Jones v. West Side Buick Co.

• Decision Date: 05 May 1936
• Docket Number: No. 23835.,23835.
• Citation: 93 S.W.2d 1083
• Parties: P.C. JONES, RESPONDENT, v. WEST SIDE BUICK COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

93 S.W.2d 1083

P.C. JONES, RESPONDENT, v. WEST SIDE BUICK COMPANY, A CORPORATION, APPELLANT.

No. 23835.

St. Louis Court of Appeals. Missouri.

Opinion filed May 5, 1936.

Appeal from Circuit Court of City of St. Louis. — Hon. Eugene J. Sartorius, Judge.

AFFIRMED.

E.J. Brennan and Wilder Lucas for appellant.

Nagel, Kirby, Orrick & Shepley and Everett Paul Griffin of counsel.

While fraud may be inferred from facts and circumstances, it is never to be presumed without or against the evidence. And where the transaction under consideration may as well consist with honest and fair dealing as with a fraudulent purpose, it is to be referred to the better motive. Jones v. Nichols, 280 Mo. l.c. 664; Walsh v. Walsh, 285 Mo. 181, l.c. 206; Garesche v. McDonald, 103 Mo. 1. Appellant undertook substantial repairs on the car and if the turning back of the speedometer could be construed as a representation, which we doubt, then the action of appellant in turning back the speedometer and so to say giving itself credit for the repairs made was justified and not fraudulent, particularly in the face of the prevailing custom to turn back speedometers even without first repairing a car. To make out a case it also was necessary for plaintiff to show that not only was the representation made to him false, but that he relied upon same and would have acted differently had he known the true state of facts. McNealy v. Bartlett, 123 Mo. App. 58, l.c. 61; Wann v. Scullin, 210 Mo. 429, l.c. 487. In ordinary cases a recovery of exemplary, punitive, or vindictive damages will not be allowed in an action of deceit, but such damages may be allowed where the wrong involves some violation of duty springing from a relation of trust or confidence, or where the fraud is gross or the case presents other extraordinary or exceptional circumstances clearly indicating malice and willfulness, as where it appears that defendant acted with a deliberate intent to injure plaintiff. 27 Corpus Juris, Paragraph 265 (Frauds); Hoffman v. Gill, 102 Mo. App. 320; Zenlick v. A.B.C. Auto Sales & Inv. Co., 60 S.W. (2d) 649; Luickhart v. Miller et al., 48 S.W. (2d) 867; Finke v. Boyer, 56 S.W. (2d) 372; Laughlin v. Hopkinson, 292 Ill. 80, 126 N.E. 591; Williams v. Detroit Oil etc. Co., 114 S.W. 167 (Tex.); Long v. McAllister, 118 A. 506 (Pa. Sup.). There was no gross fraud, no relation of trust or confidence, or any exceptional or extraordinary circumstances present indicating malice and willfulness at all. The definition of malice as "the intentional doing of a wrongful act without just cause or excuse" means that the party who is supposed to have perpetrated the fraud not only intended to do the act which is ascertained to be wrongful, but that he knew it was wrongful when he did it. McNamara v. St. Louis Transit Co., 182 Mo. 618. Trial as well as appellate courts have the same power of supervision over punitive damages as they have over actual damages. State ex rel. v. Ellison, 268 Mo. 225, l.c. 235. Exemplary damages should bear some reasonable proportion to the actual damages sustained once substantial compensatory damages have been awarded by a jury. Hunter v. Kansas City R.R. Co., 213 Mo. App. 233; Boyles v. Burnett, 213 Mo. App. 288; Pendleton v. Norfolk & W. Ry. Co., 95 N.E. 941 (W. Va.). Only in cases where nominal actual damages have been assessed by a jury have comparatively large and disproportionate awards of punitive damages been allowed to stand. Lampert v. Drug Co., 238 Mo. 409; Davis v. Ry. Co., 192 Mo. App. 419; Favourite v. Cottrill, 62 Mo. App. 116.

Thompson, Mitchell, Thompson & Young, Richmond C. Coburn and R. Forder Buckley for respondent.

(1) The plaintiff made a case for the jury. (a) Misrepresentations may be made by act as well as by word. Bank of North America v. Crandall, 87 Mo. 208; Stout v. Caruthersville Hardware Co., 131 Mo. App. 520, 110 S.W. 619; Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Leonard v. Springer, 197 Ill. 532, 64 N.E. 299; 1 Bigelow's Law of Fraud, p. 467; 26 C.J., p. 1067, sec. 9. The turning back of the speedometer was a misrepresentation of fact. Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 175 So. 708. (b) A misrepresentation as to the mileage driven in the sale of a secondhand automobile is a material misrepresentation. Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; Fosburg v. Couture, 126 Wash. 181, 217 Pac. 1001; Mooney v. Cyriacks, 185 Cal. 70, 195 Pac. 922 (Cal. Sup.). (c) If it was a custom for motor car dealers to turn back the speedometers of secondhand cars before resale, such a custom is not a defense to an action for fraud. A custom peculiar to a certain business is not binding upon a party who is not engaged in that business unless it is shown that he had actual knowledge of the existence of the custom. Manzke v. Goldenberg, 149 Mo. App. 12, 129 S.W. 32 (St. L.C. of App.); 17 C.J. 458. A custom which is unreasonable or is opposed to good morals or the common or statutory law will not be recognized. Sherrill-Russell Lumber Co. v. Krug Lumber Co., 216 Mo. App. 1, 267 S.W. 14 (St. L.C. of App.); Fuller v. Robinson, 86 N.Y. 306; American Coal Co. v. De Wese, 30 Fed. (2d) 349; Wilson v. Jernigan, 57 Fla. 277; Young v. McKittrick, 267 Ill. App. 267; 17 C.J. 469. Evidence of the custom of the defendant to set back speedometers is admissible not for the purpose of justifying the act, but for the purpose of proving the defendant's fraudulent intent. Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708. (d) Where the plaintiff has proved fraud either by direct or circumstantial evidence and the defendant does not testify in the case, an unfavorable presumption is created against the defendant on the merits of the case. Howard v. Zweigart, 197 S.W. 46; Moore v. Smith, 255 S.W. 1071 (St. L.C. of App.). (e) In an action for fraud, it is not necessary for the plaintiff to testify directly that he relied on the representation and that he would have acted differently had he known the true state of facts. Weller v. Meadows, 272 S.W. 85 (K.C.C. of App.); Birch Tree State Bank v. Dowler, 151 S.W. 784 (Sp. C. of App.). Where the plaintiff is ignorant of the real facts and has no ready means of information as to the subject-matter of a material representation, the law will presume as a matter of fact that he relied on the same. Hicks v. Stevens, 11 N.E. 241 (Sup. Ct. of Ill.); Ellis v. Jones, 8 Pac. (2d) 933 (Cal. App.); 27 C.J., p. 49, sec. 179. The plaintiff had a right to rely upon the defendant's representation with reference to mileage. Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; Fosburg v. Couture, 126 Wash. 181, 217 Pac. 1001. (2) If a witness is informed through the general avenues of information to which the average business man resorts in posting himself on values of those articles in which he deals, he may testify as to the value of such articles, even though he has not seen the specific property involved in the lawsuit. Monahan v. Scott Cleaning Co., 241 S.W. 956 (St. L.C. of App.); Steinburg v. Levy, 236 S.W. 909 (St. L.C. of App.); Harris v. Quincy, O. & K.C. Ry. Co., 115 Mo. App. 527, 91 S.W. 1010 (K.C.C. of App.). The plaintiff's witness, Wendel Haas, was qualified to testify as to the actual value of the plaintiff's automobile. Barnes v. Elliott, 251 S.W. 488 (St. L.C. of App.). By offering witnesses less qualified than Haas, the defendant has waived its right to object to his testimony. Schrodt v. City of St. Joseph, 109 Mo. App. 627, 83 S.W. 543 (K.C.C. of App.); Hunter v. Helsley, 98 Mo. App. 616, 73 S.W. 719 (K.C.C. of App.); Ruth v. St. Louis Transit Co., 98 Mo. App. 1, 71 S.W. 1055 (St. L.C. of App.). (3) The question of whether the plaintiff was entitled to punitive damages was properly submitted to the jury in this case. Under the Missouri rule, punitive damages may be awarded in actions for fraud where malice is present. Finke v. Boyer, 331 Mo. 1242, 56 S.W. (2d) 372; Luikart v. Miller, 48 S.W. (2d) 867 (Sup. Ct.). The Missouri courts permit the recovery of punitive damages upon proof of legal malice, which they define as the intentional doing of a wrongful act without just cause or excuse. Finke v. Boyer, 331 Mo. 1242, 56 S.W. (2d) 372; Luikart v. Miller, 48 S.W. (2d) 867 (Sup. Ct.); Foster v. C.B. & Q.R.R. Co., 14 S.W. (2d) 561 (Sup. Ct.); Lampert v. Judge & Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095; McNamara v. St. Louis Transit Co., 182 Mo. 676; Goetz v. Ambs, 27 Mo. 28; Alexander v. Emmke, 15 S.W. (2d) 868 (K.C.C. of App.). (4) Instruction No. 1 given at the plaintiff's request, and instruction No. 4 given at the defendant's request, are not inconsistent. But if said instructions are inconsistent, it is because defendant's instruction No. 4 is erroneous in that a misrepresentation may be made by act as well as by word, and the turning back of the speedometer was a misrepresentation in itself. Bank of North America v. Crandall, 87 Mo. 208; Stout v. Caruthersville Hardware Co., 131 Mo. App. 520, 110 S.W. 619; Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Leonard v. Springer, 197 Ill. 532, 64 N.E. 299; 1 Bigelow's Law of Fraud, page 467; 26 C.J., p. 1067, sec. 9. The objection that an instruction given at the respondents request is inconsistent with an instruction given at the appellant's request is unavailing where the appellant's instruction is erroneous. Sprague v. Sea, 152 Mo. 327, 53 S.W. 1074; Reardon v. Missouri Pacific Ry. Co., 114 Mo. 384, 21 S.W. 731; Holdaway v. Lusk, 194 S.W. 891 (Sp. C. of App.); Hughes v. Bilby, 198 S.W. 179 (K.C.C. of App.). (5) The court should not interfere with the award of punitive damages made in this case. The amount of punitive...