Burns v. Wannamaker , 288 S.C. 398 ( 1986 )

288 S.C. 398 (1986) 343 S.E.2d 27

Mary Sue BURNS, Respondent
v.
Robert L. WANNAMAKER, D.D.S., Petitioner.

22530

Supreme Court of South Carolina.

April 14, 1986.

John L. Choate and Charles R. Norris of Nelson, Mullins, Grier & Scarborough, Columbia, for petitioner.

Carlos W. Gibbons, Jr. of Kneece, Kneece, Willoughby, Ashley & Gibbons, Columbia, for respondent.

April 14, 1986.

Per Curiam:

This case is before the Court on petition for a writ of certiorari to review the opinions of the Court of Appeals in Burns v. Wannamaker, 281 S.C. 352, 315 S.E. (2d) 179 (1984), appeal after remand, 286 S.E. 336, 333 S.E. (2d) 358 (1985).

We grant certiorari to review the question of what burden of proof applies to this case and deny certiorari on all other questions. We dispense with the filing of briefs and affirm the opinions of the Court of Appeals as modified.

The Court of Appeals held that a dentist's breach of an express warranty for the fit of dentures must be proved by clear and convincing evidence. This holding is erroneous.

The general burden of proof for breach of warranty cases in South Carolina is preponderance of the evidence. Spartanburg Hotel Corp. v. Alexander Smith, Inc., 231 S.C. 1, 97 S.E. (2d) 199 (1957); Stevenson v. B.B. Kirkland Seed Co., 176 S.C. 345, 180 S.E. 197 (1935); Baltazzi v. McCormick, 153 S.C. 371, 150 S.E. 900 (1929). The clear and convincing standard adopted by the Court of Appeals would give greater protection to doctors than to any other class of warranty defendants.

Because the application of an erroneous burden of proof did not affect the result in this case, we affirm the opinions of the Court of Appeals as modified. Respondent's request for attorney's fees in excess of those available under Supreme Court Rule 38 is denied.

Affirmed as modified.