Barnes v. McKinney

• Decision Date: 01 August 1978
• Docket Number: No. 2,No. 50172,50172,2
• Parties: Jack BARNES, Appellee, v. Carl D. McKINNEY, Appellant
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 698

589 P.2d 698

Jack BARNES, Appellee, v. Carl D. McKINNEY, Appellant.

No. 50172.

Court of Appeals of Oklahoma, Division No. 2.

Aug. 1, 1978.

Rehearing Denied Oct. 30, 1978.

Certiorari Denied Jan. 15, 1979.

Released for Publication by Order of Court of Appeals Jan. 18, 1979.

Frank M. Hagedorn, Hall, Estill, Hardwick, Gable, Collingsworth & Nelson, Tulsa, for appellee.

Prichard, Norman, Reed & Wohlgemuth, Tulsa, for appellant.

BRIGHTMIRE, Judge.

Action to recover for breach of home construction contract and fraud in obtaining final payment. Trial court required an election of theories and jury returned verdict for plaintiff on the fraud count. Defendant appeals from a judgment on such verdict.

Despite the commission of critical errors against him plaintiff achieved a $4,000 jury verdict. Defendant, Carl McKinney, sought a new trial and when this was denied he appealed.

I

On February 24, 1973 defendant agreed with plaintiff that for $14,000 he would furnish the necessary labor and material for building a room onto plaintiff's home. When finished the new room featured, among other things, a leaky roof resulting from shoddy construction, some incredibly poor quality plumbing, and other shortcomings, which to correct, plaintiff had to eventually spend a lot of time and around $1,232.

In his first amended petition plaintiff pleaded the contract and its breach causing $3,060.26 damages in what he denominated a "first cause of action." In a "second cause of action" he alleged that defendant fraudulently obtained final payment of the contract price in the amount of $4,960.46 by falsely representing that the plumbing had passed a final city inspection an orally agreed to condition precedent to the payment. In a "third cause of action" plaintiff sought $15,025.28 in exemplary damages from defendant for the fraud he perpetrated.

The first gross error committed by the trial court was sustaining defendant's "special demurrer" to plaintiff's claim for exemplary damages. It is rudimentary and long standing statutory law that a party has a right to seek exemplary damages "for the breach of an obligation not arising from contract, where the defendant has been guilty of . . . fraud . . . " 23 O.S.1971 § 9. Here plaintiff pleaded a breach of both a contractual obligation and a noncontractual one to refrain from obtaining money from plaintiff under false pretenses which was permissible. Miller v. Wissert, 38 Okl. 808, 134 P. 62 (1913). The fact that plaintiff erroneously referred to his request for punitive damages as a third cause of action ¹ did not impair his right to recover them in connection with his cause for fraud and the request should not have been removed from the petition by means of sustaining a "special demurrer."

The second obvious error jeopardizing plaintiff's attempt to achieve justice occurred when the trial court, at the close of the evidence, required plaintiff to "elect remedies." No inconsistency of remedies was involved. Sisler v. Jackson, Okl., 460 P.2d 903, 909 (1969). Plaintiff sought only one remedy damages and he did so under two theories: (1) breach of contract, and (2) tort. He was entitled to have both theories submitted to the jury. C. I. T. Corp. v. Shogren, 176 Okl. 388, 55 P.2d 956 (1936). And, as we have already pointed out, the jury should also have been permitted to pass on plaintiff's request for punitive damages in connection with the fraud count. Garrett v. Myers, 190 Okl. 273, 123 P.2d 965 (1942).

As it turned out, plaintiff, handicapped as he was by the judicial excision of vitals from his lawsuit, still managed to achieve a verdict for $4,000 a verdict defendant complains of nevertheless.

II

Defendant argues first of all that the trial court misinstructed the jury regarding the amount of damages recoverable by plaintiff for his fraud claim.

The instruction, number 8, was rather terse, stating simply that plaintiff should be "adequately compensated for actual damages which . . . is the cost of repairing the plumbing and roof, damages to shrubbery, damage to the interior of his home and any damages occasioned by the payment being made prior to the final plumbing inspection, not to exceed $4,960.66."

This charge would not have been quite so bad had plaintiff not been required by the "election" to relinquish the breach of contract portion of his lawsuit. When he made the choice he did, he gave up his right to recover the detriment he suffered from the contractual breach as authorized by 23 O.S.1971 § 21 and had to be content with recovering only the detriment caused by the fraud, in other words, the detriment resulting from giving up the $4,000 final payment. And, what was this detriment? It was not the cost of redoing what the contractor failed to properly do under the contract. It was not damage done to the shrubbery by virtue of poor plumbing and inept roof work. All this was detriment arising from defendant's failure to construct the addition in a contractually required workmanlike manner a cause of action no longer in the lawsuit. Detriment from defendant's tortious acquisition of the $4,000 was: (1) the $4,000 itself; (2) interest on the sum during plaintiff's deprivation of it; and (3) plaintiff's loss of time, inconvenience and expense incurred in recovering it back. 23 O.S.1971 § 61; ² 23 O.S.1971 § 7; ³ State ex rel. Southwestern Bell Tel. Co. v. Brown, Okl., 519 P.2d 491 (1974); Harris v. Graham, 124 Okl. 196, 255 P. 710 (1926); City of Cushing v. High, 73 Okl. 151, 175 P. 229 (1918).

Potential elements of harm produced by fraudulent conduct differ not at all from those indigenous to infractions of noncontractual obligations in general. To qualify as compensable the element must be a natural and probable consequence of the tortious act. State ex rel. Southwestern Bell Tel. Co. v. Brown, supra. Many such elements or types of tort-generated "detriment" have been judicially recognized through the years in context of a wide range of factual circumstances. For example, injured feelings from insult and humiliation has been held to be compensable detriment. St. Louis-S. F. R. Co. v. Clark, 104 Okl. 24, 229 P. 779 (1924); St. Louis & S. F. R. Co. v. Yount, 30 Okl. 371, 120 P. 627 (1911). So has mental suffering and aggravation of physical disease. Harris v. Graham, 124 Okl. 196, 225 P. 710 (1926). Also, injury to reputation and credit. General Motors Acceptance Corp. v. Davis, 151 Okl. 255, 7 P.2d 157 (1932). And, personal inconvenience, annoyance and discomfort. Oklahoma City v. Miller, 179 Okl. 363, 65 P.2d 990 (1937); City of Cushing v. High, supra; Dalton v. Kansas City, F. S. & M. R. Co., 78 Kan. 232, 96 P. 475 (1908).

In the case at bar the fraud perpetrated by defendant was aimed at obtaining $4,000 from plaintiff. His deception was successful and defendant's gain of $4,000 was plaintiff's loss of the same amount the first obvious consequence of the fraud. ⁴ This detriment was accompanied by others. For one thing, plaintiff lost the use of the money and for such loss he is entitled to interest during the period of deprivation. In fact, although the jury did not realize it, the statute specifically authorized them to award interest in connection with the fraud. (See footnote 3). And, finally, as a natural and probable consequence of defendant's willful tortious act, plaintiff suffered the loss of time and inconvenience incident to filing a lawsuit in order to get the money back.

These circumstances, then, lead inexorably to the conclusion that the damages instruction was indeed erroneous but that the error is one of which defendant will not be heard to complain for at least two reasons: (1) the jury award was less than what it should have been and probably would have been had the trial judge instructed the jury correctly a deficiency we cannot correct because plaintiff did not file a cross-appeal; and (2) the fundamental errors of the trial judge were committed at the request of the defendant, and he may not now gain further advantage by using them to upset an inadequate verdict. Boettler v. Rothmire, Okl., 442 P.2d 511 (1968).

Frankly, after examining this record and observing the advantages defendant enjoyed in the trial court we find it hard to understand why defendant opted to appeal. As appears from the foregoing, had plaintiff had his full day in court not only would his breach of contract complaint have been decided by the jury but his entitlement to other specific detrimental consequences of the fraud, along with punitive damages, would have been also. It is possible, of course, defendant overlooked the relevant legal fact that a judgment may be saved by the counterassertion of ameliorating errors committed against the successful party which are of such a nature that their emendment will purge the result of reversible error. Short v. Guy Nall Trucking Co., Inc., Okl., 442 P.2d 497 (1968). He may also have forgotten about the long-standing rule that where a plaintiff recovers less than he is entitled to, defendant cannot secure a...