Dietrich v. Cape Brewery & Ice Co.

• Decision Date: 30 July 1926
• Docket Number: No. 25175.,25175.
• Court: Missouri Supreme Court
• Parties: DIETRICH v. CAPE BREWERY & ICE CO. et al.

286 S.W. 38

DIETRICH v. CAPE BREWERY & ICE CO. et al.

No. 25175.

Supreme Court of Missouri, Division No. 1.

July 30, 1926.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

Suit by Paul Dietrich, doing business under the trade-name of the Blue Ribbon Ice & Fuel Company, against the Cape Brewery & Ice Company and others. From a grant of defendants' motion for a new trial, plaintiff appeals. Affirmed, and cause remanded.

Ward, Reeves & Oliver, of Caruthersville, for appellant.

Spradling & Dalton, of Cape Girardeau, for respondents Robertson and another.

Russell L. Dearmont, of Cape Girardeau, for respondents Cape Brewery & Ice Co. and another.

Oliver & Oliver, of Cape Girardeau, for respondents F. W. Morrison and another.

LINDSAY, C.

This suit is founded upon the provisions of sections 9655-9658, R. S. 1919. The petition charges the creation and maintenance by defendants of an agreement and combination in restraint of trade, and of competition in the manufacture and sale of ice in the city of Cape Girardeau, whereby it is alleged plaintiff was forced out of business as a retail dealer in ice and was damaged.

The plaintiff had a verdict for $8,000 as damages, and allowance for $1,000 as attorney's fees. The amount allowed as damages was trebled on motion, under the provision of section 9662, and judgment for $25,000 was rendered against the defendants. The trial court sustained defendants' motion for a new trial, and specified of record as the single ground therefor excessiveness of the verdict. It may be noted at this time that the record, as originally entered, erroneously recited that the motion was sustained because the verdict was against the weight of the evidence, and because the verdict was excessive, but later this was corrected by nunc pro tunc order, confining the ground to excessiveness of the verdict.

Counsel for plaintiff say that the sustaining of the motion upon the ground that the verdict was excessive "constituted an overruling of all the other grounds assigned. That is true. Kersten v. Hines, 283 Mo. 634, 223 S. W. 586. They suggest that, since the court overruled the assignment that the verdict was not sustained by the weight of the evidence, but allowed the motion on the ground of excessiveness of the verdict, it follows conclusively that the motion was not sustained on the latter ground upon the question of the weight of the evidence. This does not necessarily follow, because a trial court may well believe that the evidence is sufficient to sustain a verdict in favor of a plaintiff, and yet, in consideration of the evidence as to the amount of damage, properly hold that the verdict actually rendered was excessive in amount. In Gaty v. United Railways Co., 286 Mo. 503, 227 S. W. 1041, the defendant was granted a new trial upon the sole ground of newly discovered evidence, one of many assigned in the motion. That ground was held to be not good upon the appeal, and, upon a review of the evidence, the order granting a new trial was sustained upon sole ground that the verdict was excessive. That was done under the rule there stated (loc. cit. 522 ):

"We are not confined to a consideration of the particular ground on which the trial court based the order. If the respondent brings to our attention other grounds of the motion, which, on the record, entitled him to a new trial, we affirm the order despite the invalidity of the ground upon which the trial court acted."

But in such case the burden rests upon the respondent to show that, upon grounds contained in the motion, other than those specified by the trial court, the verdict was properly set aside. State ex rel. v. Thomas, 245 Mo. loc. cit. 73, 149 S. W. 318; Kersten v. Hines, supra.

Acting upon this rule, counsel for defendants, in joining issue with plaintiff, upon the ground specified, insist that the order is sustainable on the grounds that plaintiff did not state nor prove a cause of action for recovery of damages against defendants, or either of them. It is insisted that the evidence did not sustain the charge of making and carrying out an unlawful conspiracy, and that defendant Energy Coal & Supply Company, which was not a manufacturer of ice, but bought of its codefendants the ice retailed to its customers, was not, by reason of any agreement with the defendants, under the ban of the statute.

The petition charged that since the ____ day of ___, 1920, the plaintiff was engaged in the business of selling ice at retail in the city of Cape Girardeau; that he and his predecessors, from whom he had acquired the business, during the 12 preceding years, had built up a large and profitable business in handling and selling ice at retail under said trade-name; that defendant Energy Coal & Supply Company, a corporation, for more than 2 years prior to filing the suit was in the business of handling and selling ice at retail in said city; that the Cape Brewery & Ice Company, a corporation, had for many years been engaged in the business of manufacturing ice and selling it at wholesale in said city; that defendant Morrison Ice & Fuel Company, a copartnership, had likewise, for many years been engaged in the business of manufacturing ice and selling it at wholesale in said city, and that the defendants Koeck and Robertson were presidents, respectively, of the Cape Brewery & Ice Company and Energy Coal & Supply Company.

The petition is in one count, uses the language of the statute, and charges the creation of an agreement and combination between defendants in restraint of trade and competition in the manufacture, purchase, and sale of ice in said city, and that it was entered into by defendants to regulate, control, and fix the price of ice in both wholesale and retail quantities in said city, and to fix and limit the amount and quantity of ice to be delivered and sold and the retailers to whom ice should be sold in wholesale quantities in said city ; that defendants by their agreement divided the city into zones and divisions, and designated the only persons to whom ice should be sold in wholesale quantities within said city, and by their said unlawful agreement each and all of them refused to furnish or sell to plaintiff any ice in wholesale quantities, and refused to allow plaintiff to carry on his business of selling ice at retail in said city ; that defendants entered into said agreement to control and limit the retail trade in ice in said city, and to limit competition in such trade by refusing to sell to plaintiff, for the reason that plaintiff would not and did not become a member or a party to such combination ; that defendants by said agreement boycotted the plaintiff, because he refused to become a member or party to such agreement; that defendants agreed together to raise the retail price of ice in said city, and, because plaintiff refused to become a party to said agreement, they agreed together to refuse and did refuse to sell plaintiff any more ice, and that defendants at said time divided the city into zones or territorial divisions and designated only one person to sell ice at retail in each of said divisions, and agreed together to stifle trade and limit competition and present more than one person from selling ice at retail to consumers in each of said territorial divisions; that the purpose and intention of defendants by said unlawful agreement and combination was to stifle trade, increase the price of ice to the consumers, and thereby greatly injure the public and the people of said city. The plaintiff then alleged that the defendants still maintain and are still carrying out their said unlawful agreement, and have continuously maintained the same, to the great damage and injury of plaintiff and his trade, and to the great damage and injury of the public and people of said city; that, on account of said agreement and combination, the plaintiff was forced to and did undertake to buy ice in other cities, but, on account of the distance, the freight rates, and loss in transport, he was unable to successfully carry on his retail ice business, and was forced to and did quit and abandon that business; that, on account of the unlawful combination and acts of defendants, he had entirely lost his ice business in said city, which had cost him a large sum to build up and carry on, and which had been damaged and destroyed, and that he had lost a large amount in profits, covering a period of more than one year before the filing of the suit, and he alleged that he had been damaged thereby in the sum of $15,000.

The defendants did not demur to the petition, but filed their motions to have plaintiff required to file a bill of particulars, alleging that they were not advised by the petition upon what facts the plaintiff sought or expected to recover damages, and that there was no statement in the petition indicating the basis upon which he expected to recover damages. This motion was overruled ; defendants excepted, and filed a term bill of exceptions. Answers were filed, each of which was a general denial. Under section 9067, R. S. 1919, it is provided that it is not necessary to plead the manner in which or when or where such agreement or combination was made.

The petition charges the making of an agreement and combination, and its nature and purpose, the acts done thereunder by defendants, the division of the city into zones, the designation of only one person in each zone to whom ice should be sold in wholesale quantities, the refusal to sell to plaintiff for the reason that he refused to be a party to the agreement and that thereby his profitable business was destroyed, to his damage.

As to what it is necessary to plead in suits of this character, the rule is laid down in 12 Corpus Juris, § 218, p. 631:

"In alleging damage, it is not sufficient simply to state that damage did in fact result, but the facts should be alleged from which the court can see, if the facts are true, that damage would...