Standard Oil Co. v. Johnson

• Decision Date: 28 May 1964
• Docket Number: 2 Div. 433
• Citation: 165 So.2d 361,276 Ala. 578
• Parties: STANDARD OIL COMPANY v. Murray L. JOHNSON.
• Court: Alabama Supreme Court

Page 361

165 So.2d 361

276 Ala. 578

STANDARD OIL COMPANY v. Murray L. JOHNSON.

2 Div. 433.

Supreme Court of Alabama.

May 28, 1964.

David J. Vann, White, Bradley, Arant, All & Rose, Birmingham, for appellant.

Richard L. Jones, Birmingham, and P. M. Johnston, Aliceville, for appellee.

COLEMAN, Justice.

This is an appeal by defendant from judgment for plaintiff in action for fraud based on principles stated in § 108, Title 7, Code 1940, which recites:

' § 108. (8049) (4298) . . .. Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitute legal fraud.'

Errors complained of are that the court erred in: rulings on demurrers to certain pleadings, refusing affirmative charges for defendant, refusing a charge requested by defendant, and overruling defendant's motion for new trial.

Assignments 13 and 15 recite:

'13. The verdict of the jury and the judgment of the Court thereon is contrary to the preponderance of the evidence in the case. (R. 30)'

'15. The verdict of the jury and the judgment of the court thereon is contrary to the legal evidence in the case. (R. 30)'

These assignments allege no error committed by the trial court and are insufficient to present any question for review. Thomas v. Brook, 274 Ala. 462, 149So.2d 809, and cases there cited.

Assignments 17 and 18 recite:

'17. The verdict of the jury and the judgment of the Court thereon is contrary to the law of the case. (R. 30)'

'18. The verdict of the jury and the judgment of the Court thereon is contrary to the law of the case as expressed by the Court in its oral charge and in the Appellant's requested written charges as read by the Court to the jury. (R. 30, R. 201-208).'

Such assignments of error raise nothing for review. Thomas v. Brook, supra.

In brief outline, plaintiff charges that defendant furnished to its distributor a tank mounted on a truck; that plaintiff was employed by defendant's distributor to deliver petroleum products to customers; that plaintiff, whth defendant's knowledge and consent, used the tank for making deliveries to customers; that defendant represented to plaintiff that the tank had a volume capacity of 1066 gallons; that said representation was false in that said tank had a capacity of 1069 gallons; that, as a proximate consequence of the misrepresentation, plaintiff was caused to pay to defendant for alleged shortages $2,000.00, was accused of theft and embezzlement, suffered injury to his reputation, suffered impairment to his credit, was caused to lose his employment, and his employability was impaired.

The case was submitted to the jury on Count A which recites:

'Count A

'The Plaintiff claims of the Defendant Ten Thousand ($10,000) Dollars damages for that heretofore in to-wit, November, 1950, and continuously therefrom to the date of this complaint, Defendant represented to Plaintiff that a certain petroleum products delivery tank, property of the Defendant and used by the Plaintiff with the knowledge and consent of the Defendant, had a volume capacity of 1066 gallons; that Defendant acted on said representation in that he relied upon said represented volume capacity in gauging the sale and delivery of petroleum products to wholesale and retail customers;

'That heretofore, in to-wit: December, 1949, the Plaintiff was employed under a contract or arrangement of employment by A. T. Owings, agent of the Defendant, who was then and there acting in the line and scope of his employment as a Standard Oil product distributor, as a tank truck driver of a petroleum products delivery truck whereby the Plaintiff and said A. T. Owings agreed to share equally in the profits derived from the sale of petroleum products to wholesale and retail customers from the tank truck driven by Plaintiff, the Plaintiff was to be held accountable for any and all shortages of money or products, the Defendant was to furnish a properly gauged and calibrated tank and accessories to hold and transport such petroleum products, the Defendant was to well and truly audit, and the said A. T. Owings was to furnish the chassis of the delivery truck on which such properly gauged and calibrated tank and accessories of the Defendant was mounted or to be mounted. The Defendant had knowledge of and acquiesced in the Plaintiff's said contractual relationship. That Defendant represented that it did have peculiarly appropriate facilities for performing such gauging, calibration and audit functions and that Plaintiff relied on such representations.

'That said representation was false in that said tank had a volume capacity of 1069 gallons.

'That as a proximate consequence of said misrepresentation by the Defendant the Plaintiff was injured and damaged as follows: He was caused to pay to the Defendant for alleged shortages large sums of money, to-wit: Two Thousand ($2,000) Dollars; he was accused of theft and imbezzlement; he suffered injury to his reputation; he was embarrassed, humiliated and chagrined; he was caused to borrow large sums of money at a high rate of interest; his credit was impaired; he was caused to lose his employment and his employability was impaired; all to Plaintiff's damage in the sum of Ten Thousand ($10,000); hence this suit.'

Assignment 7 is that the court erred in overruling defendant's demurrer to Count A. Defendant does not specify which ground of demurrer was good, but its argument appears to be in support of Ground 19 which recites that 'it does not appear that Plaintiff and the Defendant were opposite parties in any legal relationship which would subject the Defendant to liability under the facts alleged in the complaint.'

Defendant's argument is that, 'The innocent mistake provisions of Title 7, § 108, are unusual; they apply only where the parties are 'opposite parties." and that here there was no contractual or employment relationship such as to give rise to such a high degree of responsibility.

Neither the statute nor the cases cited, as we understand them, require that, in order to recover under § 108, Title 7, for damage caused by misrepresentation made by mistake and innocently, the deceived party must be in a contractual or employment relation to the defendant. We are of opinion that the statute does not make, between misrepresentations made wilfully to deceive and misrepresentations made by mistake and innocently, the distinction which defendant now contends for. We do not think an employment or contractual relation is essential in either case.

'An unbending rule can not be laid down for all cases, where, upon the representations of an uninterested preson, one trusts another, and suffers loss. Much must depend on the circumstances of the particular case.' Einstein v. Marshall, 58 Ala. 153, 163. In the Einstein case, the defendant had no employment or contractual relation with the injured party. There defendant had written a letter representing that a merchant was good for several hundred dollars of credit and that was the representation charged to be false. The opinion indicates that the defendant would be liable if the representation was knowingly false or was made recklessly without the maker knowing whether it be true or false, and acted on to plaintiff's loss.

In another case, this court said:

'. . . Under section 8049 (§ 108, Title 7) the misrepresentation must be of material fact, made to be relied upon as an inducement, and must be relied upon to the injury of the other perty. In such case an intent to deceive is not essential.' (Par. Supplied.) Cartwright v. Braly, 218 Ala. 49, 52, 117 So. 477, 480.

According to the allegations of Count A, the misrepresentation of the capacity of the tank was the misrepresentation of a material fact; the tank was the property of defendant and was used by plaintiff, with defendant's knowledge and consent, to deliver petroleum products under an agreement between plaintiff and defendant's agent. We think these allegations sufficient to show that the alleged misrepresentation was made to be relied upon by plaintiff and as an inducement to plaintiff, and that plaintiff did, in making delivery of petroleum products, rely on the representation to his injury. Accordingly, we hold that the demurrer to Court A was overruled without error.

To the complaint, defendant pleaded the general issue; that plaintiff consented to the injuries for which damages are claimed; estoppel; the statutes of limitation of one, three, and six years; and the statute of limitation of one year from the date of discovery of the fact alleged to constitute fraud, § 42, Title 7, Code 1940, which recites:

' § 42. In actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit.'

The court overruled plaintiff's demurrers to all pleas except the plea of estoppel, Plea 4. The court sustained plaintiff's demurrer to Plea 4 and this ruling is Assignment 9. Plea 4 recites:

'PLEA FOUR

'The monies alleged to have been paid to the Defendant were paid by the Plaintiff, more than 6 years prior to the filing of this suit upon the representation to the Defendant by the Plaintiff that the Plaintiff had misappropriated for his own use an equivalent amount of funds and gasoline, the property of Defendant, and that such misappropriations had been deliberately concealed from the Defendant through the reporting of fictitious inventories to the Defendant and by the transmission of checks by the Plaintiff to the Defendant, for which Plaintiff knew there were no funds on deposit in the bank upon which the checks were drawn at the time such checks were sent to the Defendant. The Defendant further avers that the amount of monies paid De...