Dolgin v. Potter Elec. Signal Co.
| Decision Date | 06 April 1976 |
| Docket Number | No. 36128,36128 |
| Citation | 536 S.W.2d 61 |
| Parties | Gilbert DOLGIN, d/b/a, G. Dolgin Candy & Tobacco Company, Plaintiff-Appellant, v. POTTER ELECTRIC SIGNAL CO., a corporation, d/b/a Potter Electric Signal& Manufacturing Co., d/b/a Merchants Alarm Service, Defendant-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Dolgin, Juncker & Bielenson, Clayton, for plaintiff-appellant.
Evans & Dixon, Eugene K. Buckley, St. Louis, for defendant-respondent.
This appeal from a judgment of the Circuit Court of the City of St. Louis wherein the trial court sustained respondent's motions for directed verdict on Counts I, III and IV of appellant's Second Amended Petition and a jury found for the respondent on Count II of said Second Amended Petition, raises three grounds of alleged trial error which appellant contends entitle him to a reversal of the judgment and a remand to the trial court for a new trial. We have examined the three points and find them to be without merit. We therefore affirm.
Count I of appellant's Second Amended Petition alleged that he entered into two written contracts with the respondent on July 8, 1963, and July 15, 1963, whereby respondent was to provide an electric burglar alarm system to appellant's premises; that on November 23, 1967, the premises were burglarized and the burglar alarm system was unfit for the purpose for which it was intended in that it failed to notify the respondent that appellant's premises were being burglarized; that by reason of the failure of the burglar alarm system the burglary of the premises went undetected so that merchandise, money and miscellaneous items were stolen from the appellant's premises valued in an amount of $10,158.04. Count II alleged essentially the same allegations in Count I and further alleged that the failure of the burglar alarm system was due to the manner in which the system was installed by the respondent in that some of the electrical wiring was exposed so that it could be made inoperable by cutting of the exposed wiring. Count III was based upon fraud and alleged that respondent through its agents, intending to deceive appellant and induce him to purchase the particular burglar alarm system, made false and fraudulent representations that the alarm service and protective service could not be made inoperable by the breaking or cutting of any of the wires of the system and that once the alarm had commenced sounding, the total alarm system could not be stopped or made inoperable except by the use of a 'shunt key' which would turn off the entire system, whereas in fact, the entire system could be and was rendered inoperative by the cutting of the exposed wires; that at the time of making these statements the respondent's agents knew that the statements were false and that the appellant had a right to rely, and did rely, on these statements, was thereby induced to purchase, and did purchase the burglar alarm system, and was thereby damaged in an amount of $10,158.04 when his premises were burglarized and the alarm system did not function. Count IV realleged all of the allegations contained in Count III and sought punitive damages in an amount of $100,000.00 for the alleged fraud or the utter disregard of appellant's rights. Respondent's Answer in the trial court admitted that it entered into a written agreement with the appellant for the installation and maintenance of an electric alarm system in appellant's premises and denied all other allegations of the Second Amended Petition other than those relative to the corporate existence of the parties and the nature of appellant's business. In further answer, respondent alleged liquidated damages in an amount of $50.00 under the Merchant's contract and $55.00 under the Potter contract. 1 It further pleaded that the failure of the alarm system to notify respondent of the burglary was due to causes beyond its control. With the pleadings in this state the cause was tried.
The evidence at trial was that in 1963, Gilbert Dolgin, d/b/a Dolgin Candy & Tobacco Co. moved into the premises at 3697 Market Street in the City of St. Louis. Prior to making the move he sought to ascertain from a nember of burglar alarm companies different systems available to him for protection against burglaries. In his former location he had an alarm system consisting of a 'local bell' on the outside of the store which when activated would ring loudly alerting those within earshot that an attempt to enter the business premises had been made or accomplished. He talked with Clarence Baker of Merchants Alarm Company and with Alexander Hill of respondent Potter Electric Signal Company sometime prior to July, 1963, and had decided to install an L.A.T. System (Late Alarm System) sold by Merchants with the local bell part of the system to be supplied by Potter. It was stipulated between the parties at trial that Potter had bought out Merchants sometime in June, 1963, but this was not revealed to Mr. Dolgin and Mr. Hill denied that he had any knowledge of the fact during his negotiations with Mr. Dolgin prior to the execution of the contracts with Potter on July 8, 1963, and with Merchants on July 15, 1963. During his negotiations with Mr. Dolgin, Mr. Hill recommended the installation of a 'direct line system.' The difference between the two systems is that in the direct line system any interruption in the circuit of the burglar alarm system is immediately reported to the central office of the burglar alarm service which can immediately notify the police and the owner that the premises have been broken into. The Late Alarm System, on the other hand, consists of a bell located on the premises which is activated when a circuit is broken and commences ringing to attract the attention of anyone in the vicinity; then, within 35 seconds, an alarm is sounded at the central office of the burglar alarm service which can thereafter notify the police and the owner of the break-in. Mr. Dolgin preferred the latter because he was of the opinion that the sounding of the bell would drive off the burglars whereas the absence of a bell would afford a burglar an opportunity to leave the scene with some of his merchandise before the police arrived. Furthermore, it was more convenient, because the Late Alarm System was placed in operation by the use of a 'shunt key' inserted from the exterior of the building into the system thereby turning the system on. This would allow 35 seconds to open the door and activate the bell to see to it that the system was functioning. So long as the door was closed within 35 seconds the central office would not be alerted. This Mr. Dolgin said he could not do with the direct line system. The direct line system was, in Mr. Hill's opinion, the better system for Mr. Dolgin considering his location and the nature of his merchandise. Mr. Dolgin had decided upon the installation of the Late Alarm System with Mr. Baker and the installation of the local bell component with Mr. Hill. There was some conflict between the testimony of Mr. Dolgin and Mr. Hill whether both contracts were delivered to Mr. Dolgin simultaneously. Mr. Dolgin testified they were and Mr. Hill's testimony was that he delivered only the Potter contract. The difference in the dates on the contracts was due to the fact that Mr. Baker was out of town and could not witness the Merchants' contract until a week after he returned. Although Mr. Dolgin indicated to Mr. Hill that he wanted to go over the contracts with his lawyer, he testified that he was urged to, and did sign them without consulting with his lawyer about them.
On November 23, 1967, appellant was contacted by the St. Louis Police at his home and informed that his business premises had been burglarized during the night. He went from his home to the business and observed that a layer of bricks had been removed from the east wall of the building and the back doors were knocked in with one of the doors hanging on its hinges. The...
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...and the conclusions he reached; and he may not then say that he relied on the misrepresentations of another, Dolgin v. Potter Elec. Signal Co., 536 S.W.2d 61 (Mo.App.1976); Consumers Co-op Ass'n v. McMahan, 393 S.W.2d 552 (Mo.1965); Bayer v. American Mut. Cas. Co., 359 S.W.2d 748 (Mo.1962).......
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...must appear prima facie before evidence of alleged inconsistent statements become competent. . . . " Dolgin v. Potter Elec Signal Co., 536 S.W.2d 61, 66 (Mo.App.1973); State ex rel. State Highway Comm'n v. Fenix, 311 S.W.2d 61, 64 (Mo.App.1958). It is unclear exactly what Mrs. Simmons meant......
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