{
  "id": 2645359,
  "name": "JAMES DUFFER and GERALDINE SEARS DUFFER v. ROYAL DODGE, INC.",
  "name_abbreviation": "Duffer v. Royal Dodge, Inc.",
  "decision_date": "1981-03-03",
  "docket_number": "No. 8012DC723",
  "first_page": "129",
  "last_page": "133",
  "citations": [
    {
      "type": "official",
      "cite": "51 N.C. App. 129"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "15 U.S.C.A. \u00a7 1989",
      "category": "laws:leg_statute",
      "reporter": "U.S.C.",
      "year": 1974,
      "opinion_index": -1
    },
    {
      "cite": "256 S.E. 2d 692",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "opinion_index": 0
    },
    {
      "cite": "297 N.C. 636",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8573538
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/nc/297/0636-01"
      ]
    },
    {
      "cite": "83 N.C. 291",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11277587
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/83/0291-01"
      ]
    },
    {
      "cite": "72 S.E. 2d 598",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 1952,
      "pin_cites": [
        {
          "page": "603"
        },
        {
          "page": "604"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "236 N.C. 239",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8624503
      ],
      "weight": 2,
      "year": 1952,
      "pin_cites": [
        {
          "page": "246"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/236/0239-01"
      ]
    },
    {
      "cite": "258 S.E. 2d 861",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "opinion_index": 0
    },
    {
      "cite": "43 N.C. App. 368",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8551918
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/43/0368-01"
      ]
    },
    {
      "cite": "373 F. Supp. 791",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        3408545
      ],
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/373/0791-01"
      ]
    },
    {
      "cite": "433 F. Supp. 889",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        3944101
      ],
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/433/0889-01"
      ]
    },
    {
      "cite": "578 F. 2d 640",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        870055
      ],
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/f2d/578/0640-01"
      ]
    },
    {
      "cite": "427 F. Supp. 1328",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        3907530
      ],
      "weight": 2,
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/427/1328-01"
      ]
    },
    {
      "cite": "578 F. 2d 721",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        870393
      ],
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/f2d/578/0721-01"
      ]
    },
    {
      "cite": "425 F. Supp. 1381",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        7871007
      ],
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/425/1381-01"
      ]
    },
    {
      "cite": "298 N.C. 535",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8572935
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/nc/298/0535-01"
      ]
    },
    {
      "cite": "253 S.E. 2d 288",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "opinion_index": 0
    },
    {
      "cite": "40 N.C. App. 530",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8551607
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/40/0530-01"
      ]
    },
    {
      "cite": "201 S.E. 2d 897",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "284 N.C. 576",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8563409
      ],
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/nc/284/0576-01"
      ]
    },
    {
      "cite": "287 N.C. 465",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8563337,
        8563371,
        8563406,
        8563253,
        8563319
      ],
      "year": 1975,
      "opinion_index": 0,
      "case_paths": [
        "/nc/287/0465-03",
        "/nc/287/0465-04",
        "/nc/287/0465-05",
        "/nc/287/0465-01",
        "/nc/287/0465-02"
      ]
    },
    {
      "cite": "212 S.E. 2d 911",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1975,
      "opinion_index": 0
    },
    {
      "cite": "25 N.C. App. 235",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8552663
      ],
      "year": 1975,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/25/0235-01"
      ]
    },
    {
      "cite": "210 S.E. 2d 181",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "286 N.C. 235",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8565054
      ],
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/nc/286/0235-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 564,
    "char_count": 10566,
    "ocr_confidence": 0.732,
    "pagerank": {
      "raw": 1.3311312876447955e-07,
      "percentile": 0.6289465138701137
    },
    "sha256": "4fda3e0b082253e98d92213278490bf9ba09479aaa6cc817eac88e217f6af267",
    "simhash": "1:9172c3da2da54572",
    "word_count": 1782
  },
  "last_updated": "2023-07-14T20:24:29.581265+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Clark and Arnold concur."
    ],
    "parties": [
      "JAMES DUFFER and GERALDINE SEARS DUFFER v. ROYAL DODGE, INC."
    ],
    "opinions": [
      {
        "text": "MARTIN (Harry C.), Judge.\nThis is the second time this case has been tried and appealed. In the first trial, plaintiffs\u2019 claims for personal injuries and damages to their car based on negligence were dismissed at the close of plaintiffs\u2019 evidence. On appeal, plaintiffs did not bring forward or argue an assignment of error based upon the dismissal of their claims of negligence, and this Court held the assignment of error was abandoned by plaintiffs. The dismissal at the first trial thus became the law of the case on that issue, and it is res judicata and binding upon the court in the second trial. Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E. 2d 181 (1974); Carpenter v. Carpenter, 25 N.C. App. 235, 212 S.E. 2d 911, cert. denied, 287 N.C. 465 (1975). We hold the trial court did not err in dismissing plaintiffs\u2019 claims for damages based upon negligence.\nNext, we consider whether the court erred in dismissing plaintiffs\u2019 claim based on misrepresentation by defendant as to the odometer reading. On this issue plaintiffs\u2019 evidence showed that they bought a Dodge Dart car from defendant for a cash purchase price of $5,249.50. They soon discovered that the car engine was greasy and dirty and there were nicks or chips in the paint on the car. The testimony of Charles L. Tolar, a dealer in Plymouth, indicated that he had owned the car and sold it to a dealer in Aulander, North Carolina. The car was driven from Plymouth to Aulander, a distance of fifty-five miles. The defendant bought the car from the dealer in Aulander, with the understanding that the Aulander dealer would deliver the car to Kinston. An employee of the Aulander dealer drove the car to Kinston, a distance of about eighty miles. From there, defendant brought the car by truck to Fayetteville.\nDefendant\u2019s salesman and agent, Emery Kiser, filled out the disclosure form indicating an odometer reading of 1.4 miles at the time of sale to plaintiffs and delivered a copy to them. Defendant could have indicated on the form that the actual mileage was unknown but did hot do so.\nGeraldine Duffer, who received the title to the car and the odometer disclosure form, testified that the car had a fair market value of about $3,900 to $4,000 at the time of the purchase.\nOn the motion for directed verdict, the evidence must be considered in the light most favorable to plaintiffs. Dickinson v. Poke, 284 N.C. 576, 201 S.E. 2d 897 (1974); Harrington v. Collins, 40 N.C. App. 530, 253 S.E. 2d 288, aff'd, 298 N.C. 535 (1979).\nThe statute in question requires:\nDisclosure requirements. \u2014 (a) In connection with the transfer of a motor vehicle, the transferor shall deliver to the transferee ... a single written statement which contains the following:\n(1) The odometer reading at the time of the transfer;\n(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;\nN.C. Gen. Stat. 20-347(a)(l),(5).\nThe federal cases interpreting the comparable federal statute, 15 U.S.C.A. \u00a7 \u00a7 1981-1991, are instructive. In brief, they hold:\nWhere a dealer knew of falseness of odometer reading, or recklessly disregarded indications that the reading was false, it knowingly failed to provide statement that actual mileage of vehicle was unknown. Duval v. Midwest Auto City, Inc., 425 F. Supp. 1381 (D. Neb. 1977), aff'd, 578 F. 2d 721 (8th Cir. 1978).\n\u201cIntent to defraud\u201d in the statute does not require finding of \u201cactual knowledge\u201d of the false odometer reading. Jones v. Fenton Ford, Inc., 427 F. Supp. 1328 (D. Conn. 1977).\nThe intent of the legislature is to impose an affirmative duty on dealers to detect odometer irregularities. Id.\nDealer has the duty to state that actual mileage is unknown, even if he lacks actual knowledge that the odometer is incorrect, where in exercise of reasonable care he would have reason to know that the odometer reading is incorrect. Nieto v. Pence, 578 F. 2d 640 (5th Cir. 1978).\nSee also Kantorczyk v. New Stanton Auto Auction, Inc., 433 F. Supp. 889 (W.D. Pa. 1977); Delay v. Hearn Ford, 373 F. Supp. 791 (D.S.C. 1974); Roberts v. Buffaloe, 43 N.C. App. 368, 258 S.E. 2d 861 (1979).\nThe evidence is sufficient to support a finding by the jury that defendant knew the odometer reading of 1.4 miles was incorrect. It is uncontradicted that defendant failed to make a statement that the mileage was unknown.\nPlaintiffs\u2019 evidence is also sufficient to present to the jury the question whether defendant violated section 343 of the act. That section makes it unlawful to disconnect, alter, or reset the odometer with the intent to change the number of miles indicated thereon. In 1979 the following amendment to the statute was enacted:\nWhenever evidence shall be presented in any court of the fact that an odometer has been reset or altered to change the number of miles indicated thereon, it shall be prima facie evidence in any court in the State of North Carolina that the resetting or alteration was made by the person, firm or corporation who held title or by law was required to hold title to the vehicle in which the reset or altered odometer was installed at the time of such resetting or alteration ____\nN.C. Gen. Stat. 20-343, 1979 Supp.\nThe amendment is a procedural statute establishing a prima facie case upon the presentation of the required evidence. It does not alter the substantive law but is solely procedural, not affecting any vested rights of defendant. The Supreme Court in Spencer v. Motor Co., 236 N.C. 239, 72 S.E. 2d 598 (1952), was concerned with the following statute:\n\u201c ... In all action [sic] to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be prima facie evidence that said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which said injury or cause of action arose.\u201d [N.C. Gen. Stat. 20-71.1.]\nId. at 245, 72 S.E. 2d at 603.\nIn holding that the statute was applicable retroactively, the Court stated:\nIn Tabor v. Ward, 83 N.C. 291, the Court declares that laws which change the rules of evidence relate to the remedy only, and are at all times subject to modification and control by the Legislature, and that changes thus made may be applicable to existing causes of action. And it is pertinently stated: \u201cRetrospective laws would certainly be in violation of the spirit of the Constitution if they destroyed or impaired vested right,\u201d but that \u201cone can have no vested right in a rule of evidence when he could have no such right in the remedy,\u201d and that \u201cthere is no such thing as a vested right in any particular remedy.\u201d\n236 N.C. at 246, 72 S.E. 2d at 604. See also Wood v. Stevens & Co., 297 N.C. 636, 256 S.E. 2d 692 (1979).\nIt is true that the statute contains criminal sanctions for its violation, and criminal statutes are to be strictly construed. Nevertheless, the statute also contains civil remedies and is here being applied in a civil case rather than a criminal proceeding. We hold the 1979 amendment is applicable to the case at bar. Furthermore, the evidence is sufficient to overcome the motion for directed verdict without the 1979 amendment.\nThe trial court\u2019s order dismissing plaintiffs\u2019 claim based upon the alleged violations of Article 15 of Chapter 20 of the General Statutes of North Carolina is\nReversed.\nJudges Clark and Arnold concur.",
        "type": "majority",
        "author": "MARTIN (Harry C.), Judge."
      }
    ],
    "attorneys": [
      "Cooper, Davis & Eaglin, by James M. Cooper, for plaintiff appellants.",
      "Rose, Thorp, Rand & Ray, by Ronald E. Winfrey, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "JAMES DUFFER and GERALDINE SEARS DUFFER v. ROYAL DODGE, INC.\nNo. 8012DC723\n(Filed 3 March 1981)\n1. Appeal and Error \u00a7 68.2- dismissal of negligence claim - law of the case\nThe dismissal at the first trial of plaintiffs\u2019 claims for personal injuries and damages to their car based on negligence became the law of the case and binding upon the court at the second trial where plaintiffs did not bring forward or argue an assignment of error based upon the dismissal of their negligence claims in their appeal from the first trial, and the appellate court held that such assignment of error was abandoned by plaintiffs.\n2. Automobiles \u00a7 6.5- sale of automobile - incorrect odometer reading - action for damages \u2014 sufficiency of evidence\nPlaintiffs\u2019 evidence was sufficient for the jury in an action to recover damages pursuant to the Vehicle Mileage Act, G.S. 20-340 et seq., where it was sufficient to support findings by the jury that defendant dealer sold an automobile to the plaintiffs and furnished them, at the time of the sale, an odometer mileage statement which showed the automobile had been driven 1.4 miles, defendant knew the car had been driven more than 1.4 miles, and defendant failed to make a statement that the mileage was unknown. Furthermore, the prima facie rule established by the 1979 amendment to G.S.20-343 applied to plaintiffs\u2019 case, although the sale of the automobile occurred in 1976, and plaintiffs\u2019 evidence was sufficient to present to the jury the question whether defendant violated G.S. 20-343.\nAppeal by plaintiffs from Cherry, Judge. Judgment signed 27 February 1980 in District Court, Cumberland County. Heard in the Court of Appeals 11 February 1981.\nThis is an action which arose out of the purchase of an automobile by the plaintiffs from the defendant. Plaintiffs alleged that the defendant sold an automobile to the plaintiffs and furnished them, at the time of the sale, an odometer mileage statement which showed the automobile had been driven 1.4 miles. Plaintiffs alleged this was a false statement which the defendant knew was false. Plaintiffs alleged that they bought the automobile relying on this false representation, which gave them a claim under the federal Motor Vehicle Information and Cost Savings Act of 1972, 15 U.S.C.A. \u00a7 1989 (1974), and the state Vehicle Mileage Act, Article 15 of Chapter 20 of the General Statutes of North Carolina. Plaintiffs also alleged that defendant was negligent in furnishing them an automobile which had a defect in the steering mechanism, causingthe vehicle to have an accident, damagingit, and proximately causing personal injury to the plaintiffs.\nAt the close of plaintiffs\u2019 evidence, the court directed a verdict against the plaintiffs, from which they appeal.\nCooper, Davis & Eaglin, by James M. Cooper, for plaintiff appellants.\nRose, Thorp, Rand & Ray, by Ronald E. Winfrey, for defendant appellee."
  },
  "file_name": "0129-01",
  "first_page_order": 157,
  "last_page_order": 161
}
