Kowell Ford, Inc. v. Doolan, 2

• Decision Date: 10 October 1978
• Docket Number: No. 2,2
• Parties: KOWELL FORD, INC. v. Carl Daniel DOOLAN.
• Court: Maryland Court of Appeals

Page 579

283 Md. 579

391 A.2d 840

KOWELL FORD, INC. v. Carl Daniel DOOLAN.

No. 2.

Court of Appeals of Maryland.

Oct. 10, 1978.

Gary G. Leasure, Cumberland (John J. Coyle, Jr., and Carscaden, Gilchrist & Getty, Cumberland, on the brief), for appellant.

Carl Daniel Doolan, in pro. per.

Argued before MURPHY, C. J., and SMITH, DIGGES, ^* LEVINE, ELDRIDGE, ORTH and COLE, JJ.

DIGGES, Judge.

In this case, here on certiorari, we consider whether in an on the record appeal to the Circuit Court for Allegany County (Getty, J.) from a judgment entered in the District Court of Maryland, the reviewing court was correct in concluding that the trial court was clearly erroneous in its factual determinations. ¹ The circuit court in so deciding, we conclude, committed error.

Maryland Rule 1386 controls the scope of on the record appeals from the District Court and stipulates that the circuit court

will review the case upon both the law and the evidence, but the judgment of (the District Court) will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.

As Chief Judge Murphy recently observed for this Court in Ryan v. Thurston, in considering an on the record appeal from the District Court, a circuit court must, under Rule 1386,

accept and be bound by findings of fact of the lower court unless they are clearly erroneous. The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court's determination, it is not clearly erroneous and cannot be disturbed. The trial court is not only the judge of a witness' credibility, but is also the judge of the weight to be attached to the evidence. It is thus plain that the appellate court should not substitute its judgment for that of the trial court on its findings of fact but will only determine whether those findings are clearly erroneous in light of the total evidence. (276 Md. 390, 392, 347 A.2d 834, 835-36 (1975) (citations omitted). ²

In the case now before us, in which respondent-appellee Carl Daniel Doolan seeks damages for fraud, deceit, and breach of warranty in connection with the sale of a used automobile, the only important evidence produced which appears to be free of dispute is that Doolan, on June 11, 1976, purchased for $3900 cash a 1973 Datsun from the petitioner-appellant, Kowell Ford, Inc. The record of the proceedings in the trial court reveals, however, that there is a sharp conflict between the parties pertaining to the event which took place surrounding the negotiation of this transaction.

Purchaser Doolan testified that in response to a radio advertisement he went to the automobile dealer's place of business on June 10, 1976, where, after inspecting and then road-testing the vehicle for about one-half mile, he interrogated Kowell Ford salesman George Russell concerning the Datsun's condition and history of ownership. The witness related that Russell, whom he had previously known as a schoolmate, stated that the Datsun had been owned by a local salesman who had traded it to Kowell Ford for a new automobile, that the vehicle had low mileage, and that it had not been hit anywhere. ³ Doolan said Russell explained the low mileage shown on the odometer by stating that the previous owner also had another vehicle. Respondent further testified that when, accompanied by his father, he returned the next day to consummate the transaction, he was again assured by Russell that the Datsun had been locally owned and had been traded by the previous owner to Kowell Ford for a new automobile. In this regard, the witness' testimony was corroborated by his father. The bill of sale for the Datsun, received in evidence at the instance of Kowell Ford, records that the dealer certified the true mileage was as indicated on the odometer (19,104); it further shows that the space which indicates that the actual mileage is unknown to the seller was not checked. There was further testimony from Doolan that he observed a few days after he received the Datsun that the odometer was not functioning. Although the seller replaced the inoperative odometer, which had not been working for some time, this was just the beginning of many maintenance problems that eventually cost Doolan nearly $800 and led him to attempt a trade-in with another dealer after owning the automobile only six months. It was in connection with this trade, according to the witness, that he learned for the first time that the Datsun had not been locally owned but had been purchased by Kowell Ford at an automobile auction in Pennsylvania where it was being sold following the vehicle's involvement in a collision in New York State in which it was substantially damaged.

Much of the Doolan testimony was contradicted by George Russell, the seller's salesman. He testified that at the time the Doolan transaction took place he had been working for Kowell Ford for only two months, that the purchaser tested the Datsun but asked no questions concerning its prior ownership, and that he did not recall any questions being asked concerning the odometer. He further informed the District Court that at the time of the sale he had no knowledge concerning the identity of the vehicle's prior owner or where Kowell Ford acquired it and consequently had not indicated to Doolan that the Datsun was a trade-in by a local owner-salesman on a new car.

District Court Judge Milton Gerson elected to accept Russell's version of what took place and as a consequence determined that no fraud or deceit had been perpetrated by the seller. The judge, however, did conclude that there was a breach by the seller of "implied warranty of merchantability" which resulted in $500 damages to the purchaser and accordingly entered judgment in favor of Doolan against Kowell Ford for that amount and costs.

Carl Doolan,...