Jeck v. O'Meara

• Decision Date: 20 December 1938
• Docket Number: 35935
• Citation: 122 S.W.2d 897,343 Mo. 559
• Parties: George Jeck v. C. E. O'Meara and Chevrolet Motor Company, Appellants
• Court: Missouri Supreme Court

122 S.W.2d 897

343 Mo. 559

George Jeck v. C. E. O'Meara and Chevrolet Motor Company, Appellants

No. 35935

Supreme Court of Missouri

December 20, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

McCarthy Morris, Smith & Sparrow for appellants; Warren E Talcott of counsel.

(1) Defendants' motion for directed verdict at close of opening statement should have been sustained because the statement and allegation of "insolvency" on which case was submitted were insufficient to constitute a cause of action against either defendant because it was conceded that defendant O'Meara was not a "party" to the contract involved but merely a "stranger." Boyd v. Farmers Bank 14 S.W.2d 6; Sec. 2970, R. S. 1929; Reed v. Cooke, 55 S.W.2d 275; Williams v. Bank, 289 S.W. 36, 221 Mo.App. 887; Gash v. Mansfield, 28 S.W.2d 127; Woolsey v. Wells, 281 S.W. 695; Bank v. Hutton, 224 Mo. 44; Reardon v. Davis, 52 S.W.2d 193; McNatt v. Wabash Ry. Co., 335 Mo. 999, 74 S.W.2d 629; Hampe v. Verson, 224 Mo.App. 1144, 32 S.W.2d 795; Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028, 71 Am. St. Rep. 602; Eaton v. Curtis, 319 Mo. 671, 4 S.W.2d 819; Cole v. St. L.-S. F. Ry. Co., 332 Mo. 999, 61 S.W.2d 346; Oscanyan v. Arms Co., 103 U.S. 261, 26 L.Ed. 539. (2) The court erred in refusing to give the peremptory instructions asked by appellants at the close of plaintiff's case and at the close of all the evidence in the case, because there was nothing in the record tending to show either the "market value," "actual value" or "represented value" of the stock in question, and consequently, without any measure of damages being established, there was nothing to submit to the jury, and there was no evidence tending to prove that the Lindell Chevrolet Company was "insolvent" at the time plaintiff purchased the stock in question. Vlates v. Catsigianis, 202 S.W. 443; Gash v. Mansfield, 28 S.W.2d 127; Abbott v. Miller, 41 S.W.2d 898; Wolfersberger v. Miller, 39 S.W.2d 758; Finke v. Boyer, 56 S.W.2d 372, 331 Mo. 1242. (3) The giving of plaintiff's Instruction 1 was reversible error for the reason there was no evidence in the record from which the jury could find the Lindell Chevrolet Company was "insolvent" at the time plaintiff made his investment, and defendant O'Meara, being a "stranger" and not a "party to the contract, would not be liable for an oral statement under the statute," and said instruction merely requires the finding that the alleged representations "were a material factor in causing the plaintiff to make the aforesaid purchase of the stock of the Lindell Chevrolet Company," and the further finding that "plaintiff was damaged," when in fact no evidence of any damage was presented, and under all the authorities the alleged misrepresentations must have been the "inducing cause," and plaintiff must have relied on such representations to his proven damage. Leesemann v. Schulte, 24 S.W.2d 1083; Proffer v. Miller, 69 Mo.App. 501; Knight v. Rawlings, 205 Mo. 412, 104 S.W. 38; McKee v. Rudd, 222 Mo. 344, 121 S.W. 312; Conklin v. Mo. Pac. Ry. Co., 55 S.W.2d 306; Reardon v. Davis, 52 S.W.2d 193; Boyd v. Farmers Bank, 14 S.W.2d 6; Sec. 2970, R. S. 1929. (4) The giving of plaintiff's Instruction 3 was reversible error because there was no showing of any malice on the part of defendant O'Meara. Plaintiff's own witness, Spielberg, conceded that any mistakes were of the head, and not of the heart; that O'Meara was really trying to make their business successful, doing everything in his power to help them. Luikart v. Miller, 48 S.W.2d 871; Torbitt v. Hayes, 196 S.W. 791. (a) This Instruction 3, as well as Instructions 1 and 2, are misleading and erroneous in not limiting the recovery, if any, to the difference between the actual value of the stock at the time of the purchase and the alleged misrepresented value. Morrow v. Franklin, 233 S.W. 224, 289 Mo. 549. (b) This Instruction 3 was further erroneous in authorizing a finding of both punitive and actual damages against both the individual and corporate defendants. Wolfersberger v. Miller, 39 S.W.2d 759. (5) The court erred in refusing defendants' Instruction 2, defining the burden of proof, because under all the authorities this rested strictly on the plaintiff. Gockel v. Gockel, 66 S.W.2d 867; Shannon v. Crabtree, 71 S.W.2d 709; Maupin v. Provident Life Ins. Co., 75 S.W.2d 593; Obermeyer v. Kirshner, 38 S.W.2d 503; Woolsey v. Wells, 281 S.W. 695; Bank v. Hutton, 224 Mo. 44; Brueckle v. Pechan, 21 S.W.2d 903. (6) The court erred in refusing defendants' Instruction 5 requiring the jury to find that plaintiff relied upon the alleged misrepresentations. Conklin v. Mo. Pac. Ry. Co., 55 S.W.2d 306, 331 Mo. 734; Rardon v. Davis, 52 S.W.2d 193. (7) The court also erred in refusing defendants' Instruction 6 requiring that a representation be something material and not merely an opinion and the effect of plaintiff relying on advice of his counsel. Hockley v. Hulet, 16 S.W.2d 749; Rardon v. Davis, 52 S.W.2d 193. (8) The court also erred in refusing defendants' Instruction 9 requiring plaintiff to use the means of acquiring knowledge at hand if there was no trust relationship between the parties. Conklin v. Mo. Pac. Ry. Co., 55 S.W.2d 306, 331 Mo. 734. (9) The verdict is grossly excessive and not based on any evidence. No proof was offered relative to the value of the stock at the time of investment. Luikart v. Miller, 48 S.W.2d 871; Leimkeuhler v. Wessendorf, 18 S.W.2d 446; Rardon v. Davis, 52 S.W.2d 193; Finke v. Boyer, 56 S.W.2d 372, 331 Mo. 1242; Wolfersberger v. Miller, 39 S.W.2d 758, 327 Mo. 1150; Gash v. Mansfield, 28 S.W.2d 127, 327 Mo. 1150; Reynolds v. Davis, 260 S.W. 994, 303 Mo. 418; Morrow v. Franklin, 233 S.W. 224, 289 Mo. 549. (10) The verdict and judgment is erroneous because there is a defect of parties plaintiff in that the stock certificates in question show that Lydia B. Jeck had a joint interest therein, although not joined as plaintiff. Stifel v. Saxy, 273 Mo. 159, 201 S.W. 71; Peters v. McDonough, 327 Mo. 493, 37 S.W.2d 530; Welch-Sandler v. Mullens, 31 S.W.2d 86; Slaughter v. Davenport, 151 Mo. 33; Frost v. Frost, 200 Mo. 483.

Thompson, Mitchell, Thompson & Young, Richmond C. Coburn, R. Forder Buckley and White, White & White for respondent.

(1) The law implies a fraudulent intent from the making of a misrepresentation with knowledge of its falsity. Becker v. Thompson, 336 Mo. 27, 76 S.W.2d 357; Dulaney v Rogers, 64 Mo. 201; 26 C. J. 1118, 1119. The Statute of Frauds was expressly held to be inapplicable to any of the allegations of the plaintiff's petition on the first trial of this cause. Jeck v. O'Meara, 107 S.W. 787. The opinion of this court on the first appeal became the law of the case upon the second trial. Thus, the Statute of Frauds could not be raised by the defendants at the second trial. Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Denny v. Guyton, 331 Mo. 1115, 57 S.W.2d 415. Even if the Statute of Frauds could have been raised on the second trial of this cause, the defendants should have distinctly and specifically raised the defense in the trial court in some manner. Not having done so, the defense was waived. Schanbacher v. Lucido Bros. Gro. Co., 93 S.W.2d 1076; Heath v. Beck, 231 S.W. 657; Downing v. Anders, 202 S.W. 297; Moormeister v. Hannibal, 180 Mo.App. 717, 163 S.W. 926. (2) The trial court properly overruled the defendants' peremptory instructions. Boone County v. Cantley, 330 Mo. 911, 51 S.W.2d 58; Morrow v. Franklin, 289 Mo. 549, 233 S.W. 224; Stufflebean v. Peaveler, 274 S.W. 926; Birch Tree State Bank v. Dowler, 167 Mo.App. 373, 151 S.W. 784. (3) Instruction P3 was properly given at the request of the plaintiff because: Under the law in Missouri, punitive damage may be awarded where there is legal malice -- i. e., the intentional doing of a wrongful act without just cause or excuse -- and it is not necessary to show spite or ill will or that a particular act was willfully or wantonly done. Finke v. Boyer, 331 Mo. 1242, 56 S.W.2d 372; Luikhardt v. Miller, 47 S.W.2d 867; Lampert v. Judge & Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095, 37 L. R. A. (N. S.) 533; Jones v. West Side Buick, 93 S.W.2d 1083. This instruction properly permitted the jury to find against both the defendant C. E. O'Meara and the defendant Chevrolet Motor Company for actual and punitive damages. A corporate master may be held liable for punitive damages for a wrongful act committed by its servant in the course of his employment in the same manner in which the corporate master would be liable for actual damages. Simmons v. Kroger Groc. & Bak. Co., 104 S.W.2d 357; Haehl v. Wabash Ry. Co., 119 Mo. 325, 24 S.W. 737. It is not error to refuse to give an instruction, even though it be otherwise correct, if the jury has already been properly instructed on the point covered. Homan v. Mo. Pac. Ry. Co., 335 Mo. 30, 70 S.W.2d 869; Hicks v. Vieths, 46 S.W.2d 604. (4) Defendants' Instruction 2 was properly refused because: (a) The law on the burden of proof was amply covered by defendants' given Instructions 1, 3 and 10, and it is not error to refuse even a proper instruction where the jury has already been properly instructed on the point covered. (b) This Instruction 2 was not warranted either by the pleadings or the evidence, inasmuch as it requires the finding of a fraudulent combination; it is not error to refuse an instruction unless it is warranted by both the pleadings and the evidence. The plaintiff did not submit his case on any such theory. Connole v. East St. Louis & S. Ry. Co., 102 S.W.2d 581; State v. Thompson, 85 S.W.2d 594; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286. (5) It was not error for ...