Summers v. Keller

• Decision Date: 03 January 1911
• Parties: SUMMERS v. KELLER et al.
• Court: Missouri Court of Appeals

133 S.W. 1180

152 Mo. A. 626

SUMMERS v. KELLER et al.

Springfield Court of Appeals. Missouri.

January 3, 1911.

Further Rehearing Denied and Case Certified to Supreme Court February 6, 1911.

1. PLEADING (§ 433) — SUFFICIENCY AFTER VERDICT.

A petition stating that defendants, by wrongfully inducing plaintiff to drink intoxicants, obtained and cashed his certificates of deposit held sufficient after verdict to sustain a verdict for plaintiff.

2. TROVER AND CONVERSION (§ 50)—DAMAGES.

One, whose certificates of deposit were wrongfully secured and cashed by defendants, can recover his actual damage—the amount of the certificates.

3. DAMAGES (§ 87)—EXEMPLARY DAMAGES—WHEN RECOVERABLE.

To warrant exemplary damages, the act complained of must be wrongful and so known by the wrongdoer, must result in actual damages legally ascertainable, and must have been intended or committed under such circumstances that the law implies an evil intent.

4. LARCENY (§ 3) — ELEMENTS — KNOWLEDGE AND INTENT.

Knowledge that the act is wrong, and intent to injure by depriving the owner of his property, are essential to larceny.

5. TROVER AND CONVERSION (§ 60)—EXEMPLARY DAMAGES—CONVERSION.

Exemplary damages are recoverable for a wrongful taking of property with intent to deprive the owner thereof.

6. DAMAGES (§ 90)—EXEMPLARY DAMAGES—WHEN RECOVERABLE.

That a wrongful act is punishable as an offense does not preclude exemplary damages therefor.

7. TROVER AND CONVERSION (§ 60)—EXEMPLARY DAMAGES.

That the value of property wrongfully converted can be accurately ascertained does not preclude exemplary damages.

8. DAMAGES (§ 87)—EXEMPLARY DAMAGES—RIGHT TO.

Exemplary damages are not matter of right, being discretionary with the jury, subject to the court's approval.

9. DAMAGES (§ 94)—EXEMPLARY DAMAGES—ASSESSMENT.

In assessing exemplary damages, aggravating and mitigating circumstances should be considered.

10. DAMAGES (§ 94)—EXEMPLARY DAMAGES—ADEQUACY.

$1,500 is not excessive as exemplary damages for wrongfully obtaining $800 certificates of deposit, after inducing the owner to drink intoxicants.

11. PLEADING (§ 418)—OBJECTIONS—WAIVER.

By answering after their demurrer was overruled, defendants waived any objection that there was a misjoinder of causes.

12. PLEADING (§ 433) — OBJECTIONS — TIME FOR MAKING.

The only questions that can be raised after verdict, by general objection to the sufficiency of the petition, are that the petition fails to state a cause of action and that the court was without jurisdiction of the subject-matter.

13. WITNESSES (§ 361) — CREDIBILITY — EVIDENCE.

Defendants having sought to show that plaintiff was a gambler, had been prosecuted, and that he had made contradictory statements out of the court, he could show his good reputation for veracity and general honesty.

14. WITNESSES (§ 390) — REBUTTAL—ADMISSION BY DEPOSITION.

One sued for wrongfully converting certificates of deposit having testified that he cashed them to accommodate plaintiff, plaintiff to contradict him could show that on the taking of his deposition defendant refused to state how he received the certificates, on the ground that his answer might incriminate him.

15. EVIDENCE (§ 76)—ADMISSION BY SILENCE.

Where, in an action for converting certificates of deposit, the evidence tended to show that one of the defendants was a party to wrongfully obtaining the certificates, his failure to testify can be considered as implicating him.

16. CONSPIRACY (§ 21) — JURY QUESTIONS — JOINT ACTION.

Whether persons sued for wrongfully obtaining and cashing certificates of deposit after inducing the owner to drink intoxicants acted jointly, pursuant to a conspiracy, held, under the evidence, a jury question.

17. TROVER AND CONVERSION (§ 25)—JOINT LIABILITY.

Defendants were jointly liable if they cooperated in procuring plaintiff's intoxication, and thereby obtained and cashed his certificates of deposit, though there was no previous conspiracy.

18. NEW TRIAL (§ 102)—NEWLY DISCOVERED EVIDENCE—DILIGENCE.

A new trial asked for newly discovered evidence is properly refused, where no diligence to discover the facts is shown.

19. GAMING (§ 26)—RECOVERY OF MONEY.

The common-law rule that property lost in gaming could not be recovered was abrogated by Rev. St. 1899, § 3424 (Ann. St. 1906, p. 1967).

20. GAMING (§ 26) — RIGHT TO RECOVER MONEY.

At common law, money won in gaming could be recovered, if the winner obtained it by drugging or intoxicating the loser.

21. PLEADING (§ 380)—NECESSITY

Material facts not pleaded cannot be proved.

22. JUDGMENT (§ 250) — CONFORMITY TO PLEADINGS.

No recovery can be had on a cause of action not pleaded.

23. TRIAL (§ 251)—INSTRUCTIONS—CONFORMITY TO PLEADING.

A petition stating that, pursuant to conspiracy to procure plaintiff's certificates of deposit, the defendants induced him to drink intoxicants and then to enter a poker game, and that in the game and by the gambling device they wrongfully obtained the certificates, states a cause of action under Rev. St. 1899, § 3424 (Ann. St. 1906, p. 1967), to recover money lost at gaming, and not a cause of action for larceny, making reversible error an instruction authorizing recovery if the certificates were stolen.

24. APPEAL AND ERROR (§ 232)—ERROR NOT WAIVED BELOW—INSTRUCTIONS.

Defendants did not at the trial waive objections to an instruction as broadening the issues made by the pleadings, where they demurred to the evidence and objected to the instruction.

Cox, J., dissenting.

Error to Circuit Court, Jasper County; Haywood Scott, Judge.

Action by R. F. Summers against S. A. Keller and another. Judgment for plaintiff, and defendants bring error. Judgment reversed, and case certified to Supreme Court.

M. R. Lively and A. E. Spencer, for plaintiffs in error. H. W. Currey, Geo. V. Farris, and W. J. Owen, for defendant in error.

NIXON, P. J.

Defendant in error brought suit against plaintiffs in error in the circuit court of Jasper county to recover the value of two certificates of deposit—one for $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 relate 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 4, 5, and 6 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 7 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 2 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. Defendants 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 1, 2, and 3 all refer to the same cause of action, and, as a verdict was rendered on count 2 alone, the other two are not before us for review. Counts 4, 5, and 6 relate to the same cause of action, and, as a verdict was returned on count 4, counts 5 and 6 are not before us. Count 4, 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...