Bud Wolf Chevrolet, Inc. v. Robertson

• Decision Date: 04 August 1986
• Docket Number: No. 2-1084-A-322,2-1084-A-322
• Citation: 496 N.E.2d 771
• Parties: BUD WOLF CHEVROLET, INC., Appellant (Defendant Below), v. George and Patsy ROBERTSON, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 771

496 N.E.2d 771

BUD WOLF CHEVROLET, INC., Appellant (Defendant Below), v. George and Patsy ROBERTSON, Appellees (Plaintiffs Below).

No. 2-1084-A-322.

Court of Appeals of Indiana,

Second District.

Aug. 4, 1986.

Gregory L. Noland, Emswiller & Noland, Indianapolis, for appellant.

John A. Young, John D. Cochran, Jr., Young, Cochran & Reese, Indianapolis, for appellees.

SULLIVAN, Judge.

Defendant-appellant Bud Wolf Chevrolet, Inc. (Bud Wolf) appeals from a jury verdict awarding plaintiffs-appellees George and Patsy Robertson (Robertsons) $3,500.00 compensatory and $75,000.00 punitive damages arising from the sale of a Chevrolet truck by Bud Wolf to Robertsons in 1978.

We affirm in part and reverse in part.

Bud Wolf presents three issues for our review, which we have restated as follows:

(1) Whether the trial court erred in granting the Robertsons motion in limine which requested refusal of testimony regarding George Robertson's six-month suspension from his employment in the Marion County Sheriff's Department.

(2) Whether the verdict is supported by sufficient evidence.

(3) Whether the award of $75,000 in punitive damages is excessive and contrary to law.

The evidence most favorable to the verdict discloses that on January 31, 1978, Robertsons purchased a 1978 Chevrolet truck from Bud Wolf for $10,548.75. Before they purchased the truck, Robertsons were told that the truck was a "new" truck which had 850 miles on it because a salesman had driven it back and forth to work from his home in Cicero, Indiana, during the month of January, 1978. The Robertsons were not told that prior to the sale, the truck had sustained some damage while parked on Bud Wolf's lot and subsequently had been repaired in Bud Wolf's body shop.

The Robertsons returned the truck to Bud Wolf for repairs on several occasions during the following eight months. Repairs to the truck under warranty included repainting of the right and left front fenders, replacement of a chrome piece in a headlight and moldings, alignment of the truck bed and investigation of causes of brake and tire noise.

Approximately two years later, when the truck developed a severe rusting problem on the right side, the Robertsons took it to Jim's Auto Repair, where an employee told them that it had previously sustained extensive and substantial damage and that the hood and windshield had been replaced. Robertsons filed suit after Bud Wolf refused any adjustment, based upon the ground that the truck's warranty had expired.

I.

Bud Wolf's first argument is that the trial court erred in granting Robertsons' motion in limine prohibiting appellant from presenting evidence regarding George Robertson's six-month suspension from his employment with the Marion County Sheriff's Department.

Robertsons argue that Bud Wolf has waived this issue for failure to make an offer to prove during the course of trial. We agree.

As stated in Hare v. State (1984) Ind., 467 N.E.2d 7, 13:

"A motion in limine ... is used ... as a protective order against prejudicial questions and statements which might arise during trial. The trial court has inherent discretionary power to grant such a motion. The granting of a motion in limine prior to trial does not consist of a final ruling upon the ultimate admissibility of evidence. It is meant to protect against potential prejudicial matter coming before the jury until the trial court has an opportunity to rule upon its admissibility in the context of the trial itself." (Citations omitted.)

Furthermore, as noted in Rohrkaste v. City of Terre Haute (1984) 3d Dist. Ind.App., 470 N.E.2d 738, 741:

"As a preliminary ruling, the grant of a motion in limine is not itself reviewable on appeal. Likewise, error cannot be predicated on an objection to the grant of the motion. To preserve error, a party, out of the hearing of the jury, must propose to ask a certain question at trial and have the court prohibit it. Failure to offer the excluded material constitutes waiver of the issue."

In the case before us, Bud Wolf merely objected to the grant of the motion in limine prior to trial and failed to make an offer to prove during the course of the trial. Consequently, this issue is waived. ¹

II.

Bud Wolf next argues that the verdict awarding damages to Robertsons is not supported by sufficient evidence and is therefore contrary to law under any of the three theories proposed in their complaint--fraud, breach of warranty and breach of contract. Central to this argument are Bud Wolf's contentions that the truck sold to Robertsons was a "new" truck because it had never been titled to anyone else and that it had sustained only minor damage in the dealership lot, which was subsequently repaired by Bud Wolf at minimal cost.

Robertsons argue that the truck was not "new" and that there was sufficient evidence to support the jury verdict based upon one or more of the theories advanced in the lawsuit.

The jury returned a general verdict for the Robertsons, fixing compensatory damages at $3,500.00 and punitive damages at $75,000.00.

In reviewing an allegation that a jury verdict is contrary to law, this court will neither reweigh the evidence nor judge the credibility of witnesses, but will examine the evidence most favorable to the appellee and all reasonable inferences to be drawn therefrom. Johnston v. Brown (1984) 3d Dist. Ind.App., 468 N.E.2d 597, 601.

It is undisputed that the truck sold to Robertsons was represented as a "new" truck which had been driven 850 miles by a salesman. Bud Wolf's salesman told Robertsons that the truck was "new," and the sales contract and other sale documentation described the truck as "new." It is also undisputed that the Robertsons were not told that the truck had sustained damage while parked on Bud Wolf's lot. There was conflicting evidence, however, as to the extent of the damage and repairs to the truck and the dates on which these occurred. Bud Wolf's employees testified that the truck had been struck on the right side near the door by another vehicle engaged in clearing snow from the lot and was subsequently repaired in Bud Wolf's shop at a total cost of $139.89. Bud Wolf considered such damage to be minor rather than substantial and thus adhered to its policy of not disclosing minor and subsequently repaired damages to a new vehicle unless the buyer inquired.

By contrast, both of Robertsons' experts considered the damage to the truck to be extensive and substantial, and both testified that the truck's hood and windshield had been replaced. The first expert found under the truck's right side a great quantity of plastic filler (Bondo) which, in his opinion, had been used to repair accident damage. The second expert, who inspected the truck after Robertsons had owned it more than six years, observed bent cross rails on the right side of the truck bed indicating that the truck had received a substantial impact on the right side. He opined that a quantity of "shims" had been placed under the cab mount in order to realign it. However, he could not state with certainty when the damages or repairs had occurred.

Robertsons testified that the truck was not wrecked while it was in their possession and Bud Wolf's witnesses testified that the truck was undamaged when it took possession. Robertsons testified further that if they had known at the time they purchased the truck that it had been wrecked, they would not have considered it to be a "new" truck and would not have purchased it.

Thus, the fundamental question which confronted the jury was whether it could properly conclude from the direct and circumstantial evidence presented that the truck was not "new" when the Robertsons purchased it and that the Robertsons incurred damages because they purchased it under the belief it was a "new" truck and paid the price of a "new" truck.

Robertsons correctly point out that there are no Indiana cases which define a "new vehicle" in the factual context present here. However, in Wiseman v. Wolfe's Terre Haute Auto Auction, Inc. (1984) 4th Dist. Ind.App., 459 N.E.2d 736, the court upheld the trial court's finding that a seller's assertion that a truck was "road ready" was an express affirmation of fact essential to the consummation of the sale and hence an express warranty. The Wiseman court analogized to Kemp v. Mays (1920) 73 Ind.App. 214, 127 N.E. 156, wherein the court held that a seller's statement that hogs being sold were "all right" provided some evidence to support the jury's verdict that an express warranty was created.

Of the cases from other jurisdictions cited by Robertsons, the better reasoned of them have concluded that whether a vehicle is "new" or not is a question of fact to be decided by the trier of facts under the particular circumstances of each case. See e.g. Maxcy v. Frontier Ford, Inc. (1975) 29 Ill.App.3d 867, 331 N.E.2d 858. (Court rejected dealer's argument that car which had been previously sold and returned without a transfer of title must be considered to be "new," although it had 630 miles on it.) See also Bell v. Louisville Motors Inc. (1978) Ky.App., 573 S.W.2d 351, 353.

In Krause v. Eugene Dodge, Inc. (1973) 265 Or. 486, 509 P.2d 1199, factually similar to the instant case, a customer bought a "new" car from a dealer who had previously sold and recovered the car before title was transferred. The dealer denied any misrepresentation and argued that the car was "new" because it had not been previously titled. The dealer's policy was not to volunteer such information about a "new" car to the customer unless requested. The Oregon Supreme Court stated:

"... a member of the public who purchases a car which is represented to him as a 'new' car is entitled to understand the words 'new car' by giving those words their ordinary meaning.... The question of whether in such a case the words 'new car' were understood and intended by the purchaser to be given their 'trade meaning' among automobile dealers...