Sullenger v. Cooke Sales & Service Co. , 1983 Mo. LEXIS 333 ( 1983 )

WELLIVER, Judge,

concurring in result.

I concur in the result. I believe it is .unwise and unsound to attribute to the simple act of delivery the controlling weight the principal opinion ascribes to it. What if the tractor had been delivered to a construction site across the line in Pike County, or even across the river in Illinois, before payment was made in Lincoln County? What if it had been delivered, as it was, to .Lincoln County, with payment to be made the first of the following month?

An indispensible element of the tort of fraudulent misrepresentation is proximate injury to the plaintiff. Huttegger v. Davis, 599 S.W.2d 506, 511 (Mo. banc 1980). A plaintiff must plead and prove

that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury and damage.

Id. at 512 (quoting Latta v. Robinson Erection Co., 363 Mo. 47, 59, 248 S.W.2d 569, 576 (banc 1952)) (emphasis added). The test for determining “where the cause of action accrued” within the meaning of the venue statute, § 508.040, RSMo 1978, is to ascertain where the injury and damage occurred. On the facts of this case, the injury and damage that allowed the cause of action to accrue resulted from the payment plaintiff made for the tractor.¹ The county in which the payment was made and in which the concomitant injury and damage occurred happened to be the same county in which delivery was effected.

1 . See Coggin Pontiac, Inc. v. Putnam Auto Sales, 278 So.2d 647, 648-49 (Fla.Dist.Ct.App.1973). The venue statute involved in Coggin provided that actions against corporations could be brought in the county or district “where the cause of action accrued” and thus is identical in relevant respects to § 508.040, RSMo 1978. See Fla.Stat.Ann. § 47.051 (West 1969) (current version at § 47.051 (West Supp. 1982)).