Lee v. Payton

313 S.E.2d 247 (1984)

Jimmie Franklin LEE v. Charles PAYTON and Joe Cullipher Chrysler-Plymouth, Inc.

No. 833DC439.

Court of Appeals of North Carolina.

April 3, 1984.

*248 Everett & Cheatham by Ryal W. Tayloe, Greenville, for defendants-appellants.

Jeffrey L. Miller, Greenville, for plaintiff-appellee.

ARNOLD, Judge.

Defendants contend that the trial court erred in entering judgment against defendants in that the evidence did not support the court's finding of a violation of G.S. 75-1.1. We disagree with this contention and find no error.

G.S. 75-1.1(a) provides:

Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.

Because of the broad language of this statute, what constitutes unfair or deceptive trade practices "is not limited to precise acts and practices which can readily be catalogued," but generally depends on the facts of each particular case. Johnson v. *249 Insurance Co., 300 N.C. 247, 262, 266 S.E.2d 610, 621 (1980).

In order for an act or practice to be held to violate the statute, it must be either unfair or deceptive. Id. A practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Spiegel, Inc. v. Federal Trade Commission, 540 F.2d 287, 293 (7th Cir.1976). On the other hand, an act is deceptive if it has the capactiy or tendency to deceive. In determining whether a representation is deceptive, its effect on the average consumer is considered, but proof of actual deception is not required. Johnson v. Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980).

Applying these principals of law to the facts found by the jury, we find that the court properly found that the acts of defendants in misrepresenting the nature and quality of the automobile bought by plaintiff were unfair or deceptive to the average consumer and, therefore, violative of G.S. 75-1.1. All of the evidence introduced on the subject at trial established that a "demonstrator" is generally a more valuable automobile than is a used car of the same type. A demonstrator according to the evidence is used by the dealership, serviced frequently, kept in good condition, and, as a rule, is less susceptible to abuse. A representation that a car is a demonstrator when it is, in fact, a used car may be inherently unfair to the average consumer, and moreover, such a representation may tend to deceive the consumer. We find that the trial court did not err in finding that the misrepresentation by defendants constituted a violation of G.S. 75-1.1.

Defendants next contend that the court erred in admitting plaintiff's own testimony as to the value of the 1981 Plymouth Champ automobile as a used car and as a demonstrator. They contend that this testimony was incompetent because no proper foundation was laid. We find, however, that the evidence was properly admitted.

The North Carolina Supreme Court has stated:

Unless it affirmatively appears that the owner does not know the market value of his property, it is generally held that he is competent to testify as to its value even though his knowledge on the subject would not justify him as a witness were he not the owner.... The weight of his testimony is for the jury, and it is generally understood that the opinion of the owner is so far affected by bias that it amounts to little more than a definite statement of the maximum figure of his contention. Highway Commission v. Helderman, 285 N.C. 645, 652, 207 S.E.2d 720, 725 (1974).

Furthermore, it is permissible for a plaintiff's bare statement concerning the value of an item to be used as the measure of damages as long as there is competent evidence to support the assertion by the plaintiff. See Hubbard v. Casualty Co., 24 N.C.App. 493, 211 S.E.2d 544 (1975).

In the case at hand, plaintiff testified that the automobile was worth the purchase price of $6,495 as a demonstrator, but as a used car it was worth only $5,200 to $5,500. He stated that he based his opinion on his own experience with buying cars and on advice he had received from another person. We find that the court properly allowed plaintiff to state his opinion as to value.

No error.

WELLS and BRASWELL, JJ., concur.