Miller v. Rankin

• Citation: 117 S.W. 641,136 Mo.App. 426
• Parties: HARRY E. MILLER, Respondent, v. D. C. RANKIN, Appellant
• Decision Date: 29 March 1909
• Court: Court of Appeals of Kansas

117 S.W. 641

136 Mo.App. 426

HARRY E. MILLER, Respondent, v. D. C. RANKIN, Appellant

Court of Appeals of Missouri, Kansas City

March 29, 1909

Appeal from Atchison Circuit Court.--Hon. William C. Ellison, Judge.

AFFIRMED.

Judgment affirmed.

W. R Littell, L. J. Miles, J. W. Stokes and J. P. Lewis for appellant.

(1) The court erred in sustaining the motion for new trial, on account of alleged error in said instructions numbers 2 and 3, for the reason that such instructions were correct when applied to sales of personal property. McQuillin's Instructions in Civil Cases, sections 936, 937, 948; Jolliffe v. Collins, 21 Mo. 338; Chandler v Lopus, 1 Smith's Leading Cases, 188; Peers v Davis, 29 Mo. 189. These instructions are in almost literal accordance with instruction No. 4 for defendant in case of Wannell v. Kem, 57 Mo. 486. (2) In an action of fraud and deceit in sale of personal property, five elements are necessary: First, false representation; second, knowledge by the person who made it of its falsity; third, ignorance of its falsity by the person to whom made; fourth, intention that it shall be acted upon; fifth, acting upon it with damage; and nothing stronger than this is required by these instructions. Bank v. Byres, 139 Mo. 652; Owens v. Rector, 44 Mo. 393; Welsh v. Morse, 80 Mo. 573; Cement Co. v. Stewart, 103 Mo.App. 186; Woods v. Letton, 111 Mo.App. 51; Seranno v. Commission Co., 117 Mo.App. 197; Sammon v. O'Neil, 60 Mo.App. 536; White v. Million, 102 Mo.App. 440; Hamlin v. Abell, 120 Mo. 188. (3) It was error in sustaining the motion for new trial, on account of these instructions being inconsistent with plaintiff's instruction, for plaintiff had no ground to complain at an inconsistency caused by his own erroneous instruction. Moore v. Transit Co., 193 Mo. 420. (4) The court erred in sustaining motion for new trial. The instructions, taken as whole, submitted the case to the jury more favorable than plaintiff was entitled to. Gordon v. Burris, 153 Mo. 232; Shannahan v. Transit Co., 109 Mo.App. 232; Mathew v. Railway, 115 Mo.App. 471; State v. Brown, 188 Mo. 466.

Hunt & Bailey for respondent.

(1) The scienter was well laid in the petition and abundantly proved in this case, and had it not been for the error in appellant's instructions 2 and 3 the verdict would have been for the respondent. Cottrill v. Krum, 100 Mo. 400; Peers v. Davis, 29 Mo. 189; Wannell v. Kem, 52 Mo. 486; Dulaney v. Rogers, 64 Mo. 203. (2) That Moore v. Transit Co., 193 Mo. 411, cited by appellant in his second paragraph, has no application to the case at bar, for the reason that plaintiff did not cause the erroneous instruction, that respondent's instruction is the correct law in the case and that the appellant courted the error in instructions 2 and 3, given by the court, and by means of said error obtained the verdict, which was rendered by nine of the jurors. (3) We are at a loss to divine what appellant is trying to arrive at in the third paragraph of his brief and the citation therein contained. They are not responsive to any issue in this case. There were no abstract issues of law submitted to the jury and the court granted a new trial, for the reason that the court erred in giving instructions 2 and 3. And we think the court was fully justified in that finding, for the reason that when all the instructions are read together they are inconsistent and confusing to the jury. That instructions 2 and 3 given for the defendant were not the law of this case and neither was plaintiff's instruction more favorable to him than the facts warranted. Roe v. Bank, 167 Mo. 427.

OPINION

ELLISON, J.

This is an action for fraud and deceit in the sale of hogs by defendant to plaintiff which it is charged were infected with a fatal disease known as hog cholera. The verdict was for the defendant in the trial court. A motion for new trial was sustained and defendant has appealed from that order.

The motion was sustained on the ground stated by the court that error had been committed in the omission of the words "or had good reason to believe," at the place where they appear in brackets in the following instructions given at the request of defendant:

"2. Unless the jury believes from the evidence that, at the time of the sale of the hogs to plaintiff, they were diseased with cholera or some other disease and that defendant knew (or had good reason to believe) that they were diseased, and knowing such fact, falsely represented to the plaintiff that they were sound and healthy or free from disease, with a view to induce the plaintiff to buy such hogs, and unless the jury further believe that the plaintiff relied upon such representations, believing them to be true, and so relying and believing, and not relying upon his own judgment, bought said hogs, and suffered loss on account of such disease, then in such case plaintiff cannot recover.

"3. Before the plaintiff can recover on account of fraud and deceit charged as to soundness of hogs as charged in his petition, he must show that the hogs purchased from defendant were, at the time of the purchase, afflicted with a disease known as hog cholera or some other infectious or contagious or other disease, that defendant had knowledge of such fact (or had good reason to believe it), that the defendant, intending to deceive and defraud the plaintiff, falsely represented to plaintiff that such hogs were free from hog cholera or other infectious or contagious or other disease, that plaintiff, not knowing that such hogs were diseased, relied upon such false representations, believing them to be true, and so relying upon them, purchased said hogs, and that he afterwards suffered damages from death of such hogs and other hogs because of such disease."

Plaintiff asked and obtained an instruction which contained those words, substantially, and the question is, did the court err in concluding that they should have been inserted in defenda...