Georgia-Carolina Brick & Tile Co. v. Brown

• Decision Date: 29 April 1980
• Docket Number: GEORGIA-CAROLINA,No. 58296,58296
• Citation: 266 S.E.2d 531,153 Ga.App. 747
• Court: Georgia Court of Appeals
• Parties: BRICK & TILE COMPANY v. BROWN et al.

Page 531

266 S.E.2d 531

153 Ga.App. 747

GEORGIA-CAROLINA BRICK & TILE COMPANY v. BROWN et al.

No. 58296.

Court of Appeals of Georgia.

Argued Sept. 10, 1979.

Decided March 6, 1980.

Certiorari Denied April 29, 1980.

John B. Long, Augusta, for appellant.

Thomas W. Tucker, Augusta, for appellees.

BIRDSONG, Judge.

The Browns sued Georgia-Carolina Brick & Tile Co. for negligence and gross negligence, intentional and wilful wrongdoing and making fraudulent misrepresentations, all concerning the delivery and installation of the wrong brick while defendant-appellant repeatedly assured appellees the brick was no problem. From a jury verdict awarding $7,700 actual damages, $3,300 attorney fees, and $2,000 punitive damages, Georgia-Carolina appeals, enumerating twelve errors of law. Held :

1. In Enumerations 1, 2, 3, and 4, appellant contends that the evidence does not present a case for fraud, gross negligence, and intentional and wilful torts, and does not support the verdict, and therefore that the trial court erred in denying appellant's motions for directed verdict, judgment notwithstanding the verdict, and new trial. We do not agree. The evidence showed that appellant agreed with the Brown's contractor, Hitt, to reserve some 20,000 bricks for the Brown's house under construction, all brick to be from the same "run" and of the same range of color, but that brick from two different ranges was shipped in the first shipment, and none of the proper range bricks was shipped from the run of brick which was promised. After some of the brick had been laid, the Browns and Hitt called appellant to advise that the colors appeared disparate or mottled. Three times, at the appellees' request, appellant's sales agent, Murphy, came to the construction site and advised appellees that he could see no color differences, that there was no problem with the brick, and the brick would be all right when it was cleaned up and when it dried after the rains. Murphy advised the contractor to continue laying the brick. At the same time, after his first visit, Murphy reported in writing to the company that "suggested cleanup will tone down color difference somewhat but will not solve the entire problem." Murphy admitted that the problems with the color differences in the disparate brick runs were obvious to him from his first visit, but he had continued to advise appellees that there would be no problem and the brick would match. A packaging slip attached to each lot of bricks delivered by appellant contained the statement that no complaints about color would be considered after the bricks were laid in the wall. The appellees and their contractor relied on the advice of Murphy and continued to lay the brick. An expert witness testified that the brick on appellee's house was noticeably disparate in color, and that it was not acceptable to him as a contractor, professional engineer, or brickmason. The necessary elements of fraud are present in this evidence (see City Dodge v. Gardner, 232 Ga. 766, 769, 208 S.E.2d 794); the statements to appellees by appellant's agent Murphy that the brick would match when dry and therefore there was no problem, were not mere opinions, or promises as to future events, but they were representations of fact as to the inherent nature and quality of the brick, by one upon whom appellees were entitled to rely as having special knowledge of bricks made by his employer. Daugert v. Holland Furnace Co., 107 Ga.App. 566, 570, 130 S.E.2d 763. We do not think that the fact that Mrs. Brown was not present when the misrepresentations were made by Murphy to her husband and to Mr. Hitt precludes her from recovering from the fraud, for she is a real party in interest, holds title to the property damaged, and is directly injured by the fraud. Sawyer v. Allison, 151 Ga.App. 334, 259 S.E.2d 721. See Hines v. Wilson, 164 Ga. 888, 889(2b), 139 S.E. 802; Young v. Hall, 4 Ga. 95(4), 100. Nor are the Browns deprived of a cause of action against appellant for fraud merely because appellant's contract was with the contractor; the action here is in tort which requires no privity, Sawyer, supra; Code § 105-106, and the fraud resulted in damage to appellees as the real parties in interest. Code § 3-109. The sole determination here is whether there is any evidence sufficient to authorize the verdict, and we find that there is. Hallford v. Banks, 236 Ga. 472, 224 S.E.2d 35; Bell v. Brewton, 139 Ga.App. 463, 464, 228 S.E.2d 600. It necessarily follows that the trial court did not err in denying appellant's motions for new trial, directed verdict and judgment n. o. v. Hallford, supra; Lanier Petroleum v. Hyde, 144 Ga.App. 441, 442, 241 S.E.2d 62.

2. A. Appellant contends the trial court erred in submitting to the jury the issues of punitive damages and attorney fees, and denying appellant's motions for judgment on those issues. The trial court did not err. See especially, Thibadeau Co. v. McMillan, 132 Ga.App. 842, 843-844, 209 S.E.2d 236. The award of punitive damages requires a tort accompanied by aggravating circumstances either in the act or the intention, evidenced by "willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifferent to consequences." BLI Const. Co. v. Debari, 135 Ga.App. 299, 301, 217 S.E.2d 426; Code § 105-2002. The injury sued for in this case is not merely the delivery by appellant of the wrong brick, but the repeated representations by appellant's agents, upon which appellees and their contractor relied, that the brick would be all right when it dried; and this while, as the evidence showed, appellant's agent knew that the brick from two different runs would not match when dry. Thibadeau, supra. There is in this showing something from which the jury could, and did, find more than the mere inadvertence that will preclude the recovery of punitive damages. See Southern Bell Tel., etc., Co. v. Citizens, etc., Realty Co., 141 Ga.App. 216, 219-220, 233 S.E.2d 9. Furthermore, there was, in these circumstances, evidence from which the jury could find bad faith sufficient to award attorney fees: that the appellant knew full well there was a color difference in the two runs of brick which would not be cured when the brick dried, yet continued to assure appellees the brick would match, until the entire back side of the house was laid with brick. This view of the evidence, which we must assume in deference to the jury's verdict (Frost v. Williamson, 239 Ga. 266, 268, 236 S.E.2d 615), authorizes a finding of bad faith or that appellant put the Browns to the unnecessary trouble and expense of replacing the fully-laid brick through litigation. Thibadeau, supra; Code § 20-1404.

B. Appellant contends that attorney fees were not authorized under Code § 20-1404 in this case because appellees were awarded substantially less than they had demanded in actual damages.

We recognize that some cases have held that to be the rule (e. g., Southern Bell, supra, 141 Ga.App. pp. 222-223, 233 S.E.2d 9, and cits.; Broyles v. Johnson, 103 Ga.App. 102, 105, 118 S.E.2d 734 and cits.), but we are unable to perceive that the size of the jury verdict has any absolute, logical connection to the existence of bad faith in the evidence. We further observe that in most earlier cases so holding, there was found to be no bad faith in the evidence so as to authorize attorney fees according to Code § 20-1404 (see e. g., Schafer Baking Co. v. Greenberg, 51 Ga.App. 324, 325, 180 S.E. 499, 501), so the pronouncement that "where the amount of defendant's liability . . . (is) substantially less than the amount sued for, a finding for attorney fees was unauthorized" (Schafer Baking Co., supra), was, if not mere dictum, perhaps perceived merely as a means of measuring the evidence to determine bad faith. Here, too, we fail to see more than a coincidental connection; the presence or absence of bad faith on the part of a defendant lies solely in the evidence of his conduct in dealings with the plaintiff out of which the suit arose (Southern Bell, supra, 141 Ga.App. p. 222, 233 S.E.2d 9), and not in the plaintiff's ability to prove up his damages, which can unquestionably be dependent on a spate of factors unrelated to the defendant's moral culpability. Nevertheless, the rule has assumed the force of law, perhaps culminating most unfortunately in University Computing Co. v. Lykes-Youngstown Corp., 5 Cir., 504 F.2d 518, 548, where the court denied an attorney fees award even though it expressly found bad faith in the defendant's conduct.

The problem in logic presented by this "gloss" which some of our cases have placed on the requirements of Code § 20-1404 (University Computing Co., supra) is manifest in cases dealing with injunctions. In B-X Corp. v. Jeter, 210 Ga. 250(3), 255, 78 S.E.2d 790, the court approved an award of attorney fees, though there were no damages awarded, because the defendant had acted in bad faith. In Adams v. Cowart, 224 Ga. 210, 215, 160 S.E.2d 805, a later injunction case, the court, being explicitly faced with the dilemma of having to justify the award of attorney fees where there were no damages awarded, merely cited B-X Corp., supra, as authority that injunction cases are exceptions to the rule which prohibits attorney fees where the jury has found no damages or has found substantially less than was prayed. The rationale that would distinguish injunction cases from other cases where there is actual bad faith but less damages awarded than claimed, is not explained. In G.E.C. Corp. v. Levy, 126 Ga.App. 604, 608, 191 S.E.2d 461, a case not dealing with an injunction, the court had to rely on the injunction exception case, Adams, supra, to approve the attorney fees award.

The seed of all this confusion first appears in Southern Mut. Ins. Co. v. Turnley, 100 Ga. 296, 304, 27 S.E. 975, 978 and Queen Ins. Co. v. Peters, 10 Ga.App. 289, 294(4), 73 S.E....