Murdock v. Godwin
| Decision Date | 11 June 1980 |
| Docket Number | No. 59246,59246 |
| Citation | 269 S.E.2d 905,154 Ga.App. 824 |
| Parties | , 31 UCC Rep.Serv. 572 MURDOCK v. GODWIN. |
| Court | Georgia Court of Appeals |
L. Joel Collins, Columbus, for appellant.
Susan G. Elliott, Columbus, for appellee.
In April, 1974, Edwin L. Godwin purchased a used car (1973 Chevrolet Monte Carlo) from Leon Murdock, a used car dealer, receiving an express guarantee of clear title. On February 17, 1977, plaintiff was contacted by law enforcement officers and subsequently made the automobile available to them for inspection. After they examined several serial numbers on the car, law enforcement officers seized the car, and Godwin never saw it again.
Plaintiff Godwin brought this action in two counts against the defendant Murdock, alleging that the automobile was stolen and therefore defendant did not have and could not have conveyed good title thereto. Count 1 is predicated on breach of warranty of good title and Count 2 alleges fraud.
Upon the trial of the case the jury returned a verdict in favor of plaintiff awarding $3,652.10 compensatory damages; $1,250 attorney fees; and $8,000 punitive damages. The judgment followed the verdict. Defendant's motion for new trial was denied and defendant appeals. Held :
1. The trial court erred in allowing plaintiff to introduce the hearsay testimony of an F.B.I. agent regarding a discrepancy between the derivative identification numbers located on the engine of the automobile and the vehicle identification number (V.I.N.) on a public plate located on top of the dashboard of the automobile. The V.I.N. plate is readily visible through the windshield of the car while inspection of the engine numbers was accomplished by jacking up the car. It was a special agent of the National Auto Theft Bureau who actually crawled under the car to examine the engine numbers, and the F.B.I. agent in testifying in regard thereto merely repeated the numbers stated to him.
Under the circumstances of this case, however, the error was harmless. The purpose and only relevance of the testimony as to the identifying numbers was to present proof that the car was a stolen vehicle. Other evidence on this point shows that the public V.I.N. plate on the dashboard had been altered so as to show a number other than the original; that the number shown by the public plate prior to alteration was the V.I.N. of a stolen automobile; that the V.I.N. located on a "Federal sticker" on the door post on the driver's side had been obliterated and that law enforcement officers, after examining the automobile for identification numbers and making inquiries with the National Crime Information Center had seized the vehicle. In the light of the additional circumstantial evidence that the automobile was a stolen vehicle, it is most improbable that the exclusion of the erroneously admitted hearsay evidence would have altered the verdict. The admission of evidence over objection, even if erroneous, will not be cause for reversal if the same or substantially the same evidence is admitted without objection. Calhoun v. Chappell, 117 Ga.App. 865, 867(3), 162 S.E.2d 300; Wolfson v. Rumble, 121 Ga.App. 549(1), 174 S.E.2d 469.
2. Defendant enumerates as error the refusal of the trial court to grant defendant's motion for directed verdict at the conclusion of plaintiff's evidence. Defendant argues in support of this enumeration that there was no evidence that the automobile was stolen. This contention is not correct, however, as ample admissible circumstantial evidence as detailed in Division 1 of this opinion was presented to show that the automobile was a stolen vehicle. The failure of the warranty and possible fraud was clearly shown by the evidence.
3. An employee of an insurance company which had obtained title to the automobile after it was stolen testified and identified a copy of the title of the automobile taken from the business records of the company and made in the regular course of business. Defendant objected to the introduction of this evidence, contending it was without a proper foundation as plaintiff did not prove a sufficient chain of custody. The insurance company employee testified that he was custodian of the document in question. That it had earlier been in the custody of another employee of the insurance company at another location goes to the weight and not to the admissibility of the evidence. Walter E. Heller & Co. v. Aetna Business Credit, 151 Ga.App. 898, 902-903(5), 262 S.E.2d 151; Whitehead v. Joiner, 234 Ga. 457, 459(3), 216 S.E.2d 317.
4. Defendant contends that the trial court erred in refusing to admit relevant evidence and in erroneously charging the jury as to the measure of damages in that defendant was not allowed any setoff for the value of plaintiff's use of the automobile during the period of time that it was in plaintiff's possession. Under both the breach of warranty cause of action and the fraud and deceit cause of action the measure of damages was the difference between the actual value of the automobile at the time of delivery (and acceptance) and the value the automobile would have had if the title had been as warranted and represented. See in this regard Code Ann. §§ 109A-2-714(2)(3) (Ga.L.1962, pp. 156, 230); 109A-2-715 (Ga.L.1962, pp. 156, 231); and Aderhold v. Zimmer, 86 Ga.App. 204, 208, 71 S.E.2d 270. The trial court correctly charged the jury on this measure of damages. As both measures of damages relate solely to the time of the delivery and acceptance, the trial court was correct in excluding irrelevant evidence as to the value of plaintiff's use of the automobile subsequent to that time and in refusing to charge the jury thereon.
5. At trial defendant was called as a witness by plaintiff for purposes of cross-examination. In such circumstances the privilege of impeachment is preserved as if the witness had testified on his own behalf and was being cross-examined. See Code Ann. § 38-1801 (Ga.L.1945, p. 227; 1947, p. 568). Defendant contends that he was called solely for the purpose of effecting his impeachment and argues that as his testimony never contradicted the evidence presented by plaintiff's witnesses plaintiff should not have been allowed to present evidence for the purpose of impeaching him. However, the factual supposition upon which defendant's argument...
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