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Summe v. Chapman Dairy Co.

November 13, 1956

M. C. SUMME (BOEHM) D/B/A SUMME MILK PRODUCTS COMPANY, APPELLANT,
v.
CHAPMAN DAIRY COMPANY, A CORPORATION, APPELLEE.



COUNSEL

J. M. Loomis, Kansas City, Mo., for appellant.

John G. Madden, Kansas City, Mo. (William K. Atwood and Madden & Burke, Kansas City, Mo., on the brief), for appellee.

Author: Gardner

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

GARDNER, Chief Judge.

By this appeal appellant seeks to reverse a judgment dismissing on its merits her alleged cause of action against appellee by which she sought to recover actual damages in the sum of $85,000 and punitive damages in the additional sum of $85,000 for the alleged conversion of certain so-called milk routes in Kansas City, Missouri and vicinity, and for the confiscation of books and records of the milk routes alleged to belong to her. The parties will be referred to as plaintiff and defendant respectively.

By way of answer defendant specifically denied that it had appropriated or converted to its own use any milk route or routes belonging to plaintiff and it also denied that plaintiff ever at any time owned or operated any such milk routes as alleged in her complaint and denied that it had confiscated the books and records of milk routes, if any, belonging to plaintiff. Defendant also alleged that it first took over possession of the milk routes described in plaintiff's complaint by virtue of a contract and agreement between it and the receiver of the bankrupt estate of the Summe Dairy Company, pursuant to orders of the Referee in Bankruptcy having jurisdiction of said estate, and that it later purchased in due course said so-called milk routes from the duly appointed and acting trustee in such estate and has, since said purchase by it, been in possession thereof as owner; that said milk routes and the estimated value thereof were included as a part of the assets of the estate of Summe Dairy Company, a corporation, bankrupt, and in due course were sold to defendant and the sale thereof was duly confirmed by order of the Referee in Bankruptcy, from which order no appeal has ever been taken by plaintiff or any other person and constitutes a final adjudication of the claims now urged by plaintiff; that by this proceeding culminating in sale to this defendant it was, in effect, adjudged and determined that the said property was the property of the said bankrupt estate and that title thereto was transferred to and vested in this defendant free and clear of any claim of plaintiff. The answer also contained a general denial of all other allegations of plaintiff's complaint not specifically admitted.

At and prior to the time the Summe Dairy Company filed its petition in voluntary bankruptcy plaintiff was vice-president and active in the management and control of the Summe Dairy Company, of which company her father, A. J. Summe, was the president and principal stockholder. This company was a dairy company and owned and operated certain so-called milk routes in or in the vicinity of Kansas City, Missouri.It became financially embarrassed in 1943 to the extent that on its voluntary petition it was adjudicated a bankrupt on July 2, 1943. Subsequent to this adjudication plaintiff claims that one William B. Bostian, whom she assumed was acting as a receiver in bankruptcy, said he would not operate these milk routes and, in effect, abandoned them and told her that she might have them. She thereupon for a period of six days actually operated these milk routes, following which, however, she was, on application of the receiver in bankruptcy, by order of court restrained from further operation or interference with the operation of said routes by defendant and they were thereupon taken over by the bankrupt estate either through its receiver or trustee. The routes were first operated by defendant under contract pursuant to order by the Referee in Bankruptcy until they were in due course sold to defendant and defendant has since continued to operate same as owner.

At the time of the alleged statement by Mr. Bostian that he would not operate these milk routes and that plaintiff might have them, he had not been appointed receiver or trustee and there was never at any time any order of court authorizing the ...


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