author: L. F. COTTEY, Special Judge.

text:
    Gloria Lane HOWELL, Plaintiff-Appellant, v. Keith L. DOWELL, Defendant-Respondent.
    No. 24677.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 2, 1967.

      Arthur C. Popham, Sr., E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for appellant.
    William A. Rundle, Jr., William J. Thompson, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondent.
   L. F. COTTEY, Special Judge.

Plaintiff was injured when defendant Dowell’s automobile, in which she was riding as a guest, was struck by defendant McConn’s automobile at a street intersection. She charged both with negligence in causing the accident. The jury found the charges against McConn to be sustained and returned a verdict against him from which he has not appealed. Dowell fared better; the jury absolved him. Plaintiff appeals, assigning error in the exclusion of evidence in two instances: (1) the rejection of a proffered excerpt from Dowell’s answer, (2) the refusal to allow her to elicit from Dowell, on cross-examination, a concession that she was not to “blame” for the accident. Of the first.

Dowell’s separate answer categorically denied all charges of negligence laid against him in the petition. Coupled with his denials was a plea of contributory negligence in this language: “That if plaintiff sustained any injuries at the time and place referred to in her petition for damages, that said injuries were caused and/or contributed to by her own careless and negligent acts and omissions.” No effort was made to substantiate that issue at the trial and no submission of it was requested. Nevertheless, the fact that the plea was made is the thing to which our attention is first and most insistently directed on this appeal. The point arose this way. Plaintiff offered the quoted portion of defendant’s answer in evidence and asked leave to read it to the jury, claiming that it “constituted an admission by Dowell against his interest which was inconsistent with his trial claim of freedom from negligence,” because, as the proposition is phrased in her brief, “contributory negligence of a plaintiff necessarily presupposes negligence of the defendant.” In other words, by pleading contributory negligence on plaintiff’s part, Dowell implicitly admitted his own negligence, and the pleading containing that admission should have been received in evidence.

Plaintiff argues the effect of the plea from two points of view: 1st, as an inference of fact to be drawn from the circumstances under which it was made, 2nd, as an implication of law arising from the fact it was made.

Her first argument takes this line: (1) she was a guest in Dowell’s automobile, charged only with the duty of exercising ordinary care for her own safety; (2) so far as the evidence discloses, there was no way she could have neglected that duty except by failing to see the McConn car in time to have given Dowell an effective warning of its approach and, thereby, an opportunity to avoid the collision; (3) since her failure to do so is the only logical basis for charging her with contributory negligence, it must be assumed that the plea was directed to that omission; (4) but if plaintiff’s failure to see the McConn car was a breach of ordinary care on her part, then it was a significantly more culpable breach on Dowell’s part not to have seen it himself in the exercise of the highest degree of care, so as to have obviated the necessity for any warning; consequently (5), the circumstances that prompted his complaint of her conduct reflect discreditably on his own, and the jury was entitled to see it in that reflected light.

One trouble with that argument is that only step 1 of it is based on the evidence; all its other conclusions depend for their plausibility on the absence of evidence to contradict them. The abbreviated transcript on which the parties have submitted this appeal does not disclose whether plaintiff ever saw, or was in a position to see, the McConn car, or, for that matter, that she failed to warn Dowell of its approach. To supply the omission an assumption of those facts is made in step 2, and adroitly developed in step 3 as the basis for the plea. But the assumption is neither evidence nor the legitimate offspring of evidence. It is simply an argumentative hypothesis which the evidence does not refute, advanced as an inference of fact to beguile us down the path of speculation. If the skeletal plea in this case is to be fleshed out with conclusions of that sort, to give it the substance and weight that plaintiff claims for it, then there is no limit to the number of them from which a selection can be made. To illustrate: The record does not exclude the possibility that in spite of the accident plaintiff would have sustained no injury had she exercised due care to protect herself from it by fastening her seat belt, or by using some other available safety device. If we are to resort to conjecture for some circumstance that might have prompted Dowell’s plea, it would seem just as plausible to assume that it was prompted by an omission of that kind as by her failure to warn him of the impending collision. The example reminds us again that imagination is not a substitute for evidence. In candor, however, we cannot reject the argument on that ground without a further explanation, for this reason. At the close of plaintiff’s case defendant moved for a directed verdict, asserting that “plaintiff was guilty of contributory negligence as a matter of law in failing to give this defendant a warning of the approaching vehicle driven by defendant McConn.” Plaintiff says the motion confirms her view of the circumstances that prompted the plea. But that is not true, in any real sense. The motion admits nothing; by no standard can it be regarded as a judicial admission. Nor is any principle of estoppel involved. Plaintiff has not been misled by the motion to her detriment; on the contrary, she seeks an advantage from it. And since it was not offered in evidence we may not accord it any evidential value. We are in the same position, therefore, as though the motion had never been made. It is an argumentative diversion of no evi-dentiary significance. That brings us back to the fact that the basic assumption in plaintiff’s argument is unwarranted, and when it falls all subsequent and dependent deductions fall too, domino style.

The argument must be disallowed for another reason. Dowell’s answer contains no admission of negligence in terms', his denials of it are explicit. In those circumstances it is not possible to infer his negligence “without creating a repugnancy to the express language of contrary import contained in the pleading.” This we may not do. “It is elementary that no construction is permissible which would give an inferential meaning to a pleading contradictory to its express averments.” Rawlings v. St. Louis & S. F. R. Co., Mo., 175 S.W. 935, 940.

Plaintiff’s second approach does away with the necessity of construing the plea, inferentially or otherwise, and thus avoids the shoal of the Rawlings case. Its guiding star is the fact that the plea was made; nothing else matters. That fact alone raises an implication of law — “necessarily presupposes,” so the argument runs— that the pleader himself was negligent. No authority is cited in direct support of that proposition, but it is not altogether a novel one. Its basic premise seems to have been suggested by the early case of Payne v. Chicago & A. R. Co., 129 Mo. 405, 31 S.W. 885, 888, where, by what was afterwards termed a “refinement in technical reasoning,” it was said, “It is clear there could be no contributory negligence unless there was also negligence of defendant to which that of plaintiff could contribute.” Further refinement led to this concept: “The term ‘contributory negligence’ necessarily presupposes negligence for which defendant is responsible, which would of itself sustain an action but for the concurrence of the negligence of the plaintiff.” Christman v. Reichholdt, Mo.App., 150 S.W.2d 527, 533; Tribout v. Kroger Grocery & Baking Co., Mo.App., 191 S.W.2d 261, 263; Floyd v. Thompson, 356 Mo. 250, 201 S.W. 2d 390, 393; 65A C.J.S. Negligence § 116, p. 23. Plaintiff’s present argument is launched from that base. But no court has ever followed the flight of its logic to the extremity of holding that a plea of contributory negligence is made at the pleader’s peril, to be used against him as an admission of his own fault despite his denials of it.

In fact, one way or another on at least four occasions, though never as directly as here, the point has been raised that a defendant’s “plea of contributory negligence admits negligence in said defendant,” and on each the courts have disposed of it .in a way to delight the hearts of those who clamor for short opinions by saying, typically, “To this we cannot give our assent.” Harbacek v. Fulton Iron Works Co., 287 Mo. 479, 229 S.W. 803, 807; McDonald v. Morrison Plumbing & Sheet Metal Co., 209 Mo.App. 23, 236 S.W. 418, 420; Peterson v. Metropolitan Street Ry. Co., 211 Mo. 498, 111 S.W. 37, 43; Kleinlein v. Foskin, 321 Mo. 887, 13 S.W.2d 648,. 654. The reasoning may not be instructive but the results are. These cases, when considered with those that speak of negligence as a presupposed concomitant of contributory negligence, lead to one conclusion, viz., that it is the fact of a plaintiff’s contributory negligence and not the mere pleading of the fact that raises the implication of the defendant’s own negligence. The fact must appear before any implication can arise from it. It follows that if plaintiff offered the plea in this case as a substitute for the .fact, it was properly rejected, the plea being insufficient by itself to raise the desired implication. And if she offered it as proof of the fact, then the offer was inconsistent with her own trial theory of freedom from contributory negligence; indeed, by vouching for the truth of the fact in order to get the benefit of its implication, she would have set herself out of court. Thus in neither event can she complain of its rejection.

A thought suggested by the Klein-lein case deserves some further attention. The only basis for the reception of an admission against interest, of course, is its inconsistency with the position taken at the trial by the party against whom it is offered. Albertson v. Wabash R. Co., 363 Mo. 696, 253 S.W.2d 184, 189-190; Wigmore, Evidence, Third Edition, Vol. IV, Sec. 1048, pp. 3-5. But a defendant’s denial of the negligence charged against him, and a plea of contributory negligence, “although both are pleaded and joined in a single answer, do not constitute inconsistent defenses.” Kleinlein v. Foskin, supra, 13 S.W.2d 654; Alexander v. Barnes Gro. Co., 223 Mo.App. 1, 7 S.W.2d 370, 373; McDonald v. Central Illinois Const. Co., 183 Mo.App. 415, 166 S.W. 1087, 1089; 65A C.J.S. Negligence, § 198(3), p. 407. Inasmuch as Dowell’s plea in this case was not inconsistent with his “trial claim of freedom from negligence,” as a pleading, we are unable to understand how it could have acquired that quality simply by being offered as an exhibit in evidence. Surely the leopard cannot so easily change his spots. Contrary to plaintiff’s apparent assumption, the defense in this case “is not a pure plea in confession and avoidance,” and it is a mistake to regard it as such when coupled with a denial of the negligence charged in the petition. 65A C.J.S. Negligence § 198(1), p. 400, and § 198(3), p. 407.

We conclude that the offer of Dowell’s plea as an admission against his interest was properly rejected. And since its reception for impeachment purposes de-depends on that same quality of inconsistency which we have found not to exist— that is, “some real inconsistency” between the impeaching material and “defendant’s position upon trial,” State ex rel. State Highway Commission of Missouri v. Fenix, Mo.App., 311 S.W.2d 61, 64-65—we must disallow the further claim that it was admissible for that purpose. That the objection to the offer was vague is of no consequence; it is never error to sustain a general objection to improper evidence. Hill v. Johnson, Mo.App., 178 S.W.2d 801, 803; White v. Hasburgh, Mo.App., 124 S.W.2d 560, 565; 88 C.J.S. Trial § 124(b), p. 251.

Plaintiff’s assignment (2) complains of the court’s action in sustaining objections to two questions put to Dowell on cross-examination: “Do you blame her in any way in the world for what happened to her?” and “Did you ever tell these lawyers that you blamed her in any way?” It is not a complete answer to say that both questions call for a conclusion which no witness would be allowed to express. The point lies deeper. This witness was a party. His extra-judicial admissions are competent evidence against him even though in the form of conclusions as to the ultimate fact at issue. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618, 621; Donnelly v. Goforth, Mo., 284 S.W.2d 462, 465; Huelsmann v. Johnston, Mo.App., 213 S.W.2d 641, 643. Why then, plaintiff asks, may he not be interrogated on the stand for the purpose of eliciting admissions of like character from him? The academic quibbles provoked by the question in that form are not likely to lead to its answer. Let it be asked this way: Shall we permit the cross-examination of a party, at such length as the ingenuity of counsel can contrive, on the chance that an admission can be extracted from him in the form of a conclusion as to the ultimate issue before the jury, either that he was to blame for the accident or that his adversary was not, and, as a predictable concomitant, allow such further and alternate interrogation of him as may be deemed necessary on the one hand to explain and qualify whatever he may be brought to say, and on the other to discredit his explanations, and, at the end of it all, have nothing more substantial to show for the effort than his personal opinion on a mixed question of law and fact, when of the first ingredient he must be utterly ignorant and of the second the likely victim of every frailty of judgment that commonly afflicts the untrained mind ? Here would surely be a winnowing of wheat to get chaff for the jury. Consider further that “blame” for an accident, like the negligence assigned as its cause, is not susceptible of determination by any rule of thumb applicable in all cases; “an act or omission which would clearly be negligent in some circumstances might not be negligent in other circumstances or surroundings.” Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55. “(T)he important question for the jury in any negligence case is to determine what is reasonable and ordinary care” in the particular circumstances shown. Cumming v. Allied Hotel Corp., Mo.App., 144 S.W.2d 177, 181. That determination is not to be made by reference to a party’s “own personal judgment in the situation.” Beahan v. St. Louis Pub. Serv. Co., Mo., 237 S.W.2d 105, 107. “The standard of conduct exacted by the law is an external and objective standard and not the judgment of the individual actor, be it good or bad.” Dixon v. General Grocery Co., Mo., 293 S.W.2d 415, 421; Hodges v. American Bakeries Co., Mo., 412 S.W.2d 157, 162. Now, it is one thing for a party to volunteer a curbstone opinion on that complex subject in informal conversation, and to allow it to be received in evidence as an admission against his interest for what it is worth, and quite a different thing to extract it from him involuntarily in the course of the trial, when from the solemnity of the occasion on which it is expressed it would be certain to take on a significance out of all proportion to its worth, and thus invite a decision by standards which the law rejects. At any rate, for those reasons or better ones, our courts in enforcing the ban against testimonial conclusions have drawn no distinction between a witness and a party, and a contrary rule, however logical in theory, would be disruptive in practice.

The assignment is disallowed and the judgment affirmed.

All concur.

      . No acts or omissions were set out, nor was any motion made to strike the pleader’s conclusion or to require him to specify a basis for it. Absent such an attack, the plea has been held sufficient. State ex rel. Shell Petroleum Corporation v. Hostetter, 348 Mo. 841, 156 S.W. 2d 673, 677; Martin v. Turner, Mo., 306 S.W.2d 473, 477; Picarella v. Great Atlantic & Pacific Tea Co., Mo.App., 316 S.W.2d 642, 646.

      . All italics appearing in this opinion are our own unless otherwise indicated.


source: Caselaw Access Project

author: SAMUEL E. SEMPLE, Special Judge.

license: Public Domain

text:
    Eunice GANT, Plaintiff-Appellant, v. Thomas SCOTT, Jr., Defendant-Respondent.
    No. 32637.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 12, 1967.

      Eaker & McGuire, Clayton, Sam Weber, St. Louis, for plaintiff-appellant.
    Markus & Maue, Louis S. Czech, Clayton, for defendant-respondent.
   SAMUEL E. SEMPLE, Special Judge.

Plaintiff sought damages of $7,500.00 from defendant for personal injuries alleged to have been sustained in a collision between her automobile and a car driven by defendant on May 12, 1964, in the 300 block of Natural Bridge Road in City of St. Louis. Defendant sought damages of $15,000.00 for personal injuries and property damages on his counterclaim. Trial to a jury resulted in a verdict and judgment in favor of defendant on plaintiff’s claim and in favor of defendant and against plaintiff on defendant’s counterclaim in sum of $4,500.00 for personal injuries and $500.00 property damages. After an unavailing Motion for New Trial plaintiff has perfected her appeal.

Defendant has filed a motion to dismiss the plaintiff’s appeal for failure to comply with Civil Rule 83.05(a) and (c), V.A.M.R. It is found that there is no such violation of the Rule which would justify dismissal of the appeal.

A statement of the facts as to the details of the accident is unnecessary as the only points presented by plaintiff on this appeal concern (1) the sufficiency of the evidence to establish a causal connection between the accident and the permanent injuries of defendant submitted to the jury and (2) that the verdict was excessive. When the collision occurred defendant bounced off the steering wheel and his right knee struck the car keys in the dash and broke the skin. He had pain in his chest, lip and right knee. He was taken to Homer G. Phillips Hospital for emergency treatment and thereafter went to his family physician, Dr. Kloecker, who treated him for over a year. Dr. Kloecker then sent him to Dr. Burst, an orthopedic specialist, who operated on the knee.

Defendant was off work for two weeks after the accident as his right knee was stiff, swollen and painful. During this period he could not bend his knee when sitting and used a support to walk. The swelling stayed for two or three weeks and after that the knee had swelling once or twice a week and it would be tender and sore and have a throbbing pain when the knee would swell.

Defendant went back to work about two weeks after the accident. His knee continued to bother him as it swelled quite often. His work required him to stand and he had to lift doors which weighed about 75 pounds. He was off work with regularity because of swelling in his knee and his family doctor gave him a knee guard to wear but when the knee swelled he would have to remove it. Defendant testified he was off work for seventy-seven days due to his knee swelling and hurting. Defendant testified he never had trouble with the knee prior to the accident on May 12, 1964.

Plaintiff introduced medical records of a Dr. Lansche and Dr. Piccione which stated that defendant was injured on July 21, 1964, while at work when he tripped over a floor mat and twisted his right leg. “His right knee, which he injured in an auto accident on 5/20/64, and which never completely healed, was re-injured when he fell this morning.” Another record showed defendant injured at work on 9/4/64 “bumped right knee on a box and knee is painful * * * knee swollen and tenderness is present, walking aggravates pain in knee.”

Defendant testified that on July 21, 1964 “I was walking to my station, my knee went out to the right, I reached for the table and tripped over a mat on the floor. * .* * It (the knee) went out to the right on me, it threw me off balance.” Defendant further testified that on September 4, 1964 “I was walking through the same aisle where I work, my knee gave out, I had about a two foot clearance, and it struck the — a box in the aisle there.”

Defendant was referred by his family physician to Dr. Burst who first saw defendant about May 19, 1965. Defendant complained of his right knee going out of place and dates this complaint going back to the automobile accident in May, 1964. That about a month after, he fell over a mat and had locking and swelling of the knee at that time and then had repeated episodes after that. That it went out of place about eight times or so and had some buckling of the knee. Dr. Burst advised defendant to either live with this condition or have surgery. Defendant decided to wait but then had surgery performed in July, 1965. Dr. Burst found “a typical bucket-handle tear” of the cartilage and removed the torn portion which was locked inside the knee. Dr. Burst testified that this undoubtedly had been causing the difficulty and it would cause the locking and buckling as defendant had complained. Dr. Burst testified in response to a hypothetical question as to whether the automobile accident in May, 1964, was a competent producing cause of this injury to the knee: “Yes, it could be”, and in assuming the same facts stated that the condition would be permanent.

Plaintiff contends that the expert testimony of Dr. Burst that the collision could be the cause of the permanent injury to defendant’s knee did not constitute substantial evidence sufficient to submit the issue of permanent injuries to the jury. Plaintiff apparently contends that the permanent injury to defendant’s knee could have resulted from defendant’s falling at work on July 21, 1964, or on September 4, 1964, and that in view of Dr. Burst’s testimony it was speculative as to whether or not it caused the injury. The cases cited by plaintiff apply the rule that expert testimony that a condition might or could have resulted from an accident, when standing alone and without other facts, is not substantial evidence from which a jury could find cause and effect. Bertram v. Wunning, Mo.App., 385 S.W.2d 803, 806; Kiger v. Terminal Railroad Association of St. Louis, Mo., 311 S.W.2d 5, 14; Immekus v. Quigg, Mo.App., 406 S.W.2d 298, 304. However, “ * * An expert’s view of possibility or probability is often helpful and proper. * * * Where there are other facts which tend to show an accident caused a certain condition, the assurance of an expert that it is scientifically possible is of some aid to the jury in determining what are reasonable inferences to be drawn from such facts.’ ” (Quoted in Ketcham v. Thomas, Mo., 283 S.W.2d 642, 649, from Kimmie v. Terminal Railroad Association of St. Louis, 334 Mo. 596, 66 S.W.2d 561, 565.)

There was substantial evidence from which the jury could find that prior to the automobile accident defendant’s health was good and his knee was all right. That he had no prior injury to the knee and that it had never bothered him before the accident, that after the accident defendant suffered with the knee for over a year until Dr. Burst operated on it. There was evidence that in July, 1964, while at work defendant’s knee went out and threw him off balance and as he reached for support tripped over a mat. The medical records of this incident showed that his right knee injured in an auto accident on 5/20/64 and which never completely healed was re-injured. There was also evidence that the knee went out in September while defendant was at work and it struck a box in the aisle. That defendant’s knee went out of place eight times or so and he had some buckling. There was evidence that when Dr. Burst operated on the knee he found a typical bucket handle tear of the cartilage which had been causing defendant’s difficulty and that such a condition would cause locking and buckling as defendant had complained. The testimony of defendant that his knee went out on him causing the incidents in July and September of 1964, and the medical records of those incidents, the evidence that prior to the automobile accident that he had no difficulty with his knee and only after the accident did his knee go out on him and the testimony of Dr. Burst as to the condition of the knee when he operated was not speculative and constituted substantial evidence of other facts from which a jury might find that the change in his condition was caused by the accident. Ketcham v. Thomas, supra; Lewis v. National Bellas Hess, Mo.App., 152 S.W.2d 674, 678; Stephens v. Guffey, Mo., 409 S.W.2d 62, 69. It is concluded that there was substantial evidence from which the jury could find that the accident was the cause of the condition of defendant’s knee.

The above findings also dispose of the contention that the trial court erred in giving Instruction No. 11 (MAI 4.01) because it permitted the jury to award damages for future injuries to defendant’s knee when there was no evidence that the collision was the cause of the permanent injury.

Plaintiff also contends that the use of the word “occurrence” in Instruction No. 11 was erroneous because there should have been substituted in lieu thereof a descriptive term which would properly limit the jury to the occurrence produced by the plaintiff citing the Notes on Use of MAI 4.01. This argument is apparently based on the theory that the evidence of defendant falling while at work twice after the automobile collision raised an inference that those incidents produced the ultimate injury to defendant’s knee. This contention cannot stand in view of the evidence previously mentioned that defendant had never had trouble with his knee before the automobile accident and that afterwards his knee would lock, and go out on him and that on both occasions when he fell at work his knee went out and caused him to fall. There was no evidence to infer or indicate that anything but the automobile accident caused the injury to defendant’s knee.

Plaintiff’s final assignment is that the $4,500.00 verdict was excessive. Defendant, a 23-year-old man at the time of the accident, was employed as a cabinet assembler requiring him to be on his feet and lift doors weighing 75 pounds. He earned $85.00 per week. Defendant testified that because of his injured knee he was off work over 70 working days and presented testimony that he incurred medical and hospital expenses in excess of $700. The evidence showed that he suffered pain and discomfort for over a year after the accident until Dr. Burst operated on the knee and that since the operation he still had trouble kneeling and stooping. Dr. Burst testified that he has some permanent disability after the operation and that he will have some loss of 100 per cent capability of his knee.

The question of excessive damages is generally difficult. There is no mathematical formula by which it may be determined whether and how much a verdict is excessive. Each, case must be decided on its own peculiar facts. Myers v. Karchmer Co., Mo., 313 S.W.2d 697, 711. Due regard should be given to the purchasing power of the dollar and to the rule of reasonable uniformity of awards for similar injuries. Glowczwski v. Foster, Mo.App., 359 S.W.2d 406, 413. In considering the evidence in this case in the light most favorable to the defendant as is required [Massey v. Berlo Vending Co., Mo., 329 S.W.2d 772, 778; Fann v. Farmer, Mo.App., 289 S.W.2d 144, 150], it is concluded that the verdict of $4,500 is not excessive. This view finds support in other cases where somewhat similar injuries supported awards in excess of the verdict in this case. Massey v. Berio Vending Co., supra; Keely v. Arkansas Motor Freight Lines, Mo., 278 S.W.2d 765, 771; McGarvey v. City of St. Louis, 358 Mo. 940, 218 S.W.2d 542, 547.

The judgment should be and is affirmed.

ANDERSON, P. J., and WOLFE, J., concur.


author: BRADY, Commissioner.

text:
    FREEMAN CONTRACTING COMPANY, a Corporation, Plaintiff-Appellant, v. F. E. LEFFERDINK and Maude C. Lefferdink, Defendants-Respondents.
    No. 32565.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.
    Motion for Rehearing or to Transfer to Supreme Court denied Sept. 12, 1967.

      William R. Dorsey, Clayton, for plaintiff-appellant.
    Alvin H. Juergensmeyer, Warrenton, Darryl L. Hicks, Warrenton, for defendants-respondents.
   BRADY, Commissioner.

Plaintiff filed suit for a money judgment and for a mechanics’ lien for work done under contract on defendants’ house. Defendants counterclaimed for damages in the amount of $2,500.00. A jury-waived trial resulted in judgment for the defendants upon plaintiff’s cause of action and for defendants on their counterclaim in the. amount prayed for. Plaintiff appeals.

The pleadings are of some importance to the issues presented by this appeal. The pertinent parts of the petition are the allegations plaintiff did this work pursuant to a contract between the parties and that, by inclusion of the dates involved, the plaintiff had filed a mechanics’ lien containing a true account of the demand due it together with a true description of the property involved within the previous six months. The prayer was for “ * * * judgment against the defendants F. E. Lefferdink and Maude C. Lefferdink, his wife for the sum of $1,800 * * * ” and for the establishment of a lien in that amount against this property. The defendants’ answer was a general denial and by way of special defenses they alleged “ * * plaintiff never performed the said contract or raised the foundation of defendants’ house or closed the cracks in the walls and foundation of defendants’ house, but that when plaintiff left there were additional cracks in the walls * * *Defendants’ counterclaim alleged “plaintiff and defendants entered into an agreement * * * ” for the work called for by the contract as interpreted by defendants and that “ * * * defendants agreed to pay plaintiff * * * ” the contract price upon completion. In support of their counterclaim defendants alleged that while in the performance of the work called for by the contract the plaintiff’s employees “ * * * negligently and carelessly pushed the walls of the house by means of a jack and brace and by such negligence caused additional cracks in the walls of the house. * * * That plaintiff selected the machinery and tools for the job of raising the walls and on failure of the machinery and tools to raise the walls, the plaintiff negligently applied pressure on the side of the house with the jack and other equipment, the type and nature of which caused additional cracks in the walls of defendants’ residence.” (Emphasis supplied.) The prayer of the counterclaim reads: “ * * * defendants pray judgment against plaintiff * *

The mechanics’ lien statement which had been filed previous to the petition involved in this case referred to a contract with “F. E. Lefferdink and Maude C. Leffer-dink, his wife” and the account described in the mechanics’ lien is for a total of $1,800.00. In response to a direct question by the court plaintiff’s counsel stated it was relying entirely upon the contract and was not proceeding upon any theory of quantum meruit.

Our review in a non-jury case goes to both the law and the evidence. Robinson Lumber Co. v. Lowrey, Mo.App., 276 S.W. 2d 636; Schabbing v. Seabaugh, Mo.App., 395 S.W.2d 256. We find the facts to be as follows. Mr. Lefferdink requested one of plaintiff’s employees to look at defendants’ house to determine if something could be done to stop the foundation from settling. The employee inspected the property and told Mr. Lefferdink the foundation could be raised as a result of which the cracks would be closed. Mr. Lefferdink testified that he then went home and looking in the yellow pages of the St. Louis telephone directory found the advertising by the plaintiff which defendants offered into evidence and which was admitted without objection. It is unnecessary to reproduce that advertising here. It is similar to a page which was attached to the contract in that it has a diagram showing how the Freeman System operates. The essentials of that page will be set out later herein. The only thing the advertisement says about cracks is “FOUNDATION & SETTLING CRACKS STOPPED SYSTEMATICALLY.”

Plaintiff later sent a contract to defendants’ home. The pertinent parts of that contract are: “We propose to install a series of 12 patented pumped piers (THE FREEMAN SYSTEM) as follows: We are to furnish all labor, material, and equipment necessary to complete this work. We are to clean up and leave place in a workmanlike manner. This work to be done for the sum of Eighteen Hundred ($1,800.00) Dollars to be paid in full upon completion of said work.” The contract also provided for “Location of piers” as follows: “(5) five piers west wall. (1) one pier So. W. corner. (5) five piers north wall. (1) one pier No. E. corner (front). We are to do necessary tuckpointing of cracks in brickwork. Said work is guaranteed for a period of five (5) years from date of completion.” The contract also bears the statement “Accepted May 31, 1963”; and the signature “F. E. Lefferdink”.

At the time the contract was signed there was stapled to it another sheet of paper which contained a diagram of how the Freeman System works together with a brief explanation of it. At the top the following appears: “WALL CRACKS CORRECTED”. There is no other reference to cracks in that material which deals with raising and stabilizing foundations. There was extensive testimony as to just what the Freeman System was. Stating it as simply, as is possible, the system requires excavating at the side of the foundation of the house, undercutting the footing, and drilling the required number of 12" holes down to rock or firm bearing soil. A 2" pipe with a bell flange at the bottom is then placed in the hole and it is filled with concrete with the result that a pier is formed with a reinforced pad under the footing. After the concrete has set a hydraulic pump is attached to the pipe and a loose mixture of sand loam and cement is pumped through the pipe underneath the pier forcing the pier upward. The soil mixture later hardens to form a solid footing under the pier. Mr. Lefferdink admitted that the piers stopped the settling of the foundation of the house. The plaintiff’s evidence was that after he started the work one of the employees discovered a pier already at one of the locations where plaintiff was to install one and after telling Mr. Lefferdink of this condition and upon no objections being raised by him, only eleven piers were installed. The plaintiff’s evidence was that he told Mr. Lefferdink $150.00 was to be deducted from the contract price due to the fact that only eleven piers were installed. Defendants do not deny Mr. Lefferdink was so informed but assert there was no agreement as to that matter.

In view of the disposition made herein as to the counterclaim it is unnecessary to detail the damage to the house which defendants claimed was caused by plaintiff. It can best be summarized by dividing it into several categories. The first of these we will refer to as “crack damage”. Some of these cracks appeared in the outside brick walls and some appeared in the interior plastered walls. The confused manner in which the testimony as to these cracks was developed defeats any attempt to separate the cracks into those that occurred in the exterior brick walls as contrasted with those that occurred in the interior plastered walls. However, it is unncessary to do so. It is sufficient to say that when plaintiff had completed its work new cracks had appeared in both places but the outside cracks were tuckpointed by the plaintiff. There were complaints other than cracks. The fireplace was “shoved over, out of line.” Defendants also complained that the plaintiff so operated the braces and machinery that the house was raised off of the foundation and the east wall of his basement has been pushed farther east and out of line. He also complained about the front door being out of square and that the windows no longer raised easily because the frames had been twisted.

With respect to the issue of negligence, Mr. Lefferdink admitted he was totally inexperienced in matters such as are here involved and, in fact, had not done any building. He also was asked the following questions and gave the answer shown: (he was speaking of a jack and brace used by plaintiff) “Q. And what you think they should have done was push it in, or down, or what? A. This didn’t need no pushing in. He was just trying to help the mudjacks out, I think, was the only reason he put it in there. He couldn’t lift it with his mud-jack so he took these braces to help it. Q. Let me see if this is a fair statement of what you’re telling me. You correct me now if I don’t word it right. You’re saying the negligence actually is in the angle the jack was used? A. That’s true. Q. You say that’s negligence because they used a 45 degree instead of a 90 degree ? A. If they wanted to push it straight in, they should have had it straight, which Mr. Freeman told his brother-in-law, ‘Now put the prop lower down and raise that wall again and take those cycle sections out and let the wall down.’ But that never was done. I don’t think it was because I’ll tell you why — he had to have another hole because you take from here up to there, a certain distance, if you put it straight in there is going to be about a foot and a half or so farther back, but there was no other hole dug. * * * Q. And the negligence again is the angle of the jack, you’re saying — that’s the sole negligence and carelessness that they had ? Is that a fair statement to make ? A. That’s right.” In view of this testimony we will not further dwell upon the other complaints of damage to this house.

As stated earlier defendants were awarded judgment on their counterclaim in the amount of $2,500.00. Their evidence on the value of the damages was given by two expert witnesses. The first of these, Mr. Jaspering, was asked about the value the defendants’ house had with the “cracks” that were in it before plaintiff began work. He fixed that value at $12,000.00. The additional cracks that occurred in the house after plaintiff began work and which defendants contended were the result of plaintiff’s work were then itemized to him and he was asked to give his opinion of “the value of this property as of 1963 with all of these cracks considered”. His answer was $9,000.00. Other evidence given by this witness which indicated the basis upon which he fixed his estimate of value of defendants’ house after plaintiff’s work was completed is as follows: “Q. What were the things that you saw over there that indicated $3,000 difference in value? What were the specific things? A. Well, the cracks, all of the cracks. There are tremendous cracks, actually, in the plaster on the inside of the house which would certainly detract a great deal from the sale of the property. * * * Q. Really, what we’re talking about is the difference in value of the plaster cracks inside, isn’t that correct? A. That’s true. Q. You’re saying that this plaster crack changed the value of this house $3,000? A. That’s what I said. * * * Q. Yes. You considered the cracks only on the inside of the house in arriving at your $9,000 figure? A. Yes.”

Other evidence on this issue was given by Mrs. Rapp. She, too, was asked to give her opinion as to the value of this property considering only the “cracks” that were in it prior to plaintiff beginning work. Her testimony was $11,500.00 to $12,000.00. As in the case of the previous witness the list of “cracks” which defendants contend were caused by plaintiff’s activity at this property was then read to her and she was asked the following question: “Q. And did you form an opinion as to the value of the property, using 1963 values, as to the value of the property with this last list of cracks which I have read? A. Yes.” Her answer was $8,000.00 to $8,500.00. Other evidence given by this witness showing the basis upon which she arrived at the differential in value is as follows. She was asked: “Q. But basically then you subscribe all of the loss of value to the cracks on the inside of the house, is that a correct statement? A. I would say so. Q. And the cracks then on the inside of the house, you say then are worth somewhere between Three and Four Thousand Dollars loss of value, is that correct? A. Yes, sir. Q. And that’s entirely with the cracks as they appear- on the inside of the house,-as listed by Mr. Hicks? A. Yes, sir.”

At the close of defendants’ evidence plaintiff moved for a dismissal of the counterclaim based upon his contention there had been no proof as to any negligence. Defendants’ counsel replied that there had been “ample proof” of negligence. His argument in this regard was that “anyone with common sense” could tell that plaintiff was not proceeding to do this work in a proper fashion. He at no time made any reference to any other theory but continued to insist the “plaintiff was negligent” in the manner in which he did this work. In defendants’ brief the same contention is made; i. e., the damage to this house was caused by “plaintiff’s negligence.”

Reference should also be made to defendants’ brief to properly state their contentions with regard to their defense to plaintiff’s cause of action; i. e., failure to perform this contract. Therein defendants continue to assert the position they maintained at the trial of this cause, that the real contract was for raising the foundation of defendants’ house thus closing the cracks in the walls. At other places in their brief similar language appears to the effect that the contract included closing the cracks in defendants’ house.

It is first necessary to dispose of some vital matters pertinent to plaintiff’s petition. We note the contract under which this work was done and which forms the basis for plaintiff’s petition was signed by Mr. Lefferdink alone. It is also clear from the transcript that he did not hold the title to this property by himself but as tenants by the entirety with his wife. Plaintiff’s lien statement refers to the property as being owned by “F. E. Lefferdink and Maude C. Lefferdink, his wife”. Mrs. Lefferdink so testified. With regard to plaintiff’s right to enforce a mechanics’ lien against this property, plaintiff is charged with constructive knowledge of the state of this title as of the time he entered into the contract. Wilson v. Fower, 236 Mo.App. 532, 155 S.W.2d 502. It is well settled in Missouri that where property is held by husband and wife as tenants by the entirety neither by their own individual act can subject the property to a mechanics’ lien. Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, Mo., 396 S.W.2d 570 [22]; Robinson Lumber Company v. Lowrey, supra; Mo.Dig., Mechanics’ Liens, Mo.Dig., Husband and Wife, It should likewise be stated that our rule is that before a mechanics’ lien can be placed on property held by the entireties the evidence must be strong and persuasive that the act allegedly subjecting the land to the lien was the joint act of both of the tenants by the entireties. Wilson v. Fower, supra; Robinson Lumber Co. v. Lowrey, supra. The same reasoning would apply to plaintiff’s attempt to secure a money judgment against both Mr. and Mrs. Lefferdink. Mr. Lefferdink, acting alone, may not bind his wife by his sole contract. Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, supra; Austin & Bass Builders, Inc. v. Lewis, Mo., 359 S.W. 2d 711; Mo.Dig., Husband and Wife,

In the instant case we need not assess the proof on this issue. The statements in the counterclaim that “defendants” entered into this contract for which “defendants” agreed to pay upon completion and the prayer that “defendants” recover from plaintiff when read in context clearly constitutes an admission Mr. Lefferdink’s act in signing this contract was, by his agency, the act of his wife as well. Under such circumstances the plaintiff is not precluded as a matter of law from recovering a money judgment against both defendants and the lien could be impressed upon this property.

We pass now to the question whether the evidence before us requires this court to reverse the trial court and enter a judgment for plaintiff on its petition. Performance on plaintiff’s part was a condition precedent to its recovery under the contract. Defendants contend plaintiff has failed to perform and must be denied recovery on its cause of action for three assigned reasons. One of these is the contention plaintiff cannot recover due to the fact only eleven piers were installed. With respect to this issue we note the general rule that a contract may be modified by changing some provisions and yet stand as to the residue of the original agreement. 17A C.J.S. Contracts § 379. That is what happened in the instant case. Mr. Leffer-dink was informed that because an old pier was already in place only eleven of the twelve piers contracted for could be installed and that $150.00 would be deducted from the contract price because of this. Mr. Lefferdink voiced no objections to leaving out this one pier although he denied any agreement as to the deduction. He would be entitled to some deduction in any event. See Cassinelli v. Stacy, 238 Ky. 827, 38 S.W. 2d 980. It is true plaintiff sued for the full amount of the contract but by his own evidence he is not entitled to that sum. Accordingly, we will consider the prayer of his petition as having been amended by his proof to allege the sum due as $1,650.00. Under such a state of the record we hold that failure to install the twelfth pier does not constitute proof of failure of performance so as to preclude recovery on plaintiff’s cause of action.

Defendants next contend, and indeed this is the basic dispute between the parties, plaintiff has failed to perform the contract because raising the foundation of defendants’ house failed to close the cracks in the walls. Recognizing the contract here involved is silent as to any such promise defendants argue such a provision was “implied” in the contract. Before examining their contentions in this regard it is necessary to determine the extent of this issue. By reference to tuckpointing of cracks in the brickwork the contract makes it clear that with respect to the outside walls it was contemplated that some other cracks might appear in the brickwork as the result of plaintiff’s work and these as well as cracks that existed in the outside brickwork when plaintiff began work were to be tuckpointed. There is actually no real dispute as to this matter. Defendants admit this tuckpointing was done. The extent of the issue as to plaintiff’s obligations under the contract to close wall cracks is limited under the evidence adduced and the issues tried to the cracks in the interior plastered walls that were already present or that appeared after plaintiff began work. Defendants advance two arguments in support of their contention. First they rely upon the advertisement from the yellow pages of the telephone directory and the piece of paper that was attached to the contract which they introduced into evidence. The paper attached to the contract did say “WALL CRACKS CORRECTED” but the only fair inference from reading the whole of the material printed on that piece of paper is that foundation wall cracks are what is referred to. Secondly, defendants rely upon the copy of the advertisement placed with the yellow pages of the telephone book, a reproduction of which was introduced into evidence without objection. It would seem clear that such evidence cannot change the terms of this contract. In any event, this evidence is of no assistance to defendants. It refers to “FOUNDATION & SETTLING CRACKS STOPPED SYSTEMATICALLY”. The undisputed evidence is that the settling of this house has been stopped and, in any event, interior wall cracks are not within the purview of this advertisement.

The item of evidence upon which defendants place their main reliance is the statement one of plaintiff’s employees made to Mr. Lefferdink prior to execution of the written contract to the effect these wall cracks would be closed. The parol evidence rule is one of substantive law and not of evidence. Where there is no fraud, duress, accident, mistake, or mental incapacity, and the parties have reduced their agreement to an unambiguous writing, the law presumes the writing contains the entire agreement between the parties and oral testimony may not be received or considered so as to permit substitution of a new and different contract. Bittner v. Crown Shoe Mfg. Co., Mo.App., 340 S.W.2d 142, 1. c. 146-147; Davison v. Rodes, Mo.App., 299 S.W.2d 591, 1. c. 593. In the instant case, as best we can understand defendants’ contention, their position is that the contract does not contain the entire agreement in that all of the obligations assumed by the plaintiff are not therein stated. The additional duty to close up the cracks in the walls was omitted. To prove this they offer parol evidence in the form of the conversation between one of plaintiff’s employees and Mr. Lefferdink. We need not explore the question of whether plaintiff’s employee could make such a promise so as to bind the plaintiff. It is sufficient to state that parol evidence of this nature is admissible only if it does not interfere with the terms of the written contract and does not add to the obligations of the written contract. Bittner v. Crown Shoe Mfg. Co., supra; See also Warinner v. Nugent, 362 Mo. 233, 240 S.W.2d 941; 26 A.L.R.2d 278—cited at 1. c. 147 of 340 S.W.2d in Bittner. Of course it is obvious the duty to close the interior cracks is one which would materially add to plaintiff’s obligations under the written contract. That evidence is therefore not available for that purpose. Bittner v. Crown Shoe Mfg. Co., supra. The situation is somewhat analogous to that found in Hudler v. Muller, Mo., 55 S.W.2d 419. There a building contract was reduced to writing without showing any agreement on the part of one of the parties to furnish plans and specifications. Evidence tending to prove that the contractor had indeed agreed to furnish plans and specifications and a bond was held inadmissible as varying the terms of the written contract. We hold there was no requirement in the contract that the raising of the foundation would close the interior cracks in the walls of defendants’ house and therefore evidence that such cracks were not closed does not constitute a defense based on failure of performance so as to prevent plaintiff’s recovery on its cause of action.

The third argument advanced by defendants in support of their contention plaintiff must fail in its cause of action because it failed to perform the contract is that the work was not done in a workmanlike manner. Absent specific provisions otherwise an agreement to exercise proper skill is implied in a contract to perform work. 17A C.J.S. Contracts § 329. Where a person holds himself out as specially qualified to perform work of a particular character there is an implied warranty the work he undertakes will be accomplished with proper workmanship. Baerveldt & Honig Const. Co. v. Szombathy, 365 Mo. 845, 289 S.W.2d 116. It is to be borne in mind the evidence showed that in addition to the interior plaster cracks the fireplace in this house was “shoved over, out of line”, the east wall of the basement was pushed farther east and out of line, and the front door and windows were out of square and twisted so that they no longer properly operated. With respect to the issue as to cracks, we cannot say that from the existence of these cracks alone we can conclude plaintiff used bad workmanship. Neither do we think that when all of the complaints are considered together there is such proof of bad workmanship as to justify this court finding in favor of' defendants on plaintiff’s petition. What is said later herein with regard to defendants’ evidence in support of their counterclaim is at least partly applicable to the defense of bad workmanship. It may well be that some of the damages which defendants contended resulted from plaintiff’s work were inherent in the nature of such work. That would be a matter for specific proof by expert witnesses or in some other manner, but in any event we do not think that the workmanship required in an undertaking of this kind is so within the general public knowledge that we would be entitled to hold that the mere existence of such damages constituted proof of bad workmanship or a lack of skill so as to prevent plaintiff’s recovery on its cause of action. It follows from what has been above held the defendants have failed to establish the defense of non-performance on plaintiff’s part and the judgment in their favor on plaintiff’s petition must be reversed.

However, that does not mean plaintiff is, ipso facto, to receive judgment for the $1,650.00 which it seeks in this action. While defendants’ proof is insufficient to cause us to hold there was in fact no performance on plaintiff’s part, that same proof is sufficient to raise the issue of the quality of that performance. The defense of recoupment has lost much of its identity under modern practice and is now generally included within the modern statutes as to counterclaims. Nevertheless, it is still available as a purely defensive matter. Brush v. Miller, Mo.App., 208 S.W.2d 816, Therein at 1. c. [7] 820, this court held: * * * Such a defense involves a defendant’s common-law right to recoupment, and is very frequently asserted in actions of this character. In its strict and literal sense it is a purely defensive matter growing out of the transaction constituting the plaintiff’s cause of action, and applicable only to reduce or satisfy the plaintiff’s claim. In other words, it goes only to mitigation or extinguishment of damages, and differing from a counterclaim, permits no affirmative judgment for the defendant. State v. Weatherby, 344 Mo. 848, 129 S.W. 2d 887; Emery v. St. Louis, K. & N. W. Ry. Co., 77 Mo. 339; Fricke v. W. E. Fuetterer Battery & Supplies Co., 220 Mo.App. 623, 288 S.W. 1000.” In that same case we held at 1. c. 821 that: “ * * * In view of the nature of the defense as one in confession and avoidance, the authorities consequently hold that ‘in an action to recover the contract price agreed to be paid for work and materials, defendant cannot show that the work was done in an unworkmanlike manner, unless he has pleaded such defense.’ 17 C.J.S., Contacts, § 574b; Kendall v. Vallejo, 1 Cal. 371; Leeds v. Little, 42 Minn. 414, 44 N.W. 309; Lee Bros. & Greer v. Glenn, 112 S.C. 202, 99 S.E. 757; Ives & M’Carty v. Van Epp & Shattuck, 22 Wend., N.Y., 155,” We hold that the allegations found in defendants’ answer as set out early in this opinion constitute a sufficient pleading of this matter. It follows that, considering the nature of the defense of recoupment, the burden for establishing such a defense was upon the defendants. We hold that by the uncontradicted evidence as to the house being raised off of the foundation, the east wall of the basement being pushed out of line, the fireplace being “shoved over”, and the front door and windows being made inoperable, defendants have borne the burden of proof as to the defense of recoupment.

The difficulty is that there is no evidence in this record as to the amount of damage resulting to defendants’ house from such items. The only evidence of the loss of value this house incurred as a result of plaintiff’s work was that given by defendants’ expert witnesses, Mrs. Rapp and Mr. Jaspering. It is obvious from that portion of their testimony set out earlier herein that their opinions were based solely upon the damage resulting from the interior plaster cracks. That issue is now foreclosed as an item of damage for the reason there was no obligation under the contract requiring the plaintiff to close these cracks by raising the foundation and because there was no proof such cracks were not the inevitable result of the activities called for under the contract between the parties. It follows that there is no evidence appearing in this record from which we can determine the loss of value this house incurred as a result of being raised off of its foundation, the east wall of the basement being pushed out of line, the fireplace being “shoved over”, and the front door and windows being made inoperable. Accordingly, we cannot determine from this record the amount of re-coupment, if any, to which the defendants are entitled to have “abated or defalked from the plaintiff’s claim”. Fricke v. W. E. Fuetterer Battery & Supplies Co., 220 Mo.App. 623, 288 S.W. 1000, 1. c. 1002. See also 80 C.J.S. Set-Off and Counterclaim § 2. A new trial must be held for that purpose.

The second issue presented for our decision concerns the judgment awarded to defendants on their counterclaim. In this connection we note the defendants’ theory as pleaded in their counterclaim was negligence; that was their theory during the trial; that is their theory on appeal. The counterclaim referred to plaintiff “negligently and carelessly” pushing the walls of the house and by “such negligence” causing cracks. At another point in the counterclaim it is alleged the plaintiff “negligently” used some machinery as to damage the house. It was upon this theory the defendants tried this case as shown, for example, by the statements of their counsel when arguing plaintiff’s motion to dismiss the counterclaim. He then refused to rely upon any other theory stating there was “ample” proof to support a finding of negligence. However, the trial court, making clear it did not find any evidentiary support for defendants’ case based upon negligence, interpreted their action as proceeding upon another theory which in fact defendants never pled nor tried. In their brief defendants have continued to rely upon a theory of negligence.

We cannot agree the defendants plainly stated, unequivocal, and repeatedly relied upon theory is subject to or permits any interpretation. We must take their case upon the theory defendants pled and tried it. That theory was and, if we are to credit their brief, still is, negligence.

Defendants are precluded from recovery on such a theory as they have failed to bear their burden of proof as to plaintiff’s negligence. The Lefferdinks’ testimony went mainly to describing the acts of plaintiff’s employees while working at the house (what the employees did and how they went about doing it) and the results of those acts; i. e., the condition of the house when plaintiff had finished. Mr. Lefferdink’s testimony the brace and jack were negligently used in that they were placed at an improper angle constitutes defendants’ entire direct proof of this issue.

The general rule is that a witness may not express an opinion. Harp v. Illinois Cent. R. Co., Mo., 370 S.W.2d 387 [1]. However, an expert witness may do so when qualified as such and when the subject matter is not of such common knowledge as to invade the province of a jury. Harp v. Illinois Cent. R. Co., supra. There was no attempt made to qualify Mr. Lefferdink as an expert and his own testimony as to his lack of experience and special knowledge refutes any contention he was so qualified. But expert testimony was necessary unless we are to hold this case invokes matters of common experience. In such cases under the proper conditions a non-expert witness may be allowed to express his opinion or conclusion. Davis v. Geiger, Mo.App., 212 S.W. 384, 1. c. 387. We think it clear that the negligence stated by Mr. Lefferdink does not fall into that classification. The proper angle for a brace and jack when attempting to raise and stabilize the foundation of a house is clearly a matter requiring special experience and knowledge not possessed by the ordinary layman. Accordingly, Mr. Lefferdink’s opinion does not constitute proof of plaintiff’s negligence.

What we have stated above also disposes of defendant’s contention that evidence of what plaintiff’s employees did at the house was such as to eliminate any need for further proof of negligence. Their argument in this regard was expressed by counsel when urging the trial court to deny plaintiff’s motion to dismiss the counterclaim; i. e., “anyone with common sense” could see plaintiff was proceeding in a negligent fashion. This is merely another way of arguing there was no need for expert testimony. There are cases where the acts described so bespeak negligence that the trier of the facts may find negligence without further testimony. However as stated above, those cases involve matters so within the common knowledge and experience of men that further evidence of negligence is unnecessary. This case is not one of that nature. It follows the judgment for defendants on their counterclaim must be reversed. We find for the plaintiff on defendants’ counterclaim.

The judgment is reversed and the cause remanded to the trial court with instructions to enter its judgment for plaintiff on defendants’ counterclaim and to hold a new trial on plaintiff’s petition to ascertain the loss of value this house incurred as a result of damages arising from the items enumerated herein available to the defendants for the purposes of recoupment. This amount to be used to abate or satisfy, as the case may be, the amount of $1,650.00 due plaintiff and plaintiff is entitled to a lien in the amount of whatever sum is due him after defendants’ recoupment. Defendants are to pay the costs of this appeal since plaintiff did receive some of the relief he sought by this appeal.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded to the trial court with instructions to enter its judgment for plaintiff on defendants’ counterclaim and to hold a new trial ■ on plaintiff’s petition to ascertain the loss of value this house incurred as a result of damages arising from the items enumerated herein available to the defendants for the purposes of recoupment. This amount to be used to abate or satisfy, as the case may be, the amount of $1,650.00 due plaintiff and plaintiff is entitled to a lien in the amount of whatever sum is due him after defendants’ recoupment. Defendants are to pay the costs of this appeal since plaintiff did receive some of the relief he sought by this appeal.

ANDERSON, P. J., RUDDY and WOLFE, JJ., concur.


author: DOERNER, Commissioner.

text:
    William Cullen BRIDGES, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent.
    No. 32737.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied Sept. 12, 1967.

      Grant & Howard, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., St. Louis, for respondent.
   DOERNER, Commissioner.

William Cullen Bridges, a physician licensed to practice in this state, was charged by the State Board of Registration for the Healing Arts with performing two unlawful abortions, in violation of Section 334.100, subd. 1(3), RSMo 1959, V.A. M.S. After a hearing the Board unanimously found him guilty of the offenses charged and revoked his license to practice. In accordance with Section 536.100 et seq., of our Administrative Procedure and Review Law, appellant filed his petition for judicial review in the Circuit Court of the City of St. Louis, which affirmed the Board’s order. On the supposition that constitutional questions were involved he appealed to the Supreme Court. That court determined that it was without jurisdiction and transferred the cause to this court. Gaddy v. State Board of Registration for Healing Arts, Mo., 394 S.W.2d 284; Bittiker, D.O. v. State Board of Registration for Healing Arts, Mo.App., 404 S.W.2d 402.

Appellant’s brief contains five “points relied on,” one of which has two subdivisions. As respondent notes, the second and third points were not raised in appellant’s petition for review, in the hearing before the Circuit Court, or in his motion for a new trial, and a strict enforcement of the rules would require us to hold that they were not properly raised below, T. J. Moss Tie Co. v. State Tax Commission of Missouri, Mo., 345 S.W.2d 191, 193-194, and that they have not been preserved for appeal. Civil Rule 79.03, V.A.M.R.; State v. Keiter, Mo., 394 S.W. 2d 399. The fifth point, that “ * * * the competent evidence adduced is substantially insufficient to support the findings of fact, conclusion of law, and order * * without any explanation of why it was insufficient, does not conform to Civil Rule 83.05(e); Domijan v. Harp, Mo., 340 S.W.2d 728. However, in view of the nature of the case and the seriousness to appellant of the order revoking his privilege to practice we have concluded, in the exercise of our discretion, to consider all of such points on their merits. It is appropriate to add that the proceedings were instituted and the hearing was held by the Board prior to the date on which our new Administrative Hearing Commission Act, Section 161.252 et seq., Laws 1965, Page 277, S.B. No. 284, became effective and that that Act, “ * * * although it may provide desirable additions to agency hearing procedures, it does not void proceedings lawfully conducted prior to its enactment.” Rose v. State Board of Registration for Healing Arts, Mo., 397 S.W.2d 570, 576.

On January 9, 1965, the date specified in the notice of hearing, appellant and his counsel, Messrs. Raymond Howard and David M. Grant, appeared before the Board and announced that appellant was appearing specially and only for the purpose of presenting a motion for a continuance. Section 510.120 provides, in part, that “In all civil cases or in criminal cases pending in any court of this state at any time when the general assembly is in session, it shall be a sufficient cause for a continuance if it shall appear to the court, by affidavit, that * * * any attorney * * of such party is a member of either house of the general assembly, and in actual attendance on the session of the same, and that the attendance of such * * * attorney * * * is necessary to a fair and proper trial or other proceeding in such suit * * Mr. Howard, a member of the General Assembly, which was then in session, filed his affidavit for a continuance which complied in all respects with Section 510.120, and undisputed evidence was offered which fully supported the affidavit. In all fairness it should be stated that the evidence showed that Mr. Howard had been employed as co-counsel as early as October 28, 1964, prior to the institution of these proceedings, to defend appellant against related criminal charges growing out of the same alleged abortions. See State of Missouri v. Bridges, Mo., 412 S.W.2d 455. The Board denied the motion for a continuance and its denial furnishes the basis for appellant’s initial point on appeal.

In brief, the question presented is whether, despite the restrictive language in Section 510.120 (“all civil cases or in criminal cases pending in any court”) it is applicable to a proceeding before an administrative agency. Appellant frankly states that he has been unable to find any authority holding that it is, but he points to the recognized purposes of the statute and argues that it should be so construed since their actions are judicial or quasi-judicial in nature. We readily agree that Section 510.120, “ * * * has a dual purpose, that of protecting the business of an attorney or a person engaged in some other business while serving in the Legislature, thereby encouraging good men to sacrifice their time in the interest of good government; and that of protecting a party to a suit whose attorney may be serving in the Legislature. * * * ” State v. Myers, Mo., 352 Mo. 735, 179 S.W.2d 72, 75. But while the Board’s actions are judicial or quasi-judicial in nature, Article V, Section 22, Const, of 1945, V.A.M.S., we cannot agree that the Board exercises judicial powers or that it is in any sense a court, for the decisions regarding its administrative predecessor have all been to the contrary. Horton v. Clark, 316 Mo. 770, 293 S.W. 362; State ex rel. McAnally v. Goodier, 195 Mo. 551, 93 S.W. 928; State v. Hathaway, 115 Mo. 36, 21 S.W. 1081. Indeed, in the recent case of Gaddy v. State Board of Registration for Healing Arts, Mo., 394 S.W.2d 284, the Supreme Court defined the Board as “ * * * an artificial legal entity in the nature of a quasi public corporation * * * ” and classified it with other Boards and commissions which carry on “ * * * much of the important work of the executive branch * * * ” of our state government.

The language employed in Section 510.120 is clear and unambiguous. By its terms it is applicable only when a civil or criminal case is pending in a court of law. A proceeding of the nature of the one here under consideration is neither a civil nor a criminal case within the meaning of those terms, State of Missouri v. Harold, 364 Mo. 1052, 271 S.W.2d 527; State ex rel. Ball v. State Bd. of Health, 325 Mo. 41, 26 S.W.2d 773; and as the authorities heretofore cited hold, an administrative agency is not a court. Where, as here, the language of a statute is plain and admits of but one meaning there is no room for judicial construction. Foremost Dairies, Inc. v. Thomason, Mo., 384 S.W.2d 651; Rathjen v. Reorganized School District R-11 of Shelby County, 365 Mo. 518, 284 S.W.2d 516; Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920. And under the guise of judicial construction we have no right to change the meaning of a clear and unambiguous statute. Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577; McLaurin v. Frisella Moving and Storage Co., Mo.App., 355 S.W.2d 360. It may well be that in view of the salutary purposes of Section 510.120, the great increase in the number of administrative agencies, and the scope of their activities that the statute should be amended to provide for similar continuances of matters pending before such boards and commissions. But such an amendment must be made by the Legislature, not by this court by a construction which in effect would be judicial legislation.

Following the overruling of the motion for a continuance appellant next filed a written motion attacking the jurisdiction of the Board and seeking the dismissal of the charges, or, in the alternative, a continuance pending the disposition of the indictments previously returned against him. The Board also denied that motion, which ruling appellant likewise assigns as error. The identical question raised under a similar factual situation was decided adversely to appellant’s contention in State ex rel. Hurwitz v. North, 304 Mo. 607, 264 S.W. 678, 682, aff. 271 U.S. 40, 46 S.Ct. 384, 70 L.Ed. 818, where it was held:

“ * * * As to the oral application for continuance, it should be added that there is no substantial reason for postponing a proceeding like this until after the criminal prosecution is concluded. * * * ”

Having failed in his efforts to obtain the dismissal of the charges pending before the Board or a continuance of the hearing appellant then orally requested time in which to seek an injunction to restrain the Board from proceeding with the hearing. That request was also denied, and the denial is raised in the “points relied on” portion of appellant’s brief but is not developed in the argument portion and might therefore be held to have been abandoned. Terry v. Boss Hotels, Inc., Mo., 376 S.W.2d 239; Holt v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393. We have, however, considered it and find it to be without merit. The Board’s refusal to dismiss the charges or continue the hearing pending the disposition of the criminal charges was proper, as was held in State ex rel. Hurwitz v. North, supra. And its ruling in that regard did not furnish appellant with sufficient grounds upon which to obtain an injunction. Hughes v. State Board of Health, 345 Mo. 995, 137 S.W.2d 523.

The concluding sentence of subsection 2 of Section 334.100 reads: “* * * Before a license is revoked, there shall be included in the majority of the board voting for the revocation, the vote of at least one board member, if any, who is a graduate of a professional school approved and accredited as reputable by the association which has approved and accredited as reputable the professional school from which the licentiate himself graduated.” The appellant now asserts that the order of the Board revoking appellant’s license is deficient on its face and void because it fails to include a finding of fact that at least one member of the Board who voted for the revocation is a graduate of a professional school approved and accredited as reputable by the association which approved and accredited as reputable the professional school from which the appellant graduated. Contrary to appellant’s claim, the statute does not require the Board to incorporate in its order a formal finding as to the required qualification, if any, of at least one member of the Board. What it does require is that at least one member possessing the qualifications, if such there be, must vote for the revocation before a license may be revoked.

It is apparent from the record that this requirement of the statute was fully satisfied. Section 334.120, concerning the composition of the Board, states that it shall consist of seven members licensed and registered to practice as physicians and surgeons in this state, “ * * * five of whom shall be graduates of professional schools approved and accredited as reputable by the American Medical Association and two of whom shall be graduates of professional schools approved and accredited as reputable by the American Osteopathic Association * * The appellant is a doctor of medicine but the professional school of which he is a graduate does not appear in the record. The record does show, however, that the hearing was held before five of the seven members of the Board, that of those five, three were doctors of medicine, and that all five who sat voted for the revocation of appellant’s license. Since Section 334.120 requires that the members of the Board who are doctors of medicine must be graduates of professional schools approved and accredited as reputable by the American Medical Association these inexorable conclusions must logically follow: If appellant is a graduate of a professional school approved by the American Medical Association the revocation was voted for by three members of the Board who are graduates of professional schools so approved; and if appellant is not a graduate of a professional school approved by the American Medical Association then the excepting words in the statute, “if any,” govern the situation and the voting requirement is not applicable.

Section 536.080 of the Administrative Procedure and Review Act, as amended, provides:

“1. In contested cases each party shall be entitled to present oral arguments or written briefs at or after the hearing which shall be heard or read by each official of the agency who renders or joins in rendering the final decision.
“2. In contested cases, each official of an agency who renders or joins in rendering a final decision shall, prior to such final decision, either hear all the evidence, read the full record including all the evidence, or personally consider the portions of the record cited or referred to in the arguments or briefs. The parties to a contested case may by written stipulation or by oral stipulation in the record at a hearing waive compliance with the provisions of this section. As amended Laws 1957, p. 748, § 1 (§ 536.-083).”

While he did not do so in the Circuit Court, appellant now maintains that he was not afforded an opportunity to present an oral argument or a written brief to the members of the Board who joined in rendering its decision and that the order of revocation is therefore voided. In the first place, the record shows that appellant never requested an opportunity to present an oral argument or a written brief. And in the second, the record also shows that appellant waived whatever right he had in that regard. For it shows that after the Board had denied all of his various motions at the inception of the hearing appellant’s counsel announced that, “ * * * let the record show that we are here, not submitting to the jurisdiction, that we are indifferent to what you do, that if we stay here, we stay here merely as observers and not as participants in any hearing * * Appellant’s counsel also stated that, “We do not propose to participate in this hearing” and that “As a matter of fact, we might be viewed as having left, for that matter.” The record shows, however, that appellant remained for part of the hearing and Mr. Grant for all of it; that after practically every witness had completed his direct testimony the Chairman of the Board or its counsel inquired of Mr. Grant whether he desired to cross-examine and that each time Mr. Grant replied, “I am not participating” or in words of similar import, that statement being made at least eleven times; that at the conclusion of the testimony the Board’s counsel asked Mr. Grant whether he cared to offer anything and Mr. Grant replied in the negative; and that the Chairman then informed Mr. Grant that the Board would take the matter under submission and advise him of its decision, to which Mr. Grant responded “Thank you.” If appellant desired to make an oral argument or file a written brief he should have said so when asxed whether he cared to offer anything or when informed that the matter would be taken under submission. His responses were, we believe, tantamount to a waiver of record of whatever right he had to do so.

Appellant’s fifth and final point, as stated, is that on the whole record the competent evidence adduced is substantially insufficient to support the findings of fact, conclusions of law, and the order entered revoking appellant’s license. It should be noted that the scope of our review is that provided by Article V, Section 22, Const, of 1945, as implemented by Section 536.140. Our authority is limited to that of determining whether, upon the entire record, the Board reasonably could have made the findings and order under consideration. We may not substitute our own judgment on the evidence for that of the Board; and we may set aside the findings and order of the Board only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and order. Gaddy v. State Board of Registration for Healing Arts, Mo.App., 397 S.W.2d 347, 350; Bittiker v. State Board of Registration for Healing Arts, Mo.App., 404 S.W.2d 402, 404.

The evidence introduced before the Board shows that on Saturday, August 1, 1964, Mrs. L_D_was the mother of two daughters, R_and M_, then aged 13 and 12, respectively. They were in normal health but both were late in their monthly periods. Although a Dr. Hoard was her family doctor and appellant had never before rendered professional treatment to Mrs. D_or her daughters, she took them to appellant’s office on that day. She told appellant she kind of suspected that the girls might be pregnant and that she wanted to find out. Appellant said he would examine them and the girls were taken to separate examining rooms. Mrs. D_did not enter the examining rooms until about 45 minutes or an hour later, at which time both girls were dressing. Appellant told her he had examined the girls and that they would be all right, which she took for granted meant that their periods would start. Appellant also told her to bring the girls back on Monday. The receptionist gave the girls sanitary pads to wear until they got home.

After the visit to appellant both girls were sluggish and sleepy. Neither girl had been having any vaginal discharge prior to the visit to appellant but later that night both started to have such discharges and R_ started to feel bad. Mrs. D_ gave her aspirin. On Sunday, R_had no appetite and stayed in bed all day. Both girls continued to have vaginal discharges. On Monday R_ complained of a stomach ache and nausea but didn’t vomit. Mrs. D_took both girls to appellant’s office and advised him of R_’s complaints. R_ told her later that appellant gave her some kind of a shot. After examining R_ appellant told Mrs. D_ she would be all right and that “ * * * it wasn’t too much to get upset over.” He also told her that if the girls didn’t feel up to par to bring them back on Wednesday.

On Tuesday both girls were feeling bad, neither of them ate, and R_had had no bowel movement for two days and her chest hurt. Mrs. D_took both girls to appellant on Wednesday and advised him of R_,’s complaints. Appellant gave R_and M_some milk of magnesia, gave R_some kind of a shot, and said R_ had some sort of gas. R-’s discharge was continuing but M-’s had stopped by Wednesday. After they returned home both girls began to feel worse and laid down. R_ began to have some kind of swelling up the middle of her body, which felt hard. Mrs. D-gave R_another dose of milk of magnesia because appellant had told her to do that if R_ didn’t feel better. R_ then began to suffer from severe diarrhea and her stool had a “ * * * real funny odor, not normal.”

On Friday, August 7, 1964, Mrs. D_ took both girls to the St. Louis County Hospital, where M_ was treated and released but R_ stayed. R- was operated on about 6:00 P.M., and about 10:30 P.M. the doctor told her that R-died. After she returned home M_felt worse, came back to the hospital, and was also operated on later. Mrs. D_relat-ed that on her visits to appellant’s office she had made successive payments of $10, $20, and $20, or a total of $50.

M_testified that in May or June she had had sexual intercourse with a boy with whom she went to school. She said that on her first visit to appellant he took her to an examining room where she disrobed and got on a table with places in which she put her feet. She was given a shot by the receptionist and went to sleep. When she awoke she was drowsy and could hardly see. After about five minutes her mother came in and she arose and dressed. She had been late in her period but after seeing appellant she started to have some kind of a discharge, her stomach began to hurt, and she felt sick. On Monday she returned to appellant’s office and after partially disrobing and getting on the examining table appellant put an instrument “ * * * that looked like a mouth-like thing * * * ” up into her. He also had something like scissors with cotton on them which he put inside her private parts. On the Wednesday visit, appellant again put the cotton up there with the scissors and removed it, and gave her some medicine which was first white and, after appellant put something in it, turned pink. She saw R_, who was sick and told her she had also had some of the same medicine with the pink stuff in it. M_stated that at the time she entered the hospital she had pains in her stomach.

Four doctors connected with the St. Louis County Hospital, and the medical record librarian and a medical technologist of that institution, were also called as witnesses by the respondent. The gist of their testimony was that R- D_ was admitted to the hospital in the afternoon of August 7, 1964. R- was in a critically ill state and had the signs characteristic of generalized peritonitis of several days duration. She underwent surgery at 8:00 P.M., following which a cardiac arrest occurred. The surgeon opened the left side of her chest and directly massaged her heart, which revived her, but her heart later stopped again, all efforts to save her failed, and she was pronounced dead at 10:10 P.M. The operation and later the autopsy disclosed superficial tears of the cervical mucosa and a perforation of at least a quarter of an inch in her uterus. Her sigmoid colon had a similar perforation which was so located that the contents of the colon would enter the uterus and the general peritoneal cavity. The perforations in the uterus and the colon were facing each other, and the one of the rectum was slightly higher. It was the opinion of Dr. Cegielski, a surgeon, that the perforations were caused by instrumentation, from inside the uterus out, and then through the anterior wall of the rectum. In the opinion of Dr. Eugene F. Tucker, the perforations had to be caused by a slender, rigid object, at least six inches in length, inserted through the vagina. Dr. Tucker, a pathologist, found placental tissue within the womb which finding would be consistent with no hypothesis other than pregnancy, but no fetus was found. The direct cause of R_’s death was given as peritonitis, secondary to a perforation of her sigmoid colon with subsequent contamination of the peritoneum by the contents of the intestine.

The medical evidence further showed that M-D-was admitted to St. Louis County Hospital at 12:34 P.M., August 8, 1964, and found to be suffering from a pelvic abscess, a localized peritonitis. The abscess occupied a space intermediate between the anterior wall of the rectum and the posterior aspect of the uterus. The abscess was drained surgically on August 11, but because of the nature of the operation (an incision through the anterior rectal wall), the uterus was not viewed. However, one of the attending surgeons expressed the opinion that M_’s peritonitis was caused by perforation of the uterus. Serological pregnancy tests were made of M_ on August 10 and on August 13. The first was positive, indicating pregnancy. The second was negative. Dr. Louis A. Bealer gave it as his opinion that a positive finding, followed by the negative, was consistent with the termination of a pregnancy through an abortion performed approximately 10 days prior to the first test, but added that “Ordinarily one might expect a test to be negative a little bit sooner but this is not unusual.” M_recovered and was discharged from the hospital on August IS, 1964.

Appellant’s attack on the sufficiency of the foregoing evidence is that it is contrary, “ * * * to the pattern of abortion which is well known to judges, attorneys, doctors and lay persons even slightly familiar with such unlawful practice. * * * ” in that the words “pregnancy” and “abortion” were not used “ * * * by any of the affected parties, * * * ” and in that, “ * * * There was no price set to perform an abortion * * The issue, however, was what was done by appellant, not what words were uttered or what compensation was promised or paid. Considering the evidence as a whole, including all legitimate inferences reasonably deducible therefrom, we are of the opinion that the Board reasonably could find therefrom that appellant performed unlawful abortions upon R_D_and M_ D_

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment affirmed.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.