Tuggle v. Haines

216 S.E.2d 460 (1975)

26 N.C. App. 365

Arthur G. TUGGLE and wife, Geraldine O. Tuggle, Plaintiffs, v. Frank D. HAINES and wife, Elizabeth L. Haines, Defendants and Third-Party Plaintiffs, v. Hugh G. NOFFSINGER, Jr. and Sally Noffsinger, Third-Party Defendants.

No. 755DC15.

Court of Appeals of North Carolina.

July 2, 1975.

Certiorari Denied September 2, 1975.

*463 Marshall, Williams, Gorham & Brawley by Lonnie B. Williams, Wilmington, for third-party plaintiff appellees.

L. Gleason Allen, and Crossley & Johnson by Robert W. Johnson, Wilmington, for third-party defendant appellants.

Certiorari Denied by Supreme Court September 2, 1975.

PARKER, Judge.

Appellants Noffsinger assign error to denial of their motion for directed verdict in their favor on the issue of fraud, contending that the Haineses' own testimony shows that the Haineses unreasonably relied upon statements allegedly made by Hugh Noffsinger concerning the existence of credit life insurance in connection with the outstanding mortgage loan on the Tuggles' house and the possibility that such life insurance could be transferred to the Haineses upon their assumption of the mortgage debt. In particular, appellants point to those portions of the testimony given by Mr. and Mrs. Haines in which they admitted that they had expressed some skepticism as to whether Mr. Haines, a man 80 years old, could obtain life insurance at the same rates as Mr. Tuggle, a much younger man. There was a conflict in the evidence as to whether Noffsinger had made any representations concerning credit life insurance. However, whether any representations concerning the credit life insurance were in fact made by Noffsinger and, if made, whether the Haineses reasonably relied upon such statements, were questions for the jury to resolve. The testimony of the Haineses was sufficient to support a jury finding that the representations were made and we cannot say, as a matter of law, that the Haineses did not reasonably rely upon them. Johnson v. Owens, 263 N.C. 754, 140 S.E.2d 311 (1965). Moreover, the representations concerning the credit life insurance were not the only allegedly false representations upon which the Haineses relied, and their testimony concerning such other representations was sufficient to support a jury finding in their favor on the issue of fraud. There was no error in denying appellants' motion for a directed verdict on the issue of fraud.

There was error, however, in submitting the issue as to punitive damages. The right to an award of punitive damages, assessed for the purpose of punishing the wrongdoer, does not follow as a conclusion of law because the jury has found the issue of fraud against a defendant. "There must be an element of aggravation accompanying the tortious conduct which causes the injury. Smart money may not be included in the assessment of damages as a matter of course simply because of an actionable wrong, `but only when there are some features of aggravation, as when the wrong is done willfully or under circumstances of rudeness, oppression, or in a manner which evinces a reckless and wanton disregard of the plaintiff's rights.'" Swinton v. Realty Co., 236 N.C. 723, 725, 73 S.E.2d 785, 787 (1953). Here, taking all of the Haineses' evidence as true, the record is void of evidence of such insult, indignity, malice, oppression, or other conduct on the part of the Noffsingers as to justify an award of punitive damages against them. Indeed, there was no evidence that Mrs. Noffsinger had any contacts with the Haineses prior to the time the Haineses countersigned the contract to purchase the Tuggles' house. The facts upon which the Haineses rely to recover punitive damages are the same facts upon which they rely in their action for fraud. Therefore, on this record we find that the Haineses were not entitled to an award of punitive damages.

*464 There was no error in allowing the Haineses' motion for a directed verdict in their favor as to the Noffsingers' counterclaim for lost real estate agent's commission. Chipley v. Morrell, 228 N.C. 240, 45 S.E.2d 129 (1947), relied on by appellants, is distinguishable. In that case, the contract between the seller and the buyer included an express provision for a real estate broker's commission to be paid by the seller when the sale was closed. The buyer defaulted on the contract. In a suit by the broker to recover the commission, the trial court sustained the defaulting buyer's demurrer to the complaint. On appeal our Supreme Court reversed, holding that although the broker was not a party to the contract between seller and buyer, the broker was a beneficiary thereof to the extent of the commission and as a third-party beneficiary could maintain the action against the defaulting buyer. See generally Annot., 30 A.L.R.3d 1395 (1970). In the present case, the sales contract between the Tuggles and the Haineses made no mention of a commission, provision for payment of a commission being included only in a separate "Exclusive Listing Contract" entered into between the Tuggles and Noffsinger, Realtors, to which contract the Haineses were not a party. Furthermore, the jury's answer to the fraud issue in the present case would in any event bar the Noffsingers' right to maintain an action for lost commission against the Haineses. See Annot., 9 A.L.R.2d 504 (1950).

We have examined appellant's remaining assignments of error and find no error such as to warrant the granting of another trial. The charge of the court to the jury, when considered contextually and as a whole, was free from prejudicial error.

For the reasons hereinabove set forth, that part of the judgment appealed from which allows a recovery of punitive damages against the appellants is reversed, and that part of the judgment which awards to the Haineses recovery of actual damages in the amount of $1,250.00 against the Tuggles and the Noffsingers jointly is affirmed.

Reversed in part.

Affirmed in part.

BROCK, C. J., and ARNOLD, J., concur.