Mathis v. Jim Skinner Ford, Inc.

• Decision Date: 28 July 1978
• Citation: 361 So.2d 113
• Parties: James D. MATHIS v. JIM SKINNER FORD, INC., a corp., et al. 77-333.
• Court: Alabama Supreme Court

Page 113

361 So.2d 113

James D. MATHIS v. JIM SKINNER FORD, INC., a corp., et al.

77-333.

Supreme Court of Alabama.

July 28, 1978.

Thomas Coleman, Birmingham, for appellant.

John Martin Galese, Birmingham, for appellee Jim Skinner Ford, Inc.

Brittin T. Coleman and Walter J. Sears, III, Birmingham, for appellee Ford Motor Co.

SHORES, Justice.

This is an appeal by the plaintiff from a partial summary judgment entered in favor of the defendants. We affirm.

Plaintiff bought a new Ford station wagon from Jim Skinner Ford on August 20, 1976. The station wagon vibrated badly and, although both Jim Skinner and Ford Motor Company attempted over a period of months to correct the problem, it was never satisfactorily repaired.

Plaintiff filed suit against Jim Skinner and Ford on June 15, 1977. His complaint, as last amended, is as follows:

"COUNT ONE

"Plaintiff claims of the defendants the sum of Nine Thousand, Two Hundred Thirty-Five and 96/100 ($9,235.96) Dollars for money on, to-wit, August 20, 1976, received by the defendant to the use of the plaintiff, which sum of money, with interest thereon, is still unpaid.

"COUNT TWO

"Plaintiff claims of the defendants the sum of Fifty Thousand Dollars ($50,000.00), as damages, for that on, to-wit, August 20, 1976, an agent, servant or employee of the defendants while acting within the line and scope of his employment, for the purpose of inducing plaintiff to purchase a certain 1976 Ford Station Wagon, did represent to plaintiff that said Ford automobile, its motor, parts and accessories were mechanically in good working order and condition, and the plaintiff In reliance upon said representation and believing the same to be true, but which was untrue, purchased said Ford automobile for the sum of $9,235.96. And plaintiff further avers that said representation was false, and was then known to be false by said agent, servant or employee of defendant, or ought to have been known by said agent, servant and employee of defendants, acting within the line and scope of his employment as such, to have been false, and that as a proximate result thereof plaintiff was damaged as aforesaid.

"COUNT THREE

"Plaintiff claims of the defendants the sum of Fifty Thousand Dollars ($50,000.00), as damages, for that on, to-wit, August 20, 1976, an agent, servant or employee of the defendants while acting within the line and scope of his employment, for the purpose of inducing plaintiff to purchase a certain 1976 Ford Station Wagon automobile, did represent to plaintiff that said Ford automobile was free from defects in material and workmanship and that defendants would make good, without charge, any defective part or parts of said Ford automobile which should occur within 12 months of the delivery of said automobile to plaintiff or before said Ford automobile had been driven 12,000 miles, which ever should first occur, and The plaintiff in reliance upon said representation and believing the same to be true, but which was untrue, purchased said Ford automobile for the sum of $9,235.96. And Plaintiff further avers that said representation was false, and was then known to be false by said agent, servant or employee of defendants, Or ought to have been known by said agent, servant or employee of defendants, acting within the line and scope of his employment as such, To have been false, and that as a proximate result thereof plaintiff was damaged as aforesaid." (Emphasis Supplied)

The defendants took the plaintiff's deposition and filed motion for summary judgment on COUNTS TWO and THREE supported by the plaintiff's deposition. By deposition, the plaintiff testified that employees of Jim Skinner told him the car had been checked out and everything was okay, "that it was in perfect operating condition and everything."

He further testified as follows:

"Q All right. Specifically on that occasion, tell me again what you recall being said to you by either this Howard fellow, or, the young salesman regarding the car, not the price, but, regarding the car itself, to the best of your recollection everything that was said.

"A What they said to me?

"Q Yes, sir.

"A They just said it was, the car was loaded, it had everything on it, everything on it that you could put on one, and there wasn't nothing else that you could put on it, that that was the only station wagon in town like that.

"Q You mean it was fully equipped?

"A Right.

". . .t.

"Q All right. What else do you recall them saying?

"A At the moment I can't think of anything. There was a lot said, but, I can't remember at the present time.

"Q Well, what was said as you recall that was important to you, that made some impression on you, or something that you do recall?

"A They didn't say anything to the car. The looks on it, and what was on it impressed me. They didn't have to say anything.

"Q And you had decided to buy the car...