Opinion
8 Div. 470.
November 8, 1932. Rehearing Denied January 10, 1933. Affirmed on Mandate June 6, 1933. Rehearing Denied June 30, 1933.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Action of deceit by May Holmes against the Southern Building Loan Association. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Certiorari granted by Supreme Court in Southern Building Loan Association v. Holmes (8 Div. 483) 149 So. 861.
Certiorari denied in Southern Building Loan Association v. Holmes (8 Div. 528) 149 So. 862.
Defendant filed a motion for a new trial. The court granted the motion unless plaintiff should remit from the verdict the sum of $720. Thereupon plaintiff remitted said amount, and the motion for new trial was overruled.
The following charges were refused to defendant:
"22. I charge you, gentlemen of the jury that if you are not reasonably satisfied from the evidence that the fraud practiced upon plaintiff, if you find there was fraud, was malicious, oppressive, or gross, and that the representations made were made with a knowledge of their falsity on the part of the defendant's agent (or so recklessly made as to amount to the same thing), and with the purpose of injuring the plaintiff, then you cannot assess punitive damages in favor of the plaintiff and against the defendant."
"47. The Court charges the jury that if you are reasonably satisfied from the evidence that the plaintiff read and understood that part of the written card signed by her which states that no person has the authority to change or alter the terms of this subscription or bind the Association to any statement not contained in the subscription then you cannot assess any damages in favor of the plaintiff and against the defendant."
Chas. H. Eyster, of Decatur, and Lange, Simpson Brantley, of Birmingham, for appellant.
Punitive damages may not be recovered in an action for deceit unless the fraud was gross, malicious, or oppressive and willfully committed with an intention to injure the party defrauded. Caffey v. Ala. Mach. Supply Co., 19 Ala. App. 189, 96 So. 454. In the absence of proof of agency, where there is an issue as to when plaintiff discovered the fraud in an action of deceit, evidence of knowledge on the part of plaintiff's husband is not admissible to support plaintiff's contention that she had no knowledge; nor is it admissible for any other purpose. Hughes v. Cartwright, 222 Ala. 4, 130 So. 550. Charge 47 should have been given. Capital Sec. Co. v. Gilmer, 190 Ala. 340, 67 So. 258, Ann. Cas. 1917A, 888.
Julian Harris and A. J. Harris, both of Decatur, for appellee.
Where the elements are present, punitive damages may be awarded in an action of deceit. Caffey v. Ala. M. S. Co., 19 Ala. App. 189, 96 So. 454; Kilby L. M. Works v. D. B. Lacey Son, 12 Ala. App. 464, 67 So. 754; 27 C. J. 104; Kujek v. Goldman, 150 N.Y. 176, 44 N.E. 773, 34 L.R.A. 156, 55 Am. St. Rep. 670; Hobbs v. Smith, 27 Okl. 830, 115 P. 347, 34 L.R.A. (N.S.) 697; Laughlin v. Hopkinson, 292 Ill. 80, 126 N.E. 591; 8 R. C. L. 581. An instruction embodying the language of an opinion is not necessarily proper. Charge 22 was misleading and was properly refused. Southern R. Co. v. Hayes, 198 Ala. 601, 73 So. 945; Torian v. Ashford, 216 Ala. 85, 112 So. 418. Charge 47 does not state a sound proposition of law. Ala. M. S. Co. v. Caffey, 213 Ala. 260, 104 So. 509, 511.
The major questions involved in this appeal have recently been decided by our Supreme Court, and as to all questions there decided this court is bound. For discussion of the questions involved in all these cases, reference is made to So. B. L. Ass'n v. Dinsmore, 225 Ala. 550, 144 So. 21, and So. B. L. Ass'n v. Bryant, 225 Ala. 527, 144 So. 367.
Refused charge 22 asserts a proposition of law pertinent to this case and declared in Caffey v. Ala. Mach. Supply Co., 19 Ala. App. 189, 96 So. 454, 457. In that case we said: "Unless the jury could conclude from the evidence that the fraud was malicious, oppressive, or gross, the representations being made with a knowledge of their falseness (or so recklessly made as to amount to the same thing), and with the purpose of injuring the plaintiff, there could be no recovery of punitive damages." The court in its oral charge, while recognizing the above principle as being the law, did not sufficiently instruct the jury on this point in such fullness as would authorize us to hold that the charge requested is fully covered by the court in its oral charge.
In the instant case it is very evident that the damages awarded by the jury were punitive and that the degree of the fraud practiced by defendant's agent on plaintiff must have entered largely into the consideration given by the jury in fixing the amount of their verdict. The amount of money obtained from plaintiff by defendant's agent by reason of the misrepresentation of the contract for the sale of stock in defendant's company was $200; the verdict was for $1,440; the admitted amount due defendant on its plea of recoupment was $660. So that the amount of punitive damages included in the verdict must have been $2,000. It will thus be seen that it became very important that the jury be explicitly instructed as to the kind of fraud which would warrant a finding of such damages, and the charge requested states the law as clearly as this court knows how to do so. Caffey v. Ala. Mach. Supply Co., supra.
The appellant insists that the judgment as finally rendered by the court is excessive. Following the rule as laid down in Cobb v. Malone, 92 Ala. 630, 9 So. 738, we cannot say that as finally rendered the judgment is excessive.
Under the facts in this case we are of the opinion that the defendant was not entitled to the general charge in its favor.
Defendant's charge 47 was properly refused. There was no evidence that plaintiff ever read, or had an opportunity to read, that part of the card referred to in the charge. The charge was abstract.
Defendant's written charge 2 was covered by the court in its oral charge and in other charges given at the request of defendant.
Whatever error the court may have committed in its charge as to the proper recovery on defendant's plea of recoupment was corrected later in the charge where he correctly charged: "I charge you gentlemen of the jury, that the plaintiff in this case has brought her action in deceit, and that by so doing, she has elected to affirm the contract between herself and the defendant and that you must give the defendant credit for the full amount due from plaintiff under said contract, towit, $560.00, arriving at what either party owes the other."
The plaintiff, over objection and exception of defendant, was allowed to ask Mr. Holmes, husband of plaintiff: "When was the first occasion, that you learned or discovered that the certificate of stock was not of any value?" There was evidence tending to prove that Holmes was the agent for plaintiff and acting for her generally. Notice to him was notice to plaintiff. This differentiates this case from Hughes v. Cartwright, 222 Ala. 4, 130 So. 550.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Affirmed on authority of Southern Building Loan Association v. Holmes (8 Div. 483) 149 So. 861.