Brownstein v. Bricker

• Decision Date: 08 March 1932
• Parties: JOE BROWNSTEIN, DEFENDANT IN ERROR, v. MORRIS BRICKER AND JENNIE BRICKER, PLAINTIFFS IN ERROR
• Court: Missouri Court of Appeals

46 S.W.2d 958

226 Mo.App. 882

JOE BROWNSTEIN, DEFENDANT IN ERROR, v. MORRIS BRICKER AND JENNIE BRICKER, PLAINTIFFS IN ERROR

Court of Appeals of Missouri, St. Louis

March 8, 1932

Error to the Circuit Court of the City of St. Louis.--Hon. Wm. H Killoran, Judge.

REVERSED.

Judgment reversed.

Taylor Mayer & Shifrin for plaintiffs in error.

(1) The court below erred in rendering judgment against defendants because the petition wholly fails to state a cause of action against them, or either of them. Wallrath v. Crary (K. C.), 222 S.W. 895. (2) The petition and judgment are parts of the record proper and are reviewable by the court without a bill of exceptions and without exceptions thereto in the lower court. Peltz v. Eichele, 62 Mo. 171; Dysart v. Crow, 170 Mo. 275; Pickel v. Pickel, 159 S.W. 774, 176 Mo.App. 673. (3) The question as to whether or not a petition wholly fails to state a cause of action may be raised in the appellate court for the first time. Although there was no answer or other pleading filed by the defendants in the court below and no exceptions were preserved or even taken therein, yet if the petition herein wholly fails to state a cause of action the judgment based thereon is erroneous and should be reversed. Peltz v. Eichele, supra; Hoffman v. McCracken, 168 Mo. 337; King v. Missouri Dairy Co., 187 S.W. 284; Wallrath v. Crary, supra; Streib v. Local Lodge, 40 S.W.2d 519. (4) In considering a petition as to whether or not it states a cause of action conclusions of law alleged by the pleader must be disregarded. The facts from which the conclusions are drawn must be stated. Wallrath v. Crary, 222 S.W. 895; Smith v. Sims, 77 Mo. 269; Nichols v. Stevens, 123 Mo. 96. "The allegation of a conclusion of law raises no issue, need not be denied, and its truth is not admitted by a demurrer to the complaint containing it. . . . A mere legal conclusion is 'wholly worthless, is entirely eliminated from further consideration, and it is as though it had never been pleaded.'" Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388. (5) Every fact which the plaintiff must prove to maintain his suit is constitutive and must be alleged. Wallrath v. Crary, 222 S.W. 895. (6) The words "wicked, wanton, wrongful and illegal and malicious acts, conduct and persuasion," and the words "persuaded, enticed, coerced and threatened," and the words "induced and persuaded," and the words "wicked, wanton, wrongful, illegal and malicious conduct," used in the petition, are the mere conclusions of the pleader and state no constitutive facts. Disregarding these words, the petition merely states that Edna Bricker, daughter of defendants, was engaged to plaintiff, and that she changed her mind and refused to carry out her marriage contract with him to his damage. So considered, the petition having stated no constitutive facts connecting defendants with the act of Edna Bricker, no cause of action against them is stated. See authorities cited under 4, supra. (7) The pleader has attempted to state a cause of action against defendants for inducing Edna Bicker (their daughter) to breach her contract of marriage with plaintiff. Even conceding (which, however, is by no means admitted) that she was persuaded or induced by them to commit such breach of contract, yet such acts by defendants are not such as would afford the plaintiff a cause of action against them. Conway v. O'Brien, 269 Mass. 425, 73 A. L. R. 1448. (8) There is no right of action against a third party for inducing the breach of a contract of marriage. Conway v. O'Brien, 269 Mass. 425, 73 A. L. R. 1448; Homan v. Hall, 102 Neb. 70, L.R.A. 1918 C 1195; Ableman v. Holman, 190 Wis. 112, 47 A. L. R. 440; Stiffler v. Boehm, 206 N.Y.S. 187; Case v. Smith, 107 Mich. 416, 31 L.R.A. 282. (9) Especially is there no right of action against parents for inducing their child to breach a marriage contract. Lukas v. Tarpilouskos, 266 Mass. 498; Minsky v. Satenstein, 6 N. J. Misc. R. 978, 143 A. 512; Leonard v. Whetstone, 34 Ind.App. 383; Guida v. Pontrelli, 186 N.Y.S. 147. (10) Furthermore, the law of Missouri is such that, except as to contracts of employment, there is no right of action against third parties for inducing a breach of a contract. The party injured by such a breach is confined to his remedy against his promisor for the breach of their contract. Glencoe etc. Co. v. Hudson etc. Commission Co., 138 Mo. 439.

Bass & Bass for defendant in error.

SUTTON, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

Plaintiff brings this action against defendants to recover damages for inducing their daughter to breach her marriage engagement to plaintiff. There was a judgment for plaintiff below, and defendants have brought the case here by writ of error.

The sufficiency, or not, of the petition is the sole question presented here. Defendants say that the petition wholly fails to state a cause of action, and on that ground ask a reversal of the judgment. The gist of the averments of the petition is that defendants, by their "conduct and persuasion induced and persuaded" their daughter to break the...