Opinion
37748.
DECIDED SEPTEMBER 17, 1959.
Complaint. Augusta Municipal Court. Before Judge Cooper. April 11, 1959.
R. Lee Chambers, III, Sanders, Thurmond Hester, Carl E. Sanders, for the plaintiff.
Nicholson Fleming, William M. Fleming, Jr., contra.
Under the evidence presented by this record the trial court was not authorized to return a verdict of $500 for the plaintiff.
DECIDED SEPTEMBER 17, 1959.
Shelby Mitchell brought suit for damages against Bill Jones Motors, Inc., in the Municipal Court of Augusta, wherein she set up that she had purchased from the defendant a used 1954 Tudor Ford car, paying $775 cash for it; that the defendant is a used car dealer; that she purchased the car from it for transportation and was told that the car was in good condition; that within a day or so after purchasing said car it developed that the car was in an unfit and unsound mechanical condition and was dangerous to be driven by her; that she took the car back to the defendant and requested that her money be returned; that the defendant refused to do this; that the car was worthless to use as transportation, and worth for junk about $100. The plaintiff prayed for judgment against the defendant for $675.
The defendant answered and denied the material allegations of the petition as amended. The case then proceeded to trial before the judge and jury. After hearing the evidence, the charge of the court, and argument of counsel, the jury on March 12, 1959, rendered a verdict of $500 for the plaintiff. Judgment was entered thereon. The defendant filed its motion for new trial on the general grounds only. The judge denied this motion and on that judgment error is assigned in this court.
The defendant contends that there was not sufficient evidence to support the verdict. The evidence shows substantially as follows: That the plaintiff and her brother went to the defendant's place of business and dealt with Mr. Mack Stevenson, vice-president of the defendant corporation, and who also sold cars; that Stevenson was informed that the plaintiff desired to purchase a "good automobile"; that the plaintiff and her brother first tried out a Chevrolet but did not like it and, after driving it around, brought it back; that they then were shown the 1954 Ford which was subsequently purchased by the plaintiff from the defendant for $775 cash; that the plaintiff and her brother were told that said car was in "tiptop condition," and after driving it around the block, they brought it back and purchased it; that when the plaintiff took the car home she soon discovered that it had a roaring noise in the rear end and that when the clutch was let out a vibration resulted "all over"; that the car was taken back to the defendant, to Mack Stevenson, and the plaintiff asked that she have her money back; that this was refused; that she took the car back to the defendant three or four times, and the defendant would not remedy the defective condition thereof; that her brother had known Mack Stevenson of the defendant company for a long time and testified that he brought his sister to the defendant to buy a car because he knew Stevenson and felt that his sister would get a good deal, and that he relied on the judgment of Stevenson. The plaintiff's brother, Albert Myers, received $25 from the defendant for bringing his sister to the defendant's place of business, and because she purchased the Ford, Stevenson testified that Albert Myers acted as a "bird dog" for the defendant and that all the dealers in Augusta had people acting for them in the capacity of "bird dogs." He testified that he gave Myers the $25 out of his (Stevenson's) commission, and had the plaintiff, the sister of Myers, write out a check to her brother, Myers, for $25.
Carl Allen, a mechanic of Green's Garage, testified that in February the plaintiff brought a Ford car to him to check and that he found the car in a defective mechanical condition, particularly as to the rear end; that the Ford was not in first-class condition and had other things wrong with it; that the car was not junk and could be fixed — that "most anything can be fixed."
The plaintiff testified that she took the car back to the defendant on the "next day" and that then she told Stevenson the car was not working properly; that she could not keep it as it was burning or using more oil than she could put in it; that it smoked so much it "looked like a fire train going by when you cranked it up"; that the brakes were "messed up" and the clutch was "messed up," and the "rear end, it sounded like a bunch of lions roaring back there, and I don't know what was wrong with it"; that she informed Mack Stevenson of all this and he said it was because she had not been driving the car and that she would have to drive it before she got used to it; that she was again told by Mack Stevenson as to the mechanical condition of the car, that there was nothing wrong with it, that the car was in first class condition, but she told him she did not want to keep it but wanted him to take it back; that he said he could not do this and refund her money but he could put the car back on his used car lot and sell it for her. She testified further that she again took the car back to the defendant and told Stevenson it was no good and continued to use oil, and told him if he would refund her money she would be willing to take a two-hundred dollar loss and he could give her back $575, and this, Stevenson, acting for the defendant, refused to do. The plaintiff testified she was afraid to drive the car and kept it parked in her father's yard. She testified that she took the car to Walker Motors to be examined by one of the mechanics there and again took the car back to the defendant and told him she had been advised that the car was nothing but junk. She further testified that she took the car back to the defendant's place of business again and talked this time with Mr. Jones, the president, and he said for her to bring the car in and "we would go 50-50, he would pay half and I would pay half and he would fix the car up," and I told him I would not do that because I had just bought the car, and he said "that is the way we will have to do it." The plaintiff testified on cross-examination that later on she traded this car to the Daniels Lincoln-Mercury people and that they allowed her "for a trade in on this automobile [a 1956 Victoria Ford] $655", and that this was some three or four months after she had bought the car from the defendant. She testified that the price of the 1956 Victoria Ford was $1,595. There was testimony of Stevenson for the defendant company that a car like the one so sold to the plaintiff would depreciate around $600 a year, from $30 to $50 a month.
The defendant in its bill of sale to the plaintiff for this Ford made no written guarantee that the Ford was in good mechanical condition.
The defendant Bill Jones Motors, Inc., assigns no error except on the general grounds, and contends that the plaintiff did not produce sufficient evidence to support the verdict of $500 rendered by the jury in her favor. Code § 70-202 provides: "In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the presiding judge may grant a new trial before another jury." It has been held that where there is any evidence to support the finding of the jury, and no error is otherwise committed, the verdict will stand. Bush v. Fourcher, 3 Ga. App.
43 (59 S.E. 459). It is only where there is not sufficient evidence to support the verdict rendered that the appellate courts will interfere therewith, assuming everything to be true as proved. Porter v. Kolb, 46 Ga. 266, and Sapp v. Sapp, 50 Ga. App. 145 ( 177 S.E. 265).
The plaintiff testified that the salesman told her that the car was "in first class condition" when purchased. The plea and answer of the defendant alleges that the car was sold on a 30-day guarantee basis and that the plaintiff did not bring the car back to the defendant's shop for repairs during that time, and "has never complained to any of the agents, servants or employees of the defendant specifying what was wrong with said automobile." There was no written guarantee in the bill of sale that the car was in good mechanical condition.
The evidence on direct examination was sufficient to show that there was a partial failure of consideration in the $775 purchase price of the plaintiff's automobile due to the fact that the vehicle was not reasonably suited for the purpose for which it was intended when sold. However, on cross-examination the defendant established the fact that the plaintiff sold the car for $655 to another dealer, (the amount being credited toward the purchase price of another car). This was done within three or four months after purchasing the car from the defendant for $775. Under such circumstances the jury would have been authorized to find that the plaintiff was damaged in the sum of at least $120, but since there is no evidence that the $655 credit that she received on the purchase of the new car was no more than the equivalent of $275, (that being the difference between what she originally paid for the car and the verdict she received for its value), it follows that the verdict in the sum of $500 was not authorized by the evidence.
The court erred in denying the motion for new trial on the general grounds only.
Judgment reversed. Townsend and Carlisle, JJ., concur.