Baker v. Atkins
| Decision Date | 04 May 1953 |
| Docket Number | No. 21690,21690 |
| Citation | 258 S.W.2d 16 |
| Parties | BAKER v. ATKINS et al. |
| Court | Missouri Court of Appeals |
Richard K. Phelps, Kansas City (Thice & Phelps, Kansas City, of counsel), for appellant.
Cliff Bailey, Kansas City, for respondent.
BOUR, Commissioner.
Plaintiff brought this action to recover actual and punitive damages for alleged fraud in the sale of an automobile by defendant to plaintiff. The issue of actual damages was submitted to the jury, but the court refused to give plaintiff's instruction on punitive damages; and the jury returned a verdict for $450. From the judgment, defendant has appealed.
The case was tried upon an amended petition which was drawn in two counts. In count one plaintiff alleged that defendant was engaged in operating an automobile sales business, under the name of Midway Motor Company, in Kansas City, Missouri; that on April 19, 1948, plaintiff bought from defendant a Ford club coupe for which he paid defendant the sum of $2100; that at and prior to the time of the sale defendant, his agents and employees represented to plaintiff that said automobile was a 1948 model; that said representations were false and fraudulent; that in truth and in fact the automobile was not a 1948 model but was a 1947 model; that said representations were made by defendant, his agents and employees knowing they were false, or in utter disregard of the truth, for the purpose of inducing plaintiff to purchase the automobile; that plaintiff relied on said representations and purchased the automobile, and at the time of the sale its reasonable market value was $1565; that as a direct result of the false representations of defendant, his agents and employees, plaintiff suffered actual damages in the sum of $535, for which he prayed judgment. In count two of the petition, plaintiff adopted by reference all of the allegations in count one; alleged that said representations were made willfully, wrongfully, fraudulently, and maliciously; and prayed judgment for $2000 punitive damages.
In his answer, defendant admitted that he was engaged in operating an automobile sales business in Kansas City, Missouri, and that he was so engaged at all times mentioned in the petition; admitted that the sale price of the automobile in question was $2100; and denied all other allegations in the petition.
The following facts are undisputed: Plaintiff is a barber. On April 18, 1948, he went to defendant's used car lot where defendant's salesman showed him a Ford club coupe, bearing motor number 71GA-414110, and told him the car was a 1948 model. Plaintiff bought the car for $2100, and when the sale was completed on April 19, 1948, he was given a 'Car Invoice' (plaintiff's exhibit 2), which described the car as a 'Used 1948 Ford Club Coupe, Motor No. 71GA-414110,' and showed the price to be $2100.
Plaintiff testified on direct examination that when he saw the car at defendant's place of business it 'looked like a new '48,' and the speedometer registered '90 to 100 miles'; that he bought the car in reliance upon the representation of defendant's salesman that it was a 1948 model; that after driving the car about six months he sold it to Mr. Lieman 'as a 1948 model'; that he thought the car was a 1948 model when he sold it; and continued: Other evidence will be stated in the course of the opinion.
The first point raised by defendant-appellant is that the court erred in overruling his motion for a directed verdict. In support of this contention defendant states that 'from plaintiff's own testimony, in this case, it appears that all through his ownership of the car he treated it as a 1948 yearly model, and that when he in turn sold it, he sold it as a 1948 yearly model'; that 'having bought it as a 1948 model and sold it as the same he certainly has no right to assert that he was in any degree damaged, and all testimony as to difference in value between a 1947 and 1948 model is wholly immaterial.' This argument is followed by a quotation from Walsh v. Walsh, 285 Mo. 181, 205, 226 S.W. 236, 242, which reads: Defendant then cites nineteen other cases, and concludes: There is no similarity between the facts in the cases cited and the facts in the instant case.
We confess that we do not understand defendant's argument in support of his first allegation of error. If defendant means that plaintiff was not entitled to recover in this action because he sold the car to Lieman for an amount equal to or greater than the price he paid defendant, the contention is without merit. The general rule is that a person acquiring property by virtue of a commercial transaction, who has been defrauded by false representations as to quality, condition or other matters relating to the value of the property acquired and retained, may recover as damages in a tort action 'the difference between the value of the property as represented and the actual value of the property at the time of sale; and it is also true that this rule enables the purchaser to recover the so-called Louis Steinbaum Real Estate Co. v. Maltz, Mo.Sup., 247 S.W.2d 652, 655. See also Dolan v. Rabenberg, 360 Mo. 858, 231 S.W.2d 150, 155, and cases cited. Furthermore, there is no evidence in the record to show the amount of money plaintiff received for the car when he sold it to Lieman. Plaintiff testified that after he sold the car to Lieman, he 'was sued.' The record also shows that when plaintiff's counsel requested him to 'state to the jury the final amount of money you received from the sale of this car,' counsel for defendant said: 'I object to that as immaterial, not tending to prove any issue in the case,' and the objection was sustained. Obviously, the mere fact that plaintiff testified that he sold the car 'as a 1948 model' does not show that he 'failed utterly in sustaining the burden of proof which the law imposes upon him.' As indicated above, the cases cited by defendant do not support the statement in his brief that since plaintiff sold the car as a 1948 model, he has no right 'to assert that he was in any degree damaged.'
For his second point, defendant asserts that 'incompetent, irrelevant and material testimony was received by the court over the objection of the defendant.' Under this assignment, defendant argues that the court erred in admitting certain testimony of plaintiff's witness Lawrey in regard to the model of the car in question. Lawrey testified that for more than three years he had been employed as a salesman by Kansas Motors, Inc., a Ford agency, and during that period had sold several hundred cars; that motors manufactured by the Ford Motor Company 'bear a motor number' and 'that motor number is to designate the year and the type engine that the automobile has'; that 'we have a guide to go by in determining whether such and such a motor number belongs to such and such a car;' that the guide 'is accepted by all authorized dealers' and 'is called the Red Book'; that he had used the Red Book 'for quite awhile'; that he had never found any mistakes in the book, and did not know of any one who had.
Lawrey was allowed to testify on direct examination, and over defendant's objections, that the Red Book showed the motor number of the car in question (71GA-414110) was a motor number assigned by the Ford Company to a very late 1947 model and not to a 1948 model. Before the witness gave this testimony, counsel for defendant examined him on 'voir dire' as follows:
'
* * *
' Defendant's counsel then objected that testimony based upon the Red Book would be hearsay and not the best evidence, but as indicated the objection was overruled.
As stated in Wigmore on Evidence, Vol. VI, sec. 1766, (3d Ed.), 'the theory of the hearsay rule is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made on the stand, subject to the test of cross-examination.' The general rule which excludes hearsay as evidence applies to written as well as oral statements. In other words, a writing may be hearsay and inadmissible as such unless an exception to the hearsay rule renders it admissible. 20 Am.Jur., Evidence, sec. 455, p. 403. And it is elementary that where proof is to be made of some fact which is stated in a writing, the best evidence of the contents of the writing is the writing itself. Hence the contents of a writing may not, as a general rule, be proved by parol, unless the failure to produce the writing is accounted for and excused. Id. sec. 406, p. 366...
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