Parker v. Green

• Citation: 340 S.W.2d 435
• Decision Date: 03 October 1960
• Docket Number: No. 23100,23100
• Parties: Homer W. PARKER, Respondent, v. Jerry GREEN, d/b/a Jerry Green Chevrolet, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 435

340 S.W.2d 435

Homer W. PARKER, Respondent, v. Jerry GREEN, d/b/a Jerry Green Chevrolet, Appellant.

No. 23100.

Kansas City Court of Appeals, Missouri.

Oct. 3, 1960.

A. E. Margolin, F. Philip Kirwan, Richard W. Miller, Kansas City, for appellant.

Edward F. Aylward, Robert A. Meyers, Kansas City, for respondent.

CROSS, Judge.

Plaintiff Homer W. Parker sues defendant Jerry Green for actual and punitive damages. The claim arises from alleged fraud attributed to defendant in the sale of a used automobile. Defendant appeals from a jury verdict and judgment awarding plaintiff $235 actual and $1,000 punitive damages.

The allegations of the petition, generally denied by answer, import that plaintiff proposed to purchase of defendant a 1953 Packard 'Series 400' automobile; that defendant, (through servants, agents and employees), offering to sell plaintiff a certain used automobile, falsely and fraudulently and with intent to deceive plaintiff, represented it to be a 1953 Packard 'Series 400', when in fact it was a 1953 Packard 'Series 300'; that plaintiff, relying on defendant's untrue representations, bought the automobile, to his loss and damage.

A contention made by defendant is that no case of fraud was made for submission to the jury. In determining that question, we must assume the truth of every fact and circumstance in plaintiff's favor shown in evidence, whether by plaintiff or defendant, and give plaintiff the benefit of all reasonable inferences which may fairly be drawn therefrom. All evidence and inferences unfavorable to plaintiff will be disregarded. Under the foregoing limitations, we set out applicable portions of the evidence.

Plaintiff wanted to buy a Packard Series '400' automobile. Driving to work on the morning of Friday, January 3, 1958, he passed defendant's used car lot, noticed a 'nice clean looking car' and stopped and looked at it. That night he returned to defendant's place of business, went in the office, and inquired about the automobile. Plaintiff talked to two men. One of them was a tall, slender, young salesman; the other was an older heavy set man. 'They were both standing right there together when I went in the office'. Plaintiff said, 'I am interested in that Packard', and inquired, 'Is that a '400' Packard?' The young salesman replied, 'Yes, sir'. The heavy set man went out and examined, drove and 'appraised' plaintiff's car. He informed plaintiff that the cash difference for a trade would be approximately $500. Plaintiff thought that was too much and said he would come back later. He returned to defendant's car lot on the following Monday morning and again talked to the young, tall salesman about buying the Packard car. Plaintiff offered to trade his own car for defendant's Packard by paying $400 in cash additionally. The young salesman accepted the offer after 'somebody O.K.'d it'. He wrote up and initialed the sales order. The agreed price of the Packard car was $895; plaintiff paid $400 in cash and his car was accepted in trade at a value of $495. The purchase order described the automobile as a 'Packard 400 Series, 4 door, 1953'.

When plaintiff applied for ownership documents and a license for the Packard, he discovered it was a '300' series--not a '400' series as represented.

The '400' series is a higher priced and better model than the '300' series. The '400' has different upholstery, body trim, and equipment, which contribute to its higher price and generally better quality. The '400' motor has a 9 bearing crankshaft, is smoother, and runs better than the '300' motor, which has a 5 bearing crankshaft. There was no way to identify the motor and mechanical details without stripping the car down.

Plaintiff testified, 'I wanted the best car they made which was the '400' or 'Patrician' * * * I thought it was a '400' * * * I didn't know the difference, or I wouldn't have bought it * * * I wanted the better car'. Plaintiff 'accepted his (the salesman's) word for it'.

Russell Wade, a car dealer, testified on plaintiff's behalf that he had bought and sold all types of used cars, wholesale and retail, for 20 years. He had bought and sold Packard automobiles through the years and was familiar with them, including the 1953 '300 Series' and '400 Series'. In his opinion, the value of a 1953 Packard Series '300' automobile in reasonably good condition was, in January of 1958, from $300 to $400 less than the value of a 1953 'Series 400' of like condition.

Defendant's evidence divulges facts and circumstances and resulting permissible inferences favorable to plaintiff. Robert J. McCaine, 26 years old, had worked for Jerry Green as a used car salesman for a year and a half. He formerly was employed by Allen Chevrolet as a new and used car salesman. He took 'trade-ins--just about any type that you could imagine that is usually traded in on a new car'. He admitted that as a used car trader he made sure what he was going to get and that when he took a car in trade he would 'make sure what it is'. He had personally owned two Packard '400's'.

McCaine testified that he talked to plaintiff 'when he came in to purchase the car', and admitted that he represented the car to be a '400' Series. The following excerpt is from McCaine's testimony:

'Q. You really didn't know whether or not it was, (a '300' Series), in fact? A. No, sir, I didn't.

'Q. And yet you went ahead and made that remark to Mr. Parker, is that correct? A. Yes, sir.'

McCaine further testified that he had 'Fletcher' appraise plaintiff's car on Friday evening, January 3d, 'at night because it was dark'; also, that he later 'sold' plaintiff the car and wrote up the sales order describing it as a 'Packard 400 Series, four door, 1953'.

Harold Fletcher testified on behalf of defendant that in January of 1958 he was 'used car manager' at Jerry Green's Chevrolet. Fletcher had been a Packard dealer for eight years as owner of Packard Country Club Motors, and had spent thirty years with the Packard Motor Company in different capacities, making a total of thirty-eight years 'with Packard'. He had been buying and selling cars for forty years. As a Packard dealer, Fletcher had originally sold the controversial automobile, when new, to a relative. He was 'particularly familiar with this automobile in question * * * having had it in my new car stock and selling it to my cousin'. He 'knew quite a little bit about it'. He testified he knew the Packard had come into the Jerry Green Agency in trade. Fletcher related that 'one cold winter night', early in January, 1958, prior to January 7th, he met plaintiff and appraised plaintiff's car. He testified:

'Q. Did you have occasion to have a conversation with Mr. Parker on the occasion when you appraised this automobile?

'A. Yes, I did.

'Q. Would you relate what the conversation was?

'A. My man called me to appraise Mr. Parker's car, and upon checking it and appraising it, I endeavored to enter into the sales conversation with Mr. Parker and the salesman, which you always do to try to consummate a deal, and I endeavored to tell Mr. Parker that I knew about the car and that I had been a Packard dealer and that I sold it new and that my cousin bought the car from me, and the other things that I intended to relate, but Mr. Parker said, 'Well, Mr. Fletcher, I probably know considerably more about that than you think I do about the car, because I have kind of watched the car for seven or ten days on my way home in the evening, even after you were closed,' so I didn't say anything more. He knew plenty about the car so there was no need to go into it any farther.'

Defendant's first assignment is that the case was erroneously submitted to the jury 'for the reason that no fraud was shown'. Defendant argues that the facts were as consistent with honesty and good faith as with fraud, and that, therefore, plaintiff failed to make a case; also, that the false representation made by defendant's salesman was not fraud because he honestly but mistakenly believed it to be true. We can not say as a matter of law that the evidence, viewed in plaintiff's favor, points to honesty, good faith or mistaken belief on the part of defendant in the transaction. Those issues of defense were submitted to the jury as questions of fact under Instruction No. Five, which was given at the request of defendant and which required the jury to return a verdict for defendant if they found 'that the statement made by defendant's salesman was made in good faith, honestly believing that it was true, and that such belief was based on his own experience on which he relied, and that said salesman had no purpose or intent to mislead, deceive or defraud plaintiff thereby'. The jury rejected defendant's evidence on the issue submitted in the instruction. Whether or not plaintiff's damage was the result of intentional fraud or only an honest mistake was purely a fact question. Burns v. Vesto Co., Mo.App., 295 S.W.2d 576.

Defendant urges that plaintiff's case lacks the essential element of scienter, and claims there is no pleading or proof that the salesman who erroneously described the car plaintiff was looking at as a 'Series 400,' knew that the car was not a 'Series 400,' or that he knew he didn't know when he made the statement.

The petition contains the following averment: 'Defendant's representation through his agents, servants and employees, as aforesaid, was false and fraudulent, defendant(s) having willfully, wickedly and maliciously represented the facts with the intention of defrauding plaintiff'. Defendant admits that the foregoing language pleads actual scienter, but insists, without citation of authority, that it does not plead constructive scienter--that defendant had conscious knowledge, when he made the false representation, that he did not know whether it was true or false. We rule that the quoted allegation sufficiently pleads the issue of scienter as it was submitted to the jury under the alternative...