Norris v. Jones

• Decision Date: 07 March 1985
• Docket Number: No. 13793,13793
• Citation: 687 S.W.2d 280
• Parties: Red NORRIS, d/b/a Norris Truck Sales, Plaintiff-Respondent, v. Jerry M. JONES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 280

687 S.W.2d 280

Red NORRIS, d/b/a Norris Truck Sales, Plaintiff-Respondent, v. Jerry M. JONES, Defendant-Appellant.

No. 13793.

Missouri Court of Appeals,

Southern District,

Division Three.

March 7, 1985.

Daniel T. Moore, L. Joe Scott, Daniel T. Moore, Poplar Bluff, for plaintiff-respondent.

Randy P. Schuller, Hackworth & Schuller, Piedmont, for defendant-appellant.

GREENE, Judge.

Plaintiff, Raymond "Red" Norris, d/b/a Norris Truck Sales, sued defendant, Jerry M. Jones, for damages, alleging that Jones had fraudulently misrepresented a tractor truck he had traded to Norris as a trade-in on a new truck.

During jury trial, at the close of plaintiff's evidence, the trial court sustained defendant's motion for directed verdict on the grounds that Norris, an experienced truck dealer who had been in business for 28 years, had no right to rely on the misrepresentation, but was required to use ordinary care to determine the truth. The truck in question that Jones traded to Norris was represented by Jones to be a "1979 Freightliner" when, in truth and in fact, the unit was a 1979 Freightliner "glider kit". A glider kit is a partial unit consisting of cab chassis, front axle, and other parts, but is minus the drive train, which includes the engine, transmission, rear end drive unit, and suspension. Jones installed the drive train parts, including a transmission and rebuilt rear end unit from a wrecked 1976 Freightliner tractor.

On appeal, this court reversed and remanded for trial on the merits, holding that Jones' representation of the trade-in truck as a 1979 Freightliner, when he knew it was a glider kit to which he had added parts from a wrecked 1976 truck, was a positive misrepresentation of fact, and that under those circumstances, Norris had no duty to make an independent examination to determine if Jones was telling the truth. Norris v. Jones, 661 S.W.2d 63 (Mo.App.1983).

On re-trial, a jury returned a verdict in favor of Norris for $2,750. The trial court overruled Jones' after trial motion for judgment notwithstanding the verdict, and entered judgment for Norris in the sum of $2,750. Jones appeals, contending 1) the evidence was insufficient to make a submissible case, and 2) instructional error.

Appeals from trial court denials of motions for judgment notwithstanding verdict are treated in the same fashion as appeals from denial of motions for directed verdicts at the close of the evidence. In both instances, the primary question is, did plaintiff make a submissible case? In seeking an answer to that question, we view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the prevailing party below, disregarding all evidence and inferences to the contrary. Dockery v. Mannisi, 636 S.W.2d 372, 376 (Mo.App.1982).

Viewed in that light, the evidence before the jury was that Norris, doing business as Norris Truck Sales, had been in the truck business for 28 years. The business was located in Fremont, Missouri. He bought, sold, and traded trucks, including those called tractors, which are used to pull trailers. Norris handled "50 to 100, 125" truck transactions a year and was familiar with truck values. In February of 1981, Norris had in stock a 1981 Eagle Brougham International tractor with a Caterpillar engine. Jones, an independent trucker who lived in Tennessee, was looking for a truck of that type and heard, through a friend, that Norris had one. Jones telephoned and told Norris that he had a "1979 Freightliner conventional" tractor he would like to trade in on the Eagle. Norris told him to bring it up, and he would look at it. Jones did so.

Jones knew, but did not tell Norris, that the Freightliner was a glider kit that he had completed, including installing a transmission and rear end housing from a wrecked 1976 Freightliner. Jones did tell Norris that he had installed a 1980 Cummins engine that was still in warranty. His explanation as to why he told Norris about the engine, and not about the transmission and rear end installations, was that he felt it was up to the buyer to ask questions about the truck. At the time of the transaction with Norris, the transmission and rear end housing on the Freightliner unit had been subjected to...