Coonis v. Rogers

Decision Date08 July 1968
Docket NumberNo. 1,No. 53244,53244,1
Citation429 S.W.2d 709
PartiesLee COONIS, Plaintiff-Appellant, v. Johnie E. ROGERS and Joroco Enterprises, Inc., a Corporation, Defendants-Respondents, v. SPRINGFIELD CITY REFUSE COLLECTION, INC., a Corporation, Third-Party Defendant-Appellant
CourtMissouri Supreme Court

Neale, Newman, Bradshaw, Freeman & Neale, O. J. Taylor, Springfield, for appellants.

Lincoln, Haseltine, Forehand & Springer, Edmund C. Forehand, Carl E. Yates, William A. Moon, Springfield, for respondents.

HOUSER, Commissioner.

This is an appeal from a final judgment entered by the trial court following the dismissal as premature of the first appeal in this case, which was taken to the Springfield Court of Appeals. That court found that the first judgment entered was not a final appealable judgment because there was no disposition of Count III of the petition. For a capsule history of the case, a review of the pleadings and the content of the first judgment (helpful in fully understanding what follows) see the opinion of the court of appeals. Coonis v. Rogers, Mo.App., 413 S.W.2d 310.

The deficiency was supplied by the entry of a new and amended judgment on May 1, 1967 which, with respect to Count III of the petition, contained a finding for Plaintiff Lee Coonis and against Defendants Johnie E. Rogers and Joroco Enterprises, Inc., and assessed damages on said count in the amount of $7,281.86. The trial court amended its original finding on Count I of Defendants' Amended Counterclaim by awarding damages to defendants Rogers and Joroco in the amount of $10,000 (instead of $10,000 less $7,271.86, as in the first judgment). The trial court amended the judgment entry accordingly. In its new and final form, the judgment awarded plaintiff Coonis nothing on Counts I and II and awarded him $7,281.86 on Count III, of his petition; awarded defendants Rogers and Joroco amounts as follows on their Amended Counterclaim: $10,000 on Count I; $2,000 on Count II, and $7,500 on Count IX. Defendants Rogers and Joroco were awarded an injunction on Count VIII, but were adjudged to take nothing on Counts III, IV, V, VI and VII of thier Amended Counterclaim.

Defendants Rogers and Joroco have not appealed from the judgment against them on Count III of plaintiff's petition or from the judgment against them on Counts III, IV, V, VI and VII of their Amended Counterclaim. Plaintiff Coonis appealed from the entire judgment of May 1, 1967, but the only points briefed by plaintiff Coonis charge error with respect to the judgment rendered against him on Counts I, II and IX of the counterclaim. Accordingly, the judgments on Counts I, II and III of the petition and on Counts III to VII, both inclusive, of the counterclaim, have become final, and our concern on this appeal is limited to the action taken on Counts I, II and IX of the counterclaim. We have jurisdiction on account of the amount involved, since the total amount of the judgments on Counts I, II and IX exceeds $15,000.

Appellants Lee Coonis and Springfield City Refuse Collection, Inc. challenge the sufficiency of the evidence to support the judgments entered against them on Counts I, II and IX of Defendants' Counterclaim in this court-tried case.

Count I.

In this count defendants Rogers and Joroco (assignee of the contract of March, 1964) alleged that since May 5, 1965 plaintiff Lee Coonis, individually and as agent for Springfield City Refuse Collection, Inc., and the corporation, intending to harass, annoy, persecute, injure, destroy and interfere with the prosecution of defendants' business, intentionally, maliciously, and without justification or excuse induced, persuaded, enticed and procured defendants' customers to cancel, break and repudiate their contracts with defendants and to have no business relations or transactions with them and induced them to contract with plaintiff, by the use of false, malicious and fraudulent representations, 'some of which were to the general tenor and effect that Defendants were unreliable, insolvent and unable to furnish the goods and services contracted for'; that plaintiff and the corporation, intending to damage Joroco and prevent Joroco from executing its contracts with its customers, placed sugar in the gasoline tank of Joroco's truck; that in order to annoy and confuse Joroco's customers plaintiff and the corporation picked up six trash containers from their customers and delivered them to other customers of Joroco; that plaintiff and the corporation telephoned Joroco's customers and told them that Joroco's equipment had been replevined so that Joroco was no longer in business and sent bills to Joroco's customers, informing them to send all monies due Joroco to plaintiff and his assignee company, Springfield City Refuse Collection, Inc.

To sustain the charges of unwarranted and malicious business interference defendant Rogers testified that Coonis started 'picking up' his customers on the south side and hauling their trash about the first of May, 1965, about the time this lawsuit was filed; that Coonis picked up 'quite a few'; that some of his customers told him they were quitting and that Coonis was going to collect their trash. Some of Rogers' customers turned over to him invoices sent to them by Coonis. Rogers named four new accounts on the south side not being serviced by Rogers when he took over the route--accounts which Coonis began to service after Rogers acquired the business. He produced four statements issued by Coonis' assignee, Springfield City Refuse Collection, billing four customers on the route. Three bills were for $25, one for $15, and they were all marked 'July col.' Rogers was unable to testify how much his customers had paid to Coonis.

Respondents called ten customers as witnesses. One of them, a Mr. Freeman, testified that Rogers had been picking up his trash; that after having had trouble for a day or two in getting his trash picked up Freeman called Coonis, who said that Rogers had had the route but that he (Coonis) was 'taking it back over'--that Rogers had not paid him for it and that he, Coonis, would haul for Freeman if he wished. From that time on Freeman paid Coonis' assignee. The payments amounted to $15 a month for a month or two, then$25 a month. Another, one Napolitano, testified that somebody (he did not know whether it was Coonis or not) called him and said that he was going to pick up the trash again; that Johnie was not going to pick it up. Then he received invoices from both haulers. He called Rogers, who told him to pay Rogers. He did so, and did not pay Coonis' assignee. One Kistler got a bill from Coonis' assignee in August, 1965 but did not pay it. Instead he paid Rogers. Customer Ferrell testified that in the summer of 1965 'a fellow' whose name he did not know came in and said he was taking over the route, through Mr. Coonis. Later he received statements from Coonis, but did not pay them. Customer Carman said that in the summer of 1965 both companies were picking up his trash; that he called the office of Coonis' assignee with directions to discontinue the pickup service, and later received billings from Coonis' assignee which he did not pay. Customer Hall testified that Coonis began picking up his trash May 1, 1965; that he had paid Coonis a total of $30 since that time. Customer Pierce got invoices from both companies in the summer of 1965. He wrote Joroco, stating that he would not honor its invoice until one or the other of the companies recalled its invoice, and has not paid either of them since June, 1965. Coonis was charging him $25 a month; Rogers was charging $15. Customer Brown, apparently dissatisfied with Rogers' service, called Coonis and asked him to pick up the trash. Coonis said that he would take care of it. Coonis did not solicit this customer. Customer Randolph testified that he got billings from both companies and that neither would be paid until it was decided who was entitled to payment. Coonis supplemented respondents' evidence by admitting that he started picking up commercial trash for customers on the south side on June 21, 1965; that he hauled for sixteen named customers between May, 1965 and trial time in April, 1966 and that they paid him various amounts which totaled approximately $700 during that period.

Respondents' claim under Count I is a tort claim for interference with contractual relationships based principally upon charges of malicious procurement of the breach of contracts between respondents and their customers on the trash route. An effort was made to bring this case within the purview of our holding in Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S.W.2d 976. There it was announced that 'one who maliciously or without justifiable cause induces a person to breach his contract with another may be held responsible to the latter for the damages resulting from such breach' and that 'maliciously' as thus used alludes to malice in the technical sense, that is, the intentional doing of a harmful act without justification or excuse. 253 S.W.2d, l.c. 980(4).

On our independent review we find that Coonis and his assignee, without justification or excuse, in violation of a court injunction, and with full knowledge of the situation, either induced or acquiesced in the cancellation, breaking and repudication of existing trash-hauling contracts with aproximately twenty of respondents' customers, and personally or through his assignee took over these contracts for his own use and benefit. We do not find that Coonis and his assignee made the false, malicious and fraudulent representations alleged in Count I. The latter, however, is not an essential element of liability, it being sufficient to show that Coonis and his assignee intentionally took customers away from Rogers and Joroco with knowledge of the existing contracts and without justifiable cause. Downey, supra, 253 S.W.2d, l.c. 980, 981(6).

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