Brewster v. Bubba Oustalet, Inc. , 1970 Miss. LEXIS 1577 ( 1970 )

BRADY, Justice:

This is an appeal from the Circuit Court of Harrison County, Mississippi, wherein the appellant, Ernestine Brewster, a resident of Mobile, Alabama, brought an action against Bubba Oustalet, Inc., a Mississippi corporation, and a Ford dealer in Gulfport, Mississippi, for actual and punitive damages occasioned by the sale of an automobile by the appellee to the appellant. The appellant asked for damages in the amount of $25,000, including both actual and punitive damages. The jury returned a verdict for the appellant in the amount of $280 and from this verdict the appellant appeals on the sole issue of punitive damages. The appellee cross-appeals, alleging that the court erred in not giving a peremptory instruction for the appellee.

The instructions requested by appellant relating to punitive or exemplary damages were properly refused by the learned circuit judge for the reason that they requested the appellant to prove only by a preponderance of the evidence that fraud was perpetrated upon her. It has been the rule in this state for a long time that where fraud is charged it must be shown by evidence, which is clear and more convincing than a mere preponderance. Mayfield Motor Co., Inc. v. Parker, 222 Miss. 152, 75 So.2d 435 (1954); Osborn v. Thomas, 221 Miss. 682, 687, 74 So.2d 757 (1954). In the latter case we pointed out that there is a presumption against fraud, dishonesty and bad motive, and efforts to overcome this presumption must be more than a mere preponderance; it must be clear and convincing. The appellant cannot appeal from his own errors. The verdict of the jury and the judgment of the circuit court is affirmed. The trial court did not commit error in refusing the peremptory instruction requested by the appellee.

Affirmed on appeal and cross appeal.

ETHRIDGE, C. J., and RODGERS, JONES and INZER, JJ., concur.