Opinion
Rehearing Denied Sept. 4, 1974.
Jeffrey C. McCarthy, Denver, for plaintiff-appellee.
Holley, Boatright & Villano, Michael C. Villano, Wheat Ridge, for defendant-appellant.
COYTE, Judge.
Plaintiff filed suit against defendants seeking actual and exemplary damages for fraud and deceit practiced by Dreiling, a new and used car dealer, in the sale of an automobile to plaintiff. Trial to a jury resulted in a verdict of $300 actual, $3,300 exemplary damages. While plaintiff brought suit against all defendants, judgment was entered only against Bill Dreiling Buick, Inc. (Dreiling). Dreiling appeals on the sole issue that the exemplary damages as a matter of law are excessive and unreasonable. We affirm.
Dreiling traded plaintiff an automobile that had 45,041 miles registered on the speedometer. This mileage figure was represented to be the actual mileage which the car had been driven, and this figure was shown on the sales contract as the mileage on the automobile. However, the evidence established that when Dreiling acquired this same automobile five days earlier it had 75,000 miles registered on the speedometer. Bill Dreiling testified that he was the president of the company and was not aware of the transaction until some time after the sale. He further testified that he did not allow anyone to turn back speedometers. Plaintiff's expert testified that the difference in market value of a car represented to have 45,041 miles when the actual mileage was 75,000 was $300. Dreiling and two used car dealers testified that there would be no difference in value. Because there is evidence in the record to support the amount awarded for actual damages, this award will not be disturbed on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
As to the issue of exemplary damages, the proper rule for appellate review was set out in Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997, where the court stated:
'(I)n applying the prevailing law in Colorado on the subject of exemplary damages, it is our view that the trial court did not abuse its discretion when it found the jury award of exemplary damages to be excessive. An appellate court may not impress its contrary finding upon a trial court where the record contains evidence to support the trial court's finding which is also in accord with law.
Neither this court nor any other appellate tribunal stands in as good a position as the trial court to review the relationship between an award of exemplary damages and the purposes these damages are to serve. Absent a clear abuse of discretion, the trial court's determination in this regard will not be disturbed on review.'
We cannot say that the exemplary damages award of the jury is not supported by any evidence or that it was unreasonable. The jury was properly instructed. Defendant's contentions were set out in detail in its motion for new trial and thoroughly argued to the trial court which had conducted the trial, observed the witnesses, and heard their testimony. The trial judge did not see fit to disturb the award of exemplary damages. Under Payne, supra, we cannot say that he abused his discretion in refusing to grant a new trial.
Judgment affirmed.
SMITH and VAN CISE, JJ., concur.