Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, PONTIAC-BULC

• Court: Supreme Court of Connecticut
• Writing for the Court: SHAPIRO; In this opinion HOUSE, C.J., and MacDONALD; LOISELLE; In this dissenting opinion BOGDANSKI
• Citation: 345 A.2d 520,165 Conn. 559
• Parties: BALCHv. COMMISSIONER OF MOTOR VEHICLES.
• Docket Number: INC,PONTIAC-BULC
• Decision Date: 06 December 1973

Page 520

345 A.2d 520 165 Conn. 559 BALCH PONTIAC-BULCK, INC.
v.
COMMISSIONER OF MOTOR VEHICLES. Supreme Court of Connecticut. Dec. 6, 1973.

Page 521

[165 Conn. 560] John Gill, Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian, Atty. Gen., Richard R. Brown and Stephen O'Neill, Asst. Attys. Gen., for appellant (defendant).

Albert Zakarian, Hartford, with whom, on the brief, was J. Charles Mokriski, Hartford, for appellee (plaintiff).

Before [165 Conn. 559] HOUSE C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

[165 Conn. 560] SHAPIRO, Associate Justice.

The defendant, the commissioner of motor vehicles, following a hearing held before a hearing officer of the department of motor vehicles, and as a result of reviewing the evidence therein produced, concluded that the plaintiff, Balch Pontiac-Buick, Inc., had violated § 14-64 of the General Statutes in that it made a false statement to a customer concerning the mileage on the motor vehicle which he had purchased from the plaintiff. The commissioner also concluded that there was no violation of § 14-145. As a result, all of the plaintiff's general distinguishing numbers, marks and any and all phases of operation at its location were ordered suspended for a period of three days. As prescribed by § 14-64, ¹ the plaintiff was required to post a bond of $1000 in order to receive consideration for reinstatement[165 Conn. 561] following the three-day suspension. The plaintiff appealed from the commissioner's decision to the Court of Common Pleas, where the appeal was sustained. From a judgment rendered thereon, the commissioner appealed to this court.

On December 10, 1971, the plaintiff was notified by the defendant to appear at a hearing and answer charges that § 14-145 was violated, and also that § 14-64 was violated in that 'a false statement (was) made regarding the condition of a 1970 Chevrolet Kingswood, Id. #

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164360T196155 sold to David Ewbank, in that Balch Pontiac-Buick, Inc. Stated that the mileage on the vehicle was approximately 16,600 miles when in fact it was 26,505 miles.'

There was evidence presented at the hearing that disclosed the following: The MV-50 form showing 'Date of purchase 7/8/71' and 'Date of sale 7/8/71' marked 'Original Certificate of Sale' and designated 'State of New York Department of Motor Vehicles' indicates 'J. L. Kafka, Inc., 1545 Jerome Ave., Bronx, N.Y.' as the owner of a 1970 Chevrolet 'serial or indentification No. 164360T196155' and the purchaser as 'Balch of East Windsor 67 Post Rd. Warehouse Point Conn.' In a space captioned 'Present Odometer Reading' was written 'true mileage unknown 26,505.' On July 9, 1971, a sale of this Chevrolet was reported through a 'State of Connecticut Department of Motor Vehicles Form Q1,' by Balch of East Windsor to it. On July 21, 1971, a sale of this Chevrolet to David Ewbank, the complainant, was reported through a similar Q1 form. In order to register the vehicle for the consumer the licensee was required to have MV-50 and Q1 forms. According to the MV-50 form on file with the plaintiff, at Kafka and the New York police, the [165 Conn. 562] mileage at the time of the sale of the Chevrolet was 26,505 miles. On November 12, 1971, a Connecticut motor vehicle inspector received a notarized statement from Kafka, the prior owner of the Chevrolet, attesting to this fact. The Q1 forms pertaining to this vehicle were in the plaintiff's possession. At the time of sale, the purchaser Ewbank noticed the odometer as indicating that the vehicle had been driven approximately 16,500 miles. He discussed the mileage with the plaintiff's salesman and service manager, both of whom stated that it was accurate because it was illegal to set the mileage back. They did not show him the MV-50 form pertaining to the Chevrolet. He did not learn of the higher mileage until about a month later when he talked to an individual who had leased the vehicle from a leasing company and learned that when the lessee turned it in on approximately July 1, 1971, it had over 26,000 miles on it. Jody Balch, the plaintiff's vice-president, told Ewbank that they had the MV-50 form in their possession since the time they went to New York to buy the Chevrolet.

As a result of a review of the evidence produced at the motor vehicle department hearing, the commissioner found the following facts: On or about July 8, 1971, the plaintiff purchased the Chevrolet from J. L. Kafka, Inc., Bronx, New York. The State of New York Department of Motor Vehicles Form MV-50, dated July 8, 1971, indicated that the vehicle's mileage was 26,505, which true mileage unknown and that it was received by the plaintiff from Kafka. On July 21, 1971, the Chevrolet was sold to Exbank by the plaintiff at which time it was represented to have original mileage of 16,505 as displayed on the odometer. The plaintiff had in its possession the [165 Conn. 563] MV-50 form at the time of the sale to Ewbank showing mileage in excess of 26,000 miles. The plaintiff, in this case, as its standard selling procedure, had represented to the purchaser that the mileage shown on the odometer was the correct actual mileage. The plaintiff acquired the Chevrolet in a 'true mileage unknown' transaction from New York and its agents and officers testified they knew from prior dealings that mileage is often changed in the New York transactions. The representations with respect to mileage were a substantial factor in the sale of the vehicle and a material fact in determining the value of the vehicle. The plaintiff had reason to know or suspect that the mileage was not the actual mileage at the time the representation was made to the buyer. From the foregoing, the commissioner concluded that the plaintiff violated the provisions of § 14-64 in that a false statement was made to Exbank concerning the mileage of the vehicle purchased by him. The conclusion reached by the commissioner must be upheld if it is legally supported by

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the evidence which was presented before him. Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747; See Jaffe v. State Department of Health, 135 Conn. 339, 353, 64 A.2d 330. It is not the function of the trial court, nor of this court to retry the case. The commissioner's function is that of an administrative agency, although he acts in a quasi-judicial capacity. To render a decision, he must weigh evidence and reach conclusions. See Dan M. Creed, Inc. v. Tynan, 151 Conn. 677, 679, 202 A.2d 239; Brookledge, Inc. v. Public Utilities Commission, 145 Conn. 617, 619, 145 A.2d 590; Conley v. Board of Education, supra; adam v. Connecticut Medical Examining Board, 137 Conn. 535, 537, 79 A.2d 350.

[165 Conn. 564] It is noted that in the plaintiff's appeal the claim was made that the commissioner failed to find that the plaintiff made a 'false statement as to the condition of (said) motor vehicle' within the meaning of § 14-64. The commissioner has assigned error in the court's sustaining of the plaintiff's appeal from his finding, conclusions and order relative to the violations of § 14-64. The trial court in its memorandum of decision stated that 'as to 'condition' the parties did not litigate or press this particular question within the meaning of Section 14-64.' Nevertheless, we are confronted with the issue as to whether the court was correct in its determination that the commissioner acted illegally, arbitrarily and in abuse of his discretion in reaching the conclusion that the plaintiff violated § 14-64 in making a false statement to Exbank concerning the mileage of the vehicle purchased by him.

" False' may mean untrue, or it may mean designedly untrue, implying an intention to deceive. When applied to the representations of one inducting an act to another's injury, it implies a purpose to deceive.' Sallies v. Johnson, 85 Conn. 77, 82, 81 A. 974, 976; see Salt's Textile Mfg. Co. v. Ghent, 107 Conn. 211, 215, 139 A. 694. The facts of the case bring it within the widely accepted rule that, although a vendor may, under the circumstances, have no duty to speak, nevertheless, if he does assume to speak he must make a full and fair disclosure as to the matters about which he assumes to speak. Franchey v. Hannes, 152 Conn. 372, 379, 207 A.2d 268. From the facts as found by the commissioner it is apparent that Ewbank was ledto believe that he was purchasing an automobile that had gone only...