Feliciano v. Moore
| Decision Date | 10 April 1979 |
| Citation | 18 O.O.3d 176,412 N.E.2d 427,64 Ohio App.2d 236 |
| Parties | , 18 O.O.3d 176 FELICIANO et al., Appellants, v. MOORE et al., Appellees. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
In an action for fraud in the sale of personal property, when determining whether the purchasers were justified in relying upon the representations of the seller and his agents, a jury should be given the opportunity to consider the ability and capacity of the buyers to investigate the representations of the seller and his agents, as well as the circumstances surrounding the sale.
Leda C. Hartwell, Columbus, Harris & Hewitt and William B. Hewitt, Akron, for appellants.
Thompson, Swope, Burns & Biswas and James C. Thompson, Reynoldsburg, for appellee Larry Moore.
Ira Moore, pro se.
This case is before us for the second time, the first being upon an appeal of a judgment of the Franklin County Municipal Court dismissing defendant-appellee J.D. Car Corporation. This appeal is from a judgment of the Franklin County Municipal Court, sustaining motions to dismiss by the defendants at the end of plaintiffs' case.
On March 12, 1977, plaintiffs, husband and wife, sought to buy a used truck to move their family from Columbus, Ohio to Florida. Plaintiff Miriam Feliciano was born in Cuba and has been blind since the age of nine. Her husband, Francisco, was born in Puerto Rico and did not read or write English on March 12, 1977. Francisco worked as a machine operator and as a laborer in factories until he was disabled in 1975. Miriam supported the family since that time by working in a food-concession stand at the Ohio State Highway Patrol building. On March 12, 1977, they went to one of J.D. Car Corporation's two locations, at Westerville Road in Columbus, and met defendant Larry Moore. Larry Moore was advised that plaintiffs were looking for a pickup truck to move their belongings to Florida and to be later used for their personal needs. Larry Moore took plaintiffs to Buckeye Lake to look at a truck. Plaintiffs said that they could not afford it but, after some discussion, they apparently agreed to purchase that truck for $1,000. When Miriam asked Larry Moore if he was sure that the truck would be in good shape to make the long trip, Larry said, "Oh, don't worry, everything was there is guaranteed."
On Monday, Larry Moore called Miriam and told her that the price would be $1,500, and she told him she could not afford to pay more than $1,000. On the following Wednesday, Larry Moore again called Miriam to indicate they had some "new" used trucks. Miriam told Larry Moore that her husband would come to look at the trucks and asked him to help Francisco because he did not read English. Larry Moore told her not to worry, that he
Francisco drove to the Westerville lot and looked at a 1967 Chevrolet pickup truck which was parked on the premises. He testified he looked at the truck for three to four minutes but did not examine it, open the hood, sit in it, or test-drive it. However, defendant Ira Moore, the titled owner of the truck, testified that Francisco looked under the hood and was given a ride in the truck, at his request. Ira Moore further testified that during the test drive, Francisco told him he needed a truck to drive to Florida. Francisco agreed to purchase the truck for $850. Larry Moore told Francisco to go with his uncle, Ira Moore, to get the cash and transfer the certificate of title. After Francisco had obtained the cash, he gave it to Larry Moore, who gave Francisco a yellow certificate of title, telling him that his guarantee "was in the paper." Francisco testified that he bought the truck because Larry Moore told him the truck was guaranteed and that he believed the guarantee was on paper. He believed the guarantee was for 30 days. Miriam testified that she gave her husband the bankbook because she trusted Larry Moore.
When Francisco drove the truck from defendant J.D. Car Corporation's lot, it travelled a distance of about seven blocks and stopped. Plaintiffs attempted to cause defendants to repair the truck, which they promised to do several times, but never did. Plaintiffs' money was not returned to them. Miriam testified that when she talked to Larry Moore after the truck broke down, he said to her that no one could help her because she was blind. The parties stipulated that there was no warranty or guarantee in writing.
A mechanic for the state of Ohio testified for plaintiffs, as an expert, that upon examination of the truck at plaintiffs' request after it broke down, he found that the engine was a car engine and that it was installed sideways and welded directly to the frame of the truck with no motor mounts. He also testified that neither the gas gauge nor the oil gauge was working; that there was bad rust under the hood; and that because the linkage was too short, the truck would run only in first gear. Other testimony indicates that Larry Moore welded motor mounts to the truck and that Ira Moore actually installed the motor.
James Dimitroff, the owner of J.D. Car Corporation, testified he operated two car lots-one at the Westerville Road site, and one on Cleveland Avenue. He further testified that most of the cars and trucks sold from the Westerville Road site were sold "as is," which meant they had no warranty. He also testified there was a book at the Westerville Road site stating which cars had warranties. There was further testimony that indicated that the manager of the Westerville Road lot was considered, for tax purposes, as an independent contractor, and for management purposes, as an employee of the J.D. Car Corporation. Larry Moore apparently was working for said manager, and Ira Moore, who owned the truck in question, was not employed by J.D. Car Corporation.
There is substantial testimony that indicates plaintiffs thought they were purchasing a truck from J.D. Car Corporation, and it was not until Miriam's contact with Larry Moore after the truck broke down that they realized neither he nor J.D. Car Corporation had owned the truck. In fact, at their first visit to the Westerville Road lot, Larry Moore referred to the premises as "my place." Miriam testified that they bought cars from dealers because there is a chance of "things working better."
Following the incident with the truck, plaintiffs did move to Florida. They offered evidence indicating they had spent several hundred dollars that they would not have spent if they had been able to use the Chevrolet truck to move.
The single assignment of error is as follows:
"The trial court erred in directing a verdict against the plaintiffs and in favor of all three defendants."
Civ.R. 50(A)(4) provides, as follows:
In ruling on defendants' motions for a directed verdict (the trial court referred to them as motions to dismiss), the court applied the general rule that the right of a purchaser of personal property to rely upon material statements of the vendor carries with it a duty to investigate the property. While there is no Ohio case clearly dispositive of the issue before us, it is clear that the development of the law with respect to fraud and deceit has been a balancing of the following: preventing a perpetrator of fraud with benefiting from his acts, with encouraging the exercise of reasonable prudence in transactions involving the sale of personal property. Defendants' reliance upon Traverse v. Long (1956), 165 Ohio St. 249, 135 N.E.2d 256, in support of the trial court's judgment, is misplaced. Traverse...
To continue reading
Request your trial
-
Bavelis v. Doukas (In re Bavelis)
...age, and mental and physical condition of the parties, and their respective knowledge and means of knowledge." Feliciano v. Moore, 64 Ohio App.2d 236, 412 N.E.2d 427, 430 (1979) (internal quotation marks omitted). Here, the most salient facts are the apparent close friendship between Mr. Ba......
-
Bender v. Logan
...condition of the parties, and their respective knowledge and means of knowledge." ’ " Mar Jul at ¶ 62, quoting Feliciano v. Moore, 64 Ohio App.2d 236, 241, 412 N.E.2d 427 (1979), quoting 37 American Jurisprudence 2d [1968] 330, 332, Fraud and Deceit, Section 248. {¶ 56} Additionally, "[t]he......
-
W.D.I.A. Corp. v. Mcgraw-Hill, Inc.
...and means of knowledge." Finomore v. Epstein, 18 Ohio App.3d 88, 90, 481 N.E.2d 1193, 1196 (1984), quoting Feliciano v. Moore, 64 Ohio App.2d 236, 241, 412 N.E.2d 427 (1979). 41. The evidence at trial proved that W.D.I.A. did justifiably rely on the material misrepresentations by Rothfeder ......
-
Columbia Gas Transmission Corp. v. Ogle, C2-96-839.
...111 Ohio App.3d 326, 340, 676 N.E.2d 151 (1996); Finomore v. Epstein, 18 Ohio App.3d 88, 481 N.E.2d 1193 (1984); Feliciano v. Moore, 64 Ohio App.2d 236, 412 N.E.2d 427 (1979). A person has no right to rely on misrepresentations when the true facts are equally open to both parties. Aetna Ins......