In a suit in a district court of Dallas county, appellee, F. C. Pondrom, recovered judgment in a suit for damages against appellant, Morriss-Buick Company, in the sum of $1,352.70, which sum is composed of an item of $682 actual damages, $400 exemplary damages, and $170.70 accrued interest to May 20, 1933, the date of judgment, and 6 per cent. interest on the judgment. The appeal has been duly perfected to this court, and the following are the facts:
On October 2, 1929, appellee purchased from appellant a Buick automobile, being a sedan of the 1929-47 model, for the alleged purchase price of $1,382, but, as shown by the bill of lading issued at the time, for the actual purchase price of $1,389.85. The consideration, as shown by the same instrument, was cash $7.85 and appellee's used Buick sedan of the 1926-47 model at the agreed value of $450, and a note for $932, maturing November 2, 1929. This note was paid soon after its maturity. Appellee knew that the car he was buying had been an obsolete model since July, 1929, at which time the 1930 model Buicks were placed on the market. Appellee stipulated that he wanted a new car, that is, one that had never been used, and he was assured by appellant's sales agent and by Mr. Morriss, appellant's president, that the car was new, and the invoice stipulated that it was a "new 1929-47 Buick sedan." Appellant would not have considered the purchase of an old car, or one that had been wrecked and rebuilt.
While appellant had had no trouble with his 1926-47 model Buick sedan, the car in question gave trouble from the beginning, and he found it necessary to make frequent trips to a service station, during the time he used it, approximately three years; the car having been burned in 1932. Appellee estimated that, during the time he used the car, he had spent approximately $1,000 in having it serviced. Because of appellant's assurance that it was a new car, appellee did not suspect that the car had been used before he purchased it, and did not suspect that it had theretofore been wrecked and rebuilt, but believed the trouble with it was due to the fact that he purchased a new defective car. A short time before this suit was filed on December 10, 1932, appellee discovered that the car he purchased was not a new car, but had been wrecked by an agent of appellant, had undergone extensive repairs, and was later sold to him as a new car. After a failure of negotiations for an adjustment, this suit was instituted to recover damages by reason of the alleged fraudulent representation that the car was a new and unused car.
The pleadings of the parties are substantially the same in the material allegations, both of appellee, as plaintiff, and of appellant, as defendant, as the pleadings in Morriss-Buick Co. v. H. H. Huss,84 S.W.2d 264, this day decided by this court. For the substance of the allegations in the pleadings, we refer to the statement of that case. As in the Huss Case, the material questions involved in the suit rest on disputed issues of fact, except as to the fact that appellee bought the car in question for the price *Page 273 named, that it was at that time an obsolete model, and that it was sold as a new and unused car.
The court submitted the case on special issues in the form of interrogatories. These special issues are the same in substance as those submitted in the Huss Case. The findings of the jury in this case are: (1) The car sold by appellant to appellee on October 2, 1929, had been damaged in a wreck prior to such sale; (2) appellee was ignorant at the time he purchased the car of its previous damaged condition; (3) appellee would have refused to purchase the car had he known it had previously been damaged in a wreck; (4) appellee could not have discovered the fact that said car had been damaged in a wreck prior to its purchase, within a short time after the purchase, by the exercise of ordinary care; (5) the reasonable cash market value of the car in Dallas, on October 2, 1929, was $600; (6) appellant wilfully concealed from appellee the fact that the car had been theretofore damaged in a wreck; (7) appellee is entitled to exemplary damages in the amount of $400.
In connection with special issue No. 4, the court correctly defined the term "ordinary care"; in connection with special issue No. 5, the court correctly defined the term "reasonable cash market value"; in connection with special issue No. 6 the court correctly defined the term "wilfully concealed"; and in connection with special issue No. 7, the court correctly defined the meaning of exemplary damages, as such term is applied to the facts of this case, but, after such definition, erroneously informed the jury that, in naming the amount of special damages, their findings could not "exceed the amount sued for by plaintiff as attorney's fee, to-wit $400." The findings of the jury in respect to all of the special issues submitted, except as to the award of $400 exemplary damages, given in answer to special issue No. 7, are supported by substantial evidence, and are adopted as the findings of this court. The findings on that portion of special issue No. 7, that appellee is entitled to exemplary damages, is likewise adopted by this court, but the amount awarded as exemplary damages is not adopted by this court, because (a) it is not supported by the evidence as to what is a reasonable attorney fee to prosecute this suit, and (b) because of the error of the court in naming the maximum sum that could be found by the jury in the definition and explanation of the term "exemplary damages."
The item of $682 for actual damages, fixed by the court in the judgment, was arrived at by the court, by applying the same measure of damages as was applied in the case of Morriss-Buick Co. v. Huss, supra; that is, from the purchase price of the car was deducted the sum found by the jury to have been the reasonable cash value of the car appellee purchased, on the date of the purchase, plus the down payment, which is shown to have been $7.85 cash, and plus the $450 allowance on the used car.
The same attack is made on the measure of damages applied by the court in the instant case as was made by appellant in the Huss Case, supra. This court having in the former case overruled all of appellant's contentions in respect to the measure of damages, under the particular facts of that case, likewise overrules such contention in the instant case, based on substantially the same facts. We here refer to the discussion of such question in the Huss Case, and adopt same, and the authorities therein cited, as the reason for so ruling in the instant case.
The question of the $400 exemplary damages, awarded by the court on the finding of the jury in this case, is different from the question of exemplary damages awarded in the Huss Case, supra, although the court committed the same error in that case as was done in this case; to wit, giving to the jury as a maximum sum the amount named in the petition. In the Huss Case, one qualified attorney testified as to what would be a reasonable attorney fee in that case, and likewise one qualified attorney testified in the instant case as to what would be a reasonable attorney fee. The measure of exemplary damages in each case is the value of a reasonable attorney fee for the prosecution of the suit. In the former case, the evidence of the attorney, used as a witness by appellee, was that a reasonable attorney fee would be $250, which was the sum named in the plaintiff's petition. In the instant case, the attorney, used as a witness by appellee, testified that a reasonable attorney fee is $350, $50 less than the sum named in appellee's petition. Apparently, the parties in each case accepted as reasonable the fee fixed by the witness in each case, for in neither case was other evidence offered. The findings of the jury in the former case was $200, $50 less than the value of such fee under the undisputed *Page 274 evidence, and $50 less than the amount alleged by appellee in his petition. So, under the authorities cited in that case, we held that, while it was error on the part of the court to inform the jury that its finding on such issue could not exceed the sum of $250, yet as the finding was for less than that amount, and less than the amount fixed by the undisputed evidence in the case, no harm resulted to appellant by the erroneous charge of the court, and the judgment in that respect was affirmed.
The construction that error was harmless in that case cannot be given under the facts of the instant case. The effect of the charge of the court, directing the jury that its finding on exemplary damages could not exceed $400, the sum named in appellee's petition, is to inform the jury that the evidence would sustain a finding in the maximum sum. The evidence does not sustain such finding; hence the record, instead of affirmatively showing that no harm resulted to appellant because of this error, on the contrary, shows that harm did result to appellant in the instant case.
Can the effect of this error be cured by requiring a remittitur of $50 and thereby cause the judgment on the item of exemplary damages to conform to the undisputed evidence, as to the reasonable value of the attorney fee? If the evidence were conflicting as to the value of such reasonable attorney fee, it could not be cured in such manner, for then this court would have no basis on which it would be authorized to fix the attorney fee; or if it could be reasonably said that this error of the court in any way affected any of the material findings in this case, then the error in the amount of judgment for exemplary damages could not be cured by requiring a remittitur. Neither of the above conditions exist in this case. The undisputed evidence, accepted by both appellant and appellee as naming the true sum fixing the amount of a reasonable attorney fee, and thereby fixing the amount of exemplary damages to be awarded, fixed $350 as such an award. We are of opinion, therefore, that such error can be cured by requiring appellee to file a remittitur in the sum of $50. Certainly, this court would have been authorized to reform the judgment in conformity to the undisputed evidence, if the trial court had not committed this error, and appellant had assigned error on the excessiveness of the judgment, because it exceeded by $50, the sum fixed by the undisputed evidence. The error of the court perhaps would not permit us to reform the judgment, without requiring such remittitur, so as to cure the sole wrong suffered by appellant, through the erroneous charge of the court. The cases cited on the same issue in the case of Morriss-Buick Co. v. Huss, supra, are cited here.
It therefore follows that, in our opinion, this case should be affirmed, provided appellee files a remittitur of $50, thereby reducing the judgment of $400 as exemplary damages to a judgment of $350. If such remittitur is not filed within ten days, the judgment will be reversed and remanded.
All assignments of error not specifically discussed in this case, or in the case of Morriss-Buick Co. v. Huss, supra, bearing on this case, are overruled.
Affirmed, provided the remittitur is filed by appellee within ten days; otherwise, reversed and remanded.