He figured the car had mileage on it in the neighborhood of 3,000 miles, he having used it about 5 1/2 months. It would not be unreasonable for a driver education car used for that length of time to have 9,400 to 10,000 miles on it.

The testimony of Dean R. Bowers was corroborative of that given by his father, Morris.

William H. Heavener, a car dealer and salesman for 24 years, valued a car such as Morris' at about $2,750.00 if not titled. If it were titled, the difference in evaluation would be $400.00 to $500.00, and it would affect its market value if it had been used as a driver ed car, as compared to a demonstrator, $400.00 to $500.00. R. Findley Mason, also a car dealer and salesman, gave the value of the...