Brown v. Kansas City Southern Ry. Co.

• Decision Date: 01 February 1915
• Docket Number: No. 11327.,11327.
• Citation: 173 S.W. 73
• Parties: BROWN v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

173 S.W. 73

BROWN v. KANSAS CITY SOUTHERN RY. CO.

No. 11327.

Kansas City Court of Appeals. Missouri.

February 1, 1915.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by Cora Courtney Brown against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cyrus Crane, of Kansas City, and Harvey C. Clark, of Nevada, Mo., for appellant. Silvers & Silvers, of Butler, for respondent.

JOHNSON, J.

This action grew out of the relocation and reconstruction of defendant's railroad over a farm in Bates county owned by plaintiff, and the appeal is prosecuted by defendant from a judgment recovered by plaintiff on the third count of her petition.

Preparatory to building the new line, which was designed to straighten the track and reduce the grade, defendant surveyed and staked the new road over plaintiff's farm, and then sent its agent to plaintiff to purchase the necessary land for a new right of way. The area required for this purpose was 13.98 acres, and the negotiations between defendant's agent and plaintiff resulted in her and her husband signing and acknowledging a contract for the sale and conveyance of the land for the consideration of $3,500. Plaintiff resided in Houston, Tex., and had not visited the farm for five years prior to this transaction. Before her marriage and removal to Texas she had lived in Kansas, and occasionally had visited the farm, which belonged to her father, and was inherited by her. In a general way she was familiar with its natural and artificial features, and knew that a certain spring used by her tenants for watering live stock was near the railroad, but she did not know the exact distance, and was particular to inquire of defendant's agent before she agreed upon a price if the spring would be upon the land purchased by defendant, and was assured that it would not be. Plaintiff testified:

"We had a little talk over it. He wanted to give me less than what I wanted; and we had quite a little talk there, and finally, I wouldn't give in, and he said I was like all the rest of the people; that I wanted everything from the railroad; that if it went near a farmhouse, or took in a good spring, they wanted the price of the place; and at that I remembered there was a spring southwest of the orchard, and I asked him if it touched that spring, and he said, `No,' it didn't touch it, or go near it. So then we went over to the attorney's office and I signed the contract. I fully believed him, or I wouldn't never have sold it for that much — what I got."

Later plaintiff and her husband conveyed the land for the new right of way to defendant by warranty deed. It turned out that the spring was on that land and was destroyed in the construction of the new road. The third count of the petition alleges a cause of action for damages sustained in consequence of this misrepresentation, which is denounced as having been fraudulently made and with the intent to deceive plaintiff, and is alleged to have been believed and acted upon by plaintiff to her damage. The contract of sale and the warranty deed contained the recital that the new right of way would not be a greater distance than 200 feet from the old roadbed at any point on plaintiff's farm. It is claimed by defendant that this recital was inserted in both instruments at the instance of plaintiff, and for present purposes we may treat this claim as true, though there is some controversy over it in the evidence.

The agent of defendant, during the negotiations, exhibited a blueprint showing the proposed change in the road, but the location of the spring was not designated thereon. The agent of defendant testified that his negotiations for the purchase of the right of way were conducted at Houston principally with the husband of plaintiff; that he made no representation about the spring, of the existence of which he had no knowledge; that the chief subject of discussion was the price of the land; and that plaintiff's lawyer "drew the contract at the dictation of plaintiff and her husband, whose position in the transaction appeared as that of an agent for her."

The contract of sale was signed May 24, 1911, and the warranty deed was executed June 30, 1911. The new road was constructed, and under date of June 18, 1912, plaintiff presented a claim to defendant for damages resulting from negligence in blasting and in setting out a fire, but did not mention the destruction of the spring. This omission finds explanation in the testimony of plaintiff, which tends to show that the knowledge of the latter damage did not come to her until after the first presentation of the claim.

The only questions argued in the brief of defendant are raised by its demurrer to the evidence, and are predicated of a state of case materially at variance with that disclosed by the evidence of plaintiff, which, for the purposes of such questions, must be accepted as true. The facts we must treat as proved are: First, that at the time she signed the contract plaintiff did not know that the spring in question was on the proposed right of way; second, that such lack of knowledge was communicated by her to the agent of defendant, with the request for accurate information on that subject, and with the intimation that she considered that fact as having a material bearing upon the question of the consideration she should demand for the conveyance; third, that the agent returned a false answer, either willfully or recklessly, with the intent of deceiving her, and thereby inducing her to accept less than a reasonable consideration for the right of way; fourth, that she relied upon the false statement to her detriment; and, fifth, that she had no reasonable opportunity for ascertaining its falsity.

To maintain an action for false representations, the burden is upon the plaintiff to establish by proof: First, that a false representation of a material fact was made to her by defendant; second, that she believed it to be true; third, that her reliance upon it was an act of ordinary prudence; and, fourth, that it influenced her action to her damage. Foundry Co. v. Heskett, 125 Mo. App. loc. cit. 530, 102 S. W. 1050; Wannell v. Kem, 57 Mo. 478.

The argument of defendant, in substance, concedes that the evidence of plaintiff tends to establish the existence of the first two elements, but challenges its sufficiency to discharge...