Travel Wholesale, Inc. v. Herren

• Decision Date: 04 September 1974
• Docket Number: No. 3,Nos. 49511,49565,s. 49511,3
• Parties: TRAVEL WHOLESALE, INC. v. Shirley HERREN. Shirley HERREN v. TRAVEL WHOLESALE, INC
• Court: Georgia Court of Appeals

Page 571

208 S.E.2d 571

132 Ga.App. 560

TRAVEL WHOLESALE, INC. v. Shirley HERREN.

Shirley HERREN v. TRAVEL WHOLESALE, INC.

Nos. 49511, 49565.

Court of Appeals of Georgia, Division No. 3.

Sept. 4, 1974.

Feagin & Feagin, John E. Feagin, Atlanta, for appellant.

Nancy E. Barron, Atlanta, for appellee.

Syllabus Opinion by the Court

WEBB, Judge.

Travel Wholesale, Inc. brought suit against Shirley Herren on a promissory note in the sum of $1,875, which allegedly represented the amount of advance commissions paid by plaintiff to defendant in regard to a charter flight to Spain which she helped organize. The note, attached to the complaint as an exhibit, provided that defendant would pay back the sum on demand in the event the flight did not operate, and that the commissions paid to defendant were not earned until the flight returned and all invoices were paid.

Defendant answered and counterclaimed pro se, denying signing a promissory note, and alleging that she had only signed a blank receipt for her salary which Mr. Ken Erwin, plaintiff's president, had represented to her was for tax purposes only so that he could deduct the amount of the salary; that the promissory note was written in above her signature after she left the office; that plaintiff and Erwin had her organize a travel club which, unknown to her, was a sham company set up to create illegal charter flights booked through Erwin's corporation; that she was unaware of the illegality; that Erwin used defendant's residence as the club's business address as part of the sham; that passengers came to Atlanta for the Spain flight but were left stranded when federal authorities canceled the flight; that Erwin, president and owner of the corporation, closed his office and left town, and the passengers began calling defendant demanding their money back causing her fright, fear, etc. Defendant sought $2,500 actual damages for work performed for plaintiff, '$1,000 damages for copying in a promissory note against me instead of a receipt as he promised,' and $5,000 punitive damages.

The jury returned a verdict for defendant in the amount of $325 for work performed, $1,000 for fraud and deceit with respect to the promissory note, and $1,800 punitive damages. The trial court overruled plaintiff's motion for new trial, but struck the item of recovery for fraud. Plaintiff appeals, and defendant cross appeals. Held:

1. Plaintiff submitted no written requests to charge the jury, and there is no merit in its enumeration of error that the court erred 'in refusing to further charge the jury on the legal theories upon which the (defendant) was seeking damages against the (plaintiff).' Pritchard v. Myers, 219 Ga. 290, 291(2), 133 S.E.2d 95; General Oglethorpe Hotel Co. v. Lanier, 99 Ga.App. 401, 402(3), 108 S.E.2d 769; Brown v. Kirkland, 108 Ga.App. 651(5), 134 S.E.2d 472; Elam v. Atlantic C.L.R. Co., 115 Ga.App. 656, 658(7), 155 S.E.2d 644; Moon v. State, 120 Ga.App. 141, 145(15), 169 S.E.2d 632; Sapp v. Kitchens, 124 Ga.App. 764, 765(5), 186 S.E.2d 121; A-1 Bonding Service v. Hunter, 125 Ga.App. 173, 186 S.E.2d 566 and cases cited; Bailey v. Todd, 126 Ga.App. 731, 733, 191 S.E.2d 547.

2. (a) Plaintiff contends that defendant should not have relied upon Erwin's good faith and honesty and trusted him to complete the receipt as represented, and that by doing so she defeated her right to recovery therefor as a matter of law. This contention is without merit.

Whether an injured party is justified in relying upon a misrepresentation, or whether he has used proper diligence in preventing the fraud and deceit, are ordinarily questions for determination by the jury. Fenley v. Moody, 104 Ga. 790, 30 S.E. 1002; Braselton Bros., Inc. v. Better Maid Dairy Products, 222 Ga. 472, 150 S.E.2d 620, reversing this court's judgment in 113 Ga.App. 382, 148 S.E.2d 71; Cato v. English, 228 Ga. 120, 184 S.E.2d 161; Tingle v. Barvill, 228 Ga. 332, 336(2), 185 S.E.2d 539; Adkins v. Lee, 127 Ga.App. 261, 193 S.E.2d 252.

We find nothing in the record to take this case out of the general rule. 'Accordingly, we apply the rule of Cheney v. Powell, 88 Ga. 629, 15 S.E. 750; City of Dalton v. United States Fidel. etc. Co., 216 Ga. 602, 118 S.E.2d 475; Braselton Bros. v. Better Maid Dairy Products, Inc., 222 Ga. 472, 150 S.E.2d 620; A. M. Kidder & Co. v. Clement A. Evans & Co., 111 Ga.App. 484, 142 S.E.2d 269, holding that the perpetrator of a gross and vicious fraud should not be permitted to set up as a defense that the plaintiff should not have relied upon his good faith and honesty and that whether, under these...