Montgomery Lincoln-Mercury, Inc. v. Gaioni, LINCOLN-MERCUR

• Court: Alabama Supreme Court
• Writing for the Court: SHORES; TORBERT
• Citation: Montgomery Lincoln-Mercury, Inc. v. Gaioni, 402 So.2d 928 (Ala. 1981)
• Decision Date: 24 July 1981
• Docket Number: INC,LINCOLN-MERCUR
• Parties: MONTGOMERYv. Bonnie J. GAIONI. 80-328.

Page 928

402 So.2d 928

MONTGOMERY LINCOLN-MERCURY, INC. v. Bonnie J. GAIONI.

80-328.

Supreme Court of Alabama.

July 24, 1981.

J. Donald Reynolds, Montgomery, for appellant.

George H. B. Mathews, Montgomery, for appellee.

SHORES, Justice.

This is an appeal from a judgment rendered on a jury verdict in the amount of $35,000 in a case charging fraud in the sale of an automobile. We affirm.

There are facts in this record from which a jury could have concluded the following: That Montgomery Lincoln-Mercury, Inc., (MLM) sold Mrs. Gaioni a Triumph TR7 automobile, represented as being a new automobile, when in fact it had been a demonstrator used by the manager of MLM as such; that it had been entered in a race, had been wrecked, had been repaired in MLM's body shop, had the odometer changed to show reduced mileage, and was sold to Mrs. Gaioni for $400 over the manufacturer's list price.

Mrs. Gaioni had owned two TR7's before she bought this one. She came to MLM's dealership on May 6, 1980, and said she was interested in a TR7. All TR7's are basically alike, the only differences being in interior and exterior colors. She was shown by a salesman the new TR7's. She selected a green one with a beige interior, paid $100 down, and the car was held for her until June 2, 1980, when she picked it up and signed a retail installment contract, which designated the car as "new." Other documents pertinent to the sale designated the car as "new." The suggested manufacturer's retail price was $10,115. The cash price quoted to her was $10,516 and the time price $10,928.99. She testified that there was no "sticker" price on the automobile.

MLM suggests that new cars be returned within five days for trim and touch up work. On June 3, Mrs. Gaioni noticed that the paint on the hood had "bubbled up." A check indicated that the transmission was low on oil, the battery was low on water, and the wells of the carburetor were low. MLM assured her that the paint could be satisfactorily repaired. She left the car in MLM's shop from June 3 until June 14.

She then drove the automobile to Florida. On the trip, she noticed a rattle in the rear of the car and that the tires were worn on the sides, not the treads. She took the car to a tire repairman, who testified that the "tires were eaten up on it" and asked if she had been racing with the automobile.

A few days later, she put her bicycle in the trunk of the car, and the lining of the trunk disintegrated, appeared to have been singed or burned, and when this happened, she noticed that the car had been damaged in the right rear quarter and had been welded. Mrs. Gaioni then went back to MLM with an attorney. MLM's manager said the car had not been damaged before the sale to her.

After the suit was filed, the following facts were discovered by deposition or otherwise. The car had been selected by the manager as his demonstrator; one of the salesmen, named Sellers, was asked by the manager to get some gas for him, which the manager paid for, and while on this trip, another car collided with the TR7, damaging the right rear portion. Sellers testified that the other salesmen ribbed him a lot because he had wrecked a new car. A service order was discovered which indicated that the car had been repaired in MLM's body shop. When the manager of the body shop received a...