Kwasny v. Driessen, Docket No. 11352

• Decision Date: 28 August 1972
• Docket Number: Docket No. 11352,No. 2,2
• Citation: 42 Mich.App. 442,202 N.W.2d 443
• Parties: Joseph G. KAWSNY, and Catherine Kwasny, his wife, Plaintiffs- Appellees, Cross-Appellants, v. Grace DRIESSEN, Defendant, and Lewis R. Evans, and Bernice I. Evans, his wife, and Richard H. Oberschulte and Ida M. Oberschulte, his wife, Defendants-Appellants, Cross-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 443

202 N.W.2d 443

42 Mich.App. 442

Joseph G. KAWSNY, and Catherine Kwasny, his wife, Plaintiffs- Appellees, Cross-Appellants, v. Grace DRIESSEN, Defendant, and Lewis R. Evans, and Bernice I. Evans, his wife, and Richard

H. Oberschulte and Ida M. Oberschulte, his wife,

Defendants-Appellants, Cross-Appellees.

Docket No. 11352.

Court of Appeals of Michigan, Division No. 2.

Aug. 28, 1972.

Rehearing Denied Oct. 13, 1972.

Released for Publication Dec. 8, 1972.

Philip E. Rowston, Bloomfield Hills, Jeannette A. Paskin, Detroit, of counsel, for defendants-appellants.

Larry S. Davidow, Detroit, for plaintiffs-appellees.

Before BRONSON, P.J., and DANHOF and VanVALKENBURG ^*, JJ.

DANHOF, Judge.

Plaintiffs commenced this action alleging fraud against the defendants Evans and Oberschulte and Driessen. The jury returned a verdict in favor of plaintiffs and against defendants Evans and Oberschulte in the amount of $14,000 but found no cause of action against defendant Driessen. Defendants Evans and Oberschulte have appealed. Plaintiffs filed a cross-appeal but it has not been briefed or argued and hence it will not be considered.

Defendants first allege that the verdict was against the great weight of the evidence. Since defendants did not file a motion for a new trial this will not be considered on appeal. Walls v. Transamerican Freight Lines, 37 Mich.App. 307, 194 N.W.2d 422 (1971).

The real issue raised is whether defendants' motion for a directed verdict after the plaintiffs' proofs or motion for judgment notwithstanding the verdict should have been granted. The elements of actionable fraud are: (1) that the defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that the plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. See Papin v. Demski, 17 Mich.App. 151, 169 N.W.2d 351 (1969), A. & A. Asphalt Paving Co. v. Pontiac Speedway, Inc., 363 Mich. 634, 110 N.W.2d 601 (1961).

Viewing the evidence in a light most favorable to the plaintiff, examination of the record reveals the following facts. Defendants Evans and Oberschulte owned the vendees' interest in a land contract covering a trailer park. Defendant Lewis Evans had a construction industry background and a familiarity with sewage disposal and electric wiring. Defendant Lewis Evans managed the trailer park, although both defendants Evans and Oberschulte were owners.

Plaintiff Joseph Kwasny entered this country as an immigrant from Poland in 1949 and up until he purchased the trailer park was employed as a sausage maker. He had no prior business experience, but had saved his money and decided to go into business for himself. Plaintiff Joseph Kwasny was shown the property by defendant Lewis Evans and the real estate agent, and on viewing a lake at the rear of the property inquired of defendant Lewis Evans as to why the water appeared to be polluted. Defendant Lewis Evans stated that it was because of the leaves and seeds that had fallen into the water. Defendant Lewis Evans represented that business was good, that everything was in good working order, and also showed the plaintiff Joseph Kwasny a prior licensing certificate issued by the county. Plaintiffs purchased the vendees' interest in November, 1962.

As a matter of fact there had been a continuing health problem regarding the sewage disposal, although it did not affect the licensing until after plaintiffs acquired the property. Independent testimony indicated that the defendants had had sewage problems for some time, particularly with the drainage, and this was the reason for the pollution of the lake.

Based on the record the elements of action for fraud were met and a question of fact was created concerning the misrepresentations of the sewage system, and the trial judge properly denied the motions for directed verdict and judgment notwithstanding the verdict.

Defendants next contend that the trial court should have granted their motion for accelerated judgment on the basis that plaintiffs' cause of action was barred by the 3-year statute of limitations. The question is whether the 3-year limitations statute in M.C.L.A. § 600.5805; M.S.A. § 27A.5805 governs or the general 6-year statute of limitations found in M.C.L.A. § 600.5813; M.S.A. § 27A.5813. Defendants have cited State Mutual Cyclone Insurance Co. v. O. & A. Electric Cooperative, 381 Mich. 318, 161 N.W.2d 573 (1968), as controlling. A close reading of State Mutual Cyclone indicates that it is not applicable to the instant case, but rather, this case is controlled by Sweet v. Shreve, 262 Mich. 432, 247 N.W. 711 (1933), wherein the Supreme Court stated, p. 435, 247 N.W. p. 712:

'Furthermore, we do not believe that the present action constitutes one for injuries to person or...