Winston Realty Co., Inc. v. GHG, INC. , 70 N.C. App. 374 ( 1984 )

PHILLIPS, Judge.

Defendant first contends that the trial court committed reversible error in allowing plaintiffs witness, Thomas Etowski, to testify as to his interpretation of the word “pre-screen,” as used in defendant’s yellow page advertisement. The contention is that it was up to the court to determine the meaning of the word as a matter of law. We disagree. First of all, the testimony objected to, instead of an interpretation of anything, mostly stated the witness’s understanding of defendant’s function, which was appropriate under the circumstances that existed. The following is an example: “I understand the function of the personnel agency was that they were going to do the checking, the screening, the verifying of the information so that when I, as an employer, was hiring someone ... I didn’t have to do all that.” Furthermore, the meaning that defendant relies on —an unidentified dictionary definition of the word “screen,” which defendant introduced into evidence — is itself incomplete, if not indefinite. Of the several definitions stated on the exhibit, the only one possibly applying to this case is: “To interview or test in order to separate according to skills, personality, aptitudes, etc.” The “etc.,” of course, adds other characteristics along the same lines as skills, personality, and aptitudes to the definition; and under the circumstances, whether defendant’s advertisement that it had “[p]re-screened, qualified” bookkeepers available for early employment implied that the applicant’s work experience and reliability had been checked was a question of fact, rather than law. Finally, even if the witness’s testimony be construed as an interpretation that the word pre-screened meant that the references and work experience of applicants had been checked, plaintiffs evidence that defendant’s employee expressly represented that Ms. Skinner’s in-state references had been checked rendered the interpretation harmless in any event.

Defendant next contends that its motions for a directed verdict at the close of plaintiffs evidence and at the close of all the evidence should have been granted for three reasons: First, because the Chapter 75 unfair trade practices claim is based on defendant violating G.S. 95-47.6(2) and (9), which forbids false advertising by personnel agencies, and the evidence shows no such violation; second, even if the evidence tends to show defendant violated the statute, it does not show that plaintiff s damages resulted therefrom; and, third, even if defendant’s violation of the statute was a proximate cause of plaintiffs damages, plaintiffs claim is nevertheless barred because of its own contributory negligence, which the verdict established. The statutory provisions defendant allegedly violated follow; the portions of Chapter 75 that they relate to will be set forth later:

§ 95-47.6. Prohibited acts.

A private personnel service shall not engage in any of the following activities or conduct:

(2) Publish or cause to be published any false or fraudulent information, representation, promise, notice or advertisement.

(9) Knowingly make any false or misleading promise or representation or give any false or misleading information to any applicant or employer in regard to any employment, work or position, its nature, location, duration, compensation or the circumstances surrounding any employment, work or position including the availability thereof.

For the reasons stated in addressing defendant’s first assignment of error, it is quite plain, we think, that plaintiffs evidence supported the claim and verdict that defendant violated G.S. 95-47.6(2) by advertising that “[p]re-screened, qualified applicants” were quickly available through it, whereas the work experience and reliability of the applicants had been neither investigated nor verified. And in dwelling just on the false advertisement part of the claim and verdict, defendant is mistaken. Independently, as Issue Number Three (b) shows, was the charge that defendant violated G.S. 95-47.6(9) by knowingly making false or misleading representations or giving false or misleading information to plaintiff concerning the employment. This separate claim and the verdict on this issue was supported by Mr. Etowski’s testimony that Ms. Davis told him Ms. Skinner’s in-state references had been checked and by defendant’s admission that no such check was made.

The defendant’s contention that plaintiffs damages did not proximately result from the misinformation received likewise fails. The proximate, eause issue, nearly always a question of fact, rather than law, was properly submitted to the jury. Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 268 S.E. 2d 271 (1980). Plaintiffs witness testified that he relied upon defendant’s false representations in hiring Rebecca Skinner. From that evidence, the jury was at liberty to conclude that some of plaintiffs damages, at any rate, proximately resulted from the representations so made. The verdict also indicates that the jury concluded that some of the damages claimed did not proximately flow from the misrepresentations. We do not believe the verdict should be disturbed.

The contention that contributory negligence is an absolute defense to a Chapter 75 action is also rejected. What contributory negligence is an absolute defense to, and all it is a defense to, as Judge Johnson correctly ruled, is a claim based on negligence. But Chapter 75 actions are not based upon negligence; they are based upon “unfair or deceptive acts or practices in or affecting commerce,” which the General Assembly has made unlawful. G.S. 75-1.1. In regard to this, our Supreme Court said:

A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers . . . [a]n act or practice is deceptive ... if it has the capacity or tendency to deceive.

Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 263, 265, 266 S.E. 2d 610, 621-2 (1980). After discussing the history of this Act and observing that the legislative intent was to establish an effective private cause of action for aggrieved consumers in this State because common law remedies had often proved ineffective, our Supreme Court remarked:

If unfairness and deception are gauged by consideration of the effect of the practice on the marketplace, it follows that the intent of the actor is irrelevant. Good faith is equally irrelevant. What is relevant is the effect of the actor’s conduct on the consuming public. Consequently, good faith is not a defense to an alleged violation of G.S. 75-1.1.

Marshall v. Miller, 302 N.C. 539, 548, 276 S.E. 2d 397, 403 (1981). For similar reasons, it seems plain that the Legislature did not intend for violations of this Chapter to go unpunished upon a showing of contributory negligence. If unfair trade practitioners could escape liability upon showing that their victims were careless, gullible, or otherwise inattentive to their own interests, the Act would soon be a dead letter.

Defendant finally contends that, as a matter of law, Chapter 75 does not apply to its activities in this case and the judgment to the contrary should therefore be set aside. The argument, in gist, is that the Chapter applies only to buyer-seller relationships and competition between business competitors. Certainly, the parties were not in competition with each other and defendant made no sale to plaintiff. Defendant just recommended that plaintiff employ Ms. Skinner, one of its supposedly qualified applicants, and its compensation was not received from plaintiff, but from Ms. Skinner after plaintiff employed her. Nevertheless, we believe that defendant’s activities were subject to the Chapter. In pertinent part, G.S. 75-1.1 provides as follows:

75-1.1. Methods of competition, acts and practices regulated; legislative policy.

(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.

(b) For purposes of this section, “commerce” includes all business activities, however denominated, but does not include professional services rendered by a member of a learned profession.

(d) Any party claiming to be exempt from the provisions of this section shall have the burden of proof with respect to such claim.

The breadth and scope of these provisions requires no elaboration, and we are of the opinion that defendant’s activities were covered by them. In recommending employees to plaintiff and other employers defendant certainly was engaged in business and its activities obviously affected commerce. On this subject, our Supreme Court has said, “ l[c]ommerce’ in its broadest sense comprehends intercourse for the purposes of trade in any form.” Johnson v. Phoenix Mutual Life Insurance Co., supra. No doubt, because the Act is so broad and comprehensive, the Legislature specifically excluded members of a learned profession from its application, but it has not excluded employment agencies, and defendant has not shown that it is exempt. We therefore hold that Chapter 75 does apply to defendant’s activities in this case and overrule this assignment of error also.

No error.

Judge Arnold concurs. Judge Hedrick dissents.