Opinion
No. 28080.
June 19, 1951.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Hinkel Carey and Sidney L. James, all of St. Louis, for appellant.
William P. Carleton, Jones Alexander and Philip S. Alexander, all of St. Louis, for respondent.
This is a suit for damages both actual and punitive brought by respondent as plaintiff against appellant as defendant arising out of a sale by defendant to plaintiff of a 1949 Ford automobile. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $308.00 as actual damages and $500.00 as punitive damages. In due time defendant filed a motion to set aside the verdict and judgment and for a judgment in favor of a new trial, which was overruled and defendant duly appealed.
Plaintiff in his petition alleged that defendant, a corporation, was engaged in the general sales and service business of new and used automobiles as an authorized Ford dealer; that on June 8, 1949, plaintiff purchased from defendant a new 1949 Ford coupe for which he paid defendant the sum of $2061.70; that at and prior to the time of sale defendant represented to plaintiff that the coupe so purchased by plaintiff was a model known as a "Club" coupe and was a brand new automobile delivered to defendant by the Ford Motor Company for resale to a retail customer; that the price paid defendant by plaintiff for said automobile was $2061.70 including the sum of $1648.80 for the automobile itself and $412.90 for optional equipment and accessories; that said sum of $1648.80 was the current delivered price for cars of this type in the St. Louis area and that said optional equipment in the amount of $412.90 had been actually furnished to "and/or installed on said automobile."
Plaintiff further alleged that said representations made by defendant were false and fraudulent and known by defendant to be such and were maliciously and wantonly made by defendant for the purpose of including plaintiff to purchase said Ford coupe and thereby defrauding him; that plaintiff relied upon such representations and purchased the said automobile as a brand new 1949 Ford "Club" coupe on account thereof; that each of the aforesaid representations were known by defendant to be false at the time they were made to plaintiff and that in truth and in fact said 1949 Ford Coupe was not a brand new automobile delivered to defendant by the Ford Motor Company in the regular course of business but had been delivered to another Ford dealer by the Ford Motor Company three months prior to the date on which plaintiff received same and had been driven previous to said time; that said 1949 Ford coupe was not a "Club" coupe but was a model known as a "Business" coupe with a rear seat built in after the car left the factory; that the delivered price at the time of sale to plaintiff was $200.00 less than the price of a "Club" coupe; that said business coupe was a "used car" which had depreciated in value in the amount of $300.00; that the optional equipment representing values as follows was not furnished on said car, namely, a bird radiator ornament $10.00, white wall tires $50.00, and a polish job $15.00.
Plaintiff further alleged in his petition that defendant charged him $48.50 for standard Ford seat covers which was $20.50 in excess of the regular price of same; that plaintiff paid $160.00 for collision, fire and theft insurance on said automobile from June 8, 1949, to June 8, 1951; that if said automobile had been properly represented to the insurance company carrying the insurance policy the charge would have been $25.00 per year less than what plaintiff was required to pay; that in this respect defendant practiced deception on both plaintiff and the insurance carrier. Plaintiff prayed for $644.50 actual damages and $5000.00 punitive damages.
Defendant in its answer admitted its corporate existence and that it was engaged in the general sales and service business of new and used automobiles as an authorized Ford dealer and denied all the other allegations in plaintiff's petition.
Plaintiff testified that he was 27 years old; that he had served four years in the Army where he was trained as an aviation electrician; that on June 1, 1949, he went to defendant's place of business to purchase a new Ford Club Coupe; that defendant's salesman, Jerome Cataldi, told him defendant did not have any cars of that type in stock but were expecting some in, and if he would give an order on what he wanted Cataldi would call him when the car came; that about a week later Cataldi called him and told him defendant "had a car in like I wanted and for me to come out and look at it." At this point plaintiff testified:
"Q. When Mr. Cataldi called you, did he tell you what type of car they had for you? A. Yes.
"Q. What did he say? A. 1949 Club Coupe."
Plaintiff further testified that he went out and looked at the car which Cataldi showed him; that he bought the car as a new 1949 Ford Club Coupe; that at the time of the delivery of the car he was given an envelope and was told a bill of sale and all papers necessary to get a license for the car were enclosed; that the envelope contained applications for certificate of title and licenses made out by the defendant which described the car as a 1949 Club Coupe but that there was no bill of sale.
Plaintiff introduced in evidence certain exhibits as follows:
Plaintiff's exhibit 1. A receipt for the certificate of title of the car showing the type of body to be a "Club Coupe" which plaintiff said had been filled out by defendant.
Plaintiff's exhibit 2. A certificate of registration for making application for a license which showed the type of body of the automobile to be "Style of body, Club Coupe." Plaintiff stated that also was filled out by defendant.
Plaintiff's exhibit No. 3. A certificate of title which plaintiff received from Jefferson City in connection with the application for title showing the model of the car to be "Club Coupe 1949."
Defendant's counsel admitted that the above exhibits referred to the automobile involved herein.
Plaintiff further testified that several days later he compared the car defendant had delivered to him with a 1949 Ford Club Coupe and found that his car had only one sun visor, one dome light, no cigarette lighter, no handles on the back of the front seats and that the rear seat would not remain stationary and finally collapsed and would not bear the weight of passengers; that shortly after the sale and delivery of the car defendant mailed plaintiff a bill of sale which was introduced as plaintiff's exhibit 4, showing the price of the car to be $1648.80 without accessories and listing thereon $412.90 worth of accessories, making a total of $2061.70; that plaintiff did not receive white wall tires listed at $50.00 nor a bird radiator ornament listed at $10.00, nor a polish job listed at $15.00.
Further testimony of plaintiff was to the effect that defendant's salesman, Cataldi, told him that the price for a new Club coupe was $1697.00 but only $1449.00 for a new business coupe; that Cataldi stated these prices to him on his first visit to defendant's showroom, but that he then told Cataldi he was not interested in a business coupe; that he wanted a car to carry riders to work in.
Plaintiff also introduced in evidence interrogatories signed by V. E. Coe of Coe Motor Company of Centralia, Missouri, wherein Coe testified that the automobile in question had been received by that company from the Ford factory on March 14, 1949, as a business coupe; that it was not altered while in their possession and that it was traded to defendant for a pick-up truck on May 25, 1949.
Plaintiff also introduced in evidence interrogatories signed by B. E. Petersen, an official of the Ford Motor Company, wherein Petersen testified that the automobile in question was a Ford business coupe released by the factory to Coe Motor Company on March 14, 1949, and that the business coupe is a three passenger coupe with no seat in the rear; that it has no chrome around the windshield and back windows; that it has an auxiliary floor pan in the rear instead of a seat, back and cushion; that the instrumental panel does not contain a cigar lighter or electric clock; that the upholstery of a club coupe is a better quality than that of a business coupe.
Jerome Cataldi testified on behalf of defendant that he was the salesman who sold plaintiff the car in question; that he made out the bill of sale; that sometimes bills of sale are typewritten by defendant and sometimes not; that he took the $100.00 down payment on the sale and gave plaintiff a receipt for it. This receipt was introduced in evidence as plaintiff's exhibit 5. The witness further testified that the receipt did not state the type of car, whether new or used nor did it state the balance to be paid but merely gave the stock number of the car; that sometimes the space for a new or used car is filled in and sometimes not; that he made out the bill of sale on June 7, 1949, when the transaction was fresh in his mind and inserted the item $50.00 for white wall tires although he knew plaintiff did not want white wall tires; that defendant offered to return the money charged for the white wall tires or to give plaintiff such tires.
Frank Leber, general manager of defendant, stated that the rear windows of the car in question were sealed and the car was converted by defendant to make it more salable; that the upholstery in the rear of the car did not match that in the front: that the defendant has 75 employees including 11 salesmen and 4 office workers; that it is not customary for defendant to give the purchaser a bill of sale when he drives the car out nor to indicate thereon whether the car is new or used when a bill of sale is given; that defendant received only six business coupes in 1949 and converted all of them for purposes of sale.
Defendant contends that there was no competent evidence to submit to the jury that defendant's agents made representations to plaintiff that the automobile sold to plaintiff was a "Club" coupe and that by relying on such representations plaintiff purchased the automobile in question and suffered damages because the automobile was not a "Club" coupe and was less valuable than a "Club" coupe. Defendant insists that plaintiff on cross examination made statements directly contradictory to those made by him on direct examination relative to the representations made concerning the model of the automobile purchased, and that plaintiff thus cancelled out any evidence which would have tended to sustain his case.
In support of this contention defendant cites a number of cases exemplifying the application of the rule that if a party to a trial testifies to a certain state of facts and later during the same trial testifies to a contrary state of facts without giving a reasonable explanation of the conflict, he thereby cancels his own testimony and leaves it without probative value. We are unable to agree with defendant's contention that the rule it invokes is applicable to plaintiff's testimony in this case. Plaintiff testified on direct examination that he told defendant's salesman Cataldi that he wanted a new "Club" coupe; that later he was called on the phone by Mr. Cataldi and told that defendant had a car like plaintiff wanted and was told that defendant had a 1949 "Club" coupe for him; that he went out to see the car and bought it from defendant.
On cross examination plaintiff testified again that Cataldi told him he had the type of car he was looking for but on being pressed more closely he said he didn't remember whether Cataldi mentioned "Club" coupe but that Cataldi did say that he had what he (plaintiff) was looking for. It thus appears from plaintiff's testimony that he did describe in two different ways what Cataldi said to him, first, that Cataldi told him he had a "Club" coupe and, second, that he did not remember whether Cataldi actually used the words "Club" coupe but did tell him that he had the kind of car plaintiff was looking for. Regardless of the failure of plaintiff to remember whether Cataldi actually told him he had a "Club" coupe for him, plaintiff's testimony was positive and certain that he told Cataldi when he first saw him that he, plaintiff, wanted a new "Club" coupe. Under such circumstances we do not believe that plaintiff's testimony on cross examination cancelled out his testimony on direct examination wherein plaintiff testified that he told Cataldi he wanted a "Club Coupe" and that later Cataldi called him and told him he had the kind of a car plaintiff was looking for.
There is undoubtedly a slight difference in the testimony of plaintiff on direct examination when compared with his testimony on cross examination, but we do not believe that this amounts to any such conflict in his testimony as to require us to hold that the later testimony cancels out the earlier testimony. We think the cases cited by defendant on this point are not applicable to plaintiff's testimony in this case.
In Steele v. Kansas City Southern R. Co., 302 Mo. 207, 257 S.W. 756, cited by defendant herein, plaintiff therein had been found near a railroad track at night with injuries indicating that he had been struck by a train. At the first trial of the case he had testified that he had just got on the track when he was struck. He was dependant upon the humanitarian doctrine for recovery. At the second trial the plaintiff testified that he had walked about 200 feet on the track before he was struck. At the close of plaintiff's case the trial court had directed a verdict for the defendant. The Supreme Court, on appeal, reversed this ruling and sent the case back for retrial, holding that the weight of plaintiff's later testimony was for the jury in spite of his prior testimony to the contrary. The court held that upon the subsequent trial the plaintiff was not absolutely bound by his testimony at the former trial and the jury could consider plaintiff's testimony given at the subsequent trial notwithstanding the testimony at the former trial tended to show the existence of a contrary state of facts. This Steele case, supra, certainly does not support defendant's contention in the case at bar.
In Siegel v. Missouri-Kansas-Texas R. Co., 342 Mo. 1130, 119 S.W.2d 376, cited by defendant herein, the pivotal question of fact to be decided was whether the injury to plaintiff, a switchman, occurred in interstate freight movement so as to bring his claim within the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., under which he had brought his suit. At the beginning of the trial he testified only concerning intrastate movement of the freight and that he did not know what occurred after his injury because he was rendered unconscious by his fall to the platform. The next day of the trial he changed his testimony and testified that as a part of said movement of the freight and after his injury interstate cars were spotted. On appeal it was properly held that his subsequent testimony had no probative value. We have no such state of facts in the case at bar as that shown in the Siegel case, supra, and said case is, therefore, not applicable here.
We have examined the two other cases cited by defendant on this point, namely, Moses v. Kansas City Public Service Co., 239 Mo. 361, 188 S.W.2d 538, and Burris v. Kansas City Public Service Co., Mo.App., 226 S.W.2d 743, and find that they are in the same category as the Steele case and the Siegel case, supra, that is, they are not, under the evidence, applicable to the case at bar. None of the cases cited by defendant on this point would justify us in holding that plaintiff's testimony on cross examination cancelled his testimony on direct examination because of the slight conflict therein.
In a case which involved the matter of determining whether or not a part of the testimony of a plaintiff contradicted other parts thereof to such an extent as to render his testimony of no probative value, our Supreme Court said: "We are unable to concur in defendant's statement that plaintiff's testimony was so contradictory and without explanation in the respects mentioned as to preclude reliance thereon; for instance: As we read the record, plaintiff first responded to some general questions with general answers and then when crossexamined more specifically, he replied in greater detail. When read in the light of the attending circumstances it was for the jury to determine whether his testimony was contradictory, and to pass on his credibility as a witness and the weight and value of his testimony, especially so with respect to the constitutive facts of his case." Walsh v. Terminal R. Ass'n of St. Louis, 353 Mo. 458, 464, 182 S.W.2d 607, 610.
In a comparatively recent case this court had the same question before it. The plaintiff in said case had testified on direct examination that she was on the curb when she was struck by defendant's bus. On cross examination later she said she did not know whether she was walking or standing still when struck or where she was at the time she was struck, or whether she had started to cross the street before being hit. Answering the contention of defendant therein that plaintiff's testimony was devoid of probative value, this court said: "It is appellant's position that plaintiff's evidence as to the manner in which the accident occurred was contradictory and conflicting and did not constitute substantial evidence. It is seldom that a witness, in the course of an adroit cross-examination, does not make some statement, which, when taken alone and without consideration of the witness' other testimony, might appear to be conflicting. But when the testimony of the witness as a whole is indicative of one consistent state of facts the testimony of such witness should not be held so contradictory as to destroy it because by inadvertence or for any other reason a segregated answer to a question might be construed as differing from the witness' other testimony." Murray v. St. Louis Public Service Co., Mo.App., 201 S.W.2d 775, 779.
See also Nolan v. Joplin Transfer Storage Co., 239 Mo.App. 915, 203 S.W.2d 740; Eubank v. Kansas City Terminal R. Co., 346 Mo. 436, 142 S.W.2d 19. Under all the evidence and in the light of the above authorities, we hold that plaintiff's testimony herein was of sufficient probative value to make a case for the jury and the court did not err in giving instruction No. 1 submitting it to the jury.
Defendant next contends that the court erred in giving instruction No. 5 for the reason that there was no competent evidence relative to the difference between the value of the automobile received by plaintiff and the one alleged to have been purchased. We are unable to agree with defendant's contention. There was clear positive testimony by plaintiff that the price of the car quoted to him by defendant was $1697.00 for a 1949 Ford Club Coupe and he was told by defendant's agent Cataldi that the price of a 1949 Ford Business Coupe was $1449.00. This shows a difference of $248.00 in the selling price of the two kinds of Ford coupes. The bill of sale which was introduced in evidence described the car sold as a 1949 Club Coupe and stated the price to be, without accessories, $1697.00. Defendant argues that these were mere quotations of price and not evidence of value. We do not agree with defendant on this point.
We think such evidence constituted the best evidence of value under the particular circumstances of this case. The evidence clearly shows that plaintiff ordered a regular club coupe of the Ford Company and he got instead an altered business coupe. Furthermore, the alteration was shown not to be a good job for plaintiff testified that the work on the makeshift back seat that was installed in the business coupe to turn it into a club coupe was so poorly done that it would not hold passengers, and that it became loose and finally collapsed. In other words, plaintiff paid for a new regular Ford Club Coupe but got instead a poorly altered business coupe of less value. The difference in the value of the two coupes was clearly shown in evidence and we deem it unnecessary to repeat that evidence here. We rule against defendant on this point.
Defendant next contends that the court erred in giving instruction No. 6 for the reason that there was no evidence to warrant the submission to the jury of the question of punitive damages. On this point defendant cites Zemlick v. A. B. C. Auto Sales Investment Co., Mo.App., 60 S.W.2d 649, and Zumwalt v. Utilities Insurance Co., 360 Mo. 362, 228 S.W.2d 750. It would serve no useful purpose for us to take up space analyzing these two cases cited by defendant. It is sufficient to say that we have examined them and find that they are not applicable to the facts in evidence in this case and would constitute no authority for us to hold that the court erred herein by giving instruction No. 6.
It is well established law that punitive damages may be based upon false and fraudulent representations. This court had occasion to pass on this question in a suit which was brought for damages based on fraudulent misrepresentation in the sale of a used automobile. The speedometer on the used car showed 22,400 miles. This constituted the basis of the charge of misrepresentation. The evidence showed the car had actually been driven 48,000 miles and that defendant after reconditioning the car had turned back the speedometer to make it appear that it had only traveled 22,400 miles. At the trial there was a verdict and judgment for plaintiff for $150.00 actual damages and $2000.00 punitive damages. The defendant in said case relied on a custom in the trade to turn back speedometers just as in the case at bar defendant herein contends that its alteration of the coupe in question was in accordance with its customary treatment of all its business coupes. This court on appeal in said case held that any such custom was not binding on the plaintiff therein and said: "Furthermore, regardless of any lack of notoriety of the custom in question, it is one designed only to deceive and allow the sellers of used cars to obtain an unfair and undue advantage over their customers, and for such reason would in no event be recognized or countenanced by the law." Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 195, 93 S.W.2d 1083, 1086.
Speaking further of punitive damages arising from fraudulent misrepresentations this court said: "Regardless of what the rule may be in other jurisdictions or of the refinements and limitations with which text-writers may see fit to state it, the courts of this state seem now to be committed to the proposition that in cases of fraud and deceit punitive damages may be awarded where legal malice is present. Luikart v. Miller (Mo.Sup.) 48 S.W.2d 867; Finke v. Boyer, 331 Mo. 1242, 56 S.W.2d [372, 373]. Moreover, by legal malice the courts have in mind simply the accepted theory of the intentional doing of a wrongful act without just cause or excuse, and not the necessity for the showing of any spite or ill will, or that the particular act was willfully or wantonly done. Luikart v. Miller, supra; Lampert v. Judge Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095, 37 L.R.A., N.S., 533, Ann.Cas. 1913A, 351." Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 199, 93 S.W.2d 1083, 1088.
Defendant complains that instruction No. 6 which dealt with punitive damages did not tell the jury what "acts of defendant" were to be considered by them as warranting an award of punitive damages. The long established rule is that instructions must all be read together. Instruction No. 1 told the jury in detail what acts of defendant were required to be found by them as a prerequisite to a finding for plaintiff.
The jury in finding a verdict for plaintiff necessarily found that defendant did commit the acts and do the things hypothesized in instruction No. 1. Therefore, coupling instruction No. 6 with instruction No. 1, we find that the acts of defendant as set forth in instruction No. 1 sufficiently hypothesized defendant's alleged acts to warrant a finding for plaintiff. They were thereby sufficiently hypothesized to form the basis for punitive damages if the jury found in plaintiff's favor and should, as required by instruction No. 6, "further find that the alleged acts of defendant were committed maliciously, that is, knowingly and without just cause or excuse, then you will also allow plaintiff such punitive or exemplary damages, if any, which you may deem proper."
The "acts of defendant" as hypothesized in instruction No. 1, which the jury were required to find before they could return a verdict for plaintiff, were the following: that defendant delivered the automobile in question to plaintiff as a 1949 Ford Club Coupe; that defendant represented to plaintiff that it was the model for which he was charged; that defendant charged plaintiff for the equipment mentioned which was not furnished; that the automobile delivered to defendant was not a 1949 Ford "Club" Coupe but was a less expensive model known as a "Business" Coupe, and that defendant knew these things at the time of the delivery of the automobile.
Instruction No. 5, which must also be read along with all other instructions, specified the equipment involved which the evidence showed plaintiff paid for but did not receive and limited the jury to $308.00 as total actual damages, which represented $248.00, the difference between the two models in price, $50.00 for the tires, and $10.00 for the ornament which was not furnished to plaintiff.
Instruction No. 6 required the jury to find that these acts of defendant "were committed maliciously, that is, knowingly and without just cause or excuse" before they could find punitive damages.
Instruction No. 7 defined the word "maliciously" by telling the jury that said word "does not mean hatred, spite, or ill will, as commonly understood, but means a wrongful act intentionally done without just cause or excuse, and by the word `wilful' is meant intentionally and not by accident or mistake." It will thus be seen that when instruction No. 6 is read with other instructions given, the jury were clearly and properly told what they must find in order to allow punitive damages. We hold the court did not err in giving instruction No. 6.
Defendant further complains against instruction No. 6 and points out that plaintiff's petition alleged many acts of misconduct on the part of defendant and that evidence was presented to the jury of such alleged acts; that the court did not instruct on most of such alleged acts and they were not properly before the jury. Defendant asserts that there is nothing in instruction No. 6 which would indicate that the jury could not consider such alleged acts. As we have heretofore held, instruction No. 6 must be read along with instruction No. 1.
In hypothesizing the acts of defendant which the jury were required to find as a prerequisite to a verdict for plaintiff instruction No. 1 set forth the various alleged acts of defendant in the conjunctive. The jury were, therefore, required to find both the misrepresentations concerning the car and the charges made for equipment which was not furnished before they could allow punitive damages.
The evidence which showed that the misrepresentations were knowingly and intentionally made by defendant without any just cause or excuse was alone sufficient to constitute a basis for punitive damages. Hence, it was not reversible error to require the jury to find other intentional wrongful acts as a basis for such punitive damages because this merely placed an additional burden on plaintiff beyond the necessary requirements of the law. If the instruction was erroneous in this respect it was error that favored defendant and defendant cannot justly complain particularly since it did not ask the court to exclude from the jury's consideration such other acts of defendant's alleged misconduct.
We find no reversible error in the record and the judgment of the trial court should be affirmed. It is so ordered.
ANDERSON, P. J., and BENNICK, J., concur.