text:
    Charles GILOTI, Appellant, v. HAMM-SINGER CORP., Respondent.
    No. 51411.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      John R. Whitsitt, John W. Ehrlich, Kansas City, for appellant.
    Ira K. Witschner, William H. Ergovich and Lynn B. Nelson, Kansas City, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment of the trial court dismissing his petition for failure to state a claim upon which relief may be granted. The damages sought exceed the minimum jurisdictional amount of this court.

From the allegations in plaintiff’s petition we find the following facts. Plaintiff is a duly licensed retailer of intoxicating liquors and a resident of Kansas City, Missouri. Defendant is a duly licensed wholesale dealer in Kansas City and is “the exclusive, franchised dealer in certain brand names of various kinds of intoxicating liquors and related products” which are not available to plaintiff from any other source. Plaintiff has attempted to purchase said products from defendant but it has refused and does now refuse to sell its products to plaintiff. Plaintiff then pleads the existence of Section 311.332 RSMo 1959, V.A.M.S., which we shall subsequently mention, and alleges that by reason of the refusal of defendant to sell its products to him he has been damaged in the amount of $20,000, and that he is entitled to punitive damages in the amount of $100,000.

Plaintiff does not contend that his petition states a cause of action for an unlawful conspiracy or for a violation of the Missouri anti-trust laws. He does present two theories in support of his contention that his petition states a claim upon which relief may be granted; one based on the terms of Section 311.332, and the other irrespective of the provisions of that statute.

Section 311.332, in its material parts, is as follows: “It shall be unlawful for any wholesaler [of intoxicating liquor] * * * to discriminate between retailers or in favor of or against any retailer or group of retailers, directly or indirectly, in price, in discounts for time of payment, or in discounts on quantity of merchandise sold, or to grant directly or indirectly, any discount, rebate, free goods, allowance or other inducement, excepting a discount not in excess of one per cent for quantity of liquor and wine, and a discount not in excess of one per cent for payment on or before a certain date.”

Appellant refers to a dictionary definition of “discrimination” which is “To make distinctions in treatment; show partiality (in favor of) or prejudice (against),” and he cites and relies on only one case, Canada Dry Ginger Ale, Inc. v. F & A Distributing Co., 28 N.J. 444, 147 A.2d 15. That case, however, is not helpful to appellant’s contention. New Jersey has a statute which provides that there shall be “no discrimination in the sale of alcoholic liquors by distillers * * * of nationally advertised brands of alcoholic liquors to duly licensed wholesalers of alcoholic liquors” in that state, and upon complaint the statute authorizes a hearing before the director of an administrative agency “to determine whether such refusal to sell is arbitrary or not.” If the director finds that the wholesaler has “the ability * * * to pay for such merchandise as ordered, he shall order the distiller * * * to complete the said sale of alcoholic liquor to the wholesaler.” The above case was not an action for damages, but was an appeal from the order of the director that the sale should be completed. There is no comparable statute in Missouri, and this case does not lend any support to plaintiff.

When reliance is placed upon the provisions of Section 311.332, plaintiff’s petition does not state a cause of action against defendant for the relief sought. The facts alleged do not show a violation of that statute. Section 311.332 does not make it unlawful for a wholesaler to refuse to sell its products to any particular retailer. It makes it unlawful only for a wholesaler to discriminate between retailers, or in favor or against a retailer (1) in price, (2) in discounts for time payment, and (3) in discounts for quantity of merchandise sold. It also makes it unlawful for a wholesaler to grant any rebate, free goods, allowances or other inducements, except as specifically authorized. The proscription of the statute is limited to the above. When, as here, “a statute enumerates the subjects or things on which it is to operate, or the persons affected, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned; * * 82 C.J.S. Statutes § 333; Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160; Parvey v. Humane Soc. of Mo., Mo.App., 343 S.W.2d 678. By no reasonable interpretation can it be held that Section 311.332 makes it unlawful for a wholesaler of intoxicating liquor to refuse to make any sale whatever to a particular retailer.

In addition, Section 311.332 is a criminal statute, and Section 311.338 provides that one who violates it shall be guilty of a misdemeanor. It also provides a penalty for a violation in the form of a suspension or revocation of the wholesaler’s license. This court has held “that a statute which creates a criminal offense and provides a penalty for its violation, will not be construed as creating a new civil cause of action independently of the common law, unless such appears by express terms or by clear implication to have been the legislative intent.” Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122. Assuming that we could in some manner, find that Section 311.332 proscribed the alleged acts of defendant, we can find no intention on the part of the Legislature, by express terms or by clear implication, to create a civil action for its violation.

We turn now to the contention that the petition states a cause of action without reliance on Section 311.332. Plaintiff asserts that even though as a general proposition Missouri recognizes the “single trader doctrine” (that one engaged in a private business may, in the absence of a statute to the contrary, buy from whomsoever he pleases and may sell, or refuse to sell, to whomsoever he will, as stated in State on the Information of Dalton v. Miles Laboratories, 365 Mo. 350, 282 S.W.2d 564, 571), the liquor business does not stand upon the same plane, in the eyes of the law, with other commercial operations, but as stated in State v. Wipke, 345 Mo. 283, 133 S.W.2d 354, it is “ ‘differentiated from all other occupations, and is thereby separated or removed from the natural rights, privileges, and immunities of the citizen.’ ” He then asserts that there is a conflict between the two foregoing principles, and that “the so-called ‘single trader doctrine’ does not apply to any phase of the traffic in liquor industry.”

A cause of action consists of at least two essential elements; the wrongful invasion of a right, and the privilege or power which law or equity gives to the injured person to seek and obtain redress. Schempp v. Davis, 201 Mo.App. 430, 211 S.W. 728; 1 Am.Jur.2d Actions § 46. While it is true that at common law combinations, contracts, and agreements which created, or tended to create, a monopoly were unlawful as being in restraint in trade, 58 C.J.S. Monopolies § 15; 36 Am.Jur. Monopolies, Combinations, etc. § 5, it is equally true that “In the absence of any intent or purpose to create or maintain a monopoly, a trader or manufacturer engaged in an entirely private business has the right to exercise his own independent discretion as to persons with whom he may deal, unless a refusal to deal with a person is part of an illegal conspiracy or combination.” 58 C.J.S. Monopolies § 49. See also State on the Information of Dalton v. Miles Laboratories, supra; Reisenbichler v. Marquette Cement Co., 341 Mo. 744, 108 S.W.2d 343; Dietrich v. Cape Brewery & Ice Co., 315 Mo. 507, 286 S.W. 38; United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992; Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277; 36 Am.Jur. Monopolies, Combinations, etc. § 24; 58 Yale Law Jour. 1121; 4 Restatement of Torts § 762. In order to find that by defendant’s refusal to sell anything to plaintiff there has been a wrongful invasion by defendant of a right of plaintiff, the Legislature must have created by statute a duty on the part of defendant to sell and a right in plaintiff to buy contrary to the general common law rule above set forth. It is true that traffic in intoxicating liquors is highly regulated, but plaintiff points to no regulatory statute (other than Section 311.332 which, for the reasons above stated, does not sustain plaintiff’s petition) which creates a right in plaintiff to buy from defendant when defendant exercises, without a violation of the conspiracy or anti-trust laws, its right to determine the persons with whom it shall deal or to whom it will sell its products.

Plaintiff cites only Canada Dry Ginger Ale, Inc. v. F & A Distributing Co., supra. However, the facts of that case, as previously set out, are so different that it provides no support whatever for plaintiff’s theory.

For the above reasons plaintiff’s petition fails to allege facts upon which relief may be granted.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

The foregoing opinion by STOCKARD, ,G, is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Julia F. FOELLER et al., On Exceptions of Wellsville Firebrick Company, a corporation, and New Florence Firebrick Company, a corporation, Respondents.
    No. 51228.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      Robert L. Hyder, Thomas E. Cheatham, Jefferson City, for appellant.
    Walter D McQuie, Jr., Montgomery City, William J. Kenney, Kenney, Stevens, Hill & Clark, Pittsburgh, for respondents.
   PRITCHARD, Commissioner.

In this condemnation case of a portion of land for the right of way for Interstate Highway 70 in Montgomery County, Missouri, respondents recovered judgment for $82,000 for the taking of 100,000 tons of their subsurface mineral rights to New Florence Flint clay. The clay, described as high quality, is used in the manufacture of superduty fire brick. Appellant contends that the judgment is excessive as a matter of law by $52,000. We thus have jurisdiction of the appeal.

By Point II, appellant insists that the trial court erred in overruling its timely motion to strike the opinion testimony of market value of respondents’ witnesses Weiss, McCarthy and Arthur on the ground that their opinions were not based upon proper elements of damage and had no correlation with the established market value of the undeveloped mineral property. Before we review the testimony of these witnesses we set out other background facts.

Although respondent New Florence Firebrick Company (herein called “New Florence”) once engaged in the manufacture of bricks, it now merely holds as its chief assets clay reserves which it leases exclusively to its sister corporation, respondent Wellsville Firebrick Company (herein called “Wellsville”). On May 1, 1922, New Florence acquired title from one Gilbert (its officer) to fire clay and flint rock deposits, and an easement for the mining thereof, to what was known as the Kobush 80 in Montgomery County, Missouri. This rectangular tract, lying north and south, formerly adjoined old U. S. Highway 40 which is now the north outer road to newly constructed Interstate 70. In the northwest corner of the tract are the clay deposits, the value of which is in controversy. They underly 3.18 acres, the total area taken, and an area to its south. It is not disputed here by appellant that there exists and was taken (actually and by rendering it unminable because of the necessity for subjacent support to the right of way) 100,000 tons of “New Florence Flint” fire clay which is usable in respondents’ business.

On April 2, 1962, New Florence leased to Wellsville said mineral rights, and such lease was subsequently extended, the last term of which extended beyond the date of taking, September 6, 1963. The consideration for the lease was that Wellsville should pay New Florence 30jé per ton for the fire clay removed thereunder. Wellsville, located 7 or 8 miles north of New Florence, is a refractories plant which produces about 100 different refractories products for the steel, metallurgic, glass and other types of heavy industry. The clay deposit in question lies about 3 miles south of New Florence, and has an overburden of sand, rocks, coal and dirt averaging 50 feet in depth. The procedure for mining clay, 20,000 tons of which are used by Wellsville each year, is first to remove the overburden by stripping down to the clay. The specific selections of clay are segregated at the pit into various types and qualities. It is not stockpiled, but is mined in small quantities, then hauled to Wellsville where it is ground and combined into what tests show are the proper percentages of materials, and then it is made directly into brick.

Mr. Russell Weiss testified that he is Vice President in charge of operations for Wellsville, and is Assistant Treasurer of New Florence. He has been employed for 30 years in the refractories business. Among others, one of his duties has been concerned with all acquisitions of clays. Clay mining is done generally within a 30-mile area in, around and about Wells-ville, with a larger proportion mined in Montgomery County. New Florence Flint clay is a true flint clay with very low impurities and a relatively high melting point; it has plasticity — the ability to be formed of itself without the addition of other more or less impure types of clay; it is used for superduty and high fired superduty refractories products. It is found mostly in an area centered on the town of New Florence, and within an area of 5 or 6 miles to its south, with some little bit to the north of the town. The clay deposit is a reserve which has been procured, drilled and proved as to quantity and quality, and which is awaiting mining at the earliest date upon which the type of clay is required, and which could not be obtained elsewhere. Wellsville has reserves because experience has indicated that it is becoming increasingly difficult to find high quality clays such as is in the deposit.

Concerning initial acquisitions of clay deposits, and arrangements with landowners therefor, Mr. Weiss testified that at the time exploratory drilling is started, a lease is made, or a stipulation as to payment, for the right to go upon, mine and remove any clay found. For New Florence Flint clay the price, depending on the location, number of feet of overburden and other factors, will normally be in and around 300 per ton. The lease-contract agreement is entered into usually before any knowledge is available as to quality or quantity of the clay. Testing of the Kobush 80 began in 1958 and was completed early in 1962.

Mr. Weiss testified that as a part of his duties as Vice President of Wellsville he takes part, and has for 20 years, in the acquisition of minerals and mining rights and the negotiating of leases and instruments called warranty deeds for fire clay, being directly concerned therewith. He has discussed the question of acquisition of mining rights with persons in other refractories plants, and thought that, based on his own job duties and contact with persons in other plants, he had an idea of the value of fire clay, mining rights and minerals. He was then permitted to testify that in his opinion the fair and reasonable market value of the minerals and mining rights in and under the Kobush 80 immediately prior to the taking was about $300,000, and after the taking the value was $6,000 for 2,000 tons of clay remaining. He was then asked what factors he took into account in arriving at his valuation before the taking of the property. He answered that there were a great number of factors in addition to the 300 per ton which would have to be paid for royalties. The first mentioned was the location of the property — the proximity of the deposit to plants, in this case it being almost centrally located from almost all of the refractories companies located in east central Missouri. The second was the very important factor of scarcity of the type of clay — “[E]ach year it assumes a greater and greater importance. The difficulty of finding a pit of this size is very much greater in 1963 than it would have been five years previous.” The third factor was the quality of the clay, in this case excellent. “Any of the refractories plants in East Central Missouri would consider this to be an attractive pit and valuable mining property.” The fourth factor was the overburden on the clay deposit, in this case around 50 feet. This would be somewhere around 300,000 tons as against a recovery of clay of 100,000 tons, a 3 to 1 ratio. The instant property contains less overburden than some properties presently being mined. The fifth factor entering into the matter of the market value of the clay was testified by Mr. Weiss to be the costs of finding new clay.

On cross-examination Mr. Weiss was referred to answers to interrogatories made by him in which he had listed the sales, leases or transactions he believed to have any value in determining the fair market value of the condemned pit. He was asked if he considered any sales or acquisitions in arriving at his valuation aside from those listed on the interrogatory answer, to which he answered “I would say no, no other sales or acquisitions.” The interrogatory answer showed that Wellsville had four properties leased “of 25 cents, 25 cents, 10 cents and 25 cents and 15 cents and 30 cents per ton, is what you pay for it, isn’t it?” Mr. Weiss answered, “Those are the royalty payments, yes.” He testified further that he based his opinion on a great variety of factors, and prefaced those by saying “In addition to the royalty payments.” In acquiring mining rights from farmers he considered the proximity factor and the overburden, but not the scarcity and quality of the clay, 250 and 300 is considered to be a relatively standard and fair royalty payment. For 100,000 tons of clay $30,000 would be all the landowner would ever get.

Robert J. McCarthy is Executive Vice President of respondent companies. He had been continuously employed in the firebrick business since 1939, going with respondents in 1960. He was familiar with the Kobush 80 and the fire clay pit in the northwest corner thereof, and had seen all the maps and drill record's on the property. Harbison-Walker Company was mining similar clay on property adjacent to the Kobush 80 and all companies were prospecting and mining in the area where the New Florence clay is found. 30$ a ton royalty is the sum that is set forth in the lease arrangement between New Florence and Wellsville. Royalty payments to landowners are usually, and in respondents’ case always, arranged prior to any drilling or testing. The figure of 30$ per ton is the current accepted royalty in the refractories industries in the area for this particular kind of clay under these particular conditions. The 30$ royalty relates to economic value. It is the first step of a long series of things which happen to determine value. He testified further that he was acquainted with the reasonable market values of minerals in place, under the ground, known as New Florence clay and the mining rights attendant to those minerals in place. The cost of finding clay, related to the number of tons discovered, would be in excess of $1.00 per ton. He gave his opinion that the value before the taking of the minerals was $306,000, afterward $6,000. The factors considered by him were: The 30$ per ton royalty paid; the total quantity of clay; the kind or quality of the clay, and that pits of this size are almost unheard of in the New Florence area which is the only place this kind of clay is found; the proximity of the clay deposit to other refractories plants in the area (because “the farther away you have to go to get it, the more its going to cost you to haul it back to your plant”); the cost of finding clay.

On cross-examination McCarthy testified that his opinion was not based in any way on any sales or acquisitions of any kind of New Florence flint other than the 30$ royalty figure. He did not personally know of any other transactions or sales of New Florence flint, by deed, other than the straight royalty arrangements.

J. B. Arthur, a consultant to Kaiser Refractories at Mexico, Missouri, testified that flint clays in the New Florence vicinity are now very scarce — they are getting pretty well worked out and used up. “There are still reserve deposits owned by all of the larger companies which have not been mined.” He gave his opinion that the market value of the clay deposit was $135,000 before the taking and nothing thereafter. He testified that he knew what the clay was worth delivered at plants in the district, and what they were paying for it; the quantity and quality of the clay; the overburden; its location from Mexico, Van-dalia, Farber, Wellsville and Fulton, where the firebrick plants are located; what the rates are for hauling the clay there; what the going rates are for mining the clay — taking the burden off and hauling the clay in. He testified further that “I know just about exactly what they are paying for flint clays delivered in these plants and putting those altogether, I considered the worth of it there, that is in proportion to all of those things added together.”

Under the argument of Point II, appellant says that loss of business or future profits is not compensable. It cites Accomac Realty Co. v. City of St. Louis, 347 Mo. 1224, 152 S.W.2d 100; St. Louis Housing Authority v. Bainter, Mo., 297 S.W.2d 529; Tate v. State Highway Commission, 226 Mo.App. 1216, 49 S.W.2d 282. These cases do set forth that very general rule, but we are unable to ascertain, and appellant nowhere points out, how they are applicable to the case at bar. In our reading of the record, and in the briefs of the parties, we do not find any allusion or reference in the testimony of any witness that the damages for taking was based upon respondents’ loss of profits. Appellant says, “Further, the increased cost of doing business caused by condemnation is not a recoverable item of damages.” We find nothing in the record that the increased cost of doing business was a factor taken into account by witnesses unless it could be said that the cost of finding clay deposits, as testified to by two witnesses, was improperly used as a factor. Appellant does not specifically so state. Certainly there was testimony that there is considerable expense connected with locating, testing and evaluating clay deposit, and such expense would be a factor in determining the market value of the instant clay deposit. Appellant’s cited cases, State ex rel. State Highway Commission v. Cox, 336 Mo. 271, 77 S.W.2d 116, and State ex rel. Kansas City Power and Light Company v. Salmark Home Builders, Inc., Mo., 375 S.W.2d 92, have no such issue.

Although appellant’s third argument in its brief relates to the well-established rule that market value is not the value to the condemnee but the price the property would bring if offered for sale on the market, it ties that rule to no testimony in the case. All three of respondents’ witnesses testified that the damages they assessed related to market value. None testified that such damages related to the value of the clay property to condemnees.

The parties join in an issue in their briefs on the general rule (see Union Electric Company v. Jones, Mo., 356 S.W.2d 857; Missouri Edison Company v. Gamm, Mo.App., 379 S.W.2d 166) that “Mineral deposits are not to be valued separately but only as they enhance the value of the land.” Such is the rule where there is no severance into separate estates of surface and mineral rights. Where there is a mineral deed, the subsurface rights con veyed create a separate, distinct interest apart from the surface rights. See Gordon v. Million, 248 Mo. 155, 154 S.W. 99, 101 [1]; Young v. Young et al., 307 Mo. 218, 270 S.W. 653, 654 [1], 39 A.L.R. 734; Groves v. Terrace Mining Company, Mo., 340 S.W.2d 708, 710 [3, 4]; 4 Nichols, Eminent Domain, 3rd Ed., § 13.22 [1], p. 422. Appellant admits in its brief that respondents have a property interest for which compensation is due in addition to the surface interest previously obtained from another party. In the trial court both parties treated the condemned mineral rights to the clay as an estate separate from the surface, and the issue was the value of the clay in place.

One real and meritorious question in this case is whether the fact that two of the witnesses, Weiss and McCarthy, did not base their opinions upon evidence of any sales of New Florence flint clay on a market, but gave other factors as a basis for such opinions, renders their testimony inadmissible upon appellant’s timely objection thereto.

The evidence establishes that the instant mineral deposits consist of rare, high quality New Florence flint clay. Companies in east central Missouri engaged in the refractories business are in competition for clay deposits of this type. Consequently, once the mining rights and easements therefor are acquired, the companies do not sell them, but hold them in reserve for future use in the production of the heat resistant fire bricks for various industries requiring them. There can be no question but that there is an existing demand for this type of fire brick clay in the area of all-the refractories plants. Wellsville itself uses 20,000 tons per year of New Florence flint clay. The highest and best use of the clay for superduty fire brick is established by the evidence, as is also the fact that proved clay deposits such as this have not been bought and sold in place upon the market. It is not disputed that the amount of usable clay is 100,000 tons and that it has some value to respondents for which they are entitled to compensation.

In United States v. 287.89 Acres of Land, Etc. (U.S.D.C.Pa.), 241 F.Supp. 456, there was involved the condemnation of reserve stock clay deposits for which there had been no sales in the vicinity. The court there said, loc. cit. 241 F.Supp. 462 [1, 2], “The law seems well settled that opinions of witnesses as to value of minerals in place need not be based on sales of the same or similar mineral deposits.” The court quoted from United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336, 147 A.L.R. 55 (loc. cit. 241 F.Supp. 462), “‘Where, for any reason, property has no market resort must be had to other data to ascertain its value; and, even in the ordinary case, assessment of market value involves the use of assumptions, which make it unlikely that the appraisal will reflect true value with nicety. It is usually said that market value is what a willing buyer would pay in cash to a willing seller. Where the property taken, and that in its vicinity, has not in fact been sold within recent times, or in significant amounts, the application of this concept involves, at best, a guess by informed persons.’ ” This case is in point with the case at bar, and we approve the statement of the court (loc. cit. 241 F.Supp. 463), “Although the quality of the evidence requires considerable speculation and conjecture, the fact finder is nonetheless obligated to reach a standard of value dictated by the nature of the case. ‘In this estimation the owner is entitled to have consideration given’ to the capabilities of the clay and the present and expected future demand therefor, ‘and to any and every use to which it may reasonably be adapted or applied. And this rule includes the adaptation and value of the property for any legitimate purpose or business, even though it has never been so used, and even though the owner has no present intention to devote it to such use.’ 4 Nichols, Eminent Domain, 4th ed., § 12.2 [3], pp. 61-62; Boom Company v. Patterson, 98 U.S. 403, 25 L.Ed. 206.” See also Phillips v. United States (9th Cir.), 243 F.2d 1; United States v. Silver Queen Mining Company (10th Cir.), 285 F.2d 506.

The factors given by all witnesses, Weiss, McCarthy and Arthur: the proximity to refractories plants, the scarcity of the clay, its quality and use of mining, the costs of finding it, and the original cost of the royalty to the landowner, are all matters which a willing seller would urge upon and bargain with a willing buyer if the sale thereof were contemplated. Certainly the jury could find, based upon these reasonable factors, that there exists a market value for the clay over and above the initial royalty payments. Witness Arthur stated additionally that he knew what the clay was worth delivered at the plants in the district, the quantity and quality of the clay, its overburden, its location from plants, hauling rates, and taking the overburden off and hauling the clay. The reasonable construction which the jury could place upon his testimony is that the clay was worth $135,000 in place (the value at the plants, less hauling and mining expense, resulting in the value at the mine), and not its value at refractories plants after mining and hauling expense. All of these witnesses testified to their knowledge of acquisition of clay deposits, the customs of the refractories industries in holding and using the clay, that they knew of the instant deposits, and that in their opinions if had value, to which they were permitted to testify. As was said in Montana Railway Company v. Warren et al., 137 U.S. 348, 11 S.Ct. 96, 34 L.Ed. 681, “It is difficult to lay down any exact rule in respect to the amount of knowledge a witness must possess, and. the determination of this matter rests largely in the discretion of the trial judge. (Citing cases) The witnesses whose testimony is complained of all testified that they knew the land and its surroundings, and many of them that they had dealt in mining claims situated in the district, and had opinions as to the value of the property. It is true some of them did not claim to be familiar with sales of other property in the immediate vicinity, and the want of that means of knowledge is the specific objection made in the supreme court of the territory to the competency of those witnesses. But the possession of that means of knowledge is not essential. It has often been held that farmers living in the vicinity of a farm whose value is in question, may testify as to its value, although no sales have been made to their knowledge of that or similar property. Indeed, if the rule were as stringent as contended, no value could be established in a community until there had been sales of the property in question, or similar property.” The trial court did not err in refusing to strike the opinion testimony of these three witnesses, and appellant’s Point II is overruled.

By Point III appellant contends that the trial court erred in giving Instructions Nos. 1, 2 and 3 for respondents and refusing appellant’s Instructions Nos. 8, 9 and 10, for the reason that respondent’s given instructions authorized the jury to value mineral deposits separately and did not limit the value to the amount the deposits enhance the value of the land.

Instruction No. 1 told the jury that appellant had taken the fire clay and mining rights of respondents under 3.18 acres of land and a drainage easement under .18 acres of land under which respondents owned the fire clay and mining rights, and that the verdict must be for respondents, and that in assessing just compensation the jury should consider all the evidence under the instructions of the court. The instruction then told the jury that such just compensation is the difference in the fair market value of the fire clay and mining rights immediately before and immediately after the appropriation.

Instruction No. 2 told the jury that it might take into consideration the value of the fire clay and mining rights actually appropriated, and the damages to the remainder of such rights by reason of the appropriation and construction of the highway.

Instruction No. 3 told the jury that the term “fair market value” meant the actual value of the fire clay and mining rights in and under the tract of land, that is, “the price which such fire clay and mining rights would bring when offered for sale by one willing but not obligated to sell them, and is bought by one willing or desirous to purchase them but is not compelled to do so.” This instruction went on to tell the jury that the fire market value did not mean a forced sale, but what respondents, wanting to sell, could have obtained upon the market from parties who wanted to buy on September 6, 1963, and would give them the full value for the highest and best use of such fire clay and mining rights.

Refused Instruction No. 8 told the jury that the damage to respondents was the difference in the fair, reasonable market value of the whole of respondents’ property on the date of appropriation and the fair, reasonable market value of the remaining portions of the property in its then condition. This is essentially the same definition as is set out in Instruction No. 1, but with the word “property” substituted for the words “fire clay and mining rights.”

Refused Instruction No. 9 told the jury that the sole property rights appropriated were the ownership and easement for mining and removal of fire clay, and that the fair, reasonable market value of respondents’ property rights in the land was the fair reasonable market value which the fire clay and flint rocks and appurtenant easements added to the market value of the land.

Refused Instruction No. 10 defined “fair market value” essentially the same as Instruction No. 3, substituting the word “property” for the words “fire clay and mineral rights.”

We hold that the trial court did not err in the giving of said instructions and in the refusal of appellant’s requested instructions. As stated above, the sole interest of respondents was the fire clay deposit and the right to mine it. It was a separate estate from the surface right, the interest in which had been previously acquired by appellant separately. In 293.080 Acres of Land, Etc. v. United States (W.D.Pa.), 169 F.Supp. 305, 311, the court quoted from the Georgia Kaolin Co. v. United States cases [5 Cir., 214 F.2d 284, 286] that “ ‘there can be no recovery for both the value of the land and its mineral deposits as two separate items,’ ” and then stated that the rule “refers to mineral deposits in place in which the title to the mineral is in the same person as the fee title.” See again the exception to the general rule where the mineral deposit is itself subject to condemnation, 4 Nichols, Eminent Domain, 3rd Ed., § 13.22 [1], p. 422. We find no reference in the instructions authorizing the valuation of the in-place minerals based on the price they would bring after mining and exploitation as argued. In this “separate estate” situation, it would have been improper to limit the value of the clay deposits to that amount their value would add to the value of the bare land, as submitted in appellant’s refused Instruction No. 9. Point III is overruled.

Appellant says that the verdict is excessive and is not supported by the evidence, and that all the competent, admissible evidence shows that the respondents are entitled to a maximum of $30,000. The argument developed under this Point IV is tied to the amount which respondents’ witnesses testified was paid by it and competing refractories companies in the acquisition of clay mining rights, 300 per ton. Appellant argues: (1) “Is it not fair for the clay companies to sell through condemnation for the same price they themselves have set as the maximum market value they would pay for a warranty deed for the identical interests ? ” ; and (2) “While there may be a subjective value in excess of 300, while there may be opportunities to produce profit over 300, while there may be income lost and business incentive frustrated, this is the maximum market value and this amount only reached when ‘four or five or six firebrick manufacturers are bidding against each other for the right to go in and mine.’ This is the market place, the established market value. This is what the citizens of Missouri receive for undeveloped New Florence clay under conditions most advantageous to them.”

We have already ruled that the testimony of witnesses Weiss, McCarthy and Arthur was competent. The question is whether respondents are bound by their own evidence of the amounts paid landowners for the right to go upon land and remove the clay. We rule against appellant on this point. Although the going, usual price paid landowners for initial mining rights is some evidence of value if not too remote, it is not conclusive. City of St. Louis v. Turner, 331 Mo. 834, 55 S.W.2d 942, 945 [3]; State ex rel. State Highway Commission v. Henderson, Mo.App., 381 S.W.2d 10, 11 [1, 2], The jury here could reject that evidence, and respondents are not bound by the evidence as to what is generally paid landowners for the right to mine fire brick clay. Especially is this true in view of the witnesses’ testimony that a lease-contract is entered into before any knowledge is available as to quality or quantity of the clay; that the amounts paid were royalty payments; “the 300 royalty relates to economic value. It is the first step in a long series of things which happen to determine value”; that the 300 a ton royalty does not have any effect on what the clay is worth (witness, Arthur). Each witness testified that the royalty payment was a factor considered as bearing on market value. This initial payment for mining rights does not bind respondents thereto, but they were entitled to show, as they did, other factors bearing upon the market value of the clay for its highest and best use: superduty fire brick. The jury was thus entitled to consider also the location and size of the pit, proximity to refractories plants, scarcity, overburden, and cost of finding and proving clay deposits.

The last point we consider is appellant’s Point I, in which it contends that the trial court erred in sustaining respondents’ objections to Interrogatories 4, 5, 6, 7 and 8, which objections were filed more than 10 days after service thereof. We attach no importance to the delay in objecting for more than 10 days as provided by Civil Rule 56.01, V.A.M.R. inasmuch as appellant did not itself comply with Civil Rule 61.01 by moving for an order compelling answers. The matter was ruled by the trial court and the question is whether appellant was entitled to have the interrogatories answered, and if so, was the trial court’s failure to require answers prejudicial to appellant?

Interrogatories objected to were as follows: “(4) Give the County, Township, Range, Section, and Quarter-Quarter section of each property where Wellsville, New Florence, or Chicago companies own mineral rights and the consideration paid for their rights. (5) Give the above information on all parcels in which the above companies have any mineral leases. (6) List the drillings or tests and dates conducted on those parcels listed in questions numbered 4 and 5, and the approximate quality and quantity of clay in each. (7) Indicate which of the above pits are presently being mined. (8) List all the acquisition of fire clay by outright purchase, advance royalty agreement or lease of Wells-ville, New Florence or Chicago companies, including the following information: (a) Type of acquisition, purchase, lease, advance royalties, etc. (b) Price, (c) Approximate amount of clay in tons, (d) Type of clay, (e) If any option was given in advance, the date of said option, (f) Date and type test made, (g) Result of test; type clay; approximate tons, (h) Date of acquisition, (i) Consideration paid.”

The relevant inquiry, for which appellant did obtain answers, related to the acquisition and mining of New Florence flint clay, the type in issue in this case. It is obvious that the questions objected to had no relevancy to such issue, and if answers were required, it would have imposed a great burden upon respondents to inspect their records, and those of a parent Chicago company to provide the extensive requested information, wherever located and whatever type of clay. See State ex rel. the Kroger Company v. Craig, Mo.App., 329 S.W.2d 804, 810. The trial court did not err in sustaining the objection to the above interrogatories. Point I is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

The foregoing opinion by PRITCHARD G, is adopted as the opinion of the Court.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Sam GREENWOOD, Appellant, v. Lloyd J. SCHNAKE, Respondent.
    No. 51117.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.

      Haskell Imes, Kansas City, for appellant.
    Claude McFarland, Kansas City, for respondent.
   HOUSER, Commissioner.

This is an appeal from an order of the circuit court dismissing without prejudice a petition for damages for personal injuries and to property, alleged to have been sustained as a result of a vehicular collision. We have jurisdiction because plaintiff prayed for damages in a sum in excess of $15,000, namely, $15,655.08.

The sole question on this appeal is whether codefendant Lloyd J. Schnake waived the question of the jurisdiction of the circuit court over his person and entered his appearance generally by reason of the several applications, pleadings, and motions he filed and by taking depositions and other steps in preparation for a trial on the merits.

These are the salient facts:

On October 6, 1962 Sam Greenwood, a resident of Jackson County, filed suit in that county, joining as codefendants Hubert Sandridge, a resident of Jackson County, and Lloyd J. Schnake, a resident of Lawrence County. Defendant Sandridge filed an answer on October 26.

On November 15 Schnake filed an application for 30 days additional time, until December 16, within which to plead, “reserving the right to assert all defenses accruing to him that might have been pleaded on the original return date.” On December 15, with the same reservation of rights, Schnake filed an application for an additional 30 days, until February 15,1963, within which to plead. Both applications were granted.

On February 15 Schnake filed two separate motions: a motion to make the petition more definite and certain and a motion to quash service of summons and process. The former was made “without waiving” his motion to quash. In the latter Schnake alleged that he was “appearing for the purpose of this pleading only.” The court overruled the motion to quash, sustained the motion to make more definite and certain, and gave plaintiff 15 days to plead. Plaintiff timely filed an amended petition and defendant Sandridge filed an amended answer.

On March 14 Schnake, “reserving his prior objection to the jurisdiction of the Court,” directed interrogatories to code-fendant Sandridge.

On March 15 Schnake filed an answer. In the first paragraph Schnake challenged the jurisdiction of the court, alleging that he was served with summons and process in Lawrence County; that defendant Sand-ridge, a Jackson County resident, was joined by plaintiff as a codefendant solely for the purpose of improperly establishing the venue of the case in Jackson County; that plaintiff never did and did not then have a cause of action against Sandridge and that joining Sandridge as a codefendant was not done in good faith, was a fraud upon Schnake and deprived him of due process of law.

On May 18 Schnake filed a verified motion for a continuance in which he made no reservations with reference to jurisdiction. This motion was sustained. The cause was set for trial on June 8.

On June 5 Sehnake took the depositions of plaintiff and codefendant Sandridge. Based upon plaintiff’s admissions in his deposition Sehnake on June 8 filed a new motion to dismiss plaintiffs petition or in the alternative to quash service of summons or process in which, after stating the substance of the testimony adduced in the depositions, Sehnake alleged that from plaintiff’s admissions and the uncontradicted testimony of the litigants plaintiff never did have and did not then have a cause of action against defendant Sandridge and therefore as a matter of law the joinder of Sandridge was only pretensively made for the purpose of procuring venue in Jackson County and to cause the court to acquire jurisdiction over the person of Sandridge, who is not a proper party, and through him jurisdiction over Sehnake, and that to require Sehnake to defend this case in Jackson County would greatly prejudice him and deprive him of due process of law. On September 28 when the case came on for trial Sehnake filed a motion to produce certain medical evidence. This motion made no reservation with respect to the jurisdictional question. The court took up Schnake’s motion to dismiss or in the alternative to quash service of summons or process, sustained the motion and dismissed the case as to defendant Sehnake without prejudice. Thereupon the court dismissed the case against defendant Sandridge for want of prosecution.

Plaintiff’s sole point is that the court erred in dismissing the petition for lack of jurisdiction over the person of the defendant Sehnake. The contention is that Sehnake waived any defects in the service of process and voluntarily consented to the jurisdiction of the court because first, he “went to great lengths” in the use of discovery procedures in preparing for trial, by procuring a physical examination of plaintiff, filing interrogatories, taking plaintiff’s and codefendant Sandridge’s depositions and filing a motion to produce medical records, whereby he entered and probed into the merits of the case, indeed, completely prepared for trial; second, he filed a motion to make more definite and certain, which was “directed towards the merits of the case,” simultaneously with a motion to quash; and third, he made a statutory application for a continuance for the purpose of obtaining further time to prepare for trial and joined in a further continuance of the case from June 8 to September 30. It is plaintiff’s position that to avoid a general entry of appearance it was necessary for Sehnake to “diligently pursue his venue question” by acting immediately by filing his motion to quash before the return date; that Sehnake should have reserved or mentioned the jurisdictional question in both applications for extensions of time within which to plead and each time he applied for or consented to a continuance and that, having failed to continuously assert and reassert the objection, he is in court. It is plaintiff’s further position that Sehnake is in court by his affirmative acts of filing a motion to make the petition more definite and certain, filing interrogatories, taking depositions, moving for a physical examination and to produce records, and applying for and agreeing to continuances, because thereby he probed into the merits of the case and took or agreed to take steps or proceedings beneficial to himself other than steps contesting the jurisdiction of the court.

Prior to the enactment of the new civil code in 1943 the foregoing acts and omissions would have amounted to a waiver of a defendant’s objections to, and would have constituted the entry of a general appearance conferring, jurisdiction over his person. Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92; Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29; Columbia Brewery Co. v. Forgey, 140 Mo.App. 605, 120 S.W. 625; Jones v. Church, Mo.App., 252 S.W.2d 647 (these are the cases cited by appellant); and see the several cases cited in the well-considered article, “Special Appearances in Missouri,” by Prof. John S. Divilbiss, (1962) 27 Mo.Law Review 533, 534.

The enactment of the new code and the promulgation of the Rules of Civil Procedure have changed the law and have “considerably lightened the burden of one who wishes to question the jurisdiction.” State ex rel. Ballew v. Hawkins, Mo.App., 361 S.W.2d 852, 858 [12].

This is the existing law on the subject: Objection to lack of jurisdiction over the person may be raised by motion, whether or not the same may appear from the pleadings or other papers filed in the cause. Civil Rule 55.31(a), V.A.M.R.; § 509.290, V.A. M.S. The motion raising the objection of lack of jurisdiction over the defendant’s person may now be filed along with motions pertaining to other matters, Civil Rule 55.-37; § 509.340, and a motion raising this objection may be filed simultaneously with pleadings, Civil Rule 55.36; § 509.330, or it may be joined with other motions provided for and then available to the defendant, Civil Rule 55.37; § 509.340, without waiver of the objection of lack of jurisdiction over the person. Having properly and timely filed his motion raising the jurisdictional question a defendant may thereafter plead over, prepare for trial, utilize all of the procedures available in preparation for trial, apply for or consent to continuances, changes of venue, etc., and actually try the case on the merits, Civil Rule 55.37; § 509.-340, without the necessity of making the choice, upon the overruling of the jurisdictional motion, of withdrawing from the action and suffering a default judgment or waiving the jurisdictional question. This new concept has been judicially recognized in various applications of the more enlightened rule. Johnson v. Fire Ass’n of Philadelphia, 240 Mo.App. 1187, 225 S.W.2d 370, 373 [7]; Durwood v. Dubinsky, Mo.Sup., 291 S.W.2d 909, 915 [4]; State ex rel. Ballew v. Hawkins, Mo.App., 361 S.W.2d 852, 858, 859; Elrod v. Lafayette Elevator Co., Mo.App., 379 S.W.2d 852 [5].

A defendant may perform these acts and thus enter and probe into the merits of the case without the necessity of making the time-honored “special appearance” or reserving the jurisdictional point at each stage of the procedure. Having once hoisted the flag at the beginning of the journey a litigant over whose person a court lacks jurisdiction need not continuously wave the flag at every way station along the route.

Note well, however, that a defendant objecting to lack of jurisdiction over his person should promptly file the motion raising the question. Such a motion must be made within the time allowed for responding to the opposing party’s pleading, Civil Rule 55.36; § 509.330, and if not made within the time therein limited the party waives all objections to jurisdiction then available to him, by the express provisions of Civil Rule 55.37 and § 509.340. Although superfluous, we add that a party whose jurisdictional motion is overruled, desiring a review of the question, must take all of the steps necessary to preserve the matter for appellate review, including the raising of the point in his motion for new trial.

Defendant Schnake properly and promptly raised the jurisdictional question at the earliest possible moment, within the time allowed for responding to the plaintiff’s petition. Having thus raised the objection, his subsequent participation in the various procedures described above did not constitute a waiver of his original objection to the jurisdiction of the court over his person and did not constitute the entry of a general appearance.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: WELBORN, Commissioner. DONNELLY, Judge

text:
    William D. CURE and Ernest F. Linhardt, d/b/a Cure-Linhardt Construction Company, Appellants, v. CITY OF JEFFERSON, Respondent.
    No. 51312.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    Tweedie Fisher, Jefferson City, for appellants.
    Thomas P. Rose, P. Pierre Dominique, Jefferson City, for respondent.
   WELBORN, Commissioner.

This is an action by the general contractors under a contract with the City of Jefferson for the construction of a parking facility. The petition sought $62,898.96 for removal of rock in excavation for the project. A judgment in favor of the city upon its motion for summary judgment was reversed by this court for the reason that the cause was not properly determinable under such procedure. 380 S.W.2d 305. On remand, trial before a jury was held and, at the close of plaintiffs’ case, the court sustained the city’s motion for a directed verdict. After the contractors’ motion for new trial had been overruled, this appeal was taken.

As upon the prior appeal, the problem presented is whether or not, under the contract with the city, the contractors were entitled to be compensated at unit prices specified in the contract for the removal of rock or whether recovery should be denied for failure of the contractors to give notice to the city of such work in accordance with terms of the contract dealing with “changes in the work” and “claims for extra cost.”

The contract (on “(t)he Standard Form of Agreement Between Contractor and Owner for Construction of Buildings Issued by The American Institute of Architects for use when a Stipulated Sum Forms the Basis of Payment”) was for a lump sum of $301,730.64 “subject to additions and deductions provided therein.”

The specifications for excavation, incorporated by reference in the final contract, called for bidders to “include removal of 300 cubic feet of rock as a part of the base bid * * *.” The specifications further stated: “Material to be excavated is assumed to be earth and materials that can be removed by power shovel. If rock * * * is encountered, the contract amount shall be adjusted in accordance with unit prices * * *.” The bid form submitted by plaintiffs, likewise incorporated in the final contract, fixed a unit price of $2.00 per cubic foot for rock excavation of more than 300 cubic feet and $3.00 per cubic foot for less than 300 cubic feet. The contractors rely primarily on these provisions.

The city, on the other hand, contends that recovery is barred because the contractors failed to comply with the “General Conditions of the Contract” dealing with changes in the work and claims for extra cost. Article IS of the printed A. I. A. Standard Form of “General Conditions of the Contract” gave the city the right to order extra work or to make changes, but any such work involving extra cost required a written order “from the Owner signed or countersigned by the Architect, or a written order from the Architect stating that the Owner has authorized the extra work or change, and no claim for an addition to the contract sum shall be valid unless so ordered ■* *

Article IS also provided: “Should conditions encountered below the surface of the ground be at variance with the conditions indicated by the drawings and specifications the contract sum shall be equitably adjusted upon claim by either party made within [S days] after the first observance of the conditions.”

Article 16 provided: “If the Contractor claims that any instructions by drawings or otherwise involve extra cost under this contract, he shall give the Architect written notice thereof within [5 days] after the receipt of such instructions, and in any event before proceeding to execute the work, * * * and the procedure shall then be as provided for changes in the work. No claim shall be valid unless so made.”

Our reversal upon the previous appeal of the summary judgment in favor of the city was based upon the premise that the contract, considered as a whole, was not so clear and unambiguous that failure on the part of the contractors to comply with Articles 15 and 16 precluded, as a matter of law, recovery by the contractors. Our view was that whether or not the rock excavation in excess of 300 cubic yards was a “change in the work” or whether or not the contractors’ claim was a “claim for * * * extra cost” within the meaning of the contract could not be determined without resort to extrinsic evidence.

It is our conclusion that the evidence adduced by plaintiffs demonstrated the inconsistencies and ambiguities of the contract documents which we anticipated upon the prior appeal. According to plaintiff Cure, he examined the core drillings made at the construction site and incorporated in the specifications and concluded that excavation to the levels required' by the plans would obviously involve the removal of more than 300 cubic feet of rock. Other contractors testifying on behalf of plaintiffs testified that they reached the same conclusion. Cure testified that he did not, however, before submitting his bid, endeavor to estimate the exact amount of rock which might be expected. As directed by the specifications, he accepted the arbitrary assumption that 300 cubic feet of rock were to be removed, submitted his bid on such basis and relied upon his unit price quotation to take care of rock removal in excess of 300 cubic feet. The fact that the contract was on a printed A. I. A. form for a “stipulated sum” contract would not, contrary to the contention of the city, make such an assumption on the part of the contractors contrary to the terms of the contract documents. The contract expressly provided that the contract price was “subject to the additions and deductions provided therein.” The provisions of the specifications for compensation for rock removal at unit prices certainly could reasonably be considered an addition provided by the contract.

Further evidence that the formal printed contract contemplated adjustment of the contract sum by unit price application appears from the printed language of Article 3, relating to the contract sum, and reading, in addition to the language above referred to as follows: “Where the quantities originally contemplated are so changed that application of the agreed unit price to the quantity of work performed is shown to create a hardship to the Owner or the Contractor, there shall be an equitable adjustment of the Contract to prevent such hardship.”

The specifications did state that the material to be excavated was “assumed to be earth that can be removed by power shovel.” However, plaintiffs’ testimony showed that such assumption was contrary to the facts revealed by the site drillings, a part of the specifications. The fact that inclusion of removal of 300 cubic feet of rock was directed to be made in the bid and that unit prices were required to be fixed for rock removal might well indicate that the city’s architects who prepared the specifications were aware that rock would be encountered at the site.

Plaintiff Cure testified that, when work on the project was undertaken, the overburden on the site was removed, revealing rock consistently with the drilling report, except that at one test hole, the drilling report showed rock at a level 12 inches lower than that encountered by plaintiffs. By means of a level, elevations were shot as the rock was removed and plaintiffs’ calculation of the volume of rock removal was based upon their records so compiled. Plaintiffs introduced testimony that the material removed was rock within the meaning of the specifications.

The contractors admitted that no effort was made to obtain a written order from the city authorizing removal of rock in excess of 300 cubic feet. According to Cure, after the overburden was removed, he went over the site with the city’s architect and pointed out locations in which rock had been encountered. He also obtained permission of the city engineer to blast the rock formation with dynamite to facilitate its removal. The city’s architect was on the site from time to time as the removal progressed. The rock excavation took six weeks. On October 17, 1961, several weeks after completion of the excavation, plaintiffs submitted to the architect a “change order” request, as follows: “We request a change order for the following item as per contract: Partial Billing, 15,000 cubic feet of rock excavation at $2 a cubic foot, $30,000.” On October 26, the architect advised the contractors that, since they had not asked for a change order before proceeding with the work and did not give the city an opportunity to examine the material which the contractors classified as rock, the request was turned down. On October 26, the contractors submitted their billing for the entire amount removed and the amount here sued for, but payment was refused.

The city contends that the contractors, by their conduct, construed the contract to require a change order and prior consent by the city to any work which involved an addition to the contract price. Plaintiff Cure did testify that on five or six occasions the contract sum was adjusted through change orders initiated by the contractors. The following appears in the interrogation of Cure:

“Q My question was: It was your interpretation of this contract that for any work which was covered in the unit prices above the contract sum, that you had to ask for a change order and have it approved before you were entitled to be paid?
“A To get the contract sum adjusted; yes, sir.”

However, Cure testified that as to items other than rock excavation which were covered by unit prices, he did the work without prior approval and was paid at unit prices. He referred specifically to pressure grouting for which $7900 was received in addition to the contract sum. The specifications called for the lump sum bid to “assume” the use of IS cubic feet of grouting for each foundation pier. The specifications further called for unit prices for pressure grouting in excess of and less than the base bid. The plaintiffs’ bid specified $4.00 per cubic foot for excess and $1.00 per cubic foot for less than the base bid. If, as Cure testified, the contractors were compensated for the pressure grouting without prior approval of the work by the city, the construction of the contract in that regard by both the city and the contractors would appear to be consistent with the position here taken by the contractors.

The city points out that, before the work was begun, a conference, attended by the mayor, the architect and Cure was held, at which the pressure grouting cost was discussed and apparently it was decided to set up a reserve of some $15,000 for such cost. The city says that there was no discussion of extra cost for rock excavation. However, Cure testified that at the conference he told the mayor that there were two things which might “run more money.” One was that he did not know “what we would encounter down there in the amount of rock. And Mr. Van Hoefen (the architect) explained this to Mayor Whaley.” We would not consider this evidence to compel the conclusion that the city contemplated extra cost for grouting, but not for rock excavation and that the contract must be construed accordingly.

The city contends that Article 15, dealing with conditions encountered below the surface at variance with conditions indicated by the drawings and specifications, became applicable when the contractors encountered a substantial amount of rock in excess of 300 cubic feet, and that it was then incumbent upon the contractors to notify the city if they intended to have the contract sum adjusted. The difficulty with this position is that, according to plaintiffs’ evidence, the conditions actually encountered were not at variance with conditions indicated by one item of the specifications, the Wabash drilling reports. Furthermore, the portion of Article 15 relied upon, a standard printed form, would in no event appear to apply to adjustments in accordance with unit prices. It speaks of “equitable” adjustment, whereas the contract specified a unit price for rock removal. In our opinion, the provision relied upon must have been intended to apply, in this instance, to conditions other than rock, the presence of which was not unexpected and for the removal of which a definite price was agreed upon by the city and the contractors, subject, perhaps, to the above referred to provision of Article 3 of the contract, providing for adjustment of unit prices.

In our opinion, the contract, considered as a whole, is ambiguous as to the contractors’ claim; resort to extrinsic evidence to resolve such ambiguity is permissible; the contractors’ evidence was sufficient to make a prima facie case for a construction favorable to their claim and the direction of a verdict against the contractors was error.

We are not persuaded otherwise by any authorities cited by the city. Mullins v. Kansas City, 268 Mo. 444, 188 S.W. 193, was concerned primarily with a city’s obligation to pay a sum in addition to a stipulated contract price, based upon oral assurance by city officials. The contract there involved was for the construction of an embankment. The contract provided that earth for the work was expected to be procured on land owned by the city or which it might secure. After about 20,000 cubic yards had been removed from land owned by the city, the earth from such site was found to be inadequate for the purpose and the city purchased another tract of land from which 77,000 cubic yards were removed. The new tract required an average haul of 447 feet greater than that from the old tract and the contractor complained that this imposed an extra cost upon him which was not contemplated under the old contract. Although the case was concerned primarily with the effect of alleged oral assurance of payment by city officials, the court did note that recovery on the original contract would be precluded by failure of the contractor to comply with provisions of the contract, similar to those of the contract here under consideration, pertaining to claims for extra work. However, the court not having been primarily concerned with this aspect of the case, did not even consider whether or not the claim was for extra work and inferred that, inasmuch as the earth was obtained from city property, the entire operation was within the terms of the original contract.

Des Moines Plumbing & Heating Co. v. Magarian et al., 201 Iowa 647, 207 N.W. 750, and Iowa Electric Light & Power Co. v. Hopp et al., 221 Iowa 680, 266 N.W. 512, involved claims for work clearly not contemplated by the original contract. City of Salisbury v. Lynch-McDonald Construction Co., Mo.App., 261 S.W. 356, Orpheum Theater and Realty Co. v. Kansas City Casualty Co., Mo.Sup., 239 S.W. 841, and Hunt v. Owen Building & Inv. Co., Mo.App., 219 S.W. 138, deal with contract provisions for extra work, but none is remotely similar to the situation here.

One other matter raised by appellants merits attention. On the prior appeal, we stated that the contract is to be construed “in the light of the surrounding circumstances, applicable customs and usages, the parties’ own interpretation of the contract and other evidence bearing on the question of its meaning.” 380 S.W.2d 312. This was hardly a novel pronouncement. See Liberty Storage Co. v. Kansas City Terminal Warehouse Co., Mo.App., 340 S.W.2d 189, 192[3]; Gabel-Lockhart Co. v. Gabel, 360 Mo. 518, 229 S.W.2d 539, 543 [3]; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 268[5-7]. At the trial, the trial court considered our statement an invitation to the contractors to amend their petition to allege any relevant custom and usage, and that, since the contractors failed to do so, evidence of such matters was inadmissible. If the contractors sought to rely upon substantive custom and usage, pleading thereof was required. However, merely evidentiary custom and usage, designed to shed light on the intention of the parties and thereby to aid in construction of the contract, need not be pleaded. Murphy v. Reed, Mo.App., 193 S.W.2d 947, 950 [6]; Wallace State Bank v. Corn Exchange Bank, 220 Mo.App. 1062, 282 S.W. 86, 88[7]; Wehmeier v. Yontz, 215 Mo.App. 240, 256 S.W. 145, 147-148[5].

Proper evidence of custom and usage in the construction industry in the Jefferson City vicinity would be admissible for such purpose, without having been pleaded. Since we do not know in what form plaintiffs’ proof in such regard might appear on a new trial, we will not endeavor to pass in detail upon the offers of proof at the trial here under review. We do agree with the trial court that another contractor’s interpretation of the contract in the light of his experience is not the proper method of showing a custom or usage which might bear upon the construction of the contract. If custom does exist which bears upon the question, the effect of such custom is for the court or jury.

The judgment is reversed and the cause remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

HYDE, P. J., and HOLMAN and HENLEY, JJ., concur.

DONNELLY, J., concurs in result in separate opinion filed.

DONNELLY, Judge

(concurring).

I agree that, in interpreting the contract involved here, we cannot rule as a matter of law which party shall prevail.

However, it has long been the law in this State that a contract made by a municipality may not be modified or enlarged by verbal promises or commitments made by its officers. In United Const. Co. v. City of St. Louis, 334 Mo. 1006, 1020, 1021, 69 S.W.2d 639, 646, it was said: “* * * Section 2962, R.S.1929 * * * requires that contracts of this character made by municipalities must be made in advance of doing the work and in writing, which shall specify the price to be paid. The contract cannot be modified, changed, or enlarged by verbal promises, and any such promise to pay more for the work than the contract provides is void. Municipal officers have no such powers, and can do nothing except to see to it that the contract is complied with as made and the work and material paid for as the contract specifies. The intent of the law is to place all bidders and contractors on an exact equality without chance of favoritism, and, when the contract is once made, the officers in charge of the work are executive and not contracting agents of the city. ^ ^ ^

The principal opinion infers that where an ambiguity exists in a contract involving a municipal corporation as a party, oral representations or conduct of officials of the municipal corporation may be introduced in evidence by the adverse party to show a construction or interpretation of the contract by the municipal corporation different from that urged by the municipal corporation at the trial. I do not believe the existence of ambiguities in a contract lessens the need for application of the general rule quoted above.

Therefore, I concur in result.


author: MAUGHMER, Commissioner.

text:
    MURPHY FINANCE COMPANY, a Corporation, Respondent, v. Arthur MARTIN and Sharon Martin, Appellants.
    No. 24137.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 5, 1965.

      Elwyn L. Cady, Jr., Kansas City, for appellants.
    Shockley, Searing, Sandifer, Reid & Koger, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Murphy Finance Company, as assignee and endorsee, of a promissory note signed by defendants, brought suit and had judgment against defendants for the unpaid balance. A jury was waived, the case was tried to the Court, and there was a judgment for plaintiff in the sum of $651.00. The defense was fraud and on appeal defendants assert that plaintiff’s testimony as to the assignment of the note was by a witness whose testimony was inadmissible under the Dead Man’s Statute. Section 491.010, V.A.M.S.

From the evidence it appears that on July 13, 1961, the defendants Arthur and Sharon Martin bought a food freezer from Guaranteed Foods, Inc., through its salesman and representative, Harry Herrmann. The promissory note sued upon was given in payment. The note was signed in blank. It was filled out by Mr. Herrmann for the total amount of $607.63, principal. The agreed total purchase price as declared by defendant Arthur Martin was $615. Martin also testified that Guaranteed Foods, Inc. was to finance the purchase. Financing charges, including interest, resulted in a requirement of 30 consecutive monthly installments of $26.04 each. Defendants paid some installments and then, according to their testimony, the “freezer went bad” and they defaulted. At the time of default there was a balance due of $651.00.

On July 17, 1961, the note was purchased by and assigned to plaintiff Murphy Finance Company. It bears the endorsement “Guaranteed Foods, Inc., By F. M. Springer, Secretary”. At the time of trial Mr. Springer was dead and Mr. Herrmann, the salesman, was also deceased. Plaintiff sought to and was permitted to prove the endorsement, transfer and purchase of the note by the testimony of Larry Black, assistant manager of Murphy Finance Company. Defendants invoked the Dead Man's Statute as a bar to such testimony. Section 491.010, V.A.M.S. in part provides:

“ * * * provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead * * * the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him.”

The trial court ruled the note transaction was one between Guaranteed Foods, Inc. and Mr. and Mrs. Martin, rather than one between Mr. Herrmann and the Martins. We agree with that conclusion. It was not error to refuse application of the Dead Man’s Statute. Likewise, Mr. Springer, who endorsed as secretary of Guaranteed Foods, Inc. was acting not individually but for the company. Mr. Larry Black was not disqualified as a witness.

Appellants invite our attention to Swon v. Huddleston, Mo., 282 S.W.2d 18, 27, 55 A.L.R.2d 205. There the defendant’s interest was clearly derivative from a party deceased. Here the interest of Murphy Finance Company was derived from Guaranteed Foods, Inc. and not from Herrmann or Springer. Neither the Swon case nor the others cited by appellants are applicable to our facts so as to result in affirmative application of the Dead Man’s Statute.

Mr. and Mrs. Martin testified as to the purchase of the freezer, signing the note in blank and making some payments to Murphy Finance Company. The Court made findings of fact and entered same of record. We incorporate a portion herein.

“I find that the plaintiff was and is a holder in due course, provided with consideration of a note marked Plaintiff’s Exhibit 1, which was executed by the defendants, that defendants are in default on the note, and that there is due and owing on sails, note the principal sum of $651, and that there was a default, and the balance due is $651.
“Also as further explanation of the detailed findings of fact and conclusions that I have previously stated, I would like to refer to Section 401.014, Missouri Revised Statutes, 1959, with regard to situations where a document is signed in blank, and it says as follows: ‘And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill up as such for any amount. In order that any such instrument, when completed, may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time.’ I found from the evidence that Plaintiff’s Exhibit 1 was filled up, strictly in accordance with the authority given, and within a reasonable time. The Statute continues: ‘But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time.’ And, as previously indicated, I have found that the plaintiff was and is a holder in due course of the note marked Plaintiff’s Exhibit 1, therefore even if there had been a failure to fill up the blanks strictly in accordance with the authority given, it would still be enforceable under the last sentence of that statute.
“There is, of course, the additional factor that the defendants did nothing to indicate any desire to rescind the contract, on the ground that it had been fraudulently induced in the respects mentioned above, with regard to the amount and with regard to the company or person that would finance it”.

We concur in the findings of fact made and entered by the trial court. The same are almost at least entirely in accordance with the testimony of defendants. As to any variance, we are content to defer to the findings of the trial court with its advantage of seeing and hearing the witnesses. It might be mentioned that only three witnesses testified — Mr. Black and the two Martins.

We find no reversible error. The judg.ment is for the right party and it is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.

BROADDUS, J., not participating.


author: BRADY, Commissioner.

text:
    Roy Burton YATES, Plaintiff-Respondent, v. Leslie Earl BRADLEY, Defendant-Appellant.
    No. 32031.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.

      Dearing, Richeson, Weier & Roberts, Hillsboro, for defendant-appellant.
    Smith & Colson, Farmington, Roy W. McGhee, Jr., Piedmont, for plaintiff-respondent.
   BRADY, Commissioner.

Trial of this action for personal injuries arising out of an automobile collision resulted in a judgment in favor of the plaintiff and against the defendant in the amount of $4,600.00. Following the overruling of his timely after-trial motions, the defendant perfected his appeal to this court alleging prejudicial error in the giving of plaintiff’s verdict-directing and measure of damage instructions. There is no contention the plaintiff failed to make a submis-sible case nor that the evidence does not support the giving of the verdict-directing instruction. That instruction is attacked purely on the ground the language used constitutes an assumption of the controverted issues in the case. Accordingly, the facts need be only briefly stated.

The collision occurred at approximately 6:30 p. m. on an October evening. It was “pitch dark.” At the place where this collision occurred, the highway involved is a two-lane,* black-topped pavement road running generally in an eastwardly and west-wardly direction. A church sits on the south side of the highway and the driveway leading to it comes into the highway at the very top or crest of a hill. The resulting intersection is so placed that an automobile at the driveway cannot be seen by one approaching from the east until the latter is about 100 feet from the driveway and the same is true of an automobile approaching from the west. The defendant was heading in a westwardly direction on the highway intending to turn into the driveway. He stopped, put his left turn indicator light on and waited for two west bound cars to pass. At the point where he stopped his automobile he could not see over the hill ahead of him. Taken in the light required of this court by the jury’s verdict, the evidence was that when the defendant started to make his turn, the plaintiff was in his line of sight had he looked ahead of him as plaintiff’s automobile was then seen by a passenger in a car stopped behind the defendant. The defendant made the first part of his turn while looking in the rear view mirror. The plaintiff’s au-.. tomobile was approaching at a speed of forty-five miles per hour and was about three-car lengths from the defendant when the latter began his “slow turn” to the left. The defendant’s automobile extended approximately two and one-half feet into plaintiff’s lane of traffic at the time of impact.

The plaintiff was alleged to have received a laceration on his forehead penetrating to his skull, a concussion, and strain or irritation on the muscles of his back. There was no .evidence as to the permanency of the concussion. With respect to the laceration on his forehead, the only evidence given by the plaintiff was as follows: “Q Will you show this jury where your head was cut? A In the center of my forehead here, down through there. Q And how far did the cut extend? A It was three and a half inches long from my hairline down almost into the eye.” He also testified as to the laceration being sutured and the removal of the stitches. Plaintiff’s treating physician testified that he examined the plaintiff the week before the trial and at that time made the following findings with reference to the cut on his forehead: “A His laceration of his forehead was well-healed. * * * ” Later he was asked: “Q Now, you described the scar as being ‘well-healed’. What do you mean by that, Doctor? A I mean that it’s healed with a minimum amount of scar tissue.” The witness was then shown some photographs of the plaintiff taken about a month after the collision and gave the following testimony: “Q Now, the scar has improved since that time, hasn’t it, Doctor? A Yes, it has. Q And it’s much less noticeable then, of course, than at the time within a month after the accident occurred? A Yes, sir.” The defendant’s examining physician testified that he “ * * * noted the 2}4 inch vertical scar down the mid-forehead to the bridge of his nose which extended over toward the inner canthus or inner corner of his right eye. It was a fairly minimal cosmetic consequence. * * *" His examination took place some five months prior to the trial. Plaintiff’s wife did not give testimony upon this issue. She made no mention of the scar at all.

Evidence that plaintiff’s other injuries were permanent is totally absent from this record. The plaintiff and his wife testified that he suffered intermittent headaches and dizziness from the date of the accident up to the time of trial and that he suffered a loss of working time as a result thereof. As to his other injuries his own physician stated: “There were no positive physical findings at the time I saw him last week. He did state that he had continued to have some pain in his neck and in between his shoulders occasionally, especially if he moved suddenly or if he turned suddenly. Q Were you able to determine what causes the pain in his neck and shoulders? A I felt that from the history this is probably due to chronic strain or irritation of the muscles in his neck and back. Q In your opinion, Doctor, is that normal in cases of this kind that that pain would still exist at this time, this late, long after the accident? A It may, yes. Q Are you prepared to say, Doctor, how long he might have pain in his neck and back? A No, I could not say how long he will have pain.” Later this witness was asked concerning his findings at an examination shortly preceding the date of trial. The question asked and answer given were: “Q * * * Now, there wasn’t anything wrong the other day that you could find from a clinical standpoint with regard to any of his neurological signs or any physical appearance of damage or injury other than this healed scar up here, isn’t that correct ? A That’s correct. * * *

That part of plaintiff’s verdict-directing instruction pertinent to the allegation of error raised by the defendant reads as follows: “ * * * and that either defendant Bradley failed to drive his automobile in a careful and prudent manner and failed to exercise the highest degree of care in that, intending to make a left turn into a private road or driveway, he failed to yield the right of way to plaintiff, Roy Burton Yates’ truck approaching from the opposite direction by turning to the left into its path when the making of such left turn would create a hazard, if you so find, or that defendant Bradley failed to drive his automobile in a careful and prudent manner and failed to exercise the highest degree of care in keeping a proper lookout in the direction in which he was operating the automobile, that such failure to keep a proper lookout was negligence, and that such negligence resulted in the collision that occurred, if you so find, then your verdict should be in favor of plaintiff Yates and against defendant Bradley.”

The measure of damage instruction submitted, in separate paragraphs, past pain and suffering, future pain and suffering, loss of earnings not to exceed a stated amount, and a fourth paragraph stating: “Such distinct permanent injury, if any, as you find from the evidence that Mr. Yates has suffered as a result of the occurrence, and in this connection you may consider such impairment, if any, in plaintiff’s ability to work and labor as you find from the evidence that plaintiff has suffered as a result of the collision described in the evidence.”

The defendant contends that plaintiff’s verdict-directing instruction, to quote from his brief, “ * * * assumed that defendant failed to yield the right of way and keep a proper lookout and was negligent when these were controverted issues in the case.” He argues, “The only thing that the jury has to find is that this defendant Bradley failed to drive his automobile in a careful and prudent manner in doing the several acts complained of.” Certainly, the defendant’s position is untenable as to the first part of the submission for the words “if you so find” immediately follow that portion of the instruction and could only be read as referring to that part of the submission. The jury was therefore required by the very wording of the instruction to find that Bradley did in fact fail to yield the right of way by turning into plaintiff’s path when the making of such a turn created a hazard.

However, plaintiff did not immediately follow the submission of failure to keep a proper lookout with the words “if you so find” or some equivalent phrase. That phrase next appears following the hypothesis of causation contained in the instruction. Nevertheless, there are at least two reasons why this failure does not render this instruction vulnerable to defendant’s attack. First, because the instruction opens by requiring the jury to find the hypothesized facts. Perhaps better wording would have resulted in the insertion of another “if you so find” immediately following the submission of failure to keep a proper lookout, yet “[i]t is not necessary to sprinkle an instruction with ‘if you so find’ in order to avoid the charge of assumption of facts (88 C.J.S. Trial § 327d, p. 857) ; if the instruction in its beginning, as this one does, plainly requires the jury to find the hypothesized facts from the evidence that is sufficient.” Kelly v. Kansas City Public Service Co., Mo., 335 S.W.2d 159. The second reason is that such an omission could not be prejudicial in the instant case for the reason that reading the transcript in the light required of us by the jury’s verdict, it is clear that this was not a disputed issue when the time came to instruct the jury. The defendant’s own testimony was that he was not keeping a proper lookout when he began his turn. This allegation of prejudicial error is without merit.

In Heibel v. Robison, Mo.App., 316 S.W.2d 238, l. c. 247, this court held that the plaintiff has the burden of supporting an instruction permitting an award for permanent injuries. In the case of Driver v. Anheuser, 397 S.W.2d 11, handed down concurrently with this opinion, we said: “ * * * it is a cardinal rule, firmly established, that in order for plaintiff to recover damages for permanent injury, the permanency of the injury must be shown with reasonable certainty, and while absolute certainty is not required, mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor.” Citing Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Derschow v. St. Louis Public Service Co., 339 Mo. 63, 95 S.W.2d 1173. In that same opinion a permanent injury is defined as “ * * * one that, according to every reasonable probability, will continue throughout the remainder of one’s life; one that is reasonably certain to be followed by permanent impairment of earning capacity, or one which produces lasting irremediable pain; one where any physical function, or the usefulness of a member of the body is permanently impaired. * * * ” See Vol. 43 C.J.S. Injury p. 1120. See also Vol. 32 Words and Phrases, p. 171.

The plaintiff contends that in the instant case the evidence regarding the scar on his forehead meets these requirements. We cannot agree. It is true that scars which result in permanent disfigurement constitute a permanent injury. So this court held in Van Horn v. Union Fuel & Ice Co., Mo.App., 31 S.W.2d 260, when the medical expert testified the scar would be permanent. In the instant case there is no such testimony, and we cannot assume that all scars are permanent. Neither is there any testimony which can reasonably be said to give rise to an inference of permanency. The only testimony is that the scar was still visible at the trial, although it had improved since the accident, and that, at the time defendant’s medical expert examined the plaintiff, some five months prior to the trial, it constituted a “fairly minimal cosmetic consequence.” This cannot be said to meet the plaintiff’s burden of showing a permanent injury; i. e., “ * * * one that, according to every reasonable probability, will continue throughout the remainder * * * ” of plaintiff’s life. Vol. 43 C.J.S. supra.

The defendant also attacks the giving of this instruction on the ground there was no evidence to justify submission of whether plaintiff’s ability to work and labor had been permanently impaired. The plaintiff, no doubt realizing the transcript is silent as to any direct testimony to support the submission, urges that plaintiff’s evidence of intermittent headaches and dizziness which he was still suffering at the date of trial, together with his evidence that he lost working time as a result thereof at various intervals following the accident furnishes sufficient support for the submission. Plaintiff relies on Palmer v. Lasswell, Mo.App., 267 S.W.2d 492, citing the language at l. c. 497 where the court said: “ * * * and, it has been held also that proof of suffering at the time of trial, even though such proof be independent of and in conflict with medical evidence on the question of permanency (which, in the instant case, it was not), makes ‘a situation where it [is] for the jury “to determine the probable duration of the injury.” ’ Hutchison v. Moerschel Products Co., 234 Mo.App. 518, 133 S.W.2d 701, 705-706(9), and cases there cited. * * * ” However, earlier in that same paragraph the court points out the contention then before it for ruling was that there was no evidence to justify a submission authorizing recovery for future pain and suffering. That part of the opinion upon which plaintiff relies refers only to that issue. Palmer v. Lasswell, supra, has no bearing upon the issue in the instant appeal; i. e., sufficiency of the evidence to warrant submission of a permanent impairment of plaintiff’s ability to work and labor. This is made abundantly clear by the citation to the Hutchison case. In Hutchison v. Moerschel Products Co., at 133 S.W.2d 701, l. c. 706, the court makes it clear it was not speaking of permanent injuries in any manner stating: “ * * * The instruction here considered does not authorize recovery for ‘permanent injuries.’ The Supreme Court has pointed out the distinction between ‘permanent injuries’ and ‘future pain and suffering’ in Derschow v. St. Louis Public Service Company, 339 Mo. 63, 95 S.W.2d 1173. * * *”

The judgment should be reversed and the cause remanded for new trial on the issue of damages only. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded for new trial on the issue of damages only.

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

J. MORGAN DONELSON, Special Judge, concurs in result only.