Transamerican Freight Lines v. Marcrome Art Marble Co.

• Decision Date: 06 May 1941
• Parties: TRANSAMERICAN FREIGHT LINES, INC., A CORPORATION, RESPONDENT, v. MARCROME ART MARBLE COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

150 S.W.2d 547

236 Mo.App. 272

TRANSAMERICAN FREIGHT LINES, INC., A CORPORATION, RESPONDENT, v. MARCROME ART MARBLE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

May 6, 1941

Petition for Writ of Certiorari denied by Supreme Court July 25, 1941.

Appeal from Circuit Court of the City of St. Louis.--Hon. David J Murphy, Judge.

AFFIRMED.

Judgment affirmed.

Elmer O. Jones, Mat J. Holland, Robert N. Jones and Phillip Rashbaum for appellant.

Holland & Holland of counsel.

(1) Nevins v. Solomon, 139 S.W.2d 1109; Marschak v Wm. J. Brennan Gro. Co., 83 S.W.2d 185; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679. (2) The jury should have been permitted to pass upon the evidence presented by the defendant in support of his counterclaim. Nevins v. Solomon, 139 S.W.2d 1109. (3) Keller v. St. Louis Butcher Supply Co., 229 S.W. 173; Nevins v. Solomon, 139 S.W.2d 1109; Viviano v. Davis, 258 S.W. 67. (4) The liability of a carrier of interstate shipments is governed by the Acts of Congress and the common law, as accepted and applied in federal tribunals. Singer v. American Express Co., 219 S.W. 662. (5) Viviano v. Davis, 258 S.W. 69. (6) Where elements of a prima-facie case are shown, the sufficiency or insufficiency of the proof is a question for the jury, and in an action against carrier for destruction of goods delivered to carrier, where plaintiff makes a prima-facie case, it devolves on carrier to overcome claim by substantial evidence to satisfy jury that goods were not delivered. First National Bank v. Mo. P. Ry. Co., 278 S.W. 1075; Morrow v. Wabash Ry. Co., 276 S.W. 1031.

Igoe, Carroll, Keefe & McAfee and Victor A. Wallace for respondent.

(1) Appellant having assumed the burden of proving the goods were delivered by respondent in a damaged state, it was its duty to sustain that burden by substantial evidence, and, having failed to do so, it was not merely correct but was the duty of the trial court to peremptorily instruct the jury to find for respondent. Joslin v. Chicago, M. & St. P. Ry. Co., 319 Mo. 250, 3 S.W.2d 352; Strauss v. American Chewing Gum Co., 134 Mo.App. 110, 114 S.W. 73; Link v. Hathway, 143 Mo.App. 502, 127 S.W. 913; Fink v. Kansas City Southern Ry. Co., 161 Mo.App. 314, 143 S.W. 568; Missouri Steel & Wire Co. v. Edmonds & Allgier (Mo. App.), 136 S.W.2d 118; Carroll v. Interstate Rapid Transit Co., 107 Mo. 653, 17 S.W. 889. (2) In order for appellant to have been entitled to go to the jury on its counterclaim, it was necessary that it produce substantial evidence that respondent delivered the goods in damaged condition, as the "scintilla" rule is not the law in Missouri. Wallingford v. Terminal R. R. Assn., 337 Mo. 1147, 88 S.W.2d 361; Joslin v. Chicago, M. & St. P. Ry. Co., 319 Mo. 250, 3 S.W.2d 352; Mo. Steel & Wire Co. v. Edmonds & Allgier (Mo. App.), 136 S.W.2d 118; Fink v. Kansas City So. Ry. Co., 161 Mo.App. 314, 143 S.W. 568; Link v. Hathway, 143 Mo.App. 502, 127 S.W. 913; McNulty v. St. Louis & S. F. R. Co., 166 Mo.App. 439, 148 S.W. 973; Strauss v. American Chewing Gum Co., 134 Mo.App. 110, 114 S.W. 73. (3) Appellant made no prima-facie case as to its counterclaim for the reason that it completely failed to establish, by proof of any kind, that respondent had delivered the goods in a damaged condition. A prima-facie case is one which is established by sufficient evidence and can be overthrown only by rebutting evidence adduced by the other side. Gilpin v. Mo. K. & T. Ry. Co., 197 Mo. 319, 94 S.W. 869; Gilmore v. Modern Brotherhood of America, 186 Mo.App. 445, 171 S.W. 629.

McCULLEN, J. Anderson, J., concurs; Hughes, P. J., not sitting.

OPINION

McCULLEN, J.

--This suit was brought by respondent, as plaintiff, to recover from appellant, as defendant, a balance alleged to be due for freight charges for a series of shipments of building materials. A trial before the court and a jury resulted in a directed verdict in favor of plaintiff in the sum of $ 875.54 on plaintiff's cause of action and in favor of plaintiff on defendant's counterclaim. After an unavailing motion for a new trial defendant appealed.

The petition of plaintiff alleged that it is engaged in interstate and intrastate transportation of property for hire by means of motor vehicle; that, on February 1, 1937, defendant entered into a contract with plaintiff for a series of shipments of building materials over plaintiff's lines, to be carried from defendant's factory in St. Louis consigned to the Universal Supply Company, Resettlement Administration, Greenhills Project, Cincinnati, Ohio; that by said contract defendant was to furnish all labor and material for packing, storing and unloading said materials in plaintiff's semi-trailers, and to unpack and unload the same on arrival at destination; that defendant guaranteed payment of the freight charges; that, according to the weights and tariffs published by plaintiff under the rules of the Interstate Commerce Commission, the amount due plaintiff for freight charges was $ 1046.87; that defendant had paid thereon $ 171.33, but refused to pay the balance of $ 875.54, for which amount plaintiff prayed judgment.

Defendant answering admitted that it had entered into a contract for a series of shipments of building materials wherein it was shipper and plaintiff the carrier. It also admitted that said materials were to be transported to the place and consignee alleged in plaintiff's petition, and denied each and every other allegation of plaintiff's petition.

For counterclaim, defendant alleged that plaintiff was a common carrier of goods, wares and merchandise; that defendant was engaged in the business of manufacturing and selling a product known as art marble, a building material; that, during November, 1936, defendant agreed with plaintiff that plaintiff would transport a series of shipments of said building materials to Universal Supply Company, Greenhills Resettlement Administration Project site, Cincinnati, Ohio; that said shipments, all in sound condition and properly prepared for hauling, were accepted by plaintiff, as a common carrier for hire, for transportation at intervals during a period from December, 1936, to March, 1937.

Defendant further alleged in its counterclaim that on certain dates, specifically set forth therein, certain articles of building materials, also set forth and specifically described, were received from plaintiff at their destination damaged and destroyed beyond condition of usefulness because of cracking, chipping and splitting; that said damage occurred while said property was under the custody and control of plaintiff, and that the value thereof was $ 787.02; that, because of the destruction of said materials, it became necessary for defendant to adjust the loss in time and materials and to manufacture materials in substitution for those destroyed; that defendant bore postponement of receipt of the purchase price of said destroyed materials to its damage and loss in the additional sum of $ 130.80. Defendant prayed judgment on its counterclaim for the total sum of $ 917.82, with interest.

For reply plaintiff alleged that defendant was to load, pack and place the materials in plaintiff's trucks; that all breakage and damage which occurred was directly caused by negligent packing of said materials by defendant; that the claimed breakage and damage occurred during a rainy period of about fifteen days at the project site, and was directly caused by defendant towing plaintiff's equipment by means of a tractor across muddy fields at said site. Plaintiff denied that defendant suffered damage by having to adjust said breakage or by having the purchase price of said materials withheld.

As to defendant's first assignment of error that the verdict is against the weight of the evidence, it is sufficient to say that an appellate court is not authorized to pass upon the weight of the evidence in a law case. [Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Dickes v. Bookman (Mo. App.), 6 S.W.2d 981.]

At the trial it was conceded by defendant that there was no dispute as to the correctness of the amount of the freight charges alleged by plaintiff and plaintiff's evidence on this point was not controverted. Furthermore, it was admitted by defendant that plaintiff did perform the services of carrier under the contract alleged. Therefore, in view of the theory upon which the case was tried by the parties and the court, the question for us to determine is whether there was any substantial evidence entitling defendant to have its counterclaim submitted to the jury.

Defendant's second and third assignments of error are that the court erred in directing a verdict for plaintiff at the close of the whole case, and in refusing to submit defendant's counterclaim to the jury, as well as in directing a verdict for plaintiff thereon. Apparently recognizing that its assignments of error are all directed to one general contention, defendant, in its brief, has confined its points and authorities and argument to the action of the trial court in dealing with the counterclaim.

William F. Maier, department manager and salesman for defendant, who also had been assistant to the manager of the defendant, testified that he recalled the sale by defendant of building materials to the Universal Supply Company to be used on a housing project near Cincinnati, Ohio. He described the materials as a concrete product, and testified that defendant arranged with plaintiff to transport the goods. In this connection the witness testified:

"Q. Do you know whether the plaintiff hauled all of the goods sold under that sale? A. No, they did not.

"Q. Who were the other carriers? A. Well, a few loads in the beginning was hauled by our own truck,...