Alice Jeannie Hawley CLOUSE
v.
CHAIRTOWN MOTORS, INC.
No. 7322SC140.
Court of Appeals of North Carolina.
March 28, 1973.*328 John Randolph Ingram, Asheboro, for plaintiff-appellee and plaintiff-appellant.
Charles F. Lambeth, Jr., Thomasville, for defendant-appellant and defendant-appellee.
MORRIS, Judge.
PLAINTIFF'S APPEAL
Plaintiff assigns error to the action of the trial judge, allowing the defendant's motion for a directed verdict on the issue of punitive damages, G.S. 1A-1, Rule 50(a). Plaintiff contends that, under the facts of this case, the issue of punitive damages should have been submitted to the jury.
In North Carolina, whether a party may recover punitive damages in an action for fraud depends on the character of the acts *329 alleged to constitute fraud in each case. Swinton v. Realty Co., 236 N.C. 723, 73 S.E.2d 785 (1953).
"In ordinary cases a recovery of exemplary, punitive or vindictive damages will not be allowed in an action of deceit, but in certain cases such damages may be allowed, as . . . where the fraud is gross or the case presents other extraordinary or exceptional circumstances clearly indicating malice and willfulness, as where it appears that defendant acted with a deliberate intent to injure plaintiff. . . ." 37 C.J.S. Fraud § 144.
See also, Nunn v. Smith, 270 N.C. 374, 154 S.E.2d 497 (1967); Van Leuven v. Motor Lines, 261 N.C. 539, 135 S.E.2d 640 (1964); Binder v. Acceptance Corp., 222 N.C. 512, 23 S.E.2d 894 (1943); Mills v. Koscot Interplanetary, 13 N.C.App. 681, 187 S.E.2d 372 (1972); Poplin v. Ledbetter, 6 N.C.App. 170, 169 S.E.2d 527 (1969).
"[W]e think the rule is that the facts in each case must determine whether the fraudulent representations alleged were accompanied by such acts and conduct as to subject the wrongdoer to an assessment of additional damages, for the purpose of punishing him for what has been called his `outrageous conduct.'" Swinton v. Realty Co., supra.
We hold that, taking all of the plaintiff's evidence as true, the record is void of evidence of insult, indignity, malice, oppression, or bad motive, and that the facts upon which the plaintiff seeks to recover punitive damages are the same facts on which he bases his cause of action for fraud. See Nunn v. Smith, supra. This assignment of error is overruled.
Although not referred to by the plaintiff in her brief, we note that this case has been before us on a previous appeal [Clouse v. Motors, Inc., 14 N.C.App. 117, 187 S.E.2d 398 (1972)]. On that appeal, Judge Vaughn, writing for the Court, held that the trial court had erred in allowing the defendant's motion to dismiss the complaint as to the issue of punitive damages and that the facts alleged in the complaint of the plaintiff stated a claim for punitive damages upon which relief could be granted, G.S. 1A-1, Rule 12(b)(6). At the trial below the defendant's motion for a directed verdict on the issue of punitive damages was allowed, and we have sustained that ruling on this appeal. Plaintiff has not raised or discussed the issue whether the decision on plaintiff's former appeal is the "law of the case", binding on the question of the adequacy of the facts to state a claim for relief for the jury to decide. Even had the plaintiff so contended, she could not prevail. In the former appeal the sufficiency of pleadings was before the court. Here we are concerned with sufficiency of the evidence.
"It is contended that the `law of the case' was written when this case was before us at the fall term of 1940 [Montgomery v. Blades], 218 N.C. 680, 12 S.E.2d 217. At that term we held that the demurrer to the complaint should not have been sustained. We are now holding that the demurrer to the evidence in this case should be sustained. There is no inconsistency in such holdings.. . ." Montgomery v. Blades, 222 N.C. 463, 23 S.E.2d 844 (1943), reh. denied, 223 N.C. 331, 26 S.E.2d 567; Smith v. Sink, 211 N.C. 725, 192 S.E. 108 (1937). See also, Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320 (1952).
Plaintiff further assigns error to the admission in evidence of certain testimony and the exclusion from evidence of other testimony. We have considered the questions raised, but are of the opinion that no prejudicial error was committed therein by the trial judge. These assignments of error are overruled.
DEFENDANT'S APPEAL
Defendant assigns as error the failure of the trial judge to grant its motions for a directed verdict and for judgment *330 notwithstanding the verdict. G.S. 1A-1, Rule 50(b). However, we are of the opinion that viewed in the light most favorable to the plaintiff, the evidence was sufficient to be submitted to the jury and amply supported the verdict and that defendant's motions were properly denied. Garland v. Penegar, 235 N.C. 517, 70 S.E.2d 486 (1952); cf. Bennett v. Whippett-Knight Co., 198 N.C. 98, 150 S.E. 676 (1929). This assignment of error is overruled.
Defendant assigns as error the failure of the trial judge to declare and explain the law arising on the evidence, G.S. 1A-1, Rule 51(a). We have examined the challenged portion in connection with the charge as a whole in the light of the evidence offered. We do not perceive any substantial ground upon which to predicate harmful error.
Plaintiff's appealAffirmed.
Defendant's appealAffirmed.
BROCK and HEDRICK, JJ., concur.