Critcher v. Rudy Fick, Inc.

• Decision Date: 14 July 1958
• Docket Number: No. 2,No. 46095,46095,2
• Citation: 315 S.W.2d 421
• Parties: Grace CRITCHER, Appellant, v. RUDY FICK, Inc., Respondent
• Court: Missouri Supreme Court

Page 421

315 S.W.2d 421

Grace CRITCHER, Appellant, v. RUDY FICK, Inc., Respondent.

No. 46095.

Supreme Court of Missouri, Division No. 2.

July 14, 1958.

William C. Partin, Filbert Munoz, Charlotte P. Thayer, Kansas City, for appellant.

Robert G. Oberlander, Kuraner, Freeman, Kuraner & Oberlander, Walter A. Raymond, Kansas City, for respondent.

STOCKARD, Commissioner.

In plaintiff's suit against Rudy Fick, Inc., for actual and punitive damages for selling her a used car when representing it to be a new car the jury returned a verdict for defendant and plaintiff has appealed. The prayer seeks damages totaling more than $7,500. The parties will be referred to as in the trial court.

On November 14, 1952, plaintiff purchased from defendant a 1952 Ford automobile which had been driven approximately 12,000 miles. Her evidence was to the effect that defendant's salesman represented it to her as a new automobile and that she intended to buy and thought she was buying a new automobile. Defendant's evidence was to the effect that plaintiff negotiated for and knowingly purchased a used automobile. The 'base price' of the automobile was $1,652.98. Additional charges were made as follows: Transportation, $85; preparation and conditioning, $15; Federal excise tax, $141; standard equipment, $27.33; accessories, $253.93. Defendant admits that it obtained the automobile from a car rental agency and that before it sold the car to plaintiff it changed the speedometer to register 'zero miles.' The price was substantially what would have been charged for the same automobile if new, and defendant admits that the charges made for federal excise tax and for transportation costs were not proper, but it contends that although these charges were erroneous they were innocently made by a girl 'car-biller.' Some if not most of the accessories for which additional charges were made were not installed on the automobile by defendant but were on the car when it was acquired from the rental agency. Subsequent to the sale plaintiff as given certain 'papers' which included an 'Authorized Ford Dealer's Service Policy and Warranty' and a 'Battery Warranty and Adjustment Certificate,' both of which described the automobile as 'new.' These 'papers' also included the mortgage and title which described the automobile as 'used.' Defendant contended that these 'papers' were delivered to plaintiff three or four days after the sale, but plaintiff contended that she did not actually receive them for several months.

On this appeal plaintiff asserts that reversible error resulted because of improper argument of defendant's counsel. We shall set forth sufficient parts of the oral argument to show those portions to which objection is now made.

After a few opening remarks, counsel for defendant stated that '* * * the day I can't believe that twelve men can come in here and decide a fixed-up, cooked-up, and half-baked case like this, that is the day I am going to turn in my license and stop practicing law. I couldn't live with myself.' Defense counsel then proceeded to classify plaintiff's testimony into what he termed 'lies,' and in commenting on the fact that plaintiff did not call as a witness H. O. Smith, the former employee of defendant who sold the automobile to her, but who was called by defendant and who did testify, stated: 'H. O. Smith, she wants to crucify him. Grace [plaintiff] was down to see him, Mr. H. O. Smith, and Partin [one of plaintiff's counsel] was down to see him, and if Partin had wanted you to know the truth he would have brought him in. But it looks to me like he couldn't get H. O. Smith to go along with this frame-up, and it looks like Grace went down alone to talk to Mr. H. O. Smith, and she said she did. So they left him alone. They couldn't get him to spring for them.' The argument then continued as follows: '* * * She wants to say that they [defendant] cheated. Is it consistent with cheating to put a chattel mortgage that says 'used,' an invoice that says 'used,' a title that shows obviously that it is a used car, in the same envelope with their new car warranty and the battery warranty? Is that consistent with cheating? Could we be trying to lead somebody into believing that this was a new car and put them in the same envelope before Christmas '52? I went all through night law school with this fellow (indicating) and that one (indicating), and that one (indicating) is blushing.

'Mr. Munoz: [plaintiff's counsel] If your Honor please, I resent that remark. I don't believe that I am blushing. And I want to know if you are actually accusing us of falsifying the issues in this case?

'Mr. Oberlander: These fellows are smart and clever. I know. I went to law school with them. They wait until January of '55, better than two years after, when this lawsuit commenced. All of the mishmush about new or used until '55, because salesmen roam around. You heard them here. They go from one place to another. Maybe we can't find them. She drives the car thousands of miles in the meantime, and she has since discovered this big, fat fraud that they are talking about, and they don't get around to filing suit until '55. Then he takes the legal steps to get this invoice, and he looks on here, and, lo and behold, transportation charge, excise tax, and he says, 'Looky here, Fil [one of plaintiff's counsel], looky here boys----."

'Mr. Munoz: I am going to object to that. There is no evidence that he said anything like that, and I ask that the court instruct the jury to disregard it.

'The Court: I think you asked for it a minute ago, but if you object to it, I will instruct the jury to disregard it. Stay within the record. [A thorough search of the record discloses nothing to warrant the comment that plaintiff's counsel 'asked for it.']

'Mr. Oberlander: All right. I will stay within the record. And I know that they know, sure, this is some girl car-biller's mistake, or maybe they did jack the price so that they could get it financed. Sure, it says here 'used.' That is tough. It says 'used' all over them. But, looky here, here is a bartender on one hand and a corporation on the other hand, and we are going to rub the noses in a corporation. We get a jury in here, and where is their sympathy going to be? They will be looking for an excuse to rap Rudy Fick.

'Mr. Munoz: If your Honor please, I am objecting to that. All of this is to prejudice the jury, not only against the plaintiff, but the attorneys--trying to steal money away from the defendant. He made it before during the course of the argument of the case, and I strongly resent any personal attack upon me by this man. I used to think he was a lawyer of integrity, but I don't any more.

'The Court: Please stay within the record, and please proceed.

'Mr. Oberlander: I thought you wanted a fight in this case.

'Mr. Munoz: I want to fight upon the issues in the case and not upon any innuendo.

'Mr. Oberlander: Have you got a bartender on one side, and have you got a corporation on the other side, and have you got--did you go out of your way to let this jury know that there is a net worth here of $266,000.00? And didn't you tell this jury right now about this big corporation?

'Mr. Munoz: Your Honor knows that, and Mr. Oberlander knows, and the jury should know, that we are entitled to protect our client to the best of our ability, and the law provides that if there is fraud that we are entitled to show the net worth of our defendant, and the law provides that if we show fraud, that we are entitled to punitive damages, and if we prove our case, the jury is free to render a verdict on any amount that they want on punitive damages, and simply because we are trying to protect our clients. I have never in the eight years that I have practiced law--and he hasn't been practicing law any longer--heard any lawyer, with inexperience or with experience, make such a personal, bitter attack against another lawyer.

'The Court: Proceed.

'Mr. Oberlander: Well, as I was saying before I was so rudely interrupted, they must be aware of the fact that they have a bartender on the one side and a corporation on the other. I think that is in the record. But I don't believe you are going to be governed by sympathy. They would like for you to be. What does it look like to you, when every witness who came into this court room said she got these papers before March 26, 1953, and she says after that, and for a very good reason. Now what does that look like to you? He wants to know if I am attacking their honesty and integrity, and my answer is, 'yes, I am.' He is attacking mine. But he hasn't got anything to talk about.

* * *

* * *

'Do you remember Melvin Friedman and Claude Hartman, their witnesses? They were brought in here to say one thing--and told to say that the difference between a '52 Ford with twelve thousand miles and a '52 Ford stinking new, was $250.00 at that time. That is all they have been told to say. Partin didn't have them ready on anything but seventeen-fifty for twelve thousand miles. So on cross-examination, I got the truth. [There then followed an argument totally unrelated to what the witnesses said concerning the difference in value of a new and used Ford, but it pertained to answers given by Friedman and Hartman on cross-examination as to how they would show a car sold by them was used and not new.]

* * *

* * *

'Partin brought this kid in here from Ficks, and the ream of invoices, to prove that they sold this Ford at the new Ford price. That sharp. The jury would think it new and forget that awful word 'used' in all of these papers. 'Maybe we can get that out of their minds.'

* * *

* * *

'Now, why do you suppose integrity, honesty? Why do you suppose he got this telephone man in here? I will tell you why. Big corporation, sympathy, prejudice. Anything, but for God's sake, take that jury's mind off of her lies and the word 'used.' Make them forget what Oberlander got her witnesses to...