Rustin Oldsmobile, Inc. v. Kendrick, 46147
| Decision Date | 21 April 1971 |
| Docket Number | No. 46147,No. 1,46147,1 |
| Citation | 123 Ga.App. 679,182 S.E.2d 178 |
| Parties | RUSTIN OLDSMOBILE, INC. v. John P. KENDRICK. * |
| Court | Georgia Court of Appeals |
Grogan, Jones & Layfield, Lee R. Grogan, Columbus, for appellants.
Arthur L. Falkenstorm, Roberts & Kilpatrick, Samuel W. Worthington, III, Co-lumbus, for appellee.
Syllabus Opinion by the Court
1. Where there is no certificate of immediate review as to the denial of summary judgment, and the case has been appealed after final judgment, an enumeration on the denial of summary judgment will not be considered. Moulder v. Steele, 118 Ga.App. 87(3), 162 S.E.2d 785.
2. This is an action for fraud and deceit. The evidence, construed in favor of the plaintiff's verdict, authorizes the following: Kendrick in answer to an advertisement went to the defendant's place of business with a friend on September 16, 1968, and purchased a red 98 Oldsmobile represented to him by the salesman as being a new car, having a new car warranty, having been used for two weeks as a demonstrator, having made one trip to Florida, and having been driven about 1,300 miles as shown on the speedometer. Plott, the salesman, testified that this car was the only 98 Oldsmobile like the one purchased on November 10, 1967. The car was invoiced as 'new' and the new car warranty was in fact honored. The day after the purchase plaintiff drove the car and found it rocked, felt unsafe, and would not go over 50 miles per hour. He stopped payment on his check, but after assurances from the dealer, allowed the check to be cashed. The seller attempted to balance the wheels, put on new shock absorbers and replaced the tires, which had lost a considerable portion of their tread. Thereafter, plaintiff had replacements of worn out brakes (at a time when his speedometer showed 10,000 miles), fuel pump, carburetor, starter, muffler, and radiator hose. He additionally discovered a substance in the quarter panel described as 'bondo' and as an indication that the car had been wrecked. Most of this difficulty occurred within the first three months of use. Thus, the evidence amply supports a jury inference that the new car warranty had been breached, and that the misrepresentation in the warranty as given was knowingly made. While some of the indications that the car had a long period of use behind it appear to have been ascertainable at the time of purchase, others were not. It is contended that if misrepresentations were made the plaintiff, in the exercise of common sense and his own duty to examine the vehicle, had no right to rely on them (Doanes v. Nalley Chevrolet, Inc., 105 Ga.App. 846, 125 S.E.2d 717) and that he failed to use reasonable diligence in protecting himself from loss (Scott v. Fulton Nat. Bank, 92 Ga.App. 741, 89 S.E.2d 892). Whether he acted prudently and promptly in discovering and acting upon the fraud of the seller is a jury question. Gem City Motors, Inc. v. Minton, 109 Ga.App. 842, 137 S.E.2d 522. Here the plaintiff did have a new car warranty and was not, as in Brown v. Ragsdale Motor Co., 65 Ga.App. 727, 16 S.E.2d 176 bound by any statement that he was not relying on the warranties or representations made to him. The jury was authorized to find that the car was not a new car (that is, with only 1,300 miles of use) and that, if it was not, the...
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...quality of a car sold as new that it has been neither damaged nor used to any significant extent. Accord, Rustin Oldsmobile v. Kendricks, 123 Ga.App. 679(2) (182 SE2d 178) (1971); Gem City Motors v. Minton, 109 Ga.App. 842 (137 SE2d 522) (1964)." Horne v. Claude Ray Ford Sales, 162 Ga.App. ......
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...and the value that the automobile would have had if the representation of newness had been accurate. See Rustin Oldsmobile, Inc. v. Kendrick, 123 Ga.App. 679, 182 S.E.2d 178 (1971). As indicated above, the district court awarded damages equal to the difference between the manufacturer's sug......
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...at the time of purchase and what the value would have been if the vehicle had been as represented. Rustin Oldsmobile, Inc. v. Kendrick, 123 Ga.App. 679, 680(4), 182 S.E.2d 178 (1971). Here, there was evidence of the purchase price of the car, the length of time Hubacher operated it, the def......
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...fraud is proven, it then becomes a question for the jury to determine if punitive damages are warranted. Rustin Oldsmobile, Inc. v. Kendricks, 123 Ga.App. 679, 182 S.E.2d 178 (1971). With respect to fraud, there are extant questions of law and fact. Defendant's motion is, in effect, asking ......