Oates v. Glover, 6 Div. 524.

• Decision Date: 22 March 1934
• Docket Number: 6 Div. 524.
• Citation: Oates v. Glover, 228 Ala. 656, 154 So. 786 (Ala. 1934)
• Parties: OATES v. GLOVER.
• Court: Alabama Supreme Court

154 So. 786

228 Ala. 656

OATES v. GLOVER.

6 Div. 524.

Supreme Court of Alabama

March 22, 1934

Rehearing Denied May 31, 1934.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for deceit by E. E. Glover against J. F. Oates. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals.

Affirmed.

Vassar L. Allen, of Birmingham, for appellant.

Wm. B McCollough, of Birmingham, for appellee.

KNIGHT Justice.

Action for deceit in the sale of an automobile.

The plaintiff stated his case originally in three counts, but count 2 was eliminated before the case was given to the jury or was charged out by the court.

To these counts the defendant filed demurrers, separately and severally, but, before the demurrers were passed upon, the plaintiff amended counts 1 and 3, and defendant refiled his demurrers thereto.

We deem it only necessary to say, with reference to counts 1 and 3 that they are substantially in the form prescribed by the Code, and were not subject to any ground of defendant's demurrer here argued. In fact, we scarcely see just how they could have been more specific, either in their averment of facts, or in the statement or averment of damages sustained by plaintiff. No special damages are claimed as supposed by appellant.

This being an action for deceit, if the plaintiff suffered no actual damage from the fraud, there would be no cause of action, and the plaintiff could not recover even nominal damages. Otherwise stated, "Since injury is not merely a consequence flowing from the fraud, but is an essential element of the wrong, there can be no recovery of nominal damages where the plaintiff fails to show injury sufficient to sustain an action of fraud." 27 Corpus Juris, § 227.

From the foregoing, as a necessary corollary, it would follow that if the plaintiff did sustain actual damages, as the result of the fraud, though the exact amount of the same in dollars and cents may not be shown, the plaintiff would at least be entitled to recover nominal damages.

The evidence on the issue of fraud, vel non, was in direct and sharp conflict. There was also evidence tending to show that the plaintiff suffered some actual damage from the wrong. The jury determined the issue, as to deceit in the sale of the automobile, in favor of the plaintiff, and there being some evidence also tending to show that plaintiff suffered some actual damage, such finding authorized the jury, under the evidence, in awarding the plaintiff at least nominal damages.

The plaintiff...