Cates v. Darland
| Decision Date | 24 June 1975 |
| Docket Number | No. 46403,46403 |
| Citation | 537 P.2d 336 |
| Parties | Darryl CATES, d/b/a National Motor Company, Appellant, v. Danny J. DARLAND, Appellee. |
| Court | Oklahoma Supreme Court |
Jon B. Wallis and Gomer A. Evans, Jr., Tulsa, for appellant.
Bill V. Wilkinson, Chapel, Wilkinson, Riggs & Abney, Tulsa, for appellee.
This action was commenced as a result of the sale of a certain 1967 Ford automobile by the Appellant, Darryl Cates, d/b/a National Motor Company (hereafter referred to as 'Cates'), to the Appellee, Danny J. Darland (hereafter referred to as 'Darland'). Darland alleged that a fraud (odometer was turned back and salesman had represented reading as true mileage) was perpetrated upon him by Cates in the transaction and brought this action to recover actual and punitive damages.
The mileage shown at time of purchase was 34,676 miles. The previous owner testified that it had 74,624 miles on it when he traded it in.
The jury found for Darland and awarded actual damages of $200.00 and punitive damages of $7,000.00. Cates filed his motion for new trial and motion for a remittitur. Both were overruled. Cates then commenced this appeal.
Cates' first allegation of error contends that the Trial Court erred in allowing the witness, Joe Fleetwood, to testify of previous odometer alterations for National Motor Company and various other used car companies located in Tulsa, Oklahoma.
We must decide if it is proper, in an action for fraud, to admit evidence of other prior similar dealings by the alleged wrongdoer.
In the case of United States v. Marine, 413 F.2d 214 (7th Cir. 1969), the question of admissibility into evidence of prior fraudulent automobile sales transactions which involved persons other than the complaining party was considered. The Circuit Court held that such evidence was admissible because it was highly relevant to the issue of knowledge and intent as tending to show a consistent pattern of conduct. Also see Roan v. Smith, 272 Ala. 538, 133 So.2d 224, where an action for conversion of an automobile was brought against a used car dealer and his two brothers. The Trial Court admitted testimony of previous fraudulent transactions by one of the defendants which were almost identical to the conduct complained of here. The Alabama Court said:
'* * * In such a situation, evidence of such other fraudulent transactions or deceit by defendant is admissible to show fraud, motive, scheme, or intent.'
In Kurn v. Radencic, 193 Okl. 126, 141 P.2d 580, the plaintiff sought to prove the elements of knowledge and intent of the defendant principal by proving the existence of prior similar acts. We held that under proper circumstances evidence of prior similar acts has a relevant and material bearing on the issues in the case and should be admitted, in spite of any other risks which might be involved in bringing such evidence before the triers of fact. We stated:
'There are many instances in the law in which proof of acts of similar misconduct is permitted because of the bearing of such proof upon some phase of the case.'
And further stated:
'Since evil intent (malice), actual or presumed, is or may be an important factor in the awarding of exemplary damages; since such damages are awarded on the theory of punishment; * * * and since when evil intent, actual or presumed, is a material element or issue in a case, similar prior acts may, with judicial approval, be admitted in evidence to establish such intent, * * *.'
The Appellant further contends that the lower court erred by not giving an instruction limiting such testimony. 12 Okl.St.Ann. § 577, subd. 5, provides:
'When the evidence is concluded and either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney asking the same, and delivered to the court.'
The Appellant did not object to the fact that there was no limiting instruction, nor did he offer an additional limiting instruction, as evidenced by the Transcript of Objections Made to Instructions.
We find that the testimony of Joe Fleetwood was properly admitted into evidence.
Appellant also contends that the Trial Court erred in giving Instruction Number 8 in conjunction with Instruction Number 6. The questioned Instructions are as follows:
'INSTRUCTION NUMBER 6
'You are instructed that the definition of fraud is as follows:
"To constitute actionable fraud, it must be made to appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; (6) that he thereby suffered injury; and (7) that all these facts must be proven with a reasonable degree of certainty, and all of them must be found to exist; the absence of any of them would be fatal to a recovery."
'INSTRUCTION NUMBER 8
'You are instructed that the term 'fraud' as used in these instructions embraces all multifarious means resorted to by one individual to get advantage over another by false suggestions or suppression of truth, including all surprise, trick, cunning, disassembling, mechanical alteration, and any unfair way by which another is cheated.'
These Instructions are not contradictory when considered together. Number 6 sets out the elements necessary to prove fraud, while Number 8 sets out some of the forms or methods which may be used in bringing about fraud.
Appellant also objects to the inclusion of 'mechanical alteration' in Instruction Number 8, his theory being that if there was no oral misrepresentation, then there was no actionable fraud. The part of this Instruction that includes 'mechanical alteration' indicated to the jury that misrepresentation could be made without utterance of words.
In Austin v. Wilkerson, Inc., Okl., 519 P.2d 899, the buyer of a used car brought action against a seller alleging fraudulent misrepresentation in connection with turning back the odometer. The Appellee, who made the same argument as Appellant in our case, contended that no fraud could exist because there was no 'oral representation.' This Court quoted from Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W.2d 1083:
'* * * However, a representation is not confined to words or positive assertions; it may consist as well of deeds, acts, or artifices of a nature calculated to mislead another and thereby to allow the fraud-feasor to obtain an undue advantage over him.'
The explanation of the term 'fraud', as set forth in Instruction Number 8, was proper and in accordance with Austin v. Wilkerson, Inc., supra.
Appellant further contends...
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Chellen v. John Pickle Co., Inc.
...wrongdoer may be considered in determining fraud." Silk v. Phillips Petroleum Co., 760 P.2d 174, 177 (Okla.1988) (citing Cates v. Dorloed, 537 P.2d 336, 338 (Okla.1975)). 51. Defendants argue that John Pickle cannot be held personally liable on the Chellen plaintiff's deceit claim. "A perso......
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Chellen v. John Pickle Co., Inc.
...wrongdoer may be considered in determining fraud." Silk v. Phillips Petroleum Co., 760 P.2d 174, 177 (Okla.1988) (citing Cates v. Darland, 537 P.2d 336, 338 (Okla.1975)). 51. Defendants argue that John Pickle cannot be held personally liable on the Chellen plaintiffs deceit claim. "A person......
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...bear no relation to the actual damages awarded. Garland Coal and Mining Co. v. Few, 267 F.2d 785, 791 (10th Cir.1959); Cates v. Darland, 537 P.2d 336, 340 (Okla.1975). Indeed, under Oklahoma law, punitive damages may be recovered even in conjunction with nominal actual damages. Moyer v. Cor......
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...law allows, punitive damages in this type of case, we perceive no reason for not submitting the punitive damage issue. See Cates v. Darland, 537 P.2d 336 (Okl.1975), wherein actual damages were $200 and punitive damages were $7,000. See also Boise Dodge, Inc. v. Clark, 92 Idaho 902, 453 P.2......