Lead Opinion
I. This is an application by certiorari to declare the majority opinion of the St. Louis Court of Appeals to be void for want of jurisdiction, in that the legal doctrine announced in that decision was in conflict with the last previous rulings of this court in the cases cited by relator.
The point, as to which the petitioner alleges errancy in the opinion of the Court of Appeals, depriving it of jurisdiction, is so much of its opinion as affirms the admissibility of evidence tending to show the plaintiff in a legal action for fraud and deceit was a man of weak mentality, inexperienced, over-credulous and unqualified in business dealings, and therefore more likely to rely upon the false representations of defendant than if he had been a man of average capacity. It is urged on the part of the relator that such evidence was inadmissible in view of the fact that the petition filed by plaintiff stated the facts necessary to the sustention of
In dealing with the point thus presented to it, the majority opinion of the Court of Appeals (after reciting the substance of the testimony tending to show that plaintiff was weak-minded and easily influenced) disposed of the question as follows (Flack v. Wahl, 193 S. W. 56, l. c. 60):
“The only question before us in this connection is whether testimony of this character is admissible at all in the absence of an allegation in the petition to the effect that plaintiff Charles D. Flack was weak-minded or mentally incapable of protecting himself in a business transaction. . . .
“From the record before us it appears that the trial court ruled as it did upon the theory that this testimony was admissible under the allegation of the petition that plaintiffs relied upon the alleged false representations of defendant, believing them to be true, and were thereby induced to enter into the contract in question and consummate the same. A consideration of this assignment of error has led us to the conclusion that this view is sound. It was, of course, unnecessary for plaintiffs to plead anything respecting the mental capacity of plaintiff Charles D. Flack as an essential element of their action for fraud. The petition alleges all of the substantive facts constituting the cause of action sued upon. Among these is the necessary averment that plaintiffs relied upon the representations alleged to have been made to them. It was essential that plaintiffs sustain this averment by proof, and it would seem that it was proper to receive for this purpose any evidence having any probative force and effect — and not otherwise inadmissible — which tended to support such averments. An allegation that Flack was weak-minded would seem to have no proper place in this petition. The Code requires a plain and concise statement of the facts constituting the cause of action (Sec. 1794, R. S. 1909), and provides that only the substantive facts nec
“In a leading encyclopedic compendium of our law, the rule concerning this matter is thus stated:
“ ‘Evidence is admissible of any facts tending to show reasons for reliance upon defendant’s representations — as that the discovery of the true condition of things was difficult, that the relations of the parties were of a confidential nature, that plaintiff was ignorant of the matters to which the representations related while defendant was familiar with them, or that plaintiff was of weak intellect and easily imposed upon.’ [See 20 Cyc. 117.] (Italics ours.)
“In Bloomer v. Gray, 10 Ind. App. 326, cited in support of the italized portion of the text above quoted, the action was one for fraud and deceit. A witness was permitted to state that the plaintiff was weak-minded at the time of the transaction in question. As to the propriety of admitting his testimony, the appellate court, said:
• “ £"\Ye fully concur in the statement of counsel for appellant, that the gravamen of the action is not to recover on account of the weak-mindedness of the appellee, but we cannot for that reason say that this evidence was. not competent; on the contrary, we think it was proper for the purpose of showing his susceptibility to the representations of the decedent. The representations made, if false, would have created a liability against the decedent, whether the appellee was weak-minded or not, and to show that he was weak-minded did not increase the liability or entitle him tó a recovery which otherwise he did not have. The fraud consisted in misleading the appellee and then taking advantage of him after he had been thus deceived. Any fact which tends to throw light on the manner in which the artifice was perpetrated is proper. True, the wrong done was no greater on account of appellee’s Weak mental condition, yet he was probably more, susceptible to the wiles and cunning of the artful than if his mental faculties
“It is true that in that case the petition alleged that certain false representations were made to plaintiff, ‘who was weak-minded.’ But these words, thus thrown into a petition charging actual fraud, did not, in our opinion, affect the question of the admissibility of the testimony mentioned. And it appears from the quotation above that the court so considered the matter, and placed its ruling upon the ground that the testimony was admissible under the allegation of reliance.
“In Cummings v. Thompson, 18 Minn. 246, a similar question was considered. The action was upon a promissory note and the defense was one of fraud in obtaining the note, without consideration, perpetrated by the payee, through a false reading thereof to defendant. It was not alleged that the defendant was unable to read. A portion of the opinion is as follows:
- “ ‘We aré also of opinion that under the allegation that the defendant relied upon and believed the false reading and misrepresentations of the contract by Ensign, and was misled thereby, it was competent for the defendant to prove the facts offered to be proved relating to his inability to read. The averment that the defendant relied on, and believed, the reading of the contract, and the representations of its contents by Ensign, is an allegation of fact and essential to constitute a fraud. . . . And it would seem to be apparent, that the evidence offered of the inability of the defendant to read, in connection with the facts that he executed the contract without reading it, or further inquiry, would tend directly to show that in thus executing the instrument he did, in fact, rely upon and was misled by Ensign’s reading and misrepresentations of it. The defendant’s inability to read is, therefore, merely a
“These authorities we regard as here in point, and strongly persuasive in support of respondent’s position. We are referred to no case in this State directly in point. A multitude of our cases might be cited in support of the general principles which we have attempted to state and apply above, but it is unnecessary to encumber the opinion with such citations.”
In the rulings of this court permitting the use of a writ of certiorari in cases like the present (in which I am unable to concur) it is distinctly announced, as I understand, that the scope of review does not extend to any errors of opinion on the part of the Court of Appeals, which do not conflict with the latest previous rulings of this court on the subject, nor does it embrace any consideration of the record of the case in the Court of Appeals further than the same is set forth in the opinion under review. It follows that we are not called on to determine whether the above quoted views of the Court of Appeals are correct or incorrect, but simply whether they conflict with a controlling decision of this court.
II. Unless there is a subsisting decision of this court declaring the law to be that evidence tending to prove weak-mindedness and incompetence on the part of the plaintiff in a legal action for fraud and deceit, is not admissible under a petition which alleges fully all the constitutive facts and legal elements warranting a recovery in such an action without a special allegation that the plaintiff was also a weak-minded man and incompetent in business affairs, there is and was no conflict in the opinion of the Court of Appeals with the last previous ruling of this court. None of the cases cited by the applicant for the writ, either expressly or by necessary implication, decided any proposition of law contrary to the views expressed in the opinion of the Court, of Appeals.
Harrison v. Craven, 188 Mo. 590, was a suit in equity to compel a conveyance of property and an accounting for rents and profits, coupled with a count for damages for fraud and deceit and delay and prevention in the construction of a building. It made no announcement whatever of any rule of law applicable to the kind or extent of evidence admissible in a legal action of fraud and deceit under a petition containing sufficient allegations to warrant a recovery in such an action.
Cobb v. Lindell Ry. Co., 149 Mo. 135, does not touch the matter in hand from any point of view. It deals only in general terms with the rule of pleading as applied to a case where suit was brought for personal injuries against a street car company.
Chitty v. Railroad, 148 Mo. 64, is equally off the point, relating simply to the truism that a plaintiff cannot plead one cause of action and recover upon another not pleaded.
So, also, is Jamison v. Culligan, 151 Mo. l. c. 416, to a similar effect with a similar citation of authorities in support; but making no announcement in the slightest degree opposed to anything ruled by the Court of Appeals.
The case of Rhoades v. Fuller, 139 Mo. 179, was a suit in equity to set aside a contract of an insane person not under guardianship. Nothing said or ruled in the case in any way supports the theory that the Court, of Appeals conflicted with any ruling of this court in its opinion in this case.
The case of Och v. Railroad, 130 Mo. l. c. 74, contains a discussion as to the probative force of evidence tending to show incapacity to make a contract and a ruling of the then state of the law, that the issue of mental incapacity to make a release should not have been submitted to the jury.
The case of Blount v. Spratt, 113 Mo. 48, simply related to the circumstances under which a conveyance would be set aside in equity on the ground of the insanity of the grantor, if that was not made known to the grantee at the time of the contract.
Wells v. Mut. Benefit Assn., 126 Mo. l. c. 637, refers only to the voidability of a contract of an insane person not under guardianship.
McFarland v. Railroad, 125 Mo. 253, is a suit for personal injuries. The local citation on page 276 discusses the distinction between legal and equitable rights and remedies though administered in the same court, and can have no bearing on the present proceeding.
Mark v. Cooperage Co., 204 Mo. l. c. 261, simply interprets statutes requiring pleadings to be in writing.
Newham v. Kenton, 79 Mo. l. c. 386, is to the effect that new matter could not be introduced under a general denial.
It follows that onr writ was improvidently granted and should be quashed. It is so ordered.
Dissenting Opinion
(dissenting) — I do not agree with our learned brother, when he concludes that there is no conflict between the opinion of the Court of Appeals and this court. The evidence which tended to show that plaintiff was feeble-minded, not only broadened the issues made by the pleadings, but contradicted the terms of plaintiff’s very petition. When plaintiff stated in his petition (without alleging the condition of his mind) that he contracted with defendant, relying upon statements of defendant, which statements were false, and that he was injured thereby, such statements in the petition carried with them all the legal presumptions and inferences growing out of the facts stated. The presumption, under the facts pleaded, is that plaintiff was mentally normal — not weak-minded, feeble-minded, idiotic or insane. This legal presumption, or legal inference from the facts pleaded, is just as much a part of the petition, as if written therein in express words. To permit plaintiff to prove a weak mentality is (1) broadening the issues made by the pleadings, which contravenes a school of cases, from this court, and (2)