*1 INC., FORD, HILL ART
Defendant-Appellant,
v.
Kenneth and Jeannette CALLENDER
Callender, Plaintiffs-Appellees.
No. 3-879A217. Indiana, Appeals
Court of
Third District.
June Lyman, R. Levy Gregory
Joel Sin- C. Crist, Highland, & for defend- gleton, Levy ant-appellant. William J. Cun-
Robert M. Schwerd Smith, Hilbrich, & Cunningham ningham, Schwerd, plaintiffs-appellees. Highland, GARRARD, Presiding Judge. Jean- and his mother Kenneth Callender brought against this action nette Callender Ford, Compa- Motor Inc. and Ford negli- warranty and ny alleging breach of against returned a verdict gence. damages Compensatory both defendants. against Art Hill Ford were assessed $2,411.00 amount of $7,000.00. the amount of were assessed in compensato- Against in the amount ry damages assessed judg- $4,822.00. entered The trial court Ford.and, as to Art Hill ment on the verdict remittitur, judgment entered after $2,411.00. Company for against Motor *2 341 $2,439.00(the judgment plus Ford tendered First Federal Savings and Loan Assoc. v. costs) (1979), Mudgett 1002, to the Ind.App., Callenders the trial court 397 N.E.2d 1008. judg- entered an order of satisfaction of the compensatory
ment on the
damages as to
Our extensive review the
evidence in
both Art Hill
Compa-
Ford and Ford Motor
the case before us has failed
reveal
evi-
ny.1
dence
finding
to sustain a
of either the
necessary independent tort or of a serious
Ford,
appeal,
on
challenges the
wrong tortious in nature.
It contends
light
The evidence in the
most favorable
evidence is insufficient to sustain
to the verdict reveals that Kenneth Callen
the award.
purchased
der
a 1976Ford four-wheel drive
damages
Punitive
have been held re
pickup truck designed for off-road use from
coverable in contract actions where the evi
April
days
Hill Ford on
1976. Two
independently
dence
establishes the element
later,
road,
driving
while
off the
the front
of an intentional common law tort or where
axle broke. Due to the nature of the dam
fraud, malice, gross negli
the elements of
age, Art Hill
inspected
Ford had the vehicle
gence
oppression mingle
or
by
contro
a
Company representative
so
addition,
versy.
repair
it must be
shown
could be authorized under the
public
interest will
began.
repre
be served
before work
sentative
deterrent effect of the
the truck and authoriz
damages.
ed the
April.
Hibschman
last week of
(1977),
authorized,
845;
After the work was
266
Callen-
Ind.
362 N.E.2d
Vernon Fire
ders were told
had to be
Casualty
(1976),
&
Sharp
Ins. Co. v.
264 Ind.
ordered
and would take 10
to two
599,
1. The Callenders do not of the satisfaction of ered, just prior to Mrs. Callender that the incident occurred fact the truck would be parts manager Ford year. new model However, September calls to he made numerous additional subsequently discovered country other dealers around the complete were needed to parts. in order to locate the to be These also had ordered *3 holiday, the Cal- Over the Fourth of delay. an additional Harbour, Benton trip lenders went on a that knew that the Kenneth he testified way, the Ken- Michigan in the truck. On it was difficult repair major was one and he strange neth noise later deter- noticed unit wrong tell what until the was was problem with the transfer mined to be a together again. apart put taken Hill case. He returned told the salesmen he Ford on 19th and was that Kenneth testified that parts department with were dealt and the repaired. truck would cooperative. The salesmen tried to fair and Kenneth, training in who had automotive concern for him as a help him and showed case repair, transfer happy were not They customer. repaired should have been parts located to fix truck. could not be repaired. He stat- when the front axle was Hill Ford had thought Kenneth that Art housing of the axle ed that when front parts. made a sincere effort find breaks, go up in shaft will back the drive However, he felt he was testified he damage. Art Hill case transfer ignored he and his being in that when inspect repair admittedly Ford did not or everyone dealership mother would enter the axle was re- the transfer case when the running. also felt that would take off He Ford Motor Com- paired. testimony cooperate with them and Art Hill did not witnesses, qualified who as pany also attempt to obtain the Melrose Park in their experts, if the axle broken was had parts. complained that Kenneth further by as described under the circumstances not Hill use from Ford Kenneth, would not have the transfer case parts although other trucks or obtain used no rea- damaged and there would be been that the war- he was aware and understood inspect son to it. parts. ranty required the use new Ford Repairs case were not transfer complained also that Art Hill Ford Kenneth Again completed until October vehicle not offer the use another did normally kept necessary parts were not being repaired. the truck was while by in stock a dealer. Nor August, “words” with In Kenneth had parts depot available from Ford Ford general manager of Art Hill dur- manager Art at United States. concerning Mrs. Callender’s ing a discussion again to call Ford Motor Ford had repairs. which in for Kenneth was also times Company and other dealers several scratching this had accused Art parts. Be- attempting to obtain the various discussion, during point At one car. sides because of the difficulties encountered manager his fist at Kenneth raised year, prob- further change in model (Kenneth) did know what him that a strike September lems because of arose talking was about and had caused no which enough manager stated that trouble. be delivered. out there. Both he wanted them both discussion did this Callenders Mrs. the Ford MOtor Callender contacted concern the truck. department lo- Company’scustomer service Park, Illinois. This de- cated in Melrose by Callenders on This suit was filed also partment 15,1976. was unable obtain telephoned October the truck. Even- necessary parts repair her Mrs. the 18th and told Callender on This tually major part picked up. the truck could to Kenneth Park from a dealer a letter addressed obtained Melrose verified was deliv- dated October 25. Oklahoma. After this warranty On October Art Hill Ford had the breached its prompt service. representative, who had authorized The Callenders were therefore entitled axle, under in- on consequential damage recover all actual and spect the acceptable truck to see if it was suffered them as a result of breach. deliverable. This was done because the $2,411.00 Inasmuch as the Callenders been had notified and had not compensatory damages challenged, is not picked December, up the truck. the we must conclude that the Callenders were attorney for Art Hill Ford wrote the follow- compensated fully for the breach. On the ing letter to the attorney: Callenders’ hand, the evidence does not rise to the 8,1976,
“As I advised on required December level of conduct for an award of plaintiffs’ vehicle The evidence does not October 1976 and letter reveal conduct on the of Art Hill Ford they date were advised that they could reprehensi- which could be characterized as *4 pick up the vehicle. I have also advised nothing in ble or malicious. There is these Ford, Inc., pursuant that Art Hill to facts that can be described as an intentional procedures normal age because of the of tort, fraud, deceit, representation, false vehicle, has tendered the claim under gross negligence, oppression mingled warranty to Ford Company. Motor Therefore, controversy. part with the the event that Company does judgment awarding punitive of the dam- accept warranty, claim under ages must be reversed. will be plaintiffs pay for the part; part. Reversed in affirmed in for the costs of It is our belief that the vehicle was HOFFMAN, J., concurs. abused Kenneth Callendar [sic] STATON, J., separate and files dissents way operated the vehicle and there- opinion. fore we do not believe that it was within warranty STATON, give dissenting. and we cannot much Judge, hope that Ford Motor will ac- dispute accuracy I dissent. I do cept warranty.” this under Majority’s of characterization of its evi- The of the axle had been authoriz- dentiary review as “extensive”. But ed under the warranty by evidentiary departs a Ford Motor Co. review from the stan- representative as a matter of customer dard of review which binds this Court’s good will question adjudication challenges because there was some to factual deter- as to departure proper whether the truck had been abused minations. This from the prior Kenneth. Art Hill Ford not seek in a reversal of did standard of review results warranty jury’s punitive damages authorization for the Callender; require transfer case and Ford did not that Kenneth and Jeannette prior proper applied such of review is authorization obtained. standard obtained, evidence, say Where it is not we can not as matter of warranty wholly submits a claim which is reviewed law that award was un- Majority Ford. requires supported by the dealer to retain the evidence. replaced usurped for its until has the fact finder’s role in the approved. judicial after the claim is Art Hill Ford process. way
had no knowing whether or not the Majori- standard of review which accepted claim would be until after it was ty departed explained has from was paid. The record paid reveals that Ford (1977), Hibschman warranty under the in March 845, one of this 266 Ind. 362 N.E.2d 1967, at which time the Callenders took leading cases in the law of State’s possession of the truck. damages; Hunter wrote Justice adequately supports
This evidence often stated the maxim “This Court has nor jury’s finding reweigh that Art Hill Ford that it will not the evidence 344 witnesses, going “I was back there down trail credibility
determine the was a one side if is and there minibike on and but will sustain a verdict there side of me and there was a it. on the other probative evidence value 1, 298 me. coming towards There (1973), Ind.App. Volkswagen Moore v. Waitt 157 456; Sales, middle of the trail to Perry hole N.E.2d Smart Volkswagen so get could off (1971), Ind.App. where I Inc. v. Weaver there was get me because 718.” around 274 N.E.2d through goI another tree there too. Here, clearly there is 362 N.E.2d hour, five and ten miles hole between probative summa- evidence value—some fast, around me I had kids if because rized and some not—to hole, the I out of the on both sides. come support the jury’s verdict. ground, bounced never left the front end could have concluded from goI off to the twice all of a sudden Art Hill Ford evidence the conduct of So, just stuck. I thought I I was left. nothing than a amounted more failure reverse, I get out and put it in tried satisfy prompt service. my get I partner couldn’t move. asked But, present- not. evidence it did From the got out of the out of ed, was oppressive that there it concluded So, then I crawled his head. shook Art Hill Ford conduct on the left side tire out of the truck. I seen the ele- dealership and that there was in top of the tire to- pointing—the which entitled ments of tortious conduct inside well and bottom wards the fender If the Callenders to *5 I what had sticking out and knew the there is evidence in record happened.” jury, it is this factual determination truck, it was inspection After this appellate tribu- prerogative not the of the to Art Hill nal determination towed Ford. to substitute factual Ponti- jury. for that of the In Hibschman later, One week Batchelor, ac, supra, Inc. v. our Indiana inspected the truck representative Dealer precisely the Supreme Court was faced with costs authorized it that question same after was determined then warranty. covered under cir- oppressive conduct existed. factual weeks it take two Callender that would very in Hibschman are similar cumstances necessary repair. parts for obtain the presented to to the factual circumstances later, weeks Callender About one and a half the jury here. truck; the status inquired about had been responded that that Ken Callender The record indicates Repeated tele- placed on “back order”. purchased his from Art Hill Ford truck personal visits Cal- phone inquiries March 1976. Ken Cal Ford sometime in the next during his lender lender conversa response form prior prompted to his month the same tions with Art Hill’s salesmen truck, were on inquired dealership twice purchase of —that per- use order”. Callender was built for “off “back whether the truck him, “take off at Art Hill Ford would as well sonnel The salesmen assured road.” entered mother, running” co and his mother present and as his who was dealership; similarly, he was often had the signed truck for telephone. on “hold” over the placed was built for off heavy-duty suspension and the road use. inaction, In the of Art Hill Ford’s face 20, the Ford posses- mother contacted April took Callender’s On Callender Park, later, Illi- in Melrose Representative axle Dealer sion of his truck. Three necessary nois, parts. The proceeded regarding the broke on truck as Callender of in- computer ran check representative unpaved trail cars and bikes. down an for warehouses, located the following ventory He described the incident shipped Art Hill them parts, and had manner: formed that Eventually, response inquiry in to an it would take a week or two Ford. informed that May, in late Callender was for Art Hill Ford to obtain the by July him ready the truck would be for parts. Again, inquiries Callender’s later response Ford resulted placed had been on “back order”. July 2 picked up Callender the truck on spring for the and was informed that a Finally, August, the Callenders and front hubs had not been delivered. Manager engaged Art Hill Ford’s General during his Ford also informed him that dispute a verbal over Art Hill Ford’s contemplated trip Michigan over the car, handling of Jeannette Callender’s weekend, 4th use the 4-wheel he should not dealership which was also at drive, fifty the truck over should not drive Although the has indicated hour, per miles and should not take the wholly unrelated to the incident was truck “off the road.” Art Hill Ford also problems, Manager’s truck the General ad- sound informed Callender that there was a clearly sug- monishments to the Callenders truck which he coming from the did not need gest merely part that the incident was worry about—“that [the sound] par- continuing difficulties between take care of itself.” Callender, ties. As he his fist at Ken raised During trip Michigan, Ken Callen- they had he told the Callenders that caused crackling der became concerned over “enough trouble.” coming noise from the truck. Based on his Thereafter, telephone in- Ken Callender’s experience mechanical placed quiries, wherein he was oftentimes truck, he concluded that the noise was com- time, long periods on hold for received ing from the transfer case located near the (1) responses: either of two previously-broken returned the axle. He available, (2) the truck would truck to Art Hill Ford on and he dealership During time Ken informed the source of the in a week. noise. dealership many past Callender drove his truck located always times and observed Art Hill Ford had not building. spot outside the *6 the same shop transfer case when the truck was in its Conflicting with a testimony broken axle. 15, 1976, the Finally, on October Callen- presented with respect to whether the Three la- ders this lawsuit. initiated transfer should have case been ter, called the Callenders that time.1 Callender testified that based truck had been inform experience, fact that the axle had and was for them. inspec- been broken in turn warranted an indicated, Majority has as some While the case, tion of the transfer since the broken long testimony suggested, delays likely pushed axle would have a driveshaft by a repair of the truck were occasioned Although into the case. Art Hill Ford’s parts for the new shortage of available testimony indicated that the circumstances of Ford Motor Richard Karchunas surrounding the out break axle ruled Dearborn, Marketing Division Company’s case, the need to examine the transfer it is of no such Michigan that he knew (albeit undisputed rusty a driveshaft shortage. one) replaced at the same time that repaired. axle evidence, jury could Based on this fraud, reasonably have found elements agreed after malice, gross negli- misrepresentations, of the transfer case that the transfer case mingled with the gence, oppression damaged had been and would have to with warranty. When confronted replaced. again, was in- breach of Once Callender particular aspects imply province weigh fac- of this 1. I do that it summarized both is our point aspect. the evidence. I conflicting merely out that the evidence was tual Majority has because the strikingly conduct an auto dealer similar Pontiac, ANDERSON, Appellant
in Hibschman CITY OF Below), 310, 362 (Plaintiff (1977), 266 N.E.2d our Ind. jury’s Supreme Court refused reverse v. damages.2 punitive OF STATE INDIANA DEPARTMENT punitive reversing award Indiana, REVENUE, State of departed here, Majority has Below). (Defendant Appellee of review standard appellate from No. 2-1078A344. governs disposition this which Court’s Indiana, Appeals of Court of A challenges to factual determinations. Second District. summa- cursory comparison factual dissenting Majority ries included June has reveals that over- opinions judgment, favorable to the looked evidence evidence,
weighed the and substituted jury. I would for that
conclusion damages. award
affirm
partment,
jury could
and the
find
2. As stated
the Court Hibschman
buying
Batchelor,
presented
there
relied on these in
Inc. v.
the facts
Batchelor
having brought
from
defendant. After
were:
occasions, Batchelor
the car in on numerous
requested
“The evidence showed
Hibschman,
by Jim
T would rather
was told
satisfactorily
although
completed
you
just
and not come back.
leave
capable
of cor-
covered
rection. Some of
breaches of
going
as a
clearly
We
to have to write
off
are
these
defects
*7
bubbled,
warranty.
And he was told
one
bad customer.’
Paint
that,
you
‘If
don’t
properly,
mechanics
the hood
Hibschman’s
the radio never worked
fixed, they
bumper
misaligned,
get
get
will
on them and
this
you
were twisted and
failed,
get
joints
link-
will never
it
universal
the transmission
screw
around and
timing
age
improperly adjusted,
jury
done.’ From these statements
improper
attempting
chain
ups
defective
tune-
infer
the defendant was
defective,
among
concealing
making
the carburetor was
avoid
certain
things.
car to
Batchelor took the
period
warranty.
them
on numerous
defendant with a list
occasions and
was ‘all
defects
op-
gave the
numerous
Batchelor
defendant
up
picked
the car
portunities
the car and
defend-
go.’ It
was reasonable to
so;
tried
con-
do
instead he
ant did not
manager
service
infer that the defendant’s
problems
vince
Batchelor
represented repairs to
made when
have been
car,
We
but rather with Batchelor.
with the
work
not been
he knew that the
had
done
opinion that in this case the
are of the
representations,
and that in reliance
Batchelor drove the car on
cogent proof to
found there was
could have
trips and
had
malice, fraud,
negligence
gross
establish
purchasing the
Before
breakdowns.
oppressive conduct.”
given special representations
Batchelor was
on the excellence of Hibschman’s