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JAMES A. MOORE v. H. GENE SIMMONS

MAY 03, 1989

JAMES A. MOORE
v.
H. GENE SIMMONS, INC., HENRY GENE SIMMONS, SR., HENRY GENE SIMMONS, JR. A/K/A BUB SIMMONS AND TIM SIMMONS



BEFORE ROY NOBLE LEE, ROBERTSON and BLASS

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

James A. Moore filed suit in the Circuit Court of Lincoln County, Mississippi, against Henry Gene Simmons, Inc., and Henry Gene Simmons, Jr., a/k/a Bub Simmons and Tim Simmons, seeking damages and attorney's fees, charging that the defendants fraudulently misrepresented to the plaintiff that a certain 1980 Chevrolet pickup truck purchased from them by the plaintiff had a total mileage of 34,887 on the odometer when in fact it had in excess of 130,000 miles. At the conclusion of evidence for the plaintiff Moore, the lower court directed a verdict in favor of the defendants. Moore has appealed and assigns the following error in the trial below:

THE LOWER COURT ERRED IN GRANTING APPELLEE'S MOTION FOR DIRECTED VERDICT.

 Facts

 On February 22, 1985, appellant purchased a 1980 Chevrolet pickup truck from H. Gene Simmons, inc., a used car dealership, for $3,000. He received an odometer disclosure statement indicating that the truck had been driven 34,887 miles. After the purchase, appellant began to experience mechanical problems with the truck and he contacted the original owner who informed him that the truck's odometer had "rolled over" and it had been driven 100,000 miles more than the odometer showed. Ross Downing Chevrolet, Inc., a former owner, furnished him a disclosure form on the vehicle reflecting the mileage at the time it was sold to Rick Kitchens, from whom appellees acquired the vehicle, together with a bill of sale. Witnesses called by the appellant at trial were James A. Moore (appellant), Gene Simmons, Sr., Mary Ann Moore, and Gene Simmons, Jr. The lower court granted a directed verdict at the conclusion of the appellant's evidence on the ground that he had not shown that there was any intent to defraud appellant on the part of the appellees.

 The Statutory Basis for the Action

 15 U.S.C. 1988 provides that when the ownership of a vehicle is transferred, the transferror must give to the transferee:

 (a)(1) Disclosure of the cumulative mileage registered on the odometer.

 (a)(2) Disclosure that the actual mileage is unknown, if the odometer is known to the transferor to be different from the number of miles the vehicle has actually travelled.

 Section 1988 also prohibits acceptance of incomplete written disclosure by transferee acquiring ownership of a vehicle for the purpose of resale.

 15 U.S.C. 1989 provides:

 (a) Any person who, with intent to defraud, violates any requirement imposed under this sub-chapter shall be liable in an amount equal to the sum of

 (a)(1) Three times the amount of actual damages sustained or $1,500, whichever is the greater; and

 (a)(2) In the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable ...


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