Price v. Ford Motor Credit Co.

• Decision Date: 06 October 1975
• Docket Number: No. KCD,KCD
• Citation: 530 S.W.2d 249
• Parties: Bossie T. PRICE, Plaintiff-Respondent, v. FORD MOTOR CREDIT COMPANY, Defendant-Appellant. 26901.
• Court: Missouri Court of Appeals

Page 249

530 S.W.2d 249

Bossie T. PRICE, Plaintiff-Respondent, v. FORD MOTOR CREDIT COMPANY, Defendant-Appellant.

No. KCD 26901.

Missouri Court of Appeals, Kansas City District.

Oct. 6, 1975.

Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.

James B. Lowe, Michael H. Fishman, Kuraner, Dingman, Brockus, Kinton & Lowe, Kansas City, for defendant-appellant.

Arthur C. Popham, Jr., Popham, Popham, Conway, Sweeny & Fremont, Kansas City, for plaintiff-respondent.

Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.

DIXON, Judge.

Defendant Ford Motor Credit Company appeals from a jury verdict of $600 actual and $25,000 punitive damages for wrongful conversion of plaintiff Bossie T. Price's automobile. Plaintiff purchased the automobile in 1969 under a retail installment contract which was assigned to defendant. Payments were due the twenty-eighth day of each month. A combination of faulty bookkeeping by defendant and the loss of one payment in the mail resulted in steps that led to repossession of the automobile by defendant on April 6, 1971.

Prior to the consideration of the events of March and April of 1971, the history of the Price accounts needs to be related. The Price account was paid late on many occasions. On several of these occasions, the defendant undertook collection activity. Significantly, although the payment was often late, the defendant had not exercised its right to accelerate. In July, 1970, an agent of the defendant, acting pursuant to directions from the then officer in charge at Gary, Indiana, called on plaintiff and received a cash payment. For this, he gave a receipt, and pursuant to his directions, forwarded the funds to the Gary office. He designated the payment with the account number given to him as being that of plaintiff in the written instructions received from the defendant's office. The account number was erroneous, and the payment was never properly recorded to plaintiff's account until plaintiff's lawyer, in the course of taking depositions, caused it to be located and properly identified. There was also an error in the summary of payments for collection purposes because of a clerical error in failing to include in the computer data a payment made in July of 1969. Both of these errors which had the cumulative effect of showing plaintiff's account two months delinquent when it was not were solely the result of errors by defendant's personnel. Thus, in January and February, Mr. Grasa, the person in charge of the collection of the Price account, was possessed of erroneous information as to the status of plaintiff's account. The correct status of plaintiff's account in January of 1971 was that it was current, a fact which some of the defendant's records reflected, as testified to at trial. Thus, some agents of the defendant knew or should have known of the correct status of the account. This confusion in the defendant's record keeping carried on through the preparation for trial, the defendant filing just before trial amended answers to interrogatories showing the correct status of the account.

The events occurring in March and April of 1971, considered in the light of this history of the account, pose the issues.

On April 1, defendant's employee, Paul Colyer, called at the Price home demanding payment. Mrs. Price claimed the payments had been made and showed him receipts for money orders made out in the amounts due and payable to defendant. Mr. Colyer took no action, but called Grasa.

A payment had been due on February 28. Plaintiff was in Gary, Indiana working, and he purchased a money order and mailed it in the envelope provided by the defendant. The defendant also purchased another consecutively numbered money order to another payee mailed at the same time, and in due course, received by that payee. The one to defendant was never cashed and, ultimately, plaintiff received reimbursement from the money order company.

In any event, Mr. Grasa, on March 22, ordered repossession of plaintiff's car. This was six days prior to the due date of the March 28 payment. Admittedly, Grasa was acting on the assumption that plaintiff owed three payments when, in fact, assuming to receipt was made by defendant of the February money order, only one payment was due.

Mr. Grasa spoke by telephone with Mrs. Price on April 2. She gave him the numbers of the money orders. He told her that defendant would not repossess the car until she could verify whether the money orders had been received. Nevertheless, Mr. Grasa did not inform defendant's repossession agent, who had been notified on March 22 to repossess the Price automobile, about this promise. Nor did Mr. Grasa investigate to determine if the money orders had been issued. There was no further contact between plaintiff and defendant until April 6 when the car was repossessed.

In the meantime and on March 26, the payment which plaintiff thought was due March 28 was received by defendant's agent. There is a dispute as to when the information as to this payment would or should have reached Grasa, but in any event, it was received at a bank lock box on March 26, eleven days prior to the repossession.

Thus, when all is said and done, the welter of evidence concerning payments boils down to the basic factual situation that Grasa should have known that plaintiff was only one payment in arrears. He further knew by his own admission that plaintiff claimed to have purchased a money order and mailed it to defendant. By the admission in its answer filed, the defendant claims Grasa promised only to check the lock box for the missing payment, an action he never took, for by the defendant's own testimony, Grasa would have discovered the March 26 payment by any sort of a check of payments made by plaintiff, and that would have apprised him that the order of March 22 to repossess was premature but for the mistaken belief that plaintiff was three payments in arrears.

The evidence offered by the defendant and its exhibits show that there were two separate computerized records made by the defendant. One might be characterized as a serial listing of accounts showing current payments and the other an account receivable ledger which showed the current balance and reflected all payments credited. Both of these records were in error until after the litigation had progressed to the stage of depositions. The account receivable ledger was in error as to only one payment (the July, 1970 payment misidentified by defendant with an incorrect account number). Grasa, even after repossession, never checked the more basic account receivable ledger for, in his preparation of the repossession analysis, he used a balance of $1,604.32, which accounts for only twenty payments, while it is conceded the plaintiff made 21 payments.

The confusion engendered by the evidence does not stand alone. The pleadings and instructions are also confusing. Plaintiff pleaded in four counts, two were dismissed during trial, and two counts (I and II) remained at the time of submission. In prolix fashion, Count I pleaded a cause of action in conversion based on wrongful repossession on alternative factual grounds, viz., first, that all payments had been timely made, and the defendant had no right to repossess, or second, that defendant promised not to repossess until an opportunity was afforded to check on the receipt of payments. This count prayed in terms for only compensatory damages. Count I was reiterated in Count II, and an allegation of wilful and wanton conduct was added. Count II prayed in terms for only punitive damages.

When the cause was submitted, the trial court gave an instruction (No. 2) embodying the theory that all payments had been made. This instruction referred to 'Count I.' Likewise, the court gave an instruction on the theory that defendant had promised to withhold action and referred to this as 'Count II.' The court further instructed the jury by Instruction 11 that if they found for plaintiff on Count I, they must find for defendant on Count II and, conversely, if they found for plaintiff on Count II, they must find for defendant on Count I. So instructed, the jury returned a verdict for plaintiff on 'Count II.'

The damage instructions then authorized by separate instructions actual damages on either count and punitive damages on either count.

Defendant claims instructions 2 and 4 were improperly given because they are inconsistent with the pleadings and 'unfairly permitted the jury two opportunities to find against defendant.'

The propriety of instructions 2 and 4 and the trial court's requirement by Instruction 11 of a finding on only one theory is not necessary for decision. The defendant in his motion for a new trial does not even mention Instruction No. 2. The references to Instruction No. 4 do not, in the vaguest way, raise the issue presented in the defendant's brief. The points are simply not preserved for appellate review. Rule 78.07. Helming v. Adams,509 S.W.2d 159, 168 (Mo.App.1974); Robinson v. St. John's Medical Center, Joplin, 508 S.W.2d 7, 11 (Mo.App.1974); Harding v. Grant City Sale Barn, Inc., 492 S.W.2d 99, 103 (Mo.App.1973).

Defendant assigns as error the giving of the punitive damage instruction, claiming there was no evidence of wilful, wanton or malicious misconduct. As defendant states, the standard for assessment of punitive damages is that there be a wrongful act intentionally committed and without just cause or excuse. The defendant must know the act was wrongful when he did it. Beggs v. Universal C.I.T. Credit Corporation, 409 S.W.2d 719, 35 A.L.R.3d 1007 (Mo.1966); Luhmann v. Schaefer, 142 S.W.2d 1088 (Mo.App.1940). As plaintiff points out, legal malice also can arise from acts done in reckless disregard for another's rights. Pashalian v. Big--4 Chevrolet Company, 348 S.W.2d 628 (Mo.App.1961); Klingbiel v. Commercial Credit Corporation, 439 F.2d 1303 (C.A. 10, 1971). Good faith mistake is a defense to a malicious misconduct...