*1 meaning, is no room statuto- tory there construction. State Tax Commission ry INC., SPRINGFIELD, OF BANDAG Commission, Hearing
Administrative Plaintiff-Respondent, 1982). (Mo. banc finds that the term felo This court 558.016.2, INCORPORATED, BANDAG, was intended used within Defendant-
ny, § Assembly type to mean the the General & Appellant, Tire and Sedalia distinguished from Corral, Inc., offense as of criminal Service, Inc., De infraction, intend and to misdemeanor or fendants. of that form of expression the broadest 12515. No. addition, it the fur activity. criminal that the definition finding of this court ther Appeals, Court of Missouri is not 558.016.2 felony of the term within § District, Southern require, finding nor does by, limited Two. Division conviction under previous state, is also either federal jurisdiction, 18, 1983. Nov. Had the Gener under Missouri law. felony Denied Rehearing or Transfer Motion for a limitation or intended such Assembly al 14, 1983. Dec. or could have em requirement, it would Denied limitation found within the to Transfer Application terms of ployed By finding repealed 556.290. such now Jan. § herein, empowered are our trial courts place sentencing in impose
their election to accused upon finding that the jury
of the felony from previous convicted of a
stands (i.e., or sister federal
any jurisdiction proof additional
state), without prior felony conviction
showing that It follows Missouri law. felony
also a under two number question the answer no.
above also appellant’s merit
There no him. (4) against it is ruled
point this case must be It is noted above remanded, because the cause
reversed and lay respondent failure of the
of the the introduction foundation for
proper in violation testimony Keeney Hass, Harris, Sager, and
rules announced (2)
Mitchell, [i.e., point supra. appellant’s
above, appellant’s sustained favor] points are appellant’s
The remainder re- him. of those Discussion against
ruled be- herein was undertaken
maining points importance uniqueness
cause guidelines raised, to provide
the points retrial, any, if upon trial court
for the
this case. and remanded.
Reversed
All concur. *2 extensive, is record, insuffi- though it of all a confident resolution permit
cient We questions tendered. tangential upon our attention have therefore focused a) peti- Bandag’s assertions that: upon a claim failed to state tion *3 b) trial court granted; relief could refusing its motion for directed erred in of all the evi- verdict made at the close dence, c) made submissible plaintiff and no case. Monica, Thomas, L. Lau- John Elwood C. record indication that There is no Bacon, Stith, Shook, Hardy ra Kansas D. & to state a claim sufficiency petition Mobille,Cushman, Darby & City, George T. the verdict was received. raised before was D.C., Cushman, Washington, F. William petition that the cases, the rule is such Miller, Sanford, Westbrooke Joyner,
Joyner, if, allowing reasona- sufficient will be held Charles, for Springfield, defendant-appel- & from the implications and inferences ble lant. stated, with advises the defendant it facts ac- as to the cause of certainty reasonable Newberry, Schroff, James W. Robert W. is sufficient to it called to meet and tion P.C., Schroff, Newberry, Spring- &Glass subject the same another action for bar field, plaintiff-respondent. for petition put, Otherwise matter. susceptible pleads a claim but is imperfectly HOGAN, Judge. the claim intended to amendment state action is the cаuse of changing without I City Davis v. of St. good after verdict. Inc„, Bandag Springfield, Plaintiff Louis, (Mo.App.1981); 612 S.W.2d petition seeking (plaintiff) filed a five-count Inc., 472 City, Kansas Allright Barber Inc., Bandag, recovery against defendant Plain- 42, 44[3, (Mo.App.1971). 4] contract; b) (Bandag) a) for: breach injury charging averments tiff’s c) injury and misrepresentation, fraud and meet these tests. facie tort prima facie tort. As damage by and its case electing to submit By defendants grounds recovery against theory Bandag upon against Corral, Inc., Bandag Tire Tire and Sedalia the oth abandoned only, plaintiff facie tort tor- Inc., a) Service, plaintiff averred: & reсovery. Thaller v. grounds er pleaded contract, b) and in- with tious interference 315 S.W.2d Kennedy Company, & Skinner tort. by prima facie jury damage and Mat (Mo.banc 1958); Carter v. 124, 126[1] to a tried and submitted The cause was Cleaning Company, Laundry Dry& they Plaintiff against all three defendants. jury (Mo.1961); Page v. 795[12] Bandag its on against chose to submit case (Mo.1959); Hamilton, 329 S.W.2d 762[5] and only, ground Co., 604 S.W.2d George v. Howard Const. solely on the defendants against the other (Mo.App.1980). 685, 688-91[1][2] con- tortious interference ground of before Therefore, question sole Sedalia Corral and Defendants Tire tract. submissi- made a court whether found in verdicts, jury but the Bandag had Bandag undеr against case ble Bandag in the against favor and theory. and $180,000 damages as actual amount of Bandag $4,000,000 damages. punitive II appealed. facts) (Background court, Bandag has briefed In this (A) er argued assignments diffuse and ten patented is a “Bandag Method” pro would The point of each ror. Discussion It is used tires. reprocessing and method of length, an of interminable opinion duce “retreading” process, called a but involves Tire is a cor- Defendant Corral Missouri Sparks, Jerry application bonding precured poration Nolan owned Baker This casing. Doyle corporation rubber to the Collins. product 1975; primary was business one chartered Bandag ordinarily Method is what con- tires, and reprocessed is the sale of new and “recap” process siders a but the is neverthe- Bandag Tire sold July before Corral less referred to as a “retread- consistently a hundred mile radius of retreads “within shall ing” process, and we consider such. Before defendant Springfield.” Sedalia Bandag, corporation, Iowa holds domes- was one Bandag organized, was Corral foreign rights tic patent trademark was best customers. There process, and what it describes as was Bandag evidence that before Sedalia “extensive detailed know-how” retread- much as organized, Tire Corral consumed as tires ing Bandag Method. percent plaintiff’s recap output. markets those rights by granting franchises *4 to business independent organizations. By fortuitous but law- contrivance This case involves two such franchises. coincidence, Bandag char- ful Sedalia was July tered received its franchise on and are Bandag grants what called “exclu- 1979; corporation is a Missouri and it sive” and “non-exclusive” franchises. An percent Sparks and Collins each own “exclusive” gives franchise the franchisee corporate the stock. Both Tire Corral and right the to the Method Bandag use the same Bandag employ corporate Sedalia manufacturing retreads in a prescribed ter- accountant; cor- counsel and the same both ritory. Bandag it no agrees grant will oth- the porations employ registered agent same er in territory franchise the described in the corporate Sparks, service. Collins and agreement. A “non-exclusive” franchise Corral; Sparks Baker are Tire and Collins usually grant allows Bandag to at least one So, Bandag. are if the plaintiff’s Sedalia prescribed franchise in thе area. a up basic can be summed in complaint not, however, Bandag does grant exclusive tortiously that mis- phrase, Bandag it is franchisee, marketing rights to because its perhaps monopoly used its and economic grant believes a of such would rights be a into a power good to convert customer unlawfully anticompetitive. Since local competitor. Bandag’s franchises have stated explicitly (B) no marketing rights exclusive are granted. The are franchises for a granted The circumstances in which Sedalia Band- period extending through the term of the was ag organized given and franchise expire last to Letters Patents and 1976, Bandag be In briefly must noted. only for “good terminated cause.” had entered into franchise agreement corporation was in with which Sedalia defendants, Plaintiff and the other Tire leas- subsidiary fact a of a Louis truck St. Corral and Bandag of Sedalia are closely- manufacturing ing firm. The “exclusive” corporations. Eugene held Missouri S. territory to franchisee includ- assigned this (Pat) Haley Massey and Joe are County ed Pettis and counties surround- six owns principal two shareholders. Each just area is ing county. general percent corporation, of the plаintiff manufacturing of plaintiff’s north exclusive Haley Massey was chartered in 1973. and area, it. to The retail contiguous but is not formerly by Bandag; were employed Mas- Sedalia, surround marketing areas sey helped develop Bandag to Method. County. county seat of Pettis Sedalia Haley and were familiar Massey Springfield. about miles north of Bandag franchising system they when franchise’s out- Sixty-five percent obtained their franchise in 1973. of this present organiza- put parent The counties included manufactur- was consumed their the owner of the firm decid- ing territory Springfield include and con- tion. liquidate stop trade to his manu- part Springfield siderable area ed business north, altogether. Sparks east Springfield. facturing south and retreads Nonetheless, corporate process heard from franchisee of de- cision-making and the proceeded, matter business was for sale he contacted the eventually Bandag’s came into the hands of owner of the Desultory Sedalia business. corporate committee.” Before “franchise negotiations looking purchase of decision, had reached committee organization Sedalia were conducted for objected granting plaintiff again frаn- Corral, Bandag several months The corporate chise to and Collins. Sparks the owner of the Sedalia business. Mr. of such matters discussed charge officer Loomis, Bandag’s Kansas district man- City plaintiff’s objections with his committee encouraged Sparks ager, actively acquire Bandag’s attorney, and with Mr. Mobille. A business. could infer jury Sedalia deny Edwards reason to saw no business attempted from the evidence that Loomis franchise; Mobille believed that if negotiations plaintiff, conceal the from the Sparks grant refused Collins although he had been to keep instructed ground franchise on the existing franсhisees advised of contacts objected, Bandag guilty would be of anti- with prospective dealers. competitive in violation of federal conduct during this nego- It is clear that period granted law. The franchise was and this early July tiation—from October 1978 action followed. had a valid 1979—plaintiff expect- business ancy with Tire Corral. It also clear that Ill *5 6, 1978, up from about October to the time principles) (Applicable procedural Bandag of was chartered Sedalia the general overlook We cannot granted franchise, Bandag knowledge a had rule that plaintiff’s when the evidеnce expectancy. of that business Tire Corral law, a shows he recover as matter of cannot a application early made franchise as as Allen, v. Rice a verdict should be directed. 1978; “pro (an forma” extrapola- October a 629, (Mo.1958); 309 Overfield S.W.2d 632[4] prospectus) tive was sent to Band- forward 446, 447 Garner, (Mo.App. v. 595 S.W.2d ag’s corporate headquarters in late Novem- 1980). in argued this court Bandag has early prospec- ber or December 1978. The grant that the “Sedalia” fran refusal to susceptible tus that interpretation is was completely chise to and Collins Sparks . $120,000 expeсted purchase Tire to Corral solely do so justified its refusal to because in Bandag recaps of and per- worth 1979 plaintiff would have ex objected because $136,000 worth of in the such tires haps posed it for restraint trade. liability to if the franchise following year, Sedalia Mr. exception can Mobille’s One take no were the owners Tire Corral. granted to a veto giving plaintiff power advice that over franchises would be anti- prospective beyond Bandag’s grant It is cavil v. competitive se. United States Besser per to two of Tire three franchise Corral’s Co., 304, (E.D.Mich. Mfg. F.Supp. 96 311[10] Although owners wаs an act. 1951), aff’d, 72 S.Ct. 96 343 U.S. initially officers were unaware difficulty (1952). L.Ed. 1063 with this transactions, prospective were la- they argument plaintiff’s recovery bar negotiation by Bandag’s ter informed of plaintiff not veto that the did seek such April 1979, corporate president. Massey power; rather, was that complaint Bandag’s corporate met two of officers encouraged its best Bandag singled out and complaints national convention. Plaintiff’s competing customer franchise purchase they then were much as are now: Tire many had area although already customer good Corral was competitors. customer; owners of would lose in the new franchise were effective control Further, argument can Bandag’s Corral, in there consequence, presented. the record not be decided on in be another service-oriented dealer in The consideration are would franchises under establish a “rule part patent but to territory. their licenses
551
repeat
will
and reiterate some
analysis
violation in a
our
patent-antitrust
reason”
already
what
said in Porter and
action,
has
been
peculiar
a court must consider the
City
v.
Area Transportation
Wilt
Kansas
in
nature of
business
which
re
(Mo.App.1982),
629
669
Authority,
S.W.2d
involved,
straint
the nature of
re
implicitly accepted
both of
were
adoption.
straint and the reasons for its
in
colleagues
our
at St. Louis
Lohse
St.
America, 538
Moraine Products v. ICI
F.2d
Inc., 646
Hospital,
Louis Children’s
(7th Cir.1976),
denied,
134, 145-46
cert.
429
(Mo.App.1983).
131
941, 97
(1976).
50
310
U.S.
S.Ct.
L.Ed.2d
say
The record is insufficient for us to
Steamship
in Mogul
Lord Bowen’s dictum
any degree
confidence that either federal
Co., Q.B.D.
Gow &
23
McGregor,
Co.
anticompetitive
negated
state
statutes
aff’d,
(H.L.),
(1889),
1892 A.C.
plaintiff’s right
to recover
matter
statement” of the
been called
“classic
Prosser,
law.
tort doctrine.
Torts
prima facie
1971).
Bowen’s statement
(4th ed.
Lord
Otherwise, it is well
sеttled
an
was:
court,
reviewing
allegation
appellate
“Now,
to do
intentionally
that which
substantia]
is no
to sup
that there
evidence
ordinary
calculated in
course
port
submission, must
view the evidence
dees,
damage,
events
and which
light
plaintiff,
favorable
most
to the
fact, damage
per-
in that
him
giving
the benefit of all reasonable
trade,
son’s
is actionable if
property
inferences
be drawn therefrom.
Smith
”
just
done
cause or excuse...
.
without
Supermarkets,
Inc.,
v. Allied
Mogul Steamship
McGregor,
Co. v.
&Gow
(Mo.banc 1975). The evidence
849[1]
Co., Q.B.D.
at 608.
so
has been
taken and considered. The
Jr.,
Holmes,
Justiсe Oliver Wendell
recited,
general
just
however,
rule
is sub
credited with the introduction of the
ject
qualification
a case
not
country.
in this
Porter
tort doctrine
be submitted unless there is substantial evi
at 269.1 Justice Holmes’ thesis was that
tending
every
dence
prove
element
*6
temporal
infliction
“[T]he
case,
analysis,
and in the final
act
damage,
doing
manifestly
or the
of an
submissibility
question
is a
of law for the
and
likely
damage
inflicting
to inflict such
Newhouse,
court. Gibson v.
it,
just
if done without
cause.”
actionable
324,
(Mo.1966);
327-28
Seyer,
Probst v.
353
Holmes,
Intent,
Privilege, Malice and
8
798,
(Mo.1962).
802
1,
omitted).
(1894) (footnote
3
Harv.L.Rev.
the
tracing
In an ambitious article
historical
IV
acts,
for tortious
responsibility
basis of
(Applicable legal principles)
prima
Dean
facie
Wigmore classified
as
four
bases for tort
general
tort
one of
of the dispositive ques
Resolution
liability. Wigmore, Responsibility for Tor-
requires
tion before
court
us
deter
tious
3
in
History,
Essays
Acts: Its
Select
mine whether
defendant’s
a
conduct
ac
Legal
474,
and
Anglo-American
History
475
prima
facie
tionable
tort
if it would
(1909).2
n. 1
support
also
submission as a nominate tort.
Co.,
Porter
Crawford &
by quoting available. See: remedy “nominative” tort Council, A. 881 NJ.Eq. Ruza, App. Trades App.Div. Ruza v. *7 808, 669, in Holmes’ (1894), which turn cited Justice 146 N.Y.S.2d Div.2d 811[6-8] noted, attempt to did not quoted Lord As Porter page, (1955). and and by article book lie plain will if remedy the decide whether for word. Further Escher’s dictum word avail developed remedy tort a well tiff has could approval of criticism and examples able. cited, have said is be but what we easily 1) prima facie show that: the sufficient to applica- the Having carefully considered potentially subsisting is and
tort doctrine if, at the that we conclude precedents, ble 2) generality the broad principle, useful but evidence, proof of all the close formulation existing, demands careful concept of the an under submission warrants action, elements of of the constitutive tort cause and limitation nominate well-defined under the if it is action not be submitted may facie tort cause of action prima of the so hold for We except as doctrine. respect prima in any way to be useful following reasons: in tort. the sounding action a “catch-all” supra, Note, Recognized at 508-509. 52 Col.L.Rev. in Missou- 3. Prima Facie Tort Note, 553-554, ri, (1982); n. 47 5 Mo.L.Rev.
553 activity within the area of to which is well If the New York decisions are be 1. tort, redressed a traditional guide, as Porter it was meant to be suggests, taken not, or not is does time in New York that a if the evidence especially at one held establish a appear action not to be sufficient to facie tort cause of could exist v. Foods Ass’n the facie tort. Nat. Nutritional damages when all sustained were at Whelan, 374, F.Supp. (S.D.N.Y. 382-85 492 specific recognized tributable tort. of Ruza, 769, 1980); Scientology of California 286 1 Church App.Div. App. Ruza at 735, (1982). 737-39 669, Siegelman, at 94 F.R.D. Div.2d 146 N.Y.S.2d 810. As noted Porter, in the of eased Appeals Court this A.L.I., it is while position The in restriction Board of Education v. Farm lucidity, suggests not a of model Ass’n, ingdale Classroom Teachers new, of an creatiоn of reformulation 397, 635, 343 N.Y.2d 380 N.Y.S.2d N.E.2d “balancing remedy, requires old tort (1975), pleading. a matter of How Porter, 270; 4 Restatement at interests.” ever, the went on expand—and court (c) comments and (Second) of Torts § opin of its possibly import obscure—the (1977). persuasive (e), The most pp. 280-81 holding, ion 38 N.Y.2d at N.Y. panel as far as this upon comment § at S.2d at 343 N.E.2d 285: (c) concerned, part of the comment and, course, follows, which reads as course, double recoveries will not [O]f allowed, emphasis ours: once a be traditional tort torts, been allegation has established For intentional the established facie tort will be ren respect already has been balancing process may dered academic. Nevertheless there in form of developed worked out be instances where traditional tort The [legal] a set rules.... interests cause of action will fail protected by actor are a set permitted should be to assert this alterna with their individu- privileges, established by legal tive claim. al also (Our emphasis.) attributes established using rules. There is thus no need imprudence open- inherent such in process afresh for each case balancing general of a principle ended statements tort .... which an еstablished exists years demonstrated the fact that three later, Appellate point out obliged goes Division felt The Institute on (d) recog hold: there are newly comment tort which categories nized The just concept and reasonable development, by process are still in injury law never should suffer an that the func implicit suggesting inference damage remedy without a ... cause action tion of the limitations. this ration- blindly accept To leave room for should stated so as to ale should for setting not be occasion done in Farm development, further as was large aside bodies of cаse law which have Ass’n, 38 Teachers ingdale Classroom ... set forth the essential elements of N.Y.2d at 343 N.E.2d N.Y.S. Prima tort traditional tort. should at 284-85. not become “catch-all” alternative cause action cannot stand
every balance, one to be sure. The dilemma is legs. on its serve remedy A new set in concrete *8 However, 319, function. Lowenthal, 62 less than its intended Belsky v. A.D.2d 405 62, 820, answering is like 65, aff’d, 47 the other much approach N.Y.2d 418 N.Y.S.2d If 573, judicial “perhaps It so.” (1979). question N.E.2d is with 392 560 N.Y.S.2d legally protectible categories note courts there are also instructive to that federal redressed, York, inad- are now but in New confronted with situatiоns to interests which so, much course equately preferable either a “nominate” “traditional” the or pro- so as to might traditional doctrine prima theory or the facie tort to revise theory gone unprotect- that a facie tort tect the interest which has prima be have held applied, Fischer, so in Court did by Supreme is not created conduct ed. Our cause action 554 Co., opinion intentional lawful act. It the
Etc. v. Forrest T. Jones & 310, (Mo.banc 1979), making 315 it clear if an act has been this court that tortious, for inter- being the cause of action tortious it cannot recognized as ference with business relations includes an act. Alternative “privileged” “lawful” or expectancy, as well a contract as relation. tort cause of pleading prima of a facie 55.- objectionable, action not Mo.R.Civ.P. our 3. We are not alone in views. Pro- evidence, 10, close of all the but if at the Forkoseh, pri- analysis fessor whose the justifies submission of plaintiff’s proof ma tort doctrine is the most perhaps facie tort, prima recognized his cause as a available, thoroughgoing study believed not be submitted. facie tort claim traditional tort any “If there is available, a prima then remedy V Forkoseh,
сause of action should not lie.” L.Q. 42 481. The New supra, Cornell at facts) of the law to (Application courts, “prima explaining York facie”— noted, controlling principle As distinction, recently nominate tort have may not is that a case appellate review definition, falling held conduct evi unless there is substantial be submitted category of tort is un- within a traditional every element of the tending prove dence lawful, applies therefore Newhouse, 402 plaintiff’s case. Gibson only to conduct which would be lawful but for the at 327-328. Able counsel S.W.2d injure the plaintiff for defendant’s intent the view that apparently taken plaintiff justification and lack of for the conduct right the contractual because had producing Jackson Miller injury. Burns franchise, then the case grant Lindner, A.D.2d 452 Summit Etc. 88 be submitted and should could (1982). N.Y.S.2d 93 unsound; if assumption That facie tort. purporting At courts least two federal case, within it is well made a plaintiff suggested law or ex- apply Missouri have business rela the tortious interference pressly held that a facie tort cause tort which has a nominate principle, tions not lie if there is an established action does Downey in Missouri since recognized been In plaintiff. remedy tort available Proofing, 363 Mo. Weather v. United Co., (8th F.2d 1103 Poe v. John Deere 695 Fischer, (Mo.1953). In Etc. 976 Cir.1982), was concerned primarily the court Co., S.W.2d at T. Jones & v. Forrest or with the effect of the rule “issue” set out the ele Supreme Court our attempt preclusion on an “transaction” of action follows: ments of this cause relitigate against issues once resolved or valid business rela- A contract (1) state, however, its plaintiff. The court did ...; tionship expectancy understanding meaning “prima of the con- knowledge Defendant’s (2) In a as Missouri doctrine. facie tort” relationship; tract footnote, 1105, n. the court 695 F.2d at interference de- (3) Intentional tеrm, facie explained (prima that “This causing a breach inducing or fendant tort) law, any seems include in Missouri relationship; the contract or harm, inflicting but not intentionally act justification; (4) The absence category.” traditional tort within Corp., F.Supp. Tufts v. Madesco Inv. resulting from defend- (5) Damages Court, (E.D.Mo.1981), the District ant’s conduct. law, the conclu- Missouri reached applying that it had devel- had proof not lie tort case will that a sion custom with Cor- a remunerative oped basis factual pleaded in this state when the will, ral; not revocable franchise was of an scope complaint for is within cause,” a trier of “good only but established tort. found that easily have fact could *9 expectancy. The legally protectible reiterate, analysis, had a To the Porter finding that support a would also of an evidence requires proof agree, with which we relationship. committed, the defendant knew of this Because error was our discre to pro initially The forma furnished power to is tionary remand invoked. Ow charge was sufficient to furnish or the de- 195, 197(Mo.banc White, ings There was knowledge. fendant with that have a may Believing plaintiff that 1965). al- proof abundant that defendant intention we there remedy, and has mistaken case relationship— ly induced breach It is ordered. so and remand. fore reverse Bandag’s negotiation with and Col- Sparks period lins continued over a of several MAUS, P.J., concurs.
months, despite plaintiff’s protest. J., result. PREWITT, concurs in apparent point,
It at this how- becomes ever, estab- plaintiff’s that what evidence lished a series of was acts—conduct—al- FOR MOTION ALTERNATIVE ON ready recognized tortious law OR FOR REHEARING demonstrated, this state. As we have TRANSFER act or of acts are tortious series HOGAN, Judge.
cannot the same time “lawful” or at be that plain- acts and it follows “privileged” vigorous has filed a plaintiff The whоlly prove tiff failed to At rehearing or for transfer. for motion lawful which the of the act is first element prima that a agrees plaintiff one point, tort For that prima facie cause action. another tort cannot be submitted facie reason, reversed. judgment must be defendant, ar but the same theory against under the gues that a case at go We decline to further and was made. doctrine tempt plaintiff to decide whether made case under the interfer submissible tortious is a the motion criticism the extent To ence amended its rational- theory. plaintiff opinion When is in which the the manner as we to include averments of facie We wrote pleading ized, justified. it unsound it to be we believe tort, it did because had not been made clear that what the plaintiff to a practice suggest to of, had burden to prove lack case are. or elements his justification insufficient for the defend It is now that such ant’s conduct. clear however, as- other not, overlook didWe City Area the law. Wilt v. Kansas sufficiency pects of the at Transportation Authority, 629 S.W.2d no record discloses reading Our case. similarly The burden allo 672-673[6]. malice; we are able to so far as element cated in tortious interferеnce with contract record, defendant had from the ascertain Ac expectancy Cady or cases. v. Hartford an addi- granting motive in profit only Indemnity Company, cident and S.W.2d he testified that Haley franchise. tional Wilt, (Mo.1969); 485[3] to granted franchise believed defendant The rec- interests. business its own further Haley’s response ord also shows of the term import “justification” Baird, and Bill Ingen Van Tony objection, clear, looks to the far from whether one Vulk, re- Vakuum president inter- theory the tortious at- Bandag, candor, franchised and, treading process the record ference principle offering to mollify plaintiff tempted court decide confi- is insufficient than rather process franchise justification as matter dently whether In- Sparks and Collins. law, method to simple Bandag anticompetitive federal cavil beyond record shows motive, as the matter factual was established. asmuch motive profit only had at least two the defendant suggested Our research franchise, the might the additional areas in which in granting broad injure defendant, seeking intentionally but pursue against its action element of action for is no of our function a cause certainly part plaintiffs, essential tort, See, Fifty plaintiff. lacking. e.g., suggest remedy *10 Ni Management Corporation, Etc. v. States
agara Savings Permanent and Loan Associ
ation, 926- 58 A.D.2d 896 N.Y.S.2d Kennedy-Van v. (1977); Benton Saun
927[3] 152 N.Y. Mfg. Eng. Corp., & A.D.2d (1956). Uncertainty sur 957-958
S.2d in meaning of the “intent to
rounds Porter; ma some student
jure” required by several suggest and the Restatement
terials Note, supra, 47 Mo.L.Rev.
approaches. of “malice”
557-558. Whatever order find none required,
“intent” should be we reiterate, bet it have been might
here. To on this opinion our
ter to rationalize because it We did not do so
ground.
seemed unfair saddle cases when apparent
burden not from the its prove
undertook to case. dissat-
Admitting profoundly that we are “prima facie tort” concept with the
isfied unworkable, we we it as regard
because The motion opinion. to our
adhere denied;
rehearing application isit If believes
transfer is denied. remedy.
aggrieved, it knows MORELAND, Appellant,
Inas FIRE AND
STATE FARM CASUALTY
COMPANY, Respondent. MORELAND, Respondent,
Inas FARM FIRE AND CASUALTY
STATE
COMPANY, Appellant.
Nos. 12957. Appeals,
Missouri Court of District,
Southern
Division One.
Dec.