Dietrich v. Cape Brewery & Ice Co.

Cape Brewery & Ice by deed of trust him on day May, 1917, tbe 11th to secure $8,000 the pay Courtney borrowed to property, the was included his deed to her.”

We do not find the will clearly unmistakably manifest the intention the testator property specifically the Griswold appellant devised to pass shall her free the encumbrance charge placed by thereon subsequently the act of testator to the execu- will, tion of or that by the intention is the will his manifested residuary the discharged encumbrance shall be of testator’s out estate. It appellant property follows that must take the Griswold subject proportionate encumbrance, charge share of such provided by the statute. R. S. [Sec. 1919.]

We the right entering think learned trial chancellor was the judgment appealed from, and, finding no reversible error in the record, judgment affirmed, it follows that the nisi be is must and it G., so Lindsay, ordered. concurs.

PER opinion by foregoing Seddon, C., CURIAM: —The adopted All opinion judges concur, as the the except Graves, the court. J., absent.

Paul Dietrich, Doing Business under Trade Name of Blue Ribbon Cape Brewery Ice & Appellant, v. Company, Fuel & Ice F. W. Morrison

Company, Company, Coal & Doing under Firm Morrison, Business Celia Name M. J. W. Company, A. Fuel Morrison Koeck Robertson. One, July 30,

Division Appeal. Sustaining 1. NEW TRIAL: Grounds on Considered motion for upon ground newa trial the that the verdict for con- was excessive overruling grounds assigned. stitutes an of all other But where the court specifically assigned ground overruled the verdict was not sus- by evidence, ground tained and sustained the motion on sole excessive, necessarily verdict was it does not follow that when motion ground weight sustained the latter may dropped trial out of the case. The court well have evidence concluded verdict, the verdict that in eluded from evidence was sufficient sustain but prer view excessive. In such case this is not court assignment considering overruled the verdict evidence, upon respondent but the burden rests to show that sustained motion, upon grounds properly set aside contained the verdict was specified sustaining the trial court for the motion. than other those Competition: Pleading. A' Unlawful Destruction of 2. COMBINATION: petition and combination, making alleging its nature of an defendant, purpose, division of the thereunder the acts done Term, [April Missouri, Yod. city zones, designation person whom into in each zone to quantities, sell to be- ice should be sold in wholesale cause refusal to thereby profit- party agreement, and that a destroyed, to the he refused damage of fifteen thou- to his sum able ice business was sand 1919) (Sec. 9667, dollars, The statute R. S. states a cause of action. unnecessary allege in or where such the manner which or when it to makes agreement was made. combination or Pleading: Competition: Unlawful Destruction of S.COMBINATION: through damages allege Damages. in the to the sum suffered sufficient It is destroyed by de- the unlawful combination of profitable of a business loss fendants, termined may evidenciary setting be facts from which de- out the without profits the lost. the amount buys- Agent: company Independent A which -: Retailer. -:4. business, co-defendants, manufacturers, a retail and does the ice from destroy designed agreement the to with combination compliance an with business, profitable retail competitor a drive him out of plaintiff is not as a service; bought personal having occupation ice but engaged in an prices paid, and fixed and prices co-defendants at from its at wholesale owner, thereby signed to its customers within the zone as- and sold it became combination, agent selling property by an is not to it commission, within the terms the statute is a person member but another on to combination, damages. and is liable for Damages. partner Whatever a does -: Partner’s Wife: -:5. although personally partnership; and the wife did not act of is the make plaintiff destroy agreement the other defendants to business an ice, yet partner if she was á in the firm which' as a retail dealer ice, through engaged the manufacture and sale of and which her was husband others, such unlawful combination with she under entered into 1919) (Sees. R. S. a member of the combination the statute resulting damages plaintiff. therefrom to and is liable Damages: Liability Corpo- -: -: Personal of President of 6. corporation president aof which entered into a combination ration. The resulting destroy competitor personally aof is liable for to the business (Secs. 9655, 9666, 1919) damages. president R. Under statutes S. party participates corporation a which is to the combination of a and in the acts bring agreements which about the unlawful combination. Destroy Conspiracy Competition: -: to Definition: Proof: Ac- complished Purpose: Damages. standing unlawful means conspiracy agreement A is an or under- persons act, between or an to do unlawful or to use two more act, necessary to a do lawful it is but not it should by agreement by evidence, express proven may an be proven direct or but it be by by like other fact circumstantial In a evidence. suit a re- damages profitable business, a tailer of ice to recover the loss of de- alleged by among defendants, stroyed accomplished purpose an combination must be part, pursuance conspiracy, whole or in and done the reason thereof. damages by party have sustained actual done must touching statements, conduct, in this case the evidence course of And by defendants, pursued did, and the effects of what a business case submissible jury, proper to the under instructions. Competition: upon Right -: Destruction Restrictions Unlawful right private person engage a to in a to Do Business. The business buy character, pleases, private to from whom he to of a soever he sell to whom- will, particular person, refuse sell a or to does not ex- agreement an allowance of concerted action tend thereunder of similarly engaged, accomplishment person with others of a another, destroy making design the business of an an common agreement inflicting law and concerted action thereunder forbidden Ice Co. 1926J injury upon individually may public. persons engaged in similar business do What essentially they may collectively is from what do different pursuant under. among there- to an concerted action themselves Beyond dam- 9. -: ages resulting Proof: Reasonable A suit to recover Doubt. de- from an unlawful defendants to combination between stroy plaintiff’s competitor is and eliminate him a a civil as. beyond action, required guilt and it is not their that the establish according doubt, guilt determined reasonable but their is preponderance evidence. large Setting dis- 10. VERDICT: Aside: Discretion. The trial court has inadequate. setting And excessive cretion the aside verdict deems appellate has is interfere a new trial been court less inclined to when unlimited; granted substantial the discretion than when has been denied. But justice final is the test. Damages: of Business. Plaintiff 11. EXCESSIVE VERDICT: Loss coal, engaged buying selling sues ice and in the retail business of alleges resulting damages for was loss of his destroyed by to eliminate combination entered into damages resulting competitor. pertaining from The evidence him as clearly character, and does not is indefinite in the loss of the ice business separate business, sand and includes an from coal and the ice business business, good $7,500 will of as value of item of profit $1,500, $3,000 by and also as an annual a calculation reached Held, business, by building up not the books. an item shown the cost of that the trial setting aside a verdict for did abuse discretion court $8,000 ground it was excessive. on the 2556, Error, Appeal J., Juris-Cyc. 4 C. and Section Corpus References: 2736, 785, 91; 665, 9; 2557, p. p. 91; Section 662, n. n. Section (cid:127)p. n. Section 1, 4-; Conspiracy, J., p. 540, 836, 74, 12 C. Section n. 2818, p. 218, p. Section Section n. 75. Corporations, J., 17; 226, 633, 16, p. 631, n. 14a C. 47. n. Section 20; Monopolies, J., 101, p. 129, 173, 1952, p. 41 C. Section n. 60. 65; n. 26, 201, 197, p. 187, 29, 30; 138, 119, p. n. Section n. Section Section 189, 64; 204, p. 190, New; 202, p. 189, n. p. Trial, Section n. 81. New n. 59 Section 1028, Partnership, Cyc., p. 523, p. Cye., n. 75. 30 n. 87. 29 Common Girardeau Court of Pleas. —Eon. John Appeal Judge. Snider, A.

Affirmed.

Ward, appellant. Beeves & Oliver petition

(1) alleges, proof shows, and the The defendants into, create, guilty did enter become members of were because agreement, combination, confedera- pool, trust, in a participate and among All understanding persons with and themselves. tion or becoming participating members of creating entering into or guilty by made agreement, conspiracy statute are such damages trade, any person for treble “to and liable restraint of by 9655, reason thereof.” Secs. property injured in his lousiness or 9662, 9658, (2) petition 9657, clearly S. 1919. and R. 510 Court of Missouri, Yol. 315. [April Term, aptly against stated a cause of action herein, the defendants both form and 283; substance. ex Co., State inf. v. Lbr. 260 Mo. 278, State ex inf. Banking Co., v. 265 387; Mo. State ex rel. v. Ice & Co., Fuel 259 579; Brewing 64; Mo. Belinder, App. Co. v. 97 Mo. Assp., App. 280; Walsh v. 97 Mo. Ray, v. Safron Biennis 193 Mo. App. 371; Co., ex 216; State rel. v. Ice 246 Mo. S. Sec. R. (3) proof, Plaintiff’s conspiracy, as to unlawful abundant, and, might add, practically by we admitted defendants their evidence, written offered in and in statements fact denied Robertson, bald statement of and Eloeck 9655, 9656, Morrison. Secs. 9657, 9658, 1919; R. S. State ex rel. v. Ice Co., 246 216; Mo. Co., 578; State ex rel. Fuel Mo. State ex rel. Co., 148; v. Armour & 265 Mo. Heim Brewing Co. v. Belinder, App. (a) Mo. Assn., App. Walsh And plaintiff’s proof damages to his as was uncontradieted. Books produced were all books, audit was made of the auditor’s con- given, clusions testimony the oral as property to the value of the profits annual Defendants, icemen, made. all of whom years previously supplied two wholesale ice dealers had plaintiff with by plaintiff knew the amount of ice sold each year, price, experience wholesale retail and from own their handling knew expense ice, yet the overhead no contradiction profit plaintiff them toas claimed. Therefore, there dispute witnesses, no. damages, jury to the and the a sum proof allowed much less than the .showed was entitled (4) to. Plaintiff was out forced of business defendants’ unlawful may trade, combination restraint of and he recover for of his loss business, arising as a or wrong from the tort of defendants. 795; Ry. Co., 17 495; Galleys Rose, C. J. Ganz v. 220 S. W. v. 207 692; Ry. App. Co., App. 213; Morrow 340 Mo. v. Mo. Gildersleeve Overstalz, (5) v. 90 App. Mo. 528. The trial court sustained ground new trial in this case the motions for the sole that the only ground was That was the in verdict excessive. raised trial, sustained, for new that the court different motions and he including grounds, the one set in all out motion overruled other each evidence; against weight trial that the verdict was new specifying followed the statute reason for and the court 1919; 1454, R. S. Fair v. 157 granting a new trial. Sec. Preston. 406; 367 Mo. Royar, Stoner v. 324; Roe v. Bank. 200 Mo. App. Mo. John, trial, 207 An order Mo. for new 444; v. St. es- Gould effect, ground, putting it ofi a certain overrules other pecially all Co., grounds. 252 S- W. 963. Lbr. v. Lbr. Arkansas Co. y. 511 & Ice Dalton,

Spradling & Russell Dearmont and L. OUver for Oliver é respondents. (1) Only one is assigned error by appellant ease: “The this court sustaining erred in motions trial, for a new ground on the ’’

the verdict was excessive. The recognizes right not statute of a trial court to set aside jury, one verdict of a trial court but the should do so judge whenever the trial having is heard after satisfied the evidence that the verdict unjust, as rendered whether motion for assigns a new trial that as a cause or not. Secs.

1454, R. 1919; S. Ewart v. Peniston, 708; 233 Mo. Transit Rodon v. 207 Co., 406; Mo. Wood, Gould v. 207 John, 632; St. Mo. Bank v. 72; 124 Mo. Ry. Co., 224; Haven v. Mo. 155 Mo. v. Transfer Schuette 108 Co., (2) appellate Mo. 21. court is not restricted to the assigned by reasons granting trial, the trial court a if an new examination of the record shows that the end the trial reached right just. was Railway, 216, 224; court 155 Haven v. Mo. Johnson (3) Grain Co., Co. v. Railroad 117 Mo. This App. 194. court will sustaining not with interfere the trial order of court trial, complained motion for a judicial new unless the error of was It will discretionary error. power never interfere with of a trial in granting court a new trial for the first time where the discretion trial determining court is_ exercised the amount of Casey verdict 229; returned. Co., v. Transit Mo. Haven v. Mo. Ry. Co., 155 216; Peniston, (4) heavy Mo. Ewart A v. Mo. 709. always challenges verdict sharpest scrutiny. Devoy the court’s Transit Co., (5) Mo. 221. was Whether verdict in this case excessive, instance, fact, reasonable first for the trial court to That decide. court all the witnesses before it; in testifying important observed their conduct and manner —an vantage weight considering determining fact given trial to the different witnesses. The credit should jury in fact, that the verdict returned this court found as a justice should be demanded set case excessive and finding this verdict was excessive is trial aside. The court’s It of that judicial the exercise sound discretion 'error. not vested, ought are and this court to disturb which trial courts Co., Casey v. 186 Mo. finding Transit Haven of fact. (6) Plaintiff was not Ry. Co., 155 Mo. entitled Pac. against petition states no cause of (a) His action damages whatever: Browning, Live Stock of them. Co. v. either respondents, these 300, 992; 250 U. S. L. Colgate, v. 63 Ed. 324; Mo. United States 260 Assn., 166 Freight U. 320. Harelson S. Trans.-Mo. v. States United “exhibits” made the books of (b) The 398. Tyler, v. conclusively show that Paul F. in evidence and offered appellant dollar in the Blue Ribbon not own did Dietrich, appellant, op Missouri; [April Term., Yol. 315. Company Smith (c) in 1919 nor in 1920. If the “exhibits” they estab- Company’s anything, from the prove Blue books Ribbon inter- lish the owner of the one-half fact that Ben Dietrich was the December, 1920, and est in company December, 1919, appel- testimony showing there that this appellant’s is no record 31, lant acquired ever after Ben Dietrich’s interest December (d) any which the testimony upon The fails to issuable facts show jury any tending or draw of fact to show could base inference (7) appellant penal- recover damages. had suffered actions to pleadings ties with the strictness are to be construed same gravamen action constituting The facts indictments are. may appear should clearly distinctly be in order stated Cyc. that the 1352. In actions under case is within the statute. clearly penal recover, bring must his case statute the Being prosecution, criminal within the nature of statute. beyond must be a reasonable guilt defendants’ proving’ 167, 170; Roberts, App. 59 Mo. Boesel doubt. Town of Glenwood (8) upon appel- The Fargo, 260 Mo. statute Wells Energy applied Coal & case cannot be lant bottoms his ice, bought not manufacture but its company did Company. That supplied patrons. which it co-defendants, with supply from its personal service, occupa- was one of The this defendant business of under ban of the tion, and and could not come is not statute. ex rel. Tyler, Press, 281 Mo. State v. Associated Harelson v. law, (9) is warrant for 159 Mo. 456. There no reason judgment president Cape M. against Koeck, J. president Company, against Robertson, A. Coal nor W. against Morrison, Captain nor Celia wife Supply Company, acting respective for their two first named F. W. The Morrison. testimony connecting Mrs. Celia Morri- was no corporations, and there at all. matter son with the provisions

LINDSAY, suit is founded of Sec- C . This charges 1919. The 9655-9658, petition Revised Statutes tions anof and com- and maintenance creation trade, competition in bination in restraint of and of the manufacture city whereby alleged it is and sale of ice GirardeauJ aas retail plaintiff was forced out of business dealer damaged. damages, The as $8000 verdict for and allowance attorney’s damages $1000 for as fees. The amount allowed as motion, judg- of Section provision trebled on under against the $25,000 defendants. trial ment was rendered specified new trial, motions court sustained defendants’ therefor, single ground record, as the excessiveness verdict. record, may originally entered, It at noted this time that Cape Brewery y. 513 & Ice erroneously recited that the motion was sustained because the verdict against weight evidence, was the because the verdict was excessive; pro order, con- but later this was corrected nunc tunc fining ground the to excessiveness of the verdict. upon plaintiff say sustaining

Counsel that the of the motion overruling ground the excessive, that the verdict was constituted an Hines, grounds all assigned. of the other That is true. v. [Kersten 283 They suggest assign Mo. that the court overruled the since 634.] weight evidence, ment that the verdict was not sustained the verdict, ground but allowed the motion on the of excessiveness of the sustained on the follows that the motion was not conclusively ground weight the evidence. This upon latter the the of of may necessarily trial believe follow, does not because court well a a a the evidence is sufficient to sustain verdict in favor of plaintiff, yet, of the evidence as to the amount consideration actually damage, properly of the verdict rendered was hold Gaty Railways Co., excessive amount. v. United granted upon ground the a trial defendant new the sole was many newly evidence, assigned in discovered one of the motion. ground good upon appeal, and, upon the That was held to be not evidence, granting order a new trial was sus review the upon ground tained that the was excessive. That was the sole verdict stated, done under the rule there 1. c. 522': “We are not confined ground particular consideration on the trial court brings If respondent based the order. to our attention other record, motion, on grounds which, entitled him to a new invalidity ground upon trial, despite affirm the order we But case trial court acted.” the burden which the rests grounds respondent upon show that contained in the upon the specified by court, motion, the trial than those verdict other Thomas, ex rel. Mo. l. c. properly set aside. [State Hines, supra.] Kersten rule, defendants, joining issue upon this counsel for

Acting ground specified, insist order with grounds prove did state nor on the sustainable damages against recovery defendants, or either action cause of charge that the evidence did not sustain the It is insisted of them. carrying conspiracy, making and out unlawful and that Company, which was not a manu- Coal defendant bought of its co-defendants the ice retailed to ice, but facturer any agreement not, by reason of consumers, the de- the statute. the ban of fendants, under - day -, charged petition since selling at engaged business of retail plaintiff Girardeau; predecessors, his' from whom that he and city ' 315 Mo.—33. Term, op [April Missouri, Yol. years had business, during preceding- the twelve acquired lie selling ice handling and up large business-in profitable built Energy Coal name; defendant, under said trade at retail years prior co Supply Company, a for more than two corporation, selling ice at handling and filing suit, in the business of Company, corpora- a city; Brewery Ice Cape in said that the retail engaged of manufactur- tion, many years had in the business been city; that defendant ing selling it in said ice and at wholesale likewise, for Company, co-partnership, Morrison a Fuel many years, manufacturing ice and engaged been in business of defendants, selling city it at in and that the Koeek wholesale said Robertson, presidents, respectively, and of the Company Company. & Ice and &Coal petition language count, statute, The is in uses the and one charges agreement the creation of an and combination between competition manufacture, in and in defendants restraint of trade purchase city, in that it was entered into and sale of ice said and by regulate, price fix ice in both defendants to control and fix quantities city, in and and limit the and retail said to wholesale quantity be delivered and sold and the retailers amount and of ice to quantities city; should in in said to whom ice be sold wholesale agreement, city defendants their divided the into zones and divisions, designated only persons to and whom ice should be city and quantities within said their said unlaw- wholesale sold agreement them refused furnish each and all of to or sell to ful any quantities plaintiff plaintiff ice wholesale and refused to allow carry selling city; on his business of ice at retail said defendants entered into said control and limit city, competition retail trade ice in said and to limit trade by refusing plaintiff, to sell to for the reason that plaintiff would party combination; not and did not become member or a to such agreement boycotted that defendants said because party agreement; he refused to become a member or to such together agreed price to raise the retail said city, plaintiff a party agree- refused to become and because said together refuse and did ment, agreed plaintiff refuse to sail city ice, and that defendants at said time divided the into more designated person zones or territorial divisions and only one to sell divisions, agreed together and ice at retail in each of said to stifle competition prevent person and than and limit more trade selling in each said divisions; ice at retail to consumers territorial by said purpose agree- and intention of defendants unlawful that the trade, price stifle increase the ment of ice to and combination thereby greatly injure public consumers, people and and the alleged that city. plaintiff then the defendants still of said Cape Brewery & Ice carrying maintain and still agreement, are out their said unlawful and continuously great damage have maintained the same to the and injury great damage injury and his trade and to the and public people, city; agree- of said that on account said ment combination, was forced to and did undertake buy cities, distance, ice in other freight but on account of the transport, and loss in successfully he was unable carry rates on quit retail ice forced to and did and abandon business; that on account the unlawful combination acts of entirely defendants he had city, lost his ice business in said which had cost him large up carry sum to on, build and which damaged had been destroyed, and that large he had lost profits, covering period amount in year of more than one before alleged filing suit, damaged and he that he had been thereby $15,000. the sum of The defendants did not demur to petition, but filed their plaintiff required motions to have to file a bill particulars, alleging were not petition upon advised the what facts the plaintiff sought expected or damages, to recover and that there was no petition statement indicating upon the the basis which he expected damages. to recover overruled; This motion was defend- excepted, exceptions. ants and filed a term bill of Answers filed, were general each of which 9667, was a denial. Under Section Revised 1919, provided Statutes it is it is not plead to necessary agreement in which or manner or when where such or combination was made. charges making agreement petition of an and combi- purpose,

nation, and its nature and the acts done thereunder defendants, city of zones, designation the division into person in zone to ice each whom should be sold in whole- plaintiff sell to quantities, sale the refusal to for the reason that he party thereby a to the and that profitable refused to be damage. destroyed, to his was business necessary plead in suits character, what it is

As to this Corpus Juris, 218, page down in section is laid 631: rule “In simply damage, is not sufficient alleging state that damage it did alleged result; faets be from but the which in fact should the court true, damage would naturally are see, possibly if the facts can allegation of they actually acts stated. The facts as from the result exist, however, require permit a does not statement in the com- prove such facts, relied plaint of the evidence unless facts themselves.” consists of the evidence which, true, if pleaded, this case facts were such as from

In damage naturally would be seen that result. The sub- '-hem it could petition complaint of the is stance of the owned and Term, [April Missouri, Vol. Court of lost the business and that he profitable, a which operated business and acts defendants. combination result of the unlawful as the the nature of combination, and purpose The character acts, were described. through allege damages suffered sum It was sufficient evidentiary- setting- forth without profitable the loss of what would be determined was the from which facts, shown distinguishable respect no there can be profits lost. this amount damage profits, alleging alleging for loss difference earnings personal injury damage through sustained for loss negligent act of another. the result alleged petition defendant, Energy Coal It is manufacturers, Company co-defendants, bought from who were That was not a it did retail business. manu- company and that That company, urged, as the evidence shows. facturer occupation personal engaged service, that reason Tyler, within the statute. Harelson could not be v. Mo. Press, 159 ex Mo. are cited in sup- State rel. Associated contention, and the same connection port of that reference is Browning, 260 made to Live Stock Co. pleaded nor. the

Neither the matters this case toas Supply Company Coal & show the business of performing personal been It company to have service. was not an agent property person of one selling person, another for a commission, bought ice at prices or otherwise. It wholesale paid, thereby price at a its co-defendants became ice, and sold ice to its own customers owner within the commodity, it. It dealt in a an article apportioned zone of manu sold,'and character, in that facture, bought was within the terms the character and manner This also the statute. busi by plaintiff. Browning, In Live Stock Co. v. done the ness it was 346, did out, agreement c. that the statute not cover an pointed l. to deal one who agent, was an combination that or is one in engaged of selling- the business simply prop who man’s agreed reasonable erty for or fee. The to another like distinction Tyler, l. part in Harelson in pointed out c. that the dealing question petition with the whether opinion the stated a It was under the statute. cause action there held that “labor, intellectual, ‘product physical is not a whether or or commodity,’ subject ‘purchase and sale’ within meaning is the the that of the commodity in case it was a personal statute.” But and not a this alleged agreement, with in the service which was dealt and ques company became a member tion was whether that of the combination affecting commodity. that (cid:127) Brewery Cape Ice & urged, authority, there was any

It is but-without that citation against defendant judgment no warrant in 'law or reason against president Brewery Company, nor Koeek, Cape Ice& Robertson, president Energy Coal & Com- defendant testimony against It is no pany," nor Celia Morrison. said there was no connecting that, her with the at all. As to there is show- matter Morrison, any agreement, but ing personally, Celia that W. partner Morrison she was of F. manufacture is conceded clearly F. W. was the act ice, and sale of and whatever Morrison did Robertson, As co-partnership. Koeck and what- of the made and whatever agreement was acts were done or their ever persons were made and done them as the respective companies, 9655) companies. (Sec. controlling The statute the acts of those “any create, into, who become member person shall enter includes any” agreement, participate in combination or under- of or standing. ‘person’ ‘per- “The is as follows: or Section words ’ article, sons, persons, used this shall be deemed include natural persons corporations, partnerships, associations of and created or laws of laws organized or under the this State under the country.” provisions Under these under other state or persons shown, could not be said that circumstances mentioned acts participate in the and the done. The did not under participation plaintiff’s was submitted Instruction 2. defendants, Cape Brewery that & Ice The evidence was Com- were the Company, companies, Ice & Fuel pany and Morrison manufacturing city Cape Girardeau. persons, Prior & Supply Company March, 1921, engaged Coal was not city. ice business Plaintiff’s in the retail question, prior the time in had at and about 1400 customers, than retail or more one-half trade in ice in said engaged had been two city. There were and others the retail Hanny. Chilly Meinz and Gus business. These March, tended to The evidence for show about city zones; into Hanny was divided three Gus -the thereafter Hope south of Good Street, all the ice business retail street west; procured that he extending ice from defend- east Company; Chilly & Ice Fuel Meinz had ant, Morrison city, part part Washing- north of north Cape Brewery got his of ice from the Street, supply ton Ice defendant, Energy & Supply Company Coal Company; and that streets, those constituting the zone between exclusive trade had the city, procured principal its ice from part central Company and Morrison Ice & Fuel both fifty per take agreement should Company, an cent of under The companies. said evidence from each further supply its needed of [April Term, Missouri, Vol. any showed that neither of retail would person these dealers sell to apportioned zone It outside to was him. shown after arrangements these effect, manufacturing went into said both com- panies plaintiff. refused to sell ice to the introduced inquiry made had statements of Cape before the Chamber of Commerce Girardeau on June by defendant, president 1921. In Robertson, the statement made Energy & Supply Company, Coal stated he had he a con- Morrison, Cape Brewery tract with & Company, Ice for his requirements delivery for ice for retail to exclusion all others, except Hanny; Meinz and that under the was contract he purchase manufacturers, retail dealer who could ice from the territory; Company his that he knew the Blue Ribbon could noi buy manufacturers; ice from either the two Blue Ribbon buy Company Fuel could ice from the he Ice. manufacturers with, he had exclusive had contract because sale of ice at territory; Chilly prohibited within his Meinz retail was from Hope ice, Street to going formerly north of Good deliver as he had (Robertson’s) do, proposition been free to because was president accepted Koeck, Cape been had & Ice supply Company, whom Meinz obtained his ice. He was produce a copy if he the contract or file would to with his asked replied statement, and would not. His statement before following: you the Chamber Commerce contains the “Do know any person attempting prohibit shipment to or curtail of ice Yes, I am.” Girardeau? testifying A witness with conversations defendant Robertson, “Mr. Robertson said when he said: talked about this he would not have it ice business that unless he could all, have it town this too part, any the best because small for competi- ’’ tion. by F. W. Morrison was also The statement in evidence, introduced said he had a contract to deal exclusively in which Morrison dealers, Hanny Energy Gus defendant retail Coal & Supply two any to sell Company, and that he refused retail dealers other than two. those defendant Koeck to

The statement the Chamber of Com- His statement, introduced evidence. merce also -like the questions form others, was in the answers. To the contract, had an to deliver whether he exclusive ice to retail dealers selling Cape Girardeau, he said he two dealers, retail Chilly Supply Company Meinz; Coal that he would except Ribbon;” dealers the “Blue sell retail that he price forty at wholesale sell offered per cents Cape Brewery & Ice say price but to his to pounds, hundred that he refused what was. dealers F. W. introduced a letter written defendant Morrison

Plaintiffs Popular Bluff, 30, 1921, Creasey on to a Mr. at from whom March buy buying, attempting plaintiff the to ice. this letter saying (Morrison) Creasey, Morrison wrote that was informed Creasey plaintiff. purport shipping ice to the letter Popular have would demoralize was, shipped that to Bluff business, plants operating and be an encroachment the two on Cape Girardeau, competition and that of that sort would force the enough discourage practice. plants prices local to reduce wagons testimony plaintiff plants There is that sent to the ice, purpose procuring defendants after ice without it plaintiff’s trade; used being known that such ice would be for is, closely testimony that effort was watched de- plaintiff’s this given Robertson, that that fendants, orders were Morrison might plaintiff, or to who deliver no be to the others ice should sold plaintiff. use at Eaves, had various times a witness for who Wilson Mr. Morrison’s defendants, Latham, worked for each testified that him, witness, Robertson, Mor- manager, that “Mr. Mr. said Blue Ice put rison and Mr. Koeek had a contract Ribbon any sell them Company & out of and not to ice.” Fuel Morrison, Latham told him that “Mr. Another witness said that Cape Brewery & Ice Energy Company Company and the agreed one another’s customers.” not to take testimony show, was,, and their tended to contention Defendants’ Coal & entry Energy Supply Company into prior to

that negotiating plaintiff with both the business, the the ice & Company Company and Morrison ice for the Brewery & Ice buy 1921; each to believe he caused would season plaintiff prepared them for and forwarded ice from his Company executed, & lee contract be Cape Brewery to the supply have a ice for the plaintiff was to season under which person; other the Cape exclusion to the plaintiff; to make such a contract with Company & refused refusal, plaintiff, assuming meantime, and before formal made, F. W. told Morrison he would contract would that such a Cape Brewery Company; & Ice get ice' from the supply of his indignant, refused to talk to further or deal with became Morrison sought arrange- to make and did make an thereafter plaintiff, Company go Energy into ment for the Coal the retail ice business. arrangement question whether,

Upon result referred conflicting. testimony to, raised, price of ice was Before op [April Yol. Term. Missouri, Commerce, why price Chamber of Morrison was asked higher year ice then was .period than at same He before. answered: “Nothing money has down lost come for three ’’ years. they

Plaintiff introduced several witnesses who testified required pay more for ice in after out went bought Supply Company Coal ice, than they formerly paid plaintiff bad to ice. testimony

Defendant’s tended show to sold in the prevailed. season of at price that had theretofore On his “In price cross-examination said: 1920 the retail of ice city cents for fifty sixty cents houses homes; private it price ivas the same 1921.” Dietrich, Ben son testified that in the summer requested by of 1920 defendants, he Morrison and Cape agree Company price & lee to to raise the of ice from fifty sixty forty cents, hundred, cents to cents a and that he refused; plaintiff’s that defendant Koeck asked sons meeting to at the office of Mr. Morrison attend a to price raise the of ice. touching statements, conduct,

The evidence course of business by and the pursued defendants, did, effect what is extensive. agreement as to whether there was an The conclusions between question and its and the purpose, the execution of by effect, agreement them and its must be drawn from the presented in evidence. The is by circumstances here respondent upon evidence, a demurrer to the as its determination “A upon conspiracy is to as if demurrer. agreement be made is an understanding persons or two more between do an unlawful an do act, lawful, means to act which is or to use unlawful but it provén necessary express by agreement is not that it should be an may proven but like by evidence, direct by other fact But must evidence. exist between circumstantial at least two Co., 162 v. Mineral Land persons.” Mo. In a case such [Ross 331.] accomplished this, purpose must be whole or part, conspiracy, pursuance party and the done complaining damages actual done must have sustained reason thereof. The pleadings were arising upon the jury issues submitted under complaint No is made of the form plaintiff’s the instructions. complaint is made of instructions, no refusal of instructions defendants, except peremptory as to those of offered character, defendants, each or common them as to all. several Under case was submissible. evidence the upon advanced, right Argument is founded of a person en- ,vhomsoever private buy

gaged character, in a business Cape Brewery & 521 Ice Co. Dietrich v. will, or to sell to a whomsoever he to refuse pleases, to sell to right not extend to the allowance of person. The does particular person with action thereunder of such agreement and concerted design, accomplishment a common similarly engaged, in others agreement making of an another, or to the the business destroy thereunder, inflicting an action by law, and concerted forbidden done, injury public. the defendants could have What essentially different from what severally, by independent action, is they might collectively, them pursuant do to an between Brewing selves and concerted action thereunder. [Heim 64; People’s Co., Belinder, App. Mo. State ex rel. v. Packing Co., Armour 265 Mo.

Mo. State ex inf. v. 148.] by respondents being the action The contention is made prosecution, proving the evidence defend of a criminal the nature beyond support doubt. a reasonable guilt ants’ must establish Roberts, App. 167, and Boesel that, Town of Glenwood however, is Fargo, 260 Mo. are cited. This not the v. Wells notwithstanding action, and the nature This is a civil rule. according be made made, of the issues

charge determination evidence, according and not of the the rule preponderance 432; 97 Knapp Co.,& cases. v. Smith in criminal [Edwards 100; Ellison, ex rel. 268 Mo. Burrus, 106 Mo. l. c. State v. v. Roberts, 560; 281 Mo. l. c. Brooks Farmer’s Loan & Trust v. Surety Co., 285 Mo. l. c. Southern Co. v. 653.] questions foregoing, respondents raised and Upon the outside order, specified against the court we grounds rule defendants. question of the the action propriety remains the

There ground setting on the that it aside verdict was excessive. court applicable Kelly rule was Upon particular stated l. 590 Co., 248 S. W. c. as follows: Box “The lower v. Columbia large setting discretion aside it has not verdicts court inadequate, deems'excessive, which it deems but also this court an abuse of discretion on part unless to interfere refuses is manifest.” court lower general application granting in its of the rule orders Statement Wells, 254 trials, 65, made Devine S. W. l. c. where new appellate apt court is less “that interfere it was said: when when it granted than has been denied.” has been And a new trial “The was there said: discretion th trial is continuing, it court however, unlimited one. It is not measured not, an the mere judge. . . The rule looks to justice trial . substantial will of the end.” trial court case the found as fact the verdict instant In the excessive, finding of the “this court to be taken as true Term, op [April 522 Missouri, Yol. 315. contrary clearly enough to unless the shows at least make Union Electric out abuse of discretion.” [Grezkoviak Light & Power l. Co., S. W. c. 366.] sole at

Plaintiff testified that he was the owner of business alleged against the time the took action him. He year 1909; said that he that his started the business about sons business; him were with that about he sold one-half November, to his Martin Dietrich about interest brother bought The interest of brother. one-half so coal business as well as an ice operated, included a business. equipment Testifying as to the for the latter business and what business, his abandonment the ice became he said: equipment I had “I don’t know what became of the on hand for just place went one handling the ice It I business. another. I don’t exactly, I could ... know sold for whatever but I had equipment hundred dollars invested in the twelve or fifteen about they had horses and business. We twelve the ice worth at wagons. They $1600, about six the time were worth about my at the I paid I truck and time think $1000. $2000 it was $1500.” worth testifying what

Plaintiff’s son as to said: had, “When we wagons business, we had first started two ice and at the opening of begin with, had four to we and we season also had supplied truck us we supply wagons $2000 that cost our and teams. middle of the season we run about five or six eight wagons, We had about sometimes seven. or nine or wagons ten ’’ Again testifying delivering hand on ice. the same witness said: years in business thirteen ago, we started “When we had three in 1921 opening and at the the season horses eight we about ice tools equipment We had for our also office only.” in the ice business were used profits as to years testified some they made —said $3000, years

good, made as much as and some other would not make exactly That not tell what profits as much. he could were, “they average $1500, something about would like that —over and above everything.” expenses and and tear The plaintiff, on cross- —wear testifying property as examination, to the owned operated and which included not the sale ice, business but of the sale of activities, “In 1920 coal and some other said: I had about ten horses wagons wagons and six and five coal about and a truck and all equipment, and that was not>mortgaged. I other ice give didn’t 1919, April $550, on nine mortgage 28, on horses, six coal wagons, harness, buggy box, five of and harness, one ice sets stock of coal gravel stable, mortgaged and and etc. Neither was in 1920. Me and my brother, Dietrich, Martin owned in 1919; I don’t know that Cape Brewery & 1926]. 1917, mortgage 8,

I stuff and filed for had a on this dated October gave any know I November; I on 15th of don’t record mortgage. 1920, That I and was worth property is all the owned exactly. I is the actual worth $6000, from don’t know That $4500 of if good the business. will business worth a whole lot you you stay your don’t want if business you to sell it. And want good your higher you than if consider the will of much business your get and of Ain’t it are tired of want to rid it. so? business I worth, I are you already believe told once what these ten horses wagons more, exactly; and the six ice $1000 about I don’t know ’’ worth about $1000. Smith, bookkeeper and

Joe who testified he was accountant plaintiff’s books, witness, was introduced as a and examined the prepared and him were introduced certain statements making up plaintiff’s In exhibits he as these used books exhibits. available, including information as checks and also such other obtainable, invoices, plain- and information obtained where all different of tiff and his The exhibits cover classes sons. included, the ice business, done which besides business blaeksmithing gravel, dealings coal, and some coal, sand other making In operations, property up in all of them. used impossible operating expenses, it was to show exhibits of sometimes were attributable. that event said he which business according Among sales. these exhibits in- apportioned same profit year of giving a statement was one loss troduced several different classes of business. each This 1919, from of gain year upon upon face, showed a net for that statement, gain plaintiff’s on all opera- of and a total net $2,471.24, ice business year statement for the $2,919.75. gave The similar tions gain business, net on the ice $938.70, as the sum of the total classes, including given the ice as gain on all the net way setting in a similar prepared an exhibit There was $195.43. $3,271.87 upon plaintiff’s for the period forth a loss ending 31, October January 1, The same beginning purported exhibit, which an set forth prepared had also witness damage petition. claimed in the arriving at basis of .amount inserted, there was exhibit, exhibit as a plaintiff’s In this “C-B” To this was added foregoing $3271.87. the sum loss, item $1298, gain which it estimated should have as the net mentioned, average based during annual period being one-half of $1557.59; the sum $1557.59 this sum gain gain $195.43, gain $2919.75 calculated foregoing added also the witness In this exhibit according added, his estimate should be $3000 sum of To that he added the up the business. further building the cost [April Term, Yol. Missouri, oe good as the value of will of the business. $7500 sum of There nothing books, elsewhere,' on the to show such item as being $3000, building as the cost of up the business. The item of designated lost, $7500, good as the value will of the business through witness, was reached profit calculation that an annual $1500 about year, upon property something of the value of more $5000, than as property which included as devoted the coal well justified the ice business, placing the valuation of on the $7500 good will of the business. Nielson, defendant,

A. C. an accountant, introduced testified amade tentative plaintiff’s examination of the books. He had not had thorough complete time to make a examination. He badly kept. said the books were He made examination of exhibits prepared by Smith, compared the witness with what was shown by the books. He testified that the books showed loss of $2265.97. He said the books showed an capital invested year 1919, $7474.08 at the end and an capital invested' year at the end of this, $5011.58 1920. From he deduced the loss mentioned. He further testified that the books instead of show- ing year gain for the showed a year $3271.87 loss On $1469.25. cross-examination he said the statements made for right, practically all and in 1920 it was right.” “was all He absolutely impossible testified that it from the books separate the ice coal business. The term “investment” had investment, reference to the total and was not solely referable complained‘of the investment the ice business. loss by plain- petition, tiff in was the loss of his ice business, which it was alleged profitable was a business.

Considering the evidence of damages plain- business, his ice character, tiif for loss of its somewhat indefinite clearly difficulty separating this business from his coal and other forms circumstances, all the we cannot hold court, setting that the trial verdict, aside the ground on the excessive, discretion, it was and, abused its reason, the order setting aside judgment the verdict and the affirmed, and the cause proceedings. remanded for further Seddon, C., concurs. foregoing PER opinion CURIAM:—The isC., Lindsay, adopted opinion as the of the court. All of judges concur, except Graves, J., absent.

Case Details

Case Name: Dietrich v. Cape Brewery & Ice Co.

Court Name: Supreme Court of Missouri

Date Published: Jul 30, 1926

Citation: 286 S.W. 38

Court Abbreviation: Mo.