Winn-Dixie Montgomery, Inc. v. Henderson

• Decision Date: 22 December 1977
• Docket Number: WINN-DIXIE
• Parties: MONTGOMERY, INC. v. Bobby HENDERSON. SC 2359.
• Court: Alabama Supreme Court

Page 1380

353 So.2d 1380

WINN-DIXIE MONTGOMERY, INC. v. Bobby HENDERSON.

SC 2359.

Supreme Court of Alabama.

Dec. 22, 1977.

Rehearing Denied Feb. 3, 1978.

Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Richard W. Whittaker of Pittman, Whittaker & Hooks, Enterprise, for appellant.

M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellee.

BLOODWORTH, Justice.

Appellant, Winn-Dixie Montgomery, Inc., appeals from a jury verdict of $14,000 in favor of appellee, Bobby Henderson, and from a denial of its motion for new trial in a fraud suit. We reverse and remand.

Appellee, Henderson, filed suit against Winn-Dixie Stores, Inc., Employees Profit Sharing Program of Winn-Dixie Stores, Inc., and Atlantic National Bank of Jacksonville claiming, inter alia, breach of contract because he claimed that these defendants owed him his share of the proceeds and dividends of a profit-sharing plan since he had been forced to terminate his employment without being paid his share. Henderson thereafter amended his complaint, striking Winn-Dixie Stores, Inc., and substituting Winn-Dixie Montgomery, Inc., as a defendant. The trial court struck Employees Profit Sharing Program of Winn-Dixie Stores, Inc. as a defendant. Defendant Atlantic National Bank of Jacksonville was also struck. This left the appellant Winn-Dixie as the sole defendant.

Henderson's second amendment to his complaint added Counts FOUR and FIVE:

"COUNT FOUR

"1. On to-wit, November 1973, to-wit, January, 1974 and divers other occasions during 1973 and 1974, the Defendant Winn-Dixie Montgomery, Inc., hereinafter referred to as Winn-Dixie, through its agents, servants, or employees, with the intent to deceive fraudulently deceived the Plaintiff, an employee of Winn-Dixie, by fraudulently and falsely stating to the Plaintiff that he would be transferred to the Winn-Dixie-Kwik-Chek store in Enterprise, Alabama. The Plaintiff further avers that at each time the Defendant Winn-Dixie, through its agents, servants, or employees, promised the Plaintiff a transfer to the Enterprise, Alabama, store, that the Defendant, Winn-Dixie, made said promise with the intent not to perform it, and with the intent not to transfer the Plaintiff. The Plaintiff avers that the Defendant Winn-Dixie, its agents, servants, or employees had no intention of transferring Plaintiff at the time the Defendant Winn-Dixie made the statement, or at any other time at which the Defendant Winn-Dixie promised and reassured the Plaintiff that he would be transferred.

"2. The Plaintiff further avers that he relied upon said false and fraudulent misrepresentations of the Defendant Winn-Dixie, and that the Plaintiff was fraudulently induced and deceived thereby, and the Plaintiff was further induced thereby to arrange a mortgage with the Enterprise Banking Company in order that his wife could buy a beauty shop in Enterprise, Alabama. The Plaintiff further avers that through no fault of his own that the Defendant Winn-Dixie did not transfer the Plaintiff to the Enterprise, Alabama Winn-Dixie-Kwik-Chek store and he avers that as a proximate consequence of the Defendant Winn-Dixie's aforesaid fraudulent and false misrepresentations which were known by the Defendant Winn-Dixie to be false at the time the promise to transfer was made, and which promises and reassurances were made with the intent to deceive the Plaintiff and the Plaintiff's said reliance and said acting thereon, the Plaintiff was injured in this:

"He was caused to suffer great humiliation and professional embarrassment; he was caused to lose profitable employment; he was caused to suffer mental anguish as a consequence of the Defendant Winn-Dixie's aforesaid actions for which he claims the damages.

"WHEREFORE, Plaintiff demands judgment against Defendant Winn-Dixie in the sum of Fifty Thousand ($50,000.00) Dollars, interest and cost. The Plaintiff claims punitive damages.

"COUNT FIVE

"1. The Plaintiff claims of the Defendant Winn-Dixie Montgomery, Inc., hereinafter referred to as Winn-Dixie, the sum of Fifty Thousand ($50,000.00) Dollars damages, for that on to-wit: November, 1973, the Plaintiff, an employee in the Defendant Winn-Dixie's Dothan, Alabama, store, asked the Defendant Winn-Dixie, to transfer him to the Defendant Winn-Dixie's store in Enterprise, Alabama. The Plaintiff avers that the reason for the transfer was that the Plaintiff's wife desired to purchase a beauty shop in Enterprise, Alabama. The Defendant Winn-Dixie, during the month of November, 1973, and on divers days after that date, represented to the Plaintiff that he would be transferred as requested to the Defendant Winn-Dixie's Enterprise, Alabama, store.

"2. That the said representations to transfer were false, and were known to Defendant Winn-Dixie, at the times they were made to be false, that they were made willfully to deceive, or recklessly without knowledge, and that such representations were relied upon by Plaintiff and acted upon in that Plaintiff and his wife executed a mortgage to the Enterprise Banking Company in order that the Plaintiff's wife might purchase a beauty shop, and that the Plaintiff was never granted the transfer as represented by the Defendant Winn-Dixie, all to the damage of the Plaintiff.

"The Plaintiff was injured in this:

"He was caused to suffer great humiliation and professional embarrassment; he was caused to lose profitable employment; he was caused to suffer mental anguish as a consequence of the Defendant Winn-Dixie's aforesaid actions for which he claims the damages.

"WHEREFORE, Plaintiff demands judgment against the Defendant Winn-Dixie in the sum of Fifty Thousand ($50,000.00) Dollars, interest and cost. The Plaintiff claims punitive damages."

The case proceeded to trial on the issues of fraud and breach of contract. At the close of the evidence, the trial court granted a directed verdict for appellant on the contract aspect. The case went to the jury on Counts FOUR and FIVE. The jury found for appellee and returned a $14,000 verdict. Both parties agree that the verdict included punitive damages.

Appellant Winn-Dixie contends that Counts FOUR and FIVE of appellee Henderson's amended complaint, supra, which are allegedly fraud counts, are actually claims for breach of contract and, therefore, punitive damages were erroneously assessed; and that the verdict is excessive.

Winn-Dixie also contends that Count FOUR is based upon Tit. 7, §§ 110-112, Code of Alabama 1940 (now § 6-5-103-104 Code of 1975) and is insufficient in that there is no evidence that its alleged promise to transfer Henderson was made with the present intent not to perform it. If, however, Count FOUR is found to be based upon Tit. 7, § 108 (now § 6-5-101) (as Henderson contends) Winn-Dixie maintains the Count is still not actionable as it involves a future occurrence and not an existing material fact.

Further, Winn-Dixie contends that Count FIVE is predicated upon Tit. 7, § 108, and is likewise insufficient in that the alleged promise does not pertain to an existing material fact but instead concerns a future event. Therefore, Winn-Dixie argues, the trial court erred in refusing to grant its motions for directed verdict and new trial on Counts FOUR...