Thrifty Diversified, Inc. v. Searles

• Decision Date: 08 May 1981
• Docket Number: No. 1233,1233
• Citation: 429 A.2d 270,48 Md.App. 605
• Parties: THRIFTY DIVERSIFIED, INC. v. Thomas R. SEARLES.
• Court: Court of Special Appeals of Maryland

Page 605

48 Md.App. 605

429 A.2d 270

THRIFTY DIVERSIFIED, INC. v. Thomas R. SEARLES.

No. 1233.

Court of Special Appeals of Maryland.

May 8, 1981.

Anthony L. Brennan, Baltimore, for appellant.

Joseph F. Lavin and Edward C. Mackie, Baltimore, with whom were Robert W. Fox, Rollins, Smalkin, Weston, Richards & Mackie, Baltimore, on brief, for appellee.

Argued before GILBERT, C. J., and THOMPSON and MOYLAN, JJ.

MOYLAN, Judge.

The world has come a long way since the day of the Yankee horse trader, the Arab bazaar and unfettered laissez-faire economics. A modern-day consumer, unlike his earlier counterpart, is entitled to more than the callous admonition "caveat emptor." This case helps to illustrate why this should be so.

In late August, 1976, Thomas R. Searles, the appellee, and his family were planning to leave for a one-week vacation in Ocean City, Maryland. Mr. Searles intended to drive to Ocean City in his 1971 Chevrolet station wagon. At that time, the automobile had approximately 73,000 to 75,000 miles on the odometer. Since the transmission oil had not been changed in approximately the last 23,000 to 25,000 miles, Mr. Searles decided that it would be wise to have the oil changed and a new filter installed. He sought to take advantage of an advertisement in the newspaper in which the appellant, Thrifty Diversified, Inc., d/b/a Bill & Earl's Automotive Service Centers, offered a transmission service special for $12.95. On Thursday, August 26, Mr. Searles called Bill & Earl's and was told to bring the car into the shop that they would do the work "right away." When he arrived at the shop, however, he was told that the work could not be done that day and to return the next morning.

Mr. Searles returned to Bill & Earl's on Friday morning. He was then told by one of the appellant's employees that his car would have to be test-driven before any work could be done. Mr. Searles said that he would like to go on the test drive. After waiting around for half an hour, however, he suddenly noticed his car being driven around the corner without him. When the appellant's employee returned from the test drive, Mr. Searles was told that although the car "shifts fine," there might be a little slippage in the transmission and that they would have to "drop the pan" to find what was causing the problem. Since the employee could not estimate how long that would take, Mr. Searles went home.

Mr. Searles was home no more than fifteen minutes when he received a call from a Tom Bloom at Bill & Earl's telling him he had problems with the transmission that there were big chunks of metal in the pan. Mr. Searles expressed surprise that there could be big chunks of metal in the pan when the car had been running perfectly. Mr. Bloom told him that they would have to drop the transmission and take it apart to determine from where the metal chunks were coming. Mr. Searles told him not to do anything until he saw the chunks. He went immediately to the shop.

When Mr. Searles arrived at the shop, his car was on the lift, and the pan was still on the transmission. He told Mr. Bloom he wanted to see the metal chunks. Mr. Bloom said it would take about twenty minutes to get the pan off and another hour to take the transmission apart. Mr. Searles specifically told Mr. Bloom not to take the transmission out of the car that he had no intention of spending any money for a new transmission on an old car. He told him, however, to take the pan off so that he could see the metal chunks. Mr. Searles then left the shop to get something to eat.

When Mr. Searles returned twenty minutes or a half-hour later, the transmission was out of his car and was completely apart. There were parts on a workbench and on the floor of the shop. Mr. Searles had no way of knowing whether the parts were from his car or somebody else's automobile. A man who appeared to be the supervisor of the shop told Mr. Searles that the transmission was "all burnt out." Mr. Searles asked how it could be "burnt out" when the car was running perfectly. Although Mr. Searles originally had no intention of putting a rebuilt transmission into his car, at that point he felt he had no choice. He was planning to leave for his vacation the next day and needed the car that afternoon. He inquired what it would cost to have the car repaired. He was told that he could have his old transmission repaired at a cost of $271 or could purchase a rebuilt transmission from appellant's stock, with a guarantee of one year or 12,000 miles, at a cost of $331. Mr. Searles chose to have a rebuilt transmission installed when appellant's employee told him it would take three days to repair his own transmission but a rebuilt transmission could be installed that afternoon. While writing up the work order, Mr. Bloom told Mr. Searles that since the transmission was burned up, he needed a cooler on it. Mr. Searles told him that he did not pull trailers and that if the car needed an extra cooler it would have had one installed by the manufacturer. With that, Mr. Bloom dropped the subject. Mr. Searles was told to return for his car around 5:30 P.M.

When Mr. Searles returned to the shop around 5:30 that afternoon, there were few people in the shop and the car was still on the lift. He was told that they had trouble with the car and that since they were closed on Saturday he would have to check with them on Monday. Mr. Searles did not go to Ocean City on Saturday. Instead, he waited until Monday, when he again called Bill & Earl's. He was told the car would be ready at 10:30 A.M. When he arrived at the shop to pick up the car, however, he was told they were still having problems with it and were going to have to take the unit out again. Mr. Searles decided not to wait any longer. He left immediately for Ocean City in another car.

Mr. Searles returned from his vacation the following weekend. The shop was closed through Monday, Labor Day. Mr. Searles called Bill & Earl's Tuesday morning, September 7. He was told to pick up his car. The cost of the work was $353.89 ¹ over $20.00 more than the original estimate. Tom Bloom explained that the additional amount was for a motor mount. Mr. Searles did not argue with him but paid the bill by check. He took the car home and parked it in his garage.

Late that evening, Mr. Searles' wife noticed hydraulic fluid all over the garage floor. Mr. Searles decided to take the car back to Bill & Earl's. When he looked at his receipt, however, he discovered that it was stamped "NO GUARANTEE." He inquired why this was so stamped and was told that because he did not have a cooler or clutch fan installed, Bill & Earl's could not guarantee the transmission. He immediately stopped payment on his check and contacted the Attorney General's Office. He subsequently took his car to Marsden Chevrolet for repair. Marsden charged Mr. Searles $88.00 to repair the transmission leak. The leak had been caused by the improper installation of the front pump by Bill & Earl's, resulting in a slip or distorting of an o-ring gasket.

While the car was on the lift at Marsden, Mr. Searles discovered that the transmission in his car was in fact his original transmission and not a rebuilt one. Since 1969 domestic manufacturers of automobiles in the United States have put a serial number on the transmission casing corresponding to the serial number on the car. The mechanic who worked on Mr. Searles' car at Marsden and Peter Lopes, an investigator with the Consumer Protection Division of the Attorney General's Office, verified that the number on the transmission matched the serial number of the vehicle.

As a result, Mr. Searles brought suit in the Circuit Court for Baltimore County against Thrifty Diversified, Inc. on two counts one alleging fraud and the other conversion in the repair of his automatic transmission. The case was tried before a jury. At the conclusion of the plaintiff's case, the trial judge directed a verdict in favor of the defendant on the conversion count. The defendant's motion for a directed verdict on the fraud count was denied, and the case was submitted to the jury. The jury returned a verdict in favor of Mr. Searles in the amount of $88.00 compensatory damages and $20,000.00 punitive damages. Following the denial of its motion for a new trial or, in the alternative, judgment n. o. v., Thrifty noted this appeal.

On this appeal, the appellant, Thrifty, raises the following contentions.

1) That the evidence was not legally sufficient to support a finding that the appellant made a material misrepresentation of fact;

2) That there was no legally sufficient evidence of any actual damage caused by the alleged fraud;

3) That the trial court erred in refusing to instruct the jury as to the "missing evidence rule" and as to the definition of a "rebuilt" or "remanufactured" transmission;

4) That the trial court erred in denying appellant's motions for a mistrial and a new trial;

5) That the trial court erred in permitting appellee to introduce certain rebuttal testimony;

6) That the trial court erred in refusing to frame special issues for submission to the jury; and

7) That the trial court erred in ruling that recovery here was not barred by an election of remedies.

I. THE LEGAL SUFFICIENCY OF THE EVIDENCE TO SHOW A MATERIAL MISREPRESENTATION OF FACT

In addressing this contention, the appellant goes to great lengths to point out, and the appellee candidly acknowledges, that the burden of persuasion in a case of fraud is that of "clear and convincing proof" rather than that of "a mere preponderance of the evidence." There is no disputing that well-settled principle, Whittington v. State, 8 Md.App. 676, 679, 262 A.2d 75 (1970), but the legal proposition is beside the point when we are dealing with the question of legal sufficiency. The burden of persuasion deals with the degree to which a factfinder should be convinced before he renders a verdict on a particular issue. Legal questions...