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: November 15, 1974
Decided :
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
h a u l a g e f e e a s s e t by t h e MRC. I n t e r m o u n t a i n Truck
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 con-
t 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. I n re E s t a t e of H a l l v .
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. & S t . P . R . Co., 71 Mont.
390, 230 P.2d 52. 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 .
The t a r i f f r a t e . Much ado was made on t h i s p o i n t d u r i n g
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 -
ment? A . The o t h e r two l e a s e s had t h i s . It
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 Com-
m 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 ab-
sence 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 feel-
ing 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 infor-
mation 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 calcula-
tions--would have to verify it. But Mrs. LaVelle never was
called to testify. 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 ad-
ditional $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 grant-
ing Kenneally a directed verdict, and its judgment is affirmed.
--------------------------------
Chief Justice
We concur:
Justices