Hudson v. Dave McIntire Chevrolet, Inc.

• Decision Date: 29 May 1979
• Docket Number: No. 2-677-A-243,2-677-A-243
• Citation: 390 N.E.2d 179,180 Ind.App. 646
• Parties: William E. HUDSON, II, Appellant (Plaintiff Below), v. DAVE McINTIRE CHEVROLET, INC., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 179

390 N.E.2d 179

180 Ind.App. 646

William E. HUDSON, II, Appellant (Plaintiff Below), v. DAVE McINTIRE CHEVROLET, INC., Appellee (Defendant Below).

No. 2-677-A-243.

Court of Appeals of Indiana, Fourth District.

May 29, 1979.

Raymond F. Fairchild, Indianapolis, for appellant.

Steven G. Cracraft, Kothe, Shotwell, Claycombe, Hendrickson & Kortepeter, Indianapolis, for appellee.

MILLER, Judge.

Plaintiff-appellant William Hudson brings this appeal after obtaining a judgment against Dave McIntire, Inc. (McIntire) in the mount of $177.78 in an action based on the revocation of his acceptance of a new Chevrolet Vega automobile. He claims the award was inadequate. We agree and reverse.

In September, 1973 Hudson purchased the automobile from McIntire paying the full purchase price of $2944.00. On March 11, 1974 Hudson, after allegedly experiencing difficulty with defective conditions in the automobile, returned it to McIntire, giving notice he was revoking his prior acceptance due to McIntire's inability to correct a defect in the transmission and demanded return of his purchase price plus incidental and consequential damages. On March 24, 1974 Hudson filed this action against McIntire alleging that he revoked his acceptance of the automobile and demanded statutory damages consisting of his purchase price plus incidental and consequential damages. McIntire denied these allegations and filed its counterclaim for storage costs and, further, for a set-off representing the depreciation of the automobile during the period of time Hudson had its use.

On January 6, 1977, after a court trial, judgment was entered in Hudson's favor on his complaint and against McIntire on its counterclaim. The total damage awarded Hudson on his complaint was $177.78 and Hudson was ordered to deliver the certificate of title to McIntire thus enabling McIntire to sell the automobile and retain the proceeds of the sale. The judgment in its entirety omitting formal parts reads as follows:

"This cause having been taken under advisement, comes now the Court and having been duly advised in the premises, finds judgment for the plaintiff on his complaint and against the defendant in the sum of $177.78; and further finds judgment for the plaintiff on the defendant's counterclaim. The statutory lien on the motor vehicle in question now on file in the office of the Recorder of Marion County is hereby Ordered released as of this date; and it is further Ordered that the Certificate of Title for the automobile in question, properly made out and endorsed, be sent to the defendant, so that said defendant may make such disposition of the property in question as seems necessary and desirable. The costs of this action to be assessed against the defendant.

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the plaintiff recover of and from the defendant on his complaint the sum of $177.78; and further that the defendant recover nothing from the plaintiff on its counterclaim.

IT IS FURTHER ORDERED that the statutory lien on the motor vehicle in question now on file in the office of the Recorder of Marion County be released as of this date; and

IT IS FURTHER ORDERED that the Certificate of Title for the automobile in question, properly made out and endorsed, be sent to the defendant. The costs of this action to be assessed against the defendant.

all of which is accordingly done this 6th day of January, 1977."

Hudson, in his Motion to Correct Errors, challenged the damages awarded by the trial court ($177.78) as inadequate under the provisions of our Uniform Commercial Code. In this respect McIntire has confessed error in its Appellee's brief stating the judgment of the trial court is so "illogical", "inconsistent" and "confusing" that the case should be reversed. McIntire candidly acknowledges that it "lost the battle but won the war", that is, although the trial court found for Hudson on his complaint and against McIntire on its counterclaim, McIntire was permitted by the judgment to retain both the $2944.00 purchase price and, in addition, the $1200.00 proceeds from the sale of the automobile ¹ or a total of $4144.00 less on the $177.78 awarded to Hudson. However, McIntire strongly urges this Court to grant the parties a new trial on all the issues, including liability, rather than directing the trial court either to retry the issue of damages only or to enter a final judgment for Hudson with what this Court feels to be appropriate damages. See Ind. Rules of Procedure, Appellate Rule 15(N). In State v. Tabler (1978), Ind.App., 381 N.E.2d 502, a negligence action, the Third District of this Court discussed the appropriate disposition of actions in which the damages awarded by the trier of fact were clearly inadequate. Although Tabler concerned a jury verdict, we think the language of the Court is equally appropriate when the trial judge acts as the trier of fact. The court stated beginning at page 504 of 381 N.E.2d as follows "Indiana has long adhered to the rule that a new trial is proper where the damages awarded are so small as to indicate that the jury was motivated by '. . . passion, partiality, corruption or considered some improper element.' Henschen v. New York Central R.R. Co. (1945), 223 Ind. 393, 399, 60 N.E.2d 738, 740; Rondinelli v. Bowden (1973), 155 Ind.App. 582, 293 N.E.2d 812; Wynder v. Lonergan (1972), 153 Ind.App. 92, 286 N.E.2d 413; Green v. Oakley (1969), 145 Ind.App. 307, 250 N.E.2d 594.

Our brief examination of the evidence sustains the trial court's finding that the damages were inadequate. * * *

On the other hand, having correctly determined that the damages are inadequate does not necessarily mean that a trial court may properly grant a new trial on damages alone. Indiana Rules of Procedure, Trial Rule 59(E)(5) has been interpreted in Borowski v. Rupert (1972), 152 Ind.App. 9, 281 N.E.2d 502 to permit the trial court to grant a new trial limited solely to the issue of damages or, alternatively, additur. However, the court warned that a new trial on a single issue is proper only when:

'. . . it clearly appears that the issue to be retried is so distinct and separable from the others that a trial on it alone may be had without injustice.' 281 N.E.2d 502, 506.

This constraint is particularly appropriate when inadequate damages are involved since they may be conclusive proof that the jury has compromised its verdict. F & B Livery Co. v. Indianapolis Traction & Terminal Co. (1919), 71 Ind.App. 203, 124 N.E. 493.

Prior Indiana decisions articulate no specific standard by which the propriety of granting a new trial limited to damages because of an inadequate verdict is to be judged. Other jurisdictions, however, have done so and appear to have considered the concerns expressed in Borowski and F & B Livery Co.

When the issue of liability is hotly contested and the evidence and inferences are conflicting and might have supported a verdict either for the plaintiff or the defendant, a grant of a new trial limited to damages is improper. DeFreezer v. Johnson (1967), 81 Ill.App.2d 344, 225 N.E.2d 46. Or, as stated in Duncan v. Peoria Yellow Checker Cab Corp. (1977), 45 Ill.App.3d 653, 4 Ill.Dec. 290, 359 N.E.2d 1242, a limited new trial is proper only when the evidence of liability is so clear that there is no issue on that point for a second jury to retry. In Leipert v. Honold (1952), 39 Cal.2d 462, 247 P.2d 324, 29 A.L.R.2d 1185, it was held to be an abuse of discretion to grant a limited new trial where the issue of liability was close and other evidence indicated the jury was motivated by prejudice, sympathy or compromise. Pennsylvania draws a logical distinction between limited new trials for inadequate damages and those for excessive damages. In the case of the former, the liability issue must be 'free from doubt,' 'clear' and 'uncontested,' whereas in the latter, liability need only have been 'fairly determined.' The basis for the distinction is that inadequate damages '. . . inherently suggest that a compromise verdict has been returned and that the issue of liability has not been "fairly determined." ' Lambert v. PBI Industries (1976), 244 Pa.Super. 118, 366 A.2d 944. California has pointed out that, generally, only when the jury's award is substantial but still inadequate can one conclude that they erred in respect to damages only. Hamasaki v. Flotho (1952), 39 Cal.2d 602, 248 P.2d 910, 912-13. That case also referred to the disparity between the jury's award and the additur imposed by the court as a 'striking indication' that the jury could not agree on liability.

These cases lead to the conclusion that a new trial limited to damages because of an award of inadequate damages is proper only when it is clear that the verdict on liability is not the product of compromise. When liability is close and other evidence indicates the jury may have compromised, a new trial on damages alone is improper."

In the case at bar, Hudson's complaint was based on the theory of his revocation of acceptance of the Vega automobile under the provisions of our Uniform Commercial Code, IC 26-1-2-608. ² The record does not suggest, nor do the parties assert, that the complaint was tried on any other theory or issue by express or implied consent of the parties which, in effect, would have enabled this Court to treat issues not actually pleaded as if they had been raised in the pleading. Ind. Rules of Procedure, Trial Rule 15(D). The remedies afforded the buyer who properly revokes acceptance are outlined in IC 26-1-2-711 and IC 26-1-2-715 which read in pertinent part:

2-711: (1) Where . . . the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract...