Tri-State Motor Transit Co. v. Navajo Freight Lines, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: Before SWOFFORD, P.J., and WELBORN and HIGGINS; ANDREW JACKSON HIGGINS
• Citation: Tri-State Motor Transit Co. v. Navajo Freight Lines, Inc., 528 S.W.2d 475 (Mo. App. 1975)
• Decision Date: 02 September 1975
• Docket Number: No. 26619,TRI-STATE,26619
• Parties: MOTOR TRANSIT COMPANY, Respondent, v. NAVAJO FREIGHT LINES, INC., Appellant.

Page 475

528 S.W.2d 475

TRI-STATE MOTOR TRANSIT COMPANY, Respondent, v. NAVAJO FREIGHT LINES, INC., Appellant.

No. 26619.

Missouri Court of Appeals, Kansas City District.

Sept. 2, 1975.

Motion for Rehearing and/or Transfer Denied Oct. 6, 1975.

Application to Transfer Denied Nov. 10, 1975.

Lee E. Wells, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for appellant.

John R. Cleary, Albert Thomson, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for respondent.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special Judges.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal by Navajo Freight Lines, Inc., from judgment for Tri-State Motor Transit Company against Navajo for $160,258.26 damages on Tri-State's petition, and against Navajo on its counterclaim for $203,088.67 damages.

Count I ¹ of plaintiff's petition alleged: that on March 7, 1960, plaintiff Tri-State and defendant Navajo entered into a trailer interchange contract whereby they agreed to exchange trailers on a trailer-for-trailer exchange basis; that Tri-State has in its possession sixteen of Navajo's trailers, identified by number, which it received and acquired as a result of trailer-for-trailer exchanges with Navajo under the interchange contract; that under the agreement Tri-State is entitled to the use of such trailers; that Navajo has failed and refused to tender to Tri-State delivery of trailers in exchange for the designated trailers, and Tri-State is therefore, under the exchange agreement, entitled to continued use of the designated trailers; that Navajo has allowed the state licenses on such trailers to expire and has wrongfully refused to relicense the trailers in order to deprive Tri- State of their use; that as a result Tri-State has been deprived of the use of the designated trailers, has lost income and revenue, and is entitled to recover compensation from defendant. Plaintiff's prayer on Count I was for $150,000.00.

Count II of plaintiff's petition alleged: that during the period September 16, 1968, through October 15, 1968, Tri-State, at the request and instance of Navajo, acted as a participating carrier with Navajo in freight transportation; that Navajo received revenue for freight transportation in which Tri-State acted as Navajo's participating carrier and has not paid Tri-State its share of the revenue although Tri-State has made demand of Navajo for such payment. Plaintiff's prayer on Count II was for $13,518.26.

Defendant's answer to plaintiff's petition admitted the contract in 1960 'wherein plaintiff and defendant agreed to exchange trailers'; it was otherwise a general denial.

Count I of defendant's counterclaim alleged: that on October 10, 1968, Tri-State canceled the contract and is indebted to Navajo under the contract for use of Navajo's trailers since termination of the contract, for which payment has been demanded by Navajo and refused by Tri-State. Defendant's prayer on Count I was for $163,040.00.

Count II of defendant's counterclaim alleged: that on or about April 11, 1968, pursuant to agreement with Tri-State as participating carrier in freight transportation, Tri-State received revenue for freight transportation in which Navajo acted as a participating carrier and Tri-State has failed and refused to pay Navajo its share of such revenue although Navajo has made demand for payment. Defendant's prayer on Count II was for $3,833.67.

Count III of defendant's counterclaim alleged: that Tri-State has in its possession sixteen trailers, as designated in its petition, belonging to Navajo, which Tri-State has failed and refused to return to Navajo although Navajo has made repeated demand for their return; that the value of such trailers is $45,000.00. Defendant's prayer on Count III was for $45,000.00.

Plaintiff's answer to defendant's counterclaim was essentially a general denial; and, by way of reply, Tri-State quoted paragraph 4.4 of the trailer interchange contract, viz:

'A carrier acquiring use of a trailer from another on an exchange basis shall not be required to redeliver it to the carrier from whom received until such other carrier tenders redelivery of the trailer for which it was exchanged, and during the time in which it is ready, able and willing to redeliver such trailer for exchange but cannot do so because the other carrier is not able to return its exchanged trailer, it shall not be in default nor required to pay compensation for delay in returning such trailer';

and alleged: that Navajo's sixteen designated trailers in Tri-State's possession were acquired on an exchange-only basis with Navajo; that Navajo has not tendered redelivery to Tri-State of trailers it received in exchange, or trailers in lieu thereof; that Tri-State, under the agreement, is not required to redeliver to Navajo the trailers in its possession, and is entitled to use such trailers without paying compensation until Navajo tenders to Tri-State redelivery of the trailers (or their equivalents) it received in exchange for said trailers.

Defendant's opening statement contained the following recitals and admissions:

As to plaintiff's Count I, 'that before the trailer interchange agreement was canceled, * * * Tri-State ended up with 16 of Navajo's trailers * * *. Now * * * in some instances they did indeed give up a trailer at the time they received the Navajo trailer * * *. Normally it's on a trailer-for-trailer exchange basis. You give the trailer, you interline, is what they call it, to another company and you get one back on a trailer-for-trailer exchange basis. * * * $10.00 per day * * * is the cost to rent a 40-foot trailer such as those that are involved in this particular instance * * *.'

And as to plaintiff's Count II, 'We are not arguing that the revenue may well be owed to Tri-State in the sum of $13,000.00 but our argument is that Navajo is entitled to the $3800.00 approximately credit in connection with that revenue * * *.'

The Trailer Interchange Contract was in evidence as plaintiff's Exhibit 1. It is a form contract used in the trucking industry; and, as between Tri-State and Navajo, it was executed March 7, 1960. In addition to provisions of the contract mentioned in the pleadings, particular references were made to paragraph 4.1, viz:

'Interchange may be made on a trailer-for trailer exchange only as may be shown on the Trailer Interchange Receipt and Inspection Report * * *';

to an addition to paragraph 5.5, viz:

'Trailer For Trailer Basis Only';

and to paragraphs 1, 2, and 7, viz:

'1. The undersigned carriers enter into this agreement governing their relationship with respect to interchange of trailers, and to make this agreement operative respecting interchange of individual trailers will cause to be executed the Trailer Interchange Receipt and Inspection Reports hereinafter mentioned; provided, however, that no provision in this contract shall be construed to increase the legal liability of any party hereto. The term trailer as used herein shall refer to any load-carrying vehicle without power.'

'2. At the time of interchange an authorized representative of each carrier shall execute, in multiple copies as the carriers may require, a counterpart of the Trailer Interchange Receipt and Inspection Report attached hereto and made a part hereof. The Parties shall be bound by the notations on the Trailer Interchange Receipt and Inspection Report.'

'7. THIS AGREEMENT and said Trailer Interchange Receipt and Inspection Report shall constitute the entire agreement between the parties and no verbal amendment or modification thereof shall be permitted. This agreement may be supplemented or amended only by a written agreement.'

Clarence Richard Berry was an employee of Tri-State at its office in Joplin, Missouri. Tri-State also operates trailers under the names of Hughes, Park Hill, U.S.A.C., and DeTar. Mr. Berry kept the permanent records of Tri-State's trailer interchanges between Tri-State and other companies. He defined a trailer interchange as a 'swap of trailers,' and stated that Tri-State exchanged trailers with other companies on a uniform trailer-for-trailer basis which means that if Tri-State gave any other company a trailer, Tri-State would expect a trailer in return; if the other company initiated the exchange and gave Tri-State a trailer, the other company would expect to get a trailer in return. Some companies interchange trailers on a per diem basis where a charge is made rather than giving a trailer in exchange. Tri-State, but for a single exception, did not operate on the per diem basis.

Mr. Berry's permanent record of trailer interchanges between Tri-State and other companies was by a 'card record whereby any particular trailer we can show receiving from another company, what trailer we gave them for it, or what trailer we gave to another company, what trailer we received for it.' He prepared and kept such records himself. When Tri-State and Navajo interchanged trailers between themselves, neither required the other to deliver a specific trailer in exchange for a trailer from the other. Tri-State had in its possession sixteen Navajo trailers, Nos. 1119, 1136, 1145, 1246, 1251, 1295, 1325, 1369, 1431, 1442, 1450, 1472, 2023, 2123, 2228, and 7011. Exhibits 3 through 31 were Tri-State's permanent record cards respecting the record of the foregoing Navajo trailers and trailers exchanged by Tri-State for such trailers. Mr. Berry prepared each of the records in the regular course of Tri-State's business. He made entries on the card on or near the date shown for the entries, and he kept the records under his supervision and control. Over objection that the information recorded was based on other documents or sources not now available and, as such, hearsay and a secondary record, the exhibits were received as business records, the court observing that the objection went to the weight or credibility of the records as evidence rather than their admissibility as business...