Pittman v. Galloway, 0093

• Court: Court of Appeals of South Carolina
• Writing for the Court: SHAW
• Citation: 313 S.E.2d 632,281 S.C. 70
• Parties: Jerry N. PITTMAN, Appellant, v. J.D. GALLOWAY, Jr., and Hillcrest of Rock Hill, Inc., Respondents.
• Docket Number: No. 0093,0093
• Decision Date: 24 February 1984

Page 632

313 S.E.2d 632 281 S.C. 70 Jerry N. PITTMAN, Appellant,
v.
J.D. GALLOWAY, Jr., and Hillcrest of Rock Hill, Inc., Respondents. No. 0093. Court of Appeals of South Carolina. Feb. 24, 1984.

Page 633

[281 S.C. 72] Brian S. Wade, of Gaines & Wade, P.A., Columbia, for appellant.

J. Buford Grier, Rock Hill, for respondents.

SHAW, Judge:

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.

Page 634

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.

[281 S.C. 73] 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)....