Interstate Petroleum Distributors, Ltd. v. F & B Investments, Inc.

• Decision Date: 10 September 1991
• Docket Number: 17011,Nos. 16992,s. 16992
• Citation: Interstate Petroleum Distributors, Ltd. v. F & B Investments, Inc., 816 S.W.2d 263 (Mo. App. 1991)
• Parties: INTERSTATE PETROLEUM DISTRIBUTORS, LTD., a Limited Liability Company, Plaintiff-Appellant, v. F & B INVESTMENTS, INC., d/b/a Fast Stop, Robert Betz, M.D. and Betty Betz, Gerald Davis Fagan and Linda Fagan, Defendants-Respondents. INTERSTATE PETROLEUM DISTRIBUTORS, LTD., a Limited Liability Company, Plaintiff-Respondent, v. F & B INVESTMENTS, INC., d/b/a Fast Stop, and Gerald Davis Fagan, Defendants-Appellants, Robert Betz, M.D., Betty Betz, and Linda Fagan, Defendants.
• Court: Missouri Court of Appeals

Page 263

816 S.W.2d 263

INTERSTATE PETROLEUM DISTRIBUTORS, LTD., a Limited Liability

Company, Plaintiff-Appellant, v.F & B INVESTMENTS, INC., d/b/a Fast Stop, Robert Betz, M.D. and Betty Betz, Gerald Davis Fagan and Linda

Fagan, Defendants-Respondents.

INTERSTATE PETROLEUM DISTRIBUTORS, LTD., a Limited Liability

Company, Plaintiff-Respondent, v.F & B INVESTMENTS, INC., d/b/a Fast Stop, and Gerald Davis

Fagan, Defendants-Appellants,

Robert Betz, M.D., Betty Betz, and Linda Fagan, Defendants.

Nos. 16992, 17011.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 10, 1991.

Motion for Rehearing or to Transfer Denied Oct. 2, 1991.

Evelyn A. Gwin, Springfield, Donald J. Adams, Harrison, Ark., for Interstate Petroleum Distributors, Ltd.

M. Corinne Corley, Arens & Alexander, Fayetteville, Ark., for F & B Investments, Robert Betz, M.D. and Betty Betz, Gerald Davis Fagan and Linda Fagan.

FLANIGAN, Chief Judge.

PlaintiffInterstate Petroleum Distributors, Ltd., a "limited liability company" organized under the laws of Wyoming, ("Interstate"), brought this action against defendantsF & B Investments, Inc., ("F & B"), Robert Betz, M.D., Betty Betz, Gerald Fagan and Linda Fagan.

Count I of the petition, directed against F & B, sought $44,562.67, later reduced to $43,857.34, which was the allegedly unpaid price of gasoline and diesel fuel furnished by Interstate to F & B from January 10, 1987, until January 20, 1987, at F & B's Fast Stop service station near Neosho.F & B's answer to Count I was a general denial.

Count II, directed against Gerald Fagan, sought $906.10, which was the allegedly unpaid price of petroleum products sold by Interstate to Gerald Fagan on December 31, 1986.Gerald Fagan's answer to Count II was a general denial.

Count III, directed against the four individual defendants, was based upon a guaranty executed by the Betzes and a separate guaranty executed by the Fagans, whereby the guarantors assumed responsibility for the debts of F & B, including the debt alleged in Count I.The individual defendants filed a general denial to Count III and then pleaded the following: "Further answering, DefendantsRobert Betz, Betty Betz, Gerald Davis Fagan and Linda Fagan state that the personal guaranty on their part, if any, was subsequently cancelled as a result of a satisfaction and accord reached between the parties."

The case was tried to a jury.On the morning of the trial, defendant F & B received permission to amend its answer to Count I by pleading a "set-off."The set-off, as submitted to the jury, was based on the claim that Interstate furnished "motor fuel" to F & B "during a period between the latter part of 1984 through January 20, 1987," and Interstate did not deliver to F & B the amount of motor fuel as set forth in its invoices during such time period and Interstate charged F & B $44,217 for motor fuel not delivered.

Both sides filed motions for directed verdicts, the motions were denied, and the issues were submitted to the jury.The jury found in favor of Interstate on Count I and assessed the damages at $43,857.34.The jury also found in favor of Interstate on F & B's claim of set-off.The jury found in favor of Interstate on Count II and assessed the damages at $907.52.¹On Count III the jury found in favor of the Betzes and the Fagans.Judgment was entered on the verdicts.

Post-trial motions filed by both sides were denied.Interstate appealed.Defendants F & B and Gerald Fagan joined in a separate appeal.The appeals were consolidated and will be treated separately in this opinion.

F & B claims that the trial court erred: (1) in failing to grant F & B judgment notwithstanding the verdict on Count I because the evidence was insufficient to support that verdict, (2) in failing to grant F & B judgment notwithstanding the verdict on the issue of set-off because there was no substantial evidence to support the verdict in favor of Interstate on F & B's claim for set-off, and (3) in not directing a verdict in favor of F & B for a set-off for the value of 4,000 gallons of gas because the uncontroverted evidence established F & B's entitlement to that set-off.

DefendantGerald Fagan claims that the evidence is insufficient to support the verdict in favor of Interstate on Count II.

Interstate claims that the trial court erred in permitting the individual defendants to testify, over Interstate's objection, to matters which conflicted with the written guaranties, including testimony that the liability of each set of spouses was limited to 50 percent of any indebtedness of F & B. Interstate also claims that it is entitled to relief on Count III as a matter of law.

In 1984 Interstate acquired the assets and liabilities of Ozark County Gas Company, which was a supplier of gasoline and diesel fuel to F & B's service station in Neosho.DefendantsRobert Betz and Betty Betz, husband and wife, owned 50 percent of F & B, and defendantsGerald Fagan and Linda Fagan, husband and wife, owned the other 50 percent.Interstate continued to supply F & B with the petroleum products through January 20, 1987.The deliveries which were not paid for by F & B, and which were represented by the invoices introduced into evidence by Interstate, took place between January 10 and January 20.The balance due on the unpaid account, according to Interstate's evidence, was $43,857.34, which was the amount the jury awarded to Interstate on Count I.

DefendantGerald Fagan testified that there was a discrepancy between the number of gallons of fuel billed by Interstate and the number of gallons actually received by F & B. Fagan and Betz attempted to determine the amount of the claimed shortage.Fagan testified that he and Betz determined that the shortage was 60,000 gallons, that is F & B had paid for but failed to receive that amount.Fagan calculated that overpayment at $44,217.This claim was based, at least in part, on so-called "stick readings" made by the delivery truck driver at the time the fuel was delivered to F & B's tank.

Fagan testified that after he"went through these invoices"he talked to his attorney and that because of the "Interstate shortage I had uncovered, we began to pull loads of gas in and diesel fuel, six or seven loads, because I didn't want to be doing this out in Denver where [Interstate's] office is, trying to get my money back."

Robert Betz testified that for 1986 the shortage amounted to 30,000 gallons, but also testified he would "accept" Fagan's figure of 59,236 gallons.

Brian Snelson, a defense witness, testified that the shortage for 1986 was 30,169 gallons.

Leonard Cardwell, a witness for Interstate, testified that he examined the records of F & B to see if there was a variance between the invoices and the amount delivered to F & B.He used F & B records, which included readings from totalizers which are measuring devices on the fuel dispensers at F & B's station.Readings from meters at the pipeline terminal at which the shipments originated were introduced into evidence.For 1986 Cardwell found an overage of 773 gallons of regular gasoline, and shortages of 3,865 gallons of unleaded gasoline and 1,213 gallons of diesel fuel.

Cardwell also testified, without objection, that based upon his experience in the oil industry the variances he found at the Fast Stop Neosho store in 1986 were acceptable and that for other oil and gas customers of his CPA firm, he would "find a similar variance over a 12-month period as he found in this case."There was also evidence that the shortage of 4,305 gallons found by Cardwell arose in total sales of 1,816,461 gallons.

F & B's evidence concerning the shortages was based on stick readings.Interstate introduced evidence that stick readings were inaccurate and unreliable.

APPEAL OF DEFENDANTS F & B AND GERALD FAGAN

F & B contends that the evidence was insufficient to support the verdict in favor of Interstate on Count I. F & B claims that there was "a lack of substantial evidence to support the verdict in favor of Interstate on F & B's claim of set-off, and that the trial court erred in not entering a judgment notwithstanding the verdict which would award F & B the $44,000 set-off."F & B also contends that under the evidence it was entitled to a set-off of $44,000, based on Fagan's testimony concerning the shortage of 60,000 gallons.These contentions will be considered together.

In determining whether Interstate made a submissible case, this court must review the evidence in the light most favorable to Interstate and give it the benefit of all inferences which may reasonably be drawn and which support the petition.Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848, 849(Mo. banc 1975);Walters v. Maloney, 758 S.W.2d 489, 495(Mo.App.1988).Whether a jury verdict is against the weight of the evidence is a question for the trial court alone.Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 917(1951);Mayfield v. Metropolitan Life Insurance, 585 S.W.2d 163, 164(Mo.App.1979).Appellate courts do not weigh the evidence in a case tried before a jury.State ex rel. State Highway Commission v. Twin Lakes Golf Club, Inc., 470 S.W.2d 313, 315(Mo.1971);Walters v. Maloney, supra, at 497.See alsoNeavill v. Klemp, 427 S.W.2d 446, 449(Mo.1968).

F & B asserts the testimony given by Fagan, whom it calls its "main witness," was credible.Fagan's calculation of shortages was based on "stick readings."F & B argues that the testimony of Interstate's witness Hunt, to the effect that stick readings are inaccurate, was not credible.F & B states: "The jury ignored evidence from both parties that the amount of gasoline in F & B's tanks was less than F & B was to receive from Interstate.Even taking into consideration that F & B's calculations of the shortage were higher than Interstate's, it cannot be said that the jury's failure to take the shortage into account in some fashion was less than arbitrary."

F & B's arguments address...