Kershner v. Hilt Truck Line, Inc.
| Decision Date | 02 August 1982 |
| Docket Number | No. 12481,12481 |
| Citation | 637 S.W.2d 769 |
| Parties | Jack KERSHNER and George Lillard, d/b/a Sunshine Express, Plaintiffs- Respondents, v. HILT TRUCK LINE, INC., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Devon F. Sherwood, Sherwood, Honecker & Bender, Springfield, for plaintiffs-respondents.
Michael O. Johanns, Peterson, Bowman & Johanns, Lincoln, Neb., Rodney E. Loomer, Springfield, Neb., Springfield, for defendant-appellant.
Plaintiffs Jack Kershner and George Lillard d/b/a Sunshine Express (hereinafter Sunshine) sued defendant Hilt Truck Line, Inc. (hereinafter Hilt). Sunshine alleged it had contracted with Hilt to haul a load of commodities from Pennsylvania to California via a Sunshine-owned tractor-trailer unit driven by Sunshine's employee Harold Johnson. Sunshine averred the contract had been fully performed but Hilt had refused to pay the agreed price for the performance. Following trial a judgment for Sunshine was rendered in the principal sum of $1,375 plus $125.79 interest and costs by the Circuit Court of Greene County, Missouri, Associate Division II. Hilt appealed.
Hilt owned no trucks and employed no drivers but had Interstate Commerce Commission (ICC) approval to direct freight into interstate commerce. To do so, Hilt utilized its ICC permit to hire trucks from truck owners driven by their drivers via trip leases on a trip by trip basis. From time to time, Hilt used the services of Jerry Dennis Trucking Service, Inc. (hereinafter Dennis) which was engaged in the trucking brokerage business in Springfield, Missouri. Dennis owned no tractors, trailers or other hauling equipment and was not in the business of hauling freight for hire or otherwise. As self-described by Dennis' "owner", it In other words, Dennis, for a fee, sought to effect the business state of conjugality betwixt shippers and physical carriers of freight.
The particular haul in question was predicated upon a printed "Lease Agreement for Motor Vehicle" form which was furnished by Hilt with the blanks therein unilaterally filled in by Hilt's agent. Hilt's full name was printed on the form as "Carrier." Typed on the form as "Contractor" was "Sunshine Express/Jerry Dennis Trucking/Springfield, Mo." The name of "Harold Johnson," Sunshine's employee-driver, was typed on the form as "Driver No. 1" and his written signature also appears in the signature space for "Driver No. 1." The space for the signature of "Agent of Carrier" was signed "Roberta J. Hamilton" and the entire agreement, executed by the "duly authorized agents" of "the parties" was signed "Harold Johnson (Contractor)" and "Roberta J. Hamilton (Carrier)." Although, as previously noted, Dennis was engaged in the truck brokerage business and owned no freight hauling equipment or vehicles, "Roberta J. Hamilton," Hilt's agent, signed the "Receipt for Possession of Motor Vehicle Equipment" section appearing on the form, indicating Hilt had received from "Jerry Dennis Trucking" the equipment described in the agreement which was solely owned and possessed by Sunshine. Additionally, it was never shown nor claimed by Hilt or any involved party that Harold Johnson, Sunshine's employee-driver, was ever authorized to or purported to be acting for or on behalf of Dennis in signing the agreement or otherwise. Also of interest is the fact that although Hilt claimed it paid Dennis an $800 advance on the lease agreement for trip expenses, Hilt's own record showed the advance money was actually delivered to Sunshine's employee Harold Johnson.
From what has just been observed anent the printed lease agreement, furnished and completed by Hilt, and the attending evidence thereto, we must agree with the trial court's conclusion that Dennis was not an actual party to the contract. We are unable to come by a firm belief that the judgment nisi is wrong or that there was no substantial evidence to support it or that the judgment is against the weight of the evidence or erroneously declares or applies the law....
To continue reading
Request your trial
-
McMullin v. Borgers
...and, for the purpose of maintaining a civil action, the assignee becomes the real party in interest. Kershner v. Hilt Truck Line, Inc., 637 S.W.2d 769, 771-772 (Mo.App.1982). "Admissions against interest are those made by a party to the litigation or by one in privity with or identified in ......
-
Midwestern Health Management v. Walker
...essential to recovery. Korte Constr. Co. v. Deaconess Manor Ass'n, 927 S.W.2d 395, 404 (Mo.App. E.D.1996); Kershner v. Hilt Truck Line, Inc., 637 S.W.2d 769, 771 (Mo.App. S.D.1982); Sonnenfeld Millinery Co. v. Uhri, 83 S.W.2d 168, 169 (Mo.App.1935). See also C & W Asset Acquisition, LLC v. ......
-
Metty v. Shurfine Cent. Corp.
...particular form, except in certain special cases with which we are not concerned. Section 517.050, RSMo 1978; Kershner v. Hilt Truck Line, Inc., 637 S.W.2d 769, 771 (Mo.App.1982). Such being the case, we must affirm the judgment if it is correct under any reasonable theory supported by the ......
-
Taylor v. Richland Motors
...thereon by plaintiff." Pemiscot County Memorial Hospital v. Bell, 770 S.W.2d 499, 502 (Mo.App.1989) (quoting Kershner v. Hilt Truck Line, Inc., 637 S.W.2d 769, 771 (Mo.App.1982)). Taylor's petition stated a cause of action for fraud against Richland Motors. It sufficiently advised Richland ......