Vickers v. Gifford-Hill Co., Inc.

16 Citing cases

  1. Greenwood v. Dittmer

    776 F.2d 785 (8th Cir. 1985)   Cited 66 times
    Affirming j.n.o.v. in favor of defendants in suit by Refco customer under the Commodities Act

    A fraud action under section 4b of the CEA is substantially the same. An expression of opinion may constitute fraud only if the person knew that the opinion was false when made. Vickers v. Gifford-Hill Co., 534 F.2d 1311, 1316 (8th Cir. 1976). The Supreme Court observed in Merrill Lynch, Pierce, Fenner Smith, Inc. v. Curran, 456 U.S. 353, 389 n. 88, 102 S.Ct. 1825, 1845 n. 88, 72 L.Ed.2d 182 (1982), that the language of § 4b of the CEA is similar to that of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b).

  2. Gonzalez v. Union Pac. R.R. Co.

    282 Neb. 47 (Neb. 2011)   Cited 54 times
    Considering alternative grounds for affirming dismissal of complaint for failure to state claim

    Fraud in the execution goes to the very existence of the contract, such as where a release is misread to the releasor, or where one paper is surreptitiously substituted for another, or where a party is tricked into signing an instrument he or she did not mean to execute.See, Vickers v. Gifford–Hill & Co., Inc., 534 F.2d 1311 (8th Cir.1976); Ted Price Construction Co. v. Cascade Natural Gas Corp., 307 F.2d 741 (9th Cir.1962); Marshall v. New York Central Railroad Company, 218 F.2d 900 (7th Cir.1955); Zane, supra note 13; Brusseau v. Electronic Data Systems Corp., 694 F.Supp. 331 (E.D.Mich.1988); McCarty v. Kendall Company, 242 F.Supp. 495 (W.D.S.C.1965); Stewart v. Eldred, 349 Mich. 28, 84 N.W.2d 496 (1957); Picklesimer v. Rd. Co., 151 Ohio St. 1, 84 N.E.2d 214 (1949); Jordan, supra note 10; Union Life & Accident Ins. Co. v. American Surety Co., 113 Neb. 300, 203 N.W. 172 (1925); Swan v. Great Northern R. Co., 40 N.D. 258, 168 N.W. 657 (1918). In such cases, as explained above, there was no meeting of the minds, so the consideration received was not received for consenting to the terms of the alleged contract—in other words, it is not a question of a contract voidable for fraud, but of no contract at all.

  3. Lusby v. Union Pacific R. Co.

    4 F.3d 639 (8th Cir. 1993)   Cited 33 times
    Finding that, in action brought by father of decedent killed by train that collided with the wrecker he was driving, expert who was “key witness in establishing that the crossing was abnormally dangerous” had impermissibly relied on data received from the state highway and transportation department in violation of 23 U.S.C. § 409

    Under the Arkansas wrongful death statute, however, a corporation cannot recover for the loss of an employee's services because a decedent's employer is not an enumerated beneficiary. See Vickers v. Gifford-Hill Co., 534 F.2d 1311, 1319 (8th Cir. 1976) (interpreting Ark. Code Ann. § 16-62-102(f)). Because whatever earnings Lusby might have realized from Darryl's employment efforts would have gone to Lusby only in his capacity as the corporation's sole shareholder, Lusby cannot recover for his corporation's loss of a key employee.

  4. Horn v. Ray E. Friedman Co.

    776 F.2d 777 (8th Cir. 1985)   Cited 22 times
    Holding that plaintiff must demonstrate that defendant made false statement with knowledge or belief that it was false

    An expression of opinion may constitute fraud only if the actor knew when stating the opinion that it was false. Vickersv. Gifford-Hill Co., 534 F.2d 1311, 1316 (8th Cir. 1976). There is nothing in the record of this case to indicate that Dittmer thought or knew that the statement was false when made. Trading activity in Dittmer's personal trading account supports this view.

  5. Dace v. ACF Industries, Inc.

    722 F.2d 374 (8th Cir. 1983)   Cited 139 times
    In Dace v. ACF Industries, Inc., 722 F.2d 374 (8th Cir. 1983), for example, we stated that, in considering a motion for directed verdict or for j.n.o.v., the court must: (1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn.

    In making this determination, the evidence, together with all reasonable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See, e.g., Tribble, supra, 669 F.2d at 1196; Smith, supra, 619 F.2d at 1235; Vickers v. Gifford-Hill Co., 534 F.2d 1311, 1315 (8th Cir. 1976). We have interpreted the instruction to view the evidence favorably to the nonmovant as requiring the court to (1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn.

  6. Smith v. Hussmann Refrigerator Co.

    619 F.2d 1229 (8th Cir. 1980)   Cited 57 times
    In Smith v. Hussmann Refrigerator Co., 619 F.2d 1229 (8th Cir.) (in banc), cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 46 (1980), for example, the Eighth Circuit ruled in an action which included a duty of fair representation claim that judgment as a matter of law in favor of the defendant was not warranted merely because damages were difficult to calculate.

    (Citations omitted.)Vickers v. Gifford-Hill and Co., 534 F.2d 1311, 1315 (8th Cir. 1976), quoting Giordano v. Lee, 434 F.2d 1227, 1231 (8th Cir. 1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971).See also Voegeli v. Lewis, 568 F.2d 89, 92 (8th Cir. 1977); Banks v. Koehring Co., 538 F.2d 176, 178 (8th Cir. 1976); Griggs v. Firestone Tire and Rubber Co., 513 F.2d 851, 857 (8th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975).

  7. Dobson v. Bacon Transport Co.

    607 F.2d 805 (8th Cir. 1979)   Cited 16 times
    Holding a repetitious instruction was not prejudicial when viewed in the context of the entire jury charge

    It seems to be conceded that under Arkansas law, plaintiffs may only recover for mental anguish in this wrongful death action if they show that they have suffered "more than normal grief." Vickers v. Gifford-Hill Co., 534 F.2d 1311 (8th Cir. 1976); Missouri Pac. R.R. v. Ward, 252 Ark. 74, 477 S.W.2d 835 (1972). We also note that under Arkansas statute, Ark.Stat.Ann. § 27-909, recovery is permitted for "surviving spouse, children, father and mother, brother, sister or persons standing in loco parentis to the deceased and persons to whom the deceased stood in loco parentis at the time of the injury which caused the death of the deceased."

  8. Starling v. Valmac Industries, Inc.

    589 F.2d 382 (8th Cir. 1979)   Cited 24 times
    In Starling v. Valmac Industries, Inc., 589 F.2d 382 (1979), a case with facts startlingly similar to the facts in this case, the Court of Appeals for the Eighth Circuit also applied the parol evidence rule and affirmed the trial court's refusal to allow parol evidence to vary the terms of a written contract entered into between the parties.

    Going a step further and taking into consideration the now generally accepted aphorism of Justice Holmes that the state of a man's mind is as much a fact as is the state of his stomach, we think that it may be said safely that today the Arkansas law is that a promissory representation made in bad faith and without honest intention of performing the promise and for the purpose of inducing the promisee to enter into a contract, may be a proper foundation for a tort action for fraud and deceit where the party to whom the representation is made acts to his detriment in reliance on the representation. See Anthony v. First Nat'l Bank of Magnolia, 244 Ark. 1015, 431 S.W.2d 267, 274 (1968), cited in Vickers v. Gifford-Hill Co., 534 F.2d 1311, 1316 (8th Cir. 1976). We recognize, of course, that a person is not necessarily guilty of fraud merely because he fails to perform a contractual obligation or because he expresses an erroneous opinion or makes a prediction that does not come true.

  9. Farner, v. Paccar, Inc.

    562 F.2d 518 (8th Cir. 1977)   Cited 100 times   1 Legal Analyses
    Holding that a truck operator with 30 years of trucking experience could testify as a lay witness about the proper use of safety chains installed to address a potential design defect in his truck so long as his testimony was limited to "his own knowledge and perception"

    The jury's verdict was not, in our view, against the great weight of the evidence. See Vickers v. Gifford-Hill Co., Inc., 534 F.2d 1311, 1315 n. 7 (8th Cir. 1976); Reed Brothers, Inc. v. Monsanto Company, 525 F.2d 486, 500 (8th Cir. 1975), cert. denied, 423 U.S. 1055, 96 S.Ct. 787, 46 L.Ed.2d 645 (1976). II

  10. Brinkley v. United States

    560 F.2d 871 (8th Cir. 1977)   Cited 14 times
    In Brinkley, supra, the branch manager of a bank received a call from one of several defendants, later convicted of violation of 18 U.S.C. § 2113(a), demanding that he get several thousand dollars or a bomb would go off at his home.

    We have repeatedly stated that a party may not assign as error the giving of an instruction unless he objected in the trial court. Otten v. Stonewall Ins. Co., 511 F.2d 143, 146 (8th Cir. 1975); Griggs v. FirestoneTire and Rubber Co., 513 F.2d 851, 857 (8th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975); Vickers v. Gifford-Hill Co. Inc., 534 F.2d 1311, 1315 (8th Cir. 1976). While such error may be recognized in a § 2255 proceeding, it must be of constitutional magnitude.