Dunsil v. E. M. Jones Chevrolet Co., Inc.

• Decision Date: 02 March 1977
• Docket Number: No. 20371,20371
• Citation: 268 S.C. 291,233 S.E.2d 101
• Court: South Carolina Supreme Court
• Parties: Patricia A. DUNSIL, Respondent, v. E. M. JONES CHEVROLET CO., INC., Appellant.

Page 101

233 S.E.2d 101

268 S.C. 291

Patricia A. DUNSIL, Respondent, v. E. M. JONES CHEVROLET CO., INC., Appellant.

No. 20371.

Supreme Court of South Carolina.

March 2, 1977.

Walker, Jones, Smith, Bailey & Bailey, Summerville, for appellant.

Berry & Dukes, St. George, P. Kramer, Summerville, Hammer & Bernstein, Columbia, for respondent.

GREGORY, Justice:

In this action for fraud and deceit Jones Chevrolet appeals from a jury verdict awarding Dunsil $800.00 actual, and $5800.00 punitive, damages. Jones assigns error to the trial judge's (1) refusal to grant a nonsuit or direct a verdict for Jones, (2) submission of the issue of punitive damages to the jury, and (3) charge to the jury. We find no error as to the first two points but reverse on the third.

Dunsil bought a used car from Jones. She told the salesman she did not want a "wrecked" car because she already had one. He replied in essence that he had a good car. Dunsil later discovered that the frame of the car was bent; uncontradicted testimony at trial showed that the damage would have been caused by a wreck. In addition, the testimony showed that the damage was discoverable by inspection underneath the car.

In deciding on the motions for a nonsuit and directed verdict, the trial judge must consider the evidence in the light most favorable to the party resisting the motions; if more than one reasonable inference can be drawn from the evidence, the judge must submit the case to the jury. Skipper v. Hartley, 242 S.C. 221, 130 S.E.2d 486 (1963); see also Williams v. Kinney, 267 S.C. 163, 226 S.E.2d 555 (1976). Here there was sufficient evidence for the case to go to the jury. Fraud may be established not only by showing that the defendant knew of the falsity of his representations, but also by showing that he made the representations in reckless disregard of their truth or falsity. Carter v. Boyd Construction Co., 255 S.C. 274, 178 S.E.2d 536 (1971); Aaron v. Hampton Motors, 240 S.C. 26, 124 S.E.2d 585 (1962).

The submission of the issue of punitive damages to the jury was proper. Knowledge by the tortfeasor that his representations were false is not required for an award of punitive damages. It is only necessary that the defendant was "conscious, or chargeable with consciousness, of his wrongdoing." Carter v. Boyd Construction Co., supra, 255 S.C. at 283, 178 S.E.2d at 540.

Appellant next assigns error to the charge. The trial judge jumbled propositions of law applicable to fraudulent breach of contract actions (ex contractu ) with principles applicable to fraud and deceit actions (ex delicto ). The instructions by the court of irrelevant and inapplicable principles of law was clearly erroneous and may have been confusing to the jury. In Wright v. Harris, 228 S.C. 144, 89 S.E.2d 97 (1955), this Court restated the rule that it is reversible error to charge a correct principle of law as governing a case when such principle is inapplicable to the issues on trial. In reversing, the Court held it was error to charge the law pertaining to "breach of contract accompanied by a fraudulent act" in an action for "fraud and deceit." This precise error in the instant case prompts reversal and remand to the Court of Common Pleas for Dorchester County for a new trial.

Reversed and remanded for a new trial.

LITTLEJOHN, NESS and RHODES, JJ., concur.

LEWIS, C. J., dissents.

LEWIS, Chief Justice (dissenting):

The parties agree that this is an action for fraud and deceit arising out of alleged fraudulent representations made in connection with the purchase of an automobile by the respondent. The jury returned a verdict for respondent in the amount of $800.00 actual damages and $5,800.00 punitive damages. Appellant assigns error in the admission of certain testimony, in the refusal of its motions for nonsuit and directed verdict as to both actual and punitive damages, and in the instructions to the jury.

The majority reverses solely upon the ground that the "trial judge jumbled propositions of law applicable to fraudulent breach of contract actions (ex contractu) with principles applicable to fraud and deceit actions (ex delicto)." The "jumbled propositions of law" are described as "irrelevant and confusing to the jury" and "clearly prejudicial."

While the charge contains irrelevant references to fraudulent breach of contract and damages resulting from a breach of contract, these references were made in connection with clear and accurate instructions as to the elements of actionable fraud and the necessity to prove fraud as defined.

In my opinion, these instructions could have left no doubt in the mind of the jury that, whether the action be denominated one for fraudulent breach of contract or one for fraud and deceit, respondent had to establish all of the enumerated elements of actionable fraud by clear and convincing testimony in order to recover. Nor can there be doubt that respondent proved a case of actionable fraud.

Appellant argues that the trial judge also confused the jury by instructing them as to the measure of damages for fraudulent breach of contract when the action was one for fraud and deceit. In the instructions on the measure of actual damages, the court stated that "the measure of damages for breach of contract shall be damage that the injured party may reasonably have incurred, a loss one has actually suffered by reason of breach. A person is entitled to be placed in the same position, insofar as this can be done by money, (if) he or she would have occupied if the contract had been fully performed."

Following a further charge that damages recoverable from breach of a contract are such as may be considered to arise naturally from the breach, the jury was instructed that...