Atkins v. Drake
| Citation | 437 So.2d 469 |
| Parties | Charles ATKINS, d/b/a Atkins Ford Sales v. Mark Steven DRAKE. 81-262. |
| Decision Date | 12 August 1983 |
| Court | Supreme Court of Alabama |
Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellant.
Thomas J. Spina of Daniel, Fawal & Spina, Birmingham, and J. Stephen Salter of Groenendyke & Salter, Birmingham, for appellee.
Charles Atkins, d/b/a Atkins Ford Sales, defendant below, appeals from judgment entered on a verdict against him.
The plaintiff, Mark Drake, alleged that Atkins, owner of a commercial truck dealership, had sold him a used truck, which Atkins knew at the time of sale to be used, but had represented to him that the truck was new and not damaged. Drake claimed he bargained and paid for a new truck.
Drake filed this suit and sought compensatory and punitive damages for fraud, misrepresentation, deceit, breach of warranty, and violation of 15 U.S.C. §§ 1988 and 1989 (1982) (). After a full trial on the merits, the jury returned a verdict of guilty on the charges of fraud and violation of the federal odometer statute. It awarded Drake $1,500.00 compensatory damages and $15,000.00 punitive damages.
There are two issues before us: (1) Did the trial court err in admitting an out-of-court statement alleged to have been made by an agent of Atkins, without first requiring proof of agency? (2) Were statements made by plaintiff's counsel during closing arguments so improper and prejudicial as to require a mistrial?
The testimony which Atkins claims is inadmissible hearsay came out on the direct examination of Drake. The pertinent portions are as follows:
The scope of review is stated in Rule 45 of the Alabama Rules of Appellate Procedure:
"No judgment may be reversed or set aside, nor new trial granted in any civil ... case on the ground of ... improper admission or rejection of evidence ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."
The witness simply said that a man who appeared to work at the dealership attempted to explain how the truck came to be scratched. The statement in question is relevant to the jury's determination of whether the truck was in fact used and damaged at the time of sale and whether the dealership had knowledge of this. We think the trial court correctly held that Atkins could show by cross-examination that the plaintiff was relying on a statement of a bystander. We also note that this evidence was cumulative. Plaintiff's witness, Terry Martin, testified to the same thing, without objection.
There was additional evidence to support the jury's finding that the truck was not new and that Atkins misrepresented its condition to Drake. Drake testified that, two days after the sale and delivery of the truck, he found the underside and a portion of the interior of the truck to be covered with mud, and found a bent stabilizer bar, patches of rust on the trailer hitch and brake pedal, a dirty air filter, and particles in the oil. He testified that he had not driven the truck through any mud or been in any accident in which the front of the truck had been struck during those two days. These facts were corroborated by testimony of an acquaintance of Drake's.
We hold, without deciding whether the statement is inadmissible hearsay or not, that it was not reversible error for the trial court to admit the evidence in the context involved here. The question of agency was properly presented to the jury under a correct charge. There was sufficient evidence from which the jury could have concluded that the person making the statement complained of was a salesman for Atkins. The plaintiff and his friend both testified that they had seen him there several times, and he appeared to work there. He certainly had apparent authority. Blue Cross-Blue Shield of Ala. v. Thornton, 56 Ala.App. 678, 325 So.2d 187 (1975).
The statements of Drake's counsel, made during closing argument, which are claimed to be improper and prejudicial so as to require a mistrial, are set out below:
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...in particular might have caused the jury to award punitive damages on the basis of passion or prejudice. This Court held in Atkins v. Drake, 437 So.2d 469 (Ala.1983), that "[i]n a case of improper argument, where the trial judge overrules objection and fails to instruct the jury as to the i......
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...Estis Trucking Co. v. Hammond, 387 So.2d 768 (Ala.1980). But see Fountain v. Phillips, 439 So.2d 59 (Ala.1983), and Atkins v. Drake, 437 So.2d 469 (Ala.1983), finding no prejudice in closing The context of the objected-to argument shows that it was an allegorical discussion of an imaginary ......
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Otis Elevator Co., Inc. v. Stallworth
...eradicated the prejudicial effect. Allison v. Acton-Ethridge Coal Co., 289 Ala. 443, 448, 268 So.2d 725, 727 (1972). Cf. Atkins v. Drake, 437 So.2d 469 (Ala.1983). Otis Elevator Company also contends that the trial court, in addressing a juror's question, made an improper comment on the wea......