Gaultney v. Windham
| Decision Date | 15 June 1959 |
| Docket Number | No. 1,No. 37566,37566,1 |
| Citation | 99 Ga.App. 800,109 S.E.2d 914 |
| Parties | E. T. GAULTNEY, Jr., et al. v. Walter WINDHAM |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The assignments of error on the overruling of the special demurrers to the petition as finally amended are treated as abandoned.
2. An affirmative action in tort for deceit must be predicated upon actual fraud; and, where in a suit based upon such theory, it is nowhere alleged in the petition that the plaintiff was ignorant of the true condition of the premises purchased by him or was ignorant of the falsity of the representations made by the defendants as to the condition of such premises, or was either deceived or defrauded by such representations, no cause of action for deceit is set forth and the petition is subject to general demurrer.
3. A petition, based on theory of an affirmative action for fraud and deceit, which sets forth no facts showing that the plaintiff suffered any damages is subject to general demurrer.
On April 15, 1958, Walter Windham filed a suit for damages in the City Court of Macon against E. T. Gaultney, Jr., a resident of Bibb County, and Dependable Lumber Company, a corporation with its principal office and place of business in Bibb County. The material allegations of the petition as amended are substantially as follows: (3) The defendants have injured and damaged the plaintiff in the sum of $3,000 as will hereinafter more fully appear. (4) On February 10, 1955, the plaintiff purchased from the Dependable Lumber Company certain described property consisting of a house and lot in Bibb County, Georgia, known as 377 Overlook Road for a consideration of approximately $12,000. (5) Shortly prior to the date of the purchase of the house on February 10, 1955, the plaintiff discussed the purchase of the house with E. T. Gaultney, Jr. The exact date of these discussions is unknown to the plaintiff, but they occurred within two months prior to the purchase. At the time Gaultney was agent of and acting on behalf of the defendant corporation in the course of his employment as vice-president of the corporation. (6) The plaintiff was apprehensive about the condition of the foundation of the house and specifically questioned Gaultney whether or not the foundations were on solid ground. The plaintiff requested this information to enable him to determine whether or not he wished to purchase the house. (7) Gaultney told the plaintiff that he had nothing to worry about with regard to the foundations and further informed the plaintiff that all of the foundations of the house were on solid ground and not upon fill dirt. (8) From a close inspection of the house it was impossible to determine whether or not the foundations were constructed upon fill dirt or upon solid ground. (9) The plaintiff relied upon Gaultney's representations in agreeing to purchase the house at the aforesaid price. (10) The foundations of the house were not constructed on solid ground but were constructed on fill dirt from one to four feet in depth. (11) As a result of the foundations' being constructed on fill dirt, which is merely loosely packed, filledin dirt, the foundations of the house sank. The sinking of the foundations was a gradual process, and for this reason the plaintiff cannot allege the exact dates of the sinking of the foundations, but the plaintiff says that all of the sinking occurred after the purchase of the house. Such construction caused certain damages: the front and right side walls sank, the rear brick wall sank, the tile in the bathroom cracked, and the walls in the living room, three bedrooms, and the kitchen, cracked. (12) As a result of the false statement made by the defendant Gaultney, acting as the agent of the defendant corporation, which statement Gaultney knew to be false and which he made with the intention to deceive and injure the plaintiff, both the defendants have injured and damaged the plaintiff in the amount of $3,000. (13) As a result of the house's being built on fill dirt, the damages enumerated in paragraph 11 ensued, and the market value of the house diminished by $1,500. The fair market value of the house at the time of purchase before the damages occurred was $12,000 and thereafter was $10,500. (14) The plaintiff is further entitled to the sum of $1,500 as punitive damages to deter the defendants from such wrongdoing in the future.
The defendants filed their separate but identical demurrers, consisting of a general demurrer and 10 special demurrers. Following the plaintiff's amendment of his petition, both defendants renewed their demurrers to the petition as amended. The trial court overruled the demurrers of each of the defendants upon each and every ground, and the defendants, in their joint bill of exceptions, assign such judgment as error.
The defendants filed separate but identical answers admitting residency in Bibb County but denying all other paragraphs of the petition. For further answer each of the defendants alleged that before the sale of the property to the plaintiff, the plaintiff made a thorough inspection of the house to ascertain the stability of its construction and the plaintiff did not rely upon any representation made to him by the defendant Gaultney. No discussion was had between the plaintiff and the defendant Gaultney concerning the foundations of the house, and as a matter of fact the foundations of the house were not placed upon fill dirt, but were built, as is customary in the area, upon solid, substantial, clay foundation.
On the trial and at the conclusion of all the evidence the defendants moved for a directed verdict which was overruled; and, upon the court's submission of the case to the jury, a verdict was returned for the plaintiff in these words: 'We, the jury find for the plaintiff $2,000, $1500 damages 'repair', $500 punitive damages.'
The defendants assign error here on the trial court's denying their motion for judgment non obstante veredicto, and on the trial court's denying their motion for a new trial, which was based upon the usual general and four special grounds.
Byrd & Quillian, Atlanta, Othniel W. McGehee, George E. Saliba, Macon, for plaintiff in error.
Martin, Snow, Grant & Napier, Macon, for defendant in error.
1. Where, in a consolidated bill of exceptions, each of the two defendants in the court below assigns error on the trial court's action in overruling his special demurrers to the plaintiff's petition as finally amended, but this assignment of error is not argued in this court either orally or in the brief of counsel for the defendants, who are plaintiffs in error here, and upon which there is no general insistence, such assignment of error will be treated as abandoned. Evergreen Memory Gardens v. Blythe, 92 Ga.App. 413, 88 S.E.2d 528.
2. Under the view which we take of the petition, the plaintiff has endeavored to frame an independent affirmative action in tort based on fraudulent misrepresentations; that is to say, an independent action in tort for deceit to recover enumerated damages thus allegedly occasioned. Counsel for the plaintiff insists here that such was indeed the theory and nature of the action which he instituted in reliance on the authority of Southern v. Floyd, 89 Ga.App. 602, 80 S.E.2d 490, and Griffin v. Butler, 45 Ga.App. 771, 166 S.E. 60.
The gist or gravamen of an action for damages in tort based on the falsity of representations is that they must have involved actual moral guilt. Dundee Land Co. v. Simmons, 204 Ga. 248, 249(1), 49 S.E.2d 488; Wooten v. Calahan, 32 Ga. 382, 386; Penn Mutual Life Ins. Co. v. Taggart, 38 Ga.App. 509, 511(1b), 144 S.E. 400, 402.
In the Taggart case, many of the doubts, misapprehensions, and much of the confusion concerning actions of deceit were resolved and set at rest by our esteemed Chief Justice Emeritus Jenkins, who served with such distinction upon the bench of both this court and of our Supreme Court. In that case it is tersely, concisely, and succinctly stated: 'Fraud is either actual or constructive. Either constitutes legal fraud. Actual fraud 'consists of any kind of artifice by which another is deceived.' It involves moral guilt, since there must be an intentional purpose to deceive. Constructive fraud 'consists in any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience.' It does not involve moral guilt, since it is the act itself, as taken in connection with the relationship of the parties, and not the guilty purpose or intent, which constitutes constructive fraud. Code § 37-702.
'(a) Either actual or constructive fraud may consist in the misrepresentation of a material fact. Whether the fraud is actual depends on...
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