author: HIGGINS, Commissioner.

text:
    Ellis BURKS, Respondent, v. Earl Jack LEAP and Dysart Dental Laboratory, a Corporation, Appellants.
    No. 52015.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 10, 1967.

      E. E. Thompson, Thomas A. Sweeny, Kansas City, for defendants-appellants, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    Robert L. Shirkey, Kansas City, for plaintif f-respondent.
   HIGGINS, Commissioner.

Action for $25,000 damages for personal injuries. Verdict and judgment were for defendants, and defendants appeal from the award of a new trial to plaintiff on grounds that the verdict was against the weight of the evidence and error in giving an instruction.

Plaintiff alleged that on January 14, 1964, at approximately 5:42 p. m., he was driving a 1962 Chevrolet in a southerly direction on Raytown Road near the intersection of 128th Street (129th Street at trial) in Kansas City, Missouri, and that defendant Leap, “as the agent, servant and employee” of defendant Dysart, then and there negligently operated a 1962 Corvair in a northerly direction into collision with plaintiff causing him to sustain bodily injuries. Defendants’ separate answers were general denials and allegations of contributory negligence.

Richard L. Kinney of the Kansas City Police Department Accident Investigation Unit received a call referable to this collision at 5:40 p. m., January 14, 1964. He proceeded to the scene and found the streets icy and “very slick out on the hill there.” There were places with and without ice. When he arrived “approximately fifteen minutes” after the accident, it was almost dark; "it was dusk when the accident occurred.” Raytown Road has blacktop asphalt surface 22 or 24 feet wide. He determined that Earl Jack Leap had been driving his 1962 Corvair north on Raytown Road and learned from him that he first noticed danger when approximately 100 feet from the collision site; that his speed at that time was approximately 40 miles per hour; and that his speed was approximately 25 miles per hour at collision. Mr. Kinney also determined that plaintiff was driving a 1962 Chevrolet 4-door station wagon south on Raytown Road, and learned from him that he also first noticed danger at approximately 100 feet from the collision; that his speed then was 20 to 25 miles per hour; and that his speed was 0 to 2 miles per hour at collision. Each driver was accompanied by his wife. The officer also determined that a car operated by Hollis Smith was “stuck” in the northbound lane headed south and that the Leap car struck it after colliding with plaintiff. He found damage to -the left side of plaintiff’s automobile and to the left front of the Leap automobile as a result of the collision between plaintiff and Mr. Leap, and damage to the right rear of Mr. Leap’s automobile as a result of the collision between Mr. Leap and Mr. Smith. The officer found debris, dirt, and “drop-down” in plaintiff’s side of the road, i. e., in the southbound lane or west half of the highway. He also found similar debris in the northbound lane near the Smith car, and stated that the two impacts were in the intersection approximately 25 feet apart. The officer judged the distance from the intersection south to the crest of the hill at approximately 750 feet. The shoulder on the east side of Raytown Road is fairly narrow and a ravine is beyond. There is a small shoulder and a drainage ditch on the west side. The officer judged an ordinary automobile to be approximately 6 feet wide. He reported the speed limit as 50 miles per hour and it was posted at 55 miles per hour^at trial.

Plaintiff was 34 years of age, employed by Armco Steel at the time of the collision. He was driving his 1962 Chevrolet station wagon from his home in Independence to take his wife to a doctor in Grandview. The weather was clear and cold and there were “spots of ice” on the road. He was not using chains or snow tires and had experienced no difficulty in controlling his automobile. He was familiar with Raytown Road and, on this occasion, had been on it for “maybe a half hour or better.” His speed was approximately 25 or 30 miles per hour before slowing down approximately 25 or 30 feet north of the “stuck” vehicle (Smith’s). He saw the Smith vehicle headed south with its left side nearly in the ditch on the east side of the road and “approximately one foot of his right wheels was on the edge of the pavement.” He could see the Smith vehicle for a quarter mile. It was daylight and he had no trouble seeing the vehicle or the people around it. He operated his automobile with its left side approximately 3 feet west of the center line. He judged Raytown Road to be 24 feet wide.

Plaintiff first saw the Leap automobile when “I was approximately 25 feet south of the stalled vehicle, * * * ten to fifteen feet” north of the intersection. The Leap car was at the crest of the hill “in the center of the road. * * * He changed his course * * * to the right * * * to his side of the road.” Plaintiff judged Mr. Leap’s speed at 55 to 60 miles per hour at the time of the described movements. Plaintiff was then going about 20 to 25 miles per hour (“I sped up after I went past the stalled vehicle”) and, upon seeing defendant, “I let up on the gas and started to pull over.” He traveled approximately 75 feet all on his side of the road after first seeing Mr. Leap. As the Leap car came down the hill, plaintiff “slowed up and pulled over. I pulled over to the right or the west shoulder. My right wheels were approximately a foot off the shoulder.” Approximately seven feet of his lane were open. “I was stopped or nearly stopped” at the time of collision, “zero to two miles an hour.” He didn’t pull off further because he “didn’t want to run into the ditch.” According to plaintiff, there was no reason why the Leap car could not have passed to plaintiff’s left and gone on down the highway. As the Leap car came down the hill “it was on my side of the road two or three times, back and forth,” and it finally came over to plaintiff’s side of the road and into collision going about 40 miles per hour, striking its left front against the Chevrolet “at the driver’s door and clear on to the back.” It was then about 5:30 p. m. Plaintiff judged this collision to be approximately 100 feet south of Mr. Leap’s second collision with the Smith automobile. He talked at the scene with Mr. Leap, who said, “I suppose I was going too fast.” Plaintiff had no difficulty moving his automobile up the hill after the collision.

Upon cross-examination plaintiff, was confronted with deposition testimony of speed at 35 to 40 miles per hour, but confirmed his maximum speed at 25 to 30 miles per hour and, in respect to movements of the Leap automobile and points of collision, testified:

“Q. You say that he slid all that way at 50 or 60 miles an hour and it wasn’t slippery? A. I don’t know whether he slid or not, Sir; I know he was going back and forth.
“Q. He was sliding as if he was on ice? A. I can’t say that; I know he was going back and forth.
“Q. It appeared to you that he was out of control that entire distance? A. Yes, sir.
“Q. Are you telling the jury that you traveled on up the road 100 feet beyond the intersection when the collision occurred? A. No, sir.
“Q. How far? A. Approximately 75 feet.
“Q. Isn’t it true that in actual fact the two collisions, the collision with your car and the collision with the Smith car, were only 25 feet apart? A. No, sir, not to my knowledge. * * *
“Q. If you moved 75 feet from the time you first saw Mr. Leap’s car you will agree that you have told the jury he was sliding apparently out of control as far as you could tell? A. Yes, sir; I said he was out of control. He appeared to be.”

Plaintiff was in the act of stopping, or stopped, at the time of collision, but did not apply his brakes hard until about 30 feet from the point of collision. As to speed and distance, the cross-examination continued :

“Q. I want you to tell the jury how many feet you had traveled at an average speed of 20 or 25 miles an hour while he traveled 600 feet at 50 miles an hour. A. How many feet did I?
“Q. How far had you traveled? It is a matter of mathematics. A. I know how many feet I did travel.
“Q. Isn’t it true that under your sworn testimony you were at least 200 feet from the point of impact when the man came over the hill, as a matter of mathematics? A. Yes, sir, at least — more than that.”

Upon redirect examination plaintiff further described Mr. Leap’s movements as having crossed the center line as far as three or four feet three or four times, but never blocking plaintiff’s lane of traffic. He testified further:

“Q. Until he approached closer to you did you have any reason to apprehend the fact that he would later crash into you? A. No, sir.
“Q. You said you realized danger of a collision 100 feet until the crash occurred? A. Yes, sir.
“Q. How far did he travel? A. He possibly had 300 or 400 feet.
“Q. When he finally came across the center line at' the last time did he come on across fully into your lane? A. He was headed directly over into my lane.
“Q. Did he swerve back and forth then ? A. No, sir.
“Q. Why had you not stopped before then ? A. It appeared to me that he would go on by. * * *
“Q. Did you know that he was slipping and sliding ? A. I knew that he was going back and forth but I didn’t know why.
“Q. But the last time you did pull to your right? A. Yes, right before the impact.
“Q. Your right wheel was on the shoulder? A. Yes, sir.”

Plaintiff’s wife, Charlene Burks, described conditions existing at the time of the accident as “cold and there was spots of ice on the road.” According to her, the accident occurred “around 5:30, * * * between five and five-thirty.” She judged her husband’s speed at 25 miles per hour prior to any change of speed near the collision; “he began to slow down as he approached the (Smith) car.” Her husband slowed to about 15 miles per hour and “when we came even with it he speeded up just a little.” She first saw the Leap -car after her husband was south of the intersection and “he immediately began to slow down and pull off to the side of the road.” In respect to the movements ■of the Leap car, she testified:

“Q. When you first looked up and saw him where was he in regard to the center line of Raytown Road? A. The driver’s side was across the line, on our side of the road.
“Q. Was he at that time partially over the center line, you say? A. Yes, he was.
“Q. What happened to his car after that? A. He pulled back onto his side of the road and then back on our side again, and then back on his side again.
“Q. Did he continue coming down the hill? A. Yes.
“Q. Did you form any judgment of how fast he was going from the time that you saw him until the collision occurred? A. It would be my judgment he was going between forty and fifty miles an hour.
“Q. Did he ever come sideways down the highway? A. No, not sideways. * *
“Q. Did he ever fully get over into your lane of travel prior to the impact? A. No, I wouldn’t say he was fully into our lane. * * *
“Q. At the time of collision where was the car that you were riding in? A. We were partially on the shoulder on our side of the road with our right wheels off of the road. * * *
“Q. Could you tell us the rate of speed of your husband’s automobile at the time of the collision itself? A. Well, we were just almost completely stopped I would say. If we were moving it was very slowly, maybe two miles an hour or so. It would be my judgment we were almost stopped at that time.”

Earl Jack Leap described the situation: “As I crested the hill I had observed two automobiles a little over half way down the hill. They appeared to me being fairly close side by side * * * just north of the intersection.” His speed was 35 or 40 miles per hour, it was dusk, and his headlights were burning. He thought Smith and Burks had headlights burning also. He saw the Smith automobile as having its left wheels “barely onto the shoulder and the rest of his automobile was onto the highway.” Mr. Burks was taking his complete lane, the southbound lane, which would have been the west side of the highway. Mr. Leap shifted into second gear and, as he got closer, applied his brakes. He began to slide; “there was almost a solid sheet of ice all the way up and down Raytown Road at that hill.” He saw the Smith car beginning to turn onto 129th Street; “there was a space that was beginning to open and I was in hopes of making it in between the two automobiles.” He was unable to, and did not get stopped. His car did some weaving “when I done shifted my automobile,” and he saw Mr. Burks “fishtailing.” At the time of collision around 20 feet separated the front of the Burks automobile and the front of the Smith automobile; he tried to cut in between them. He placed the point of collision with the Burks automobile “midway of the intersection, possibly just a little south.” He conceded that Mr. Burks was on his own side of the road. He denied making any statement of speed to Mr. Burks and denied any evasive action by Mr. Burks.

Judith Kay Leap, wife of Earl Jack Leap, corroborated her husband in his statement of speed at 30 to 35 miles per hour, his shift into second gear, his car sliding, and the icy road condition. Also, according to her, Mr. Leap was generally on his own side of the road until he got close to the Burks automobile and, at the time of collision, Mr. Burks had the front end of his automobile off the highway.

Exhibits in evidence showed the snowfall in the area, the snow on the ground, and temperature conditions from January 12,' 1964, to January 15, 1964. Sunset on January 14, 1964, was at 5:19 p. m.

Plaintiff was thrown forward by the impact, bumping his head and twisting his neck and shoulder. He felt a stabbing pain in his neck at the scene and developed pain and limitation of use in his right shoulder, resulting in a reduction of his normal activities.

Appellants charge the court with error in granting a new trial on the ground the verdict was against the weight of the evidence because: “(1) Plaintiff was guilty of contributory negligence as a matter of law * * *; and (2) There was insufficient substantial evidence to sustain a verdict for plaintiff.”

Determination of these issues requires a consideration of the evidence in a light most favorable to plaintiff, including the benefit of all favorable inferences reasonably to be drawn from the evidence and a disregard of defendants’ evidence unless it aids plaintiff. Kiburz v. Loc-Wood Boat & Motors, Inc., Mo., 356 S.W.2d 882, 885 [4]; Adkins v. Boss, Mo., 290 S.W.2d 139, 140 [1], In according this consideration, it also must be recognized that a plaintiff is bound by his own testimony. Brooks v. Stewart, Mo., 335 S.W.2d 104, 110 [4], 81 A.L.R.2d 508; Adkins v. Boss, supra, 290 S.W.2d 1. c. 140 [2],

The instructions directed a verdict for plaintiff if defendant Leap was negligent in that he either “ * * * drove at an excessive rate of speed, or drove on the wrong side of the road * * Appellants do not brief their charge of failure to make a case on these submissions beyond mere statement of the point. Therefore, suffice it to say that the stated evidence is sufficient from which a jury could reasonably find: that the collision occurred on plaintiff’s side of the road; that defendant Leap drove his automobile on the wrong side of the road and into collision with plaintiff; that his speed was excessive in that he was unable to stop prior to collision with plaintiff; and that such acts were the proximate cause of the collision and plaintiff’s injuries and damages.

Appellants argue that plaintiff was guilty of contributory negligence as a matter of law because, under all the circumstances in evidence, he did not stop or swerve even though, by his own testimony, he saw defendant Leap crest the hill at 55 to 60 miles per hour and watched him descend for 200 feet, crossing the center line three or four times.

Appellants’ argument recognizes that plaintiff did stop and did swerve; their complaint appears to be that he should have done so sooner or to a greater degree. However, a motorist in plaintiff’s situation is not obliged to stop or swerve merely because another vehicle is approaching. There must be a reasonable likelihood of collision before he is required to act, and time thereafter to take effective preventive action in avoidance. Miller v. Greis, Mo., 396 S.W. 2d 642, 646 [3]. See also Nelms v. Bright, Mo., 299 S.W.2d 483, 489 [14-16]; 60 C.J.S. Motor Vehicles § 317 b. Without question, this plaintiff was at all times on his own side of the road, and his evidence was that only when defendant Leap finally drove completely and directly over into his lane did he have any cause to apprehend danger from Leap. Until that time defendant Leap had never traveled directly and wholly in plaintiff’s path, and plaintiff thought he would go on by. Whén it did appear in the last few feet before collision that Leap had driven entirely into his lane to stay, plaintiff took evasive, although unavailing action by stopping and swerving, using his judgment not to pull so far to the right as to drive into the ditch and endanger his wife. Such are not the circumstances which, as a matter of law, dictate the only reasonable conclusion to be that plaintiff was negligent and that his negligence was the proximate cause of his injury.

The facts of no two cases are exactly alike, but the following cases support the conclusion drawn here. See and examine Baker v. Kirby, Mo., 396 S.W.2d 605, where plaintiff drove her automobile on a narrow gravel road, saw defendant’s automobile at all times coming on the road toward her, thought that he was properly on his side of the road, was not alarmed, and was aware of imminence of collision only when she heard gravel and saw defendant’s automobile sliding toward her. Plaintiff was not contributorily negligent as a matter of law, Chandler v. Mueller, Mo., 377 S.W.2d 288, where Chandler, proceeding southward, observed Mueller traveling northward and at 45 miles per hour, “swerving, going this way and that way.” Chandler stopped beside a parked car at the west curb and Mueller drove across the road and struck him. Chandler saw Mueller at all times and, in answer to why he did not pull out of the way, said, “I thought he would pull over. I didn’t think he would run into me.” Chandler was not contributorily negligent for failure to keep a lookout and act accordingly. See also Zalle v. Underwood, Mo., 372 S.W.2d 98.

Cases cited by appellants are not controlling. In Brooks v. Stewart, supra, 335 S.W.2d 104, 81 A.L.R.2d 508, plaintiff was traveling on his side of the road and came upon and collided with a road grader which he saw at all times to be coming toward him while working on the wrong side of the road. The distinction from Mr. Burks’s situation is in the holding that “there is no evidence tending to show that plaintiff thought or believed the grader would return to its right * * * side of the highway after he first saw it * * * and there is no evidence to support an inference that the grader might turn back to its righthand side of the highway.” 335 S.W.2d 1. c. 111, 81 A.L.R.2d 508. “ * * * .from the first moment he saw the grader he knew all of the surrounding facts and circumstances as to snow, ice, grade and visibility and knew that he could not tell which side of the road the grader was on. He knew it was approaching and he thought it was on his own side of the highway. In such circumstances he could not proceed heedlessly into known danger until it was too late to stop or turn aside.” 335 S.W.2d 112 [7, 8]. In Adkins v. Boss, supra, 290 S.W.2d 139, the plaintiff truck driver was contributorily negligent as a matter of law in that he failed to make timely effort to slow his heavy rig to cope with potential danger at a marked intersection and, later, to avoid collision with a vehicle entering the intersection. Again, the distinction lies in the court’s language: “He carelessly, almost deliberately, drove into danger. His own testimony demonstrates that in the stated circumstances plaintiff was taking a chance that the approach of his heavy equipment would dominate and command a priority of passage through the intersection.” 290 S.W.2d 1. c. 144 [6]. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495, involved a motorist who tried to “beat” another motorist by driving across an intersection when he saw the near approach of traffic “and merely for the purpose of trying to first cross the intersection, or with indifference to a collision.” 217 S.W.2d 1. c. 500 [6].

Appellant Dysart contends that it should have had a directed verdict because: “(1) Defendant Leap was not acting as the agent of corporate defendant at the time of the occurrence * * * when he was enroute to his home after having made a delivery, which he volunteered to make in Belton, Missouri; (2) If it be assumed arguendo Leap was corporate defendant’s agent to make the delivery in Belton, after making the delivery Leap had no further work to do for corporate defendant until the next morning at 8:00 A.M.; (3) Corporate defendant had no right of control whatever over Leap at the time and place of the occurrence.”

Earl Jack Leap, called by plaintiff, testified that on January 14, 1964, he lived at 9149 East 79th Street, Raytown, Missouri. He was employed as a gold technician by Dysart Dental Laboratories, a corporation, with offices in the Argyle Building at 12th and McGee in downtown Kansas City, Missouri. His route home from work at five o’clock each day was southeasterly on Highway 50.

“Q. And on the day in question, January 14, 1964, you had been asked by one of the employees of your company there to make a delivery to Belton, Missouri, had you not? A. Yes, sir.
“Q. That vas by whom ? A. 'i'hat was by our secretary, if I remember correctly.
“Q. She customarily details and instructs on the delivery of these various products, does she not? A. Yes, sir.
“Q. You have in the past made on occasion deliveries for your company? A. Prior to that? Q. Yes, on occasion, A. I don’t remember whether I had or not.
“Q. You have on occasion since made deliveries for them? A. Yes.
“Q. That was with full knowledge and consent of Mr. Guy Dysart, was it not? A. Yes, sir.
“Q. On this day in question you left the office at about 4:30, did you not? A. Probably.
“Q. That was to make a delivery to Dr. Perme in Belton, Missouri? A. Yes.
“Q. Belton, Missouri, lies directly south of Kansas City, does it not? A. Yes.
“Q. And the road you would take to go to Belton was Highway 71? A. Yes, sir.
“Q. Except for that delivery you wouldn’t have been on Highway 71 at that time ? A. That is correct.
“Q. Do you know what time it was that you made the delivery to Dr. Perme? A. Probably about ten after five, or a quarter after five.
“Q. And then after making your delivery you were on your way back home? A. Yes, sir.
“Q. This collision took place at what was then called 128th Street and Raytown Road? A. Yes, sir.
“Q. Except for you making that delivery you wouldn’t have been at that place, would you? A. That is right.
“Q. Because this is not the route you would take to go home? A. That’s right.
“Q. IJow far is it in your best judgment from there where the collision took place at 128th and Raytown Road to your home? A. I would imagine five miles.
“Q. And it would have been at least that far to Highway 50, the route you would ordinarily have taken ? A. Yes.
“Q. And on the day in question if you hadn’t been making this delivery you would have been going up Highway 50? A. Yes, S11T ⅜ ⅜ ⅝
“Q. You had no other occasion to be there at that point and place at all except making this delivery on behalf of the company? A. That is right.”

Mr. Leap was using a car owned by his father-in-law and he received no additional compensation for the Belton trip. “It was just my time until five o’clock.” He was not normally a delivery boy and on the occasion of this delivery had no further work until eight o’clock the following morning.

Guy Otis Dysart testified by deposition: “We have a dental laboratory. I’m the owner of a dental laboratory.” The laboratory is incorporated; Mr. Dysart is president; his son-in-law is vice-president; his wife is secretary-treasurer.

In respect to Earl Jack Leap and events ,of January 14, 1964, he testified:

“Q. * * * Did he ever do any delivery work of any kind, of your finished product? A. Well, I guess so, on that particular occasion that he was taking the case home. * * *
“Q. * * * Now, back on January 14, 1964, * * * did you ask Mr. Leap to make a delivery on your behalf? A. No, sir.
“Q. What did you do? A. I did not, I don’t — I knew nothing about it whatever. My secretary handled that. * * *
"Q. Have you ever made inquiry as to what he may have been delivering on your behalf? A. Well, yes, I knew later, when I heard of this suit, that he was delivering a case for Dr. Perme that wasn’t ready on the morning delivery. We have — that’s what we call a morning delivery, it goes out — usually starts at ten o’clock, and then he — it reaches Dr. Perme’s office where this case was delivered possibly around twelve.
“Q. Yes. A. And it just wasn’t ready for the morning delivery, so he lived out that way, and that’s the reason he took the case. * * *
“Q. * * * Did he tell you who told or asked him to make the delivery? * * * A. Well, I’ve already told you how he come to do it.
“Q. The secretary— A. He lives out that way and the case wasn’t ready in the morning delivery so he volunteered to take it, I believe.”

Finally, Mr. Leap testified upon direct examination in defendants’ case: "Q. I believe we have already established that you left down town Kansas City, Missouri and went out to Belton, Missouri, to deliver a case to Dr. Perme? A. Yes, sir.”

A master is responsible for injury to a third person by any negligence or misconduct of which his servant is guilty while acting within the scope of his employment, 20A Mo.Dig., Master & Servant, *®==s300; and whether a servant’s act causing injury to a third person is within the scope of his employment is not determined by the time nor his motive, but “the question is, Was the act done by virtue of the employment and in furtherance of the master’s business?” Wolf v. Terminal R. Ass’n of St. Louis, 282 Mo. 559, 222 S.W. 114. See also MAI 13.05.

The evidence on this issue is, as stated by appellant, “all offered by plaintiff (and) uncontradicted.” Under such evidence there is no question but that Leap was an employee of Dysart, and it would be proper for the jury to determine whether the mission in question was a part of that employment and for the benefit of the employer. A jury reasonably could find that Dysart did make deliveries of its “cases” as a regular part of its business and that, even though Leap was employed generally as a gold technician, he was called upon on this, as well as on other occasions, to perform delivery services which were for the sole benefit of the employer; that on the date of the collision he was asked by the employee who customarily directs deliveries during regular working hours to make such a delivery at Belton; that he proceeded without deviation to carry out that mission and was proceeding without deviation to return to his regular route to his home; and that the collision and damage to plaintiff occurred under circumstances of time and place which would not have existed except for the mission of the employee requested of, and undertaken by, the employee for the benefit of his employer.

Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, is in point. Fine worked for an insurance company and made collections as part of his duties. He ordinarily would go to work at 9:00 a. m., would be given a list of persons from whom to collect, would proceed in his own automobile, note payments received, and account for them the following morning. This was the work for which he was paid a salary. On the morning of his accident defendant was not proceeding in the direction of his employer’s office but was proceeding in a nearly opposite direction to make a collection before reporting for the day’s work. The accident interrupted his plans. The court determined that it was for the jury to determine whether the relation of master and servant existed, drawing the distinction which separates cases in which going to and from the place of work is for the employee’s purposes from those in which the trip is for the master’s benefit as in this case. “Whether Fine was at the time acting within the scope of his employment was also for the jury. Usually, a servant using an automobile, either his master’s or his own, in going to and from his place of work, is regarded as acting for his own purposes and not as engaged in work for his master. Pesot v. Yanda, 344 Mo. 338, 126 S.W.2d 240, 244. The instant situation is the reverse of those existing in cases where an employee deviates from his duties and enters upon a personal mission. Here, if the doctrine of respondeat superior be considered not applicable while Fine was going to and from work, Fine at the time in question had deviated from his personal mission of going to his employer’s office and had entered upon the performance of a duty owed his employer. * * * Any accommodation accruing to Fine for making the trip prior to reporting to work was incidental to the discharge of his duties as one of the * * * Company’s collectors. Otherwise, no occasion existed for his making the trip. At least the jury could find that it was made on behalf of Fine’s employer.” 175 S.W.2d 1. c. 766 [8, 9]. See also Gardner v. Simmons, Mo., 370 S.W.2d 359, in which it was for the jury to say whether a salesman, employed by defendant tire company, was engaged in scope of employment at the time of an accident which occurred as the employee and a mechanic were checking the employee’s automobile which had broken down on the way to work to determine if it was all right for the salesman to use on his job of calling on his employer’s customers the rest of the day. The test applied was “whether, at the time of the accident, Simmons was engaged primarily in advancing the interests of his employer and thus within the scope of his employment.” 370 S.W.2d 1. c. 365 [8].

Stokes v. Four-States Broadcasters, Inc., Mo., 300 S.W.2d 426, relied upon by appellant Dysart, is not like this case. There, the employee would frequently “pick up” a broadcast schedule at the radio station on his way to work and deliver it to the transmitter station where he worked; other employees did the same thing. It was held that the employee’s act “in ‘picking up’ the schedule with more or less regularity was a casual, gratuitous act which he performed when necessary and convenient, at a time of his own choosing. There is no indication that he ever delivered the schedule to the station except when he was going.'there to report to work, a trip he would have made irrespective of any delivery of the schedule,” 300 S.W.2d 1. c. 430 [5].

And, since the jury reasonably could find a master and servant relationship between Leap and Dysart during the course of the delivery performed by Leap at the direction of and for the benefit of Dysart, right of control would attend the relation, Douglas v. National Life & Acc. Ins. Co., 236 Mo.App. 467, 155 S.W.2d 267, 270 [2], and cases cited by appellant Dysart in which right of control was absent as a matter of law are not in point. See Douglas v. National Life & Acc. Ins. Co., supra, 155 S.W.2d 1. c. 271 [6]; Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40, 159 S.W.2d 589, 594 [4, 5]; Estes v. Owen, 350 Mo. 753, 168 S.W.2d 1052, 1053; Usrey v. Dr. Pepper Bottling Co., Mo., 385 S.W.2d 335, 339 [7-9]; Sherwood v. Arndt, Mo., 332 S.W.2d 891, 893 [1]; Restatement of the Law, Agency 2d, § 233c, Illustration 3, p. 518. Nor are those cases cited by appellant Dysart in point where the employee has finished his day’s work and is driving home as compared to the situation of Mr. Leap who, as has been shown, reasonably could have been found to have not yet completed the day’s work delegated to him by his employer, Dysart. See Halsey v. Metz, Mo.App., 93 S.W.2d 41, 44 [1-4]; Van Hook v. Strassberger, Mo.App., 259 S.W.2d 399, 405 [6-10]; Beckwith v. Standard Oil Co., Mo., 281 S.W.2d 852, 855 [3]; 52 A.L.R.2d §9, p.311.

Appellant Dysart also emphasizes the lack of any compensation in addition to regular salary for the delivery trip made by Leap for his employer, Dysart, but “compensation to the agent is not essential to the creation or existence of the relationship * * *.” Leidy v. Taliaferro, Mo., 260 S.W.2d 504, 507 [5],

Appellants suggest that if the issues of submissible case be ruled against them, the court should rule whether the giving of Instruction No. 4 (on contributory negligence) was supported by substantial evidence, “to the end a guideline will be provided for the Court upon retrial.” It is neither necessary nor advisable to accept this request because the retrial may differ from this record, and the parties will have the benefit of the briefs to this court on the point and may be guided by them if so advised. Edwards v. Mellen, Mo., 366 S.W.2d 317, 321.

Judgment affirmed and cause remanded.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    The JACK L. BAKER COMPANIES, Inc., Appellant, v. PASLEY MANUFACTURING AND DISTRIBUTING COMPANY and Astor J. P. Leavitt, Respondents.
    No. 51660.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Modified on Court’s own Motion and Motion for Rehearing and to Transfer to Court En Banc Denied March 13, 1967.
    Motion for Rehearing and to Transfer to Court En Banc Denied April 11, 1967.

      Charles W. Hess, of Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.
    William H. Sanders, Dean F. Arnold, David L. West, Kansas City, for respondent, Pasley Mfg. and Distributing Co., Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel.
    Douglas Stripp, James F. Duncan, Kansas City, for respondent, Leavitt, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
   FINCH, Judge.

/This is an appeal by plaintiff from a judgment in its favor for $3,000.00 on the basis that the award was inadequate. We have jurisdiction because the difference between the amount of the judgment and what plaintiff seeks exceeds $15,000.00.

Plaintiff was engaged in the steam cleaning and sandblasting business. A high-pressure propane tank trailer owned by defendant Leavitt, which was to be repaired by defendant Pasley, was delivered to plaintiffs shop for steam cleaning preparatory to the repairs thereon by Pasley. The trailer still contained some propane gas. An explosion and fire occurred, resulting in damage to the structures on plaintiff’s property. A recital of the evidence pertaining to liability is unnecessary because the only questions on appeal involve the action of the trial court in withdrawing the issue of loss of profits from consideration of the jury and the sufficiency, of the court’s instructions with reference to the measure of damages.

Plaintiff’s petition alleged interruption of its business as a consequence of the damage to its facilities with resultant loss of business. The court permitted plaintiff to offer evidence in support of these allegations but at the conclusion of the testimony instructed the jury that the issue of loss of business was withdrawn and the evidence thereof should not be considered in arriving at its verdict.

The rule in this state with respect to loss of anticipated profits resulting from actionable conduct of another is that they “are recoverable only when they are made reasonably certain by proof of actual facts which present data for a rational estimate of such profits.” Yaffe v. American Fixture, Inc., Mo., 345 S.W.2d 195, 199. In Tnemec Company, Inc. v. North Kansas City Development Co., Mo., 290 S.W.2d 169, 174, this court stressed that the evidence must be sufficiently definite and certain for the jury to make a reasonably accurate estimate of the loss without resorting to speculation. The court said: “This court and the courts of appeals of this state have been strict in evaluating the sufficiency of the evidence warranting a recovery of damages for loss of profits. Our courts have refused to permit a jury to speculate, without substantial basis, as to what might be probable or expected profits as an element of damages.”

We have concluded that the evidence of loss of profits offered by plaintiff did not meet the test laid down in the cases in this state and that the trial court correctly withdrew that issue from the jury.

Unquestionably, there was damage to the structures at plaintiff’s place of business, but the operation was not shut down as a result of the explosion and fire. The Leavitt truck was steam cleaned the day following the explosion. Plaintiff’s president, claiming loss of business, testified that people had called in and told him they thought the business was closed and that was the reason they did not come in after the explosion. However, he did not identify any such people, or testify how frequently this occurred, or make any attempt to enlighten the jury as to the amount of business which he could identify as having been lost in this manner. Baker testified that there were some times when they could not do sandblasting because the roof over that area leaked, but he stated that they were able to take care of all customers who presented themselves for either sandblasting or steam cleaning and that they did not turn away any business.

Plaintiff also offered in evidence the corporate tax returns of the corporation for the years 1962, 1963 and 1964. The corporation had been organized on or about March 1, 1962. Prior to incorporation, the business had been operated on an individual basis. In addition, plaintiff offered in evidence an exhibit which for the year 1963 gave a month by month profit and loss analysis.

The tax return for 1962 (the last ten months of the year) disclosed a net loss for that period of $65.21.

The 1963 tax return shows that the corporation had a net loss for that year of $2,052.31.

The 1964 tax return shows a net profit for the year of $6,884.72. Plaintiff argues that the change from a loss of $65.21 in 1962 to a profit of $6,884.72 for 1964 discloses a trend in the business during that period which would indicate an anticipated profit for 1963 of $3,400.00. This is arrived at as being the median between the 1962 loss and the 1964 profit. Plaintiff then points out that instead of a $3,400.00 profit in 1963, the company actually had a loss of $2,052.31, and that this was sufficient evidence to support a verdict of $5,452.31 for loss of profits for the year 1963.

We hold that these tax returns did not provide the requisite substantial basis for determining probable lost profits. There is no evidence to show a steady trend from loss to profit from the inception of corporate operations on March 1, 1962, to the year 1964. There was no evidence to show a month by month increase in business in 1962. The tax return gave no breakdown by months and plaintiff did not see fit to introduce a corporate month by month profit and loss analysis as it did with respect to 1963. An examination of the monthly profit and loss figures for the year 1963 discloses a very uneven and erratic performance as regards profits. The company operated in the black during only three of the twelve months of that year. Operating losses of $594.01, $87.77, $182.59, $448.47), $47.39, $180.80, $807.11, $979.47 and $1,99&81 are shown for the months of January, February, March, April, July, August, September, October and December of 1963. Operating profits of $978.68, $1,386.47 and $906.96'ap-pear for the months of May, June and November. This certainly does not show a trend from an unprofitable operation in 1962 to a profitable operation in 1963, interrupted only by the explosion and fire in mid October. The figures show that the corporation operated at a loss in seven of the first nine months, all of which occurred prior to the explosion which took place on October 15, 1963.

Plaintiff’s brief contends that the 1963 profit and loss statement shows that the company had a loss of revenue of something over $5,000.00 during November and December of that year. We do not agree. The gross operating revenue of the company during those two months amounted to $14,114.33. The total operating revenue for the year was $90,929.29, so that the operating revenue for the months of November and December was within $1,000.00 of equalling one-sixth of the gross income for the entire year. That would indicate little, if any, deviation in gross receipts for that period in the absence of evidence that income of the business would be greater in November and December than in other portions of the year. There was no evidence offered to so indicate. On the contrary, the profit and loss statement for 1963 indicates that, except for the month of December, the period of greatest gross operating receipts occurred in the late spring and summer months.

Plaintiff also points out that the profit and loss statement shows that the company-had a loss for the month of December, 1963, of $1;996.81. This loss, however, cannot be attributed to loss of business from the explosion because the gross receipts for the month are the second largest of any month during the calendar year and the expenses deducted for that month explain why a loss is shown. The company charged off bad debts of $1,133.59 and interest in the amount of $1,297.67 in December. Total interest charged during the rest of the year amounted to only $180.00 and there were no bad debt charges during any other month of the year. In addition, the statement discloses that expenditures for taxes and licenses in December were much greater than during any other month of the year, and the amount expended for supplies was considerably higher than that made during other months.

The profit and loss statement for November, 1963, shows that the corporation made a profit of $906.96. Plaintiff explains that this was due to the fact that no officers’ salaries were charged during that month. However, the profit and loss statement and the tax return disclose that officers’ salaries for the year amounted to $22,000.00, which was slightly higher than the amount charged in 1964, and was slightly higher than the rate at which salaries were charged for the ten months of corporate existence in 1962.

There is no basis for comparison of the months of November and December in 1963 with corresponding months in 1962 and 1964 because plaintiff furnished no monthly profit and loss analysis for either of those years and such information is not shown in the corporate tax returns. It is pure speculation to say, based on the evidence introduced, that the company suffered a loss of business and a loss of profits during November and December of 1963. There was no sufficient evidence on which the trial court properly could have submitted the issue of loss of profits to the jury.

Plaintiff’s second complaint is that the jury was improperly instructed as to the measure of damages.

The court gave Instruction No. 8, as follows :

“If you find the issues in- favor of the plaintiff, then you must award the plaintiff the Jack L. Baker Companies, Inc., such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe it sustained as a direct result of the occurrence mentioned in the evidence.”

The court refused Instructions Nos. 17 and 18 which plaintiff tendered. Instruction No. 17 was as follows:

“If you find the issues in favor of the plaintiff, then you must award the plaintiff The Jack L. Baker Companies, Inc., such sum as you believe represents the difference in the fair market value of the plaintiff’s premises immediately before and immediately after the occurrence mentioned in the evidence.”

Instruction No. 18 corresponded to MAI No. 15.01, defining “fair market value.”

It is plaintiff’s contention that No. 8 was erroneous and that the refusal of Nos. 17 and 18 constituted error.

Instruction No. 8 corresponds to MAI 4.01 and is the instruction prescribed therein for recovery of personal or property damage. The Committee Comments and the Notes on Use make no provision for enlargement.

The Missouri Supreme Court Committee on Jury Instructions which drafted MAI originally submitted two proposed instructions on damages in its report to the court dated April 19, 1963. One was MAI 4.01. The other was designated MAI 4.02. On December 20, 1963, the court en banc approved the committee’s report and the forms of instructions therein on a preliminary basis, with final approval to await consideration of tne proposed instructions at meetings to be held under the auspices of The Missouri Bar.

Proposed MAI 4.02 was a longer form instruction than MAI 4.01. It detailed specific items which the jury could consider in arriving at its verdict for either personal injury or for property damage. It included language for determination of property damage on the basis of the difference in fair market value of the property immediately before and immediately after the occurrence.

The Committee Comments indicated that it felt that MAI 4.02 involved a risk of error not present in the shorter form. With reference to MAI 4.01, the committee said that it “is short, simple and easily understood. Since no particular items of damage are set out, there is no risk of the jury being improperly instructed on damages not supported by the record.” When the court acted finally on the proposed instructions, proposed MAI 4.02 was eliminated and the only damage instruction for personal or property damage approved was MAI 4.01. Only in the case of eminent domain cases did the court retain language with respect to fair market value before and after in determining the amount of damages. See MAI 9.02.

Rule 70.01(b), V.A.M.R., provides that whenever an instruction applicable in a particular case is contained in MAI, “such instruction shall be given to the exclusion of any other on the same subject.” It is obvious from examination of the report of the Supreme Court committee and the final action of the court that it was intended that the short form instruction on damages set out in MAI 4.01 should be used both for personal injuries and property damage. Pursuant to Rule 70.01(b), the trial court correctly gave that instruction ani^ refused Instructions Nos. 17 and 18.

Plaintiff complains that Instruction No. 8 did not sufficiently inform the jurjr as to what factors should be considered in arriving at its verdict. We do not agree. Plaintiff was permitted to offer evidence as to the value of plaintiff’s property immediately before and after the explosion. Plaintiff’s president so testified. The transcript discloses further that plaintiff was permitted to argue that testimony to the jury, and consequently that evidence was before the jury for its consideration and the jury could consider it in determining what sum would fairly and justly compensate the plaintiff. Plaintiff’s president testified that the difference in value before and after was $13,380.00, but it was developed on cross-examination that the witness in a prior deposition had stated that he did not know the value of the improvements before the explosion. The court admitted evidence of expenditures of $2,453.15 for repairs plus $5,600.00 for a Butler type building to replace the sanding shed. Defendants argued this was improvement, and plaintiff’s brief states “this was a more expensive type of structure although it performed approximately the same type of function as the damaged shed.” Plaintiff’s president mentioned but did not detail work remaining to be done. Plaintiff sought to introduce further evidence of cost in installation of a prefabricated Butler building but this was excluded. Plaintiff preserves and presents no point to us with reference to the exclusion of such evidence. Evidently, the jury concluded that the sum of $3,000.00 represented plaintiff’s actual property damage. Cases in this state do recognize that where damaged property can be restored to its former condition at a cost less than the diminution in value, the cost of restoration is the proper recovery. Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158. The jury was not bound to award plaintiff its contended for difference in before and after value. It had such evidence before it, however, for consideration in determining the amount which would fairly and justly compensate plaintiff for its damages, and Instruction No. 8 would have permitted recovery on that basis if the jury had concluded that such sum was necessary to fairly and justly compensate plaintiff for damages suffered as a direct result of the occurrence.

The judgment is affirmed.

All of the Judges concur.

      . An exhibit was offered by plaintiff to show the amount of business done by the individually operated business during the months of January and February, 1962, immediately prior to incorporation. This was excluded by the court, but we note that it disclosed that the business operated at a profit during both months, whereas the corporation had a loss in January and February, 1963. Furthermore, the gross operating receipts for January and February, 1962, were $11,-159.84 and $11,715.04, respectively, whereas for the same months in 1963 the figures were $6,999.63 and $7,381.13. This indicates that the business was declining in 1963 from what it had been in 1962. This was early in the year and had no relationship to the explosion in October, 1963. These figures show the fallacy of assuming a gradual increase from 1962 through 1963 and 1964 and of estimating profits on that basis.

      . This is what the directions contemplate. The Committee’s Comment under MAT 4.01 includes the following: “During the instruction conference the parties and the Court should discuss (on the record) just what damages are supported by the evidence and can properly be argued to the jury. In this way jury arguments can proceed without undue interruptions.”


author: WELBORN, Commissioner.

text:
    Ruby TUCKWILLER, Plaintiff-Respondent, v. Marlon TUCKWILLER, Executor of the Estate of Flora Metta Morrison, Deceased, and Davidson College, a Corporation of the State of North Carolina, Defendants-Appellants.
    No. 51769.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 10, 1967.
    As Modified on Court’s Own Motion April 10, 1967.

      James & Butterfield, A. Lamkin James, Marshall, for respondent.
    Ike Skelton, Jr., W. R. Schelp, N. R. Bradley, Lexington, for defendant Davidson College.
    William T. Bellamy, Jr., Marshall, for defendant Marion Tuckwiller.
    Bradley, Skelton & Schelp, Lexington, of counsel.
   WELBORN, Commissioner.

This is an appeal from a decree ordering specific performance of a contract to devise real estate. The residuary legatee to which the proceeds of the property would have passed under the owner’s will and the executor have appealed.

At her death at the age of 73 years, on June 14, 1963, Flora Metta Morrison was the owner of a 160-acre farm in Saline County. The inventory value of the farm was $34,400.00. By her will, dated September 7, 1961, the farm and the remainder of the residuary estate of the decedent were to be converted into cash and the proceeds given to the trustees of Davidson College to establish a student loan fund in memory of the decedent’s mother. By the will, John Tuckwiller, a nephew of the decedent and the husband of the plaintiff, was given an option to purchase the farm at its appraised value. Ruby Tuckwiller, plaintiff 'below, based her action for specific performance upon a written contract with the decedent, entered into May 3, 1963, whereby plaintiff was to care for Mrs. Morrison during her lifetime, for which the farm was to be devised to plaintiff.

The Hudson family farm consisted of three separate tracts in the same general neighborhood. Since 1958, Flora Metta Morrison had owned the 160-acre tract here in question and her sister, Dr. Virginia O. Hudson, had owned a 140-acre tract and an 80-acre tract, called the home place on which the Hudson family home was located.

In November, 1958, John Tuckwiller and his family moved into the “home place” and operated the three farms on a rental basis. By the arrangement between John and Dr. Virginia Hudson, three rooms in the home place were reserved for the use of Doctor Hudson and Metta whenever they saw fit to make use of them.

Flora Metta Hudson was • born at the home place. She attended Missouri Valley College, Central Missouri State College at Warrensburg and Columbia University, receiving master’s degrees from the latter two. Around 1920, she married a Morrison whose name does not otherwise appear and she was not married at the time of her death. After her marriage, she taught in the Philippine Islands for some twenty years. In the 1940’s, she went to New York and worked for the Red Cross and at Saks Fifth Avenue. After the Tuckwillers moved into the home place, she visited them two or three times per year. In 1961, the apartment building in which she lived in New York was demolished and she had no particular place of residence. She went to Paris in the fall and winter of 1961 and subsequently visited relatives in various parts of this country. She came to the home place in October, 1962, and stayed until just before Thanksgiving. She left and visited in Oklahoma, Arkansas, Texas and New Mexico before returning to the home place in January, 1963. /

Mrs. Morrison had Parkinson’s disease, “a progressive relentless disease which progresses as time goes on, and it goes to the various stages from minimum involvement to complete involvement of the musculature.” Mrs. Morrison had had the disease for two or three years and her condition was worse upon her return to the home place in January, 1963, than it had been on her previous visit. She went to New York for a few days in January, 1963, but did no further travelling after her return to the farm.

John Tuckwiller’s wife, Ruby, had been employed at the State School in Marshall since February 1, 1960. In 1963, she was employed in the food service department at a salary of $206 per month. Ruby and Met-ta were quite congenial and Metta expressed frequent appreciation of the care and attention which she received from Ruby. Aware of the course of the disease from which she suffered, Mrs. Morrison was concerned about the prospect of her eventual disability and confinement in a nursing home for care. She began to urge Ruby to quit her job at the State School and to care for Mrs. Morrison in the home place the rest of her life. In April, 1963, Ruby did begin to use her accrued vacation time and remained at home, but she was unwilling at that time to forego her employment and undertake Mrs. Morrison’s care.

On April 11, 1963, Mrs. Morrison had been quite dizzy, had staggered and fallen. When she fell again the following day, an ambulance was called and she was taken to the hospital at Marshall. There she was diagnosed as having suffered a cardio vascular accident (stroke) with a secondary diagnosis of Parkinsonism. There was evidence of some mental confusion during her hospitalization. According to her physician, she knew where she was, but did not know why she was there. She was discharged from the hospital on April 20. Upon an examination at a house call on May 2, her physician found Mrs. Morrison mentally clear. A lifelong friend whom Mrs. Morrison visited on the morning of May 3 stated that mentally “she was just as clear as a bell.” As she left the friend’s house, Mrs. Morrison remarked, “I’m not done for.”

However, according to her physician Mrs. Morrison was aware that Parkinsonism was a “time consuming disease,” which, “if [it] progresses far enough, [its victims] will become invalids, * * * depending one hundred percent on outside care.” Upon her return from the hospital, Mrs. Morrison had talked further to Mrs. Tuckwiller about providing care for her. Mrs. Tuck-willer was reluctant to give up her job at which she worked regular hours for what she felt might involve several years of exacting care. However, on May 3, in the late afternoon and in the presence of plaintiff’s husband, an agreement was reached which plaintiff put in writing as follows:

“My offer to Aunt Metta is as follows
“I will take care of her her lifetime; by that I mean provide her 3 meals per day — a good bed — do any possible act of nursing and provide her every pleasure possible.
“In exchange she will will me her (Corum) farm at her death keeping all money made from it during her life. She will maintain expense of her medicine.”

The writing was signed by Mrs. Morrison at that time. On May 4, Mrs. Morrison went with the Tuckwillers to attend the marriage of their son in the vicinity of Warrensburg. Members of the family who observed her during the visit found Mrs. Morrison somewhat weakened physically but mentally keen and interested in the wedding and in visiting with relatives and friends in attendance.

On Monday morning, May 6, Mrs. Tuck-willer went to the State School and resigned her job. On the same morning, Mrs. Morrison called the attorney who had drawn her earlier will for an appointment to change her will. An appointment was made for 10:00 A.M., May 7. However, shortly after noon on May 6, Mrs. Morrison again fainted and fell at the “home place.” An ambulance was called to take her to the hospital. Some thirty to forty-five minutes elapsed before the ambulance arrived and Mrs. Morrison remained on the.floor. In the meantime, Mrs. Morrison “came out” and was able to talk. When the ambulance arrived she was placed on a stretcher. At that point, Mrs. Morrison said: “Wait a minute; I have got some business I want to tend to.” She asked Mrs. Tuckwiller to “get that piece of paper * * * that we have our agreement on.” She wanted it witnessed. She handed the paper to one of the ambulance attendants, told him what it was and asked him to sign it. A second ambulance attendant also signed the paper. Mrs. Morrison, according to John Tuckwil-ler, then asked Mrs. Tuckwiller to put the date on it “so it will come after my will” and the date May 6,1963 was written on it. One of the ambulance attendants, called as a witness for plaintiff, testified that Mrs. Morrison said that “she had some business she wanted to get taken care of first.” He recalled further conversation, although he did not recall what was said. The other attendant who testified for defendants did not recall hearing Mrs. Morrison say anything. He said that he signed the paper at Mrs. Tuckwiller’s request.

Mrs. Morrison was again taken to the hospital at Marshall. Her attending physician found some mental confusion at that time. However, she improved and was discharged on May 11, again with a diagnosis of cardio vascular accident. The hospitalization prevented Mrs. Morrison from keeping her appointment for May 7 with her attorney. She returned to the home place and had been there only two hours when she again fainted and fell. She was put to bed and when her condition continued to worsen, she was readmitted to the hospital on May 15, where she remained until her death on June 14 from a cerebral vascular accident. During her final illness, Mrs. Morrison was attended by two special nurses. Mrs. Tuckwiller also spent much time at the hospital, assisting as she\could. Mrs. Tuckwiller’s daughters also assisted in Mrs. Morrison’s care and one made a claim against the estate for her services. None of the hospital expenses were paid by Mrs. Tuckwiller.

At the trial, plaintiff offered evidence that the life expectancy of a 73-year old person ranged from 8.69 to 9.35 years. The defendants’ evidence was limited to the hospital records of Mrs. Morrison’s three hospitalizations, the testimony above referred to of one of the ambulance attendants, and testimony of a nursing home operator that the cost for care and service there was $200 per month.

The trial court, while recognizing that some money value might be placed upon the services rendered during the six weeks’ period, concluded that at the time the “Contract was made the type, kind and duration of the services required, were so uncertain that they could not be measured by a money standard.” The court concluded that the contract was not inequitable when it was made, that plaintiff had performed her obligations under the contract and that it would not be inequitable to decree specific performance.

On this appeal, the defendants’ sole contention is that specific performance should not be decreed because “the meager services rendered decedent by plaintiff are easily ascertainable and plaintiff can be compensated by the payment of money, and specific performance of the alleged contract * * * results in unjust enrichment to plaintiff, is inequitable and unconscionable, and is based on inadequate consideration, and is grossly unjust to defendant Davidson College.”

This case is one of the infrequent exceptions in cases involving an alleged contract to devise property in return for services in that the contract involved is in writing. /By far the majority of such cases involve /oral contracts, thereby presenting questions of the effect of the statute of fraudé. In the often cited case of Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, Judge Graves discussed the “exception which courts of equity have ingrafted upon the statute of frauds” in the enforcement of such contracts. As Judge Graves pointed out, the statute of frauds was designed to avoid "the dangers which developed in permitting the title to real estate and contracts as to other weighty matters to rest in parol.” However, when the statute came to be used as an instrument for perpetrating fraud, equity established exceptions to the statute’s requirements, to be applied under “well-defined rules of procedure — rules, which like the statute itself, would be a safeguard as against the perpetration of frauds.” The rules laid down in Walker v. Bohannan, supra, were reiterated and applied as recently as 1965 by this court in Watkins v. Watkins, Mo.Sup., 397 S.W.2d 603, 609 [2,3].

Following such rules, this court, in Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 877, refused specific performance of an oral contract to devise an 80-acre tract valued at $2000 in return for care of the promisor for the rest of his life, where the promisor, then 71 years old, survived the alleged agreement by only twelve days, and the value of the services rendered him did not exceed $150.00. Although it accepted with some reluctance the trial court's finding that the contract had been proved, the court pointed to “the short duration of the service rendered by plaintiff” and left him with only a right to recover the readily acertainable reasonable value of such services.

Relying primarily upon Selle, defendants strongly contend that the trial court should not have ordered specific performance and the transfer of a farm valued at $34,400, in return for seven days’ services, which, according to defendants, could easily be valued. (Defendants suggest a value of $133 for the services.)

However, the contract here is in writing. Therefore, the question is not whether equity should apply its established rules for determination of whether the bar of the statute of frauds may be avoided. The question is simply whether according to established principles equity should withhold the relief of specific performance.

In several respects the rules which were expressed in Walker v. Bohannan, supra, are similar to those generally applied in determining whether or not specific performance lies. Equity will not decree specific performance of an inequitable contract or an unconscionable bargain, oral or written. 49 Am.Jur., Specific Performance, § 6, p. 10. A “shockingly inadequate” consideration (Miller v. Coffeen, 365 Mo. 204, 280 S.W.2d 100, 103) may produce such unfairness as will cause specific performance to be withheld, whether the contract be oral or written. An adequate legal remedy, the essential basis of the contention that plaintiff should be merely compensated for the services which she rendered, is a generally accepted bar to equitable relief. Id, § 10, p. 18.

Here significant, however, is that in determining whether or not a contract is so unfair or inequitable or is unconscionable so as to deny its specific performance, the transaction must be viewed prospectively, not retrospectively. The same rule applies with respect to sufficiency of consideration. Berg v. Moreau, 199 Mo. 416, 97 S.W. 901, 9 L.R.A..N.S, 157; Powers v. Mercantile-Commerce Bank & Trust Co, Mo.Sup, 217 S.W.2d 375, 378 [3]; Roberts v. Clevenger, Mo.Sup, 225 S.W.2d 728, 733 [9, 10]. See Walker v. Bales, Tenn.App, 197 S.W.2d 401, 405; Tunks v. Vincent, 241 Ky. 379, 44 S.W. 2d 282, 285; Velikanje v. Dickman, 98 Wash. 584, 168 P. 465, 470; Tate v. Murphy, 202 Okl. 671, 217 P.2d 177, 187, [10], 18 A.L.R.2d 842; Shaw v. Miller, 215 Ga. 413, 110 S.E.2d 759; Dingier v. Ritzius, 42 Idaho 614, 247 P. 10, 49 A.L.R. 598; Howe v. Watson, 179 Mass. 30, 60 N.E. 415; Annotation “Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance,” 11 A.L.R.2d 390, § 18, “Death; contracts to devise,” p. 442; Pomeroy’s Specific Performance of Contracts (3d ed.), § 195, p. 507; 5A Corbin on Contracts, § 1162, p. 216.

Viewed in this light, we find that plaintiff gave up her employment with which she was well satisfied and undertook what was at the time of the contract an obligation of unknown and uncertain duration, involving duties which, in the usual course of the disease from which Mrs. Morrison suffered, would have become increasingly onerous. By all of the evidence Mrs. Morrison's outlook was optimistic at the time of the agreement, although she had a clear appreciation of her future. Mrs. Morrison had a normal life expectancy of several years. There is nothing to indicate that plaintiff anticipated the early death of Mrs. Morrison and that she accepted the contract with the knowledge that her obligation would be of brief duration. Defendants point out that, at the time of Mrs. Morrison’s first hospitalization, plaintiff’s husband called Mrs. Morrison’s sister in Virginia and advised her that Mrs. Morrison was very ill. However, at the time of the contract, Mrs. Morrison had apparently recovered from the illness which had required her hospitalization.

Viewed from the standpoint of Mrs. Morrison, the contract cannot be considered unfair. She was appreciative of the care and attention which plaintiff had given her prior to the agreement. Although, as defendants suggest, such prior services cannot provide the consideration essential to a binding contract, such prior services and the past relation of the parties may properly be considered in connection with the fairness of the contract and adequacy of the consideration. 5A Corbin on Contracts, § 1165, p. 227. Aware of her future outlook and having no immediate family to care for her, Mrs. Morrison was understandably appreciative of the personal care and attention of plaintiff and'concerned with the possibility of routine iiripersonal care over a long period of time in k nursing home or similar institution. Having no immediate family which might be the object of her bounty, she undoubtedly felt more free to agree to dispose of the farm without insisting upon an exact quid pro quo. Her insistence that the contract be witnessed prior to her hospitalization is clear evidence of her satisfaction with the bargain as was her unsuccessful effort to change her will to carry out her agreement.

Defendants hint that the contract was unfair because of evidence of mental confusion of Mrs. Morrison at her hospitalization in April and again on May 6. However, there is no evidence that Mrs. Morrison was other than mentally alert between her discharge from the first hospitalization and the second hospitalization, the period during which the contract was finally agreed to. In fact, all of the evidence was that during such period she was mentally alert and fully aware of what she was doing. We reject any suggestion that the contract was unfair because plaintiff took advantage of Mrs. Morrison’s weakness.

Properly viewed from the standpoint of the parties at the time of the agreement, we find that the contract was fair, not unconscionable, and supported by an adequate consideration. Although not conceding that such conclusion is correct, defendants argue, in effect, that in view of the obviously brief duration of plaintiff’s services and their value in comparison with the value of the farm, plaintiff should be obliged to accept the offered payment of the reasonable value of her services and denied the relief of specific performance. Defendants point out that the trial court found that valuing the services which plaintiff rendered might be “possible.” That conclusion is undoubtedly correct and unquestionably the monetary value of plaintiff’s services would have been a quite small proportion (perhaps one percent) of the value of the farm. Once, however, the essential fairness of the contract and the adequacy of the consideration are found, the fact that the subject of the contract is real estate answers any question of adequacy of the legal remedy of monetary damages. “Whenever a contract concerning real property is in its nature and incidents entirely unobjectionable — that is, when it possesses none of those features which * * * appeal to the discretion of the court — it is as much a matter of course for a court of equity to decree a specific performance of it, as it is for a court of law to give damages for the breach of it.” Pomeroy’s Specific Performance of Contracts (3d ed.), § 10, p. 23.

We deem it unnecessary here to distinguish at length the many cases cited by defendants in which the court refused specific performance of an oral agreement to devise real estate and left the promisee to a claim for the monetary value of the services rendered. Basically, the fact that all involved alleged oral contracts is a sufficient ground of distinction from the case here.

Selle v. Selle, supra, Hardy v. Dillon, Mo.Sup., 207 S.W.2d 276, Feigenspan v. Pence, 350 Mo. 821, 168 S.W.2d 1074, Schebaum v. Mersman, Mo.Sup., 191 S.W.2d 671, cited by defendants, all involved oral contracts. In only Selle v. Selle, supra, did the brevity of the services appear to be a decisive factor. Defendants also cite cases in which all relief was denied because of failure to prove the alleged oral contract. Among those are Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200, Perrin v. Grimshaw, Mo.Sup., 221 S.W.2d 727. In Herman v. Madden, 349 Mo. 447, 162 S.W. 2d 268, the promisee failed to prove performance of the oral contract which he alleged. Jesse v. O’Neal, 364 Mo. 333, 261 S.W.2d 88, involved an attempt to enforce the contract to devise during the promisor’s lifetime.

Defendants point out that, in Buxton v. Huff, Mo.Sup., 254 S.W. 79, 80, the court stated:

“The payment of a consideration in money, of itself, ‘will not in general be deemed such a part performance as to relieve a parol contract from the operation of the statute,’ because the repayment of the money will ordinarily place the parties in their previous position. Rhodes v. Rhodes, 3 Sandf. Ch. (N.Y.) 279. This is the general rule applied in cases like this, and applied even where services are rendered but are of a sort that their worth can be justly estimated and recompensed in money (Grindling v. Rehyl, 149 Mich. 641, 113 N.W. 290, 15 L.R.A. [N.S.] 466; 25 R.C.L. pp. 307, 308), and this accords with the rule as applied to contracts in writing. Even these last are not specifically enforced when a breach can be compensated in damages. The fact that the contract is not in writing does not, of course, eliminate this principle.”

What was said in that case about written contracts was wholly dictum, the case being one involving an oral agreement. In fact, the case did not even involve the rendition of services as partial performance of an oral contract. The partial performance relied upon was the payment of money.

As we pointed out above, oral and written contracts to devise real estate present different problems when specific performance is sought. Equity will ignore the requirements of the statute of frauds, as it must do in specifically enforcing oral contracts, only in order to avoid a fraud upon the performing party. An award of monetary payment may often be adequate to avoid such a result and will, therefore, often be the relief granted when the contract is oral. When the statute of frauds is not involved, specific performance of a contract to convey or to devise realty is the rule, not the exception. 49 Am.Jur., Specific Performance, § 92, p. 107. See State ex rel. Place v. Bland, 353 Mo. 639, 183 S. W.2d 878, 889-890 [21-24]; Rice v. Griffith, 349 Mo. 373, 161 S.W.2d 220, 225 [4-7]; 5A Corbin on Contracts, § 1162, p. 217.

Admittedly, as defendants point out, no previously decided case by this court has ordered specific performance of a contract to devise real estate, in writing or oral, where the duration of the services for which the devise was promised was as brief as those in this case. Berg v. Moreau, supra, involving an oral contract under which services were performed for about a year apparently involved the least period of services in return for which specific performance was ordered. However, that fact is not here decisive. This case must stand on its own merits and, in our opinion, it was properly one in which specific performance was ordered.

The decree is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Leon Douglas PENN, Appellant.
    No. 52106.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.
    Rehearing Denied April 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard K. Wilson, Sp. Asst. Atty. Gen., Springfield, for respondent.
    Max Oliver, Montgomery City, for defendant-appellant.
   DONNELLY, Judge.

Appellant, Leon Douglas Penn, was convicted of burglary in the second degree under § 560.070 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Montgomery County, Missouri, and his punishment was assessed at imprisonment in the custody of the State Department of Corrections for a period of two years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

On January 14, 1965, Paul Wright drove Lis car to the New Florence Post Office where appellant joined him. They drove to Jake Zweifel’s house, picked him up, and drove to Montgomery City. After spending some time in Montgomery City, the three men started back to New Florence about 8:30 p. m. On the way, appellant said, “I know where we can get rid of a typewriter if we can locate one.” He also said, “I think there’s one down at the Coop Plant.” They drove to the “Coop place,” a fertilizer plant in New Florence. Appellant said, “You all get out here and see what you ■can find and I’ll be back with the car later.” Wright and Zweifel got out of the car and appellant drove off. Wright and Zweifel went to the plant office, tried to pry the window open, broke the glass, and entered the building. They picked up what they thought was a typewriter but what in fact was an adding machine, left the building, and went down the driveway to where appellant was waiting in the car. Appellant stated that a typewriter should be there instead of an adding machine and said, “You Loys go back and see if you can’t find that typewriter.” Wright and Zweifel entered the building again, got another machine that they thought was a typewriter, “and it turned out to be another adding machine.” They returned to the car and drove to East St. Louis, Illinois, where they were arrested.

Appellant questions the sufficiency of the evidence. The evidence, though consisting largely of testimony elicited from Wright and Zweifel, authorized a finding that appellant was guilty of burglary in the second degree. Their testimony was credible, was uncontradicted, and was “such that reasonable minds might believe it.” State v. Harris, Mo.Sup., 295 S.W.2d 94, 95.

The case of State v. Castaldi, Mo. Sup., 386 S.W.2d 392, cited by appellant, does not assist him here. The evidence shows that appellant aided, abetted, encouraged, and affirmatively participated in the crime. This is sufficient to sustain his conviction. State v. Whitaker, Mo.Sup., 275 S.W.2d 316; State v. Williams, 356 Mo. 1048, 204 S.W.2d 748; State v. Boothe, Mo.Sup., 364 S.W.2d 569; State v. Ramsey, Mo.Sup., 368 S.W.2d 413.

Appellant further contends that the trial court erred in admitting testimony of Garland Bethel, Sheriff of Montgomery County, a witness for the State, who was allowed to relate statements made to him by Wright in East St. Louis, Illinois, after Wright, Zweifel and appellant were apprehended and when Wright and appellant could have been no longer acting together in the furtherance of the burglary. Bethel’s testimony, in part, is as follows:

“Q Mr. Sheriff, have you seen this Remington Rand Adding Machine before?
“A I have.
“Q Did Mr. Wright make any admission as to this machine in the same way he did the other one?
******
“A He did.
******
“Q What statement did he make in regard to this machine while in the presence of the defendant, Leon Penn?
“A That it had been taken from the Coop Building, that the three of them took it.
* * * * * *
“Q Now, Sheriff, do you have your identification tag on this machine too?
“A Ido.
⅜ ⅜ ⅜ ⅝ ⅝
“Q Now, I will ask you, Sheriff, if Paul Wright, in the presence of the defendant, Leon Penn, made any statement in regard to this machine?
“A He did.
“Q What was that statement?
“A He stated it was one of the machines that they took from the Coop, he and Leon Penn and Jakie Zweifel.”
Counsel for appellant made several objections to this testimony. One of the objections was:
“Now, if Your Honor please, again I object for the ground stated at the beginning of the testimony — testimony of a co-conspirator is not admissible against this defendant — the best evidence is from that witness himself — this would be hearsay.
“THE COURT: Overruled.”

In State v. Chernick, Mo.Sup., 278 S.W.2d 741, at 748, we said: “The essential principle of the hearsay rule is that for the purpose of securing trustworthiness of testimonial assertions and of affording the opportunity to test the credit of the witness, such assertions are to be made in court, subject to cross-examination. And, if the declaration of a co-conspirator or co-actor sought to be shown in evidence is not in furtherance of the object of the unlawful combination, or if it was made prior to the formation thereof, or after the consummation of the purpose thereof, the objection to be made is that such declaration is\hearsay statement and not binding upon the co-conspirator or co-actor on trial.”

However, the State urges that appellant “has misconstrued the theory of the prosecuting attorney in admitting such testimony as it obviously did not relate to a conspiracy but was admitted on the theory that defendant’s remaining silent while present when Wright stated that the machines had been taken from the co-op building and that all three of them had taken them was an admission on the part of the defendant Penn.” Sheriff Bethel’s relation of what Wright said was “purely hearsay.” State v. Higgins, 321 Mo. 570, 12 S.W.2d 61. The State apparently offered the testimony on the theory that appellant’s silence, when Wright’s statements were made in his presence, constituted an admission of his guilt and an exception to the hearsay rule. If this was the prosecuting attorney’s theory, the testimony was inadmissible. “The rql<j of the law in this state is well settled that, while the defendant is in custody or under arrest, statements of a third party, made in his presence, and not denied, are inadmissible at the trial.” State v. Dengel, Mo.Sup., 248 S.W. 603, 605; State v. Kissinger, 343 Mo. 781, 785, 123 S.W.2d 81, 83.

In our opinion appellant’s objection that Sheriff Bethel’s testimony “would be hearsay” adequately preserved the question for appellate review. Appellant’s objection should have been sustained. The trial court’s action in overruling the objection was prejudicially erroneous.

The judgment is reversed and the cause remanded.

All of the Judges concur.