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时 间:2001-12-1 11:30:28

Document 1 of 3.

COMPANY, Respondent.

No. ED74540


998 S.W.2d 828; 1999 Mo. App. LEXIS 1064

August 10, 1999, Filed

PRIOR HISTORY: [**1] Appeal from the Circuit Court of the
City of St. Louis. Honorable Patricia Cohen.


COUNSEL: Alan G. Kimbrell, St. Louis, MO, for appellants.
Ann E. Buckley, St. Louis, MO,for respondent.

JUDGES: Robert E. Crist, Senior Judge. James A. Pudlowski, P
.J., and Clifford H. Ahrens: Concur.


OPINION: [*828] Dong Li and his wife Xiao Mei Zhou,
appealfrom the judgment entered after a jury returned a
verdict for defendant, Metropolitan Life Insurance Co. (
MetLife), ontheir claim for fraud in the sale of life
insurance policies. We affirm.

From 1991 through 1993, MetLife employed Bruno Wu to sell
life insurance policies. In 1991 and 1992, Dong Li, Xiao
MeiZhou, and several other persons purchased "L95" life
insurance policies from MetLife through Wu. In the spring
of1993, certain purchasers complained to MetLife regarding
their insurance purchases from Wu. In a letter to MetLife's
CEO, they asserted that Wu had not followed the appropriate
sale procedures established by Metlife, and that Wu
misrepresented important aspects of the "L95" policy. On May
27, 1993, Dong Li, on behalf of certain purchasers, filed a
Consumer Complaint Report with the Missouri Department [**2
] of Insurance. As part of its response to this complaint,
MetLife included a copy of a letter by Wu in which he
discussed the accusations that he misrepresentedthe policies
to the policy holders. Dong Li, Xiao Mei Zhou, and several
other named plaintiffs brought an action [*829] against
MetLife and Wu, alleging fraud in the sales of the policies.
The petition asserts that Wu made the following false
representations: (1) the company guaranteed that no more
premiums would be charged after being paid for seven years;
(2) after paying premiums for one year, dividends could be
collected on the policies; (3) the cash value of a policy
could be borrowed at an interest rate of one percent; and (4
) the return rate on the "investment would be in two-digit
numbers." After dismissing Wu from thelawsuit, the
plaintiffs filed a third amended petition withthree counts.
The plaintiffs again alleged fraud in the sales of the
policies in the first count. In the second count, certain
plaintiffs alleged libel based on Wu's letterthat MetLife
sent to the Department of Insurance. Dong Li and Xiao Mei
Zhou alleged in the third count that MetLife issued a policy
on the life of their child, and that [**3] they did not
sign or authorize the application for this policy. MetLife
filed a motion for summary judgment on thelibel count,
asserting that a response to an inquiry made by the
Department of Insurance, in the course of an investigation,
was absolutely privileged. The trial court granted Metlife's
motion. The court stated there was no justreason for delay
and that the summary judgment entered on the libel claim was
final for purposes of appeal. This courtaffirmed the trial
court's judgment because the statements contained in Wu's
letter were relevant to the Department of Insurance
investigation and therefore the alleged defamatorystatements
were absolutely privileged. Li v. Metropolitan Life Ins. Co
., 955 S.W.2d 799, 804 (Mo. App. E.D. 1997). Prior to trial,
Dong Li and Xiao Mei Zhou dismissed their third count
regarding their child's policy. As for the fraudcount,
certain plaintiffs dismissed their actions without prejudice
and others dismissed with prejudice. The present case
proceeded to trial on Dong Li's and Xiao Mei Zhou's claim of
fraud in the sales of the policies. The jury returned a
verdict for MetLife. Dong Li and Xiao Mei Zhou (hereafter [*
*4] plaintiffs) appeal, raising two points. To establish
fraud, a plaintiff must prove nine elements: 1)a
representation; 2) its falsity; 3) its materiality; 4) the
speaker's knowledge of its falsity or ignorance of the truth
; 5) the speaker's intent that it should be acted upon;6)
the representee's ignorance of its falsity; 7) the
representee's reliance on its truth; 8) the representee's
right to rely thereon; and 9) the representee's consequent
and proximate injury. Cabinet Distributors, Inc. v. Redmond,
965 S.W.2d 309, 312 (Mo. App. E.D. 1998). Under the theory
of respondeat superior, an employer is liable for damages
attributable to the misconduct of an employee or agent
acting within the course and scope of the employment or
agency. McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo. banc
1995). In their first point on appeal, plaintiffs argue that
the trial court erred in giving the converse instruction
that was offered by MetLife and ????ted to thejury. The
following verdict director was offered by plaintiffs and
????ted to the jury:

Your verdict must be for plaintiffs if you believe: First,
Bruno Wu was operating within the [**5] course and scope of
his employment by defendant at the time of representations,
if any, made by him to the plaintiffs, and,Second, Bruno Wu
either represented to plaintiffs that the rate of return on
premiums paid on L-95 policies was in two digit numbers, or
represented to plaintiffs that the time period required to
pay off an L-95 policy was seven years, or represented to
plaintiffs the interest rate on loans by defendant to
policyholders in amounts up to the amount of premiums paid
was one percent, and Third, the representation was false,
and [*830] Fourth, the defendant [MetLife] knew that it was
false, and Fifth, therepresentation was material to the
purchase by plaintiffs of L-95 policies, and Sixth,
plaintiffs relied on the representation in the making of the
purchases, and in so relying plaintiffs used that degree of
care that would have been reasonable in plaintiffs'
situation, and Seventh, as a direct result of such
representation the plaintiffs were damaged. MetLife objected
to this instruction, arguing that the fourth paragraph
should refer to Bruno Wu rather than MetLife. The trial
court overruled this objection.

The following converse [**6] instruction was offered by
MetLife and ????ted to the jury: Your verdict must be for
defendant Metropolitan Life Insurance Company unless
youbelieve that Bruno Wu made one or more of the
representations ????ted in Instruction Number 7 and that
such representations were false and Bruno Wu knew they were
false, and that in making such representations, Bruno Wu
wasacting in the course and scope of his employment with
defendant Metropolitan Life Insurance Company, and that as
adirect result of such representations the plaintiffs were
damaged. Plaintiffs objected to the portion of this
instruction that states "Bruno Wu knew they were false,"
arguing that the instruction should refer to Metlife's
knowledge that the representations were false. The trial
court overruled this objection. In ruling on plaintiffs'
motion for a new trial, the court found that the converse
instruction was proper and that part of plaintiffs' verdict
director should have been that Bruno Wu knew his
representations were false. The issue is whether under
thecircumstances presented here, the jury should have been
instructed as to MetLife's or Wu's knowledge of the falsity
of the representation. [**7]

Plaintiffs rely on the court's ruling in Essex v. Getty Oil
Co., 661 S.W.2d 544 (Mo. App. 1983), for their contention
that the jury should have been instructed as to MetLife's
knowledge of the falsity of the representation. In Essex,
the plaintiffs brought two actions against Skelly Oil Co. (
Skelly) for fraudulent misrepresentation and unfair
competition. Essex, 661 S.W.2d at 547. The plaintiffs'
claims arose from agreements where the plaintiffs leased
service stations from Skelly. Id. Two "territorial
representatives" told the plaintiff, Arlo Essex, that a
cancellation clause in the lease, that gave either party
theoption to cancel the lease on thirty days notice, was
merely a formality and if he "ran a good operation" he
couldremain in the location until he decided to retire. Id.
at 547-48. According to one of the territorial
representatives,he and others were instructed at the Skelly
training program to overcome resistance prospective lessees
might express about the cancellation clause by saying that
the clause would not be used to terminate a lease unless
good cause by reason of unsatisfactory performance of the
lessee [**8] gave actual grounds to seek another station
operator. Id. at 548. Skelly terminated the plaintiffs'
lease because it wanted to convert the station into a self-
serviceoperation under the name of a Skelly subsidiary. Id.
Skellynever charged that the plaintiffs conducted an
unsatisfactory operation. Id. The jury returned a verdict
for the plaintiffs but the trial court entered judgment
notwithstanding the verdict for Skelly and, in the
alternative, ordered a new trial. Id. at 547. In an argument
to support the judgment notwithstanding the verdict, Skelly
contended that there was insufficient proof that their two
"territorial representatives" knew the statements were false
. Id. at 549. In rejecting Skelly's argument, the court held
that the argument proceeded "on the false assumption that
Skelly may escape liability if the person who made the
communication has been insulated from guilty knowledge." Id.
at 550. The court [*831] then stated that a "recovery can
be had for false representations made to another with the
intent they be communicated to a third person for the
purpose of defrauding the third person. The [**9] fact that
the person used as an agent to convey the representation is
innocent does not relieve the party charged with fraud." Id.
at 550-51. The court held that the circumstances of the
training sessions and the subsequent conduct of Skelly,
replacing one of the plaintiffs with a Skelly subsidiary,
constituted sufficient facts to present the issue to the
jury. Id. at 551. Essex is distinguishable from the present
case. In Essex, "territorial representatives" were
instructed to inform prospective lessees that the lease
would be terminated only for good cause, contrary to the
language of the cancellationclause. Id. at 548. Here, there
is no evidence that MetLifedirected or intended for Wu to
make fraudulent representations regarding the "L95" policy.
Furthermore, we disagree with plaintiffs' contention that it
is fair to "presume" that any representations Wu made about
the policy were based on the training MetLife provided
regarding the policy. The Missouri Supreme Court similarly
distinguishedEssex in Emerick v. Mutual Benefit Life Ins. Co
., 756 S.W.2d 513 (Mo. banc 1988). In Emerick, the [**10]
plaintiff signed an agreement to take over the "Kansas City
agency," of the defendant, Mutual Benefit Life Insurance Co.
(Mutual), after discussions with Mr. Mascotte, a Vice
President of Mutual. Emerick, 756 S.W.2d at 515-16. Problems
arose between the parties regarding the payment of certain
costs. Id. at 516-17. Another Vice President of Mutual
subsequentlyinformed the plaintiff of the "company's
decision" that he should resign or be terminated if he
refused. Id. at 517. The plaintiff brought an action against
Mutual alleging among other things fraud. Id. The jury
returned a verdict for the plaintiff. Id. at 515. One issue
on appeal was theplaintiff's contention that contrary to
Mutual's policy, Mr. Mascotte represented to the plaintiff
he would be the expert in managing the agency. Id. at 520.
The court held there was insufficient proof that Mr.
Mascotte did not intend to treat the plaintiff as an expert.
Id. The court then considered the plaintiff's contention
that because Mr. Mascotte was Mutual's agent it was
irrelevant whether he knew his statements were false. Id.
The plaintiff [**11] argued further that "' [a] recovery can
be had for false representations made to another with the
intent that they becommunicated to a third person for the
purpose of defrauding said third person.'" Id. The court
stated "In Essex v. Getty Oil, 661 S.W.2d 544 (Mo. App. 1983
), the contract at issue had a termination clause, but
defendant's agent represented to plaintiff at the time it
was signed that it would be invoked only for good cause.
There was evidence the company had expressly directed a
misstatement."Id. The court held there was no evidence that
Mutual directed Mr. Mascotte to make the statements at issue
and the plaintiff did not identify any superior who
directed Mr.Mascotte to make such statements. Id. The court
also held that the plaintiff failed to present any evidence
that Mutual did not intend for him to be the expert in
running the agency. Id. The present case is analogous to
Emerick. Here, there was no evidence that MetLife expressly
directed Wu to make misstatements and plaintiffs fail to
identify anysuperior who directed Wu to make any
misstatements. Becausethere is no evidence that MetLife
directed or intended Wu to [**12] make false representations
, the converse instruction properly refers to Wu's rather
than MetLife's knowledge of the falsity of the
representations. See Tietjens v. General Motors Corp., 418 S
.W.2d 75, 79-80 (Mo. 1967). Plaintiffs also rely on Wilson v
. Murch, 354 S.W.2d332 (Mo. App. 1962), in which this court
stated: [*832] The law is well established that, where an
agent, acting within his [or her] actual or apparent
authority, procures the ????ution of a contract for the sale
of property by means of fraud, the principal is liable for
the damage incurred thereby, even though the principal is
innocent of personal participation in the fraud, when [the
principal] accepts and retains benefits which accrue from
the transaction. Wilson, 354 S.W.2d at 337. However, there
is a distinction between when a principal will be held
liable for the act of its agent as opposed to whether a jury
shouldbe instructed on the principal's or agent's knowledge
of the falsity of the representation. For reasons
previously stated, the trial court did not err in ????ting
the converse instruction that refers to Wu's knowledge of
the falsity of [**13] the representations. Plaintiffs also
contend that the verdict director and converse instruction
conflicted, and the effect was to improperly require
plaintiffs to prove that both Wu and MetLife knew that the
representation was false. Plaintiffs failed to specifically
argue at trial that the verdict director and converse
conflicted. Rule 70.03; Emery v. Wal-Mart Stores, Inc., 976
S.W.2d 439, 445 (Mo. banc 1998). The converse properly
instructed as to Wu's knowledge. Plaintiffs' burden
regarding MetLife occurred because of the erroneous verdict
director offered by plaintiffs. See Union Electric Co. v.
Brown, 783 S.W.2d 409, 411 (Mo. App. 1989). Plaintiffs'
first point is denied. In their second point, plaintiffs
argue that the trial court abused its discretion in
sustaining MetLife's objection to plaintiffs' questioning
ofDong Li regarding the application for their child's policy
and an authorization for the bank to deduct premiums for
thepolicy. We review a trial court's ruling excluding
evidencefor abuse of discretion. Howe v. ALD Services, Inc.,
941 S.W.2d 645, 654 (Mo. App. E.D. 1997). Review of the
record reveals that [**14] the trial court did not abuse its
discretion. No error of law appears and an extended written
opinion for this point would have no precedential value.
Plaintiffs' second point is denied. Rule 84.16(b). The
judgment of the trial court is affirmed. Robert E. Crist,
Senior Judge James A. Pudlowski, P.J., and Clifford H.
Ahrens: Concur.
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