Brown v. Ragsdale Motor Co., 28839.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: MacINTYRE, Judge.
• Citation: 16 S.E.2d 176,65 Ga.App. 727
• Parties: BROWN v. RAGSDALE MOTOR CO., Inc.
• Docket Number: 28839.
• Decision Date: 31 July 1941

16 S.E.2d 176

65 Ga.App. 727

BROWN
v.
RAGSDALE MOTOR CO., Inc.

No. 28839.

Court of Appeals of Georgia, Division No. 1.

July 31, 1941

This was an action on a tort for fraud and deceit in which the plaintiff Steve Brown alleged in his petition that he purchased a certain [16 S.E.2d 177] Hudson automobile from Ragsdale Motor Company, Incorporated, defendant. He traded in his old car on the new car, was allowed $450 therefor, and gave notes for the balance due for $744, payable $31 per month for 24 months. He alleged that at the time he bought the car defendant falsely and fraudulently represented to him that the car was a new car. The defendants had sold the car to one W. G. Patton of Ben Hill, Georgia, several months before and had turned back the speedometer so that the car appeared to be new and had not been driven at all. The price of a new Hudson sedan which plaintiff understood he was buying was $1,036, whereas as a second hand car it was worth only $673.40, and the plaintiff was damaged in the sum of $362. "Plaintiff alleges that the said representations of the defendant Ragsdale Motor Company, Incorporated, and of his said agent and servant Al Ragsdale were false and fraudulent and were made for the purpose of deceiving plaintiff and did actually deceive plaintiff and by reason of said fraud and deceit practiced on plaintiff by the defendant Ragsdale Motor [65 Ga.App. 729] Co., Inc., and the aggravated nature of the wrong, plaintiff is entitled to punitive damages in the amount of $2,000."

The defendant's answer in effect denied the essential allegations of the plaintiff's petition and further stated that the car had only been driven from the freight depot to their place of business and was in truth a new car as represented by them. They further say that they had previously sold the car to the said W. G. Patton of Ben Hill, Georgia, which was black in color and obtained a tag for it, but when Patton and his wife called for the car, Patton's wife changed her mind as to the color, wanting instead a blue one and the car in question was never moved from the salesroom by Patton or anyone else and the true mileage was revealed on the car's speedometer, all of which was explained to the defendant and his counsel prior to the filing of this suit.

The evidence for the plaintiff was in effect that the car had been driven several thousand miles before it was sold to the plaintiff; that the speedometer had been to the defendant and unknown to the plaintiff; that the defendant knowingly fraudulently represented to the plaintiff that the car was brand new and induced the plaintiff to enter into the contract to his damage. However, the defendant's evidence constituted the contract of sale which provided in part: "Said property is purchased solely on judgment of vendee without any warranty or representations from vendor except that the title is unencumbered. This contract and said note, together with all stipulations and agreements therein, are to be construed together and they constitute the entire contract of purchase and sale of said property. All prior or contemporaneous conditions and agreements are therein merged."

At the conclusion of the evidence the judge of the superior court directed a verdict for the defendant in the following language: "There being no repudiation of the contract out in the plaintiff's petition, and no offer to rescind, the court is of the opinion that the petition should be construed as standing on the contract, and a verdict is hereby directed, in view of the introduction of the contract, for the defendant in the case."

Winfield P. Jones and F. L. Breen, all of Atlanta, for plaintiff in error.

E. Harold Sheats, of Atlanta, for defendant in error.

MacINTYRE, Judge.

"A material misrepresentation, constituting actual fraud, may give rise to an independent action in tort for deceit, to recover for damage thus occasioned." (Italics ours.) Penn Mutual Life Ins. Co. v. Taggart, 38 Ga.App. 509, 511, 144 S.E. 400, 402. It might be well to bear in mind that the action here is an affirmative one in which the party against whom the alleged fraud was committed was on the offensive seeking redress by instituting the original proceeding in the form of a suit in tort for deceit occasioned by actual fraud. This is not one of those classes of cases where the injured party was merely attempting to defend himself against the attack of a suit brought by the party who made the misrepresentation. An independent affirmative action in tort based upon fraudulent misrepresentations in order [16 S.E.2d 178] to be actionable (furnish legal ground for an action) must be based upon actual fraud. Code, § 105-302; Penn Mutual Life Ins. Co....