Austin v. Wilkerson, Inc.

• Decision Date: 26 February 1974
• Docket Number: No. 46133,46133
• Citation: 519 P.2d 899,1974 OK 23
• Parties: Sharol G. AUSTIN, now Batson, Appellant, v. WILKERSON, INC., a corporation, Appellee.
• Court: Oklahoma Supreme Court

Page 899

519 P.2d 899

Sharol G. AUSTIN, now Batson, Appellant, v. WILKERSON, INC., a corporation, Appellee.

No. 46133.

Supreme Court of Oklahoma.

Feb. 26, 1974.

Van Cleave, Gresham, Bivens, Clark & Bennett by Wendell W. Clark, Chapel, Wilkinson, Riggs & Abney by Benjamin P. Abney, Tulsa, for appellant.

Ungerman, Grabel & Ungerman, Tulsa, for appellee.

BARNES, Justice:

Appellant (hereinafter referred to as 'plaintiff') and her now divorced former husband, William L. Austin, purchased a used 1969 Model Plymouth Fury III two-door hardtop sedan automobile from the Appellee, Wilkerson, Inc. (hereinafter referred to as 'defendant'), on Saturday, September 20, 1969, at a listed price of $2,995.00. When they were looking at this auto before deciding to purchase it, defendant's salesman, Bill Bates, told the couple that it had been used in the driver's education program of the Tulsa Public Schools. The prospective purchasers told Bates they were looking for a 'low mileage' car and the odometer portion of the Fury's speedometer represented its accumulated mileage as being less than 8,200 miles.

A few days later, plaintiff was looking through the auto's glove compartment and found an Oklahoma Motor Vehicle Inspection Certificate dated January 22, 1969, which set forth a 'mileage reading' of '9821'. After noticing that the 'identification number' on the certificate was the same as that on the Fury and then checking the authenticity of the certificate by a telephone call to the Oklahoma Inspection Bureau, plaintiff and her husband concluded that the odometer misrepresented the actual mileage that the auto had traveled, and, in early October, instituted the present action against defendant, alleging that the Fury, at the time they purchased it, and unbeknownst to them, had been driven in excess of 23,700 miles and 'was worth a considerable amount less' than if it had been driven only 8,197 miles. By reason of defendant's alleged 'false and fraudulent misrepresentation and deceit', in the sale of the Fury to them, plaintiffs sought recovery from defendant of $775.00 in actual damages and $25,000.00 in punitive damages with 10% Interest from the date of the purchase, and costs of the action.

After plaintiff and Austin were divorced, he dismissed his cause of action against defendant, and, after plaintiff married her present husband in 1971, she amended the petition in the present action to show that it was being continued by her as sole plaintiff under her new name.

At the close of a trial of the issues joined by plaintiff's petition, as amended and an answer in the form of a general denial filed by defendant, the trial court sustained defendant's motion for a directed verdict and thereafter entered judgment accordingly.

In her present appeal asking this Court to order a new trial of the case, plaintiff seeks to show that the trial court erred in directing the verdict because there was sufficient evidence of actionable fraud on the part of the defendant to have warranted submission of the case to the jury. Defendant takes the opposite position and contends that plaintiff failed to discharge her burden of establishing the recognized seven elements of fraud. The Court of Appeals, Division No. 1, upheld plaintiff's position, reversed the trial court, and remanded the case to that court for a new trial. We affirm the Appeals Court's opinion as herein modified.

In dealing with their opposing positions, we hereinafter describe material portions of the evidence adduced by the respective parties.

While testifying to the afore-stated facts and others, plaintiff identified the aforementioned Motor Vehicle Inspection Certificate; and it was introduced in evidence as plaintiff's Exhibit 1. On cross-examination, plaintiff testified that defendant delivered the Fury to its purchasers on Monday, September 22, 1969; that this couple was divorced in May, 1970, and that thereafter she married her present husband in January, 1971. When she was recalled to the witness stand, plaintiff also testified that she would not have purchased the Fury if she had known that the mileage on it was different than was represented on its speedometer.

Plaintiff's second witness, Melton E. Ramsey, who lived in the Catoosa area, had taught in Tulsa's public school system five years and taught driver's training at Tulsa's Edison High School during 1969, identified the Fury involved as the one he obtained new on loan at defendant's Chrysler-Plymouth Agency the first week or ten days of October, 1968, and drove more than 23,000 miles in his work of teaching driver's education, as well as on some short trips out of town, including weekly journeys to a night school he was attending in Tahlequah, Oklahoma, before he returned the car to defendant at the end of the summer school session in the latter part of July, 1969. When plaintiff's Exhibit 1 was shown to this witness, he acknowledged that it bore his name, and identified it as the Motor Vehicle Inspection Certificate he received when he had the car inspected and the headlights adjusted at one of defendant's service facilities. Additionally, Mr. Ramsey's testimony revealed that while he possessed the car, it had some of the same defects that plaintiff and her husband discovered after they purchased it.

Another of plaintiff's witnesses, Robert L. Temple, manager of a Tulsa auto appraisal business, gave testimony to the effect that when plaintiff and her husband purchased the Fury it was worth $775.50 less, after having been driven more than 23,000 miles, than it would have been if it had been driven only the 8,190 miles shown on its odometer.

For the defendant, its former salesman, Bates, testified by deposition that he was hired to sell cars for defendant on a salary and commission basis in March, 1969, by its general manager, John Esche. Bates testified that, as far as he knew, he was the only one of defendant's salesmen who dealt with plaintiff and her husband in the purchase of the Fury. He further testified that defendant had caused this car to be delivered from one of its downtown locations at Tulsa's 8th and Boulder Streets to its used car lot in the 3800 block on East 11th Street only a short time before the sale was made; and he did not know anything about the car's history except that it had been used in Tulsa's driver's education program. Bates first testified that he did not recall whether or not he had made any representations to the purchasers concerning the car's mileage, but that he 'possibly could have.' Later in his testimony, however, Bates denied that he had told them the Fury was a 'low mileage' car. This witness further testified, in substance, that when a car that defendant wanted to sell needed work done on it, a 'make ready' was first prepared showing what needed to be done to it for its sale. When asked which of the persons in defendant's management authorized the preparation of such cars, Bates deposed that defendant's general manager, Esche, or sales manager, Don Combs, were possibly the ones most likely to do this.

Defendant's witness, A. D. House, an independent used car dealer, testified, among other things, that the first things prospective purchasers look for in used cars are their appearance and condition. On cross-examination, he first testified that it did not make any difference to him what mileage a used car's odometer showed. On further questioning by plaintiff's counsel, he stated that a turned back odometer 'is a false reading of the condition of a car' and that this is done to enhance its value in the eyes of the buyer.

For defendant, its general manager, Esche, testified that the special used car sale at which plaintiff and her former husband purchased the Fury, and during which all of defendant's 'downtown locations' were closed, was arranged because defendant had a 'tremendous number' of 1969 model cars on hand and it was getting pretty close to the time the 1970 models would be introduced. He further testified that the cars were priced as they were because he wanted 'to dispose of numbers.' On cross-examination, Esche testified that 'for the most part' he was the one who developed the defendant's business policies, but he denied that it was one of those policies to turn back the mileage on high mileage automobiles to lower mileages in order to make them more salable. When asked directly if he had ever done that, he answered: 'No, sir.' He further testified on cross-examination that the warranty on an automobile manufactured by Chrysler is no good if Chrysler learns that its mileage has been altered. In this connection, he further testified that each time work is done on such a car by any Chrysler-Plymouth service department, during the warranty period, its speedometer reading goes into a master computer, so that, if the reading is altered below the mileage shown by the computer, Chrysler rejects the warranty.

Mr. Truman R. Brown, who was formerly employed at defendant's Rambler dealership and at one of its used car lots from sometime in August, 1969, until sometime in May, 1970, appeared, for plaintiff as a rebuttal witness for impeachment purposes. Part of his examination reads as follows:

'Q. . . . would you please describe . . . the general business policy of ...