Pittman v. Galloway
| Decision Date | 24 February 1984 |
| Docket Number | No. 0093,0093 |
| Court | South Carolina Court of Appeals |
| Parties | Jerry N. PITTMAN, Appellant, v. J.D. GALLOWAY, Jr., and Hillcrest of Rock Hill, Inc., Respondents. |
Brian S. Wade, of Gaines & Wade, P.A., Columbia, for appellant.
J. Buford Grier, Rock Hill, for respondents.
This is an appeal from a tort action in which the appellant-Pittman alleges fraud and deceit and negligence on the part of the respondents in making misrepresentations concerning the sale of land. Pittman and his wife purchased the first lot in a subdivision being developed by the respondent-Hillcrest, Inc. Pittman purchased the lot in question after being informed by the respondent-Galloway, the president of Hillcrest, that all property owners in the subdivision would be able to use a lake located therein. After fishing in the lake for three years, Pittman's access to the lake was lawfully denied by a subsequent property owner. Pittman brought this suit when Hillcrest refused to repurchase the lot. After being instructed only on the cause of action for fraud and deceit, the jury returned a verdict for Hillcrest and Galloway. We reverse and remand for a new trial.
This case presents three issues for our determination: (1) did the trial judge err in refusing to charge the jury on the law of negligence or recklessness; (2) did the trial judge err in not granting a directed verdict or judgment non obstante verdicto; (3) did the trial judge err in excluding testimony as to the respondents' business conduct subsequent to the transaction sued on? This being an action at law, on appeal of a case tried by a jury, the jurisdiction of the Court of Appeals extends merely to the correction of errors of law; a factual finding of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).
In his complaint, Pittman set forth two causes of action, one based on fraud and the other on negligence. The trial judge only charged the jury on the issue of fraud. No charge on the issue of negligence was given apparently because the trial judge believed that there was no evidence of negligence and because the second cause of action merely restated a claim based on fraud.
Article V, Section 17 of the South Carolina Constitution requires that "Judges shall not charge juries in respect to matters of fact, but shall declare the law". The trial court acts correctly when it charges the jury on the law framed by the issues as made by the pleadings and the facts developed by the evidence in support of those issues. Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977); Speizman Knitting Machines Corp. v. Fretwell, 264 S.C. 168, 213 S.E.2d 586 (1975). Section 15-13-20 of the 1976 S.C.Code of Laws requires that the pleadings be liberally construed with a view to substantial justice between the parties. See also Manning v. Dial, 271 S.C. 79, 245 S.E.2d 120 (1978). It is fundamental that pleadings must be liberally construed in favor of the pleader. Conner v. Williams, 187 S.C. 119, 197 S.E. 211 (1938); Mullikin v. Southern Bleachery, 184 S.C. 449, 192 S.E. 665 (1937).
In his second cause of action, Pittman states that the defendants (respondents here) "were careless, reckless and negligent in the following particulars". Six particulars are then listed which are claimed to be "the direct and proximate cause of the damages suffered" by Pittman. While four of the six particulars do charge Galloway with knowingly or intentionally misrepresenting the facts, the other two do not.
In setting forth a cause of action sounding in tort and based upon negligence, it is necessary to use such words as will convey the idea that there was negligence; there are no words more appropriate than "negligently" and "carelessly" in such cases. Anderson v. Western Union, 85 S.C. 252, 67 S.E. 232, rehearing denied 85 S.C. 252, 67 S.E. 477 (1910). The absence of the element of "knowing a reckless falsity" distinguishes mere negligent misrepresentations from fraud. Gordon-Gallop v. Cincinnati Insurance, 274 S.C. 468, 265 S.E.2d 38 (1980). Here, Pittman alleged that Galloway was "careless", "reckless", and "negligent". Two of the six particulars do not charge Galloway with a knowing or intentional misrepresentation. Thus, the second cause of action is not a restatement of a claim for fraud.
Pittman, as the plaintiff, is also required to specify in his complaint the grounds upon which he bases his cause of action for negligence. Geddings v. Atlantic Coast Line, 91 S.C. 477, 75 S.E. 284 (1912). Paragraph six of the first cause of action, which was incorporated in the second cause of action, stated that the respondents' "misrepresentations were a material factor in the plaintiff's decision to buy said lot". Paragraph fourteen of the second cause of action states that the defendants were careless, reckless and negligent "in making substantial misrepresentations" and "in continuing to pursue a flagrant course of misrepresentation". The evidence shows that Pittman was told that all property owners could use the lake. While this was true when Pittman purchased his lot, Galloway never told Pittman that it was possible that his access to the lake could be denied in the future. Based upon this evidence, we hold that the facts support a cause of action for negligence. Tucker v. Reynolds, supra. Speizman Knitting, supra. The trial judge erred in not charging the jury on the issue of negligence.
Even if the second cause of action was defective, Galloway did not demurr to it, make a motion to strike, or raise the issue in his answer. He was content to go to trial without any challenge to the complaint. In this situation, inclusion of both theories of recovery, fraud and negligence, in the jury instructions would not be error. Carolina Home Builders v. Armstrong Furnace, 259 S.C. 346, 191 S.E.2d 774 (1972). When an act of negligence is not specified in the pleadings but testimony relating thereto is introduced without objection, the act of negligence may ordinarily be considered by the jury. Johnson v. Finney, 246 S.C. 366, 143 S.E.2d 722 (1965); Mize v. Blue Ridge Ry. Co., 219 S.C. 119, 64 S.E.2d 253 (1951).
Pittman next claims that he was entitled to a directed verdict or judgment n.o.v. In order to be so entitled as a matter of law,...
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