155 Ga. App. 126 | Ga. Ct. App. | 1980
Our judgment announced in Shipman v. Horizon Corp., 151 Ga. App. 242 (259 SE2d 221), involving ten divisions, has been affirmed in nine of those divisions but reversed as to Division 5, in Shipman v. Horizon Corp., 245 Ga. 808 (1980), and the case remanded to this court for such further consideration and action as may be necessary to give effect to the decision of the Supreme Court on certiorari as to Division 5.
For a statement of pertinent facts, see 151 Ga. App. 242, supra. In Division 5 of our opinion, this court approved a charge on the applicability of the statute of limitations to a cause of action arising out of alleged fraudulent representations wherein the trial court charged and then recharged the jury, over objection, that the statute would run from the time of the discovery of the fraud but that the critical element of fraudulent concealment must be independent of the alleged acts which gave rise to the plaintiffs claim; and that mere concealment of facts by the defendant is not sufficient to prevent the running of the statute of limitations. 151 Ga. App. 242, at p. 245.
Shipman’s complaint alleged inceptive fraud followed by an active course of concealment. The facts tended to support such a course of conduct but did not show an act of fraud independent from
It is apparent Shipman was relying on the inceptive fraud theory and Horizon on the constructive fraud concept. Depending on what evidence the jury believed, either theory was appropriate for the jury’s evaluation under appropriate instructions. By its opinion in reversing on certiorari, the Supreme Court has clarified what is the correct statement of law applicable to the inceptive fraud theory advanced by Shipman as well as the constructive actual fraud advanced by Horizon. We adopt these rationales and the holding of the Supreme Court as our own.
It follows that the trial court erred in limiting the jury to a consideration of the theory of constructive actual fraud by requiring the jury to find that Horizon had committed an act of fraudulent concealment independent from and thus in addition to the alleged fraudulent statements included in or made by Horizon’s promotional advertisements and employee-agents which were alleged to constitute the inducement for Shipman’s investment. Not only was this charge not adjusted to the evidence but it could not but have mislead the jury. Spain v. Spain, 203 Ga. 411 (2) (47 SE2d 279). See Haslerig v. Watson, 205 Ga. 668 (54 SE2d 413); General GMC Trucks v. Crockett, 145 Ga. App. 503, 505 (244 SE2d 78). Under the facts and contentions of the parties, it is very probable that the erroneous charge worked serious prejudice to the rights of the appellant
Judgment reversed.