Executive Jet Management & Pilot Service, Inc. v. Scott

• Decision Date: 22 December 1981
• Docket Number: No. WD,WD
• Citation: 629 S.W.2d 598
• Court: Missouri Court of Appeals
• Parties: EXECUTIVE JET MANAGEMENT & PILOT SERVICE, INC., Appellant-Respondent, v. James J. SCOTT, a/k/a Josef Scott, Respondent-Appellant. 31125.

Page 598

629 S.W.2d 598

EXECUTIVE JET MANAGEMENT & PILOT SERVICE, INC., Appellant-Respondent, v. James J. SCOTT, a/k/a Josef Scott, Respondent-Appellant.

No. WD 31125.

Missouri Court of Appeals, Western District.

Dec. 22, 1981.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Jan.

26, 1982.

Application to Transfer Denied March 16, 1982.

Robert M. Sommers, John F. Payne, Kansas City, for appellant-respondent Executive Jet Management & Pilot Service, Inc.

Charles C. Shafer, Jr., Charles C. Shafer III, Kansas City, for respondent-appellant Scott.

Before CLARK, P. J., and PRITCHARD and WASSERSTROM, JJ.

CLARK, Judge.

This case presents cross appeals by the respective parties from a multicount judgment on claims and counterclaims tried in part to a jury and in part to the court. Statement and analysis of the points on appeal must necessarily be preceded by a description of the claims, the content of the verdicts and a resumEe of facts gleaned from some 500 pages of transcript.

Suit by Executive Jet Management & Pilot Service, Inc. was brought against James J. Scott in three counts centering on the maintenance, use and sale of an Aero Commander airplane owned by Scott. In the first count, Executive Jet sought payment on an account for storage, fuel and repairs to the plane. In the second count, a claim was made for a commission alleged to be due for services in negotiating a sale of the plane. The last count was in replevin for two automobiles transferred as an adjunct to the airplane sale.

Scott filed counterclaims and cross claims. In his counterclaim, Count I and Count IV, he asked an accounting and damages for the alleged use by Executive Jet of Scott's plane in rental service. Count II was for an insurance premium refund payment converted by Executive Jet and Count III was for recovery of the certificates of title to the automobiles in Scott's possession, the subject of Executive Jet's replevin action. The last count was for actual and punitive damages against Roy Horridge, a principal in Executive Jet.

All counts except the replevin actions for the cars and the titles were tried to a jury with the following result: Executive Jet was awarded $9733.94 on Count I and $15,000.00 on Count II. Scott was awarded $7500.00 on his Count I counterclaim, $2050.00 on Count II and failed in his claim against Horridge on Count IV. The court, in a bench trial of the dispute over the automobiles, found in favor of Scott entitling him to retain the cars and requiring Executive Jet to deliver the titles.

Scott's appeal presents seven points of asserted trial error combined for opinion discussion as follows: (a) Instruction error (b) Newly discovered evidence (c) Default of Executive Jet's status to sue, and (d) Prejudicial witness comment. Executive Jet in its appeal contends that disposition of the replevin claims finds no support in the evidence and is against the weight of the evidence.

A somewhat lengthy recitation of the evidence in the case is unavoidable because the details of the several transactions between the parties are both extensive and essential to discussion of the points on appeal. That evidence, derived in the main from testimony by Horridge and Scott, was frequently and irreconcilably in conflict.

Executive Jet, a Missouri corporation, was engaged in the business of operating a used car agency, an aircraft leasing company and an air charter business. Roy Horridge was president of the company. In 1974, Scott purchased the Aero Commander from Kansas City Flying Service and, at the request of the latter, Horridge provided Scott some in-flight instruction as to operation of the craft. From this acquaintanceship, Horridge secured Scott's commission to handle maintenance of the airplane and the bills for expenses so incurred came to Executive Jet on the understanding that Scott would provide reimbursement.

In late 1974, Scott and Horridge agreed on an arrangement for Executive Jet to lease the airplane, apparently to customers of Executive Jet, on a fixed payment to Scott per flight hour. While the existence of such an agreement was not disputed, Executive Jet in its Count I claimed money due from Scott for expenses incurred in storing and servicing the plane. Scott, in his Count I counterclaim, asserted that he had not been paid fully for the hourly usage charge. By its verdicts, the jury netted out the respective claims, somewhat to the credit of Executive Jet, awarding plaintiff $9733.94 as reimbursable expenses offset by $7500.00 granted Scott for unpaid lease rentals.

The major controversy, to some extent associated with usage of the plane by Executive Jet, centered on an endeavor by Executive Jet to dispose of the airplane for the account of Scott. While Scott denied initiating any effort to sell or lease the plane, there was concurrence upon the fact that Horridge did negotiate with one Louis Krueger a proposal for an "Aircraft Purchase Order with Lease Option," which Scott accepted and signed. Under the terms of that document, Krueger Construction Company of Houston, Texas agreed to lease the Aero Commander for sixty months at a rental of $4226.50 per month or to purchase it for $190,000.00, the election to be made within thirty days from the contract date. The agreement also provided for a security deposit of $15,000.00 to be paid by Krueger at the signing of the contract.

All concerned agreed the written document did not accurately describe the agreement, but each recounted a different version of the transaction. According to Horridge, repairs and modifications made to the plane before delivery were to be at the seller's expense, Krueger was to be paid $25,000.00 in cash as allowance for the purchase of a spare engine and the $15,000.00 security deposit was fictitious and never was intended to be paid. Horridge described the deposit as a device intended to make the contract "marketable."

Scott denied knowledge of any agreement to pay Krueger for spare equipment, to waive the security deposit or to assume the expense for repairs and modifications. He testified that before the transaction was actually closed, Horridge requested $5000.00 because of renegotiation of the contract with Krueger, at which point Scott instructed Horridge to cancel the agreement. Before Scott could personally intervene, however, the airplane had been turned over to Krueger. Both Horridge and Scott agreed that Horridge was to receive $15,000.00 as a sale commission, but Scott claimed this was to be satisfied from the security deposit.

According to Krueger, who testified by deposition, the $15,000.00 security deposit and the $25,000.00 allowance for spare parts were actually included in the agreement to inflate the selling price which was much less than the $190,000.00 stated. The purpose served by exaggerating the sale price was not indicated nor was any witness asked why the $25,000.00 allowance was not credited against lease rentals. Krueger also testified that in place of the $25,000.00 to have been paid in cash, he received from Executive Jet payment of $5000.00 and a new Cadillac automobile. Scott was to pay him an additional $7500.00 in thirty days but he never received the money. Only one of the monthly lease payments was made by Krueger. The record is silent as to eventual disposition of the airplane, the Cadillac car and the lease contract. Suffice it to say that for all which appears in the evidence here, Krueger paid $4226.50 and received in turn the airplane, the Cadillac and $5000.00 cash.

The dispute over the other automobiles, a 1975 Lamborghini and a 1976 Cadillac (a different car from that delivered to Krueger), involved the alleged obligation for $25,000.00 to be paid Krueger for the spare airplane engine. According to Horridge, Scott did not have the cash to meet this item in the airplane transaction and he asked Horridge to advance it for his account. Such was Horridge's explanation for the $5000.00 payment to Krueger and the delivery of the new Cadillac, both supplied by Executive Jet. Horridge testified that in return for this advance, Scott pledged the Cadillac and the Lamborghini as collateral. Scott, to the contrary, denied not only any pledge of the cars but disclaimed both knowledge of and liability for any debt to Krueger or to Executive Jet for which any collateral would have been appropriate.

At all relevant times, the certificates of title to the Cadillac and the Lamborghini showed ownership in Civic Center Auto Sales, a registered fictitious name of Executive Jet. All parties agreed that Scott had paid for the cars. Horridge testified the cars were titled in the name of the dealership so that Scott could buy cars at wholesale prices and avoid paying sales taxes and license fees. The judgment directing Executive Jet to deliver the title certificates to Scott made no mention of the ownership question and did not direct any endorsement of the title certificates by the record owner, Civic Center Auto Sales.

Scott's post-trial motions included a request for a new trial because of newly discovered evidence. That motion was supported by the evidence of an arson investigator with the Kansas City Fire Department. Horridge had earlier testified that invoices substantiating claimed expenses for servicing Scott's airplane had been destroyed in a fire at Horridge's place of business. The testimony of the arson investigator was that he had been at the scene of the fire and had inspected various file cabinets and had found the records scorched but legible. The motions were overruled.

SCOTT'S APPEAL

INSTRUCTION ERROR

In his first points, Scott contends the verdict directing and damage instructions submitted on behalf of Executive Jet were deficient, deviated from the cause of action pleaded and were a source of confusion to the jury. Discussion of these points requires that the instructions be set out as given:

INSTRUCTION NO. 3

Your verdict must be for the...