Christensen v. Lelis Automatic Transmission Service, Inc.

467 P.2d 605, 24 Utah 2d 165, 1970 Utah LEXIS 622

• Court: Utah Supreme Court
• Decided: April 3, 1970
• Docket: 11847
• Status: Published

Opinions

CALLISTER, Justice:

Plaintiff appeals from a judgment dismissing his complaint on the ground that it does not state a claim upon which relief can be granted. Plaintiff filed his complaint; defendant, in response, filed a motion to dismiss under Rule 12(b) (6), U.R. C.P. The motion came on for hearing, at which time the trial court by interlineation added a few words to the complaint, which the court characterized as an amendment. Defendant renewed its motion to dismiss, which the court granted. Plaintiff’s action was dismissed with prejudice.

Plaintiff’s complaint was set forth in 19 paragraphs; he claimed that defendant advertised extensively that it repaired transmissions, and in connection therewith furnished free towing, checking and inspection, and guaranteed the results of its work. Plaintiff’s automobile developed transmission trouble in the intersection of a street in downtown Salt Lake City. Plaintiff, being influenced by defendant’s advertising, called defendant, who towed plaintiff’s vehicle to its place of business. Subsequently, defendant informed plaintiff that his transmission could not be overhauled but needed replacing with a reman-ufactured, pretested transmission, which they advertised to equal or surpass factory specifications and which they could fully guarantee.

Plaintiff inquired as to the expense and was shown a price quotation schedule, indicating $169.50. Defendant had advertised that it had a set price quotation and that it had “No ‘ups’ in price.” Plaintiff signed a work order. The next day, defendant informed plaintiff that a part of the differential had to be replaced and that this could be accomplished without too much cost. When plaintiff went to pick up his car, he was informed that the charges were $384.77, since the guarantee was not in force unless the converter was replaced. Plaintiff requested 30 days in which to pay the account and was informed that this was against company policy but that credit was available through an outside source. Defendant had advertised easy terms — tip to 24 months to pay. Defendant then executed a promissory note with a time differential of $45.31.

Plaintiff inquired about the guarantee and was informed that it was on the back of the work sheet. The guarantee stated in bold, large-faced type: “12,000 MILE GUARANTEE + 12,000 MILE WARRANTY.” Underneath the foregoing was a statement that the transmission was guaranteed for 12 months or 12,000 miles whichever occurred first, subject to the following provisions. The provisions, in fact, guaranteed the transmission to be free from defects as to workmanship and materials for 180 days or 6,000 miles, whichever occurred first. An additional 180 days or 6,000 miles guarantee period was provided at a cost of 65% to the purchaser of prevailing retail price on repairs or replacement should the transmission become defective.¹

Eleven months and 11,583 miles later, plaintiff’s transmission would not function properly; so he returned the vehicle to the defendant. Defendant informed plaintiff that the repair work would cost about $200 and that it would not proceed without plaintiff’s authorization and agreement to pay.

Subsequently, this action was filed. Plaintiff has alleged that he relied on the newspaper advertisements of defendant, which expressed that a person could depend on a replacement transmission to be trouble-free and expense-free for at least an equal or greater period than the life of the original transmission, to wit: 52,901 miles. Plaintiff alleged that defendant’s advertising was further fraudulent in that the original towing which brought the car to defendant’s shop was assessed to plaintiff, contrary to the free towing as advertised; that defendant at all times failed to make the set price quotations, as advertised; that defendant installed a transmission not meeting the specifications guaranteed for the same and failed to honor the advertised guarantee of 100% parts and labor, and that all of these acts constituted a wilful and malicious failure and refusal to comply with the representations made to the public and particularly to plaintiff; that plaintiff had been damaged as a direct and proximate result of defendant’s negligence and failure to perform. Plaintiff pleaded for damages equal to the cost of the purported repair of his car, for the loss of the use of the vehicle and for exemplary damages.

In Blackham v. Snelgrove,² this court observed that under Rule 8(a), U.R. C.P., a complaint is required only to give the opposing party fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved. A complaint does not fail to state a claim unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which couldi be proved in support of the claim.

Plaintiff has alleged certain tortious conduct on the part of the defendant (false, deceptive, or misleading advertising), which has proximately caused harm to plaintiff, and the nature and amount of the damages sustained.

Section 76-4 — 1, U.C.A.1953, provides:

Every person, whether acting on his own behalf or on behalf of another, who, with intent to sell or in any way dispose of real or personal property, * * * service or anything of any nature whatsoever offered by such person, directly or indirectly, to the public for sale, use or distribution, * * * or to induce any member of the public to enter into any obligation relating thereto, or to ac quire title thereto, or any interest therein, publishes, disseminates, circulates, or causes to be published, disseminated or circulated, or who in any manner places, or causes to be placed, before the public in this state, by any newspaper, magazine, * * * or in any other manner whatever, an advertisement regarding such property or service so offered to the public, which advertisement shall contain any statement, representation or assertion concerning such property or service, or concerning any circumstance or matter of fact connected in any way, directly or indirectly, with a proposed sale, performance or disposition thereof, which statement, representation or assertion is false in any respect, or which is deceptive or misleading, and which is known, or by the exercise of reasonable care could be known to be false, deceptive or misleading, to the person publishing, disseminating, circulating or placing before the public such advertisement, is guilty of a misdemeanor. [Emphasis added.]

In Ritholz v. City of Salt Lake,³ this court observed that if an advertiser actually overreaches or deceives, he is in violation of the law against such practice (Sec. 76-4-1, U.C.A.1953), and a remedy is available. In Ellis v. Hale,⁴ this court stated that in some instances negligence may be predicated upon the violation of an ordinance or statute. The purpose of Section 76-4-1, U.C.A.1953, appears to be to protect and to promote the public health, safety and welfare by establishing rules regulating the conduct of individuals, inter se. If such be the purpose, a violation of the statute may give rise to civil liability.

Plaintiff has pleaded an abrogation of a duty owed by defendant to plaintiff, for which there is a statutory standard, a harm proximately caused by this violation of duty, and damages. Under these circumstances there is no basis for this court to hold with certainty that plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim.

The judgment of the trial court is reversed and the cause is remanded for further proceedings. Costs to plaintiff.

CROCKETT, C. J., and TUCKETT and ELLETT, JJ., concur.

1 . See Seal v. Tayco, Inv., 16 Utah 2d 323, 326, 400 P.2d 503 (1965), wherein this court cited the well-recognized doctrine that it seems manifestly unfair to permit one who formulates a contract to so fashion it as to mislead the other party by setting forth a clearly apparent promise or representation, in order to induce acceptance, and then designedly “burying” elsewhere in the document, in fine print, provisions which purport to limit or take away the promise, and/or preclude recovery for failure to fulfill it.

2 . 3 Utah 2d 157, 160, 280 P.2d 453 (1955).

3 . 3 Utah 2d 385, 380, 284 P.2d 702 (1955).

4 . 13 Utah 2d 279, 282, 373 P.2d 382 (1962).