Scott v. Car City Motor Co., Inc.

• Decision Date: 22 December 1992
• Docket Number: No. WD,WD
• Citation: 847 S.W.2d 861
• Parties: Donald C. SCOTT and Linda L. Scott, Respondents, v. CAR CITY MOTOR CO., INC., Appellant. 45332.
• Court: Missouri Court of Appeals

Page 861

847 S.W.2d 861

Donald C. SCOTT and Linda L. Scott, Respondents, v. CAR CITY MOTOR CO., INC., Appellant.

No. WD 45332.

Missouri Court of Appeals Western District.

Dec. 22, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Dec. 22, 1992.

Application to Transfer Denied March 23, 1993.

Louis C. Accurso and Thomas Stein, Kansas City, for appellant.

J.C. Hambrick, Jr., Schulz, Bender, Maher & Blair, P.C., Kansas City, for respondents.

Before ULRICH, P.J., and SHANGLER and FENNER, JJ.

SHANGLER, Judge.

The defendant Car City appeals a judgment entered on a jury verdict in favor of the plaintiffs Donald and Linda Scott for $5,000 actual damages and $50,000 punitive damages. The claim was submitted to the jury on the theory that Car City fraudulently represented that the van they sold to the Scotts was new. The proof that the Scotts attempted was that in fact the car was not new, but had been wrecked. The question on appeal, among others, is the sufficiency of the evidence to submit the claim.

The van purchased by the Scotts was manufactured by Chrysler and then shipped to Tram Body & Coach Works [TRAM] to be converted. TRAM then converted the van according to the order placed by Car City, a Chrysler dealership. It was the practice that after a van was converted, George Martin, a driver for Car City, would go to TRAM to pick up the vehicle. He inspected the van before driving it to Car City in St. Joseph. When he picks up a van from TRAM, Martin testified, he "look[s] them over everywhere for any kind of damage, for scratches, hail damage, or anything that [he] can find wrong." After Martin finishes the inspection, he reinspects the van with a TRAM employee.

When the new vans arrived at Car City, they were inspected for damage by Bill Casper, then Car City vice-president. When he found any damage, he notified Chrysler or sent it back to Chrysler. Thus, as of August 27, 1986, the date the Scott van was received by Car City, two Car City employees and a TRAM employee had inspected all vans converted by TRAM for damage and found none.

On December 18, 1986, the Scotts purchased a new 1986 Dodge TRAM Conversion Van from Car City for $20,350. Before taking possession, Scott who studied mechanical engineering for one year, thoroughly inspected the vehicle. He checked the odometer statement and matched it to the reading on the van, and test drove the van from St. Joseph to Kansas City and return. Once the Scotts took possession of the van, they brought it back to Car City for warranty repairs several times.

Car City adjusted the hood and tightened the front end several times under the warranty. Car City also tightened the bumper five or six times, and the last time, Car City took the bumper completely off to make sure everything was tight. On June 3, 1987, Car City repaired the left and right doors and the rear door because they were leaking water.

On July 16, 1987, the Scotts' vehicle was vandalized. The vandals sprang the left wing vent to gain access to the inside of the van. The vandals stole the AM/FM radio, tore out the dash, scratched the left door, and damaged the whole window frame. The repairs were done by Mace's body shop. The repairs were not done immediately because the parts had to be ordered.

Sometime in August 1987 after the vandalism, Scott noticed that the van had previously been in a wreck. According to Scott, he made this discovery when one of the workers made a comment that prompted Scott to examine the van. "When I looked at the left side, I seen that the fenders were not the same and knew something was wrong, and I suspected that it had been wrecked."

Scott then drove directly to Car City and talked to Keith Terhune and Scott Clark and told them that he had been sold "a wrecked car." Terhune and Scott of Car City told Scott that they would check with Chrysler to learn if it had been wrecked. Scott was to return several days later for Coder, the general manager of Car City, to inspect the van. Scott was late for the appointment and Coder was not there. That is because, as Scott explained, "on the way out" he took the vehicle to Mace's Body Shop for inspection. Mace pointed out the things that were wrong with the van. Mace explained that when he had changed the vent glass on the left door, "the door was hanging real bad." He looked further and noticed damage on the "left front"; that the left front fender had been replaced; the bumper had been rechromed and was tilted back; and the welding was not a factory weld. Mace noticed also that the left fender had a lacquer paint while Chrysler factory paint is enamel.

Chrysler responded to the request for a computer check of the van purchased by the Scotts. The record at the Chrysler Corporation indicated that "there was no damage when it left the factory," then the van was sent to TRAM, and "[t]here was no damage there." The response also informed them that the records at "Car City Chrysler" show that when the van was received from TRAM there was no damage and that the records of the "Car City Chrysler" body shop show "no repairs of any nature were ever made on this van." The report added that the "body shop foreman states that when he inspected the van he found that the left front fender had been replaced, but the original lining had been used in the replacement." The foreman stated also that paint applied to the fender "is an off shade from the factory paint and, further, that the weld on the fender is not a Chrysler factory weld." The only damage noted from the inspection of the van was to the left front fender. Chrysler disclaimed responsibility for that damage since all the records checked "through the factory, conversion company [TRAM], and their own company" disclosed no evidence that the vehicle was damaged "in any way" when it was delivered to the Scotts.

Coder, president and general manager of Car City, also testified. It was he who initiated the record check through the Chrysler computer system in response to Scotts' complaint that the van, purchased as new, had been in a wreck. Coder testified that the van had not been damaged while it was in Car City's possession. He examined the vehicle and could not observe "anything out of the ordinary" about the welds. Coder acknowledged that his foreman had told him that the weld on the left fender was not a factory weld. ¹ The work to the van under the warranty adjustment of the hood latching, the front bumper, and the leaks on the left side were the "same general areas" that the Scotts complained about as involved in a prior wreck. Coder explained that if there was "anything that was suspicious" to the Car City employees who worked on the van under the warranty corrections, they would have noted it on the repair orders.

Lyle Beckman, a technical advisor with Chrysler, inspected the van on September 16, 1988, and found that the left fender had not been replaced but that the paint on part of the left fender was not Chrysler factory paint. He checked out every complaint made and found that everything else on the van had not been damaged.

It should be noted that Ed Gibson, a friend of the Scotts who had done body repair work, inspected the van for the Scotts in September 1987. He found that the bumper had been rechromed, the left front fender had been replaced, the grill was cracked, and the inner fender was welded to the fender. The weld made was a wire feed weld, distinctively different from the factory spot weld. The findings duplicate in many particulars those noted by Mace the month before when he undertook to repair the damage to the van from vandalism.

Car City asserts that it was error for the trial court to deny its motions for directed verdict and for judgment notwithstanding the verdict because the evidence was not sufficient to submit the claim of fraudulent misrepresentation.

The elements of common law fraud are 1) a representation, 2) its falsity and, 3) materiality, 4) the speaker's knowledge of its falsity or ignorance of the truth, 5) the speaker's intent that the representation be acted on by the hearer in a manner reasonably contemplated, 6) the hearer's ignorance of the falsity of the representation, 7) the hearer's reliance on the truth of the representation, 8) the hearer's right to rely thereon, and 9) injury to the hearer proximately caused by that reliance. Sofka v. Thal, 662 S.W.2d 502, 506 (Mo. banc 1983). The motions for directed verdict and for judgment notwithstanding the verdict should be granted if one or more of these essential elements of the cause of action were not supported by substantial evidence. School Dist. v. U.S. Gypsum Co., 750 S.W.2d 442, 445 (Mo.App.1988). Thus, a failure to establish any one of these essential elements is fatal to recovery. Dolan v. Rabenberg, 360 Mo. 858, 231 S.W.2d 150, 154[2, 3] (1950).

In our review of the trial court denial of a directed verdict at the close of the case, we view the evidence most favorably to the verdict and give it the benefit of all favorable inferences which may be reasonably drawn from the evidence. Black v. Kansas City S. Ry., 436 S.W.2d 19, 23 (Mo. banc 1968). A judgment notwithstanding the verdict is proper only if upon such a view of the evidence, reasonable minds could not differ as to the verdict. Wion v. Carl I. Brown & Co., 808 S.W.2d 950, 952 (Mo.App.1991). The question on this appeal, therefore, is whether the Scotts made a submissible case of fraudulent representation after they are given the benefit of all reasonable inferences from the proof.

In that assessment, fraud is never presumed, but must be proven. Fraud need not be proven by direct evidence, however, but may be established by facts and circumstances. Bayer v. American Mut. Casualty Co., 359 S.W.2d 748, 752[1-4] (Mo.1962). The proof must be of such a positive and definite quality as to convince the judge of the fraud, and if the evidence is as consistent with honesty as with fraud, the transaction...