Johnson v. Radio Station W O W
| Decision Date | 26 May 1944 |
| Docket Number | 31685. |
| Citation | 14 N.W.2d 666,144 Neb. 406 |
| Parties | JOHNSON v. RADIO STATION WOW, Inc., et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A prayer for general relief in an equity action is sufficient to authorize any judgment to which the party is entitled under the facts pleaded and the evidence adduced in support thereof.
2. The power to license a radio station, or to transfer, assign or annul such a license, is within the exclusive jurisdiction of the Federal Communications Commission by virtue of subchapter I to subchapter VI, inclusive, of chapter 5, Title 47, U.S.C.A.
3. A judgment of this court, vacating a lease of a radio station on the ground of constructive fraud and ordering a return of the property to its former owner in a representative suit, in no way affects or encroaches upon the granted powers of the Federal Communications Commission to license, or to transfer assign or annul such a license.
4. A constitutional question not presented to the district court cannot be raised for the first time on an appeal to the supreme court.
Ralph W. Slocum and Stewart, Stewart & Whitworth, all of Lincoln, for appellant.
Brown Crossman, West, Barton & Fitch, Rainey T. Wells, and Paul P. Massey, all of Omaha, Peterson & Devoe and Cline, Williams & Wright, all of Lincoln, and William P. Kelley, of Omaha, for appellees.
Heard before PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.
Our first opinion in this case will be found in 13 N.W.2d 556. In that opinion we determined that the lease of the radio station, which was the subject matter of the action, was made and procured as the result of constructive fraud. The facts upon which this holding was based are set out in the former opinion and will not be repeated here. The lease was thereupon set aside and directions given ordering the restoration of the property to the Woodmen of the World Life Insurance Society, the owner and lessor. Motions for a rehearing have been filed which raise certain questions not heretofore presented that are deserving of consideration.
It is urged by the defendants that the issue of constructive fraud was not pleaded and that the holding of the court that the lease should be set aside because of constructive fraud constitutes a fatal variance from the pleadings. The petition meticulously recites the facts and prays for a decree declaring the lease to be illegal and void because of fraud and ordering cancellation and termination of the same, and for such other, further and different relief as equity and justice may require. Neither the words "actual" or "constructive" were used in connection with the charging of fraud in plaintiff's petition. Under our system of Code pleading, a petition is required to contain a statement of the facts constituting the cause of action in ordinary and concise language. Comp.St.1929, sec. 20-804. Legal conclusions as to the nature of the action are not required and are not considered good pleading. State ex rel. Johnson v. Wagner, 139 Neb. 471, 297 N.W. 906. The character of a cause of action is determined by the allegations of fact contained in the petition, unaffected by the conclusions of the pleader. An authoritative text states the rule as follows: "Generally, however, it may be said, that the essential character of the cause of action and the remedy or relief it seeks, as shown by the allegations of the complaint, determine whether a particular action is at law or in equity, unaffected by the conclusions of the pleader or by what the pleader calls it, or the prayer for relief, or the nature of the defense interposed, or new matter stated in the reply, or whether the action is statutory or otherwise." 1 C.J.S., Actions, p. 1152, § 54. The prayer of the petition asks for general equitable relief and is not, therefore, so restrictive as to preclude the holding that constructive fraud exists. In School District No. 70 v. Wood, 13 N.W.2d 153, 158, we said: "A prayer for general relief in an equity action is as broad as the pleadings and the equitable powers of the court." In the same case we also said: "A prayer for general relief in an equity action is sufficient to authorize any judgment to which the party is entitled under the pleadings and evidence, even though he may have misconstrued his remedy and prayed specially for lesser relief." A constructive fraud is usually defined as "a breach of duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive, to violate confidence, or to injure public interests." 37 C.J.S., Fraud, p. 211, § 2c. Constructive fraud generally arises from a breach of duty arising out of a fiduciary or confidential relationship. An examination of the pleadings and the evidence reveals the correctness of the holding in our former opinion that a constructive fraud was sufficiently pleaded and proved by the evidence. Consequently, the claim of defendants that such a holding constitutes a fatal variance from the pleadings and the evidence is without merit.
Defendants urge that the subject matter of this action is solely within the jurisdiction of the Federal Communications Commission Act, subchapter I to subchapter VI, inclusive, of chapter 5, Title 47 U.S.C.A., and that this court is therefore without jurisdiction to pass upon the issues raised herein. This contention is in part based upon the interpretation placed by them upon that part of our former opinion as follows : "It is therefore ordered that the lease to the station, the lease to the space occupied by the station and the transfer of the license to operate the station be vacated and set aside. *** that the license to operate the station be returned and that lessee is directed to do all things necessary for that purpose; that generally everything be done to restore the parties to their original position prior to the entering into the leases;...
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