Slusher v. Jack Roach Cadillac, Inc.

Citation719 S.W.2d 880
Decision Date23 September 1986
Docket NumberNo. WD,WD
PartiesRobert E. SLUSHER and Judy A. Slusher, Appellants, v. JACK ROACH CADILLAC, INC., Respondent. 37824.
CourtCourt of Appeal of Missouri (US)

Gene P. Graham, Jr., Graham & Graham, Independence, for appellants.

Walter R. Simpson, Sheridan, Sanders & Simpson, Kansas City, for respondent.

Before TURNAGE, P.J., and SHANGLER and KENNEDY, JJ.

TURNAGE, Presiding Judge.

Robert E. Slusher and his wife, Judy, brought suit against Jack Roach Cadillac for fraud in inducing their purchase of a used Chevrolet van. The court entered judgment on a jury verdict in favor of Roach. The Slushers contend there was error in the admission of evidence. Reversed and remanded.

The Slushers went to Roach looking for a van and found one in their price range. On noticing the seats were loose, Mrs. Slusher inquired of the salesman if the van had been wrecked. He assured her that the van had not been wrecked and was in excellent condition. The salesman also represented to the Slushers that the odometer reading of a little over 17,000 miles was accurate.

The Slushers purchased the van and in connection therewith signed a Buyer's Order. The back of the order form contained a number of provisions which were headed "Additional Terms And Conditions." The last paragraph on the back side read as follows:

9. In the event that the motor vehicle Purchaser has ordered is a used vehicle, Purchaser understands and agrees that he will be accepting such vehicle in "as is" condition unless Dealer has agreed to provide Purchaser with a limited warranty in which case the rights of Purchaser and Dealer shall be restricted to the terms of said limited warranty.

After taking delivery of the van, the Slushers drove the van to New Jersey. During the course of the trip the Slushers noticed a noise on the passenger side. On their return home the Slushers experienced difficulty in starting the van. One day a large amount of gasoline leaked from the van, and Mr. Slusher found the source of the leak to be a broken fuel pump.

Mr. Slusher attempted to replace the pump but could not get the new pump to fit into the space available. Mr. Slusher had the van towed to Cable Chevrolet and was later advised by Cable that the fuel pump would not fit because the van's frame had been bent.

Mr. Slusher talked with Roach on several occasions about repairs to the van. When the fuel pump problem developed, Roach told Mr. Slusher to take the van to Cable. When the repairs at Cable were completed, Roach advised Mr. Slusher that it would be necessary to sign a release before the Slushers could pick up the van, because Roach wanted to settle the matter.

When the Slushers went to Cable to pick up the van, Cable Chevrolet presented them with a release. The Slushers refused to sign the release, so Cable would not allow them to pick up the van. Mr. Slusher testified that about three weeks later he was called back to work and needed the van to get to work. Consequently, he signed the release and Cable delivered the van. Mrs. Slusher never signed the release.

At trial the Slushers testified about the representations made by Roach concerning the van and introduced deposition testimony of an insurance adjuster, who testified that the van had previously been wrecked and had been declared a total loss by an insurance company. They also introduced the title history of the van, which showed the odometer had been turned back from about 25,000 miles to about 17,000 miles. Mr. Slusher testified to his opinion of the difference in value of the van as it was represented and in its actual condition.

The Roach salesman was no longer employed by Roach and was said to be unavailable. He did not testify. Roach introduced the release and the Buyer's Order. The paragraph quoted above from the Buyer's Order containing the "as is" language was shown to the jury by a blow-up of the back page of the order. The Slushers objected to the admission of the back page of the Buyer's Order on the ground that a contract provision was not a defense to a fraud action.

The Slushers also objected to the admission of the release, and in the course of the objection counsel mentioned that the release was ambiguous. However, counsel did not request the court to declare the release ambiguous and offered no instructions by which the jury would be called upon to resolve the ambiguity.

The Slushers now contend that the admission of the back page of the Buyer's Order and the display of this page to the jury by means of the blow-up was prejudicial error. In Smithpeter v. Mid-State Motor Co., 74 S.W.2d 47, 50 (Mo.App.1934), this court held that a defense to an action for fraud in the sale of an automobile could not be predicated upon the contract by which the sale was made. See Ruler v. M & M Motor Co., 231 S.W.2d 277 (Mo.App.1950). See generally, Annot., 24 A.L.R.3d 465, 482-86 (1969 and 1985 Supp.). Roach concedes that a defense to an action in fraud may not be based upon a provision in the Buyer's Order, but contends the "as is" clause is relevant to prove whether or not Roach made any representations concerning the van.

It is apparent that the "as is" clause is not relevant to whether Roach made any representations about the van or its mileage and that the clause is concerned only with the fact that the...

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  • Murray v. D & J Motor Co., Inc.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • May 12, 1998
    ...283 Ark. 196, 672 S.W.2d 899; Tinker v. De Maria Porsche Audi, Inc., 459 So.2d 487 (Fla.Dist.Ct.App.1984); Slusher v. Jack Roach Cadillac, Inc., 719 S.W.2d 880 (Mo.Ct.App.1986); DeLong v. Hilltop Lincoln-Mercury, Inc., 812 S.W.2d 834 (Mo.Ct.App.1991) (including use of "as is"). A sale under......
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    ...Flig, 343 Ill.App. 99, 98 N.E.2d 162, 163 (1951); Tramonte v. Palermo, 640 So.2d 661, 666 (La.Ct.App.1994); Slusher v. Jack Roach Cadillac, Inc., 719 S.W.2d 880, 883 (Mo.Ct.App.1986); Musto v. Mitchell, 105 N.J.L. 575, 576-77, 146 A. 212, 213 (1929); Mullen v. Roberts, 423 S.W.2d 576, 578-79 ...
  • Werremeyer v. K.C. Auto Salvage, Co., Inc.
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    • June 30, 2003
    ...on the seller's representation. DeLong v. Hilltop Lincoln Mercury, Inc., 812 S.W.2d 834, 840 (Mo. App. 1991); Slusher v. Jack Roach Cadillac, Inc., 719 S.W.2d 880, 882 ("[A] defense to an action for fraud in the sale of an automobile could not be predicated upon the contract by which the sa......
  • Urbach v. Okonite Co.
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    ...to lead the jury to decide the case on some basis other than the established propositions in the case. Slusher v. Jack Roach Cadillac, Inc. , 719 S.W.2d 880, 882 (Mo. App. W.D. 1986). Although a lay witness is usually precluded from offering opinions, he or she may testify about facts withi......
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