McClure v. Thomas Cook, Inc., 61534

• Court: United States Court of Appeals (Georgia)
• Citation: 280 S.E.2d 876,158 Ga.App. 467
• Docket Number: No. 61534,61534
• Parties: McCLURE v. THOMAS COOK, INC. et al.
• Decision Date: 05 May 1981

Page 876

280 S.E.2d 876

158 Ga.App. 467

McCLURE v. THOMAS COOK, INC. et al.

No. 61534.

Court of Appeals of Georgia.

May 5, 1981.

H. Lane Young, Atlanta, for appellant.

R. Clay Porter, Douglas Dennis, Atlanta, for appellees.

SHULMAN, Presiding Judge.

Plaintiff appeals from the grant of defendant's motion for directed verdict. We reverse.

Desiring to travel to Europe on a tour, plaintiff contacted representatives of defendant-Thomas Cook, Inc., a travel agency. Plaintiff, who was 23 years old at the time these events took place, alleged that she was promised by defendant's representatives that her selected tour would include a cross section of age groups and that one of defendant's agents told her that there would "absolutely" be young people her age on the tour. At one point prior to the time her tour was to begin, plaintiff contemplated changing tours but was dissuaded, she insists, by the promise of defendant's agent that there would be young people on her tour. The agent allegedly told plaintiff that the tour to which she considered changing would be comprised of elderly persons.

Plaintiff subsequently embarked on her tour of Europe but, after spending one night in Italy, returned to the United States upon discovering that all the persons on her tour were elderly that there were no persons her age on the tour. Plaintiff thereafter brought the present action against defendant for fraud and breach of contract.

1. Defendant insists that the grant of a directed verdict in its favor was proper. Defendant asserts that plaintiff failed to set forth a claim for fraud, in that the statements upon which she allegedly relied concerning the presence of a cross section of age groups on the tour were merely promissory in nature as to future acts.

Even assuming that the complained of representations (or misrepresentations) constituted statements promissory in nature as to future acts, the plaintiff can nonetheless recover in fraud if she can show that the agents of defendant knew the representations were false when they made them, or that the agents made such statements recklessly without knowledge of their truth or falsity. See Code Ann. § 37-703. See also Vaughan v. Oxenborg, 105 Ga.App. 295(1), 124 S.E.2d 436; Williams v. Southland Corp., 143 Ga.App. 111(1), 237 S.E.2d 639; Coral Gables Corp. v. Hamilton, 168 Ga. 182(8), 147 S.E. 494; McCravy v. McCravy, 244 Ga. 336(2), 260 S.E.2d 52. Plaintiff alleged that defendant knew or should have known of the falsity of its representations. These allegations remain unrefuted by defendant. The trial court therefore erred in granting a directed verdict to defendant on plaintiff's claim of fraud on the ground that plaintiff could not recover for fraud based on a promise of a future act.

For the foregoing reasons, we refuse to hold that plaintiff's testimony substantiating what is set forth above failed to establish a prima facie claim for fraud. See Hardy v. Gordan, 146 Ga.App. 656, 247 S.E.2d 166, for the elements of fraud. A verdict in favor of defendant was, therefore, not demanded by the evidence. Issues of fact remain for jury resolution, rendering the grant of a directed verdict in favor of defendant improper.

2. Likewise, we find the trial court's grant of a directed verdict in favor of defendant on plaintiff's breach of contract allegation improvident.

The plaintiff established by her testimony that the representation that young people would be on her chosen tour (and that she would have a roommate close...