Crommelin v. Capitol Broadcasting Co.
| Decision Date | 16 February 1967 |
| Docket Number | 3 Div. 237,WCOV-TV |
| Parties | , 31 A.L.R.3d 1444 John G. CROMMELIN v. CAPITOL BROADCASTING COMPANY, d/b/aet al. |
| Court | Alabama Supreme Court |
Kenneth Cooper, Bay Minette, for appellant.
Truman Hobbs, Godbold, Hobbs & Copeland, Montgomery, for appellees.
The trial court sustained demurrers to the two counts of plaintiff's complaint and plaintiff took a nonsuit and appealed.
The first argued assignments of error contend that the court erred in sustaining the demurrers to the complaint.
Count One reads:
'The Plaintiff claims of the Defendants One Hundred Thousand ($100,000.00) Dollars, as damages for fraudulently informing the Plaintiff via United States Mail, on March, 26, 1964, that 'We (WCOV) will be able to offer time for speeches only to candidates engaged in Montgomery County races,' and then surreptitiously making time available for speeches over WCOV-TV To the Plaintiff's state-wide opponents at a premium time, and for refusal of the Defendants to permit the Plaintiff to use the television broadcasting facilities of the Defendants on equal time with other political candidates during the Democratic Primary Election campaign of the State of Alabama, during the month of May, 1964, and the Plaintiff says that although he requested equal time with his political opponents and other political candidates from the Defendants, and the Plaintiff offered to comply with all political telecasting rules and regulations on his part, the Defendants failed to make available to the Plaintiff equal political broadcasting time with his opponents and other political candidates, hence this suit.'
Court Two reads the same as Count One except for the next to last clause which reads '* * * the defendants wantonly, willfully and maliciously failed to make available to the Plaintiff equal political broadcasting time with his opponents and other political candidates, hence this suit.'
A demurrer is an entity and should be sustained if any ground shows a good reason for doing so; and if any ground is well taken, the action of the trial court in sustaining the demurrer will be upheld. State v. Mudd, 273 Ala. 579, 143 So.2d 171, and cases there cited.
The first theory of each count is that defendants 'fraudulently informed' plaintiff of certain things. There are no allegations which would bring either count under Tit. 7, § 108--Misrepresentations, § 109--Suppression of a material fact, or § 110--Deceit. There is no magic in the use of the word 'fraudulently' unless the averments show a set of facts or consequences which constitute fraud under Alabama law.
Fraud is a conclusion of law from facts stated and proved. When fraud is pleaded, either at law or equity, the facts out of which it is supposed to arise must be stated. A mere general averment of fraud, without such facts, is subject to apt demurrer properly interposed. Turner v. Sullivan, 272 Ala. 608, 133 So.2d 254; National Park Bank of New York v. Louisville & N.R.R. Co., 199 Ala. 192, 216, 74 So. 69, 80. No facts showing actionable fraud are alleged and several grounds of demurrer raised the point.
The basic concept of fraud involves violation of a legal or equitable duty, Morgan v. Gaiter, 202 Ala. 492, 80 So. 876; Kennedy's Heirs v. Kennedy's Heirs, 2 Ala. 571; and 'conversely fraud cannot exist without a breach of legal or equitable duty' and 'it not being fraud for a person to fail to perform acts which he is not bound to perform.' 37 C.J.S. Fraud § 1, pp. 204, 205.
Here, no duty is...
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