Cantrell v. Bank of Poplar Bluff, 14112

• Decision Date: 30 December 1985
• Docket Number: No. 14112,14112
• Citation: 702 S.W.2d 935
• Parties: Oscar CANTRELL and Leona Cantrell, Respondents, v. BANK OF POPLAR BLUFF, Appellant.
• Court: Missouri Court of Appeals

Page 935

702 S.W.2d 935

Oscar CANTRELL and Leona Cantrell, Respondents, v. BANK OF POPLAR BLUFF, Appellant.

No. 14112.

Missouri Court of Appeals,

Southern District,

Division Three.

Dec. 30, 1985.

Ted M. Henson, Jr., Poplar Bluff, for appellant.

James E. Spain, Hyde, Purcell, Wilhoit, Spain, Edmundson & Merrell, Poplar Bluff, for respondents.

CROW, Presiding Judge.

A jury awarded Oscar Cantrell and Leona Cantrell ("plaintiffs") $25,000 actual damages and $25,000 punitive damages against the Bank of Poplar Bluff ("the Bank"). Judgment was correspondingly entered. The Bank appeals.

The suit arose from the sale of a tract of real estate by the Bank to plaintiffs for $56,000. Plaintiffs alleged that the Bank's vice president and loan officer, Danny Stucker, who handled the transaction for the Bank, had represented to them that the north boundary of the tract lay some 100 feet north of the rear of a dwelling house situated on the tract. Plaintiffs further alleged that after they signed the contract to purchase the tract, but prior to the closing, a survey ordered by Stucker at plaintiffs' request revealed that the north boundary in fact lay beneath a deck attached to the rear of the house. Stucker, according to plaintiffs, learned of the result of the survey just hours before the closing, but failed to disclose the result to plaintiffs, who were unaware thereof. Stucker proceeded to close the sale, accepting plaintiffs' $56,000 check and delivering them a deed. ¹

The Bank maintains that the trial court erred in (1) receiving in evidence the testimony of the surveyor and his assistant regarding the north boundary, in that the survey "was not shown to have commenced from a corner established by the government," (2) denying the Bank's motion for a directed verdict at the close of all the evidence, in that plaintiffs' evidence regarding the location of the north boundary was "of no probative force because the survey was not shown to have commenced from a corner established by the government," and (3) giving the verdict directing instruction, in that it improperly deviated from M.A.I. 23.05 [1981 Revision].

The evidence, viewed favorably to the verdict and accorded the benefit of all favorable inferences reasonably to be drawn therefrom, with contradictory evidence disregarded, Affiliated Foods, Inc. v. Strautman, 656 S.W.2d 753, 763 (Mo.App.1983); Franklin v. Farmers Mutual Insurance Co., 627 S.W.2d 110, 113-14 (Mo.App.1982), establishes that in early June, 1983, plaintiffs were interested in purchasing a home for their daughter and son-in-law, Jane and Ken Woods. At that time, the Bank, acting through Stucker, was in the process of foreclosing a deed of trust on the subject tract.

On June 9, 1983, Ken Woods went to the Bank, picked up Stucker, and drove to the tract, situated in "Lynnwood Subdivision on Highway 67 south of Poplar Bluff." Some time after their arrival, they were joined by plaintiffs, Jane Woods, and the Woodses' two children.

Leona Cantrell testified that she asked Stucker where the north boundary lay, and that he said it "runs to the big oak tree which is a hundred and five feet back."

Jane Woods, Ken Woods, and Oscar Cantrell each likewise testified that Stucker identified the big oak tree as the north boundary.

After viewing the property, plaintiffs and the Woodses went to the office of the Bank's attorney, where plaintiffs signed a contract to purchase the tract for $56,000, conditioned upon the Bank being the successful bidder at the foreclosure sale. The Woodses and their children moved into the home, which was vacant, immediately after the contract was signed.

Around June 23, 1983, the Bank purchased the tract at foreclosure. Stucker thereafter phoned Leona Cantrell to arrange the closing. She testified, "I told him I wanted to know where that property line and I meant it." Stucker, according to Mrs. Cantrell, agreed to have a survey made.

Some time in July, 1983, Stucker requested a land surveying and engineering firm "to locate the corners and boundaries of lots 220 through 226" in the Lynnwood Subdivision. Evidently, the tract that plaintiffs had contracted to buy comprised those lots.

On Tuesday, July 26, 1983, Lawrence B. Fisher, a registered land surveyor, assisted by his "crew chief," Jimmy Drew Ice, went to the Lynnwood Subdivision and commenced the survey. They located two concrete monuments embedded in the ground. One marked a corner between "Park Department" land and Lot 220. The other marked a corner between Lot 220 and Lot 221. Ice testified they also found "half inch pipes at the southeast corner of Lot 226 and also at the northeast corner of Lot 226." Utilizing those monuments as reference points for their measurements, Fisher and Ice located the north boundary of the subject tract, marking the line by placing "two half inch rebars" in the ground, with wooden stakes beside the rebars. Fisher and Ice completed their task on the morning of July 27, 1983. The north boundary, as staked by Fisher and Ice, ran beneath the rear deck of the house, as heretofore explained.

Fisher advised Stucker of this by phone "around ten-thirty in the morning," July 27. Stucker went to the site, discussed the situation with Ice, and observed the position of the stakes.

Neither Jane Woods nor Ken Woods was at home either day while the surveyors were there. Jane, employed as a secretary, was at work; Ken, a salesman, was out of town. Plaintiffs, who reside near Cabool, were, of course, not present during the survey.

The sale was closed in Stucker's office at the Bank on the afternoon of July 27, 1983, just hours after Stucker had been to the tract and conversed with Ice. Plaintiffs, Jane Woods, and Stucker attended the closing. Stucker did not mention the result of the survey. Jane Woods testified that Stucker did say, however, that they would get a copy "as soon as it's printed."

On Friday evening, July 29, 1983, Ken Woods returned home and observed the location of the stakes. He phoned Stucker and a "heated conversation" ensued. This suit followed.

There was expert testimony that the value of the tract, assuming the north boundary in fact lies where Fisher and Ice staked it, is $20,000 to $30,000 less than it would have been had the north boundary lay at the oak tree, as represented by Stucker. The Bank raises no issue about the amount of actual or punitive damages awarded.

We first address the Bank's second point, which asserts that the trial court erred in denying the Bank's motion for a directed verdict at the close of all the evidence. The Bank insists that plaintiffs failed to make a submissible case, in that proof of the location of the north boundary was an element of their cause of action and the testimony of Fisher and Ice was "of no probative force because the survey was not shown to have commenced from a corner established by the government."

Carroz v. Kaminiski, 467 S.W.2d 871, 872 (Mo. banc 1971), is the latest in a line of decisions by the Supreme Court of Missouri wherein it is stated that evidence of a survey which is not definitely shown to have commenced from a corner established by the government or, if lost, reestablished in accordance with statutes, ² is of no probative force. The rule was first stated in essentially those terms in T.L. Wright Lumber Co. v. Ripley County, 270 Mo. 121, 192 S.W. 996, 1000 (1917). As authority, T.L. Wright relied on Clark v. McAtee, 227 Mo. 152, 127 S.W. 37 (1910).

Since T.L. Wright, the rule has been repeated by the Supreme Court, in chronological sequence, in Cordell v. Sanders, 331 Mo. 84, 52 S.W.2d 834, 838-39 (1932); Klinhart v. Mueller, 166 S.W.2d 519, 523 (Mo.1942); Bowzer v. State Highway Commission, 170 S.W.2d 399, 406-07 (Mo.1943); Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544, 547 (1947); Schell v. City of Jefferson, 357 Mo. 1020, 212 S.W.2d 430, 433 (banc 1948); Klaar v. Lemperis, 303 S.W.2d 55, 57 (Mo.1957); Grimes v. Armstrong, 304 S.W.2d 793, 797 (Mo.1957); and Carroz.

Additionally, the rule has been applied by the Court of Appeals in numerous cases, including Basore v. Johnson, 689 S.W.2d 103, 106-08 (Mo.App.1985); Fuller v. Padley, 628 S.W.2d 719, 721-22 (Mo.App.1982); Roberts v. Harms, 627 S.W.2d 924, 926[1-3] (Mo.App.1982) ³; Moses v. Dawson, 596 S.W.2d 741, 743 (Mo.App.1980); Probst v. Probst, 595 S.W.2d 289, 290-91 (Mo.App.1979); Cornelius v. Tubbesing, 593 S.W.2d 609, 610 (Mo.App.1980); Moschale v. Mock, 591 S.W.2d 415, 419-21 (Mo.App.1979); State ex rel. State Highway Commission v. Dunn, 569 S.W.2d 353, 356-57 (Mo.App.1978); Wells v. Elder, 544 S.W.2d 258, 259[1, 2] (Mo.App.1976); Burke v. Colley, 495 S.W.2d 699, 702-03 (Mo.App.1973); and Pioneer Cooperage Co. v. Bland, 228 Mo.App. 994, 75 S.W.2d 431, 435 (1934).

One of the elements of plaintiffs' theory of liability, as reflected in the verdict directing instruction tendered by them and given by the trial court, was that Stucker's representation regarding the location of the north boundary was false. It was, consequently, incumbent on plaintiffs to prove where the north boundary actually lay. Plaintiffs do not contend otherwise.

The only evidence regarding the true location of the north boundary was the testimony of Fisher and Ice, and their "field notes." Obviously, whether plaintiffs made a submissible case hinges on whether that evidence had probative value. As already noted, the cases heretofore listed state that such evidence is of no probative force.

Plaintiffs, however, maintain that the evidence did have probative force and was sufficient to make a submissible case. They cite five cases in support of their position. We have carefully studied all five, but, for the reasons that follow, are constrained to reject plaintiffs' contention.

One of the cases cited by plaintiffs, State v. Turpin, 196 S.W.2d 798 (Mo.1946), dealt with an objection to the testimony of a professional surveyor on the ground that "the survey hasn't been made from...