*1
397
665,
(1980);
Ill.Dec.
cah Area
Library
Terry,
al.,
Public
v.
et
METRO AUTO
(Ky.App.1983);
Fiting,
Currie v.
Plaintiffs-Respondents,
440,
(1965);
375 Mich.
Pearson Agri-Systems,
119 Wis.2d
En Banc.
(1984);
Cir.1985); Technologies Metz v. United
Corp.
(2nd Cir.1985);
Slater Boat
1983); Abernathy Superior Hardwoods,
Inc.,
(7th Cir.1983);
United
1981); Service, Chiarello v. Domenico Bus
Inc.,
(2nd Cir.1976).
appellants preserved have not this issue on however,
appeal. Appellants, objected to
respondents’ argument valuation
close of the evidence immediately before
respondents’ closing argument, and their
objection compliance was in with the Com-
mittee’s Comment to MAI 5.01:
During the instruction conference the
parties (off and the Court should discuss record) just damages what sup-
ported by the properly evidence and can argued jury. way, In this
jury arguments proceed can un- without interruptions.
due
Appellants’ objection was overruled. Be- respondents’ closing argument
cause
damages improper prejudicial,
cause should be reversed and remanded. *2 Webster, Gen.,
William L. Atty. Warren Weinstein, Atty. Gen., Asst. City, Jefferson for defendants-appellants. Pool,
Douglas Camp, Kelly Van Jeffer- son City, plaintiffs-respondents. Phillip Gebhardt, Gen., K. Atty. Asst. City, Jefferson for intervenor. HIGGINS, Chief Justice. Plaintiffs, nine corporations op- erating wholesale automobile auctions in Missouri, sought state of to enjoin the Director of Revenue continuing practice enforcing Cum.Supp.1984, by investigating mileage readings immediate transfer- ors of placing motor vehicles and a warn- ing legend on certificates of title when the Director application determines the con- tains an incorrect odometer statement. enjoined trial court the Director find- statutory authority practice. no for this appealed and the Court of Appeals, District, Western affirmed tri- al court on grounds; different the Court of Appeals enjoined the long Director so as the Director adopted practice had not his enforcing section 407.536 promulgating readings a rule eter under the on titles. The Administrative Procedure statute was Act. This granted Court transfer to deter- enacted in 1977 but not enforced mine validity Director’s Beginning Director until 1982. in the fall of enforcing section 407.536. The began trial requiring appli- court judgment is affirmed. cants to state the title. addition, began checking *3 (1) plaintiffs The Director have contends: remote owners of selected vehicles and standing legally protectable no no because with other sources to determine if the affected, plaintiff has been interest of the statements with the (2) enjoined and the Director should not be applications for transfer title were accu- practice enforcing carrying from out his rate. The titles to be checked were select- section has 407.536 because ed on a and judgment random basis on the practice under authorized this section 407.- of the examiners. If the Director deter- and Cum.Supp.1984, RSMo mined the odometer statement submitted 301.190.2, Cum.Supp.1984. Plain- by the inaccurate, seller of the vehicle was respond: (1) standing plaintiffs tiffs have he place would following legend on the they legally protectable a suffered Department new title issued of Rev- direct loss of income as a result of the enue: actions, (2) Director’s and Director’s practice enjoined should be because section This is not the and true accurate mile- specifically limits the Director’s au- age of this motor vehicle. Consult the thority warning legend documents on file with Missouri De- title to those cases where the inaccurate partment of Revenue for an explanation is revealed immediate trans- of the inaccuracy. feror of that vehicle. operate Plaintiffs their auctions to facili- Gentle, Robert President Metro Auto tate the sale of motor by reg- vehicles Auction, warning legend testified that dealers, istered leasing compa- automobile on a title devalues the resale value of the nies, automobile manufacturers. He further testified $500 $2000. actually Plaintiffs do buy not or sell auto- buyer that when a of a vehicle at one mobiles but act as brokers in the transac- of his auctions his new receives title from tions and receive commissions on the sales. the Department of Revenue with the warn- The auctions open are not public it, legend buyer immediately will generally. contact the auction and demand a refund of money paid plus any for the vehicle ex- highest sold to automobiles are penses incurred. The auction will then con- bidder. The buyer then issues its check or selling tact the and if the dealer latter will sight draft company to the auction back, buy automobile auction after company the auction receives the title will permit refuse to that dealer to use its seller, and odometer it buy auction in the will future and back the forwards those documents vehicle itself. Mr. testified that Gentle Generally, issues a check to the seller. while in the auction most instances is not plaintiffs are not in the chain of title of the the chain of affected title of the automo- auction; however, vehicles selling sold at bile, legal compulsion and thus under no occasionally assign dealers the titles to it, purchase upon buyers the auctions look plaintiffs reassign who in turn titles to “guarantors” as purchased vehicles buyers, plaintiffs will hold a title require repur- there and auctions to blank, transferred in as “open known losing chase such vehicles the risk of title.” that dealer’s Mr. Gentle testified business. requires Section 407.536 transferors of had occurred five above situation ownership of motor eight vehicles odom- or six times out of to ten thou- some
sand sales. Mr. Gentle also though testified that legal obligation under no repur- experienced vehicles, he had decrease volume of chase these Metro pursu- does so percent business of 25 Therefore, because some ant to practice. deal- sound business ers refused to use Missouri auctions Court concludes be- the Director’s cause of the policy. directly repur- Director’s resulted in Metro chasing devalued vehicles it had no interest judgment of the trial court will be owning suffering loss the busi- sustained unless there is no substantial evi ness of sellers repurchase who refused to it, support dence to against unless it is the vehicles. evidence, weight of the it unless erroneous plaintiffs ly law, have declares the or unless erroneously it legal right no to sell vehicles with odome- Carron, Murphy applies law. ters that have been rolled back. While unlawful, odometer fraud is section 407.- plaintiffs asserts no *4 have 511, seq., et Cum.Supp.1984, the in- standing bring this action because the terest claimed plaintiffs is not in plaintiffs’ evidence did not show that loss selling vehicles with rolled-back odometers. of business was the direct result of the Plaintiffs protecting claim an interest Director’s plaintiffs actions or that have their businesses from loss of income and legally protectable demonstrated a interest. asking are the courts to determine whether standing, plain order to have the action Department of the of Revenue tiff must derive an justiciable actual and legislature. has been authorized susceptible protection. interest State ex Thus, specific legally cognizable Marsh, rel. Williams v. 223, 626 S.W.2d plaintiffs protect interest that seek to The doctrine of that their business interests not be violated standing is related to the doctrine Department unauthorized action of the prohibits opinions. Id. advisory test of Revenue. standing for legislative to contest or admin The Director contends the trial court istrative action essentially the same. in enjoining using, erred him from Palmer v. City, St. Louis 39, 591 S.W.2d purpose of section information ob- (Mo.App.1979). party seeking relief tained from sources other than the immedi- must demonstrate that he specific has a placing ate transferor or from the statu- legally cognizable interest in the sub tory legend on the certificate of title when
ject matter of the administrative action and he finds inaccuracies because sections 407.- directly that he has been and substantially give 536 and authority. 301.190.2 him this thereby. affected This Court must first determine what powers given the Director of Revenue supports
The evidence the trial under section 407.536. That section reads finding plaintiffs court’s that have stand as follows: ing conduct of the Director has plaintiffs’ mileage reduced volume -of business and 407.536. Odometer to be title, income and will previously continue to do so in the shown on unti- when— vehicles, permitted procedure future the Director is to con tled for —incorrect odometer, mileage procedure tinue his enforcement of section on for. 407.536. Any person transferring ownership Plaintiff Metro Auto Auction —1. specific demonstrated a interest that previously of a motor vehicle titled directly substantially affected when this or other state shall do so Mr. Gentle testified that the auction had of title and repurchased receiving warning vehicles mileage registered on the odometer at legend signature on their titles and that the auction the time of transfer above the longer signa- would no deal with sellers who re of the transferor. The notarized repurchase mileage fused these devalued ve ture the transferor below they put up mileage. had Al- hicles for auction. shall constitute an affidavit of mileage department true known to the trans- of revenue for an feror to be different from the number explanation inaccuracy.” of the miles shown on odometer or the true requires, This statute subsections unknown, mileage is an affidavit that seller of an automobile in this shall accompany transferor the as- provide state shall with a state- signment of title which shall contain all mileage ment of automobile’s at the facts known transferor concern- sale or a time of the mile- the true of the vehicle. age is different from that shown on the That part affidavit shall become a of the or is pro- unknown. Subsection 3 permanent record of the motor vehicle vides that those instances where the department with the Missouri of revenue. seller knows the odometer to be department revenue shall or does inaccurate not know the true mile- all new titles issued September after vehicle, age the Department of Reve- “mileage a box titled time of place upon nue shall the face of the title transfer.” legend: Any person transferring the own- is not This the true and accurate mile- ership previously of a motor vehicle unti- age this motor vehicle. Consult the tled in this or other state to another documents on file with Missouri De- person an give affidavit of partment explanation of Revenue disclosure to the transferee. The affida- inaccuracy. vit shall above sig- include the notarized *5 nature of the transferor the cumulative power do not the Plaintiffs contest of the mileage registered on the odometer legend Director this on a car title the time of If mileage transfer. the true when the seller has stated odome- is known to the transferor to be different wrong ter mileage is or the is un- true from the of number miles shown cases, parties known. such all know the odometer or the true is mileage un- by seller does not stand odometer the known, an affidavit from the transferor accordingly. can plaintiffs act What dis- shall the accompany assignment of title pute authority is the Director’s to obtain which by shall contain all facts known concerning information the true and cor- the concerning transferor the true mile- rect odometer from source oth- age of the motor vehicle. That affidavit er than the of immediate transferor permanent shall part become a statutory legend vehicle and to on records of the Missouri department of by titles after inaccuracies are revealed revenue. sources other than the immediate transfer- mileage by The disclosed affidavit or. for a new or used motor vehicle as de- primary statutory “The of rule 1 scribed subsections and 2 of this construction is to ascertain intent of placed by section shall be the transferee language used, the lawmakers from the assignee or his on face of title or give possible, effect that intent if and to evidencing ownership. document Where consider words used in statute in their explana- transferor has submitted an plain meaning.” ordinary incorrect, Blue why mileage tion this an Spralding, Bowl Springs v. S.W.2d mileage asterisk on shall follow (Mo. 1977). banc Where the lan face of the title document of owner- guage unambiguous, clear ship there is by department issued Missouri of no room for Id. This revenue. The asterisk construction. Court shall reference guided legislature by to a must be what the the face and at the said, thinks bottom of the title not what the Court it meant document which read as “This is say. follows: not the true and Missouri Public Service Co. v. mileage Cooperative, accurate of Platte-Clay this motor Electric vehicle. (Mo.1966). Consult the documents on file language of section 407.536 is clear this Court must determine the intent of the unambiguous on its face. legislature by Subsection reading the together pertinent part, states: with related White, statutes. State v. mileage true known to the Ryan Edwards, (4th transferor to be F.2d 756 different from the num- Cir.1979),where the ber of court was interpreting miles shown on the odometer or the federal mileage unknown, pro- true statutes which an affidavit vide for odometer from disclosure similar the transferor accompany statute. quotes of title which shall contain all Ryan: “Both facts known the transferor concern- [the statute and its ing history show that it mileage true federal] the motor ve- purpose: has one purchaser to enable hicle. ... of a motor vehicle to many know how miles provides: Subsection 3 then traveled, the vehicle has guide as a to its Where the has submitted transferor safety, reliability, and value.” Id. at 760. explanation why mileage is incor- However, holding in Ryan was that rect, an asterisk shall the mileage follow “when a transferor knows that a vehicle’s on the face of the title or document odometer has ‘turned register- over’ after ownership issued the Missouri depart- 99,999 miles, mileage’ the ‘cumulative ment of revenue. The asterisk shall ref- must be satisfy require- stated to erence to a statement on the fact and at ments of 100,- is the total of [the statute] the bottom of the title document which plus the number actually appearing shall read as follows: “This is not the on the odometer.” Id. at Ryan 760-61. true and accurate of this motor did not investigation involve vehicle. Consult the documents on file as stated the transferor. Al- department with the Missouri of revenue though seq. compre- section 407.511 et is a explanation for an inaccuracy.” hensive enactment con- [Emphasis supplied.] cerning purpose odometers and evinces a *6 On its face language permits informing public mileage correct the Director to the inaccurate mile reading on purchased, vehicles “courts age notation on the title when the immedi must construe a as it statute stands ... provided ate transferor has the Director give and must effect to it as written.... showing with an affidavit the odometer may engraft This Court upon not the stat- reading to be incorrect. The provisions ute appear which do not in ex- does go not authorize the Director to be plicit by implication words or from other hind the information the im in McNeal, words the statute.” Wilson v. mediate transferor statutory or to 575 (Mo.App.1978). S.W.2d 802 Further- legend on a title when the Director has more, specific a sections showing received information a in contained within seq. section 407.511 et accuracy from a source other im than the purpose shows the of these statutes is to mediate transferor. punish persons responsible those for odom- fraud, i.e., The Director concedes that section persons actually eter who express 407.536 does not confer authority roll back the odometer or title transfer to a investigate mileage disclosure knowing state motor vehicle the odometer read- ments; however, argues the Director that to be false.1 1. The title of this collection of statutes "Mile- who discover odometer alterations. Sections age (Odometers) Altering Recorders give attorney general or Reset- 407.551 and 407.553 ting through prosecuting Prohibited.” Sections attorneys injunctive authority 407.515 407.- enjoin 526 make the alteration of odometers a crime. violations of the odometer statutes and through provide authority prosecute Sections 407.542 407.544 criminal or civil action penalties for odometer fraud. Section 407.546 authorized the odometer statutes. Section private provides suspension creates a cause of action for transferees or revoca-
403 Therefore, pass for section 407.536 order title to Missouri, the certificate of must with title be read combination section 301.190 physically assignment transferred with an gives for authority him his enforcement from the transferor to the Mis- transferee. practice of section 407.536. 301.- Section souri is a “strict state means title” provides generally the issuance assignment “the of the certificate of title in Specifically, titles to vehicles. provided by manner statute Director asserts section 301.190.2 only transferring exclusive and method of gives authority investigate mileage him vehicle, trans- title to motor whether the statements. by way fer is made the owner of sale or use The director of revenue shall gift by operation law.” or effected ascertaining diligence reasonable Highway 7A Am.Jur.2d Automobiles applica- in such the facts stated whether (1980). Traffic § true, and if satisfied that tion are The Director cites Horton v. Farm State such is the owner of applicant lawful Co., Casualty (Mo. Fire & trailer, en- motor vehicle or otherwise App.1977), where the court held that dif in his registered to have titled the same ference between the identification number name, appropri- issue an thereupon in the certificate of title and actual signature his ate certificate over pass prevented vehicle number title from sealed with the seal of his office.... ing. Id. at 809. court found this be a violation of section 301.210. The Director reasons that because Mis different, identification are numbers state, souri is a strict title no passes title person possessing pos does incorrect placed statement is certifi sess the vehicle as described in the assignment title. of title cate which makes the requiring cases compliance strict with Co., invalid. See Rueseler Craig v. Motor governing transfer of vehicles in (Mo.App.1942). This S.W.2d pass. See, order for title to e.g., State interpretation that the certificate title Farm Mutual Automobile Insurance Co. identify being properly must the vehicle v. MFA Co., Mutual Insurance 485 S.W.2d purpose transferred consistent 1972); Insur Allstate expressed of section 301.210 as in subsec ance v.Co. Northwestern National Insur tion 3: “Certificates ... be retained Co., ance (Mo.App. director of revenue and all certifi 1979). However, these cases referring appropriately be so that cates shall indexed to section 301.210 which sets out the re possible him to at all times it will quirements for sale and transfer of ve expeditiously ownership of the trace the *7 hicles. Section 301.210 in subsection designated there motor vehicle or trailer states: in.” 4. It shall be any person unlawful for requires 301.210 Subsection of section or buy any sell in state motor this that after the certificate of title is transfer- registered or vehicle trailer under the buyer buyer, present red to the the shall state, unless, this laws of at the time of the to the director of certificate revenue thereof, delivery there be- pass shall reg- making of application the time parties tween the of vehicle, such certificates whereupon a new of such istration thereof, ownership assignment with an of title be issued certificate will provided, any as herein the sale and of sets the infor- buyer. Section 301.190.1 out registered motor vehicle or trailer under in application to be contained mation state, assign- (1) of this a full laws without the of title: the new certificate trailer, ownership, of ment such certificate of of vehicle or description the motor identifying (2) or other shall fraudulent void. manufacturer’s who tion of licenses of dealers or manufacturers violate the odometer statutes.
number,
(3)
legislature
a
of the appli
If the
had intended to
any
cant’s source of title and of
liens or
include correct odometer
as a re
encumbrances on the
vehicle
quirement
title,
motor
or trail
passing
legislature
requirements
er. These
all have to do with
could have
so
specifically
done
rather than
determining
legal
ownership of a ve
covering
readings
chapter
hicle and are
necessary
“expeditiously
presumed
The
to have intend
ownership
trace the
of the motor vehicle”
directly.
ed what the law states
as stated
section
public
301.210.3. The
Employment Security
Division
v. La
of
policy
provisions
behind the
of section 301. bor and Industrial Relations Commis
prevent trafficking
210 is to
in stolen cars.
Missouri,
(Mo.
sion
Horton,
407.546. Civil
for odometer
Fevre
LeFevre,
Any
person
deciding
violations —venue.—1.
this Court
who,
defraud,
mortga
with intent to
violates
whether
443.410
allowed
provisions
gor
following
property
of sections 407.511 to
to redeem
fore
damages
civil
mortgagor
be liable in
closure
had deeded
when
purchaser
grantee
had assumed
property
owner
who
*8
in an
statute in
equal
mortgage.
amount
three times
the
However the
damages
question
the
of
provided
amount
actual
sustained
that “real estate ...
dollars,
by
grant-
or
the
subject
redemption
one thousand five hundred
shall be
devisees, executors,
and,
heirs,
greater,
is the
in the
or
whichever
case
... or his
administrators,
assigns....”
grantees
any
of
successful
to enforce the
action
section,
in
statute and
liability
by
“grantor”
created
this
the costs The word
was
the
together
only
of
action
the
was
the word “or”
the
reasonable
issue
whether
fees
in
or concur-
attorney
as determined
the court. was intended
the alternative
Id.
rent
at
LeFevre
year
sense.
is distin- must have occurred within the five
guishable
in
because
section
there
Id. at 383.
period
application.
prior to the
are no ambiguous words for this Court to
interpret
appli-
To
statute to mean an
the
interpret.
cant
for
could not obtain a license
five
years following the date of the second vio-
construing
Director
that
the
prevent
plac-
regardless
statute to
the
lation
of
of
the date
the first
the correct
on the certificate of
reach an
violation would
absurd result in a
Director, through investigation,
title if the
where,
example,
situation
for
an otherwise
determines the
submitted
the
qualified
could not
a license
driver
obtain
transferor
to be incorrect is an absurd and
until 1983
a 1978 and
after
1950 conviction
result.
unreasonable
The Director cites
Id.
driving
while intoxicated.
Crouch,
State ex
Rhodes v.
rel.
question,
1981),
proposition
for the
can
interpreted
plain language
from its
logical
of
construction
statutes must be
and the result reached is neither unreason-
give meaning
to the statutes.
In
statute,
able nor absurd. Under the
Rhodes,
this Court
interpreted a statute
transferor of the vehicle
giving
cooperatives
power
rural electric
reading
odometer
certificate
title
including
power
eminent domain as
anticipation
to enter
prepara-
assigned.
land in
of and
when it
the transferor
though
tion for
leg-
condemnation even
incorrect,
reading
knows the odometer
islature had not specifically given
pre-
this
he is to
explaining why
submit
affidavit
right
cooperatives
condemnation
as
reading
wrong.
The Director will
it had
corporations
to railroad
and the
put
statutory legend
then
on the certifi-
Id. at 48.
Highway
State
Commission.
advising
cate
of title
to contact
interpretation
Court concluded this
Department
explana-
Revenue for an
give meaning
necessary
to the stat-
tion
inaccuracy.
If the Director is to
ute
“it
would make little sense
investigate
submitted
legislature
grant
power
would
put
the transferor
and in addition
entity
eminent domain to an
and at the
reading on the title different
from that
deny
same time
the entity
means
re-
along
the transferor
with the
quired
grant.”
to use
49. A
statutory legend,
spe-
must
specific grant of
power
condemnation
ren-
so;
cifically
to do
authorize
dered
right
useless without the
to enter the
authority
there is no
either
this
property to
a survey
analogous
make
is not
section 407.536 or
section 407.536 com-
present
situation because of the ab-
bined with section 301.190.
sence in section
407.536 of
authorizing
the Director to
on a title
Accordingly,
judgment
of the trial
a mileage
other
than that
sub-
court is affirmed.
mitted
the transferor.
Goldberg,
Breeze v.
BLACKMAR, Judge, dissenting.
correct,
reading
odometer’s
is
pro-
not
vides the
by
may
means
which he
effect a
By
holding
principal opinion,
statutory language,
sale. But for the
obliged
the Director of Revenue is
to issue
might
director
refuse to issue a certificate
showing
a certificate of title
an odometer
of title in
which the correct
cannot
reading which
by
is shown to be false
office,
be shown. The
simply
records in the director’s
statutes
do not deal
the seller
unqualifiedly
reading.
has
certified
director,
to that
with the situation in which the
but
I cannot
legislature,
believe that the
in a
seller,
not the
knows that
the odometer
passed
protect purchasers
to
of ve-
reading is false.
against
odometers,
hicles
turned-back
in-
principal opinion rejects
The
State ex rel.
tended such a result.
I would reverse and
Crouch,
Rhodes v.