author: MAUGHMER, Commissioner. PER CURIAM.

text:
    Paul E. ROBINSON, Executor of the Estate of Olive B. Robinson, Deceased, Respondent, v. Hall DeWEESE, Appellant.
    No. 23956.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.

      Loomis & Lacy, by J. M. Loomis, Kansas City, for appellant.
    Robert F. Redmond, III., Kansas City, Terrell, Hess, Van Osdol & Magruder, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

The original plaintiff, Olive B. Robinson, owner of an undivided one-half interest in the 1280 acre Robinson ranch, located in the state of Kansas, on May 10, 1961, sued the defendant Hall DeWeese, a Kansas City, Missouri lawyer and owner of a one-fourth interest in the ranch. The petition alleged that the plaintiff, the defendant and one Audrey C. Meade, owner of the remaining one-fourth share, agreed to and did accept an offer of $85,000 made by one H. C. Dean for the purchase of said ranch; that the full purchase price of $85,000 was paid by the purchaser to the defendant as the “representative of the three sellers”; that plaintiff is entitled to one-half of the sale price, less her proportionate share “of necessary expenses of the sale”, but that after the sale and after his receipt of the $85,000 defendant asserted plaintiff owed him a fee of $6,000, which amount he retains and refuses to pay to plaintiff; that she had demanded payment on March 11, 1961, and prayed judgment for $6,000, with interest from and after March 11, 1961. Mrs. Olive B. Robinson died on May 12, 1961, and thereafter the present plaintiff, Paul E. Robinson, her son and executor of her estate, was duly substituted as party plaintiff.

Defendant in his answer admitted plaintiff owned the one-half interest, admitted the sale for $85,000, and that he had received the full purchase price. Defendant alleged that “Olive B. Robinson agreed on more than one occasion to pay plaintiff a fee for his services and for her part of the expenses”, and that the sum of $6,000 was a reasonable amount for his fee and out-of-pocket expenses.

The case was tried under these pleadings, that is, defendant’s assertion of an oral contract with Mrs. Robinson, and that the claimed $6,000 fee was reasonable in amount. The jury verdict on June 5, 1963, was for plaintiff in the sum of $5,587.66, with interest from March 11, 1961 “to date at 6% in the sum of $784.81, making a total of $6,372.47”. It is apparent from the verdict that the jury refused defendant’s claim for the $6,000 fee, but credited him with expenses in the sum of $412.34. After denial of his after trial motions, defendant appealed.

In 1920, George W. Robinson purchased 1200 acres of land lying in Comanche and Kiowa Counties, Kansas. In 1957, an additional 80 acres was purchased by the then owners. This 1280 acres, referred to in the testimony as the Robinson Ranch, is the land from the sale and management of which the present litigation arose. Since 1920, and as a result of deaths, inheritances and sales there have been changes in ownership. However, Olive B. Robinson, the original plaintiff, became owner of an undivided one-half upon the death of her husband, G. Wilse Robinson, in January, 1958. The defendant DeWeese bought his one-fourth interest in 1955. Audrey C. Meade owned the other one-fourth share. There is no dispute as to ownership.

It appears that Omar Robinson “took the principal burden of looking after the property” until his death in 1954. Thereafter, Dr. G. Wilse Robinson performed that function until his death in 1958. The defendant had “officed with” Omar Robinson for 14 years and acted as attorney in the administration of the estates of Omar and of his wife. The defendant also represented Audrey C. Meade (the other share owner) in various capacities until her death in December, 1961. Mr. C. H. Dean, the ultimate purchaser, had first leased the ranch in 1954. At the time the present controversy arose and during the period when defendant alleged he was performing the services for which he claimed the fee of $6,000, Mr. Dean was tenant under a lease which would have expired on February 28, 1962.

The parties generally agreed that in the fall of 1960, defendant entered into discussions with the other owners, exploring the possibility of selling the ranch or securing a more profitable lease. During the 1960 Christmas holidays, Mrs. Olive B. Robinson went to Pennsylvania to visit her grandchildren. While she was away the defendant telephoned her attorney Mr. G. A. Ma-gruder, Jr., and inquired if she would sell her one-half interest for $22,000. Her refusal to sell for that price was communicated to defendant.

On January 14, 1961, a meeting was held in Mrs. Robinson’s apartment. Present at this meeting, in addition to the three owners, were Mrs. Robinson’s attorney, Mr. Magruder, and her son Paul Robinson, who had a few days before been given a general power of attorney by his mother. At this meeting the defendant again brought up the proposal for a sale of the ranch. Defendant indicated he had located some sale prospects but declined to identify them except he did mention a Mr. Parkin. Neither did he name any definite sale price. Mrs. Robinson refused to consent to a sale until a definite price had been established.

The written contract of sale to Mr. C. H. Dean under which the “sellers agree to sell and convey all the sellers’ right, title and interest” for the sum of $85,000 was signed by all parties on February 8, 1961. The sale was finally closed on February 28, 1961, with the full purchase price being paid to defendant. A meeting was arranged to be held in Mr. Magruder’s office on March 11, 1961 for distribution of the proceeds. A few days before this meeting DeWeese had advised Magruder that he was charging Mrs. Robinson a fee of $6,000. Mr. Ma-gruder told him that the payment of a fee was Mrs. Robinson’s business “and of course would have to be approved or disapproved by her”. At this meeting defendant submitted to Mrs. Robinson a Closing Statement which he had prepared. It contained two deductions from the $42,500 gross amount which was due to Mrs. Robinson for her one-half interest. The first was a deduction of $301.12, representing Mrs. Robinson’s share for abstract, revenue stamps and miscellaneous expenses. There was no objection to this charge. The second deduction reads: “Less: Attorney’s fee per statement, $6,000.00”. Attached thereto was the Statement which listed in some degree of detail the alleged services. We summarize the contents of that Statement :

“Trips to Ranch to investigate fence conditions * * * ”.
“Trips to obtain figures on best rental income obtainable * * *
“Ascertainment of sufficient facts to warrant service of notice to terminate lease * * *
“Conduct of negotiations to obtain as high a price as possible for the sale of ranch, involving additional trips and long distance phone calls”.
“Firm demand for all cash and no purchase money mortgages * * ”.
“Avoidance of clouds on title in contract of sale by specifying special warranty deed of all sellers’ right, title and interest, avoidance of apparent necessity and uncertainty of a quiet title suit”.
“Negotiating acceptance of contract by buyer”.
“Meeting buyer’s objections” as to effect of a mineral deed to one Dorothy Egger.
“Demand of receipt of funds under contract * * * ”.
“Sale consummated for $85,000 cash”
“Ranch variously estimated and duly appraised for $38,400 and $50,000 and taxes accordingly paid”.
“To attorney fee for services rendered $6,000.00”.

It is of course noted that the $6,000 was charged against the owner of only a one-half interest. Mrs. Robinson and her son Paul refused to pay the $6,000 or any part of it and demanded full payment of her share of the purchase price. Defendant refused to pay her any part of the money, even the $36,198.88 which was admittedly due after deducting the $6,000 fee. Some days later he did remit all but $6,000 to Mr. Magruder, attorney for the plaintiff.

The defendant gave personal testimony at the trial and elaborated to some extent as to the services performed and which were described generally in the Closing Statement. An objection that DeWeese was incompetent as a witness under the “Dead Man’s Statute” was overruled for the reason that his deposition had been taken by plaintiff. He testified that the title to the ranch was clouded, two quiet title suits had been litigated, (defendant not participating in either) ; that he secured three quit-claim deeds from persons whom he said might have a claim to the ranch; that he paid $150 each for these deeds and made a trip to Seattle, Washington to obtain them. However, the named grantee in each deed was Mrs. Meade — not all three of the ranch owners, and none of these deeds was ever recorded. Defendant admitted that Dr. Robinson looked after the ranch until his death in 1958, but claimed that he helped. Mr. DeWeese gave a further description of his services. He said he discussed ranch matters with Mrs. Robinson five or six times in 1958, and that on one of these occasions she had dicussed the effect of the mineral deed with him. He communicated with Mr. Dean relative to fence repair and upkeep of the buildings. He made two trips to the ranch in 1958 (1600 miles and $30 cash each trip). In 1959 he again made two trips to the ranch and talked with Mrs. Robinson six or seven times — about the same in 1960. He described the trip to the state of Washington for the three quit-claim deeds which were never recorded and which cost $450, plus defendant’s expenses. He said he “handled paying the taxes,” negotiated tentatively for a better lease (No new lease of any kind was ever executed), and obtained offers to buy the farm — one offer of $50,000, one for $77,000, and finally the Dean offer of $85,000, which the owners accepted. Defendant claimed he spent a “considerable amount of time” looking up Kansas law on a “number of questions”.

Mr. DeWeese asserted in his pleading and in his testimony that Mrs. Robinson orally employed him relative to the ranch matters, but he never really fixed a definite time and place where she specifically spoke of employing him as her attorney or agreed to pay him a fee. Appellant in his brief says “the first discussion between the defendant and Mrs. Robinson relevant to an attorney’s fee was apparently in the summer of 1958 (Tr. 130) at which time Mrs. Robinson stated she expected to pay the defendant, and reimburse him for her half of his expenses (Tr. 131).” We quote the actual testimony from pages 130, 131 of the transcript :

“Q. (By Mr. Loomis) Let me ask you this, Mr. DeWeese. Did Mrs. Robinson at any time discuss with you any question about a fee? A. Yes.
“Q. And when? A. In the summer of 1958, and explicitly before I made the trip in October, she wanted to know about what the expenses on the trip were, and I told her they would be very nominal, that my money out of pocket would be limited to my actual expenses, like gas and oil and meals for the two days, and one lodging. Sometimes there was a second lodging, because it is considerable distance, and I gave her an approximation too, as near as I could tell those had been running me $30.
“Q. What about the attorney fee? Any discussions? A. She mentioned at that time that she wanted me to know that she expected to pay me and reimburse me on the expenses for her half which was expressly stated, and also that she wanted to know what the condition of the fences was and what the laws required us to do out there”.

This testimony covering a meeting and conversation between Mrs. Robinson and defendant, joint owners of the ranch, cannot, we think, be reasonably construed as showing an oral contract of employment. However, later on defendant was asked this question and made this answer (Tr. 179, 180):

“Q. What was her expression at that time? A. She wanted to know what my expenses would be, and she wanted me to understand she was going to reimburse me for the expenses, and that she wanted to ascertain the answers to those things and expected to pay me an attorney’s fee on the matter. At that time we had also discussed the quiet title suit, and she said she didn’t want at that time to decide that until after I had gotten back from the trip, when we had a session, the three of us.”

Mr. DeWeese claimed that his out-of-pocket expenses on the various trips to the ranch, to Washington for the quit-claim deeds et al. was $884.68 of which Mrs. Robinson owed half. The jury allowed defendant all of this expense except $30, but did not allow the attorney fee. In our opinion there is substantial, credible testimony to support the verdict that Mrs. Robinson did not employ defendant as her attorney. Considering that defendant carried the burden of proving the contract, it is quite evident that the issue was at least debatable and defendant, at most, was only entitled to have this fact question decided by the jury.

Two days after the conference of March 11, 1961, when payment of defendant’s claimed attorney fee was refused and defendant then left, retaining possession of all of Mrs. Robinson’s share of the purchase price, Mr. Magruder, her attorney, wrote DeWeese a letter, insisting that defendant had no right to withhold any funds over and above the claimed attorney fee. This letter contained the following statement:

“Please be advised that Mrs. Robinson stands ready, as she has always been, to pay you a reasonable fee for your services in connection with said sale. The difficulty, of course, lies in determining what a reasonable fee is in view of all of the facts and circumstances”.

Defendant offered this letter and statement in evidence. It was refused and defendant assigns error therefor. Appellant cites Gibson v. Metropolitan Life Ins. Co., Mo.App., 147 S.W.2d 193, as authority for admission of the letter. In the Gibson case plaintiff’s attorney, in stating her claim, admitted the premium was unpaid, but claimed on a different theory. It was there held, and we quote Syllabus 3:

“Before an attorney can speak for his client, there must be either express or implied authority, but an attorney employed to present a claim may state to debtor what the claim is, and therefore, in so doing, make admissions as to its character, which would be proper evidence against client, if in a suit subsequently brought the client presented an entirely different theory as basis of the claim”.

The rule is, we think, properly set forth in 7 C.J.S. Attorney and Client § 80a, page 899, which states:

“The broad implied or apparent powers of an attorney with respect to the conduct or control of litigation are, however, limited to matters which relate only to the procedure or remedy. The employment of itself confers upon the attorney no implied or apparent power or authority over the subject matter of the cause of action or defense ; and, unless the attorney has expressly been granted authority with respect thereto, the power to deal with or surrender these matters is regarded as remaining exclusively in the client”.

There is no evidence presented showing that Mr. Magruder was authorized by Mrs. Robinson to employ defendant as her attorney or bind her to pay him an attorney fee for past services allegedly furnished. We believe the letter was properly excluded.

Defendant complains as to Instruction No. 1, which we set out in full:

“The Court instructs the jury that if you find and believe from the evidence in this case that there was no agreement between Olive B. Robinson and the defendant whereby defendant was employed as Mrs. Robinson’s attorney in connection with the Robinson Ranch or the sale thereof, then your verdict should be for the plaintiff in the amount of $6,000 less such sum, if any, which you find and believe from the evidence that Mrs. Robinson agreed to pay to defendant to reimburse him for his expenses, with interest on the amount of your verdict at the rate of six percent per annum from March 11, 1961 to date”.

Defendant says the instruction is an incorrect statement of the law, and that it was not necessary to prove a contract of employment. Defendant’s pleading alleged and his trial procedure was upon the theory of an oral contract of employment and then a recovery of a reasonable fee for the services rendered. We believe the instruction was quite proper in this case.

We overrule defendant’s contention that the verdict in and of itself demonstrates bias and prejudice on the part of the jury. The trial judge overruled the motion for new trial. The trial judge apparently did not believe the verdict showed bias or prejudice and neither do we.

Lastly, defendant urges that Instructions 3 and 4 should not have both been given because thereby the fact that defendant bore the burden of proof was overemphasized. Instruction No. 3, stated the burden was on defendant to show an agreement of employment. Instruction No. 4 declared that if the jury found an agreement of employment, then the burden rested with defendant “to establish by a preponderance of the evidence the amount to which he is entitled as reasonable compensation * * * We believe it was quite proper to give both Instructions 3 and 4.

We find no reversible error. The verdict is supported by substantial and credible evidence. The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: HUNTER, Judge.

license: Public Domain

text:
    Charles PETERS, Respondent, v. Lee B. SHULL and Isal Iona Shull, Husband and Wife, Appellants.
    No. 23981.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.

      Robison & Miller, Maysville, for appellants.
    J. B. Beavers, Cameron, for respondent.
   HUNTER, Judge.

This is an action for damages alleged to have been sustained by plaintiff-respondent, Charles Peters, as the result of the defendants-appellants Lee and Isal Shull, having changed the grading and having raised the elevation of portions of their adjoining lot causing surface waters to be artificially collected and discharged in a body on plaintiff’s lot and house causing it to be permanently damaged. The parties waived a jury, and the trial by the court resulted in a judgment for plaintiff for $600.00. After an unavailing motion for a new trial, defendants appealed.

This being a jury waived case, our duty is to review it upon both the law and the evidence as in suits of an equitable nature. The judgment is not to be set aside unless clearly erroneous, and due regard must be given to the trial court to judge the credibility of the witnesses. S.Ct.Rule /'3.01(d), V.A.M.R. This we proceed to do.

Mr. and Mrs. Harry Groves originally owned a tract of land in Cameron, Clinton County, Missouri, that had a 254 foot frontage north and south on Walnut Street with a 342 foot depth. They sold the defendants the south 100 feet. According to defendants’ evidence the portion the Groves retained and the portion defendants purchased were so sloped that the surface water runs to the south onto the lot later purchased by plaintiff.

Shortly before October 14, 1961, defendants commenced the construction of a house about the middle of their mentioned lot. The excavation for the basement was about 30 feet wide by about 80 feet in length. The dirt was piled up around the east side of the excavation and the basement walls were starting to be laid when plaintiff, a day or two before October 14, 1961, purchased from Ted Sanders for $4,100 the lot known as 725 South Walnut which lay immediately south of defendants’ lot. After plaintiff had purchased the lot defendants had a “dozer” push some dirt from west to east “down in front of the house to raise the fill up in front of the house”. Dirt was pushed next to the foundation to keep the water from running in around the foundation. “And he (defendant) built a patio on the back and raised the ground approximately three feet.” The obstruction created by defendants was a few feet high and ran the full width of the lot, north and south. The west end of defendants’ lot before any construction on it had taken place was higher than the east end. The natural lay of the land on defendants’ lot was changed by the excavation for the house and the piling of the dirt thereby obstructing the water. The result, according to plaintiff, was that “the water runs from the west to the east and goes as far as the fill put in around the foundation, and then turns directly south onto my property.”

On this appeal defendants make two (“points”) contentions. The first is that “Surface water is a common enemy and a person may divert it from his premises so long as he does not do so recklessly, or impound or collect it and discharge it upon the servient estate in increased quantities to its damage, (and) If as a result of normal construction procedures, the natural flow of surface water be changed by the dominant owner, the servient owner is not entitled to damages.”

While defendant in his mentioned contention (“point”) has not pointed out wherein or how the trial court erred (See S.Ct. Rule 83.05 (a) (3), as illuminated in the discussion portion of his brief it is defendants’ contention that the evidence does not support the trial court’s finding “that in the course of such construction defendants caused previously existing natural surface water to become collected into an artificial channel or swale, in an artificial volume, and in a manner not merely incidental to proper improvement of their premises * * (and) precipitated the natural surface water so artificially collected upon plaintiff’s property in an unnatural manner by causing same to be discharged onto plaintiff’s property at a point or points different from the conditions existing prior to defendant’s construction.” Defendants assert there is no evidence that they collected and discharged the surface water onto defendants’ property.

Accordingly, defendant Lee Shull testified that at the time he bought his lot the middle part of the Groves lot on the north of it sloped to the north and the other part to the south; that both his and the Groves lot sloped from the west to the east, about two-thirds of the way down and from there on sloped south and that all surface water from both lots drained south and onto the Peters lot. There was a swag on his (defendant’s) lot and it sloped to the south. The water had flowed off Shulls’ lot onto Peters’ lot about where Peters’ garage was located, because it was lower there and there was nothing to stop thfe flow of the water. This was the natural flow of the water when Shulls bought their property. The only change in the flow of surface water after construction orl their property by defendants was that due to guttering and piping of roof water to the street and away from their house at least one-third of the water which formerly flowed onto plaintiff’s lot does not now.

The legal doctrine involved, although variously stated, is generally well settled. In Haferkamp v. City of Rock Hill, 316 S.W.2d 620, our supreme court illustrated the general rule in this state by reference approval of several earlier appellate decisions. (Local Cit. 316 S.W.2d 625) “In Clark v. City of Springfield, Mo.App., 241 S.W.2d 100, 105, it was stated that ‘one should not artificially impound or collect surface water and cast it in increased and destructive quantities upon the servient estate to its damage.’ In the recent case of Blydenburgh v. Amelung, Mo.App., 309 S.W.2d 150, 152, it was stated that ‘the owner of a dominant estate cannot permit water to collect on his own premises and then discharge it in destructive quantities at one point in a body onto the servient estate.’ ” And see Blackburn et al. v. Gaydou, 241 Mo.App. 917, 245 S.W.2d 161, 166.

The supreme court noted, the general rule is subject to a qualification, saying in the Haferkamp case, 316 S.W. loc. cit. 625: “In those states purporting to follow the common enemy doctrine, where the question of the right of a landowner to collect surface water and discharge it into a natural drainway has been expressly raised, the courts ‘have developed a qualifying rule which is, in subtance, that a possessor of land is not privileged to discharge upon adjoining land, by artificial means, large quantities of surface water in a concentrated flow otherwise than through natural drainways’ (emphasis added). See the discussion by Kinyon and McClure, 24 Minn.Law Rev. at pp. 916 et seq. The statement of this general qualifying rule varies in the numerous cases, and without attempting to state precisely its limits it may be said that the rule is, in substance, that a landowner in the reasonable use and development of his land may drain it by building thereon sewers, gutters and such other artificial water channels for the purpose of carrying off the surface waters into a ‘natural surface-water channel’ (see Todd v. York County, 72 Neb. 207, 100 N.W. 299, 66 L.R.A. 561) located on his property without liability to the owner of neighboring land, even though such method of ridding his property of surface water accelerates and increases the flow thereof, provided that he acts without negligence, and provided further that he does not exceed the natural capacity of the drainway to the damage of neighboring property.”

We have reviewed the evidence in the light of defendants’ first contention of error and find that contention to be without merit. The evidence discloses and is persuasive that prior to plaintiff’s purchase of 725 South Walnut lot the surface water flowed generally to the south from defendants’ lot onto plaintiff’s lot in such a diffused manner as to cause no damage to plaintiff’s lot and his house thereon.

Defendants’ own witness, Harry Groves, testified that prior to defendants’ mentioned construction the water from defendants’ lot “was standing, but as far as running in the blue grass I never saw any water running * * *. It might have run off slowly, but it stood pretty much.” Groves never saw any water running on plaintiff’s lot. However, as a result of the construction work, “it is graded from the (defendants) house and it goes down, so there is a swale there. * * * Q. Before you sold the lot to him (defendant) was there a swale or depression or ditch in there? A. No, sir. It naturally sloped all the way. * * * Q. That swale or depression you spoke of, that was created after Mr. Shull started his construction of his house, is that right? A. By grading, yes. Q. That water that comes into the swale or depression, does that go south? A. Have to go south, yes. Q. Goes south and collects right there in that swale or depression that you spoke of, is that right? A. Yes. * * * And it collects there and flows onto Mr. Peters doesn’t it? A. Yes. * * * Q. And that is no different now than it was before? A. Only that it goes off in one spot now. * * * But it didn’t go off in one place like it does now? A. No, sir.”

Plaintiff’s witness, Russell Johnston, a county engineer and surveyor, testified that after the mentioned construction the slope of the land was such as to collect the water on defendants’ lot “in one volume” and that it would empty on plaintiff’s property.

Ted Sanders testified that when he owned the property in question surface water from defendants’ lot flowed from east to west and continued to the Shull side of the property and emptied from there into the street but that as a result of the building on the Shull property “the water is diverted in its drainage from the west directly —well, when it comes to the Shull house it drains directly south onto the Peters’ property. * * * It is a man made drainage. * * * What I would call a spillway. * * * I never before saw where a man would simply impound the water and put it onto another man’s property. * * * He (defendant) piled the dirt up (3 feet) the full width of the lot.” And that another result of this grading was to cause a depression or low place about 50 to 70 feet long and about 33 feet wide. Sanders also stated that prior to the construction “For the past 30 years there was no water that drained from the Groves property onto the Peters’ property, with possibly a few feet from the east line.”

Plaintiff testified that as a result of defendants raising the elevation for their yard, house and patio the surface water flows somewhat west to east as far as the fill and then is diverted directly onto his property running under his house, flooding his basement, causing the floors to he wet and making his garage and driveway not usable. Prior to the construction work he knew of no such flooding.

Other evidence also supports a finding that as a result of the grading and construction work done by defendants the surface water is now collected in one body and discharged at a point where it runs in and under plaintiff’s house in one body causing substantial damage.

Defendants remaining contention (“point”) is that “No Satisfactory proof was offered on the question of damages. If any damages were occasioned by respondents these had, at least in part, been sustained at the time of sale and are presumed to be reflected in the sale price and cannot be claimed by respondent. (And) there was not proof of the value of the property before or after the injury.”

The applicable rule is that in an action for injuries to real property by the wrongful impounding and discharge of surface waters, such as here, the measure of damages is the same as in other cases of injury to such property. When the damage to real estate is permanent and the injuries are of a major character, the proper measure of damages is the difference between the market value of the property immediately before and immediately after the injuries occurred. Belveal v. H. B. C. Development Company, Mo.App., 279 S.W.2d 545, 554. There must, of course, be evidence of such values.

Both the plaintiff and Ted Sanders, who qualified as an expert, testified without objection that plaintiff’s property was worth $4,100 at the time plaintiff purchased it but was worth only approximately $2,000 after the mentioned water damage. Plaintiff testified he paid Sanders $4,100 for the property. And as earlier mentioned plaintiff described some of the damage he claimed the flooding caused to his house, garage and driveway. This is pertinent and substantial evidence of the permanent damage plaintiff asserts as having been caused to his property by the flooding, and defendants’ contention to the contrary is without merit.

As to defendants’ contention that the damage, if any, had been sustained at least in part before plaintiff acquired the property, the evidence adduced by plaintiff disclosed the damage that occurred after plaintiff’s purchase of the property. In so saying, we have not overlooked evidence adduced by defendants to the general effect that water had run into the back room of plaintiff's house from a leak in the roof and had deteriorated a spot on the floor and one or two floor joists. There was also evidence that the house was 50 years old and was in a somewhat deteriorated state prior to plaintiff’s acquisition of it. This evidence was before the trial judge who presumably carefully considered it as have we. The trial judge allowed only $600.00 of the $2,000.00 asserted permanent damages, and on our own independent review of the record we are inclined to agree with that figure. Certainly, no clear error is demonstrated by defendant as to the amount of damage determined by the trial court.

The judgment is affirmed.

All concur.


author: STONE, Judge.

text:
    Helen FELLOWS, Plaintiff-Respondent, v. Rice FARMER, Administrator of the Estate of Clarence V. Norman, Deceased, Defendant-Appellant.
    No. 8245.
    Springfield Court of Appeals. Missouri.
    May 5, 1964.
    Motions for Rehearing or to Transfer Overruled June 17, 1964.
    See also Mo.App., 347 S.W.2d 908.

      J. W. Grossenheider, Lebanon, for defendant-appellant.
    Claude T. Wood, Richland, B. H. Clam-pett, Springfield, for plaintiff-respondent.
   STONE, Judge.

In this jury-tried action for the alleged wrongful death of her husband, Harold L. Fellows, in and as the result of a one-vehicle tragedy, plaintiff Helen Fellows obtained a judgment for $10,000 against Rice Farmer, as administrator of the estate of Clarence V. Norman, deceased. V.A.M.S. §§ 537.020, 537.080 and 537.090. Defendant appeals.

The accident occurred on Missouri State Highway 28 about two miles south of Dixon in Pulaski County, Missouri, at a highway bridge (approximately fifty feet in length) over McMakin Creek. To avoid confusion as to directions, we will treat of Highway 28 and the bridge as running generally north-and-south, and of McMakin Creek as flowing downstream from east to west under the bridge. Trooper Jim Hudson of the Missouri State Highway Patrol was called about 6:40 P.M. on May 27, 1958, and reached the scene of accident at 7:15 P.M. while it was still “daylight.” Hudson found a wrecked 1952 DeSoto coach in the creek bed, just upstream or east of the highway bridge and near a vertical concrete wall or “wing” extending upstream (at right angles to the highway and below its level) at the north end of the bridge to hold and protect the fill and embankment on that side of the creek. The DeSoto was lying “more or less on its * * * right-hand side,” with its front end headed downstream in a general westerly direction and its wheels “sticking out” to the south.

There were two men, both dead, in the DeSoto. One of them (so Trooper Hudson said) “was pinned in the left-hand portion of the car * * * front left-hand portion” and was “partially” under the steering wheel which had been “pushed forward.” The other man was on the right side, with “the uppermost part of his body and his shoulders” out of the automobile and with “his legs and lower trunk * * * pointed over toward the driver’s side” but not under the other man. Witness Moss, a funeral director at Waynesville, Missouri, who drove an ambulance to the scene of accident, similarly described the positions of the two bodies in the DeSoto. Trooper Hudson also testified, with no objection or motion to strike, that from the “identification they had on them * * * the names they had on their identification” he determined that the man pinned “partially” under the steering wheel was Clarence Norman (defendant’s intestate) and that the man with the upper portion of his body out of the right side of the automobile was Harold L. Fellows (plaintiff’s husband). Norman had suffered “head and chest injuries” — “he had a crushed chest.” Fellows’ “head was crushed” but no chest injury to him was observed by either Hudson or Moss. Because some of the information on the photostatic copy of the certificate of title offered in evidence was illegible, ownership of the DeSoto was not established at the trial, but there was evidence that neither plaintiff nor her deceased husband owned that vehicle.

There is no intimation in the record that anyone witnessed the fatal accident; ’but, from the physical facts ascertained by 'Trooper Hudson in his investigation and by him explained upon trial with the aid ■of photographic exhibits, the jury reasonably might have inferred and found that the accident had occurred in the following manner. The DeSoto, north-bound on Highway 28 which has a two-lane asphalt roadway, had rounded a sharp curve to the left just south of the bridge over McMakin Creek. Apparently traveling at a high rate of speed, the DeSoto had gone off the “outside” of the curve (i.e., the right-hand or east edge of the pavement) onto the east shoulder of the highway where it made skid marks which continued to the vertical concrete wall or “wing” extending upstream at the south end of the bridge. Missing the south entrance to the bridge, the DeSoto had scraped the ouside (i.e., the east or upstream side) of the concrete post at the south end of the east bridge railing, leaving on the outside of that post a tire mark still visible at the time of trial almost five years later, and then had hurtled through space over the creek bed (most of which was dry) a distance of approximately fifty feet to and against the vertical concrete wall or “wing” extending upstream at the north end of the bridge, where the automobile left matching paint marks on the concrete wall and fell to rest in the position hereinbefore described.

Plaintiff pleaded and submitted her case on the res ipsa loquitur doctrine. As defined in our Missouri cases, that doctrine is applicable when (1) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care, (2) the instrumentality involved was under the management and control of the defendant, and (3) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Counsel for instant defendant concedes that the accident under consideration was one which ordinarily would not have happened if the driver had been exercising due care, and "that the first element which is a requisite of the applicability of the doctrine is present.” (All emphasis herein is ours.) But defendant contends that the trial court erred in refusing to sustain his motion for a directed verdict at the close of all the evidence, because (so counsel asserts) neither the second nor the third element reasonably could he found in this case.

With respect to the second clement, defendant’s brief presents a two-pronged argument, to wit, (1) that Trooper Hudson’s “identification of the bodies was highly speculative” and (2) that, after the DeSoto left the highway, “the positions of the men may have changed.” Ergo, any finding that Norman (defendant’s intestate) had been driving at the time of accident would amount to “sheer guesswork, speculation and surmise.” As for the first prong of the argument, Hudson testified positively, zínth no objection or motion to strike and with no cross-examination on this subject, that from the “identification they had on them * * * the names they had on their identification” he determined that the man pinned “partially” under the steering wheel was Norman and that the man with the upper portion of his body out of the right side of the automobile was Fellows (plaintiff’s husband). Regardless of whether this evidence might have been excluded upon timely and appropriate objection or motion to strike, its probative worth and effect were for the jury since it was received without such objection or motion; and, with this evidence in the record, we cannot say, as a matter of law, that identification of the bodies found in the wrecked DeSoto was insufficient.

In the second prong of the argument concerning the second element (i. e., that the jury reasonably could not have found that the DeSoto had been under the management and control of defendant’s intestate because “the positions of the men may have changed” after the automobile left the highway), counsel points out “that an essential element of a plaintiff’s case cannot be left to guess or conjecture, or be established by piling inferences” [Antweiler v. Prudential Insurance Co. of America, Mo.App., 290 S.W.2d 652, 654 (3)] and reminds us that, although a finding essential to recovery may be proved by circumstantial evidence, such evidence should have a tendency to exclude every reasonable conclusion other than the one desired. Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 498(12, 13). But the simple statement of these broad general principles does not resolve the question as to whether the evidence in the instant case reasonably permitted a finding that Norman (defendant’s intestate) had been driving at the time of accident.

“[T]here is perhaps no question attended with greater uncertainty in its practical application than the question of when recovery may properly be justified in a given case by way of inference from the circumstances. This because of the obvious impossibility of laying down any hard and fast rule which can be applied to each and every situation, and by which it can be determined without room for honest dispute that the circumstances in the particular case are either sufficient or insufficient to warrant a finding of some additional fact as to which there is no direct evidence, but upon which liability may depend.” Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 670. Although “the inference drawn must be reasonable, and may not be arrived at by speculation or conjecture * * * neither is the inference to be precluded by speculation or conjecture, or by a mere possibility that the contrary may be true. * * * Probabilities, not possibilities, are controlling. It is not required that an inference be justified beyond all doubt.” Mauzy v. J. D. Carson Co., Mo.App., 189 S.W.2d 829, 833(4); Pipes v. Missouri Pacific R. Co., Mo. (banc), 338 S.W.2d 30, 36(9). See Elgin v. Kroger Grocery & Baking Co., 357 Mo. 19, 26-27, 206 S.W.2d 501, 506. In short, “to afford a substantial and sufficient basis for deductive reasoning in the determination of civil issues, circumstantial evidence need not have the quality of absolute certainty * * Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292, 297 (8). With the foregoing in mind, we are of the considered opinion that the evidence in the case at bar was sufficient to permit submission of the issue as to whether Norman (defendant’s intestate) had been driving at the time of accident — a conclusion supported by abundant authority from other jurisdictions.

Defendant’s contention that the third element prerequisite to applicability of the res ipsa doctrine cannot be found in the instant case is predicated upon the argument that, since his intestate was killed in the accident, he (defendant) could not have superior knowledge or means of information as to the cause of the occurrence. But in considering this point we should remain mindful (a) of the nature and basis of plaintiff’s cause of action, i. e., that her suit is for the death of her husband alleged to have been caused by the negligence of Norman, defendant’s intestate [V.A.M.S. § 537.080], and (b) of defendant’s status, i. e., that he is sued in a representative capacity as administrator of Norman’s estate, having been appointed as such administrator that plaintiff might be enabled to prosecute her cause of action. V.A.M.S. § 537.020; Darrah v. Foster, Mo., 355 S.W.2d 24, 30(7) ; State ex rel. McCubbin v. Ginn, Mo., 347 S.W.2d 119.

Although many of the definitive declarations with respect to the res ipsa doctrine state the third element as being that “the defendant possesses superior knowledge or means of information as to the cause of the occurrence,” it will be observed that such references to “the defendant’ are found in cases in which the named defendant has been the alleged tort-feasor. Where, as here, the named defendant is sued in a representative capacity as administrator of the estate of the alleged tort-feasor, the third element may he framed more aptly and appropriately in language such as that employed (although not for the reason motivating our suggestion) in Gibbs v. General Motors Corporation, 350 Mo. 431, 166 S.W.2d 575, 581(6), to wit, “that the one in charge of [i/ie] instrumentality which causes injury either knew the cause or [had] the best opportunity of ascertaining” it.

If Norman (defendant’s intestate) were living, certainly he would be regarded as having “means of information as to the cause of the occurrence superior to those of plaintiff.” Lindsey v. Williams, Mo., 260 S.W.2d 472, 475, certiorari denied 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063. So our inquiry finally becomes whether plaintiff, who otherwise undoubtedly might rely upon the res ipsa doctrine, is to be denied recourse thereto solely by reason of the tragic fortuity of Norman’s death. Counsel have cited, and we have located, no Missouri case discussing this precise question, but authority elsewhere is to the effect that the death of the operator of a vehicle, which makes his superior knowledge unavailable upon trial, does not render the doctrine inapplicable.

“It is stated [by defendant’s counsel] that the real reason for the [res ipsa] rule lies in the fact that the cause of injury is usually known by the defendant and unknown to the plaintiff, and that when the reason for the rule fails the rule becomes inoperative. In other words, the management and control of the automobile having been in the decedent, and he being dead, he cannot now speak the true cause of the accident. That theory may be one of the reasons for the rule, but it is not the basic cause for its adoption. The true reason is found in the rule itself, in that the act complained of, or the thing, speaks for itself. It is therefore not the matter of the defendant’s ability to speak, but the fact that the act itself speaks.

“It would be just as logical to say that if a defendant does not know the cause of an accident, a plaintiff might not recover. A defendant might purposely say he did not know. If he did so he might as well be dead in so far as a plaintiff was concerned, for if a defendant could or would not speak the plaintiff must fail. The rule permits a defendant to speak the cause of the accident and perhaps thereby escape liability. He may do that by testimony other than his own. The plaintiff’s right to recover cannot be grounded on a defendant’s inability or refusal to speak.” Weller v. Worstall, 50 Ohio App. 11, 197 N.E. 410, 413 [affirmed 129 Ohio State 596, 196 N.E. 637],

Reliance upon the res ipsa doctrine has not been foreclosed by the fact that the driver, the only person who might supply information concerning the accident, disappeared immediately thereafter [Nicol v. Geitler, 188 Minn. 69, 247 N.W. 8, 11], nor by the fact that all employees in a dynamite factory and any other possible witnesses had been “scattered to the four winds” in a series of explosions out of which litigation arose. Judson v. Giant Powder Co., 107 Cal. 549, 40 P. 1020, 29 L.R.A. 718. And distinguished scholars and authors in the field of torts have pointed out that “[m]any plaintiffs have successfully invoked res ipsa loquitur against defendants who had no knowledge and could give no explanation of how the accident happened” [2 Harper and James, Torts, § 19.9, p. 1094, footnote 1] and that “in a large number of cases in which there has been no consideration of the point it is apparent from the facts that the accident was a mysterious occurrence, as to which the defendant was as much in the dark as the plaintiff.” Prosser on Torts, (2nd Ed.), § 42, loc. cit. 209. In the instant action, Norman (found by the jury to have been the driver of the DeSoto) either knew or had the better opportunity to know the cause of the occurrence, and plaintiff should not be precluded from reliance upon the res ipsa doctrine solely by reason of the lamentable circumstance of Norman’s death. We conclude that plaintiff made a submis-sible case under that doctrine.

Defendant also contends that “the court erred in permitting plaintiff to testify over defendant’s objection as to her deceased husband’s earnings and occupation and matters defendant’s intestate [Norman] could have refuted had he been living because plaintiff was incompetent to testify as to these matters under V.A.M.S. § 491.010,” the so-called “dead man’s statute.” This statute is a qualifying enactment in that it first removes the common-law disqualification of witnesses by reason of interest, and it is a disqualifying enactment in that it then explicitly recognizes and imposes disqualification in certain instances, to wit, (1) “in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or" is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify * * * in his own favor * * * ” (to which we refer as the “transactions” proviso), and (2) “where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will * * * ” (to which we refer as the “administration” proviso). See Freeman v. Berberich, 332 Mo. 831, 842-845, 60 S.W.2d 393, 398-400. The disqualification imposed by the “administration” proviso is absolute with respect to “anything which occurred before commencement of probate” [Birdsong v. Estate of Ladwig, Mo.App., 314 S.W.2d 471, 475(3)], but the language of this proviso specifically limits its application to actions ex contractu. Freeman, supra, 332 Mo. loc. cit. 847, 60 S.W.2d loc. cit. 401; Grimm v. Gargis, Mo., 303 S.W.2d 43, 51, 74 A.L.R.2d 599; Birdsong, supra, 314 S.W.2d loc. cit. 475(3). Hence, in this action ex delicto, the measure and extent of plaintiff’s disqualification as a witness are to be determined under the “transactions” proviso, the applicability of which is not limited to any given category of actions. Freeman, supra, 332 Mo. loc. cit. 847, 60 S.W.2d loc. cit. 401.

It is now well-settled that the “transactions” proviso does not impose a general disqualification and does not make the surviving party an incompetent witness for all purposes, but that such surviving party is disqualified “only to the extent that his testimony might be subject to question by the other party if living” and in respect '“to transactions between the witness and the party then dead” [Elsea v. Smith, 273 Mo. 396, 408, 202 S.W. 1071, 1073(2)] and .remains a competent witness in respect to transactions with others and as to matters '“with which [the deceased] had no connection, and of which he had no knowledge.” The complaint under discussion is .that plaintiff testified “over defendant’s objection as to her deceased husband’s earnings and occupation and matters defendant’s intestate could have refuted had he been living.” Neither the point itself nor the twelve-line argument in support thereof identifies the “matters [in plaintiff’s brief testimony] defendant’s intestate could have refuted had he been living” and our examination of her testimony discloses no such “matters.” Plaintiff was not riding in the DeSoto, did not witness the accident, .and did not undertake to testify with respect thereto. She did state that, on the date of accident, her husband was a soldier, thirty-two years of age, stationed at Fort Leonard Wood and “earning” $188 per month, but these were not facts concerning which her lips were sealed by the “transactions” proviso. Cf. Burns v. Polar Wave Ice & Fuel Co., Mo.App., 187 S.W. 145, 147. See again the cases cited marginally •in notes 9 and 10.

Furthermore, there were no objections to the questions which elicited the information as to the age and occupation ■of plaintiff’s husband, and the objection to the inquiry as to “what your husband was ■earning at the time of his death” did not ■even suggest plaintiff’s incompetency: “We want to object * * * on the grounds that until — until it has been proven that Mr. Norman [defendant’s- intestate] is responsible for her husband’s death, all of this testimony concerning damages she may be entitled to is — is immaterial. * * * It’s premature.” Since a witness is not incompetent under V.A.M.S. § 491.010 for all purposes, objections must be not only timely [Elsea, supra, 273 Mo. loc. cit. 408, 202 S.W. loc. cit. 1073(4)] but also specific and sufficiently exact to inform the court why the witness is disqualified in the particular situation at hand. Birdsong, supra, 314 S.W.2d loc. cit. 477(10), and cases there cited in footnote 7. See Garden, The “Dead Man’s Statute” in Missouri, 23 Wash. U. L.Q. 343, 366. The point under discussion must be disallowed.

Defendant’s next point lists three particulars in which plaintiff’s verdict-directing instruction 1 is alleged to have been erroneous. The first is that “said instruction assumed that Clarence Norman was driving the automobile and Harold Fellows was riding in the automobile without hypothesizing any facts from which the jury could so find.” Examination of the instruction reveals that it “assumed” nothing with respect to the identity of either the driver or the occupant but that it required affirmative findings that Norman was driving and Fellows was riding in the DeSoto. It is not apparent to us how the instruction properly could have hypothesized “facts from which the jury could so find”; but, if defendant’s counsel deemed the hypothesization of further facts to be necessary or desirable, he should have offered “a clarifying or amplifying instruction.” Hooper v. Conrad, 364 Mo. 176, 189, 260 S.W.2d 496, 501; Massey v. Berlo Vending Co., Mo., 329 S.W.2d 772, 777(5). Having failed so to do, he will not be heard to complain now.

The second particular is that the instruction permitted the jury to find that Fellows (plaintiff’s husband) “suffered personal injuries from the occurrence from which he died while there is'no evidence from which the jury could so find without resorting to guesswork, speculation and surmise.” It is indeed strange that there was no direct evidence, either lay or expert, that Fellows died as a result of injuries suffered in the accident. But, although the burden rested on plaintiff to prove with reasonable certainty that the negligence of Norman (defendant’s intestate) was the proximate cause of her husband’s death, it was permissible for her to show “[sjuch connection * * * by circumstantial evidence which should be considered in the light of ordinary experience and such conclusions deduced therefrom as common sense dictates.” 25 C.J.S. Death, § 87, loc. cit. 1216.

Fellows was a 32-year old soldier stationed at Fort Leonard Wood, where he had been on the afternoon of the fatal occurrence. As an occupant of the DeSoto, he. was subjected to brutal violence when that vehicle, traveling at sufficient speed to hurtle through space for some fifty feet, crashed into a concrete wall. When found dead in the wrecked automobile, his primary injury was described bluntly and vividly by Trooper Hudson as “a crushed head.” Perhaps it might be argued, as a remote possibility, that his head had not been crushed in the murderous impact of steel against concrete or that he did not die as a result of that injury, even as “[i]t [could] be argued in the realm of uninhibited conjecture that the victim of an assassin’s bullet might have died of a heart seizure before the bullet penetrated his chest.” Kotal v. Goldberg, 375 Pa. 397, 100 A.2d 630, 633. See Bone v. General Motors Corp., Mo., 322 S.W.2d 916, 922, 71 A.L.R.2d 361. But, harking back to what we have read and said previously concerning circumstantial evidence, we are of the opinion that the facts and circumstances shown in evidence reasonably permitted the inference and finding that the described occurrence was the proximate cause of Fellows’ death. Moreover, the record indicates that upon trial defendant’s counsel treated Fellows’ death by reason of his traumatic injuries as an uncontroverted fact, so he is in poor position to complain now because this was not established by direct evidence. Silverstein v. St. Louis Public Service Co., Mo., 295 S.W.2d 37, 39(1).

The third assignment directed to plaintiff’s instruction 1 is that it submitted the case under the res ipsa doctrine “without requiring the jury to find facts which would show that the defendant possessed superior knowledge of the occurrence * * Not having been presented by specific objection either at the time of trial or in the motion for new trial, this assignment now asserted for the first time in defendant’s brief will not be considered and ruled here. However, it may be noted in passing that instruction 1 closely followed the suggestions in Harke v. Haase, 335 Mo. 1104, 1111, 75 S.W.2d 1001, 1004, concerning the form and content of plaintiff’s, instructions in a res ipsa case.

Defendant’s final point is that the giving of plaintiff’s measure-of-damages instruction 2 constituted reversible error “because there was no evidence from which the jury could have found plaintiff sustained any pecuniary loss as a result. of her husband’s death * * In pressing this point, counsel overlook plaintiff’s testimony that her husband was paid $188 per month; that, by reason of his military status, she was receiving “an allotment” of .$156.90 per month which terminated upon his death; that he had supported her since the date of their marriage; and that, at the time of his death, he “was contributing his earnings” to her support. Wholly aside from this positive evidence, a husband is under a legal duty to support his wife; and, in the absence of evidence on this •subject, the law would indulge the presumption that a deceased husband had discharged that legal duty. Defendant’s attack upon instruction 2 is without merit.

Finding no reversible error in any respect assigned, the judgment for plaintiff as affirmed.

RUARK, P. J., and HOGAN, J., concur.

      . Martin v. First National of Independence Co., Mo., 372 S.W.2d 919, 924(4); Golian v. Stanley, Mo., 334 S.W.2d 88, 93(8); Layton v. Palmer, Mo., 309 S.W.2d 561, 564(2), 66 A.L.R.2d 1242; Clark v. Linwood Hotel, 365 Mo. 982, 986, 291 S.W.2d 102, 104(1); Warner v. Terminal R. Ass’n. of St. Louis, 363 Mo. 1082, 1091, 257 S.W.2d 75, 79(1); Cudney v. Midcontinent Airlines, 363 Mo. 922, 928, 254 S.W.2d 662, 665(4); Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 595, 216 S.W.2d 78, 81(6); McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641.

      . See Lindsey v. Williams, Mo., 260 S.W.2d 472, 474(1), certiorari denied 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063; Dodson v. Maddox, 359 Mo. 742, 223 S.W.2d 434, 438(7); Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471, 477(12); Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1002-1003(1, 3); Wells v. Asher, Mo.App., 286 S.W.2d 567, 568; Adams v. Le-Bow, 236 Mo.App. 899, 160 S.W.2d 826, 828(3); Vesper v. Ashton, 233 Mo.App. 204, 118 S.W.2d 84, 87(2). There is no intimation in the record or suggestion , by counsel that another vehicle was involved. State ex rel. and to Use of Bran-cato v. Trimble, 322 Mo. 318, 18 S.W.2d 4, 5(6); Boresow v. Manzella, Mo., 330 S.W.2d 827, 832.

      . Appelhans v. Goldman, Mo., 349 S.W.2d 204, 207(5, 6); Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539 (4, 5); DeMoulin v. Roetheli, 354 Mo. 425, 189 S.W.2d 562, 565(3); Steeley v. Kurn, 348 Mo. 1142, 157 S.W.2d 212, 213 (4); Doyle v. St. Louis Merchants’ Bridge Term. Ry. Co., 326 Mo. 425, 31 S.W.2d 1010, 1012(4), certiorari denied 283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1435; Turner v. Yellow Cab Co. of Springfield, Mo.App., 361 S.W.2d 149, 154-155(1); Edmisten v. Dousette, Mo.App., 334 S.W.2d 746, 753, and cases collected in footnote 13; Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 42(1); Vosburg v. Smith, Mo.App., 272 S.W.2d 297, 302 (9).

      . Spaur v. Hayes, W.Va., 126 S.E.2d 187 (5); Takataro Shiba v. Weiss, 3 Utah 2d 256, 282 P.2d 341(1); Koob v. City of Lansing, 321 Mich. 150, 32 N.W.2d 373 (2); Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389, 390, 392(6); Kimberly v. Reed, 79 Ga.App. 137, 53 S.E.2d 208, 214(8); Pettigrew v. Branch, 101 Ga.App. 534, 114 S.E.2d 391, 393; Cowgill v. Boock, 189 Or. 282, 218 P.2d 445(8), 19 A.L.R.2d 405. See also MacGregor v. Bradshaw, 193 Va. 787, 71 S.E.2d 361(4); State v. Ewing, 250 Minn. 436, 84 N.W.2d 904(1, 8) ; Shaughnessy v. Morrison, 116 Conn. 661, 165 A. 553(1); Fuller v. Bailey, 237 S.C. 573, 118 S.E.2d 340; Stegall v. Sledge, 247 N.C. 718, 102 S.E.2d 115(3, 8); Ross v. Griggs, 41 Tenn.App. 491, 296 S.W.2d 641(3); Moore v. Watkins, 41 Tenn.App. 246, 293 S.W.2d 185; Burkett v. Johnston, 39 Tenn.App. 276, 282 S.W.2d 647, 649-650.

      . For the factual and legal background of defendant’s appointment as administrator, see In re Norman’s Estate, Mo.App., 347 S.W.2d 908, and State ex rel. Farmer v. Allison, Mo.App., 359 S.W.2d 245.

      . See cases cited in note 1, supra.

      . Similarly, in Smith v. Hollander, 85 Cal.App. 535, 259 P. 958, 960, quoted with approval in Harke v. Haase, 335 Mo. 1104, 1109, 75 S.W.2d 1001, 1003, and in Tabler v. Perry, 337 Mo. 154, 166, 85 S.W.2d 471, 477, it was said that “[t]he one in control of the instrumentality causing the injury is or should be in a position to know” the cause of the occurrence.

      . Weller v. Worstall, 50 Ohio App. 11, 197 N.E. 410, 413, affirmed 129 Ohio State 596, 196 N.E. 637; Haasman v. Pacific Alaska Air Express, D.C.Alaska, 100 F.Supp. 1, affirmed De Marais v. Beckman, 9th Cir., 198 F.2d 550, certiorari denied 344 U.S. 922, 73 S.Ct. 388, 97 L.Ed. 710; annotation 79 A.L.R.2d 6, 41-42; Prosser on Torts (2nd Ed.), § 42, loc. cit. 209 ; 65 C.J.S., Negligence, § 220(5), loc. cit. 1002. In this connection, see the cases collected in annotation 79 A.L.R.2d loc. cit. 42, in which the driver’s death was not even mentioned as a factor bearing upon application of the res ipsa doctrine.

      . Grimm v. Gargis, Mo., 303 S.W.2d 43, 51(13), 74 A.L.R.2d 599; Burgdorf v. Keeven, 351 Mo. 1003, 174 S.W.2d 816, 819(1); Findley v. Johnson, Mo., 142 S.W.2d 61, 67(9); Elsea v. Smith, 273 Mo. 396, 408, 202 S.W. 1071, 1073; Deichmann v. Aronoff, Mo.App., 296 S.W.2d 171, 181(13); Boggess v. Cunningham’s Estate, Mo.App., 207 S.W.2d 814, 818 (3, 4).

      . Weiermueller v. Scullin, 203 Mo. 466, 472, 101 S.W. 1088, 1090; Eyermann v. Piron, 151 Mo. 107, 115, 52 S.W. 229, 231; Birdsong v. Estate of Ladwig, Mo. App., 314 S.W.2d 471, 476(5); Kneuven v. Berliner's Estate, Mo.App., 54 S.W.2d 494, 500(9); Ford v. McLain, 164 Mo.App. 174, 179, 148 S.W. 190, 192(3). See also Martin v. Jones, 59 Mo. 181, 187; B. F. Goodrich Rubber Co. v. Bennett, 222 Mo.App. 510, 514, 281 S.W. 75, 77(14, 15).

      . Herke v. St. Louis & S. F. Ry. Co., 141 Mo.App. 613, 617-618, 125 S.W. 822, 823(2, 3); Buesching v. St. Louis Gas Light Co., 73 Mo. 219, 229-230; Wiese v. Remme, 140 Mo. 289, 297-298, 41 S.W. 797, 799(1); Chapman v. Bimel-Ashcroft Mfg. Co., Mo., 263 S.W. 993, 996 (3). See Wyckoff v. Davis, Mo., 297 S.W.2d 490(5); Voelker v. Hill-O’Meara Const. Co., 153 Mo.App. 1, 8, 131 S.W. 907, 909(1).

      . V.A.M.R. Rules 79.03 and 70.02; Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609 (10-13); Duffendack v. St. Louis Public Service Co., Mo.App., 365 S.W.2d 52, 54 (4); M.F.A. Cooperative Ass’n. of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 288(11); Grimes v. Standard Oil Co., Mo.App., 370 S.W.2d 627, 638(22).

      . O’Hara v. Lamb Const. Co., 200 Mo.App. 292, 301, 302, 206 S.W. 253, 255 (7), 256; Steinmetz v. Saathoff, Mo.App., 84 S.W.2d 434, 437(5, 6). See Samo-hoviec v. American Mfg. Co., Mo.App., 218 S.W. 684(2); Smith v. Simpson, 221 Mo.App. 550, 558, 288 S.W. 69, 73.


author: BROAD DUS, Presiding Judge.

text:
    Joseph T. ELROD, Plaintiff-Respondent, v. LAFAYETTE ELEVATOR COMPANY, Defendant-Appellant.
    No. 23911.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.

      Roy F. Carter, Kansas City, for appellant.
    Piedimonte & Cochran, William Piedi-monte, Thomas D. Cochran, Independence, for respondent.
   BROAD DUS, Presiding Judge.

This case originated when plaintiff filed a petition for damages in the Circuit Court of Jackson County, Missouri, at Independence on February 7, 1958, against Lafayette Farm Supply, Inc., and Henry Brocket. He alleged that he was involved in a motor vehicle accident in Jackson County, Missouri, on October 3, 1955, between a vehicle he was operating and one that was being operated by defendant, Henry Brocket. He alleged that defendant, Henry Brocket, was the agent and servant of defendant Lafayette Farm Supply, Inc. He alleged that he sustained certain injuries and property damage as a result of said collision.

Service thereafter was attempted on Henry Brocket at his usual place of abode in Lafayette County, Missouri, by the sheriff of Lafayette County. Brocket filed a motion to quash the sheriff’s return, and this case was later voluntarily dismissed as to him.

Defendant, Lafayette Farm Supply, Inc., filed its answer to plaintiff’s petition in which it denied the allegations of agency between it and the defendant, Henry Brocket.

Thereafter, on November 4, 1960, plaintiff filed his first amended petition against Lafayette Farm Supply, Inc., only again alleging that Henry Brocket was the agent and servant of the defendant Lafayette Farm Supply, Inc. That defendant filed its answer to plaintiff’s first amended petition denying the allegations of agency between it and Henry Brocket.

Thereafter, in answer to a request for admissions propounded to it, Lafayette Farm Supply, Inc., denied that Henry Brocket was its agent, servant and employee.

Thereafter, on December 5, 1960, plaintiff filed his second amended petition for damages, adding as parties defendant, Lafayette Transport Company and Lafayette Elevator Company. Lafayette Farm Supply, Inc., filed its answer to plaintiff’s second amended petition in which it continued to deny the allegations of agency between it and Henry Brocket.

Lafayette Transport Company and Lafayette Elevator Company filed their motion to dismiss the action as to them on the grounds that plaintiff’s petition showed on its face that it was an action for personal injuries arising out of an automobile accident that occurred on October 3, 1955, and that plaintiff’s second amended petition was filed December 5, 1960, which was more than five years after plaintiff’s cause of action accrued, and was barred by the statute of limitations, V.A.M.S. § 516.120. This motion was sustained by the court on February 25, 1961, and plaintiff was given ten days in which to file an amended petition. This time was extended several times until June 15, 1961, at which time the plaintiff voluntarily dismissed his second amended petition against Lafayette Transport Company and Lafayette Elevator Company.

On June 16, 1961, plaintiff filed a motion to correct the misnomer in the defendant’s name by substitution of the word “Elevator” for the words “Farm Supply, Inc., in plaintiff’s second amended petition. On June 30, 1961, in the absence of defendant’s attorney and without hearing evidence, this motion was sustained.

Thereafter, Lafayette Elevator Company appeared specially and filed its motion to dismiss stating that the action of the court in allowing plaintiff to correct a misnomer was done without notice to the Lafayette Elevator Company and was done more than five years after plaintiff’s cause of action arose, and was thus barred by the statute of limitations. Lafayette Elevator Company further set out that it had never been served with summons or a copy of the petition as required by law; that an attempt had been made to make it a defendant theretofore; that the action had been dismissed as to Lafayette Elevator Company on the grounds that the action was barred by the statute of limitations; that this action of the court had never been set aside and was a bar to further proceedings concerning this question; that correcting a misnomer was an attempt to state a cause of action against Lafayette Elevator Company after the expiration of five years and was barred by the court’s action in dismissing this action as to Lafayette Elevator Company and that Lafayette Elevator Company had never been notified since the court’s action in dismissing plaintiff’s petition as to it that it was a party to this lawsuit, and had not been afforded an opportunity to object thereto. This motion of Lafayette Elevator Company was by the court overruled and after an abortive attempt to obtain prohibition which was denied by the Supreme Court on the ground “that remedy by appeal is adequate”, Lafayette Elevator Company appeared specially and filed its answer to plaintiff’s petition in which it stated that it had never been served with summons or copy of petition; that there was no misnomer in plaintiff's second amended petition; that the action of the court in allowing the plaintiff to substitute “Elevator” for “Farm Supply, Inc.,” was without notice to Lafayette Elevator Company, and without affording it an opportunity to object, and without evidence to support the claim of misnomer and amounted to an unlawful substitution of parties; that the court had theretofore dismissed the action as to Lafayette Elevator Company on the grounds that the action was barred by the statute of limitations; that this action was never set aside and was a bar to further proceeding in this regard and was Res Judicata, and that any action against Lafayette Elevator Company was barred by the statute of limitations.

Thereafter, this case was tried resulting in a verdict and judgment for plaintiff, from which judgment the defendant has appealed.

Appellant contends that the trial court erred in sustaining respondent’s motion to correct a misnomer in respondent’s second amended petition and overruling appellant’s motion to dismiss because: The correction of the alleged misnomer amounted to a substitution of parties defendant, was a correction of a pleading, itself filed after the statute of limitations had run.

On June 30, 1961, the Court sustained respondent’s motion and substituted the word “Elevator” for the words “Farm Supply, Inc.,” in plaintiff’s second amended petition. The plaintiff’s second amended petition was filed on December 5, 1960, which was more than five years after the happening of the accident alleged therein on October 3, 1955. No action was taken, nor was any asked for in connection with plaintiff’s original petition, first amended petition, the summons, nor the return of the Sheriff. Thus, an amendment to plaintiff’s second amended petition still leaves the plaintiff without the statute of limitations because such amended petition was filed after the statute had run. It was held in Bruun v. Katz Drug Company, Inc., et al., 359 Mo. 334, 221 S.W.2d 717, 1. c. 718:

“Where a plaintiff files an amended petition bringing into the case new defendants, and if between the time of the commencement of an action and the time when new defendants are brought into the case the period of limitation prescribed by law for such an action has expired, the new parties may plead the statute as a bar of their liability, although the defense may not be available to the original defendants, Jaicks v. Sullivan, 128 Mo. 177, 30 S.W. 890. It follows that appellant’s contention that there is no new cause of action •stated in the supplemental petition but a continuing cause of action bringing in facts and circumstances occurring after the filing of the original petition and therefore the running of the statute of limitations is tolled is without merit. * sj: * ”

In the instant case, the plaintiff has substituted one corporation for another, i. e. Lafayette Elevator Company for Lafayette Farm Supply, Inc. That these are •separate corporations and known by the plaintiff to be separate corporations is shown by plaintiff’s second amended petition in which he sued Lafayette Farm Supply, Inc., Lafayette Elevator Company and Lafayette Transport Company and obtained service on all three companies. It goes without ■saying that two different corporations are in the eyes of the law, two different persons. In Daiprai v. Moberly Fuel and Transfer Company, 359 Mo. 789, 223 S.W.2d 474, the plaintiff filed an amended petition changing the name of the defendant from certain individuals sued as co-partners operating under the name of “Moberly Fuel and Transfer Company” to a corporation by that name. In that case the Court quoting from Thompson v. Allen, 86 Mo. 85, 88, said, 1. c. 476 of 223 S.W.2d:

“The fact that the name of the corporation was the same as that of the (partnership) firm, and that the stockholders therein were the members of the firm, can make no difference. In the eye of the law, the firm and the ■corporation are two different persons.”

And went on to hold:

“We think it is plain that there was a substitution if a new party defendant (the corporation) for and in the place of the individuals originally sued. Where the amendment is deemed substitution, or entire change of parties, it will not be allowed.”

In the instant case there is not even an identity in names such as in the cited case and two separate corporations are involved.

In Haney v. Thomson, 339 Mo. 505, 98 S.W.2d 639, the plaintiff sued “Thomson Brothers’ Rock Company, a corporation”, and after the running of the statute of limitations amended his petition to correct the allegation that Thomson Brothers’ Rock Company was a corporation and set out that the company was a partnership composed of certain individuals, and inserted their names as doing business under that name. No new service was acquired and it was claimed that certain pleadings in the case constituted an entry of appearance. After reviewing several decisions the Court held, 1. c. 644 of 98 S.W.2d:

“It has been seen that mere procedural or amendable defects arising in the orderly functioning of courts of record in their disposition of proceedings over which, and of the parties thereto, they are possessed of jurisdiction ; that is, of the right to proceed in due course to final judgment. Such jurisdiction is, of course, vital. This mere right of amendment to correct defects is casual, of far less importance, and is curable under the provisions of section 819 R.S. of Mo. 1929, § 819, p. 1077; but this section has no application to this case. Lack of jurisdiction is incurable and spells death to the cause sought to be maintained without it. We hold that in the former case the circuit court did not acquire jurisdiction of these respondents prior to the time they were brought in by process directed against them individually.”

Thus it is seen that the statute of limitations continues to run against a substituted party until it is brought in by process. In the instant case, no such process has been served upon Lafayette Elevator Company, and an attempt to substitute it for the entirely different corporation Lafayette Farm Supply, Inc., is ineffective because it is a separate corporation and because such substitution was sought to be done after the statute of limitations had run.

Respondent asserts that appellant could not have entered its appearance, pleaded to the merits and tried the instant case without waiving the question of jurisdiction.

The appellant raised the question of the Court’s jurisdiction at its first opportunity in its motion to dismiss. When that was overruled, out of an over-abundance of caution, it applied to the Supreme Court for prohibition, which was denied by that Court on the ground that remedy by appeal was adequate. Whereupon, appellant appeared specially, and filed its answer reasserting the grounds which had been set out in its motion to dismiss.

Rule 55.31 of the Rules of Civil Procedure, V.A.M.R. provides that the following objections, among others, may be raised by motion: Lack of jurisdiction over the subject matter; lack of jurisdiction over the person; insufficiency of process; and insufficiency of service of process.

Rule 55.37 provides:

“A party who makes a motion may join with it the other motions provided for and made available to him. No objection is waived by being joined with one or more other objections in the motion, nor shall pleading over or entering into the trial of the merits be deemed to waive any objection properly raised by motion.” (Emphasis ours.)

State ex rel. Ballew v. Hawkins, Mo.App., 361 S.W.2d 852, 1. c. 858, in construing these rules, holds:

“But the new code has considerably lightened the burden of one who wishes to question the jurisdiction. A party may now join his objection to jurisdiction with any other motion now available, and a pleading over does not waive any objection properly raised by motion.
?}í * ‡ ‡
“Certainly the defendant did not intend by such motion to enter his appearance or to do other than file a pleading requesting the court not to proceed with the cause because of lack of jurisdiction to so proceed. (Court’s emphasis.)
í|í iji if* ifc Jfc
“We are of the opinion that the defendant appeared only to the extent of requesting determination of the right of the court to proceed with the case and no further. To hold otherwise would be to open the door to a vitiation of the intent and purpose of our process and venue statutes by means of bringing suits, getting the defendant into court in order to protest jurisdiction to proceed, and then fastening upon him the grip of his own unintended waiver. We think this is contrary to the purposes of the code.” (1. c. 859).

This, the appellant has sought to do in the instant case. The question of the Court’s jurisdiction over it was raised in its first pleading and has been raised at every opportunity since then.

We have examined the cases relied upon by respondent. They were all decided prior to the adoption of our new code.

The judgment is reversed.

All concur.


author:
SPERRY, Commissioner.
      PER CURIAM.

text:
    GROVES BROS. & COMPANY, a Missouri Corporation, Plaintiff-Respondent, v. Elyzabeth H. SCHELL, Defendant-Appellant.
    No. 23928.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964

      Robert E. Coleberd, Hale, Coleberd, Kin-caid & Waters, Liberty, for appellant.
    Loomis & Lacy, Kansas City, for respondent.
   SPERRY, Commissioner.

This suit was instituted by plaintiff, a Missouri Corporation engaged in the real estate business, against Fred and Elyza-beth Schell, husband and wife, defendants, to recover the reasonable value of services rendered to them in procuring a 99 year .lease on their property for a rental of $3,-600.00 per year. Upon motion, the cause was dismissed as to Fred P. Schell, and the jury returned a verdict of $4,000.00 in favor of plaintiff and against Elyzabeth H. Schell, known herein as defendant. From a judgment thereon, defendant appeals.

It is alleged in the petition that the Schells are the owners of certain parcels of land located at the southeast corner of 14th and Cherry Streets, Kansas City, Missouri; that at their instance, and on their behalf, plaintiffs procured for them a 99 year lease on said property, for a consideration of $3,600.00 per year; that they have accepted the lease and are enjoying its benefits; that the reasonable value of the services rendered is the sum of $4,053.92; that demand for payment thereof has been made and that payment has been refused.

The Schells admitted ownership of the property and the identity of the plaintiffs, but denied all other allegations of the petition.

Mr. Wells, an employee of plaintiff, stated that Mr. Huttig, Mrs. Schell’s brother, came to plaintiff’s office and talked with him about the property; that they had many conversations about this property; that Wells contacted various owners of property in that area; that this was in 1961; that Mr. Dehner contacted witness with a view to assembling various parcels of real estate at this location for the construction of a building; that witness contacted Mr. Lillis who represented owners of other property in the vicinity; that he talked to Mrs. Schell in the office of her attorney, Mr. Hale, at Liberty, December 4, 1961;. that plaintiff then had two parties interested in the property; that Mr. Hale, Mrs.. Schell, Mr. Huttig, and Mr. Groves, president of plaintiff, all participated in the conversation; that he asked Mrs. Schell for an exclusive contract for the sale of the property; that she refused to sell but stated that she would lease it; that he then asked her for an exclusive contract for leasing; that Mr. Hale advised against execution of such an exclusive contract until the highway department should make an offer of damages for the taking of a portion of the land as right of way; that he then asked for a letter showing that plaintiff had authority to lease the land for defendant; that a letter, signed by Mr. Hale and Mrs. Schell, dated January 24, 1962, was received. In the letter it was stated that if defendant, within 60 days thereafter, should desire to make a long term lease on the property and should receive an acceptable offer thereon, plaintiff would be notified thereof and if, within 30 days thereafter, plaintiff’s customer should meet the terms, a contract thereon would be entered into; that, thereafter, he talked to defendant by telephone and a conference between her, witness, and Mr. Lillis was held in the office of Mr. Hale, where it was agreed that she would lease at 6% return on a valuation fixed by an appraiser to be agreed on; that, eventually, a lease to Mr. Lillis for 99 years was agreed on, at a rental of $120.00 per month during the first 18 months, and at $300.00 per month thereafter; that it was agreed that Mr. Lillis should raze the buildings ■on the property and level the land; that he was to post a $2,000.00 bond to protect defendant in this operation; that defendant authorized Wells to supervise that operation for her; that, later, Mr. Groves drew the lease contract and it was executed by the parties; that witness was authorized by defendant to collect from Lillis and to remit to her, certain rentals and tax moneys, which was done; that, in one telephone ■conversation with defendant, before the lease was executed, witness told her that it had been a difficult job to get the deal through, and that she said: “well you’ll get a commission out of it”, and that witness said: “that’s right.”

Mr. Lillis, who is in the real estate and insurance business, stated that he entered into a 99 year lease on the property owned by Mr. and Mrs. Schell on the terms mentioned herein; that he first learned from Mr. Wells that the property was available for lease; that he discussed the terms and •conditions of the lease with Mrs. Schell; that Mr. Hale and Mr. Wells were present; that it was then agreed that he should take possession of the property when the lease should be executed; that, later, it was agreed that he should take possession 15 days prior to the date of the lease. He identified a letter, dated August 21, 1962, from Mr. Hale to him authorizing him to take possession upon payment of certain rental and tax money, totalling $311.32, to be paid to Mr. Wells for defendants. The letter was signed “Francis G. Hale and Elyzabeth H. Schell”.

Mr. Groves, president of plaintiff corporation, and a lawyer, stated that he had long been acquainted with the Schells; that he participated in a conference, in Mr. Hale’s office, December 4, 1961; that those present were Mrs. Schell, Mr. Huttig, Mr. Wells, and Mr. Hale; that Mr. Huttig, Mrs. Schell and Mr. Hale all participated in the conversation; that the subject of the conference was the sale or leasing of the Schell property; that plaintiff requested an exclusive contract for the sale or lease of the property; that Mr. Hale advised against execution of such a contract until they had finished their transaction with the highway department; that no objection was made to the giving of an exclusive contract to plaintiff to deal on the property; that plaintiff continued to work on the deal until the lease was executed in November of 1962; that the lease was drawn by the witness; that he spent 15 days working on it; that the drafting of such a lease is a complicated and difficult undertaking; that, from experience and knowledge gained in the real estate field, plaintiff’s services, in bringing about the final execution of the lease, is reasonably worth $4,-000.00.

There was other testimony to the effect that the services rendered by plaintiff were of the reasonable value of $4,000.00.

Defendant contends that no submissible case was pleaded or proved. In view of the jury verdict we will accept as true all the facts in evidence that tend to support the verdict for plaintiff and reject all facts contrary thereto; we will draw from the facts all reasonable inferences favorable to and in support of plaintiff’s right to recover. Steele v. Woods, Mo.App., 327 S.W.2d 187, 191.

Plaintiff’s petition states a good cause of action in quantum meruit, Sprague v. Sea, 152 Mo. 327, 332, 53 S.W. 1074; Crain v. Miles, 154 Mo.App. 338, 344—345, 134 S.W. 52; Lewis v. Thompson, 231 Mo.App. 321, 96 S.W.2d 938-942. Those decisions are authority for the proposition that where one acts as a mere volunteer, he is not entitled to compensation for his services; but where one performs services for another at his instance and request, or where an act done is beneficial the subsequent assent of the beneficiary will be sufficient evidence from which the jury will be authorised to find that such act was done upon defendant1 s request; and such proof makes a prima facie case.

The evidence was that Mrs. Schell’s brother, Mr. Huttig, first contacted Mr. Weils regarding this property; that Mr. Huttig officed in the Schell real estate office; that he and Mr. Wells discussed the matter frequently; that he was present at the conference in Mr. Hale’s office where the matter of leasing the property was discussed ; and that both Mr. Huttig and Mrs. Schell participated in the conversation, as did Mr. Hale, defendant’s attorney. Plaintiff asked for and received a letter, signed by Mr. Hale as attorney for Mrs. Schell, authorizing plaintiff, subject to stated conditions, to produce a lessee. Mr. Hale advised defendant not to give plaintiff an exclusive contract to lease the property until negotiations with the highway department were completed. It is significant that neither Mr. Hale nor Mrs. Schell voiced any objection to the giving of an exclusive contract, but that, upon advice of counsel, defendant merely refused to give it pending highway negotiations. The Schells are in the real estate business and maintain an office in that connection. Mr. Huttig officed there and carried a document from defendant to Mr. Wells in connection with this transaction. Mrs. Schell authorized Mr. Wells to generally supervise for her the razing and levelling of the land here involved. She also authorized him to collect certain money due her from the lessee, and to remit same to her, which he did. She executed the lease, procured for her by plaintiff, after more than a year of effort upon the part of Mr. Groves and Mr. Wells. She accepted the work product of Mr. Groves in drafting the lease. In short, she accepted and retains the benefits of plaintiff’s services. “[T]he circumstances surrounding the transaction do not show the services were to be gratuitous”. Crain v. Miles, supra. To the contrary, the jury could have inferred that there was an implied contract between defendant and plaintiff for plaintiff’s services in procuring a lessee, and for the payment to plaintiff of the reasonable value of such services. Lewis v. Thompson, supra, 98 S.W.2d 943.

There is no evidence tending to indicate that defendant believed plaintiff was employed by Mr. Lillis, a suggestion appearing in this case for the first time in defendant’s brief. No such suggestion appears in the answer, and no evidence thereof was before the jury in the trial court. Even if it could be said that there was evidence from which the jury could have drawn such an inference, the jury did not do so. There was ample evidence from which it could have drawn the inference that defendant had orally contracted with plaintiff for the services which it rendered, and the jury found such to be the fact. Mabes & Co. v. Fishman, Mo.App., 284 S.W.2d 21, 26-27; Arthur L. Kniffen Real Estate Co. v. Accardi, Mo.App., 365 S.W.2d 84—87; Davis v. Geiger, Mo.App., 212 S.W. 384, 386, (P. 1).

Defendant charges that plaintiff’s verdict directing instruction No. 1, is erroneous for the reason that it required the jury to find that there was an oral contract of employment between defendant Elyzabeth Schell and plaintiff, which finding is not pleaded nor supported by evidence. The criticism is unjustified.

It is next urged that the instruction does not contain the hypothesization to be found by the jury which is necessary. A verdict directing instruction must hypothesize all of the elements of plaintiff’s case essential for him to recover. Steele v. Woods, supra, 327 S.W.2d 200. The instruction requires that the jury find the employment of plaintiff by defendant to lease the property, that plaintiff first solicited Mr. Lillis as a lessee and brought his name to defendant as a prospective lessee and that Mr. Lillis did lease the property from defendant. Those are the essential facts required to be found in this case.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

All concur.