Vogt v. Nelson

Citation230 N.W.2d 123,69 Wis.2d 125
Decision Date16 June 1975
Docket NumberNo. 632,632
PartiesJames D. VOGT, Appellant, v. Caroll NELSON et al., Respondents.
CourtUnited States State Supreme Court of Wisconsin

Lichtsinn, Dede, Haensel & von Bereghy, Milwaukee, for appellant.

Brady, Pachefsky & Sullivan, Milwaukee, for respondents.

WILKIE, Chief Justice.

The appellant has moved for discretionary reversal as of course under sec. (Rule) 251.57, Stats., because the respondents' brief is late. The appellant is the plaintiff in an action for fraudulent misrepresentation on the mileage on a used car which he bought from the defendants. The complaint included a prayer for treble damages and actual attorney's fees as provided by Title IV, sec. 409, of the Motor Vehicle Information and Cost Savings Act, P.L. 92--513, 86 Stats. 963, 15 U.S.C., sec. 1989(a).

The case was tried to a jury, which returned a special verdict finding that defendant James Bisbee represented the odometer reading on the car was 32,890 miles; that the representation was untrue; and that Bisbee made the representation knowing it was untrue or in reckless disregard of its truth. The jury also decided that the representation was made with intent to deceive and induce the plaintiff to act upon it and that the plaintiff did believe the representation and justifiably relied on it. The jury fixed the plaintiff's damages at $750.

Defendants moved for a new trial, and plaintiff moved for a judgment for treble damages and his attorney's fees, characterizing the motion as one for judgment on the verdict. The trial court granted judgment for $750 and costs, reasoning that the liabilities created by the federal act were not enforceable in state court. Plaintiff's appeal in this case is designed to test that ruling.

A motion for reversal as of course under sec. (Rule) 251.57, Stats., is directed to the discretion of this court. Where the issue is one of public concern we will not invoke the rule. Rather, the case will be disposed of by an opinion discussing the issues presented. 1 Moreover, such a disposition may be an affirmance rather than a reversal. 2 The question decided by the trial court in this case is a matter of public concern. Therefore, we will not exercise our power of discretionary reversal.

The trial court erred in ruling that the remedies provided by the federal act were not enforceable in state courts. The act provides that an action to enforce the liabilities created may be brought in United States District Court without regard to the amount in controversy, 'or in any other court of competent jurisdiction,' within two years from the date of liability. 3 The original jurisdiction of the circuit court includes the power to hear and determine all civil and criminal actions and proceedings unless exclusve jurisdiction is given to some other court. 4 State courts are bound to entertain actions to enforce liabilities created by federal law unless prohibited by an act of Congress. 5 We conclude the circuit court is a court of competent jurisdiction under state law and is not precluded by an act of Congress from enforcing the liabiliites created by the Motor Vehicle Information and Cost Savings Act. Having so concluded, we turn to the question whether plaintiff should have been awarded treble damages and his actual attorney's fees on his motion for judgment on the verdict.

The record in this case contains no transcript. Only the complaint, the jury's verdict, the trial court's decision on motions after verdict, and the judgment are available for review. The complaint alleges that the plaintiff purchased an automobile from defendant Caroll Nelson and:

'That at and prior to the time of such purchase defendants, Caroll Nelson and James Bisbee, as her employee and salesman, falsely and fraudulently represented to plaintiff that the mileage actually travelled by said Buick automobile was less than 33,000 miles; . . . that defendants made said representation with knowledge that the same was false in that the mileage travelled by said Buick was over 135,000 miles; that the odometer had been altered with intent to change the number of miles indicated thereon, and that defendants made said representation with the intent that plaintiff as purchaser rely thereon.'

The first question of the special verdict inquired:

'Did the defendant, James Bisbee, make the representation of fact as to the odometer reading, 32,890 miles, at the time and date of the sale of the Buick Electra?'

The jury answered this question in the affirmative.

Neither the complaint nor the critical question of the special verdict set forth the elements of an action for treble damages under the federal act. The act provides treble damages and actual attorney's fees is the liability of 6 'any person who, with intent to defraud, violates any requirement imposed under this...

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13 cases
  • Terry v. Kolski
    • United States
    • United States State Supreme Court of Wisconsin
    • June 14, 1977
    ...constitution and statutes of this state and by statutes of the United States . . . ." (Emphasis supplied.) In Vogt v. Nelson, 69 Wis.2d 125, 127-28, 230 N.W.2d 123, 124 (1975), this court stated: "The original jurisdiction of the circuit court includes the power to hear and determine all ci......
  • Hall v. Riverside Lincoln Mercury-Sales, MERCURY-SALES
    • United States
    • United States Appellate Court of Illinois
    • October 15, 1986
    ...suits based upon the Act in state courts. (Osage Homestead, Inc. v. Sutphin (Mo.App.1983), 657 S.W.2d 346, 353; Vogt v. Nelson (1975), 69 Wis.2d 125, 126, 230 N.W.2d 123, 124.) We also note that the courts of numerous other states have heard claims based upon the Act without questioning the......
  • Harden v. Gregory Motors
    • United States
    • United States State Supreme Court of Wyoming
    • September 8, 1983
    ...be brought to enforce liability to recover damages. Lease Associates, Inc., 87 Wis.2d 123, 273 N.W.2d 776 (1978) and Vogt v. Nelson, 69 Wis.2d 125, 230 N.W.2d 123 (1975). It "No person shall disconnect, reset, or alter or cause to be disconnected, reset, or altered, the odometer of any moto......
  • Hubbard v. Moore, Civ. No. 81-4031
    • United States
    • U.S. District Court — Western District of Arkansas
    • February 24, 1982
    ...the plaintiffs truly want their entire lawsuits tried at one time, they could file the entire action in state court. Vogt v. Nelson, 69 Wis.2d 125, 230 N.W.2d 123 (1975). In these cases, the Court finds that the issues which should be tried in state court substantially predominate, not only......
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