*1 48 455, 452, said: souri an adjudication

91 N.E.2d loc. cit. the court negli the issues of gence plaintiff, Viola “Having determined that and contributory negligence in a Clark, recover, could it follows wife’s personal suit for injuries is not res judicata alleged ex husband could not recover on subsequent those issues in a suit him, correctly by'the penditures by the court husband arising for loss of services denied entered out of for new trial and motion same City accident. v. Womach judgment Joseph, on the St. verdict.” 467, 443, 201 Mo. 100 S.W. 10 L.R.A.,N.S., 140; Canterbury Kan v. requirement The Illinois City, sas 130 Mo.App. 1, 108 574. S.W. a husband’s suit for loss of services The Commissioner recommends that the allege, prove must and submit judgment be affirmed cause re- elemental ex fact that his wife was in the manded for a new trial. On a new trial safety ercise.of due care for own at the alleged shortcomings of Instruction No. time of the and not accident is substantive 8 and the error of Instruction No. 1 can be procedural. O’Leary Terminal Illinois v. remedied. Mo.Sup., Company, Banc), (en Railroad 873; Gerhard, 299 Adm’r v. S.W.2d

Terminal St. Railroad Association PER CURIAM. Louis, Mo.Sup., S.W.2d (en Banc), 299 The foregoing opinion of-HOUSER, C., Sales, 866; M. Redick B. Auto v. Thomas adopted as the opinion court. supra; Fire Door Com Andra v. Louis St. pany, The Mo.Sup., 287 816. trial S.W .2d The judgment of the is, circuit court giving court reversible error committed accordingly, affirmed and the cause re- verdict-directing Instruction which No. manded for a new trial. plaintiff’s omitted this element essential to right to recover. RUDDY, J„P. ANDERSON, J„ and NOAH WEINSTEIN, Special Judge, con- Plaintiff contends that er cur. 1 ror in Instruction No. is immaterial questions of negligence since all and con

tributory negligence have been decided against

favor of by

by estoppel verdict or doctrine .the judicata sued, in that

res wife judgment and satisfac

recovered received judgment

tion of the Circuit Court of personal City for her in Kippling of St. Louis Stewart SALMON, Minor, Mary Jo guardian his natural juries. Plaintiff cites several Illinois cases next (Plaintiff), Respondent, friend Bradbury estoppel verdict: 434; Ill.App.

Humphrey, 162 Charles E. Harding Harding, Co. 352 Ill. 186 W. A. BROOKSHIRE (Defendant), N.E. 88 A.L.R. Heitz v. Hershe Appellant. way, Ill.App.2d N.E.2d No. 22517. This contention cannot be sustained. The City Appeals. Kansas Court of applicable. Illinois cases are not validity, force and judgment effect of a Missouri. must be determined the laws of the state April 1, 1957. C.J.S., where it rendered. Judg ments, -14,p. Estoppel by verdict § n judicata procedural res matter gov

erned the law- of the forum. Mis *2 Settle, Brookshire, Fayette,

W. D. W. A. Columbia, appellant. *3 Wesner, Sedalia, Daniels,

Fred Wilbur F. Fayette, respondent. for HUNTER, Judge.

This is a suit for damages fifteen- year-old plaintiff-respondent, Rip- Stewart Salmon, pling minor, by mother, Mary his Salmon, against Brookshire, W. A. de- Jo fendant-appellant. Plaintiff’s cause of action as stated in petition his damages for resulting to him reason of selling 'defendant to him through father, Salmon, his V. G. acting agent, his cow, a Hereford B and B 1, allegedly represented Mabelle Misch to through him defendant plaintiff’s agent- a registered father to be duly cow properly registered with and under rules the American Hereford Associa- tion, fact, when in the cow duly was not properly cow with that representation Association, which defend- to well knew be false when ant he made Punitive also it. were asked plaintiff. his amended answer defendant denied

making any misrepresentation whatsoever plaintiff, or father-agent. pleaded great He also detail his factual version of the transaction as he claims it occurred.

On trial the case at close of plaintiff’s evidence defendant filed his mo- for verdict, tion a directed and when it overruled, proceed elected not to was fur- ther, and introduced no evidence. The a verdict jury returned for for $1,800 damages, and $1,200 puni- damages. trial court tive entered its accordingly. judgment After an unavail- trial, for a new ing motion the defendant appealed. Testimony adduced behalf the effect that V. G. plaintiff, went father to defendant’s 20, 1951, on December farm with Mr. Me.- tattooing Salmon reference Mr. absence leader. Dowell, 4-H Club tattooing you buying when this were inexperienced with completely was boy? cattle. I relied cow this A. I did. breeding of handling- plain- upon honesty. some at looked day That De- On for sale. that were cattle tiff’s “Q. it, When insofar as returned 22, 1951, Mr. Salmon cember now, can remember first defend- explained to He farm. defendant’s learned or knew cows other some along ant Kippling’s of Stewart did not have his son cow for purchase a wished *4 I tattoo in her A. received ear? cow the wanted Stewart, and Stewart that Brookshire, a letter from Mr. I be- de- project. registered cow a 4-H for part lieve it was first of about the particu- that the Salmon told Mr. fendant July in telling me what tattoo regis- examining awas they were cow lar ear, number put should in be her and the with animal, registered was tered put ear,, asked me to in the tattoo her Kansas in Association Hereford American put see that it was or there.” him told Defendant also City, Missouri. Swaffar, secretary Mr. Paul years of the little over three a cow was that the Association, American spring. in Hereford the testified calve due to was old, and application registration that blank for explained to defendant Mr. Salmon place contains a listing it for and that the tattoo- be Stewart’s was to cow number, and that registration certifi- Association rules or title of the transfer provide that tattooing shall be Mr. Sal- done before be to Stewart. to made was cate application is submitted. The day applica- as the that defendant paid $600 mon showing a accepted tion tattoo is price cow. upon purchase of agreed actually Association as tattoo paid appear- for time he that at the He testified in the ear of ing animal. cow, defendant said: this appears If later it there tattoo, is no such didn’t have tat- of the cattle “Some in the eyes then records and in the as as the weather broke soon toos she ceases to Association be a registered would be down to tat- (defendant) he provision There animal. no for regis- them. too twenty-four animals over tering months of him, or you ask make some Did “Q. although possibly age, this could be done significance what the him of inquiry of by special instances action in some Yes, tattooing A. I asked was? of directors. Calves of born board such tattooing of importance what the him unregistered cow are not eligible an to ‘Well, said, it isn’t too he was registered the American be Hereford usually he used a tat- that important;’ Association. many prove registered how too II, Section Article of the constitution produced. Said he start- had he cattle American Hereford pro- Association ear, right 1 in the and so No. with ed permanent “Tattoo. As a vides: means cow a forth, and a that that htd identification, application before number, that show how larger entry original for owner, submitted or pro- cattle registered he had many owner, original agent shall have duced. every animal caused such you know “Q. Did anything about entry for application to be tattooed properly- any knowledge of signif- or ear, ears, plainly India, in the or with having having cow of a or not icance letters, numerals ink such without- mark her ear at time? that a tattoo may he duplication, tattoo, 'select. Such what it was for. I didn’t know A. tattoos, shall in all cases constitute and rely upon permanent you only- Did and believe considered the “Q. told with' Mr. Brookshire identification a ani-. means recorded what subsequently found Any purpose animal sale in December mal. 1951. As to the dis- carry legible at which the cow bought a tattoo was defendant asked, be can- was of the board of directors “Did cretion know understand and certificates that from the records and the Stewart Kippling celled going use (Em- recalled.” cow registration therefor registered connection with a cow and calf added.) project phasis group? with the 4-H A. I knew he said going were effect that There was evidence to the use projects, it in Ibut teacher knew as a had admitted the Associa- and as an you didn’t, individual that hearing tion’s Board before it requirement it wasn’t registered ani- falsely certified he had mals, but he did registered want the animal. applica- when made he tattooed been good He wanted a animal and a August registration. On tion got animal animal. was ordered registration cow’s * * Q. You that, *. knew and that was certain fines Board and cancelled explained you? all Yes, A. and that’s ap- He against defendant. *5 ordered were why priced I these way the I did.” cattle hearing. As a result of pealed from this Again defendant was “Q. asked: Are subsequent hearing the fines were can- a contending you say still now that this —do celled, change in the but there was no cow of Stewart Kippling B and B registration rescinding order of earlier the 1, A. registered Mabelle Misch ais cow? cow, which was declared the plaintiff’s certainly I do.” Defendant testified that “grade” cow. be a Association the the sale of cow occurred on December 24, 1951, and that he had previously told by plaintiff was called defendant V. G. Salmon that some of his cattle had under Section 491.- cross-examination for not been tattooed. He said: “I took the 1949, He testified V.A.M.S. RSMo for certificate this cow on the 24th of De- University graduate of the a he was that cember and showed him (V. Salmon) G. School, a Law with Doctor of Chicago of that certificate. It showed age. degree; former Jurisprudence was a State showed her breeding and I told him the Senator; superintendent former placed not been tattoo had in her ear. I practiced and now law and raised schools him I told did also not want the cattle farm near on his Colum- cattle Hereford my from farm taken they until were tat- bought his first He had Missouri. bia, tooed, my but tattooing outfit had been joined in 1930 and had herd Hereford loaned to another man who was 200 miles 1943, Association in Hereford American there, from and if it was all right with began registering Hereford year he which him could he take the cattle and as soon Ever since that Association. cattle tattooing outfit was returned that registered maintained a herd he I would come over or bring it over and regulations rules and under put we could appropriate tattoos in Association, registered and has some 560 n the animals’ ears.” years. Association with that over the cattle regard With to calves he was printed he first saw the asked: “Q. stated rules He your What is answer as to Association in but whether or that he not boy this can register calves along application all that that are knew born required cow since from this November tattoo for all registration regis- Well, under He denied now? A. cattle. he knew tered rules tat- he register Association could required disposed “before them. tooing was it, or not any particular permit Whether or at I’m time.” animal say, registered twenty-five thirty going say.” because I couldn’t had He point “Q. and about the same At another num- testified: calves necessary and had in order total Is it for a calf to be ber 350 from 1946 to the date of that the cow which this about the mother cow then A. That had her ear a certain tattoo registered? calf be of that required by was mark rules and that that Association’s rules my understanding of in order registration for the to be consid- testimony of Mr. Swaffar.” proper, subject ered valid and thus not by plaintiff adduced There was evidence Although recall and de- cancellation. the trial the time of effect that at to the fendant V. some- mentioned to G. Salmon cow, B B Mabelle neither thing to all of the cows the effect that not calves born her three Misch nor being mark discussed for sale had the tattoo trial, purchase, and before the after her ears, plain- in their there was evidence on registered. were tiff’s behalf from which the could importance find that so minimized are first two contentions Defendant’s of and misled as function of tat- reversible trial court committed too mark be- as to cause V. G. Salmon to for a di- overruling his motion error in it had nothing lieve to do with the valid plaintiff’s case the close of rected verdict at plaintiff’s cow, proper registration fraud or claimed reason that no way validity and in no would effect the proved evidence failed deceit was and the registration cause its deceit, misrepresenta- cancellation. fraud, to establish part. tion on defendant’s Defendant, brief, says in his testimony shows that he not read agree We are unable to with de the rules of the American As passing Hereford fendant’s view of the matter. sociation, only believing the tattoo was upon question evi we must view the *6 identification, plain purpose thought for the in light dence most favorable tiff, placed that if it was in the ear giving every in at time him the benefit of disposed before animal was reasonably of it would ference deductible therefrom requirements of testimony meet the that Association. disregard and inferences ad However, Larson, Mo.App., defendant had been a member of verse v. to him. Walters 112; Atkins, that Association ever 1943. He had 270 Baker v. Mo. since S.W.2d cows, calves, 16, registered App., And is over 350 or with 258 S.W.2d 22. while it prior is, course, Association to his that sale of this true that fraud never to be plaintiff. cow to He testified he presumed borne in mind knew the it must be that application required proof susceptible registration di tat fraud seldom evidence, invariably too for all cattle and that must rect but almost American Hereford relied Association on surrounding 'be shown circumstances applica contained in that fraud of the the information transaction from which the may of registra tion and issued certificate charged (cid:127)one with its commission be Roberts, “relying on the fact that reasonably tion it was an ani inferred. Hunter v. 368; would that Mo.App., mal which fit certificate and in 267 Meriwether S.W.2d v. Lumbard, of which there has been Mo.App., 246 the ear a tatto S.W.2d 363. There proper part placed.” It jury mark is a of the from which the could evidence pass credibility represented jury’s function to on the that defendant to V. find G. testimony plaintiff, cow, of defendant. think agent of of this We 1, duly adduced B B Misch that on the evidence there was and Mabelle was a question jury as to properly registered cow under a submissible whether Hereford when defendant effect requirements of or not the rules and the American Association, plaintiff’s cow, B and B Hereford when fact he that Mabelle 1, cow, duly properly reg Misch was a knew that she was not a properly registered with and under the istered with that Association because procured through rules of the American Hereford Associa registration he had representation such application registration tion he made with use knowledge falsity of of the his contained false statement that statement damaged.” positive urges asserta- Defendant that this in- recklessly as a

or made it truth, give struction does not the correct knowledge of its tion without case, determining damages re- basis for in this to act that he intended V. G. Salmon by purchasing jury. confused and misled the did liance as he thereon fraud rule that long cow. been representation, implied It well settled from State false, generally proper made damage» whether to have been measure

shown false, reck- being or recoverable in a tort action for fraud and knowledge of it with whereby or lessly whether true deceit fraud has induced a regardless of made Garage & arising Tenth Street contract transaction from com false. Dunham v. 1099; 1096, personal Co., Mo.App., dealings mercial real or 94 S.W.2d Sales Mo.App., property, par Zykan, exchange, 255 S.W.2d such as a sale or Schroeder v. Weber, ticularly 230 Mo. 105, 109; v. fraud MacKinnon where the affects value 638, with, 785, 641; property App. dealt where such- 75 S.W.2d C.J.S. defrauded, 21, p. property is retained the one Fraud §

is the difference between the actual value- record we Upon our review purchased property at the time and' suf evidence there is concluded have rep had the value it properly sub- case one make this ficient to O’Meara, resentations been true. Jeck the essential jury on all missible 897, 905; Sing 343 Mo. 122 S.W.2d plaintiff’s tort required sustain elements Co., Mo.App., 107 Realty man v. Kotsrean deceit; namely, (1) for fraud and action 196, 199; Rovin, 352 Mo. S.W.2d Menke v. falsity. Its (3) representation. (2) Its A 24, 27; Louis 180 S.W.2d Steinbaum- knowledge speaker’s materiality. (4) Maltz, Mo.Sup., 247 Real Estate Co. its truth. falsity ignorance of its Baker 31 A.L.R.2d S.W.2d be acted should intent that it (5) 16, 19; His Atkins, Mo.App., 258 S.W.2d reason manner person and in the Rabenberg, 360 Mo. Dolan v. S.W. ig hearer’s contemplated. (6) The ably 2d 150. *7 falsity. reliance (7) His of its norance rely right to thereon. His (8) truth. its on in this- Likewise it established is any of these es one establish A failure pur a defrauded that the rule that State recovery. is fatal elements sential by the damages are to be measured chaser’s Shore, Mo.Sup., 248 S.W.2d Powers v. proper purchased between the difference 858, 231 Rabenberg, 360 Mo. 5; v. Dolan if it had been ty’s real and its value value Acceptance Hanson S.W.2d apply where the as does not Co., Mo.App., 270 S.W.2d Finance prop returns purchaser rescinds and the erty nothing, where he received received or may value, properly he in such case of and trial charges the court Defendant paid he with interest the amount recover plaintiff’s Instruction giving in with error payment, plus of incidental' from the date “The Court instructs 5, which reads: No. expenses suffered as a result of and losses the issues for the jury you find if the misrepresentations. Schroeder the seller’s defendant, it is the plaintiff against and 105, 110; Mo.App., Zykan, 255 S.W.2d what actual your duty determine Larson, then Mo.App., 270 S.W.2d. Walters find, you the any if damage, 112, 116. purchased sustained, having account of keep cow, Plaintiff the B'- elected in evidence from the cow described

the B Mabelle Misch 1. At the trial he- as and him such sum and to award defendant paid' he effect reasonably will introduced evidence evidence from the find a; for the cow and that as defendant compensate him for actual fairly $600 and “grade” nón-registered cow her value sustained, was- if so find was' damage was evidence $180, There merits of necessitating about action $192. calves to three reversal given birth cow had remand of this cause for a trial, date of new prior 512.160, trial. Section after the sale 2 RSMo subd. calves these of first-born V.A.M.S. $125, have been only but would was worth We have carefully plaintiff’s examined reg- be eligible to if she were worth $250 cited cases concerning the determination of testimony the oth- There istered. was damages and nothing find in them incon- as one-half er two calves were worth sistent expressed with our views. Some be worth unregistered much as concern situations property where the sold registration. eligible for registered or to a purchaser defrauded retained, was not jury testimony before it With this but was returned to the seller. None in- Obviously, $1,200 damages. actual allowed volved the fraudulent sale transfer of by misled jury confused and a chattel that has been retained dam- measure of concerning instruction purchaser defrauded who sues damages have been instructed ages. It should for the perpetrated. fraud difference was the the measure purchase between time of the at the Defendant also claims that numerous oth- the value it of the cow er value errors were committed in trial representations if the would have However, case. having already de- properly duly cow being registered it termined that such error has been commit- require- rules and registered under the ted giving Instruction Hereford Associ- ments of the American 5No. as will necessitate the remand arriving at that had been true. ation this cause for a new trial we need con- n difference could, of value the sider them. n course, fact the allow for the consider and The judgment is reversed and the cause purchase) (at the time of was then cow It remanded. is so ordered. well be that the with calf. with a calf to be born was worth more All concur. if not then calf. spring than However, the value it is difference On Motion for Rehearing

n repre- if been as plaintiff’s cow it had actual value that must and its sented PER CURIAM. regard to the calves With determined. Both cow, plaintiff motion sale of the

bom after the requested rehearing or in the as an alter- include element not entitled to *8 n damagethe difference appeal native a transfer of this to the su- in value of these n calves preme principally court. Defendant eligible re- regis- to be if argues his contention that the cause tered, eligible their as calves not value one, not submissible a re- these items are not registration for argues his contention that his Instruction scope applicable of the measure within a requiring was not misdirection No. 5 damage rule. -of do find anything reversal. We not in either course, is, give error to call that would for such motion action. damage instruction which fails -.measure correctly jury suggests opinion our guide the Plaintiff determining

to interpretation subject damages and so is to the confuses the that a allowable de party, keep who it return a frauded elects to to cause verdict for jury as chat him, any general is damages far in excess of tel sold to limited amount dam only; namely, Obviously, ages the difference by the record. .supported between if value chattel as committed the trial of the -.is an error court recognize appellant materially its actual value. We .against affects stated general rule as broad C.J.S. WIGGER, Delbert Claimant- James 465-66, in cases pp. Fraud § Respondent, responsi deceit the defendant fraud or plaintiff, results, injurious to for those ble with been presumed to have which must ASSOCIA- CONSUMERS COOPERATIVE Inc., TION, Equipment, Farm Cockshutt com of the contemplation at the time in his Liability Employers Insur- Mutual may re fraud, mission of the Defendants-Appellants. Company, ance is the any injury which damages cover Nos. 22520. act consequence of direct and natural representa defendant’s ing on the faith of Appeals. City Kansas Court of limited party is not A tions. defrauded Missouri. recover may also general damages, but Feb. proximately special damages which However, it re fraud. resulted from the in properly duty court to

mains the dam measure of jury

struct the and the applicable the issues

ages under fact case. The

evidence in an instruction language used reasoning or conclusions in the

be found textbook, court, of a law appellate in proper language for an make it

does not Glascock, Mo. Anderson

struction. Raymond, Mis I

App., 271 S.W.2d Instructions, pocket page 19

souri Sec. of an

part. of the correctness The test instruction will be

instruction is how the

naturally average men understood Knapp Hanley, juries. compose

who our

Mo.App., Mo.App. 132 S.W. 747. is of such nature as

If the instruction roving and the

give jury a commission allowed

resultant amount of evidence, contrary clearly aside. 37 must be set

the verdict C.J.S. 152, p. 496. Fraud § not contain record does

This specula special damages,

evidence of nature, prior plain occurred

tive discovery alleged fraud and

tiff’s *9 proper in basis would be

which damages in measure on the

struction Thus, remain special damages. we

cluding under its in the instant case

convinced proper measure of facts the was the difference between

actual the cow and its value value of represented. The had been

if it instructed. have been so

should are motions overruled.