Lead Opinion
Defendant in error brought suit against plaintiff in error in the circuit court of Jasper county to recover the value of two certificates of deposit • — one of $500 and the other for $300 — and for exemplary or punitive damages for the manner in which the plaintiffs in error, as he charged, had secured possession of the certificates of deposit..
The first three counts of the petition relates to the certificate of deposit for $500, issued by the Webb City Bank, and the three counts are drawn for the same cause of action, but to present different theories of the case. Counts four, five and six relate to the certificate of deposit for $300, issued by the First National Bank of Carterville, and are for the same cause of action, presenting different theories of the case by the plaintiff. Count seven relates to a certificate of deposit for $200, and on this count, the jury, by a péremptory instruction of the court, returned a verdict for defendants, and it is now eliminated. Trial was had by jury, and a verdict returned in favor of plaintiff on count two in the petition for $507.50' actual damages, and $937.50 as exemplary damages, and found for the plaintiff on the fourth count for actual damages in the sum of $314.50, and exemplary damages in the sum of $562.50. Defendant thereupon sued out of the Kansas City Court of Appeals a writ of error, and the cause was subsequently transferred to this court wherein briefs were filed and the cause was argued and submitted, Gray, J., not sitting. An opinion'affirming the judgment was rendered, whereupon a petition for a rehearing was filed, and the two judges, having disagreed as to whether a rehearing should be granted, by consent, W. B. Self was qualified as special judge, and, upon hearing, the motion for rehearing was sustained.
Before the trial was had in the circuit court, defendants filed a demurrer to plaintiff’s petition which was overruled, and they noAV insist that the court committed error in that respect. The record shows, how
They insist in this court, however, that the petition does not state facts sufficient to support the verdict; and in this connection it might be well enough to note that counts one, two and three all refer to the same cause of action, and as a verdict was rendered on count two alone the other two are not before us for review. Counts four, five and six relate to the same cause of action, and as a verdict was returned on count four, counts five and six are not before us. Count four which is now brought under review on the objection that it is insufficient to sustain the verdict is as follows:
“The plaintiff, for another and further cause of action against the.defendants, states: That on the — day of February, 1908, he was the lawful owner and had the lawful possession of a certificate of deposit, dated September 8, 1905, issued by the First National Bank of Carterville, to him, by the terms of which said certificate the said First National Bank of Carterville, by reason, and in consideration of $300 to it paid by the said plaintiff, promised to pay to the plaintiff, or his order, on the return of said certificate, the said sum of $300; that said certificate of deposit was of the actual value of $300; that on the said — day of February, 1908, and prior thereto, the plaintiff Avas afflicted, with a habit or disease of intoxication; that by reason thereof the plaintiff by taking one drink of intoxicating'liquor became unable to control a desire to continue drinking intoxicating liquors, and after drinking intoxicating liquor lost his discretion and poAver to control himself, aud these facts were Avell knoAvn to the defendants, and the said defendants, on and prior to said date, unlawfully and maliciously intending to injure the plaintiff by wrongfully getting his property, conspired and confederated together to obtain the said certificate of deposit and to cash the same at the First National Bank of*633 Carterville, and thereby wrongfully and .maliciously deprive the plaintiff of said sum of $300 and maliciously convert the same to their own use.
“Plaintiff says that on the said — day of February, in pursuance of said conspiracy, the defendants intentionally and maliciously induced plaintiff to drink what plaintiff thought was whiskey, an intoxicating liquor, and which was either intoxicating liquor or poison, and after plaintiff had, at the solicitation of defendants, so drunk said intoxicating mixture, the defendants maliciously, induced plaintiff to enter into what they termed a game of poker at the defendant, Keller’s saloon at Duenweg, Missouri, and pursuant to said conspiracy, and in said game and by said gambling device, said defendants wrongfully and maliciously obtained from the plaintiff in manner unlawful and without any consideration therefor the said certificate of deposit and in pursuance of said conspiracy on the — day of February, 1908, being the first after they liad obtained the said certificate, wrongfully and maliciously endorsed and surrendered the same to the said First National Bank of Carterville, and the said bank paid to the said Keller the said sum of $300, and the'said Keller then and there unlawfully, intentionally and maliciously converted the said $300 to his own use, and thereby said defendants, on account of said malicious and unlawful conversion of his said certificate of deposit damaged the plaintiff in the actual sum of $300. And that plaintiff by this suit seeks to recover $2000 as exemplary or punitive damages.
“Wherefore, plaintiff prays judgment against the defendants for the sum of $300 as his actual damages, together with six per cent from the date of said conversion, and the further sum of $2000 as his exemplary or punitive damages and for costs of suit.”
Count two on which the other part "of the verdict rested is substantially the same as count four. It, however, makes no allusion to the poker game or that the
We think as against the objection that the petition (as to the second count) is insufficient to support the verdict, that this petition is good. There can be no question but that it is good as to the charge of wrongfully securing the certificate of deposit and getting it cashed, which would entitle the plaintiff, Summers, to a verdict for the actual damages, to-wit, the amount of the check. The only question which could be raised upon the second count of the petition at all is as to whether it states facts sufficient to warrant the assessment of exemplary damages. Charge is made here that these two persons had conspired and confederated together for the very purpose of securing this certificate of deposit from this plaintiff and converting it into money and thereby depriving him of it, and if this were true, and they carried out their scheme as it is alleged they did, the parties would have practically been guilty of larceny, so that the principle involved in this case is the same as if a direct charge of larceny had been made. We understand the rule to be in this state that before exemplary damages can be awarded, the act complained of must be unlawful, and accompanied by an intentional wrong. [Goetz v. Ambs, 27 Mo. 26; Carson v. Smith, 133 Mo. 606, 34 S. W. 855; State v. Jungling, 116 Mo. 162, 22 S. W. 688; Ickenroth v. Transit Co., 102 Mo. App. l. c. 666, 77 S. W. 162; Gardner v. Railroad, 117 Mo. App. 138, 93 S. W. 917; Blackmer v. Railway Co., 101 Mo. App. 557, 73 S. W. 913; Reamer v. Morrison Express Co., 93 Mo. App. 501, 67 S. W. 718; Gildersleeve v. Overstaltz, 90 Mo. App. 532.]
The policy of the law which authorizes the assessment of punitive damages in any case rests upon the idea that the wrongdoer deserves some punishment in. addition to being required to make restitution, and to justify the award of such damages two things must occur: (1) The act complained of must be wrong and
In all cases of larceny the knowledge that the act is wrong and the intent to injure by depriving the owner of his property must exist, for, without these elements, there can be no larceny, but when these elements concur, and the property is taken by the wrongdoer and converted to his OAvn use, no reason can be assigned why exemplary damages may not be awarded. It will not do to say that the plaintiff will be fully compensated by payment to him of the value of his property for if that principle were to govern exemplary damages would be eliminated. The authorities all agree that exemplary damages cannot be awarded unless actual damages are also suffered, but actual damages must be susceptible of ascertainment and susceptible of being measured by some legal standard to authorize recovery therefor.
Neither will it do to say that the offender can be punished by the enforcement of the criminal laws of the state, for Avliich the enforcement of the criminal law the court has no concern in the trial of a civil action for damages, and whatever punishment may be assessed through the medium of exemplary damages in a civil action goes to the plaintiff in the suit and not to the state.
There are, however, respectable authorities which hold that if the act is a crime, punitive damages cannot be assessed. Also, in cases of tort, if the actual damages can be accurately measured, as, for instance, by assessing the value of the property injured, destroyed or converted, that the actual value furnishes the entire measure of damages, and that exemplary damages cannot be awarded in such case, but as we understand the principles underlying the rule which authorizes the assessment of exemplary damages we do not think either the fact that the act complained of is 'a crime, or the
It is contended that the damages assessed are excessive as to the finding on the second count of the petition. The award of exemplary damages never goes as a matter of right, but is discretionary with the jury in all cases, and the amount to be assessed when awarded is also discretionary. In assessing such damages, the jury should consider the aggravating and mitigating circumstances, and may refuse to award any exemplary damages; but if, in their judgment, such damages should be given, then the amount thereof is left to their discretion, subject, however, to the approval of the court, and if, in the judgment of the court, the damages awarded are too much, a remittitur may be required or a new trial awarded. If it be true, as plaintiff’s evidence tends to prove, that this plaintiff was induced by the defendant Fetters to go with him to another town and plaintiff was there kept intoxicated by these defendants until he became unable to protect himself, and they then took advantage of his condition and stole from him drafts to the value of $800, we are not prepared to say that the assessment of $1500 additional as punishment for the wrong perpetrated under such circumstances ivas excessive.
It is contended by plaintiffs in error that there was a misjoinder of causes in this case. As to this objection it is sufficient to say that defendants demurred to the petition and their demurrer was overruled, whereupon they answered and have therefore waived this question as they did all others that were raised by the demurrer. The only questions that can be raised after verdict
It is also contended that the court committed error in permitting the plaintiff to introduce witnesses to sbowr his good reputation for truth and veracity and general honesty. The basis for this testimony was the fact that at the trial defendants had sought to show that plaintiff was a gambler, had been arrested and prosecuted for crime, and that he had made statements out of court contrary to statements on the witness stand. This attack upon the veracity of plaintiff justified the evidence complained of. [Browning v. Railway Co., 118 Mo. App, 449, 459, 94 S. W. 315.]
Before trial Keller’s deposition was taken and he refused to answTer questions touching the manner of his receiving the drafts in controversy on the ground that his answ'er might form the basis of a criminal prosecution against him. At the trial Keller testified that he had cashed the drafts as a matter of accommodation to plaintiff; that he received the drafts from plaintiff in that way, and testified fully as to what occurred between him and plaintiff, and, in rebuttal, the deposition which had been previously taken, and in which he had refused to tell how he had secured the drafts for the reason that it might subject him to a criminal prosecution, avus offered for the purpose of contradicting the testimony which he had given-in this trial. No error was committed in this respect. [Tennent Shoe Co. v. Birdseye, 105 Mo. App. l. c. 702, 78 S. W. 1036.]
It is next contended that a demurrer to' the testimony should have been sustained for the reason that there is no evidence on which the jury Avould be warranted in finding that a conspiracy existed between, these parties. An examination of this testimony dis
The defendant, Fetters, though present at the trial, did no testify in the case. Plaintiff had testified that Fetters had induced him to go to Duenweg, got him drunk and engaged with him in a game of poker with Keller, and afterwards these certificates turned up in the hands of Keller, and that Keller afterwards cashed
To our mind this evidence was ample to submit to the jury under the second count the question of a conspiracy, or, in any event, the question as to whether defendants acted jointly in the wrongful purpose to secure these certificates of deposit from plaintiff and deprive him thereof. This was all that was required. Even though there had been no previous understanding or agreement between defendants that they would inveigle plaintiff into a game of poker while he was intoxicated and steal from him these certificates of deposit, we think that if as a matter of fact, they did co-operate in accomplishing this purpose they were jointly liable, and this contention must be ruled against the plaintiffs in error.
Contention is also made that error was committed in the instructions given by the court. There were ten given on behalf of the plaintiff, seven on behalf of defendants, and thirteen others asked by defendants were refused. These instructions are too long to be incorporated in this opinion, but we have gone over them carefully and in their general scope they follow the allegations of the petition and the evidence, and place the burden.of proof upon the plaintiff, and also tell the jury that the question of allowing exemplary damages was one that is discretionary with them, and that they could not be allowed unless the act complained of was an in
Complaint is also made that the court erred in not granting a new trial by reason of alleged newly discovered evidence on the part of defendants. We find attached to the motion for a new trial the affidavit of a witness that he knew certain facts which would have been material had they been offered at the time of the trial, but there is an entire absence of any showing that defendants had used any diligence to discover these facts, or that they might not have proven the same facts by other witnesses; lienee, there was no error in overruling the motion on that ground.
In attacking the judgment on the fourth count the defendants contend that the demurrer to the testimony should have been sustained as to it and that instruction No. 2 was erroneous. In support of the contention that the demurrer to the evidence should have been sustained as to the fourth count it is insisted that this count charges that the certificates of deposit were lost in a game of poker, and that the proof, does not sustain that charge. The portion of the petition upon which, this contention is based is as follows (after charging a conspiracy on the part of defendants-to wrongfully secure his property).
“In pursuance of said conspiracy, the defendants intentionally and maliciously induced plaintiff to drink what plaintiff thought was whiskey, an intoxicating liquor, and. which was either intoxicating liquor or poison, and after plaintiff had, at the solicitation of defendants, so drunk said intoxicating mixture, the defendants maliciously induced plaintiff to enter into what they termed a game of p.oker at the defendant, Keller’s- saloon at Duenweg, Missouri, and pursuant to said conspiracy, and in said game and by said gambling device, said de
Defendants’ right to a reversal of the judgment on the fourth count of the petition in this case depends upon the determination of what cause of action is stated by the plaintiff in said count. The trial court gave an instruction for plaintiff — No.2—which specifically authorized him to recover if the jury should find that the $300 certificate of deposit was stolen from him. If the cause of action stated in the fourth count is that the certificate of deposit was larcenously taken and appropriated, then there was no material error; if, on the contrary, the cause of action therein stated is that the $300 certificate of deposit was obtained at a game of poker by the defendants, by a gambling device, then material error was committed by the trial court. If, as a matter of fact, this count of the petition charges that the money was lost at a game of poker, of course it could be recovered under section 3424, Revised Statutes-1899, which provides that “any person who shall lose money or property at any game or gambling device may recover the same by civil action.” This statute was an innovation upon the common law which was that parties engaged in such a game of chance stood in pari delicti, and money or property lost in such game and paid over could not be recovered from the winner. It was also held at common law that if one of the parties to the game was made drunk or stupefied by the other drugging him with poison or whiskey so that he became unconscious, and if while in that condition he was deprived of his money or property by the other, a recovery of the property could be had, more especially if the further allegation was made that the drugs were administered for that purpose.
By examining the fourth count of the petition, it is apparent that it contains much prefatory matter.
The allegations of the petition are clearly within the language of section 3424, Revised Statutes 1899, and.
The plaintiff testified that he did not bet the certificate of deposit in a game of poker, and that he exhibited neither of the certificates during the time he was engaged in such a game. It is to be further observed that the instruction given by the court would have been a proper one under proper issues, the objection to it being that it allows a recovery on a cause of action not stated in the fourth count of the petition. It has been often stated that in the trial of civil cases a fundamental rule of practice is that the office of pleading is to formulate issues; and while rules of practice require
The rule applied to this case is that the plaintiff has pleaded one cause of action, and the court by its instructions has allowed him to recover on another cause of action. This was error. [Mark v. Williams Cooperage Co., 204 Mo. 242, 103 S. W. 20; Henry County v. Citizens’ Bank, 208 Mo. 209, 106 S. W. 622.]
We hold that instruction No. 2, broadening the issues made by the pleadings and allowing a recovery for larceny, was material error.
Further, under the evidence and pleadings in this case, the plaintiff was not free from turpitude. Instead of shunning temptation, he sought it; he voluntarily entered a saloon and gambling den in order to gratify his passion for drink and his criminal passion for gambling. While the damages in this case against defendants are large, they are not excessive if the issue of grand larceny properly presented under the rules and statutes of pleading and-practice; but no matter how righteous the verdict, the defendants have a right to demand that they should not be charged with obtaining propert3r by a gambling device, and then found guilty of larceny. Such a proceeding is in the very teeth of section 798 of our statutes which provides that “where the allegation of a cause of action or defense to which the proof is directed is unproved, not only in some particular or particulars only, but iu the- entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof.
For these reasons the judgment as to the fourth count for the sum of $314.50 actual damages and $562.50 as punitive damages is reversed and the cause
Dissenting Opinion
DISSENTING OPINION.
I cannot concur in reversing that part of the judgment in this case based upon the finding of the jury upon the fourth count, but think that the judgment should be affirmed in toto. I do not agree with my brethren that the words “in said game and by said gambling device” used in the fourth count of the - petition state the “nucleus” of plaintiff’s cause of action as to the three hundred dollars’ certificate, and precludes all proof of the manner in which the certificate was obtained except that it was won as a wager in the game of poker. As I view it the “nucleus” of the cause of action was the fact that defendants conspired together to obtain this certificate of deposit wrongfully and without consideration’, and that they did so obtain it. If I am right in this then it is clear that the cause of action alleged could be proven without proving that the property was obtained by winning it at a game of poker. If by the use of the words “in said game and by said gambling device” in the petition, defendants understood that they would only be required to meet proof that the property was wou at a game of poker, and they were in any way misled or injured by proof that the certificate was stolen from plaintiff’s pocket, this could, at most, have been but a variance between the pleading and the proof which defendants could only take advantage of as provided bv the statute and did not amount to a failure of proof.
If the position of the majority is correct on this point in this case then if a party should sue to recover money taken from him by a robber, and should allege that the robber met him on the highway, threw him down and tied him, then took the money from his pocket, and the proof should show that instead of obtaining the money in that way the robber held him up at the point of a pistol and required him to hand the money over, this would be a failure of proof, and it would be no more ludicrous to hold in that case that the “nucleus” of the cause of action was the charge that the robber threw him down and tied him than to hold in this case, as the majority have done, that the “nucleus” of the cause of action is the charge that the property was won in a game of poker. To my mind such a position is absurd. The cause of action in either case'is obtaining the property wrongfully and to hold that a variance between the pleading and the proof as to the manner in which it was obtained is fatal in the absence of any showing that the defendants were misled, or in any way injured, is, in my opinion, in violation of the plain provisions of our statute relating to variance, sections 1846 and 1847, Revised Statutes 1909, and is giving to a bare technicality a force unwarranted, and compels the court to become an instrument to assist the wrongdoer.
The reason of the rule is that the jury have nothing to do with the various counts. The purpose which these counts serve in a trial is to frame issues to be supported by testimony and then submitted to the jury by instructions. The court, in the instructions, tells the jury what facts must be found to be true in order to find for plaintiff or defendant as the case may be, and when the jury returns a verdict such a verdict is the finding of the jury on the issues of fact submitted to them by the instructions, and when the verdict and the instructions together show what facts the jury found, then it is the duty of the court to enter such judgment as the facts found require if there is any count in the petition that is sufficient to support it. Applying this rule to this case there can be no escape from the conclusion. that the instruction properly submitted to the jury the is
The sole duty of the jury is to pass upon the issues of fact, and the sole purpose of the instructions is to define to the jury what issues of fact they are to pass upon, and to give them such information as will guide them to a correct conclusion upon those issues. When this has been done, and a conclusion of the jury upon the issues of fact has been correctly reached, and this is disclosed by their verdict, then both the instructions and the verdict have served their purpose. The entering of the proper judgment is a duty devolving npon the court. In the performance of that duty the court should look to the instructions and the verdict to ascertain what facts have been found and when that, is determined then the duty to enter such judgment as the facts found require, under the pleadings, is imperative, and any technical defect, clerical error, or mis
Under the opinion of the majority a retrial may be had on the same pleadings and the same evidence and the same instructions, except that the word fourth should, be erased in the instruction and the word fifth inserted, and then if the same verdict is returned it will stand. To send this case back for a new trial for such a reason is to my mind judicial folly. Cases should not be reversed though error be committed unless such error operated'to the prejudice of appellant on the trial of the case upon its merits.- [Statute 1909, sec. 2082; School District v. Holmes, 53 Mo. App. 487; Bradford v. Floyd, 80 Mo. 207, 209; Boggess v. Street Railway, 118 Mo. 328, 23 S. W. 159; Gardner v. Railroad, 135 Mo. 90, 100, 36 S. W. 214; Cartwright v. Culver, 74 Mo. 129; Foster v. The Railroad, 115 Mo. 165, 21 S. W. 916.] The writer of the majority opinion has not noticed this point because the attorney for the defendant in error has not called our attention to it in his brief. If the point were being made by plaintiff in error we could well refuse to consider it if the record should show that the trial court’s attention was not called to it, but the position that an appellate court will not consider a point fairly appearing upon the record in that court, merely because counsel has overlooked it in his brief cannot be justified from any point of view. The books are full
The trial court seems to have taken the view that it was immaterial as to which count was mentioned in the verdict of the jury for a judgment was entered for the total amount found by the jury as to both certificates of deposit.
It cannot be said in this case that any error that may have been committed operated to the prejudice of the plaintiffs in error upon the merits of their case. The issues of fact were, in my judgment, fairly submitted to the jury and to reverse that part of this judgment upon a bare technicality, as is done by the opinion of the majority, is in my judgment in violation of section 2082, Revised Statutes 1909, which forbids us to reverse a case unless it appears that error was- committed which materially affected the merits of the action, and is also in direct conflict with Cartwright v. Culver, 74 Mo. 179, where, in commenting upon the policy of reversing a case and sending it back for a new trial where the error worked no substantial injury this language was used: “If the verdict and judgment were in every other respect warranted and the cause were for such an error as is here complained of remanded what substantial benefit could the defendant have derived from a reversal of the judgment? .To reverse a judgment for such an error would be to disregard section 3775 of the statute which reads as follows:
“ ‘The Supreme Court shall not reverse a judgment of any court unless it shall believe that error was committed by such court against the appellant, or plaintiff in error, and materially affecting the merits of the action.’ ”
And also in direct conflict with Foster v. Railroad, •supra, wherein it is said; “Error cannot generally be
For the reasons above cited I request that this case be certified to the Supreme Court.