Dixon v. Burtrum

• Decision Date: 13 May 1953
• Docket Number: No. 7130,7130
• Citation: 258 S.W.2d 24
• Parties: DIXON v. BURTRUM.
• Court: Missouri Court of Appeals

Page 24

258 S.W.2d 24

DIXON v. BURTRUM.

No. 7130.

Springfield Court of Appeals, Missouri.

May 13, 1953.

Max Patten, Jr., and Roy Coyne, Joplin, for appellant.

Dalton DeShazer, Joplin, for respondent.

VANDEVENTER, Presiding Judge.

This is a suit for damages arising out of the sale of an automobile. It is alleged that plaintiff bought an automobile from defendant and that defendant represented it to be new, when as a matter of fact, it was a used automobile, and not as represented. Actual damages were prayed for in the sum of $750 and punitive damages in the sum of $1,500. The answer admitted the sale of the automobile and denied everything else. The jury's verdict was for $50 actual and $500 punitive damages.

Plaintiff's evidence showed that on November 12, 1950 (Sunday) between 8 and 9 o'clock, at night, she and her husband went to the place of business of defendant to buy a new car. They first met a night man and shortly thereafter the defendant came in. He showed them two cars and assured them that they were new. One was a bronze colored car and the other black. He told them that the black car had been ordered for a G. I., who wanted it equipped with radio, heater, undercoating, new seat covers and a sun visor. That before it arrived the G. I. had come in and informed defendant that he had re-enlisted in the Army, asked if it was all right not to take the car and defendant had told him it was all right, that he would sell it to someone else.

The speedometer registered six-tenths of a mile. Upon inquiry by plaintiff and her husband, the defendant stated the six-tenths of a mile was the distance traveled by the car to a motor transport and after it arrived in Joplin from the transport to the show room, that six-tenths was the actual mileage. There was brown paper on the floor between the seats as in new cars and the front mat was new as was also the seat covers. The next day, November 13, plaintiff and her husband returned and plaintiff paid $1,950 for the car and $39 sales tax, with a check in the total sum of $1,989. Plaintiff had it insured as a new car which she then believed it to be. After the car was purchased, they sold to defendant a 1937 Studebaker for $50. Defendant paid them for the Studebaker with a check for $89, which included the $50 purchase price and a return of the $39 paid him for sales tax. The husband of plaintiff, when he went to purchase her license, paid the sales tax himself and $2 to transfer the license from the Studebaker to the Ford that she had purchased. They believed the car was new and did not know otherwise until some months later. Within three months after the purchase, they discovered one of the front wheels was out of line and was wearing the tire. They took it to mechanics three times to get this defect remedied but were not successful. It was taken back to defendant several times because of a leak near the windshield wiper. Still months later, they removed the seat covers and discovered in one of the cushions, a hole about the size of a half dollar and that the upholstering underneath the seat covers was soiled. Plaintiff's evidence further showed the car in question was worth $200 or $250 less than a new car of the same kind.

The undisputed evidence shows that it was in fact a used car. That it had been bought new by one F. A. Childers on June 28, 1950, nearly five months before, from another dealer, that it had been run a minimum of 5000 miles and that Mr. Childers had not turned the speedometer back when he sold it to the defendant September 17, 1950 for $1,750. At the time she purchased the car, plaintiff received a yellow slip of paper which she had signed and which she thought was a carbon copy of an original retained by the defendant. At the trial defendant presented the white copy which was not an original and was not actually signed by plaintiff, although her name appeared thereon. The white copy contained the following which was not on the purported carbon copy:

'It is understood that Burtram Brothers Motor Company of Joplin, Missouri, is not a new automobile dealer and it is therefore impossible to secure a manufacturer's certificate of title * * *. I further state that I have read the above statements and understand them to the best of my knowledge and agree to the terms set forth.'

Defendant testified that he never personally set the speedometer back but it could have been set back by his employees five, six or seven thousand miles.

Upon cross-examination, the defendant testified that he had these forms printed at the Joplin Printing Company, had both of them in his office at the time of the sale and that plaintiff had signed each of them. That he had on hand some of the old forms and on this occasion had probably used one old form and one new form.

An employee of Joplin Printing Company testified that neither of the forms had been printed by that company.

Attached to the file in this case are two affidavits stating that the case was submitted to the jury and after some deliberation, they returned a verdict for plaintiff for $500 punitive damages and no actual damages. It is shown by these affidavits, one by the trial judge and another by counsel for defendant, that the court, in the presence of counsel for both sides, orally told the jury that they could not allow plaint...