Menke v. Rovin

• Decision Date: 03 April 1944
• Docket Number: 38576
• Parties: Oscar A. Menke and Bessie Menke v. Morris D. Rovin, Appellant
• Court: Missouri Supreme Court

180 S.W.2d 24

352 Mo. 826

Oscar A. Menke and Bessie Menke v. Morris D. Rovin, Appellant

No. 38576

Supreme Court of Missouri

April 3, 1944

Rehearing Denied May 2, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

Taylor R. Young and Alvin Goldman for appellant.

(1) The petition fails to state a cause of action. The petition fails to allege the necessary elements to constitute fraud; it fails to allege that plaintiffs believed the alleged representations; that plaintiffs were deceived by the alleged representations; that plaintiffs were injured or damaged as a result of said alleged representations, or that the property was worth less than the price paid therefor. Shannon v Crabtree, 71 S.W.2d 709; Gockel v. Gockel, 66 S.W.2d 867; Weitzman v. Weitzman, 156 S.W.2d 907. (2) The prayer is no part of the petition, so that the petition fails to allege that plaintiffs were injured or damaged as a result of the alleged representations; and fails to show any damages, because it fails to allege that the property was not worth the price plaintiffs paid therefor. Salmons v. Dun & Bradstreet, 162 S.W.2d 245, 349 Mo. 498; Homan v. Employers' Reinsurance Corp., 136 S.W.2d 289, 345 Mo. 650; Caldwell v. Eubanks, 30 S.W.2d 976, 326 Mo. 185; Richards v. Earls, 133 S.W.2d 381, 345 Mo. 260. (3) Abstract propositions should not be read to the jury, and the court erred in giving and reading to the jury Instruction 1 offered on behalf of plaintiffs, which instruction defined the term, "false pretenses," which expression was not used in any other instruction given and read to the jury, and which term is most frequently used in connection with criminal cases, so that, said instruction tended to mislead and confuse the jury, men not trained in the law. Schipper v. Brashear Truck Co., 132 S.W.2d 993; Gillioz v. State Highway Comm., 153 S.W.2d 18, 348 Mo. 211. (4) The court erred in giving and reading to the jury Instruction 2 offered on behalf of plaintiffs for the reason that said instruction is broader than the pleadings. Arkla Lbr. Co. v. Henry Quellmalz L. & Mfg. Co., 252 S.W. 961; Mitchell v. Wabash Ry. Co., 69 S.W.2d 286, 334 Mo. 926; State v. Thompson, 85 S.W.2d 594, 337 Mo. 328; Rishel v. K.C. Pub. Serv. Co., 129 S.W.2d 851; Grosvener v. N.Y. Central R. Co., 123 S.W.2d 173, 343 Mo. 611. (5) Said instruction is a comment upon the evidence and clearly assumes that the alleged representations were made by defendant; this being a vital issue in the case, it should have been properly submitted to the jury. Connell v. A.C.L. Haase & Sons Fish Co., 257 S.W. 760, 302 Mo. 48; Martin v. Woodlea Inv. Co., 226 S.W. 650; Shull & Chipps Abstract Co. v. Schneider, 258 S.W. 449; Frost v. Jensen, 155 S.W.2d 553; Kirkham v. Jenkins Music Co., 104 S.W.2d 234, 340 Mo. 911. (6) Instruction 2 while it attempts to cover the whole case, it does not include defendant's defenses. Beggs v. Shelton, 155 S.W. 885, 173 Mo.App. 127; Bixler v. Wagster, 256 S.W. 520; Hendry v. Judge & Dolph Drug Co., 245 S.W. 358, 211 Mo.App. 166; Friend v. Jones, 185 S.W. 1159. (7) Instruction 6 assumes that there was a difference between the actual value of the real estate purchased by plaintiffs and some alleged value it would have had, had the alleged false representations been true, treating it as a conceded fact that there was a difference, although there was conflicting evidence on this vital issue; and said instruction is a comment on the evidence, and said instruction, therefore, was prejudicial. Ross-Saskatoon Lbr. Co. v. Turner, 253 S.W. 119; Arkla Lbr. Co. v. Henry Quellmalz L. & Mfg. Co., 252 S.W. 961; Long v. Freeman, 69 S.W.2d 973, 228 Mo.App. 1002; Frost v. Jensen, 155 S.W.2d 553; Kirkham v. Jenkins Music Co., 104 S.W.2d 234, 340 Mo. 911. (8) That said instruction fails to direct the jury upon what to base the assumed difference, that is, it fails to tell the jury that the difference in value, if any, should be based upon the situation as it was at the time of the sale of the property to plaintiffs, and not upon the situation as it was at the time of the trial of the cause some three years later, so that, this vital issue was left to conjecture, surmises and guesses, and was misleading and confusing, and prejudicial to defendant. Long v. Freeman, 69 S.W.2d 973, 228 Mo.App. 1002; Wolfersberger v. Miller, 39 S.W.2d 758, 327 Mo. 1150; Dubinsky Realty Co. v. Lortz, 129 F.2d 669. (9) Instruction 7 assumes that defendant made representations to plaintiffs which were false and untrue, and this question was for the jury to determine. Connell v. A.C.L. Haase & Sons Fish Co., 257 S.W. 760, 302 Mo. 48; Martin v. Woodlea Inv. Co., 226 S.W. 650, 206 Mo.App. 33; Frost v. Jensen, 155 S.W.2d 553; Kirkham v. Jenkins Music Co., 104 S.W.2d 234, 340 Mo. 911. (10) Said Instruction 7 is broader than the pleadings and the evidence. Rishel v. K.C. Pub. Serv. Co., 129 S.W.2d 851; Mitchell v. Wabash Ry. Co., 69 S.W.2d 286, 334 Mo. 926; Arkla Lbr. Co. v. Quellmalz L. & Mfg. Co., 252 S.W. 961; State v. Thompson, 85 S.W.2d 594, 337 Mo. 328; Grosvener v. N.Y. Central R. Co., 123 S.W.2d 173, 343 Mo. 611. (11) Said instruction invaded the province of the jury, was a comment upon the evidence, and assumed that defendant did commit the alleged wrongful acts, because it singled out the defendant, and directed the jury to warn the defendant by awarding against him punitive damages in a sum sufficient to make the defendant heed that warning, and that it is not a proper yardstick by which to measure punitive damages. Seested v. Post Ptg. & Pub. Co., 31 S.W.2d 1045, 326 Mo. 559; Connell v. A.C.L. Haase & Sons Fish Co., 257 S.W. 760, 302 Mo. 48; Martin v. Woodlea Inv. Co., 226 S.W. 650, 206 Mo.App. 33. (12) Evidence as to the value of the real estate owned by defendant's mother, tending to show the financial condition of his mother, should not have been admitted by the court over the objection and exception of defendant, and the comment of the court indicating before the jury that this had something to do with the award of punitive damages was extremely harmful and prejudicial to defendant. Only the financial condition of the defendant himself was admissible. Gerharter v. Mitchellhill, 157 S.W.2d 577. (13) The verdict and judgment, both as to actual damages and as to punitive damages, is grossly excessive. Seested v. Post Ptg. & Pub. Co., 31 S.W.2d 1045, 326 Mo. 559; Hunter v. Kansas City Rys. Co., 248 S.W. 998, 213 Mo.App. 233. (14) There was no allegation contained in plaintiffs' petition that the property sold to them by defendant was not worth the price paid, and the court should not have admitted testimony of witnesses, Young and Calmer, over the objection and exception of defendant, tending to show the value of the real estate conveyed to plaintiffs by defendant. Walquist v. Kansas City Rys. Co., 237 S.W. 493, 495, 292 Mo. 34; Grosvener v. N.Y. Central R. Co., 123 S.W.2d 173, 343 Mo. 611; Zasemovich v. American Mfg. Co., 213 S.W. 799; W.C. Hardesty Co. v. Schaefer, 139 S.W.2d 1035. (15) The court erred in submitting to the jury issues not raised by the pleadings. Arkla Lbr. Co. v. Henry Quellmalz L. & Mfg. Co., 252 S.W. 961; Mitchell v. Wabash Ry. Co., 69 S.W.2d 286, 334 Mo. 926; Rishel v. K.C. Pub. Serv. Co., 129 S.W.2d 851; Grosvener v. N.Y. Central R. Co., 123 S.W.2d 173, 343 Mo. 611; State v. Thompson, 85 S.W.2d 594, 337 Mo. 328; Walquist v. Kansas City Rys. Co., 237 S.W. 493, 292 Mo. 34; Zasemovich v. American Mfg. Co., 213 S.W. 799.

Dubinsky & Duggan for respondents.

(1) The words "rely" and "believe" are nearly synonymous. "Rely" is to depend upon someone or something as worthy of confidence; to repose confidence, to trust. "Believe" is to accept as true on the representation of others, to have faith or confidence in the truth of anyone or anything. In an action involving fraud, an allegation that plaintiff "relied" on the representations made, constituted a sufficient averment that he believed them to be true. 36 Words and Phrases (Perm Ed.), p. 800; Spencer v. Kersam, 77 P. 418, 31 Mont. 120; David v. Moore, 79 P. 415. (2) Where a petition alleges that the plaintiff "relied" and acted upon the representations made by defendant and parted with his property, it is sufficient and tantamount to alleging that having parted with his property, based upon the representations made by defendant, that he believed such representations. Morrow v. Franklin, 289 Mo. 549, 233 S.W. 224. (3) Where a petition is attacked for the first time on appeal (there having been no demurrer filed in the lower court, nor any objection made to the introduction of testimony), every reasonable intendment must be applied in favor of such petition. Snyder v. Wagner Electric Mfg. Co., 284 Mo. 285, 223 S.W. 911. (4) Where a petition in an action for fraud alleges facts sufficient showing false representations, knowledge or falsity by the maker, ignorance of falsity by person to whom made, intention that it should be acted upon, and a parting of property by the victim and fails to allege in actual words the amount of damage sustained, it will be ruled that the petition is not subject to an attack upon the grounds that it wholly fails to state a cause of action, especially when no such point was made in the lower court. Fleischer v. Berger-Cohn, 96 S.W.2d 642. (5) An instruction stating mere abstract propositions of law are not erroneous, unless they direct a verdict or are otherwise misleading. McGrew v. Mo. Pac. Ry. Co., 109 Mo. 582, 19 S.W. 53; Coats v. Old, 167 S.W.2d 652; State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667; Leimkuehler v. Wessendorf, 323 Mo. 64, 18 S.W.2d 445; Cool v. Peterson, 189 Mo.App. 717, 175 S.W. 244. (6) In an action for fraud, the words "rely" and "believe" are...