LaVELLE v KENNEALLY
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No. 12411 I N THE SUPREME C U T O THE STATE O M N A A OR F F OTN 1974 WILLIAM P. LAVELLE, P l a i n t i f f and Appellant, T O A F. KENNEALLY e t a l . , HMS Defendant and ~ e s p o n d e n t . Appeal from: D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t , Honorable John B. McClernan, Judge p r e s i d i n g . Counsel of Record: For Appellant : N e i l J. Lynch argued, B u t t e , Montana For Respondent: Holland and Haxby, B u t t e , Montana Robert J. Holland argued, B u t t e , Montana Submitted: Decided : November 15, 1974 D E C 1I; 1974 M r . Chief J u s t i c e James T . H a r r i s o n d e l i v e r e d t h e Opinion o f t h e Court. I n t h i s c a u s e W i l l i a m P. LaVelle sued Thomas F . K e n n e a l l y , d/b/a I n t e r m o u n t a i n Trucking Co., t o r e c o v e r damages f o r a n a l l e g e d b r e a c h of c o n t r a c t t o h a u l p e t r o l e u m p r o d u c t s under t a r i f f r e g u l a t i o n s f o r m u l a t e d by t h e Montana R a i l r o a d Commission (MRC). T h i s c o n t r a c t w a s e f f e c t i v e from i t s i n c e p t i o n i n Feb- r u a r y 1965 t o i t s t e r m i n a t i o n i n J u n e 1970, and c o n s i s t e d o f a s e r i e s o f l e a s e s p r o v i d i n g t h a t LaVelle would r e n t K e n n e a l l y ' s t r u c k s and make d e l i v e r i e s of g a s o l i n e t o t h e l a t t e r ' s s e r v i c e stations. A t what r a t e t h e p a r t i e s were t o be p a i d i s t h e nub of t h i s controversy. The l e a s e s t h e m s e l v e s p r ~ v i d e da s f o l l o w s : 1. Lease of F e b r u a r y 1, 1965: " * * * L e s s o r t o r e c e i v e E i g h t y P e r Cent ( 8 0 % ) of t h e h a u l a g e f e e a s s e t by t h e MRC; L e s s e e t o r e c e i v e Twenty P e r Cent ( 2 0 % ) of t h e h a u l a g e f e e a s s e t by t h e MRC. * * *I1 2. Lease of October 1, 1965: " * * * 5. RENTAL: LESSOR i s t o r e c e i v e E i g h t y P e r Cent ( 8 0 % ) of t h e h a u l a g e f e e a s s e t by t h e MRC; LESSEE i s t o r e c e i v e Twenty P e r Cent ( 2 0 % ) of t h e h a u l a g e f e e as s e t by t h e MRC. * * * " 3. Lease of June 3 , 1968: " * **5.RENTAL: LESSOR i s t o r e c e i v e E i g h t y P e r Cent ( 8 0 % ) o f t h e I n t e r m o u n t a i n Truck h a u l a g e f e e a s s e t by t h e MRC. T a r i f f # l . LESSEE i s t o r e c e i v e Twenty P e r Cent ( 2 0 % ) of t h e h a u l a g e f e e a s s e t by t h e MRC. t a r i f f #1. * * *I1 Kenneally c o n t e n d s t h e words " a s s e t by t h e MRC" meant I n t e r mountain Truck T a r i f f #1, w h i l e LaVelle i n s i s t s t h e y r e f e r r e d t o Montana Motor T a r i f f # l ( e f f e c t i v e p r i o r t o F e b r u a r y 27, 1968) and Montana Motor T a r i f f # 1 A ( e f f e c t i v e a f t e r F e b r u a r y 27, 1 9 6 8 ) . By c o i n c i d e n c e , I n t e r m o u n t a i n Truck T a r i f f #1 and Montana Motor T a r i f f #1w e r e v i r t u a l l y i d e n t i c a l a s t o t h e b a s i s r a t e . Montana Motor T a r i f f # 1 A , however, r e p r e s e n t e d a n i n c r e a s e o v e r t h e o t h e r s ; c o n s e q u e n t l y , LaVelle claims he was u n d e r p a i d f o r t h e h a u l s h e made f o r Kenneally s u b s e q u e n t t o F e b r u a r y 27, 1968. LaVelle i n t r o d u c e d i n e v i d e n c e a p u r p o r t e d summary of a l l t h e h a u l s he made f o r Kenneally d u r i n g t h e l i f e of t h e i r cont r a c t and c a l l e d s i x w i t n e s s e s , i n c l u d i n g h i m s e l f , t o t e s t i f y . A t t h e c l o s e of L a V e l l e ' s c a s e , t h e d i s t r i c t c o u r t g r a n t e d Ken- n e a l l y ' s motion f o r a d i r e c t e d v e r d i c t under Rule 5 0 ( a ) , M.R. Civ.P., on t h e grounds t h e e v i d e n c e was i n s u f f i c i e n t t o go t o t h e jury. From t h i s a c t i o n , LaVelle a p p e a l s . I n r e v i e w i n g a d i r e c t e d v e r d i c t , t h e i s s u e i s whether t h e r e a r e o n l y q u e s t i o n s of law. W e must t u r n t o t h e r e c o r d f o r t h e answer and keep i n mind t h a t t h e law does n o t f a v o r d i r e c t e d v e r d i c t s and a l l e v i d e n c e s h o u l d be viewed i n t h e l i g h t m o s t favorable t o t h e appealing party. Milkovich, 158 Mont. 438, 445, 447, 4 9 2 P.2d 1388, c i t i n g t h e l e a d i n g c a s e , Johnson v . Chicago, M. 390, 230 P.2d 52. I n re E s t a t e of H a l l v . & S t . P . R . Co., 71 Mont. A f t e r t h o r o u g h l y examining and re-examining t h i s r e c o r d , we f i n d a f a i l u r e of proof w i t h r e s p e c t t o e v e r y e l e m e n t of L a V e l l e l s c a s e . Much ado was made on t h i s p o i n t d u r i n g The t a r i f f r a t e . t r i a l and t h e above quoted p r o v i s i o n s of t h e f i r s t two l e a s e s a r e ambiguous. The e v i d e n c e a s a whole i s s u s c e p t i b l e t o o n l y o n e reasonable i n t e r p r e t a t i o n : t h e t a r i f f r a t e i n t e n d e d by t h e p a r t i e s was I n t e r m o u n t a i n Truck T a r i f f # l . For i n s t a n c e , t h e l e a s e of J u n e 3 , 1968 s p e c i f i c a l l y r e f e r r e d t o t h e I n t e r m o u n t a i n t a r i f f . I f t h e t a r i f f p r o v i s i o n had t h e r e t o f o r e been ambiguous c e r t a i n l y i t was c l a r i f i e d t h e n . After r e l a t i n g t h e circumstances of t h e e x e c u t i o n of t h i s l e a s e , Kenneally was asked a b o u t t h e p o s s i b l e d i f f e r e n c e s between i t and t h e l e a s e s of F e b r u a r y 1 and October "Q. Is t h a t t h e o n l y d i f f e r e n c e i n t h a t l e a s e ? The f a c t t h a t t h e r e was a new p i e c e of e q u i p The o t h e r two l e a s e s had t h i s . It ment? A . had a r e f e r e n c e t o t h e Montana R a i l r o a d Comm i s s i o n and t h i s l e a s e was between I n t e r m o u n t a i n Trucking Company and Intermountain Trucking Company Motor Tariff. That's separate. So I just further spelled out in this and inserted the word Intermountain Motor Tariff but it, in my mind, did not change anything because we had been working under the Intermountain Motor Tariff. We put that in there again to further amplify--when Sheila LaVelle we asked her to read this and to my knowledge she did read it. This was in witness of our bookkeeper there at the time. "Q. There was a difference between the first two and the third leases? A. No." This explanation was never refuted by LaVelle; indeed, the whole subject of the lease of June 3, 1968 is conspicuous by its absence from his case, except as will hereinafter appear. Further, LaVellels general course of conduct throughout this matter defies his assertion that a tariff other than the Intermountain tariff was the operative one. On November 26, 1969, he wrote a letter to Kenneally wherein he stated it was his feeling that their contract should reflect the increases provided by Montana Motor Tariff #1A. Yet, the lease in effect at that very moment was the one of June 3, 1968, which specifically referred to Intermountain Truck Tariff #l. Surely LaVelle was not ignorant of this! The manner in which this suit was instituted also makes one skeptical of LaVelle's claims: A complaint, with all three leases attached as exhibits, was filed alleging that the lease of June 3, 1968 had been breached. Before Kenneally answered, LaVelle filed an amended complaint alleging breach of the leases back to February 1, 1965. Interestingly enough, the third lease was not attached as an exhibit to the amended complaint, nor was it later put in evidence. On its face, this portion of the record indicates LaVelle knew which tariff rate prevailed. Moreover, the allegation that a breach occurred as early as 1965 simply fails to square with LaVellels letter of November 26, 1969, and his testimony that the underpayments did not begin until 1967 or 1968. The witnesses. Numerous topics were discussed during four days of testimony, but the only relevant one--a breach of contract by Kenneally--was either avoided altogether or the proof was insufficient. The summary. This exhibit consisted of 123 pages of names, dates and figures which purported to show all information about every haul LaVelle made for Kenneally under the contract. The conclusion LaVelle wanted the jury to draw was that Kenneally, by not using the Montana Motor Tariffs, had over the years underpaid him by some $27,000. We have already voiced our opinion on which tariff applied, but even if LaVelle was correct on that issue, we still agree with the district court that, as a matter of law, the exhibit was insufficient for a jury. Upon voir dire examination prior to introduction of this exhibit, LaVelle himself admitted it contained an undetermined number of inaccuracies and his wife--who did most of the calculations--would have to verify it. called to testify. But Mrs. LaVelle never was The echibit, then, amounted to nothing more than plaintiff's summary of the monies allegedly owed him by defendant. Being unsupported by other evidence or testimony, it must fail for lack of proof. Thiis this evidence was so insuf- ficient in fact as to be insufficient in law. Parini v. Lanch, 148 Mont. 188, 418 P.2d 861. It should be noted that LaVelle attributes a small part of his alleged damages to Kenneally's failure to pay him an additional $3 a piece forlSplit loadst' [loads divided among service stations in the same town). Apparently this claim would be made even if the parties agreed on the tariff. The only evidence of underpayment for split loads is found in the 123 page summary, which carries no weight. Moreover, both parties testified that throughout the course of the contract monthly adjustments in their accounts were made. The only reasonable conclusion to be drawn is that these adjustments reflected the extra payments due for split loads. It is clear the district court acted properly in granting Kenneally a directed verdict, and its judgment is affirmed. -------------------------------Chief Justice We concur: Justices
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