Spencer v. Dupree
| Decision Date | 26 June 1979 |
| Docket Number | 57843,Nos. 57842,s. 57842 |
| Citation | 150 Ga.App. 474,258 S.E.2d 229 |
| Parties | SPENCER v. DUPREE. DUPREE v. SPENCER. |
| Court | Georgia Court of Appeals |
J. Don Jones, Marietta, for appellant.
Bensonetta Tipton Lane, Atlanta, for appellee.
The facts of this somewhat unusual and convoluted case disclose the following evolution. The appellant in the main appeal, Houston Spencer, in June, 1976, sold his 1972 Buick Electra to a used car wholesaler. At the time of the sale to the wholesaler, the odometer indicated a reading of 54,670 miles. Approximately a week before the sale, Spencer had had the car undergo its annual inspection. The inspection slip prepared by the inspector showed an odometer reading of 94,501. This slip was signed by Spencer. Additionally, under the hood of the car and upon an oil change-car service sticker attached to the car dated approximately eight months earlier in 1975, the mileage was shown to be 83,991. The used car wholesaler sold the car after two days to another used car dealer. At that time, the wholesaler prepared an odometer certificate showing the reading to be 54,705. Approximately a month later, the used car dealer sold the Electra to the appellee Dupree showing an odometer reading at that time of 54,915. Several months after the original sale from Spencer to the wholesaler, the wholesaler determined that the original odometer certificate from Spencer to it was missing from the file maintained on the vehicle. Spencer was presented with a second certificate for his signature showing the mileage as originally shown on the odometer certificate, to wit: 54,670. Spencer admitted that he signed the certificate not knowing the actual mileage but believed that the reading was substantially correct. Ms. Dupree brought suit against Spencer seeking triple damages or $1,500 whichever was greater, plus costs of litigation and attorney fees, as provided for in 15 United States Code §§ 1984 and 1988 (b). The trial court directed a verdict for Ms. Dupree as to a violation of the pertinent statute (1984) but denied the motion as to the question of intent to defraud. A jury returned a verdict for Ms. Dupree in the amount of $1,500 as damages. The trial court subsequently awarded Ms. Dupree $839.28 as costs of litigation and $1,200 as attorney fees, plus $150 as expenses for failing to file admissions in a timely fashion. Spencer brings this appeal enumerating ten alleged errors. Ms. Dupree brings a cross appeal complaining that the award of only $1,200 attorney fees was grossly inadequate. Held :
1. The issues presented by the two appeals arise out of a common record and are closely related; consequently, we will treat the two appeals together.
2. 15 U.S.C. § 1988 provides generally that the seller (transferor) of a vehicle must give in writing to the purchaser (transferee) in connection with the transfer of ownership of a motor vehicle either a disclosure of the actual cumulative mileage registered on the odometer or that the actual mileage is unknown if the odometer reading is known to be different from the actual number of miles the vehicle has actually traveled. It is a violation of the section for the transferor to violate any rules under the section Or to give a false statement to a transferee in making any disclosure required by the rules. The trial court concluded that there was no dispute that Spencer had violated a rule imposed by the statute by failing to state that the actual mileage was unknown to him, as he admitted, and reserved for the jury whether Spencer's statement that the odometer reading was 54,601 was deliberate and with intent to defraud.
Under the facts presented, we have no hesitancy in concluding that the trial court was warranted in granting a partial directed verdict on the question of whether the statute had been violated. The practice of preparing an odometer statement simply on the basis of the odometer reading and then failing to disclose that the actual mileage is unknown demonstrates a reckless disregard for the basic purpose of the act as well as its specific requirements. In light of Spencer's duty under the act, it was proper for the trial court to conclude that an erroneous statement of actual mileage without verifying the accuracy is such recklessness as to demand a conclusion that the statute had been violated. Kantorczyk v. New Stanton Auto Auction, 433 F.Supp. 889, 893 (D.C.Pa.1977); Duval v. Midwest Auto City, 425 F.Supp. 1381 (D.C.Neb.1977) (affd. 578 F.2d 721). There being no disputed fact, the directed verdict as to the violation of the statute was correct. State Farm &c. Ins. Co. v. Snyder, 125 Ga.App. 352, 187 S.E.2d 878. See Nationwide Mut. Ins. Co. v. Ware, 140 Ga.App. 660, 664, 231 S.E.2d 556. Enumeration No. 2 is without merit.
3. Spencer however further argues in Enumerations 1 and 9 that the directed verdict was in error because the court granted the motion prior to the conclusion of the defendant's case. The facts show that Ms. Dupree's counsel elicited testimony from the wholesaler that Spencer had completed an odometer statement showing a reading of 54,601. Spencer admitted completing the statement and also admitted that he had not verified its accuracy but relied upon the statement of the wholesaler. However, the original of the statement was not produced nor introduced into evidence. After both sides had rested, the partial directed verdict had been granted, plaintiff (Ms. Dupree) had completed her opening argument, and defendant had commenced his, counsel for Spencer, when referring to the odometer statement signed by Spencer, realized that the document had not been introduced into evidence. He then sought to have the trial court reverse the earlier granted motion for directed verdict. Acting in its discretion, the trial court allowed counsel for Ms. Dupree to show that the original document signed by Spencer could not be found, though a signed second original apparently was available, and that the original could not be produced. Counsel for appellee then recalled the wholesaler and had that witness identify the document as the one signed by Spencer. The document was admitted and counsel for Spencer completed his closing argument. These actions taken by the trial court were all properly objected to by counsel for Spencer. Spencer enumerates as error the grant of the motion for directed verdict on the issue of violation of the statute and against Spencer's counterclaim before the plaintiff had rested her case or before all the evidence had been presented.
We disagree with the conclusion offered by appellant Spencer. The jury had at the least the substance of all the evidence necessary to reach a resolution of the issues before them. So also did the trial court. At most, the trial court simply allowed the record to be perfected so that the jurors and this court could see that which the witnesses had all fully discussed. The trial judge has a wide discretion in the handling of a trial, and we find no error in allowing the plaintiff to re-open its case after it had rested to produce affirming documentary evidence. This was not new evidence. The trial court did not allow the plaintiff to supply missing facts, thus its ruling was based upon sound grounds. We find no manifest abuse of discretion in allowing the further evidence. Mobley v. State, 221 Ga. 716(4), 146 S.E.2d 735; Gotel v. State, 137 Ga.App. 461, 224 S.E.2d 93. Under the facts of this case, the rule typified by the case of Dalton Amer. Truck Stop v. ADBE Dist. Co., 146 Ga.App. 8(1), 245 S.E.2d 346 has no application.
4. The same conclusion must be reached as to...
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