South v. Sherwood Chevrolet, Inc. ( 1982 )

Ness, Justice:

Respondent, South, was awarded $1750.00 actual and punitive damages against appellant for fraud and deceit. Appellant, Sherwood, appeals the denial of his motions for nonsuit, directed verdict and judgment N.O.V. asserting South failed to prove any fraudulent practice by him. We disagree and affirm.

In January, 1979, South approached several automobile dealers to purchase a new 1979 pickup truck. At Sherwood Chevrolet, Mr. South testified he specifically asked to see a 1979 truck and was directed to the vehicle he subsequently purchased. The window sticker on the truck stated it was a 1979 model, when in fact it was a 1978. South purchased the truck believing it to be a 1979 model.

Sherwood contends there was no misrepresentation as to die model of the truck since respondent signed a sales agreement with the truck designated as a 1978 model. In addition, the glove compartment contained a 1978 owner’s manual and the EPA sticker on the window listed the estimated gas mileage for a 1978 truck. Sherwood’s argument is based on Moye v. Wilson Motors, Inc., 254 S. C. 471, 176 S. E. (2d) 147 (1970) which states one who has signed a written instrument cannot complain of fraud in the misrepresentation of the contents when the truth could have been ascertained by reading it. Thus, Sherwood submits it was error for the jury to decide the case when the evidence reveals respondent could have ascertained the truck was a 1978 model despite the admitted misrepresentation on the window sticker.

Appellant was not able to explain the 1979 sticker on the 1978 truck. First they claimed they were out of 1978 stickers (Tr. 108) but on cross examination stated the 1979 sticker was put on by mistake. (Tr. 116).

In Moye v. Wilson Motors, Inc., supra, cited by appellant, no representation at all was made as to the contents of the contract. There the plaintiff was complaining of a contract provision not called to his attention.

Here, the model of the truck was directly misrepresented to South as a 1979 model, and then recorded as a 1978 in the provisions of the printed contract.

What recourse if not an action for fraud and deceit is available to South to remedy this situation? South testified he believed the truck to be a 1979 model until he tried to sell it. This situation is analogous to Carroll Motors, Inc. v. Purcell, 273 S. C. 745, 259 S. E. (2d) 604 (1979).

In Carroll the sales agent represented a mileage odometer on a car to be correct “to the best of his knowledge” when in fact he had not examined the odometer. We held that statement to be a reckless disregard of the truth and concluded the lower court erred in not submitting the case to the jury.

The Court noted:

“[KJnowIedge of the falsity of a representation is legally inferable where one makes it as of his personal knowledge, realizing that he is without information as to its truth, and recklessly disregarding that lack of information.” Gary v. Jordan, 236 S. C. 144 at 154-155, 113 S. E. (2d) 730 (1960) as cited in Carroll, supra, 259 S. E. (2d) at 606.

The key determination in the present case depends on the facts. The jury is the sole trier of the facts. S. C. Const., Art. 1, § 14, Art. 5, §18. Summary judgment should not be granted where genuine issues of material fact exist, S. C. Farm Bureau v. Scott, 274 S. C. 264, 262 S. E. (2d) 739 (1980). S. C. Code, 1976, § 56-9-10, et seq. nor should a motion for a directed verdict or judgment N.O.V. Circuit Court Rule 79; Gallmon v. American Employers’ Ins. Co., 272 S. C. 369, 252 S. E. (2d) 124 (1979).

Due to the conflicting testimony present, we hold this is a jury issue and affirm.

Affirmed.

Lewis, C. J., and Littlejohn, J., concur. Gregory and Harwell, JJ., dissent.