author: BRADY, Commissioner.

text:
    David K. MURPHY and Norma C. Fritz, Widow of William R. Fritz, Deceased, Plaintiffs-Respondents, v. BUSCHMAN-JENNINGS, INCORPORATED, and C. W. Buschman, Defendants, Buschman-Jennings, Incorporated, Defendant-Appellant.
    No. 31684.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.

      Flynn, Parker & Badaracco, Joseph L. Badaracco, St. Louis, for defendant-appellant.
    Walter L. Brady, Jr., St. Louis, for plaintiffs-respondents.
   BRADY, Commissioner.

This appeal is from a judgment in the amount of $1,043.25 entered after jury trial in favor of the respondents, hereinafter referred to as plaintiffs, in an action brought by them to enforce an alleged oral agreement enabling plaintiffs to qualify and receive a bonus under a plan instituted by the appellant, hereinafter referred to as the defendant.

The plaintiffs’ petition originally named the defendant and C. W. Buschman, defendant’s president, as co-defendants. Plaintiffs alleged that they entered into an “ * * oral agreement with defendants whereby they were to receive from defendants a bonus commission equal to fifteen (15%) percent of the total joint profits earned by the defendants on all insurance policies and surety bonds produced or written by plaintiffs, * * * ” provided such profits exceeded the sum of $5,000 during the calendar year 1958; that the plaintiffs jointly produced business of this type which resulted in a net profit in 1958 for defendant in the sum of $6,955.00; and that as a result the plaintiffs were entitled to receive the sum of $1,043.25. The petition also contained the usual allegations regarding demand upon the defendants and the refusal of the defendants to pay the sum alleged due plaintiffs. The defendants filed a joint answer in the .form of a general denial and also raising the contention that the oral agreement alleged in plaintiffs’ petition was unenforceable for the reason that it falls within the Statute of Frauds.

Taken in the light required of us by virtue of the jury’s verdict, the facts are that the plaintiffs had worked for the defendant for several years prior to the alleged oral agreement. Defendant’s bonus plan went into effect in 1958. Early in 1958 (the exact date does not appear) the plaintiffs determined to form a joint account so that all the amounts due to either plaintiff from the defendant were to be credited to one account to be known as the Fritz-Murphy commission account. They discussed this action with Mr. Buschman, defendant’s president and chief executive officer. As a result of this discussion they wrote Buschman a letter which was received in evidence over defendant’s objection that it was self-serving and immaterial. This letter, Exhibit 1, referred to plaintiffs’ decision to consolidate their accounts and stated their reasons for that decision. The consolidation agreement between the plaintiffs was referred to in the letter and a copy was attached. The pertinent portions of the letter were the reference to defendant’s indicated acceptance of this consolidation and the request that it be effective as of January 1, 1958. A copy of this letter was sent to L. H. Trout, defendant’s secretary-treasurer. The plaintiff Murphy testified that the defendant consolidated plaintiffs’ accounts a “very short time” after the occasion of this letter and that Buschman informed him they were qualified for the bonus.

The plaintiffs were given monthly statements of their accounts and when Murphy was asked to testify as to the amount of defendant’s profit in 1958 attributable to the Fritz-Murphy account, counsel for defendant objected on the grounds that the records would be the best evidence. This objection was sustained. Plaintiffs’ counsel attempted to reach this issue by other questioning and upon each occasion was prevented doing so when the trial court sustained defendant’s objections. The following testimony there appears: “Q (by Mr. Brady) : Mr. Murphy, have you been advised by Mr. Buschman and the auditors of that concern, Buschman-Jennings, as to the amount of that account? A Yes, sir. Q What was that? MR. BADARACCO: Well, your Honor, I will object. The records themselves are the best evidence. THE COURT: Well, I don’t know about the auditors but you have mentioned by Mr. Buschman, who I understand is a party defendant. MR. BRADY: That’s correct. THE COURT: I will overrule that objection if he is going to testify as to what Mr. Buschman informed him. Is that what you are— MR. BADARACCO: Your Honor, pardon me. Let me make this additional objection that — I understand that it’s being permitted in view of the fact it was a statement by one of the defendants, is that correct, sir ? THE COURT: Yes. MR. BADARACCO: I would like to make this objection for the record that if there’s no case made against this defendant that the evidence that the witness is about to give be stricken for that reason. THE COURT: Of course, I will have to rule on that when it comes up. At this time he can testify as to what Mr. Buschman told him. Q (by Mr. Brady) : How much did he tell you that the earnings were ? A That the overriding profit of the Fritz-Murphy account was $6,955.00, some odd cents, * The defendant then moved that this testimony * * * be stricken for the reason that the records themselves that were given him, the plaintiff, are the best evidence.” This motion was denied.

In January and again in February of 1959 the plaintiffs had further discussions with Mr. Buschman regarding this bonus arrangement. During the January meeting Buschman told the plaintiffs that the defendant’s board of directors “ * * * felt that he should not have entered into this agreement and that the payment was being held up, but that he had made the agreement with us as president of the agency.” With regard to the later discussion with Buschman Murphy testified that, “He told me his Board still would not authorize or approve him paying this bonus and that he was still going to try and pay it and if not he would pay it personally.” However, Murphy further testified that the plaintiffs were paid their regular commissions by the company; that they never received any compensation from Mr. Buschman personally and that they had looked to the corporation and not to Buschman for the bonus payment.

During cross-examination Murphy was asked the following question and gave the following answer: “Q Now this agreement you claim was entered into, how long was it to last? A Indefinitely.” Upon this evidence being elicited counsel for the defendant urged the trial court that this agreement was in violation of the Statute of Frauds and moved for a dismissal which motion the trial court denied.

The plaintiffs also offered the testimony of Mr. Trout, who left his position with defendant in 1959 as a result of a dispute with Mr. Buschman concerning “general policies.” Mr. Trout stated that there was a bonus plan in existence in 1958 and that it went into effect “ * * * in the early part of 1958.” He testified that he received the letter directed by the plaintiffs to Mr. Buschman and that after receipt of the letter the plaintiffs’ accounts were consolidated for the entire year of 1958, and that the Fritz-Murphy account qualified for the bonus plan, although to his knowledge no bonus was ever paid to the plaintiffs. Trout discussed the matter of the consolidation of the plaintiffs’ accounts with Mr. Buschman after he received a copy of the plaintiffs’ letter directed to Mr. Busch-man. Other than to testify that Buschman acknowledged receipt of the letter and made no objection to the consolidation Trout knew of, no other testimony appears with reference to the discussion between Trout and Buschman. Attached to the original letter plaintiffs sent Buschman when it reached Trout was a memo from Buschman to Trout reciting that Murphy and Fritz had agreed to have a joint account and stating that he, Buschman, had directed the plaintiffs to see Trout. Trout sent a memo to Mr. Buschman in reply stating: “I believe it is your intention to answer the Fritz-Murphy letter dated March 3, ’58. Will you please send me a copy for my file.” Trout further testified that he never received a copy of a reply from Buschman to the plaintiffs and did not know whether any had been sent.

The defendant’s contentions with regard to alleged error in the giving of Instruction No. 1 do not require a full résumé of that instruction. It is sufficient to state that the jury was requested to find the parties entered into the oral agreement as alleged by plaintiffs and that this agreement existed for the year 1958, and were further instructed that “ * * * if you further find that the total profit figure of said account is $6,955.00 for the calendar year 1958, then your verdict shall be for the plaintiffs and against the defendant in the sum of $1,-043.25.”

The defendant did not offer any evidence. Motions for directed verdict were filed by defendant and by Mr. Buschman. The motion for directed verdict filed by the individual defendant Buschman was sustained and the motion with respect to the corporate defendant was denied.

The defendant’s contentions are: first, that the plaintiffs failed to prove the oral agreement alleged; second, that they failed to prove the amount of damages due; and third, that the oral agreement upon which the plaintiffs rely is in violation of the provision of the Statute of Frauds relating to contracts not to be performed within a year’s time.

The facts clearly refute the argument that the plaintiffs failed to prove the ■oral agreement which they alleged. Murphy testified there was such an agreement made between the plaintiffs and the defendant acting by its chief executive officer Buschman and that Buschman, in conversations held later, admitted he had made this agreement. The defendant’s brief is very sketchy as to this point, but it should be pointed out that defendant has not and does not now contend that Buschman lacked authority to enter into such an agreement.

In support of its contention that the plaintiffs failed to prove the amount of damages due, the defendant urges that there was no admissible evidence to support the figure of $6,955.00 as being defendant’s profit for 1958 from the plaintiffs’ consolidated account. That being so, defendant argues that it was error to hypothesize that figure in Instruction No. 1. It will be recalled that the only evidence to support this figure was that given by the plaintiff Murphy over defendant’s objection, when he was allowed to testify that this was the profit figure given him by Mr. Buschman. It will also be recalled that the defendant’s objection was based only and solely upon the grounds that this was not the best evidence. There has never been any contention that Buschman could not bind the defendant by such an admission. It is therefore unnecessary for this court to determine that matter, and we will rule only upon the contention that Murphy’s testimony is barred by the “best evidence rule.”

A statement of the “best evidence rule” may be found in Kennedy v. Boken Associates, Incorporated, Mo., 381 S.W.2d 39. Reference may also be made to the cases cited in that opinion and to 32 C.J.S. Evidence § 776 et seq. It will serve no useful purpose to set out the rule and comment upon its ramifications in this opinion, for the situation here presented is not one where the rule is properly applicable. Murphy’s testimony was not as to what profit figure appeared on the defendant’s records or on the monthly statements given the plaintiffs. In such case the records themselves would have been the “best evidence.” The question asked Murphy was whether he had been advised by Mr. Busch-man as to that figure. He stated that he had and he was then asked, “How much did he tell you that the earnings were ?” There were no records which would state what Buschman told him and accordingly the “best evidence rule” was inapplicable. It should be emphasized that the “best evidence rule” does not apply to parol evidence. That is to say, the rule does not apply so as to render inadmissible Murphy’s testimony on the grounds that it was not as conclusive and satisfactory as Buschman’s testimony would have been. 32 C.J.S., supra, §§ 782, 784, p. 710. It follows that Murphy’s testimony was not properly subject to the objection made and, that being the only contention raised as to it, must be considered as proof of defendant’s 1958 profit arising from the plaintiffs’ joint account.

While it has no specific bearing on the issues raised by defendant’s allegations of error, it should be noted the record discloses that the defendant did not renew its objection to this testimony which the trial court had admitted on the ground Busch-man was a party upon the trial court sustaining the motion to dismiss as to that defendant.

The defendant also contends that plaintiffs’ failure to introduce any testimony as to the sum of $1,043.25 constitutes a failure to prove the amount of damages due. Defendant does not deny that $1,043.25 is fifteen per cent of $6,955.00 but contends that there must be some evidence of the figure of $1,043.25; that is, that someone must testify that $1,043.25 was the amount due the plaintiffs. We cannot agree. The evidence was that the plaintiffs were to receive fifteen per cent of the profit figure of $6,955.00. The record discloses that the verdict form submitted to the jury contained this figure of $1,043.25 as did the plaintiffs’ verdict-directing instruction. In fact, in the instant case the computation of fifteen per cent of $6,955.00 was made for the jury, and all the jury had to do was check the computation recited in the instruction and in the verdict form. The jury is competent to make such an elementary mathematical computation. We find no reversible error in this omission in the evidence.

The defendant then contends that the oral agreement is unenforceable as falling within that provision of the Statute of Frauds (Section 432.010 RSMo 1959, V.A. M.S.) which requires agreement not to be performed within one year of their making to be in writing. In this regard the defendant relies upon the plaintiff Murphy’s testimony that the agreement they made was to last “indefinitely.” The defendant misconstrues the nature of the agreement and the requirements of the Statute of Frauds. The oral agreement sued upon was that they were to receive from defendants a bonus commission equal to fifteen per cent of the profits which the defendants earned from their endeavors provided such profits exceeded the sum of $5,000.00. The entire sense of the agreement was that this commission was to be figured on a yearly basis. It is well recognized that that provision of the Statute of Frauds requiring an oral agreement which may be performed within a year from its date is not within the Statute of Frauds, although performance is liable to occupy more than a year. McGuire v. Hutchison, 240 Mo.App. 504, 210 S.W.2d 521, app. transf. 356 Mo. 203, 201 S.W.2d 322. See also Suggett’s Adm’r v. Cason’s Adm’r, 26 Mo. 221; Scott v. Endicott, 225 Mo.App. 426, 38 S.W.2d 67; Beebe v. Columbia Axle Co., 233 Mo.App. 212, 117 S.W.2d 624. This agreement is not unenforceable due to the provision of the Statute of Frauds upon which defendant relies.

The defendant’s last allegation of error is that the trial court improperly admitted Exhibit 1, the letter from plaintiffs to Buschman, into evidence. As earlier indicated herein, the only portion of that letter that was directed to any issue in this case was the reference to the defendant’s lack of objection to the plan and the request that this consolidation be effective January 1, 1958.

Self-serving letters which have not been answered and which show no more than the fact of a controversy should not be admitted. Hussey v. Robison, Mo., 285 S.W.2d 603; Keeshan v. Embassy Inv. Co., Mo.App., 303 S.W.2d 666 at 699. However, each of the matters referred to in the letter was also the subject of testimony by Trout and by Murphy. Each of these witnesses testified that there was no objection voiced' to the consolidation; that it did in fact take place as alleged by plaintiffs; that it did become effective, by relation back, as of January 1, 1958; and that the plaintiffs did qualify for the bonus under this consolidation. Accordingly, the evidence in the letter was cumulative only, and its admission is not a prejudicial error requiring intervention on our part.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

WOLFE, Acting P. J., ANDERSON, J„ and R. KENNETH ELLIOTT, Special Judge, concur.

RUDDY, P. J., not participating.


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    William H. FERGUSON and Helen Ferguson, his wife, (Plaintiffs) Appellants, v. GULF OIL CORPORATION, a Corporation, (Defendant) Respondent.
    No. 31555.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.

      William G. O’Donnell, St. Louis, for appellants.
    Keefe, Schlafly, Griesedieck & Ferrell, William H. Ferrell, Francis L. Barkofske, St. Louis, for respondent.
   ANDERSON, Judge.

In this action plaintiffs William H. Ferguson and Helen Ferguson, his wife, sought a judicial declaration that certain real property owned by them was unencumbered by a written twenty-year lease given by them to Missouri State Oil Company. Defendant Gulf Oil Corporation in its answer denied plaintiffs’ claim and asserted it had succeeded to Missouri State Oil Company’s rights under said lease. The cause was tried to the court and resulted in a finding and judgment for defendant. Plaintiffs have appealed.

The case was tried on an agreed statement of facts, and the exhibits thereto attached. Said statement of facts reads as follows:

“1. The plaintiffs William H. Ferguson and Helen Fuergson are residents of the County of St. Louis and are and were husband and wife at all times material in this case. The defendant Gulf Oil Corporation is, and at all times material herein was, a Pennsylvania corporation authorized to do business in Missouri.
“2. The plaintiffs are, and at all times material herein were, owners of an interest in fee simple in real property located in the City of St. Louis, Missouri, and described as:
Lots 11, 12 and 13 of Shrewsbury Park Subdivision and in Block 5030 of the City of St. Louis, together fronting 150 feet on the North line of Lans-downe Avenue by a depth Northwardly of 129 feet 6 inches to the dividing line of said Block;
“3. On May 1, 1950, plaintiffs and Missouri State Oil Company, then a Missouri corporation, executed a written instrument entitled ‘Property Lease.’ Said Property Lease was recorded on June 1, 1950, in Book 6934, Page 583, in the Office of the Recorder of Deeds, St. Louis, Missouri. A copy of said leáse is attached hereto and made a part hereof as Exhibit 1.
“4. On May 1, 1950, the said Missouri State Oil Company and plaintiffs executed a written instrument entitled ‘Lease.’ Said lease was not recorded. A copy of said Lease is attached hereto and made a part hereof as Exhibit 2.
“5. Under date of May 1, 1950, the said Missouri State Oil Company and plaintiffs executed a certain written instrument entitled ‘Dealer Sales Contract.’ A copy of said Dealer Sales Contract is attached hereto and made a part hereof as Exhibit 3. Plaintiffs reserve the right to object to the admissibility of said instrument at the trial.
“6. On June 30, 1950, the said Missouri State Oil Company filed with the Secretary of State of Missouri Articles of Dissolution. Thereafter, by instrument dated July 6, 1950, and entitled ‘Distribution of Assets in Liquidation of Missouri State Oil Company/ the said Missouri State Oil Company transferred to Gulf Refining Company, a Delaware corporation, as one of the stockholders of the said Missouri State Oil Company, its assets including the aforesaid instruments (Exhibits 1, 2 and 3). Said instrument of transfer had attached to it Exhibits A through G, inclusive. A copy of said instrument of transfer with a part of Exhibit C attached is attached hereto and made a part hereof as Exhibit 4.
“7. On page 2 of the said Dealer Sales Contract (Exhibit 3) is agreement executed by plaintiff William H. Ferguson as dealer and the said Missouri State Oil Company and the said Gulf Refining Company pertaining to said Dealer Sales Contract.
“8. Under date of August 3, 1950, the said Missouri State Oil Company was issued a Certificate of Dissolution by the office of the Secretary of State of Missouri and said corporation was thereupon dissolved.
“9. By instrument entitled ‘Assignment of Leases’ dated as of July 1, 1956, and recorded in Book 7688, Page 104, in the Office of the Recorder of Deeds of the City of St. Louis, Missouri, the said Gulf Refining Company transferred, assigned and set over to defendant Gulf Oil Corporation all of its right, title and interest in and to the aforesaid Property Lease (Exhibit 1). By letter dated July 30, 1956, the said Gulf Refining Company and defendant Gulf Oil Corporation gave notice to plaintiffs of the aforesaid assignment.- A copy of said letter is attached hereto and •made a part hereof as Exhibit 5.
“10. As of July 1, 1956, the said Gulf Refining Company transferred, assigned and set over to the defendant Gulf Oil Corporation all of its right, title and interest in and to the aforesaid Lease (Exhibit 2) and the aforesaid Dealer Sales Contract (Exhibit 3).
“11. Said Property Lease (Exhibit 1) provides for a rental, payable monthly, of one cent (1^) per gallon computed upon each gallon of Missouri State Oil Company’s (and its assigns’) gasoline sold and dispensed at or upon the said leased premises with a minimum monthly rental of $75.00. Continuously since May 1, 1950, plaintiffs have been paid each month in accordance with said rental provision in said Property Lease by the said Missouri State Oil Company, and by Gulf Refining Company, successor to Missouri State Oil Company, and by defendant Gulf Oil Corporation, successor to Gulf Refining Company.”

The appellants’ brief does not comply with Rule 83.05 of the Supreme Court Rules, in that the specifications of error merely set forth a series of abstract statements of law. But from an examination of the brief it is obvious that appellants’ complaint is that the court erred in rendering a decision for defendant for the reason that the lease to plaintiffs was not a sublease, but in legal effect an assignment of the primary lease, thus effecting a merger of the leasehold estate into the freehold estate owned by plaintiffs, and that such being the case, defendant Gulf Oil Corporation could acquire no interest in the property by the assignment to it by the Gulf Refining Company, whose alleged title as landlord rested on an assignment from Missouri State Oil Company. Wé will therefore overlook appellants’ failure to comply with Rule 83.05, and decide the issue raised

It is true that where a lessee re-lets the premises to a third person for the whole term of his lease, without reserving a reversion, or makes a lease for a period exceeding his term, said instrument of conveyance, as between the original lessor and the lessee of the original lessee, will be regarded as an assignment, even though it he denominated a sub-lease. Mutual Drug Co. v. Sewall, 353 Mo. 375, 182 S.W.2d 575. But as between the original lessee and his lessee if the parties intend a lease rather than an assignment, the relation of landlord and tenant will arise between them. Stewart v. Long Island R. Co., 102 N.Y. 601, 8 N.E. 200; O’Neil v. F. Oys & Sons, 216 Minn. 391, 13 N.W.2d 8.

The cases rest, no doubt, on the principle that strict reversionary rights may exist on the theory of estoppel, even though there be a transfer of the lessee’s whole interest. This doctrine, as applied to the transferee of the lease, is discussed in Tiffany on Landlord & Tenant, Vol. 1, pages 915-916, as follows:

“Cases in which the transferor would seek to assert that an instrument thus in form a lease is legally an assignment can but seldom occur, and a question of greater interest is whether the transferee may be estopped, as against the transferor, to assert that the transfer is an assignment and not a lease. As regards this question, it seems that the transferee, if the transfer is by indenture, might be precluded, on the same theory of ‘estoppel by deed,’ from asserting that the instrument of transfer, though purporting to be a lease, is in reality an assignment. But apart from any question of estoppel by deed, the question may be suggested whether, if the transferee obtains possession on the understanding that in so doing he becomes tenant of the lessor, he should not be precluded, as against the lessor or the lessor’s transferee, from asserting that the lessor had no estate at the time of the lease sufficient to support the relation of landlord and tenant. As we have before seen, one who has taken possession under a lease is precluded, for certain purposes at least, from asserting as against the lessor or one claiming under the lessor, that the lessor had no estate, at the time of the lease, and the same considerations might perhaps apply, it would seem, to preclude him from asserting that the lessor had an estate no greater than the term for which the lease was made.”

At common law it was an inflexible rule that a merger of the leasehold into the freehold always took place when both estates met in the ownership of the same person. But in modern times the law has not favored the doctrine of merger. Consequently, the courts will not compel a merger of estates where the parties do not so intend, or where it would be unjustly prejudicial to either of the parties. Mobley v. Harkins, 14 Wash.2d 276, 128 P.2d 289, 143 A.L.R. 88; Rayburn v. Stewart Calvert Co., 105 Wash. 570, 178 P. 454; Chicago Title and Trust Co., et al v. Kesner, 296 Ill. App. 187, 16 N.E.2d 175; Hotel Burnet and Co. v. Union Central Life Insurance Co., 72 Ohio App. 453, 52 N.E.2d 754; White v. Coates, 17 Wash.2d 686, 137 P.2d 113; Wechter v. Chicago Title and Trust Co.,. 185 Ill. 11, 52 N.E.2d 157. This, in our judgment, is the correct doctrine. Obviously it would be unjust to permit a mere formal merger to interfere with the contractual rights of the parties, and to enforce a merger contrary to the intent of the-, owner of the property and the person with whom he deals.

In ascertaining the intent of the parties it is permissible to consider their situation and the accompanying circumstances at the time the lease was executed. The parties to said lease were making arrangements for the operation by plaintiffs of the filling station located on the premises, and for the sale of Missouri State Oil Company’s products at said station. To accomplish this, the primary lease of the premises was made by plaintiffs to Missouri State Oil Company for a term of twenty years, at a rental of not less than $75.00 per month. At the same time Missouri State Oil Company leased the premises to plaintiffs for the full term of its lease at a rental of one dollar a year. This lease contained a provision that “nothing herein contained shall be construed to prevent lessor hereunder from enforcing in its own name the provisions of said primary lease.” Simultaneously with the execution of the reciprocal leases above mentioned, the parties entered into the sales contract which by its terms was to be effective during the full term of said leases. Plaintiffs, thereafter and since May 1, 1950 to the date of trial (January 28, 1963), accepted the rent provided in the primary lease.

It seems clear from the foregoing facts that in the execution of the lease to plaintiffs, the parties to said lease did not intend to effect a merger of the leasehold estate held by the Missouri State Oil Company with the freehold estate owned by plaintiffs, but did intend to create the relationship of landlord and tenant between the parties. In fact, plaintiffs do not contend that the parties had no such intention, but take the position that as a matter of law the execution of the reciprocal leases left the parties in exactly the same position they were in before said instruments were entered into; that in legal effect, both were a nullity; and that Missouri State Oil Company had no interest in the property which could be assigned to Gulf Refining Company or defendant Gulf Oil Corporation.

It is our view that under the authorities cited herein, such argument is not valid. We are therefore of the opinion that the judgment of the trial court should be affirmed.

It is so ordered.

Ruddy, P. J., and WOLFE, J., concur.


author: RUDDY, Presiding Judge.

text:
    STATE of Missouri ex rel. Robert RAINEY M.D., Relator-Appellant, v. James E. CROWE, Chairman, Herman Willer, Arthur K. Atkinson and E. Kenneth Hagemann, all of the members of the Board of Election Commissioners for the City of St. Louis, Respondents.
    No. 32015.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.

      James A. Stemmier, St. Louis, for relator-appellant.
    Thomas J. Neenan, City Counselor, David S. Hemenway, Associate City Counselor, St. Louis, for respondents.
   RUDDY, Presiding Judge.

This is a proceeding for mandamus instituted by relator in the Circuit Court of the City of St. Louis against respondents as members of and constituting the Board of Election Commissioners for the City of St. Louis. The purpose of relator’s mandamus •action is to compel respondents to publish and to print on the sample and official ballots the name of relator, a duly filed candidate for the office of Coroner of the City of St. Louis, as “Robert Rainey M.D.” Relator appeals from an adverse ruling in the trial court.

Relator, a duly licensed physician, claims he is entitled to mandamus to compel respondents to publish and print his name on the ballot in the November 1964 General Election as Robert Rainey M.D.

The facts are not in dispute. Relator filed his Declaration of Candidacy for the Office of Coroner of the City of St. Louis, Missouri. The primary election for said office \yas held August 4th, 1964, and the general election for said office is to be held November 3rd, 1964. We are informed that relator by virtue of the primary election result is now the nominee for said office of the party upon whose ticket he declared as a ■candidate and that his name as such candidate shall be placed on the official ballot in the election to ■ be held November 3rd, 1964.

Relator is a graduate, with a diploma and degree of Doctor of Medicine, of Washington University School of Medicine and is a duly licensed physician under the provisions of Chapter 334 of the Revised Statutes of Missouri 1959. On or about May 20, 1964, relator submitted to respondents an affidavit stating that the name by which he is known is Robert Rainey M.D. and accompanied it with a letter demanding that “Robert Rainey M.D.” is the name that should be published under the provisions of § 120.390 RSMo 1959, V.A.M.S., and the name that should be on the official and sample ballots under the provisions of §§ 120.420,120.441,120.450 and 111.420 RSMo 1959, V.A.M.S. The respondents refused this demand and still continue to refuse the demand and take the position that relator’s name should be published and printed as “Robert Rainey,”

Relator testified in the trial below that he is known and has been known in recent years by the name of Robert Rainey M.D. and that the majority of documents, legal instruments and written communications which bore his name in recent years listed it as Robert Rainey M.D. He said this was always his practice in professional instances and usually in nonprofessional instances. He further testified that all documents or communications signed by him were signed under the name of Robert Rainey M.D. and this was done whether or not the document or other paper listed his name as such. This was true with the exception of certain stock dividend checks where the companies had refused to put the M.D. on the stock certificate, in which instances he signed both “Robert Rainey” and “Robert Rainey M.D.” as an endorsement on the checks. In his testimony he said that people orally addressed him as Dr. Rainey or Dr. Robert Rainey or, among friends, as Bob Rainey, but that “Robert Rainey M.D.” was the name by which he was formally known among the people in the community. Relator introduced into evidence the signature cards of bank accounts from several banks, credit cards from several oil companies, insurance policies and other documents and : matter which listed his name as, Robert Rainey M.D. The documents and matter which he had signed were signed Robert. Rainey M.D. He also introduced into evidence Republican and Democratic sample ballots printed by respondents for the 1964 primary election in St. Louis. The pur- ' pose of this was to show that some of the candidates’ nicknames had been printed in parentheses on said ballots and that; the names of some of the women on the ■ ballots sometimes included in parenthesis the designation “Mrs.” followed by her husband’s first name. He also testified that to the best of his knowledge most of the other physicians and surgeons in the community commonly used the initials “M.D.” after their last names in professional or nonprofessional instances.

In 1959 relator was a candidate for membership on the St. Louis Board of Education. He said that after he filed his declaration of candidacy he demanded of the Board of Election Commissioners that they publish and print on the ballot his name as “Robert Rainey M.D.” His demand was refused. However, he brought no suit at that time to require his name to be published and printed as “Robert Rainey M.D.” There appears in the white pages of the 1964 Telephone Directory for the City of St. Louis the following names and addresses: “Rainey, Robt. D. 9718 Lanier; Rainey, Robt. E. 1527 Penrose; Rainey, Robt. MD (relator herein) City office 100 N Euclid Av, Residence 5165 Lindell.” The yellow pages of said telephone directory list the relator and all other physicians and surgeons under a column headed “Physicians & Surgeons —M.D.”

Relator further testified that he receives written communications addressed to him as “Dr. Robert Rainey”, “Dr. Robert Rainey M.D.”, and “Robert Rainey M.D”, the majority of which he said were addressed “Robert Rainey M.D.” The newspaper published by the School Board of which he is a member and which is distributed to 100,000 public school children lists his name as “Dr'. Robert Rainey.” His name appears on the voter registration card in the office of the Board of Election Commissioners in the City of St. Louis as “Robert Rainey.” He explains this by saying that he originally registered before he became a physician and surgeon and before he became known as “Robert Rainey M.D.” adding, that after he moved to his present address at 5165 Lin-dell he sent a letter to the respondents about March 1964 informing them of a change of address and he signed the letter “Robert Rainey M.D.” He said the respondents acknowledged this communication with a letter addressed to him as “Robert Rainey M.D.” He admitted that at no time did he make a specific request to the respondents to have his name changed on the voter registration card to Robert Rainey M.D. He has never taken legal steps to change his name to add the “M.D.” and he further testified that his wife is known as Sharon Rainey. It is admitted by the relator that the said' respondents in refusing the demand to have-his name printed as requested acted in good faith.

Relator makes two principal contentions: (1) that respondents are required to publish and print on the general election ballot relator’s name as “Robert Rainey M.D.” because the election statutes require the publishing and printing of a candidate’s “name” and “Robert Rainey M.D.” is relator’s name under the law of Missouri; (2) that respondents are required to publish and print on the election ballot relator’s name as “Robert Rainey M.D.” because such publication and printing is a “public listing or display” within the meaning of § 334.047 RSMo 1959, V.A.M.S. In this connection relator makes an alternative point, that “ * * * if it could be said that, for some reason, the statute refers only to ‘public listings and displays’ having some connection of a medical nature, the relator still should prevail in this suit.” In support of this relator points out that he is running for the office of Coroner of the City of St. Louis and that certain of the duties of said office are now of a distinctly medical nature and! that under the generally accepted view that the Coroner should be a physician, the-voters are entitled to know which of the candidates is a physician.

The initial step taken by relator in pursuit of his quest for the office of Coroner was to comply with § 120.340 RSMo 1959, V.A.M.S. which in part reads as follows: “The name of no candidate shall be printed upon any official ballot at any primary election unless such candidate has on or before the last Tuesday of April preceding such primary filed a written declaration, * * * stating his full name, residence, office for which he proposes as a candidate, the party upon whose ticket he is to be a candidate, that if nominated and elected to such office he will qualify, * * All other statutory requirements concerning the publishing and printing of the ballots refer to the “name” of the candidate. Illustrative of this are §§ 111.410, 111.420, 120.380, 120.420, 120.450, 120.441, 120.540, 121.100 of the Revised Statutes of Missouri 1959, V.A.M.S.

The word “name” as used in the statutes providing for the publishing and printing of a candidate’s name should be taken in its plain ordinary and usual sense as provided in § 1.090 RSMo 1959, V.A. M.S. and as said in the case of State ex rel. Lane v. Corneli, 347 Mo. 932, 149 S.W.2d 815, 1. c. 821.

The common law recognized only one Christian name or given name and one family surname. State v. Hands, Mo., 260 S.W.2d 14; Nolan v. Taylor, 131 Mo. 224, 32 S.W. 1144; Carlton v. Phelan, 100 Fla. 1164, 131 So. 117; Feldman v. Silva, 54 R.I. 202, 171 A. 922; 65 C.J.S. Names § 3, p. 2.

It has been held that the middle name or initial of an individual is unimportant and forms no part of the Christian name. State v. Hands, supra; Miller v. Medley, 236 Mo. 694, 139 S.W. 158. However, in modern times recognition is frequently given to one or more middle given names or initials. In the' case of State ex rel. Lane v. Corneli, supra, the Supreme Court in defining the meaning of the word “name” said (149 S. W.2d at 1. c. 821) * * * A person’s name is the designation ordinarily used, and by which he or she is known in the community. Names are used as a method of identification. Whether the identification is sufficient is ordinarily a question of fact.” This definition was given by the court in connection with the use of the word “name” as contained in the statutes relating to the assessment of personal property.

In State ex rel. Kansas City Public Service Company v. Cowan, 356 Mo. 674, 203 S.W.2d 407, 1. c. 408, the Supreme Court said: “ * * * After all, a name is only what one calls himself for purposes of identification. * * * ” A person’s name, therefore, is the designation by which he is commonly known and one which he knows himself and others call him. State v. Deppe, Mo., 286 S.W.2d 776, 781; Ohlmann v. Clarkson Sawmill Co., 222 Mo. 62, 120 S.W. 1155, 28 L.R.A.,N.S., 432; Nolan v. Taylor, supra.

Relator contends that he has always used the name Robert Rainey M.D. in all written communications emanating from him and that he has always signed his name with “M.D.”, with certain exceptions heretofore noted, and that documents, legal instruments and communications received from others listed his name as “Robert Rainey M.D.” He claims there is no reason, therefore, why the initials M.D., indicating he has received a degree of doctor of medicine, cannot be included as a part of his name if that is the name which he ordinarily uses and by which he is known.

The initials M.D. could not always have been used by the relator as he contends. The initials M.D. following his name could be used by relator only since he obtained the degree of doctor of medicine. Prior to the receipt of this degree he could not use these initials following his name. It would seem abundantly clear that the conferring of a degree on the relator and his use of the initials after his name indicating the degree would not have the effect of changing his name. The initials “M.D.” are a mere characterization and description of his professional status in the community. We have been cited to only one case by the relator wherein the use of the designation “M.D.” in connection with the printing of a name on a ballot in an election for Coroner was considered. The case cited is of no help to the relator. The case of State ex rel. Whetsel v. Murphy, 122 Ohio St. 620, 174 N.E. 252, cited by relator, involved candidates for election to the office of Coroner. The election officials had placed on the ballots the initials M.D. after the name of one of the candidates. It was claimed that those letters which characterized the contestee as a physician invalidated all votes cast for him and that the contestor, Whetsel, having received the next highest number of votes at the primary election was entitled to be declared the nominee. The court said: “This court is of opinion that it is unlawful to place any characterization or description either before or after the name of a candidate upon a ballot, either at the primary or general election, where there is not such identity of the names of two or more candidates as to justify some descripton which will permit the voter to make an intelligent expression of his choice.” The court found against con-testar, however, on the ground that he failed to exercise due diligence and failed to present an effective objection, which he could have made prior to the primary election, in time to have prevented the descriptive matter being placed on the ballot.

In the instant case there is no evidence of another candidate for the office of Coroner with an identical or similar name as that of relator, which might justify some descriptive matter which would permit the voter to cast his ballot for the candidate of his choice. The use of the letters “M.D.” is descriptive and the letters are not the equivalent of a name or a part of a name. 65 C.J.S. Names § 1, p. 2. They are a mere affix to the name of relator and indicate relator possesses a degree of doctor of medicine. In the case of Hunt v. Searcy, 167 Mo. 158, 67 S.W. 206, it was held that the commonly abbreviated prefixes and suffixes are not considered either as names in themselves, or as parts of names, ruling that the abbreviations “Jr.” and “Sr.” are no part of the name proper. Also, see Peter Piper Tailoring Co. v. Dobbin, 195 Mo.App. 435, 192 S.W. 1044. It has also been held that the prefix “Mrs.” is not a name and is but a mere title. Carlton v. Phelan, supra; Feldman v. Silva, supra; 65 C.J.S. Names § 5, pp. 6 and 7. Other cases have held that the use of the designation “Dr.” is a title and is no part ■of the name. Hamilton v. Shredded Wheat Sales, 54 R.I. 285, 172 A. 614; Gears v. State, 203 Ind. 3, 176 N.E. 553.

However, while § 120.340, RSMo 1959, V.A.M.S., calls for the “full name” and the other statutes refer to the “name” of the candidate and the “name” of a candidate would usually exclude the use of titles and other descriptive matter, nevertheless, whether the name used is sufficient to identify the person or candidate is ordinarily a question of fact. State ex rel. Lane v. Corneli, supra. In some cases the use of certain prefixes or suffixes has been permitted. In the case of Application of Carty, Sup., 115 N.Y.S.2d 193, the court directed that the candidate’s name be printed on the primary ballot by adding “Jr.” to the name Thomas F. Carty. In the case of Huff v. State Election Board, 168 Okl. 277, 32 P.2d 920, 93 A.L.R. 906, the court held that a married woman who was a candidate for office had the right to “ * * * adopt ‘Mrs.’ as a part of her name.”

We said before whether or not the name used is sufficient to identify the person or candidate is ordinarily a question of fact. This fact issue was first presented to the Board of Election Commissioners for the City of St. Louis. Under § 118.230, RSMo 1959, V.A.M.S., the Board of Election Commissioners has the power and the duty to make all necessary rules and regulations with reference to the registration of voters and the conduct of elections and shall have charge of and make provisions for all elections to be held in the City of St. Louis. In the case of State of Missouri ex rel. Hand v. Bilyeu, Mo.App., 346 S.W. 2d 221, it was said at 1. c. 227, “We readily agree that mandamus will not lie to compel the doing of an act which, instead of being ministerial, is dependent upon the discretion or the judicial determination of the officer, and that election officials are, in general, charged with the duty of determining the qualifications of voters, interpreting ballots, and deciding various other matters in connection with the holding of an election. These usually involve the determination of facts or a combination of facts and law. Hence the functions are said to be quasi-judicial, and not ministerial, and this discretion cannot - be coerced by the courts. * * * ” Also see State ex rel. Richardson v. Baldry, 331 Mo. 1006, 56 S.W.2d 67. However, if the discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise and such an abuse of discretion is controllable by mandamus. State ex rel. Hagerman v. Drabelle, Mo., 191 S.W. 691. The Board of Election Commissioners in the instant case had to make a determination of facts. In this connection we point out that even relator admits that the respondents in refusing the demand to have relator’s name printed as requested, acted in good faith. We do not think the facts presented to the Board of -Election Commissioners or to the trial court below were sufficient for this court to find that the discretionary power was exercised with manifest injustice as we shall point out below.

We pointed out heretofore that a prefix or a suffix is not ordinarily a part of a person’s name and when relator made his demand of respondents to print his name with the suffix “M.D.” he had the burden to reasonably satisfy the Board of Election Commissioners that the addition of this title and description to his name was necessary to permit the voters to make an intelligent choice of a candidate for Coroner.

As indicated we do not think relator sustained the burden that was his. The record is not clear as to what facts the Board of Election Commissioners had before it but we can reasonably assume that if the Board had before it the same facts that were before the trial court, the Board of Election Commissioners could have reasonably found that the initials “M. D.” are a characterization and description of a person and not a part of relator’s name; that ■said initials would merely signify that relator is a doctor of medicine - which would have the effect of placing a qualification of the candidate on the ballot; that to permit relator to place a set of initials after his name on the ballot under the circumstances of this case would require said Board of Election Commissioners in connection with the names of other candidates to place on the ballot descriptive matter requested by them, which could seriously encumber the ballot and cause confusion in the minds of the voters; that it had before it relator’s name, not followed by the initials M. D., in that relator’s voter registration card was under the name of Robert Rainey only; that there had been no request for a change of the relator’s voter registration; that in 1959 relator was a candidate for membership on the Board of Education in the City of St. Louis; that his name appeared on the ballot as “Robert Rainey” without the initials “M. D.”; that he was elected to said office and that there was no showing by relator that his name appearing as such caused confusion among the voters; that the evidence did not show that he is exclusively or even commonly known as “Robert Rainey, M. "D.”; that he always used the initials “M. D.” in professional instances, but did not always use said initials in non-professional instances; that he was known among his friends as “Dr. Rainey” or “Dr. Robert Rainey” or “Bob Rainey”; that it is reasonable to believe that relator is not orally addressed as Robert Rainey, M. D.; that the said Board of Election Commissioners could have further found that there was no proof to show that “Robert Rainey, M. D.” was the sole means of identifying Robert Rainey; that relator is identified sufficiently as Robert Rainey; that no evidence was adduced to show that any confusion in the minds of the voters would result from placing the name as Robert Rainey on the ballot; that no other candidate for the office of Coroner with the same or similar name was on the ballot.

• Finally, it should be pointed out that relator admits that the respondents acted in good faith. It would seem that such an admission would preclude the charge of abuse of discretion. The above permissible findings are sufficient to support the decision of the Board of Election Commissioners, to refuse the demand of relator to place the initials “M. D.” after his name on the ballot. Consequently, we find that no manifest injustice was exercised in the use of the discretionary power possessed by said Board. Therefore, mandamus is not available to relator to effect a change in the decision of the Board of Election Commissioners or of the trial court below.

The next point urged by relator is that respondents are required to publish and print on the ballot relator’s name as “Robert Rainey, M. D.” because such publication and printing is a “public listing or display” within the meaning of § 334.047 RSMo 1959, V.A.M.S. The pertinent part of this section reads as follows:

“2. A licensee under this chapter shall, in any letter, business card, advertisement, prescription blank, sign, or public listing or display of any nature whatsoever, designate the degree to which he is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputable by the American Medical Association or approved and accredited as reputable by the American Osteopathic Association. * * * ” (Emphasis ours.)

Relator contends that the phrase, “ * * * public listing or display of any nature whatsoever * * encompasses the publication and printing on a ballot in connection with an election. Chapter 334, RSMo 1959, V.A.M.S., contains provisions for the licensing of physicians and surgeons and deals exclusively with their licensing as well as with the licensing of midwives. The section of Chapter 334 relied on by relator has no application to the Board of Election Commissioners and merely details a course of binding conduct on the licensee, namely, that one who has received a diploma of graduation from a professional school as outlined in said section must designate the degree to which he is entitled by reason of his diploma of graduation when employing any of the categories mentioned under this section of the statutes and prescribes a course of conduct that is binding solely and only in matters that have a connection with the licensee’s practice of his profession as a doctor. This limited application of the statute becomes more apparent when we examine the provisions of § 334.100, RSMo-1959, V.A.M.S., which among other things holds that “ * * * the following specifications shall be deemed unprofessional and dishonorable conduct within the meaning of this section: * * * (10) Using, or permitting the use of, his ■name under the designation of ‘Doctor’, ‘Dr.’, ‘M. D.’ or ‘D. O.’, or any similar designation with reference to the commercial exploitation of any goods, wares or merchandise; * * From this it becomes abundantly clear that the legislature did not intend that a physician or surgeon at all times was to place the initials “M. D.” behind his name in every form of public listing. The provisions of Section 334.047 apply solely to the licensee and imposes a duty on the licensee when the “public listing or display of any nature whatsoever” is of a nature that has a connection with the licensee’s practice of his profession as a doctor. Under no circumstances do thé provisions of § 334.047 RSMo 1959, V.A.M.S., impose an obligation on the members of the Board of Election Commissioners of the City of St. Louis to designate on the ballot the degree to which licensee is entitled where licensee is running for public office.

However, relator says that even though the statute refers only to “public listing or display” having some connection of a medical nature, nevertheless, relator still is entitled to have the initials “M. D.” follow his name on the ballot because certain of the duties of Coroner are now of a distinctly medical nature and the public is entitled to know that a duly licensed physician is running for the office of Coroner.

We may agree with relator that the public is entitled to know that a duly licensed physician is running for the office of Coroner. But there is nothing in the law that permits either the candidate or the Board of Election Commissioners to use the ballot for campaign propaganda and statements of qualifications of candidates. There is no requirement in the statutes that a candidate for Coroner be a licensed physician. It may well be that this should be a requisite and qualification for the office of Coroner. Relator in his brief makes a forceful and eloquent plea why the Coroner should be a licensed physician. But since the law makes no such requirement we are compelled to turn a deaf ear to this plea. This is a matter that requires the attention of the proper legislative body. To print the initials “M. D.” on a ballot would be a listing of a qualification of relator and for this there is no provision in the statutes of the State of Missouri. If the Board of Election Commissioners was required to place “M. D.” after the name of the relator in order to list his qualifications as a duly licensed physician, then in the instances of other candidates it would be required to print initials and descriptions such as “Atty.,” “Rev.,” “Dr.,” “M.D.,” “LL.B.,” “A.B.,” “B.S.,” “Ph.D.,” “M.S.,” “M.A.,” “D.O.,” “DD.S.,” and many other descriptions too numerous to mention, which candidates may want to appear on the ballot to show that they possess qualifications superior to those of their opponents. If such initials were permitted to be placed on the ballot, other descriptive matter would be required to be placed on said ballot showing the past experience of the various candidates. Therefore, it can be readily seen that to permit the relator to have the initials “M. D.” placed after his name on the ballot so that the public may know that a licensed physician is running for the office of Coroner would open the gates to a road that would lead to confusion in the minds of the voters and extreme delay in the conduct of elections. There are many mediums, well known to candidates and voters alike, for making known the qualifications of candidates seeking the preference of the electorate.

In view of what we have said and held, the trial court’s order, finding and judgment denying the writ of mandamus is affirmed.

ANDERSON, J., and O. P. OWEN, Special Judge, concur.


author: JAMES D. CLEMENS, Special Judge.

text:
    Lewis BLACK, (Plaintiff) Respondent, v. Alvin John HIGHLEY, (Defendant) Appellant.
    No. 31756.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.

      H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellant.
    Robert A. Mcllrath, Flat River, for respondent.
   JAMES D. CLEMENS, Special Judge.

Defendant appeals from a $1,000 judgment for damages to plaintiff’s automobile. Defendant complains that the trial court restricted his cross-examination of plaintiff’s driver, and of plaintiff’s verdict-directing and damage instructions. Only a brief recital of the facts will be necessary.

In St. Francois County, Highway 8 runs east and west, and intersects with Highway P. Plaintiff’s daughter was driving his automobile west on Highway 8, and defendant was driving his automobile east on Highway 8. The two cars approached each other near the intersection of Highway P. Plaintiff’s daughter intended to continue on to the west, and defendant intended to turn to his left into Highway P. Defendant made his left turn in front of plaintiff’s automobile, and plaintiff’s front end struck defendant’s right rear corner as he was making his left turn.

During defendant’s cross-examination of the plaintiff’s driver, defendant asked if she could have driven to the south (left) side of Highway 8 without interfering with any on-coming traffic. Plaintiff objected on the ground that it was immaterial. (This objection seems to have been on the ground that her contributory negligence was not pleaded nor a defense.) The trial court sustained the objection. The same matter had just been covered by defendant’s cross-examination of the driver. He had twice asked her if there was any other eastbound traffic in the south lane, and she had answered that there were no other cars and that the lane was open. Defendant cites the case of Hoffman v. Illinois Terminal Railroad, Mo.App., 274 S.W.2d 591, holding it is error for a trial court “to cut off all inquiry” on a material subject. That was not done here, and the court’s ruling was within its broad powers to limit the scope of cross-examination. Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, 807(5). Particularly so because the witness’ answer to the previous questions covered the question asked. Hall v. Clark, Mo., 298 S.W.2d 344(15) ; and Roach v. Kansas City Public Service Co., Mo., 141 S.W.2d 800(8, 9).

■ We next consider defendant’s two attacks on plaintiff’s verdict-directing instruction. Plaintiff pleaded, and by his verdict-directing instruction submitted, negligence by the defendant in making a left turn from Highway 8 into Highway P “before crossing the intersecting center line of Highway P.” It was plaintiff’s evidence that the defendant did not pass the center of the intersection before turning left, but began his left turn before reaching that point. Defendant argues that this submission is erroneous because it is based on the old statute, Section 304.020, RSMo 1949, rather than the new repealing and amending statute, Laws of 1953, page 587, Section 1, now Section 304.018,par. 1(2), RSMo 1959, V.A. M.S. The former statute required that a, motorist intending to make a left .turn should go past the center of the intersection before turning to the left. The present statute requires only that such a left-turning motorist leave the intersection to the right of the center line of the highway being entered. The defendant further complains here that the plaintiff’s verdict-directing instruction omitted a requirement that the defendant made his left turn at a time when the plaintiff’s automobile was so close to the intersection as to constitute an immediate hazard. He cites Lincoln v. Railway-Express Agency, Inc., Mo., 359 S.W.2d 759.

Before considering the merits of these’ assignments, we note that when the instruction was given the defendant made only a' general objection, and in his motion for a new trial his allegations of error were: “Because the Court erred in giving and reading to the jury instruction No. 1 offered by the plaintiff, in that the said instruction improperly hypothesized facts which were not a part of the evidence; improperly assumed facts which were not proved in evidence; and failed to hypothesize facts on which the jury might make a finding of negligence; that said Instruction was further erroneous in that the directions and references therein with respect to the highways involved at'that intersection were confusing and the jury could not determine the directions referred to nor the references to the respective highways involved at the intersection.” Rule 79.03, V.A.M.R. requires: “If any specific objections to instructions have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must be set forth in the motion for a new trial- to preserve the error for review.” The first point defendant raises here is that the trial court erred in giving the verdict-directing instruction by “submitting the hypothesis of turning left before passing the center of the intersection.” The other point defendant raises here is that the trial court further erred in giving the .verdict-directing instruction because it does not “hypothesize the factor of distance” between the defendant’s left-turning vehicle and the plaintiff’s on-coming vehicle, thereby permitting the jury to speculate on the issue of the defendant’s negligence. The two allegations of error here are specific, but by examining-the above motion for a new trial; it is apparent that it contains no such specific allegations of error.

In Ayres v. Keith, Mo., 355 S.W.2d 914(1, 2), the Supreme Court said” “None of those assignments point out with any degree of definiteness what is actually claimed to be wrong with the instruction in such a manner that the trial court and the appel-. late court may immediately perceive the point; nor do they.in anywise assure this, court that the sundry points now argued, (and which have.been particularized sub-, stantially) were actually presented to the. trial court. They are insufficient under our rule.” See also Hartz v. Heimos, Mo., 352 S.W.2d 596(5), and State ex rel. Board of Regents for Central Mo. State College v. Moriarty, Mo.App., 361 S.W.2d 133(9). We hold that these assignments of error come too late, and preserve nothing for review. To do otherwise would convict the trial court of errors never presented for its consideration.

We pass now to defendant’s attack on - plaintiff’s measure of damage instructions. Plaintiff's evidence was that his automobile • had a reasonable market value.of $1,200 to-$1;300 before the collision and a reasonable market value of $50 to $100 after the collision. The $1,000 verdict was within those limits. Defendant’s evidence was that the reasonable market value of the automobile was $900 before the collision.

Defendant says plaintiff’s measure of damage instruction failed to refer to the proper standard of value in determining the damage. The instruction authorized recovery “for the difference between the value of his motor vehicle immediately before and immediately after the collision.” ' Defendant cites the cases of Thomson v. Bast, Mo.App., 309 S.W.2d 667(5), and Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903(23), stating that the correct, basis for damage to personal property is the difference between the reasonable market value of the property before and after injury to the property. It is defendant’s contention that the given instruction was erroneous in omitting the qualifying words, “reasonable market” as applied to “value”. The two cited cases state the proper rule, using the phrase “reasonable market value,” but in both those cases the plaintiff gave only a general damage instruction and failed to use any language as to the before- and-after rule. So, they do not rule the issue, here, whether the instruction was erroneous in failing to qualify the word “value” by the phrase “reasonable market.”

In the cases of Globe & Rutgers Fire Ins. Co. v. Chicago & A. R. Co., 174 Mo.App. 542, 160 S.W. 907(6), the term “reasonable value” was upheld against an attack that the omission of the word “market” constituted error. In view of the many cases approving the term “reasonable market value;” we cannot approve the use of the word “value” alone. However, we are constrained by Rule 83.13(b) V.A.M.R. to reverse a judgment only for errors “materially affecting the merits of the action.” A failure to correctly state the measure of damages is not always prejudicial' error. Randall v. Steelman, Mo.App., 294 S.W.2d 588(9), and Jenick v. Harrigan, Mo.App., 217 S.W.2d 764(6). Here, the $1,000 verdict is not excessive and fairly represents the damages shown by the evidence. In such cases an erroneous instruction on the measure of damages is not reversible error.. Sides v. Mannino, Mo.App., 347 S.W.2d 391 (12), and LaPlant v. E. I. DuPont De Nemours, Mo.App., 346 S.W.2d 231(23). We rule this point against defendant, without; considering the further issue of defendant’s, duty to have offered a clarifying instruction. Parenthetically, it is interesting to note that Missouri Approved Instruction 4.01, not yet in force, would simply tell the jury to award the plaintiff such sum as would satisfy and justly compensate him for the “damages” he sustained.

There being no reversible error properly presented for review, the judgment is affirmed.

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

ANDERSON, J., not participating.


author: DOERNER, Commissioner.

text:
    Isabelle WILBURN, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Defendant-Respondent.
    No. 31703.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.

      Thurman, Nixon & Smith, Hillsboro, for plaintiff-appellant.
    Dearing, Richeson, Weier & Roberts, Hillsboro, John Mohler and Leo E. Eick-hoff, Jr., St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained when plaintiff slipped and fell on the floor of defendant’s office in DeSoto. The jury-returned a verdict in favor of plaintiff for $10,000 and judgment in conformity therewith was entered. Thereafter, the court sustained defendant’s motion for judgment in accordance with its motion for a directed verdict on the grounds that there was not sufficient competent evidence in the record to make a submissible case or support a verdict for plaintiff, and also ruled that if it should be held on appeal that plaintiff made a submissible case, then defendant’s alternative motion for a new trial should stand sustained because of certain specified errors. Plaintiff’s appeal followed.

In her amended petition plaintiff alleged that on January 20, 1961, while in the defendant’s building as a business invitee, and while walking on the floor thereof, she was caused to slip and to fall, and to be injured, as a direct and proximate result of the negligence and carelessness of the defendant. While plaintiff’s petition contained various specifications of negligence, plaintiff’s sole submission was on the theory that the floor had become dangerous and not reasonably safe by reason' of becoming “ * * * moist or wet with water or a liquid slippery substance * * * ” and defendant’s failure to remove the same or to warn plaintiff of the presence and danger thereof.

Plaintiff maintains that the court erred in sustaining defendant’s motion for judgment since the evidence made a submis-sible case, and that the court also erred in its alternative ruling granting defendant a new trial. In view of the first issue we must review the evidence in some detail, from a standpoint favorable to plaintiff, giving her the benefit of any part of defendant’s evidence not contradicted by her own testimony or contrary to her theory of recovery, and allowing her the benefit of all favorable inferences arising therefrom. Quigley v. Sneed, Mo., 367 S.W.2d 637.

Plaintiff, 58 years of age, 5 feet 3 inches in height and 260 pounds in weight, was employed as cook in a restaurant named the Salad Bowl, in DeSoto. After getting off work about 3:00 P.M. on January 20, 1961, she went directly to defendant’s building, about four blocks from the restaurant, to pay her telephone bill. Her route took her three blocks southwardly down Main Street, and about a half block up Pratt, to defendant’s building. It was a rainy, snowy day, and snow was falling at the time. There had been snow on the ground since 10:00 A.M. and by 3 :00 P.M. the snow was two to three inches deep. However, plaintiff testified that the snow had been shoveled off of the sidewalks on Main Street and that she walked where it had been shoveled. When she arrived at her destination she wiped her feet on a rubber mat which was free of snow, outside the defendant’s building. She then went through a vestibule and into the business office, and walked a distance of about 14 feet or a little less directly to the desk of Mrs. DaPron, one of defendant’s service representatives, where she waited approximately five minutes while another customer, Mrs. Sloan, paid her bill and left the office. Plaintiff paid her own bill and turned to leave. After taking just a few steps and traveling about five feet towards the same door by which she had entered her feet went “ * * * out from under * * * ” her quickly, and she fell on her right side. She tried to get up by putting her hand down on the floor, and “ * * * my hand felt damp, it felt like water.” Mrs. DaPron assisted her to her feet and she sat in a chair approximately 15 minutes before leaving the office.

Defendant’s office, relatively new, had been open for several months, and plaintiff testified she had paid her telephone bill there regularly each month. She was familiar with the layout of the office, knew what it looked like, and on her prior visits had never noticed anything out of the ordinary about the floor. She stated that it was level .and surfaced with “tile” which was about the size and something like the tile on the floor of the courtroom, and of about the same degree of slickness. (The record indicates that in using the word “tile” the witnesses were not referring to marble or vitreous tile, but to rubber or asphalt tile.) Cross-examined as to whether she had been looking at the floor on the day she fell she first replied, “I don’t know that I was” but when pressed further conceded, “Well, I guess I did.” She admitted that she did not notice anything slick or out of the ordinary about the floor as she walked to the desk to pay her bill, but said that the place where she fell, “ * * * seemed slicker.” However, she didn’t know how much slicker. Asked whether a matter of approximately three feet or four of the tiles would cover about the width of her paths going in and coming out, she answered “I imagine.” Plaintiff admitted that at the time she fell she was wearing shoes with corrugated soles, which meant that there were diagonal indentations on the bottom of the soles that were as wide “I imagine about like a pencil.” Asked whether snow had accumulated on the soles she responded, “I may have some.” To the questions of whether she got all of the snow out of the indentations when she wiped her feet, and of whether any snow on her shoes melted during the time she waited' as Mrs. Sloan paid her bill she answered “I don’t know” to both inquiries. As to the amount of water on the floor she testified on cross-examination:

“Q. Now, about this dampness that you say that you felt on your hand when you placed your hand down on the floor to rise up after your fall, there wasn’t any puddle of water there on the floor, was there?
“A. Not that I noticed.
* * * * * *
“Q. Mrs. Wilburn, what I’m trying to get you to tell me, there wasn’t any puddle of water there on the floor, was there?
“A. No.
“Q. There wasn’t enough to wet your clothing or anything like that?
“A. My clothes was damp.
“Q-. And you just felt a trace of moisture on your hand when you put it down there to raise yourself up?
“A. And my coat.”

The only custodial employee in defendant’s office was a Mrs. Scott, who worked from 6:00 to 8:00 A.M. and from 11:00 A.M. to 1:00 or l':30 P.M. During the first period she cleaned the business office, entrance hall, and outside of the door of the vestibule. In cleaning the floor of the office on business days she used a dust mop to dry mop the floor. Her noontime work consisted of cleaning the plant department, where the facilities were located. Over the weekends, when no one was around, she used an ordinary wet mop on all the floors. Mrs. Scott testified that she had never missed a day’s work and that she regularly inspected the business office every day around one o’clock; that if she found any unusual substance on, or condition of, the floor she cleaned it up; and that the wet mop was available to wipe up any mud or water that might be tracked in. Mrs. Scott was unable to remember whether she wiped up the business office on January 20, 1961, at any time after 8:00 A.M. Mrs. DaPron stated that as far as she knew the floor had not been cleaned after 8:00 A.M. on the day plaintiff fell. Both she and Mrs. DaPron stated that ordinarily many people came in and went out of the office.

As the court said in Dean v. Safeway Stores, Inc., Mo., 300 S.W.2d 431, 432 and reaffirmed in Wilkins v. Allied Stores of Mo., Mo., 308 S.W.2d 623, 628, the rule governing cases of this character, as de-dared and set forth in the Restatement of the Law of Torts, is firmly embedded in the jurisprudence of this jurisdiction. That rule is stated in 2 Restatement, Torts, Sec. 343 as follows:

“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
'“(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
‘“(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
'“(c) invites or permits them to enter or remain upon the land without exercising reasonable care
“(i) to make the condition reasonably safe, or
“(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.”

Fundamentally, the basis of a proprietor’s liability in a case of this nature is his su•perior knowledge of the defective condition of his premises which results in injury to his business invitee. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278. If a proprietor knows, or in the exercise of ordinary care should know, of a • dangerous condition of his premises which involves an unreasonable risk of harm to 'his invitee, and of which the invitee, in the ■exercise of ordinary care, does not or should mot know, a recovery will be permitted against the proprietor. Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468. But if the dangerous condition is obvious and known, or in the exercise of ordinary care should be known, by the invitee, actionable negligence is not established and the invitee will not be permitted to recover. Heine v. John R. Thompson Co., Mo., 330 S.W.2d 867; Wilkins v. Allied Stores of Mo., supra; Schmoll v. National Shirt Shops of Mo., 354 Mo. 1164, 193 S.W.2d 605.

Actions involving the fundamental rule have become so numerous, particularly in Missouri, that as said in Heine v. John R. Thompson Co., supra, cases are now annotated topically depending upon the place of injury, the character of the floor, and the nature of the substance which created the dangerous condition. 63 A.L.R.2d 591, 694; . Missouri Digest, Negligence ‘®s,32. But whatever may be the category in which a particular case may be classified, it is elemental that in a case such as this the plaintiff must establish as the very foundation of his case, “ * * * before issues relating to the proprietor’s breach of his duty of care can be reached, that the floor on which he fell was, as á matter of fact, dangerously slippery * * 63 A.L.R. 2d 702; Heine v. John R. Thompson Co., Mo., supra. And see Cluett v. Union Electric Light & Power Co., Mo., 220 S.W. 865 (affirming Mo.App. 205 S.W. 72); Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Daughette v. Montgomery Ward & Co., 236 Mo.App. 218, 146 S.W.2d 72. As has been repeatedly stated, a proprietor is not an insurer of the safety of his invitees, Gruetzemacher v. Billings, supra; Heine v. John R. Thompson Co., supra; Schmoll v. National Shirt Shops of Mo., supra; and his duty is to exercise only ordinary care, not the highest degree of care, Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954, to maintain his premises in a reasonably safe condition for the use of invitees exercising ordinary care. Freeman v. Myron Green Cafeterias Co., Mo., 317 S.W.2d 303;

Howard v. Johnoff Restaurant Co., supra; Wilkins v. Allied Stores of Mo., supra. Thus it has been held as a matter of law that a proprietor is not negligent merely because he maintains steps or a floor composed of slippery marble; an entranceway of slick terrazzo; a sloping entranceway in which highly polished brass letters were embedded ; a sloping entranceway of small hexagonal tile with a narrow settlement crack therein which left one side a quarter of an inch higher than the other; a slick, waxed and polished linoleum floor; wet steps equipped with safety treads; or pools of water on a stair landing in a store, which accumulated from water carried in by customers on a rainy day. And the courts reached these conclusions even though the evidence showed that the terrazzo, brass letters, steps, and landing were made more slippery by reason of being wet. On the other hand, it has been held that a sub-missible case was made where the evidence showed that the proprietor permitted: a considerable amount of slush, salt and cinders or dirt to accumulate on a stairway; a pool of water to remain on the floor of a toilet in a swaying train; water and sticky mud on a stairway; or neglected to mop marble steps which it knew became more slippery when rain water was tracked in by customers. Thus the problem presented to us is how the facts and circumstances surrounding this occurrence fit into the pattern of the Restatement, rule as it has been established and applied in Missouri. Dean v. Safeway Stores, Inc., supra; Wilkins v. Allied Stores of Mo., supra.

After a careful study of the foregoing and other decisions, and giving plaintiff the benefit of all of the evidence favorable to her, we cannot bring ourselves to the view that the evidence was sufficient to make a submissible case. Plaintiff argues, that we should infer that there was a considerable amount of water, snow or slush on the floor which had been tracked and carried in by other customers who had previously visited defendant’s office that day. If we could draw such an inference it would be of no avail to the plaintiff. Such a condition would have been open and obvious,, and plaintiff, as she walked in and waited approximately five minutes while Mrs. Sloan paid her bill, would have had ample time and opportunity to have observed such a. condition. Heidland v. Sears Roebuck & Co., 233 Mo.App. 874, 110 S.W.2d 795-There was no claim of inadequate lighting,, as in Hubenschmidt v. S. S. Kresge Co., Mo. App., 115 S.W.2d 211, and plaintiff testified she could and did look and see the floor. And as the court said in Wilkins v. Allied Stores of Mo., Mo., 308 S.W.2d 623, 628:

“ * * * The defendant, as the occupier of the premises in question, was not liable to plaintiff-invitee for injuries resulting from an open and obvious condition of the premises as well known to the plaintiff as to the defendant. Accordingly, if the plaintiff was aware of the condition, or it was such that she must have been conscious of it and of the consequences of disregarding it, she cannot recover. Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W. 2d 390, 393; Mullen v. Sensenbrenner Mercantile Co., Mo.Sup., 260 S.W. 982, 984, 33 A.L.R. 176; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723, 726; Harper v. First National Bank of Kansas City, Mo. Sup., 196 S.W.2d 265, 267; Schmoll v. National Shirt Shops of Missouri, 354 Mo. 1164, 193 S.W.2d 605, 608; Fletcher v. North Mehornay Furniture Co., 359 Mo. 607, 222 S.W.2d 789, 794. In the Schmoll case, supra, 193 S.W.2d 605, 608, the court said: ‘Defendant, who was not subject to liability for injuries resulting from dangers that were obvious, should not be obligated to anticipate that its patrons, in the exercise of ordinary care, would fail to appreciate dangers generally known to be inherent in conditions that were obvious.’ ”

In any event, we cannot indulge an inference which would require us to disregard and ignore plaintiff’s own testimony. Plaintiff not only testified that she saw the floor, but said that as she walked in and looked at it she saw nothing unusual or out of the ordinary about it. Her pathway in was not more than three feet from the route taken as she started to go out. Questioned as to whether there were any puddles of water on the floor she stated that she saw none. The sum and substance of her entire testimony was that there was only a trace of moisture on the floor which made it feel damp. It was not shown that the damp condition existed a sufficient length of time to have given defendant constructive notice. McElroy v. S.S. Kresge Co, Mo.App, 244 S.W.2d 425. In fact, it is by no means clear from plaintiff’s own testimony whether the trace of moisture she felt was brought in by others, or whether it came from melting snow impacted in the corrugated soles of plaintiff’s shoes. Assuming, however, that the dampness of the floor resulted from moisture carried in by others, we do not believe that the condition shown was sufficient to support a charge of negligence on the part of defendant. Defendant was not an insurer against all hazards, and on a day such as described by plaintiff it was a physical impossibility to keep the floor from becoming damp. Heid-land v. Sears Roebuck & Co, supra. The only way defendant could have maintained a perfectly dry floor for each customer would have been to have admitted them one by one, mopped up as each left, and allowed the floor to become absolutely dry (merely mopping would leave the floor as damp as that shown here) before admitting the next customer. Surely such a procedure would exact far more than the ordinary care which a proprietor is required to exercise. Williams v. Kansas City Term. Ry. Co, supra; Heidland v. Sears Roebuck & Co, supra.

For the reasons stated the judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is affirmed.

WOLFE, (Acting) P. J, ANDERSON, J, and R. KENNETH ELLIOTT, Special Judge, concur.

      . Rush v. Townsend and Wall Co., Mo., 343 S.W.2d 44.

      . Stoll v. First Nat. Bank of Independence, Mo., 345 Mo. 582, 134 S.W.2d 97.

      . Wilkins v. Allied Stores of Mo., Mo., 308 S.W.2d 623.

      . Schmoll v. National Skirt Shops of Mo., 354 Mo. 1164, 193 S.W.2d 605.

      . Mullen v. Sensenbrenner Mercantile Co., Mo., 260 S.W. 982.

      . Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723.

      . Williams v. Kansas City Terminal Ry. Co., 288 Mo. 11, 231 S.W. 954.

      . Heidland v. Sears Roebuck & Co., 233 Mo.App. 874, 110 S.W.2d 795.

      . Wilkins v. Allied Stores of Mo., supra.

      . Schmoll v. National Shirt Shops of Mo., supra.

      . Williams v. Kansas City Terminal Ry. Co., supra.

      . Heidland v. Sears Roebuck & Co., supra.

      . Stafford v. Fred Wolferman, Inc., Mo.,. 307 S.W.2d 468.

      . Wagner v. Missouri-Kansas-Texas R. Co., Mo., 275 S.W.2d 262, 50 A.L.R.2d. 1062.

      . Clifford v. F. W. Woolworth Co., Mo.. App., 201 S.W.2d 416, 208 S.W.2d 263; Hubenschmidt v. S.S. Kresge Co., Mo. App., 115 S.W.2d 211.

      . State ex rel. First National Bank in St. Louis v. Hughes, 346 Mo. 938, 144 S.W.2d 84.