Star Bottling Co. v. Louisiana Purchase Exposition Co.

Decision Date29 February 1912
Citation240 Mo. 634,144 S.W. 776
PartiesSTAR BOTTLING CO. v. LOUISIANA PURCHASE EXPOSITION CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; M. G. Reynolds, Judge.

Action by the Star Bottling Company against the Louisiana Purchase Exposition Company. From an order granting a new trial, defendant appeals. Affirmed.

Ferriss, Zumbalen & Ferriss, for appellant. F. A. & L. Al. Wind and S. T. Price, for respondent.

LAMM, J.

Appellant's charter expired pending this appeal by limitation. By stipulation, the (unnamed) trustees of the Louisiana Purchase Exposition Company enter their appearance as party defendant, and are substituted by consent of respondent.

The bottling and exposition companies entered into an extensive contract, giving the bottling company a "soft drink concession" at the World's Fair in St. Louis in 1904. That concession gave the bottling company the right to manufacture and sell on the exposition grounds carbonated water, flavored and unflavored lemonade, orangeade, cider, root beer, pearine, ice cream, ices, soda water and all hot and cold drinks usually served at soda fountains, and all other so-called "soft drinks." Certain reservations were made in favor of restaurants, lunch stands, and exhibitors of spring, mineral, or other water, root beer, malto grapo, orangeade, cider, grape juice, chocolate, cocoa, coffee, and tea, and the right to provide free drinking water was reserved to the exposition company.

During the whole life of the exposition, there was friction in the relations of the contracting parties. Complaints were made by the bottling company, and rasping controversies arose on the meaning of this, that, or the other term of the contract; for example, on the contract authority of a certain officer of the exposition company to settle controversies, on whether the bottling company held divers and sundry exclusive rights, on whether it got, at the hands of the exposition company, the number of stands contemplated by the contract, as well as sewerage, water, and light, on whether the exposition people dealt fairly with the bottling people in changing stands, on whether water was a "soft drink" and could be sold by the bottling company after the exposition company permitted the sale of drinking water on the ground, on the meaning of "hot drinks," on whether ice cream cornucopias (yclept "gopherettes") pertained to an ice cream concession or were a food, because of the edible wafer wrapping the ice cream, and pertained to a restaurant or lunch stand concession, on whether the bottling company could make and sell coffee as restaurants make and sell it, or must be confined to a kind of coffee usually prepared and drawn at soda fountains, and so on and so on.

When the exposition closed, plaintiff sued, alleging performance on its part and nonperformance on the other side. Issue was joined on its fifth amended petition. Thereby it formulated a long list of grievances, alleged breaches of the concession contract in many ways, claiming damages in the sum of $257,351.24. In its answer, the exposition company set forth its theory of the contract, pleaded compliance therewith and noncompliance by the bottling people, and then set up a counterclaim with many specifications, claiming damages for breaches of the contract on the part of its adversary in the sum of $14,143.59. A reply came in, consisting of allegations of confession and avoidance, waiver, estoppel, and denial.

By consent of all parties, the cause was referred to John M. Holmes, Esq., of the St. Louis bar, "to try all issues and report his decision with all convenient speed." The learned referee heard a volume of testimony, and made and filed his report. To that report in due time, both the bottling and the exposition company filed formidable written exceptions. Presently the court overruled all exceptions, approved the report of the referee, and judgment followed. Thereat both companies filed their several motions for a new trial. Presently that of the exposition company was overruled, that of the bottling company sustained (the court giving reasons in a memorandum filed), and a new trial was granted. From that order, the exposition company on apt steps and in due time appealed.

The first question is: Will an appeal lie from an order, nisi, granting a new trial when both parties litigant asked a new trial and one is granted to either? Or, to put the question more pointedly: Will an appellate court review and pronounce upon the reasons assigned below for granting a new trial, when both parties litigant asked for one and one is granted to either?

Any court of general jurisdiction in Missouri may award a new trial on any issue on cause shown. R. S. 1909, § 1994. So, at a pinch, ex debito justiciæ, and of inherent right, it may award one on its own motion during the term. Ewart v. Peniston, 233 Mo. 695, 136 S. W. 422. The statute quoted means, of course, that a new trial may be awarded generally, as here, on all the issues; for a power to award on any issue is broad enough to cover all. There is nothing peculiar to a reference case prohibiting the award of a new trial, where a proper motion looking to that end is interposed. Such is within the reasoning of State ex rel. v. Hurlstone, 92 Mo. 327, 5 S. W. 38, and cases cited, and Maloney v. Railroad, 122 Mo. 106, 26 S. W. 702.

What is a new trial where one is granted generally by a trial court? To attempt to define a term that defines itself is to invite danger of making obscure what is already clear—to conceal the fruit with leaves. The term "new trial" means what it says, i. e., a trial anew, de novo, "with as little prejudice to either party as if it had never been heard before. No advantage is taken of the former verdict on the one side, or the rule of court for awarding such second trial on the other." 3 Black. Com. *391.

In a case where there has been a reference by consent of parties, as here, and the selected referee qualified, took evidence, made his report, accompanied by the evidence, and exceptions have been filed thereto and ruled upon, as here, then (whatever conclusion might arise by mere cold definition and a chopping of logic) the common sense of it is that a new trial would not necessarily cut behind the order of reference and the report, and call (whether or no) for a new referee, or for new evidence covering the whole case and a new report; but a new trial would be confined to the hearing on the exceptions on both sides, the action of the court thereon which led directly up to and produced the judgment, and the mischief to be abated. Those exceptions, those rulings, and that judgment, each and all, would be opened up for re-examination and redetermination in the light of the evidence on file. We do not mean to rule that for good cause shown a court might not, in a proper case, on a retrial order the referee to hear further evidence, or even order a new reference, if a just determination of the issues required it, and the exceptions were broad enough to cover the point. What we want to say is that, as a general rule (and this has a bearing on a contention made here that we should go into the reasons for granting a new trial), a new trial in a reference case only opens, as said, in the first instance, the issues generally on the exceptions to the report, on the rulings and the judgment; the exceptions and the report standing somewhat in the nature of pleadings on the final hearing, and the judgment following as a legal conclusion from the hearing and rulings on those exceptions.

We have been moved to say what we have about a new trial in a reference case, because logically, on strict and last analysis, a new trial might mean beginning all over again in hearing testimony. It would mean that in a jury trial. But the trial undone here by the court's order is not a jury trial. It is a trial by the judge after the trial by the referee is over.

Speaking of logic in connection with legal exposition, it will do to say that no argument against the use of a thing can be drawn from the abuse of the thing ("Exabusu non arguitur ad usum"), and yet the use of logic may be abused, and care is due on that score. For instance: Logic was logic in the poetical story of the Deacon's Masterpiece, or The Wonderful One-Hoss Shay (q. v.). But the result was not satisfactory, as the whole bar of Missouri know. Logic has its uses in administering law— high uses and many of them. But, after the last word is said, "the life of the law has not been logic. It has been experience." Holmes, Com. Law, p. 1. Law, having to do with the practical, everyday affairs of mankind, should subserve the ends and purposes of good sense and broad justice, not those of mere logic, though, when the two go hand in hand, they are a helpful and pleasant pair of judicial handmaidens, and, peradventure, when they sit smiling, as they often do, on either side of a good judge at labor, he feels restful. Why, in a new trial in a reference case,...

To continue reading

Request your trial
32 cases
  • Johnston v. Star Bucket Pump Co.
    • United States
    • Missouri Supreme Court
    • 29 Marzo 1918
    ...234 Mo. loc. cit. 26, 136 S. W. 337, decides no question pertinent to the question under examination. Star Bottling Co. v. Exposition Co., 240 Mo. loc. cit. 639, 144 S. W. 777, is cited. That was a reference by consent, the court said. In addition, this was what the court declared it was "W......
  • Johnston v. Star Bucket Pump Company
    • United States
    • Missouri Supreme Court
    • 27 Abril 1918
    ... ... examination ...           ... Star Bottling Co. v. Exposition Co., 240 Mo. 634, ... 144 S.W. 776, is cited. That was ... this was the Territory of Louisiana, May 7, 1807. [1 Mo. Ter ... Laws, ch. 30, entitled "Courts," secs. 1 ... ...
  • In re Franz' Estate
    • United States
    • Missouri Supreme Court
    • 3 Diciembre 1940
    ... ... could not appeal. Star Bottling Co. v. Exposition ... Co., 240 Mo. 634, 144 S.W ... ...
  • Conkling v. Henry Quellmalz Lumber & Mfg. Co.
    • United States
    • Missouri Court of Appeals
    • 3 Febrero 1931
    ... ... the purchase and sale of three carloads of lumber. To this ... petition ... Kennally, 186 Mo. 225, 228, 229, 85 ... S.W. 357; Star Bottling Co. v. Exposition Co., 240 ... Mo. 634, 639, 144 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT