Franklin v. Mercantile Trust Co., N.A., s. 43865

• Decision Date: 22 February 1983
• Docket Number: Nos. 43865,43866,s. 43865
• Citation: 650 S.W.2d 644
• Parties: 37 UCC Rep.Serv. 125 Cornelius FRANKLIN, et al., Plaintiff-Appellant, v. MERCANTILE TRUST COMPANY, N.A., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 644

650 S.W.2d 644

37 UCC Rep.Serv. 125

Cornelius FRANKLIN, et al., Plaintiff-Appellant, v. MERCANTILE TRUST COMPANY, N.A., Defendant-Respondent.

Nos. 43865, 43866.

Missouri Court of Appeals,

Eastern District,

Division Five.

Feb. 22, 1983.

Motion for Rehearing/Transfer to

Supreme Court Denied April 15, 1983.

John E. Bell, St. Louis, for plaintiff-appellant.

David Wells, St. Louis, for defendant-respondent.

KELLY, Presiding Judge.

Mercantile Trust Company, N.A. appeals from a judgment of the Circuit Court of the City of St. Louis in favor of respondents Cornelius Franklin and Lois Franklin, his wife, in an amount of $15,000.00 actual damages and $18,000.00 punitive damages. Cornelius Franklin above, also appealed from an order of remittitur of $14,000.00 from the actual damages award entered by the trial court and, upon his motion, the two appeals were consolidated under Court No. 43865.

We reverse both judgments and remand the cause to the Circuit Court with directions.

Cornelius Franklin and his wife, Lois, purchased a 1972 Jaguar automobile from Continental Cars, Inc., of Florissant, Missouri, (hereinafter Continental) on June 20, 1977, made a down payment on the purchase price and the dealer arranged for financing of the balance of the purchase price by the Mercantile Trust Company, N.A. (hereinafter Mercantile).

Plaintiff (as Mr. Franklin shall hereinafter be identified) had problems with the car from the date he took delivery and he returned it to the dealer to correct these problems. After the car had been at the dealer's for approximately eight days he picked it up and a few days later while driving to Memphis, Tennessee, it overheated and he had to stop at an Osceola, Arkansas service station. The car would not start again, so plaintiff telephoned the dealer in Florissant and was told to have the car towed to a Continental Car dealership in Memphis. The Memphis dealer refused to repair the car and when plaintiff called the dealer in Florissant they wouldn't agree to repair the car either.

The plaintiff returned to St. Louis and went directly to the Florissant dealership where he demanded that they repair the car or refund the down payment. When the dealer refused his demands plaintiff and his wife went to Mercantile, explained their predicament, and demanded their money back; but Mercantile referred them back to Continental. At this time plaintiff's first payment on the loan at Mercantile was not yet due.

Plaintiff sought the advice of an attorney who advised Mercantile that the transaction had been rescinded, and Mercantile's consumer credit office verbally agreed to take no action on the loan.

Mercantile had the car returned to Florissant and delivered to the dealer. Subsequently Continental Cars in Memphis informed the parties that the engine of the Jaguar would have to be dismantled for internal inspection at a cost of $250.00, and said it would not recommend removing and dismantling the engine for a complete estimate unless plaintiff was "prepared to proceed with full repairs which would be quite expensive."

The car remained at the dealership. Both the dealer and plaintiff refused to pay for the dismantling of the engine and the repairs, and Mercantile took no action on the loan.

In April, 1978, plaintiff filed a petition against both the dealer and Mercantile for rescission and cancellation of the note.

In October, 1978, when plaintiff attempted to purchase a truck at a Ford dealership the credit manager of the agency attempted to obtain financing for the sale through Landmark Bank, but that Bank rejected plaintiff's credit application because it had received a credit report concerning plaintiff from Credit Information Corporation (hereinafter C.I.C.) showing plaintiff to be delinquent in an amount of $3,123.00 on his loan to Mercantile, and that Mercantile had assigned him a rating of I-5, i.e. that plaintiff's usual manner of payment was 120 or more days late. It was the refusal of Mercantile to divulge further information concerning plaintiff's credit to one of Landmark's credit checkers that occasioned the rejection of plaintiff's loan application.

Plaintiff did, however, obtain financing for the truck through Ford Motor Credit and the loan was made for the same amount of money and for the same period of time as the loan application to Landmark, but at a higher rate of interest, i.e. 10.64 annual percentage rate at Landmark and 12.83 at Ford Motor Credit.

Subsequently plaintiff amended his petition, and by such amendment, added a count alleging that Mercantile had caused him to be denied credit by the publication of false credit reports.

In accordance with its contract with C.I.C., Mercantile continued furnishing monthly credit reports on its customers, including plaintiff. According to these reports plaintiff had a "5" rating and a maximum delinquency of $5,766.00, the full amount of the loan. In January, 1980, Mercantile requested C.I.C. to remove the Mercantile account from the file C.I.C. maintained on plaintiff, but then, the next day, instructed C.I.C. to have plaintiff's account shown as unrated ("UR"), with a zero balance and no delinquency.

In February, 1980, plaintiff applied for a loan to purchase a van, and another bank, North St. Louis Trust Company, pulled a credit report on him from C.I.C. showing this "UR" rating; and denied his application because of this information contained in C.I.C.'s report. Plaintiff did, subsequently, obtain a loan for the purchase of the van, but had to pay it off in six months rather than over a longer period.

In March, 1980, plaintiff was again denied credit when he sought to purchase stereo equipment and the reason for this denial was the "I-5" credit rating reported by C.I.C.

Prior to trial plaintiff settled his claim against Continental Cars, and at trial proceeded against Mercantile on Count III of his petition. As stated hereinabove the jury awarded him $15,000.00 actual damages and $18,000.00 punitive damages, but the trial court ordered him to remit $14,000.00 of the actual damages or suffer a new trial.

We shall initially consider Mercantile's appeal because the decision we reach on that appeal renders plaintiff's appeal moot.

Mercantile's first Point Relied On is that the trial court erred in giving a not-in-M.A.I. verdict directing instruction tendered by the plaintiff. This Instruction is:

Your verdict must be for plaintiff if you believe:

First, Defendant Mercantile caused to be published false credit reports concerning plaintiff; and

Second, Defendant Mercantile knew said reports were false or acted in reckless disregard of their truth or fasity [sic]; and

Third, said reports caused or induced one or more prospective lender not to extend credit to plaintiff; and

Fourth, Plaintiff was thereby damaged.

It is Mercantile's contention that plaintiff intended to submit a libel action, and that M.A.I. 23.06(1) or 23.06(2) was the appropriate verdict-director instruction and since there is a pattern M.A.I. instruction for the case prejudicial error is presumed where a not-in-M.A.I. instruction is submitted unless it is made perfectly clear by the party tendering said instruction that no prejudice could have resulted. Begley v. Werremeyer Associates, Inc., 638 S.W.2d 817, 819 (Mo.App.1982).

Plaintiff responds that he need not provide a name for his tort and, without specifying why, states that his action could be one of a number of torts. His position is that his cause of action could be for economic embarrassment, interference with prospective advantage, negligence, tortious interference with contract, prima facie tort, or injurious falsehood.

It is correct that plaintiff need not assign his tort a name so long as the allegations of the petition accorded a reasonable and fair intendment state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief. Porter v. Crawford & Co., 611 S.W.2d 265, 266 (Mo.App.1980); Annbar Associates v. American Express Co., 565 S.W.2d 701, 706 (Mo.App.1978). Dean Prosser has said: "There is no necessity that a tort must have a name." Prosser on Torts (4th ed.) § 1 p. 3 (1971).

Nevertheless, in considering whether a not-in-M.A.I. verdict-directing instruction is not error, the ultimate test of the propriety of the instruction is whether it follows the substantive law and whether a jury composed of ordinary people, can understand it. Executive Jet Management & Pilot Service, Inc., v. Scott, 629 S.W.2d 598, 608 (Mo.App.1981).

With respect to plaintiff's contention, Missouri Courts have not, as yet, recognized the torts of interference with a prospective advantage or economic embarrassment. Fleischmann v. Mercantile Trust Company National Association, 617 S.W.2d 73, 74 (Mo. banc 1981). Plaintiff has failed to produce the elements of either tort or to present any arguments on the subject and we, therefore do not consider whether we should recognize such causes of action at this time.

Plaintiff's verdict-director resembles in no way a negligence theory verdict-director. See M.A.I. 17.01, 11.02. There is no use or definition of the terms "negligence" or "negligent." See Notes on Use M.A.I. 17.01. Plaintiff alleged and attempted to prove that Mercantile's actions were willful and intentional, and thus inconsistent with a negligence theory. See Ford v. Politte, 618 S.W.2d 44, 46 (Mo.App.1981) where the court said: "A submission on the theory of negligence is not justified by evidence only of an intentional deliberate act. The two are inconsistent and mutually exclusive." It is clear plaintiff did not intend to submit on a negligence theory.

Nor does the verdict-director present all of the elements of tortious interference with contractual or business relations. The elements of these torts are set out in Fischer, Spuhl, Herzwurm & Associates, Inc. v. Forrest T. Jones & Company, 586 S.W.2d 310, 315 (Mo. banc 1979); ...