Pashalian v. Big-4 Chevrolet Co.
| Citation | 348 S.W.2d 628 |
| Decision Date | 18 July 1961 |
| Docket Number | BIG-4,No. 30681,30681 |
| Parties | George PASHALIAN, (Plaintiff) Appellant, v.CHEVROLET COMPANY, Inc., (Defendant) Respondent. |
| Court | Court of Appeal of Missouri (US) |
Samuel J. Goldenhersh, Frank J. Lane, Jr., and Goldenhersh & Goldenhersh, St. Louis, for appellant.
Eugene B. Overhoff, and Overhoff & Hayes, St. Louis, for respondent.
This case is unique. In the trial there was no witness. There was no written, agreed statement of facts. A jury was waived and the cause tried before the court. The only evidence consisted of statements of facts made by the attorneys for the parties. Some of these statements were made in court and some in chambers. After the brief statements by counsel, most of which had been made by plaintiff's attorney, the court asked what defendant had to offer. At that time defendant's attorney made an oral motion to dismiss the case for failure of plaintiff to state a cause of action against the defendant. This motion was overruled. The court then asked several pertinent questions, the answers to which supplied some of the necessary facts. But even then the trial judge was led to declare, At that stage of the proceeding the defendant's attorney wisely announced that the parties to the entire transaction were present in court and stated, 'Let's put them on the stand and clear up that.' The court agreed, and told the attorneys that he thought it was important to determine who was present when the transaction was made and under what circumstances very important exhibits were prepared. After further statements were made, some of which were in answer to questions propounded by the trial judge, and some of which statements were not germane to the issues, the attorney for the defendant announced, 'I have no further exhibits.' The court then extended another invitation for the defendant to call witnesses, but counsel then suggested that instead of calling the witnesses, he would dictate some facts into the record. This was done. Both parties then rested. The court immediately made his findings in favor of plaintiff and entered judgment in favor of plaintiff and against the defendant for actual damages in the amount of $2,324.70, and for punitive damages in the amount of $500, aggregating $2,824.70. The trial was had and judgment entered June 20, 1960. On the 23rd day of June, 1960, the trial Judge entered this order: 'Motion to set aside verdict or for new trial sustained and defendant granted new trial upon point 7 set forth in said Motion.' Point 7 of defendant's said motion read as follows: 'The verdict and judgment in this cause is improper and is occasioned by the other matters herein mentioned.'
Plaintiff appeals from the order granting a new trial to the defendant.
The facts of the case, while not complicated, are highly unusual and do not fit the facts of any adjudicated case which counsel have cited or which we have seen. On or about March 18, 1958, the plaintiff, George E. Pashalian, who is an Armenian immigrant and who speaks, but does not read, English, went to the S. and L. Motors, a used car dealer in St. Louis, to buy a new six-cylinder 1958 Chevrolet Bel Air four-door sedan. He transacted his affairs with one Theodore F. Lesch of the S. & L. Motors. On that day plaintiff paid S. & L. Motors the sum of $35 cash and received an allowance on his used car of $575. This used car was delivered, and the certificate of title properly assigned to S. & L. Motors. Mr. Lesch then went to the defendant, Big-4 Chevrolet Company, Inc., a new car dealer, of St. Louis, Missouri, and there dealt with Charles Wilson, a salesman for defendant Big-4 Chevrolet Company, and told him that he wanted to buy a car for someone he knew, and asked Wilson to quote a price on the described Chevrolet. The quoted price was agreeable. On or about March 20, 1958, Mr. Lesch returned to the Big-4 Company and gave Mr. Wilson the necessary information concerning the name of the person in whom title papers should be made. Defendant Big-4 Chevrolet then executed a car invoice in the name of plaintiff, George Pashalian, 2901 Renshaw, East St. Louis, Illinois, which was signed and acknowledged before a Notary Public March 20, 1958. Big-4 Chevrolet also prepared the Illinois form for application for Certificate of Title which bears the same date, March 20, 1958. On the same date the Manufacturer's Statement of Origin was signed by defendant Big-4 Chevrolet Company, which was transferred to George Pashalian. The invoice set out the extra equipment such as heater, white wall tires, antifreeze and other items, bringing the total sale price to the amount of $2,225. The exact date of delivery of the new car was not shown in evidence, but presumably defendant Big-4 Chevrolet Company delivered the car to Mr. Lesch of S. & L. Motors on or about March 21, 1958. Mr. Lesch on that date gave a check payable to Big-4 Chevrolet Co. for the full purchase price of $2,225. The check was drawn on the Hampton Bank of St. Louis against the account of Automobile Sales and Listings, Inc., which was another company in which Mr. Lesch had an interest. Mr. Lesch then delivered the car to the plaintiff Pashalian. Mr. Pashalian on that date, March 21, 1958, delivered to Mr. Lesch a cashier's check in the amount of $1,714.70, payable to S. & L. Motors and drawn against the Lindell Trust Company, St. Louis, Mo., which was the balance then due S. & L. Motors for his new Chevrolet automobile. At some later date the check which Mr. Lesch gave to defendant Big-4 was returned from the bank with the notation 'account closed.' The invoice, the application for Certificate of Title, the Manufacturer's Statement of Origin, all prepared by defendant Big-4 and mentioned above, together with the usual service policies, were mailed by Big-4 directly to plaintiff Pashalian. The defendant is a new car dealer, and under its franchise with General Motors the defendant was prohibited from selling a new car to a used car dealer. Defendant stated into the record, 'Big-4 Chevrolet Company is a new car dealer and by relations with General Motors is not allowed to handle, to sell a new car to a used car dealer, that it must be sold to an 'envelope' purchaser.'
Plaintiff had dealt solely with Mr. Theodore Lesch of S. & L. Motors. There was no evidence that Mr. Pashalian even knew of the defendant company. However, after delivery of the new Chevrolet to him by S. & L. Motors and after he had paid the complete purchase price of $2,324.70 to S. & L. Motors, he received through the mail and from the defendant the title papers and service policies. The envelope and the other papers gave the name and address of defendant Big-4 Chevrolet Co. One of the service policies entitled the plaintiff to a 1,000-mile inspection and adjustment. These papers were mailed to the plaintiff no earlier than March 25th because the Manufacturer's Statement of Origin was not acknowledged before the Notary Public until that date. About twenty days after plaintiff first got the car and on April 10th, he took it to the defendant Company for his one-thousand mile check-up. The name and address of defendant company appeared on the service policy which plaintiff had received through the mail. He had not at that time mailed the title papers to the State of Illinois to perfect his title. The title papers and the service policies were still in plaintiff's possession when he went to the defendant company for the purpose of having the one-thousand mile check-up. Some employee or representative of the defendant company asked the plaintiff if he had the papers on the car and the plaintiff then gave the papers to him. The plaintiff was told to return about 3:30 that afternoon and that his car would be ready. When plaintiff returned at 3:30 for the car he was taken into the office and was told by the defendant that because Mr. Lesch's check to Big-4 had been returned unpaid and marked 'account closed,' the defendant would not surrender the automobile to the plaintiff nor would it return to him the title papers which he had given to the defendant that morning.
This suit in trover for conversion then followed. The trial court first found the issues for the plaintiff and assessed his actual damages at $2,324.70 (the amount which plaintiff paid to S. & L. Motors for the car) and punitive damages at $500. Later the defendant was granted a new trial.
This action being one at law and having been tried before the court without a jury, this court is required to review the entire record as in equitable proceedings and give such judgment as the trial court ought to have given and as to this court seems agreeable to law. Sec. 510.310, subd. 4 RSMo 1949, V.A.M.S.; Supreme Court Rule 73.01(d), V.A.M.R. The appellate court will defer, when proper, to the findings of the trial court. Anderson v. Abernathy, Mo., 339 S.W.2d 817. The deference usually accorded the determination of a factual issue by the trial court because of its better position to judge the credibility of witnesses appearing before it, is not applicable to cases submitted upon depositions and exhibits or only upon statements of facts made by counsel and where no witnesses testify, as in this case. Giokaris v. Kincaid, Mo., 331 S.W.2d 633; Pitts v. Garner, Mo., 321 S.W.2d 509.
The defendant relies on two propositions of law to sustain the trial court's favorable ruling on defendant's motion for a new trial. First, defendant contends that Lesch was the agent of the plaintiff, Pashalian, in obtaining the automobile from the defendant, Big-4 Chevrolet Company, and that plaintiff should be the one to sustain the loss brought about by Mr. Lesch giving a worthless check to the defendant. The second contention of the defendant is that the sale of the...
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