Craig v. Spitzer Motors of Columbus, Inc.

• Decision Date: 26 May 1959
• Citation: 160 N.E.2d 537,109 Ohio App. 376
• Parties: , 81 Ohio Law Abs. 150, 11 O.O.2d 234 George C. CRAIG, Plaintiff-Appellant, v. SPITZER MOTORS OF COLUMBUS, INC., et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

Page 376

109 Ohio App. 376

160 N.E.2d 537, 81 Ohio Law Abs. 150, 11 O.O.2d 234

George C. CRAIG, Plaintiff-Appellant, v. SPITZER MOTORS OF COLUMBUS, INC., et al., Defendants-Appellees.

Court of Appeals of Ohio, Franklin County.

May 26, 1959.

William F. Brown, Columbus, for plaintiff-appellant.

Crabbe, Garek & Sillman, Columbus, Justin L. Sillman, Columbus, of counsel, for defendants-appellees.

SKEEL, Judge, of the Eighth District, sitting by designation in the Tenth District.

This appeal comes to this court from a judgment entered for the defendants by the Court of Common Pleas of Franklin County. The judgment was entered after the court had granted defendant's motion to strike certain allegations from plaintiff's third amended petition. The plaintiff not desiring to plead further, the court dismissed his petition without trial on the merits and entered judgment for defendant.

The plaintiff filed his third amended petition seeking damages (both compensatory and punitive) for an alleged breach of warranty, which warranty, it is claimed by the plaintiff, was the inducement for entering into the contract with the defendant, Spitzer Motors of Columbus, whereby he agreed to and did purchase a 1957 Dodge automobile. It is alleged that the defendant represented that the Dodge automobile had been used as a demonstrator by one of its salesmen who left his employment after driving the automobile only 51 miles. It is further alleged that such statements were untrue and that the defendant knew they were false and that they were made purposely to deceive the plaintiff and to induce him to purchase said automobile, that the plaintiff, relying on the representations of the defendant, did purchase said automobile to his damage. The plaintiff alleges that in truth and fact, the defendant sold the automobile to one John Speelman on June 27, 1957, who used said automobile to pull a house trailer, and said automobile was repossessed in the State of Florida by the Commercial Credit Corporation on October 9, 1957. Plaintiff alleges that the automobile would have been worth $3,400 if it had been as represented, whereas, in fact, its value, when delivered to the plaintiff, was only $1,800.

Following the allegations in plaintiff's third amended petition that the defendant knowingly and purposely misrepresented the facts about the Dodge automobile for the purpose of defrauding him and that plaintiff acted upon defendant's representations, believing them to be true and was thereby defrauded, the third amended petition then recites:

'Further plaintiff says that the defendants are guilty of gross and malicious fraud and their wilful and malicious acts show a reckless indifference to the rights and safety of other persons and that he is entitled to punitive damages * * *.'

The defendant's motion to strike the above-quoted paragraph from the third amended petition was granted by the court, the court saying in a memorandum opinion, filed with the papers in the case, on August 8, 1958: '* * * and as before decided by this court, no facts are pleaded entitling plaintiff to punitive damages.' The statement 'as before decided by this court' referred to an earlier ruling on motions of the defendant seeking to strike totally different allegations from the original petition, the amended petition and the second amended petition. The ruling for the defendant on its motion to the original petition was one seeking to compel the plaintiff to elect on which of two alleged inconsistent causes of action the plaintiff would proceed. The ruling was as follows:

'Plaintiff must elect and file an amended petition accordingly. If plaintiff rescinds he may, under Section 1315.70 of the Revised Code, return the car, or offer to do so, and collect back the price already paid, including the amount he received from and was charged by Commercial Credit Corporation. * * * On the other hand, he may affirm the contract, and keep the car, and sue in law for fraud. He cannot maintain the two inconsistent causes of action.'

The motions to the amended petition and second amended petition, in which the allegations were quite similar, set out the delivery of a Chevrolet to the defendant, and $100 in cash, the balance of the purchase price being paid by a loan from the Commercial Credit Company, and alleging that the cost of the Dodge, as delivered, was $4,255, whereas in truth and fact, the value of said delivered automobile was not $4,255, but was of the value of $1,800 all to plaintiff's damage in the sum of $2,750. This part of the second amended petition set out in the motion was taken out of context and when the part of the petition which precedes it is considered, a charge of wilful fraud in the inducement was clearly set out. The ruling on the motion to strike language from the second amended petition was as follows:

'Plaintiff has waived the remedy of rescission and has elected to affirm the sale and sue for fraud. The measure of damages would be the difference between the value of the automobile if it had been a demonstrator, as represented, and the value of the automobile which plaintiff received. See Elder v Shoffstall, 90 Ohio St. 265, Syllabus 3 . Other allegations are immaterial, improper and irrelevant to the issues of the case.'

The foregoing history shows that the questions presented by the motion to the third amended petition were not the same and had not been previously decided.

The ruling of the court, striking the allegations from the third amended petition, as outlined, had the effect of confining the plaintiff to a presentation of his claim for compensatory damages. The plaintiff, not desiring to plead further, suffered judgment to be entered for the defendant. It is clear that the successive rulings, granting defendant's motions to each of the plaintiff's four petitions, whereby his claim for punitive damages was said to be inconsistent or not to be maintained where compensatory damages are claimed, had the legal effect of denying him the right to seek such damages in this action even though facts were pleaded which justified such claim with a claim for compensatory damages. If, therefore, he proceeds to trial on the merits, on the allegations remaining in his third amended petition after the motion was granted, he would be forever foreclosed from seeking punitive damages. The plaintiff claims the following errors:

'1. The granting of branch three of the motion of July 23, 1958, of defendants-appellees, for an order requiring plaintiff-appellant to strike allegations of punitive damages is contrary to law.

'2. The Court committed error in holding that the Third Amended Petition of plaintiff-appellant shows no facts to show any right to punitive damages.

'3. The Court abused its...