Strebler v. Rixman

Decision Date19 May 1981
Docket NumberNo. 42576,42576
Citation616 S.W.2d 876
PartiesKenneth R. STREBLER, et al., Respondents, v. Raymond J. RIXMAN, Jr., Appellant.
CourtMissouri Court of Appeals

Mark M. Wenner, Clayton, for appellant.

William Roussin, Clayton, for respondents.


Plaintiffs sued defendant for fraudulent misrepresentation in the sale of a boat. The case was tried, and the jury returned a verdict for plaintiffs in the amount of $6,000 actual damages and $3,000 punitive damages. The trial court set aside the punitive damages award, and remitted the actual damages to $4,995. Defendant appeals.

The evidence shows the following: On August 1, 1976, defendant via a St. Louis newspaper, advertised his 1963 Pacemaker thirty-foot cabin cruiser for sale. Plaintiffs saw the advertisement and contacted defendant. On the evening of August 4, 1976, plaintiffs met defendant at the marina on the Mississippi River where the boat was docked.

Defendant showed plaintiffs various features aboard the boat, and offered to let them look around the boat, which they did. During plaintiffs' tour of the boat, defendant opened several of the hatches leading into the boat's below-deck area, or bilge, in which some of the planking and supports forming the boat's hull could be seen. Plaintiff-husband looked into the bilge through the hatchways but did not actually enter that area. Defendant then took plaintiffs for a brief cruise on the river after which they left. The meeting between plaintiffs and defendant lasted between twenty and forty minutes. Three days later, on August 4, plaintiffs bought the boat for $4,995, taking out a $6,000 loan to cover the purchase price and other expenses.

On September 18 of that year, at the suggestion of a neighbor, plaintiffs had Joseph Kretschmer, owner of a marine repair service, inspect the boat. At trial, Mr. Kretschmer testified that his physical inspection of the boat's bilge disclosed severe "dry rot," 1 that extensive repairs would have been necessary to save the boat, and that he advised plaintiffs the boat was unsafe and should not be used. He estimated the cost of repairing the boat to be $5,000.

Plaintiffs estimated that during the fall of 1976, they used the boat a total of eight or nine times. Thereafter, the boat was stored for the winter, and in the spring, plaintiffs pulled it from the water and "dry docked" it. They subsequently attempted to repair the boat themselves, but decided the job was beyond their ability, and ultimately junked the boat.

Defendant admitted that he had owned the boat for some eight years, that he was familiar with the problem of dry rot, and that he had had the boat repaired three times for dry rot damage, the last time only several months before plaintiffs bought it. The plaintiffs' expert testified that in his opinion the dry rot in the boat's bilge would not have developed rapidly, and that the condition of the boat during the several months before plaintiffs bought it would have been substantially the same as when he inspected it.

Defendant contends that plaintiffs failed to make a submissible case, and that the court should have directed a verdict in his favor. We note that where failure to grant a directed verdict for the defendant is the error asserted, the appellate court must determine whether or not the plaintiff presented substantial evidence at trial supporting his theory of recovery. Beck v. Modern Am. Life Ins. Co., 589 S.W.2d 98, 101 (Mo.App.1979). In reaching this determination, we must review the evidence in the light most favorable to the plaintiff, giving him the benefit of all reasonable inferences, and disregarding the defendant's evidence except as it aids the plaintiff's case. Id.

In order to establish a submissible case of fraud, plaintiffs had to show the following elements:

(1) a false, material representation;

(2) the speaker's knowledge of its falsity or his ignorance of its truth;

(3) the speaker's intent that it should be acted upon by the hearer in the manner contemplated;

(4) the hearer's ignorance of falsity of the statement;

(5) the hearer's reliance on its truth and the right to rely thereon; and

(6) proximate injury.

Huttegger v. Davis, 599 S.W.2d 506, 511 (Mo.banc 1980). The failure to establish any one of these elements is fatal to recovery. Twiggs v. National Old Line Ins. Co., 581 S.W.2d 877, 880 (Mo.App.1979). Defendant argues that plaintiffs' case failed because there was no evidence of a false, material representation.

Plaintiffs' evidence was that defendant had told them before they bought the boat that it was "a good boat," that he had "had no problems with it," and that the boat would be good for weekend trips of plaintiffs and their children. We agree with defendant that the representation that the boat was "a good boat" was merely a general expression of defendant's opinion, not a statement relating to an existing fact. This statement, taken alone, was therefore not actionable. Bauer v. Adams, 550 S.W.2d 850, 853 (Mo.App.1977). See also, Guess v. Lorenz, 612 S.W.2d 831 (Mo.App.1981).

With regard to the representation that defendant had "had no problems" with the boat, however, we have more difficulty. This is a representation of an objective fact, not merely the seller's opinion of value or quality. Further, knowledge of past structural damage, breakdowns, and other serious problems would be material to a potential buyer. See Barylski v. Andrews, 439 S.W.2d 536, 540 (Mo.App.1969).

Plaintiffs' evidence that defendant told them that he had had no problem with the boat, when viewed in light of the other...

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