Cross Examination On Issue Relevant To Issues Already In The Case Does Not Show Trial Of An Unpled Issue By Implied Consent
01/30/08
Homeowner ordered a load of crushed rock for a driveway project. Rock contractor had delivered rock to homeowner in the past, including two loads for the same project. Rock contractor (knowing that it had recently rained) asked homeowner if he "could get over it [the driveway] all right." Homeowner indicated that he was getting over it with his pickup, and also said the roadbed was soft and it would be slippery at the bottom of the hill. No delivery date was specified. Rock contractor got stuck several times during the delivery, ultimately sliding off the driveway and into a utility pole. Rock contractor sued for the truck damage alleging breach of contract and negligent misrepresentation. At trial rock contractor cross examined homeowner about the driveway conditions and whether homeowner had warned rock contractor of those conditions. Trial court then granted judgment to rock contractor based on a premises liability/negligent failure-to-warn theory. Court of Appeals overturns, finding no substantial evidence to support the judgment and that it is against the weight of the evidence. Court of Appeals finds that cross examination on an issue relevant to issues already in the case does not show trial of an unpled issue by implied consent. Further, to make a claims of contract and negligent misrepresentation as pled, rock contractor had to show homeowner made a false statement as alleged in rock contractor's petition. Rock contractor failure to provide evidence of homeowner making a false statement was fatal to recovery. Allen Quarries, Inc., v. Auge, Docket No. 28349 (Mo.App.S.D. 1/30/2008)
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