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).
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.
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.
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.
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.
(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).
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."
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.
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
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.