Bowles Live Stock Commission Co. v. Hunter

SMITH, P. J. — This is an action by attachment. The affidavit therefor alleged nine of the statutory grounds which [336] were put in issue by tbe plea in abatement. There was a trial to a jury which resulted in judgment for defendant and plaintiff appealed. The errors assigned by the plaintiff for the reversal of the judgment relate to the action of the trial court in the giving and refusal of instructions. The defendant’s first instruction told the jury “that the burden of proving the existence of one of the grounds alleged is upon the plaintiff, and proof that plaintiff had good reason to believe, and did believe, in the existence of one or moi'e of the grounds of attachment alleged by him is not sufficient, but it must be proved actually to the satisfaction of the jury that defendant was not a resident of the State of Missouri, that the debt sued for was fraudulently contracted on- the part of the debtor, or that -the defendant had done or was about to do one of the other acts alleged.” We can not approve this instruction for the reason that it is at variance with the well-established rule which prevails in this State to the effect that in civil cases the rights of the parties are to be determined by the preponderance of the evidence. It is sufficient for the party having the affirmative of the issue to a verdict that the facts and circumstances tending to prove it outweigh the evidence to’ the contrary. In strictly legal actions, as that here, fraud like any other fact may be established by a mere preponderance of the evidence, and where it is an issue it must be submitted to the jury wherever it is inferable from all the facts and circumstances which the evidence tends to establish. Marshall v. Ins. Co., 43 Mo. 586; Edwards v. Knapp, 97 Mo. 432; Grocery Co. v. Sanders, 74 Mo. App. 657. Contrary to these principles, the instruction under consideration told the jury that to entitle the plaintiff to recover it must be “proved actually” to the satisfaction of the jury, that the debt sued for was fraudulently contracted by defendant, and thereby.made the verdict of the jury depend not on the preponderance of the evidence but upon a different degree of proof. While we are in doubt as to exactly what was meant by the terms of the [337] instruction referred to, we do not doubt that such terms when employed in an instruction are calculated to confuse and mislead the jury, and for that reason if for no other an instruction containing such terms should not be given. This instruction is objectionable for the further reason that it remitted the jury to the attachment affidavit to ascertain the issues which it was called upon to determine. Such an instruction has several times been disapproved. Remmler v. Shenuit, 15 Mo. App. 192; Proctor v. Loomis, 35 Mo. App. 482; McGinnis v. Railroad, 21 Mo. App. 399. The defendant’s fourth instruction told the jury inter alia that if the property was sold or assigned by defendant, “in good faith and for the purpose of paying or securing his tona fide debts” then such sale or assignment Avas not made to hinder, delay or defraud his creditors. We are at a loss to know Avhat an ordinary jury, composed of farmers and others of average intelligence, would understand by an expression like that just quoted Avhen found in an instruction given for its guidance. While in the terminology of legal science these terms haAre a well-defined and fixed meaning Avith which courts and laAvyers are familiar, yet such terms are neither generally used nor understood by the laity. Courts in giving instructions for the guidance of juries should employ plain, unambiguous English, to the end that their pathway of duty be made so plain that “a wayfaring man, though a fool, may not err therein.” In Dry Goods Co. v. Schooley, 66 Mo. App. loc. cit. 415, in condemning an instruction containing terms similar to those employed in that now under review, it was said: ‘’‘One reason Avhy it should not have been given is, that neither it nor any other instruction (as is the case here) defined the terms” therein employed. The jury was not presumed to know the meaning of such terms, and as to that it was left to its own conjecture. The giving of this instruction was therefore improper. [338] We are unable to discover any reason for the refusal of the plaintiff’s eighth instruction which declared that “every man is presumed to intend the natural and necessary consequences of his own act. The intent may be to hinder or delay creditors, as well as to defraud them, and either is sufficient under the statute. And if you believe from the evidence that the object or effect of the execution of the chattel mortgage in evidence from defendant to James Ewart and A. Z. Hunter was to defraud or hinder or delay plaintiff or any of defendant’s creditors, then you should find for the plaintiff.” It is but the repetition of the expression of a rule which has been approved by the reviewing courts in other like cases. In State v. O’Neill, 151 Mo. loc. cit. 85, it was said: “In this connection it should bo borne in mind that subdivisions Y and 8 et seq. of section 521 of the attachment act, Revised Statutes 1889, do not require that there should be a fraudulent intent to Linder, delay, or defraud’ in making-the conveyance; it is the legal effect of that conveyance which the law looks to; it suffices, therefore, that the result of the conveyance is either of those three forbidden things. As is pertinently observed by RiohaRdsoN, J., in Reed v. Pelletier, 28 Mo. loc. cit. 177: 'The term fraud as understood in the statute concerning fraudulent conveyances, has the same meaning in the attachment law, and it is not necessary to show that the act originated in any meditated design to commit a positive fraud or to injure other persons. There are many acts not the result of intentional fraud which the law, nevertheless, from their tendency to deceive other persons, or from their injurious consequences to the public, prohibits as being within the same reason and mischief as actual fraud. And whatever, by flte judgment of the law, is denounced as fraudulent must be regarded in the same light in reference to an act or transaction which is made the ground of an attachment; and if the act charged to have been committed is fraudulent, actual or constructive, it will be inferred that the party intended its nat [339] ural and ordinary results should follow. There is no difference in principle between fraud in fact and fraud in law. Where the direct and inevitable consequence of an act is to delay, hinder or defraud creditors, the presumption at once conclusively arises that such illegal object furnished one of the motives for doing it, and it is thus upon this ground held to be fraudulent.” Since the judgment will be reversed, it is pertinent to say that should there be another trial of the cause, and the evidence adduced should be like that in the present record, the court could with propriety give some such instruction as that given by it on its own motion in Hardware Co. v. Riddle, 84 Mo. App. loc. cit. 280. See, also, McDonald v. Hoover, 142 Mo. 484; Bank v. Bowers, 134 Mo. 432; Farwell & Co. v. Meyer, 67 Mo. App. 566. The plaintiff was entitled to a submission of the case, had he requested it, on the theory outlined in the instruction just referred to. The judgment is reversed and cause remanded. All concur.