Opinion
42711.
ARGUED APRIL 3, 1967.
DECIDED APRIL 7, 1967. REHEARING DENIED APRIL 21, 1967.
Action for damages. DeKalb Civil and Criminal Court. Before Judge Morgan.
Casper Rich, Robert K. Broome, for appellant.
Zachary Hunter, Ralph T. Bowden, Jr., for appellee.
1. A petition seeking damages for fraud and deceit is not subject to general demurrer where all requisite elements of the action are alleged.
2. Exemplary damages are recoverable in an action for fraud and deceit if the element of wilfulness in concealing a material fact upon which plaintiff acted to his detriment is supported by evidence, as are attorney's fees if bad faith in committing the fraud and deception appears.
3. Enumerations of error not argued or supported in the brief are deemed abandoned.
ARGUED APRIL 3, 1967 — DECIDED APRIL 7, 1967 — REHEARING DENIED APRIL 21, 1967.
J. S. Hatch brought suit against John C. Jackson, trading as Jackson Motor Company, alleging that he had gone to defendant's place of business June 30, 1965, for the purpose of purchasing a new 1965 Rambler automobile, and that while the one he purchased was not strictly new, in that the speedometer disclosed that it had been driven 1,300 miles, the defendant represented that it had been driven only by his wife as a personal car and was in as good condition as a new one, agreeing to give the same manufacturer's warranty on it as would have been obtained in purchasing a new one from the showroom floor.
He alleged that ten days later, on July 10, 1965, he learned that the car had been involved in a serious accident while operated by defendant's son at Belvedere Shopping Center, and that defendant had expended $661.06 in making repairs resulting therefrom. However, the frame of the car was bent and twisted in the accident and the repairs made did not correct resulting defects which made the car "shimmy," vibrate, pull sideways and "bottom" when driven, so that it was difficult to hold on the road and dangerous to drive.
Plaintiff alleged that the facts relative to the accident and the resulting damage were known to the defendant but that he deliberately, wilfully and intentionally concealed them, thus deceiving him as to the true condition of the car at the time of making the sale, and that the concealment had been fraudulent and in bad faith. Upon learning the true facts plaintiff tendered the car back to defendant and asked a rescission of the contract but defendant refused.
Plaintiff now affirms the contract and sues for damages flowing from defendant's fraudulently deceiving him about the true condition of the car, alleging that the cost had been $4,388.10, which would have been its value if it had been in the condition as represented at the time of the sale, but that its actual worth, because of the condition resulting from the wreck, was only $2,088.10, and he seeks to recover the difference of $2,300, besides $50,000 punitive damages and $2,500 as attorney's fees because of defendant's bad faith.
From the overruling of a general demurrer and six special demurrers to the petition, as amended, defendant appeals.
1. There was no error in overruling the general demurrer. The petition meets the requisites of an action for fraud and deceit. Snow's Laundry c. Co. v. Ga. Power Co., 61 Ga. App. 402, 405 ( 6 S.E.2d 159); Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (2) ( 16 S.E.2d 176); Norris v. Hart, 74 Ga. App. 444 ( 40 S.E.2d 96); Doanes v. Nalley Chevrolet, Inc., 105 Ga. App. 846 ( 125 S.E.2d 717). Though he relies upon concealment of a material fact as the basis for the action, plaintiff alleges that this was done deliberately with an intent to deceive, meeting the test of Camp Realty Co. v. Jennings, 77 Ga. App. 149 ( 47 S.E.2d 917) and of Code § 105-302.
2. Exemplary damages are recoverable in an action of this kind ( Aderhold v. Zimmer, 86 Ga. App. 204 (1) ( 71 S.E.2d 270); Code § 105-2002), as are attorney's fees ( Dodd v. Slater, 101 Ga. App. 358, 360 ( 114 S.E.2d 167)), if the allegations of wilful and deliberate concealment of a material fact upon which plaintiff acted to his detriment and of bad faith on the part of the defendant in accomplishing the deceit as a part of the sale are sustained by evidence upon a trial. Code § 20-1404.
3. All other enumerations of error, not argued or supported in appellant's brief, are deemed abandoned.
Judgment affirmed. Felton, C. J., and Hall, J., concur.