Jerry Alderman Ford Sales, Inc. v. Bailey, 871A148

• Decision Date: 05 April 1973
• Docket Number: No. 871A148,871A148
• Parties: , 12 UCC Rep.Serv. 442 JERRY ALDERMAN FORD SALES, INC., Defendant-Appellant, v. Mary Lou BAILEY, Plaintiff-Appellee, Central Indiana Truck Equipment Corporation, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 617

294 N.E.2d 617

154 Ind.App. 632, 12 UCC Rep.Serv. 442

JERRY ALDERMAN FORD SALES, INC., Defendant-Appellant, v. Mary Lou BAILEY, Plaintiff-Appellee, Central Indiana Truck Equipment Corporation, Defendant-Appellee.

No. 871A148.

Court of Appeals of Indiana, Second District.

April 5, 1973.

Henry J. Price, Jon D. Noland, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for defendant-appellant.

John A. Young, Thomas P. Ledgerwood Rocap, Rocap, Reese & Young, Indianapolis, for appellee, Mary Lou Bailey.

James C. Clark, Clark & Clark, Indianapolis, for appellee, Central Indiana Truck Equipment Corp.

ON APPELLANT'S PETITION FOR REHEARING

SULLIVAN, Judge.

Appellant Alderman's Petition for Rehearing asserts ten separate specifications of error in the decision and opinion heretofore issued December 27, 1972. See Alderman v. Bailey (1972 Ct.App.), 291 N.E.2d 92. We deem two of the specifications worthy of comment in this opinion on rehearing.

Appellant Alderman first claims that:

'The Court erred in affirming the judgment for punitive damages and in holding that appellee's (Mrs. Bailey's) evidence of 'malice or oppressive conduct' was not precluded by her failure to plead fraud with specificity since such evidence solely involved acts relating to the original sale of the truck and was not related to the wrongful act of conduct complained of in Mrs. Bailey's amended complaint.'

Implicit in Alderman's contention is the assumption that the only evidence which could prompt an award of punitive damages was evidence with respect to the original sale of the truck and with respect to negotiations prior to that sale. Such is not the case. The plaintiff alleged that it was the refusal to redeliver the truck by defendant-Alderman after it had been brought in for repair which was malicious and oppressive. The jury was under the circumstances, entitled to so find.

It is true that evidence relative to defendant's state of mind at and prior to the sale does not directly bear upon the defendant's state of mind at the time defendant failed to return the vehicle to plaintiff, the latter time being the controlling and crucial time as fixed by the complaint with respect to the allowance of punitive damages. This is not to say however, that such evidence is inadmissible. Evidence as to defendant's state of mind at and prior to sale might well justify a reasonable inference that such malice and oppressive conduct constituted a continuous state of mind and but a single course of conduct--that the entire transaction was a single transaction culminating in the oppressive and malicious refusal of defendant to return plaintiff's truck.

Alderman secondly claims:

'The Court erred in upholding the trial court's implied warranty instruction and in holding that the jury could have refused to give force and effect to Alderman's disclaimer of implied warranties since (a) the validity of such a disclaimer is a question of law for the court to determine . . .'

The narrow question involved in this portion of the Petition for Rehearing is whether the trial court determined that Alderman's disclaimer was sufficient or insufficient to disclaim all implied warranties. This being so, it is not necessary to ascertain whether the court's determination of the 'conspicuousness' of the disclaimer was a...