Pierce v. American Fidelity Fire Insurance Co.Annotate this Case
83 S.E.2d 493 (1954)
240 N.C. 567
Bradley PIERCE v. AMERICAN FIDELITY FIRE INSURANCE COMPANY, Inc.
Supreme Court of North Carolina.
September 22, 1954.
*495 McMullan & Aydlett, Elizabeth City, for appellant.
John H. Hall, LeRoy & Goodwin, Elizabeth City, for appellee.
*496 DENNY, Justice.
The defendant challenges the sufficiency of the plaintiff's evidence to withstand its motion for judgment as of nonsuit interposed at the close of plaintiff's evidence and renewed at the close of all the evidence. In our opinion, however, when plaintiff's evidence is considered in the light most favorable to him, as it must be on such motion, it is sufficient to carry the case to the jury. Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485.
The defendant excepts and assigns as error the refusal of the trial court to comply with its written request to the effect that if the jury believed the evidence and the facts to be as testified, to answer the issue with respect to fraud and misrepresentation in the procurement of the release in favor of the defendant.
The defendant argues that Mrs. Pierce, agent for the plaintiff, and the adjuster, agent for the defendant, agreed that the damaged automobile might be repaired by Ventura and that its agent only advised Mrs. Pierce that Ventura was a reputable automobile repair man and would make satisfactory repairs. Therefore, it contends that the misrepresentations made in its behalf, if any, were only promissory in nature and insufficient to support an allegation of fraud, citing Mitchell v. Mitchell, 206 N.C. 546, 174 S.E. 447.
The general rule in this respect is to the effect that an unfilled promise cannot be made the basis for an action for fraud. Davis v. Davis, 236 N.C. 208, 72 S.E.2d 414; Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364; Shoffner v. Thompson, 197 N.C. 664, 150 S.E. 195; Pritchard v. Dailey, 168 N.C. 330, 84 S.E. 392; 23 Am.Jur., Fraud and Deceit, section 38, page 799 et seq. The rule, however, is otherwise if the promise is made with no intention to carry it out, and such promise constitutes a misrepresentation of a material fact and the promisee is induced thereby to act upon it to his injury. Davis v. Davis, supra; Williams v. Williams, supra; Mitchell v. Mitchell, supra; Planters' Bank & Trust Co. v. Yelverton, 185 N.C. 314, 117 S.E. 299.
In the instant case, the consideration which the plaintiff was to receive upon the execution and delivery of the release was not to be in money, but in the return of his automobile duly and properly repaired. As stated in Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 6, page 500, "* * * where the insurer elects to repair the damaged automobile and represents, at least tacitly, that it will place the vehicle in the condition that it was in previously, the insured has no choice but to acquiesce, and the original contract of the parties is converted into a new one, under which the insurer is bound to repair the automobile and restore it to its former condition." The plaintiff's car, according to the record, has not been so restored. The defendant's evidence establishes the fact conclusively that when the plaintiff's automobile was delivered to his wife on 13th September, 1952, it had not been repaired as contemplated under the provisions of the insurance policy in the event the insurer elected to have the car repaired, as it did in this case, in lieu of payment for the damages resulting from the collision. The adjuster of the defendant not only authorized the return of the car, after the execution and delivery of the release, to Ventura's Auto Center for reinspection and additional repairs if necessary, but his testimony with respect to the condition of the car when returned was as follows: "I looked over the car after it was wrecked and also after it was returned by Mrs. Pierce following the repairs. It needed repairs in several instances. I had several independent agencies give us an estimate and two dealers gave us statements that the car was not properly repaired and needed additional work."
In light of the evidence adduced in the trial below, the fact that Mrs. Pierce delivered the release to Mr. Ventura before requesting permission to try out the car would not, in view of his immediate refusal *497 to permit the car to be tried out, warrant a refusal on the part of the court to submit the issue as to misrepresentation and fraud in its procurement. Even so, in our opinion, the defendant waived the provisions of the release by authorizing the return of the car for re-inspection and further repairs, if necessary, and we so hold. Therefore, the plaintiff had a right to maintain an action for damages against the defendant for breach of the insurance contract when the car was not properly repaired and tendered to him within a reasonable time. Hence, the finding to the effect that the execution and delivery of the release was obtained by fraud and misrepresentation becomes immaterial, and the assignment of error in respect thereto is overruled.
Assignments of error Nos. 4, 5, 6, and 7 are based on exceptions to the charge with respect to damages. The challenged portions of the charge are to the effect that the plaintiff is entitled to recover, if he is entitled to recover at all, the difference in the fair market value of the automobile immediately before it was damaged in the collision, and the fair market value after it was repaired at Ventura's place of business for the price paid by the insurance company, plus $50 paid by the plaintiff.
The defendant contends that this charge was not sufficient to include the additional repairs made to the automobile after it was returned to Ventura's place of business. We do not concur in this view, in light of the only evidence as to the fair market value of the car after the collision, which was that of M. S. Cridlin, the operator of an automobile repair shop, paint shop, and an agency for the sale of Kaiser-Frazer cars including Henry J, in Elizabeth City, North Carolina. This witness testified that the fair market value of plaintiff's car immediately prior to the collision was $1,500; that at the time of the collision a new 1951 Henry J automobile would have cost a little over $1,800; that he inspected the plaintiff's car three days after the collision and that it had a fair market value of $150 as junk; that he went to Ventura's place of business in Portsmouth, Virginia, which appeared to be a junk yard, and inspected plaintiff's car after the additional repairs had purportedly been made; that the car was still not in proper repair and had a fair market value of only $300 to $350. The court called the jurors' attention to this evidence and pointed out that Mr. Cridlin testified that after the car had been repaired twice at Ventura's place it had a fair market value of around $350. Consequently, we do not think any prejudicial error that would warrant a new trial has been made to appear. Barton v. Farmers Insurance Exchange, Mo.App., 255 S.W.2d 451. Hence, in law, we find