A. L. POPLIN et ux.
v.
P. L. LEDBETTER.
No. 6919SC380.
Court of Appeals of North Carolina.
September 17, 1969.*529 Cole & Chesson, by James L. Cole, Charlotte, for defendant-appellant.
Hartsell, Hartsell & Mills, by William L. Mills, Jr., and K. Michael Koontz, Concord, for plaintiffs-appellees.
HEDRICK, Judge.
The appellant's assignments of error numbers 1, 2, 3, 4, 5, 29 and 30, challenge the sufficiency of the plaintiffs' evidence to carry the case to the jury on the issue of punitive damages.
In Vail v. Vail, 233 N.C. 109, 63 S.E.2d 202, the Supreme Court of North Carolina, speaking through Johnson, J., said:
"Fraud has no all-embracing definition. Because of the multifarious means by which human ingenuity is able to devise means to gain advantages by false suggestions and concealment of the truth, and in order that each case may be determined on its own facts, it has been wisely stated `that fraud is better left undefined,' lest, as Lord Hardwicke put it `the craft of men should find a way of committing fraud which might escape a rule or definition.' Furst v. Merritt, 190 N.C. 397 (p. 404), 130 S.E. 40."
In Swinton v. Savoy Realty Co., 236 N.C. 723, 73 S.E.2d 785, Chief Justice Devin, writing for the Court, said:
"In some cases, in actions to recover damages for fraud, where punitive damages are asked, it is suggested that a line of demarcation be drawn between aggravated fraud and simple fraud, with punitive damages allowable in the one case and refused in the other. In a note in 165 A.L.R. 616, it is said: `All that can be said is that to constitute aggravated fraud there must be some additional element of asocial behavior which goes beyond the facts necessary to create a case of simple fraud.'"
Upon this appeal we are not concerned with whether the defendant's conduct amounted to simple fraud. Rather, we must examine the evidence in its light most favorable to the plaintiffs to determine whether Ledbetter's conduct in giving the $1,400.00 check, with all of the attendant circumstances, constituted what has been referred to in some cases as aggravated fraud, subjecting him to the additional punishment of punitive damages.
In Swinton v. Savoy Realty Co., supra, and in Nunn v. Smith, 270 N.C. 374, 154 S.E.2d 497, our Supreme Court indicated that before punitive damages might be assessed, the defendant's fraudulent conduct must contain the additional elements of "insult, indignity, malice, oppression or bad motive". We are inclined to the view that these are the "elements of a social behavior" referred to in 165 A.L.R. 616 which change simple fraud to aggravated fraud.
There is no showing that there was any prior business relationship between Ledbetter and Poplin unless such an inference *530 can be gleaned from Poplin's statement that "he just gave me the check like he always had, if he ever gave me one, and I took it for granted he had it there." We believe that this statement, standing alone, is not sufficient to infer any prior business association, and this is especially true since, if this had existed, the plaintiffs could have easily elicited this evidence from any of the witnesses available to them, and the appellees' contention to the contrary seems without merit. The fact that Poplin had given the lot as security so that Ledbetter could obtain a construction loan does not, of itself, infer that the plaintiffs and defendant were engaged in a joint venture. On the other hand, it does indicate that Poplin knew that at the time he accepted the check and conveyed the lot to Hastings, that the lot was encumbered at least in the amount of $6,000.00. The additional evidence to the effect that Hastings closed his $12,900.00 loan on the very day that the check was dated and the deed executed could give rise to the inference that Poplin had good reason to wait "a couple of days" before he presented the check for payment. We believe that all of this evidence with respect to the circumstances attendant to the giving of the check tend to negate the essential elements constituting aggravated fraud.
In Nunn v. Smith, supra, where the facts were remarkably similar, the Court in affirming the judgment of nonsuit said: "Here, taking all plaintiff's evidence as true, the record is void of evidence of insult, indignity, malice, oppression or bad motive, and the facts upon which plaintiff would recover punitive damages are the same facts on which he bases his cause of action. Therefore, plaintiff cannot prevail." We have examined the plaintiffs' evidence and conclude that the court ought not to have submitted the issue of punitive damages to the jury.
For the reasons herein set forth, that part of the judgment allowing punitive damages and providing for the arrest of the defendant is reversed, and that part of the judgment that the plaintiffs recover of the defendant $1,400.00, with interest and cost, is affirmed. The result is
Reversed in part.
Affirmed in part.
MALLARD, C. J., and MORRIS, J., concur.