Modern Graphics, Inc. v. Belger Cartage Services, Inc.

668 S.W.2d 111, 1984 Mo. App. LEXIS 3593
CourtMissouri Court of Appeals
DecidedFebruary 7, 1984
DocketNo. WD 34420
StatusPublished
Cited by5 cases

This text of 668 S.W.2d 111 (Modern Graphics, Inc. v. Belger Cartage Services, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Modern Graphics, Inc. v. Belger Cartage Services, Inc., 668 S.W.2d 111, 1984 Mo. App. LEXIS 3593 (Mo. Ct. App. 1984).

Opinion

KENNEDY, Judge.

Plaintiff Modern Graphics had judgment against Belger Cartage, after a jury trial, for $14,345.16 for damaging 75 steel galleys and 146 forms used in the printing business. The galleys and forms had been purchased by Modern Graphics from Charles Stout and Sons Printers and were being moved from the seller’s premises to that of Modern Graphics by Belger Cartage when the damage occurred. The jury verdict was for $20,000, but the court by order of remittitur limited recovery to $14,345.16. The remittitur was accepted by Modern Graphics and judgment was entered for that amount.

Belger does not here contest its liability, neither does it contest the fact that the damage rendered the forms useless. The salvage value of the damaged and the scrapped forms and galleys was $700.80, being 1,752 pounds at $.40 cents per pound.

Belger Cartage has appealed, claiming, among other points, that the court erred in giving its damage instruction. The instruction read as follows:

If you find in favor of plaintiff, then you must award the plaintiff such sum as you may find from the evidence to be the reasonable cost to replace the damaged type forms and galleys less the salvage value of said forms and galleys. The instruction is not in MAI.

The damage instruction was incorrect and requires a reversal and a new trial upon the issue of damages only.

The galleys and forms in question were a part of the tangible assets of Charles Stout and Sons Printers, which were purchased by the plaintiff Modern Graphics. The galleys and forms had been made up for specific printed materials for specific customers of Stout. The printer had kept them for use for reorders of the same materials. Some changes could be made in the forms without typesetting the entire form. The only value of the forms was to print the materials. In the absence of repeat orders, the forms would have no value except for salvage. Mr. Stout, a proprietor of the selling firm, testified that after the sale of the business to Modern Graphics, he went through the forms and “killed out all the forms that I figured was of no value whatsoever”. This resulted in approximately 4,700 pounds of “dead” metal. There were 146 forms left, which Mr. Stout classified as “current”. A great many of these forms—82, to be exact—were corporation stock certificate forms, which were printed by Stout upon orders from retailers Allen Stationery and Demaree’s Stationery. Mr. Stout testified that his criterion for eliminating “dead” forms was “if the company had gone out of business, either that or they tell us that the form is no more in use, that’s the only way I have of knowing”. As to whether the companies were still in business whose stock certificates were on the damaged forms, Mr. Stout said: “I wouldn’t know this. I mean the only ones that would know that would be Allen Stationery and Demaree’s Stationery. They are the ones that the jobs came from.”

Forty-six of the forms were various forms of Gas Service Company, and the rest were forms for various other businesses.

It would cost $14,345.16 to replace the 146 forms which were damaged. The replacement would be done by typesetters. In the process of typesetting a form, the forms are made of poured molten lead and tin done by a linotype machine. There were also included in the damaged forms some cold type, which was placed by hand.

[113]*113These forms were used in the letter press printing method. The letter press printing method has given way to the more modern offset printing process. Mr. Stout said that there were very few letter press printers in the metropolitan area.

Only if the printer received an order for the form, would he have to replace it. In the three years that had elapsed between the damage and the trial, Modern Graphics had actually replaced only 17 of the forms at a cost of $1,013.80. It was Belger Cartage’s theory that many of the forms would likely never be needed and therefore never be replaced, while the replacement of others would be postponed. There was evidence that this was the case.

There existed no market for the forms.

I

In such a case as this, where the investigation is as to the value of property in which there is no buying and selling, the value is a difficult thing for anyone to determine. The instruction in such a case should not confine the jury to a single method of determining value, but should allow the jury to consider all the numerous factors bearing upon the end question, i.e., what was the before-damage value to plaintiff of these forms? The instruction was in error when it told the jury that the before-damage value of the forms was their replacement value. Replacement value was undoubtedly one factor to be considered, but there were other factors, too. The factor strongly emphasized by the defendant was the obsolescence of many of the forms, a factor which the jury was unquestionably entitled to consider. Airtight Sales, Inc. v. Graves Truck Lines, Inc., 207 Kan. 753, 486 P.2d 835, 838 (1971); St. Louis-San Francisco Ry. Co. v. Kittrell, 208 Okl. 147, 253 P.2d 1076, 1078 (1953); Monahan v. Scott Cleaning Co., 241 S.W. 956 (Mo.App.1922); Stickney v. Allen, 10 Gray 352, 356 (Mass.1858).1

None of plaintiff’s cases are contrary to the foregoing statement. The cases cited by Modern Graphics say no more than has been said above, that is, that replacement cost is one factor to be considered. Airtight Sales, Inc. v. Graves Truck Lines, Inc., supra; New York State Electric & Gas Corp. v. Fischer, 24 A.D.2d 683, 261 N.Y.S.2d 310 (1965). Gases may be imagined where replacement cost would be the dominant factor to be taken into consideration, and perhaps the only factor, but that is not this case.

It follows that the instruction was wrong. There is no applicable MAI instruction. The instruction should have told [114]*114the jury that their verdict, if for plaintiff, should be for the reasonable economic, that is, the reasonable monetary value to plaintiff of the forms and galleys before the accident, less their salvage value of $700.80.1

II

In view of the necessity for retrial, and the possibility of the recurrence of the questions presented, we will comment upon another point of defendant’s.

Defendant complains of the exclusion from evidence of a Kansas City telephone directory and two business directories. Its purpose in offering them was to prove that several of the companies were no longer in business whose stock certificate forms were among those damaged and ruined. His theory was that those corporations out of business would not be re-ordering stock certificates and the forms were without any value except for salvage value. According to defendant’s offer of proof, the directories would show that 47 of the 82 corporations whose stock certificate forms were damaged, were “out of business”.

Such directories, if there is a proper foundation laid to establish their reliability, may be admissible, as an exception to the hearsay rule to prove the truth of their contents. Williams v. Campbell Soup Co., 80 F.Supp. 865, 868 (W.D.Mo.1948); State v. McInerney, 63 Wyo. 280, 182 P.2d 28, 34-35 (1947). See also Fed.R.Evid.

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668 S.W.2d 111, 1984 Mo. App. LEXIS 3593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/modern-graphics-inc-v-belger-cartage-services-inc-moctapp-1984.