Jeck v. O'Meara

• Decision Date: 30 June 1937
• Parties: George Jeck v. C. E. O'Meara and Chevrolet Motor Company, a Corporation, Appellants
• Court: Missouri Supreme Court

107 S.W.2d 782

341 Mo. 419

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

Supreme Court of Missouri

June 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge;

Reversed and remanded.

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

(1) The second amended petition does not contain facts sufficient to constitute a cause of action against either defendant and their demurrers to same and the evidence should have been sustained. No actionable fraud pleaded or proved. 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; Sec. 2970, R. S. 1929; Reardon v. Davis, 52 S.W.2d 193. (2) The giving of plaintiff's Instruction 1 was reversible error for the reason that (a) It incorrectly stated the measure of damages as being the amount invested instead of the difference in the actual value of the stock at the time of purchase and the alleged misrepresented value; (b) it ignored plaintiff's testimony that O'Meara had said, "It is almost impossible to lose any money in the investment" and "There was every reasonable assurance the business would prosper" and (c) no fiduciary relation between said plaintiff and O'Meara was either alleged or proved. Morrow v. Franklin, 233 S.W. 224, 289 Mo. 549; Wolfersberger v. Miller, 39 S.W.2d 758, 327 Mo. 1150; Leimkuehler v. Wessendorf, 18 S.W.2d 446; Reardon v. Davis, 52 S.W.2d 193; Simpson v. Burnett, 252 S.W. 953; Thompson v. Newell, 118 Mo.App. 405. (3) The giving of plaintiff's Instruction 2 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. (4) A miscarriage of justice was brought about through making eleven averments of fraud and cluttering up the record with evidence that was clearly inadmissible under Section 2970, Revised Statutes 1929, and then submitting the case on but two of the averments, neither of which had any evidence to sustain them. Respondent's witness Spielberg testified that he flew to Detroit and learned that the Holding Company did exist for the purpose of aiding distressed dealers and would have financed the Lindell-Chevrolet Company if they could have gotten any cooperation from respondent.

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

(1) The appellants failed to comply with Rule 11 of this court and, pursuant to Rule 16 of said court, the respondent's motion to dismiss the appeal should be sustained. This court and the other appellate courts of this State require strict compliance with their rules governing appeals, and recognize their duty to dismiss an appeal which does not comply with such rules. State ex rel. Brockman Mfg. Co. v. Miller, 241 S.W. 920; State ex rel. Pedigo v. Robertson, 181 S.W. 987; State ex rel. C., R. I. & P. Ry. Co. v. Smith, 172 Mo. 446, 72 S.W. 692; Taylor v. Heart of America Hospital Assn., 2 S.W.2d 804. (2) The plaintiff pleaded and proved a cause of action for damages for fraud. The misrepresentation of an existing state of mind, purpose or policy may be a misrepresentation of fact and may be the basis of an action for fraud. Collins v. Lindsay, 25 S.W.2d 84; Met. Paving Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815. A representation which might ordinarily be regarded as relating to the future, and, therefore, promissory, or statements ordinarily regarded as dealer's talk, may be the basis of an action for fraud where the truth or falsity of the representation is peculiarly within the speaker's knowledge. State ex rel. St. Louis-S. F. Ry. Co. v. Daues, 316 Mo. 474, 290 S.W. 425; Stonemets v. Head, 248 Mo. 243, 154 S.W. 108; Wendell v. Ozark Orchard Co., 200 S.W. 747; Luchow v. Kansas City Breweries Co., 183 S.W. 1123. The title of a statute may be referred to in arriving at the construction intended by the Legislature. Bowers v. Mo. Mut. Assn., 333 Mo. 492, 62 S.W.2d 1058; Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95; In re Graves, 325 Mo. 888, 30 S.W.2d 149. Section 2970, Revised Statutes 1929 (Lord Tenterten's Act), applies only to a case where the plaintiff has been induced by oral representations to enter into a transaction with a third person by which a credit is created in favor of the plaintiff and against the third person. Huntress v. Blodgett, 206 Mass. 318, 92 N.E. 427; Walker v. Russell, 186 Mass. 75, 71 N.E. 86; Stannard v. Kingsbury, 179 Mass. 174, 60 N.E. 552; St. John v. Hendrickson, 81 Ind. 350; Grover v. Cavanaugh, 40 Ind.App. 340, 82 N.E. 104. Said Section 2970 also applies only to oral representations made as of the person to whom the credit is extended by the transaction and not to oral representations made as to any other person. Boyd v. Farmers Bank, 223 Mo.App. 442, 14 S.W.2d 6; Williams v. Ravanna Bank, 221 Mo.App. 887, 289 S.W. 34; Medbury v. Watson, 6 Metc. 246; Norton v. Huxley, 13 Gray, 285; Cook v. Churchman, 104 Ind. 141, 3 N.E. 759; Hunter v. Randall, 62 Me. 423. In an action for fraud, for the purpose of proving the actual value of the article at the time of the transaction, events subsequent to the transaction may be shown. Morrow v. Franklin, 289 Mo. 549, 233 S.W. 224. (3) The giving of plaintiff's Instruction 1 does not constitute reversible error because it correctly stated the amount which, under the uncontradicted evidence, the plaintiff was entitled to recover in the event the jury should find for him. If there were any error in the terminology of the instruction it was not harmful to the defendants and they, therefore, cannot complain. R. S. 1929, sec. 1062; 4 C. J., 1029, sec. 3013, p. 1032, sec. 3014; Brackett v. Black Masonry & Contracting Co., 326 Mo. 387, 32 S.W.2d 288; Rosenzweig v. Wells, 308 Mo. 617, 273 S.W. 1071; Sang v. St. Louis, 262 Mo. 454, 171 S.W. 347; Shinn v. United Rys. Co., 248 Mo. 173, 154 S.W. 103; Moore v. Lindell Ry. Co., 176 Mo. 528, 75 S.W. 672; Sherwood v. Grand Ave. Ry. Co., 132 Mo. 339, 33 S.W. 714; Blewett v. Wyandotte, K. C. & N.W. Ry. Co., 72 Mo. 583. (4) Punitive damages may be awarded in an action at law for fraud where the representations were characterized by malice. It is not necessary that there be actual malice by which the defendant intended to inflict a wrong upon the plaintiff -- all that is necessary is legal malice, which is the intentional doing of a wrongful act without just cause or excuse. Luikhart v. Miller, 48 S.W.2d 867; Finke v. Boyer, 331 Mo. 1242, 56 S.W.2d 372; Jones v. West Side Buick Auto Co., 93 S.W.2d 1083. The trial court or the appellate court is very reluctant to interfere with the amount of the verdict for punitive damages. State ex rel. A. T. & S. F. Ry. Co. v. Ellison, 268 Mo. 225, 186 S.W. 1075. Since the judgment in the trial court for actual damages was $ 15,775.67, a judgment of $ 7500 for punitive damages is not excessive. Lampert v. Judge & Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095; Davis v. C. R. I. & P. Ry. Co., 192 Mo.App. 419, 182 S.W. 826; Favorite v. Cottrill, 62 Mo.App. 119; Trauerman v. Lippincott, 39 Mo.App. 478. (5) Appellants' Instructions E, G, H, I, J and K were properly refused. It is not erroneous to refuse an instruction which is merely an abstract statement of the law. Huffman v. Ackley, 34 Mo. 277; Warder v. Seitz, 157 Mo. 140; Bergeman v. Railroad Co., 104 Mo. 77. A requested instruction which is not supported by the evidence is properly refused. Fitzsimmons v. Mo. Pac. Ry. Co., 294 Mo. 551, 242 S.W. 915; Kansas City, C. C. & St. J. Ry. Co. v. Couch, 187 S.W. 64; Cote v. Gillette, 186 S.W. 538; Harbaugh v. Ford Roofing Products Co., 281 S.W. 686.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action for damages for alleged fraud and deceit. On a jury trial plaintiff had a verdict and judgment for $ 15,775.67 actual damages, including interest, and $ 10,000 punitive. Motion for a new trial was overruled, after a remittitur of $ 2500 of the punitive damages, and defendants appealed.

Defendants assign error (1) on the overruling of their demurrer to the petition; (2) on the refusal of their separate peremptory instructions, at the close of the whole case, for a directed verdict; (3) on instructions given for plaintiff and the refusal of instructions requested by defendants; (4) that there was no evidence to support a verdict and judgment for punitive damages; and (5) on an alleged excessive verdict.

Plaintiff alleged that the Chevrolet Motor Company of St. Louis was engaged in the manufacture, sale and distribution of Chevrolet cars in St. Louis, and that said company was the sole and exclusive manufacturer and distributor of such cars in St. Louis and Missouri generally; that defendant O'Meara was in the employ of said company as its zone manager in St. Louis, and other parts of Missouri and part of Illinois; that as such zone manager, O'Meara "was authorized, or held himself out to be authorized, to be in charge of all sales to retail dealers engaged in selling" Chevrolet cars in his zone and that O'Meara was authorized, or held himself out to be authorized, to control and supervise all retail Chevrolet dealers in his zone; that all retail dealers in said zone had to have what is called a franchise from the Chevrolet Motor Company of St Louis, in order to handle Chevrolet cars, and that such franchise was issued only upon the approval and recommendation of O'Meara, the zone manager;...