*1 error, complains 2. In a separate enumeration of the defendant photographic display testimony that the second was tainted and regarding testimony The in question should been excluded. pre-trial suppress was subject of a motion to which was overruled. photographic display, appeal, which is in the record on contained appearance. shows six males of similar do not it to be age We find “unnecessarily mistaken suggestive irreparable and conducive Illinois, 1877, Kirby identification.” S. U. SC 411) (1972). The LE2d victim’s in-court identification of the de- fendant, objection, positive without was and supported admitted by testimony opportunity he had ample to observe the defendant at the time the crime. It was not error to admit State, testimony. Herron
Judgment Deen, J., J., affirmed. P. Carley, concur.
Decided December Greenberg, Carl for appellant. Slaton, R.
Lewis Attorney, Joseph Drolet, District Margaret J. Lines, V. A. Jones, Thomas Attorneys, Assistant District appellee. for
62236. LIVELY et al. v. GARNICK et al. Judge.
Carley, 27, 1974, On June plaintiff-appellees entered into a contract purchase which, defendant-appellants at the time of contract, execution of the partially Appellants was built. were to complete construction of the house in accordance with certain stipulations set forth in the realty. contract for sale of At the time scheduled the closing of the sale some of However, had not been parties met. both were desirous of closing the $1,000 transaction and it agreed was that the sum of would be held in paid escrow and completion improvements of the special accordance with the stipulations of the sales contract. This agreement incorporated into the closing statement and the sale was consummated.
Subsequently appellees instituted the instant action to recover damages predicated appellant’s their claim upon alleged fraud and deceit representations connection with made latent defects to certain respect and also with closing Appellants’ sale. after house discovered construction thereof allegations the material denied complaint answer entered Final to trial. proceeded case appeal, Appellants favor. appellees’ jury on a verdict evidentiary rulings court’s the trial several of enumerating as *2 trial adduced that the evidence being contention primary but the fraud. finding of law, support a not, of a matter as did premise as the outset to establish important 1. It is the action grounds general issue of the resolving the construction, of breach upon negligent not based they were Appellees alleged contract. warranty or breach of in certain defects to disclose failure by appellants’ Chitty v. Compare, e.g. purchasing. they were property the' (1955). Fraud, (89 SE2d Horne-Wilson, Inc., App. 716 92 Ga. contract, is of warranty or breach of breach negligence, unlike party. defrauding of the “actual moral upon the premised (1) (49 Simmons, Co. v. 204 Ga. Dundee Land in such a fact], unless done (1949). material of “Mere concealment [a In all mislead, an action. support will not manner as to deceive an essential deceit, falsehood constitutes knowledge of the cases of to deceive “The element of intention Ann. 105-302. element.” Code § based on as one necessary in an action based on concealment is as must and deceit An action for fraud misrepesentation. wilful [Cit.] concealment) (or . . . upon representation based [which] a] [be party deceiving opposite purpose the intention and of made with ” Camp Realty Co. him. of ([cit. ]), purpose injuring and for the [Cit.] (1948). “In of 149, 151 all cases Jennings, element.” deceit, constitutes an essential knowledge of the falsehood “ ‘In order Co.,& Cooley King SE 113 Ga. that the scienter deceit, indispensable of it is to recover an action ” Motors, v. Boomershine Leatherwood proved.’ be ... 897) (1936). in the principles of law Having thus established the viewed, is to be we turn which the the instant case light of evidence were defrauded question appellees proved of whether to the of of defects the construction by appellants’ concealment latent “ by the seller of defective passive the house. cases of concealment [I]n emptor... the rule of caveat realty, exception we find there to be an in situations duty the seller a to disclose exception places That buyer to the special knowledge he or she has where facts misapprehension as to buyer acting aware that the is under a affect buyer probably important which would be 816, 818 Mays, Wilhite decision. [his] [Cits.]” course, means, buyer that the must This of fraud and the vendor’s concealment of the defect was an act been deceit, evidence that the defect “could have including [not] buyer by diligence... exercise of due by discovered [and problems seller and did not disclose them...” was... aware the] Mays, Wilhite v. 31, house, grout smeared
Most of the
such as
tile, nails
mismatched trim on
showing
on the
the baseboard and
exterior,
purchasers’
were “discoverable
exercise
diligence
inspect”
and cannot serve as
investigate
reasonable
“concealing”
the basis for
liable in fraud for
them.
holding
Perren,
Enterprises
P. B. R.
280, 283
probability support
negligent
These defects would in all
a
finding
construction,
contract,
not fraud.
warranty
or breach of
but
however,
is,
indisputably
There
the instant case which
purchased by appellees
demonstrates
the house
contained
defects which were not discoverable until after
had moved into
Indeed,
it.
the evidence demonstrates
there were defects
house,
conditioner,
original
faulty
construction of the
such as
air
carport
leaky chimney,
roof
sagging
which could not
become
*3
apparent until some
We have
occupied
dwelling.
time after it was
as a
if
carefully
thoroughly
transcript
reviewed the
to discover
there
any
evidence whatsoever
find that
jury
from which a
could
appellants
it
knew at
the time
sold the house that
ways
ultimately
apparent
“defective”
which
became
appellants’
guilt”
We find no such evidence of
“moral
with
regard to these defects in the house. The
shows is
most the evidence
warranty
that
were
or in
or of
negligent builders
breach of
contract. While it is clear that the house
which were
contained defects
likely the result of negligent construction or failure to conform to
warranty specifications,
contract or
there
evidence that at the
“special
time
sold the house
knowledge”
yet
defects and
appellees. Compare, e.g.,
concealed them from
Mays,
Ruesken,
Wilhite v.
Holman v.
supra;
239 Ga.
Appellees urge that
the jury was entitled to infer from the fact
that
built the house that
had actual knowledge
it
prove
clear, however,
that would
defective.
It
a fraudulent
concealment action
allegedly
party
must
actual,
merely constructive,
defrauder had
knowledge
Hicks,
(163
of the fact concealed. See Hill v.
44
App.
817
Whaley Holt,
(1931);
(138
(1964);
App.
110 Ga.
228
SE2d
Smith,
Randall v.
(222
App.
136 Ga.
823
SE2d
Robinson,
Derryberry v.
(269
App.
154 Ga.
SE2d
knowledge
if
is no actual
there
Obviously this is true because
of it
can be no concealment
party
the silent
part
defect on
party.
deceiving
opposite
intent and for
purpose
with the
“at
alleges
of a defect
“should have known”
An
that one
assertion
230, supra.
Whaley,
App.
110 Ga.
knowledge.”
a constructive
most
knowledge
party’s
silent
actual
evidence of the
There must be some
from which his “moral
time of the sale
exists at the
the defect
v. Orr
Whiten
See
generally
it can be inferred.
guilt”
concealing
Eskew,
(1964); Tison v.
(136
Co.,
App.
SE2d
Const.
109 Ga.
Forest,
Inc. v.
Windsor
(151
901) (1966);
App.
SE2d
627) (1967)
Rocker,
(laying brickwork
App.
would result
“bad
knowledge
freezing weather
528) (1972)
Stone,
Batey
bonding”);
concealed);
(aware
actively
waterproofing which was
of defective
McMillan,
236) (1974)
Thibadeau Co. v.
Dobbs,
Allred v.
(builder
mortar);
aware of defective
265) (1976) (seller-builder
aware of termite infestation
it).
actively
merely
But to hold that evidence
and had
concealed
develops
subsequently
constructed a house which
builder
presents
jury question
as to his “moral
for fraud without some
knowledge
evidence
he had actual
of the defect at the time of sale
ipsa loquitur
would mean that
theories of res
or strict
legal
In
liability
are
to a suit for the tort of fraud and deceit.
our
may
opinion
negligently
a builder
construct a house or be
warranty
yet
his contract or of
free of moral
of fraud.
guilt
Accordingly
logical”
we hold that it is not a “reasonable or
inference
from the mere fact
that a builder-seller has constructed a house
knowingly
subsequently
discovered to be “defective”
that he
concealed those defects and
thereby
deceived and defrauded the
Windjammer
Hodge,
Associates v.
purchaser.
3. Appellees also allege
fraudulently
were
induced
appellants to consummate
by appellants’
promises
sale
that the
be completed
accordance with the
of the sales
promises
contract and that such
were
made
an
perform.
intention not to
general
rule
actionable fraud
predicated upon
cannot be
promises
perform
to
act in
some
Brown,
Jackson v.
future.
596 future as to promise on a may predicated fraud be hold that (Hill Air Delta perform not to intention present made with a events (1977)) the or where 103, Lines, Ga. Hayes place. will not take event that the future promisor knows (1974); Hill v. 307, Ga. Apts., 232 Hallmark 792, Stewart, spite the fact case in the instant reveals
The evidence least as appellees were at completed, not been the the house had $1,000 agreed All parties to close the sale. as anxious disbursed to in escrow and would be was to held not special with the accordance completed the house was until most construing Even the evidence the contract. stipulations appellants or their appellees, appears it strongly favor the “many completed times” and employees appellees’ went to improvements pursuant agreement majority of the vast testify problems did arose closing. Mr. Garnick certain house; equipment installed the connection with maintenance however, agreed not improvements these were shows a complete closing. anything, If the evidence shows did not mere breach of contract. There is no evidence with the at the time comply intend terms of Oaks promises Compare were made at Four closing. Carusi, 156 Properties
McCravy 336, As McCravy, 337-338 predicated fraud insufficient establish nature, the trial should prospective granted court appellees’ appellees’ motion for verdict based directed as to claim Pantone, Therefore, special stipulations. supra. Pantone v. the denial of motion for also judgment n.o.v. as to claims was error.
4. For supra, reasons grant discussed it was to fail to appellants’ motion for Remaining n.o.v. enumerations error are moot not therefore and need be addressed. J., Shulman,
Judgment McMurray, J., reversed. C. Quillian, P. J., Banke, JJ., Deen, J., P. Birdsong, concur. P. Sognier Pope, dissents. September Decided
Rehearing denied December Jolles, Isaac S. for appellants.
Jay Sawilowsky, M.
Deen, Judge, dissenting. Presiding moral embracing that actual fraud “actual
Assuming arguendo evidence, constructive fraud and proven by has not been guilt to moral evidentiary requirements amounting lesser construction, and breach of supporting negligent breach of contract While lesser claims under warranty seem to have been met. *6 appear construction would to be included negligent the CPA such as greater allegations in the of fraud it would not obtain reverse. &Proc., 4th 16,17 Ga. Prac. 2-5,2-6 2-7, generally pp. §§ Ed. jury, hearing great testimony, after a deal of returned a $20,000 in plaintiff-appellees. say
verdict of favor of We cannot competent support evidence to the verdict and in this judgment I case. affirm. ALLEY v. GREAT AMERICAN INSURANCE
COMPANY. Pope, Judge. Alley brought
Deborah Jo this action Orville L. against Menges damages to recover she incurred as the result of a collision a between passenger vehicle which she was a operated by Menges, a truck employee an of the State of Georgia. At the time of the collision Menges operating ton truck owned the United States 1/2 Army. Menges third-party filed a against action both Allstate insurer, Company, personal Insurance his Great Company, American Insurance insurer of the employees of the State of Georgia. Both insurers filed motions for summary judgment. The trial court granted entered an order which Allstate’s motion for summary judgment on the ground Menges operating “non-owned” vehicle the course of employment, his an exclusion from the coverage provided policy under Allstate’s Menges; no appeal was taken from that Subsequently, order. the trial court entered an order granting summary Great American’s motion for ground on the policy provided coverage state-owned vehicles and long-term those under lease to the but state did not federally operated include the owned truck by Menges at the Alley time of the collision. brings appeal order, this from that contending that a question material of fact remained as to whether operated by the truck Menges at the time of the collision was under