Peacock Buick, Inc. v. Durkin

• Decision Date: 24 April 1981
• Docket Number: No. 790530,790530
• Citation: Peacock Buick, Inc. v. Durkin, 221 Va. 1133, 277 S.E.2d 225 (1981)
• Court: Virginia Supreme Court
• Parties: PEACOCK BUICK, INC. v. Jane Enid DURKIN. Record

Page 225

277 S.E.2d 225

221 Va. 1133

PEACOCK BUICK, INC. v. Jane Enid DURKIN.

Record No. 790530.

Supreme Court of Virginia.

April 24, 1981.

Zachary B. Cotner, Falls Church, for appellant.

H. Wise Kelly, III, Fairfax (Kelly, Louk, Lawson & Kelly, Fairfax, on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

STEPHENSON, Justice.

Jane Enid Durkin sued Peacock Buick, Inc., to recover both compensatory and punitive damages resulting from Peacock's alleged unlawful conversion of her automobile. A jury returned a verdict for Durkin and awarded her compensatory damages of $2,500.00 and punitive damages of $7,500.00. Peacock moved the court to set aside the verdict and to enter judgment for it, or, in the alternative, to grant Peacock a new trial on the issue of punitive damages. The trial court overruled the motions, but remitted the compensatory damage award to $2,100.00. Judgment was thereafter entered on the verdict as modified by the court.

These are the dispositive issues raised by this appeal:

I. Whether the court erred by permitting Durkin's counsel to examine Peacock's salesman, Jack Glasser, regarding unfair business practices in the automobile trade.

II. Whether the question of punitive damages was improperly submitted to the jury.

In early January, 1978, Durkin, while shopping for a new car, went to Peacock where she met its salesman, Jack Glasser. Glasser quoted her a price, in writing, which included a trade-in allowance of $3,500.00 on Durkin's car.

After comparing other dealers' proposals, Durkin returned to Peacock and entered into a contract for the purchase of a 1978 model Buick automobile. The sales contract, prepared by Glasser, contained the price previously quoted to Durkin, including the trade-in allowance of $3,500.00. Since the car had to be ordered, Durkin paid a deposit of $100.00 and left with the understanding that Glasser would call her when the car arrived. Glasser took the contract to Russell Creekmore, Peacock's sales manager, who ordered the car.

On February 21, 1978, Durkin went to Peacock to take delivery. She delivered the trade-in vehicle to Peacock and completed all documents necessary for delivery of the new car. Peacock accepted Durkin's check for $3,427.00, and Durkin was given the keys to the new automobile and copies of all documents. License tags were transferred from her old to her new car and an inventory sticker was placed on the window of the trade-in.

Upon leaving Peacock in her new automobile and driving it a short distance, Durkin noticed the gas gauge registered empty. Fearing she would run out of gasoline, she returned to Peacock to acquire some. Peacock sent a mechanic out in the new car to fill the tank. While waiting for his mechanic to return, Creekmore discovered a $1,000.00 "error" in the transaction. Creekmore contended that the trade-in value should have been $2,500.00, rather than $3,500.00. Creekmore informed Durkin that she could not retain the new car unless she paid him an additional $1,000.00. While attempting to explain the discrepancy to Durkin, Creekmore became angry and Durkin began to cry. Creekmore called for Peacock's President, Michael Peacock, and, upon being advised of the situation by Creekmore, Mr. Peacock told Durkin that unless she paid the $1,000.00, he would retain the automobile. Durkin informed Mr. Peacock that Peacock was acting illegally and that she was going to call her lawyer. Mr. Peacock appeared to "panic" and told Durkin not to get a lawyer because litigation would take two years and by the time the matter got through the courts it would cost her more than it was worth.

When Durkin refused to pay the additional money, Peacock took possession of the keys to the new automobile from the mechanic and, over Durkin's protests, kept the new car and returned the checks and the old car to Durkin.

I.

The court, over Peacock's objection, permitted Durkin's counsel to question Glasser about certain unfair business practices known in the automobile trade as "low balling", "high balling", and "bumping". ¹ Peacock contends that this evidence was irrelevant and highly prejudicial. Glasser's testimony demonstrated that he was thoroughly conversant with these terms, although he denied having ever used the practice himself.

A material issue in this case was whether Peacock's appraisal of Durkin's trade-in car was an innocent "mistake" or a willful or wanton act. Glasser conceded that the circumstances of the transaction were consistent with what would have happened if Durkin were "lowballed". It was for the jury to decide if this was indeed the case. In doing so, the jury had the right to know that "lowballing" is sometimes practiced in the automobile trade.

Evidence having rational probative value and which adds force and effect to other evidence will be admitted unless some other rule requires its exclusion. Levine v. Lynchburg, 156 Va. 1007, 1014, 159 S.E. 95, 97 (1931). "It is obvious therefore that a great deal must necessarily be left to the discretion of the court of trial, in determining whether evidence is relevant to the issue or not." Early v. Wilkinson & Hunt, 50 Va. (9 Grat.) 68, 77 (1852). We cannot say, in view of all the facts and circumstances present, that the trial court abused its discretion.

II.

A more important issue presented relates to the law governing the award of punitive damages in a case of unlawful conversion and whether the evidence in the present case supports such an award.

As a general rule, an award of punitive damages is proper only when actual malice, or malice in fact, has been established by the evidence. Jordan v. Sauve and Koons, 219 Va. 448, 452, 247 S.E.2d 739, 742 (1978); Lee v. Southland Corp., 219 Va. 23, 27, 244 S.E.2d 756, 759 (1978); F. B. C. Stores, Inc. v. Duncan, 214 Va. 246, 252, 198 S.E.2d 595, 599 (1973); Gaut v. Pyles, 212 Va. 39, 42, 181 [221 Va. 1137] S.E.2d 645, 647 (1971); Giant of Virginia v. Pigg, 207 Va. 679, 685, 152 S.E.2d 271, 277 (1967). Cf. Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632 (1981). Legal malice is not sufficient. ² In Lee we said that actual malice may be shown if the defendant's actions were "prompted by ill will, malevolence, grudge, spite, wicked intention or a conscious disregard of the rights of another." 219 Va. at 27, 244 S.E.2d at 759. An examination of the jury instructions...