Abraham Used Car Co. v. Silva, 67--69

• Decision Date: 28 March 1968
• Docket Number: No. 67--69,67--69
• Citation: 208 So.2d 500
• Parties: ABRAHAM USED CAR CO., a Florida corporation, and Joseph Abraham Ford Company, a Florida corporation, Appellants, v. Julia SILVA, Appellee.
• Court: Florida District Court of Appeals

Page 500

208 So.2d 500

ABRAHAM USED CAR CO., a Florida corporation, and Joseph Abraham Ford Company, a Florida corporation, Appellants, v. Julia SILVA, Appellee.

No. 67--69.

District Court of Appeal of Florida, Third District.

March 28, 1968.

Rehearing Denied April 19, 1968.

Lurie & Capuano, Richard M. Gale, Miami, for appellants.

Harold Ungerleider, Miami Beach, Joe N. Unger, Miami, for appellee.

Before PEARSON, BARKDULL and SWANN, JJ.

PEARSON, Judge.

The appellants, as defendants in the trial court, suffered an adverse jury verdict for $5,000 compensatory damage and $35,000 punitive damage in an action brought by the appellee for 'slander and intentional causing of severe emotional distress.'

The factual basis for the jury verdict was as follows: Appellee went to a used car lot in Miami to purchase an automobile. On March 21 she deposited $25.00 toward the purchase of a Cadillac automobile for $3,000. The receipt received by the appellee was that of 'Joseph Abraham Ford Co.' On March 25 the appellee paid an additional $1,000 and received a receipt with the same name as the seller. The retail buyer's order for the car carried the name 'Abraham Used Car Co.' Appellee was rejected for credit by the bank that was to finance the balance and the salesman suggested that she ask a friend of hers, who had also examined the car, to sign the papers for her. Appellee's friend, Pedro Benitez, did not sign the purchase agreement but some unidentified person forged Mr. Benitez' signature on the finance papers. Acting upon the forged papers, Courtesy Motor Sales, Inc., the owner of the Cadillac, transferred title of the automobile to Pedro Benitez. When Mr. Benitez received the payment book from the bank, he informed the bank that he was not the buyer and that his signature was forged. An employee of the used car lot then called the appellee to insist that the automobile be returned.

The same employee visited appellee's residence and informed her that she was committing a crime by failing to return the automobile and that a police pick-up order had been issued for her and the automobile. The appellee did not return the automobile. Her sister and brother-in-law, a Mr. and Mrs. Willoz, went to the used car lot in an attempt to straighten the matter out. The used car salesman repeated to them the statements about the police pick-up order that he had made to the appellee. Mr. and Mrs. Willoz returned to the appellee's residence and told appellee of their conversation with the salesman.

Shortly after the visit from her relatives, appellee took an excessive dose of tranquillizers and lost consciousness. She awoke in a hospital. Because of the violence of her reaction, her arms had been tied down. As a result of the restriction of the use of her arms over a long period of time and the medicine that she had taken, she was confined to the hospital for several months and suffered a severe impairment in the use of one of her hands. She then instituted the instant action against the appellants and alleged:

'That the acts of the Defendants as hereinabove set forth were wanton, reckless, careless, false, malicious and were made with an utter disregard of the rights of the Plaintiff. That said imputations of defamatory words were directed against the Plaintiff and they were malicious and false and imputed the commission of the crime of larceny and of concealing mortgaged property and forgery, and that said imputations disgraced her, and degraded her reputation. That all of said charges were false, and that the same constituted a slander.'

On this appeal the appellant has presented four points. Point one urges that a verdict should have been directed for the defendant because the evidence was insufficient to establish that the automobile salesman was either the real or apparent agent of the appellants. We think that the trial judge correctly found that there was sufficient evidence to take this issue to the jury. See Watkins v. Sims, 81 Fla. 730, 88 So. 764 (1921); Shaffran v. Holness, Fla.App.1958, 102 So.2d 35.

Appellants' second point claims error upon the denial of their motion for a new trial because the statements attributed to their claimed agent could not have caused severe emotional distress to a person with plaintiff's sensibilities. It is argued that plaintiff as a professional dancer and divorcee was probably upset by other factors in her emotional life rather than the statements of the salesman. Such arguments fall peculiarly within the realm assigned to the jury under the control of the trial judge. As pointed out in Andrews v. Cardosa, Fla.App.1957, 97 So.2d 43:

'* * * The test is not what an Appellate Court would have decided had they tried the case, but whether or not they can say, after viewing the case, that the jury as reasonable men could not have found the verdict which they did. * * *'

Measured by this criterion, no error has been demonstrated.

The third point urges that there was no publication of the alleged slanderous statement. We do not view this cause as one for slander, but even if such were the case, the publication would be sufficient. See Fiore v. Rogero, Fla.App.1962, 144 So.2d 99. There is no evidence to support a theory that appellee and her sister and brother-in-law were co-adventurers.

Appellants' fourth point is as follows:

'THE COURT COMMITTED REVERSIBLE ERROR BY ANSWERING AT GREAT LENGTH THE JURY'S QUESTION ON INDEMNIFICATION AND ADVISING THEM TO THE EFFECT THAT THE DEFENDANTS HAD A RIGHT OF INDEMNIFICATION AGAINST COURTESY MOTORS PURSUANT TO THE AGREEMENT OF SALE.'

At the time of the trial the cause was at issue upon appellee's complaint and a general denial of all of appellee's allegations. In addition it was at issue upon the following affirmative defense interposed by appellant:

'1. That the entire business assets of the above-named defendants, including but not limited to: New and used car and truck inventory, replacement vehicle parts, furniture and furnishings, machinery and equipment, supplies, franchise to operate a Ford Automobile Agency, etc., were sold to COURTESY MOTOR SALES, INC., said sale and transfer was consummated on the 4th day of February, 1964.

'2. That all property leases covering the premises occupied for business by the named defendants were either assigned to, or new leases executed in the name of the new purchaser, COURTESY MOTOR SALES INC., the effective date of such assignments and new leases was February 4, 1964.

'3. That the defendants surrendered the premises and right to do business to ...