Gillioz v. State Highway Com'n

• Decision Date: 11 July 1941
• Docket Number: 37202
• Parties: M. E. Gillioz, Appellant, v. State Highway Commission
• Court: Missouri Supreme Court

153 S.W.2d 18

348 Mo. 211

M. E. Gillioz, Appellant, v. State Highway Commission

No. 37202

Supreme Court of Missouri

July 11, 1941

Appeal from Cole Circuit Court; Hon. Nike G. Sevier, Judge.

Affirmed in part, and reversed and remanded in part.

Finch & Finch, H. P. Lauf and Ward & Reeves for appellant.

(1) A provision for the payment of liquidated damages for delay in the completion of a contract cannot be enforced where the owner has delayed the prosecution of the work by the contractor by failure to timely do those things which under the contract the owner is required to do and when such failure results in delay to the contractor. 15 Am. Jur., p 696; 17 C. J. 964-965, sec. 263; Missouri Bridge & Iron Co. v. Stewart, 134 Mo.App. 618; Pittsburg Bridge Co. v. St. Louis Transit Co., 135 Mo.App. 579; Ward v. Haren, 139 Mo.App. 8; Mosler Safe Co. v. Maiden Lane Safe Deposit Co., 199 N.Y. 479, 93 N.E. 81, 37 L R. A. (N. S.) 363; Early v. Taussig, 148 N.W. 678; Bawman v. Peters, 231 N.W. 613; Berry v Huntington Masonic Temple Assn., 93 S.E. 355; Smith v. Tahlequah, 245 P. 995, 117 Okla. 204; Jefferson Hotel Co. v. Brumbaugh, 168 F. 867; Vitler Mfg. Co. v. Tygart Valley Brewing Co., 168 F. 1002; Caldwell v. Schmulbach, 175 F. 429; Standard Steel Car Co. v. United States, 67 Court of Claims, 445; Carroll v. United States, 68 Court of Claims, 500; United States v. United Engineering & Contracting Co., 58 L.Ed. 1294, 234 U.S. 236. (2) When a contract provides for liquidated damages to be paid by the contractor for failure to complete within a given time and delay is caused by the owner or by a failure on the part of both the owner and contractor, the provision for the payment of such liquidated damages is nullified and no liquidated damage can be collected or retained. Authorities under point (1). (3) When delays have been caused by both the owner and contractor the court will not attempt to apportion the delay between the parties, but under such circumstances all right to liquidated damages is waived. (4) It was error to permit witness O'Brien to testify that the Federal Bureau of Roads had passed upon appellant's claim for a return to him of the liquidated damages deducted from the amount he had earned under the contract and had denied such claim, such testimony being incompetent for any purpose, highly prejudicial and hearsay. 22 C. J., p. 741, sec. 832; Railroad v. Pfau, 212 Mo. 398; School Dist. v. Phoenix Land & Imp. Co., 297 Mo. 332; State ex rel. v. Artz, 45 S.W.2d 81; Rigley v. Pryor, 290 Mo. 10; Lewis v. Barnes, 220 S.W. 487; Baush Mach. & Tire Co. v. Aluminum Co. of Amer., 79 F.2d 217; Press Pub. Co. v. McDonald, 63 F. 238; Arey v. DeLoriea, 55 F. 323; Brown v. Union States, 298 F. 428. (5) It was error to admit in evidence defendant's Exhibit 5, identified by witness Harper, for the reason that it was not made by the witness and was shown to have been prepared by parties not witnesses, from records not made by the witness, and was, therefore, hearsay evidence. Wolf v. Mallinckrodt Chemical Co., 336 Mo. 746; Gordon & Koppel Clothing Co. v. New York Central Ry. Co., 285 S.W. 755; State ex rel. Macke v. Randolph, 186 S.W. 590; Stockwell Co. v. Union Pac. Ry. Co., 182 S.W. 829; Einstein v. Holliday-Klotz Land & Lbr. Co., 118 Mo.App. 184. (6) It was error for the court to sanction the improper cross-examination of plaintiff Gillioz about claims he had made against the Highway Department under other contracts by refusing to rebuke counsel for asking such questions and refusing to instruct the jury to disregard such questions. Dietz v. So. Pac. Ry. Co., 28 S.W.2d 395; Craig v. United Ry. Co., 185 S.W. 205; Shull v. Kallauner, 222 Mo.App. 64; Palmere v. Manhattan Ry. Co., 133 N.Y. 261, 30 N.E. 1001, 16 L. R. A. 136; State v. Burns, 286 Mo. 671; Levels v. St. Louis & Hannibal Ry. Co., 196 Mo. 606; Woztylak v. Kansas & Texas Coal Co., 188 Mo. 260; Ephland v. Mo. Pac. Ry. Co., 57 Mo.App. 147; Gore v. Brockman, 138 Mo.App. 231; Moon v. Doerr, 199 Mo.App. 428; Houck v. Tucker Truck Lines, 131 S.W.2d 366. (7) It was error to permit witness Willoch for defendant to testify that witnesses Rose and Bodeewes told him that they had no complaint against the shop inspector, his method of handling and the time he spent in the shop, such evidence being not only hearsay and incompetent, but highly prejudicial to plaintiff. Baker v. Keet-Rountree Dry Goods Co., 318 Mo. 969; Monan v. Arkansas Grocer Co., 264 S.W. 486; Spruce Co. v. Mays, 333 Mo. 582, 62 S.W.2d 824; Parks v. Marshall, 322 Mo. 218, 14 S.W.2d 590; Bello v. Stuever, 44 S.W.2d 619. (8) It was the duty of the court to construe the written contract and advise the jury by written instruction what the contract meant. Hahn v. Cotton, 136 Mo. 216; Ford v. Dyer, 148 Mo. 528; Evans v. Graden, 125 Mo. 72; Black River Lbr. Co. v. Warner, 93 Mo. 374; 13 C. J. 796. (9) Erroneous instructions are presumptively prejudicial. State ex rel. v. Ellison, 270 Mo. 645; John v. Pulitzer Pub. Co., 240 Mo. 200; Aronovitz v. Arky, 219 S.W. 620; Larsen v. Webb, 58 S.W.2d 967, 332 Mo. 370. (10) It was error for the court to give Instruction I for defendant, because: (a) It was not based on or authorized by the evidence, and when not so authorized is misleading, confusing and erroneous. Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Stewart v. Wenger, 125 S.W.2d 536; Mahoney v. K. C. Clay County, etc., Auto Transit Co., 46 S.W.2d 817; Althage v. Peoples Motorbus Co., 320 Mo. 598; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; State ex rel. v. Daues, 314 Mo. 282. (b) It gives undue prominence to certain facts. Zumwalt v. C. & A. Ry. Co., 266 S.W. 717; State ex rel. v. Ellison, 211 S.W. 880; Barr v. Kansas City, 105 Mo. 550; Rice v. Bridge Co., 216 S.W. 751. (11) It is error to give inconsistent instructions, whether the inconsistency is between plaintiff's and defendant's instructions or between two of defendant's instructions, and, therefore, Instruction K, given for defendant, is erroneous because conflicting with instructions 2 and 3 for plaintiff, and Instruction J for defendant. Manser v. Tebbetts Imp. Co., 143 Mo. 613; Towney v. United Ry. Co., 262 Mo. 610; In re 6th Street, 207 S.W. 503; O'Brien Boiler Works Co. v. Sievert, 256 S.W. 555; Nagy v. St. Louis Car Co., 37 S.W.2d 513; State ex rel. v. Ellison, 272 Mo. 571; Dameron v. Hamilton, 264 Mo. 103; Landon v. United Ry. Co., 237 S.W. 496; State ex rel. v. Ellison, 270 Mo. 656. (12) Instruction K, for defendant, is erroneous because it authorized the jury to apportion liquidated damages, which cannot be done under the law as properly declared in instructions 2 and 3 for plaintiff, and J for defendant. Authorities under point (1). (13) Instruction L given for defendant was erroneous, because: (a) The first part of the instructioo in an abstract statement of law which tended to confuse the jury and invite error. King v. Rieth, 341 Mo. 467; Lewis v. Kansas City Pub. Serv. Co., 17 S.W.2d 359; Perles v. Feldman, 28 S.W.2d 375; Schipper v. Brashear Truck Co., 132 S.W.2d 993. (b) The second part of the instruction was merely a roving commission to the jury to construe the long and complex contract and documents and, therefore, submitted questions of law to them and authorized the jury to interpret every provision of such contract and documents, and did not even confine the jury to the issues raised by the pleadings and evidence. City of Weston ex rel. v. Chastain, 234 S.W. 350pg383; City Trust Co. v. Crockett, 309 Mo. 683; Cockrell v. McIntyre, 161 Mo. 59; State ex rel. v. Ellison, 270 Mo. 645; Cooper v. Railroad, 123 Mo.App. 141.

James T. Blair, Jr., Louis V. Stigall and Ralph M. Eubanks for respondent.

(1) Instruction D in the nature of a demurrer to the evidence on Count I should have been given because of the failure of appellant to comply with the conditions of the contract relating to the arbitration of disputes. Coil v Insurance Co., 65 Mo.App. 247; Williams v. Chicago, S. F. & C. Ry. Co., 112 Mo. 463; McCormack v. St. Louis, 166 Mo. 315; Myers v. Union Electric L. & P. Co., 66 S.W.2d 565; United Construction Co. v. St. Louis, 69 S.W.2d 639; Early v. Taussig, 148 N.W. 678; Hawkins v. United States, 96 U.S. 689; American Sales Corp. v. United States, 32 F.2d 141; Sandy Hites Co. v. State Highway Comm., 347 Mo. 954. (2) Instruction E in the nature of a demurrer to the evidence on Count II should have been given because of the failure of appellant to comply with the conditions of the contract relating to the filing of an itemized written claim and those relating to the arbitration of disputes. Authorities under point (1). (3) Testimony concerning the position of the federal government on the claim of appellant was properly admitted to rebut testimony of a similar character first introduced by appellant. 22 C. J., p. 195, sec. 163; Dunn v. Alton Ry. Co., 88 S.W.2d 224; Crawford v. K. C. Stockyards Co., 215 Mo. 394, 114 S.W. 1057. (4) Exhibit 5 showing the days required to pass upon shop drawings was properly received upon a showing that the same was made under the supervision of respondent's witness Harper who also had direct supervision of the checking of shop drawings and the records kept in connection therewith. State v. Patton, 255 Mo. 245. (5) It was not prejudicial to pursue a similar line of questioning on cross-examination when objections thereto were sustained, no answers given and counsel desisted upon the first suggestion of prejudice, and this is especially true where the trial court found no prejudice therein. Brockman Comm. Co. v. Kilbourne, 111 Mo.App. 542, 86 S.W. 275. (6) An assignment of error for the reception of evidence will not be reviewed on appeal where such assignment was not preserved in the motion for new trial. Bartner v. Darst,...