Roberts v. Buffaloe

258 S.E.2d 861 (1979)

43 N.C. App. 368

James M. ROBERTS, Plaintiff, v. Roger BUFFALOE, t/a Buffaloe's New and Used Cars and Donald W. Robertson, Defendants, v. James L. KENNEDY and James W. Durham, a/k/a "Whitey" Durham, Partners t/a Kennedy Motor Sales, Third-Party Defendants.

No. 785DC1097.

Court of Appeals of North Carolina.

October 16, 1979.

*863 Crossley & Johnson by Robert W. Johnson, Wilmington, for plaintiff-appellant.

No appearance on behalf of defendants.

VAUGHN, Judge.

The court should not have directed a verdict in favor of defendant Buffaloe.

A section of the Vehicle Mileage Act requires that if an odometer is replaced, it must either reflect the correct mileage or a statement must be affixed to the left door frame specifying the mileage prior to replacement and the date of replacement. G.S. 20-346. The same act requires that the transferor of a motor vehicle deliver to the transferee:

"(5) A statement that the mileage is unknown if the transferor knows the odometer reading differs from the number of miles the vehicle has actually traveled, and that the difference is greater than that caused by odometer calibration error; (6) A statement describing each known alteration of the odometer reading, including date, person making the alteration, and approximate number of miles removed by the alteration. . .." G.S. 20-347(a)(5) and (6).

A private civil action is provided against one who "with intent to defraud" violates any of the requirements of the Vehicle Mileage Act. G.S. 20-348. The liability imposed is an amount equal to the sum of:

"(1) Three times the amount of actual damages sustained or one thousand five hundred dollars ($1,500), whichever is the greater; and (2) In the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court." G.S. 20-348(a)(1) and (2).

Plaintiff's evidence, if believed, tends to show that Buffaloe knew that the odometer had been replaced but failed to affix the notice required by G.S. 20-346. It also tends to show that he failed to deliver to plaintiff the statements required by G.S. 20-347(a)(5) and (6). If that evidence is believed, it must then be determined whether defendants' violations of the requirements of the statute were made with the intent to defraud. The weight to be given to the testimony and the inferences to be drawn from the evidence are matters for the jury, however, and not for the court.

Even if the jury answers the liability issue in favor of plaintiff, however, his prayer for punitive damages cannot be sustained. Such rights as he might have had in this regard in the common law have now been supplanted by legislation with regard to the particular fraud in question. Plaintiff's recovery, if any, will be the greater of three times his actual damages or $1500.00, costs and reasonable attorneys fees as determined by the court.

The evidence was insufficient to take the case against Robertson to the jury, and the directed verdict in his favor is affirmed.

The judgment as to Buffaloe is reversed, and the case is remanded.

The judgment in favor of Robertson is affirmed.

ERWIN and HILL, JJ., concur.