Hoffman v. Gill

BLAND, P. J., (after stating the facts as above).— 1. Defendant insists that as the petition does not allege that the defendant falsely, fraudulently and hnowingly made the statements, etc., it is wholly insufficient to support a judgment. The petition charges that “the defendant corruptly and fraudulently, with the intent to cheat and defraud the plaintiff,” etc. This allegation is sufficient in a pleading to charge fraud in any court. 2. Defendant asked, but the court refused, the following; instruction: “If the jury believe from the evidence that plaintiff loaned one Finnegan $507 and took as collateral security some diamonds, and that plaintiff asked defendant what was the value of said diamonds; and that ii you believe from the evidence that the opinion given at said time by defendant was his honest belief as to the actual value of said diamonds, believing same to be true, and that if you believe and find that defendant did not enter into a conspiracy with said Finnegan, and — 325 — that defendant had no knowledge of the alleged loan between plaintiff and Finnegan, and was acting in the usual course of business and wholly without reward, then the plaintiff can not recover, and your verdict must be for the defendant.” There is no evidence in the record to support this instruction. Grill testified that he was aware of the disposition Finnegan was to malee of the jewelry, when he pretended to examine it and estimate its value for plaintiff. The jewelry was his, the disposition which was to be made of it was not “in the usual course of business, ” but-was to dispose of it by cheat and fraud and for a sum largely in excess of its value. 3. This is not a case for punitive damages; such damages are not recoverable except in cases where malice, violence or passion and wanton recklessness is shown. Kennedy v. Railroad, 36 Mo. 351; Nelson v. Wallace, 48 Mo. App. 193; Lewis v. Jannoupuolo, 70 Mo. App. 325; Dorsey v. Railway, 83 Mo. App. 528; Yowell v. Vaughn, 85 Mo. App. 206. It is therefore considered that unless the plaintiff will, within ten days from the filing of this opinion, enter a remittitur of $100, the judgment will be reversed and the cause remanded for retrial, but if the remittitur be entered within ten days, it is considered that the judgment shall stand as affirmed for the sum of $200. Reyburn, J., concurs; Goode, J., dissents from paragraph 3.