Blades v. Cinder Block Co. of St. Louis

• Decision Date: 06 November 1928
• Docket Number: 20403
• Citation: 10 S.W.2d 319
• Parties: EUGENE BLADES, (Plaintiff) Respondent, v. THE CINDER BLOCK COMPANY OF ST. LOUIS, a Corporation, Defendant, THE CINDER BLOCK COMPANY OF KANSAS CITY, MISSOURI, a Corporation, (Claimant) Appellant
• Court: Missouri Court of Appeals

10 S.W.2d 319

EUGENE BLADES, (Plaintiff) Respondent, v. THE CINDER BLOCK COMPANY OF ST. LOUIS, a Corporation, Defendant, THE CINDER BLOCK COMPANY OF KANSAS CITY, MISSOURI, a Corporation, (Claimant) Appellant

No. 20403

Court of Appeals of Missouri, St. Louis

November 6, 1928

Appeal from Circuit Court, St. Louis County. Hon. John W McElhinney, Judge.

AFFIRMED.

Walter E. Bennick, COMMISSIONER. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

Walter E. Bennick

This is an appeal by The Cinder Block Company of Kansas City Missouri, a corporation, from a judgment rendered against it on a statutory third-party claim filed by it to certain personal property, theretofore levied upon and seized by the Sheriff of St. Louis County, under an execution duly issued out of court.

There is but little, if any, dispute as to the facts in the case. One Eugene Blades, as plaintiff, brought an action for damages for personal injuries, naming The Cinder Block Company of St. Louis, a corporation, as defendant and service was obtained by the sheriff by delivering a copy of the petition to H. H. Crowell, vice-president of defendant, he being in defendant's usual business office, and in charge thereof, as shown by the return. It appears that plaintiff had been in the employ of defendant at its plant located at 9000 Olive Street Road, in St. Louis County, and had been injured in the discharge of the duties assigned to him. There was no appearance by the defendant, and in due course a judgment was rendered in favor of plaintiff, and against defendant, The Cinder Block Company of St. Louis, for the sum of $ 1,500.

After the adjournment of the term of court at which such judgment had been rendered, plaintiff caused an execution to be issued against defendant, The Cinder Block Company of St. Louis under and by virtue of which the sheriff levied upon and seized a number of cinder blocks of the value of $ 2,500 found at the plant on Olive Street Road. Thereupon, appellant, The Cinder Block Company of Kansas City, Missouri, filed its claim for the property, and executed a bond as provided by statute. A trial was had to the court, without the aid of a jury, upon the issues made up by the respective pleadings, resulting in the finding and judgment heretofore indicated.

It may be conceded that there was no such corporation as The Cinder Block Company of St. Louis, and that the plant in St. Louis County was owned and operated by appellant, The Cinder Block Company of Kansas City, Missouri, with Crowell in charge thereof. However, there was evidence that appellant had placed a sign on its property reading, "The Cinder Block Company of St. Louis"; that Crowell continuously maintained an account with a bank in the city of Clayton, under the name of The Cinder Block Company of St. Louis; and that he solicited business for his concern on letterheads bearing the name of The Cinder Block Company of St. Louis, and showing the officers of his company to be identical with the officers of appellant. Furthermore, it was shown that appellant had the exclusive right and license in Missouri to manufacture and sell its cinder blocks, which were a patented product.

While appellant has grouped its objections to the judgment under four assignments of error, the sole question for review is the propriety of the lower court's finding against it on its claim, the effect of which was to hold that the misnomer of defendant in the original proceedings was not fatal to plaintiff's right to have the sheriff levy upon and seize the cinder blocks in question. The contention of plaintiff in substance, is that The Cinder Block...