Opinion
No. 7086.
November 21, 1952.
APPEAL FROM THE CIRCUIT COURT, SHANNON COUNTY, GORDON DORRIS, J.
Robert L. Hyder, West Plains, for appellants.
J. Ben Searcy, Eminence, Green Green, West Plains, for respondent.
This is an action for damages for injury to furniture and for overcharge for storage and transportation of same. Suit was filed in Howell County, Missouri, against George Gerold, E. Fred Gerold and Joseph Gerold, doing business as Gerold Moving and Warehouse Company and Gerold Moving and Warehouse Company, a corporation.
Plaintiff's petition alleged defendants were warehousemen in Illinois and that plaintiff stored his household and kitchen furniture with defendants who promised and agreed to keep the furniture in good condition and deliver the same to plaintiff in good condition in Howell County, Missouri; that the furniture was delivered to plaintiff in Howell County but that it was broken, torn and injured to plaintiff's damage in the sum of $1,000, and that defendants overcharged plaintiff for storage and transportation to his damage in the sum of $80.
Defendants filed an amended answer and petition against third party defendant. This answer denied that defendants were a corporation but adopted and ratified the pleadings as their own. They admit they operate a warehouse and transfer business in Illinois and deny the other allegations of the petition. The answer pleads that defendants are licensed as a public carrier under the Interstate Commerce Commission. They admit that on March 24, 1949, under instructions from plaintiff, they delivered to Howard Van Lines, third party defendant, a duly licensed common carrier, the goods of plaintiff for transportation from defendants' warehouse to West Plains, Missouri, and that said goods, at the time, were in good condition. They plead there was at the time due from plaintiff $3 for storage which they asked third party defendant to collect. The answer pleads the goods were tendered to plaintiff March 25, 1949, at West Plains; that plaintiff was unable to pay the freight charges and said carrier was, under the law, required to store said goods in the nearest warehouse for storage; that, later for plaintiff's benefit and when advised by him on the — day of June, 1949, that he would pay the freight, defendants delivered plaintiff's goods to him at West Plains and that said goods were in the same condition as when received from Howard Van Lines. Defendants then asked that Howard Van Lines be made third party defendant as a necessary party to the determination of this cause and pleads that they have no knowledge of the damage done to the property of plaintiff and that if any damage was sustained it occurred while in the custody and control of third party defendant. The answer then asked that if judgment be obtained in favor of plaintiff and against defendants that defendants have a judgment against third party defendant for said sum and for cost of action.
Third party defendant, Howard Van Lines, filed answer alleging that it is a corporation and engaged in the warehouse and transfer business duly authorized under the Interstate Commerce Commission to transact business in the State of Missouri. This answer denied every allegation and averment in plaintiff's petition and in defendants' second amended answer. It filed a cross-claim against defendants in which it alleged that defendants, George Gerold, E. Fred Gerold and Joseph Gerold, d/b/a Gerold Moving and Warehouse Company, collected from plaintiff $179.15 due it for the transportation of plaintiff's goods and have refused and failed to pay the same to this defendant.
Defendants' reply to the cross-claim of third party defendant admits the collection from plaintiff for the delivery of said goods but alleged that it retains the same to defend the action brought by plaintiff against them as provided by the rules of the Interstate Commerce Commission.
The jury returned a verdict against Gerold Moving and Warehouse Company for $682 and a verdict against the Gerold Moving and Warehouse Company in favor of Howard Van Lines in the sum of $88, for freight collected and a verdict in favor of Gerold Moving and Warehouse Company and against defendant George T. Howard, doing business as Howard Van Lines in the sum of $341.50, and judgment was entered by the court as found by the verdict. From this judgment George Gerold, E. Fred Gerold and Joseph Gerold, d/b/a Gerold Moving and Warehouse Company, a corporation, defendants above named, appeal to this court.
In this opinion we will refer to the plaintiff as respondent and to the defendants George Gerold, E. Fred Gerold and Joseph Gerold, d/b/a Gerold Moving and Warehouse Company, a corporation, as appellants, and Howard Van Lines as third party defendant.
We think the evidence conclusively establishes that in 1941 respondent, then a resident of East St. Louis, stored his household and kitchen furniture with appellant, who was, at the time, operating a storage business and was engaged as a common carrier in East St. Louis; that at the time of such storage, respondent and appellant had an agreement that respondent was to pay appellant $3 per month for storage and, at the request of respondent, was to deliver his goods in as good a condition as when stored, to respondent's farm in West Plains, Missouri, or to whatever place respondent desired.
In 1949 respondent notified appellant that he desired the goods delivered to his farm, ten miles south of West Plains, and, in accordance with said notice, appellant secured third party defendant, a common carrier, to deliver to respondent such goods on March 24, 1949, from its warehouse in East St. Louis to West Plains, Missouri. Appellant notified respondent, by letter, dated March 23, 1949, that it had engaged third party defendant, its agent, to deliver to him the goods in question and requested respondent to meet third party defendant's truck at the courthouse in West Plains, Friday, March 25th.
Third party defendant's driver arrived in West Plains on the 24th with respondent's goods and tendered the same to respondent upon paying of freight bill of $99.71 for delivery.
At the time, respondent told the driver that appellant had promised to deliver the goods for $70 and, by agreement, the driver agreed to wait until next morning and until they could investigate about the charge. Also they could not get a certified check from the bank or money as demanded by the driver in payment until the bank opened the next day. While respondent was making an investigation as to the correctness of the freight bill presented, third party defendant's driver left with the goods for Dallas, Texas, where he stored the same in a public warehouse. This warehouse admittedly was in a low place, the alley leading to it had water in it but third party defendant denied there was water in the warehouse. Third party defendant also testified that the driver became afraid that respondent was going to attach the goods and that was his reason for leaving.
Upon notice to appellant, from respondent, appellant picked the goods up in Dallas, some six weeks later and delivered them to respondent at West Plains, collecting $181.15 charges. This included freight charges from Springfield to West Plains at an increased rate, Springfield being the nearest public warehouse to West Plains, where third party defendant should have delivered the goods.
The testimony clearly shows by both respondent and respondent's wife that the goods were delivered by appellant to them in a very badly damaged condition, dirty, scratched and broken and numerous items lost or destroyed. The testimony is undisputed that the goods were fairly new and were of the reasonable market value of $900 when delivered to appellant for storage and were of the reasonable value of $100 when delivered by appellant to respondent in West Plains in 1949.
Third party defendant issued its receipt for the goods to appellant when it received the furniture in East St. Louis for delivery, which had noted on it that the goods were not marred, scratched or in bad condition. When appellant received the goods from third party defendant at Dallas there was noted on the receipt that the goods were in bad condition.
It was admitted by third party defendant that after he received the goods from appellant, he increased the freight charge for delivery $11. He said the goods were re-weighed and the weight was increased 200 pounds. The testimony showed that the tariff charge from appellant's warehouse to West Plains was $3.08 per hundred but when taken to Springfield it was boosted to $4.70 per hundred under the tariff at the time.
Third party defendant's testimony is that appellant owed it $171. This consisted of $1 per hundred for storage at Dallas and for transportation to Dallas, a distance of 444 miles. It testified that it was entitled to its part of the revenue from West Plains to Dallas and back. This testimony also showed that the mileage on 3,050 pounds charged on miles to Springfield and back, at the rate of $4.70 per hundred, is $143.35, the mileage being 144 and this third party defendant states that mileage was for what the bill was made out for.
Appellant's first assignment of error is as follows: "The instructions submitted by the respondent failed to contain the necessary elements to sustain a verdict for respondent."
With this contention we cannot agree. The issues in the case are made by the pleadings. Section 509.050 RSMo 1949, V.A.M.S., provides that the petition shall contain a short and plain statement of the facts showing that the pleader is entitled to relief. By the pleadings the court can determine the law which applies in the case. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25.
An examination of respondent's petition shows that this action is for damages for breach of contract to store and deliver respondent's household goods in as good a condition as when received. The petition alleges that appellant failed to comply with the conditions of this contract in that it delivered the goods in a damaged condition and that there was an overcharge for storage and transportation in the sum of $80.
From appellant's argument we gather that the error complained of is that the first instruction did not properly present the issue in the case. This instruction tells the jury that if they believe and find from the evidence that respondent was the owner of the household goods in question in 1941 and that at that time entered into an agreement with appellant wherein it agreed to store in its warehouse such household and kitchen furniture at a monthly charge and on demand to deliver such goods in as good condition as when received, natural wear and tear excepted, and if the jury find from the evidence that said goods were left with appellant until 1949 and at that time delivered by appellant, through their agent, to respondent in Howell County and if the jury find from the evidence that at the time of such delivery the furniture was broken, torn and injured and that such condition was not the result of natural wear and tear and that respondent was damaged that their verdict should be for respondent for such damage.
We submit that this instruction properly declares the law and is supported by the testimony. We, therefore, find against appellant on this issue.
The second assignment of error is: "The instructions do not submit a correct measure of damages."
The measure of damages submitted by the instructions to the jury is that if they find for respondent they will assess his damages, if any, for the difference between the reasonable market value of such furniture when left with appellant for storage and the reasonable market value of such furniture in its damaged condition when it was delivered by appellant to respondent, natural wear and tear excepted.
Appellant cites Barton v. Farmers Ins. Exchange, Mo.App., 229 S.W.2d 23, 24. This case was decided by this court. Judge Blair, speaking for the court, 229 S.W.2d on page 24, laid down the measure of damages for personal property as being the difference between the reasonable market value of it before the injury and the reasonable market value after the injury.
The law is well settled that every case is decided upon the facts of the particular case. Boehme v. Boehme, Mo.App., 72 S.W.2d 115.
The case cited was a suit on an insurance policy for damages sustained to an automobile by collision. Under the policy the insurance company had the right to pay the loss less the deductible amount or to repair the car. The court stated that, under the contract, the company agreed to pay no more than the actual damages less the deductible amount. The jury took the original cost of the automobile less the deductible amount and this court held there was no evidence to support such a finding and that the verdict was clearly excessive. That case is no authority for the rule of damages used in the case at bar. The contract here was for damages resulting from the failure to store and deliver household and kitchen furniture in as good a condition as when received by appellant and for overcharge for storage and transportation. We think the instruction properly presented that issue to the jury and that there was substantial evidence to support the finding of the jury. We find there is no merit in this contention.
Appellant's third assignment of error reads: "The third instruction offered by the respondent was wholly improper and authorized excessive damages."
This instruction told the jury that if they find that appellant, through its agents, attempted to collect transportation charges in excess of the amount due and if they further find that respondent did not refuse to pay the legal amount due but attempted to ascertain the correct amount and that while they were trying to ascertain the amount of freight actually due, said goods were transported to some other place and then brought back to West Plains and surrender thereof refused until such overcharges were paid and that such overcharges were paid under protest for freight from West Plains to Springfield and back, then their verdict should be for the overcharge on freight from West Plains to Springfield and back. In other words, this instruction told the jury that if they found the reason the goods were not accepted by respondent when delivered at West Plains was because appellant's agent demanded more freight than was due and that while appellant's agent and respondent were attempting to adjust these differences, said agent took the goods to some other place and later returned the same and demanded excessive freight for the delivery thereof, which was, by the respondent, paid, that in that event respondent was entitled to recover the excess charges made for the transportation of the goods to Springfield.
Under the facts in the case we think that respondent was clearly entitled to recover the amount of freight he paid for transporting these goods to Springfield and back. True enough, Springfield was the nearest public warehouse where the goods should have been stored, yet they never were transferred there or stored there, therefore, this appellant could, in no way, be injured by the finding of the jury under this instruction which was for the freight collected for carrying the goods to Springfield and back.
Section 512.160 RSMo 1949, V.A.M.S., paragraph 2 reads: "No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action."
We find there was no error in this instruction which materially affected the verdict.
Appellant's fourth assignment of error reads: "The court erred in giving the instruction offered by the third party defendant which would permit recovery against appellants `not to exceed $179.95.'"
To support this contention appellant cites Jones v. St. Louis-San Francisco Ry. Co., 226 Mo.App., 1152, 50 S.W.2d 217, 220. This case holds that the instruction should require the jury to consider all the issues in the case and submit the theory of both the plaintiff and defendant. We have no complaint with this law. That has been the well-settled rule always.
Under the pleadings in the case at bar appellant admits that it collected from respondent the transportation fees due third party defendant but, in the reply, pleads that, under the regulations of the Interstate Commerce Commission, it could apply such fees to the cost incurred in the defense made against the suit brought by respondent. The trouble with this assignment of error is that there is no evidence to support the issue raised by the reply. We think the burden was upon appellant to show by evidence that it was entitled to the freight collected for the services rendered by third party defendant and that it failed to do so.
The fifth assignment of error is: "The verdict was against the evidence."
With this contention we cannot agree. We have found against appellant on the assignments of error raised in its brief and supported by argument therein. We find that there was substantial evidence to support the findings of the jury and, under the law, we are bound by its findings. Johnson v. Thompson, Mo.App., 236 S.W.2d 1.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.