Opinion
44123.
ARGUED JANUARY 6, 1969.
DECIDED FEBRUARY 6, 1969.
Action for damages. Baldwin Superior Court. Before Judge Carpenter.
Westmoreland, Patterson Chaite, Rudolph N. Patterson, for appellant.
Robert H. Herndon, for appellee.
All of the genuine issues of fact raised by the pleadings in this case were not eliminated by the appellant's motion for summary judgment and since the law of the case as to some issues was fixed by the judgment overruling the motion to dismiss the action, unappealed from, the court did not err in overruling the motion for a summary judgment.
ARGUED JANUARY 6, 1969 — DECIDED FEBRUARY 6, 1969.
Erby C. Pennington instituted an action for damages against J. Buford Smith, Mrs. Rose Ann Smith and against Hudson Marshall, Inc. The petitioner alleged that the individual defendants were the owners of a described tract of land in Baldwin County, known as "Smitty's Trailor Park"; that the corporate defendant held an auction sale of the property as the agents of the two individual defendants at which sale the plaintiff bought in the property for $15,150 as a single tract; that the defendants failed to inform plaintiff that the sewage disposal facility on the premises was not constructed in accordance with applicable State and County Health Department regulations and in keeping with the State Water Quality Control Act and regulations thereunder; that the "Oxidation Pond" was in similar violation of State and County Health Department regulations and Water Quality Control Board regulations, and that the sewage disposal facilities were totally inadequate and were erected in violation of such regulations, and were still in such violation; that all of the defendants knew of such facts before the sale; that defendants practiced a fraud on plaintiff by wilfully failing to inform him of the material facts above stated when they were under a duty to do so; that before the sale J. Buford Smith informed plaintiff that the facilities were all right; that at the time of the sale and acceptance of the deed to the property plaintiff was ignorant of the deficiencies stated and that he could not have discovered the same by ordinary diligence; that the fraud alleged resulted in the plaintiff's injury and damage. A motion was made to dismiss the action on the ground that the complaint failed to state a claim against either defendant. The plaintiff then amended the complaint to allege that all of the defendants intentionally failed to disclose the material facts to him to induce him to act. The motion to dismiss was then overruled and there is no exception to that judgment. The corporate defendant then made a motion for a summary judgment. The court overruled the motion and certified it for appeal which appellant filed.
Asa Marshall deposed by affidavit that he was the auctioneer for the corporate defendant who knocked off the property to the plaintiff; that the oxidation lot, so marked on the plat, was not auctioned and offered for sale and so announced by him at the auction, because of defects in the construction of the facilities on the lot; that the property had been opened for inspection and examination prior to the sale and up to the time of sale. In his answer to interrogatories the plaintiff stated the facts about as stated in his claim and further that the defendants at the auction stated what a fine piece of property it was.
The petition as amended was held by the judge to state a claim. Such a ruling required a trial unless the summary judgment proceeding showed no genuine issue of fact. The showing of the appellant on summary judgment did not show that there was no genuine issue of fact remaining. Assuming for the sake of argument that the auctioneer's affidavit eliminated any fraud as to the oxidation lot and that it was conclusively shown that it was not to be auctioned off but that it was to be donated to the purchaser at the sale of the property for the reason that the facilities thereon were not adequate, there remains the question whether the appellant is liable to appellee for fraud in fraudulently concealing from him the other defects in the sewage system and facilities on the lots which were sold. As ruled by the court, an agent is not exonerated from the commission of a tort merely because he acts as an agent. He is exonerated if he is not a party to the tort, but not otherwise. The claim in this case alleged fraudulent intention on the part of the auctioneer and the owners. There was no showing which removed those issues and the court properly overruled appellant's motion for a summary judgment.
Judgment affirmed. Pannell and Quillian, JJ., concur.