Vickery v. Olin Hill Const. Co., Inc.

• Decision Date: 03 June 1980
• Docket Number: No. 7920SC789,7920SC789
• Citation: 266 S.E.2d 711,47 N.C.App. 98
• Court: North Carolina Court of Appeals
• Parties: Michael D. VICKERY and wife, Dianne A. Vickery, Plaintiffs, v. OLIN HILL CONSTRUCTION COMPANY, INC., a corporation; Moore Insurance & Realty Company., Inc., a corporation; and Rebecca Hinson, Defendants, v. Clifford McClain HELMS and wife, Marianne H. Helms; Moore Insurance & Realty Company, Inc., Third-Party Defendants.

Page 711

266 S.E.2d 711

47 N.C.App. 98

Michael D. VICKERY and wife, Dianne A. Vickery, Plaintiffs, v. OLIN HILL CONSTRUCTION COMPANY, INC., a corporation; Moore

Insurance & Realty Company., Inc., a corporation; and Rebecca Hinson, Defendants, v. Clifford McClain HELMS and wife, Marianne H. Helms; Moore

Insurance & Realty Company, Inc., Third-Party Defendants.

No. 7920SC789.

Court of Appeals of North Carolina.

June 3, 1980.

Casstevens & Hanner, P. A. by Robert P. Hanner, II, Charlotte, for plaintiffs.

Thomas, Harrington & Biedler by Larry E. Harrington, Monroe, for defendant Olin Hill Const. Co., Inc.

Griffin, Caldwell & Helder, P. A. by C. Frank Griffin, H. Ligon Bundy, and James E. Griffin, Monroe, for defendants Moore Ins. & Realty Co. and Rebecca Hinson.

Robert L. Holland, Monroe, for third-party defendants Clifford McClain Helms and wife, Marianne H. Helms.

WELLS, Judge.

On a defendant's motion for directed verdict at the close of a plaintiff's evidence, the evidence must be taken as true and considered in the light most favorable to the plaintiff, and the motion may be granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). A plaintiff is entitled to the benefit of every reasonable inference which may legitimately be drawn from his evidence. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969); Jenkins v. Starrett Corp., 13 N.C.App. 437, 186 S.E.2d 198 (1972).

We first examine the evidence in support of plaintiffs' theory that defendant Hinson was acting as the agent of Hill and Moore in these transactions. On this issue, plaintiffs' evidence tended to show that they first learned of the subject property through an advertisement placed by Moore in the local newspaper. The newspaper ad set out the names of two persons Roy Moore, Jr. and Rebecca Hinson. Plaintiff Michael Vickery telephoned Moore's office and Hinson answered the phone. Later, Moore joined an offer to purchase, executed by plaintiffs and defendant Hill, as escrow agent to acknowledge receipt of the deposit. Hinson, testifying as a witness for plaintiffs, stated that her work with Moore began in 1971, that there was a verbal agreement between Hill, Moore and herself, that she was compensated through real estate commissions, and that she sold the subject property from the Helms to Hill and then from Hill to plaintiffs, splitting the commissions with Moore. From this evidence, a jury question is presented as to whether Hinson was acting as an employee or agent of defendant Moore, or as the agent of Hill, or as an independent contractor. See, Vaughn v. Dept. of Human Resources, 37 N.C.App. 86, 245 S.E.2d 892 (1978), aff'd, 296 N.C. 683, 252 S.E.2d 792 (1979).

We next examine whether plaintiffs' evidence was sufficient to take the case to the jury on the theory of fraud as against defendants Hinson, Hill, and Moore. Plaintiffs presented evidence that Hinson was very familiar with the property and that the disputed driveway had achieved significant notoriety In selling the property to plaintiffs, Hinson did not simply state her opinion that the property included the driveway, but she used a plat showing the driveway to be included, she told plaintiffs she had measured the property line and that her measurement showed the driveway to be included, and she drew plaintiffs' attention to a stake on the ground at a spot which would have included the driveway within the property. Plaintiff presented two witnesses who testified they had informed Hinson, prior to the purchase of the land by plaintiffs, that the driveway was not on the property. This evidence is sufficient to make out a case of actionable fraud in that defendant Hinson made a definite and specific representation that the driveway was on the property, the representation was false and was made either with knowledge of its falsity or in culpable ignorance of its truth, the representation was made with the intent to deceive, and it was reasonably relied upon by plaintiffs to their deception and damage. See, Odom v. Little Rock & I-85 Corp., 299 N.C. 86, 261 S.E.2d 99 (1980); Johnson v. Owens, 263 N.C. 754, 140 S.E.2d 311 (1965); see also, Kleinfelter v. Developers, Inc., 44 N.C.App. 561, 261 S.E.2d 498 (1980); Woodward v. Pressley, 39 N.C.App. 61, 249 S.E.2d 471 (1978); Parker v. Bennett, 32 N.C.App. 46, 231 S.E.2d 10 (1977), disc. rev. denied, 292 N.C. 266, 233 S.E.2d 393 (1977). If the jury should find that plaintiffs were injured by the fraudulent representations of Hinson, then both Moore and Hill, as principals, must be held answerable for the fraudulent act of their agent.

The general rule is that a principal is responsible to third parties for injuries resulting from the fraud of his agent committed during the existence of the agency and within the scope of the agent's actual or apparent authority from the principal, even though the principal did not know or authorize the commission of the fraudulent acts. Thrower v. Dairy Products, 249 N.C. 109, 105 S.E.2d 428; King v. Motley, 233 N.C. 42, 62 S.E.2d 540; Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446; 3 C.J.S. Agency § 257; 3 Am.Jur.2d, Agency, §§ 261 and 264.

Norburn v. Mackie, 262 N.C. 16, 23, 136 S.E.2d 279, 284-285 (1964). See also, Parsons v. Bailey, 30 N.C.App. 497, 227 S.E.2d 166 (1976), disc. rev. denied, 291 N.C. 176, 229 S.E.2d 689 (1976); 37 Am.Jur.2d, Fraud and Deceit §§ 311 and 312, pp. 411-414 (1968).

Defendants Hinson and Moore argue that even if there were false representations made as to the inclusion of the driveway, they should not be held accountable because plaintiffs had a responsibility to make their own investigation to determine the truth of the matter, citing Calloway v. Wyatt, 246 N.C. 129, 97 S.E.2d 881 (1957). We do not think Cal...