author: ELMO B. HUNTER, Special Judge.

text:
    MOUNT OLIVET BAPTIST CHURCH, a Non-Profit Corporation, Plaintiff-Appellant, v. Russell Robert GEORGE et al., Defendants-Respondents. George PARKINS, an Individual, d/b/a Parkins Machine Shop, Plaintiff-Appellant, v. Russell Robert GEORGE et al., Defendants-Respondents.
    No. 50280.
    Supreme Court of Missouri, Division No. 2.
    April 13, 1964.

      Knipmeyer, McCann & Millett, by Glenn E. McCann, Joseph H. Moore, Kansas City, and Everett Fritz, Kansas City, for appellants.
    Douglas Stripp, Robert C. Canfield, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City, of counsel, for respondents.
   ELMO B. HUNTER, Special Judge.

This is an appeal by the plaintiffs in two actions brought in the Circuit Court of Jackson County and consolidated for trial and appeal. Each suit was for damages sustained by the particular plaintiff in the destruction by fire of his property. The Mount Olivet Baptist Church, plaintiff in cause No. 122,838 sued for damages in the sum of $20,000 for the total destruction of its church building located near Third and State Street in Kansas City, Kansas; and plaintiff George Parkins in cause No. 122,-839 sued for $32,500 for the total destruction of his machine shop building located on the corner next to the church building.

At the close of plaintiffs’ evidence all four of the defendants orally and separately moved for a directed verdict on the ground, among others, that no submissible case had been made. The trial judge sustained the motions, advised the jury thereof, and entered judgment for all defendants accordingly.

The principal question on this appeal is whether the trial court erred in sustaining the motions for directed verdict. It is our duty to review the pertinent evidence in the light most favorable to plaintiffs and to give them the benefit of every inference reasonably deducible therefrom. With that duty in mind we proceed to summarize the evidence on the submissibility issue, and later determine which of it properly applies to each particular defendant and whether it is sufficient to make a submissible case.

On October 17, 19SS, approximately 3:30 in the morning, defendant Russell Robert George, while acting within the scope of his employment with defendant Colonial Petroleum Company, a corporation, was driving a tractor-trailer unit, some 45 feet in length and loaded with 5,000 gallons of gasoline, south on Third Street in Kansas City, Kansas, at approximately 20 miles per hour. This tractor-trailer was owned by defendants R. L. Trimm and Thomas McWilliams, partners, who had leased it to Colonial Petroleum Company. Defendant Aetna Casualty and Surety Company was the liability insurance carrier.

It was the intention of defendant George to make a right-hand turn onto State Street and to proceed west thereon. State Street runs east and west, and Third Street runs north and south. At this point Third Street is approximately 52 feet wide and State Street is 58 feet wide. Both Third Street and State Street have street lighting at the intersection, and the area was "well lighted.” Third Street is approximately level as one headed in a southerly direction approaches the intersection with State Street, but State Street, proceeding west from the intersection, has a steep incline of approximately 30 degrees.

As he approached, and was approximately 10 to 15 feet north of the intersection, George looked into the rear-view mirrors on each side of his vehicle to see if any traffic was following him and saw no traffic behind him. George then turned the corner and started up State Street when he heard an impact of some sort. A Pontiac automobile which he had not seen prior to the impact had struck the trailer portion approximately half way back on the right-hand side. George then turned his head to look through the rear window and discovered the trailer was on fire. He continued up State Street approximately 50 more feet, crossing over its center line and stopped somewhat on the south side of State Street. He applied his air brakes immediately and jumped out, and then the truck rolled back down the hill some 114 feet coming to rest on the west side of Third Street, the gasoline aflame. These flames spread to and destroyed plaintiffs’ mentioned property, which according to some of the evidence was valued at $13,584 (Mount Olivet building) and $2,824 (Parkins building) plus $2,865.75 as the value of the Mount Olivet building’s contents destroyed by the fire.

The only witness presented at the trial was James Toura, a police officer who arrived at the scene after the accident, but while the two buildings and the tractor-trailer were still burning. Nearly all of plaintiffs’ evidence came from alleged admissions against interest made by defendant George to Officer Toura at the scene of the accident and alleged admissions against interest contained in defendant George’s answers to interrogatories and in his deposition, to which admissions all of the other defendants timely and successfully objected as not being binding upon them. Some evidence came from pictures taken after the accident.

We first consider whether a submissible case was made against defendants Trimm and McWilliams. Plaintiffs’ counsel in his opening statement admitted to the jury and stipulated with these defendants’ attorney that these two defendants who are partners in the ownership of the tractor-trailer, had leased it to defendant Colonial Petroleum Company and that defendant George was actually an employee of the Colonial Petroleum Company and was operating the truck at the time in question as its employee for and on its behalf. Yet plaintiff now contends the trial court erred in directing a verdict for defendants Trimm and McWilliams “since these defendants admit ownership of the vehicle driven by George * * * (and) such ownership raises a presumption of employment and that George was acting in the course thereof” citing O’Malley v. Heman Construction Company, 255 Mo. 386, 164 S.W. 565; Fleischman v. Polar Wave Ice & Fuel Co., 148 Mo.App. 117, 127 S.W. 660 and Stevens v. Missouri Pac. Ry. Co., Mo., 355 S.W.2d 122. However, in none of the cited cases was there an admission or stipulation by the pertinent party that the owned vehicle had been leased or given over to another person whose employee or agent was operating it in the scope of his employment and for the benefit of that latter person. Whatever presumption or inference concerning whether the driver was the vehicle owner’s servant might otherwise obtain, no presumption or inference of employment of a driver by the owner and that the driver was acting in the course of such employment can be permitted to be drawn from mere ownership of the vehicle in question in the face of an admission or stipulation to the contrary. It is plaintiffs’ tacit concession that unless George was an employee of defendants Trimm and McWilliams at the time in question no submissible case was made against them. Under the facts before us there is no permissible inference or presumption of the nature plaintiff wishes to assert, and the trial court did not err in directing a verdict and entering judgment for defendants Trimm and McWilliams.

Plaintiffs next contend the trial court erred in directing a verdict for defendant Colonial Petroleum Company for the reason that company admitted it was George’s employer and, as such, is liable for George’s negligence. The difficulty with this contention is that to make out any semblance of a submissible case against George, plaintiffs found it necessary to introduce as admissions against interest George’s answers to interrogatories and George’s answers contained in his deposition, to all of which tire defendants, including Colonial Petroleum Company, timely objected as not being binding on them. These objections were sustained by the trial court which instructed the jury that the particular evidence could not be considered as applying to any defendant other than George. See, Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947; Roush v. Alkire Truck Lines, Inc., Mo., 299 S.W.2d 518; Murray v. DeLuxe Motor Stages of Illinois, Mo.App., 133 S.W.2d 1074(11). Plaintiffs did not obj ect to these rulings and instructions and have not preserved the question of their correctness for appellate review. Stripped of the benefit of this evidence (which is set out below in connection with our discussion of defendant George’s liability) plaintiffs clearly have failed to make a submissible case against defendant Colonial Petroleum Company, and the trial court did not err in directing a verdict for that defendant.

As to defendant George, plaintiffs suggest three particular matters in which they contend a submissible case of negligence was made. The first is that George was negligent in the operation of the tractor-trailer unit in executing the right turn onto State Street in that he failed to keep a proper lookout in the operation of the vehicle he was driving. Specifically, say plaintiffs, when George looked in his rear-vision mirror while still fifteen feet from the intersection and saw nothing he didn’t look with “ordinary care under the circumstances” or he would have seen the oncoming Pontiac automobile which must have been there to be seen, and he would not have attempted to turn.

The substantive law of Kansas controls in this case as the accident occurred in that state. It is the stated rule in Kansas that “ * * * the driver of a motor vehicle has the duty of keeping a proper lookout at all times, the extent of observation being dependent upon the conditions and circumstances then existing * * DeGraw v. Kansas City & Leavenworth Transp. Co., 170 Kan. 713, 717, 228 P.2d 527, 531 (1951). And, the driver of a motor vehicle is presumed to have seen what he could and should have seen in the proper performance of his duty. Bottenberg Implement Co. v. Sheffield, 171 Kan. 67, 229 P.2d 1004. His duty includes the exercise of ordinary or reasonable care in making a turn. Garrison v. Denton, 170 Kan. 79, 223 P.2d 718.

The difficulty with plaintiffs’ contention is not with their statement of the substantive law of Kansas upon which they rely but rather is with its application to the sparse evidence before us.

The tractor-trailer had almost completed its turn at the time of the impact which according to the evidence left some debris “about” eight feet south of the north curb of State Street and approximately even with the west curb line of Third Street. As to the Pontiac automobile, where it came from, how fast it was traveling, or whether it had its lights on that night, the record is silent. Likewise the record is barren of any evidence placing the Pontiac automobile within George’s possible view at the time he looked into the rear-view mirrors. In fact there is no evidence placing it anywhere until after the collision. Officer Toura, who acknowledged the Pontiac could have been moved prior to his arrival, stated that on his arrival at the scene the Pontiac car was on the northwest corner of the intersection, facing in a southwesterly direction, with a portion of the front part up on the curb. There was no mention of skid marks or tire marks.

Did the Pontiac come racing up from a side street or alley? Did it come out of one of the private driveways? Did it come up over the sharp hill crest where State Street enters Third from the east, then run out of control and swerve to the right around the end of the trailer and back into the side of it? Was it behind the tractor-trailer unit but so close as to be in a blind spot to one looking into this type of rear-view mirror? Was it so far behind the tractor-trailer unit as not to be discernible in the dark? These are speculative matters and, of course, a jury is not permitted to pass on an issue on which there is no pertinent substantial evidence and resort must be had to speculation, guess or surmise to resolve it. It is our conclusion that under these particular facts there was no submissible issue of negligence raised because of defendant George’s failure to see the Pontiac automobile at the time he looked into his rear-vision mirrors.

In ruling as we have we do not hold that under different facts the physical evidence at the scene of an accident could not be sufficient to permit a finding as to where a car was just prior to an accident, or when a car driver looked in a particular direction.

Plaintiffs next contend the evidence supported a submission that" defendant George negligently handled his equipment after the collision. As illuminated in their brief plaintiffs say there was evidence that after the Pontiac ran into the trailer and set it afire George was negligent in abandoning the tractor-trailer “without properly setting the brakes thereon” and in driving it in violation of the Kansas Statute (Section 8-5,101 G.S.Kan. 1949) requiring such units to be equipped with adequate brakes. A determination of these two contentions requires consideration of the very sketchy evidence pertinent to them, which evidence we now set out in full.

Officer- Toura, who arrived at the scene after the tractor-trailer had rolled hack down the hill and had come to a stop, at the trial was asked what George told him about how this collision occurred and what transpired. He answered, “The thing he told me, that he was making a right-hand turn from Third Street onto State, he felt an impact of some sort, and as he rounded —started up State, he looked out his rear-view mirror on the right side and seen that the trailer was on fire. He said he applied his air brakes immediately and jumped out, and then the truck rolled back down the hill.”

■ Defendant George’s answers to interrogatories No. 10 and No. 11 were the sole testimony concerning the type and condition of the brakes. ' Interrogatory No. 10: “Describe the make, type and model of brakes of the tractor-trailer unit in question. Answer: * * * I am informed that the service brakes on the tractor were standard Ford 4-wheel air brake equipment, probably of the Bendix-Westinghouse make. i There was also a mechanical brake which operated on the drive shaft of the tractor. The trailer was equipped with air brakes, but I do not know the make.” Interrogatory No. 11: “Describe all braking systems on said tractor-trailer unit and how said systems operate. Answer: As I understand the air brake system, the brake shoes are applied to the brake drums by air pressure developed and maintained in reservoirs by a compressor operated by the tractor engine. Operation of the air brakes is controlled by valves, one of which is operated by the brake pedal and the other by a hand lever. Use of the brake pedal applies the brakes on all wheels, including the trailer wheels. Use of the hand lever applies only the trailer brakes. The drive shaft brake was operated by mechanical linkage controlled by a handle.” Other evidence indicated the air brakes were connected by a rubber hose from the tractor to the trailer. If the hose develops a leak “after a pressure gets so low it locks the brakes.”

It is our view that the meager testimony outlined above is insufficient to be deemed substantial testimony that the brakes on the tractor-trailer unit did not meet the standards required by the Kansas Statute, Section 8-5,101, and hence is insufficient to make a submissible case. The answer to interrogatories No. 10 and No. 11 describe a braking system which plaintiffs do not contend is not sufficient to meet the statutory requirements.

Nor do we believe that the testimony of application by defendant George of only one of the two sets of brakes (the air brakes) on the tractor-trailer unit under the described emergency conditions, George then jumping out, “and then the truck rolled back down the hill” is sufficient to permit a jury to find that the reason the truck rolled down the hill was because the brakes were insufficient to comply with the statutory requirements therefor. The jury would have to engage in speculation in order to reach such a conclusion. The reason just as well could be that George in his great haste to escape the burning trailer did not sufficiently set the air brakes. Then, again, one might speculate that the air brakes gave way because the fire caused them to lose part or all of their holding power.

One matter that might have shed some light on the subject is how long the air brakes held, if at all, after George applied them. However this, also, is speculative. The entire answer to this question appears to rest on the words, “and then the truck rolled back down tbe hill.” Webster’s International Dictionary (3rd New Addition) defines “then” as being capable of several meanings, namely, (1) at that time, (2) soon after that, and (3) following next after this. There is nothing in the context of the brief statement Officer Toura said that George made that points to which of these possible meanings the declarant intended.

We next consider whether the evidence to the effect that George applied the air brakes, and inferentially that he did not apply the drive shaft brake, was such as to make a submissible case on whether that action by George breached his duty to exercise ordinary care under the circumstances. Counsel for the defendants has sited to us the case of Trinity Universal Insurance Company v. Farmers’ Co-operative Exchange of Morland, 171 Kan. 501, 233 P.2d 468, as controlling on this issue. In that case plaintiff alleged in its petition that defendant’s employee, Richmeier, was making a delivery of certain motor fuels to a motor company; that the defendant’s tank wagon stopped at the motor company and was unloading motor fuel from the tank wagon by a hose attachment running from the tank to the protruding spout of an underground tank; that after inserting the hose into the spout, Richmeier walked to the front end of the tank wagon and in some manner unknown to plaintiff the motor fuel being unloaded became ignited and the motor vehicle and tank wagon caught fire; “‘[t]hat the defendant, Rich-meier, thereupon entered into the cab of said truck and tank wagon and started to drive the same in an easterly direction along Main Street of the said City of Morland. That while said truck and tank wagon was being so driven while the motor fuels or petroleum products therein contained, together with the tank wagon were blazing and on fire. That said defendant, Richmeier, drove said motor vehicle for approximately one-half to three-fourths of a city block to the east of said Dinkel Motor Company, and then negligently and carelessly abandoned said burning motor truck and tank wagon, while the same was still running upon said public highway.’ And that as a direct and proximate result of the negligence of Richmeier in abandoning the motor truck and tank wagon while it was on fire and in permitting the truck and wagon to continue running down the public street while unattended, the truck and tank crashed into another motor vehicle which was parked north of the building occupied by Keith, the tank wagon exploded and ignited the building occupied by Keith, causing the building and contents to be destroyed by fire.” In deciding the question the Kansas Supreme Court discussed and applied the sudden peril or sudden emergency doctrine saying, “In 38 Am.Jur. p. 686, acts in emergency or sudden peril are treated in this manner: ‘The prudence and propriety of an action are not to be judged by the event but by the circumstances under which it was done. The rule, as stated generally, is that one who, in a sudden emergency, acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence, provided he exercised in the emergency the care of a reasonably prudent individual under like circumstances. The fact that injurious consequences might have been avoided had he selected another course of conduct does not charge him with negligence. An act of self-preservation performed in circumstances of extreme danger is not to be judged by the rules which are applicable ordinarily to acts done in cold blood, with time and opportunity for the party to consider the consequences and the methods of the act he is about to do. Failure to exercise the best judgment in an emergency created by another person is not necessarily negligent even though the error of judgment has results which are lamentable from the standpoint of injurious consequences to third persons.’ ” The Kansas Supreme Court concluded: “Under the allegations of the petition the emergency occurred when the tank wagon and truck became afire. Perhaps a calm deliberation would have led to a conclusion that if left standing in front of the garage the truck and the tank and its contents would have burned where they stood, without any explosion of the tank and without any damage to the surrounding property, or perhaps that same calm deliberation would have led Richmeier to realize that fire in the tank wagon would produce an explosion dangerous to any person or property nearby and that prudence demanded that it be removed speedily to some locality where possible damage would be limited perhaps to the truck and tank itself. The fact that injurious consequences might not have followed had he left the truck and tank stand where the fire started does not convict Richmeier of negligence. Whichever course he concluded and acted upon would not convict him of actionable negligence. The petition charges however that he was negligent in abandoning the truck and tank without pausing to stop them. The fact that Richmeier left the burning truck and tank may not be so isolated from the entire course of events alleged and he may not be said to have been negligent in not remaining in a position of danger and peril until he stopped the truck and tank. The emergency started with the inception of the fire and did not end until the explosion. There is no allegation capable of interpretation that Richmeier by any act of his created the emergency. In our opinion, the allegations of the amended petition did not charge Richmeier with actionable negligence, and the trial court did not err in ^ sustaining the defendants’ demurrer.”

'■ The Kansas Supreme Court in the Trinity case, supra, relied on an earlier Kansas decision stating, “In Barnhardt v. American Glycerin Co., 113 Kan. 136, 213 P. 663, 31 A.L.R. 721, the defendant was transporting two loads of nitroglycerin by motor vehicles. One became on fire and after it i passed plaintiff’s home about 800 feet distant was a steep hill. The vehicle on fire ¡ could not make the hill, its driver aban- . doned it and it ran back down the hill and : upset. About a half - an hour later the nitroglycerin exploded and plaintiff received injuries for which .she sought damages. From a judgment for plaintiff, the defendant appealed, contending that for a person to abandon an automobile load of nitroglycerin when the automobile was on fire and stalled on a steep hill was not actionable negligence. The court reviewed some of the authorities, said that courts take judical notice of the highly explosive qualities of nitroglycerin and that it explodes more readily when heated, stated there was no fault of the driver that the automobile was on fire or stalled, no showing he could have put out the fire or prevented the automobile from going back down the hill, or done any good in any way by staying, and held: ‘One driving an automobile loaded with nitroglycerin, who discovers that the automobile is on fire, the fire not having been caused by any lack of care on his part, and being stuck on a steep hill, is not guilty of actionable negligence in abandoning the automobile.’ (Syl. 1.)

“Reference is made to Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P.2d 923, for a statement of the facts, but where it was held: ‘In determining whether deceased was guilty of contributory negligence, rule followed that one who in a sudden emergency acts according to his best judgment or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.’ (Syl. 3.)

“In White v. Toombs, 164 Kan. 635, 192 P.2d 174, where the defendant relied on the rule to avoid liability for plaintiff’s injuries, it was said: ‘Subject to certain exception, not present in this case, one who acts in an emergency is not chargeable with negligence.’ (Citing cases.) 164 Kan. loc. cit. 639, 192 P.2d 177.”

In Metzinger v. Subera, 175 Kan. 542, 266 P.2d 287 (1954) and Meng v. Penner, 179 Kan. 789, 298 P.2d 246 (1956) the Kansas Supreme Court cited with approval both the Trinity Universal Insurance Co. v. Farmers’ Co-operative Exchange of Morland and the Barnhardt v. American Glycerin Co. cases, supra.

It is our duty to apply the Kansas substantive law to the facts before us, and we see no reasonable escape from defendants’ contention that the case before us falls within the scope of the Universal Insurance Co., and the Farmers’ Co-operative Exchange of Morland cases which have never been overruled and which presumably are still the law of the State of Kansas on this subject. We confess that were we free to apply the substantive law of Missouri we might well reach a different conclusion. See the persuasive dissent of Justice Wertz, Metzinger v. Subera, 175 Kan. 542, 266 P.2d 287, 292. However, if as a matter of Kansas substantive law involving the emergency doctrine one cannot be found negligent for abandoning a moving vehicle containing a highly explosive charge that is on fire without setting any of ' the vehicle’s brakes it is logically inescapable that under that same law one under •similar circumstances of emergency who sets only one of two sets of brakes on such a burning vehicle cannot be found negligent for his failure to set other or additional brakes.

Plaintiffs’ final contention is that defendant George was required to drive as close as practical to the right hand curb of Third Street while turning onto State, pursuant to Section 8-544 of the General Statutes of Kansas, 1949, and that ■the physical facts and circumstances in evidence constitute substantial evidence of George’s violation -of this statutory duty, which violation is negligence as a matter of law. The difficulty with this contention is that plantiffs failed to adduce substantial evidence from which a jury could find that the right turn was not “made as close as practical” to the right-hand curb. There is no showing as to how far from the right-hand curb the nearest portion of the 45 foot long vehicle was at any particular time during the turn. Nor is there any showing as to what lane the tractor-trailer was in as it commenced its right turn or when it completed its turn. It is common knowledge and a physical fact that a vehicle 45 feet long cannot, along its full length, hug or be immediately adjacent to the curb while making a right-hand turn and remain in the roadway. The bare fact that the Pontiac coming from some unspecified place managed to strike the 45 foot tractor-trailer near the middle of the trailer so as to leave debris at the point earlier described is not sufficient to permit a jury submission of the question of whether the turn was made “as close as practical” to the right-hand curb.

In view of our rulings above, it is axiomatic that there is no submissible case against defendant Aetna Casualty and Surety Company, the liability insurer.

While numerous other contentions have been raised by the respondents and appellants these we have discussed are disposi-tive of the case and it would serve no present purpose to go beyond them.

The judgment is affirmed.

STORCKMAN, P. J., and EAGER, J., concur.

LEEDY, J., not sitting.

      . Defendants’ counsel advised the jury in the opening statement that the Pontiac automobile was a stolen car being driven at a high rate of speed (presumably by the thief) but the record is completely devoid of any supportive evidence of this.

      . The Kansas Statute, Section 8-5,101 provides “(1) Every motor vehicle or combination of vehicles other than a motorcycle, when operated upon a highway, shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle or combination of vehicles', including two separate ■ means of applying the brakes,, each of which means shall be effective to apply the brakes to• at least two wheels. If these two separate means of applying the brakes are • connected in any way, they shall be so constructed that failure to any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels ♦ * * (b) (2) * * * said hand brake shall be adequate to hold such vehicle or vehicles stationary on any grade upon which operated.”

      . Section 8-544, General Statutes of Kansas 1949, provides: “Tlie driver of a vehicle intending to turn at an intersection shall do so as follows: (a) Both the approach for a right turn and a right turn shall be made as close as practical to the right-hand curb or edge of the roadway.” In State v. Davidson, 152 Kan. 460, 105 P.2d 876, 878, the Kansas Supreme Court ruled, “It is a matter of common knowledge that the driver of a motor vehicle, intending to make a right-hand turn at an intersection, will, for the protection of himself and for others, keep as close as practical to the right-hand curb or edge of the roadway. The standard of conduct imposed by the statute is that of a reasonable man under like circumstances.”


source: Caselaw Access Project

author: HYDE, Presiding Judge. PER CURIAM:

license: Public Domain

text:
    CAMPBELL SIXTY-SIX EXPRESS, INC., a Corporation, Respondent, v. John M. DALTON, Thomas F. Eagleton, Tyre W. Burton, M. E. Morris, Hugh Waggoner, and J. J. Corbett, Members of the Missouri Highway Reciprocity Commission, and Fred L. Howard, Secretary of said Commission, Appellants.
    No. 50179.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 11, 1964.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Fred L. Howard, Jefferson City, of counsel, for appellants.
    W. C. Dannevik, Jr., Turner White, of White, Dickey & Skelton, Springfield, for respondent.
   HYDE, Presiding Judge.

Action for declaratory judgment and injunction in two counts. Count I sought determination of rights under fleet pro-ration registration not now in dispute, the decree being in accord with our decision in Ruan Transportation Corp. v. Missouri Highway Reciprocity Commission, Mo., 369 S.W.2d 220. Count II sought determination of rights under “Multi-State Reciprocal Agreement Governing the Operation of Interstate Vehicles” between Missouri, Tennessee and Mississippi which the Court declared favorably to plaintiff and the Commission has appealed from that decision.

The only issues on this appeal are on Count II and are whether plaintiff’s vehicles based in Tennessee, bearing Tennessee license tags, may on interstate trips pick up freight at one point in Missouri and deliver it to another point in Missouri; and whether its tractors, so based and bearing Tennessee license tags, may haul a trailer from one point in Missouri to another point in Missouri (Kansas City to Springfield) and then haul another trailer (Springfield to Memphis) for the rest of the tractor’s trip. Sometimes the trailer and driver which have originated at Kansas City are both changed in Springfield although the tractor will continue on to Memphis, Tennessee, while the driver operates on a “turn-around” basis. Drivers may start at each end of the Kansas City-Memphis line, meeting at Springfield, exchanging tractors, and each driver then returning to his respective origin following the exchange.

Plaintiff first contends defendants have preserved nothing for appellate review because their motions for new trial and to amend judgment were not timely filed, citing Woods v. Cantrell, 356 Mo. 194, 201 S.W.2d 311, and Lloyd v. Garren, Mo.Sup., 366 S.W.2d 341. Of course, defendant could raise “the sufficiency of the evidence to support the judgment” without any motion for new trial, Rule 73.01(d), V.A.M.R., Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 1167, 200 S.W.2d 55, 63, which would certainly be applicable to a declaratory judgment case. However, what plaintiff really means is that defendants’ appeal should be dismissed, as was done in the Woods case, because not taken in time. This would be required, if a timely motion for new trial was not filed, because the notice of appeal was not filed until May 16, 1963, judgment having been entered in January 1963. Thus a timely motion for new trial was required to postpone the finality of the judgment beyond 30 days after it was entered, as held in the Seabaugh case. (200 S.W.2d 1. c. 63.) Therefore, we must consider whether the motion for new trial was timely filed herein. Because the transcript is not clear as to this, we have had a certified copy of the record furnished by the Circuit Court of Cole County. It shows that, in an order made on January 18, 1963, the court “finds the issues for plaintiff and against defendants and orders judgment accordingly.” It then shows a declaratory judgment decree, signed by the Judge dated January 24, 1963, and filed on that date, which recited the finding, on January 18, 1963, of the issues “in favor of plaintiff and against defendants” stated in the decree to be “upon Counts I and II of plaintiff’s petition,” with separate declarations as to the issues presented by each count.

In jury cases “the judgment shall be entered as of the day of the verdict,” Rulé 78.02. However, in cases tried without a jury “at or after the trial, the court shall render such judgment as it thinks right.” Rule 73.01(b). Moreover, Rule 82.06 authorizes the court, in certain nonjury cases to make separate designations of determinations of claims as final or interlocutory judgments. In this case the entry of January 18th did not mention the counts on which the case was submitted or either of them and they were first mentioned in the decree dated January 24th. These two counts raised separate and distinct issues as to rights under two very different interstate agreements and the determination of these rights was not specified until they were stated in the declaratory judgment decree of January 24th. Until then there was nothing in the record to show what rights the court meant the plaintiff should have under either agreement.

It is said: “An order merely directing or authorizing the entry of judgment in the case does not constitute a judgment; to have this effefct it must he so worded as to express the final sentence of the court on the matters contained in the record and to end the case at once, without contemplating any further judicial action.” 49 C.J.S. Judgments § 5, p. 30. We construe the order of January 18th as being only an order authorizing entry of a judgment. It was not. “so..worded as to express the final sentence of the court on the matters” submitted as was true in Woods v. Cantrell where “[tjhe judgment entry in extehso; prepared by the court and spread of fecófd on December 29, 1945, did riot in the opinion of the court, dispose of any issues'not disposed of by the brief entry of September 15, 1945.” (201 S.W.2d 1. c. 315.). In that case, the court’s first judgment entry declared a deed and bill of sale to be mortgages.,and that disposed of the entire controversy. This was not true in this" case because the rights under the agreements herein involved were not stated, specified or declared until the decree of January 24th was entered by signing, datiijg and filing it on that date. Therefore, we hold that the decree of January. 24th was the final judgment herein so that defendants’ motion was timely filed and their appeal timely taken.

The two agreements before the court for construction were very different, concerned entirely different situations, • and were authorized by different provisions of the statute. Rights under fleet proration agreements authorized by Sec. 301.277, subd. 1(2) were the issues for determination under Count I (decided in the Rúan case) ; while Count II involved rights under agreements concerning vehicles, based in other states, authorized by Sec. 301.277, subd. 1(3). Statutory references are to RSMo ánd VA.M.S.

The Multistate Agreement involved, concerning vehicles based in Tennessee, states (Art. I, A) its purpose to be “to grant reciprocity subject to the exceptions noted herein * * * by the exemption from Registration and payment of all fees and taxes in each other contracting jurisdiction when such vehicles are used in any type of interstate vehicle operation in any such other contracting jurisdiction.” It recognizes (Art. Ill, C2) commercial vehicles as properly registered in a state ‘“if the commercial enterprise in which such vehicle is used, has a place of business therein, and, if the vehicle is most frequently dispatched, garaged, serviced, maintained,, operated or otherwise controlled in or from such place of business, and, the owner and/or lessee, has assigned the yehicle to such place of business.”

The agreement provides (Art. IV, A) : “Privately owned and operated passenger vehicles properly licensed by any one of the reciprocating jurisdictions shall be permitted to operate freely between the several jurisdictions.” However, as to motor carriers of property for hire, it provides (Art. IV, E) ; “Motor vehicles properly licensed by any one of the reciprocating jurisdictions, including trucks, tractors, trailers,, and semi-trailers, operated in the transportation of property for-hire may be operated in the several jurisdictions without limitation as to the number of trips and without the payment of any motor vehicle fees whatsoever to the reciprocating jurisdictions when operated strictly interstate.” This privilege is made subject to “additional conditions and requirements hereinafter listed in Articles V and VI.” Article-V refers to size, weight, speed, safety rules,. Interstate Commerce Commission permits, etc. Art. VI refers to exceptions of each state which are made part of the agreement.

The Missouri exceptions contain the following provision: “2. Vehicles operating on the highways of Missouri without being. required to pay Missouri Motor Vehicle Registration fees on the basis of reciprocal privileges granted under this agreement are limited to such operations and movements as are exclusively interstate in character. Vehicles operating or moving between two points in Missouri or carrying any merchandise or passengers between two points in Missouri will be required to pay the full Missouri Motor Vehicle Registration fee required for such operation.” (All emphasis ours.)

These provisions of the Multistate Agreement for reciprocity are obviously very different from the provisions of the Fleet Proration Agreement set out in the Ruan case (369 S.W.2d 1. c. 223) such as Sec. 54 thereof providing: “Upon the registration of a fleet in a contracting State pursuant to this article, each vehicle in the fleet may be operated in both interstate and intrastate operations in such State.” The Multistate Agreement in Art. I, A, authorizes only “interstate vehicle operation.” The authority to motor carriers of property for hire to operate without payment of license fees is specifically stated, in Art. IV, E, to be “when operated strictly interstate.” The Missouri exceptions emphasize these provisions in limiting such vehicles to “such operations and movements as are exclusively interstate in character.” This limitation is clearly and very definitely restated in the final sentence to require a Missouri license for vehicles “carrying any merchandise or passengers between two points in Missouri.” We do not see how language could be plainer or more definite to show that merchandise cannot be carried between two points in Missouri regardless of whether the tractor or trailer, either or both, is on an interstate trip. The Fleet Proration Agreement, Sec. 73, designates a trip combining interstate and intrastate deliveries as an “intrastate operation which is incidental to a trip of such vehicle involving interstate operation.” (Rúan case, 369 S.W.2d 1. c. 224.) Therefore, we hold that this kind of an operation, permitted by the Proration Agreement, is prohibited by the Multistate Agreement on a foreign license, regardless of whether or not the tractor or trailer, either or both, is on an interstate trip.

Since we construe the Multistate Agreement to prohibit the kind of operations, plaintiff claims to be authorized by its Tennessee license (delivery of goods, picked up at one point in this state, to another point in this state while on an interstate trip), it is not necessary to decide defendants’ contention that Sec. 301.277, subd. 5 prohibits them from making such an agreement.

The decree is affirmed as to Count I and is reversed and remanded as to Count II with directions to enter a declaratory-judgment on Count II in accordance with the views, herein expressed and modify the order for an injunction accordingly.

All concur.

ON MOTION FOR REHEARING OR TO TRANSFER TO COURT EN BANC

PER CURIAM:

Respondent says it does not disagree with our ruling that its operations are in violation of the Multi-State Reciprocal Agreement but argues the agreement should not be enforced because it imposes a tax upon the movement of freight instead of a tax on the movement of a vehicle, claiming Sec. 301.277 contemplates only a tax on the movement of vehicles. It also argues that the Reciprocity Commission seeks to impose a tax on the movement of freight and says it does not have the power to do so. Respondent also says the Multi-State Agreement imposes a double tax for a single privilege by requiring a vehicle to be licensed in Tennessee and then requiring it to be licensed in Missouri to move freight intrastate in Missouri. The answer to-these contentions is that Missouri is not required to allow any vehicle not licensed in Missouri to engage in any intrastate business. “Depriving an interstate motor vehicle carrier of the incidental profits which might be derived from conducting an intrastate business as an incident to the interstate business is not an interference with interstate commerce within the prohibition of the Federal Constitution.” 37 Am.Jur. 560, Motor Transportation, Sec. 67. See also Sec. 72, p. 562, and Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402, in which the court held that reasonable regulations, including license fees, “are valid as to in-ti'astate traffic, and, where there is no discrimination against the interstate commerce which may be affected, do not impose an unconstitutional burden upon that commerce.” See also Annotations, 109 A.L.R. 559, 52 A.L.R. 533, 25 A.L.R. 37; 15 C.J.S. Commerce § 71 b(1) (2), p. 392, § 112 h, p. 470 ; 60 C.J.S. Motor Vehicles § 67, p. 246.

It is also stated in 7 Am.Jur .2d 636, Automobiles and Highway Traffic, Sec. 56: “In the absence of federal legislation covering the subj ect, the state may impose upon motor vehicles using the highways in interstate commerce, either exclusively or in conjunction with intrastate commerce, such license or similar fees or taxes as will reasonably defray the expense of administering regulations imposed by the state for insuring the public safety and convenience, and as will be a fair contribution to the cost of constructing and maintaining the state’s highways, at least to the extent that such imposition is not discriminatory.” See also State ex rel. Illinois Greyhound Lines v. Public Service Commission, 341 Mo. 190, 108 S.W.2d 116, 119, 115 A.L.R. 1097. Missouri, by signing the Multi-State Agreement, is not requiring respondent to license its vehicles in Tennessee, as respondent suggests, but instead is granting it the privilege of free use of Missouri highways, if it does so, for like privileges for Missouri licensed vehicles in Tennessee.

The motion for rehearing or to transfer to Court en Banc is overruled


author: WELBORN, Commissioner. PER CURIAM:

text:
    KRUPNICK AND ASSOCIATES, INC., (Plaintiff) Appellant, v. Edward J. HELLMICH et al., (Defendants) Respondents.
    No. 49993.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.
    Motion for Rehearing or to Remand Denied May 11, 1964.

      Newmark & Baris, Irl B. Baris, Michael N. Newmark, St. Louis, for appellant.
    G. M. Redman, La Tourette & Rebman, St. Louis, for respondents.
   WELBORN, Commissioner.

This is an action for damages for breach of an alleged contract under which appellant, Krupnick and Associates, Inc., was to furnish advertising services to respondents.' A jury returned a verdict in favor of appellant for $16,302.60, plus interest. The trial court subsequently set aside the verdict and entered judgment for respondents. This appeal is from the judgment so entered. Because of the amount in controversy, we have jurisdiction of the appeal.

Appellant, Krupnick and Associates, Inc., is a Missouri corporation, engaged in the business of an advertising agency in the City of St. Louis. The individual respondents, Edward J. Hellmich and Ernest E. Hellmich, were partners in business conducted in St. Louis under the names, “The Branched Co.,” and “Hellmich Mfg. Co.” The other individual respondents, Emil Hell-mich and Karl Kress, were also partners in the Hellmich Mfg. Co. Hellmich Mfg. Co. manufactured melamine plastic dinnerware. The Branched Co. sold the products of Hellmich Mfg. Co. The two partnerships operated jointly and any obligation under the contract in question was the obligation of both partnerships. We will refer to the individual respondents collectively as “Branched.” Lenox Plastics, Incorporated, also a party respondent, is a Delaware corporation, licensed to do business in Missouri. It purchased the business of Branched in January, 1958.

In its petition, appellant alleged that it agreed with Branched, in August, 1957, to prepare an advertising-campaign for Branched for 1958 on which Branched agreed to spend $143,242.25 for advertising, with appellant to receive 15% of that amount as compensation for its services, and that appellant, in reliance on the agreement, performed ad services required of it for the advertising campaign. The petition alleged the sale of Branchell’s business to Lenox Plastics, Incorporated, in January, 1958, and that Lenox thereafter carried on the business; that on or about January 31, 1958, respondents attempted to cancel the agreement by directing appellant not to place any more advertising, although the appellant had fully performed the work to be done by it under the agreement. Damages were sought in the amount of $18,929.85, which amount was reduced by amendment at the trial to $16,302.60.

Admitting the allegation regarding the sale to Lenox, separate answers of Lenox and of the individual respondents, jointly, denied the essential allegations of the petition.

Appellant’s witnesses at the trial were Harvey Brown, vice-president and account executive of appellant, who handled the Branchell account, and Sam Krupnick, appellant’s president. From their testimony, viewed in the light most favorable to appellant, the jury could have found that Branchell did, in October, 1957, after a series of conferences with representatives of Krupnick, establish an advertising budget for the year 1958 in which approximately $143,242 would be spent on periodical advertising; that thereafter Krupnick went to work on a final plan for such advertising, which included “which media to run, which month to carry, which type of ad * * * and a budget breakdown of how much for each ad and which publication, which month * * Such program was prepared and submitted in writing to Branchell early in December, 1957, the document detailing the objectives of the program and the type of advertising to be employed. A detailed schedule was included, showing the months in which advertisements were to be placed in each of ten magazines of general, nationwide circulation, such as Life, Good Housekeeping, and in five trade publications. The program showed the amount budgeted to be spent for each advertisement insertion. The total was $120,839.10 for national publications and $27,647.96 for trade publications. Minor modifications were subsequently made in the plan which resulted in a planned expenditure of $143,242.25. Early in December, 1957, Branchell approved the program and told Krupnick to go ahead and try to get the ads ready for the program. It was agreed “to proceed, get the photography done, get the type set, get the ads . prepared as early as possible so they could be shown or part of them shown at the sales meeting at the end of the year.”

Upon Branchell’s approval of the program, Krupnick proceeded to complete the advertisements. The program called for ads to be run in spring publications, in March, April and May, with the same advertisements being repeated in the fall, so that additional work was not required for the fall publications, once the first advertisements had been prepared. Krupnick completed 90% of the work required to produce the advertisements involved in the program. At sales meetings of Branchell personnel in January, 1958, the personnel were told of the advertising program of the company for 1958, which was the program Krupnick had prepared.

Prior to January, 1958, negotiations had been under way for Lenox’ acquisition of the Branchell business. Krupnick’s president, Sam Krupnick, was aware of the negotiations. Early in January, 1958, Ernest E. Hellmich, who was then in Pittsburgh, telephoned Sam and told him that the sale had been completed; that he would continue to be in charge of the St. Louis business; that Krupnick should go ahead with the 1958 advertising program as planned, but that he could give no assurance for the following year.

On January 31, 1958, a conference was held between representatives of Lenox and Krupnick. At that meeting, Krupnick personnel explained to Lenox the work which had been done toward completion of the program, which, according to Brown, was 90% completed. Lenox’ representatives told Krupnick that Lenox did not wish to carry out the advertising program planned for Branchell and that only a few of the advertisements planned should be placed in accordance with express authorization.

Advertisements were placed by Krupnick in some trade publications and one national publication. The amount billed respondents for such advertisements and other production costs totalled $34,558, which was paid. On April 11, 1958, William Trotter, advertising- manager of Branched, wrote Brown: ■“In order to clear this matter, this letter is necessary to inform you that unless new jobs are initiated by The Branched Com•pany, we should receive no additional invoices from Krupnick & Associates. If we do receive additional invoices, we cannot Vbe expected to be responsible for payment.”

There was no evidence presented of an ■ express discussion of Krupnick’s compensation in connection with the 1958 advertising program. The evidence on this subject •showed that, in 1956, Krupnick made a study • of Branchell’s operations and presented a '“Sales Betterment Plan,” which included ,100 specific recommendations regarding Branchell’s operation. Among the recommendations was one for an advertising budget of $420,000 for the year 1957. Branched paid Krupnick $19,600 for the study and report. However, Branched did not accept fully the advertising budget recommended and spent, in 1957, approximately $172,000 for advertising, through Krupnick.

The Sales Betterment Plan was a document of several hundred pages. Included was a 24-page statement of Krupnick on the subject of “Invoicing Policies and Compensation,” the first sentence of which read: “This is our method of compensation and invoicing clients for the services we perform.” Under the heading, “SOURCES OF COMPENSATION,” the following appeared :

“A. We derive our compensation from four sources:
“1. Commission we receive from the purchase of space, time, materials, and services for clients from media and sources which normally include standard agency commission in their charges.
“a. Standard agency commission is derived from the 15% discount allowed by the medium used. The medium bills its time or space to the agency at full rate, less the 15% discount. The difference between the full rate and the net total is the agency commission. This discount is not available to clients on direct purchase. Example:
Total cost of time or space at full card rate - $100.00
Less standard 15% agency commission - 15.00
Total cost to agency - 85.00
Agency gross income - 15.00
Approximately 70% of the agency’s total compensation comes from this source.
“2. Commission added by us to the cost of media, services, or material necessary to produce advertising, purchased for the client from sources which do not include standard agency commission in their charges.
***********
“3. Charges based on established rates for standard or special services on commissionable and noncommissionable advertising performed by the agency for the client.
*** * *******
“4. Fees, agreed on in advance with the client, to compensate for work performed from which commissions earned are insufficient.”

The final page of the treatise on “Invoicing Policies and Compensation” read as follows:

“IX. CLIENT AND AGENCY WORKING AGREEMENT
“Our arrangement with clients is very simple. It keeps the interest of the client on equal terms with that of the agency, since basically we are entering a partnership when they grant us the right to handle their advertising.
“A. While we enter client-agency relationships with the expectation they will continue indefinitely, either party is free to cancel at any time upon 90 days’ written notice by registered mail.
“B. In event of client’s termination of our agreement by the prescribed 90 days notice, space and/or time used in print or broadcast media whose firm closing dates fall within the 90-day period are to be placed by us.
“C. In the event client has approved advertising copy of any kind prepared by us which has not been used by the termination date of the agreement, and if subsequently this copy is used, ' we are to be paid an amount equivalent to the commission on the media (print and/or radio TV) in which this copy is used. Such payment is to be arranged by the client with the agency taking over from us.
“D. In event of termination, all rejected or unused advertising plans and ideas prepared by us remain our property to use as we see fit. This, provided such use does not involve the release of any confidential information regarding the client’s business or methods of operation.
“E. In the event that contracts with advertising media are transferred to another advertising agency, after expiration of the agreed-on interval following notice, we retain no rights to commissions on short-rate bills nor obligation to add back commissions to refunds made by media by reason of earning a lower rate.
“F. The client may, at any time during the life of our agreement, and upon reasonable notice, examine our files, books and records pertaining to the handling of his advertising.”

The evidence showed that the 1957 advertising program was carried on by Krupnick in accordance with these policies.

The trial court, in setting aside the verdict in favor of appellant, did so on the grounds that “all undisputed evidence establishes conclusively that the only agreements plaintiff had was to receive commissions for the purchase of advertising placed with advertising media which was approved by the client before placement with the media, and to receive commissions added to the cost of media, services, or material necessary to produce advertising purchased for the client from sources which do not include standard agency commission in their charges. The evidence shows conclusively that defendants had not defaulted in either of the above two respects, and likewise, plaintiff made no such claim. This case as plaintiff has admitted is not an action based on quantum meruit. Likewise, there is no evidence to support plaintiff’s theory that plaintiff was entitled to his 15% commission on the basis of the 1958 tentative budget ($143,242.00) which was projected for the entire year. Therefore, it is the conclusion of the Court that plaintiff failed to make a submissible case.”

In our opinion, the trial court properly reached its conclusion. Krupnick’s statement of “Invoicing Policies and Compensation” was in effect an offer to clients to whom the proposal was submitted to perform advertising services in accordance with such offer. The client, by ordering Krupnick to perform advertising services, thereby entered into a principal-agent relationship (H. W. Kastor & Sons Advertising Co. v. Elders, 170 Mo.App. 490, 156 S.W. 737; 2 Socolow, The Law of Radio Broadcasting, Section 339, pages 665-666; Annotation 53 A.L.R.2d 1139) with Krupnick. Krupnick’s compensation, absent evidence of agreement otherwise, was to be in accordance with the terms of its offer. Mr. Brown, a Krupnick vice-president, testified on direct examination on behalf of the appellant as follows:

“Q What is the usual method of charging a client in connection with advertising which is placed in their behalf?
“A The only direct charge is usually what we call production. An ad appears in a magazine is actually just a plate, an engraving that is printed, a printer prints a calling card or anything else, but it is much more complex. When an ad is done, first an artist makes a layout. A copywriter writes some copy, what you read in it, the text matter and so forth. A photographer may take a photograph. All of these elements are sort of composed together and then the so-called engraving is made or the plate from which it is printed and this is sent to the magazine. Whether it is Life, Look or Better Homes and Gardens, it is all about the same. The sheer mechanical part is relatively small. Any particular ad may cost five hundred dollars. It may cost five or ten thousand dollars, depending on the amount, color photograph or if it will be black and white, but these are mechanical charges that are done. Nine-tenths of the work is done outside of our office. We have an art department that perhaps makes the layout. We would write the copy, then an outside studio or photographer would do the art work. Typesetter outside would set the type. Engravers would make the engravings. These are all outside sources that do the actual mechanical work. We are then charged for this work by these people and we add 15 per cent onto these basic charges, or rather, 17.65. It is 15 per cent of the gross.
******
“Q Do you actually charge for the time of the personnel in the agency ?
“A No. This is actually covered- — - compensation is covered by what the agency gets from the media, by the 15 per cent of the money to pay salaries to the people who put in the time, planning, marketing, merchandising and so forth.
“Q So there are no separate charges to the client for the salaries which are actually paid. That is all included in the 15 per cent commission which is received by the agency, is that correct?
“A Which is received by the agency from the publication, that’s correct.”

This understanding on the part of the Krupnick official regarding the source and method of Krupnick’s compensation is wholly consistent with and in accordance with the terms of their statement of “Invoicing Policies and Compensation.”

By the terms of this document, the appellant expressly provided for situations in which commissions would not he adequate to cover costs of the agency and provided for agreement on fees in addition to commissions in such cases. However, there is no contention here that any agreement for additional fees was made between appellant and Branchell and that provision is not relied upon in this case.

Appellant’s offer, by its terms, provided for termination of the relationship and made express provision for the obligations of the parties in such event. The statement regarding compensation contemplated situations in which the agency would do preliminary work on an advertising program but the advertisements actually not be placed. Paragraph C of this portion of the statement is significant. If advertising copy had been prepared and not used by the termination date, Krupnick was to be paid an amount equivalent to the commission on the media in which the copy was used, if the copy was subsequently used. There is no contention here that any copy prepared by Krupnick was subsequently used by respondents. In view of the express terms of the parties’ arrangement, the respondents’ liability is to be determined thereunder. Huber Hoge, Inc. v. Smith & Wesson, USDC, Mass., 33 F.2d 923, 925, affirmed (CA 1st Mass.) 32 F.2d 699, cert. den. 280 U.S. 586, 50 S.Ct. 36, 74 L.Ed. 635.

The appellant’s action was one for breach of contract, and not in quantum meruit. See H. W. Kastor & Sons Advertising Co. v. Grove Laboratories, (USDC, E.D., Mo.) 58 F.Supp. 1011. Appellant’s evidence showed a contract under which a right of termination was given and which clearly defined the rights and obligations of the parties in such event. There was no evidence to warrant the finding of an implied agreement to a different effect. 3 Corbin on Contracts, Section 564, page 292. “When services have been rendered or property transferred in return for an express promise to pay a specified price or compensation, it is a mere truism to say that they were not rendered or transferred in return for an implied promise to pay a different price or compensation. It is more useful to say that, where two parties have expressly agreed on the price or compensation to be.paid for specified services or property transferred, it is. improbable that those services were rendered or that property transferred in return for an implied promise of a different price or compensation.” Ibid. 296.

There is nothing in the record in this-case to justify an inference that the parties contemplated that the 1958 advertising program would be handled by Krupnick on terms different from those expressed in its written offer. The record here shows-no discussion whatsoever of the subject of compensation in connection with the 1958 campaign. There is no evidence that the plan contemplated the rendition by Krup-nick of services different from, or additional to, those contemplated in the original offer. In such circumstances, we can find no basis-for an implied understanding to compensate appellant in a manner different from that called for by the written instrument prepared by appellant.

The appellant asserts that the evidence shows, as it does, that Branchell paid, production costs and commissions thereon for work done on the 1958 program for advertisements which were not used. Appellant asserts that the liability of the respondents in this regard is the same as their liability for commissions on the entire program and that Branchell, by paying such charges and commissions on production costs, in effect, acknowledged liability for commissions on the entire program. However, we do not consider that this conclusion follows. The statement of compensation policies shows that these two items are considered separately and that, insofar as production costs are concerned, an obligation arises on the part of the client when those costs are incurred, whether or not the advertisement is used. By reason of the obligation to pay such costs, the obligation. to pay the commission thereon also arises. However, the client is not obligated to pay for media space until media space is actually used and the obligation for commission would arise only at that time.

The Krupnick statement regarding relationship with clients provided for termination of the client-agency relationship on 90 days’ notice. There is no objection in this case that the Branched letter of April 11 did not comply with the 90-day time limitation. In our opinion, the notice was sufficient to terminate the relationship and neither Branched nor Lenox was thereafter obligated except in accordance with the terms of the written proposal, none of which are here relied upon.

As expressed in the interrogation of Mr. Brown, “Q. Cancellations are one of the hazards of your business, right, sir? A. To a degree, sir.” The action which Branched took was “one of the hazards of the business.” Mr. Krupnick, the president of Krupnick, knew of the pendency of the sale of Branched to Lenox. That the personnel of Krupnick were keenly aware of the potential consequences of the transaction is evident. The appellant introduced a summary of its time records which showed that some 710 hours were spent by Krup-nick personnel on the 1958 Branched advertising program. Some 145 hours of this time are shown by the time records to have been spent subsequent to January 9, 1958, when the news of the completion of the sale to Lenox was received, in preparation and presentation of what the records refer to as the “Lenox pitch.” Apparently this effort culminated in a “group pitch to Lenox” on January 31, in which numerous Krupnick personnel participated, but the “pitch” was unsuccessful. The fact that such an intensive effort was made to persuade Lenox to assume the advertising program indicates rather clearly that Krupnick was aware of the hazards and effect of cancellation.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

' PER CURIAM:

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

A11 of the Judges concur.

ON MOTION FOR REHEARING OR TO REMAND

PER CURIAM:

Appellant has filed a motion for rehearing before this court, or in the alternative, to remand the cause to the trial court for further proceedings and to allow amendment of its petition to seek recovery on another theory.

The motion for rehearing merely reargues matters considered and disposed of in the court’s opinion.

With respect to the motion to remand, appellant states that “the furtherance of justice requires that the cause be remanded to the trial court to permit plaintiff to amend its pleadings and to submit the case on a proper theory. If plaintiff misconceived its remedy and if the contract as pleaded was not proved, there was evidence which would substantiate recovery either on the ground of quantum meruit for the reasonable value of the services rendered by plaintiff or on the theory of a contract which was terminated by defendants effective July 10, 1958 (ninety days after the letter of April 11, 1958) with damages recoverable by plaintiff for breach until the effective date of termination.”

In respect to the contention that 'there was evidence to substantiate recovery on quantum meruit, the express contract which existed between the parties and which was shown by the plaintiff’s evidence would preclude recovery on that basis just as the express contract precluded the finding of a contract implied in fact and relied upon by plaintiff in its original petition. Such express contract would also preclude the existence of the contract implied by law or quasi contract, necessary to form the basis for recovery in quantum meruit. Perles & Stone, Inc. v. Childs Co., 340 Mo. 1125, 104 S.W.2d 361, 365; 17 C.J.S. Contracts § 6, page 574; 7 C.J.S. Assumpsit, Action of § 9, page 115; 12 Am.Jur., Contracts, Section 7, page 505. This is not an ordinary contract for personal services or work and labor which has been fully performed by the party seeking recovery, with the payment of money by the other party the only thing remaining. See Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824. By its express undertaking, Krupnick agreed that compensation for its services should be derived from specified sources, the major one being commission on media space purchased for advertisements placed on behalf of the defendant clients. This express agreement with regard to the source of plaintiff’s compensation negatives the existence of any agreement implied either in fact or by law to compensate them on a different basis.

With respect to the notice, the motion for rehearing objects for the first time to the sufficiency of the notice and to its failure to comply with the 90-day terms of the arrangement between the parties. No objection was offered at trial to the introduction of the evidence regarding the termination letter nor was any objection raised originally on the appeal. In any event, we are of the opinion that there is nothing to support a recovery on the basis outlined by the appellant in his motion here. In this connection, the appellant refers to subparagraph B of the provisions of the Client and Agency Working Agreement set out in the opinion. Appellant contends that, under this provision, the advertising agency had the right during the 90-day period to go forward with the placing of the advertisements on which it was working at the time of the termination notice and thereby collect commissions for the work already completed at the time of termination. However, the provisions of the Client and Agency Working Agreement refer specifically, in subparagraph B, to “space * * * used in print * * * media.” According to the evidence, before such space would be purchased, written authorization from the client would have been required. None had been obtained in this case. Therefore, the provision could not have been relied upon and extension of the relationship to the end of the 90-day period from April 11, 1958, would avail plaintiff nothing further in this case.

Therefore, the motion for rehearing or to remand is overruled.