Pilkington v. McBain
| Decision Date | 19 February 1980 |
| Docket Number | No. 21152,21152 |
| Citation | 262 S.E.2d 916,274 S.C. 312 |
| Court | South Carolina Supreme Court |
| Parties | Charles Henry PILKINGTON, Appellant, v. Robert D. McBAIN and Nancy E. McBain, Respondents. |
George F. Abernathy, of Odom, Terry, Abernathy & Cantrell, Spartanburg, for appellant.
Joseph M. Fullwood, Lexington, and Jean L. Perrin, Columbia, for respondents.
Appellant Charles Henry Pilkington brought this action against respondents Robert D. and Nancy E. McBain alleging fraud and seeks actual and punitive damages. The appeal is from an order sustaining respondent's demurrer to the complaint. We reverse.
On review of an order sustaining a demurrer, we are limited to a consideration of the allegations set forth in the pleading, and such allegations are presumed true. Bobo Brothers, Inc. v. South Carolina Tax Commission, 271 S.C. 18, 244 S.E.2d 519 (1978); See Crowley v. Bob Jones University, 268 S.C. 492, 234 S.E.2d 879 (1977). When under attack for alleged failure to state a cause of action, the pleading must be liberally construed in favor of the pleader and sustained if the facts and reasonable inferences to be drawn therefrom entitle him to relief on any theory of the case. Turner v. ABC Jalousie Company of North Carolina, 251 S.C. 92, 160 S.E.2d 528 (1968).
The gist of the instant complaint is that the respondents, in concert with certain others, forged appellant's signature to a "lost mortgage form" and affidavit of satisfaction pertaining to a mortgage they had previously given appellant. The satisfaction was then recorded in the office of the register of mesne conveyance for the county where the mortgage was on file. These acts of fraud, so it is further alleged, caused appellant to sustain actual and punitive damages in the amount of $300,000.00.
The demurrer challenged the sufficiency of the allegations to state a cause of action. On the strength of the case of Hopkins v. Fidelity Insurance Company, 240 S.C. 230, 125 S.E.2d 468 (1962), the lower court ruled appellant could have sustained no damage by reason of the fraudulent satisfaction since that purported instrument was a nullity, and on that basis the court sustained the demurrer. See Warr v. Carolina Power and Light Company, 237 S.C. 121, 115 S.E.2d 799 (1960).
In Hopkins, we reversed an order overruling a demurrer to an action for fraud and held it should have been sustained since the complaint showed on its face the plaintiff had suffered no damage. The specific damages alleged in that case were the monies the plaintiff would have received in an action for the wrongful death of her child had she not been fraudulently induced to sign a release of the claim. Since the release, admittedly fraudulent for purposes of the demurrer, was void Ab initio it could not operate to bar an action for wrongful death and therefore the damages alleged were unsustained.
The lower court's strict reliance on Hopkins is misplaced. Here, the complaint as drawn alleges that the appellant sustained damages. Although the damages are not specified respondent did not move to require appellant to make the allegation of damages more definite and certain. While we cannot stray beyond the four corners of the pleading to determine what appellant's damages are when...
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