Opinion
April 30, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Lewis W. Dymond, Jr., Aurora, for plaintiff-appellee.
Cooke, Gilles, Johnson & Schaefer, Elwyn F. Schaefer, Denver, for defendant-appellant.
COYTE, Judge.
Emil Karan brought suit against Bob Post, Inc., alleging that defendant fraudulently misrepresented the mileage on an automobile. After trial, the jury returned a verdict awarding plaintiff $750 actual damages and $1,250 in exemplary damages. We affirm.
Plaintiff testified that during the negotiations for the purchase of the automobile, he inquired about the accuracy of the odometer reading (27,000 miles) and was assured by defendant's salesman that the odometer reading was accurate. Moreover, plaintiff was told that the vehicle was eligible for the remainder of the manufacturer's 50,000-mile warranty on certain components. Plaintiff discovered that the mileage reading on the odometer was incorrect when a warranty application was rejected by the manufacturer because of a mileage discrepancy. Subsequent investigation revealed that the actual mileage on the vehicle was in excess of 48,000 miles. Plaintiff further testified with respect to the deteriorated condition of the vehicle. A representative of Chrysler Corporation testified that the manufacturer maintains a centralized vehicle history file and that dealers may verify the mileage on a specific vehicle by telephone.
Defendant first contends that plaintiff failed to establish an essential element of fraud because there was no evidence that defendant knew or had reason to know that the representation with respect to mileage was false when it was made. Defendant misconceives the nature of the element of intent sufficient to prove a cause of action for fraud.
Here, it is undisputed that defendant's salesman made a false representation about the mileage of the vehicle. Defendant argues that since the salesman did not know the true mileage of the vehicle, the representation was not fraudulent. The rule of law applicable to such situations was stated in Duke v. Pickett, 168 Colo. 215, 451 P.2d 288, where the court quoting from Stimson v. Helps, 9 Colo. 33, 10 P.290, said:
". . . He who makes a representation as of his own knowledge, not knowing whether it be true or false, and it is in fact untrue, is guilty of fraud as much as if he knew it to be untrue. In such a case he acts to his Own knowledge falsely, and the law imputes a fraudulent intent." (emphasis in original).
Accord, Pattridge v. Youmans, 107 Colo. 122, 109 P.2d 646; Otis & Co. v. Grimes, 97 Colo. 219, 48 P.2d 788.
In the instant case, there was no proof that defendant or its agents knew that the odometer reading was inaccurate. Nor do we consider it crucial that defendant could have verified the actual mileage on the vehicle by means of a telephone call to the manufacturer. The fact that defendant's employee made a representation with respect to mileage without knowing whether the representation was true or false was sufficient evidence to submit the case to the jury. Campbell v. Creighton, 63 Colo. 478, 167 P. 975. The jury was instructed in accordance with Colorado Jury Instructions 19:1 relating to the elements of liability for overt misrepresentation and it returned a verdict against defendant. That verdict will not be disturbed on review.
Secondly, defendant contends that the trial court erred by refusing to direct a verdict on the basis of a statement in the contract which reads as follows:
'It is further understood and agreed that the terms and conditions on the front and back hereof comprise the entire agreement pertaining to this purchase and no other agreement of any kind, verbal understanding or promise whatsoever will be recognized.'
Defendant asserts that, as a matter of law, the terms of the contract exclude consideration of any oral representations. A similar assertion was considered and rejected in Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70. In that case, the court said that the parol evidence rule does not operate to exclude testimony of fraudulent oral inducements to enter into a written contract because the existence of fraud in the transaction prevents the written instrument from becoming a contract. Accordingly, the trial court properly refused to direct a verdict on this issue.
Defendant next contends that the evidence was insufficient to support the amount of actual damages awarded. Defendant asserts that the testimony of the expert witness that the increased mileage and inability to obtain the warranty coverage would diminish the value of the automobile by as much as $1,000 was improper because the witness had not inspected the automobile. We disagree. The fact that an expert witness offers his opinion with respect to the value of an object he has not personally inspected does not render his testimony inadmissible or incompetent. Such circumstance only relates to the weight to be given to the testimony. Stamp v. Rippe, 29 Colo.App. 185, 483 P.2d 420. Here, the jury was instructed in accordance with Colorado Jury Instructions 19:18 which states the 'benefit of the bargain rule' of damages for fraud. We conclude the evidence was sufficient to support the jury's award of $750 actual damages.
Finally, defendant contends that the award of exemplary damages was improper because there was no showing that defendant authorized or approved the fraudulent misrepresentation. Defendant's contention on this issue will not be considered on review because no objection was made to the jury instruction on exemplary damages. C.R.C.P. 51; Nunn v. Car-Skaden, 163 Colo. 328, 430 P.2d 615. Defendant contended in his motion for new trial that in any event the amount of exemplary damages was excessive. The actual damages awarded were $750. The amount of $1,250 in exemplary damages is not excessive or unreasonable in light of all attendant circumstances. See Starkey v. Dameron, 96 Colo. 459, 45 P.2d 172.
The judgment is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.