author: STONE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Mabel LEIMER, Defendant-Appellant.
    No. 8300.
    Springfield Court of Appeals. Missouri.
    Oct. 5, 1964.

      Kennedy & Tindel, Nevada, for defendant-appellant.
    Wm. G. McCaffree, Nevada, for plaintiff-respondent.
   STONE, Judge.

Defendant, Mabel Leimer, was charged by information with the misdemeanor of practicing medicine without a license. Secs. 334.010 and 334.250; Laws of 1959, S.B. No. 50. Upon trial, the jury returned this verdict: “We, the jury, find the defendant, Mabel S. Leimer, guilty of practicing medicine without a license between March 19, 1962 and April 7, 1962 by applying certain substances and bandages to the face of Fred Gump in treatment of a bodily infirmity, professing to cure the same, of the said Fred Gump and assess her punishment at -.” The jurors having failed to declare the punishment by their verdict [Rule 27.03; Sec. 546.440], the court fixed and assessed the punishment at a fine of $250 and imprisonment in the county jail for a term of sixty days. See Secs. 334.250 and 556.270.

Defendant, forty years of age at the time of trial, identified herself as a “naturopathic physician,” who had practiced as such since 1951 in Nevada, Missouri. The sign on the front of her home, where her office was located, read “Dr. M. S. Leimer, N. D. Physician” (“N.D. * * * stands for naturopathic physician”), her professional cards identified her as “Dr. M. S. Leimer, Naturopathic Physician,” and she was so listed in the Nevada telephone directory. Testifying in her own behalf, defendant freely admitted that she had treated patients for a wide variety of conditions and diseases, including boils, tonsilitis, mumps, gall stones, liver disturbances, multiple sclerosis and cancer.

Fred Gump, a farmer residing five miles northwest of Fulton, Kansas, had' been afflicted with skin cancers. In 1957, Dr. Vernon A. Bérky, a medical doctor specializing in radiology and practicing in Pitts-burg and Fort Scott, Kansas, had given Gump a series of ten x-ray treatments for “a firm, rounded mass in the central part of his chin below the lip,” which the pathological report showed to have been “a basal cell epithelioma of the chin”- — -“the most common type of skin cancer.” Following this series of treatments, the affected area had “the ■ characteristic reaction,” then healed over, and “looked for all apparent purposes [as though] it was well.” However, Dr. Berky kept Gump under observation, examining him from time to time over a period of more than four years. During that interval,'the doctor treated other smaller skin cancers on Gump’s face and the back of his neck but administered no further -treatment to the chin. In the latter part of 1961, there was a recurrence of the chin cancer with an ulcerated area of the same appearance as that treated in 1957. But, by reason of the x-ray treatments by Br. Berky in .1957 and “contact radium” to the chin by another radiologist (not identified in the record) prior to 1957, Dr. Berky doubted in 1961 whether “it would be safe to use” additional radiation on the ,same area. Accordingly; he so advised Gump and told him that -“the next treatment, I felt, would have to be surgical excision and plastic surgery.” Im the words of patient Gump, Dr. Berky “advised me to go tó Kansas City and have my chin cut out”

Shying away from this surgical assault, Gump drove across the Missouri-Kansas line to Nevada and talked with defendant, who told him (so he testified) “that she would heal it, would get rid of it and heal it up, and it wouldn’t cause me hardly no scar.” She also stated that she “had treated other people” and showed him four or five bottles in which she had preserved “cancers * * * that she had taken off from other men.” Still undecided as to what he should do, Gump told defendant that he wanted to counsel with his son at Paola; but, when he later did so, the son offered nothing more helpful than “pop, it’s your chin, you’ll have to be the judge.” Having heard of “a man in Fort Scott that had one taken off of his neck” by defendant, Gump talked with that patient (here unidentified by name), and “he advised me [Gump] to go over and * * * went over with me” on March 19, 1962. On that date, Gump entrusted himself to defendant’s care, and she gave him the first of a series of fourteen “treatments,” all of which were administered in her office.

When asked by her counsel to “explain to the jury what sort of treatment you did use in treating Mr. Gump’s ailment,” defendant responded:. “Well I used a cancer pack on him; it was an ointment that I put on him. You have to put it on as many times as it is needed until it [the cancer] turns loose and then after it turns loose, why then it falls out of its own accord and then you start the healing process.” According to defendant, the ingredients in the ointment were “various herbs that I mix up.” Whatever the ointment may have contained, its effect was drastic in nature and revolting to behold. As described by Gump’s daughter who came from her home in Iowa about March 29, 1962, and accompanied her father to defendant’s office several times, the area where the ointment had been applied and covered with bandages “was black just like it had been burned, like you would put a steak in charcoal and burn it until it was bláck,” his face was swollen, his lower lip was swollen and “turned under,” his tongue was so swollen that he was “unable to work” it and “could hardly talk,” and his nourishment was confined to liquids taken with difficulty through plastic straws. By April 16, 1962, when (at his daughter’s insistence) Gump terminated the series of treatments by defendant and was driven to the University of Kansas Medical Center, his lower lip and the flesh on his chin had “fallen off” and “the whole front of his chin was gone completely to the bone.”

Upon trial, defendant readily agreed that she had diagnosed Gump’s condition “as cancer” and that she had “treated him” on fourteen listed dates between March 19, and April 16, 1962. She also gave this testimony without objection or motion to strike: “Q. Did you profess to cure him? A. Yes, I would have but he didn’t come all the full time because when he came I told him if he starts this that I want him to come and see it through, which he did not do; he stopped in the middle of the treatment, so when anyone stops I am no longer responsible for it. Q. Do you admit that this treatment was a treatment to cure or alleviate his bodily infirmity of cancer? A. Yes, it would have if he had continued coming.” Gump paid defendant $5 in cash for each treatment and an additional $3 or $4 for some “pain tablets” and a remedy for constipation which defendant dispensed on two or three occasions.

Represented here by the same counsel who defended her in the circuit court, defendant has filed a brief in which all of her “points relied on” challenge the legal sufficiency of the verdict hereinbefore quoted in the first paragraph of this opinion. The gist of defendant’s points, of which we treat collectively, is that the verdict was fatally defective because it was a special verdict which did not find all of the essential elements of the offense charged, as a verdict in that form must do to he legally sufficient. In support of this position, defendant cites and relies upon four Missouri cases, in each of which the verdict was called a special verdict and, as such, was held insufficient for failure to find all essential elements of the offense charged. Three of those cases [State v. Mitnick, 339 Mo. 127, 96 S.W.2d 43; State v. Thompson, Mo., 29 S.W.2d 67; State v. Griffin, 278 Mo. 436, 212 S.W. 877] were included among the cases listed and discussed in State v. Saussele, Mo., 265 S.W.2d 290, 293, where it was pointed out that the verdicts in the listed cases “were not true special verdicts” [265 S.W.2d loc. cit. 293-294] and the opinion in effect “overruled [this] list of cases dealing with special verdicts.” State v. Blake, Mo., 309 S.W.2d 632, 635. Even prior to the opinion in Saussele, supra, the fourth case cited by instant defendant [State v. Holland, 162 Mo.App. 678, 145 S. W. 522] properly had been characterized as “out of harmony” with opinions of the Supreme Court and as “not * * * even persuasive” [State v. McCorkendale, Mo., 300 S.W. 815, 818] and later had been laid aside again as “overruled.” State v. Villinger, Mo., 237 S.W.2d 132, 134-135.

The perspicacious author of the opinion in Saussele, supra, observed that prior cases in this jurisdiction “actually seem to have been decided on the basis of definiteness, certainty and responsiveness of the verdict.” 265 S.W.2d loc. cit. 294. Certainly that has been true with respect to subsequent Missouri cases. In making such determination as to whether or not a given verdict is sufficiently definite, certain and responsive to support a conviction, our courts have recorded and reiterated statements of principle to which we now turn.

“ ‘[I]n determining the sufficiency of a verdict, the controlling object is to learn the intent of the jury; and, if such intent may he ascertained and the verdict made definite and certain by reference to the pleadings and instructions, it will be sustained * * * .’ ” “The verdict of a jury, even in a criminal case, is not to be tested by technical rules of construction.” “‘[Vjerdicts should be liberally construed in view of the intention of the jury and of the issues presented and all reasonable presumptions are indulged to sustain a verdict.’ ” “ ‘It is a wholesome precept that verdicts should be given a reasonable in-tendment and a like construction, and are not to be avoided unless it is evident they will work manifest injustice.’ ”

Finally, but certainly not least importantly, a standard frequently employed in determining the legal sufficiency of the verdict in a criminal case is that the verdict must be sufficiently definite and certain “ ‘that upon the entry of a judgment thereon it would have constituted a bar to a further prosecution * * * for the same offense.’ ”

Defendant emphasizes that Section 334.030, RSMo 1949, under which charges of practicing medicine without a license were prosecuted in earlier cases, was repealed in 1959 [Laws of 1959, S.B. No. 50] ; but, as was noted in State v. Errington, Mo., 355 S.W.2d 952, appeal dismissed 371 U.S. 3, 83 S.Ct. 27, 9 L.Ed.2d 48, “the substance thereof was reenacted” [355 S.W. 2d loc. cit. 954] and “the offense of practicing medicine without a license was reenacted” [355 S.W.2d loc. cit. 958] in the same bill in what are now known as Sections 334.010 and 334.250. And, from the hereinbefore-quoted statements of principle and from examination of the cases, it becomes clear that, contrary to instant defendant’s contention, a verdict strictly following the language of Section 334.010 is not essential to a valid conviction thereunder. Nor is the instant verdict legally insufficient for failure to include “as charged in the information” or for failure to incorporate a finding that the acts complained of were done in the State of Missouri. Measured by the rulings in the cited cases and tested by the applicable standards therein stated, the instant verdict

was sufficiently definite, certain and responsive.

Since defendant here filed a brief in which she attacked only the legal sufficiency of the verdict, other assignments of error in her motion for new trial in the circuit court have been waived or abandoned. Rule 28.02; State v. Smith, Mo., 365 S.W.2d 505(1). We find no prejudicial error in other parts of the record which, under Rule 28.02, are examined independently of the motion for new trial.

The judgment is affirmed.

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

      . Section 334.010 is as follows: “It shall be unlawful for any person not now a registered physician within the meaning of the law to practice medicine or surgery in any of its departments, or to profess to cure and attempt to treat the sick and others afflicted with bodily or mental infirmities, or engage in the practice of midwifery in this state, except as herein provided.” The pertinent portion of Section 334.250 is as follows: “1. Any person who violates section 334.010 shall, upon conviction, be adjudged guilty of a misdemeanor for each and every offense; and treating each patient is considered a separate offense. * * * ” (Except as otherwise specifically noted, all statutory references are to RSMo 1959, V.A.M.S., and all references to rules are to the Supreme Court Rules of Criminal Procedure, V.A.M.R.)

      . The Dictionary of Occupational Titles, Vol. I (2nd Ed., March 1949), published by the U.S. Department of Labor and offered in evidence by defendant’s counsel, defines a “naturopath” as “a healer [who] treats patients with a system of physical culture and drugless treatment of disease by methods supposed to stimulate or assist nature.” Por other definitions, see State ex rel. Collet v. Scopel, Mo., 316 S.W.2d 515, 516.

      . State v. Mitniet, 339 Mo. 127, 96 S.W. 2d 43; State v. Thompson, Mo., 29 S.W. 2d 67; State v. Griffin, 278 Mo. 436, 212 SW. 877; State v. Holland, 162 Mo. App. 678, 145 S.W. 522.

      . State v. Marks, Mo., 376 S.W.2d 116, 118; State v. McCarthy, Mo., 336 S.W. 2d 411, 417(10), 418; State v. Povitt, 243 Mo. 510, 522, 147 S.W. 484, 487. See also State v. Fields, Mo., 366 S.W.2d 462, 469(9); State v. Ash, Mo., 286 S.W. 2d 808, 811(6); State v. Russell, Mo., 265 S.W.2d 379, 382(7), 45 A.L.R.2d 617.

      . McCarthy, supra, 336 S.W.2d loc. cit. 417 (11); State v. Perry, Mo., 233 S.W. 2d 717, 720(4); State v. Turpin, 332 Mo. 1012, 1019, 61 S.W.2d 945, 948(14). See State v. Dimmick, 331 Mo. 240, 247, 53 S.W.2d 262, 265.

      . Perry, supra, 233 S.W.2d loc. cit. 720 (5); State v. Meinhardt, Mo., 82 S.W. 2d 890, 893(10); State v. Thomas, Mo., 82 S.W.2d 885, 889(11).

      . State v. Kennebrew, Mo., 380 S.W.2d 293, 295; State v. Saussele, Mo., 265 S.W.2d 290, 294(8); State v. Carter, Mo., 64 S.W.2d 687, 690; State v. Cutter, 318 Mo. 687, 692, 1 S.W.2d 96, 98 (11); State v. Jordan, 285 Mo. 62, 72, 225 S.W. 905, 907(5).

      . Kennebrew, supra, 380 S.W.2d loc. cit. 295; Saussele, supra, 265 S.W.2d loc. cit 294(9); Jordan, supra, 285 Mo. loc. cit. 73, 225 S.W. loc. cit. 907. See State v. Newstead, Mo., 280 S.W.2d 6, 11, certiorari denied 351 U.S. 956, 76 S.Ct. 857, 100 L.Ed. 1479.

      . Fields, supra, 366 S.W.2d loc. cit. 468 (7-9); McCarthy, supra, 336 S.W.2d loc. cit. 417—418; Saussele, supra, 265 S.W.2d loc. cit. 292, 294-295(10). See also State v. Villinger, Mo., 237 S.W.2d 132, 134; State v. Birkner, Mo., 229 S.W.2d 674.

      . State v. Ports, Mo., 269 S.W.2d 88, 92(12); Saussele, supra, 265 S.W.2d loc. cit. 294(5); State v. Russell, supra, 265 S.W.2d loc. cit. 382(8); State v. Ward, 356 Mo. 499, 202 S.W.2d 46, 47-48(1); State v. Wright, 342 Mo. 58, 112 S.W.2d 571, 575(10).

      . Compare the verdicts on which convictions were affirmed in Felds, supra, 366 S.W.2d loc. cit. 468; McCarthy, supra, 336 S.W.2d loc. cit. 417; State v. Cox, Mo., 333 S.W.2d 46, 50; Lorts, supra, 269 S.W.2d loc. cit. 92; State v. Rutledge, Mo., 267 S.W.2d 625; Birkner, supra, note 9; Dimmick, supra, 53 S.W. 2d loc. cit. 265; State v. Baublits, 324 Mo. 1199, 27 S.W.2d 16, 19.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    Alfred A. JULIAN and L. Berniece Julian, Plaintiffs-Respondents, v. Chester KIEFER and Geraldine Kiefer, Defendants-Appellants.
    No. 24047.
    Kansas City Coourt of Appeals. Missouri.
    Oct. 5, 1964.

      Sniezek & Jones, Kansas City, for appellants.
    Poague, Brock & Wall, Clinton, for respondents.
   CROSS, Judge.

Plaintiff Alfred A. Julian, a building contractor, entered into a written contract with defendant property owners to build a dwelling house for the total price of $27,200.00. He duly entered upon the agreed undertaking and completed the structure substantially in accordance with the contract plans .and specifications. During progress of the work defendants made monthly payments, upon the builder’s request and presentation of bills for labor and materials, total-ling $25,000.00. After the house was completed the contracting parties were unable to agree as to the balance owed by defendants. Thereafter this action was filed by plaintiffs Alfred A. Julian and Berniece Julian, who are husband and wife, and who claim to be building contractors in partnership.

Plaintiffs’ petition does not plead for a recovery under the contract, but sounds in ■quantum meruit. Its allegations are to the effect that the parties entered into a written contract, as above noted; that after plaintiffs had partially completed the work ■called for, defendants abandoned the contract, took charge of the project, ordered rthe materials, changed the plans, instructed the workers and did not permit plaintiffs to continue construction of the house under the terms of the contract; and, that plaintiffs had furnished materials and performed work and labor to the benefit of defendants in the sum and value of $35,767.03. Allowing defendants credit for $25,000.00 paid during the course of the work, plaintiffs pray judgment for the claimed balance of $10,767.03 and for a statutory lien on defendants’ real estate.

Defendants filed an answer and a counterclaim. In their answer, defendants denied they had abandoned the contract and affirmatively charged that any recovery by plaintiffs in excess of $25,000.00 must be computed in accordance with the contract. The counterclaim charges that plaintiffs failed to construct the house in a workmanlike manner and of good quality materials in accordance with the terms of the contract; that as a consequence the structure is defective; and, further, that plaintiffs omitted items of construction called for by the contract, and have failed and refused to remedy such defects and omissions — all to defendants’ damage in the sum of $7,-500.00, for which they pray judgment. The allegations of defendants’ counterclaim are denied by plaintiffs.

By stipulation of the parties the case was tried to the court. After hearing extensive evidence the trial judge concluded that “the ignoring of the terms of the contract by the parties, both plaintiffs and defendants, who did not protest or require compliance with the terms of the contract, constituted an abandonment of the contract”, and that plaintiffs were entitled to recover under their petition.

Judgment was entered in favor of plaintiffs on their petition demand, in the sum of $7,109.70, and a statutory lien for like amount was decreed as against defendants’ property. Additionally the trial court rendered judgment against defendants on their counterclaim and dismissed the pleading. Defendants appeal

It is here contended by defendants that the trial court erred in finding as a fact and as a conclusion of law that the contract had been abandoned because (1) the final construction was substantially in accordance with the contract, (2) the parties at all times treated the contract as being in force, and (3) the evidence was insufficient to establish plaintiffs were prevented, by defendants’ interference, from completing the contract Defendants insist that the contract remained in full force and effect, that the extent of plaintiffs’ recovery should have been computed in accordance therewith, and that the judgment is erroneous because it awards plaintiffs a sum in excess of the contract price and is otherwise unsupported by the evidence.

On behalf of plaintiffs it is urged that the trial court was justified in finding and concluding as a matter of law that there had been an abandonment of the contract because (a) the conduct of defendants indicated their intention to abandon the written undertaking of the parties, and (b) the action and conduct of both parties indicated they considered the contract as abandoned. Plaintiffs contend that the judgment is proper and adequately supported by the evidence.

Thus, the primary and essentially determinative question on which the parties have drawn issue is whether the contract was abandoned or has remained in effect. In resolving this issue we first direct attention to the written instrument involved and to the circumstances surrounding its execution by the parties.

In planning the dwelling they wished to build, defendants consulted and employed an architect, Mr. Ellis Jones. The architect designed the structure, and prepared complete building plans consisting of six sheets of detailed drawings which provide that the construction thereunder “shall comply with the Federal Housing Administration’s Minimum Property Requirements in their entirety”. Defendants submitted these plans to plaintiff Alfred A. Julian and four other contractors for bids. After the expiration of approximately ten days, Mr. Julian submitted his bid in the sum of $27,-200.00 and thereby became the successful bidder. Defendants so informed the architect, who thereafter met with plaintiffs and defendants, at the home of the former, to assist the parties in making a contract.

The proposed written agreement was prepared by Mr. Jones on a standard form approved by the American Institute of Architects, and entitled “Agreement and General Conditions Between Contractor and Owner”. The document designates plaintiff Alfred A. Julian as the “Contractor”' and both defendants as “Owners”, provides that “the Contractor shall furnish all of the materials and perform all of the work. * * * as shown on the drawings and described in the specification * * * ” and obligates the owners to pay the contractor the sum of $27,200.00 “for the performance of the contract subject to the additions and deductions provided therein”. The specifications provided in the contract document are “F.H.A. Minimum Property Requirements”.

Other material provisions of the instrument are as follows:

“The Contractor shall permit and facilitate inspection of the work by the Owner and his agents and public authorities at all times”, * * *.
“The Owner may order changes in; the work, the Contract Sum being adjusted accordingly. All such orders- and adjustments shall be in writing. Claims by the Contractor for extra, cost must be made in writing before-executing the work involved”. * * *-
“The Owner shall make payments. * * * on request by contractor, but not to be more than once per month, and on a set date, allowing the owner 10 days to pay only receipted bills”.. * * *
“The Architect shall have general supervision of the work. He has authority to stop the work if necessary to insure its proper execution. He shall certify to the Owner when payments under the contract are due and the amounts to he paid. * * * ”

After some preliminary discussion the written agreement was signed by both defendant property owners and by plaintiff Alfred A. Julian, but plaintiff Berniece Julian refused to sign the instrument. The ■entire contract consists of the written agreement and general conditions contained therein, together with the drawings and the specifications referred to above.

It appears that contractor Julian entered into the written undertaking with mental reservations. He testified that when he “agreed to build this house for $27,200.00” he knew it would cost more money than that sum to build it according to the plans, and that he arrived at the figure of $27,200.-00 for bid purposes by generally cheapening the construction, by using cheaper materials than specified and by “cutting off” from the plans numerous items of construction and finish shown and detailed thereon which he now refers to as “extras”. Julian claims that he informed defendants of these deletions and omissions at the time he submitted his bid, and that they accepted his bid with the understanding that he was at liberty to “cut everything off that I could cut off” from the architect’s plans in order to build the house for the sum of $27,200.00. Julian testified that he discussed these changes and eliminations with defendants and their architect both prior to and after the signing of the contract, and told them what he had eliminated from the plans in arriving at his bid figure. It is claimed by Julian that defendants (and their architect) were “satisfied” with the omissions and substitutions and agreed thereto both before the formal execution of the written contract and again after the parties had signed it.

Julian now suggests that those alleged oral agreements are binding upon the parties and constitute effective modification of the written contract. Such view of the transaction is untenable. It is elementary that any discussion, negotiation or agreement by the parties before entering into the written contract are merged and consolidated into that undertaking. Poe v. Illinois Central R. Co., 339 Mo. 1025, 99 S.W.2d 82. Nor do we believe that defendants made any oral agreement amounting to a modification of the contract after it was signed by the parties on the occasion in question. Although both Mr. and Mrs. Julian so testify, both defendants and their architect deny that any agreement was made in derogation of the written contract immediately after its execution. We question the probability of plaintiffs’ testimony on this fact issue and find that the written contract is a complete and exclusive expression of the entire agreement reached by the parties.

We consider that the parties entered upon the subject undertaking fully and completely bound by the terms of the written contract and that their respective rights and duties were governed and defined solely by that instrument. And, if it be established herein that there has been no abandonment of the contract and that plaintiffs have fully performed the contract on their part, the amount of plaintiffs’ compensation and recovery thereof will be limited to the agreed contract price. The rule applicable here is well established and is stated in Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824, as follows: “‘But where, as here, an express contract has been fully performed on plaintiff’s part, and nothing remains to be done under it but the payment of money by defendant, which is nothing more than the law would imply, plaintiff may declare specially on the contract, or generally in indebitatus assump-sit as for the quantum meruit, at his election. The plaintiff does not repudiate the contract nor seek to avoid it in indebita-tus assumpsit as for the quantum meruit, but offers the contract in evidence and his proof of compliance with it to sustain his case. The agreed price, if there is an agreed price, becomes prima facie evidence of the reasonable value of the service. But plaintiff may not recover more than the agreed price. Stollings v. Sappington, 8 Mo. 118;”’.

In connection with the foregoing rule, it is appropriate to note that under Missouri law a building is “substantially complete” so as to entitle the contractor to the full contract price (plus reasonable compensation for extras, less whatever sum is necessary to remedy defects and supply omissions), when it has reached the state in its construction so that it can be put to the use for which it was intended even though comparatively minor items remain to be furnished or performed in order to conform to the plans and specifications of the completed building. State ex rel. Stites v. Goodman, Mo.Sup., 351 S.W.2d 763; Bloomfield Reorganized School District No. R-14 v. Stites, Mo.Sup., 336 S.W.2d 95.

After the contract was signed, Mr. Julian promptly commenced the building operations agreed upon. He was “on the job” at defendants’ construction site only part time daily' — from two to eight hours — except for “several” days when he was there all day. In Mr. Julian’s absence his head carpenter, Elvin Scarbrough, was apparently in charge of the project. The work proceeded without event or any suggestion from defendants until about the time “we started on the wood”. Defendants’ architect did not personally supervise the work as it progressed — a circumstance of which plaintiffs complain. However, defendants testified that they did not employ the architect to supervise construction generally but only to (1) draw the house plans, (2) be present when they signed the contract, and (3) inspect the construction of the house before they made final payment. Defendants performed their own personal inspection of the work — a privilege reserved to them by the written contract. This was done principally by Mrs. Kiefer and particularly in the later stages of construction such as the processes of finish, trim and decoration, and the installation of fixtures and appliances.

Although the house was completed in general conformity with the requirements of the contract, some changes of relatively minor nature were made in the structure at variance with the architect’s plans and the “F.H.A.” specification. In some instances the builder used materials of lesser quality and cost than specified — illustratively, No. 3 or “utility” grade framing lumber instead of No. 2 grade required by “F.H. A.” standards. The house as finally constructed contains a number of “extra” items and details not included in the plans. Some of the “extras” were done at the suggestion of the builder, a few on request of Mr. Kiefer, and the remainder were requested by Mrs. Kiefer. Still other extra items were required by physical necessity — for instance, the construction of a retaining' wall, uncalled for by the plans, but necessitated by “a serious elevation problem”. There are also minor variations from the plans in the nature of omissions — items of specified construction or finish not performed by the builder — and, admittedly there are defects in the structure, both of which entitle defendants to deductions from the total cost of construction as provided by the contract.

Nonetheless, it is established by all the evidence that plaintiffs finally constructed the dwelling substantially as called for by the plans and the contract, and delivered its possession to defendants, who took occupancy of the house in September of 1961. It is admitted by Mr. Julian that plaintiffs “fully completed all the work you (plaintiffs) had to do in order to build this house”. Thereafter the parties met to negotiate a final settlement. Relying upon the contract, defendants took the position that they were obligated to pay no more than the remainder of the contract price, plus the reasonable value of extras and changes, less a sum representing the cost of items omitted and damages resulting from defects in the structure. Plaintiffs insisted that the contract was no longer in effect and insisted that defendants pay them the full amount expended for materials and labor plus a 10% contractor’s fee. The parties thus reached impasse and settlement negotiation failed.

Seeking to avoid the binding effect of the building contract, plaintiffs charge that they were misled by defendants’ conduct into an honest belief that defendants intended and consented to an abandonment of the contract. This “misconception”, say plaintiffs, prejudiced them in that they expended monies in excess of the contract price just for materials and labor in building the house. We are reminded by plaintiffs that the question of intention is rarely capable of positive proof but is to be arrived at by logical deductions from proven acts. Parker v. School District, Mo.App., 325 S.W.2d 59. Additionally pertinent to the instant question is the rule that “where acts and conduct are relied on to constitute an abandonment, they 'must be positive, unequivocal and inconsistent with an intent to be further bound by the contract.’ ” Schwartz v. Shelby Construction Co., Mo.Sup., 338 S.W.2d 781.

Plaintiffs argue that they were misled into believing defendants had abandoned the contract because, in contravention of its terms, they made changes in the plans which were not in writing and without approval of the architect; because the architect did not regularly supervise the work; and, because the monthly payments of labor and material bills were not certified by the architect. We find no persuasive significance in the foregoing. The contract specifically provides that “the owner may order changes in the work, the contract sum being adjusted accordingly”. Such right is vested in the owner without any requirement that the architect approve changes that are ordered by the owner. And, although the contract further provides that “such orders and adjustments shall be in writing”, we believe that the course of action practiced by the parties indicates a mutual waiver of that requirement. It is the established rule that the habitual acceptance of extra work done on ■oral orders in connection with a contract, and payment therefor, amount to a waiver of a contract clause providing that no claims for extra work or materials shall be allowed unless same be done or finished in pursuance of an order in writing. Hannan-Hickey Bros. Const. Co. v. Chicago B. & Q. Rr. Co., Mo.App., 247 S.W. 436.

It is of no consequence beneficial to plaintiffs’ claim of abandonment that the architect did not regularly supervise the work. “A provision in a building contract that the contract shall be prosecuted under the full supervision of a duly qualified architect does not comprehend supervision of the methods and means of doing the work and is complied with by the employment of an architect with full supervision over the result to be accomplished by the contractor”. 17A C.J.S. Contracts § 494(2), p. 711.

Nor is plaintiffs’ theory of abandonment supported by the circumstance that defendants paid labor and material bills monthly, as plaintiffs requested them to do, without the architect’s approval and certification. If defendants chose to forego the protection afforded them by the contract provision in question, we think plaintiffs have no cause to believe other than that defendants had waived the contract provision.

Still other circumstances are pointed to by plaintiffs as indicia that the parties abandoned the contract, to-wit, that defendants made an advance payment of $1,000.00 to plaintiffs at the signing of the contract which was not in accordance therewith, and that plaintiffs, with defendants’ knowledge and . consent, used a lower grade of lumber than called for by the contract. Of these matters we again say that both instances amounted to waivers by defendants of specific rights afforded them by the contract, that the benefit of such waivers inured to plaintiffs, and that plaintiffs will not now be heard to assert these circumstances as proof of defendants’ intentions to surrender the entire contract. These deviations from the written agreement, as well as others heretofore mentioned, are no more than minor modifications of the contract — initiated by-plaintiffs and assented to by defendants.

We find no substantial credible evidence to support plaintiffs’ pleaded allegation and present insistence that defendants took general charge and direction of the project, and thereby prevented plaintiffs from completing it under the terms of the contract and within the price hid. Admittedly Mrs. Kiefer was on the job much of the time when the interior of the house was being finished. That privilege was reserved to her by the contract. Several times in the course of her inspection she noted the absence of certain items and details called for by the plans and required of the builder that they be included in the construction of the house. On other occasions, as above noted, she requested minor changes and additions as extras on the basis of additional cost. She exercised the privilege of selecting the type, color, pattern and design of wall and floor coverings. She made her choice of wall paper, linoleum, paints, varnishes and stains, and in some instances, utility appliances and equipment, trim and finish. She generally supervised the processes of wood staining, painting and papering. There is no evidence of substance that these activities on the part of Mrs. Kiefer, in the interest of her future contentment as mistress of the house, interfered with plaintiffs’ work under the contract or increased the cost thereof, except as to extras required.

The evidence in this case does not disclose acts and conduct of the parties, positive and unequivocal in nature, sufficient to clearly express a mutual intention to abandon the contract. We therefore conclude that the trial court erred in so finding and rendering judgment in plaintiffs' favor without limiting their recovery to the terms of the contract, and that additional error was committed by the court in rendering judgment against defendants on their counterclaim and dismissing that pleading. In arriving at these conclusions we have given due consideration to all decisions and text authority cited and relied upon by plaintiffs.

This controversy was tried without a jury, and we have reviewed the case “upon both the law and the evidence as in suits of an equitable nature”, Civil Rule 73.01(d), V.A.M.R. In the state of the present record it is not possible to enter or direct the entry of a judgment for the sums precisely due to the respective parties. Consequently we deem it necessary to remand the cause for retrial. As indicated above, plaintiffs are entitled to recover the unpaid amount of the contract sum of $27,200.00. Additionally they are entitled to recover a sum representing the fair and reasonable value of extra work and materials furnished at defendants’ request or with their acquiescence. Defendants are entitled to an award or credit of such sum as will fairly and reasonably compensate them for defects in the building due to defective materials or unskillful labor and for items omitted by plaintiffs in the performance of the contract. Since these figures and computations do not plainly appear in the present record, it will be incumbent upon the trial court, in re-trying the cause, to hear additional evidence and determine the fact issues we have above defined and to enter judgment in accordance therewith.

The judgment is reversed and the cause is remanded for a new trial in conformity with this opinion.

All concur.


author: MAUGHMER, Commissioner.

text:
    Otha McCLURE, Respondent, v. George Nowick, d/b/a George’s Loan Office Appellant.
    No. 24012.
    Kansas City Court of Appeals. Missouri.
    Oct. 5, 1964.
    Donald B. Clark, Campbell & Clark, Kansas City, for appellant.
    Thomas J. Allen, Kansas City, for respondent.
   MAUGHMER, Commissioner.

A jury was waived. The judgment was for plaintiff under both counts of his petition. Under Count I — an action in replevin —it was adjudged that plaintiff recover possession of a television and record player set and $100 in damages for its wrongful detention. Under Count II the judgment was in the sum of $6.50 for usurious interest charged and collected, plus $250 attorney’s fee. Defendant has appealed.

The facts are not materially disputed. The defendant at all times was licensed to and did operate the business of a pawnbroker at 1619-21 East 18th Street, Kansas City, Missouri. On or about August 12, 1959, plaintiff borrowed the sum of $25 from defendant and as security therefor pledged an Admiral 21-inch combination television set and record player. Although the maximum fee and interest which a pawnbroker may charge under the Missouri law for a loan of $12.50 or more, is 2 percent per month, defendant charged plaintiff and plaintiff paid for the period from August 12, 1959, when the loan was made, until early in 1961, the sum of $40.00. For this period 17 interest payments of 2 percent or 50 cents per month would amount to $8.50. If this sum is added to the $25 principal, we find that there was due to defendant, principal and interest, the sum of $33.50 or $6.50 less than the $40 which plaintiff had paid.

On or about March 7, 1961, plaintiff’s employer, Edward J. Edwards, appeared personally at defendant’s pawnshop, stated that he was plaintiff’s employer, presented the pawn ticket and demanded return of the pledged television set. Defendant refused to deliver possession and asserted that in addition to the payment of $25 principal, plaintiff owed $2.50 for each month during which the loan had been in effect. Plaintiff testified that he renewed the loan several times and each time was charged $2.50 per month — a charge of 10 percent each month rather than 2 percent. Defendant does not deny charging $2.50 per month. Defendant agrees that 2 percent is the maximum interest allowable but says that where bulky articles are pledged as security it is the custom of pawnbrokers to exact a storage fee and that in this instance a charge of $2.00 per month is reasonable.

On appeal defendant attacks the judgment generally as a whole and specifically as to each item thereof. He says first that although the exaction of usurious interest is a misdemeanor and the statutes forbid its collection, nevertheless such illegal payments are not recoverable under the common law, and since there is no Missouri statute authorizing the recovery thereof, the victim is without remedy. We can neither approve, accept nor adopt any such theory. Certainly equity will allow recovery of the usurious interest or the amount which was paid over and above the 2 percent per month authorized by the statute to be charged by pawnbrokers. Defendant says, second, no usurious rate was charged because the extra collected was for storage of the pledged property and his retention of possession was therefore lawful; third, the defendant asserts that the judgment is not in conformity with the statutory requirement for replevin actions because the judgment should give plaintiff the privilege of recovering either the article itself or the value thereof, and that there was no evidence as to the value of the article at the time of the trial. It is asserted, fourth, that there is no lawful authorization for the allowance of attorney’s fee and there is no evidence upon which to base the allowance of $100 damages for unlawful retention.

It is defendant’s position that the judgment under Count I is not in conformity with the requirements for an action in re-plevin as set forth in Section 533.140, V.A. M.S. This section provides:

“If the defendant fail in his defense, and have the property in possession, the court or jury shall assess the value of the property, and the damages for all injuries to the property, and for the taking and detention, or detention, of the same, and the judgment shall be against the defendant and his sureties, that he return the property or pay the value so assessed, at the election of the plaintiff, and, also, pay the damages so assessed and costs of suit. * * * ”

The judgment here under Count I is not strictly in conformity with the direction of the statute that “he (defendant) return the property or pay the value so assessed, at the election of the plaintiff * * * ”. The judgment as entered is “that plaintiff have and recover * * * the possession of (the article), of the value of $350. * * *

It was held in White v. McFarland, 148 Mo.App. 338, 128 S.W. 23, that a replevin judgment must he for the return of the property or for its value at the election of plaintiff. In Hopper v. Hopper, 84 Mo.App. 117, this court long ago ruled that the provision of the statute requiring the assessment of the value of the property in actions of replevin was enacted for the benefit of the plaintiff and he may waive compliance with such requirement. Here defendant does not deny that he has possession of the article. Plaintiff does not complain of the judgment for possession alone and may therefore be said to have elected to recover possession rather than the value of the withheld article.

It is true, as defendant asserts, that there was no real substantial evidence as to the value of the article at the time of the trial. There was evidence that its original cost was “over $350”, and this is the figure described in the judgment as its value. Under the circumstances here we think plaintiff has elected to have judgment for possession and has waived his statutory right of election to have either possession or the value of the article. Therefore the fact that the judgment form is not strictly in conformity with the statute and the fact that the value of $350 is unsupported by substantial evidence that such was its value at the time of trial, do not constitute such a departure as to require reversal of the judgment since defendant thereby suffered no genuine impairment of rights. The damages of $100 for retention of an article worth $350 new for a period of many months is not in our opinion, excessive. We believe that the $100 assessed as damages for unlawful retention is not in an unreasonable amount and it may stand.

We have no difficulty in concluding that plaintiff may recover the payments made which exceed the combined total of principal $25 and interest of 2 percent each month. There is no question but that plaintiff was charged and paid usurious interest or interest exceeding that authorized to be charged by pawnbrokers under Section 367.021 (2) V.A.M.S. supra. We do not believe that a pownbroker can exact a payment five times greater than that allowed under the law simply by calling the excess a charge for storage. We quote the following statement from 91 C.J.S. Usury § 94 pp. 680, 681:

“The common-law doctrine is that the debtor may recover payments made on a loan in excess of the legal rate of interest. According to this doctrine such payments are not deemed voluntary, or the debtor to be in pari delicto in making them. Hence, unless the statute prohibits recovery in a particular case, an action to recover such usurious excess will lie under the common-law rule. Likewise, an action will lie under statutes providing for the recovery of usurious interest, if the transaction comes within the terms of the statute, it being held that such statutes are not contrary to public policy, that the remedies given thereby do not supplant the common-law right, hut are cumulative, and that the repeal of a statute giving a right to recover usury paid leaves the common-law right unimpaired”.

We rule all assignments against appellant-defendant except as to that part of the judgment allowing recovery of the $250 •attorney’s fee. Section 408.050, V.A.M.S. provides that if a borrower of money is charged interest in excess of 8 percent he may recover the excess and in addition “ * * * the costs of suit, including a reasonable attorney’s fee to be determined by ■the courf’. However, this statute is not -applicable to pawnbrokers and pawnbroker loans which subject is completely covered and regulated by Sections 367.010-060, V. A.M.S. This court in Vining v. Probst, 239 Mo.App. 157, 186 S.W.2d 611, 615, held that when the legislature enacted laws dealing with a subject in a minute and particular manner it would prevail over a statute of a general nature. The court held further that the provisions of our “Small Loan Laws” prevail over the general interest laws.

Counsel for plaintiff has not pointed ■out nor have we been able to find any statute authorizing the allowance of attorney fees in this type of case. In 77 C.J.S. "Replevin § 282, p. 207, this statement is made:

“In the absence of statutory provision therefor, attorney’s fees for services rendered for the prevailing party in the replevin suit are generally not allowed in that action, even though such fees were incurred in pursuit of the property in controversy, unless there has been fraud, malice, oppression, or willful wrong, authorizing the recovery of exemplary damages”.

Then in 20 C.J.S. Costs § 218, p. 455, Attorney’s Fees, it is declared as follows:

“Outside of exceptional cases in courts of equity, attorney’s fees are allowable or taxable as costs only by virtue of express authority conferred by statute, agreement, or stipulation”.

It may be that in the present type of case, exemplary damages might be recoverable upon a proper showing but the judgment does not purport to allow such damages and although plaintiff asked for them he has not appealed from the nonallowance thereof. Even in a suit upon a promissory note, attorney’s fees are not allowable unless the contract or note specifically authorizes their allowance. The general rule is that unless the statutes or the agreement itself provides for attorney’s fees, same are not recoverable.

Therefore the judgment is reversed as to the $250 allowance for attorney’s fee and affirmed in all other respects. The cause is remanded with directions to modify and enter judgment accordingly.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.

      . Section 367.021(2) Y.A.M.S. “The maximum loan fee, and the maximum rate of interest which may be charged for making and carrying any secured personal credit loan, shall be a loan fee of twenty-five cents per month during the-life of such loan, plus interest at a rate not exceeding two per cent per month on the amount of such loan in excess of twelve dollars and fifty cents-”


author: HUNTER, Judge.

text:
    Oliver W. ALBIN (Employee-Plaintiff), Respondent, v. HENDRICH BROTHERS IMPLEMENT COMPANY (Employer-Defendant) and Western Casualty and Surety Company (Insurer-Defendant), Appellants.
    No. 24045.
    Kansas City Court of Appeals. Missouri.
    Oct. 5, 1964.

      Vance Julian, Clinton, for appellants.
    Richard K. Houtchens, Clinton, for respondent.
   HUNTER, Judge.

Claimant-respondent, Oliver W. Albin, was injured while operating a combine machine in the course of his employment by defendant-appellant, Hendrich Brothers Implement Company. Western Casualty and Surety Company is the insurer and co-defendant.

The sole question is whether claimant at the time of his injury was in an employment of farm labor within the meaning of that term as used in Section 287.090 RSMo 1959, V.A.M.S. If so, he is not covered by the provisions of the Workmen’s Compensation Act, for it is agreed that his employer is a minor employer who had not accepted the otherwise exempted “employments of farm labor” under the act and the insurer’s policy did not cover employments of farm labor.

As a result of the hearing of the compensation claim before the referee, claimant was found not to be a farm laborer and was awarded compensation benefits then totaling $5,409.30. The Industrial Commission made the same final award, and the Circuit Court of Henry County affirmed. This appeal followed.

On review of questions of fact decided by the Industrial Commission, our inquiry and that of the Circuit Court is limited to whether or not the findings of the Commission are supported by competent and substantial evidence upon the whole record. V.A.M.S.Const, Article V, Sec. 22. The reviewing court may not substitute its own judgment on the evidence for that of the administrative tribunal, but it is authorized to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it. The reviewing court will set aside decisions clearly contrary to the overwhelming weight of the evidence.

In accordance with the above rules we review and summarize for the reader the pertinent evidence. Hendrich Brothers Implement Company, a partnership, since 1956 has been a dealer in farm implements selling Allis Chalmers products. The company also engages in the repair of these farm implements and the sale of parts. As a part of its business operation it demonstrates Allis Chalmers farm implements to interested farmers. In October, 1962, the company employed claimant, a twenty-five year old man who was experienced as a mechanic and who was familiar with farm machinery, as a full time, permanent employee to do the “general work of (a) farm implement store or farm machinery dealership” including assembling or setting up new machinery, repair work and assisting in demonstrating farm implements and delivering them to purchasers. Claimant was paid $2.00 an hour when operating a machine in the field and a little less when he was doing other work. The company’s place of business was located in Clinton, Missouri.

James F. Middleton operated a 678 acre farm near Clinton, including a 70 acre tract planted in corn. Middleton had employed a man to pick the corn from this field but the field was wet and had some mud holes in it, preventing this man from picking an unspecified portion of it. Middleton had heard from others that the implement company’s Allis Chalmers corn picking machine worked satisfactorily in muddy fields, and he sent word to Mr. Hendrich that he wanted to see him and arrange a demonstration. They met about ten days prior to November 21, 1962. According to Witness Middleton, “There was a lot of wet bottoms up there and there was quite a bit of talk about this gleaner combine being able to pick corn in that mud, or shell corn. It was a self-propelled combine with a corn header on it. And I just didn’t think it would get over the ground, and I kidded Jim (Hendrich) a little bit about it. And I said I would just like to have a demonstration; I would just like to see it go. Well, he said there is a lot of people would like to have a demonstration and he said a lot of times I find out it’s just an excuse to get their corn picked. And I said, ‘I’m really interested in the machine.’ I said, ‘You bring it out there and show me that it will do the job, and if I don’t buy a combine, I will pay you for your trouble.’ Q. Relative to that request, did Mr. Hendrichs inform you or make any statement that he would send the machine out or bring the machine out? A. Yes, but he didn’t promise me exactly when. Q. Did you have any understanding with him at that time as to how much you would pay if you didn’t buy a machine? A. No, sir. Q. Did you inform him that if you bought a machine, that your corn was picked and that you didn’t need one till this year, this fall of 1963? A. That’s right. Q. Your demonstration then, as I understand it, was back last fall for the purpose of seeing whether or not you wanted to purchase a gleaner combine this coming fall of 1963? A. Yes, sir.” * * * “The machine that come out there was a used machine. Q. You wanted a machine like it, but a new one ? A. That’s right.”

According to Mr. Hendrich when Middleton contacted him, “He asked me if I would show him my machine up in his mud and water conditions, and I told him that I didn’t know when I could get there or whether I could or not, but if it worked out that I might be able to get up there and show it to him. It so happened that Mr. Houk contacted me and wanted md to show him the machine, and at that point I wasn’t possibly more than seven miles from Mr. Middleton’s place, so I decided I would move on up there and show it to him. I made a demonstration at Mr. Houk’s and then later sold him a machine, and the same day we moved on to Mr. Middleton’s. Q. Did Mr. Middleton — did you quote him any price for combining? A. No, sir. Q. Did he make an offer to you relative to the demonstration? A. He just said he would make it right with me. Q. If you would come and demonstrate in this mud bottom? A. That’s right. Q. Did he make any statement that if he did not buy the machine, he would be willing to pay what was right ? A. That’s right.”

5¡í i|l 5^ í|í

“Q. What was the purpose you went to the Middleton farm for ? A. The purpose was to show him the machine because of the conditions. I wouldn’t have taken my combine and moved it that far for that small an amount of work in any sense other than a demonstration, because the mud conditions were so adverse that at one time we had to dig our combine out twice before we could even move it. The consistency of the soil was so that it would build up on the wheels to such an extent that it would go out on each side and push into the belts. Q. Was there any understanding between you and Mr. Middleton that if he bought a machine in the fall of 1963 that he would not have too pay for this demonstration? A. That is correct.”

The morning of November 21, 1962, Mr. Hendrich, with Mr. Middleton seated beside him, demonstrated the machine for about three hours by operating it in the mentioned cornfield. They picked somewhere between 200 and 1500 bushels of corn. Hendrich then turned the machine over to claimant with instructions to continue operating it “where we was at”. From a high hill nearby Middleton continued to watch claimant from time to time as claimant finished filling with corn a wagon set there by Middleton, and Middleton, took that wagonload up the hill and put it in his bin. Middleton then went to his house for a cup of coffee and soon claimant showed up with a mangled hand. He had gotten off the combine to scrape mud off a belt and the combine had “jumped into gear” catching and cutting his hand. This occurred about an hour after claimant had taken over the machine.

Later Hendrich billed Middleton $100.00 for the demonstration. When questioned about his policy concerning demonstrations Hendrich stated, “It’s all in the line of selling machinery; it is debatable whether you ever get enough money to pay the depreciation on the machine and the expenses. You just have to reap it through sales, if you come out ahead, but you sure don’t sell anything unless people know what you have.” * * * “Q. Do you, as a part of your business, and a custom in your business, place your machine out over these areas for the purpose of demonstrations to take people and see them work and for other people other than the farm on which they are being worked? A. Yes, sir, that’s certainly right. * * * Q. Is is a necessary part of your business and considered a business practice to do the type of work you have just testified to as good will and demonstration to help sell your product? A. I think so. It certainly has paid off in the way of sales.”

There was other evidence that Hendrich in demonstrating his combine to some four or five farmers on other occasions had done some combining and had charged for the “demonstrations”. He used claimant some during such “demonstrations.” Hendrich denied he ever did complete a field on any farm. He had never run an ad or solicited combining work. “Q. Now forgetting all of these other farms that you did work on last fall, was the work that you did on the Middleton farm a demonstration at his request, or was it work for hire or custom work? A. It was a demonstration at his request. I wouldn’t go back in that condition again for any kind of pay.”

In construing the provisions of the Workmen’s Compensation Act to ascertain the legislative intent, the required approach is stated in Dost v. Pevely Dairy Company, Mo.Sup., 273 S.W.2d 242, 244, “Sec. 287.-800 states that the provisions of the Workmen’s Compensation Act shall be liberally construed with a view to the public welfare. This has been interpreted to mean that the Act should be construed ‘with a liberality caculated to effectuate its purpose and so as to extend its benefits to the largest possible class and restrict those excluded to the smallest possible class.’ Hilse v. Cameron, Joyce Construction Co., Mo.App., 194 S.W. 2d 760, 765; Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046.”

Numerous appellate court decisions of this and other states have established the rule that the character of employment of an employee must be determined from the whole character of his employment and not by the particular work he is performing at the time of his injury, nor by the place where such work is performed, nor by the nature and scope of his employer’s business. Blew v. Conner, Mo.Sup., 328 S.W.2d 626; Davis v. McKinney, Mo.App., 303 S.W.2d 189; Dost v. Pevely Dairy Co., Mo.Sup., 273 S.W.2d 242; McCaleb v. Greer, 241 Mo.App. 736, 267 S.W.2d 54.

Thus, it is firmly established by judicial decision that a workman is not a farm laborer simply because at the moment he is doing work on a farm; nor because the task on which he is engaged when injured is sometimes performed by a farm laborer.

As approvingly stated in Blew v. Conner, supra, 328 S.W.2d loc. cit. 629, “ * * * a farm laborer does not step out of his own part while doing carpenter work for his farmer employer in the repair of farm buildings. Neither does the carpenter who comes onto the farm for the job of carpentry and nothing more. One continues a farm laborer and the other does not become one.” And, see, I Larson’s Workmen’s Compensation Law, Section 53.40, pages 782-783.

In the instant case the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, viewed in the light most favorable to the findings and award of the Industrial Commission as we are required to do on an appeal, support its finding that claimant was not in an employment of farm labor at the time he was injured.

Claimant was employed as a full-time worker by the farm implement company to work at its place of business in Clinton. His work included assembling and setting up new farm machinery, repair work such as any mechanic might perform and assisting in demonstrating farm implements to potential purchasers. It was an employment within the coverage of the Workmen’s Compensation Act.

Although corn picking performed by a farm hand as a part of his duties is considered to be an employment of farm labor, corn picking when merely an incident of a demonstration of a farm machine by a farm implement dealer’s employee to a potential purchaser of the machine is not an employment of farm labor. A workman is not a farm laborer simply because the work he is doing at the moment may be labor on a farm if such work is a part of his principal employment which is not farm labor.

The demonstrating of farm implements is inherently a part of the usual business operation of a farm implement dealer and his employees. While the farmer whose field is being worked as a part of a demonstration of farm equipment may be benefited by having a part of his crop gathered or processed, so long as the purpose of the work performed by the implement dealer and his employees is a bona fide demonstration of the equipment to a potential purchaser, the demonstration, even though including a token or small charge to offset depreciation or the actual expense of the demonstration, does not result in a participating employee of the dealer being in an employment of farm labor.

It would be otherwise if the farm implement dealer was also engaged in the work of field harvesting for a profit and not for the purpose of a bona fide demonstration of his farm machinery to a potential purchaser. Under some circumstances and conditions an employee may work in a dual capacity and be covered by the Act when engaged in one capacity and excluded when engaged in another, depending on the natux-e of the work being performed at the time of the injury. Vandeventer v. Melson’s Service Station, Mo.App., 330 S.W.2d 156. However, there is competent and substantial evidence to support the Industrial Com-fnission’s view that such is not the situation here and that the employment was that of an employee of an implement dealer engaging in a demonstration of a farm machine at the direction of his employer and remained such at the time of his injury. Every case must be decided on its own facts and circumstances.

The judgment of the circuit court affirming the final award of the Industrial Commission is affirmed.

All concur.


text:
    Marion GERALD, Plaintiff-Respondent, v. CATERERS, INC., Defendant-Appellant.
    No. 23993.
    Kansas City Court of Appeals. Missouri.
    Oct. 5, 1964.

      Don B. Roberson, Kansas City, Alan Wherritt, Liberty, for appellant.
    Robert B. Wurdack, Kansas City, Wilbur L. Pollard, North Kansas City, for respondent.
   HUNTER, Judge.

This is a suit by plaintiff, Marion Gerald, against Caterers, Inc., for damages allegedly resulting from a false arrest and imprisonment caused by defendant. As a result of a jury trial, plaintiff obtained a judgment for $.25 actual damages and $2,-000 punitive damages. This appeal followed defendant’s unsuccessful motion for a judgment in accordance with defendant’s motion for directed verdict or in the alternative for a new trial.

The two questions presented on appeal concern the admissibility of certain statements by plaintiff as to who instigated his arrest, and the correctness of the trial court in overruling defendant’s motion for a directed verdict. We limit our factual statement to the matters helpful to an understanding of those questions.

Plaintiff, a thirty-six year old married man with four children, for some time had been an employee of defendant as a fountain man at the Allen’s Drive-In in North Kansas City. He also held another full-time job, working a total of about sixteen hours a day. He advised his supervisor, Mr. Cummings, at Allen’s that he was going to quit that job at the end of the week as the two jobs were “getting him down”. Mr. Cummings advised him he was sorry to see him go as he was a good worker. He worked the remainder of the week and left on Saturday night, a week before pay day.

On May 6, 1960, approximately $45.00 in money was missing from near the cash register at Allen’s Drive-In. This loss was not discovered until after the four employees on that shift, including plaintiff, had gone home. Cummings telephoned Howard Carter, defendant’s area manager, and reported the loss. Carter came to the drive-in and he and Cummings reported the loss to Lt. Mann and another policeman who had stopped at the drive-in. Lt. Mann advised Carter he would like to talk to the employees, and he returned the next night and talked to two of them. A third employee did not return to work and has not been seen since. Lt Mann stated he requested Cummings to tell him when plaintiff returned to the drive-in.

On May 12, 1960, plaintiff telephoned Mr. Cummings at Allen’s Drive-In to see if it was convenient for him to pick up his pay check. Although the pay check was not at Allens, Cummings told him to come and get it. Cummings then called the police and advised them that plaintiff was coming to Allen’s. He also called Mr. Carter and told him of plaintiff’s call. Carter asked him if he had called the police and he said, “Yes”.

When plaintiff arrived at the drive-in to get his pay check he went to the vicinity of the cash register where Mr. Cummings was. Cummings told him “Just a minute.” Cummings then gave a nod to two plain clothes policemen who were present. The two policemen came up, one of them asked plaintiff his name and advised he was taking plaintiff to police headquarters to ask him some questions “which won’t take but a few minutes, then you can go.” Plaintiff asked him, “What for. He said he would explain it down at the police headquarters. He didn’t want to upset the people while they was eating.” One of the two policemen, Officer Gillis, told plaintiff while they were still at the drive-in that he was “under arrest for investigation.”

After arriving at the police station plaintiff was interrogated and advised that it was money missing from the drive-in that was involved. Although plaintiff denied any knowledge concerning it, he was held overnight in jail and released about 8:30 a. m. the next morning. No charge was ever filed against him.

Turning to the evidence question, a chronological statement of the pertinent events is helpful. “Q. The question was: Did the police officer inform you who complained against you, in Mr. Cummings’ presence? A. No. The police officers, officer said that Mr. Carter had me picked up for questioning. Mr. Roberson: Objected to, because — THE COURT: That he said what? I didn’t hear that. THE WITNESS: Mr. Carter — THE COURT: Uh huh. THE WITNESS: — was having me picked up for questioning, which he said it wouldn’t take but a few minutes down at police headquarters, then they’d let me go. THE COURT: Was that in the presence of Mr. Cummings? THE WITNESS: Mr. Cummings was standing there, but the place was full of people, sir, I don’t know whether he overheard the conversation or not. THE COURT: Go ahead, overruled.” At this point we pause to note that the “objection” made did not contain any grounds therefor.

After additional testimony in chief, plaintiff was cross-examined by defendant’s counsel and especially as to whether it was at the jail rather than at the drive-in, and outside the presence of any employee of defendant, that he was told by the policeman that it was Mr. Carter who complained against him and had him picked up for questioning. Upon such questioning plaintiff clearly and repeatedly stated that it was at the police station and outside of the presence of defendant’s employees that the statement was made. At this point defendant’s counsel made no objection to the repeated statements of plaintiff that he was told by a policeman that it was Mr. Carter who complained against him and had him picked up for questioning. Nor did defendant’s counsel make any objection to the earlier evidence on the subject, and did not move to have it stricken.

After plaintiff left the stand as a witness, other witnesses for plaintiff were called, examined and cross-examined, but not on the subject of who instigated or directed plaintiff’s arrest and imprisonment.

The next day at the close of all the evidence on plaintiff's behalf defendant’s counsel stated, “The defendant at this time files its (oral) motion to strike all conversation that, and all testimony that was adduced and given by the plaintiff with respect to the conversation, all acts that he testified to as occurring at the police station, as well as motioning to strike all purported statements given by unidentified officers at that police station at the time in question. The defendant states that at the time this information was solicited from the plaintiff by direct testimony the defendant objected on the basis of hearsay and the self-serving declarations of the plaintiff, and the Court overruled those objections. And at this time the defendant motions to strike all testimony given by the plaintiff with reference to conversation he had and that conversation officers had with him at the police station again upon the basis it was hearsay and self-serving, prejudicial to this defendant.” The trial court overruled the motion to strike.

It is the rule that if a party to a lawsuit desires to object to hearsay evidence, the objection must be promptly made or he will be deemed to have waived the objection. If, however, there is nothing in the questions asked or the answers given that would indicate or disclose that the evidence was hearsay, then a motion promptly made on discovery to have the hearsay stricken from the record should be sustained. Jackson v. Curtiss-Wright Airplane Co., 334 Mo. 805, 68 S.W.2d 715, 719 (1-3).

It is also the general rule that an objection to the admission of evidence must be not only timely but also specific, containing a proper ground of exclusion, otherwise the trial court will not be convicted of error for overruling the objection. A rule of evidence not invoked is waived. Appelhans v. Goldman, Mo.Sup., 349 S.W. 2d 204(4). And relevant evidence, even if hearsay, received without proper objection may be considered, even though it would have been excluded on proper objection. Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539(3-5).

Applying these settled rules to the question before us, as earlier noted, when on direct examination plaintiff testified he was told by the police officer that it was Mr. Carter who “was having me picked up for questioning” the defendant’s counsel’s statement, “objected to because” is not a proper objection in that it failed to contain any ground for exclusion of the testimony. Apparently defendant’s counsel was satisfied by what followed his interruption by the court for thereafter he did not seek to object again or to amplify by giving any ground for this earlier interrupted “objected to because” statement.

Such statements as “we object to it” or “objected to” have consistently been held not to be proper objections because they fail to state any ground for the objection, and a trial court is not to be convicted of error on appeal in overruling them. See, Johnson v. Kansas City Rys. Co., Mo.App., 233 S.W. 942 ; 27 Missouri Digest, Trial,

Assuming for the benefit of defendant that his counsel did not know the mentioned testimony was hearsay until cross-examination disclosed it, defendant’s counsel on such disclosure had the opportunity then to move to have this particular testimony stricken from the record and the jury instructed to disregard it. However, he did not do so, but rather after that witness and other witnesses had testified, the following day made the broad, catch all motion to strike above set out in full. See, McCrary v. Ogden, Mo., 267 S.W.2d 670; Teters v. Kansas City Public Service Co., Mo., 300 S.W.2d 511. The motion fails to refer specifically to the quoted testimony in that such testimony had not been objected to earlier as hearsay. Rather, the motion to strike asked the court to strike “all conversation” and “all acts” occurring at the police station to which plaintiff testified.

It is the general rule that a motion to strike all the testimony of a witness, some of which is material and not previously objected to, is improper and it is not error to overrule it. Ray County Savings Bank v. Hutton, 224 Mo. 42, 123 S.W. 47; Owens’ Estate v. Owens, Mo.App., 107 S.W.2d 150; State ex rel. State Highway Commission v. Mink, Mo.App., 292 S.W.2d 940. If less than all of the witnesses’ testimony is to be stricken the movant should specify the particular testimony that he is asking to be stricken. Schwinegruber v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 782; Gaines v. Schneider, Mo.App., 323 S.W.2d 401.

In addition to plaintiff’s above quoted testimony concerning who caused his arr.est, there is much other testimony by plaintiff in the record which was not objected to and which is relevant to one or more issues in the case. Under such circumstances the trial court did not err in overruling defendant’s motion to strike.

Defendant’s other contention is that the trial court erred in failing to grant it a directed verdict for the reason plaintiff failed to make a submissible case. Defendant particularly argues that there is no evidence from which it could be found that it caused or instigated plaintiff’s arrest and confinement.

The constitutive facts of a cause of action for false arrest and imprisonment are clearly set out in such cases as Richardson v. Empire Trust Co., 230 Mo.App. 580, 94 S.W.2d 966, 970(3); Knupp v. Esslinger, Mo.App., 363 S.W.2d 210, 213; Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239; Winegar v. Chicago B. & Q. R. Co., Mo.App., 163 S.W.2d 357. As stated in the Richardson case supra, 94 S.W.2d loe. cit. 970, “The gist of the action is the wrongful arrest of one without a warrant and his unlawful detention. In order to hold one liable in an action therefor, it is always necessary to be shown that such one instigated, caused, or procured the arrest and confinement of the party complaining. * * * One who merely gives information regarding an offense justifying arrest does not incur liability * * * unless he goes beyond such point and instigates the arrest by suggestion and encouragement and countenances it."

While there is no fixed test for the determination of what is “instigating” an arrest, and each case must be determined on its own facts, it is clear in this case that plaintiff has made a submissible case. Not only did defendant through its manager tell plaintiff to come to the drive-in to pick up a nonexistent check as a pretext to having him present where he could be arrested, and arranged for the police to be there, but according to plaintiff, he was told at the police station when he inquired as to why he was being confined and questioned, that Mr. Carter was having him picked up and questioned. This evidence, if believed, is sufficient for a jury to base a finding that defendant did instigate plaintiff’s arrest and detention. See, Randol v. Kline’s, Inc., 332 Mo. 746, 18 S.W.2d 500; Knupp v. Esslinger, supra. The trial court did not err in refusing to direct a verdict for defendant.

The judgment is affirmed.

All concur.