Denney v. Spot Martin, Inc.

Decision Date21 October 1959
Docket NumberNo. 7783,7783
Citation328 S.W.2d 399
PartiesC. F. DENNEY d/b/a Joplin Lime Products Company, Plaintiff-Respondent, v. SPOT MARTIN, INC., Defendant-Appellant.
CourtMissouri Court of Appeals

David Waldman, Kansas City, Clifford H. Casey, Joplin, for defendant-appellant.

Paul E. Bradley, William O. Russell, Joplin, for plaintiff-respondent.

STONE, Presiding Judge.

In this jury-tried action on quantum meruit for the reasonable value of chat removed by defendant, Spot Martin, Inc., from a chat pile which plaintiff, C. F. Denney d/b/a Joplin Lime Products Company, had a right to sell, defendant appeals from a judgment of $5,871.40. Defendant admitted in the trial court, and here admits, its indebtedness to plaintiff in the sum of $1,237.56, this figure reflecting defendant's contention that it removed from plaintiff's chat pile only 6,187.8 tons of the reasonable market value of 20cents per ton. On the other hand, plaintiff's position has been and is that defendant removed not less than 15,300 tons of chat for which it is obligated to pay plaintiff the reasonable market value of 50cents per ton. So, the basic factual issues upon trial were as to the quantity and reasonable market value of the chat taken by defendant from plaintiff's pile. Of the six points briefed by defendant on appeal, three (in substance) challenge the sufficiency of the evidence to make a prima facie case for the jury and the others assert error in the trial court's admission of or refusal to strike certain testimony hereinafter noted. Our factual review gives appropriate recognition to the trite rule that, in determining at this stage of the litigation whether a submissible case was made, we must consider the evidence in the light most favorable to plaintiff-respondent, must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant's evidence except insofar as it may aid plaintiff's case. Songer v. Brittain, Mo.App., 272 S.W.2d 16, 20(7), and cases there cited.

Early in October 1956, one Mynatt 'Bud' Sumners, then defendant's superintendent on a paving project at the Joplin airport, called plaintiff at his quarry near Joplin and inquired concerning the price of one-half or three-quarter inch crushed rock. Plaintiff quoted $3.00 per ton for quarrying and crushing such rock but suggested that he had a 'small pile' of chat which probably would be suitable and sufficient for defendant's purposes, and which 'would be 60 to 65 cents a ton' with defendant to haul and weigh every load. According to plaintiff, Sumners 'was to go look at it and let me know if it was suitable'; but, having heard nothing from Sumners in the meantime, plaintiff discovered several days later that defendant was moving chat from this pile. Thereafter, plaintiff called Sumners' office 'a number of times' and 'left word for him to call' but never heard from Sumners. No weight tickets were given to plaintiff until 'right at the end of the deal,' and those finally supplied by defendant included none for the month of October 1956, and accounted for only some 3,000 tons of chat. Upon trial, plaintiff adduced positive evidence that some of defendant's trucks 'would by-pass the scales without weighing part of the material' being hauled from plaintiff's chat pile.

Plaintiff testified that, prior to defendant's hauling, the chat pile 'was built up like a hay stack or a loaf of bread'; that, at a point 15 feet east of the west perimeter of the pile, it attained a height of 20 feet; that, at a point 12 feet west of the east perimeter of the pile, it attained a height of 24 feet; and, that the pile was 'an average of 22 feet in height.' Plaintiff's witness Matters, who operated 'a high loader' at the pile when defendant first started to haul, stated that the pile attained a height of about 18 feet at a point 15 to 20 feet east of the west perimeter and that its maximum height at the other end (not estimated by this witness) was attained at a point about 15 feet west of the east perimeter.

Plaintiff's witness Southern had been around the pile 'a lot of times' over a period of 20 to 25 years, had observed the pile immediately after defendant had ceased hauling from it, and had looked at it again about two hours before testifying. Southern said that, on the day of trial, the chat pile 'looked just like it did' at the termination of defendant's hauling; and, when defendant's counsel insisted on cross-examination that 'you could be * * * just a little mistaken in that the contour is identical,' the extent of Southern's concession was 'a little, but not much'--'might be one load of gravel, but that would be about all.' Further cross-examination of Southern in an unsuccessful effort to show that 'the pile could have spread out from where it was originally' elicited the positive, unequivocal answer that 'it didn't,' and the plain substance of his testimony was that defendant's loading did not scatter the chat and spread the pile, from all of which the jury reasonably could have found that there had been no material change in the perimeter of the pile during the extended period of Southern's intermittent observations.

Plaintiff's expert witness, Karl Koelker, a civil and mining engineer with 20 years of experience, personally inspected the residue of the chat pile several months after defendant's hauling had terminated, and prepared a contour map, drawn to scale, which outlined the perimeter of the pile not only at its base but also at various elevations. With this data and his further finding that one cubic foot of the chat weighed 100 pounds, Koelker determined that 1,622 tons of chat remained in the pile at the time of his inspection. Koelker also made two calculations as to the tonnage in the chat pile prior to defendant's hauling, and it is of the admission of this testimony that defendant here complains most bitterly. Both calculations, and both hypothetical questions in response to which they were received in evidence, were predicated upon Koelker's 'actual observations of the location of the perimeter of the pile,' his personal finding that a cubic foot of the chat weighed 100 pounds, and certain assumptions as to the height and slope of the pile at each end. One hypothetical question as sumed a height of 20 feet attained at a point 15 feet east of the west perimeter of the pile and a height of 22 feet attained at a point 12 feet west of the east perimeter, and the other hypothetical question assumed a lower height of 18 feet attained at a point 15 feet east of the west perimeter and a height of 22 feet attained at a point 15 feet west of the east perimeter. Upon the first hypothesis, Koelker testified that the chat pile would have contained approximately 18,103 tons and, upon the second hypothesis, approximately 15,960 tons.

As stated in his points relied upon, defendant complains that the hypothetical questions to witness Koelker 'were based on facts not in evidence and did not contain sufficient facts upon which to base an opinion.' In considering this assignment, we bear in mind the long-established rule of practice that '(i)t is the duty of counsel, objecting to a hypothetical question on the ground that it assumes facts not in evidence or that it omits facts shown in evidence, to point out what matters not in evidence are assumed in and what matters in evidence are omitted from such question. Failing to do this, the trial court is fully justified in overruling the objection.' Scheipers v. Missouri Pacific R. Co., Mo., 298 S.W. 51, 54; Morton v. St. Louis-San Francisco Ry. Co., 323 Mo. 929, 953, 20 S.W.2d 34, 45; Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 803, 184 S.W.2d 454, 456. In other words, an objection to a hypothetical question is legally sufficient and effective to present and preserve error only insofar as it specifically points out why the question is improper, what has been assumed or included without evidentiary basis, and what essentials have been omitted. 1

We are of the opinion that defendant's present contention that the hypothetical questions to witness Koelker 'were based on facts not in evidence' is without merit because all of the assumptions hypothesized as to the height and the slope of the chat pile were within the maximum figures theretofore adduced in evidence and neither hypothetical question purported to have been predicated solely upon the testimony of either plaintiff or witness Mattes, both of whom had testified (as hereinbefore reviewed) concerning height and slope. But, in any event, 'the insuperable difficulty' [Brown v. Rayne, Mo., 264 S.W.2d 341, 346] with any appellate complaint that these hypothetical questions 'were based on facts not in evidence' is that no such objection was made in the trial court and counsel did not there suggest what, if anything, had been assumed or included improperly. Scheipers v. Missouri Pac. R. Co., supra, 298 S.W. loc. cit. 54(6); Taylor v. Kelder, 229 Mo.App. 1117, 88 S.W.2d 436, 443(7); Zeller v. Wolff-Wilson Drug Co., Mo.App., 51 S.W.2d 881, 884(7).

With respect to the complaint that the hypothetical questions to witness Koelker 'did not contain sufficient facts upon which to base an opinion,' we observe that defendant's trial objections specifically asserted factual inadequacy only as to the perimeter of the pile and as to 'the size of the contour.' As for the perimeter, the hypothetical questions were bottomed upon Koelker's 'actual observations of the location of the perimeter of the pile,' which had been recorded with precision on his contour map; and, although Koelker's inspection of the pile was subsequent to termination of defendant's hauling, we cannot say that his computations were made upon factually inadequate date as to the location of the perimeter when the testimony of witness Southern showed that there had been no material change in the perimeter as a result of the hauling. As for ...

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