Shepherd v. Eagle Lincoln Mercury, Inc.

• Decision Date: 01 April 1976
• Docket Number: No. 4886,4886
• Citation: 536 S.W.2d 92
• Parties: James C. SHEPHERD, Appellant, v. EAGLE LINCOLN MERCURY, INC., Appellee.
• Court: Texas Court of Appeals

Page 92

536 S.W.2d 92

James C. SHEPHERD, Appellant, v. EAGLE LINCOLN MERCURY, INC., Appellee.

No. 4886.

Court of Civil Appeals of Texas,

Eastland.

April 1, 1976.

Ronald G. McDearman and Carl E. Roberts, McDearman, Lair, Ballas & Sands, Dallas, for appellant.

Seferino Dominguez, Blassingame, Osburn & Dominguez, Dallas, for appellee.

WALTER, Justice.

James C. Shepherd filed suit against Eagle Lincoln-Mercury, Inc., for damages for not correctly disclosing the mileage on the odometer of a used 1972 Lincoln Continental. Judgment was rendered non obstante veredicto for defendant and plaintiff has appealed. He contends the court erred in rendering judgment for the defendant because there is some probative evidence to support the verdict.

The jury found Eagle misrepresented the mileage on the car; that such misrepresentation was a material and substantial fact; that plaintiff relied on such misrepresentation; that plaintiff suffered a monetary loss; that the amount of such loss was $2,250.00; that Eagle executed a disclosure form indicating mileage on the car of 8,280; and, that the car had more miles than indicated on the disclosure form.

We find appellant's statement of the facts accurate. He relates them as follows:

'This is a general fact statement pertinent to all points, giving the background of the transaction made the basis of this suit and the jury findings. Because the facts appear to be undisputed, they will be set out in one narrative.

The basis of this suit is a consumer transaction in which James C. Shepherd is the buyer and Eagle Lincoln-Mercury, Inc. is the seller of a 1972 Lincoln Continental Mark IV automobile. On June 7, 1973, Plaintiff went to the Defendant's place of business and was shown the automobile in question. The Plaintiff decided to buy the car and entered into an installment sales contract with Defendant for the installment price of $9,559.24. At the time of purchase Plaintiff was given an odometer disclosure statement by an agent of the defendant which showed the make, model, and year of the vehicle as well as stating that the car's true mileage was 8,280 miles.

Within two months of this purchase by plaintiff, major repairs were required by the automobile. Mr. Shepherd then wrote to Ford Motor Company inquiring into the history of the car and received a reply from the Ford Company which stated that on May 8, 1972, warranty repair work had been done on the Lincoln and that the mileage at that time had been recorded as 10,100 miles. Subsequently, the plaintiff returned the car to the defendant's place of business.

The defendant had purchased the Lincoln Continental Mark IV from Bob Queen Used Cars, Haskell, Oklahoma and had received an odometer disclosure statement from Queen which stated that the Lincoln had accumulated 8,226 miles. The defendant's used car manager stated that he had been in the automobile business for approximately twelve years and that he had personally inspected the Lincoln carefully and authorized its purchase from Queen. He also stated that he had never done business with Bob Queen Used Cars before this time.'

15 United States Code Annotated,

'SUBCHAPTER IV.--ODOMETER REQUIREMENTS

§ 1981. Congressional findings and declaration of purpose

The Congress hereby finds that purchasers, when buying motor vehicles, rely heavily on the odometer reading as an index of the condition and value of such vehicle; that purchasers are entitled to rely on the odometer reading as an accurate reflection of the mileage actually traveled by the vehicle; that an accurate indication of the mileage traveled by a motor vehicle assists the purchaser in determining its safety and reliability; and that motor vehicles move in the current of interstate and foreign commerce or affect such commerce. It is therefore the purpose of this subchapter to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers with respect to the sale of motor vehicles having altered or reset odometers.

§ 1982. Definitions

As used in this subchapter--

'(1) The term 'odometer' means an instrument for measuring and recording the actual distance a motor vehicle travels while in operation; but shall not include any auxiliary odometer designed to be reset by the operator of the motor vehicle for the purpose of recording mileage on trips.

(2) The term 'repair and replacement' means to restore to a sound working condition by replacing the odometer or any part thereof or by correcting what is inoperative.

(3) The term 'transfer' means to change ownership by purchase, gift, or any other means.

§ 1983. Unlawful devices causing odometer to register mileage other than true mileage driven.

It is unlawful for any person to advertise for sale, to sell, to use, or to install or to have installed, any device which causes an odometer to register any mileage other than the true mileage driven. For purposes of this section, the true mileage driven is that mileage driven by the vehicle as registered by the odometer within the manufacturer's designed tolerance.

§ 1984. Unlawful change of mileage indicated on odometer

It is unlawful for any person or his agent to disconnect, reset, or alter the odometer of any motor vehicle with the intent to change the number of miles indicated thereon.

§ 1988. Disclosure requirements upon transfer of ownership of motor vehicle; promulgation of rules; violations

(a) Not later than 90 days after October 20, 1972, the Secretary shall prescribe rules requiring any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle:

(1) Disclosure of the cumulative mileage registered on the odometer.

(2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.

Such rules shall prescribe the manner in which information shall be disclosed under this section and in which such information shall be retained.

(b) It shall be a violation of this section for any transferor to violate any rules under this section or to knowingly give a false statement to a transferee in making any disclosure required by such rules.

§ 1989. Civil actions to enforce liability for violations of odometer requirements; amount of damages; jurisdiction; period of limitation.

(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of--

(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and

(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.

(b) An action to enforce any liability created under subsection (a) of this section, may be brought in a United States district court without regard to the amount in controversy, or in any other court of...