author: DALTON, Judge. PER CURIAM.

text:
    Hallard HEALD, (Plaintiff) Respondent, v. Nick ERGANIAN and Rose Erganian, (Defendants) Appellants.
    No. 49838.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.
    Motion for Rehearing or Transfer to Court En Banc Denied April 13, 1964.

      Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellants.
    Merrill M. Steeb, St. Joseph, for respondent.
   DALTON, Judge.

Action in equity to quiet and determine title to described real estate in the City of St. Joseph, Buchanan County, Missouri, and for partition, with a counterclaim by the defendants for goods sold and delivered to plaintiff. The two counts of the petition and also the counterclaim were tried to the court in one proceeding and the court found that plaintiff Hallard Heald and Nick Erganian were each the owners of an undivided one-half interest in and to the described property; that the property was subject to certain liens in favor of defendant Nick Erganian for purchase money furnished; and that plaintiff was indebted to defendants in the sum of $257.60 on the counterclaim for goods purchased from defendants. The court found that the property could not "be equitably divided between the parties in kind without a sale” and ordered a sale in partition and a division of the proceeds in accordance with the court’s decree. Defendants filed a motion for a new trial, which was overruled and they have appealed.

This court has jurisdiction of the appeal since the decree determined title adversely to defendants (husband and wife) who claimed ownership of the described property and denied that plaintiff had any interest therein. State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544, 545; Ray v. Nethery, Mo.Sup., 255 S.W. 2d 817, 819 [2],

The subject matter of the action to quiet title consisted of six particularly described lots located in the City of St. Joseph. Four of the lots are referred to as the “used car lots” and were located at the intersection of Lake and Colorado Streets. The other two lots are referred to as adjoining or near the Erganian store.

It was admitted that the “used car lots” had been conveyed to the defendants (husband and wife) by John E. and Alice A. Smith in August, 1960; and that the two lots adjoining the store had been conveyed to defendants by a deed “regular in all respects” executed by the Cramer heirs.

Plaintiff alleged that he had entered into an oral contract with Nick Erganian for the purchase and sale of the described real estate, which contract had been repudiated by defendants and that plaintiff was the owner of a one-half interest in the described property subject to certain purchase money liens, as hereinafter stated. The petition described the relationship existing between the parties resulting from the alleged oral agreement and the subsequent conduct of the parties as a joint venture. We think the descriptive term applied to the legal relationship between the parties and resulting from the alleged oral agreement and the conduct of the parties to be wholly immaterial. The existing legal relationship between the parties must be determined from the evidence.

Much of this record consists of the testimony of witnesses who personally appeared before the trial court, although some facts were stipulated as to the deeds and the deposition of one witness was read to the court. In reviewing this case on appeal, we are of course governed by Supreme Court Rule 73.01(d), V.A.M.R. as follows: “The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court. The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” This rule is particularly applicable to certain assignments of error presented to us on this appeal.

Plaintiff Hallard Heald was engaged in the “used car” business and he also operated a drive-in theatre in St. Joseph. Nick Erganian owned and operated a grocery store.

Plaintiff testified that in July or August, 1960, he had a conversation with Mr. Erganian at the meat counter in defendants’ store about the property located at the intersection of Lake and Colorado, and suggested that it was a good buy and that he was going to buy it, since plaintiff had to move his business from its then location. Mr. Erganian said that he was also interested in buying property in south St. Joseph. He suggested that, if plaintiff would find suitable property, they could buy it and they “would be partners.” Plaintiff told him that he already had the deal worked out on the Lake Street lots and Mr. Erganian stated that, if plain-he would furnish the money and that if we “would sell the lots at a profit, we would split, or any other property we bought or sold or leased, whatever we made off it, we would split the money.” As stated, plaintiff had contacted the owner of these lots before this discussion and the deal was consummated at the E. L. Smith office. Plaintiff had discussed the matter with Mr. Erganian three or four times and advised him “that the lots were tax title property.” The price agreed on was $1000 but eventually only $900 was paid. The reduction in price was the result of plaintiff’s negotiation with the owner and the recognition by the parties that the tax title would have to be quieted and determined. Plaintiff testified: “Title to the lots were put in Mr. Erganian and his wife’s names because I had no collateral.” Plaintiff delivered defendant Erganian’s $900 check, received the deed and took it to defendants.

After the property was purchased plaintiff took possession of it and had certain advertising signs owned by the Hargrove Advertising Company removed, the property graded and graveled and a used car sales office built thereon. Subsequently, plaintiff and Mr. Erganian negotiated with one George Herring with reference to building a building on the property to house a laundromat and to lease the property to an operator. Plans were drawn and figures obtained at Mr. Erganian’s request, but ultimately the proposition was rejected. Plaintiff testified: “Nick told Mr. Herring that we had the plans for the building and the cost of it and that Nick and I would have to discuss it and we would let him know about building the building.” Although plaintiff was using the Lake Street lots during this period he did not pay any rent and no rent was demanded of him and nobody requested possession of the property.

Subsequently, one Hubert Munsell wanted to acquire the Lake Street Property and he had a conference with plaintiff and Mr. Erganian. Mr. Munsell offered $3500 for this property, less Munsell’s fee of $200. Mr. Erganian told Mr. Munsell at the conference that whatever plaintiff decided to do would be all right with him. Later, Mr. Erganian told plaintiff that he felt they could get the $200 if they waited a while, and, if so they would sell; however, the purchaser did not increase the bid and the property was not sold; At that time Mr. Erganian had invested approximately $1350 in these lots and plaintiff wanted them sold and the profits divided. Thereafter, plaintiff signed a contract with the Hargrove Advertising Company to reinstall some signs on the lots. He also collected the rent and Mr. Ergan-ian was not consulted. Plaintiff paid no taxes on these lots, since the taxes were paid by the Hargrove Advertising Company.

Thereafter, in the spring of 1961, plaintiff located a piece of property on King Hill at Kansas Avenue which he thought was suitable to buy. It belonged to one Robert L. King. Plaintiff discussed the purchase of this property with Mr. Er-ganian, since the property could be acquired for $3300 and leased back to King for $75 per month. Mr. Erganian wanted to inspect the property and did so with plaintiff. Mr. Erganian said it was a good deal and that “we will buy it.” He gave plaintiff $100 in cash to close the deal. However, when plaintiff went back to see Mr. King, King said he would have to discuss the proposition with his wife. As a result, the deal could not be closed and plaintiff returned the $100 to Mr. Ergan-ian.

Thereafter, Mr. Erganian told plaintiff that he would like to own the two lots on the north of his store since he wanted the property for a parking lot. He told plaintiff that he had tried to buy the property some four years earlier but could not. He asked plaintiff to find out who owned the property and if it could be purchased. Plaintiff contacted the owners and negotiated with them on the price, had the deed prepared, naming defendants as grantees, and the deal was closed in the office of plaintiff’s attorney, and in the presence of Mr. and Mrs. Cramer, plaintiff and Mr. Erganian. When they met together plaintiff introduced Mr. Erganian to Mr. and Mrs. Cramer as “my partner. * * * He is going to give you the money.” Mr. Erganian made no objection to the statement in his presence that “he is my partner.” The payment of $2000 was made with Mr. Erganian’s check.

Subsequently, plaintiff asked Mr. Ergan-ian to sell the respective properties they had acquired and Mr. Erganian admitted that he' owed plaintiff money and offered to pay plaintiff $1500 for his interest in the properties they had acquired, but no payment was made.

On cross-examination of plaintiff it appeared that it was a part of the original deal to have the title to the Lake Street lots quieted and determined in the name of Mr. Erganian and his wife. Suit was brought by attorney Don Pierce. Plaintiff’s present counsel represented the unknown defendants in that action. Plaintiff was not a party to that suit and did not pay the court costs, cost of publication, nor the attorney’s fee, but plaintiff had consulted the attorney, ascertained the cost of a quiet title suit and had obtained a reduction of the purchase price from $1000 to $900, because of the necessity for the proposed suit to quiet title.

With reference to the lots adjacent to defendants’ store, plaintiff contacted the owners on behalf of both Mr. Erganian and himself. Plaintiff’s interest in the property was “that Nick made a deal with me that we would buy property and if we could sell it and make money we would split the profits.” The property was to be purchased for both plaintiff and defendants, but Mr. Erganian was to put up the money and they were to split the profits; however, Mr. Erganian refused to sell the property. As to the Lake Street property, he didn’t necessarily refuse to sell it, but the prospective purchaser refused to buy unless the $200 to the agent would be paid.

When the lots adjoining the defendants’ store were purchased with plaintiff’s aid, the lots were bought with the idea of using it for a parking lot for customers, but subject tp the partnership agreement. They were bought with the same idea that the other property was purchased. Plaintiff also said they were not bought for use as a parking lot, but that Mr. Erganian was using the property as a parking lot; that plaintiff had not paid any taxes on any of the property; that he had not put any money in the property, but only his services, as stated; and that he had used the Lake Street property rent free. Plaintiff also admitted that he had no contract- of partnership agreement in writing with "Mr. Ergan-ian ; and that the traniactíohs-were Hád'm defendants’ names and the deeds made to them, because he (plaintiff) had “no collateral.” Plaintiff further admitted that he was frequently in the Erganian store to buy groceries; that a pretty good balance existed from time to time; and that his indebtedness was approximately the amount sued for in the counterclaim, to wit, $257.-60.

The testimony of Robert L. King tended to show that he had had a barber shop at 4903 King Hill; that plaintiff and Mr. Erganian came to his office sometime during July, 1961; that their purpose was to purchase his building; that they made him an offer for it; that his negotiations were carried on with Mr. Hallard Heald, although Mr. Erganian made an inspection with Mr. Heald; that he did not sell his property because his wife wouldn’t let him; and that he had had no dealing with them, “except the one where they tried to purchase my building.” He expressed his conclusion that Mr. Heald had come to see h"m as an agent of Mr. Erganian.

The testimony of Mrs. Harold Cramer, one of the grantors in the mentioned deed for the two lots, tended to show that she met Mr. Erganian at attorney Pierce’s office ; that plaintiff Heald had consulted her with reference to the sale of her property adjacent to the Erganian store; and that the transaction was closed in Mr. Pierce’s office, where for the first time she saw Mr. Erganian, who was introduced to her by Mr. Heald “as his partner.” Mr. Heald said: “This is my partner, Mr. Erganian.” Mr. Erganian made no objection to the description. The purchase price was paid by Mr. Erganian’s check. She knew nothing about the business relationships between plaintiff and Mr. Erganian.

The testimony of George L. Herring tended to show that he knew Mr. Erganian and Mr. Heald and had a conference with them about the property at Lake and Colorado. He discussed the question of putting buildings on these lots. He presented his pi-oposal• for the’construction of two buildings. Mr. Erganian, on receiving the price, said “they would discuss it” and let him know. Mr. Herring testified: “Nick told me, he said they would have to discuss it and they would let me know.”

The testimony of Hubert Munsell tended to show that he was a real estate salesman and he met with Mr. Erganian and Mr. Heald and talked about purchasing the used car lots. He presented a purchase agreement to Mr. Heald and Mr. Erganian at the Erganian store. Mr. Becker was the buyer he represented and he presented a signed contract for $2500. He conferred with both Mr. Heald and Mr. Erganian. He first took the contract to Mr. Heald and he said, “I will have to take it to my partner.” This answer was not responsive to the question asked, but no motion to strike was made. The witness had previously testified without objection: “Well, I took it to Mr. Heald and he said, ‘we will go see Mr. Erganian with it,’ ” and so they went to Nick Erganian’s store. Mr. Erganian said for Heald to talk to his wife in regard to it and they would talk it over some more. Witness later made another offer of $3500 and he dealt with both Mr. Heald and Mr. Erganian and showed both of them the contract and the check in support of it, but no sale was made.

The deposition of one John E. Smith was read by agreement. Mr. Smith’s testimony tended to show that on the 9th day of August, 1960, he sold the four lots on Colorado and Lake Avenue to Hallard Heald. Mr. Heald had interviewed him and he advised that he would take $1000 for the lots. Later Mr. Heald came back and talked about the necessity of a quiet title suit and Smith offered the lots for sale for $900. Heald gave him the check for the purchase price. The check was signed by Nick Er-ganian. He did not recall to whom the deed was made, but he and his wife had signed and delivered it. The witness had had no dealings whatever with Mr. Erganian. When the quiet title suit was heard both Mr. Smith and Mr. Erganian were present. While he did not reall the name of the grantees in the deed he negotiated with Mr. Heald and assumed that the property was deeded to him.

Attorney Don Pierce testified that he was acquainted with Mr. Erganian and Mr. Heald and was also acquainted with both tracts of real estate in question, to wit, the property on Lake Street and the property adjacent to Erganian’s store. He represented both Mr. Erganian and Mr. Heald with reference to these properties, but Mr. Erganian paid his fee. Mr. Heald called him with reference to quieting the title of the Lake Street property, but when the abstract was extended and delivered the abstract showed the property to be in the names of Mr. and Mrs. Erganian, so he talked to Mr. Erganian with reference to the ownership of the property and about proceeding with the litigation. He also discussed with them the amount of his fee and the fact that Mr. Heald had employed him, although the title to the property stood in the name of Mr. and Mrs. Erganian. Mr. Erganian told him to proceed; that the property was to be quieted in his and his wife’s name, because he had put up the money; that Heald didn’t have the money, but that Hallard Heald had an interest in the property, since they were speculating in this real estate. Witness examined the abstract for the property adjacent to Mr. Erganian’s store and • his opinion on the title was directed to Mr. Erganian, but Mr. Erganian and Mr. Heald and the sellers (Mr. & Mrs. Cramer) were in his office when the transaction was closed. He said he represented both Mr. Heald and Mr. Er-ganian. He was present when the introductions were made. Mr. Heald had first contacted him with reference to the property. He had prepared a deed and delivered it to Mr. Heald, because it had to be sent away for some of the Cramer heirs to sign. When closing time came, some of the Cramers came to his office. The deed was made out to Mr. and Mrs. Erganian. He heard Mr. Heald introduce Mr. Erganian to the Cramers “as his partner.” Mr. Erganian made no obj ection or complaint on being so described. See Van Hoose v. Smith, 355 Mo. 799, 198 S.W.2d 23, 27 [8, 9]. The record further shows that Mr. Pierce testified as follows:

“THE COURT: Tell what he said if you can remember.
“A Mr. Heald first contacted me and employed me to quiet the title to it, and told me that he in [sic] and Nick were in together.
“MR. KRANITZ: I object to what he told you. It is hearsay.
“THE COURT: Sustained.
“A (continuing) I then contacted Mr. Erganian to confirm the fact of whether or not he wanted me to proceed with it. And he said, ‘Yes, go ahead with it’. And I quoted my fee to Mr. Heald. Then when the abstract came through it was in the name of Mr. and Mrs. Erganian. At that time I asked Mr. Erganian if Hallard [Heald] was to be included in it. He said, T have put up all the money. Hallard [Heald] is in it all right, but I want it in my and my wife’s name.’ ”
* * * * * *
“A When I called him [Mr. Erganian] and told him that Mr. Heald had employed me to file a quiet title suit for him, and Mr. Heald had told me Mr. Erganian was going to furnish the money, and I called Mr. Erganian to confirm whether or not I should go ahead. * * * Mr. Heald employed me and told me to go ahead and file this suit for he and Mr. Erganian and that Mr. Erganian was furnishing the money. In view of that I felt it important to confirm it with Mr. Erganian before I proceeded. * * * It might be a mischoice of words, but Mr. Erganian told me with reference to the Lake and Colorado property that he and Hallard [Heald] owned it.”

Before Mr. Heald had instituted the present suit he came to see him (Mr. Pierce) and talked to him about it. Witness told him he could not represent him in this matter, because he had represented both Mr. Heald and Mr. Erganian in the other two matters. Witness further said he “specifically and unequivocally recalled that Mr. Heald introduced Mr. Erganian to the Cramers as a partner.”

Defendant Nick Erganian testified in his own behalf that he and his wife owned both of the tracts of real estate in question here, and that no one else had any interest in it. He denied any agreement with Mr. Heald to share the profits in any real estate bought or sold, where witness was furnishing the money. He had no agreement with Mr. Heald with reference to any of this property. He said that Mr. Heald told him that he would like to have a place to sell used cars and that the mentioned lots could be purchased for $900. Witness said he furnished the check for $900, gave it to plaintiff and directed plaintiff to have the abstract prepared and title placed in defendants’ names. He was not a partner of plaintiff since he was buying the property for himself. He did not rent the Lake Street property to plaintiff, but permitted plaintiff to use it as a used car lot, because plaintiff agreed to pay him $10 for each car sold from the lots. Nothing had been paid, although witness had continued to permit Mr. Heald to occupy the lots. The witness further testified that plaintiff was indebted to him for a grocery bill in the sum of $257.60, for which he had filed the counterclaim.

As to the two lots across the street from his store, the witness said that he had tried to buy the lots some three years before but was unable to do so; and that when witness told Mr. Heald that he would like to have the lots for a parking lot for his store, Mr. Heald asked permission to go see about it, and that, subsequently a price had been agreed upon, but that he had no idea of selling the lots since he wanted them for a parking lot. He and Mr. Heald were both present when the agreement with the Cramers was consummated and a deed taken in the name of Himself and wife, although his wife was only a nominal party. He said that if Mr. Heald had wanted compensation for services he should have advised him. He told plaintiff he might get him $1500, but he assumed that plaintiff wanted to borrow that amount; and that he didn’t know that plaintiff was wanting that amount “just because he had done me a favor of buying two lots, if he had bought the two lots.” The sum of $1500 had no relationship whatever to the four lots on Lake Street or the two lots near defendants’ store. He thought plaintiff merely wanted a loan.

On this evidence the trial court found that the agreement between plaintiff and Mr. Erganian, pertaining to the property in suit, was that they were speculating in the property; that the agreement was, as Mr. Heald had said it was, to wit, that they would buy property, Mr. Erganian would put up the money, and when it was sold Mr. Heald would get half the profits for his efforts. The court held that plaintiff was the owner of a one-half interest in the respective properties; that Mr. and Mrs. Erganian were the owners of the other half interest; that Mr. Erganian was entitled to a first lien on the Lake Street property in the sum of $1300, which the plaintiff had conceded Mr. Erganian had in the property; and that Mr. Erganian was entitled to a first lien on. the two lots adjoining his store for the $2000 he had paid as the purchase price for these two lots. Since there was no evidence as to the rental value of the properties, the court charged Mr. Heald with $1 for the use of the lots on Lake Street and Mr. Er-ganian $1 for the rental value of the property he was using as a parking lot for his store. The court further held that, there being' no dispute concerning the counterclaim, the defendants were entitled to a judgment for $257.60 against plaintiff.' The court further found that the respective properties could hot be equitably divided between the parties in kind and ordered a saie in partition and that the proceeds be divided between the parties in accordance with his finding. The decree was entered accordingly and the cost taxed one half against plaintiff and one half against defendants.

Under points and authorities appellants first contend that the court erred in granting plaintiff relief because plaintiff’s-petition failed to state a cause of action-against defendants in that it failed to allege that plaintiff was a licensed real estate broker or salesman at the time the allegedcause of action arose. Appellants cite §' 339.160 RSMo 1959, V.A.M.S. applicable to unlicensed real estate brokers. There-is no merit in this assignment because there was no pleading or evidence tending to-show that plaintiff was a real estate broker, or subject to the provisions of Chapter 339, RSMo 1959, V.A.M.S. Section 339.010' RSMo 1959, V.A.M.S. defines a real estate-broker as “any person * * * who advertises, claims to be or holds himself out to the public as a real estate broker or dealer” and it further provides that the-chapter shall not “apply to any person who-does not advertise or hold himself out to the public as a real estate broker or dealer * * * to sell, or rent or lease or offer to rent or lease any real estate * * (Italics ours.)

Appellants further contend that the court erred in finding a relationship “in the nature of a partnership or joint venture beween the parties.” In support of this assignment appellants say that plaintiff attempted to plead a “joint venture,” but directed his proof to a partnership relationship. Appellants also contend that the court erred in entering judgment for plaintiff, “because the proof was directed to a relationship of partnership whereas the petition alleged the existence of a joint venture.”. It is true that plaintiff’s petition refers to the agreement between the parties as a basis for “a joint venture,” but we think it wholly immaterial as to the name applied to the relationship between the parties and resulting from the facts-shown in evidence. Any variance between •pleadings and proof was also immaterial since the pleadings may be considered as •amended to conform to the proof. See Supreme Court Rule S5.S4. No evidence was objected to on the theory that it was not within the issues made by the pleadings.

The petition stated a cause of action to quiet and determine title to the described real estate under § 527.1S0 RSMo 1959, V.A.M.S. Plaintiff alleged his theory of the contract entered into with defendants, and its performance on Ris part and that the described real estate "had been purchased and defendants had furnished the purchase price and taken title in their names; that a controversy lias arisen between plaintiff and defendants regarding their respective rights in and to said real estate, since defendants claimed ■ownership to the exclusion of plaintiff. Plaintiff asked the court to declare, in accordance with his theory, that he was the •owner of an undivided one-half interest in the described real estate, subject to the advancements made by defendants. A cause of action was stated. La Presto v. La Presto, Mo.Sup., 308 S.W.2d 724, 726.

While appellants in effect concede that .a partnership relation must be based on contract and that there may be almost as many different kinds of partnerships as there could be contracts with reference to the same, nevertheless, appellants insist that no basis for the finding of a partnership appears from the record. Appellants say that, “although there was evidence that the parties were to divide the profits upon resale of the land, there was no evidence that they were to divide the losses, if the properties were sold for less than costs and expenses” (italics ours); that the evidence fails to affirmatively show that the parties intended to share the losses as well as the profits; that there was no evidence that it was the intention of both parties that a partnership exist; that there was no evidence tending to show that plaintiff had the right to contract for the purchase or sale of property or to incur liabilities binding on both parties; that, although plaintiff at best could locate properties to buy or buyers for properties bought, the defendants alone had the absolute ’ right to refuse to buy or to sell; and that a partnership inter sese could only arise from evidence showing the intention of both parties that there be a partnership and that no such evidence appeared.

For a definition of a “joint adventure” see Scott v. Kempland, Mo.Sup., 264 S.W.2d 349, 354, et seq.; and also see Pigg v. Bridges, Mo.Sup., 352 S.W.2d 28, 33, stating that: “Joint adventures arise out of contract, but may be established without specific formal agreement and may be implied or proved by facts and circumstances showing such a relationship was in fact created,” and that “There need not necessarily be an agreement to share losses.” In State ex rel. McCrory v. Bland, 355 Mo. 706, 197 S.W.2d 669, 672, 168 A.L.R. 929, authorities are cited to the effect that “a specific agreement to share losses is not necessary in either a partnership or a joint adventure. Such an agreement may be implied.” It is further pointed out that rights as between adventurers are governed by the same rules that govern partnerships. In Gales v. Weldon, Mo.Sup., 282 S.W.2d 522, 527, it is pointed out that joint adventures are in the nature of partnerships and “generally governed by the same rules of law, the principal difference being that a joint adventure is usually limited to a single transaction.” And see Morrison v. Caspersen, Mo.Sup., 323 S.W.2d 697, 702, where the court said: “In the view we take of the case, however, it appears to be unnecessary to reach a positive conclusion in that respect [existence of a joint adventure] because, as we see it, whether the agreement is considered as one providing for a joint adventure or whether it was simply an agreement creating certain contractual rights, the relief to which the parties are entitled is the same.” The same rale applies to the facts before the court at this time.

The issue presented on the present appeal is not whether the evidence was sufficient to show the details of a contract for the formation of a partnership, where the contract has stated the respective rights and duties of the parties thereto, nor whether a joint venture is shown, but rather the question is as to what legal relationship, if any, was created between the parties and what relationship was brought into existence by reason of the alleged oral agreement and plaintiff’s alleged compliance therewith.

Appellants further insist that the court overlooked the testimony of Robert L. King who said that plaintiff came to him as the agent of Mr. Erganian. Appellants further state that the court erred in basing its decision on the testimony of Munsell, Smith and Herring because the testimony of these witnesses is equally consistent with the relationship of principal and agent as with the existence of a partnership agreement. We need not review these contentions because, on the appeal of an equity case, we try the case de novo, and where the appellant has brought up the entire record, as here, this court considers such evidence in the record as it deems admissible, excludes from consideration evidence improperly admitted, and reaches its judgment on the competent evidence offered without regard to the trial court’s rulings. Middleton v. Reece, Mo.Sup., 236 S.W.2d 335, 341 [1]; Bowman v. Kansas City, Mo.Sup., 233 S.W.2d 26, 29 [1]. Also see Supreme Court Rule 73.01 and Sec. 510.310 RSMo 1959, V.A.M.S.

Appellants further contend that the trial court erred in entering judgment for plaintiff because the alleged agreement between plaintiff and the defendants “violates the rule against perpetuties, in that nothing vests in the plaintiff until the resale of the properties, an event which is not certain to occur.” This assignment is not supported by any evidence in the record and it ignores both the pleadings and plaintiff’s evidence. Plaintiff alleged that the real estate purchased was to be owned by the parties, with plaintiff being entitled to a one-half interest and, in the prayer of the petition, plaintiff asked the court to so declare the respective interests of the parties and to further declare that the described real estate was subject to the advancements made by defendants for the purchase thereof. The petition clearly asks affirmative equitable relief, relief which only a court of equity could grant. Plaintiff’s evidence, as stated, shows that the property was purchased for resale and that plaintiff was to receive one half of the profits. While the petition didn’t expressly so state, the plaintiff was permitted to testify without objection or motion to strike that defendant Erganian said: “We could buy up different lots and property if I [plaintiff] could find it, and that we would be partners.” When the witness was asked what he was to furnish to the partnership, the court sustained an objéction by defendants’ counsel that it was a matter for the court to determine “what is a partnership.” Thereafter, without objection or motion to strike, plaintiff testified concerning the agreement of the parties as hereinbefore set out. If such was the agreement between the parties, and the court so found, the rule against perpetuities could not and would not apply, because when a piece of property was acquired through plaintiff’s efforts and the defendants furnished the purchase price, the plaintiff, upon the execution and delivery of deed to defendants, became vested with an equitable interest in the described property and there was no further estate to which the mentioned rule could apply, since plaintiff’s equitable interest was then vested. Cordia v. Connolly, Mo.App., 261 S.W. 729, 732 [2, 3]. For statement of the rule against perpetuities see Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629, 634; Nelson v. Mercantile Trust Co., Mo.Sup., 335 S.W.2d 167, 172 [1],

We have hereinbefore reviewed the testimony of attorney Don Pierce and it need not be reviewed here, but appellants contend that Don Pierce represented them in the Cramer transaction in closing the deal and also in quieting title to the Lake Street property; and that statements by Mr. Erganian to him were privileged communications between attorney and client and were, therefore, inadmissible because privileged. Although Pierce represented both Hallard Heald and the defendants, the defendants did not waive the privilege. It was admitted that there were no conversations between Don Pierce and either plaintiff or defendants when all were present; and that Don Pierce did not have the consent of defendants to testify with reference to Mr. Erganian’s statements to him. The court erred in admitting these several statements over the repeated objections of defendants’ counsel. We agree that this testimony concerning statements made by Mr. Erganian to his counsel, when no one else was present, were improperly admitted in evidence and that this evidence must be and is excluded from our consideration in our review de novo of the evidence shown in the transcript. In the case of Hull v. Lyon, 27 Mo. 570, 576, in an opinion subsequently criticized in other respects, the court said: “Though Hull, the plaintiff, had an interest with Moore in the matter about which the common attorney was consulted, he had no right to any communications Moore might have made. The aim of the evidence was to affect Moore and those claiming under him. Any information Moore may have communicated, or any facts he may have stated, or admissions he may have made, to his attorney, cannot be disclosed at the instance of one who had a hostile interest in the subject of the consultation, although he attended it and employed the same attorney to advise as to his rights and interests in the matter about which they consulted. The consent of both parties was necessary to make the attorney a competent witness. Whether a communication is a privileged one is a question for the court.”

Appellants further contend that the court erred in admitting certain hearsay testimony, as where Munsell testified that when he had a contract for the purchase of the property that he took it to Mr. Heald and Mr. Heald said: “I will have to take it to my partner,” and that, thereafter, witness Munsell accompanied Heald to Erganian’s place of business, where the proposition was discussed.

While it is true that the record so shows and that there was no objection, or motion to strike and the answer was not called for by the question, but the testimony remained in the record for what it was worth and no error was committed in permitting it to so remain, yet in reviewing the record at this time we shall disregard this hearsay statement as having no value whatever. We shall also disregard the part of Don Pierce’s testimony which was improperly admitted over objection.

Appellants further contend that the court erred in ordering partition after reaching the conclusion that plaintiff was the owner of a one-half interest in these respective properties, subject to the mentioned liens. Appellants say there was no evidence adduced by plaintiff to prove the allegations of Count II of his petition wherein he alleged that partition of said real estate in kind cannot be made without serious injury to the parties herein.

The court did not err in ordering partition of this property consisting of one tract of four lots subject to a purchase money lien for $1300 and another tract of two lots near the Erganian store subject to a purchase money lien for $2000, and where each tract appeared to have been improved as a unit.

Appellants also say there was no evidence in the record as to the cost of improvements on the lots adjoining defendants’ store, nor the costs of the improve-merits on the property on Lake Street. We agree that the parties offered no testimony as to the rental value of either of these tracts, nor as to the value of the improvements made by either plaintiff or defendants, nor was there evidence as to the amount of taxes paid by either of the parties nor as to any rentals received by plaintiff from signboards or otherwise. In this situation, since both counts of the petition and the counterclaim of defendants were submitted to the court in one proceeding and evidence heard thereon and findings made, without any objection by either party during the course of the trial or at the conclusion of it or even after the court’s statement as to his determination of the issues presented and prior to the formulation and recording of the decree in accordance therewith, we think it is now too late for either party to complain.

Plaintiff’s petition had 'alleged expenditures in excess of $600 for improvements on the Lake Street lots and plaintiff prayed that defendants’ interest in the property be charged with these improvements, but he offered no evidence as to the cost or value of these improvements, although he testified with reference to them. There is nothing in the record to indicate the amount of any expenditures by defendants except in acquiring the properties and quieting title.

While we find no basis in the evidence for the court’s assessment and determination of the total rental value of the respective tracts at $1 each, nevertheless, neither party was prejudiced by such a finding since, if they had wanted it otherwise, it was their duty to have offered evidence at the trial.

Appellants further contend that the decree is contrary to the trial court’s finding of facts in that the trial court found plaintiff entitled to compensation and awarded him title in fee simple instead. We find no merit in this assignment. It is true that the court, in reviewing the evidence, said that it was only reasonable to assume that the agreement was as stated by plaintiff in that plaintiff had said they would buy the property, Mr. Erganian would put up the money, and then when sold “for his efforts Mr. Heald would get half the profit.” (Italics ours.) The court further stated that “the court does find that he-[plaintiff] is a half owner in the properties in question and that Mr. and Mrs. Erganian are the owners of the other half.” Each of the interests were subject to purchase money liens.

Appellants argue that “entitlement to half the profits, if any, is not entitlement to half ownership in real estate”; and that the different parts of the decree cannot be reconciled. We do not agree in view of the court’s imposition of special liens-for the purchase price of the respective tracts. There was no finding that plaintiff was entitled to receive other than the relief the court granted. Defendants’ position was, as stated, that if any. service was performed by plaintiff it was voluntary and-not rendered on the basis of any agreement for compensation.

Appellants’ further contention is that the-court erred in overruling appellants’ after-trial motion for a judgment or a new trial on the grounds hereinbefore stated. Since we have ruled on the grounds present, it will not be necessary to again review the particular assignments of the motion for a new trial or for judgment after the decree had been entered.

The ultimate decision of the Court in-this case of necessity turns largely upon the credibility, weight and value of the oral testimony of the witnesses who appeared and testified before the trial judge and particularly upon the oral testimony of plaintiff and defendant Nick Erganian. Plaintiff alone testified as to the terms of the particular oral contract between himself and defendant Erganian. Defendant Erganian’s testimony was a complete denial on essential issues. The trial court accepted as true the testimony of the plaintiff and the court found the facts in accord with, plaintiff’s testimony and granted the relief asked. We must and do defer to the finding that plaintiff’s testimony was true. While the use of the terms “partners” or “parnership” may have little meaning or value when used by a layman unskilled in the law, nevertheless, such value as it does have tends to corroborate the testimony of plaintiff. On trial de novo and upon consideration of only the competent and admissible evidence, we must and do find -the issues for plaintiff, respondent herein, and that he is entitled to the relief asked and granted.

The judgment of the trial court is affirmed.

All concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellants have filed a motion for rehearing or, in the alternative, for an order transferring to the Court en Banc because this court erred in affirming the judgment, since the evidence in the record was insufficient to establish a partnership between Hallard Heald and Nick Erganian, in that the elements of the proposed partnership were not unequivocally and unconditionally agreed to by all the parties to the agreement without any variance between the propositions or conditions proposed by one and accepted by the others, citing Chapin v. Cherry, 243 Mo. 375, 147 S.W. 1084; Freeman v. Bloomfield, 43 Mo. 391, 392. The opinion sufficiently shows that the contract between the parties was in the nature of a “joint adventure” and it was entirely unnecessary for the evidence to show a partnership between the parties.

Appellants further contend that the court erred in affirming the decree ordering a sale in partition because “partition was improvidently ordered contrary to the provisions of Supreme Court Rule 96.20,” requiring the trial court to appoint commissioners. The opinion points out that Count 2 of the petition alleged and the evidence showed and the court found that partition in kind of said real estate could not be made without great prejudice to the parties in interest. Counsel has overlooked Supreme Court Rule 96.01 expressly providing that if partition cannot be made “without great prejudice to the parties in interest” a sale of the premises may be ordered, as was done in this case. See Laird v. Lust, Mo.Sup., 98 S.W.2d 768, 770[4, 5]; Joerger v. Joerger, 193 Mo. 133, 91 S.W. 918, 921.

Appellants again insist that “no evidence was adduced by respondent in proof of the allegations of Count Two of his petition, wherein partition of the lands in issue is sought.” Counsel overlooks the fact that the two counts of plaintiff’s petition and the counterclaim of the defendants were tried in a single proceeding before the court. The evidence showed, as pointed out in the original opinion, that the property consisted of one tract of four lots, subject to a purchase money lien for $1300, and the other tract consisting of two lots was subject to a purchase money lien for $2000, and that the several lots in each tract appeared to have been improved and used as a unit. Since the court further found that the respondent and appellant, Mr. Erganian, each had a half interest in the two properties and that Mr. Erganian owned the liens on the property, the record was entirely sufficient to sustain the court’s finding that “partition thereof in kind cannot be made without great prejudice to the parties,” and that the real estate should be sold in partition.

Appellants’ final assignment is that the court ignored appellants’ contention in their original brief, Point IV (e), wherein appellants complained of the trial court’s failure to impress a lien upon the proceeds of the partition sale in favor of appellants for the amount of their judgment on the counterclaim. The record shows that appellants’ counterclaim for $257.60 was for groceries sold and delivered to respondent, and that it had no relationship whatever to plaintiff’s action. No authorities have been cited authorizing this court to impress the proceeds of the sale of the property in partition with a special lien for the amount of defendants’ judgment against plaintiff for groceries, and we find none.

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


source: Caselaw Access Project

author: EAGER, Chief Justice. PER CURIAM.

license: Public Domain

text:
    UNITED AIR LINES, INC., a Corporation, Respondent, v. STATE TAX COMMISSION of Missouri, and James M. Robertson, John A. Williams and J. Ralph Hutchison, As Members of the State Tax Commission, J. R. Towson, Secretary of the State Tax Commission, and Donald F. Warren, County Clerk of Clay County, Missouri, Appellants.
    No. 49953.
    Supreme Court of Missouri, En Banc.
    March 9, 1964.
    Opinion Modified April 13, 1964.

      Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld, Asst. Atty. Gen., Jefferson City, for appellants.
    John R. Moberly, Douglas Stripp, George T. Morton, Jr., Kansas City, for respondent, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
   EAGER, Chief Justice.

United Air Lines, Inc., respondent, filed its petition for the review of an assessment order of the State Tax Commission, pursuant to Chap. 536, RSMo 1949, V.A.M.S.; we will refer generally, however, to the 1959 Revision, since the assessment was of the 1960 tax. More specifically, the Commission made an ad valorem assessment of $848,210 upon aircraft of United. On review, the order was reversed and the cause remanded with directions to fix an assessment not in excess of $264,287. The Commission, its members, and its Secretary appealed. A separate cross-appeal was taken by United on one phase of the matter, but that appeal has been dismissed and it will not be con.sidered.. We have jurisdiction because the appeal involves the construction of our revenue laws, specifically Chap. 155, being SB 179 of the Laws of 1959.

The facts were stipulated for the purposes of the review. Essentially, they were and are as now stated. United Air Lines, Inc. (to be designated as United) is an air carrier operating in interstate commerce pursuant to federal authority; it is a Delaware corporation, with its principal place of business in Chicago; it is not qualified to do business in Missouri. It operates over certificated routes in various states. During 1959, the year in which its operations are now involved, it did not operate intrastate between any points in Missouri, and the only Missouri airport at which it made scheduled landings and takeoffs was the Municipal Airport in Kansas City, Clay County, Missouri, where it also had and has a business office. During 1959 it made 1,510 arrivals and departures there. The length of the certificated routes in Missouri was 213 miles; overall, throughout United’s system, the total length was 11,613 miles. Thus, the ratio of route miles in Missouri to total route miles was 1.83415%. The aircraft of United which operated in Missouri in 1959 flew a total of 281,231 air commerce miles; all of United’s planes engaged in commerce flew, everywhere, a total of 129,862,887 air miles in 1959. Only two types of planes were used in Missouri in 1959, DC-6 Coaches and DC-7 First Class; the craft of these types flew, respectively, in Missouri and elsewhere, totals 'of 20,008,128 miles and 34,935,017 miles, or a total of 54,943,145 air miles. The ratio of air miles flown in Missouri to all air miles of United is .21655%; the ratio of miles flown in Missouri to all air miles flown by the types of planes operating in Missouri, is .51186%. The record contains no breakdown on the individual planes of these types.

As required by § 155.020, United filed with the Commission a report as of January . 1, 1960, listing 28 DC-6 Coaches and 38 DC-7 First Class craft, being the types used in Missouri in 1959; it also listed 41 Convair 340s, 9 DC-6 First Classes, 7 DC-6A Cargos, 36 DC-6B First Classes, 5 DC-6C Coaches, 15 DC-7 Coaches, and 15 DC-8 Jets, as being types of aircraft which were used outside of Missouri. Thus, United owned and listed 194 craft of nine types, 66 of which (of two types) had been flown in Missouri, whereas the remaining 128 had not. The original cost of all the 194 aircraft of United was $286,671,317; as depreciated by United this total cost had been reduced to $159,527,-624; as depreciated by the Commission on the “straight-line” basis (10% per year for seven years, 5% for the eighth year, and none thereafter), the cost was $168,-824,483. The corresponding figures for the two types of planes flown in Missouri were: $96,525,498 (original cost); $40,-066,282 (United’s depreciated cost) ; $47,-201,434 (Commission’s depreciated cost). Of one type used in Missouri (DC-6 Coach) 24 of the 28 had been purchased in or prior to 1948, and 4 in 1950; of the other type (DC-7 First Class) all had been purchased in 1954-1957, inclusive. The result of the Commission’s method of depreciation was that no valuation was permitted to go below 25% of the original cost. A good proportion of United’s more expensive and newer planes were not flown in Missouri at all in 1959, and none of its 24 newest.

Section 155.040, which provides for the assessment of aircraft, is as follows: “1. The state tax commission shall assess, adjust and equalize the valuation of all aircraft operated in this state in air commerce by every airline company. The valuation apportioned to this state shall be the portion of the total valuation of the aircraft as determined by the state tax commission on the basis of the arithmetical average of the following two ratios:

“(1) The ratio which the certificated route miles of the airline company within the state bears to the total certificated route miles of the airline company;
“(2) The ratio which the miles flown by aircraft of the airline company within this state bears to the total miles flown by the aircraft of the airline company during the immediately preceding calendar year.
“2. In the event one ratio is inapplicable, then the apportionment shall be made on the basis of the remaining ratio alone.” Section 15S.0S0 provides that the Commission shall apportion the valuation, as determined under § 155.040 to the various governmental subdivisions “in which the airline company has arrivals and departures.” Section 155.060, relied on in part by appellants, is (in so far as material here) as follows: “Taxes levied on all aircraft under this chapter shall be levied and collected in the manner provided for the taxation of railroad property, and the county courts and other officials shall perform the same duties and may exercise the same powers in levying and collecting the taxes on aircraft as such officials are required to perform in the levy and collection of taxes on railroad property. * * ”

Section 155.020 (the “reporting” section) requires that each airline company shall, on or before May 1st in each year, furnish to the Commission a sworn statement showing: “(1) The total length in this state of its certificated routes; (2) The total length of its certificated routes; (3) The total miles flown in this state by its aircraft during the next preceding calendar year; (4) The total miles flown by such aircraft during the next preceding calendar year; (5) The total number of all aircraft owned, used or leased by such airline company on the first day of January in each year, and the actual cash value thereof; (6) The other information the state tax commission requires to enable it to carry out the provisions of this chapter.” United filed the required report and it is largely from the report that the present facts are stipulated.

The Commission fixed the amount of its assessment ($848,210) by first taking the total value (depreciated cost) of all of United’s aircraft, including those not operated in Missouri in 1959, a figure of $168,-824,483; it applied to this its equalizing factor of 49%, thus resulting in an equalized valuation of $82,723,997 as its valuation of United’s entire fleet. It then applied to that figure (the equalized value of all planes) the average of the two ratios provided in § 155.040, the first being 1.-83415%, the second .21655% and the average 1.02535%. The resulting figure was $848,210, which represents that part of the valuation apportioned to Missouri. The assessment was certified to the County Clerk of Clay County for the extension and levy of the taxes. The Circuit Court stayed those proceedings, and in its judgment enjoined the Clerk from levying taxes upon any valuation in excess of $264,287. We need not digest respondent’s petition for review. It alleges, most fully, all necessary facts and all contentions developed in attacking the assessment. It will be more understandable to discuss the rulings of the trial court after the contentions of the parties have been elaborated and determined here.

The arguments here involve a supposed similarity of legislative intent in the airline statutes and the railroad assessment statute. Hence, we quote the material parts of § 151.060, as follows: “The state tax commission shall assess, adjust and equalize the aggregate valuation of the property of each one of the railroad companies in this state specified in section 151.020. * * * provided, that when any railroad shall extend beyond the limits of this state and into another state in which a tax is levied and paid on the rolling stock of such road, then the said commission shall assess, equalize and adjust only such proportion of the total value of all the rolling stock of such railroad company as the number of miles of such road in this state bears to the total length of the road as owned or controlled by such company.” (Italics ours.)

The basic issue here is whether the Commission was authorized by Chap. 155 to apply the average of the two ratios specified in § 155.040 to the equalized valuation of all aircraft of United (as it did) or whether it should have been applied only to the equalized valuation of those “aircraft operated in this state in air commerce,” or, in other words, only to the valuation of those planes which were flown in Missouri during 1959. An opinion was written in Division One in a substantially identical case involving Delta Air Lines, upholding the assessment as so made by the Commission; that case was transferred to the Court in Banc where it has again been argued and is now pending. We shall find it necessary to refer to that opinion at times, as the most direct method of indicating our views. We now hold that the present assessment of United was not authorized by the statutes; so holding, it will not be necessary to decide the various and sundry constitutional contentions of invalidity asserted by respondent and refuted by appellants. Respondent does not contend that these statutes are unconstitutional under the view we now take (Br. 49-50).

We examine, first, the vital assessment Section 155.040. (Italics used here are ours.) It directs the Commission to assess, adjust and equalize “the valuation of all aircraft operated in this state in air commerce by every airline company.” The sentence immediately following (which constitutes the nub of this controversy) is: “The valuation apportioned to this state shall be the portion of the total valuation of the aircraft as determined by the state tax commission on the basis of the arithmetical average of the following two ratios: * * It is inconceivable to us that in this short integrated paragraph the legislature, having specifically referred to “aircraft operated in this state” in one sentence, should intend any other or wider meaning in the sentence immediately following, when it used the term "the aircraft.” The grammatical rule of “prior antecedent” is applicable here and it, as well as sound common sense, requires such a construction. Thus, the prior words “aircraft operated in this state” have been replaced and referred to by a substitute, namely, “the aircraft” (Webster’s Third New Inter. Dictionary “antecedent,” p. 91). In fact, the phrase in question constitutes the only really applicable antecedent of the words “the aircraft.” If the legislature had intended to prescribe the “total valuation” of all aircraft, it would have been very easy to say so, at that point, by the insertion of the one word “all.” We are guided by what the legislature says, and not by what we may think it meant to say.

In a taxing statute there must be specific authority, or authority necessarily implied, for the imposition of a tax upon any particular property. Kansas City v. Frogge, 352 Mo. 233, 176 S.W.2d 498, 501; State ex rel. Halferty v. Kansas City Power & Light Co., 346 Mo. 1069, 145 S.W.2d 116, 120, 121; Artophone Corporation v. Coale, 345 Mo. 344, 133 S.W.2d 343, 347. We find no specific or necessarily implied authority here for including in this formula the valuation of all of United’s planes. And therein we have considered the primary rule of construction, namely, to seek to ascertain the legislature’s intent and purpose, giving a plain and rational meaning to the words used. Coale, supra; A. P. Green Fire Brick Co. v. Missouri State Tax Commission, Mo., 277 S.W.2d 544. If the language used is plain and unambiguous, there is no reason for any construction, St. Louis Amusement Co. v. St. Louis County, 347 Mo. 456, 147 S.W.2d 667; State ex rel. Hopkins v. Stemmons, Mo.App., 302 S.W.2d 51, 55; In re Sypolt’s Adoption, Mo., 237 S.W.2d 193; but where any real doubt exists in the construction of a taxing statute, the law requires that it be strictly construed in favor of the taxpayer. A. P. Green Fire Brick Co. v. Missouri State Tax Commission, Mo., 277 S.W.2d 544; Crooks v. Harrelson, 282 U.S. 55, 61, 51 S.Ct. 49, 75 L.Ed. 156; Howell v. Division, of Employment Security, 240 Mo.App. 931, 222 S.W.2d 953, 956; Osterloh’s Estate v. Carpenter, Mo., 337 S.W.2d 942, 947. In the case last cited the Court said, loe. cit. 947 of 337 S.W.2d: “Tax laws must be strictly construed and, if the right to tax is not plainly conferred by statute, it will not be extended by implication. * * * A legislative intent to tax this property as a transfer in contemplation of death is not clearly expressed and we cannot imply one.” And, as was said rather graphically by Judge Lamm in Leavell v. Blades, 237 Mo. 695, 141 S.W. 893, loe. cit. 894: “When the tax gatherer puts his finger on the citizen, he must also put his finger on the law permitting it.”

It has been suggested that the words “all aircraft operated in this state,” appearing in the first sentence of § 155.040, merely serve to identify the craft upon which taxes shall be assessed, in order to avoid possible constitutional objections to the ad valorem taxation of craft having no Missouri situs; and that the words have no bearing upon or reference to the apportionment provisions. We note, however, that the railroad section (151.060) contained no such limitation and its constitutionality has not been impugned. It appears rather plain, therefore, that the words have a real meaning in the vital step of assessment and that they were inserted for a definite purpose, which will only be realized if the words “the aircraft” in the second sentence are held to refer back to “all aircraft operated in this state.” And, as said in a dissenting opinion in the Delta case in Division, the contention “is an unsupported statement that the legislature did not mean what it said by the plain * * * language used.”

Appellants insist that the assessment was not unreasonable nor arbitrary and that it was made strictly in accordance with Chap. 155, considered as a whole; and, more specifically, that these statutes express a legislative intent to tax aircraft "in the manner provided for the taxation of railroad rolling stock * * The Divisional opinion in the Delta case began its consideration of the merits with the statement that it seemed obvious that the legislature had thus “extended to commercial airline companies the unit method of assessment heretofore applied to the rolling stock of railroads.” We hold both the contention of counsel here and the statement in Division to be unfounded. We have quoted § 151.060 above. It provides that: “The * * * commission shall assess * * * such proportion of the total value of all the rolling stock of such railroad” as the miles in this state bear to the total length of the road. The contention virtually ignores the different wordings of the railroad statute and of ours; there the legislature specifically provided for apportioning to Missouri a part of the total value of all rolling stock; with full knowledge (presumably) of what it had previously enacted, it provided here that the proportion should be a part of the “total value of the aircraft,” which with nothing more stated, clearly related back to “aircraft operated in this state.” Thus, from the crucial assessment section no support can be gained for such a contention. Counsel ask us to note the words “total value,” and we have done so; but there may as well be, and is, a total value of the 66 aircraft flown in Missouri as a total value of all aircraft of the company. That phrase is insufficient to support the formula used.

Discussing further the railroad theory of apportioning to Missouri a portion of the "unitary” value of the whole line, appellants’ counsel call our attention to two other sections of Chap. 155. The first is § 155.020 requiring reports; they note that this section requires the reporting of the total number of all aircraft owned or leased and the cash value thereof, but not the number or value of craft operated in Missouri; and also the certificated routes and miles flown, separately, within and without the State. We note here that the section also requires “the other information” which the Commission may require; and also, that while (3) requires “[t]he total miles flown ■in this state by its aircraft * * *,” (4) requires “[t]he total miles flown by such aircraft * * Query — does “such” mean all aircraft, or those which were “flown in this state”? By these arguments counsel is really contending that the words “the aircraft” in the second sentence of § 155.040 relate back to the words “all aircraft” in 'subsection (5) of § 155.020 (the reporting section) thus ignoring the last prior antecedent, namely, “all aircraft operated in this state,” and also ignoring a complete intervening section. That, in itself, would require a most strained construction. But counsel also say that the reporting requirement evidences an overall intent. The terms “all aircraft” of Section 155.020 and “the aircraft” of § 155.040 cannot be for all purposes identical. In the Delta case certain planes held in storage in New York for sale were required to be reported, but were held in the Divisional opinion not to be includable in “the aircraft” of § 155.040 even on the overall assessment basis there approved, because not in “air commerce.” And certainly, while a lessor and a lessee might both be required to report the same aircraft under § 155.020, such craft could not validly be assessed twice under § 155.040. The reporting requirement involving “all ’aircraft” may have many uses to the Commission; it seems apparent from the exhibits in our record that the Commission has required considerably more detailed information than is specifically called for by § 155.020. These include: information segregating craft flown in Missouri, with identification and individual values; arrivals and departures in Missouri; air and ground hours spent in Missouri and elsewhere; and the types, cost and year of purchase of all planes. But be all that as it may, the legislature has, in our view, fixed in § 155.-040 a definite and specific method for the assessment; and it would be most unseemly for us to rewrite those provisions upon our speculation that the requirements of a wholly different section should be substituted In State ex rel. Hatten v. Kansas City Power & Light Co., Banc, 365 Mo. 296, 281 S.W.2d 784, it was contended that the County Court had authority to levy upon defendant’s distributable property for the benefit of a fire district, because fire districts were then included by amendment in the applicable section governing the apportionment of such taxes by the tax commission; they were not included in the applicable sections providing for the actual assessment, certification and levy. The argument was made that there could be no purpose in requiring an apportionment to fire districts unless the legislature had intended that taxes would be levied for their benefit. The court rejected the argument holding that there was no authority to make such a levy unless the authority was given in the section authorizing the levying of the taxes. By analogy, it would seem that a mere requirement of the reporting of the number and value of all aircraft would not authorize the assessment of taxes upon all such property, or of taxes upon a ratio based thereon, unless reasonably so expressed in the assessment section. And see generally: State ex rel. Halferty v. Kansas City Power & Light Co., 346 Mo. 1069, 145 S.W.2d 116; State ex rel. Ford Motor Co. v. Gehner, Banc, 325 Mo. 24, 27 S.W.2d 1; Artophone Corporation v. Coale, 345 Mo. 344, 133 S.W.2d 343, 347; Crooks v. Harrelson, 282 U.S. 55, 59-61, 51 S.Ct. 49, 75 L.Ed. 156; A. P. Green Fire Brick Co. v. Missouri State Tax Commission, Mo., 277 S.W.2d 544.

Counsel also urge that § 155.060, which concerns the levy and collection of the taxes by the local government units, provides that the taxes shall be levied and collected “in the manner” provided for the taxation of railroad property; thereby, of course, calling attention again to the fact that all rolling stock of the interstate railroads is included in the ratio applied. However, as we have already pointed out, that is done by the specific terms of § 151.060. Section 155.060 does not purport to have anything to do with the assessment of aircraft but only deals with the levying and collection of the taxes by local officials after the Commission has fully assessed and apportioned them. There is nothing in that section which is inconsistent with our present holding. We fail to see that the words “in the manner” mean any more than the subsequent provision that the local officials shall “exercise the same powers” as they do with reference to railroad taxes, and if the legislature merely chose to say the same thing twice, it means no more than if it had been said once. The case of State ex rel. Buchanan County Power Transmission Co. v. Baker, 320 Mo. 1146, 9 S.W.2d 589, is cited. There the issue was who had the right to assess the property of an electric transmission line, the local officials or the state. The nature and extent of the property and the actual manner of the assessment were not in controversy. The statute there provided for the taxation of electric transmission lines (§ 13056, B.S1919, as amended Laws 1923), provided specifically that the State Board of Equalization (replaced by the State Tax Commission) should have the same powers and should perform the same duties “in assessing, equalizing and adjusting” the taxes as it had with reference to railroad property, but it also provided that the taxes should be levied and collected “in the manner” provided for railroad property. The Court said, loe. cit. 592 of 9 S.W.2d, that the words “in the manner” covered not only the method of assessment but “[located] the authority * * * with the tax commission.” Whatever the statement may mean, it was probably unnecessary to the decision inasmuch as the section specifically gave the same powers to the Commission in that matter as it had in railroad matters. But an essential and additional difference there and here is that the words appeared there in the very section giving the powers of assessment, while in ours they did not. The decision is neither controlling nor particularly persuasive here. In Felker v. Carpenter, Mo., 340 S.W.2d 696, the Court held that a statutory provision to the effect that taxes on public utilities should be “levied and collected in the manner” provided for the taxation of railroad property (the identical wording of § 155.060) did not give the County Collector the right to retain 1% of the taxes collected, as he was concededly permitted to do on railroad taxes. There the Court said in part, 340 S.W.2d, loc. cit. 701: “Section 153.030 says that taxes levied on the property therein dealt with shall be ‘levied and collected in the manner as is now or may hereafter be provided by law for the taxation of railroad property * * It appears that ‘in the manner’ as there used referred to the method provided in section 151.280 for the levy and collection of railroad taxes and did not deal or purport to deal with the subject of compensation to the collector for collecting those taxes. It seems to us that to read any such implication into the language of section 153.030 would do violence to the plain meaning of the words used and would violate the rule of strict, albeit reasonable, construction of such statutes.” And see American Airlines, Inc. v. City of St. Louis, Mo., 368 S.W.2d 161, 170. We conclude that the words “in the manner” as applied to the levy and collection of the taxes by local officials, have no pertinent bearing upon the method of assessment of the taxes by the Commission.

In essence, appellants contend here: that the whole of Chap. 155 shows a legislative intent that the “unitary” rule of the railroad statutes shall be applied to aircraft; that all aircraft, everywhere, should be valued as an integrated whole and the average ratio applied thereto, thus apportioning to Missouri an enhanced value for the planes which actually acquired a taxable situs by being flown into the state. We have considered these views in the light of those cases which hold that a statute should be applied with regard to the apparent intent as expressed, and “with a view to promoting the apparent object of the legislative enactment.” State ex rel. Halferty v. Kansas City Power & Light Co., 346 Mo. 1069, 145 S.W.2d 116, 122; In re Tompkins’ Estate, Mo., 341 S.W.2d 866. We are unable to find an intent that property of airlines was to be assessed by the same formula used for the rolling stock of interstate railroads under the appropriate statute. If the legislature so intended, why did it so radically alter the language? It is not a sufficient distinction to say merely that some railroads operate intrastate. In a taxing statute the legislature must say what it means and not leave the citizens and the courts to grope for a speculative intent not clearly disclosed. Nor can the courts, “ * * under the guise of construction, supply authority which the General Assembly has not provided.” State ex rel. and to Use of Benson v. Union Electric Co. of Mo., 359 Mo. 35, 220 S.W.2d 1, 3.

Appellants concede that the State may not validly assess an ad valorem tax upon those craft which never enter the State of Missouri; but it insists that it may constitutionally apply the average of the statutory ratios to the equalized valuation of all aircraft, in order to arrive at the value of those planes which enter Missouri, they being thus considered as part of an integrated whole. We do not hold here and now that it may not do so, subject to constitutional limitations, if the statutes should so provide. We simply do not reach that question or any of the constitutional questions which have been so fully argued, pro and con, for the present controversy has been decided on our construction of the statutes. We do not decide constitutional questions where not necessary to a decision of the case. State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75; City of St. Joseph v. Roller, Mo., 363 S.W.2d 609; Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484. And no one contends, for instance, that an assessment on the basis now directed would be so “grossly excessive” as to infringe constitutional limitations.

A contention was argued in the briefs concerning the impropriety of the Commission’s method of depreciation. Administrative bodies have a considerable discretion in such matters which, unless unlawfully exercised, should not be intérfered with. The trial court has taken no cognizance of any such contention, nor do we-

The findings, conclusions and judgment of the trial court, in so far as material to-our ruling and as here considerably abbreviated, were as follows: (1) That the Commission was only authorized by statute to assess, adjust, equalize and apportion to Missouri, a part of the value of the 66 craft which were operated in Missouri, and that the Commission erred in doing otherwise-(2) That the Commission erred in assessing a portion of the value of all 194 aircraft of United, and that in so doing it deprived United of its property without due process and imposed an unlawful burden on interstate commerce. (3) That the Commission should have applied the assessment and apportionment formula only to such craft and types of aircraft as were operated in Missouri, namely, 28 of one class and 38 of another, in no event to exceed an assessed valuation of $264,287. (4) That the maximum assessment which the Commission could lawfully have made was $264,287. (5) That the assessment of $848,210 was “in excess of the statutory authority and jurisdiction” of the Commission, was not supported by substantial and competent evidence, was not authorized by law, was in violation of the due process and commerce clauses, and was unreasonable, arbitrary and capricious. The Court then ordered and adjudged: that the order of the Commission be reversed, and that the cause be remanded with directions to fix an assessment in an amount not inconsistent with the judgment; that the County Clerk was permanently enjoined from entering upon his records any assessed valuation exceeding $264,287, and he was required to recompute the taxes if he had used any greater sum.

We affirm that judgment, but with slight modifications. We concur in the reversal of the Commission’s order and in the conclusions that only those types of planes operated in Missouri in air commerce may be valued for purposes of the assessment; as to (5) above, the grounds relied upon should be confined to the statement that the decision and order of the Commission is in excess of its statutory authority and is unauthorized by law (§ 536.140; Mo.Const., Art. 5, § 22, V.A.M.S.). We disapprove of the rulings, under these circumstances, that the order of the Commission was violative of any constitutional provisions, for such rulings were unnecessary to the decision. If the Court intended in (3) to require the assessment separately of each type of aircraft which was flown in Missouri (as specifically argued in the Delta case), we find nothing in § 155.040 to require it. The paragraph is not entirely clear, and it should be modified to eliminate any argument concerning that requirement, as by eliminating the words “separate and distinct.”

With the modifications noted, the judgment is affirmed and the cause is remanded for the entry of a revised order and judgment.

All concur, except HYDE and HOLMAN, JJ., who dissent.

On Motion to Modify.

PER CURIAM.

Appellants have filed a motion to modify the opinion, pointing out that while we have held that § 155.040 does not require the “assessment separately of each type of aircraft which was flown in Missouri,” we have nevertheless approved the trial court’s judgment limiting the maximum assessment to $264,287, being a figure arrived at by that method. This, of course, presents an inconsistency. We may say, initially and somewhat apologetically, that while the point was briefed by appellants, the brief did not deal specifically with the computations involved in that point, as does the present motion. The trial court’s judgment contained the following: “3. That the State Tax Commission of Missouri should have applied, and under the governing statute could only apply, the statutory assessment and apportionment formula set forth in the aforesaid Section 155.040, to such aircraft only and to only those separate and distinct types of classes of plaintiff’s aircraft which were operated in Missouri in air commerce, to-wit, plaintiff’s DC-6 Coach planes (28 in number) and its DC-7 First Class planes (38 in number), and should thereby have determined an initial Missouri assessed valuation for 1960 tax purposes, which, however computed, in no event should have exceeded Two Hundred Sixty-four Thousand Two Hundred Eighty-seven and No/00 Dollars ($264,287.00), for those of plaintiff’s aircraft which were subject to taxation in Missouri, for said year.” It fairly appears that the computation of the court was made on a “by type” basis, that is, by applying the formula separately to the valuation of all planes of each of the two types of planes operated in Missouri and by adding the results to obtain the total assessment of $264,-287. It is now demonstrated that, by applying the combined formula percentage of 1.173005 to the “lumped” depreciated values of both types of planes ($47,201,434) a figure of $553,675 results; applying the equalizing factor of 49% to that figure, the final result and the actual assessment would be $271,301. In other words, if the Commission was not required to use the “by type” approach, then its assessment, even upon our basic holding that the statutory formula could only be applied to the depreciated value of “aircraft operated in this state in air commerce,” would have been $271,301 instead of $264,287, to which latter figure the trial court limited the assessment. Thus, the inconsistency is demonstrated. Appellants, as stated, briefed this point as a trial court error, but not by a demonstration of these figures out of the total accumulated mass of figures.

We repeat that “we find nothing in § 155.040 to require” a by-type calculation. In our view the statute permits an assessment by either method and hence the larger figure, in the discretion of the Commission and in the absence of any constitutional restriction (and subject, of course, to the rulings of our original opinion). We do not agree with the statement in the opinion in Division One in the Delta case that the statute specifically calls for “a final lump sum valuation of all * * * aircraft * * * and not a valuation by type.” It would seem appropriate, however, that the Commission should not switch back and forth between the two methods in order to favor the state; we do not indicate that such has been done. We did not discuss any question of constitutional limitation, as applied to this question, for the simple reason that such an objection would only be applicable where the method used by the Commission was arbitrary, unfair, unreasonable, or confiscatory, as applied to the particular facts of this case. Hans Rees’ Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879; Norfolk and Western Ry. Co. v. North Carolina ex rel. Maxwell, 297 U.S. 682, 56 S.Ct. 625, 80 L.Ed. 977. We find no constitutional problem here, for obviously a difference of $7,104 in such an assessment cannot be held to operate so unfairly and unjustly as to deprive Respondent of its property without due process or violate its rights of equal protection. We do not now pretend to rule any situation which may de-. velop on some other state of facts, where conceivably the use of a particular method of computation might work an unconscionable result. We merely say that the statute, as we construe it, permits either the “lump” or “by type” approach and that there is nothing in the present facts to suggest any constitutional invalidity.

The statute, § 155.040, requires the Commission to assess and equalize “the valuation of all aircraft operated in this state”; and the valuation apportioned to this state shall be “the portion of the total valuation of the aircraft as determined * * There is no indication whatever in the wording of the statute that such valuation must be made separately “by type” of aircraft. Respondent argues that it is more fair and more logical to make the computations in that manner, in view of the radical differences in the valuations of the different types, and the differences 'in the use in Missouri of the different types. We merely construe the statute, we do not re-write it.The same argument could conceivably be made that the formula should be applied to each separate plane of each type flown in Missouri and the 66 different results aggregated, but that contention has not been made.

Our original opinion is modified to the extent that we now order that the figure $271,301 be substituted for the figure $264,-287 wherever the latter figure appears in the judgment of the trial court. It is so ordered.


author: WELBORN, Commissioner. PER CURIAM.

text:
    John MARUSIC, Appellant, v. UNION ELECTRIC COMPANY, a Corporation, Respondent.
    No. 50190.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 13, 1964.

      Sherman Landau, St. Louis, for appellant.
    Keefe, Schlafly, Griesedieck & Ferrell, Robert J. Keefe, Robert G. McClintock, St. Louis, for respondent.
   WELBORN, Commissioner.

In this action appellant John Marusic sought damages resulting from injuries sustained by his wife, Vera, in an explosion in the underground electrical distribution system of the respondent, Union Electric Company, in St. Louis. The petition sought to recover $65,000 in damages for loss of services, society and companionship of the wife and for reasonable medical expenditures for her care and treatment. The jury returned a verdict in favor of respondent. After an unavailing motion for new trial, this appeal was taken by the appellant husband.

The events giving rise to this litigation occurred in the City of St. Louis, at approximately 9:00 A.M., on May 7, 1959. The appellant was the owner and operator of a tavern located at 1338 Franklin Avenue. He and his wife, Vera, occupied living quarters at the rear of the tavern. On the morning in question, Vera was seated at the kitchen table in the living quarters when an explosion occurred in the manholes of the respondent on 14th Street near the appellant’s tavern. The force of the explosion blew out the windows on the second and third floors of the building in which the tavern was located and also damaged chimneys on the building. The force of the explosion knocked Vera from her chair to the floor. She sustained injury to her head, neck and back for which medical attention and eventually hospitalization were required.

The petition in this case charged that, on May 7, 1959, an explosion occurred in certain manholes under the exclusive possession and control of the respondent. The petition charged that the “explosion directly resulted from defendant’s carelessness and negligence in causing and permitting the explosion to occur under the circumstances hereinbefore set forth.” At the trial, appellant’s case was submitted on his verdict-directing Instruction No. 1 which read as follows:

“The Court instructs the jury that it was the duty of the defendant Union Electric Company, at all times shown in evidence, to exercise due care to maintain the manholes and conduits, at the location shown in evidence, in a reasonably safe condition. Therefore, if you find and believe from the evidence that the Laclede Gas Company did not, either at or prior to the time of the explosion shown in evidence, damage any conduit of the defendant in the vicinity of the explosion, and that the explosion on May 7, 1959, resulted from an accumulation of combustible gas or gases in the manholes and conduits involved in the explosion, and from an electric arc caused by a defective cable in those manholes and conduits, and if you further find that the presence of the combustible gas and the existence of the electric arc could have been detected prior to the explosion through the procedure of making periodic tests and examinations of the manholes and conduits at regular periodic intervals, and that the defendant could thereby have been enabled to repair the defective cable and to suction out the combustible gas and could thereby have averted the explosion, if you so find, and if you further find that the defendant failed to make such tests and examinations at regular periodic intervals, and that in so failing the defendant failed to use due care and was negligent;
“And if you further find that the defendant could have averted the explosions by maintaining ventilation at regular periodic intervals through its aforesaid manholes and conduits to draw off such gases as would form or accumulate therein, but that the defendant failed so to do, and that in so failing the defendant failed to exercise due care and was negligent;
“And if you further find that the negligence, if any, of the defendant in all of the respects herein set forth directly caused the explosion shown in evidence, and that Mrs. Marusic was injured by the explosion, and that plaintiff sustained damage as a direct result thereof, then your verdict will be in favor of the plaintiff, John Marusic, and against the defendant, Union Electric Company, a corporation.”

The appellant thus submitted his case on the specific charge of negligence in the failure to discover the presence of the gas and the existence of an electric arc by periodic tests and examinations of the manholes and conduits and in failing to maintain ventilation at regular periodic intervals to draw off gas which might accumulate in the manholes and conduits. In view of the respondent’s contention that the evidence of the appellant failed to make a submissible case on the theory upon which the appellant elected to submit his case, we will examine the evidence in the light of the appellant’s submission. The only 'evidence concerning the cause of the explosion was offered by the appellant. Respondent presented no evidence on this question, thereby excluding the possibility of drawing any inference favorable to appellant from its evidence. Therefore, if the appellant’s evidence, considered in the light most favorable to him, made no case on the theory upon which he deliberately chose to submit his claim, the respondent’s contention must be upheld. Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954, 960(11-13); Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 93-95(1—4); Bowers v. Columbia Terminals Co, Mo.App., 213 S.W.2d 663, 667(2, 3).

Three witnesses testified concerning the explosion. Captain John Walsh, the head of the St. Louis Metropolitan Police Department Homicide and Arson Division, testified that he arrived at the scene of the explosion shortly after it occurred. According to him, he observed three manhole covers which had been displaced. He did not enter any of the manholes, but said that members of the Fire Department and employees of the Laclede Gas Company were at the scene and that he “was right at the top of the manhole when they said that a cable had erupted in there.” He did not recall talking to any employee of the respondent. He also testified concerning the damage to the building in which appellant’s tavern was located.

William K. Smith, an employee of the respondent, who was, at the time of the explosion, superintendent of the respondent’s underground construction division, testified that the employees of his division installed and maintained all underground facilities of Union Electric in the area. According to him, the manholes in question belonged to Union Electric and there were conduits between them through which elec-trict cables were drawn. He did not know just when the manholes in question had been constructed, but they had been part of Union Electric’s system during his entire period of employment beginning in 1941. He stated that the cables and the conduits were not tested “at regular, periodic in-' tervals.” He stated that, as a part of the regular inspection of facilities of Union Electric in the downtown area, a check for gas was made whenever a manhole was opened. When asked whether respondent at the time had any system of “sending a crew of men in for the sole purpose of making an inspection and testing, say, every three or four or five months, or anything like that?”, the witness replied: “No, it was set up on the basis that they would patrol the entire area, and when they completed one patrol then they would start over again. That varies, of course, on the amount of time that they would work on it.” According to Smith, a crew had been in the manholes here involved in the early part of 1959, the exact date not having been recorded. He was unable to say when the next prior inspection of the particular manholes had been made.

Smith testified that respondent had had instances when gas had “leaked from other facilities in the area and accumulated in our underground system.” He also stated that sewer gas could enter manholes and that there was a sewer in one of the man.-, holes involved in this case. He stated that there was a trap in the drain of the manholes to prevent the entrance of sewer gas.

Smith testified that respondent did not have any method or device for ventilating the conduits and manholes at regular periodic intervals. He stated that the gas can be driven from manholes by a blower which blows air to the bottom of manholes. He said the same effect could be accomplished by the use of suction fans, but that they would not do as well as blowing in fresh air. He stated: “If the gas in the ground is entering our underground conduit, of course, it will still keep on coming in, and if you open up the manhole and try to ventilate it, it will come in that much faster; so you can get the manhole pretty well clear so that you have mostly fresh air, but you- will still have gas coming into it.” When asked whether or not he found anything at the scene of the explosion which might .have produced an arc that would ignite gas, he stated that “a secondary cable * * * failed * * * and had to he replaced.” He stated that he found “indication of gas present at * * * (the) location.”

The third witness was Vincent Zito, general foreman for Laclede Gas Company, who went to the scene of the explosion. "He testified that, at “about ten feet north ■of Delmar on 14th Street,” Laclede employees found “a very slight leak on a :sleeve” of a gas main. He stated that the leak, in his opinion, was not of such volume that it could have produced the gas which exploded. He did not know how long the leak had been present. The distance from the leak to the manholes involved in the explosion does not appear.

The foregoing .sets out all of the evidence pertaining to the cause of the' explosion and the alleged negligente on the part of the respondent in connection therewith'. Viewed in the light of the appellant’s theory of liability ’expressed in his Instruction No. 1, we find the evidence lacking in several important aspects essential to the ‘ submission made. The appellant’s instruction required the jury to find that “periodic tests and examinations” of the manholes and conduits at “regular periodic intervals” would have revealed the “presence” of gas and the “existence” of the electric arc. However, there is nothing in the evidence from which the jury could have made such a finding. There was no showing whatsoever of how long gas had been present in the manholes or conduits or how long the cable had been defective. From all that appears, there could have been a test or inspection the day before the explosion- or the week before and still the situation which c-aused the explosion might not have been discovered. The gas ■company employee who testified minimized the leak in the gas mains. However, no attempt was made through him or any other witness to establish the length of time that would have been required for gas leaking as it did from the main to have accumulated in an amount sufficient to cause this explosion. Appellant’s testimony raised the possibility of sewer gas as the explosive substance. However, even if it had been, there was no testimony from which the jury might have concluded that a “regular periodic” inspection would have revealed its presence or that a “regular periodic” ventilation of the manholes would have drawn off the gas which caused the explosion. Actually, the witness Smith testified that ventilation as suggested by the appellant might well draw in gas from outside sources rather than dispel it. There was no evidence to the contrary which would have shown that ventilation “at regular periodic intervals” would have, in any event, prevented the accumulation of gas which caused this explosion.

We have the same situation with respect to the discovery of the “existence of the electric arc.” Actually, there is no evidence that an electric arc occurred in the conduits or manholes. There was testimony that a cable had “erupted” and that a cable failed and was replaced. From this the jury could have concluded that there had been a short circuit in the transmission system which produced an arc. However, there is no evidence regarding the nature of the defect in the cable. The testimony with respect to its “erupting” connotes a sudden, unexpected break. There is nothing to indicate otherwise. The age of the cable in question is not shown (see Kessler v. West Missouri Power Co., 221 Mo.App. 644, 283 S.W. 705) nor is there any testimony regarding the nature of the defect which required its replacement. Consequently, we must conclude that there was no evidence from which the jury might have found that “periodic tests and examinations” of the cable “at regular periodic intervals” would have led to discovery of the condition which produced the short circuit and thereby have permitted the condition to have been repaired prior to the explosion.

In his reply brief, in answer to respondent’s attack on the suhmissibility of his case, appellant asserts that “the nature of the casualty which caused the injury and damage in the instant suit was such that the chief evidence of the true cause of the explosion was practically accessible to the Electric Company, but was inaccessible to the plaintiff.” He states that the only evidence available to him “was circumstantial in nature, and that is all that the law required of him.” Appellant did not choose to submit his claim under the res ipsa loquitur doctrine. Even so, he was entitled to make proof of his claim of specific negligence by circumstantial evidence. However, reliance upon circumstantial evidence cannot authorize a verdict favorable to the plaintiff only by resort to conjecture and surmise. Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600, 608(11, 12). Here, there could have been no alternative under the evidence to such resort if a verdict favorable to the appellant were to have resulted. Appellant cannot, of course, as hinted in oral argument, now resort to the res ipsa loquitur doctrine in order to support his claim of a submissible case. He is bound, on appeal, by the theory upon which his instructions were predicated in the trial court. Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954, 960(11).

We are of the opinion that the appellant’s evidence failed to support an essential element of the theory of liability he elected to pursue, i. e., that “regular periodic tests and inspections” would have revealed the presence of the conditions which presumably caused the explosion here. The evidence failing to support this essential hypothesis of the appellant’s theory of his cause of action, the conclusion must follow that the appellant did not make a submissible case. In such circumstances, the verdict and judgment below were for the right party and we do not consider alleged errors in evidence pertaining to damages and other alleged errors not affecting the submissibility of ap’pellant’s case. Howard v. Johnoff Restaurant Co., Mo.Sup., 312 S.W.2d 55, 56(1).

In concluding that no submissible case was made under the evidence here presented, we are aware from the evidence from the trial that the wife Vera obtained a verdict and judgment on her claim against the respondent arising out of the explosion. However, the appellant’s claim is a separate and distinct cause of action. The finding of negligence in the wife’s case is not res judicata of the issues in this case. Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 10 L.R.A.,N.S., 140; Elmore v. Illinois Terminal Railroad Company, Mo.App., 301 S.W.2d 44, 48(11-14).

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-

All of the Judges concur.