author: ANDERSON, Presiding Judge.

text:
    Nick KRAUS, (Plaintiff) Appellant, v. LACLEDE GAS COMPANY, (Defendant) Respondent.
    No. 30917.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Rehearing Denied March 19, 1962.

      J. Raymond Dyer, St. Louis, for appellant.
    Thompson, Mitchell, Douglas & Neil, James M. Douglas, Richard L. Eckhart, and J. Peter Schmitz, St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is an action in two counts brought by plaintiff, Nick Kraus, against Laclede Gas Company. The relief sought in Count 1 was for a judgment ordering defendant to issue to plaintiff 48 shares of common stock of said company in exchange for 3 debentures issued by defendant and owned by plaintiff, to which plaintiff claimed he was entitled by the terms of said debentures. In the second count plaintiff sought recovery of interest alleged to be due on said debentures. Defendant filed its motion to dismiss the action on the ground that the petition, in each count, failed to state a claim upon which relief could be granted. This motion was sustained and the cause was dismissed. Plaintiff has appealed.

Since the case must be decided upon the facts alleged in the petition, and shown by the exhibits referred to in the pleadings, we will detail those facts which are pertinent to the issues presented on this appeal.

The petition alleged that prior to and since March IS, 1948, plaintiff was a stockholder of defendant. On the above mentioned date defendant issued to plaintiff, as such stockholder, certain rights to purchase three 4)4% Fifteen Year Convertible Sinking Fund Debentures, which purchase rights plaintiff exercised. Thereupon defendant issued to plaintiff three identical debenture certificates, maturity March 15, 1963, in the form shown by Exhibit A attached to the petition. Exhibit A was a photostatic copy of one of the debentures. The debenture provided it was issued under and pursuant “to an indenture dated as of March 15, 1948 * * * duly executed and delivered by the Company to Mercantile-Commerce Bank & Trust Company * * * to which indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Debentures and coupons.”

It was further provided in said debenture that:

“Subject to the provisions of the Indenture, the holder hereof has the right at his option, at any time up to and including March 15, 1963 (except that, in case this Debenture shall be called for redemption, such right shall terminate as provided in the Indenture), to convert the principal hereof into fully-paid and non-assessable shares of Common Stock of the Company, at the conversion price of $6.25 per share, upon surrender of this Debenture to the Company at said office or agency of the Company in said Borough of Manhattan, or in said City of St. Louis, with all unmatured coupons hereto appertaining * *

The debenture further provided:

“As provided in the Indenture, the Debentures may be redeemed, at the option of the Company, as a whole or from time to time in part * * * at any time prior to maturity, upon the notice referred to below * * *. The notice of redemption to the holders of Debentures to be redeemed as a whole or in part, other than those registered as to principal, shall be given by publication of a notice of such redemption at least four times, each publication to be made in at least two newspapers printed in the English language and customarily published at least once a day for at least five days in each calendar week and of general circulation, one in the said Borough of Manhattan, and one in said City of St. Louis, the first such publication to be not less than thirty nor more than ninety days prior to the date fixed for redemption, all as provided in the Indenture.”

The Indenture contains the additional provision that, “It shall not be necessary for more than one such publication to be made in the same newspaper.”

In July 1950 defendant gave notice of redemption of its outstanding debentures by publication in the St. Louis Post-Dispatch on July 14, 1950, in the St. Louis Globe Democrat on July 15, 1950, in the St. Louis Star Times on July 17, 1950, in the St. Louis Daily Record on July 24, 1950, and in the St. Louis Star Times on July 24, 1950. A like notice was published in the New York Times on July 14, 1950, the New York Herald Tribune on July 15, 1950, the Wall Street Journal on July 17, 1950, and again in the New York Herald Tribune on July 24, 1950. The notice stated that defendant had elected and would redeem all of its outstanding debentures on August 14, 1950 at 102½% of the principal amount thereof, plus accrued interest to the redemption date.

It was alleged in the petition, “That plaintiff does not customarily read the New York newspapers, and did not see any of the aforesaid notices of redemption published in the Times, Herald Tribune, or Wall Street Journal. That at the time plaintiff did not customarily read any St. Louis newspaper other than the Post-Dispatch. That he was not in St. Louis on July 14, 1950, and did not see defendant’s aforesaid notice of redemption published in the Post-Dispatch on July 14, 1950, nor did he see the aforesaid notices of redemption published in the Globe-Democrat, Star-Times, or Daily Record. Plaintiff did not learn of such publications, and was not made aware of the fact that defendant had attempted to call his said debentures for redemption, until sometime in July of 1960. He had been paid no interest thereon since March 15, 1949, but his debentures carried no interest coupons maturing after that date, and he was thereby led to believe that all further interest was to accumulate and be paid by defendant with the principal on March 15, 1963, his debentures’ maturity date.”

It was further alleged “That on August 4, 1960, plaintiff tendered to defendant his three said debentures and formally sought to exercise his said right to convert them into common stock of defendant at the conversion price of $6.25 per share. He requested that 48 shares of said stock be issued to him in his name in exchange for his said three $100.00 debentures. His request was then and there denied by defendant.”

It was alleged in said petition that the language of the debentures providing for notice of redemption is ambiguous “in that it is not clear therefrom whether the redemption notice had to be published at least four times in each of the at least two newspapers selected, or whether the redemption notice would be effective if published once each time in any four qualified St. Louis newspapers and once each time in any four qualified Borough of Manhattan newspapers.”

It was further alleged, “That since defendant was responsible for its creation, said ambiguity must be resolved against defendant, and said quoted language must be interpreted to mean that the redemption notice, to be effective, had to be published at least four times in at least one qualified St. Louis newspaper, and at least four times in at least one qualified Borough of Manhattan newspaper, despite the fact that said indenture, though not said debentures, provides that ‘It shall not be necessary for more than one such publication to be iriade in the same newspaper.’ Defendant did not show that provision of the indenture to plaintiff,nor did defendant advise plaintiff, thereof, when it sold him his debentures,. -That provision of the indenture is in conflict with the aforesaid notice of redemption provisions of plaintiff’s debentures when interpreted as aforesaid, and is likewise unusual, unexpected, and not in accordance with custom or with law.”

The prayer of the first count was for an order on defendant to issue to plaintiff 48 shares of its common stock, or in the event defendant had no unissued common stock to procure same by purchase in the market.

In the second count, plaintiff adopted by reference the allegations of Count 1 and then alleg-ed a demand made on defendant on August 5, 1960, that he be paid the interest accrued on said debentures from March 15, 1949, he having been paid the interest due to March 15, 1949; that defendant refused to pay said interest; that on August 8, 1960, defendant offered to pay the principal and 2½% premium on said debentures, and interest in the amount of $6.36 per debenture, being the interest due from March 15, 1949 through August 14, 1950, but only if plaintiff surrendered his said debentures for cancellation; that plaintiff declined tó so surrender his debentures, and on August 9, 1960, requested defendant to pay interest from March 15, 1949 through August 14, 1950; that on September 14, 1960, defendant agreed to pay, without surrender of said debentures for cancellation, the interest owing thereon from March 15, 1949 through August 14, 1950, upon presentation of the debentures for notation thereon of the payment of said interest; that on September 27, 1960, plaintiff presented said debentures to defendant for such notation thereon and requested there be paid interest from March 14, 1949 through August 14, 1950, which request was refused unless plaintiff permitted a further notation to be made on said debentures that August 14, 1950 was the date that had been fixed for redemption thereof; that plaintiff declined to permit such notation to be made; and that each debenture states on its face that the obligation of defendant to pay the interest was “absolute and unconditional.”

It was further alleged that on September 30, 1960, defendant withdrew its condition respecting the notation to be made on said debentures, and paid plaintiff the interest owing thereon from March 15, 1949 through August 14, 1950, noting said payment on the back of each debenture, but refused to pay the interest owing from August 14, 1950, alleging that said debentures had been validly called for redemption on August 14, 1950 and that no interest accrued thereafter; that the indenture provides that interest will cease to accrue on said debentures after their redemption date.

It was further alleged that said debentures were not validly called for redemption on August 14, 1950, or on any other date, in that no notice of redemption as provided for on the face of said debentures was published, the only notice published being that recited in Count 1 of the petition, which was insufficient in that it was published only twice in one St. Louis newspaper, the Star-Times, and only once in each of three other St. Louis newspapers, and only twice in one New York newspaper, the Herald Tribune and only once in two other New York newspapers, and not four times in each of two newspapers, one in St. Louis and one in the Borough of Manhattan.

The prayer of said second count was for a judgment for interest on said debentures from August 15, 1950 to August 15, 1960 with interest.

Defendant’s motion to dismiss alleged that the petition in each count failed to state a claim upon which relief could be granted. It then averred as follows:

“The petition and the exhibit attached thereto show on their faces, as a matter of law, that plaintiff’s convertible debentures were called for redemption effective August 14, 1950, that said call was in all respects legal, valid and binding upon plaintiff and in full compliance with the provisions of said debentures and the Indenture under which they were issued, and that by reason of said redemption all rights of plaintiff to receive further interest or to convert said debentures into common stock were extinguished on August 14, 1950.”

The finding and judgment of the trial court reads as follows:

“The issues in this case are simple. The real question involved is, was the notice of redemption published in compliance with the provisions of the debentures and indentures under which they were issued.
“It is the opinion of the Court, and the Court finds as a matter of law that all terms of said debentures and indentures were fully complied with, and the Court is unable to find any ambiguity in connection therewith.
“The Court must therefore sustain defendant’s motion to dismiss as to all counts.
“It is so ordered.”

Appellant’s first point is that the Court erred in holding that the notice of redemption was published in compliance with the requirements of the debentures and the indenture. In support of this contention it is urged that to be effective the publication of notice had to be published at least four times in one St. Louis newspaper and at least four times in a newspaper published in the Borough of Manhatten. There is no merit to this contention. The debentures provide that the notice of redemption be published at least four times, and that each publication be made in at least two newspapers, one in the Borough of Manhattan and one in the City of St. Louis. The indenture provides that it is not necessary for more than one such publication be made in the same newspaper. The facts as shown by the plaintiff’s petition are that publication was had four times in newspapers in the City of St. Louis and four times in newspapers in the Borough of Manhattan. This was a compliance with the terms of the debentures and indenture.

It is next urged that the court erred in not finding that an ambiguity existed in the notice provisions of the debentures and indenture, and resolving the ambiguity by construing the provisions in plaintiff’s favor by holding that said provision required publication four times in one St. Louis newspaper and four times in one newspaper published in the Borough of Manhattan. It is our view that the provisions in question are not ambiguous, and that under the terms thereof respondent was clearly allowed to use the same two or a different two newspapers on the occasion of each publication, the only restriction being that one qualified newspaper be in the City of St. Louis and one be in the Borough of Manhattan.

Appellant’s next point is that the Court erred in giving effect to the provision of the indenture that “It shall not be necessary for more than one such publication to be made in the same newspaper.” It is urged in support of this contention, (1) that the provision is not clearly and unequivocally incorporated in the debentures by reference or otherwise; and (2) that it is inconsistent with the provisions of the debentures which, when properly interpreted, require publication at least four times in at least two newspapers.

Addressing ourselves to the first proposition advanced: It is clear that the debentures make the indenture provision binding upon the debenture holder. The right of conversion, which plaintiff is attempting to assert, is stated on the face of the debentures to be “Subject to the provisions of the Indenture.” The debentures refer to the indenture “for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Debentures and coupons.” The provision for notice of redemption reads that it is “ * * * As provided in the Indenture.” We believe the language of the debentures clearly incorporate by reference the'provision of the indenture in question. Reitz v. Pontiac Realty Co., 316 Mo. 1257, 293 S.W. 382; J. C. Muren v. Southern Coal & Mining Co., 177 Mo.App. 600, 160 S.W. 835; St. Louis-Carterville Coal Co. v. Southern Coal & Mining Co., 194 Mo.App. 598, 186 S.W. 1152. Nor is there any inconsistency between the debenture provision and that of the indenture. Both lodge a discretion in the company to use one or more newspapers in each city mentioned in effecting publication of notice.

It is next urged that defendant is precluded from enforcing the redemption provisions for the reason that the heading of debenture recites in large type, “Fifteen Year Convertible Sinking Fund Debenture” and at the bottom of each is Laclede’s Signature, seal, and the trustees’ certificate, all likewise in large size capital letters, while redemption clause is in small print in the body of the instrument. The point, in our judgment, is clearly without merit. The large type caption can only be said to he a general description of the debenture, and no one could reasonably believe that it contained all the terms of the agreement. It is obvious that the small print in the body óf the instrument contains the details of what is briefly introduced by the caption. The point is ruled against the appellant.

Finally it is urged that appellant’s right to interest covers the period running from August 14, 1950, because of the following provision of the Indenture:

“No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Debenture at the place, at the respective times, at the rate and. in the currency herein prescribed.”

There is no merit to this contention.- The time prescribed in the debenture for the payment, of interest in the event of redemption was the date fixed far., redemption. Here the accrual of interest on plaintiff’s debentures stopped at the date of redemption, August 14, 1950. Since the petition shows that plaintiff has been paid interest to that date, Count 2 of his petition failed to state a claim upon which relief could be granted.

In our opinion, the trial court properly sustained the Motion to Dismiss both Counts of the petition. The judgment is affirmed.

WOLFE and RUDDY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Keith O. WILSON and Lorraine Wilson, (Plaintiffs) Respondents, v. William H. MURCH and Nellie C. Brown, (Defendants) Appellants.
    No. 30783.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.

      Woodside, McGowen & Dearing Lowell C. McGowen, and Thomas H. Pearson, Clayton, for appellants.
    Armstrong, Teasdale, Roos, Kramer & Vaughan, Charles E. Dapron, John P. Emde, and Bruce E. Woodruff, St. Louis, for respondents.
   ANDERSON, Presiding Judge.

In this action, Keith O. Wilson and Lorraine Wilson, sued defendants William H. Murch and Nellie C. Brown, for damages claimed as a result of alleged false representations in the sale of a house. There was a verdict for plaintiffs for $450.00 actual damages, and $1,000.00 punitive damages. From the judgment on the verdict defendants have appealed.

The essential complaint in the petition is that the defendants in negotiating a sale of a house to plaintiffs, through their agents, and in response to specific inquiries by plaintiffs, falsely stated on several occasions that the furnace in said house was sound and in operating condition; that in reliance upon said representations plaintiffs purchased said house; that said representations were false; that defendants knew that said representations were false, or knew at such time that they, defendants, did not possess sufficient information or knowledge to know whether said representations were true or false; that the falsity of said representations were not known by plaintiffs and did not become known to them until after their purchase of said house; that had plaintiffs known of the falsity of the representations they would have refused to proceed with the closing of the sale; that said representations were made by defendants with the intent that they should he relied upon by plaintiffs and that plaintiffs would thereby be induced to purchase said real estate; that plaintiffs did rely upon said representations, and purchased said improved real estate to their damage. It was further alleged that after making said purchase plaintiffs discovered that said furnace was not sound and in working condition, but that same was totally inoperable and, in such condition, it could not be restored to operating condition without completely rebuilding said furnace; that it would cost $700.00 to put said furnace in proper working condition and that by reason of the falsity of the defendants’ representations plaintiffs were damaged in the amount of $700.00. It was also alleged that by reason of said misrepresentations plaintiffs were entitled to punitive damages in the sum of $5,000.00. There was a prayer for damages in the total sum of $5,700.

The defendants’ answer denied specifically the allegations of fraud contained in plaintiffs’ petition.

Defendants’ first assignment of error is that the trial court should have sustained their motion for a directed verdict at the close of plaintiffs’ case, and a like motion filed at the close of all the evidence for the reason that no representations were made which could constitute a basis for recovery. We have for review only the action of the court in refusing the motion filed at the close of all the evidence, for the reason that defendants, by introducing evidence to support their defense after their motion at the close of plaintiffs’ case was overruled, waived their right to complain of the court’s action with respect to said motion. Sides v. Mannino, Mo.App., 347 S.W.2d 391; Snead v. Sentlinger, Mo., 327 S.W.2d 202. We will, therefore, detail the facts shown by the evidence which have bearing on the issue, viewing the evidence in the light most favorable to plaintiffs’ case.

Plaintiffs were husband and wife. In the Spring of 1958 they became interested in a piece of property owned by the defendants and located in Kirkwood, Missouri. Defendants were brother and sister, and had inherited the property from their mother, who died in 1956. Each defendant owned an undivided one-half interest in said property. Defendant William H. Murch with his family, which consisted of a wife and son, lived in the property from June 1947 until February 4, 1958. On April 1, 1958 defendants listed the property for sale with Harry Herring Co., real estate dealers. The members of this firm were Harry C. Herring, his wife, Arlene B.- Herring, and his son, Harry G. Herring. Harry G. Herring handled the listing contract with Mr. Murch. He testified that at the time the listing contract was signed Mr. Murch, in response to an inquiry about the condition of the furnace, stated that it had been in operation for the past heating season. The next day Harry G. Herring related to his father, in Mr. Murch’s presence, the conversation he had had with Mr. Murch regarding the furnace. Mr. Herring, Sr., testified that on that occasion he asked Mr. Murch if the furnace was in good working condition. Mr. Murch replied that the furnace was in working condition up to the day he moved, and was still in working condition. Arlene B. Herring who was defendants’ witness, testified that on one occasion when she was on the premises with Mr. and Mrs. Wilson they asked about the condition of the furnace. She then testified : “I did tell them that the furnace was in operating order because Mr. Herring told me that the owner told him that the furnace was in working condition.” She further testified, “I believe I talked with Mrs. Wilson over the phone and again she asked me if the furnace was in operating condition and I said yes it was, according to the owner the furnace was in operating condition.” Mrs. Herring further testified that on another occasion she met Mr. and Mrs. Wilson at the premises and Mr. Wilson “asked me if the furnace was in operating condition and I told him, yes, the owner said it was in operating condition.”

Mr. Wilson testified that in April he went to the premises at which time Mr. Herring was present. He further testified: “ * * * I asked him at that time about the furnace if it were in operating condition and he said yes. * * * He said that we should get further use out of it and I said we would almost have to.” Mrs. Wilson testified that on one occasion she and her husband inspected the property at which time Mr. Herring was present. She testified, “We asked if the furnace was in working operation and he said, yes it was, that it worked. And we said we needed a house and we were limited to an old house but we didn’t have any money for a new furnace at that time, whatever house we bought would have to have a furnace that would last at least a season or two. And he said he knew of no reason why it wouldn’t work for one year or two or whenever we got ready to replace it so far as he knew. * * * Well, he said the furnace was working, the tenants had used it, the furnace was in operating condition and he felt that we could count on it for one year or two * * * before we replaced the furnace or before we had any extensive re-paiis done.”

The furnace was not in operation at any time plaintiffs were on the premises. Plaintiffs made an offer of $13,000.00 for the property. This offer was accepted by defendants and a purchase agreement was entered into on May 21, 1958. The transfer of the property to plaintiffs was made June 30, 1958 and plaintiff moved in the same day. In July 1958, Mrs. Wilson called Doll Heating Company of Kirkwood to service the furnace. Two men were sent to the premises for that purpose by the Doll Company. After examining the furnace one of these men said to Mrs. Wilson, “Lady, you don’t have a furnace”, and stated that the radiator on the inside had fallen and that there was no point in continuing the work. Mrs. Wilson then called Mr. Herring and told him what had happened. Mr. Herring suggested that she get at least two other opinions from furnace men before she did anything further, and that, in the meantime, he would talk to the previous owners. Plaintiffs thereafter sepured estimates for the replacement of the furnace. C & R Heating & Service Co. 0f Overland, Missouri, submitted a proposal for replacing the furnace for $605.00 and for repairing the stoker $90.00, total $695.00. Kirk-wood Sheet Metal Works, Inc. of Kirkwood submitted a proposal for replacing the furnace and repairing the stoker for a total sum of $715.00. Doll Heating Company’s estimate was $700.00.

Richard Lanham, an employee of the Doll Heating Company, examined the furnace. When he arrived at the property, the smoke pipe had been removed and there was revealed the fact that the bottom part of the radiator, which was over the combustion chamber, was missing. It was found on the floor inside the casing of the furnace when the casing was removed. In that condition the furnace was not in a condition to be operated safely, because the break would permit smoke and fumes from the combustion chamber to enter the house from the furnace. The radiator was in such a condition that it would not be practical to repair it for the reason that, no parts necessary for repair were available on account of the age of the furnace. Lanham testified that the break in the radiator did not appear to be a new one, but had been there for some time. It was a break of long standing and the condition would have been noticed by anyone living- in the house because of the smoke and fumes. The condition could not have been seen from the furnace door, and no one just looking at the furnace could discover the condition of the radiator. The Doll Company removed the furnace and replaced it with a new one at the cost of $750.00.

It is urged by defendants in support of their motion to dismiss that an essential element of a cause of action for fraud is missing, namely, knowledge on the part of defendants that the furnace was not in a sound and operating condition at the time the representations were made. In their argument in support of this contention defendants rely upon their own evidence which tends to show such lack of knowledge. This is the wrong approach to the problem. In passing on the matter we must assume as true every fact and circumstance in plaintiffs’ favor as shown by the evidence, and give plaintiffs the benefit of all favorable inferences which may reasonably be drawn from such facts. All evidence and inferences unfavorable to plaintiffs must be disregarded. Parker v. Green, Mo.App., 340 S.W.2d 435; Shepherd v. Woodson, Mo., 328 S.W.2d 1. We think there was sufficient evidence from which the jury could reasonably find that defendants knew that the furnace was not sound and in operating condition at the time the representations were made. The jury could find from the testimony of Richard Lanham that the furnace was not in working condition at the time he inspected it, and that the break in the radiator had existed quite some time prior to the sale of the premises. Mr. Lanham further testified that the furnace in the condition he found it could not be fired without filling the house with smoke and fumes which would be apparent. Defendant Murch testified that he used the furnace during the previous heating season. From all this evidence a reasonable inference could be drawn that the furnace was not in operating condition and that defendant Murch knew this. As to defendant Brown, liability may be predicated on the ground of principal and agent. The record shows that defendant Murch in selling this property acted as agent for his sister, Mrs. Brown. The law is well established that, where an agent, acting within his actual or apparent authority, procures the execution of a contract for the sale of property by means of fraud, the principal is liable for the damage incurred thereby, even though the principal is innocent of personal participation in the fraud, when he accepts and retains benefits which accrue from the transaction. In the case at bar it appears that defendant Brown did profit from the sale of the property. See Judd v. Walker, 215 Mo. 312, 114 S.W. 979; Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 758; 2 Pomeroy’s Equity Jurisprudence, Sec. 909, p. 399; 2 Mechem on Agency, Secs. 1776 and 1984; Blanke v. Miller, 364 Mo. 797, 268 S.W.2d 809.

It is also urged that there could be no liability in this case because the agents through whom the representations were made were not themselves guilty of fraud. There is no merit to this contention. A recovery can be had for false representations made to another with the intent that they be communicated to a third person for the purpose of defrauding said third person. Watson v. Crandall, 7 Mo.App. 233, affirmed 78 Mo. 583. The fact that the person used as an agent to convey the representation is innocent does not relieve the party charged with the fraud. To hold otherwise would result in a rule which could easily be availed of by a fraud feasor to further his evil purpose without fear of being held responsible therefor. This would be highly undesirable.

It is next urged that the motion to dismiss should have been sustained because plaintiffs failed to prove substantially the representations alleged. The representation pleaded was “that said furnace was sound and in good operating condition.” The evidence shows that defendant Murch told Harry G. Herring that the furnace had been in operation during the past heating season and told Mr. Herring, Sr., that the furnace was in working condition up to the day he moved from the premises, and was still in working condition. Plaintiff Keith O. Wilson stated that he was told that “it was in operating condition” and that “we should get further use out of it” and that the furnace was “in working condition.” Plaintiff Lorraine Wilson stated that Mr. Herring said, “ * * * the furnace was working, the tenants had used it, the furnace was in operating condition ana he felt that we could count on it for one year or two or the length-of time that we — before we replaced the furnace or before we had any extensive repairs done.” She further testified she asked Mrs. Herring, “Is the furnace broken?”, and Mrs. Herring said, “Of course not.” She also stated that Mr. Herring said, “the previous owners had used it and it was working.”

Upon the foregoing evidence the question is presented as to whether or not there was a variance between this allegation and the proof. In this regard it must be borne in mind that plaintiffs were not required to prove the representation alleged verbatim et literatim, but were required to prove representations which were substantially the same as those alleged; that is, statements having the same general meaning and effect. The proof was, we think, within these rules.

It is also urged that the court erred in refusing to sustain the motion to dismiss for the reason that there was no evidence that plaintiffs had been damaged, since plaintiffs failed to offer evidence of the difference in value between the property as represented and its value in its then condition. It is sufficient to say that there was substantial evidence from which a jury could find that the furnace at the time of the purchase was absolutely worthless. There was, therefore, evidence that plaintiffs were in fact damaged by reason of the fraud. If the precise amount was not properly shown it would not require a dismissal, for in such an event plaintiffs would, at least, be entitled to nominal damages. The motion to dismiss could not be sustained on the ground claimed.

It is contended that the court erred in giving Instruction No. 2. By said instruction the Court charged that damages should be assessed “ * * * at the difference between the value of the real estate and house at 555 North Clay Avenue with a heating plant and furnace sound and in good operating condition and the value of said property with a heating plant and furnace in the condition which you find and believe from the evidence the heating plant in the property at 555 North Clay Avenue was in at the time said property was sold to the plaintiffs, but not to exceed the sum of $700.00.”

Appellants do not urge that the instruction applies an improper measure of damages, but contend that it was error to give it for the reason that there was no evidence to support it. Defendants’ motion for new trial contained no assignment of error with reference to this instruction. In such a situation the point now attempted to be raised for the first time in this Court has not been preserved for review. Civil Rule 79.03 V.A.M.R. Block v. Rackers, Mo., 256 S.W.2d 760.

It is next urged that the Court erred in refusing to give Instruction A offered by defendants. Said instruction reads as follows:

“The Court instructs the jury that by the term ‘knowledge’ is meant either actual knowledge or, what is tantamount to knowledge, that the statements were made as of his own knowledge by the utterer, when in fact he had neither any knowledge on the subject nor reasonable grounds to believe the representations so made to be true.
“The Court further instructs the jury that if you find from the evidence that the Defendants had reasonable grounds to believe the furnace in question was in operating condition then the transaction in question was not fraudulent, and your verdict should be for Defendants and against Plaintiffs.”

The law is well settled that a trial court will not be convicted of committing reversible error for failure to give an instruction unless the instruction is substantially correct. Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S.W.2d 707, 65 A.L.R. 129; Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825.

To recover for fraudulent representations, it is not necessary that it be shown that defendant had actual knowledge of the falsity of the facts stated by him. It is sufficient that he made the representations with the consciousness that he was without knowledge as to their truth or falsity, when, in fact, they were false. Luikart v. Miller, Mo., 48 S.W.2d 867; Gadberry v. Bolton, Mo.App., 242 S.W. 688; Peters v. Lohman, 171 Mo.App. 465, 156 S.W. 783. And where such a case is made the fact that there were reasonable grounds for the defendants to believe the truth of the representations cannot be a defense to the action. Serrano v. Miller & Teasdale Commission Co., 117 Mo.App. 185, 93 S.W. 810; White v. Reitz, 129 Mo.App. 307, 108 S.W. 601; Snyder v. Stemmons, 151 Mo.App. 156, 131 S.W. 724; Messerli v. Bantrup, Mo.App., 235 S.W. 485. In the case at bar this theory of recovery was pleaded and presented to the jury by plaintiffs’ Instruction No. 2 and, since there was evidence to support the submission, it would have been error to give Instruction A. The point is ruled against appellants.

It is urged that the court erred in refusing to give and read to the jury Instruction C offered by the defendants. Said Instruction reads as follows:

“The Court instructs the Jury that there is a strong presumption against fraud and that where a transaction is capable of two interpretations, one fraudulent and the other not, then the transaction should be held honest.
“The Court further instructs the Jury that if you find from the evidence in this case that the transaction in question is capable of two interpretations, the one fraudulent and the other honest, then you should hold the transaction to have been honest and should find a verdict in favor of Defendants and against Plaintiffs.”

In offering this instruction defendants, no doubt, had in mind advising the jury of the rule of law, which is to the effect that fraud is never to be presumed. This principle of law rests upon the fact that fraud is regarded as criminal in its essence, and involves moral turpitude at least, while on the other hand, there is a presumption that all men are honest. Considering this basis for the rule it might be said there is a presumption against fraud though the decisions do not announce the rule in those terms. However, assuming the instruction properly defined the rule it must be held that the court did not err in refusing the instruction. Instructions are to advise the jury what fact issues should be favorably decided to reach a verdict, and hence mere statements of abstract principles of law do not make proper instructions. Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30, and it is not error for a trial court to refuse such instructions. A somewhat similar instruction was held bad in Jones v. Norman, Mo.App., 248 S.W. 621, 1. c. 623, where the Court said:

“We think defendant’s instruction No. 4 was likely to mislead, prejudice, and confuse the jury. That part thereof to the effect ‘that fraud cannot be presumed, guessed at, or found on mere suspicion’ was an abstraction not applied in any way to the facts.”

Furthermore, it is well settled law in this State that it is reversible error to instruct the jury as to the existence of a presumption when there is evidence to rebut it. Haycraft v. Grigsby, 88 Mo.App. 354; McCune v. Daniels, Mo.App., 251 S.W. 458; Lampe v. Franklin American Trust Co., 339 Mo. 361, 96 S.W.2d 710, 107 A.L.R. 465; Morton v. Heidorn, 135 Mo. 608, 37 S.W. 504; Bailey v. Bailey, Mo., 11 S.W.2d 1026; Detrich v. Mercantile Trust Co., Mo., 292 S.W.2d 300. There was evidence in the case which justified submission of the issue of fraud. Such being the case, defendants were not entitled to have the jury instructed that there was a presumption favorable to them. Defendants in support of their contention have cited certain cases which use general language to the effect that fraud is never presumed. These are no authority in support of the instruction. As stated in Taylor v. Commerce Trust Co., Mo.App., 319 S.W.2d 895, 1. c. 897:

“The fact that language used in an instruction may he found in the reasoning or conclusions of an appellate court, or of a law text book, does not make it proper language for an instruction, regardless of how authoritative and wise it may be; and this is especially true when it is used in an abstract manner.”

The court did not err in refusing to give Instruction C.

Defendants contend that the court erred in failing to dismiss that part of plaintiffs’ action as pertained to punitive damages, as prayed in their motion to dismiss filed at the close of all the evidence. It is urged that the motion should have been sustained for the reason that plaintiffs failed to prove the misrepresentations alleged and an intent to deceive. We have heretofore held that there was evidence to support a finding of the existence of these two elements. In our judgment there was evidence from which it could be found that there was an intentional doing of a wrongful act without just cause or legal excuse, which justified the submission of the issue of nunitive damages.

It is next urged that the court erred in admitting into evidence testimony with regard to certain conversation between plaintiffs’ and defendants’ agents which took place subsequently to the termination of the agency. This matter cannot be considered for the reason that the point raised was not preserved for appellate review in defendants’ motion for new trial. Civil Rule 79.03-83.13.

It is contended that the Court erred in permitting testimony concerning the condition of a water heater which was located in the basement of the premises. The transcript reveals that the matter first came up during the direct examination of plaintiff Keith O. Wilson. He testified that on his second visit to the house he went into, the basement and observed that the water heater was disconnected. He stated that Mr.. Herring was present at the time and that he asked Mr. Herring about it. Mr. Herring replied that he would check on it; that he thought it was defective. This testimony went in without any objection whatever from defendants’ counsel. Thereafter plaintiff was asked if he had further conversations with Mr. Herring about the condition of the water heater. An objection was interposed to this line of questioning on the ground that it was beyond the scope of the pleadings. The objection was overruled and plaintiff replied, “At the time of our conversation it involved the actual sale price of the property. The statement was made by Mr. Herring that the water heater was defective, that it would be replaced if we purchased the house at a figure of $13,200.00.” The witness further testified that he, in agreement with his wife, made an offer of $13,000.00, and that plaintiffs would replace the water heater. On cross-examination defendants’ counsel interrogated the witness about what Herring had told the witness. Mrs. Wilson gave similar testimony to that given by her husband. All this was without objection. Defendant Murch, on cross-examination, testified, over the objection of defendants’ counsel, that he noticed the water heater was not operating, and told the Herrings at the time the listing contract was signed that it was not in good condition. The basis of the objection was that the condition of the water heater was not an issue under the pleadings. Mr. Harry G. Herring, who was defendants’ witness, testified in answer to a question put to him by defendants’ counsel that Mr. Murch told him the water heater was inoperative and would be replaced. He further stated that he told his father that the water heater was broken and that Mr. Murch was going to replace it. On cross-examination he testified that at the time the listing contract was being filled out Mr. Murch told him the water heater was not in operation.

It will be seen that the evidence was not offered by plaintiffs in support of any contention that misrepresentations had been made with reference to the condition of the heater for which they were entitled to damages, but only as a factor in the negotiation of the sale price of the premises in question. It will also be observed that when evidence concerning the condition of the heater was first introduced no objection by defendants was made to it. In such a situation they will not be heard to complain of the subsequent admission of like testimony. Anderson v. Welty, Mo.App., 334 S.W.2d 132, 1. c. 138. Furthermore, in our judgment, the evidence did not materially affect the merits of the action, and for that reason we cannot reverse the judgment even though the admission of the testimony could be said to be error. Civil Rule 83.13.

Finding no reversible error, the judgment is affirmed.

WOLFE, J., and HARRY A. HALL, Special Judge, concur.

RUDDY, J., not participating.


author: SAMUEL E. SEMPLE, Special Judge.

text:
    UNION ELECTRIC COMPANY OF MISSOURI, a Corporation, (Plaintiff) Appellant, v. Andrew J. MILLER, Jr., and Marion F. Miller, Husband and Wife (defendants) Respondents.
    No. 30879.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Rehearing Denied March 19, 1962.

      J. Patrick Wheeler, Canton, for appellant.
    Richard J. De Coster, Canton, for respondents.
   SAMUEL E. SEMPLE, Special Judge.

This is a condemnation proceeding. The appellant, Union Electric Company, sought to condemn a perpetual right-of-way easement one hundred feet wide across the land of respondents Andrew J. Miller, Jr., and Marion F. Miller, his wife, for the purpose of constructing and maintaining an electric transmission line. Commissioners regularly appointed, awarded respondent land owners the sum of $150 as damages for the taking of the right-of-way easement across a part of their land. Both sides filed exceptions to the Commissioners’ report and upon trial in the Circuit Court a jury awarded respondents $1,500 in damages. The Circuit Court denied appellant’s Motion for New Trial on condition of a remittitur of $500 which said remittitur was filed by respondents. This cause comes to this court on appeal from the final judgment of $1,000 entered by the Circuit Court.

Appellant in this case appropriated a perpetual easement one hundred feet in width and about one-fourth mile in length (3.03 acres) through the approximate center of the east forty acres of an eighty-acre tract of land owned by respondents for the purpose of constructing and maintaining a line of poles, wire, anchors, guy wires, etc., for transmitting and distributing electrial energy. Appellant was granted the right to alter, add to, and relocate at will said transmission line, the right to trim branches or trees and keep the right-of-way free from any and all obstructions, and the right of ingress and egress over said right-of-way. Appellant alleged in its petition, and the Circuit Court stated in its Order of Condemnation, that except for the area required for the erection of poles and appurtenances thereto, the balance of said easement could be used by respondents for cultivation or such other use as would not endanger or interfere with the construction and maintenance of said transmission line.

Appellant assigns as error the action of the trial court in giving Instruction Two at the request of respondents for the reason that it does not submit the proper measure of damages. The portion of Instruction Two, complained of by appellant, setting out the measure of damages, reads as follows :

“ * * * First, the fair reasonable market value of the property actually taken by the plaintiff from the defendants’ land, as shown by the evidence.
“And second, for such damages, if any, to the remainder of defendants’ said land caused by the taking of said right-of-way by the plaintiff, over defendants’ land, which you may find from the evidence, defendants have sustained thereby; and the total amount found on account of these two items, less any special benefits, if any, the amount of which has been proved, as defined in other instructions herein, as will accrue to defendants’ remaining property, will be your verdict for the defendants in this case, if your verdict in this case is for the defendants.”

The Circuit Court also gave, at the request of appellant, Instruction 3A which, in substance, set out the measure of damages as the difference between the fair cash market value of the land before the taking of the right-of-way and the fair cash market value of the land after the taking of the right-of-way.

The courts of this state have long recognized and followed the rule that where ■only a part of the property is condemned the owner is entitled to recover the reasonable market value of the property actually taken plus any damages resulting to the remainder of the property because of the taking of the part. State of Missouri ex rel. Chariton River Drainage District v. Montgomery, Mo., 275 S.W.2d 283; City of St. Louis v. Koch, Mo., 76 S.W.2d 398; State of Missouri ex rel. N. W. Electric Power Cooperative, Inc. v. Waggoner, Mo.App., 319 S.W.2d 930. Instruction Two follows the method of assessing damages under the aforementioned rule and similar instructions have been approved, State ex rel. State Highway Commission v. Williams, Mo.App., 263 S.W.2d 444; State of Missouri ex rel. Chariton River Drainage District v. Montgomery, supra.

Appellant concedes that this type of damage instruction has been approved (State ex rel. State Highway Commission v. Williams, supra) and is proper in cases where a right-of-way is being taken for road purposes but maintains that where a right-of-way is taken for an electric transmission line the only measure of damage is the difference in value of the whole tract over which the right-of-way passes immediately before and .after the condemnation.

In cases where a part of a tract of land is condemned the courts have expressed the rule of the measure of damages in two different ways and “each expression inclusively defines as well as complements the other.” State ex rel. Chariton River Drainage District v. Montgomery, supra (275 S.W.2d 1. c. 286). In State ex rel. State Highway Commission of Missouri v. Craighead, Mo.App., 65 S.W.2d 145, 148, this court said:

“Of course, in the final analysis, the measure of damages in a condemnation proceeding is the difference in the reasonable market value of the entire tract before and after the appropriation of the part taken. City Water Co. of Sedalia v. Hunter, 319 Mo. 1240, 6 S.W.(2d) 565; Texas-Empire Pipe Line Co. v. Stewart, [331 Mo. 525,] (Mo.Sup.) 55 S.W.(2d) 283; Arkansas-Missouri Power Co. v. Killian, 225 Mo.App. 454, 40 S.W.(2d) 730; Missouri Power & Light Co. v. Creed (Mo.App.) 32 S.W.(2d) 783. However, the same result may be and usually is reached in another way, which is by informing the jury that the landowner is entitled to recover the value of the land actually taken, plus the damage, if any, to the remainder of the tract of which that taken formed a part, less the special benefits, if any, accruing in consequence of the making of the improvement. State ex rel. [State Highway Commission] v. Huddleston (Mo.App.) 52 S.W.(2d) 33; State ex rel. [State Highway Commission] v. Blobeck Inv. Co. (Mo.App.) 63 S.W.(2d) 448.”

In State ex rel. State Highway Commission v. Williams, supra, the court held that it was wholly unable to find that a jury could have been confused or led into assessing double damages by giving instructions on each (both) methods of determining damages.

Appellant attempts to distinguish between condemning a part of a tract of land for a right-of-way for a road and a right-of-way for a power line in expressing the measure of damages. Appellant’s contention appears to be on the theory that when a right-of-way for a road is appropriated the entire surface of the property is taken and diverted to another distinct use, whereas when a right-of-way for a power line is appropriated a small portion of the land surface is taken (the part on which the poles are located) and the remainder of the land surface is continued to be used by the owner of the land not inconsistent with the maintenance of the power line. There is no question but that the land in which the poles are placed is as effectively taken as would be the ground on which a road is built and the only difference demonstrated is in the amount of the land actually taken. This does not appear to be the basis for a valid distinction. Reading all of the instructions together, no prejudicial error is found in the giving of Respondents’ Instruction Two.

Appellant next contends that referring to appellant as “a large corporation” in the argument of respondents’ counsel was an improper appeal intended to prejudice the jury and constituted reversible error. The following portion of respondents’ argument was the basis of appellant’s complaint:

“MR. DECOSTER: * * * Now, neither do I believe that you believe that you can call it ‘progress’ when large corporations are entitled to go out and take land and to pay only for the damage to the crops growing on the land.
“MR. WHEELER: Now, we object to that, your Honor, as an attempt to prejudice this jury against the plaintiff, referring to ‘a large corporation.’ We think that is wholly improper and without foundation, in the argument.
“THE COURT: Overruled.”

This portion of respondents’ counsel’s argument was in answer to the following argument of appellant’s counsel:

“MR. WHEELER: * * * When you are considering the number of miles of line that is involved in this case * * * this is not just a local proposition but it is a very lengthy line. It’s a matter of progress that the Utilities always have to have and always have to make. Now, for example, if that particular little tract of land of 80 acres has been damaged a thousand dollars by the construction of this line *

The portion of respondents’ argument to which objection was made was obviously in answer to the argument of appellant and was in the nature of retaliation and is not found to be reversible error. Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675, 683, 684; Griffith v. Gardner, 358 Mo. 859, 217 S.W.2d 519, 530, 531. The trial court is allowed a wide discretion in determining the propriety of arguments. Hilton v. Thompson, supra. Under the circumstances of this case the trial court did not abuse its discretion in overruling the objection of appellant and in ruling that the argument of respondents’ counsel was not prejudicial to appellant.

Appellants final contention is that the verdict was so excessive as to indicate bias and prejudice on the part of the jury and thus entitled appellant to a new trial. Respondent Andrew J. Miller, Jr., testified that the total amount of damage to his property was “at least $1,000.” Respondents’ witnesses Beilstein and Richards testified that the total damage to respondents’ property was $1,000. Respondents’ witness Lillard placed the total damage to respondents’ property at $2,500 to $3,000. In the light of this evidence the verdict of $1,500 cannot be considered as so excessive as to indicate bias and prejudice on the part of the jury. The trial court, in the exercise of its discretion, ordered a remittitur of $500, which remittitur was filed by respondents. The final judgment of $1,000 in this case is amply supported by the evidence and an appellate court ordinarily will not disturb a judgment or award of damages in a condemnation case where the judgment or award is supported by substantial evidence. Empire District Electric Company v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78, 83, and cac es therein cited.

The judgment of the trial court is affirmed.

ANDERSON, P. J., and WOLFE, J., concur.


author: WOLFE, Judge.

text:
    James E. HALL, (Plaintiff) Appellant, v. Beulah ANGEL, (Defendant) Respondent.
    No. 30965.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Gerritzen & Gerritzen, Al F. Gerritzen, St. Louis, for appellant.
    Carter, Fitzsimmons & Brinker, Bernard C. Brinker, Clayton, for respondent.
   WOLFE, Judge.

This is an action in which the plaintiff seeks to recover for property damages and damages by reason of personal injuries arising out of an automobile collision. The defendant counterclaimed for damage to her automobile and for damages by reason of injuries that she sustained. There was a verdict for the defendant on the plaintiff’s petition and for the plaintiff on defendant’s counterclaim. The plaintiff appealed.

The following appear to be the pertinent facts in relation to the collision out of which this suit arose. The collision occurred in the intersection of Highmont Drive and West Florissant Road in St. Louis County. Highmont Drive is an east and west thoroughfare, and West Floris-sant Road runs to the north and south. Both are 20 feet wide, and both provide two lanes for traffic, which travels in both directions on each street. There was a stop sign for eastbound traffic on Highmont Drive at its intersection with West Floris-sant Road, but there was no stop sign on West Florissant.

Plaintiff, on November 18, 1958, at around 9:30 in the morning, was driving eastwardly on Highmont Drive. He was familiar with the intersection and knew that there was no stop sign on West Florissant. He testified that he stopped in compliance with the sign, which was about 5 feet from the curb line of West Florissant. He remained stopped between five and ten seconds. He said that as he made the stop, he looked to his left, which would be to the north, and saw a bus stopped. The bus was southbound and had stopped to take on passengers. Its right wheels were on the shoulder of West Florissant Road, and its left wheels on the pavement. The bus, so stopped, extended 5 feet into the Highmont Drive intersection of West Florissant Road. The plaintiff stated that the left side of the bus was three or four feet from the center line of West Florissant.

The plaintiff testified that while at the stop sign he saw the defendant’s car about 200 feet north and proceeding southwardly on West Florissant Road at a speed of about 25 miles per hour. He stated that when he last saw the defendant’s automobile from his stopped position, it was possibly 110 to 125 feet from Highmont Drive. He started to cross the intersection. He passed within 10 feet of the front of the bus, and his view northwardly as he entered the intersection was obstructed by the bus. He did not see the defendant’s car again until the front of his own car was past the bus, at the center of the intersection. He said that he then saw defendant’s car coming around back of the bus about 50 or 46 feet to the north of his car and over the center line of West Florissant. He then sounded his horn and attempted to cross in front of defendant’s car.

He stated that the cars collided somewhat east of the center of the intersection. He also testified that the front end of his car was about four feet short of the east side of West Florissant when it was struck in the left side toward the rear. The plaintiff’s car was turned around by the impact and facing west as it came to rest. The defendant’s car was about 10 feet from it on the east side of West Florissant Road after the collision.

The defendant testified that she was driving southwardly on West Florissant Road toward the intersection of Highmont Drive. There was a bus stopped at the northwest corner of the intersection and an automobile stopped behind it. She stated that she stopped her car momentarily behind the automobile and then turned out to pass it and'the bus. There was room in the southbound lane to pass the bus, and without crossing the center lane of West Florissant she drove to the left of the bus. Her view to the right, which was west-wardly, was obstructed by the bus as she passed.

She was traveling at a speed of 20 miles per hour and had reached a point even with the front wheels of the bus when the plaintiff’s car appeared in front of the bus about a car’s length away. She applied her brakes, but her car hit the left side of plaintiff’s car. She said that as she applied her brakes her car seemed to pull slightly to the left, but that she was at all times, up to the point of collision, on the right side of West Florissant. She stated that she never heard a horn sounded. A truck driver testified by deposition that he saw the collision, and that at the moment of impact the plaintiff was about the middle of the intersection and the defendant’s car was in the line for southbound traffic.

The plaintiff’s case was submitted to the jury on several charges of specific negligence. The defendant’s counterclaim was submitted to the jury on the charge that the plaintiff negligently drove into the path of her automobile at a time when there was an immediate hazard of collision.

As we stated at the outset, there was a verdict against the plaintiff on his cause of action and a verdict against the defendant on her counterclaim. The appealing plaintiff first complains that the court erred in refusing to direct a verdict for the plaintiff on the defendant’s counterclaim. His second assignment is that a verdict-directing instruction on the defendant’s counterclaim was erroneous. We are thus confronted with a situation where the plaintiff is asserting errors in that portion of the trial in which he prevailed. He could not have been prejudiced by any errors of the court wherein the issues tried resulted in a judgment that was the exact judgment which he sought. The plaintiff has not stated in what manner he could have been prejudiced by the two alleged errors, and non-prejudicial errors do not justify a reversal of the judgment. Patison v. Campbell, Mo.Sup., 337 S.W.2d 72; Smith v. St. Louis Public Service Company, Mo.Sup., 277 S.W.2d 498; Papen v. Friedmeyer, Mo.App., 255 S.W.2d 841; Longmoor Corporation v. Jeffers, Mo.App., 205 S.W.2d 234.

The plaintiff could not have been aggrieved by the first two errors he alleges, for if they were errors they were corrected by the verdict, and we will not further consider them.

The third assignment states that the instruction on the charge of plaintiff’s contributory negligence was erroneous in that it did not follow the law as stated in cases where the negligence charged is a failure to yield the right of way. We are cited to a number of cases, all dealing with failure to yield the right of way, but neither the plaintiff’s case nor the charge that the defendant was guilty of contributory negligence was submitted upon that theory. Contributory negligence was submitted upon the theory that the plaintiff drove his car in front of defendant’s car when he saw, or could have seen, from the position and movement of the defendant’s car, that there was an immediate hazard of accident if he did so. The instruction is not a model of clarity, but we do not think’that the jury was in any way misdirected by it, and the point, therefore, is not well taken.

The fourth and last assignment is that defendant’s counsel, during the argument of plaintiff’s counsel, made a prejudicial statement in the presence of the jury. The exchange complained of was as follows:

“MR. GERRITZEN: I say, as a lawyer, if Mr. Jim Hall was guilty of the negligence Beulah Angel was I would not file suit for him in this Court; I would not even file a counterclaim for him.
“MR. BRINKER: Now I want to object. Mr. Gerritzen has filed more worthless cases than this, and I object to his referring to what he would do pertaining to Mr. Hall. I want the jury instructed to disregard it.
“MR. GERRITZEN: I object to the prejudicial remark about filing worthless cases. In my opinion this case is a serious matter for Mr. Hall and is not worthless. I would not be here if I thought it was a worthless case.”

The court instructed the jury to disregard the remarks of both attorneys, and no further action by the court was asked or taken. Plaintiff, apparently recognizing that he cannot complain upon appeal because of the failure of the trial court to take an action that he had not requested, states that this court should consider the matter under Supreme Court Rule 79.04, V.A.M.R. This rule permits us to consider on appeal matters not properly preserved for review when we feel that manifest injustice has resulted therefrom. We do not so feel, for the only conclusion that can be reached is that the whole matter is obviously so inconsequential, in so far as it could influence the jury, that it is worth no further discussion. The point is without merit.

The jury apparently found that both parties to the collision were negligent. There was certainly ample evidence from which they could find that the drivers of both cars negligently proceeded into the intersection without being able to see cars that might be approaching the intersection on the cross street.

We find no merit in the points raised, and the judgment is affirmed.

RUDDY, Acting P. J., and SAM C. BLAIR, Special Judge, concur.

ANDERSON, P. J., not participating.


author: DOERNER, Commissioner.

text:
    William H. EBLING, Fred J. Ebling, and Freda Ebling Euler, Plaintiffs-Appellants, v. Lora Hanks HARDESTY and Lora Hanks Hardesty, Executrix of the Purported Last Will and Testament of Clifford Albert Ebling, Deceased, and Richard C. Hardesty, Defendants-Respondents.
    No. 30932.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 19, 1962.

      Gerritzen & Gerritzen, Ray A. Ger-ritzen, St. Louis, for plaintiffs-appellants.
    Edward H. Tenney, Jr., Robert Lee Smith, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

Plaintiffs appeal from a judgment of the court sustaining defendants’ motions to dismiss and to strike their petition. Their action was one to contest the validity of the will of Clifford Albert Ebling, who died in the City of St. Louis on November 13, 1959. The will in question, set out in full in plaintiffs’ petition, was dated November 6, 1959, and left the testator’s entire estate to defendant Lora Hanks Hardesty, or in the event she predeceased the testator, then to defendant Richard C. Hardesty. It was admitted to probate by the Probate Court of the City of St. Louis on December 4, 1959, and in accordance with its terms, Lora Hanks Hardesty was appointed executrix. In addition to reciting the foregoing facts in their petition, plaintiffs alleged that they were the half-brothers and half-sister of the deceased and his only heirs at law; that defendant Lora Hanks Hardesty was not an heir at law of the deceased, was not a blood relative, and was a niece by marriage, and that defendant Richard C. Hardesty was her husband; and that the purported will was invalid because at the time of its execution the testator did not have testamentary capacity (for various stated reasons), and also because the defendants had procured its execution by the use of coercion and undue influence. The prayer was that an issue be made up as to whether the paper writing was the last will and testament of the deceased, that it be declared not to be such, and that it be set aside and the decedent held to have died intestate.

To this petition the defendants filed two motions. The first was a motion to dismiss, on the grounds that the petition failed to state facts sufficient to constitute a cause of action against defendants. The second was denominated a “Motion to Strike for Lack of Interest in Plaintiffs.” In it defendants alleged that in addition to the will admitted to probate, the deceased had executed five prior wills, in 1932, 1942, 1951, 1952, and 1954, in none of which were plaintiffs, or any one of them, named as a legatee or dev-isee; that plaintiffs therefore had no interest in deceased’s will, were not proper parties to the action, and had “ * * * failed to show any capacity to maintain such purported cause of action herein. * * ⅜"

A hearing on defendants’ motions was held on March 29, 1961. By timely and appropriate motions plaintiffs objected to any evidence being introduced in support of the motions, and properly objected to all evidence as it was offered, all of which were overruled. Defendants were permitted to introduce in evidence, as their Exhibit 2, a purported will executed by the deceased on May 11, 1954. Miss Mollie C. Rickey, an attorney, was permitted to testify that she had drawn five wills for the deceased between 1942 and 1959, and that she witnessed his execution of the 1959 and 1954 wills. She also identified her office carbon copy of a will she testified the deceased executed on May 4, 1942, and on the basis of her testimony that it was her practice to “ * * * return the original (will) to the person and then he destroys it,” and that she had been unable to find the original, the carbon copy of the 1942 will was admitted into evidence as defendants’ Exhibit 3. Plaintiffs were not named in either defendants’ Exhibits 2 or 3. Further, after stating that she could not find the originals or copies of the 1951 and 1952 wills, Miss Rickey was permitted to testify that no provision had been made for any of the plaintiffs in either of those two wills. J. M. Bristow, another witness to the purported will of 1954, was allowed to testify that he saw the deceased execute that paper writing, and that he had signed as a witness.

In its order and judgment sustaining defendants’ motions to dismiss and to strike the court held that plaintiffs were never legatees under any of the five wills of the deceased which were in effect from 1942, that they were strangers to the estate of the deceased, and that they were not parties having the requisite interest under the statute to contest the will in issue.

The statute to which the court had reference is Section 473.083 RSMo 1959, V.A.M.S., which provides that “ * * * any person interested in the probate of a will * * * ” may contest its validity. It is obvious from an examination of plaintiffs’ petition that it contained all elements necessary to constitute a cause of action to contest a probated will, including the allegation that they were the only heirs at law of the testator and therefore interested in the 1959 will which had been admitted to probate. Defendants in their brief do not contend otherwise. Civil Rule 55.33, V.A.M.R., provides in effect that the failure of a petition to state a claim upon which relief can be granted may be raised by a motion to dismiss when the ob j ections “ * * * appear on the face * * * ” of the petition. Since defendants’ contention that plaintiffs were not interested in the 1959 will because they had not been named as legatees or dev-isees in the prior wills did not appear on the face of plaintiffs’ petition, defendants’ first motion, to dismiss for failure to state facts sufficient to constitute a cause of action, should have been overruled. Pogue v. Smallen, Mo., 285 S.W.2d 915; Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644.

Defendants’ second motion was termed a motion to strike, but by it defendants requested the court to strike plaintiffs’ entire petition. While it has been held that a pleading which states no cause of action is open to a motion to strike, it will not lie where, as here, the petition on its face states a claim for which relief can be granted. In re Sheldon’s Estate, 354 Mo. 232, 189 S.W.2d 235. Since the motion attacked plaintiffs’ legal capacity to sue, for a reason which did not appear on the face of plaintiffs’ petition, defendants’ motion in effect was a motion to dismiss on the grounds that each “plaintiff has not the legal capacity to sue.” Civil Rule 55.31(7).

The stated grounds of the motion was that plaintiffs were not interested in the probate of the will of November 6, 1959, as required by Section 473.083, because they had not been named as beneficiaries in any of the prior wills executed by the testator. It may be conceded, as contended by defendants, that the interest referred to by the statute must be a financial interest in the estate, and one which would be benefited by setting the will aside. State ex rel. Damon & Ewald v. McQuillian, 246 Mo. 674, 152 S.W. 341. It may likewise be conceded, as defendants maintain, that in a will contest it is a jurisdictional requirement that the contestant allege that he has a direct pecuniary interest in the will admitted to probate. Palm v. Maguire, 347 Mo. 189, 146 S.W.2d 636. But what defendants overlook is that plaintiffs’ petition amply met both of these tests. They alleged that the last will, dated November 6, 1959, which had been admitted to probate, was invalid, that they were the only heirs at law of the testator, and that as such they were entitled to the estate. This was amply sufficient to show their financial and direct pecuniary interest.

The theory underlying defendants’ motion, of course, was that even though plaintiffs prevailed in their efforts to set aside the last or 1959 will, they would still not be interested parties because they were not named as beneficiaries in any of the five prior wills. Thus we come to the basic issue in the case, of whether by means of a motion to dismiss the defendants could interpose those purported wills to defeat plaintiffs’ action. The 1954 and prior wills were not mentioned in plaintiffs’ petition. That fact, however, is not determinative, because by Civil Rule 55.31, V.A.M.R., ten enumerated objections, and “other matters”, may be raised by a motion to dismiss whether or not such grounds appear on the face of the pleadings, and the trial court is authorized to receive proof of matters raised by motion. In this regard a motion to dismiss has been said to perform the office of a “speaking” demurrer. Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69; McLaughlin v. Neiger, Mo.App., 286 S.W.2d 380. Thus the plea of res judicata may be (but is not required to be) raised in a motion to dismiss. Roberts v. Epicure Foods Co., Mo., 330 S.W.2d 837; Hamilton v. Linn, supra. And a motion to dismiss has likewise been employed to raise other matters not appearing on the face of the pleadings, in much the same manner as what was once termed a plea in abatement. See Lichterman v. Crockett, Mo., 331 S.W.2d 607; State ex rel. McCarter v. Craig, Mo., 328 S.W.2d 589; State ex rel. Reeves v. Brady, Mo., 303 S.W.2d 22; Pogue v. Smallen, Mo., 285 S.W.2d 915; Darr v. Darr, Mo.App., 287 S.W.2d 118.

The decisions make it clear, however, that the motion to dismiss on grounds not appearing on the face of the pleadings may be employed only when such matters are not controverted. Lichterman v. Crockett, supra; Roberts v. Epicure Foods Co., Mo., 330 S.W.2d 837; State ex rel. McCarter v. Craig, supra; Pogue v. Smallen, Mo., 285 S.W.2d 915; Metcalf v. American Surety Co. of N. Y., 360 Mo. 1043, 232 S.W.2d 526; McLaughlin v. Neiger, Mo.App., 286 S.W.2d 380; Finch v. Edwards, 239 Mo.App. 788, 198 S.W.2d 665. And where the objections raised by the motion to dismiss are controverted the motion will not lie. Lichterman v. Crockett, supra; Roberts v. Epicure Foods Co., supra; McLaughlin v. Neiger, supra; Finch v. Edwards, supra. Had these plaintiffs undertaken to meet and overcome the purported 1954 and prior wills, they would in effect have had to try five will contests in order to establish their right to maintain the instant action. This would have been putting not one, but five, carts before the horse.

Furthermore, in order to hold that the plaintiffs were not interested parties under the 1959 will it was necessary for the court, in effect, to hold that one or more of the five prior paper writings were valid wills. This was beyond its jurisdiction. The probate courts have exclusive original jurisdiction over the probate or rejection of wills and the circuit courts have only derivative jurisdiction. Davis v. Davis, Mo., 252 S.W.2d 521; Davis v. Davis, Mo., 284 S.W.2d 575. Whether the purported will of 1954, or any of the prior ones, is to be probated or rejected as the last will and testament of the testator is a matter for future determination. The circuit court, its jurisdiction being derivative, may not determine that issue in the first instance in this proceeding. Davis v. Davis, Mo., 252 S.W.2d 521, 523; Breeding v. Pack, Mo., 164 S.W.2d 929; Fletcher v. Ringo, Mo., 164 S.W.2d 904.

The judgment should be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.

Accordingly, judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

RUDDY, Acting P. J., and WOLFE, J., and SAM C. BLAIR, Special Judge, concur.