Nunn v. Smith, 601
| Decision Date | 24 May 1967 |
| Docket Number | No. 601,601 |
| Citation | 270 N.C. 374,154 S.E.2d 497 |
| Court | North Carolina Supreme Court |
| Parties | Melvin C. NUNN, trading as Liberty Farm and Garden Supply, Liberty, N.C., v. J. I. SMITH, Liberty, N.C. |
Gerald C. Parker, Liberty, for plaintiff.
No counsel contra.
Defendant was not present in court or represented by counsel and, of course, motion for nonsuit was not made at the close of plaintiff's evidence. Ordinarily, failure to make the motion amounts to a waiver. G.S. § 1--183. However, it is not error for the court to enter a judgment as of nonsuit on its own motion when the evidence would justify a directed verdict, a nonsuit and directed verdict having the same legal effect. Ferrell v. Metropolitan Life Insurance Co., 208 N.C. 420, 181 S.E. 327. And the court may direct a verdict against the party who has the burden of proof if the evidence offered, when taken as true, fails to make out a case. Strigas v. Durham Insurance Co., 236 N.C. 734, 73 S.E.2d 788; Arnold v. Ray Charles Enterprises, Inc., 264 N.C. 92, 141 S.E.2d 14.
Therefore, taking all of plaintiff's evidence as true, we must decide whether the trial court erred in refusing to submit to the jury the issue of punitive damages and the issue of whether plaintiff was entitled to execution against the person of defendant.
The trial judge correctly ruled in not submitting the issue of punitive damages to the jury
In the case of Swinton v. Savoy Realty Co., 236 N.C. 723, 73 S.E.2d 785, plaintiffs, who were aged and uneducated Negroes, instituted action to recover damages for fraudulent misrepresentations as to the amount of land included in a lot purchased by them from defendants. The Court, holding that plaintiffs were not entitled to punitive damages in their action for fraud merely upon a showing of misrepresentations which constituted the cause of action, without more, said:
'* * * "Punitive damages' are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct.' * * *
'In some cases, in actions to recover damages for fraud, where punitive damages are asked, it is suggested that a line of demarcation be drawn between aggravated fraud and simple fraud, with punitive damages allowable in the one case and refused in the other. In a note in 165 A.L.R. 616, it is said: 'All that can be said is that to constitute aggravated fraud there must be some additional element of asocial behavior which goes beyond the facts necessary to create a case of simple fraud.' * * *
See also Horne v. Cloninger, 256 N.C. 102, 123 S.E.2d 112; Lutz Industries, Inc., v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333.
Here, taking all plaintiff's evidence as true, the record is void of evidence of insult indignity, malice, oppression or bad motive, and the facts upon which plaintiff would recover punitive damages are the same facts on which he bases his cause of action. Therefore, plaintiff cannot prevail.
G.S. § 1--410 provides in what cases the defendant may be arrested in civil matters. The statute is divided into five subdivisions, each specifying one or more classes of cases in which a defendant may be arrested. From an examination of the record, the right to arrest in the instant case is claimed by virtue of sub-division (4) of G.S. § 1--410, which is as follows: 'When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought, in concealing or disposing of the property for the taking, detention or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit.'
Article I, § 16, of the Constitution of North Carolina provides: 'There shall be no imprisonment for debt in this State, except in cases of fraud.'
This constitutional provision against imprisonment for debt has been held to apply to debt in the strict sense of an obligation arising out of contract, and hence would not apply to contracts involving fraud, including fraud in contracting the debt or incurring the obligation. Melvin v. Melvin, 72 N.C. 384.
An essential prerequisite to plaintiff's right to body execution is that, where there has not already been a lawful arrest under G.S. § 1--410, the complaint or affidavit must allege such facts as would have justified an order for such arrest. G.S. § 1--311. Houston v. Walsh, 79 N.C. 35. Plaintiff's complaint alleges a debt contracted by means of fraud, which is sufficient to support an order of arrest under G.S. § 1--410(4).
G.S. § 1--311 contemplates three classes whereby execution may be had on the body: (1) Where the cause of arrest does not appear in the complaint, but appears by affidavit. (2) Where the cause of arrest is set forth in the complaint, but is based on facts which are collateral and extrinsic to plaintiff's cause of action. (3) Where the facts showing the cause of arrest as set forth in the complaint are the same or essential to those on which plaintiff bases his cause of action. Peebles v. Foote, 83 N.C. 102. In the instant case, it appears that the facts alleged by plaintiff to show his cause of action and recover damages are the same as those on which he bases his cause of arrest in order that he might have body execution. This is the situation contemplated in sub-division number three (3) above.
The judgment of default final entered by the clerk of superior court determined only that plaintiff was entitled to the amount of actual compensatory damages as represented by the total of the two checks, with interest thereon. The judgment specifically stated that the issue as to body execution was to be tried by jury in the superior court. In Doyle v. Rush, 171 N.C. 10, 86 S.E. 165, it is stated:
We must conclude that the trial judge entered judgment of nonsuit on the ground that the evidence elicited by plaintiff did not support the allegations contained in the complaint and therefore did not warrant submission to the jury.
The essential elements of actionable fraud are a definite and specific representation, which is materially false, made with knowledge of its falsity or in culpable ignorance of the truth, and with fraudulent intent, which representation is reasonably relied on by the other party to his damage. Leggett Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455; City of New Bern v. White, 251 N.C. 65, 110 S.E.2d 446.
Here, plaintiff depends solely upon the fact that two checks were issued and returned marked 'Insufficient funds' to sustain...
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Greene v. Nichols, 358
...he had the burden of proof, NOTHING. Hence, the judgment of nonsuit was proper.' Id. at 728, 127 S.E.2d at 513. Accord, Nunn v. Smith, 270 N.C. 374, 154 S.E.2d 497; Spruill v. Northwestern Mut. Life Insurance Co., 120 N.C. 141, 148, 27 S.E. 39, 42. See Roberts v. Pilot Freight Carriers, Inc......
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...awarded above and beyond actual damages and never are granted as compensation. Id. at 113, 229 S.E.2d at 302; Nunn v. Smith, 270 N.C. 374, 377, 154 S.E.2d 497, 498, 499 (1967); Overnite Transportation Co. v. International Brotherhood of Teamsters, 257 N.C. 18, 30, 125 S.E.2d 277, 286 (1962)......
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...that plaintiff cannot prove entitlement to punitive damages. See Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975); Nunn v. Smith, 270 N.C. 374, 154 S.E.2d 497 (1967). I therefore dissent from the majority decision reversing summary judgment for defendant on the so-called 'second cause of......
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