Apex Oil Co. v. Beldner
| Decision Date | 07 March 1978 |
| Docket Number | No. 37913,37913 |
| Citation | 567 S.W.2d 336 |
| Parties | APEX OIL COMPANY, a corporation, Plaintiff-Appellant, v. Lester BELDNER d/b/a Marvel Fuel Oil Company, Defendant-Respondent. . Louis District,Division Two |
| Court | Missouri Court of Appeals |
Richard H. Ulrich, Ken Heinz, Shifrin, Treiman, Bamburg & Dempsey, St. Louis, for plaintiff-appellant.
Edward Lander, Clayton, for defendant-respondent.
The appellant, the plaintiff in the trial court, brought its suit for the collection of a fuel oil bill. The jury trial resulted in a verdict for defendant. The appellant bases his appeal only as to those issues relating to Count I of its second amended petition. The pertinent portions of that Count are as follows:
The appellant raises two grounds for appeal: (1) The court erred in giving defendant's Instruction No. 5. The grounds stated for this objection were that the instruction violated Rule 70.01 in that, as a converse instruction, it conversed a non-essential element of plaintiff's case and was not in substantially the same language as plaintiff's verdict director and that the giving of this instruction was material and prejudicial to plaintiff in that the jury was thereby erroneously instructed that defendant had to receive all of the four loads of oil before it could recover. (2) The trial court erred in overruling plaintiff's motion to set aside verdict and judgment and to enter judgment in favor of plaintiff in that under the evidence, verdict and judgment should have been directed for plaintiff because from the evidence no reasonable man could believe that defendant received no oil.
We find no error and affirm the judgment of the trial court.
The plaintiff in Count I contends that it "sold and delivered" four tanker loads of fuel oil to defendant on February 6th and 8th, 1971. The value of the oil as alleged in the petition was $3,366.46, and also as set out in Invoice # 140151 which was sent to the defendant on February 11, 1971. The defendant denies that the oil described in the Invoice # 140151 was ever delivered and the invoice was never paid.
A careful search of the record reveals that Apex never produced any direct evidence that any of the four loads of oil, which were described in Invoice # 140151, were actually delivered to Marvel. Apex's entire case rested upon circumstantial evidence. For each of the four loads of oil, Apex produced a bill of lading from the oil refinery. The bills of lading indicated that Ee-Jay Transport Company (Ee-Jay) took receipt of the oil from the refinery. Also, Apex produced the dispatch sheets from Ee-Jay for the dates involved. These dispatch sheets only indicate that the dispatcher at Ee-Jay had ordered the driver to commence loading and that for some of the four loads involved, the driver informed the dispatcher that their truck was empty. The drivers of the trucks did not testify and Ee-Jay did not physically verify the actual delivery of any of the loads.
Testimony concerning the volume of past business between the parties showed that from 1966 to 1971 Apex sold at least Fifty-thousand dollars ($50,000.00) worth of fuel oil to Marvel every winter season. Mrs. Beldner, defendant's wife, handled the billings and disbursements for Marvel during February of 1971. Mrs. Beldner died on June 28th of 1971 and defendant's daughter-in-law, Pam Beldner, took over the books of Marvel. The books were in a state of disarray. Pam Beldner then requested copies of all of the outstanding delivery tickets from Apex. By the time this suit was filed on August 10th of 1972, Marvel had paid Apex for all monies alleged to be due and owing, except for the amount due on Invoice No. 140151, $3,366.46.
Pertinent to our discussion of the monies allegedly due on Invoice # 140151, is the fact that Marvel did pay Apex for over 24,000 gallons of oil that was received on February 6th and 8th, 1971. Interrogatories, propounded by Apex to defendant Mr. Beldner, which were read into the record at trial, revealed the total storage capacity of the Marvel storage tanks located at 6258 Etzel Ave., as of February 6th, 1971, to be 90,000 gallons. Storage tanks for No. 1 fuel oil had a capacity of 15,000 gallons and No. 2 fuel oil capacity was listed at 75,000 gallons. The interrogatories also revealed that during the month of February, 1971, Marvel was supplied by three other oil companies beside Apex; they were Ashland, Marine and Clark Oil Companies.
Plaintiff's first contention related to the court giving the jury defendant's Instruction No. 5. In order to discuss Instruction No. 5, the relevant instructions as to Count I need to be considered also.
Your verdict must be for Plaintiff under Count I of its petition if you believe:
First, at defendant's request plaintiff furnished to defendant certain fuel oil between February 6, 1971 and February 8, 1971, and
Second, plaintiff charged a total of $3,366.46 for such oil, and Third, plaintiff's charges were reasonable, and
Fourth, said fuel oil was not paid for by defendant. MAI 26.03 modified. Offered by Plaintiff.
If you find the issues in favor of plaintiff, under Count I of plaintiff's petition, you must award plaintiff the reasonable value of the goods furnished with interest from March 1, 1971. MAI 4.04 modified. Offered by Plaintiff.
Plaintiff contends that Rule 70.01(f) 1 has been violated in that defendant, Marvel, has not conversed an essential element of plaintiff's case. As Rule 70.01(f) states, the defendant may converse any essential fact or element essential to plaintiff's case. Instruction No. 3, offered by plaintiff, states that you will find for the plaintiff if plaintiff furnished to defendant certain fuel oil. The key word is furnish. Furnish is defined as: "To supply or provide . . . to deliver, whether gratuitously or otherwise. . . ." Blacks Law Dictionary 804 (4th ed. 1968). In order to furnish a product to another, a necessary element of the act of furnishing is making the product available to the intended purchaser. In the case at bar, furnishing would include the delivery of the oil to defendant's place of business. Defendant's converse used the phrase, "received the oil described in Invoice No. 140151 . . ." Received is defined as: "(T)o take or come into possession of, . . . to take in, (to) hold . . ." Webster's Seventh New Collegiate Dictionary 714 (1965). Defendant denied from the very outset of this litigation that the oil actually came into his possession. Received as used in the instructions of this case, does converse an element essential to plaintiff's recovery; actual delivery by Apex of the quantities of oil in question.
Plaintiff's second contention is that the converse instruction is not in substantially the same language as plaintiff's verdict director. The discussion set out above details the difference in language between the two instructions. The test as to whether or not the variance in language is significant is whether the same legal theory is contained in both of the instructions. Bartleman v. Humphrey, 441 S.W.2d 335, 348 (Mo.1969). In determining the sufficiency of the instructions in this case, the court should not, as it is well stated in Bartleman, 441 S.W.2d at 348: "(B)e hypertechnical in requiring grammatical perfection, the use of certain words or phrases, or any particular arrangement or form of language, but * * * should be concerned with the meaning of the instruction * * * to a jury of ordinarily intelligent laymen * * *."
The instructions in question, No. 3 and No. 5, submitted the issues in terms within the understanding of the jurors. Tietjens v. General Motors Corp., 418 S.W.2d 75, 86(9) (Mo.1967). Plaintiff alleged he "furnished certain fuel oil" and defendant defended on the ground that he never received the oil. The essential element of delivery is properly conversed.
The other phrase of which plaintiff complains is the use by defendant, in his converse, of the words "the oil described in Invoice No. 140151," to identify the "certain fuel oil" which plaintiff contends he furnished. The only quantities of fuel oil in dispute in this case are the four loads of oil described and billed on Invoice No. 140151. Defendant's converse instruction merely further defined plaintiff's instruction "certain fuel oil," by substituting the phrase "the oil described in Invoice No. 140151." No confusion or misdirection of the jury could have resulted because the oil described by Invoice No. 140151 and certain fuel oil are the same loads of oil and they are the only quantities of...
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