Bryan v. Cargill, Inc.

• Decision Date: 02 February 1984
• Docket Number: No. 83-1346,83-1346
• Citation: 723 F.2d 1202
• Parties: Earl BRYAN, Plaintiff-Appellee, v. CARGILL, INC., Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1202

723 F.2d 1202

Earl BRYAN, Plaintiff-Appellee, v. CARGILL, INC., Defendant-Appellant.

No. 83-1346

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 2, 1984.

Sanders, Saunders, Brian, Finney, Thomas & Smith, Ronald D. Nickum, Amarillo, Tex., for defendant-appellant.

Kolander & Hamilton, R.C. Hamilton, Amarillo, Tex., for plaintiff-appellee.

Appeal from the United States Court for the Northern District of Texas.

Before BROWN, TATE and HIGGINBOTHAM, Circuit Judges.

TATE, Circuit Judge:

This is a Texas diversity case. The defendant ("Cargill") appeals from a monied judgment, based upon a finding by the jury upon a special issue submitted to it that Cargill had converted the plaintiff Bryan's wheat that had been shipped to it. Cargill's sole contention on appeal is that the district court erred in failing to submit to the jury the defendant's cause of action as proposed by ten special issues as requested by it. We affirm, finding no abuse of discretion in the failure to submit the ten special interrogatories proposed by the defendant Cargill, because the special interrogatory submitted to the jury, when read in conjunction with the special instructions accompanying it, fairly and clearly presented the contested issues and the ultimate question of fact to the jury.

The facts show:

The plaintiff Bryan maintained a grain elevator in Kansas. Bryan shipped certain grain by independent truckers (the "Missouri truckers") to the defendant Cargill's storage facility in Texas, with the intention that it be credited to Bryan's open storage account. Instead, allegedly based on Bryan's manager's misleading instructions, Cargill credited the grain to the account of a third party ("Transco"), now bankrupt. ¹ Bryan's claim against Cargill is based upon the latter's conversion of Bryan's wheat.

Cargill's defense to the claim is based upon its reliance upon instructions allegedly given its agent by Bryan's manager in a telephone conversation before the disputed shipments were made. Intending to prevent future confusion, Bryan's manager had cautioned Cargill's agent that he was shipping Bryan's own wheat from his Kansas grain elevator at the same time as Transco was shipping its wheat from the same grain elevator. Both parties agreed, in essence, that Bryan's manager had told Cargill's agent that grain coming in on the trucks of Beasley, an independent trucker, was for Bryan's open storage account, and that grain coming in on "Transco trucks" was for the account of Transco. Both parties knew that Transco operated its own trucks, with its name clearly printed on the doors of the cabs.

However, at the time Transco was also using the services of some Missouri independent-contractor truckers, due to a bumper grain harvest. Due to the same reason, when Transco finished shipping its grain, the plaintiff Bryan also employed these same Missouri truckers to complete the shipment of its own grain between July 23 and August 2, 1979. Both parties agree that the telephone conversation did not touch on the use of the Missouri truckers.

Cargill's agent, based on his conversation with Bryan's manager and because subsequently thereafter Transco used the Missouri truckers, assumed that these latter shipments of Bryan wheat by the Missouri truckers were also by "Transco" trucks. Cargill therefore credited Bryan's wheat to Transco's account. ² Cargill contends it was not subject to liability for conversion of Bryan's wheat under these circumstances. As summarized by the defendant Cargill in its brief (p. 4): "The entire thrust of defendant's case was that [the plaintiff Bryan's manager] instructed Cargill how to handle the grain upon arrival and when the situation changed at [Bryan's] end, he failed to notify Cargill."

I.

The sole issue raised by the defendant Cargill consists of the allegedly erroneous refusal of the district court, over objection, to submit to the jury ten special issues as requested by this defendant. Cargill argues that the district court, although submitting the plaintiff Bryan's conversion theory of the case by special issue to the jury, failed to submit the defendant Cargill's theory as requested. Cargill contends that the district court erred, having exercised its discretion to submit the case under special interrogatories, Fed.R.Civ.P. 49(a), in failing to submit an "issue of fact raised by the pleadings or by the evidence," Id., as requested by a party, who objected to the denial of the request. See, e.g., Huddleston v. Herman and MacLean, 640 F.2d 534, 549-50 (5th Cir.1981) and Duke v. Sun Oil Company, 320 F.2d 853, 865 (5th Cir.1963).

Rule 49(a) allows special verdicts at the discretion of the trial court. The trial court also has discretion over the nature and scope of the issues submitted, a discretion reviewable only for abuse. Loffland Brothers Co. v. Roberts, 386 F.2d 540, 546 (5th Cir.1967), cert. denied, 389 U.S. 1040, 88 S.Ct. 778, 19 L.Ed.2d 830 (1968). As we recently reiterated in J.C. Motor Lines, Inc. v. Trailways Bus, Inc., 689 F.2d 599, 603 (5th Cir.1982) (finding no abuse in the failure to submit certain special interrogatories requested by the defendant, in addition to finding the issue not properly preserved for review):

This Court has consistently held that a trial judge has considerable discretion to frame the issues involved in a case. Dreiling v. General Electric Co., 511 F.2d 768, 774 (5th Cir.1975); Abernathy v. Southern Pacific Co., 426 F.2d 512, 514 (5th Cir.1970); Grey v. First National Bank of Dallas, 393 F.2d 371, 385 (5th Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 398, 21 L.Ed.2d 374 (1968). On this basis, appellate review of the Trial Court's use of special interrogatories is confined to whether such use was an abuse of discretion. Dreiling, 511 F.2d at 774; Abernathy, 426 F.2d at 514. The Court, in Dreiling, outlines the standards to be applied in reviewing the Trial Court's use of special interrogatories:

In prior cases we have emphasized several factors in determining the adequacy of forms of special interrogatories: (i) whether, when read as a whole and in conjunction with the general charge the interrogatories adequately presented the contested issues to the jury, (ii) whether the submission of the issues to the jury was 'fair', and (iii) whether the 'ultimate questions of fact' were clearly submitted to the jury. (citations omitted)

Dreiling at 774.

These criteria are applied in the light of several holdings that demonstrate their meaning. "[T]he judge must submit all material issues raised by the pleadings and the evidence," Simien v. S.S. Kresge Co., 566 F.2d 551, 555 (5th Cir.1978), although none must be submitted twice through redundant special interrogatories, Angelina Casualty Co. v. Bluitt, 235 F.2d 764, 770 (5th Cir.1956). The limits on the submission requirement were recently outlined:

There is no doubt that a judge must clearly and properly instruct the jury with regard to the resolution of key issues in a given case. However, there is no basis for [appellant's] apparent assumption that because an issue is important to the...