Star Chevrolet Co. v. Green by Green

• Decision Date: 10 July 1985
• Docket Number: No. 54844,54844
• Citation: 473 So.2d 157
• Parties: STAR CHEVROLET COMPANY v. Kevin GREEN, a Minor, by Next Friend Jim GREEN.
• Court: Mississippi Supreme Court

Page 157

473 So.2d 157

STAR CHEVROLET COMPANY v. Kevin GREEN, a Minor, by Next Friend Jim GREEN.

No. 54844.

Supreme Court of Mississippi.

July 10, 1985.

Thomas M. Matthews, Jr., Parsons & Matthews, Wiggins, for appellant.

Fred Mannino, Page, Mannino & Peresich, Biloxi, for appellee.

Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

I.

We are asked in this case to reexamine the historical shield which the law throws around a minor to protect him by reason of his youth and inexperience from the consequences of entering into a contract with an adult. Kevin Green, a minor from Ocean Springs, disaffirmed a contract for purchase of a 1979 Camaro after the car developed problems. Star Chevrolet Company, Wiggins, Mississippi, refused to return his money unless the vehicle was restored to its original condition. Kevin, through his father, filed suit for rescission of the auto sales contract in the Circuit Court of Stone County. While suit was pending, the Camaro was involved in an accident, rendering it a total loss. The insurance company paid the loss to Kevin, who transferred title to the insurance company for salvage value under the contract.

Star Chevrolet Company obtained a transfer of the proceedings to chancery court. From the decision in favor of the minor, Star Chevrolet appeals, assigning that the chancellor erred in:

I. Failing to grant a motion for summary judgment, since appellee's pleadings were not reformed when this matter was transferred from circuit to chancery court;

II. Finding that the vehicle in question was a luxury and not a necessity to the minor;

III. Finding that a tender had been made by the minor sufficient to require repayment; and

IV. Finding that the car had been "wasted" by the minor, making it unnecessary for him to return the car or its equivalent in order to rescind the contract.

For the reasons set forth below, we affirm.

II.

Kevin Green was 16 years old, about 5'4" tall, and weighed about 115 pounds on August 14, 1981, when he purchased the Camaro from Star Chevrolet. He was accompanied by a Mr. McGillivray, a family friend, who helped negotiate the purchase of the car. Title to the Camaro was in Kevin's name, and the $4,642.50 purchase price was drawn from his savings and from loans from a bank and his grandmother. The question of Kevin's age was not raised by himself or the dealership. It is undisputed that, at the time of sale, Kevin did not falsely represent himself to be of full age; therefore Star Chevrolet contracted with him at its peril. Cf. Johnson v. McAdory, 228 Miss. 453, 88 So.2d 106 (1956).

Kevin brought the car back to Star Chevrolet to repair several problems. He later discovered that the front end of the frame was bent, and that the car contained a Pontiac 305 hp. engine instead of the Chevrolet 350 hp. engine that it was supposed to have.

Some time prior to November, 1981, Green's Camaro became inoperable due to a blown head gasket. The disabled car was parked in front of his Ocean Springs home for some four or five months. On November 16, 1981, Green, through his attorney, Fred Mannino, informed Star Chevrolet that, as a minor, he was disaffirming the contract and demanding the return of the funds he paid for the automobile. On December 11, 1981, Mannino wrote Star Chevrolet that "Kevin is willing to return the automobile for a full refund of his money." Star Chevrolet would not accept the car unless it was restored to its original condition. Therefore, suit was filed on the minor's behalf on January 27, 1982, in the Circuit Court of Stone County.

The car sat up for four or five months in the middle of Kevin's senior year in high school. Finally, Kevin fixed the head gasket himself and, having obtained insurance, began to drive the car again. In June, 1982, the Camaro was destroyed in an accident. The insurance company paid Kevin $5100 under the policy and he signed title to the vehicle over to the insurance company for salvage value.

On June 30, 1982, the circuit court granted a motion in limine ordering Star Chevrolet to refrain from offering any evidence relating to any insurance coverage or proceeds paid for the physical damage to the automobile. The court ordered that insurance was irrelevant to this action and no reference should be made thereto.

Star Chevrolet moved the circuit court to transfer the cause to chancery court because the case involves the rights of a minor and allegations by Star Chevrolet of unjust enrichment. The circuit court sustained this motion and the case was transferred to chancery court on July 2, 1982.

A motion to expedite the refiling of the complaint and answer and to set a trial date was filed on behalf of the minor, pursuant to Miss. Code Ann. Sec. 11-1-39, alleging that a trial date had been set and the parties were poised for a trial prior to transfer. Star Chevrolet answered by alleging that Green had failed to reform his pleadings within 30 days following transfer of the case from circuit to chancery court, in violation of Sec. 11-1-39.

At trial, the chancellor overruled Star Chevrolet's motion for summary judgment on the ground that the case was filed after the effective date of the Mississippi Rules of Civil Procedure so that the distinction between the pleadings and circuit and chancery court had been leveled. The chancellor sustained the minor's motion to expedite by accepting the documents transferred in lieu of requiring a refiling. The chancellor also refused to disturb the circuit judge's order in limine precluding reference to insurance proceeds.

Kevin testified that he lived about 6 miles from school and about 1 mile from work. He used the Camaro to go back and forth to school and to work. When he did not have the car, he used a car pool to get to school and work. During the busy season, February to May, he worked 7 days a week at his job at Gulf Hills Dude Ranch. The period during which his car was disabled overlapped with this busy season. He testified that before he had a car and when his Camaro broke down, he had no problem getting to and from work or school, relying on car pools.

On cross and over objection, Kevin admitted that after he wrecked the car, the insurance company paid him $5100, $500 more than the original purchase price. He used this money to buy another car. He signed the title to the car over to the insurance company at the time of the settlement, without telling the company that he had rescinded the contract with Star Chevrolet.

Robert Regan, Jr., manager of Star Chevrolet, testified that when Kevin's father called him to demand his money back, he, Regan, refused to send Star Chevrolet's wrecker from Wiggins to Ocean Springs to pick up the disabled car. Instead, Regan demanded that Kevin return the car together with title. Regan admitted that before suit was filed his position was that he would take the car back provided it was returned to its original condition. After the vehicle was wrecked, Regan testified that he would have taken the car back and given Green his money, if Star Chevrolet received the insurance proceeds. He said that in his dealings with young men between 15 and 20 years old, it was his personal observation that vehicular transportation had become a necessity for them.

In rebuttal, Kevin testified that no one at Star Chevrolet told him that if he would return his car, they would return his money.

The chancellor awarded a judgment against Star Chevrolet for the purchase price of the vehicle. The court applied the rule of law that he who contracts with a minor does so at his own peril. It was ruled that the minor had "wasted" the vehicle, and, as a result, there was nothing for him to surrender to Star Chevrolet. The chancellor found that even if the minor squandered the consideration, he did not have to return its equivalent in order to rescind the contract. The chancellor ruled that the existence of insurance had no bearing on the case, because Star Chevrolet was not privy to the insurance contract.

III.

REFORMATION OF PLEADINGS

When a case is transferred from circuit court to chancery court, Miss. Code Ann. Sec. 11-1-39 (1972) requires the complaining party to thereafter file amended pleadings within 30 days with the defendant being required to plead within 30 days thereafter unless the time for such shall be restricted or extended by the court.

Appellant argues that this Court should follow Warren v. Smith-Vaniz, 382 So.2d 1088 (Miss.1980), where this Court stated that in the event a matter is transferred from circuit to chancery court, the statutory requirements are mandatory and if the pleadings are not reformed within thirty (30) days, the suit should be dismissed with prejudice. Appellant admits that the Mississippi Rules of Civil Procedure had been effective for one month at the time the matter was originally filed, but maintains that Smith-Vaniz is still controlling so that the appellee's failure to reform his pleadings requires dismissal with prejudice.

Appellee contends that Smith-Vaniz is no longer good law after Commercial National Bank v. Fleetwood Homes, 398 So.2d 659 (Miss.1981), in which the Court declined to follow what it termed dictum in Warren that the case should be dismissed with prejudice, but instead ordered that the case should be dismissed without prejudice.

In Central Grain and Supply Co. v. Jesco, 410 So.2d 879 (Miss.1982), this Court, per Justice Walker, held that while the trial court should have dismissed the case for non-compliance with Sec. 11-1-39, reversal was not required because the appellant suffered no prejudice in the course of the trial and no good purpose would be served by requiring the parties to undergo another extensive trial. Id. at 881.

We find the appellant's first assignment of error to be without merit, in view of the fact that subsequent cases have rejected the dictum in Warren v. Smith-Vaniz. We rule that, although dismissal without prejudice may...