Reviewing the record and the opinion of this court, I am convinced that the judgment of the lower court should not stand, and that this court is not warranted in authorizing a remittitur by appellee on the judgment for exemplary damages, in order to avoid the consequence of a reversal on substantial and harmful error.
Taking the whole situation as it appears in the record, especially considered in the light of appellee's pleadings and evidence, in my opinion, the cause of action is one founded upon a breach of implied warranty, and not one such as to give rise to malice in the absence of pleading and proof that the acts complained of were intentionally done for the purpose of and with the design to defraud appellee.
Appellee alleged that, on October 2, 1929, he purchased from defendant an automobile, a 1929-47 Buick sedan, in consideration of $1,382; that the defendant's "agent or agents and/or its employee or employees, whose name or names are unknown" represented to him that the automobile which he purchased was a new automobile; that on October 27, 1932, he discovered that the automobile which he did purchase was, on or about July, 1929, while being driven by R. B. Irion, badly wrecked in a collision with an automobile driven by Dr. Roy Keller; that the automobile after the collision was rebuilt *Page 275 and sold to him as a new automobile; that the representations were false and fraudulent, and known to be false by the party, making them; that they were made for the purpose of defrauding and cheating him; and that he suffered damage in the amount of $1,000 "by reason of defendant's false representations in failing to deliver him a new automobile, and by reason of concealing from plaintiff that said car had been wrecked and rebuilt prior to its sale to him, the said sum of $1,000, being the difference between the purchase price of the automobile paid to the defendant and the value of the automobile that defendant delivered to this plaintiff at the time of delivery." Appellee further alleged that he "believes that prior to and subsequent to October 5, 1929, defendant carried on a course of business of selling wrecked and used automobiles as new cars to different parties, and that because of defendant's willful fraud, plaintiff is entitled to exemplary damages in the sum of $400, that being a reasonable amount for his attorney's fees herein."
The evidence shows that on the date of the sale, the Morriss-Buick Company was the local agent for the handling of Buick automobiles in the city of Dallas, Tex., that it had two places of business, one branch in Oak Cliff, West Dallas, and one at Cedar Springs Road, North Dallas. Appellee testified: "I went over to Oak Cliff branch of the Morriss-Buick Company and looked at the cars and picked out a car I was going to buy — a 1930 model, a new model — and I told them at that time I wasn't going to buy it just then, but I would buy the car in December. * * * Some time after that, in October, I went down there * * * and a man by the name of Knight, their salesman, approached me and said: `Frank, would you be interested in a 1929 model, brand new, that has never been driven off of the floor?' And I said, `Can I save any money on it?' I said, `I won't have anything to do with the car unless it is a brand new one,' and he said, `We have several that we have never sold and they have never been off of our showroom, and I can save you a few hundred on that,' and I said, `Do you allow me as much on my car as if I was buying a new 1930?' He said, `Yes, we can do that,' and he took me over to the new shop at Cedar Springs, and I think they had nine on the floor out there that were represented to me to be brand new cars, and I said, `Which one?' And he said: `What one do you like?' And I picked out one and he told me to drive it off the floor." It must be observed here that there is not a centiliter of testimony in this record that the salesman who was dealing with the appellee knew at that time the automobile which Pondrom selected from the floor of the showroom of the Morriss-Buick Company was the automobile which figured in the Irion-Keller collision and rebuilt by the company; but, on the contrary, the evidence discloses that neither Mr. Morriss, the managing officer of the company, nor the salesman who made the sale to Pondrom, knew of these facts.
The testimony is undisputed that the automobile selected by the appellee from nine other automobiles on the floor was the same automobile which appellant delivered to him, and which for almost three years he used for business and pleasure purposes, and then, from an unknown cause, the automobile was destroyed by fire. It must be noted here that appellee testified that he knew automobiles were guaranteed of mechanical defects by the company putting them out; that he had considerable trouble and expense in operating the automobile, yet made no complaint to Morriss-Buick Company of any defect prior to the time the automobile was destroyed, but did soon thereafter, without taking the matter up with the company, place his claim into the hands of an attorney, exacting the attorney's fees.
As applicable to the facts of this transaction, I think, in order for appellee to maintain this cause as one of fraud, it was incumbent upon him to allege and prove not only that the representations were untrue, that the appellee relied upon such representations, and that he was induced thereby to enter into the contract of purchase, but, also, the pleadings and evidence must further show that the representations were known to be untrue by the party or parties making them, and that they were made with the intent and design of deceiving the appellee and to induce him to enter into the contract.
Tested by this rule, appellee failed to show that the party whom he claimed made the representations, which afterwards were proven, as found by the jury, to be untrue, knew they were false at the *Page 276 time he made them. This being the situation, how could it be said that the acts of the party inducing appellee to make the selection of the automobile amount to fraud in legal acceptation? Furthermore, viewing it in the most favorable light possible, from the appellee's standpoint, I am unable to see how this character of testimony can furnish to appellee the right to recover exemplary damages. Does this evidence show that the appellant has been guilty of such conduct as that society demands punishment be inflicted on it? Where are the aggravating circumstances justifying the imposition? Indeed, the company had a right to rebuild the automobile after the wreck and replace all damaged and mutilated parts with new parts, and it had a right to place the automobile on the floor of their showroom after the repairs, without imputation that it acted with malice or willful intention to defraud appellee; especially so, in the absence of evidence that some corporate official knew that the rebuilt automobile was the one sold to appellee or placed for sale on the showroom floor. The fraud on which appellee bases his claim for actual damages, if, in fact, it may be so interpreted, was neither attended by malice or oppressive conduct, nor followed by special damages apart from the mere loss of the money or property following the subject-matter of the fraud. At most, it was a breach of implied warranty, for which appellee is entitled only to recover for his actual damages.
In the case of Williams v. Detroit Oil Cotton Co.,52 Tex. Civ. App. 243, 114 S.W. 167, 170, affirmed by Supreme Court,103 Tex. 75, 123 S.W. 405, the court, in holding that exemplary damage was not recoverable in that case, facts similar to those in the instant case, stated the rule which I think is applicable here: "There seems to be no well-defined rule for determining when exemplary damages should be permitted in suits of this character. We are inclined to the opinion that this should not be done, except in those cases where the deception has been attended by malicious or oppressive conduct, or the abuse of a relation of trust or confidence, and followed by special damages apart from the mere loss of the money or property forming the subject-matter of the fraud. [Citing authorities.]"
It must be borne in mind that a large discretion is allowed juries in fixing damages as a punishment for the acts of the wrongdoer. The sum is said to be awarded as a punishment and not as compensation to the injured person; it is intended as a warning and an example to prevent the defendant and others from the commission of like wrongs. The measure of such damages is based upon the attended circumstances of aggravation as is implied to actions grounded on tort. It is difficult to set any fixed or prescribed limits to the discretion of the jury, or, in fact, to prescribe any rule whatever to guide them in assessing exemplary damages. The amount to be awarded in any case is measured by the rule of just compensation, rather than of fair compensation. Koehler v. Sircovich (Tex.Civ.App.) 269 S.W. 812.
As stated above, appellee, in his petition, sought the award of exemplary damages as just compensation for his attorney's fee in the sum of $400, and, as stated in the opinion of this court, the charge of the court, directing the jury that its finding on exemplary damages could not exceed $400, is, in effect, informing the jury that the evidence would sustain a finding in a maximum sum, and that harm resulted to appellant because of the error. In accordance with this holding, I am convinced that this court cannot substitute a finding of harmful result to appellant in an amount which necessarily was in the province of the jury to determine, under an appropriate legal charge of the trial court. The mere fact that one attorney, qualifying as an expert and testifying that a fair and reasonable attorney's fee is $350, does not, in my opinion, establish a liquidated amount such as a court or jury are required to accept pro tanto in awarding exemplary damages.
Clearly, it was within the province of the jury in the instant case to award an amount as exemplary damages as in its discretion the exigencies of the case demanded. Had the trial court so framed its charge as to submit the issue of exemplary damages as to conform to the testimony, instead of conforming to the pleading, there is no doubt in my mind that such charge would have been just as censorious in law as the charge given and held to be, by this court, a harmful error. If the charge resulted in harm to the appellant, which evidently it did, the extent thereof cannot be measured by the testimony of the attorney alone. It is not within the power of this court to say *Page 277 to what degree the harmful effect of the erroneous charge extended to allow appellee to file a remittitur and avoid a reversal of the cause. The authorities are replete in permitting remittiturs of amount in judgments, where such is not superinduced by harmful trial court errors, thus avoiding reversal of causes; but there is no precedent, and, in my opinion, the law does not sanction a remittitur, where the amount in judgment is founded on harmful error.
In my opinion, this cause should be reversed and remanded, for the reasons above stated, and, so believing, I register my dissent to the opinion of this court.