Mesimer v. Stancil

Court of Appeals of North Carolina

Mesimer v. Stancil

263 S.E.2d 32, 45 N.C. App. 533, 1980 N.C. App. LEXIS 2663

CourtCourt of Appeals of North Carolina

DecidedMarch 4, 1980

Docket7910SC77

StatusPublished

Cited by2 cases

This text of 263 S.E.2d 32 (Mesimer v. Stancil) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mesimer v. Stancil, 263 S.E.2d 32, 45 N.C. App. 533, 1980 N.C. App. LEXIS 2663 (N.C. Ct. App. 1980).

Pincite

Opinion

WEBB, Judge.

The sole question presented by this appeal is whether the court committed error by dismissing the plaintiff’s claim for punitive damages. Punitive damages are not allowed in claims for breach of contract except breaches of promise to marry. However, if an identifiable tort which carries punitive damages is alleged as a part of the breach of contract, punitive damages will be allowed. Fraud is a tort for which punitive damages are allowed. See Newton v. Insurance Co., 291 N.C. 105, 229 S.E. 2d 297 (1976). In the case sub judice, the plaintiff alleges he paid defendant $250.00 in exchange for a promise to cap his tooth, and the defendant never intended to cap the tooth. This is sufficient to allege a *535 claim for fraud. See Gribble v. Gribble, 25 N.C. App. 366, 213 S.E. 2d 376 (1975). It was error to dismiss the plaintiff’s claim for punitive damages.

We perceive there may be some injustice to the defendant in letting the verdict for $1,000.00 in compensatory damages stand if there is to be a trial on the issue of punitive damages. The verdict is four times what the plaintiff had paid to have the tooth capped. It may be the jury gave some consideration to punitive damages in rendering this verdict. In our discretion, we order a new trial on all issues. See Weyerhaeuser Co. v. Supply Co., 292 N.C. 557, 234 S.E. 2d 605 (1977).

New trial.

Judges ARNOLD and Wells concur.

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WEBB, Judge.

The sole question presented by this appeal is whether the court committed error by dismissing the plaintiff’s claim for punitive damages. Punitive damages are not allowed in claims for breach of contract except breaches of promise to marry. However, if an identifiable tort which carries punitive damages is alleged as a part of the breach of contract, punitive damages will be allowed. Fraud is a tort for which punitive damages are allowed. See Newton v. Insurance Co., 291 N.C. 105, 229 S.E. 2d 297 (1976). In the case sub judice, the plaintiff alleges he paid defendant $250.00 in exchange for a promise to cap his tooth, and the defendant never intended to cap the tooth. This is sufficient to allege a *535 claim for fraud. See Gribble v. Gribble, 25 N.C. App. 366, 213 S.E. 2d 376 (1975). It was error to dismiss the plaintiff’s claim for punitive damages.

We perceive there may be some injustice to the defendant in letting the verdict for $1,000.00 in compensatory damages stand if there is to be a trial on the issue of punitive damages. The verdict is four times what the plaintiff had paid to have the tooth capped. It may be the jury gave some consideration to punitive damages in rendering this verdict. In our discretion, we order a new trial on all issues. See Weyerhaeuser Co. v. Supply Co., 292 N.C. 557, 234 S.E. 2d 605 (1977).

New trial.

Judges ARNOLD and Wells concur.

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Bluebook (online)

263 S.E.2d 32, 45 N.C. App. 533, 1980 N.C. App. LEXIS 2663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mesimer-v-stancil-ncctapp-1980.

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