State ex rel. Wahl v. Reynolds

• Decision Date: 22 December 1917
• Citation: 199 S.W. 978,272 Mo. 588
• Parties: THE STATE ex rel. GEORGE A. WAHL v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

199 S.W. 978

272 Mo. 588

THE STATE ex rel. GEORGE A. WAHL v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

December 22, 1917

Writ quashed.

John Cashman for relator.

The majority opinion and judgment of the St. Louis Court of Appeals in the case of Flack v. Wahl, in deciding that evidence of the lunacy or mental incapacity of Flack may be given in evidence to the jury without being pleaded, or made an issue by the pleadings, failed and refused to follow the last controlling decisions of the Supreme Court on that question and that decision and judgment should, therefore, be set aside and annulled by this court. The decisions so disregarded by the Court of Appeals are: Caldwell v Reed, 198 Mo. 379; Wells v. Mutual Benefit Assn., 126 Mo. 637; Rhoades v. Fuller, 139 Mo 187; Jamison v. Culligan, 151 Mo. 416; Blunt v Spratt, 113 Mo. 48; McKenzie v. Donnell, 151 Mo. 454, 455; McFarland v. Mo. Pac. Ry. Co., 125 Mo 276; Harris v. Craven, 188 Mo. 609; Och v. Railroad, 130 Mo. 74; Chitty v. Railroad, 148 Mo. 64; Cobb v. Lindell Ry., 149 Mo. 144; Mark v. Cooperage Co., 204 Mo. 261. Other cases and text-writers sustaining the doctrine are: Banking Co. v. Loomis, 140 Mo.App. 62; 2 Chitty on Pleading, 436; Harrison v. Richardson, 1 Mood. & Rob. 504; Jackson v. Van Densen, 5 Johns. 144; Alcock v. Alcock, 3 M. & G. 147, 268; Kendall v. May, 10 Allen, 59; Jackson v. Caldwell, 4 Cowen, 207; Edwards, Bills & Notes (3 Ed.), sec. 26; Byles on Bills and Notes (8 Ed.), sec. 64; Randolph on Commercial Paper, sec. 251. The majority opinion says, in discussing the admissibility of this evidence: "Were the action one to rescind the contract on the ground that Flack was mentally incapable of contracting, the question would be quite a different one." Meaning, of course, that then the mental incapacity would have to be pleaded before proof thereof may be offered. This part of the opinion is further in conflict with the last controlling decisions of the Supreme Court on that point. Much stricter requirements apply in actions for damages on ground of fraud than on actions to rescind. McFarland v. Railroad, 125 Mo. 276; Harrison v. Craven, 188 Mo. 608. To like effect are the following textwriters: 20 Cyc. 11; Greenleaf on Evidence (16 Ed.), p. 37, sec. 14; 2 Wigmore on Evidence, p. 25, sec. 1904.

R. P. Williams and C. B. Williams for respondents.

(1) All facts from which the ultimate and conclusive facts may be inferred are evidential and need not be stated; but those facts from which the legal conclusion is to be drawn, upon which the right of action depends, must be stated. Mental weakness is simply an evidential fact, from which the ultimate fact -- namely, reliance -- may be inferred. Fogle v. Pindell, 248 Mo. 72; Bragg v. Met. St. Ry., 192 Mo. 350; Bailey v. Kansas City, 189 Mo. 514; Planet v. St. Louis, 115 Mo. 619; Alcorn v. C. & A., 108 Mo. 91; Robertson v. Wabash, 84 Mo. 121; Murphy v. Price, 48 Mo. 250; Sawyer v. Walker, 204 Mo. 157; Moormeister v. Hannibal, 163 S.W. (Mo. App.) 928; See v. Cox, 16 Mo. 168; Mitchell v. Clinton, 99 Mo. 153; Edgell v. Sigerson, 20 Mo. 494 and 497; Kinsolving v. Kinsolving, 194 S.W. (Mo. App.) 530; Patterson on Missouri Code Pleading (2 Ed.), secs. 66, 127, 146. (2) In a certiorari proceeding it is not a question as to whether or not the opinion of the Court of Appeals is sustained by authority, but the sole question is whether it contravenes one of the Supreme Court rulings upon a similar state of facts. State ex rel. v. Robertson, 197 S.W. 79; State ex rel. v. Ellison, 269 Mo. 151. (3) A party cannot be surprised that his adversary introduced testimony in support of the issues made by the pleadings, even though such testimony is false. McWhirt v. Railroad, 187 S.W. 830; Byrd v. Vanderburg, 168 Mo.App. 120; Bragg v. Moberly, 17 Mo.App. 22; Haynes, New Trial, par. 79; Shore v. Powell, 76 S.E. (W. Va.) 126.

BOND, J. Walker, Faris and Williams, JJ., concur; Graves, C. J., dissents in separate opinion, in which Woodson and Blair, JJ., join.

OPINION

In Banc.

Certiorari.

BOND J.

I. This is an application by certiorari to declare the majority opinion of the St. Louis Court of Appeals to be void for want of jurisdiction, in that the legal doctrine announced in that decision was in conflict with the last previous rulings of this court in the cases cited by relator.

The point, as to which the petitioner alleges errancy in the opinion of the Court of Appeals, depriving it of jurisdiction, is so much of its opinion as affirms the admissibility of evidence tending to show the plaintiff in a legal action for fraud and deceit was a man of weak mentality, inexperienced, over-credulous and unqualified in business dealings, and therefore more likely to rely upon the false representations of defendant than if he had been a man of average capacity. It is urged on the part of the relator that such evidence was inadmissible in view of the fact that the petition filed by plaintiff stated the facts necessary to the sustention of an action for damages for fraud and deceit, without any averment of any insufficiency on the part of plaintiff in the respects shown by the testimony.

In dealing with the point thus presented to it, the majority opinion of the Court of Appeals (after reciting the substance of the testimony tending to show that plaintiff was weak-minded and easily influenced) disposed of the question as follows (Flack v. Wahl, 193 S.W. 56, 60):

"The only question before us in this connection is whether testimony of this character is admissible at all in the absence of an allegation in the petition to the effect that plaintiff Charles D. Flack was weak-minded or mentally incapable of protecting himself in a business transaction . .

"From the record before us it appears that the trial court ruled as it did upon the theory that this testimony was admissible under the allegation of the petition that plaintiffs relied upon the alleged false representations of defendant, believing them to be true, and were thereby induced to enter into the contract in question and consummate the same. A consideration of this assignment of error has led us to the conclusion that this view is sound. It was, of course, unnecessary for plaintiffs to plead anything respecting the mental capacity of plaintiff Charles D. Flack as an essential element of their action for fraud. The petition alleges all of the substantive facts constituting the cause of action sued upon. Among these is the necessary averment that plaintiffs relied upon the representations alleged to have been made to them. It was essential that plaintiffs sustain this averment by proof, and it would seem that it was proper to receive for this purpose any evidence having any probative force and effect -- and not otherwise inadmissible -- which tended to support such averments. An allegation that Flack was weak-minded would seem to have no proper place in this petition. The Code requires a plain and concise statement of the facts constituting the cause of action (Sec. 1794, R. S. 1909), and provides that only the substantive facts necessary to constitute the cause of action shall be stated (Sec. 1813, R. S. 1909), and provides further that a party shall not be required to state evidence in his pleading or to disclose therein the means by which he intends to prove his case (Sec. 1818, R. S. 1909). Here the substantive facts to be alleged are that defendant made certain specified false representations of material facts in connection with an exchange of properties; that defendant knew such representations to be false or made them of his own knowledge when he had no knowledge as to their truth or falsity; that they were made with the intent and purpose that they be acted upon by plaintiffs, and that plaintiffs did rely and act thereupon, to their damage. All of these substantive facts were properly alleged. It would have been unnecessary and improper to plead the evidence by which plaintiffs expected to prove such substantive facts. The fact that Charles D. Flack was weak-minded, if true, was not one of the substantive facts constituting the cause of action, and hence was not alleged. Were the action one to rescind the contract on the ground that Flack was mentally incapable of contracting, the question would be quite a different one. But in the instant case it seems quite clear that the question is not whether plaintiffs should have pleaded this matter, but whether evidence of this character is admissible at all in an action of this precise character. It was not admissible for any purpose except to prove that the representations were relied upon. In such cases reliance is a question of fact, to be established not alone by a party's own assertion, but to be gathered from probative facts and circumstances which cast light upon the matter. And if the party alleging fraud be ignorant, inexperienced or of weak intellect, and hence guileless and readily susceptible to the artful designs of a fraud-feasor, and easily imposed upon, proof thereof ought to be held admissible in support of the allegations of reliance. Particularly is this true here, we think, since defendant strongly contended and sought to make it appear that plaintiffs had full opportunity to investigate, and did investigate, and are not in a position to assert that they relied and acted upon the representations alleged.

"In a leading encyclopedic compendium of our law, the rule concerning this matter is thus stated:

"'Evidence is admissible of any facts tending to show reasons for reliance upon defendant's representations -- as that the discovery of the true condition of things was difficult, that the relations of the parties were of a confidential nature that plainti...