Weller v. Hayes Truck Lines

• Citation: 197 S.W.2d 657,355 Mo. 695
• Decision Date: 11 November 1946
• Docket Number: 39914
• Parties: Andrew Weller v. Hayes Truck Lines, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

197 S.W.2d 657

355 Mo. 695

Andrew Weller v. Hayes Truck Lines, a Corporation, Appellant

No. 39914

Supreme Court of Missouri

November 11, 1946

Appeal from Circuit Court of City of St. Louis; Hon. F. E Williams, Judge.

Judgment affirmed and opinion of st. louis court of appeals quashed.

Franklin E. Reagan, Sievers & Reagan and B. W. La Tourette for appellant; David Axelrod and Carl L. Steiner of counsel.

(1) A cause of action for contract and tort cannot be joined in the same petition. Sec. 917, R.S. 1939; Peycke Bros Commission Co. v. Davis, 257 S.W. 824; Dalton v. St Louis, I.M. & S. Ry. Co., 173 S.W. 77; Personal Finance Co. of Wellston v. Schwartz, 170 S.W.2d 701; Koch v. State Highway Comm., 47 S.W.2d 138; Hockley v. Hulet Bros. Storage & Moving Co., 16 S.W.2d 749; Pridemore v. Fife, 165 S.W. 1155. (2) The petition fails to state a cause of action for fraud. The petition does not charge that appellant made any representations as to existing facts, and does not charge appellant with making any false representations as to existing facts. Collins v. Lindsay, 24 S.W.2d 84. (3) General averments of fraud are insufficient to state a cause of action. Specific acts and circumstances constituting a fraud must be stated, and facts so stated must be sufficient in themselves to show that the conduct complained of was fraudulent. Klabor v. Unity School of Christianity, 51 S.W.2d 30. (4) To state a good cause of action in fraud sufficient facts must be pleaded from which fraud must necessarily be implied. Weitzman v. Weitzman, 156 S.W.2d 906. (5) The use of the terms "fraudulent" and "fraudulently" are not the pleadings of ultimate facts, but are mere epithets or mere conclusions and are insufficient to state a cause of action for fraud. Holt v. Joseph F. Dickman Real Estate Co., 140 S.W.2d 59. (6) Appellant's motion to strike out the amended petition should have been sustained because the amended petition is a departure from the cause of action attempted to be set forth in the original petition. The proper remedy to attack a petition is by motion to strike. Skulman v. Ballew, 27 S.W.2d 1036; Phillip v. Barnes, 105 Mo.App. 421. (7) An original petition which states, or attempts to state, a cause of action on contract, cannot be amended so as to state or attempt to state a cause of action for fraud. Bader v. Beek, 173 S.W.2d 647. (8) Appellant's motion to make the amended petition more definite and certain should have been sustained. The use of the descriptive terms "tortuously," "fraudulently," "deceitfully," "wilfully," "wantonly," and "maliciously" are indefinite and uncertain and at best amount to mere epithets or conclusions. Holt v. Joseph F. Dickman Real Estate Co., 140 S.W.2d 59. (9) Appellant's motion to require respondent to elect as between causes of action for (1) breach of contract, (2) negligence, (3) deceit, and (4) fraud, should have been sustained. Cape County Sav. Bank v. Wilson, 34 S.W.2d 981, 225 Mo.App. 14; Delay v. Douglas, 164 S.W.2d 154. (10) Appellant's demurrer to the evidence should have been sustained. There was no duty upon appellant to weigh the truck or ascertain the correct weight of the load on the trailer. (11) The delivery of a freight bill to respondent by appellant based on information obtained from others, and which respondent knew was so obtained, was merely the conclusion of appellant drawn from facts about which respondent knew as much as appellant, and is not actionable fraud. Tappe v. Pohlmann, 79 S.W.2d 485. (12) There was no contract requiring appellant to weigh the load or determine its correct weight. (13) Respondent had the same information that appellant had as to the weight of the load; neither had weighed the load and neither had loaded the truck. Both saw the load for the first time after it had been loaded. Bunch v. Munger Securities Co., 211 S.W. 703; Bradford v. Wright, 123 S.W. 108, 145 Mo.App. 623; Conklin v. Mo. Pac. R. Co., 55 S.W.2d 306, 331 Mo. 734; Contley v. Plattner, 67 S.W.2d 125, 228 Mo.App. 411. (14) There is no evidence in this case to show that appellant ever made any representations to respondent that appellant knew the correct weight of the load, or that 20,000 pounds was the correct weight. (15) Respondent acted on his own knowledge after an examination of the loaded trailer, and wanted to add 4,000 pounds more to the load after that examination. (16) There was no evidence showing the reasonable market value of respondent's trailer before or after the accident. (17) The court erred in allowing special damages for the loss of the use of the truck. Special damages must be specifically pleaded. W.C. Hardesty Company, Inc., v. Schaefer, 139 S.W.2d 1031.

Paul J. Kaveney and F. R. Stout for respondent.

(1) The defendant owed the plaintiff the duty to load the truck with only 24,000 pounds of freight: Under the Federal Motor Carrier Act of 1935; Title 4, U.S.C.A., Secs. 301-327; Scott Brothers, Inc., Collection and Delivery Service, 1 Federal Carriers 157. (2) And under the contract. Trout v. Watkins Livery & Undertaking Co., 148 Mo.App. 621, 130 S.W. 136; Everett v. St. Louis & S.F.R., 214 Mo. 54, 112 S.W. 486. (3) The preliminary pleadings and demurrer to the evidence were properly ruled on by the court. 62 C.J. 1091; Trout v. Watkins, supra. (4) The defendant is also liable on the grounds of misrepresentation as well as on the grounds of overloading the truck in the first instance. Hamlin v. Abell, 120 Mo. 188, 25 S.W. 516. (5) The damages allowed plaintiff by the trial court are proper Vetter v. Browne, 85 S.W.2d 199; Brunk v. Hamilton-Brown, 66 S.W.2d 903.

Douglas, J. All concur except Leedy, J., who dissents to the holding that the notice of appeal was sufficient.

OPINION

DOUGLAS

This case first went to the St. Louis Court of Appeals where the appeal was dismissed because it was not taken from an appealable order of judgment. 192 S.W.2d 677.

There is a conflicting decision by the Kansas City Court of Appeals in Park v. Park, 190 S.W.2d 285, where the same point at issue was involved. That court held that even though a notice of appeal stated the appeal was from the order overruling the motion for new trial, the appeal was nevertheless from a final judgment, and the notice was sufficient.

On its own motion, the St. Louis Court of Appeals transferred the case to this court under Article V, Section 10 of the Constitution 1945.

This is a suit to recover damages because of injuries to a trailer used in hauling freight. It was tried to the court without a jury, and the court rendered a judgment final in form on March 14, 1945 in favor of plaintiff for $ 2,460.65. Defendant filed a motion for new trial which was overruled on May 14, 1945 and thereafter defendant filed a notice of appeal. Every procedural step was regular up to this point. But the notice is challenged. It is as follows: "Notice is hereby given that Hayes Truck Lines, a corporation, above named, hereby appeals to the St. Louis Court of Appeals from the order and judgment overruling defendant's motion for new trial entered in this action on the 14th day of May, 1945."

Cases construing the old code dealt rigidly with the affidavit for appeal, now replaced by the notice of appeal. In a number of cases where such affidavit stated the appeal was from an order overruling a motion for new trial, it was held the appellate court had no jurisdiction except to enter an order dismissing the appeal.

The question for decision here is whether the notice of appeal can be construed to satisfy the requirements of the new code. In determining this question we must decide whether we are going to follow the harsh and technical rules of those cases, or whether, in the spirit of the new code, we shall follow the principle of liberal construction so that whenever possible a case will be reviewed on its merits.

But first speaking generally there is no longer any reason to follow the strict rules which sprung from the historical jealousy with which courts refused to exercise their jurisdiction, and this is particularly true with respect to an appeal. By the constitution, judicial power in this state is vested in a judicial system composed of the various courts extending from municipal corporation courts to the supreme court. The operation of these courts is not intended to be antagonistic one to the other. In some instances there is concurrent jurisdiction. The various courts complement one another for the purpose of leading to a final disposition on the merits after a controversy has completed its various legal stages, beginning with its trial and ending with its review on appeal. An appeal to a higher court is not a new and different action, it is merely a continuation of the original action. Sec. 125. Consequently, it is the duty of an appellate court freely to exercise its jurisdiction to provide a review on the merits in every instance that it may properly do so.

By the terms of the new code, we find the duty is imposed under Section 2 to construe the new code so as to secure the just, speedy, and inexpensive determination of every action. (Our emphasis.) This court has imposed the same duty upon itself and the other appellate courts by providing that court rules of appellate practice and procedure shall be liberally construed to promote justice, to minimize the number of cases disposed of on procedural questions, and to facilitate and increase the disposition of cases on their merits. Supreme Court Rule 1.28.

Appellate jurisdiction is created by statute. Accordingly, unless there is a judgment or order in a case from which an appeal is permitted by statute, appellate jurisdiction to review is denied us. On the other hand whenever a decision is entered in the trial court, which the statute has made...