Brown v. Park Transp. Co., 31706

• Decision Date: 25 September 1964
• Docket Number: No. 31706,31706
• Citation: 382 S.W.2d 467
• Parties: Ted BROWN, Plaintiff, v. PARK TRANSPORTATION COMPANY, a Corporation, Defendant-Appellant, Casualty Reciprocal Exchange, a Corporation, Defendant, William Kersting, d/b/a William Kersting Trucking Company, Wayne E. Erwin, and Continental Casualty Company, a Corporation, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 467

382 S.W.2d 467

Ted BROWN, Plaintiff, v. PARK TRANSPORTATION COMPANY, a Corporation,

Defendant-Appellant, Casualty Reciprocal Exchange, a

Corporation, Defendant, William Kersting, d/b/a William

Kersting Trucking Company, Wayne E. Erwin, and Continental

Casualty Company, a Corporation, Defendants-Respondents.

No. 31706.

St. Louis Court of Appeals, Missouri.

Sept. 25, 1964.

Motion for Rehearing or for Transfer to Supreme Court Denied

Oct. 26, 1964.

Heneghan, Roberts & Cole, John J. Cole, St. Louis, for defendant-appellant.

Moser, Marsalek, Carpenter, Cleary & Jaeckel, Paul S. Brown, St. Louis, for defendants-respondents.

JAMES D. CLEMENS, Special Judge.

This appeal concerns a cross-action between the lessor and the lessee of a truck to determine which of them is liable for the plaintiff's damages. The plaintiff was injured while the truck was being unloaded. His claim was settled for $10,000. The lessor and the lessee each paid half that amount, and each incurred $1,000 in legal expenses. By their cross-claims each then sought to recover its $6,000 from the other. The trial court found in favor of the lessor and against the lessee, and the lessee appeals.

The Laclede Steel Co. had sold an order of steel reinforcing rods for delivery to the Wilcox Construction Co. at a highway construction site near Blythedale in Harrison County. Laclede hired appellant Park Transportation Company, a contract carrier, to deliver the steel rods. Instead of using one of its own trucks and drivers, Park hired the respondent Kersting, a common carrier, and his driver, Erwin, to make the delivery. A written truck lease was prepared by Park and signed by driver Erwin for Kersting. Park's permit numbers and corporate name were affixed to the truck. Erwin drove to Laclede's plant and the steel rods were loaded. He then drove to the construction site near Blythedale, where he met plaintiff, one of the contractor's partners. Part of the rods were unloaded by hand, and the truck went on a few hundred feet to unload more. Here, the plaintiff was injured. A bundle of rods was too heavy to be unloaded by hand, so a bull-dozer was brought up to assist. A chain was connected to the bundle and the bull-dozer so it could pull the bundle off the truck. Plaintiff Brown was standing on the truck. He and Erwin decided that the truck should pull farther ahead to take the slack out of the chains before the bull-dozer began pulling the bundles off the truck. As the truck moved forward, Brown was injured.

The crux of the case is whether at the time of plaintiff's injury, when the truck was being unloaded, the truck was still under lease to appellant Park or had by then reverted to its owner, respondent Kersting. We look now to the written instrument whereby Kersting leased his truck to Park. Omitting non-essentials, and emphasizing pertinent parts, here is the lease:

'NOW, THEREFORE: in consideration of the sum of $1.00 and for other good and valuable consideration, IT IS HEREBY AGREED that for a period of time, effective 6 P.M. (CST) the 30th day of July, 1958, and concluding with the discharge of the consignment at the DESTINATION specified herein, this LESSOR shall lease the above described motor equipment to this LESSEE for use in transporting products as this LESSEE will specify for a single, ONE WAY, trip originating at the premises of this LESSEE at 1717 Park Ave., St. Louis 4, Missouri; then loading at the time and under the circumstances as instructed by this LESSEE at: Laclede Steel Co., Madison, Ill., and then proceeding only, and directly, to the following DESTINATION(S): Mo. State Hwy. Blythdale, Mo., and to the premises of the consignee(s) as specified in the bill(s) of lading where this LESSOR will attend to the proper unloading of the cargo, obtain essential clear receipts therefor and dispatch such receipts, along with the #3 equipment receipt and LESSEE'S identification property, to this LESSEE by the most expedient lawful method this LESSOR may employ. IT IS MUTUALLY UNDERSTOOD AND AGREED THAT:--(1) This trip lease completely terminates at the destination specified herein and that any movement made by this LESSOR after completing said delivery is the sole responsibility of this LESSOR; and * * *.' (Emphasis ours.)

Another written instrument and another part of the lease may shed light on the issue here: the bill of lading and Erwin's signed relinquishment of the truck lease. At Laclede's plant driver Erwin was given Laclede's bill of lading consigning the steel rods to the 'Missouri State Hwy. Dept. % Wilcox Construction Co.' The bill of lading covered two lots of steel rods, one for a bridge over Stone Quarry Creek, and one for a bridge over Indiana Creek, and this notation: 'DELIVERY INSTRUCTIONS: DRIVER IS TO MEET CONTRACTOR AT BLYTHEDALE, MO. PROJECT BEGINS 4 MILES NORTH OF BLYTHEDALE ON ST. AND RUNS EAST OF RT. 50 STATION 0 PLUS 00 IS AT RT. ST.' After all rods were unloaded, the construction company's agent signed the bill where it read 'Received in good condition except as reported on the back of this form.' On the back is printed 'IMPORTANT NOTICE TO CONSIGNEE Check carefully the items unloaded from the truck at destination against the list of material shipped * * *.' There are no notations on this side. The other writing is a release form on the bottom of the truck lease. It acknowledges 'accomplishment' of the truck lease at 11 A.M. Although so written, it was not actually signed by Erwin until after the unloading was completed several hours later.

Appellant Park concedes, and we agree, that the lease is not ambiguous. So, in construing the lease, we will adhere to these fundamental principles: The parties' intention is to be determined from what they said in the lease itself, and there is no reason to resort to extrinsic matters. Kalen v. Steele, Mo.App., 341 S.W.2d 343 (1, 3); Needles v. Kansas City, Mo., 371 S.W.2d 300(2). The intention of the parties is to be ascertained from the instrument as a whole, and not from isolated parts. 17A C.J.S. Contracts Sec. 297; Cook v. Tide Water Associated Oil Co., Mo.App., 281 S.W.2d 415(8); and Rickey v. New York Life Ins. Co., 229 Mo.App. 1226, 71 S.W.2d 88(5). We will determine the parties' intention from the language used, giving that language its usual meaning. Liberty Storage Co. v. Kansas City Terminal Warehouse Co., Mo.App., 340 S.W.2d 189(4, 5); Robichaux v. Group Hospital Service, Inc. of Kansas City, Mo.App., 379 S.W.2d 874(1). We note that the lease refers to the terms of the bill of lading as to the 'destination(s)' named therein. The bill of lading calls for delivery to the two bridge sites. So, we will consider this as a part of the lease. Hamilton Fire Ins. Co. v. Cervantes, Mo.App., 278 S.W.2d 20(2); 17 A C.J.S. Contracts Sec. 298.

Park contends that by its terms the lease covered only transportation of the products, and terminated the moment the truck arrived at the construction site. This contention is based on the...