Buck v. Radcliff Motor Co.

• Decision Date: 06 March 1939
• Docket Number: No. 19260.,19260.
• Parties: DORRYL L. BUCK, RESPONDENT, v. RADCLIFF MOTOR COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

125 S.W.2d 888

DORRYL L. BUCK, RESPONDENT, v. RADCLIFF MOTOR COMPANY, A CORPORATION, APPELLANT.

No. 19260.

Kansas City Court of Appeals. Missouri.

March 6, 1939.

Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

AFFIRMED.

A.T. Sharp and Sprinkle & Knowles for appellant.

(1) The court erred in refusing to sustain appellant's demurrer at the close of plaintiff's evidence for the reason that there was no proof that Hendrickson at the time of the sale of the automobile to respondent was acting as the agent for appellant, because: (a) There was a valid legal assignment of the title to said automobile to Hendrickson by appellant. Revised Statutes of Missouri, 1929, sec. 7774; Evans v. Insurance Co., 82 S.W. (2d) 111; Macklin v. Kinealy, 41 S.W. 893, 895; Halvorson v. Commerce Trust Co., 222 S.W. 897, 898; Anderson v. Motor Co., 888 S.W. (2d) 419. (b) If there was not a valid assignment by appellant to Hendrickson, then agency cannot be inferred because of a violation of the state statute with respect to the transfer of automobiles. (2) The court erred in giving plaintiff's Instruction Number One because said instruction covers the entire case and directs a verdict and erroneously permits the jury to pass upon the legal question of ownership and agency without any facts upon which to base the said decisions or without any guide from the court as to how the decisions are to be reached. (3) Instruction No. 2 given on behalf of the plaintiff is erroneous because it in effect informs the jury that both implied agency and agency by estoppel are in the case when in fact there was no evidence to sustain the same. Hackett v. Van Frank, 79 S.W. 1013; Thimmig v. General Talking Pictures Corp., 85 S.W. (2d) 208, 211; Renick v. Brooks, 190 S.W. 641; Farm & Home Savings & Loan Asso. v. Stubbs, 98 S.W. (2d) 320, 333. (4) The court erred in giving Instruction Number Four because said instruction permitted the jury to determine what, if any, was the violation of the law. Barnhill v. Poteet, 211 S.W. 106; City of Weston ex rel. v. Chastain, 234 S.W. 350; City Trust Co. v. Crockett, 274 S.W. 802, 811; Cooper v. Ry. Co., 100 S.W. 494.

J.H. Snyder for respondent.

(1) Appellant's appeal should be dismissed for failure of affidavit for appeal to comply with the statute. Revised Statutes of Missouri, 1929, sec. 1020; Waller v. Robertson Transfer Company (Mo. App.), 214 S.W. 267. (2) There was no assignment, either in law or in fact, of the title to said automobile to G.T. Hendrickson by appellant. Revised Statutes of Missouri, 1929, sec. 7774; State ex rel. Conn. Fire Insurance Company v. Cox (Mo.), 306 Mo. 537; Mathes v. Westchester Fire Insurance Co. of N.Y. (Mo. App.), 6 S.W. (2d) 66; Sullivan v. Gault (Mo. App.), 299 S.W. 1116; Quinn v. Gehlert (Mo. App.), 291 S.W. 138; Muzenich v. McClain, 220 Mo. App. 502; Crawford v. General Exchange Ins. Corporation (Mo. App.), 119 S.W. (2d) 458. (3) The court did not err in overruling appellant's demurrer at close of plaintiff's evidence for there existed sufficient proof to take to jury question of agency relation between G.T. Hendrickson and appellant. 2 C.J.S., sec. 23a, p. 1045; 3 C.J.S., sec. 330 (a), p. 322; 2 Am. Jur., sec. 454, p. 359; Renick v. Brooke et al. (Mo. App.), 190 S.W. 641; Robert v. Goldman (Mo.), 299 S.W. 55; Bowdern v. Rowland (Mo. App.), 21 S.W. (2d) 899; Brigham v. T.D. Judy Inv. Co. et al. (Mo. App.), 186 S.W. 15; Thimmig v. General Talking Pictures Corp. (Mo. App.), 85 S.W. (2d) 208; Smith v. Pullman Company, 138 Mo. App. 238; Kaden v. Moon Motor Car Co. (Mo. App.), 26 S.W. (2d) 812. (4) The court did not err in giving plaintiff's instruction number one. 3 C.J.S. 339, sec. 331; Leimkuehler v. Wessendorf (Mo.), 18 S.W. (2d) 447. (5) The court did not err in giving plaintiff's instruction number two, as there was evidence to sustain both implied agency and agency by estoppel. Thimmig v. General Talking Pictures Corp. (Mo. App.), 85 S.W. (2d) 208; Renick v. Brooke et al., supra; Kaden v. Moon Motor Car Company, supra. (6) The court did not err in giving plaintiff's instruction number four.

SPERRY, C.

This is a suit for actual and punitive damages, based on false and fraudulent representations in the sale of an automobile. Dorryl L. Buck, the purchaser, was plaintiff (and will be so called in this opinion), and sued Radcliff Motor Company, a corporation, John Radcliff, its president and manager, and G.T. Hendrickson, alleged to be a salesman for the Radcliff Motor Company, who were defendants below. The cause was tried to a jury, but was submitted only as to Radcliff Motor Company, which will be referred to herein as defendant. From a judgment for plaintiff for actual damages in the sum of $290, and for punitive damages in the sum of $500, defendant prosecuted this appeal.

Plaintiff wanted to purchase an automobile and Hendrickson told him he had the automobile, which is the chief subject of this law suit, for sale. The speedometer thereon showed that the car had been driven 17,000 miles. Plaintiff asked Hendrickson if that was the actual number of miles the car had been driven and was assured that was correct. Plaintiff also asked Hendrickson if the car had ever been used as a taxicab, and Hendrickson told him that it had not, that it had been acquired from a private owner who had several children and that the evidence of unusual wear on the upholstery of the back seat was not due to taxicab service, but was due to the fact that the children stood up in the seat. As a matter of fact the car had been driven about 35,000 miles and had never been in any service except that of a taxicab, both of which facts were known to defendant corporation, but apparently Hendrickson made no effort to learn said facts. Plaintiff would not have purchased the car had he known the truth as to these matters but he did not know the true facts, believed the false statements made to him by Hendrickson, relied thereon, and bought the car, paying the sum of $490 therefor.

Defendant complains of the action of the trial court in overruling its demurrer to the evidence, filed at the close of the case. In view of this contention we have set out the facts in the light most favorable to plaintiff; and in referring to other facts and circumstances in the course of this opinion, in dealing with the demurrer, we shall be guided by the same principle of law. [Raw v. Maddox, 93 S.W. (2d) 282, l.c. 283.]

We are not called upon to pass on the demurrer as to Hendrickson, but only as to defendant who urges two reasons why it says same should have been sustained, the first being as follows:

That there was a valid legal assignment of the title to the said automobile from defendant to Hendrickson prior to its sale to plaintiff, and that, therefore, Hendrickson was acting for himself in selling the car which he owned.

It is admitted by all parties that prior to May 28, 1937, the automobile in question was owned by defendant. Radcliff and Hendrickson testified to the effect that on that date defendant sold said car to Hendrickson and received his check in payment thereof, and that it then and there executed and delivered to him the certificate of title thereto, signed but not acknowledged, and lacking the name of any purchaser. The certificate of title was in evidence, signed by an agent of defendant, transferring title to said car to plaintiff, who was named therein, dated and acknowledged before a notary public on May 29, 1937. It was delivered to plaintiff on said date, by Hendrickson, who took it from the office of defendant immediately after same had been fully executed, under seal, by an authorized agent of defendant; and plaintiff paid Hendrickson the full purchase price at the time of delivery of the car and title. Hendrickson never had title to the automobile. [State ex rel. Conn. Fire Ins. Co. v. Cox, 306 Mo. 537, l.c. 552; Mathes v. Westchester Fire Ins. Op., 6 S.W. (2d) 66, l.c. 68; Sullivan v. Gault, 299 S.W. 1116, l.c. 1117; Crawford v. General Exchange Insurance Corporation, 119 S.W. (2d) 458, l.c. 459.]

It is next urged that the agency of Hendrickson cannot be predicated solely on defendant's violation of statutes of the State with reference to the transfer of motor vehicle titles. Defendant's president and manager testified that the certificate in its form when introduced in evidence was executed by defendant's authorized agent. The instrument is duly acknowledged under notarial seal, and recites that Radcliff...