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Jackson v. H. Frank Olds

OPINION FILED OCTOBER 20, 1978.

DORA L. JACKSON, PLAINTIFF-APPELLEE,

v.

H. FRANK OLDS, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN KELLY, JR., Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action to recover damages from defendant arising from the sale to her of a three-year-old used car. Although plaintiff originally asked for rescission in her complaint, the trial judge dismissed this count because the car had been stolen. He gave plaintiff leave to file an amended complaint. In the amended complaint filed on August 28, 1975, plaintiff alleged in two counts that (I) despite certain representations made by defendant's agent, the automobile was not fit for the ordinary purpose of driving and completely broke down within one week of purchase and (II) defendant's misrepresentations were wilfully made. She prayed for compensatory damages of $4,000 on count I and punitive damages of $15,000 on count II.

On June 23, 1976, defendant filed a motion to dismiss count I of plaintiff's amended complaint on the grounds that the only remedy available to plaintiff was under the limited warranty set forth in section 2L of the Consumer Fraud Act (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 262L) and not under any of the implied warranties of the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, pars. 2-314, 2-315). Although the order disposing of defendant's motion does not appear in the record, the trial court apparently denied the motion to dismiss, and the case went to trial before a jury on both counts. The jury returned a verdict in favor of plaintiff and awarded damages of $2,400 on count I, and $2,500 on count II. After considering defendant's post trial motion, the judge granted defendant's motion for a directed verdict as to count II and ordered that a new trial be held on count I unless plaintiff remitted the sum of $700. Plaintiff filed a remittitur thus reducing her award to $1,700 plus costs.

Both parties appeal the judgment below. Defendant contends that: (1) plaintiff is not entitled to recover damages under count I since her exclusive remedy is under the used car warranty provisions of the Consumer Fraud Act (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 262L) (2) the trial judge erred in refusing to strike and to instruct the jury to disregard the testimony concerning certain exhibits. Plaintiff maintains in her cross-appeal that the trial judge erred in directing a verdict in favor of defendant on the punitive damages count since defendant's actions were willful and malicious. We affirm.

Since no verbatim record was made at trial, the trial court certified the Report of Proceedings prepared by defendant pursuant to Supreme Court Rule 323(c) (Ill. Rev. Stat. 1973, ch. 110A, par. 323(c)). This report of proceedings discloses the following:

Plaintiff testified that in August of 1972 she and her son visited defendant's used car lot and spoke to Edgar Cheatum, a salesman, about obtaining a car in "A-1 mechanical condition" for a trip to Arkansas. She examined a 1969 Pontiac Grand Prix, returned the next day to take it for a test drive, and purchased it for approximately $2,500. She was given a $500 credit for the trade in of her old car and was told that she would receive the remaining benefits of a 50,000 mile, 5-year warranty on the Pontiac from the original owner in addition to a "30 day, 50/50 warranty." *fn1 A few days later her husband, son and another relative took the car on a trip to Arkansas. The car broke down in Bitner, Illinois, where they abandoned it and continued to Arkansas by bus. They returned to Chicago by bus as well. Plaintiff's husband and her father subsequently returned to where the vehicle had been abandoned and arranged for it to be towed to defendant's shop for repairs. Plaintiff called Cheatum and informed him that she wanted another car. He told her that the car was still under a warranty and still her car. Defendant retained the vehicle for a month and put a new engine in it. During the third week plaintiff received a loaner vehicle from defendant.

When her repaired car was returned to her, it again broke down and she took it to a gas station. An undated bill in the amount of $25 for inspection of the transmission was admitted into evidence. The car broke down on several more occasions and was repaired by plaintiff's cousin. Finally, the vehicle became completely inoperable and plaintiff left it in a lot next to her home. It was stolen from this lot in March of 1974.

During cross-examination, plaintiff stated that she did not pay for any of the repairs made by defendant. She received $800 from her insurance company for the theft of the vehicle. The insurance form indicated that as of the date of the theft the mileage on the car was 48,000.

Edgar Cheatum testified that he is employed as a car salesman by defendant. He sold the 1969 Pontiac to plaintiff whom he knew on a social basis and to whom he had sold another car on a previous occasion. He did not recall whether plaintiff requested a car in A-1 mechanical condition or if she stated that she needed the car for a trip to Arkansas.

Cheatum further testified that since the car sold to plaintiff was a Pontiac and defendant was an Oldsmobile dealer the repairs were made by Al Abrams Pontiac. On at least one occasion, Cheatum himself went to the Pontiac dealer to pick up plaintiff's car. He then drove it approximately two blocks but did not like the way it sounded so he returned it immediately for further repairs.

Both at the time the vehicle was obtained from its original owner and at the time it was sold to plaintiff it had about 20,000 miles on its odometer. Prior to the sale to plaintiff, Cheatum inspected the vehicle and found several things wrong which he arranged to have repaired. All repairs were made at no cost to plaintiff. He told plaintiff to bring him all of the automobile parts that had been repaired during the trip to Arkansas and that she would receive credit for her payments. She complied and he put the parts in two boxes that were destroyed in a fire that subsequently occurred at defendant's place of business.

Plaintiff's husband, James Jackson, testified that he, his wife's son and another relative started to travel in the vehicle to Arkansas, but the car broke down in Benton, Illinois. *fn2 They had the car towed to a gas station where the thermostat was replaced. Plaintiff's counsel then offered into evidence a receipt from a service station in Benton. Defendant objected on the grounds that Jackson was not a party to the lawsuit, nor was there evidence that he had assigned any of his claims for repairs to plaintiff. Furthermore, the bill was not marked paid. The court then gave defendant the opportunity to voir dire the witness.

Upon voir dire, Jackson testified that he no longer lived with his wife, that she paid for the car herself and that there was no assignment in writing between them of any claims he may have had against defendant. The court then denied plaintiff's motion for admission of this exhibit and also denied defendant's motion to strike or to instruct the jury to disregard the testimony concerning the exhibit.

Jackson then testified that they continued their trip and the car began overheating and water started spilling out of the engine. They stopped and arranged for the car to be towed to a service station in Mt. Vernon, Illinois. Plaintiff attempted to offer the bill from this service station. Defendant objected on the same grounds as before and the trial judge refused to admit the exhibit and also refused to instruct the jury to disregard the testimony concerning the exhibit. Plaintiff's attempts to offer the receipts for the replacement of the clutch, fan, thermostat and for various other repairs were similarly objected to, and denied admittance by the trial judge. Jackson testified over defendant's objection with regard to his payment for replacement of the water pump.

During cross-examination, Jackson testified that his reason for travelling to Arkansas was to attend his sister's funeral. His sister died one week after the automobile was purchased and neither he, nor to the best of his knowledge, his wife had any intention ...


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