Shafer v. Timmons

• Decision Date: 28 September 1973
• Citation: 51 Ala.App. 157,283 So.2d 609
• Parties: Ron SHAFER, an Individual d/b/a Ron Shafer Chevrolet Company v. Gerald M. TIMMONS. Civ. 147.
• Court: Alabama Court of Civil Appeals

Page 609

283 So.2d 609

51 Ala.App. 157

Ron SHAFER, an Individual d/b/a Ron Shafer Chevrolet Company v. Gerald M. TIMMONS.

Civ. 147.

Court of Civil Appeals of Alabama.

Sept. 28, 1973.

Lybrand, Sides & Hammer, Anniston, for appellant.

Merrill, Merrill, Vardaman & Williams, Anniston, for appellee.

BRADLEY, Judge.

This is an appeal from a judgment of the Circuit Court of Calhoun County for damages in the amount of $2,000 in favor of the appellee here.

The action was commenced by the filing of a two count complaint alleging misrepresentation of an automobile sold to appellee by appellant. It was alleged that the 1970 Chevrolet Impala was represented to be an 'executive' automobile driven by executives of the General Motors Corporation around the General Motors plant and in going to and from their homes when, in fact, the automobile had been owned and operated by Avis Rent-A-Car Systems, Inc. of Miami, Florida. Trial ensued with a verdict and judgment being entered for appellee in the amount of $2,000. The motion for a new trial was overruled and an appeal was taken from the judgment on the merits and on the new trial motion.

The evidence tends to show that appellee on May 26, 1970 went to appellant to purchase a car. He talked to Jerry Williams, a salesman, who represented to him that the 1970 Chevrolet Impala was an 'executive' car used by officials in driving around the plant and to and from their homes. Williams denies describing the automobile in question as an executive vehicle. The next day appellee purchased the car in question and was given several documents, including a tag receipt. After returning home that evening appellee discovered from reading the tag receipt that the car had been owned and operated by Avis Rent-A-Car of Miami, Florida.

Appellee immediately called the salesman, Williams, and told him of his discovery. The next morning, at 7:30 a.m., appellee went to appellant's and talked to Williams and Bob Shafer, General Manager.

Appellee says he told both of them about his discovery of the misrepresentation and that the motor was knocking. He demanded the installation of a new motor or the return of his car. Appellant's agents offered to repair the car, but this was declined by appellee. The automobile was later repaired at a Chevrolet place in Gadsden.

Appellee testified that he was told that the car was under a full new-car warranty. Appellant's testimony was to the effect that the warranty was partially used up.

There are nine assignments of error but only eight of them are argued. Those not argued are waived. Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 234 So.2d 593.

Assignments three, four and five are argued together and suggest that the trial court erred in refusing to give the affirmative charge for appellant. In support of the assignments of error, appellant argues, (1) that there is no misrepresentation of a material fact, and (2) there is no showing that appellee sustained any damages.

To sustain a cause of action for misrepresentation, the complainant must allege and prove that the defendant misrepresented a material fact. Title 7, Section 108, Code of Alabama 1940, as Recompiled 1958. Material facts are such facts as would induce the injured to take action. Cooper v. Rowe, 208 Ala. 494, 94 So. 725.

The evidence shows that appellee testified that, 'I told him then that I had been told--if he had told me that it was an Avis rental car that I wouldn't have bought it.' The lack of knowledge on the part of the appellee of the previous ownership obviously was such as to materially affect his decision to purchase the automobile. We think this adequately describes material fact as defined by Alabama law. See Standard Oil Co. v. Myers, 232 Ala. 662, 169 So. 312.

The second point made by appellant is whether appellee proved actual damages. The rule in Alabama is that the plaintiff must not only show a material misrepresentation, but also show that he has been damaged, to make out a prima facie case of fraud. Pihakis v. Cottrell, 286 Ala. 579, 243 So.2d 685; Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So.2d 261. In Pihakis, supra, the Supreme Court held that a deed which had been obtained by fraud damaged the plaintiff by creating a cloud on the title although the property had been reconveyed to the plaintiff prior to filing suit. That court had also held that a showing that an automobile claimed to be new, but which was not, was sufficient to sustain a $20,000 recovery. J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443.

In Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484, it was stated that nominal damages may be awarded for the breach of a legal duty without damages or proof of damages but in a fraud or deceit action actual damages must be proved; however, if actual damages can be inferred from the evidence, nominal damages may be awarded even in the absence of proof of compensatory damages.

There was evidence in the instant case, if the jury wished to believe it, showing a breach of a legal duty, i.e., the 1970 Chevrolet Impala was represented as something that it was not, but was there evidence of injury or actual damage? We think so.

The appellee testified that he was told by the salesman for appellant that the Chevrolet Impala was driven by executives of the General Motors Corporation around the plant site and back and forth to their...