Blasinay v. Albert Wenzlick Real Estate Co.

• Decision Date: 02 April 1940
• Citation: 138 S.W.2d 721,235 Mo.App. 526
• Parties: ANNA BLASINAY, RESPONDENT, v. ALBERT WENZLICK REAL ESTATE COMPANY, A CORPORATION, ALBERT WENZLICK, JAY YOHE, DEFENDANTS; ALBERT WENZLICK REAL ESTATE COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

138 S.W.2d 721

235 Mo.App. 526

ANNA BLASINAY, RESPONDENT, v. ALBERT WENZLICK REAL ESTATE COMPANY, A CORPORATION, ALBERT WENZLICK, JAY YOHE, DEFENDANTS; ALBERT WENZLICK REAL ESTATE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

April 2, 1940

Motion for rehearing April 16, 1940.

Writ of Certiorari denied June 11, 1940.

Appeal from Circuit Court of City of St. Louis.--Hon. Frank B Coleman, Judge.

REVERSED AND REMANDED.

Case reversed and remanded.

Cobbs Logan, Roos & Armstrong for appellant.

(1) In an action brought against an agent and his principal under the doctrine of respondeat superior a verdict in favor of the agent and against his principal cannot stand. McGinnis v C., R. I. & P. Ry. Co. et al., 200 Mo. 347; Michely v. Miss. Valley Structural Steel Co. et al., 299 S.W 830; Stevens v. D. M. Oberman Mfg. Co. et al., 79 S.W.2d 516; Stoutimore v. A. T. & S. F. Ry. Co., 92 S.W.2d 658; Beck v. Moll, 102 S.W.2d 671; Oliver v. Morgan, 73 S.W.2d 993; Brunk v. Hamilton Brown Shoe Co., 66 S.W.2d 903; Ruehling v. Pickwick-Greyhound Lines, 85 S.W.2d 602; Wade v. Campbell, 243 S.W. 248. (2) Exemplary or punitive damages cannot be properly awarded unless the injury complained of was either malicious, willful or the result of the defendant's reckless indifference to the plaintiff's rights. Patrick v. Employers Mutual Liability Ins. Co., 118 S.W.2d 116; Bean v. Branson, 266 S.W. 743; Hoffman v. Gill, 102 Mo.App. 320. (a) In the absence of any evidence that the acts of defendants were malicious, willful or reckless, it is error to instruct the jury on punitive damages. Cory et al. v. Interstate Securities Co., 99 S.W.2d 861; Day v. Banks, 125 S.W.2d 835. (3) In a fraud case the measure of damages is the difference between the value as represented and the actual value at the time of the transaction. Wolfersberger v. Miller, 39 S.W.2d 758; Long v. Freeman, 69 S.W.2d 973; McFarland v. Cobb, 64 S.W.2d 931. (a) Evidence of a sale price long after the transaction in question is inadmissible. Rardon v. Davis, 52 S.W.2d 193; Jones v. Silver, 97 Mo.App. 231; Pienieng v. Wells, 271 S.W. 62; Ostrander v. Messner, 289 S.W. 609; Bing v. Powell, 93 S.W.2d 877; Cook v. Sears-Roebuck & Company, 71 S.W.2d 73; Synder v. American Car & Foundry Co., 14 S.W.2d 603; Edgell v. Sigerson, 26 Mo. 583; Young v. Byrd, 124 Mo. 593; Donnell v. Wright, 147 Mo. 639; Wiggin v. St. Louis, 135 Mo. 558; Garland v. Smith, 164 Mo. 1; Short v. Taylor, 137 Mo. 517.

Milton C. Lauenstein for respondent.

Leimkuehler v. Wessendorf, 18 S.W.2d 452, 323 Mo. 64; Bishop on Non-Contract Law, par. 573; Cooley on Torts (2 Ed.), page 156; 14A C. J., page 772, par. 2837; Brigham v. Judy, 186 S.W. 15; Buck v. Radcliff Motor Co., 125 S.W.2d 890; 62 C. J., page 1131; Electrolitic Chlor. Co. v. Wallace Tiernan Co., 41 S.W.2d 1049; Haynie v. Jones, 127 S.W.2d 105; Dunham v. 10th St. Garage Co., 94 S.W.2d 1096; Finke v. Boyer, 56 S.W.2d 372; Luikart v. Miller, 48 S.W.2d 867; Stevens v. Wabash Ry. Co., 14 S.W.2d 506; Dickey v. Malechi, 6 Mo. 186; Bragg v. Railroad, 192 Mo. 342; Glennville v. Railroad, 51 Mo.App. 631; State Bank of Sarcoxie v. Harp, 282 S.W. 737; 25 C. J., page 1118. That close and intimate relationship between an owner of a corporation and the corporate entity was recognized in the case of Allen v. Edward Light Co., 233 S.W. 957, where the court said: "It is insisted that Lefkovits and the corporation could not be sued; that either one or the other is liable, and not both. It is true that in slander, but not in libel, publication cannot be the joint act of two or more persons where there is no agency between such persons; in other words each is responsible for its own slander and not that of the other. Newell, Slander & Libel (3 Ed.), par. 487; Wolfson v. Ocean Park Realty Corp., 299 P. 579; Mims v. Bennett, 78 A. L. R. 360. To constitute the relation of master and servant for the purpose of fixing liability on the former for the acts of the latter under the doctrine of respondeat superior, it is indispensable that the right to select the person claimed to be a servant should exist. Furthermore, something more than the mere right of selection is essential to the relation. This right must be accompanied with the power and duty to control the alleged servant while in his employ; this it is said is one of the principal tests of the relation. It is also essential to the relation of master and servant that the right to remove should exist. 39 C. J., 1269-1270, citing among authorities Morgan v. Bowman, 22 Mo. 538; McKinley v. Chicago Rys. Co., 40 Mo.App. 449; Kiser v. Suppe, 133 Mo.App. 19, 112 S.W. 1005; Perry v. Strawbridge, 209 Mo. 632; Box v. Lanier, 112 Tenn. 409; Riggs v. Palmer, 115 N.Y. 511.

HUGHES, P. J. Becker and McCullen, JJ., concur.

OPINION

HUGHES, P. J.

This case was heretofore determined by this court by an opinion handed down on January 9, 1940. Thereafter, on motion of respondent a rehearing was granted, and the cause was further briefed and reargued. After careful consideration and research we find no reason to change our original opinion, and it is now submitted with additions thereto as follows:

This is an action in tort by which plaintiff seeks to recover damages alleged to have been sustained by her by the fraud and misrepresentation of the Albert Wenzlick Real Estate Company, through its agents, Albert Wenzlick and Jay Yohe. All three, the Albert Wenzlick Real Estate Company, Albert Wenzlick and Jay Yohe, were made defendants in this action.

In October, 1930, plaintiff purchased from the Albert Wenzlick Real Estate Company a $ 5000 promissory note, secured by a deed of trust on property at 2023 Franklin Avenue in St. Louis. The $ 5000 note was dated May 29, 1930, with interest at the rate of six per cent per annum and was due three years after date. The evidence is clear that at the time she purchased the deed of trust, Mrs. Blasinay dealt with Albert Wenzlick, who was then president of the Albert Wenzlick Real Estate Company, and Jay Yohe, who was then an office employee of the defendant company and in charge of its loan department. No other agent or employee of the Wenzlick Company had anything to do with the transaction.

At the time Mrs. Blasinay purchased this $ 5000 deed of trust, she paid for it by relinquishing another deed of trust in the principal sum of $ 4500 and the difference of $ 570, covering interest, and adjustments was paid in cash. Together with the $ 5000 principal note, plaintiff received six semi-annual interest notes of $ 150 each.

The plaintiff testified that at the time she acquired this deed of trust from the Wenzlick Company, she went to their office and first spoke to Mr. Albert Wenzlick, who was then president of the company. Albert Wenzlick turned her over to Mr. Yohe, the head of the loan department of the Wenzlick Company, who handled the details of closing the transaction.

It was while plaintiff was completing the details of the transaction with Mr. Yohe that one of the alleged representations upon which she bases her action is supposed to have been made, plaintiff testifying that Yohe told her that the property at 2023 Franklin was worth $ 10,000. Plaintiff's evidence further indicates that upon inquiry Albert Wenzlick had stated that the loan was good and that the property securing the note was worth $ 10,000 or more.

The first five of the six semi-annual interest notes for $ 150 each were paid as they fell due and checks therefor were forwarded to Mrs. Blasinay by the Wenzlick Company. Some two months before the principal note and the last interest note became due, defendant Company wrote plaintiff, advising her that the loan would mature on May 29, 1933, and asking her to sign and return a copy of the letter if she was willing to renew the loan. This letter was so signed and returned by Mrs. Blasinay.

However, the efforts to have the loan renewed were unavailing, due to the inability of the owner of the property. When it was found that the loan could not be renewed, Mrs. Blasinay was so advised, and it was recommended that the property be foreclosed and bought in by Mrs. Blasinay so that she might have the income from the property.

When Mrs. Blasinay insisted that she would not take over the property because of her lack of knowledge of real estate, the Wenzlick Company offered to furnish a straw party to take title for her benefit, the property to be managed by the Wenzlick Company, who would remit the net rent to plaintiff after deducting taxes, repairs, etc. In order that Mrs. Blasinay might be properly protected, the straw party was to execute new notes and a new deed of trust for delivery to the plaintiff.

This plan of handling the situation was discussed with Mrs. Blasinay at a meeting held at the Wenzlick office. When Mrs. Blasinay came to the office on this occasion, she was accompanied by her husband, Frank Blasinay; her sister, Mrs. Kutilek, and Mr. Armbruster, a friend and employer of Frank Blasinay. After an explanation and discussion of this arrangement in the presence of all of these parties, an agreement was signed by Mrs. Blasinay and her husband consenting to the plan as outlined.

Thereafter, a foreclosure sale was held in accordance with the terms of the deed of trust and the Franklin Avenue property was bought in in the name of Charles Hart for the account of Anna Blasinay. Hart then executed a new principal note for $ 5000 due in three years, together with a deed of trust as security. Hart also executed a quit-claim deed to the property and these new papers were turned over to Mrs. Blasinay.

The income from the property was not sufficient to meet the payments on the new loan as they matured, and in March of 1937 a second foreclosure sale was...