O'Rourke v. Blocksom

• Decision Date: 02 March 1918
• Docket Number: 165-1917
• Citation: 69 Pa.Super. 93
• Parties: O'Rourke v. Blocksom, Appellant
• Court: Pennsylvania Superior Court

69 Pa.Super. 93

O'Rourke v. Blocksom, Appellant

No. 165-1917

Superior Court of Pennsylvania

March 2, 1918

Argued October 15, 1917 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 2, Philadelphia Co.-1916, No. 3874, on verdict for plaintiff in case of Frank P. O'Rourke v. Samuel R. Blocksom, trading as S. R Blocksom Motor Company.

Trespass for deceit in the sale of a second-hand automobile. Before Barratt, P. J.

The facts are stated in the opinion of the Superior Court.

The court below charged in part as follows:

[" It has been attempted to get into your heads by the defendant that this transaction was not a sale to this plaintiff of the Lozier automobile, but that really the defendant had sold it to this other company that advanced four hundred and fifty dollars to the plaintiff. I instruct you that there is absolutely nothing in this for you to consider. It is simply a subterfuge, and a mighty thin one, and has no more to do with the plaintiff's status in this case than has the fact that the two-hundred-dollar check of the firm employing the plaintiff was given by the plaintiff to the defendant and accepted by the defendant as part of the purchase-price." ]

[" Well, if you believe that it was misrepresented to him, and that the plaintiff's agent knew that the misrepresentation was a misrepresentation -- and he says here that it was, and that it was a mistake; and if you further believe that he was not told otherwise before he purchased the automobile; and if you further believe that he relied upon the statements of the agent in buying it, and would not have bought it except for what the agent told him, then you may find a verdict for the plaintiff, and the measure of damage would be what he paid to the defendant for this automobile, one thousand dollars, together with the thirteen dollars that he paid as interest to that company from whom he borrowed some of the money to pay for the automobile, less what you believe from the evidence the automobile was worth when the plaintiff learned as a fact that it was not as it had been represented to him. To this amount you may add interest from August 4, 1916, the date of bringing of the suit." ]

John F Cassidy testified as follows as to the value of the automobile:

" Q. Did you examine Mr. O'Rourke's automobile -- his Lozier car?

" A. Yes, sir. I looked at the cylinders and the engine.

" Q. You saw the car itself?

" A. Yes, sir.

" Q. When?

" A. Yesterday was the last time I saw it.

" Q. And you made an examination of the motor?

" A. Yes, sir.

" Q. Now, as a result of your examination, will you tell his honor and the jury what the value of that motor car was in the month of March, 1916?

" (Objected to by counsel for defendant.)

" By the Court:

" Q. Did you ever see it before yesterday?

" A. No, sir.

" Mr. Smith: We have proved by the plaintiff that this automobile is in the same condition now as it was in March, 1916.

" The Court: Then, assuming that it is in that same condition now as it was then, the witness may tell us what its market value is to-day, for what this evidence may be worth. I will overrule the objection and give the exception to the defendant.

" By Mr. Smith: Q. What was the value of that motor car in your opinion?

" A. Well, I would judge that the value of it is about $ 150 as she stands."

Verdict and judgment for plaintiff for $ 850. Defendant appealed.

Errors assigned were portions of charge as above and rulings on evidence quoting the bill of exceptions.

Affirmed.

William T. Connor, with him Edgar W. Lank and John R. K. Scott, for appellant. -- The language of the trial judge was improper: Young v. Merkel, 163 Pa. 513; Heydrick v. Hutchinson, 165 Pa. 208; Com. v. Meads, 29 Pa.Super. 321; Burns v. Penna. R. R. Co., 213 Pa. 280.

There was error in the charge of the question of damages: High v. Berret, 148 Pa. 261; Curtis v. Buzard, 254 Pa. 61; Fischer v. Taylor, 257 Pa. 132.

There was error in admission of testimony as to the value of the automobile: Pennock v. Crescent Pipe Line Co., 170 Pa. 372; Shimer v. Eastern Ry. Co., 205 Pa. 648.

Joseph M. Smith, for appellee. -- The charge was not prejudicial to the rights of the defendant: Bernstein v. Walsh, 32 Pa.Super. 392; Com. v. Johnson, 133 Pa. 293; Com. v. Warner, 13 Pa.Super. 461; Herbert v. Rainey, 162 Pa. 530; Com. v. Van Horn, 188 Pa. 143.

There was no error in the charge of the question of damages: High v. Berret, 148 Pa. 261; Stetson v. Croskey, 52 Pa. 230.

There was no error in the admission of testimony on the value of the automobile.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

HENDERSON, J.

The plaintiff's cause of action was a deceit alleged to have been practiced on him by the defendant in the sale of a second-hand automobile. It was stated in an advertisement published by the defendant that the car offered for sale contained a " brand new motor" and the plaintiff testified that the defendant's agent who made the sale told him that the car was in good shape all over with an absolutely brand new motor in it. The car was priced at $ 1,000. On the strength of the representations made the plaintiff accepted the car, delivering in payment therefor a Haynes car owned by him, which was valued by the parties at $ 350, a check for $ 200 and $ 450 in money. The latter sum he obtained from the Auto Transit Company. A witness, Derricson, who acted for the defendant in the transaction stated in his examination that the defendant sold the car to the Auto Transit Company and that the plaintiff bought it from that company. The first assignment of error criticizes that portion of the charge of the court in which the jury was instructed that there was nothing for them to consider in the evidence relating to the alleged sale by the defendant to the Auto Transit Company; that the allegation of a sale was " simply a subterfuge and a mighty thin one." The complaint is not that the evidence was held insufficient to support an allegation of a sale to the Auto Transit Company but that the instruction was given in language unjudicial and prejudicial to the defendant. The comment was not on any testimony which the jury was to take into consideration in determining the rights of the parties but related to an abortive attempt to introduce a defense wholly different from that suggested by the plaintiff's action. That the attempt to show the plaintiff did not buy his car from the defendant was a feeble one is apparent from an examination of the evidence. The Auto Transit Company did not set up a title; no bill of sale or other written evidence of transfer of title was presented at the trial; the plaintiff testified clearly and directly that his transaction was with the defendant's agent; he delivered his car at the defendant's place of business; he gave the check for $ 200 to the defendant's agent, and the defendant stated at different times at the trial that he sold the car to the plaintiff. The $ 550 of the consideration having been furnished by the plaintiff, the price of the car being $ 1,000, more evidence would be required than was produced to support the court in submitting to the jury the inquiry whether the plaintiff had bought the car from the Auto Transit Company for $ 450. The evidence on that subject was so entirely lacking in probability that the court might well characterize it as a subterfuge. The comment made did not interfere with the function of the jury in impartially considering all of the evidence which was submitted and in determining the case according to that evidence. The language used was adopted to inform...