Summary
In Meriwether v. Lumbard, Mo.App., 246 S.W.2d 363, this court held that proof of fraud by concealment would not support an allegation of fraud by false representation.
Summary of this case from Kavadas v. St. Louis Sw. Ry. Co.Opinion
No. 28300.
February 19, 1952.
Silas E. Garner, St. Louis, for appellants.
James R. Anderson, of St. Louis, for respondent.
Action by plaintiff (respondent) to recover damages resulting from her alleged wrongful eviction from an apartment she occupied as the month to month tenant of defendants (appellants). A jury trial resulted in a verdict and judgment for plaintiff in the sum of $35.04 actual and $1250 punitive damages. Their motion for new trial having been overruled, the defendants have duly appealed.
The petition contains the usual and necessary allegations required to state a cause of action in fraud and deceit. The substance of plaintiff's complaint is that the defendants served notices upon her, terminating her tenancy, stating therein that they, in good faith, sought to recover possession of said apartment for the immediate and personal use and occupancy as housing accommodations by their son, Lewis Lumbard, Jr.; that said statement was false, fraudulent and deceitful, was known by defendants to be false at the time it was made, and was designed to obtain the wrongful eviction of plaintiff, who, relying thereon and believing same to be true, surrendered possession of said premises.
It was alleged and proved that the premises were located in the St. Louis defense rental area and subject to laws governing housing accommodations in said locality.
Plaintiff did not allege that defendants obtained a certificate from the area rent director authorizing them to evict plaintiff for the reasons stated in the notice. However, the statement in the notice was obviously an attempt to convey to plaintiff the information that defendants were entitled to obtain such certificate under the terms of the Federal Law which provided in part: "No action or proceeding to recover possession of any controlled housing accommodations * * * shall be maintainable by any landlord * * * unless (2) the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations * * * by a member or members of his immediate family * * *." The Housing and Rent Act of 1947, Act of June 30, 1947, 61 U.S.Sts. at Large, 193, in Sec. 209(a), as amended in subdivision (2) by Act of March 30, 1948, Sec. 204(a), 62 U.S.Sts. at Large, 98, 50 U.S.C.A.Appendix, § 1899. The 1948 Act in Sec. 204(e) also adds a provision requiring the landlord to notify the tenant of the purpose for which he desires to recover possession. 62 U.S.Sts. at Large, 99.
There is no contention on plaintiff's part that the Federal Act or any law of this state provides a cause of action for wrongful eviction. She argues that such a cause of action exists at common law. There has been a considerable diversity of opinion on this question in other states, but the Missouri Supreme Court has recently adopted the view that there is such a common law action. Bedell v. Daugherty, Mo. Sup., 242 S.W.2d 572. In the Bedell case the petition alleged that the false representations were made to plaintiff and also to the area rental director in obtaining a certificate authorizing eviction. The court held that either was sufficient to give rise to the cause of action. The opinion cites with approval the following cases holding that it is sufficient for the landlord to make the false representation as to intended use, in the written notice to vacate, although no eviction certificate is obtained: Behrendt v. Rassmussen, Minn., 47 N.W.2d 779; Kilroy v. Barron, 326 Mass. 464, 95 N.E.2d 190; Berenson v. Mahler, 326 Mass. 305, 93 N.E.2d 740, and Trepanier v. Hujber, 134 Conn. 24, 54 A.2d 275. See also the recent case of Crawford v. Pituch, 368 Pa. 489, 84 A.2d 204, stating the same rule. This was the situation alleged in the case at bar and we therefore hold that plaintiff's petition states a cause of action.
Defendants strongly contend that their motion to dismiss, filed at the close of all the evidence, should have been sustained because of the failure of plaintiff's evidence to make a submissible case. We therefore deem it advisable to state the facts in some detail. Actually, there is no conflict in the testimony as it pertains to the material facts in issue.
In June, 1948, defendants, after demand had been made that they give possession of the premises they were renting, purchased the residential property in question. It was a duplex consisting of identical apartments on two floors, each with four rooms and a bath.
Defendant Lewis E. Lumbard testified that he and his wife intended to occupy the apartment on the ground floor and their son, Lewis Lumbard, Jr., was to occupy the other apartment, which was then being rented by plaintiff; that at the time of purchase the son was in school at Ohio University, but was expected to complete his work in August and would then return to St. Louis, where he hoped to be employed to teach at Vashon High School. He, planning to marry soon, agreed with defendants to take this apartment, and while the details were not disclosed this agreement entered into the purchase setup. Defendants thereafter signed the written notice which was served upon plaintiff on June 18, 1948, requiring that she deliver to them the possession of the apartment on August 31. The notice recited that it was given under the provisions of the Housing Rental Act of 1948 and by which defendants were seeking in good faith, to recover possession for the immediate personal use and occupancy of their son. This defendant further testified that he did not know plaintiff at that time, although he probably had seen her when he looked at the premises before he made the purchase; that his son returned to St. Louis about September 1 and on the third or fourth day of September received notice of an appointment to teach at Southern University, Baton Rouge, Louisiana. Apparently further negotiations were required and his employment was finally settled, upon receipt of a telegram from the university authorities during the afternoon of September 6 and he left for Baton Rouge on September 7. The father testified that he did not know of any application having been made by his son for a position outside of St. Louis until receipt of aforesaid notice of his employment. It appears further from the father's testimony that Lewis Lumbard, Jr., had continued in this employment until the date of trial, but had maintained his legal residence in St. Louis.
Plaintiff testified that she moved to the apartment in question in August, 1940, and vacated the same September 7, 1948, during which time she paid a rental of $22.50 per month; that she is a widow with three children living at home, the youngest being 13 years of age and the oldest 23; that she received a notice to vacate on June 15, 1948, and a supplemental notice on June 18, both of which were signed by defendants. About a month after receipt of the notice, she had a conversation with defendant Lewis Lumbard and inquired whether she could rent the apartment from his son, but was advised that she could not because defendant's son and daughter needed the entire upstairs; that thereafter said defendant called her on two occasions inquiring whether she would surrender possession as demanded; that during the last week in August she was successful in renting another apartment at $50 a month, but was unable to secure a moving van until the seventh day of September, at which time she moved to her new quarters. It also appeared from the plaintiff's testimony that she received two letters from the defendant, Lewis Lumbard, relating to the matter of obtaining possession at the time required and as to additional rental when it appeared necessary for her to hold over for an extra week; that the cost of moving was $35.04.
Plaintiff offered the testimony of Wiley Williams, who related that he had rented the apartment vacated by plaintiff, from Lewis Lumbard, Jr., on September 7 and moved to same September 11, 1948. He said he had been looking for a place and stopped at this address on September 4 because it appeared that the people in the first floor apartment were moving; that he found Lewis Lumbard, Jr., there, who upon inquiry stated that he had the apartment upstairs, but that it appeared that he had to go away on a job teaching school and he might let the witness have one or two rooms, but would let him know later; that on September 7 he called and told the witness that he could have three of the rooms, but that he wanted the other one to live in because he didn't know how long he would be down in Louisiana; that the room reserved was furnished by defendants' son with an iron bed, studio cot, radio, table, some suitcases and a trunk; that the rental was $35.50 per month, which has always been paid directly to Lewis Lumbard, Jr., and that none of the rental has been paid to or left with either of the defendants. The witness testified that during his occupancy his landlord had returned to St. Louis about three times a year and would stay several days each trip; that he did no cooking there but on every such occasion he had slept in the room reserved, except one or two nights when he visited an aunt who lived nearby. There were no children in the Williams family and the rooms were occupied by the witness and his wife.
Durward Brown testified on plaintiff's behalf that he was area rent attorney with the office of the Housing Expediter and, over the objection of defendants, was permitted to state that the maximum rent for this apartment was $22.50 per month.
The telegram to Lewis Lumbard, Jr., from Southern University, received the afternoon of September 6, 1948, and confirming final arrangements for his employment there was offered in evidence by plaintiff.
Was this evidence sufficient to make a submissible case for plaintiff upon the issues raised by the pleadings? In considering the sufficiency of the evidence we must view it in the light most favorable to plaintiff. We shall consider the evidence offered on behalf of plaintiff as true and give her the benefit of all reasonable inferences that may be drawn from same. Defendants' evidence must be disregarded unless it will tend to strengthen plaintiff's case. Sollenberger v. Kansas City Public Service Co., 356 Mo. 454, 202 S.W.2d 25; Brawley v. Harwell, Mo.App., 236 S.W.2d 419. However, we must not overlook the requirement that plaintiff has the burden of proving the alleged fraud. It is frequently stated that fraud must be proved by clear and convincing evidence, but we should bear in mind that common experience has taught us that fraud can rarely be proved by direct evidence. It may be proved by circumstantial evidence, but a mere suspicion is not sufficient, and where facts are as consistent with honesty as with fraud the transaction will be held as honest. On this general subject see Tobin v. Wood, Mo.Sup., 159 S.W.2d 287; Lowther v. Hays, Mo.Sup., 225 S.W.2d 708; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Maupin v. Provident Life Accident Ins. Co., Mo.App., 75 S.W.2d 593, and Matz v. Miami Club Restaurant, Mo.App., 108 S.W.2d 975. Further, we should not overlook the rule that in dealings between parent and child, where the right of third parties are involved, their acts should be closely scrutinized. Moberly v. Watson, 340 Mo. 820, 102 S.W.2d 886.
The essential elements of actionable fraud are frequently defined in the authorities as (1) a representation, (2) its falsity, (3) its materiality, (4) knowledge of its falsity on the part of the person making the representation, (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated, (6) ignorance of its falsity on the part of the person to whom the representation is made, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Proof of each of these elements is essential to a submissible case, and conversely, failure to prove any one of them is fatal to a recovery. Maupin v. Provident Life Accident Ins. Co., supra.
Can it be said that the evidence in this case is sufficient to prove that the representation of defendants to plaintiff in June, 1948, concerning their reason for desiring possession of the apartment, was false and known by them at the time to be such? The only evidence that in any way tends to establish plaintiff's case is proof of the fact that defendant's son, although in possession of the apartment, did not physically occupy all of it, but sublet three rooms at a rental in excess of the amount plaintiff was paying. Plaintiff contends that these facts are sufficient to authorize the jury to infer that the representation was false. With this we do not agree.
To support the verdict the jury was compelled to find that a conspiracy existed between defendants and their son to wrongfully evict plaintiff in order to obtain more rent. There is no proof of this conspiracy. Would a finding of such from the evidence presented be a reasonable inference or a mere suspicion? We think the latter.
The evidence offered by plaintiff explained the failure of Lewis Lumbard, Jr., to occupy the whole apartment and his reason for subletting the three rooms to Williams. He retained one room, which was fully furnished and was occupied by him when in St. Louis.
It is true that the financial advantage obtained by the new arrangement would be a reason why a landlord might be tempted to commit a fraud such as charged here. This, however, would not prove the fraud.
There is nothing shown in the conduct of the defendants or their son that is not as consistent with honesty as with fraud and therefore under the authorities heretofore cited the transaction must be held to have been honest.
Plaintiff further argues that there was a duty upon defendants to notify plaintiff as soon as it became apparent that their son would not use the entire apartment as a full time home. She relies upon the case of Reid v. Brown, 49 A.2d 311, 24 N.J.Misc. 350, which holds that the representation is a continuing one and if the situation is changed before the tenant acts upon it there is a duty upon the landlord or reveal the truth. Even if we assume that this decision is sound it would not be applicable here. Final arrangements for the outstate employment of defendants' son were not completed until the afternoon of September 6. By that time plaintiff had already rented another apartment and had definitely engaged a van to move her goods the next day. It would be unreasonable to predicate liability upon failure to make disclosure at that late hour.
Further, plaintiff is bound by her pleading in this regard. She alleged that the representation was false when made and known by defendants to be such. As stated in Williams v. Hall, 207 Mo.App. 432, 230 S.W. 126, 127, "Proof of fraud by concealment would not support a charge of fraud by false representation". If plaintiff desired to base her case upon the silence of defendants when, as she contends, a duty arose to reveal to her the change in the plans of their son, she should have made such allegation in her petition.
What we have said will indicate our view that plaintiff did not make a submissible case. The judgment should therefore be reversed. It is so ordered.
BENNICK, P.J., and ANDERSON, J., concur.