Dietrich v. Cape Brewery & Ice Company, Energy Coal & Supply Co.

• Decision Date: 30 July 1926
• Docket Number: 25175
• Citation: 286 S.W. 38,315 Mo. 507
• Parties: Paul Dietrich, Doing Business under Trade Name of Blue Ribbon Ice & Fuel Company, Appellant, v. Cape Brewery & Ice Company, Energy Coal & Supply Company, F. W. Morrison and Celia Morrison, Doing Business under Firm Name of Morrison Ice & Fuel Company, M. J. Koeck and A. W. Robertson
• Court: Missouri Supreme Court

286 S.W. 38

315 Mo. 507

Paul Dietrich, Doing Business under Trade Name of Blue Ribbon Ice & Fuel Company, Appellant, v. Cape Brewery & Ice Company, Energy Coal & Supply Company, F. W. Morrison and Celia Morrison, Doing Business under Firm Name of Morrison Ice & Fuel Company, M. J. Koeck and A. W. Robertson

No. 25175

Supreme Court of Missouri

July 30, 1926

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

Affirmed.

Ward Reeves & Oliver for appellant.

(1) The petition alleges, and the proof shows, that defendants were guilty because they did create, enter into, become members of and participate in a pool, trust, agreement, combination confederation or understanding with and among themselves. All persons creating or entering into or becoming members of or participating in such agreement, are by statute made guilty of conspiracy in restraint of trade, and liable for treble damages "to any person injured in his business or property by reason thereof." Secs. 9655, 9656, 9657, 9658, 9662, R. S. 1919. (2) The petition clearly and aptly stated a cause of action against the defendants herein, both in form and substance. State ex inf. v. Lbr. Co., 260 Mo. 278, 283; State ex inf. v. Banking Co., 265 Mo. 387; State ex rel. v. Ice & Fuel Co., 259 Mo. 579; Brewing Co. v. Belinder, 97 Mo.App. 64; Walsh v. Assn., 97 Mo.App. 280; Kennis v. Safron & Ray, 193 Mo.App. 371; State ex rel. v. Ice Co., 246 Mo. 216; Sec. 9667, R. S. 1919. (3) Plaintiff's proof, as to the unlawful conspiracy, was abundant, and, we might add, practically admitted by defendants in their written statements offered in evidence, and in fact only denied by the bald statement of defendants Robertson, Koeck and Morrison. Secs. 9655, 9656, 9657, 9658, R. S. 1919; State ex rel. v. Ice Co., 246 Mo. 216; State ex rel. v. Ice & Fuel Co., 259 Mo. 578; State ex rel. v. Armour & Co., 265 Mo. 148; Heim Brewing Co. v. Belinder, 97 Mo.App. 68; Walsh v. Assn., 97 Mo.App. 289. (a) And plaintiff's proof as to his damages was uncontradicted. Books were all produced and audit was made of the books, auditor's conclusions given, and the oral testimony as to the value of the property and annual profits made. Defendants, all of whom were icemen, and the two wholesale ice dealers had for years previously supplied plaintiff with ice and knew the amount of ice sold by plaintiff each year, the wholesale and retail price, and from their own experience knew the overhead expense in handling such ice, yet no contradiction made by them as to the profit plaintiff claimed. Therefore, there was no dispute of the witnesses, as to the damages, and the jury allowed a sum much less than the proof showed plaintiff was entitled to. (4) Plaintiff was forced out of business by defendants' unlawful combination in restraint of trade, and he may recover for loss of his business, as a business, arising from the tort or wrong of defendants. 17 C. J. 795; Ganz v. Ry. Co., 220 S.W. 495; Galleys v. Rose, 207 Mo.App. 692; Morrow v. Ry. Co., 140 Mo.App. 213; Gildersleeve v. Overstalz, 90 Mo.App. 518, 528. (5) The trial court sustained the motions for new trial in this case upon the sole ground that the verdict was excessive. That was the only ground raised in the different motions for new trial, that the court sustained, and he overruled all other grounds, including the one set out in each motion for new trial that the verdict was against the weight of the evidence; and the court followed the statute in specifying the reason for granting a new trial. Sec. 1454, R. S. 1919; Fair v. Preston, 157 Mo.App. 324; Roe v. Bank, 167 Mo. 406; Stoner v. Royar, 200 Mo. 444; Gould v. St. John, 207 Mo. 619. An order for new trial, especially putting it on a certain ground, in effect, overrules all other grounds. Arkansas Lbr. Co. v. Lbr. Co., 252 S.W. 961.

Spradling & Dalton, Russell L. Dearmont and Oliver & Oliver for respondents.

(1) Only one error is assigned by appellant in this case: "The court erred in sustaining motions for a new trial, on the ground that the verdict was excessive." The statute not only recognizes the right of a trial court to set aside one verdict of a jury, but the trial court should do so whenever the trial judge is satisfied after having heard the evidence that the verdict as rendered is unjust, whether the motion for a new trial assigns that as a cause or not. Secs. 1453, 1454, R. S. 1919; Ewart v. Peniston, 233 Mo. 708; Rodon v. Transit Co., 207 Mo. 406; Gould v. St. John, 207 Mo. 632; Bank v. Wood, 124 Mo. 72; Haven v. Mo. Ry. Co., 155 Mo. 224; Schuette v. Transfer Co., 108 Mo. 21. (2) The appellate court is not restricted to the reasons assigned by the trial court for granting a new trial, if an examination of the record shows that the end reached by the trial court was right and just. Haven v. Railway, 155 Mo. 216, 224; Johnson Grain Co. v. Railroad Co., 117 Mo.App. 194. (3) This court will not interfere with the order of the trial court in sustaining a motion for a new trial, unless the error complained of was a judicial error. It will never interfere with the discretionary power of a trial court in granting a new trial for the first time where the discretion of the trial court is exercised in determining the amount of the verdict returned. Casey v. Transit Co., 186 Mo. 229; Haven v. Mo. Ry. Co., 155 Mo. 216; Ewart v. Peniston, 233 Mo. 709. (4) A heavy verdict always challenges the court's sharpest scrutiny. Devoy v. Transit Co., 192 Mo. 221. (5) Whether the verdict in this case was reasonable or excessive, was a question of fact, in the first instance, for the trial court to decide. That court had all the witnesses before it; observed their conduct and manner in testifying -- an important fact and vantage in considering the weight and determining the credit that should be given to the different witnesses. The trial court found as a fact, that the verdict returned by the jury in this case was excessive and that justice demanded that it should be set aside. The trial court's finding that this verdict was excessive is not a judicial error. It was the exercise of that sound discretion with which trial courts are vested, and this court ought not to disturb that finding of fact. Casey v. Transit Co., 186 Mo. 229; Haven v. Mo. Pac. Ry. Co., 155 Mo. 216. (6) Plaintiff was not entitled to any damages whatever: (a) His petition states no cause of action against these respondents, or either of them. Live Stock Co. v. Browning, 260 Mo. 324; United States v. Colgate, 250 U.S. 300, 63 L.Ed. 992; United States v. Trans.-Mo. Freight Assn., 166 U.S. 320. Harelson v. Tyler, 281 Mo. 398. (b) The "exhibits" made from the books of appellant and offered in evidence conclusively show that Paul F. Dietrich, appellant, did not own one dollar in the Blue Ribbon Company in 1919 nor in 1920. (c) If the "exhibits" made by Smith from the Blue Ribbon Company's books prove anything, they establish the fact that Ben Dietrich was the owner of the one-half interest in that company in December, 1919, and in December, 1920, and there is no testimony in appellant's record showing that this appellant ever acquired Ben Dietrich's interest after December 31, 1920. (d) The testimony fails to show any issuable facts upon which the jury could base or draw any inference of fact tending to show that the appellant had suffered damages. (7) In actions to recover penalties the pleadings are to be construed with the same strictness that indictments are. The facts constituting the gravamen of the action should be clearly and distinctly stated in order that it may appear that the case is within the statute. 30 Cyc. 1352. In actions under a penal statute the plaintiff, to recover, must bring his case clearly within the statute. Being in the nature of criminal prosecution, the evidence proving defendants' guilt must be beyond a reasonable doubt. Town of Glenwood v. Roberts, 59 Mo.App. 167, 170; Boesel v. Wells Fargo, 260 Mo. 463, 480. (8) The statute upon which appellant bottoms his case cannot be applied to Energy Coal & Supply Company. That company did not manufacture ice, but bought its supply from its co-defendants, with which it supplied its patrons. The business of this defendant was one of personal service, an occupation, and is not and could not come under the ban of the statute. Harelson v. Tyler, 281 Mo. 383; State ex rel. v. Associated Press, 159 Mo. 456. (9) There is no warrant in law, or in reason for any judgment against M. J. Koeck, president of Cape Brewery & Ice Company, nor against A. W. Robertson, president of Energy Coal & Supply Company, nor against Celia Morrison, wife of Captain F. W. Morrison. The two first named were acting for their respective corporations, and there was no testimony connecting Mrs. Celia Morrison with the matter at all.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

This suit is founded upon the provisions of Sections 9655-9658, Revised Statutes 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 $ 8000 as damages, and allowance for $ 1000 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' motions 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...