Aderhold v. Zimmer, 33956

• Decision Date: 22 May 1952
• Docket Number: No. 33956,2,Nos. 1,33956,s. 1
• Citation: 86 Ga.App. 204,71 S.E.2d 270
• Parties: ADERHOLD v. ZIMMER
• Court: Georgia Court of Appeals

Page 270

71 S.E.2d 270

86 Ga.App. 204

ADERHOLD v. ZIMMER.

No. 33956.

Court of Appeals of Georgia, Division Nos. 1, 2.

May 22, 1952.

Syllabus by the Court.

1. The petition set out a cause of action for fraud and deceit in the sale of an automobile, and it was a question for a jury as to whether the aggravating circumstances of the alleged tort warranted the award to the plaintiff of punitive damages.

2-4. No error is shown by the special grounds of the motion for a new trial.

5. Under the evidence, the jury was authorized to find that the defendant sold the automobile in question to the plaintiff as a 1949 model and so represented it to the plaintiff at the time of the sale, when he knew or, as an automobile dealer, should have known that it was a 1948 model, and that by such misrepresentation the plaintiff was induced to trade for the car and was thereby deceived and defrauded, the plaintiff not knowing the model of the car for which he traded, but relying on the representation of the defendant as to same; and the trial judge did not err in overruling the motion for a new trial.

W. V. Zimmer brought this action for deceit against Hugh R. Aderhold, trading as Moultrie Hudson Company, and made the following allegations in his petition: The plaintiff purchased from the defendant a new 1949 Hudson Commodore Six 4-door sedan on January 4, 1949. The plaintiff traded his car, a 1949 Ford 4-door sedan for said new car, and paid in addition $650. The defendant represented that the plaintiff was purchasing a new 1949 Hudson Commodore Six 4-door sedan, as evidenced by a bill of sale signed by the defendant, a copy of which was attached to the petition and made a part thereof. The defendant knew at the time of the sale, or should have known by virtue of his position as a Hudson dealer, that the automobile sold to the plaintiff was in fact a 1948 model rather than a 1949 model as represented to the plaintiff, and such representation was made with the intention and purpose of deceiving the plaintiff. (7) The plaintiff relied upon the defendant's representation that the automobile was a 1949 model, and because the automobile was in fact a 1948 model, the market value thereof was $350 less than that of a 1949 model. (8) The defendant knew that a 1948 model automobile was worth considerably less on the market than a 1949 model, and knew that the plaintiff did not know that it was not a 1949 model. The defendant wilfully deceived the plaintiff in order to get rid of an old-model car after the new models had already appeared on the market, and by virtue of these aggravating circumstances, in act and intention, the plaintiff is entitled to recover punitive damages in the sum of $1000, in addition to actual damages of $350.

The bill of sale attached stated that Hugh R. Aderhold, for $650 and a 1949 Ford 4-door sedan, sold to W. V. Zimmer 'One New 1949 Hudson Commodore Six 4-dr. Sedan, Serial and Motor No. 482-112658,' and was dated, January 4, 1949.

The defendant demurred to the petition on the ground that it set out no cause of action against the defendant and no cause of action for punitive damages; and to paragraph 8 on the ground that no punitive damages were recoverable under the allegations of said paragraph. These demurrers were overruled, and the defendant excepted pendente lite. The defendant in his answer admitted the allegations of his residence, the terms of the sale, and his representation that the plaintiff was purchasing a 1949 Hudson automobile, but denied the other allegations of the petition, with regard to his knowledge and intent to deceive.

The jury returned a verdict in favor of the plaintiff for $1000. The defendant's amended motion for a new trial was denied, and he excepted to that judgment and also assigned error in his exceptions pendente lite.

P. Q. Bryan, Emory M. Hiers, Moultrie, for plaintiff in error.

Whelchel & Whelchel, Moultrie, for defendant in error.

SUTTON, Chief Judge.

1. 'Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.' Code, § 105-302. An independent action in tort for deceit must be grounded on actual fraud, and the essential allegations of such an action are as follows: (1) that the defendant made the representations; (2) that he knew at the time the representations were false (or what the law regards as the equivalent of knowledge); (3) that he made them with the intention to benefit himself or to deceive and injure the plaintiff; (4) that the plaintiff acted upon the faith of the representations; and (5) that the plaintiff sustained the alleged loss and damage as the proximate result of the false representations having been made. Norris v. Hart, 74 Ga.App. 444, 40 S.E.2d 96; Brown v. Ragsdale Motor Co., 65 Ga.App. 727, 16 S.E.2d 176; Young v. Hall, 4 Ga. 95. The petition alleges that the defendant, intending to deceive the plaintiff, falsely represented that the car to be sold to the plaintiff was a 1949 model, and that the plaintiff relied upon such misrepresentation by purchasing the automobile in question which was worth $350 less than a 1949 model, as it was represented to be. The allegations of scienter, construed against the pleader, are that the defendant should have known by virtue of his position as a Hudson dealer that the automobile sold was a 1948 rather than a 1949 model; and that the defendant knew that the market value of a 1948 model was less than that of a 1949 model, and knew that the plaintiff did not know that the automobile was not a 1949 model. While it is not alleged that the defendant actually knew that the car was a 1948 model, the alleged fact that the defendant deceived the plaintiff to get rid of the older model car after the new models had already appeared on the market, in connection with the other allegations concerning the defendant's knowledge, shows that moral guilt and not mere negligence was involved. See Wooten v. Calahan, 32 Ga. 382, 386; Penn Mutual Life Ins. Co. v. Taggart, 38 Ga.App. 509, 511(1, b), 144 S.E. 400, and cases cited.

The petition therefore set out a cause of action for fraud and deceit, and was not an action for breach of contract, as contended by the defendant. 'In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass.' Code, § 105-2002. As the case involved fraud, it was a question for the jury as to whether the aggravating circumstances of the tort warranted a verdict for additional exemplary damages, and the trial judge did not err in overruling either the general or special demurrers to the petition.

2. After charging the jury that a witness may be impeached by evidence of contradictory statements, the trial judge stated: 'He may be corroborated or he may be sustained by proof of good character or by other facts and circumstances in the case.' The defendant contends, in ground 4 of his motion for a new trial, that this charge was error for the reasons that there was no attempt to prove the character, good or bad, of any witness in the case, and that it led the jury to believe that character was in issue. That part of this statement, that 'he may be sustained by proof of good character,' was inapplicable here, but it does not appear that this was in any way harmful to the defendant, and this ground of the motion shows no reversible error. See, in this connection, Mills v. Pope, 20 Ga.App. 820(2), 93 S.E. 559; Alexander v. State, 32 Ga.App. 488(3), 123 S.E. 923.

3. Special ground 5 of the motion complains of the charge to the jury defining a tort in the terms of Code, § 105-101, and also of the charge concerning additional or exemplary damages, in the language of Code, § 105-2002; and these charges, while conceded to be correct, are said to have been...