Opinion
No. 7130.
May 13, 1953.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY, WALTER E. BAILEY, J.
Max Patten, Jr., and Roy Coyne, Joplin, for appellant.
Dalton DeShazer, Joplin, for respondent.
This is a suit for damages arising out of the sale of an automobile. It is alleged that plaintiff bought an automobile from defendant and that defendant represented it to be new, when as a matter of fact, it was a used automobile, and not as represented. Actual damages were prayed for in the sum of $750 and punitive damages in the sum of $1,500. The answer admitted the sale of the automobile and denied everything else. The jury's verdict was for $50 actual and $500 punitive damages.
Plaintiff's evidence showed that on November 12, 1950 (Sunday) between 8 and 9 o'clock, at night, she and her husband went to the place of business of defendant to buy a new car. They first met a night man and shortly thereafter the defendant came in. He showed them two cars and assured them that they were new. One was a bronze colored car and the other black. He told them that the black car had been ordered for a G.I., who wanted it equipped with radio, heater, undercoating, new seat covers and a sun visor. That before it arrived, the G. I. had come in and informed defendant that he had re-enlisted in the Army, asked if it was all right not to take the car and defendant had told him it was all right, that he would sell it to someone else.
The speedometer registered six-tenths of a mile. Upon inquiry by plaintiff and her husband, the defendant stated the six-tenths of a mile was the distance traveled by the car to a motor transport and after it arrived in Joplin from the transport to the show room, that six-tenths was the actual mileage. There was brown paper on the floor between the seats as in new cars and the front mat was new as was also the seat covers. The next day, November 13, plaintiff and her husband returned and plaintiff paid $1,950 for the car and $39 sales tax, with a check in the total sum of $1,989. Plaintiff had it insured as a new car which she then believed it to be. After the car was purchased, they sold to defendant a 1937 Studebaker for $50. Defendant paid them for the Studebaker with a check for $89, which included the $50 purchase price and a return of the $39 paid him for sales tax. The husband of plaintiff, when he went to purchase her license, paid the sales tax himself and $2 to transfer the license from the Studebaker to the Ford that she had purchased. They believed the car was new and did not know otherwise until some months later. Within three months after the purchase, they discovered one of the front wheels was out of line and was wearing the tire. They took it to mechanics three times to get this defect remedied but were not successful. It was taken back to defendant several times because of a leak near the windshield wiper. Still months later, they removed the seat covers and discovered in one of the cushions, a hole about the size of a half dollar and that the upholstering underneath the seat covers was soiled. Plaintiff's evidence further showed the car in question was worth $200 or $250 less than a new car of the same kind.
The undisputed evidence shows that it was in fact a used car. That it had been bought new by one F. A. Childers on June 28, 1950, nearly five months before, from another dealer, that it had been run a minimum of 5000 miles and that Mr. Childers had not turned the speedometer back when he sold it to the defendant September 17, 1950 for $1,750. At the time she purchased the car, plaintiff received a yellow slip of paper which she had signed and which she thought was a carbon copy of an original retained by the defendant. At the trial defendant presented the white copy which was not an original and was not actually signed by plaintiff, although her name appeared thereon. The white copy contained the following which was not on the purported carbon copy:
"It is understood that Burtram Brothers Motor Company of Joplin, Missouri, is not a new automobile dealer and it is therefore impossible to secure a manufacturer's certificate of title * * *. I further state that I have read the above statements and understand them to the best of my knowledge and agree to the terms set forth."
Defendant testified that he never personally set the speedometer back but it could have been set back by his employees five, six or seven thousand miles.
Upon cross-examination, the defendant testified that he had these forms printed at the Joplin Printing Company, had both of them in his office at the time of the sale and that plaintiff had signed each of them. That he had on hand some of the old forms and on this occasion had probably used one old form and one new form.
An employee of Joplin Printing Company testified that neither of the forms had been printed by that company.
Attached to the file in this case are two affidavits stating that the case was submitted to the jury and after some deliberation, they returned a verdict for plaintiff for $500 punitive damages and no actual damages. It is shown by these affidavits, one by the trial judge and another by counsel for defendant, that the court, in the presence of counsel for both sides, orally told the jury that they could not allow plaintiff punitive damages without finding some actual damage and sent them back for further deliberation. The court reporter was not present and no record was kept of this incident. After a very short interval, the jury returned with a verdict of $50 actual damages and $500 punitive damages.
Under "Points and Authorities" in appellant's brief, there are two alleged errors complained of. They are:
"1. The Punitive Damages are Excessive Under the Facts and Circumstances of This Case.
"2. The Court Erred in Orally Instructing the Jury."
We cannot agree with appellant that the punitive damages assessed by the jury were excessive under the facts and circumstances of this case. The purpose of punitive damages is, as the name implies, to punish for the doing of a wrongful and malicious act, and also to warn the defendant and others and deter them from committing like wrongs in the future. Polk v. Missouri-Kansas-Texas R. Co., 351 Mo. 865, 174 S.W.2d 176; Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W.2d 1083; Spitzengel v. Greenlease Motor Co., 234 Mo.App. 962, 136 S.W.2d 100.
There is no fixed relation between the amount of punitive damages and the amount of actual damages that may be awarded. The relationship rather is between the punitive damages and the wrongful act and are proportioned to the degree of malice, criminality or contumely characterizing it, taking into consideration all the circumstances surrounding the transaction. Cook v. Housewirth, Mo.App., 254 S.W.2d 283; State ex rel. Randall v. Shain, 341 Mo. 733, 108 S.W.2d 351. If plaintiff's evidence was true, and the jury evidently believed it, the defendant was guilty of a grossly deliberate wrongful act. This was shown by the fact that the speedometer was turned back from several thousand miles to six-tenths of a mile, the assurance of the defendant that it was a new automobile and his detailed explanation as to why six-tenths of a mile was registered on the speedometer, the brown paper between the back seats as customarily come in new cars, the new floor mat in the front, the undercoating which could have been applied to cover evidence of use, the new seat covers that concealed a hole in the upholstering and its soiled condition, the fictitious story about it being ordered by a G. I., who reenlisted and could not take it — all these things, with the other evidence, would indicate a deliberate plan to defraud the plaintiff and sell to her a used car in a defective condition, when she was trying to buy a new car and believed she was. Many things may be taken into consideration in assessing punitive damage, such as sex, age and experience of the injured party, the intelligence, standing and affluence of the tort-feasor and other like circumstances. State ex rel. Randall v. Shain, supra. The evidence shows that this was the first time plaintiff had ever purchased a new car, that the money this time was furnished as a gift by a kind-hearted aunt, that her husband was a laborer in the mines; that the car she had for years was a 1937 Studebaker, which she sold to the defendant for $50. The evidence further shows that the defendant was a large operator in new and used cars, many were on hand in his store rooms and parking lots. All of these things were to be considered by the jury and were undoubtedly taken into account in the assessment of punitive damages. There is nothing about such finding that would indicate an abuse of their judgment.
As to appellant's second point, in the first place, there is nothing in the transcript of the record showing that the jury ever came back with a verdict for no actual and $500 punitive damages. There is nothing showing that the court orally instructed them. There is no record, by affidavits or otherwise of objections upon the part of counsel for defendant although the affidavits filed here show that they were present when the court sent the jury back for further deliberations. The affidavits do show there was no court reporter present but do not show a request by appellant's counsel that the proceedings be reported or that they were objected to. It is true that in the motion for new trial, defendant asserts that the court orally charged the jury and that such oral charge was tantamount to a directed verdict for plaintiff for actual damages, but other than this statement in the motion for new trial, the transcript, approved by counsel for both parties, the trial judge and certified to by the circuit clerk, contains not a word relative to this occurrence. We do find, however, that in instruction No. 2 offered by the plaintiff, the court told the jury that they could find punitive damage for plaintiff "if you find for plaintiff under Instruction No. 1 and allow plaintiff actual damages * * *." So as we view it, if this complaint were properly saved in the record, which we do not hold, and occurred in the manner shown by the affidavits, the instruction had been previously given to the jury in a writing and which they took to the jury room with them, and an oral repetition would have been harmless. It would not have been prejudicial error if it had been saved. This point was directly passed upon in the case of Dawson v. Metropolitan State R. Co., 157 Mo.App. 642, 138 S.W. 665, contrary to appellant's contention.
The judgment below should be affirmed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.