Riehle v. Broadway Motors, Inc., 23305

• Decision Date: 02 October 1961
• Docket Number: No. 23305,23305
• Citation: 350 S.W.2d 89
• Parties: Joseph A. RIEHLE, Appellant, v. BROADWAY MOTORS, INC., a Corporation, Respondent.
• Court: Missouri Court of Appeals

Page 89

350 S.W.2d 89

Joseph A. RIEHLE, Appellant, v. BROADWAY MOTORS, INC., a Corporation, Respondent.

No. 23305.

Kansas City Court of Appeals, Missouri.

Oct. 2, 1961.

Donald L. Mason, Mason, Gant & Gepford, Kansas City, for appellant.

Henry G. Eager, Kansas City, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for respondent.

MAUGHMER, Commissioner.

This is an action for damages based upon alleged fraudulent misrepresentation in the sale of a used automobile. The misrepresentation charged is that the defendant represented the accrued mileage of the vehicle to be 23,550 miles when in truth and fact it was in excess of 70,000 miles. The verdict of the jury as finally received, accepted and recorded, was for $55 actual and $250 punitive damages. Judgment accordingly was entered and plaintiff has appealed. Defendant has not appealed.

Three assignments of error are presented: (1) The Court erred in making verbal remarks to the jury after it had returned a verdict improper in form, said verbal remarks being in effect, a verbal instruction. (2) These oral remarks misstated the law on damages, misdirected on the method of assessing actual damages and was in conflict with the written instructions. (3) It was error to overrule plaintiff's motion for a mistrial following defense counsel's remarks made twice in the presence of the jury that it could find actual damages in the sum of $1.

Defendant Broadway Motors, Inc., is a corporation with its business quarters located at 3401 Broadway, Kansas City, Jackson County, Missouri, and is engaged in the business of selling new and used automobiles. On April 2, 1959, plaintiff and his wife, having looked at used cars elsewhere and three times at defendant's used car lot, decided to make an effort to buy a green 1957 Ford Tudor Sedan which they had seen on defendant's lot. Their dealings with defendant company were all with salesman Brendel. They had tried out this particular car, has driven it about 1 1/2 miles and noted that the speedometer registered 23,500 miles plus. It carried a marked price of $1,495. Plaintiff offered $1,050 cash, plus his 1950 Chevrolet. This offer was accepted and the trade consummated. It is not contended that any verbal representations were made that the mileage shown on the speedometer was the true and actual mileage. However, plaintiff said that he and his wife, in the presence of Mr. Brandel, discussed the speedometer mileage reading. They testified that they relied upon the reading and would 'not have bought anything but a low mileage car'. Mr. and Mrs. Riehle testified that 'they had trouble with the car' almost immediately. It smoked and used an excessive amount of oil. They returned the car to Broadway Motors three or four times where work was done on it. Mr. Riehle said he paid 'half of the material and half of the labor'--a total he thought of between $55 and $60. He had repair work done elsewhere, the aggregate repair costs being $261, and the automobile, he said, operated very well thereafter.

Richard G. Koenig was called as a witness on behalf of plaintiff. He testified that he was the former and original owner of the 1957 Ford involved in this controversy; that he bought the vehicle new in December, 1956; that he owned and operated it until December, 1958, when he traded it to defendant company and that when he traded, the speedometer showed a reading of more than 70,000 miles--he thought 70,900 miles. He said that three or four weeks later while his automobile was being serviced at Broadway Motors he noticed his old car standing on the lot and went over to look at it. At that time he noted the speedometer showed approximately 50,000 miles.

Four witnesses who qualified as experts gave their opinions as to whether or not the miles a used automobile had been driven is an accurate yardstick by which to measure and determine its value. Their expressed views may, we think, be summarized this way: Mileage alone is not a sure and safe criterion by which to measure value. One automobile of the same make and vintage with 70,000 miles which has been properly maintained, may be a more serviceable unit and more valuable than one driven only 23,000 miles which has been abused and has not been properly and promptly serviced. Other tests are more important than the miles driven. However, mileage is one determinative factor and most prospective buyers regard it as of high importance. Mr. Robin G. Bentrup, owner of Broadway motors, and his salesmen stated that they had not changed the speedometer reading.

The case was submitted to the jury on both actual and punitive damages. It is not contended that the instructions submitting these issues were in any way improper or erroneous. After a proper instruction upon the measure of actual damages, the Court gave Instruction No. 3, which we examine more fully as an essential prelude to consideration of the principal question presented by the appeal. Instruction No. 3 charged the jury in part: 'If you find in favor of the plaintiff for actual damages in any amount * * * and you further find and believe that the defendant's acts as submitted for your determination in Instruction No. 1, and upon which plaintiff's right of recover depends, were done maliciously, if at all, then in addition to compensation for actual damages, if any, you also may award plaintiff such amount as punitive damages as you may deem proper under all the facts and evidence * * *' (Emphasis added). Instruction No. 2 told the jury to assess plaintiff's actual damages 'at such sum as you may believe and find from the evidence was the difference, if any, between the value of the automobile' which plaintiff purchased and its value if the mileage had been 23,550 miles. It is apparent we think, that the instructions told the jury: (1) the actual damages, if any, must first be considered and determined by the jury and must be based upon the evidence; (2) punitive damages were not to be awarded unless and until actual damages were allowed.

After deliberation the jury returned a verdict which we set out verbatim:

'We, the jury, find the issues for the plaintiff and against the defendant and do assess his actual damages at blank dollars, and we further find the issues for the plaintiff and against the defendant for punitive damages and do assess his punitive damages at $250.00. Signed, Mr. Goodwin, Foreman.' Whereupon, the following occurred:

'The Court: Members of the jury, under the instructions of the Court, there must be some finding for actual damages; that is, if you are going to find the issues for the plaintiff on the count of punitive damages, there must be some finding with respect to the actual damages. And the amount of the actual damages, if any, is entirely up to the discretion of the jury.

'Mr. Eager: If the Court please, may I ask that you charge them, since you have instructed that, not in writing, that you instruct them they may find the sum of $1.00 actual damages?

'The Court: They may find any amount actual damages that they want and they feel the evidence would warrant.

'Mr. Eager: Including one dollar.

'The Court: What I am trying to tell you is that in order to find the issues for the plaintiff on the matter of punitive damages there must be a finding in favor of the plaintiff on actual damages, and that amount can be whatever you find under the evidence the plaintiff would be entitled to and the amount is a matter within your discretion and jurisdiction. So I will hand you bank the verdict and let you go back to work a little more. (Emphasis added). (Whereupon, the jury again retired to their room to deliberate on their verdict. The following proceedings were had and entered of record Outside the Presence and Hearing of the Jury):

'Mr. Eager: Let the record show that the defendant objects to the Court's oral instructions here as not in writing, and in failing to indicate to the jury to specifically retire and reconsider the instructions as a whole, and in failing specifically to tell them actual damages may be in any sum whatsoever, including one dollar, and in failing to accept this as an illegal and inconsistent verdict under the evidence, or to supply nominal actual damages of one cent or one dollar. To all of which we except for the record on the grounds it is an attempt to coerce a verdict in favor of the plaintiff on actual damages in some sum which the jury heretofore has not found at all period.

'The Court: Are you asking that the Court declare a mistrial and discharge the jury?

'Mr. Eager: No, sir, I didn't ask you that.

'Mr. Mason: Judge, I am. And I was waiting for Mr. Eager to ask for it. I made no comments prior to this time, Your Honor, because I thought it should be made out of the hearing of the jury. This is my first opportunity to take exceptions to the Court's action and more fully to Mr. Eager's action in making remarks and comments to the jury. I think Mr. Eager's remarks, which are in the record and which should also show were made in the presence of the jury, as to they could find just one dollar, which he expressed, was highly inflammatory, prejudicial to this plaintiff. I move the Court declare a mistrial and discharge the jury, both on the grounds which I have enumerated and also on the basis that the verdict which the jury brought back was not in proper form, and, further, on the comments and oral instructions made by the Court to the jury.

'Mr. Eager: I want to point out that first verdict--actually I did not have a chance to see the original form, of course, the Court didn't have a chance to give it to us, but that first verdict itself could very well be corrected by the Court supplying a clerical nominal amount of actual damages so that the verdict at that time, which was formally returned, would be fully consistent under the instructions. If they left it blank, it was, in effect, a finding of no actual damages. That is the burden of my...