Lewis v. Worldwide Imports, Inc.

• Decision Date: 21 October 1964
• Citation: 395 P.2d 922,238 Or. 580
• Parties: Lillian Irene LEWIS and H. W. Lewis, Respondents, v. WORLDWIDE IMPORTS, INC., dba Worldwide Economy Car Co., an Oregon corporation, and American Surety Company of New York, a corporation, Appellants.
• Court: Oregon Supreme Court

Page 922

395 P.2d 922

238 Or. 580

Lillian Irene LEWIS and H. W. Lewis, Respondents, v. WORLDWIDE IMPORTS, INC., dba Worldwide Economy Car Co., an Oregon corporation, and American Surety Company of New York, a corporation, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 5, 1964.

Reargued June 1, 1964.

Decided Oct. 21, 1964.

Francis E. Harrington, Portland, argued and reargued the cause and filed a brief for appellants. With him on the brief was Richard L. Amato, Portland.

Harlow F. Lenon, Portland, argued and reargued the cause and filed a brief for respondents. On the brief were Lenon & Willner, Portland.

Before McALLISTER, C. J., PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

O'CONNELL, Justice.

This is an action to recover damages for an alleged fraudulent representation in the sale of an automobile by defendant Worldwide Imports, Inc., to plaintiff. Defendants appeal from a judgment on a verdict for plaintiffs.

The complaint charges that defendant, with the intent to deceive, falsely represented that the automobile was a demonstrator in the condition of a new car when in fact it had been involved in an accident in which it was extensively damaged. It was further alleged that the representations were willful and malicious. Plaintiffs prayed for $800 general and $1,000 exemplary damages. The jury returned a verdict of $600 general and $1,000 exemplary damages.

The judgment is attacked on the ground that there was insufficient evidence to establish (1) fraud, (2) conduct sufficient to sustain the verdict for punitive damages, or (3) the market value of the automobile at the time of the sale. The record clearly discloses sufficient evidence to establish a fraudulent representation under circumstances warranting the imposition of punitive damages. Defendants rely upon Cays v. McDaniel et al., 204 Or. 449, 283 P.2d 658 (1955) in support of their contention that there was not sufficient evidence of malice to justify the recovery of punitive damages. In the Cays case the defendant represented that the automobile was new when in fact it had been driven more than 5,000 miles. Defendant had turned back the speedometer as a part of his scheme of deception. The complaint contained no allegation of facts showing circumstances of aggravation justifying the allowance of punitive damages. In denying punitive damages, the court said:

'* * * If a plaintiff relies upon circumstances of aggravation as the basis of his claim for punitive damages, those circumstances must be alleged in the complaint.' 204 Or. at 457, 283 P.2d at 662.

The complaint in the case at bar contained allegations sufficient to show circumstances of aggravation. In the Cays case the court further said that 'wholly apart from the matter of pleading, the record itself fails to establish any aggravating circumstances of the character necessary to form the basis of an allowance of punitive damages.' (204 Or. at 458, 283 P.2d at 662). If, by this, the court meant that turning back a speedometer for the purpose of deceiving a purchaser is not sufficient to support the imposition of punitive damages against the seller, we are unable to agree and to this extent Cays v. McDaniel, supra must be overruled.

A more difficult problem is raised by defendants' third contention, i. e., that there was not sufficient evidence of the market value of the automobile in question at the time of sale. The only evidence of market value supporting plaintiffs' theory of the case is the testimony of the plaintiffs, H. W. Lewis and Lillian Lewis. Plaintiff H. W. Lewis testified as follows:

'Q * * * You have alleged in your complaint that your total actual damage, you and your daughter, is $800. Now, how do you arrive at $800 as the damage?

'A Only that I wouldn't a-paid a thousand dollars for it if I'd known it had been wrecked, or more than a thousand.'

Plaintiff Lillian Lewis, the daughter of H. W. Lewis, the co-plaintiff, testified as follows:

'Q You have alleged that the damage to you and your father is in the total amount, the actual damage is in the total amount of $800. How do you arrive at that figure?

'A Well, we discussed it between the family and we decided that we would not have paid as much as we did. We would have paid at least $800 less, or at least under a thousand for the car had we known its condition.

'Q Were you able, or have you fixed in your mind what the value of the car was in fact at the time you bought it?

'A Well, I'm no expert, but I would say no more than $900 to a thousand dollars.

'Q Now, have you talked to your father about that?

'A Yes, sir.'

On cross-examination she was asked:

'Q Do you have any familiarity with the fair cash market value of automobiles being sold in the Portland area in June of 1960?

'A No, sir, I don't.

'* * *

'Q I don't mean to put words in your mouth, but let me ask you this: Is it a fair statement that your testimony in direct examination to Mr. Lenon about money just came from a discussion you had with your family?

'A Yes, sir.'

The admission by Lillian Lewis that she was not familiar with the fair cash market value of automobiles, generally, in the Portland area at the time of the sale does not render her testimony incompetent. The competency of an owner to testify as to the market value of his own property is not conditioned upon his knowledge of the market value of other similar property in the vicinity. At least this is the rule when the testimony is given as to the value of the owner's land. ¹ There is no reason for applying a different rule where the owner testifies as to the value of his automobile. In both cases it might well be asked how the owner of property arrives at the market value of his own property if he has never received an offer for it and does not know what other similar property in the vicinity is being sold for by so-called 'willing sellers' to so-called 'willing buyers.' The fact that courts permit the owner to testify where it is apparent that the only basis for his estimate of the value of his land is his use or his knowledge of the adaptability of the land to certain uses ² suggests that the rule permitting the owner to testify in such cases is unsound ³ or that the price of property on the market is not the only legal criterion for establishing value of property. It is possible that the acceptance of this rule is a tacit recognition that value to the owner is a far more important factor in the indemnification of the owner than the courts are willing to admit. ⁴ But proceeding on the assumption that knowledge of the market value of the property in question is the standard which must be met, we are of the opinion that the plaintiffs' testimony was sufficient to meet it in the present case.

Lillian Lewis testified that the automobile had a value of 'no more than $900 to a thousand dollars.' She also testified that 'we would have paid at least $800 less, or at least under a thousand dollars for the car had we known its condition.' H. W. Lewis testified to the same effect, stating that he 'wouldn't a-paid a thousand dollars for it if * * * [he had] known it had been wrecked, or more than a thousand.'

Lillian Lewis' testimony that the automobile had a value of 'no more than $900 to a thousand dollars' is a direct statement of the value of the automobile. This statement, as well as her statement as to how much she and her father would have paid for the automobile if they had known of its condition, may be regarded as her estimate of the market value of the automobile rather than as an expression of the special value the automobile would have to them as owners. In other words, plaintiffs' testimony may be interpreted as meaning that they would not have paid more than $1000 for the automobile if they had known of the defects because that was the market value of the automobile in that condition and that they would not pay more than its market value.

There was nothing in the testimony of the witnesses to suggest that they felt that they were entitled to purchase the automobile at less than market value because it had a value less than that which it would have to other purchasers in the market. Lillian Lewis' answer on cross-examination that her testimony on direct examination 'about money just came from a discussion [she] had with her family,' is not necessarily an admission that she did not have her own opinion as to the value of the automobile. In her direct examination she stated that 'we discussed it between the family and we decided that we would not have paid as much as we did.' Her answer on cross-examination amount to nothing more than a statement that the decision as to the value of the car was made at the family meeting....