Alleging fraud, appellee-plaintiff brought suit against appellant-defendant, seeking general and punitive damages, attorney’s fees, and costs. The case was tried before a jury and a verdict in favor of appel-lee was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.
1. The denial of appellant’s motion for a directed verdict is enumerated as error. The evidence, taken in the light most favorable to the jury’s verdict, would authorize the following findings: By virtue of agreement with Exxon U.S.A., Inc. (Exxon), appellant leased and operated a service station and purchased his gasoline from Exxon. Payment for the gasoline was to be made upon its delivery to appellant. *521 Appellant’s usual payment practice was to present a check, payable to Exxon, to the driver who had delivered the gasoline.
Appellee is a common carrier engaged by Exxon to deliver gasoline to certain of its dealers. In April of 1983, appellant placed an order with Exxon for delivery of some 10,000 gallons of gasoline. Pursuant to that order, a driver employed by appellee delivered the gasoline to appellant’s service station. Appellee’s driver did not secure payment before he pumped the gasoline from his truck into appellant’s storage tanks. When appellee’s driver sought payment for the gasoline after completion of the pumping, appellant could not be located.
Because appellee’s contract with Exxon required collection on delivery of gasoline to appellant and because appellant could not be located to make payment for the gasoline that had just been delivered, appellee’s driver prepared to pump the gasoline back into his truck. At that point, appellant telephoned his service station and told appel-lee’s driver “that he was tied up, that he’d bring a check in.” Appel-lee’s driver replied that he would “have to have the C.O.D.” Appellant’s response was that he would “call Exxon.” Appellant did call Exxon and secured an Exxon employee’s acquiescence in appellant’s offer to make a future payment for the gasoline. After agreeing to appellant’s offer, the Exxon employee telephoned the service station and instructed appellee’s driver to allow the gasoline to remain in appellant’s storage tanks and to return to the Exxon terminal without collecting for the delivery.
Appellant sold the gasoline, but he never paid Exxon for it. When appellant did not pay, appellee indemnified Exxon for the gasoline. But see
Southern R. Co. v. Kinchen & Co.,
In determining whether appellant’s motion for directed verdict was erroneously denied, the following is applicable: “To recover in tort for fraud the plaintiff must prove five essential elements: (1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made. [Cit.]”
Martin Burks Chevrolet v. McMichen,
It is true that, as the result of Exxon’s reliance upon and inducement by appellant’s false representations, appellee did not demand immediate payment from appellant and did ultimately bear the loss occasioned by appellant’s failure to pay. There is, however, no evidence that, in so doing, appellee was acting in reliance upon appellant’s false representations. The evidence is uncontroverted that Exxon did not act as a mere conduit in relaying appellant’s misrepresentations for appellee’s own independent assessment of whether it should put its reliance thereon. Compare
Robert & Co. Assoc. v. Rhodes-Haverty Partnership,
The evidence of record in this case shows that it was only Exxon *523 that actually heard appellant’s false representation. Only Exxon acted upon that misrepresentation by agreeing to accept payment for its gasoline at a later date. Appellee only heard and acted upon Exxon’s direction. Under this evidence, appellee may in fact have a subrogation claim against appellant based upon its indemnification of Exxon. It appears that this subrogation theory was submitted to the jury as an alternative basis for appellee’s recovery. Appellee does not, however, have a viable fraud claim against appellant under the evidence. Insofar as it included an award of punitive damages, the jury’s verdict was erroneously based upon this theory of recovery. Accordingly, the denial of appellant’s motion for a directed verdict was error and was not harmless. The trial court committed reversible error in allowing the issue of appellee’s recovery under a fraud theory to be submitted to the jury.
2. The remaining enumerations of error are moot by virtue of our holding in Division 1.
Judgment reversed.