Charlie Stuart Oldsmobile, Inc. v. Smith

Decision Date22 November 1976
Docket NumberNo. 2--1274A289,2--1274A289
Citation171 Ind.App. 315,357 N.E.2d 247
PartiesCHARLIE STUART OLDSMOBILE, INC., Appellant (Defendant below), v. Willis R. SMITH, Appellee (Plaintiff below), and General Motors Corporation, Appellee (Defendant below).
CourtIndiana Appellate Court
James W. Stilwell, Stilwell, Hackemeyer & Life, Indianapolis, for appellant

Donald M. Ream, Jr., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Defendant-Appellant Charlie Stuart Oldsmobile, Inc. (Charlie Stuart) appeals from a trial court judgment of Five Thousand ($5,000.00) Dollars plus costs in favor of Plaintiff-Appellee Willis R. Smith (Smith) upon his complaint for property damages, including mental anguish, due to the tortious acts of Charlie Stuart's service department in repairing Smith's Toronado, claiming the damages awarded for injury to the vehicle are unsupported by the evidence and damages awarded for mental anguish are contrary to law.

Affirmed in part and reversed in part.

FACTS

The evidence and facts most favorable to the trial court's judgment are:

Smith purchased a 1970 Toronado automobile from Charlie Stuart Oldsmobile on February 12, 1970. The automobile cost Six Thousand Three Hundred Forty-seven and 33/100 ($6,347.33) Dollars and was delivered on March 21, 1970.

On April 30, 1970, after the automobile had been driven nine hundred thirty-one (931) miles, the transmission failed and it had to be towed in to Charlie Stuart. It was repaired under the terms of an express warranty by General Motors Corporation covering defects in the vehicle's power train components occurring within five (5) years or fifty thousand (50,000) miles of use.

Smith requested Charlie Stuart to fix several other defects, including a noisy speedometer, none of which were repaired when the car was picked up sixteen (16) days later.

On June 4, 1970, Plaintiff returned to Charlie Stuart and pointed out these defects to a Service Manager who assured him the problems would be solved . . . but they were not when Smith picked up his automobile the next day.

Again he returned on June 8, 1970. This time the car remained with the agency for four (4) days. Afterwards, the speedometer was still noisy, and Smith discovered the car had been further damaged during the process of repair. The repairmen had:

(1) broken the gear selector pointer,

(2) put two (2) holes in the rear seat upholstery,

(3) repaired a dent in the right rear fender and a scratch on the left door by applying the wrong color of paint to an area wider than necessary, and

(4) left the interior of the car in a greasy, dirty condition.

Again Smith was to bring the car back to rectify these errors.

On June 15, 1970, he returned but the defects complained of had not been corrected.

On June 17, 1970, Smith met with Charlie Stuart personally in an attempt to remedy the situation. Among other things, Smith complained his speedometer was broken, forcing him to estimate his speed by imitating the pace maintained by other vehicles. He was told everything would be fixed with just one more visit.

On August 17, 1970, Smith repeated the familiar journey to Charlie Stuart. Eleven (11) days later, he retrieved his Toronado only to find the speedometer still made noise, white streaks on his vinyl top had not been removed as promised, nor had a series of paint scratches on the wheels been corrected. The rear seat arm rest, which was in good condition before the visit, was now collapsed.

Smith's troubles continued when later in the summer he drove his automobile to Florida for a vacation. The previously repaired transmission began leaking fluid, and the speedometer was still noisy.

On January 5, 1971, once again the Toronado was taken back to Charlie Stuart's Service Department for more repairs. The work was not performed properly. The repairmen not only failed to fix the speedometer and the transmission, but as on previous occasions, new defects appeared. The repairmen smashed the dash ashtray sideways into an adjacent panel and bent the gear selector so it permanently pointed to the wrong gear.

On January 14, 1971, Smith visited the Charlie Stuart agency and met with the Service Manager and Mr. Stuart. They discussed the possibility of trading Plaintiff's Toronado for another model, but Plaintiff stated he wanted to keep his automobile. So he was again promised if he would bring it back again everything would be fixed.

Accordingly, the Toronado was brought back on March 3, 1971 . . . for the last time. Fifteen (15) days later when Smith arrived, he and a Service Manager test drove the automobile and discovered the speedometer was still not functioning, the seat belts were covered with grease and the car's flat cushion was filthy. After a more careful examination Smith also discovered:

(1) the rear deck panel which had been replaced did not fit,

(2) there was a gap between the seat and a collapsed arm rest which had been repaired,

(3) a bulb cover on the front dash was missing, causing a blinding light to shine in the driver's eyes during night-time driving,

(4) a stained blemish, streak was on the left front fender which could not be removed,

(5) the rear deck panel was painted a color which did not match the interior of the car.

For some unknown reason the car's air-conditioner was also broken.

On October 8, 1971, Smith filed a multiple paragraph Complaint alleging Defendants Charlie Stuart and General Motors Corporation with breach of certain warranties and tortious conduct in the repair of the Toronado. Only relevant to this appeal is Paragraph Three (3) of the Complaint addressed to Charlie Stuart:

. . . 2. That thereafter the plaintiff during the times his automobile was in the service department of the defendant Charlie Stuart Oldsmobile, Incorporated, has had said vehicle injured, damaged, broken and rendered defective in various parts and components, by said defendant as follows:

a. Attempted repair of a dent by partially filling by brushing with paint of a different color than that used to coat surrounding surface

b. Brush-painting door scratch with paint of a different color than that used to coat surrounding surface

c. Gear selector pointer missing

d. Two holes made in upholstery in right rear side panel e. Grease on back and front seats and floor mats

f. Collapse of right rear arm rest caused by non secure of screws at time of repair to side panel

g. Gear selector severely bent and discolored

h. Ash tray opening at driver's seat damaged and closure panel pushed inward on one side

i. Dents upon steering wheel

j. Non fitting rear deck panel

k. Rear deck panel of color of other than surrounding material

1. Gap in right rear armrest

m. 'Lights' indicator plate on dash missing

n. Stain streak on left front fender

o. Large panel plate on dash missing

p. Defective lights under dash

all while purporting and pretending to repair and service said vehicle.

3. That such acts of the defendant, Charlie Stuart Oldsmobile, Incorporated, by their servants and employees in such injuring, damaging, breaking and rendering defective and damaged said parts and components of the plaintiff's automobile were done wantonly, recklessly, callously, indifferently and utterly and wholly without regard to the plaintiff's rights in his new automobile as his property.

4. That said acts of the defendant, Charlie Stuart Oldsmobile, Incorporated, have caused the plaintiff in terms of loss of value of and upon said Oldsmobile Toronado automobile and said plaintiff has been further damaged by reason of the wanton, reckless, callous and indifferent acts of said defendant toward his automobile during service and repair visits by reason of humiliation, embarrassment, chagrin, disappointment and frustration, all in the total sum of actual and punitive damages of $20,000.00. 1

(Emphasis added.)

A partial summary judgment against Smith on the issue of punitive damages alleged in Paragraph Three (3) was entered by the trial court, and Smith thereafter deleted the words 'punitive damages' from the Complaint.

At the bench trial on May 24, 1974, Smith testified as to the wrongful acts of Charlie Stuart causing injury to his Toronado and stated he was damaged '$4,000.00' by reason of 'just plain loss of value.' There was no other evidence presented by either party as to the extent of damages sustained. The Court entered judgment for Smith on Paragraph Three (3) in the sum of Five Thousand ($5,000.00) Dollars. The Court found for Defendants Charlie Stuart and General Motors Corporation on the other paragraphs of the Complaint.

Charlie Stuart appeals.

ISSUES

Two issues are presented for disposition:

ISSUE ONE: Was there substantial evidence to support the trial court's judgment awarding Smith Five Thousand ($5,000.00) Dollars for damages to his Toronado automobile?

ISSUE TWO: Are damages for mental anguish suffered as a result of negligent injury to an automobile recoverable in Indiana?

As to Issue One, Charlie Stuart maintains that Smith failed to provide substantial evidence of probative value to support the judgment and that Smith's evidence his Toronado suffered a Four Thousand ($4,000.00) Dollar loss in value was speculative and mere conjecture.

As owner of the damaged automobile, Smith replies that his opinion as to loss of value has probative value and there was substantial evidence supporting his value opinion.

As to Issue Two, Charlie Stuart maintains damages for mental anguish, unaccompanied by physical injury, can only be awarded when the wrongful conduct is shocking, outrageous, and offensive, and the evidence shows the automobile was Smith argues, somewhat generally, that mental anguish is a proper element to be considered when awarding compensatory damages for an injury to property, and that physical injury is not a prerequisite to recovery for mental anguish, and such damages should not be denied because of difficulty in estimating them.

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