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Bradley v. Howard Hembrough Volkswagen

OPINION FILED OCTOBER 3, 1980.

MARY M. BRADLEY, PLAINTIFF-APPELLEE,

v.

HOWARD HEMBROUGH VOLKSWAGEN, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. JERRY S. RHODES, Judge, presiding.

MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

This case was here before.

We reversed and remanded.

It is here again.

This time we reverse — no remand.

Mary Bradley instituted this action to recover actual and punitive damages occasioned by defendant's alleged violation of the Motor Vehicle Information and Cost Savings Act of 1972. (15 U.S.C. § 1981 et seq. (1976).) This act and its related regulations (49 C.F.R. §§ 580.1-580.6 (1979)) require the transferor of a motor vehicle to provide an odometer mileage statement to a transferee.

On May 17, 1976, Gerrit L. DenHartog traded his 1973 Honda Civic to Howard Hembrough Volkswagen, Inc., towards the purchase of a Volkswagen van. In discussions with Don Brewer — one of defendant's salesmen — DenHartog explained that the car had a great deal more wear than the 5,000 miles indicated on the odometer, since the original odometer was replaced at 19,000 miles.

Brewer prepared a mileage statement which indicated a mileage of 6,008 miles as shown on the odometer. The form did not have a place to indicate the existence of a second odometer and Brewer suggested that the form was requesting the odometer mileage rather than the actual mileage. DenHartog stated that he signed the form reluctantly, but he also did not feel he was signing a false statement or that Brewer was trying to perpetrate a fraud. Rather, he believed that the form was incomplete and subject to interpretation.

Brewer stated that he never questioned whether the odometer mileage was the actual mileage. He did not recall any conversation with DenHartog regarding the actual mileage. If he had known the actual mileage, he would have indicated it on the form.

On May 27, 1976, plaintiff was shown the Honda Civic and was told it had 6,000 miles on it. She purchased the vehicle and was given a mileage statement certifying the mileage to be 6,019 miles. Upon returning home, plaintiff examined the owner's manual and discovered the car had been serviced when it had 3,622, 7,653, and 11,655 miles on it. She searched the car and found four or five oil stickers indicating mileage in excess of 6,000 miles.

Plaintiff then returned to defendant and demanded her money back from the salesman who sold her the vehicle. He refused. Plaintiff's father-in-law called Howard Hembrough, president of defendant-corporation, who refused to refund plaintiff's money. Hembrough stated he delegated to his salesmen the authority to prepare odometer statements. He told the plaintiff she could see if there was another used car she found suitable.

On January 23, 1978, the trial court found in favor of plaintiff. An appeal was taken to this court wherein the defendant contended the evidence did not indicate an intent to defraud. On November 9, 1978, this court entered an order pursuant to Supreme Court Rule 23 (73 Ill.2d R. 23), reversing and remanding. In so doing, we found that the regulation (49 C.F.R. § 580.6 (1979)) was ambiguous and that an intent to defraud could not be conclusively inferred from the manner in which Brewer completed the form. We noted an inherent conflict between the trial court's judgment — which required plaintiff to show an intent to defraud — and its finding that there was no intent to defraud. We concluded by holding:

"Proof of an intent to defraud is indispensable for a recovery under the Motor Vehicle Information and Cost Savings Act. Although there is some evidence of such an intent in this case, the verdict is against the manifest weight of the evidence. [Citations.] Thus, the judgment of the trial court is reversed and the cause is remanded for a new trial."

• 1, 2 On February 11, 1980, the parties entered into a stipulation whereby they expressly waived the right to present any additional evidence and agreed that the court could reach a decision by reading the transcript of the proceedings of the prior trial. Two days later, the trial court — a different judge — by docket entry ...


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