Opinion
No. 27806.
April 18, 1950. Rehearing Denied May 19, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, WILLIAM H. KILLOREN, J.
Donald Gunn, St. Louis, for appellant.
David W. Strauss, St. Louis, and Gleick Strauss, St. Louis, of counsel, for respondents.
This is an action for the balance allegedly due upon an oral contract for the transportation of 356,720 pounds of bananas from New Orleans, Louisiana, to St. Louis, Missouri. Upon a trial to a jury a verdict was returned in favor of plaintiffs, and against defendant, for the sum of $5,101.60. Judgment was entered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
Plaintiffs were located at Chalmette, Louisiana, where they were engaged in the shrimp, frozen food, and vegetable business. Most of their shipments to their customers were by rail, but they nevertheless maintained a fleet of refrigerated trucks for the delivery of commodities to customers who might need to be served in advance of the time required by rail. Only on rare occasions did they use their trucks for purposes other than their own personal business. Sometimes they might accommodate another shrimp dealer (as he would do for them) in the case of a breakdown or accident of some sort, but they were in no sense engaged in the business of furnishing transportation for hire.
Defendant was located in St. Louis, where he was engaged in the banana business.
The contract in question was entered into on May 24, 1946, and all of plaintiffs' services to defendant were rendered between that date and the following May 29th.
Defendant's bananas were awaiting shipment in New Orleans, but could not be brought to St. Louis by rail because of a railroad strike which was then in progress. Defendant thereupon contacted plaintiffs in regard to the use of their own trucks or trucks which plaintiffs might procure from other shrimp and produce dealers, and plaintiffs, in order to assist defendant in the emergency with which he was confronted, agreed to obtain trucks to transport his bananas to St. Louis.
The principal controversy was over the question of whether the parties had agreed that plaintiffs should be paid for transporting the bananas at the rate of 3 1/2 cents a pound or at the rate of $350 a truck-load. Plaintiffs contended that the contract had actually provided for them to be compensated at the former rate, but admitted that after the services had been performed and a dispute had arisen in regard to payment, they had agreed to reduce the charge to 3 cents a pound. Defendant insisted, on the other hand, that the figure of $350 a load represented the agreed amount. Defendant paid the sum of $5,600, which, under his theory, would have been payment in full for transporting 16 loads of bananas, but which, under plaintiffs' theory, left him still indebted to plaintiffs in the sum of $5,101.60, the amount awarded by the jury's verdict.
Incidentally it appears that of the 16 trucks employed in this transaction, 14 were procured by plaintiffs from other persons or concerns engaged in the shrimp and produce business who were induced to lend their trucks for this particular occasion because of the emergency shown to exist, while the remaining 2 belonged to plaintiffs themselves. Upon the completion of the hauling plaintiffs at once compensated the 14 independent truckers on the basis of 3 cents a pound for the bananas each had transported, and plaintiffs are now actually out of pocket to the extent that the aggregate of such payments exceeded the sum remitted by defendant.
The question of what the parties had agreed upon as the basis of compensation comprised the only real factual issue in the case. However defendant, in addition to this, had a purely legal defense, which the court disallowed, but which defendant now urges as a ground which should have required the court to sustain his motion for a directed verdict. This, in short, was the contention that the transaction in question was subject to the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., and the Price Administrator's regulations promulgated in pursuance thereto, and that because of plaintiffs' failure to have obtained the Administrator's approval of the price to be charged for the transportation of the bananas as allegedly required by Supplementary Regulation No. 14H, sec. 15, C.C.H., Price Control, sec. 42,121, whatever contract was made between the parties was invalid and unenforceable at law.
The Emergency Price Control Act, § 4 provided, 50 U.S.C.A.Appendix, § 904, that it should be unlawful, regardless of any contract, agreement, or other obligation theretofore or thereafter entered into, for any person to do or omit to do any act in violation of any regulation promulgated under authority of the Act.
Section 15 of Supplementary Regulation No. 14H provided that maximum rates for any new transportation service performed by a carrier other than a common carrier should be determined in accordance with certain prescribed procedure.
The carrier was required to file an application with the nearest OPA District Office, giving (1) its name and address, and indicating whether it was an individual, partnership, or corporation; (2) a brief description of business, indicating operating authority and permit numbers; (3) the proposed rate or rates for the new service, indicating classes of commodities and shippers affected; (4) the rates in effect for the same service in March, 1942, if any; (5) the date on which service was last performed prior to discontinuance; (6) the name of the nearest competitive contract carrier; (7) the names of common carriers offering the same or similar service; and (8) a statement as to the relationship such proposed rates would bear to existing contract rates and to common carrier rates.
It was then provided that rates would be approved which did not exceed existing lawful contract carrier rates for the same service being then performed. If such rates did not exist, the rates might be approved if they did not exceed the lowest applicable common carrier rates for the same or similar movements, consideration being first given to rates for the same service, and lastly to rates for a similar movement.
If the Administrator took no formal action on the application or did not require the filing of further information within 20 days after the filing of a complete application, the rate was to be deemed approved, subject to the right of the Administrator at any time to disapprove or modify maximum rates proposed or established under such section so as to bring them into line with the level of rates otherwise established by the regulation.
Finally it was provided that any rate established under such section should become a ceiling, and should not be subsequently redetermined under such section, but could only be changed on the specific order of OPA pursuant to an appropriate application for adjustment.
It was of course a conceded fact that plaintiffs had not applied to OPA for its approval of the rates agreed upon between them and defendant for transporting the latter's bananas from New Orleans to St. Louis, and defendant insists, as we have already pointed out, that without such application to OPA, plaintiffs were acting in direct violation of the price control regulation, with the consequence that the contract upon which they seek to recover was legally unenforceable.
If Supplementary Regulation No. 14H had in fact contemplated such a transaction as the one in question, defendant, regardless of his acceptance of the benefit of plaintiffs' services, would seemingly be none the less in a position to assert a defense based upon the illegality of the contract. Congress had determined upon a policy of price control as one of the means of meeting the national emergency with which we were confronted, and if plaintiffs, being obligated to do so, had failed to establish a maximum rate for the service they were undertaking to render, such noncompliance with the regulation would apparently bar their recovery in this action.
But taking the regulation at its face value and having due regard for the purpose it was designed to serve, it is obvious to our minds that it had no application to such a transaction as the one with which we are now concerned. Plaintiffs were not engaged, and had no intention of becoming engaged, in the trucking business. On the contrary, their trucks were only used in connection with their own shrimp and produce business, as were those of the other parties who were persuaded to lend their trucks as a matter of accommodation in the dilemma in which defendant found himself because of the railroad strike. Supplementary Regulation No. 14H was clearly intended by its very terms to cover new or resumed transportation service by parties in the usual and ordinary course of their established business as carriers. Its whole context refutes the idea that it was ever intended to apply to an isolated transaction by parties not in the transportation business, but who, because of an existing emergency, were persuaded to engage in a particular transaction in which they sought no profit but merely reimbursement for the actual costs incurred in the performance of the single transportation service. Plaintiffs did not act in violation of any maximum price regulation, and the court ruled properly in denying the request for a directed verdict in defendant's favor.
We have already indicated that the chief factual issue in the case was whether the parties had contracted that plaintiffs should be paid 3 1/2 cents a pound or $350 a load for hauling the bananas.
Plaintiffs' evidence tended to show that the actual controversy did not arise until after the bananas had been delivered in St. Louis and defendant had attempted to discharge his obligation by payment at the rate for which he contended, although it did appear that in the preliminary negotiations leading up to the making of the contract, defendant had informed plaintiffs that he had theretofore hired trucks from one LaCoco, who was engaged in the produce business in New Orleans, to transport a previous shipment of bananas to St. Louis at the rate of $350 a load. However plaintiffs had assured defendant, so their evidence disclosed, that it would be impossible to get men in the shrimp business to furnish their trucks at such a rate due to the fact that they were getting 3 1/2 cents a pound to haul shrimp and would want a like amount to haul bananas.
Defendant testified quite to the contrary — that when he told plaintiffs that he had been paying $350 a load to haul bananas into St. Louis, plaintiffs had inquired whether he could increase the figure in this case to $400 a load, and that he had replied that it would be impossible for him to do so because of the necessity that he keep under the price ceiling in the sale of his bananas in St. Louis.
Defendant was then pointedly asked by his counsel for what price he had hauling done prior to his transaction with plaintiffs, whereupon plaintiffs objected upon the ground that any transactions with other persons would have no bearing on the case at hand. The court ruled that inasmuch as testimony was already in regarding previous hauling at the rate of $350 a load, defendant might be permitted to develop the fact as to what had transpired between the parties in this case with reference to that circumstance. However when defendant later sought to introduce four canceled checks into evidence — 2 of them to LaCoco for the face amount of $350 each, and the other 2 to one Jube for the aggregate amount of $350 — the court excluded such exhibits, and its action in that regard is now the subject of complaint.
We think the court's action in excluding the canceled checks was entirely proper.
The rule is that evidence of prior transactions of one of the parties to the action with other persons, even though similar to the transaction involved in the case before the court, is generally inadmissible, since there would be no such logical or necessary relation between the several transactions that anything done in connection with the one could be relied on to prove or disprove anything in issue in connection with the other. Turner v. King, Mo.App., 224 S.W. 91; Pyrtle v. International Shoe Co., Mo.App., 291 S.W. 172; Bailey-Ball-Pumphrey Co. v. German, 213 Mo.App. 11, 247 S.W. 483; Missouri Forged Tool Co. v. St. Louis Car Co., Mo.App., 205 S.W.2d 298.
The propriety of the exclusion of the canceled checks is demonstrated by the very ground upon which defendant seeks primarily to urge their competency, that is, that they would have lent credence to his theory, and would have substantiated the fact that he would never have agreed with plaintiffs for payment at the rate of 3 1/2 cents a pound when he had been able to secure the trucks of other haulers for exactly the same service at the much smaller rate of $350 a load. It would not have been proper that plaintiffs' rights should have been affected by proof of transactions between defendant and other persons with whom plaintiffs had been in no way connected. The question in issue was not what defendant may have paid other persons, but what he had agreed to pay plaintiffs, and defendant received the benefit of the very most to which he was entitled in being afforded the opportunity to show that in his preliminary negotiations with plaintiffs regarding the rate to be charged, he had informed them that he had theretofore paid other haulers at the rate of $350 a load.
The same reasoning supports the court's exclusion of evidence that the railroad freight rate for hauling bananas from New Orleans to St. Louis was only $1.75 per hundred-weight. Defendant argues that this evidence would have been competent to show that a rate of $350 a load would have been much more reasonable and logical than a rate of 3 1/2 cents a hundred, and especially so since the cost of hauling by truck is said to be traditionally lower than the cost of hauling by railroad. The obvious fault with all such evidence was that it failed to take into account the circumstances under which plaintiffs, who were not in the business of hauling for hire, had been induced to supply trucks for this isolated transaction.
The judgment rendered by the circuit court should be affirmed; and the Commissioner so recommends.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, affirmed.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.