Smith v. Morgan Drive Away, Inc., 41122

• Decision Date: 10 March 1981
• Docket Number: No. 41122,41122
• Citation: 613 S.W.2d 469
• Parties: Walter C. SMITH and Virginia Smith, his wife, Plaintiffs-Respondents, v. MORGAN DRIVE AWAY, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 469

613 S.W.2d 469

Walter C. SMITH and Virginia Smith, his wife, Plaintiffs-Respondents, v. MORGAN DRIVE AWAY, INC., Defendant-Appellant.

No. 41122.

Missouri Court of Appeals, Eastern District, Division Four.

March 10, 1981.

Roberts, Roberts & Rohrer, Clinton B. Roberts, Farmington, for defendant-appellant.

David L. Colson, James G. Freer, Farmington, for plaintiffs-respondents.

SMITH, Presiding Judge.

This case reaches the writer on reassignment. Defendant appeals from a judgment entered in a court-tried case awarding plaintiffs $7500 damages and denying defendant relief on its counterclaim.

In 1972, plaintiffs were the owners of a mobile home located in Florida. They desired to move the mobile home to Farmington, Missouri, and hired defendant for that purpose. Defendant is a common carrier regulated by the Interstate Commerce Commission. Plaintiffs had the mobile home moved to defendant's place of business in Sneads, Florida, for transport by defendant to Missouri. Plaintiffs were given a general estimate of the charges for the move, but were not provided with a bill of lading nor advised what method or time of payment was required. They also were not told when the mobile home would arrive in Farmington. Several days later Mrs. Smith received a call at her store in Farmington at closing time. The caller advised that he was the driver transporting the mobile home, that he was in the vicinity of Farmington and requested advice as to where to deliver the home. Mrs. Smith directed him to the proper location where she and the driver were met by Mr. Smith. The driver demanded payment of $825 in cash for the moving charge, refusing Mr. Smith's tender of a check. The driver also refused to wait until 9 o'clock the next morning for the payment as he wanted to leave immediately for Colorado to see his wife. All of this transpired at 6:00 p. m. At the same time plaintiffs discovered that the mobile home was damaged which the driver admitted happened when he "hit a bridge at Tupelo, Mississippi." Following his refusal to accept the check or wait until the next morning, and after Smith's advice that he did not have $825 in cash available at that time of day, the driver left with the mobile home. Unknown to plaintiffs, he stored it on an automobile dealer's lot in Flat River at an agreed charge of $2.00 per day and left the area. Plaintiffs found out about the storage location several days later from the Florida office of the defendant following their telephone call to defendant. The mobile home was never delivered to plaintiffs and no one, including the driver, had the keys or knew where they were, although the Smiths had turned them over to defendant in Florida. The keys had not been located at trial time.

Defendant's first point is that the trial court erred in its findings that plaintiffs "had made a prima facie case of bailment for which the trial court set forth facts to support its finding and, thereafter, awarding respondents damages based upon a theory of negligence for which the trial court made no findings of fact ...."

This point confuses the relationship between the parties (bailment) with the theory of recovery arising from that relationship (negligence). Having established the bailment relationship and the failure of defendant to return the property in undamaged condition plaintiffs had established their case and could recover for either breach of the bailment contract or negligence. Ryan v. Park-Rite Corp., 573 S.W.2d 450 (Mo.App.1978). Defendant offered no evidence to defeat the inference of negligence, as was its burden, and it was not incumbent upon the trial court to make a finding of negligence. That ultimate fact was inferred from plaintiffs' proof of the bailment and the failure to return the property undamaged. Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553 (Mo.App.1976) (1). Resolute Insurance Co. v. Morgan Drive-Away Inc., 403 S.W.2d 913 (Mo.App.1966) (6-8). Plaintiffs alleged both negligence and breach of the bailment contract, and their evidence established facts which would have permitted recovery under either theory. We find no merit to defendant's first point.

Defendant next contends that the court erred in failing to find that the Interstate Commerce Act and the bill of lading, which allegedly comports with defendant's tariff, bars recovery because both require payment for transportation charges prior to respondent's being able to assert a claim. There are several reasons why this position is without merit.

Initially, the bill of lading (along with all other exhibits) has not been filed with this court so we have nothing before us other than testimony stating the effect of that document. Secondly, delivery of the mobile home was never reasonably tendered to plaintiffs, (see infra ) and we have been cited to no cases which hold that the Interstate Commerce Act requires payment for services never rendered. Finally, if tender of the charges was required as a condition of delivery, and the failure to tender at that time is the basis of defendant's contention, the failure of tender was due to defendant's actions making such tender impossible or at least highly impractical.

"The general rule is that conduct by a party to a contract which increases the risk that a condition precedent thereto will not be satisfied, and which is beyond the reasonable expectations of the other party, is wrongful and excuses the condition." In the Matter of the Estate of Parker, 536 S.W.2d 25 (Mo.banc 1976) (5). See also, Hillis v. Blankhard, 433 S.W.2d 276 (Mo.banc 1968) (3, 4); Artcraft Cabinet Inc. v. Watajo, Inc., 540 S.W.2d 918 (Mo.App.1976); Cable v. Wilkins, 352 S.W.2d 50 (Mo.App.1961) (6); Reid v. Kelly, 300 S.W.2d 542 (Mo.App.1957) (1, 2).

Plaintiffs did not receive information from defendant as to the exact amount of the charges for transporting the mobile home until the home arrived in the Farmington area. They received no bill of lading in Florida and were not advised until the home arrived that payment in cash was required at the time of delivery. They were not...