Johnson v. Allen

• Decision Date: 01 December 1969
• Docket Number: No. 25068,25068
• Citation: 448 S.W.2d 265
• Court: Missouri Court of Appeals
• Parties: Harden M. JOHNSON, and Martha Johnson, Appellants, v. Forrest ALLEN, d/b/a Allen's Motor & Transmission, Respondent.

Page 265

448 S.W.2d 265

Harden M. JOHNSON, and Martha Johnson, Appellants, v. Forrest ALLEN, d/b/a Allen's Motor & Transmission, Respondent.

No. 25068.

Kansas City Court of Appeals, Missouri.

Dec. 1, 1969.

Philip C. Ehli, Kansas City, Max Von Erdmannsdorff, North Kansas City, for appellants.

Sheffrey, Ryder & Skeer, by Leonard Rose, Kansas City, for respondent.

HOWARD, Presiding Judge.

This is a suit for actual and punitive damages for fraud in the installation of an improper transmission in plaintiffs' automobile. Trial to a jury resulted in a verdict and judgment for the plaintiffs for actual damages in the amount of $700.00 and for punitive damages in the amount of $10,000.00. On motion, the trial court set aside the judgment for plaintiffs and entered judgment for defendant and in the alternative sustained defendant's motion for new trial on the grounds, among others, that the 'Verdict was so excessive that it indicates bias and prejudice of the jury against defendant.' Plaintiffs have duly appealed from this action. We shall refer to the parties as they appeared below.

On September 8, 1964, Mrs. Johnson took the 1955 Buick Special automobile, owned by herself and her husband, to defendant's place of business in North Kansas City, Missouri, because it had a leak in the transmission. She talked to defendant's employee, Mr. Tongue, who was in charge. It developed that defendant owned several places of business wherein he engaged in repairing and installing transmissions. Mrs. Johnson was advised that it would probably cost $35.00 to $40.00 to repair the leak but she and her husband were later advised that the installation of a new or rebuilt transmission was necessary and this would cost more money. A rebuilt transmission was installed and the bill was $292.23. Payment in this amount in cash or its equivalent was required and defendant's employee refused to take a personal check. Mrs. Johnson secured a bank money order payable to Allen's Motor and Transmission Company, paid the bill and drove away in the car. In the matter of a few blocks she realized that something was wrong with the car. It had a noise in the rear end that it had not had before and it operated differently than it had before--it seemed to 'hang up' and did not want to go around the corner. She immediately drove back to defendant's transmission shop and called her husband. When Mr. Johnson arrived, he felt under the car and came up with transmission fluid on his hand. After considerable conversation, some of it heated, a new seal was placed in the transmission and Mr. Johnson and one of the mechanics drove the car. When they returned, there was further heated discussion and defendant's employees, including Mr. Tongue, assured the plaintiffs that everything was all right with the car; that the noise was caused by a faulty muffler system and that the new seal would stop the leak. During these events, Mrs. Johnson had picked up the bank money order from the desk in the office but upon these assurances, she returned the money order to defendant's employee and she and her husband left in the car. The transmission continued to leak and the car did not operate properly. Plaintiffs unsuccessfully tried to contact defendant over a long period of time to complain about the car but were unsuccessful in talking to defendant. However, each of them were successful in getting 'cussed out' by defendant's employees. Plaintiffs finally succeeded in talking to defendant but the matter was not settled and this suit followed.

At the trial defendant admitted that the wrong transmission had been installed in plaintiffs' car. It appears that 1955 Buicks used two sizes of transmissions. The Buick Special owned by the plaintiffs took the smaller size transmission but the larger size transmission had been installed in plaintiffs' car and it was an inch to an inch and a half longer than the proper transmission. This resulted in the rear end of the automobile being pushed back farther than it should be which could cause the car to operate improperly.

In view of the fact that the trial court set aside the verdict and judgment for plaintiffs and entered judgment for defendant, we view the facts in the light most favorable to plaintiffs and our foregoing statement of facts is made in this light. For the purposes of this opinion, it is unnecessary to recite the great volume of minutely detailed evidence contained in the transcript.

On this appeal, plaintiffs contend that they made a submissible case in fraud and that the trial court erred in settin aside their judgment.

The elements of actionable fraud have been many times set forth in the opinions of our appellate courts. These elements are: (1) A representation; (2) Its falsity; (3) Its materiality; (4) The speaker's knowledge of its falsity or ignorance of its truth; (5) His intent that it should be acted on by the person and in the manner reasonably contemplated; (6) The hearer's ignorance of its falsity; (7) His reliance on its truth; (8) His right to rely thereon; and (9) His consequent and proximate injury. See Powers v. Shore, Mo., 248 S.W.2d 1; Williams v. Miller Pontiac Company, Mo.App., 409 S.W.2d 275; and 37 C.J.S. Fraud § 3, page 215.

It is well settled that the representation required to establish a cause of action for fraud need not be made in so many words. It can be inferred from all of the circumstances surrounding the transaction. See Williams v. Miller Pontiac Company, Mo.App., 409 S.W.2d 275; Bolten v. Colburn, Mo.App., 389 S.W.2d 384; and Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W.2d 1083.

From the foregoing statement of facts and considering all of the circumstances and inferences to be drawn therefrom, we believe the jury could have found that the defendant, through his employees, represented that a proper, rebuilt transmission had been installed in plaintiffs' car; that the new seal put in the transmission would seal itself and cure the leak and that the plaintiffs' complaints resulted from a faulty muffler system and worn out shock absorbers and not from the transmission installed by defendant. On the trial it was admitted that the representation as to the installation of a proper transmission was false and the jury could well have found from the evidence that the things about which plaintiffs complained were the result of the installation of the improper transmission and that the new seal installed by defendant was not capable of sealing itself in the future. (That this constitutes a representation of present fact and not an expression of opinion or promise of future action, see Doll v. Purple Shoppe, 230 Mo.App. 256, 90 S.W.2d 181, and National Theatre Supply Co. v. Rigney, Mo.App., 130 S.W.2d 258, 263, and authorities cited therein.) These representations were material because the installation of a proper transmission and one which would permit the automobile to operate properly was the very thing for which the plaintiffs paid their money. The jury could reasonably find that these representations were made by defendant's employees knowing them to be false or knowing that they had no knowledge whether they were true or false. Likewise, the jury could reasonably find that these representations were made to plaintiffs for the very purpose of having them rely thereon and take their car and leave their money in spite of their doubts and questions caused by the difference in the operation of the car before and after the work was done. The evidence is amply sufficient to support the jury's finding that the plaintiffs were ignorant of the falsity of these representations and relied on them because of their lack of knowledge of mechanical facts. Because of this lack of mechanical knowledge on the part of plaintiffs and the fact that defendant held himself and his employees out to be knowledgeable in the field of automatic transmissions, plaintiffs had a right to rely on such representations and their damage flowed therefrom to their consequent and proximate injury.

We therefore conclude that plaintiffs' evidence established each and every one of the elements necessary to prove a cause of action in fraud; that the jury was justified in so finding and that the trial court erred in setting aside the judgment for plaintiffs and entering the judgment for defendant.

The parties have not cited and our own research has not revealed any case where...