Bently v. Wilson Trailer Co.

• Decision Date: 31 December 1973
• Docket Number: No. KCD,KCD
• Citation: 504 S.W.2d 277
• Parties: Ernest BENTLY, Appellant, v. WILSON TRAILER COMPANY, a corporation, Columbia, Missouri, et al., Respondents. 26202.
• Court: Missouri Court of Appeals

Page 277

504 S.W.2d 277

Ernest BENTLY, Appellant, v. WILSON TRAILER COMPANY, a corporation, Columbia, Missouri et al., Respondents.

No. KCD 26202.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1973.

James J. Wheeler, Keytesville, for appellant.

John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondents.

Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.

PER CURIAM.

An appeal from a summary judgment in favor of the defendants below. Plaintiff had alleged that the individual defendants (members of the State Highway Patrol) and the Wilson Trailer Co. had conspired to unlawfully seize a livestock trailer belonging to the plaintiff and deliver it to the trailer company. In furtherance of this conspiracy, the plaintiff alleged, Trooper R. L. Beal stopped a truck-trailer unit belonging to the plaintiff on May 4, 1971, and after illegally searching it, took possession of the trailer and delivered it to State Highway Patrol Post B--3 in Moberly. At the post, the trailer was impounded and held until Sergeant R. L. Robinson turned it over to the Wilson Trailer Co.

The defendants denied plaintiff's allegations and answered that Trooper Beal had stopped, searched, and seized the trailer in compliance with his statutory duty as set out in Section 301.390 RSMo 1969, V.A.M.S., and that Sergeant Robinson had released the trailer to Randolph County Deputy Sheriff Ronald Volle after being served with a delivery order in a replevin action on May 6, 1971. They then moved for a summary judgment and filed affidavits, plaintiff's answer to interrogatories, and his answers to requests for admissions in support of the motion. Plaintiff made no response to the motion and filed no counteraffidavits or other documents.

The summary judgment was granted for the individual defendants alone. After its grant, the plaintiff moved to voluntarily dismiss the trailer company, and the motion was granted. As a consequence, only the individual defendants are parties to this appeal.

On review of this case, it must be determined if there remained a genuine issue of material fact at the time the court granted summary judgment. If there was such an issue, the grant of summary judgment was erroneous; if not, the judgment must be affirmed. Rule 74.04, V.A.M.R.

The plaintiff claims on appeal that the issues still alive at the time summary judgment was granted were: 1) whether the defendants were acting for the Wilson Trailer Company; 2) whether the defendants conducted a lawful search and seizure; and 3) whether the defendants unlawfully delivered, or caused to be delivered plaintiff's trailer to the Wilson Trailer Company. In essence, he contends that the entire issue of an unlawful conspiracy was still alive. This contention must be denied.

Rule 74.04(e) requires that the judgment be affirmed. That rule states:

'When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

The plaintiff in this case rested on his pleadings at the time of defendant's motion for a summary judgment. A failure to respond to such a motion causes the facts alleged in support of the motion to be deemed as true and admitted. Dietrich v. Pulitzer Publishing Co., 422 S.W.2d 330 (Mo.1968); Grubb v. Leroy L. Wade & Son, Inc., 384 S.W.2d 528 (Mo.1964). To allow a party to fail to respond to a motion for summary judgment and then review his pleadings on the same basis as the other party's supporting documents would be to rob the rule of its utility. First National Bank of Liberty v. Latimer, 486 S.W.2d 262 (Mo.1972).

The facts admitted by plaintiff's failure to respond to the defendants' motion must still present 'unassailable proof' of movants' position as required by Rule 74.04(h). E. O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167 (Mo.1967); E. O. Dorsch Electric Co. v. Knickerbocker Construction Co., 417 S.W.2d 936 (Mo.1969). This requirement is met by the admitted facts here.

The affidavits of Troopers R. L. Beal and T. L. Clarke, Sergeant R. L. Robinson, Captain J. C. Smith of the Highway Patrol, and Dean Swanson, Branch Manager of Wilson Trailer Sales of Missouri, Inc., established the following facts: On May 4, 1971, Trooper Beal saw two truck-trailer units near the intersection of U.S. Highways 63 and 24 and decided to stop them to examine their registration and identification. On stopping the units, Trooper Beal found that one unit was carrying the proper identification and registration proof, but the other was not. This second unit displayed a metal identification plate on the right-hand side of the livestock trailer bearing number 7924, and likewise carried the license plate and prorate card issued for trailer number 7924. However, on the trailer's metal frame, the trooper found the number 7676 stamped. After discovering this variance, he ordered both units to follow him to Post B--3 in Moberly. There, the second trailer was examined by Troopers Clarke, D. C. Thomas, and Sergeant Robinson. They discovered that the number 7676 was stamped into the center of the front part of the frame and also on the right long member of the frame between the equalizer casting. They also noted that the exterior identification plate and prorate card were at variance with this number. After discussing the matter with Captain Smith, Sergeant Robinson decided that the trailer should be impounded according to the authority of Section 301.390 RSMo 1969, V.A.M.S. The driver of the truck which had been pulling the trailer was given a summons to appear in Magistrate Court for possession of a trailer with altered identification numbers and was released.

On May 6, 1971, Sergeant Robinson was served with a delivery order pursuant to a replevin action by Randolph County Deputy Sheriff Volle. He turned the trailer over to him. According to Dean Swanson's affidavit, the Deputy Sheriff delivered the trailer to the Wilson Trailer C. after it had posted a bond.

Other facts shown by the affidavits were that the Missouri Department of Revenue's records indicated that the title to trailer number 7676 was in Blakemore and Douglas d/b/a Saline County Truck Line of Slater, Missouri, with a lien on it held by the Wilson Trailer Company. Records from the Missouri Highway Reciprocity Commission revealed that the plaintiff possessed both Wilson trailers number 7924 and number 7676, and that the license plate and prorate card carried with the seized trailer were issued to trailer number 7924 and not 7676. The affidavit of Dean Swanson established that Wilson trailers made prior to 1969 (as both 7924 and 7676 were) carried their identification numbers in three places: The two places where the number was stamped into the frame, and on an identification plate affixed to the exterior by pop rivets. The troopers' affidavits all noted the fact that the identification plate on the seized trailer was held on with metal screws.

Plaintiff's answers to interrogatories...