Ligon Specialized Hauler, Inc. v. Inland Container Corp.

• Decision Date: 24 April 1979
• Docket Number: No. 38226,38226
• Citation: 581 S.W.2d 906
• Parties: LIGON SPECIALIZED HAULER, INC., a corporation, Plaintiff-Appellant, v. INLAND CONTAINER CORPORATION, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 906

581 S.W.2d 906

LIGON SPECIALIZED HAULER, INC., a corporation, Plaintiff-Appellant, v. INLAND CONTAINER CORPORATION, a corporation, Defendant-Respondent.

No. 38226.

Missouri Court of Appeals, Eastern District, Division Four.

April 24, 1979.

Robert C. Ely, Robertson, Ely & Wieland, St. Louis, for plaintiff-appellant.

Eugene Buckley, Evans & Dixon, Elbert Bonnett, St. Louis, for defendant-respondent.

DOWD, Presiding Judge.

A case of negligent misrepresentation.

This is an appeal from the judgment of the Circuit Court of the County of St. Louis in which the Court set aside the jury's verdict awarding $5,500 to the plaintiff-appellant, and entered judgment for defendant-respondent in accordance with respondent's motion.

Appellant contends that the Court erred in entering judgment favorable to the respondent because a) there was sufficient evidence to support the jury's finding of negligence b) the respondent's misrepresentation of the weight of the load was a direct cause of the damages sustained by the machinery, and c) the appellant and its driver were not contributorily negligent as a matter of law.

Appellant, Ligon Specialized Haulers, Inc., instituted the action below to recover $13,360 in expenses incurred as a result of damages sustained by machinery transported by appellant for respondent Inland Container Corporation. The record discloses that the latter corporation is in the business of manufacturing and shipping corrugated boxes. Inland's shipping foreman, Sloman Miller, contacted William Lewellyn of Ligon Specialized Haulers, to ship a Sheridian die cutter. Mr. Lewellyn asked Mr. Miller the weight of the machine and was told it weighed thirty to thirty-five thousand pounds and would require a flat bed truck for shipment. The bill of lading prepared by respondents contained the notation that the machine weighed 35,000 pounds "subject to correction". In accordance with the information supplied in the telephone conversation, appellant furnished a flat bed truck to haul the machinery. Respondent's maintenance crew loaded the machinery on the truck at its plant in Fenton, Missouri, after which appellant's driver, Paul Russell, departed for Michigan.

Russell had the truck weighed at a weigh station in East St. Louis and discovered that the truck was overweight. The scales revealed that the machine weighed approximately 58,000 pounds causing the load to exceed the legal limit of 73,280 pounds by 9,200 pounds. Lewellyn notified Miller of the weight excess and was instructed to bring the truck back for reloading the following morning at 6 a. m. Before leaving the weigh station and while en route to Missouri, Russell rechecked the chains to insure that the load was secure. Upon entering the St. Louis Truck Port which had an uphill angular driveway, the machine broke loose and fell from the truck.

Appellant's vice president contacted the consignee in Michigan to notify them of the damage to the machinery. It was estimated that the cost of repair would be $20,000 and would require 8-10 weeks. The consignee, G & L Industries, informed appellant that time was of the essence, as the die cutter was needed to fulfill a contract requirement. In anticipation of impending claims, appellant bought a die cutter from a Chicago corporation and forwarded it to G & L Industries. The substitute cutter was purchased by appellant for $11,000, whereas the initial cutter which was in poor condition at the time of sale, was purchased by G & L for $5000. Appellant prayed for damages of $13,360 representing $11,000 for the substitute cutter and $2,360 for expenses incurred in removing and shipping the original machine. Respondent's motions for a directed verdict at the close of both party's cases were overruled. The cause was submitted to the jury on theories of negligent misrepresentation, failure to warn, and contributory negligence and a verdict of $5,500 favorable to the plaintiff was returned. Following receipt of the verdict, the court sustained respondent's motion for judgment in accordance with its motion for directed verdict at the close of all the evidence.

In this appeal the monetary amount of the jury's verdict is not challenged.

Our review of the issue presented in the case consists of a consideration of the evidence and inferences therefrom favorable to the non-moving party, in order to ascertain whether reasonable minds could differ regarding the proper outcome of the case. Lesser v. Rubin, 548 S.W.2d 860, 864 (Mo.App.1977).

Although this cause may have also lent itself to analysis under federal agency regulations, Uniform Commercial Code principles, or the common law relating to shippers and carriers, appellant has styled this case in tort, specifically as one of negligent misrepresentation. The jury was instructed to find for the appellant if they believed: The respondent advised the appellant that the machinery weighed 35,000 pounds and the latter supplied a flat bed trailer in reliance upon respondent's description; and, the machinery weighed approximately 56,000 pounds; and, due to the additional weight the machinery was apt to "shift and fall" from the truck while en route; and the respondent knew or could have known the machine weighed 56,000 pounds by using ordinary care, and failed to warn appellant of the machine's true weight and was thereby negligent. ¹ The parties have submitted different analyses regarding the nature of the duty owed in a case of negligent misrepresentation.

Appellant has theorized that the Restatement of Torts, Second Edition, Section 311, defines the nature of the duty applicable to the present case:

"One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information." (At p. 106).

As appellant's action was instituted to recover damages for expenses incurred, however, Restatement of Torts, Second Edition, Section 552, offered by respondent as the definition of the scope of the duty owed, is more applicable "One who, in the course of his business, profession or employment or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (At 126-127).

Although our research has...