Opinion
51302.
SUBMITTED SEPTEMBER 30, 1975.
DECIDED JANUARY 7, 1976.
Action for damages. Fulton Superior Court. Before Judge McKenzie.
W. M. Mathews, Jr., for appellant.
Gambrell, Russell, Killorin Forbes, Jack O. Morse, Sewell K. Loggins, for appellee.
Appellant Smith purchased a $9,000 automobile from Leader Lincoln-Mercury which was to have a dark green vinyl top. The car that defendant Leader delivered to Smith had a white top which had been sprayed green. Smith complained about the roof and Leader replaced it with a factory-made green vinyl roof. Since Smith was still dissatisfied, Leader replaced the roof again. Smith claims that he was still dissatisfied, although he admits that he kept the car for over a year, driving it about 12,000 miles, without notifying the car dealer of his dissatisfaction. Smith then traded in the car and sued Leader for $35,000 actual and $35,000 punitive damages for fraud. The jury verdict in favor of Leader is the basis for this appeal. Held:
The proposition that a jury verdict will not be disturbed unless clearly erroneous needs no citation of authority. Accordingly, the appellate courts construe all evidence and resolve all doubt in favor of the verdict and judgment rendered thereon. Where there is evidence to support the verdict, it will be upheld.
In his appellate brief, the plaintiff, seeking to establish fraud and damages resulting therefrom, states: "In the case before this Court, the auto was not defective mechanically. All that was wrong was that a white top was sprayed green." The evidence was undisputed that the defendant replaced this top twice with factory-made green roofs and that, after receipt of the second replacement roof, Smith kept the car without notifying Leader that he did not consider the nonconforming delivery cured. Moreover, during the course of the trial, Smith stated that he was damaged by $4,000, although he did not substantiate this figure nor did it conform with his complaint, wherein he claimed $35,000 in actual damages.
For these and other reasons apparent from a review of the record, we think the evidence amply supports the verdict. The verdict and judgment entered thereon were correct, as was the trial court's refusal of the plaintiff's motion for a new trial.
Judgment affirmed. Deen, P. J., and Evans, J., concur.