481 S.W.2d 584 (Mo.App. 1972), 25575, Bowers v. S-H-S Motor Sales Corp.
|Citation:||481 S.W.2d 584|
|Party Name:||Morris BOWERS and Pearl Bowers, Respondents, v. S-H-S MOTOR SALES CORPORATION, a corporation d/b/a Midwest Motors, Appellant.|
|Case Date:||April 03, 1972|
|Court:||Court of Appeals of Missouri|
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.
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...
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