R. F. Summers, Defendant In Error v. S. A. Keller, Plaintiffs In Error

• Decision Date: 03 January 1911
• Citation: 133 S.W. 1180,152 Mo.App. 626
• Parties: R. F. SUMMERS, Defendant in Error, v. S. A. KELLER et al., Plaintiffs in Error
• Court: Missouri Court of Appeals

133 S.W. 1180

152 Mo.App. 626

R. F. SUMMERS, Defendant in Error, v. S. A. KELLER et al., Plaintiffs in Error

Court of Appeals of Missouri, Springfield

January 3, 1911

Writ of Error to the Jasper Circuit Court.--Hon. Haywood Scott Judge.

REVERSED AND REMANDED (and certified to Supreme Court).

Judgment reversed and cause remanded.

M. R Lively for plaintiffs in error.

(1) A general demurrer is good at any stage of the cause of action. Hyatt v. Association, 106 Mo.App. 610. (2) If the petition contains two causes of action which are of such character that they cannot legally be joined in one petition demurrer is the proper pleading to reach the irregularity. Lane v. Dowd, 172 Mo. 167; Williams Co. v. Bolivar, 122 Mo.App. 450. (3) A conspiracy is a combination by two or more persons to do a thing criminal or unlawful in itself. State v. Kennedy, 177 Mo. 98. (4) The instructions must be based on the pleadings. Chadwick v. Transit Co., 195 Mo. 526. (5) An instruction which enlarges the issues is erroneous. Hamphill v. Kansas City, 100 Mo.App. 563; Heinzle v. Railway, 182 Mo. 528. (6) The plaintiff is entitled to recover only one damage. If he is entitled to interest as a measure of damages, then he is not entitled to punitive damages also. Where interest is allowed on conversion, punitive damages are not also allowed. Morley v. St. Joseph, 112 Mo.App. 671; Arnold v. Sedalia National Bank, 100 Mo.App. 474; Hoffman v. Gill, 102 Mo.App. 320; Eckenwroth v. Transit Co., 102 Mo.App. 597.

H. W. Currey, George V. Farris and W. J. Owen for defendant in error.

(1) The findings of the jury were, by express mention, on the second and fourth counts in the petition, and, hence, the first, third, fifth, sixth and seventh counts are not before the court, and it is wholly immaterial what the averments in these counts were. Hoyle v. Farguharson, 80 Mo. 378; Downing v. Railway, 70 Mo.App. 662. (2) Having answered and gone to the trial after their demurrer to the petition was overruled, only two objections are now available to them: First, the objection that the petition does not state facts sufficient to constitute any cause of action; and, second, that the court has no jurisdiction over the subject-matter. Hudson v. Cahoon, 193 Mo. 558. (3) The evidence supported the allegations, and punitive damages were properly allowed. 28 Am. and Eng. Ency. Law (2 Ed.), 732; Jackson v. Poteet, 89 S.W. 980; Downing v. Outerbridge, 79 F. 931; Mill Co. v. Langford, 115 S.W. 89; Reamer v. Morrison Exp. Co., 93 Mo.App. 512; Blackmer v. Railroad, 101 Mo. 557; Gardner v. Railroad, 117 Mo.App. 147; Hayes v. Railroad, 53 S.E. 847; Favorite v. Cottrill, 62 Mo.App. 123; Carson v. Smith, 133 Mo. 606. (4) The admission of Keller's deposition to impeach him was not error. Tennent Shoe Co. v. Birdseye, 105 Mo.App. 696; Commonwealth v. Smith, 40 N.E. 196; 7 Ency. of Evidence, 150; In re DeGottardi, 114 F. 328; Railroad v. Faisst, 68 Ark. 587, 61 S.W. 374. (5) The defendants by cross-examination of the plaintiff sought to show that he was a gambler, had been arrested and prosecuted for crime, had visited bawdy houses and that he had lied about this transaction, that he had made statements out of court contrary to statements on the stand, and was generally immoral. This attack justified the evidence showing plaintiff's good character. Walker v. Ins. Co., 62 Mo.App. 209; Berryman v. Cox, 73 Mo.App. 67; Browning v. Railroad, 118 Mo.App. 459. (6) Fetters is shown by the evidence to have taken plaintiff to Keller's saloon; to have joined with Keller in a poker game; to have been present with Keller and plaintiff all the time at the Keller saloon; to have come back to Webb City with plaintiff and paid his way on the street car, and the following morning presented one of the stolen drafts for payment. This warranted the submission of a question of a conspiracy between the two defendants to steal plaintiff's drafts, to the jury; and, also justified the finding. Lesser v. Bockhoff, 33 Mo.App. 223; Allred v. Bray, 41 Mo. 484; Martin v. State, 8 So. Rep. (La.) 23; De Donato v. Morrison, 160 Mo. 591; Canifax v. Chapman, 7 Mo. 175; McNannus v. Lee, 43 Mo. 206; Cooper v. Johnson, 81 Mo. 490; State v. Walker, 98 Mo. 104; Goins v. State, 21 N.E. 476; Kelley v. People, 55 N.Y. 565; People v. Van Tassel, 156 N.Y. 561; Spies v. People, 12 N.E. 865. (7) In civil cases charging a conspiracy it is only necessary to prove facts from which an inference of a conspiracy may be drawn. Riehl v. Association, 3 N.E. (Ind.) 635; Indianapolis Co. v. Collingswood, 71 Ind. 476; Evansville Co. v. Mosier, 101 Ind. 597, 1 N.E. 197.

NIXON, P. J. Self, Special Judge, concurs; Cox, J., dissents; Gray, J., not sitting.

OPINION

NIXON

NIXON, P. J.--Defendant in error brought suit against plaintiff in error in the circuit court of Jasper county to recover the value of two certificates of deposit--one of $ 500 and the other for $ 300--and for exemplary or punitive damages for the manner in which the plaintiffs in error, as he charged, had secured possession of the certificates of deposit.

The first three counts of the petition relates to the certificate of deposit for $ 500, issued by the Webb City Bank, and the three counts are drawn for the same cause of action, but to present different theories of the case. Counts four, five and six relate to the certificate of deposit for $ 300, issued by the First National Bank of Carterville, and are for the same cause of action, presenting different theories of the case by the plaintiff. Count seven relates to a certificate of deposit for $ 200, and on this count, the jury, by a peremptory instruction of the court, returned a verdict for defendants, and it is now eliminated. Trial was had by jury, and a verdict returned in favor of plaintiff on count two in the petition for $ 507.50 actual damages, and $ 937.50 as exemplary damages, and found for the plaintiff on the fourth count for actual damages in the sum of $ 314.50, and exemplary damages in the sum of $ 562.50. Defendant thereupon sued out of the Kansas City Court of Appeals a writ of error, and the cause was subsequently transferred to this court wherein briefs were filed and the cause was argued and submitted, GRAY, J., not sitting. An opinion affirming the judgment was rendered, whereupon a petition for a rehearing was filed, and the two judges, having disagreed as to whether a rehearing should be granted, by consent, W. R. Self was qualified as special judge, and, upon hearing, the motion for rehearing was sustained.

Before the trial was had in the circuit court, defendants filed a demurrer to plaintiff's petition which was overruled, and they now insist that the court committed error in that respect. The record shows, however, that after the demurrer was overruled defendants answered, and this being true, they have waived any rights they may have had under the demurrer.

They insist in this court, however, that the petition does not state facts sufficient to support the verdict; and in this connection it might be well enough to note that counts one, two and three all refer to the same cause of action, and as a verdict was rendered on count two alone the other two are not before us for review. Counts four, five and six relate to the same cause of action, and as a verdict was returned on count four, counts five and six are not before us. Count four which is now brought under review on the objection that it is insufficient to sustain the verdict is as follows:

"The plaintiff, for another and further cause of action against the defendants, states: That on the--day of February, 1908 he was the lawful owner and had the lawful possession of a certificate of deposit, dated September 8, 1905, issued by the First National Bank of Carterville, to him, by the terms of which said certificate the said First National Bank of Carterville, by reason, and in consideration of $ 300 to it paid by the said plaintiff, promised to pay to the plaintiff, or his order, on the return of said certificate, the said sum of $ 300; that said certificate of deposit was of the actual value of $ 300; that on the said--day of February, 1908, and prior thereto, the plaintiff was afflicted with a habit or disease of intoxication; that by reason thereof the plaintiff by taking one drink of intoxicating liquor became unable to control a desire to continue drinking intoxicating liquors, and after drinking intoxicating liquor lost his discretion and power to control himself, and these facts were well known to the defendants, and the said defendants, on and prior to said date, unlawfully and maliciously intending to injure the plaintiff by wrongfully getting his property, conspired and confederated together to obtain the said certificate of deposit and to cash the same at the First National Bank of Carterville, and thereby wrongfully and maliciously deprive the plaintiff of said sum of $ 300 and maliciously convert the same to their own use.

"Plaintiff says that on the said--day of February, in pursuance of said conspiracy, the defendants intentionally and maliciously induced plaintiff to drink what plaintiff thought was whiskey, an intoxicating liquor, and which was either intoxicating liquor or poison, and after plaintiff had, at the solicitation of defendants, so drunk said intoxicating mixture, the defendants maliciously induced plaintiff to enter into what they termed a game of poker at the defendant Keller's saloon at Duenweg, Missouri, and pursuant to said conspiracy, and in said game and by said gambling device, said defendants wrongfully and maliciously obtained from the plaintiff in manner unlawful and without any consideration therefor the said certificate of deposit and in pursuance of said conspiracy on the--day of February,...