Murphy Auto Sales, Inc. v. Coomer, 18363

• Decision Date: 03 June 1953
• Docket Number: No. 18363,18363
• Citation: 123 Ind.App. 709,112 N.E.2d 589
• Parties: MURPHY AUTO SALES, Inc., et al. v. COOMER et al.
• Court: Indiana Appellate Court

Page 589

112 N.E.2d 589

123 Ind.App. 709

MURPHY AUTO SALES, Inc., et al. v. COOMER et al.

No. 18363.

Appellate Court of Indiana, in Banc.

June 3, 1953.

Emerson J. Brunner, Shelbyville, Edward M. Slocum, Indianapolis, of counsel, for appellants.

Samuel J. Kagan, Indianapolis, H. Harold Soshnick, Shelbyville, John M. Heeter, Indianapolis, for appellees.

BOWEN, Judge.

This is an appeal from a judgment in an action by Overton Coomer, a minor, by his next friend, and his mother Alma Coomer, as plaintiffs, to recover damages on an amended complaint for rescission of a conditional sales contract and for damages. The complaint in four paragraphs alleged the minority of the appellate Overton Coomer, and fraud and misrepresentations alleged to have been made by the appellants as to the condition of the motor of a used automobile at the time of the sale of such used automobile by appellants to appellee. Other allegations were contained with reference to the Associates Investment Company which financed the sale and the purchase of such automobile, and a co-defendant in the trial below. The court below, on motion, directed a verdict for said co-defendant, Associates Investment Company, on all paragraphs of plaintiffs' amended complaint. Issues were joined on the amended complaint in four paragraphs, the answer of the defendant Murphy Auto Sales, Inc., the answer of Associates Investment Company, and the separate answer of the defendants Ebbie A. Murphy and Thomas Kesserling. The cause was tried by a jury and the jury found for the appellees on the first paragraph of their amended complaint and against the defendants and each of them except the Associates Investment Company, for which defendant motion for a directed verdict was sustained. Judgment was entered on the verdict in favor of both appellees and against the appellants, Murphy Auto Sales, Inc., Ebbie A. Murphy and Thomas Kesserling, in the sum of $2,300. The appellants' (Murphy Auto Sales, Inc., Ebbie A. Murphy and Thomas Kesserling) motion for a new trial was overruled and this appeal taken by such parties.

The sole error assigned for reversal is the action of the trial court in overruling appellants' motion for a new trial. The first five specifications in appellants' motion for a new trial are that the damages are excessive; that the damages assessed by the jury are excessive; the amount of damages fixed by the jury are excessive; error in the assessment of the amount of recovery, being too large; and the verdict returned by the jury is erroneous for such reasons. Other specifications of error in the motion for a new trial are that the verdict is not sustained by sufficient evidence and is contrary to law, and sets out certain alleged errors at law occurring at the trial with reference to the admission of the testimony of certain witnesses.

Both parties have conceded that under the most favorable evidence appellees' actual or compensatory damages was the sum of $700 and that therefore the balance of the verdict, to wit, $1,600, represents the amount of punitive damages included in the $2,300 verdict.

From the record the following facts appear: That the minor, Overton Coomer, went to the automobile sales lot maintained by the defendant, Murphy Auto Sales, Inc., and talked with Ebbie A. Murphy and Thomas Kesserling, a salesman for said Company, and discussed the purchase of a 1941 Buick automobile, and that he asked about trying it out and they said it would not be necessary because they guaranteed the car being in good running condition and that the motor was in good shape. Details of a trade involving an automobile owned by the appellee Coomer were discussed with Murphy and Kesserling and Coomer agreed to trade his automobile in on the Buick. After that Murphy and Coomer went into the office and filled out the contract in the presence of Kesserling. Murphy said that the motor was in excellent condition and if anything went wrong with the car they would stand good for it. Murphy and Coomer got into the automobile and drove out to Coomer's house after he had signed the papers. Coomer started to read the papers before he signed them and Murphy said it would not be necessary 'we are just wasting a lot of time'. Murphy said, 'We will have to go out to your house and have your father sign them' after Coomer told him he was only nineteen years of age. Coomer drove the car from the Murphy auto lot to his home and made some complaint about the motor and Murphy said it was just the tappets loose and needed some adjustment. After they reached Coomer's home Kesserling, the salesman, told Coomer's mother, the appellee Alma Coomer, that the car was in excellent condition and asked her to sign the papers, and that he was out there because Overton Coomer wanted to trade his automobile in on this 1941 Buick Roadmaster. She told him she had no objection if he was getting a car that was in good condition and that if the car he was getting was in good condition she would sign the papers. The salesman told her that the car was in good condition inside and out, that the motor had just been overhauled and repaired and was in perfect condition, and that they would guarantee it and stand by the guarantee thirty days, and that if anything went wrong with the car if they would bring it in they would fix it at their expense.

One Robert L. Miller, a mechanic, testified that he accompanied Overton Coomer to the Murphy Sales lot and that at that time saw the 1941 Buick in question; that Coomer talked with Mr. Kesserling, an auto salesman on the Murphy lot, and that they then went in to talk to Mr. Murphy. That Coomer started the motor on the car and Mr. Kesserling came out and said there wasn't any need to drive the car that the car was guaranteed and the motor was overhauled. At that time one of the automobile salemen drove Coomer's automobile to see if anything was wrong with it and brought it back to the lot. Overton Coomer asked then if he could drive the car he was purchasing and they said there was no need of it, that the car was guaranteed and was all right. After that Kesserling, the salesman, and Coomer came out of the office and drove the car out to Coomer's home. During the trip Coomer asked Kesserling what a certain noise in the motor was and he explained it was just loose tappets. The mechanic testified he lifted the hood of the automobile and the motor looked perfectly clean as if it had just been rebuilt as stated by Kesserling. Miller, the mechanic, further testified that about a week or so later he went to the D. L. Stone Agency and examined the motor of the Buick car in question. Over objection he testified that the 'cylinder walls of the motor had been scored, the crankshaft was scored and out of round, the interior of the motor was very dirty, had sludge it took years to put in there and there was a ridge at the top of the cylinder walls which would take quite a bit of wear to put it in there, the valves in the car were sticking at the time. And the motor, in other words, was just generally shot. There was carbon on top of the pistons and the pistons were scored--the babbit was beaten out of the connecting rods and the crankshaft was scored to the point where there would never be another rod held onto it and the shaft had to be turned in order to get the motor running at all.' This witness further testified as an expert mechanic that in his opinion the car had not been overhauled.

Further evidence in this case shows that the car was not driven following the sale except to the automobile lot and back to the home of appellee where the car was put into the garage. That on the following morning the appellee, with his mother and family, started to drive the Buick automobile to Logansport and reached a point about 22 miles out of Indianapolis when the rods started knocking on it and Coomer got out underneath. There was oil dripping out from the motor and he started back to Indianapolis and that the rods knocked all the way and they were unable to continue their trip. Coomer testified that he had the oil checked, had gasoline put in and had the water checked prior to starting on this trip. That on the following morning he called the Murphy Auto Sales and told them the rods went out and he wanted to bring it in to have it fixed. Kesserling told him he would have to see Mr. Murphy. Later he talked to Murphy and told him the same thing. Murphy refused to fix it and said if any fixing was done he would have to charge him for it. That Murphy, when he refused to fix the car, told him, 'That's too bad, I've already got your money'. Later Coomer took the car to the D. L. Stone Agency to be repaired where it was later examined by Miller and found to be in the condition described in the previous testimony herein set out.

Appellants' assignments of error are grounded on the claim that the amount of punitive damages assessed are excessive and out of proportion to the actual damages shown; that punitive damages bear no relation to the injury inflicted and the cause thereof, and assert that only simple fraud has been shown and that the assessment of punitive damages is not warranted; that the verdict is contrary to law in that there is a failure of proof as to actual fraud and that aggravating circumstances are not shown upon which to predicate punitive damages; and that the court erred in the admission of certain evidence over the objection of appellants.

Both sides to this appeal concede that the amount of compensatory damages amounted to $700 and the exemplary or punitive damages amounted to $1,600. Indiana cases since the fifth Indiana Report have recognized a rule allowing punitive damages which has been characterized by strictness rather than liberality. Taber v. Hutson, 1854, 5 Ind. 322; American Sand, etc., Co. v. Spencer, 1914, 55 Ind.App. 523, 103 N.E. 426; Wheatcraft v. Myers, 1914, 57 Ind.App. 371, 107 N.E. 81; Kluge v. Ries, 1918, 66 Ind.App. 610, 117 N.E....