Opinion
No. 6922.
November 20, 1950.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY, WALTER E. BAILEY, J.
Chas. E. Prettyman, 3rd, Neosho, for appellants.
A. H. Garner, Joplin, for respondents.
Plaintiffs sued for $1,900 actual and $1,000 punitive damages, and from a judgment for defendant Donnell, have appealed.
At the outset of this case, we are confronted with a violation of the statute and the rules relative to the filing of transcripts. The notice of appeal was filed December 22, 1949. On March 16th, 1950, and within 90 days from the filing of the notice of appeal, the time for filing the transcript was extended 60 days "from this date". On May 16 — the 61st day thereafter — another 60-day extension was granted by the trial court, which if authorized would have extended the time to July 16. But the circuit court has no right to extend the time for filing the transcript more than six months from the date of the filing of the notice of appeal (Supreme Court Rule No. 3.26) which date would have been June 22. The transcript was filed July 8, 1950, 16 days after the six months had expired.
In Morris Plan Co. of Kansas v. Jenkins, Mo.App., 216 S.W.2d 160, we had a situation similar to this and while we stated that we would be justified in dismissing the appeal for a violation of the rules, that inasmuch as a transcript had been actually filed, the parties had briefed and submitted the case without any question as to its timely filing having been raised, we would consider the case on its merits. We will do likewise in this case, but these holdings do not have that famous quality attributed to the law of the Medes and the Persians, (Daniel 6:8) and we may not be so liberal next time.
The petition alleges that plaintiffs are husband and wife and that defendants are each engaged in the trucking business in Joplin, Missouri; that the plaintiffs are of advanced years, ill in health and infirm, not familiar with business and finance and that these facts were known to defendants. That the defendants are young and healthy, thoroughly familiar with business transactions and took advantage of these known facts to defraud the plaintiffs. Furthermore, it was alleged that Earl C. Marks was the son of plaintiff, Letha Dunlap, and that therefore a fiduciary and confidential relationship arose between plaintiffs and defendants; that plaintiffs in September, 1946, had a bank draft written by a California bank on a Chicago bank for $2,038.16, payable to plaintiffs; that defendants wrongfully and fraudulently conspired to cheat and defraud the plaintiffs and, in pursuance of that conspiracy, on the 19th day of September, 1946, came to the home of the plaintiffs in Joplin, which was across the street from the home of defendant Earl C. Marks, and took both of them to a bank; that at the bank, defendants acting in collusion, with the intent to cheat the plaintiffs, did cause plaintiffs to endorse the bank draft and from the proceeds paid to plaintiffs $138.16, but that defendants kept $1,900 of the money without any consideration passing to plaintiffs.
It was further alleged that the two defendants agreed with plaintiffs that at the time the draft was cashed, Marks would execute a promissory note, properly secured, to plaintiffs for the sum of $1,900 and that defendant Jack Donnell would sign the same as additional security for said sum; that as a result of the conspiracy alleged, the plaintiffs were induced to endorse the bank draft and give over to defendants the sum of $1,900 and that upon obtaining said $1,900, defendants refused to sign any note securing the plaintiffs but did abscond with said money; that a demand has been made on each of the defendants that they give to plaintiffs a promissory note with sufficient collateral to secure the prompt payment of the same but that these demands have been refused and therefore plaintiffs have been defrauded out of $1,900 together with interest from the 19th day of September, 1946.
It was further alleged that all the aforesaid acts were willful, wrongful, malicious, wanton, vexatious and in utter disregard of plaintiffs' rights and for those reasons they asked $1,000 punitive damage.
Defendant Earl Marks filed a motion to strike out certain portions of the petition and also a motion to dismiss and for costs. All these were overruled and defendant Marks was given 30 days in which to plead further. He filed no other pleading and did not further appear in the case.
Defendant Jack Donnell filed an answer denying specifically paragraph by paragraph all the allegations in plaintiffs' petition except that he admitted he lived in Joplin and was in the trucking business.
The testimony on the part of the plaintiffs was that they had formerly lived in California and that upon returning to Missouri, they drew their funds from a California bank in the form of a bank draft, payable to both of them in the sum of $2,038.16, and that the draft was drawn on the First National Bank of Chicago. They returned to Joplin and were living at 1202 Missouri Avenue on the 19th day of September, 1946. Letha Dunlap was 60 years old at that time; that about 2:30 p. m., on September 19th, four days after their return, defendant Jack Donnell came alone to their home which he unceremoniously entered without the formality of knocking; that he had his hand in his coat pocket as if concealing a weapon therein and demanded, "You come and go with me, and don't open your mouth." They were "afraid of their lives", were very much frightened because he (Donnell) acted like he was "the law." Plaintiff, Ora Dunlap, had the bank draft in his pocket. When the three of them got to the car, they discovered Earl Marks, a son of Letha's by a former marriage, in the car; that the four of them proceeded from 1202 Missouri Avenue to a bottling works on Sixth Street where Donnell and Marks got out, locked the car and Donnell instructed the plaintiffs not to leave it. The car was locked, they were too frightened to leave, and stayed in the car until the two defendants returned in about ten minutes. They then moved over to Main Street where they parked near a jewelry store, got out of the car and were accompanied to the bank about 2:30 in the afternoon. When they entered the bank they were instructed to take seats near the front and the two defendants went back further in the bank lobby while some papers were prepared and they talked to a banker. Plaintiffs could not hear what they said but after a while, defendant Donnell came back to them and said, "You hand over the draft", which they did, after each of them had endorsed it. Donnell then endorsed the draft also, cashed it and paid to Ora Dunlap $138.16 in cash. They were then ordered to leave the bank and get in the car at which time they proceeded homeward. Earl Marks was the first to leave the car and when they were released by defendant Donnell, he cautioned them, "Go home, and don't tell any tales, or you won't be able to tell anything." They did go home, did not say anything to anyone until a few days later, when they went down to the home of Jack Donnell and demanded their $1900, which Donnell refused to return. They then asked Donnell where the money was and were informed it was in a soap factory. No further action was taken until this suit was filed, June 23, 1947, and no complaint was made to the authorities.
The plaintiffs testified that they did not know how Donnell and Marks knew they had the bank draft, that they had never seen Donnell before the day he came to their house and they had not seen Marks for a long time prior to that date and had not seen him afterwards. Neither of the plaintiffs had talked to Marks about a loan or told him of the draft.
At the close of plaintiffs' testimony, defendant Donnell moved the court to dismiss the action because there was no testimony that the draft was delivered to the defendants by threats and duress. This motion was overruled by the court for the reason no objection had been made to the evidence when offered.
The evidence on the part of the defendant, Jack Donnell, tended to show that, prior to the transactions in controversy, Earl Marks was working for him, driving a truck and trailer; he had been buying soap in Texas and selling it in Illinois and Missouri and Marks was driving the truck so used; that Marks wanted to buy the equipment he had been driving and defendant agreed to sell it to him for $4,000. The equipment was reasonably worth this amount. Marks and Donnell went to the home of plaintiffs on the 18th day of September, 1946, the day before the transaction in the bank, and Marks made arrangements with his mother to get $1900 of the purchase price of the equipment from her. She informed him she did not have it in cash but did have a cashier's check, but it was then too late to go to the bank as the bank was closed. They agreed to return the next day, which they did. The next day Donnell borrowed his father's car and, with Marks, went to the home of plaintiffs and took them to the bank. There was no compulsion or duress. They did stop on the way to the bank but the car doors were not locked and no threats of any kind were made. Defendant did not keep his hand in his coat pocket in a threatening manner, in fact, did not wear a coat. When they arrived at the bank Marks, with the assistance of a bank employee, executed two notes and chattel mortgages to Donnell, the first note was for $1872 and the second for $481.50. These notes constituted the balance due on the purchase price of the truck and trailer after the payment of $1900.00. They were later negotiated to the bank by Donnell. Defendant Donnell testified relative to the occurrences in the bank: "A. Well, when we got the papers fixed up I was — I told Earl I was ready for the down payment and sign him over the title, while I had a notary there to notarize my signature, and he said, `We will go over and get it from mother.' And he said to her, `Well, we are ready to make the down payment.' And she got the check out, and her and Mr. Dunlap signed it and gave it to me."
Donnell then endorsed it, deposited part of it, obtained cash for the rest and paid to the plaintiffs the amount of the draft above the $1900, which was $138.16. There was nothing unusual about the arrangement so far as he knew and he made no promises of any kind to the plaintiffs. He did not borrow the money from them and he did not agree to repay it. He said that on the day he and Marks first visited the plaintiffs, to arrange for Marks to get the down payment, that Marks agreed to let the plaintiff, Ora Dunlap, make trips with him and work with him on the truck, thereby furnishing him employment. He stated that sometime after the transaction, plaintiffs came to him and demanded the $1900 and that he told them to go see Marks, that he was the one who borrowed it. He denied telling them their money was in a soap factory or words to that effect. The case was submitted to the jury and they returned a verdict for the defendant, Jack Donnell.
As has been stated, defendant Marks did not file an answer and did not appear at the trial and defend. It does however, appear in the transcript, that sometime prior to the trial he appeared in the magistrate's court in Joplin where he was charged with concealing the identical property upon which he had given the two chattel mortgages. What happened to this charge does not appear, nor is it material. The case was tried as though there was only one defendant, Jack Donnell. The court's instructions referred only to him and the verdict was only as to him. We will therefore consider this case as though the case against Marks had been abandoned.
As stated, the theory of the petition was that defendants, Earl C. Marks and Jack Donnell, conspired to defraud the plaintiffs by promising them that if plaintiffs would loan Marks $1900 that Marks would execute a promissory note with security and that Donnell would "also sign the promissory note in said amount and sign the security as additional security." That plaintiffs, believing the promises of Marks and Donnell, endorsed the draft, delivered to them the sum of $1900 and as soon as they obtained it, they refused to sign any papers protecting and securing plaintiffs and absconded with the money. This theory was completely abandoned at the trial and an endeavor was made to exculpate Marks from any fault and hold Donnell solely and entirely responsible. If plaintiffs' evidence is true, the obtaining of the $1900 by Donnell was not a fraudulent scheme consummated by making promises, not intended to be kept and which were not kept, but was practically kidnapping and robbery. No objections were made, however, during presentation of this evidence at the trial, although it was a complete departure from the pleaded theory.
Appellants contend that the verdict of the jury was against the weight of the evidence but this contention is untenable. If defendants' testimony was true, and by their verdict the jury found it was, plaintiff Letha Dunlap loaned $1900 to her son to make a down payment on equipment, the use of which would supply her second husband with a job. The $1900 was paid voluntarily to Donnell for Marks as the down payment and Donnell is not bound by any agreement that Marks might have had with his mother and stepfather. The jury was clearly justified upon this evidence in finding a verdict for defendant Donnell and we are bound by that finding. Allen v. Kraus, 358 Mo. 520, 215 S.W.2d 739; Purdy v. Moore, Mo.App., 224 S.W.2d 838.
Appellants further contend that the court committed error in permitting defendant Donnell to introduce the notes, mortgages and insurance policy that were executed in completing the transaction as outlined by the testimony of defendant Donnell. Donnell's version of the transaction was that the $1900 was a down payment on the purchase price of the truck and trailer, which was only part of the transaction, that the purchase price was $4,000, that the notes and mortgages were security for the unpaid purchase price and the insurance policy procured by Marks was to further secure the payment. These exhibits were therefore admissible to show the completed transaction as contended by defendant Donnell. The policy itself declared that in case of loss, payment was to be made to the insured and to the First State Bank of Joplin, which was purchasing the two notes from Donnell at the time of the transaction.
At the instance of the defendant, the court instructed the jury that to find for the plaintiffs, they must find that a conspiracy existed between Donnell and Marks and that plaintiffs parted with their money as a result of said conspiracy; that if the jury found that the money was loaned to Earl C. Marks, then they must find for the defendant Donnell. This instruction is somewhat ineptly worded but it substantially states the law under the conflicting theories.
Instruction B on behalf of defendant Donnell told the jury that plaintiffs must show by a preponderance or greater weight of the evidence that on the 19th day of September, 1946, defendant Donnell conspired to cheat and defraud plaintiffs and that they "thereby paid said Jack Donnell, in person, the money alleged in plaintiffs' petition" and if they did not so find the facts to be, they should return a verdict for defendant Donnell. This instruction is clumsily worded, refers to plaintiffs' petition, is not by any means a model to be followed, but substantially follows defendant's theory, and if error, is harmless. Adams v. City of St. Joseph, Mo.Sup., 230 S.W.2d 862 and cases cited.
Instruction No. C given by the court on behalf of defendant Donnell was on the burden of proof and has been many times approved. It is not clear what objection appellants have to Instruction D, but we have carefully read it and it seems to clearly cover defendant's theory of the case. If anything, it places additional burdens on him and appellants could not be damaged thereby.
Appellants also object generally to the court's failure in giving Instructions 4, 4A, 5, 6, 6A and 7 and in support thereof quote several abstract statements of the law. With the law of these cases, we do not disagree, but they are not applicable to the facts here.
Plaintiffs' requested instructions 4, 5 and 6 are fully covered in plaintiffs' given instructions 1, 2 and 3. Requested instruction No. 6 is as follows: "The Court instructs the jury there may be a fraud in the suppressing and concealing of material facts as well as in direct misrepresentation, if the other party is knowingly suffered to deal under a delusion."
This is merely an attempted statement of an abstract principle of law and has no application to the facts in this case as far as we can see. It does not hypothesize any facts and could only confuse the jury. Instruction 6A is only an amplification of No. 6 and equally objectionable.
Plaintiffs' instruction 4A was evidently drawn under the theory that the evidence would support the allegations in the petition relating to fraud but the evidence did not support those allegations. That instruction, therefore, should have been and was refused.
Instruction No. 7 follows: "The Court further instructs the jury that no ill will or hatred or personal spite is necessary to create legal malice. Malice, as used in these instructions, means the intentional doing of a wrongful act without just cause or excuse."
We are unable to see the applicability of this instruction to the facts before us. It may be an approved instruction in some cases, but in this case there is no evidence of malice. It could only inject into the case a matter that would be confusing to the jury, certainly not enlightening.
Finding no error, the judgment of the trial court should be affirmed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.