United Services of America, Inc. v. Empire Bank of Springfield

• Decision Date: 17 February 1987
• Docket Number: No. 14261,14261
• Parties: UNITED SERVICES OF AMERICA, INC., Plaintiff-Appellant, v. EMPIRE BANK OF SPRINGFIELD, Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 439

726 S.W.2d 439

UNITED SERVICES OF AMERICA, INC., Plaintiff-Appellant, v. EMPIRE BANK OF SPRINGFIELD, Missouri, Defendant-Respondent.

No. 14261.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 17, 1987.

Motion for Rehearing or to Transfer

to Supreme Court Denied

March 9, 1987.

Application to Transfer Denied April 14, 1987.

Donald W. Jones, Steven E. Marsh, Hulston, Jones & Sullivan, Springfield, for plaintiff-appellant.

William A.R. Dalton, Bill Clampett, Springfield, for defendant-respondent.

L. THOMAS ELLISTON, Special Judge.

This case was submitted to a jury on a fraudulent misrepresentation theory seeking actual and punitive damages. The jury returned a verdict in favor of defendant, Empire Bank of Springfield, Missouri (Empire), and against plaintiff, United Services of America, Inc. (United).

On appeal, United alleges the trial court erred in failing to sustain its motion for a directed verdict, in refusing to admit into evidence portions of depositions of two of Empire's officers, and made other errors in evidentiary rulings which require a new trial. We reverse because the trial court erred in refusing to allow the depositions in question in evidence.

The facts necessary for understanding the disposition of this appeal are as follows. United is a closely held Texas corporation that is owned by Richard P. Dunn and his family. Empire is a bank located in Springfield, Missouri.

In February, 1982, Empire became the owner, through repossession, of a 1952 DeHavilland Dove airplane. At the time of the repossession, the airplane was partially dismantled; some of the engine accessories were missing, and the landing gear was not functional. The airplane was not in an airworthy, flying condition. Empire attempted to sell the airplane, and placed ads in various aviation magazines, one being the April 1983 edition of "Trade-A-Plane." In that issue, Empire advertised the plane for sale as a 1958 DeHavilland Dove that they had repossessed, with a selling price of $60,000. A phone number was furnished for anyone seeking additional details and bid information.

David Thater, a loan officer of Empire, was in charge of selling the airplane. He had been given complete authority by Empire to do whatever he deemed appropriate in selling the airplane, and had placed the ad in Trade-A-Plane. Thater had prepared a list of specifications concerning the airplane which was sent, along with photographs, to prospective purchasers. Empire received no firm offers for the airplane from the time of its repossession in February 1982, until United's offer in April, 1983.

Richard Dunn, an owner and officer of United, contacted Thater on April 18, 1983, and requested information regarding the airplane. Dunn had become aware of the airplane's availability because of the Trade-A-Plane advertisement. Dunn told Thater he was seeking a good, safe, reliable airplane for his family use as transportation between their homes in Texas and Mexico. Thater sent Dunn information concerning the airplane, including photocopied pictures of the airplane, a list of equipment and specifications, and two written memorandums concerning the sale of the airplane. One of the memorandums was from David Thater and stated that Empire was scheduling the sale of the airplane "on or before Wednesday, April 27 1983," and "[a]ny reasonable bid will be accepted."

On Thursday, April 21, 1983, Dunn talked to Thater by telephone about the airplane. Dunn testified that Thater told him that the airplane was in good condition and flyable when it was repossessed. Dunn offered Empire $40,000 cash for the airplane. Thater, on behalf of Empire accepted Dunn's offer. Dunn wire-transferred the $40,000 to Empire on Friday, April 22, 1983, and flew to Springfield on Saturday, April 23, 1983, for the purpose of looking at the airplane, and having it flown out of Springfield.

Upon arriving in Springfield, Dunn learned that the airplane could not be flown, for various reasons, including that the last inspection, required by the Federal Aviation Agency to be done annually, had taken place on February 10, 1981. Thater had purposely not informed Dunn of the date of the last annual inspection because he wanted to emphasize the positive aspects of the airplane. Dunn then incurred $33,804.16 expense for work and repairs on the airplane and discovered that it would cost an additional $15,000 to $25,000 to get the airplane airworthy.

United then brought this action against Empire alleging in the alternative a count for breach of implied warranty of fitness for a particular use, a count for breach of express warranty, and a count for fraudulent misrepresentation. At the close of all of the evidence, United made a motion, which was overruled, for a directed verdict on all three counts. United submitted the fraudulent misrepresentation theory to the jury seeking actual and punitive damages. The jury returned a verdict for Empire. This appeal followed.

United alleges that the trial court erred in failing to sustain its motion for a directed verdict at the close of all of the evidence. In determining whether the trial court so erred, the evidence is viewed most favorably to Empire, the party opposing the motion. Fleischmann v. Mercantile Trust Co. Nat. Ass'n, 617 S.W.2d 73, 73 (Mo.banc 1981); Consol. Public Water Supply v. Farmers Bank, 686 S.W.2d 844, 849 (Mo.App.1985); Green v. Crunden Martin Mfg. Co., 575 S.W.2d 930, 932 (Mo.App.1978).

It is a long established rule in Missouri that a trial court will very seldom be justified in directing a verdict in favor of a party having the burden of proof, where that party relies on oral testimony to carry the burden of proof. Helfrick v. Taylor, 440 S.W.2d 940, 943 (Mo.1969); Beezley v. Spiva, 313 S.W.2d 691, 695 (Mo.1958); Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559 (1931). Stated in another manner:

The general rule is that where the proof of a party asserting the affirmative of a determinative issue is oral, such party is not entitled to a directed verdict although the opposing party offers no evidence, because the value and weight of the proponent's evidence and the credibility of his witnesses is for determination by the jury.... 'Ordinarily it is the function of the jury to pass upon all oral evidence, and in doing so it may find against a party on his uncontradicted and unimpeached evidence.' (Citations omitted.)

Ferguson v. Boyd, 448 S.W.2d 901, 903 (Mo.1970); Beezley v. Spiva, supra, 313 S.W.2d at 695.

Of course, there is an exception to that general rule when there is no real dispute of the basic facts essential to establish the claim being advanced by the person having the burden of proof. Ferguson v. Boyd, supra, 448 S.W.2d at 903; Consol. Public Water Supply v. Farmers Bank, supra, 686 S.W.2d at 849. Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287 (banc 1954), states the exception in the following language:

This general rule is not applicable in unusual situations where defendant in his pleadings or by his counsel in open court admits plaintiff's claim ..., or by his evidence also establishes plaintiff's claim, or where there is no real dispute of the basic facts supported by uncontradicted testimony essential to a claim or an affirmative defense. (Citations omitted.)

The elements of causes of action for breach of an implied warranty of fitness for a particular purpose under § 400.2-315; ¹ breach of an express warranty under § 400.2-313; and, fraudulent misrepresentation are found in MAI 3d. Edition 25.03, 25.07 and 23.05. Each cause of action contains elements that are normally only proven by oral testimony and reasonable inferences the finder of fact may derive from the evidence, such as "plaintiff reasonably relied," "within a reasonable time," "was a material factor in plaintiff's decision," "the representation was material to purchase by plaintiff," and "plaintiff was using ordinary care." A thorough review of the transcript in this case reveals that United relied heavily on oral testimony; that Empire did not admit United's claims in the pleadings, or in open court; and, that there was a real dispute of the basic facts essential to support United's claim. The trial court did not err in denying United's motion for directed verdict filed at the close of all of the evidence.

We next consider whether the trial court erred in refusing to admit into evidence portions of certain depositions offered by United. Rick Watts was a senior vice-president of Empire, and United had taken his deposition twice, first on April 17, 1984, and again on November 19, 1984. On the same dates, United had also taken the deposition of David Thater, a loan officer of Empire. Prior to trial, United made the following request for admissions of Empire, and received the indicated responses:

1. That at the time of the taking of his deposition on April 17, 1984, Rick Watts was an officer and agent of Empire.

Response: Admitted.

2. That at said time Watts was authorized to make each of the statements he made in response to the questions he made on behalf of Empire, and as an officer and agent of Empire.

Response: Admits the deponent was authorized to give his deposition and was expected to truthfully answer all questions propounded to him.

3. That at the time of the taking of his deposition on November 19, 1984, Rick Watts was an officer and agent of Empire.

Response: Admitted.

4. That at said time, Watts was authorized to make each of the statements he made in response to the questions propounded to him in said deposition.

Response: Admits that deponent was authorized to give his deposition and was expected to truthfully answer all questions propounded to him.

5. That David M. Thater was an officer of Empire at the time he gave his deposition on April 17, 1984.

Response: Admitted.

6. That each of the statements made by David M. Thater in the portions of his deposition designated under Part II of Exhibit B...