Roy Gladen Buick, Inc. v. Sterling

• Citation: 524 S.W.2d 590
• Decision Date: 26 June 1975
• Docket Number: No. 5449,5449
• Parties: ROY GLADEN BUICK, INC., Appellant, v. St. Peter STERLING, Appellee.
• Court: Texas Court of Appeals

Page 590

524 S.W.2d 590

ROY GLADEN BUICK, INC., Appellant, v. St. Peter STERLING, Appellee.

No. 5449.

Court of Civil Appeals of Texas,

Waco.

June 26, 1975.

Rehearing Denied July 17, 1975.

Nall, Harrison & Nall, Sherman, for appellant.

Geary, Brice, Barron & Stahl, Gerald P. Urbach, David A. Coggin, Dallas, Weisberg & Weisberg, Denison, for appellee.

OPINION

JAMES, Justice.

This is a case involving the conversion of an automobile, growing out of the sale of an automobile by a dealer to a customer. The trial court based upon a jury verdict awarded actual and exemplary damages to Plaintiff-Appellee Sterling (the customer) against Defendant-Appellant Roy Gladen Buick, Inc., (the dealer) from which the dealer appeals. We affirm.

Plaintiff-Appellee Sterling sued Defendant-Appellant dealer, alleging breach of contract for the sale of an automobile to Plaintiff and that Defendant converted said automobile by taking it from Plaintiff after the sale. Plaintiff sued for actual damages, and exemplary damages based upon the alleged wilful and malicious actions of Defendant. The jury verdict was favorable to Plaintiff Sterling, and based upon same the trial court entered judgment for Plaintiff against Defendant for $845.00 actual damages, plus interest, and $5000.00 exemplary damages.

By their answers to the special issues the jury found some facts and failed to find other facts. The facts found by the jury are as follows:

(1) On May 15, 1971, Plaintiff Sterling offered to purchase the 1970 Buick from Roy Gladen Buick, Inc., for $1400.00 plus the trade-in of his 1969 Chevrolet Impala automobile;

(2) Roy Gladen Buick, Inc., acting trhough its agents, servants, and employees, on May 15, 1971, accepted Plaintiff's offer as stated in (1) hereinabove;

(2A) A. D. Lummus, the salesman working for the dealer, had the apparent authority to make the above agreement with Plaintiff for the sale of the 1970 Buick in question;

(3) On May 15, 1971, Roy Gladen Buick, Inc., acting through its agents, servants or employees orally agreed that Plaintiff could pay the balance owing on the 1970 Buick in question on Monday, May 17, 1971;

(4) On May 15, 1971, the Defendant dealer, acting through its agents, servants, or employees, orally agreed that it would deliver title of the 1970 Buick to Plaintiff on Monday, May 17, 1971;

(5) On Monday, May 17, 1971, Defendant dealer refused to deliver title of the 1970 Buick to Plaintiff:

(6) On Monday, May 17, 1971, Plaintiff offered to pay the balance ($1400.00) owing on the 1970 Buick to Defendant dealer;

(7) On Monday, May 17, 1971, Defendant dealer refused to accept payment by Plaintiff of the $1400.00 balance owing on the 1970 Buick;

(8) Plaintiff Sterling was in possession of the 1970 Buick on Wednesday, May 19, 1971;

(9) On Wednesday, May 19, 1971, Roy Gladen took the 1970 Buick from the possession of Plaintiff Sterling;

(9A) That Roy Gladen converted the 1970 Buick to the use of Defendant Roy Gladen Buick, Inc.;

(10) That at the time of such taking, Roy Gladen was acting in furtherance of the business of Roy Gladen Buick, Inc.;

(11) The reasonable market value of the 1969 Chevrolet Impala (traded in by Plaintiff) in Grayson County, Texas, on or about May 19, 1971, was $1650.00;

(12) Such taking of the 1970 Buick from Plaintiff's possession was done wilfully and maliciously. In this connection the trial court gave to the jury the following definition: 'By the term 'wilfully and maliciously' is meant the intentional doing of a wrongful act without just cause or excuse; that is, if a wrongful act is intentionally done without just cause or excuse for believing it to be right or legal, or done with conscious disregard to the rights of others, then such act is wilfully or maliciously done. Wilfulness and intent may be inferred by the actions and conduct of the wrongdoer.'

(13) Plaintiff Sterling should be awarded exemplary damages in the amount of $5000.00.

(24) The contract price at which Defendant dealer sold the 1970 Buick to Paul Anderson was $3504.00.

The jury failed to find as follows to the following special issues:

(14) They failed to find that on or about May 15, 1971, Plaintiff Sterling represented to Roy Gladen Buick, Inc., its officers, agents or employees that he had purchased the 1969 Chevrolet Impala as a new automobile;

(18) They failed to find that on or about May 15, 1971, Plaintiff Sterling represented to Defendant dealer, its officers, agents or employees, that he had a new car warranty on the 1969 Chevrolet Impala automobile;

(22) They failed to find that the agreement by Defendant to make the sale in question was conditioned upon Plaintiff Sterling delivering a new car service warranty; and (23) They failed to find that after Defendant took possession of the 1970 Buick automobile, that it (Defendant) notified Plaintiff's attorney that said Buick automobile would be held for a reasonable length of time, to be delivered at the same price, during which time it would accept delivery of the Chevrolet automobile, undamaged, provided it was accompanied by a new car warranty or service policy.

As stated above, based upon the above jury verdict, the trial court entered judgment in favor of Plaintiff Sterling against the Defendant for $845.00 actual damages plus interest, and $5000.00 exemplary damages, from which Defendant-Appellant appeals.

Appellant asserts by his points one through five that there is no evidence to support the jury's answers to Special Issues Numbers 12 (that the taking of the car was wilful and malicious) and 13 (that Plaintiff was entitled to $5000.00 exemplary damages). Further, that the jury's answers to Special Issues 12 and 13 were so against the great weight and preponderance of the evidence as to be manifestly unjust. We overrule these contentions.

Plaintiff-Appellee St. Peter Sterling was a black man sixty-five years of age and retired at the time of trial. Prior to his retirement, and at the times material to this controversy he was caretaker of a Methodist Church located in Denison, Texas. He had had a fifth grade education.

Defendant-Appellant Roy Gladen Buick, Inc., is a Buick retail dealership located at Sherman, Texas, headed by Roy Gladen, its president.

At times material to this controversy Plaintiff Sterling was the owner of a 1969 Chevrolet Impala automobile. About two weeks before May 15, 1971, Sterling went to Defendant dealership and made an effort to purchase a 1970 gray Buick which Defendant then had in stock. Plaintiff at that time talked to Roy Gladen, and tried to trade his Chevrolet for the 1970 Buick. The matter ended when Roy Gladen offered to sell him the Buick for Sterling's Chevrolet and $2195.00 difference. Sterling thought this was too much difference to pay and did not buy the Buick.

Then on Saturday, May 15, 1971, Plaintiff Sterling came back to Defendant dealership and tried to buy a different 1970 Buick which was similar to the car he had tried to purchase earlier.

On May 15, 1971, Sterling talked to A. D. Lummus, an automobile salesman who had been working for Defendant about three months, and who was not permitted by his employer to appraise automobiles for trade purposes.

After examining Sterling's Chevrolet, Lummus contacted Harry Parks, another salesman who worked for Defendant, and Lummus and Parks both inspected Sterling's Chevrolet and drove it around the block. Sterling offered to trade in his Chevrolet and pay $1400.00 difference for the 1970 Buick. After some bargaining back and forth, Parks told Lummus, in effect: 'We've got to sell some cars. Go ahead and sign the man up.' Whereupon Lummus filled out and prepared a printed form in triplicate entitled, 'Retail Order for a Motor Vehicle,' showing Sterling to be the purchaser of the 1970 Buick by trading in his 1969 Chevrolet and paying $1400.00 difference. Sterling signed this form as purchaser and A. D. Lummus signed it as 'Dealer or his Authorized Representative,' and Sterling was given a copy.

Sterling told Lummus that he wanted the car financed through Associates Finance Service in Denison, Texas, whose manager was O. T . Winters. Sterling's 1969 Chevrolet was currently being financed with Associates, who had his title certificate and other car papers at that time. Winters had financed other cars for Sterling over a period of some twelve to fourteen years.

At Sterling's request Lummus called Winters on the telephone about financing the 1970 Buick. Winters told Lummus that he would finance the Buick for Sterling; but since it was Saturday, his office was closed and he would not be able to have a check ready for the $1400.00 difference and produce the title papers on Sterling's Chevrolet until the following Monday, May 17, 1971. Lummus arranged with Winters for him and Plaintiff Sterling to meet at Winter's office about 9 A.M., Monday, to complete the deal.

After this, Sterling left in his Chevrolet and went back to Denison. Sterling called Winters on the telephone and verified that Winters would finance the 1970 Buick. Then (this still being Saturday afternoon) Sterling went back to Sherman to the Buick dealership and asked Lummus if it would be all right for him to pick up the Buick and drive it over the weekend, and leave his Chevrolet with them. Lummus agreed, whereupon Sterling left Lummus his Chevrolet and its keys, and Sterling was given the keys to the Buick and drove it back home to Denison.

On this Saturday, May 15, 1971, Lummus agreed to deliver title of the Buick to Sterling on Monday, May 17, 1971, at which time Sterling agreed to pay the $1400.00 difference and deliver the title to the Chevrolet to Defendant, and to accomplish this Lummus and Sterling agreed to meet at the office of Associates Finance Service at Denison, Texas, with Mr. Winters at or about 9 A.M., on said Monday, May 17, 1971.

However, on the morning of Monday, May 17, 1971, Lummus drove the 1969 Chevrolet (that Sterling delivered to him the...