author: WOLFE, Judge.

text:
    Patricia FLOURNOY, a Minor, by Julia Gilbert, Her Next Friend, (Plaintiff) Respondent, v. Catherine KUHN and Harry M. Fine Realty Company, Inc., (Defendants) Appellants.
    No. 31473.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 18, 1964.

      Robert C. Ely, Schwartz & Ely, Burton H. Shostak, St. Louis, for appellant.
    Don B. Sommers, Barnhart & Sommers, St. Louis, for respondents.
   WOLFE, Judge.

This is an action for damages arising out of injuries which the plaintiff sustained when the railing of a second-story porch gave way and she fell from the porch to the ground. The plaintiff was the daughter of a tenant who occupied the premises of which the porch was a part. The defendT ants were the’ owners and landlords who rented the' premises to the plaintiff. There was a verdict and judgment for the plaintiff in the sum of $15,000, from which the defendants have appealed.

The building where the occurrence took place was a four-family, brick flat. It was located on the north side of Horton Place, in the City of St. Louis. There were separate entrances from the ground floor porch to each of the flats. This ground floor porch was roofed by a second floor porch. The second floor porch was unroofed and divided by a railing, so that each upstairs tenant had a small porch of its own. A door in each of the upper flats opened out onto its porch. The porch had a railing. This railing was along the front and sides of the porch. It was connected to corner posts and supported by vertical slats. There was a center post in front from which a railing ran back to the wall of the building and divided the porch in half.

The property had been sold to the Fine Realty Company, with defendant Catherine Kuhn as a straw party, on April 4, 1958, and it was managed by the Fine Realty Company. The plaintiff moved into one of the second floor apartments in August of 1958 with her mother, who was a month-to-month tenant. Her mother testified that when she moved into the apartment, she looked the place over and everything looked “nice”. The porch railing did not look rotten. She did not know if the porch railing had been freshly painted, but it looked nice, and for ten months during her occupancy she had no trouble with it. She was never told anything about the porch railing.

On July 1, 1959, the plaintiff was attending summer high school. She returned home at noon, and around five o’clock that afternoon her brother and two other boys came to the apartment.' One of them named Rogers wanted to meet a girl who lived in the downstairs’ apartment: ' They waited for the girl to come home. The plaintiff was in the livingr'oom, which had a door that' opened onto the porch, and Rogers and the other boy were on the porch. Rogers was facing the apartment and leaning against the rail that paralleled the street.’ He was facing the other boy, who was leaning against the wall. The brother of the plaintiff was in the yard. The girl that Rogers was to meet came down the street, and plaintiff’s brother called up to Rogers, “Here she is.”

Rogers turned and, with both hands on the railing and his weight upon it, looked down. The plaintiff came from the living-room and went to the railing, put her left hand upon it, and leaned over to see the approaching girl. As she leaned over, the rail broke and the whole front railing fell off. She and Rogers fell from the porch, with Rogers landing on the steps of the lower porch and the plaintiff landing upon the ground. The extent of her injuries will be more fully set out in passing upon the defendants’ point charging that the verdict is excessive.

Mrs. Rybolt, a former tenant of the apartment in which the plaintiff lived, testified that she had lived in the apartment for four years. She moved out of it in August of 1958, which was the same month that the plaintiff’s family moved in. She stated that the porch railing was bad and that the corner post would sway. She reported the condition to Thompson Realty Company, who had owned the building prior to the time that the defendants acquired it, but they did nothing about it. After the Fine Realty Company purchased the building, the premises were inspected by a man who she thought was Mr. Fine. She told him that the front porch railing was loose. She saw splinters and cracked wood and the corner post pulling away from the front, of the porch. She knew of no repairs made to the front railing, but the defendants .repaired the first four steps and the floor of the downstairs porch. They painted the railing upstairs.

The corner post which gave way was set in the floor of the porch. It was not a solid post but was made of four one-inch by eight-inch boards, each board forming a side of the square post. After the railing fell, photographs were taken and the photographer who took the pictures testified that the wood was soft and rotten. The Rogers boy testified that the whole bannister was rotten. The plaintiff’s mother, who looked at the post after it had fallen, said it was dark and soft inside.

The defendants’ testimony discloses that the premises had been inspected after they acquired the property. There was testimony that repairs had been made about the premises, but no one knew of any repairs to the upstairs bannister. The bannister was painted, and the painter testified that he saw no rotten wood. He was asked if he put in putty to fill cracks in parts of the bannister, and he had no recollection of having done so.

The appellants first assert that the court erred in overruling the defendants’ motion for a directed verdict at the close of the plaintiff’s case and at the close of all of the evidence. It is maintained that plaintiff failed to make a submissible case. This contention is predicated upon the theory that the defendants had no actual knowledge of the defective porch railing, and that there was no evidence that the condition existed at the time of the letting of the premises. We are cited to O’Gorman v. Kansas City, 233 Mo.App. 124, 93 S.W.2d 1132; Roach v. Herz-Oakes Candy Co., 357 Mo. 1236, 212 S.W.2d 758; Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 283; Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729.

All of these cases are quite distinguishable upon the facts. The evidence in these cases either disclosed that the landlord’s knowledge of the offending condition was lacking or that the condition was obvious to the party injured. As we stated above, in the instant case some one for the defendants did inspect the premises after the defendants acquired it, and was told' of the loose bannister. This was before the plaintiff had moved in, and it appears to be sufficient evidence to take the matter of the defendants’ knowledge of the defective railing to the jury. It is true that the rotten condition may not have been known and may have progressed during the plaintiff’s occupancy. This, however, does not affect the evidence that the defendants had knowledge that the bannister was loose. This was a dangerous condition, no matter what its cause may have been.

The next point raised is that a verdict-directing instruction given at the request of the plaintiff was erroneous. The instruction starts by requiring findings that prior to the plaintiff’s occupancy of the premises the posts to which the railing was attached were insecure and unsafe, that this was unknown to the plaintiff’s family and to the plaintiff, and would not have been discovered by them by reasonable in-, spection. It continues:

* * * if you further find that the defendants knew or in the exercise of ordinary care could have known of the dangerous and not reasonably safe condition of said railing and posts prior to plaintiff’s occupancy and in time to have remedied the condition or to have warned' plaintiff and her parents of such condition, and that the defendants failed to do either ’ * * (Emphasis ours.)

The italicized portion is the part of the instruction .against which the defendants direct their complaint. They contend that before a lessor of. land may be held liable to a tenant for injuries caused by any natural or artificial condition of the premises let, it must be shown that the lessor actually knew of the condition or the risk involved, and that he is under no duty to discover it.

The plaintiff-respondent, in seeking to support the instruction, relies chiefly upon the case of Kennedy v. Hartwig-Dischinger Realty Co., Mo.App., 201 S.W.2d 475, from which the plaintiff took the instruction • given in the case here under consideration.In that case the point before us here was never raised.' The case also differs in fact from the evidence before us here, as there was evidence in that case that the landlord had negligently repaired a broken portion of the bannister.

The plaintiff also cites Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11; Meyers v. Russell, 124 Mo.App. 317, 101 S.W. 606; and Streckenfinger v. Bullock, Mo.App., 60 S.W.2d 661. In the case of Meyer v. Russell, there was an agreement to keep the premises in repair. In the other two cases the landlord himself had made a faulty and dangerous construction upon the premises.

These cases are not in point, for where the exclusive possession rests in the tenant, as it did in the instant case, the landlord is not generally liable for injuries caused by defects. He is liable where he is under an agreement to repair or voluntarily undertakes repairs, and the defects are caused by his negligence in so repairing. Grimmeissen v. Walgreen Drug Stores, Mo.App., 229 S.W.2d 593. He is also liable where, at the time of .the execution of the lease, there are latent defects which are known to the lessor and are not known or discoverable by the tenant in the exercise of due care, and which involve an unreasonable risk of bodily harm to persons upon the premises. A lessor is under a duty to disclose such defects, and he is liable to the tenant or the tenant’s invitees for injuries resulting from such defects if he fails to disclose them to the tenant or conceals the presence of such defects. Grimmeissen v. Walgreen Drug Store, supra; Roach v. Herz-Oakes Candy Co., 357 Mo. 1236, 212. S.W.2d 758; Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844.

It is in this last mentioned class of cases that the instant case falls, but the landlord must have knowledge of the dangerous defect. A different rule applies where such defect is-in areas of common use or other areas over which the landlord retains control. There he is under a duty to keep those portions Of the premises in a teasonably ■ safe condition. Tucker v. Taksel, Mo.App., 345 S.W.2d 385; Buchanan v. Wolff, Mo.App., 105 S.W.2d 26; Peterson v. Brune, Mo.Sup., 273 S.W.2d 278.

Under the instructions given, the jury might have found that the landlord did not know of the condition of the bannister, but decided to hold him liable because he could have known. This would be an extension of the landlord’s duty, not warranted under the law, and the instruction is therefore erroneous.

Because of this error, the cause must be remanded for a new trial. If' no question had been raised in relation to the amount of the verdict, it would be remanded under Rule 83.13(c), V.A.M.R. for trial on the issue of liability only. But appellants claim that the award of $15,000 is excessive, and if it is, a new trial should be upon all of the issues.

The plaintiff, in falling from the porch, landed on the ground. She was taken to the Homer Phillips Hospital, where X-rays were taken. Her right arm was put in a cast, and an “ace” bandage was put on her left arm. She was then sent home, and her mother later took her to a Dr. Payne. Dr. Payne treated her then and took additional X-rays. He testified that there was an incomplete fracture of the neck of the left radius, which healed in six weeks and caused no further trouble. The right radius was fractured at the proximal and distal ends. The fracture of the proximal end healed leaving a 15 degree limitation of flexion in the right elbow and an atrophy of the right deltoid muscle. The distal end of the radius had a com-minuted fracture, with some impaction. This healed leaving the plaintiff with some limitation of motion in the wrist. Her right grip was good, and she had full use of her fingers.

The plaintiff testified that she was a practical nurse and was studying to be a trained nurse. She said that her handwriting was not as good as it was before her injury, and that she tired quickly when she lifted heavy things. The plaintiff lost no time from school or work because of the injury, and no special damages of any nature were shown.

A case of injuries, to some extent similar in nature to those sustained by the plaintiff, was considered in Ciardullo v. Terminal Railroad Ass’n of St. Louis, 289 S.W.2d 96, 61 A.L.R.2d 516, in which the Supreme Court of Missouri ordered $3,000 remanded on a judgment for $15,000. We are of the opinion that $15,000 is somewhat excessive in the case before us, and in view of this it should also be tried anew upon the issue of damages.

The cause is reversed and remanded for a new trial.

RUDDY, P. J., and ANDERSON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ralph ABEL, (Plaintiff) Appellant, v. CAMPBELL 66 EXPRESS, INC., a Corporation, (Defendant) Respondent.
    No. 31521.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.
    Motion to Set Aside Court’s Opinion or to Grant Rehearing Denied May 18, 1964.

      George E. Heifers, Roberts P. Elam, St. Louis, for appellant.
    'F. X. Cleary,-F. Douglas.O’Leary, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis,- for respondent.
   WOLFE, Judge.

This is an action for damages arising out of personal injuries. The plaintiff suffered the injuries when he was caused to fall by stepping into a depression in the surface of a lot maintained and used by the defendant as a truck terminal. There was a verdict and judgment for the plaintiff in the sum of $5,500. The defendant thereafter moved for a judgment in accordance with its motion for a directed verdict filed at the close of the plaintiff’s case and at the close of all of the evidence. The trial court sustained the motion and entered a judgment for the defendant. The plaintiff appealed and seeks to have the judgment in his favor reinstated.

The evidence, as it relates to the matters raised by this appeal, disclosed the following :

The plaintiff was a salesman. He worked for a company that sold prefabricated steel buildings. He had heard that the Campbell 66 Express, Inc. was planning on building a new truck terminal in St. Louis, and he was interested in selling his product to it. He had previously worked with a real estate salesman named Boehm, who had obtained land for the erection of other prefabricated buildings. He telephoned the local manager of the defendant company to see if his company would be interested in buying prefabricated steel buildings. The phone conversation resulted in arranging a meeting. It was agreed that the plaintiff and Boehm, the real estate man, would meet with the manager at the defendant’s office on the-afternoon of September 15, 1960.

The defendant’s office and place of business was located on the west side of South Thirteenth Street, in the City of St. Louis.. The property there was maintained and controlled by the defendant company. It consisted of an office building numbered 805' South Thirteenth Street, and a lot immediately south of the building. The lot was used as a truck terminal. It was paved and had a wide driveway that gave entrance to Thirteenth Street. The. defendant had maintained the property in question for at least six months and had made no repairs or alterations during that period.

At about 2:00 P.M. on September IS, the plaintiff went to the defendant’s place of business to keep the appointment that had been arranged with Boehm and the defendant manager. He was to meet Boehm there. He had never been to the place of business before. He went in his own car and drove south on Thirteenth Street. He drove beyond the office entrance and a short distance beyond the driveway of the terminal lot. There he parked his car on the west side of the street. He got out of his car on the driver’s side and walked in the street, passing the driveway of the lot on the south end of the building, to where the sidewalk started. He walked on the sidewalk to the door of the building, when his attention was attracted by the sound of a horn blowing. He turned around and saw that there was a Campbell 66 tractor-trailer, with the trademark and name of the defendant company on the side of it, stopped on the lot near the driveway and facing east. Its motor was running, and it appeared to be about to leave the lot.

The driver, who was seated in the tractor cab, motioned for the plaintiff to come to him. The plaintiff walked back and was obliged to look up to see the driver. The driver told him that he had better move his automobile from the place where he had parked it as their trucks went in and out of the terminal at a pretty good speed and might hit the rear end of his car The plaintiff was about seven feet back from the driveway on the lot of the defendant as this conversation took place.

After being so informed, he turned to go in front of the tractor and back to his own automobile to move it, as the truck driver had suggested. When he took his first step, he came in contact with a depression in the surface of the lot which caused him to fall and seriously injure his knee. The depression was twelve to fourteen inches in diameter and one and a half to two inches in depth. After he fell he was lying in front of the wheels of the tractor and could not get up. Being fearful that the driver had not seen him fall and might run over him, he called for help. He could not stand and was taken at once to a hospital. The day was clear and bright, but he did not see the depression as he approached the tractor, as he was looking up toward the driver.

The defendant’s after-trial motion for a judgment, in accordance with its motion for a directed verdict filed during the trial, is based upon only one ground. It is contended that the plaintiff was a mere licensee, and not an invitee, of the defendant company when he went upon the lot where he fell. It is concluded from this premise that the defendant was under no duty to protect the plaintiff, and that the plaintiff took the lot as he found it. It was upon this ground that the verdict and judgment for the plaintiff were set aside and the defendant’s judgment entered.

The function of the motion for directed verdict is the same as the demurrer formerly used, and questions the sufficiency of the plaintiff’s evidence to make a case submissible to the jury. Section 510.280, RSMo 1959, V.A.M.S. This motion may be again directed to the attention of the court after verdict. Section 510.280. Girratono v. Kansas City Public Service Co., Mo.App., 243 S.W.2d 539.

In passing upon such motion, we must apply the fundamental and settled rule that it admits as true every fact and circumstance which plaintiff’s evidence tends to prove, and that the plaintiff is entitled to the benefit of every inference of fact which may be reasonably drawn from the evidence. We cannot sustain such a motion unless the facts in evidence, and the legitimate inferences to be drawn from such facts, are so strongly against the plaintiff as to leave no room for reasoilable minds to differ. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; «=156(3) and 178 Trial, Missouri Digest.

The only point preserved for review is the sufficiency of plaintiff’s evidence to bring him within the classification of an invitee as he entered upon the terminal lot of the defendant. The distinction between an invitee and a licensee, and the duties the occupier of the premises owes to each, was stated by the Missouri Supreme Court in Stevenson v. Kansas City Southern Ry. Co., 348 Mo. 1216, 159 S.W.2d 260, l. c. pp. 262-263, as follows:

“The rule in this state is that ‘the owner or occupier of premises lies under no duty to protect those from injury who go upon the premises as volunteers, or merely with his express or tacit permission, from motives of curiosity or private convenience, in no way connected with business or other relations with the owner or occupier’; but that ‘a bare licensee (barring wantonness, or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as he finds them.’ However, this is not the rule ‘when the owner invites the use of his premises for purposes connected with his own benefit, pleasure, and convenience.’ In that situation, our rule is ‘that a licensee, who goes upon the premises of another by that other’s invitation, and for that other’s purposes, is no longer a bare licensee,’ but ‘becomes an invitee, and the duty to take ordinary care to prevent his injury is at once raised, and for the breach of that duty an action lies.’ * * Thus, the real test of the status of invitee (to whom the owner has the duty to take ordinary care to prevent his injury) is the purpose of his visit.”

Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A.,N.S., 1045.

The defendant-respondent contends that although the defendant may have occupied the status of an invitee when he went to the defendant’s premises to discuss the erection of prefabricated buildings, the invitation did not extend to parts of the premises other than the building. We are cited to cases which deal with and hold that an invitation to a particular part of the premises, or to the premises generally for a particular purpose, does not make the person an invitee while roaming at will to places not pertaining to the business at hand. Moss v. Nooter Corporation, Mo.App., 344 S.W.2d 647; Gayer v. J. C. Penney Company, Mo.App., 326 S.W.2d 413; Watson v. St. Joseph Coal Mining Company, 331 Mo. 475, 53 S.W.2d 895; Menteer v. Scalzo Fruit Company, 240 Mo. 177, 144 S.W. 833; Shuck v. Security Realty Co., Mo.App., 201 S.W. 559.

It is the respondent’s contention that the plaintiff, in going onto the lot, came within the above rule. The defendant asserts that the plaintiff cannot rely upon the invitation of the truck driver to establish his position as an invitee because there was no showing that the truck driver was acting within the scope of his authority. It is conceded that the evidence is sufficient to establish that the truck driver was an employee of the defendant, but it is asserted that this was not sufficient to support an inference that he had authority to make a suggestion or a request of the plaintiff about the parking of plaintiff’s automobile.

We are cited to Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365, and Montana v. Nenert, Mo.App., 226 S.W.2d 394, as support for the proposition that the defendant advances. The Oganaso case deals with an employee of the defendant who moved his own automobile on the defendant’s parking lot. In doing so he struck a ladder upon which the plaintiff was working. The case of Montana v. Nenert arose out of a collision, and we held that the employee of the defendant, who was not driving defendant’s car and was on a mission of his own, was not within the scope of his employment. These cases do not appear to be analogous in fact to the matter before us.

Here we have a truck driver who, in the course of his employment, called the plaintiff to the truck to ask the plaintiff to move his car because of its close proximity to the driveway. He explained to the plaintiff that the car might be struck by the defendant’s tractor-trailers as they moved out from the lot. The question presented is whether or not such action on the part of the driver was within the scope of his authority. It was done by the driver to prevent the plaintiff’s car from being struck by his or other tractor-trailers as they left the lot. The safe driving of the tractor-trailer was the thing for which the driver was employed. Could it be said that to seek the removal of an obstruction to safe driving was beyond the scope of his employment? If it was not, then it was not beyond the scope of his authority, for he certainly had authority to do those things incidental to the work for which he was employed.

It is stated in Simmons v. Kroger Grocery & Baking Co., 340 Mo. 1118, 104 S.W.2d 357, l. c. 359:

“The general rule is that the maxim, ‘respondeat’ applies when the servant, in the line of his employment about his master’s business, seeks to accomplish his master’s purposes, and in doing so acts negligently, or willfully and maliciously, or even contrary to his orders or criminally, in some instances.”

The reason for the rule is that “[t]he principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in and about his business, and carrying out his purposes.” Milazzo v. Kansas City Gas Co., Mo.Sup., 180 S.W.2d 1, l. c. 3.

In the case before us there is sufficient evidence to find that the driver called the plaintiff to the lot in the furtherance of the defendant’s business, and that his act was within the scope of his authority.

The defendant-respondent raises in this court, for the first time, the proposition that the condition of the parking lot was open and obvious, and that the defendant was under no duty to warn the plaintiff of its condition. Rule 83.13, Rules of Civil Procedure, V.A.M.R., provides:

“(a) Preservation of Error. Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.”

It is conceded that the point now raised was not presented to the trial court. We do not know what was presented to the jury, for the transcript before us does not include the instructions given. The defendant urges us to consider the point under Rule 79.04, Rules of Civil Procedure, V.A.M.R., which provides for appellate consideration of points not preserved for review when manifest injustice has occurred. It may be questionable as to whether or not we should employ the rule here, but we have examined the record and find no “manifest injustice.”

We are cited to' two cases relied upon by the defendant. One is Heidt v. Lauless, Mo.App., 348 S.W.2d 599, wherein the plaintiff slipped on a grassy slope while picknick-ing at an amusement resort. The condition of the place where the plaintiff fell was obvious and known to plaintiff. The court held that the plaintiff assumed the risk of the known condition. The second case is Bullock v. Sklar, Mo.App., 349 S.W.2d 381, 90 A.L.R.2d 318. Therein the danger was not open and obvious, and we held that the plaintiff made a submissible case. We find neither case analogous to the facts before us, as the plaintiff had never seen the lot before, and his attention was directed toward the driver who was calling him from a position higher than that of the plaintiff. The plaintiff’s attention was thus diverted from his path of travel as he approached the tractor, and his first step thereafter was into the depression which caused his fall. Essenpreis v. Elliott’s Department Store Co., Mo.App., 37 S.W.2d 458.

Under the facts here before us, we conclude that the plaintiff made a case properly submissive to the jury, and that the court erred in entering the after-verdict judgment for the defendant.

We reverse the judgment and remand the case with directions that the judgment for the defendant be set aside and for naught held, and that the verdict and judgment for the plaintiff be reinstated.

RUDDY, P. J., and FRANK W. HAYES, Special Judge, concur.

ANDERSON, J., not participating.


author: RUARK, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Merle Eugene PARKER, Defendant-Appellant.
    No. 8256.
    Springfield Court of Appeals. Missouri.
    April 16, 1964.

      Merle Eugene Parker, pro se.
    Paul Boone, Pros. Atty., Gainesville, for plaintiff-respondent.
   RUARK, Presiding Judge.

The appellant was charged by information, “(Based upon the affidavit of Kelley Sallee),” with common assault in that he did “in a rude, and insolent manner, unlawfully touch and assault” the said Kelley Sallee. He was convicted by a jury in Ozark County; and, the jury being unable to agree upon a verdict, the court fixed his punishment at a fine of twenty-five dollars.

At about the time defendant’s counsel filed his brief, the defendant discharged his counsel and requested permission to file his own brief and argue his own case. The request was granted, and the brief was filed. However, it is of little value to us. It is principally concerned with “constitutional questions” none of which were raised in the first instance.

The occasion of this difficulty was a charivari (often spelled “shivaree”) held for a pair of newlyweds, Gene Billingsley and his bride, Judy (nee Farnsworth), at the small settlement or village of Thorn-field in Ozark County. For the benefit of those who may not be familiar: the chari-vari (shivaree) is an ancient custom of serenading the bridal couple, which originated in France and was brought to this country in early times. In some localities it became a mock serenade for unpopular marriages and thus a disturbance. See Gilmore v. Fuller, 198 Ill. 130, 65 N.E. 84, 60 L.R.A. 286, and Higgins v. Minaghan, 78 Wis. 602, 47 N.W. 941, 11 L.R.A. 138. In the hill country of Missouri it became (and usually is) a combination of celebration and surprise party by the neighbors for the newlyweds. The surprise was usually announced by the banging on pans or plowshares and the blowing of horns, if available. Sometimes shotguns were fired. When the horse was still essential to our way of life, the surprise was often announced by the “blowing of anvils.” Usually the bride and groom were (and sometimes still are) subjected to some good-natured hazing, after which refreshments are served. In this particular instance, the shivaree was held at the house of Judy Jones, a sister of the bridegroom, where the young couple were staying, at any rate on that night. This shivaree appears to have been an invitation affair; at least witnesses testified they were there “by invitation.” A large crowd of neighbors and friends were present, a goodly number of them mature men with their families. The crowd included the relatives of the couple and also a group of younger people near the age of the newlyweds. Some mention is made of cake and coffee; on the whole we gather that the shivaree was a combination surprise party and celebration, roughly corresponding to a reception which concluded with “dunking” the newlyweds in a nearby creek.

The settlement of Thornfield is close to, but not on, the state highway. A road leads off to the west, and this road is the main and only street of the settlement. The Jones house sits north of this road about one hundred fifty feet. Cars of the guests were parked on both sides of the road and in the space south of the house '•vnd north of the road.

The prosecuting witness, Kelley Sallee, is sheriff of Ozark County. On the evening in question he got a call from Thornfield; and, accompanied by his deputy, Taylor, he went, to Thornfield to the home of the caller where he learned that people were setting off dynamite. The two officers went to investigate. They drove past where the cars were parked. They went down by the creek and sat a while and then drove around some. They heard dynamite go off. They drove north of Thornfield on a farm-to-market road about three miles but did not locate the dynamiters. They stopped at a church or schoolhouse and stayed for a while, and then drove back to Thornfield. It was then nine o’clock; the shivaree party was breaking up; the guests were commencing to leave. ■ . . - -

The first incident: One Judy Jones (this is the second Judy Jones we have mentioned), a young married woman, had been parked north of the road. When the sheriff came along this time, Judy had backed out at an angle across the road with her car (as the sheriff described it) “slaunchwise” across the road. The automobile lights were on and the engine was running. The sheriff drove his car up on the north side of the road and stopped in front of the Judy Jones car. He testified that he told Judy she had the road blocked and asked her to move her car. Judy testified that the sheriff drove up and told her he was giving her a ticket for blocking the road; that her husband interfered and said that if the sheriff would get his car out of the way they would go on home; and that the sheriff said “we wasn’t going anywhere.” Therefrom ensued a spirited argument between Judy and Sallee as to who was blocking whom. A crowd gathered around. Sallee testified the crowd vilified him and used vulgar and indecent language toward him. This is disputed by a number of witnesses who were present with their families, including a man standing nearby holding his two-year-old grandchild. Under the rule which we shall state, it is incumbent upon us to believe the prosecuting witness in spite of strong evidence to the contrary; but we here remark that we consider it to have been an unusual procedure if these people in this farming community, consisting of husbands, wives, children, and grandparents and grandchildren, engaged in any extensive use of vulgar and indecent language and, to quote Sallee, “blackguard-ing” in the presence of each other. There is no doubt, however, that the gathering was incensed by what they considered, rightly or wrongly, the sheriff’s treatment (or mistreatment as the onlookers obviously felt) of Judy Jones. The crowd gave, in the words of one witness, some “utterance.” There were some “catcalls” apparently from the younger members of the crowd. The sheriff said that he summoned three boys to appear in magistrate court for “interfering.” We are not sure just what this ■interference was, but he said' that he had trouble getting the ticket written because those persons “just kept vilifying me all the time I was writing it — vilifying me, telling me I didn’t have the authority to and things like that.” According to defendant’s witnesses, the women and girls “sang” to the sheriff. One of the songs was “Kelley was a jolly good fellow” and another “When the roll is called up yonder he’ll be there.” (We suspect the words were changed somewhat.) Regardless of who did what, or who blocked whom, the sheriff got out his black notebook, laid it on the hood of his car, and wrote Judy a ticket. After that it appears (although it is not very clear in the evidence) that Sallee backed up “just a little” and Judy drove out. It is not contended that defendant was present or had any part in the “discussion” at the Judy Jones car concerning the blocking of the road; but the state went into this incident, the defendant willingly joined, and more record is taken up by this affair than by the actual occurrence which involved the alleged assault. Apparently the parties on both sides considered it important to establish who was right and who was wrong in the “who blocked whom” affair.

The second incident: The sheriff drove off. Before he got “half a quarter” he noticed his notebook was missing. The deputy said something about having seen it, or something, fly over the windshield. They turned around immediately and drove back to the scene of the recent argument (a number of the guests were still there), and the sheriff got out and commenced looking in the dark for the missing notebook. For some reason he was unable to find it. (This may have been the occasion when the women and girls “sang” to him.) According to Sallee’s testimony, he got back in the car and closed the door, and someone cried, “He’s having a flat, he’s having a flat.” He opened the door and heard the air whizzing out. He went back and saw a knife sticking in the tire. He says, “It made me mad.” The deputy says he was “pretty mad,” “awful mad.” According to the prosecuting witness, he said, “Well, I can take care of the dirty son-of-a-bitch that stuck that knife in my tire.” According to a number of defense witnesses, the prosecuting witness said, “I can whip the God damn son-of-a-bitch that done that.” The accompanying deputy said he didn’t hear what Sallee said. According to Sallee, Gene Billingsley (the bridegroom) had been present at the first incident and was still present in the crowd and, “he began to double up his fists and he came towards me and I went towards him then.” “I don’t believe I had a flashlight in my hand, I think I pulled up my blackjack out of my hip pocket, and just at that time there was about four different ones grabbed me.” He said two men grabbed him from behind but he never saw who they were; that the defendant “Gene Parker grabbed me by the left arm and said, ‘I’m making a citizen’s arrest for you swearing in the crowd — or in public,’ and Dick Wallace had me by the right arm.” He said he told Parker that the only man in the county who could arrest the sheriff was the coroner; and, “after some persuasion,” they turned him loose and he went back to his car. The deputy didn’t see just what happened. Some eight witnesses for defense testified concerning this affair. In the composite they say that Sallee went through the crowd swinging (but not striking at anyone) a multicelled flashlight. Gene Billingsley (who, according to defendant’s evidence, had just come from the house with his bride after changing his wet clothes and having some cake and coffee) laughed at Sallee. Then Sallee started swinging at him with the flashlight; Bil-lingsley had his arm up warding off the blows and was dodging. Sallee then pulled out his blackjack and started to strike, and at that moment Dick Wallace grabbed him and took the blackjack away from him; and defendant Parker stepped in front of Sallee, pointed his finger at him, and said something to him about making a citizen’s arrest for swearing in front of the women and children. All these witnesses say that no one grabbed Sallee from behind and all say that Parker never touched Sallee; but, if we follow the usually accepted rule, we must assume that they all lied and Sallee, and only Sallee, told the truth, although it is quite distasteful to have to assume that all of these neighbors are perjurers. Wallace (a half-brother of Billingsley) testified that when he saw Sallee get out his blackjack, “I ran over to try to get it stopped as he made the pass at Gene with this blackjack, and caught the blackjack.” He said he took the blackjack away from Sallee and Sallee grabbed for it and said, “Give me that and I’ll knock the son-of-a-bitch in the head.” He said he got Sallee by the arm and told Sallee he’d like to talk to him. They started walking back toward the car, and he gave Sallee back the blackjack. Sallee testified that Wallace did not take his blackjack from'him but admitted he had “hold” of it.

All this happened in a very short time, much less than it takes to tell it. Taylor, the deputy, said that he was sitting in the car when Sallee got out of the car. “I looked back and they was kind of scuffling. I got out of the car, but when I got out Kelley was cornin’ walkin’ up to the car, so I don’t know what happened back there.”

The third incident: The prosecuting witness drove up by the store to change his tire. The state introduced evidence of some words had up at that place and as to the fact that someone threw a handful of rocks or gravel at the back of the sheriff’s car as he drove off; but it is not claimed that the defendant was present or had anything to do with this incident. The defendant did not object; but, since it has nothing to do with the defendant, we will not relate it in further detail.

Appellant’s first complaint is to the overruling of defendant’s motion to quash the jury panel on the ground it was summoned by the sheriff, who is the prosecuting witness. It appears from the colloquy that the case had been set for trial at a previous term and continued at the. request of-the state. On May 13,1963, summons for the regular panel drawn by the jury commission was issued, and the members of this panel were served between May 15 and May 20. Most of them were served by the sheriff’s deputy. Probably three were served by the sheriff, Sallee, himself. On May 13, defendant’s counsel had written a letter to the circuit clerk requesting the issuance and delivery of certain subpoenas to the sheriff of Ozark County for service. On the morning of May 21, 1963, when the case was called for trial and the venire was present, defendant’s counsel, for the first time, made oral motion to quash the panel because the members had been summoned by the prosecuting witness. He further moved to disqualify the sheriff and have the coroner directed to summon a panel and execute all further process which might be -required. Counsel for defendant disclaimed any intention of inferring that the sheriff “has done anything wrong” in the summoning. The court overruled the motion to quash because it came too late. He did disqualify the sheriff from proceeding further and directed the coroner to act in his stead from thereon. (See § 58.190 RSMo, V.A. M.S.) It does appear, however, that he called the jury which had already been summoned into the box without requiring .their resummoning by the coroner.

If the sheriff is interested in the sense that he is a party, he is not qualified to act, and his disqualification is not a discretionary matter. (Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158, 165.) We believe that the sheriff is interested personally if he is the prosecuting witness in a case. (See State v. Powers, 136 Mo. 194, 37 S.W. 936.)

But it seems to us that the orderly process of law requires that this interest “be made to appear to the court” within a reasonable time after defendant has knowledge of the interest and opportunity to present it. The supreme court once said that when the defendant in a criminal case desires ■ to object to the competency of a sheriff to summon a jury he should present his objection before the panel is summoned. (State v. Jeffries, 210 Mo. 302, 109 S.W. 614.) We note, however, this was a “moreover” remark after a finding that the sheriff was not disqualified by his diligence in pursuing and arresting the defendant. We think the proper rule is that the defendant should present his challenge at the first reasonable opportunity after he has knowledge. There are also a number of cases which apply the common-law rule that a challenge to the array must be in writing. Our view of this is somewhat the same as that in reference to challenge prior to summoning. Defendant should not be held to such requirement until and unless he has had knowledge and a reasonable opportunity to act. See Massman v. Kansas City Public Service Co., Mo., 119 S.W.2d 833.

In this case the defendant and his counsel, the prosecuting attorney, and, of course, the sheriff had long known that the sheriff was “interested.” But there is no reason to suppose the court or, for that matter the clerk, knew of it. The court stated to the attorneys that he had not known such fact prior to the making of an oral motion. He had not examined the information. Referring again to Mannon v. Frick, supra, 365 Mo. 1203, 295 S.W.2d 158, l. c. 165, that court stated:

“ * * * Had he [the defendant] desired an earlier disqualification he should have taken some action; * * *.” and 295 S.W.2d at 1. c. 166:

“ * * * ; it was hardly incumbent upon him [the trial judge] to search out independently and in advance the relationships, official positions or actions of the parties. Such matters should normally be called to his attention by motion. * * *.”

In view of the fact that this was the regular venire selected by the jury commission and defendant conceded no wrongdoing of the sheriff in summoning the jury, and in view of the fact that none of the jurors were challenged in the polls because of anything in reference to the summoning, and in view of the fact that defendant waited until the last minute and the venire panel was in attendance, we hold that it was not error for the court to overrule the motion to quash the panel.

We have more difficulty with appellant’s second contention. The court called the panel into the box without having them summoned or resummoned by the coroner (as apparently was done in Mannon v. Frick, supra, 365 Mo. 1203, 295 S.W.2d 158). In State v. Weeden, 133 Mo. 70, 34 S.W. 473, the court disqualified the sheriff and acted as its own elisor in calling the jury previously summoned by the sheriff, instead of having them resummoned by the coroner. This was held to be error. The court said, 34 S.W. l. c. 475:

“ * * * Under this ruling it seems somewhat strange that the court itself should call into the jury box jurors who were known to have been summoned by an officer whom it had held to be disqualified, and who, it must have known, were summoned by that officer, and had not been summoned by the elisor. The fact that the regular-panel had been summoned by the sher-riff was no barrier to any or all of them being summoned for this particular case by the elisor; and,-had this course been pursued, the fact that they had been previously summoned by the sheriff would have been no valid ground of objection to them. * * * But, in calling them into the jury box, the court deprived defendant of any supposed benefit that he had the right to expect at the hands of a jury summoned by an impartial officer. * * ”

The Weeden case is cited with approval and the above portion is quoted in State v. Austin, supra, 183 Mo. 478, 82 S.W. 5, l. c. 10. It was also cited with apparent approval in State v. Rouner, supra, 333 Mo. 1236, 64 S.W.2d 916, 92 A.L.R. 1099. In Orscheln v. Scott, 79 Mo.App. 534, it was held that no person could substitute for the coroner as elisor unless he, the coroner, was disqualified. The rule of the Weeden case seems to be highly technical, but it is the last decision which we find on this specific point. The sheriff was disqualified' and the defendant had requested that the coroner summon a jury; and this point was preserved in the motion for new trial. We feel compelled to hold that not having the jury resummoned by the coroner was error.

One of appellant’s contentions is that the verdict is against the weight of the evidence and the result of passion and prejudice because the state did not produce substantial evidence of the essential elements of the offense charged. The assignment in the motion for new trial states that the verdict is the result of bias and prejudice and is against the weight of the evi--dence. This assignment then proceeds to relate a condensed version of the state’s evidence as to the acts which comprised the alleged assault. Obviously the assignment in the motion for new trial is aimed at the weight, rather than the sufficiency, of the evidence. The first question is, can we review this question ?

The general rule is that evidence favorable to the verdict is taken as true; that all favorable inferences which may reasonably be drawn from the evidence are indulged; that credibility of witnesses is first for the jury and secondly for the trial court; and that the appellate courts will not pass on the weight of substantial evidence unless it appears that the trial court has abused its discretion. Nevertheless, the appellate court has the power to weigh the evidence. The refusal to weigh is a matter of policy rather than that of authority, and if it be considered that the evidence for the state is “completely impeached” and the trial court’s ruling was arbitrary, we will (in that sense) weigh and, if necessary, reverse. Whether we may or may not weigh the evidence in order to determine whether there was complete impeachment, we choose not to do so in this case because in examination of the condensed version in the assignment in the motion for new trial our attention is immediately arrested by the question: Was this evidence sufficient to show that an assault was committed under the law ? The assignment thus raises, although imperfectly, the question of sufficiency of the evidence. Criminal Rule 27.20(c), V.A.M.R., provides that plain errors affecting substantial rights, although not raised or preserved, or defectively raised or preserved, may be considered when the court deems that manifest injustice or miscarriage of justice has resulted therefrom. State v. Brookshire, Mo. App., 355 S.W.2d 333; State v. Goodwin, Mo., 352 S.W.2d 614. Obviously if all the evidence and reasonable inferences to be drawn therefrom do not show that an ■offense was committed, i. e. that the acts shown do not constitute an offense, then a conviction for those acts, not an offense, would be a miscarriage of justice. For that reason we consider whether there is sufficient evidence to establish that an offense was committed.

Defendant is charged with assaulting Kelley Sallee by touching him in a rude and insolent manner. He is not charged under Sections 557.200, 557.210, or 557.-220 RSMo, V.A.M.S., or with otherwise interfering with an officer. The restraint or “touching” which (under the testimony ■of Sallee) the defendant applied to the person of Sallee might, or might not, have been justified depending upon whether Sallee was then engaged in some duty or activity as an officer, or whether he was then engaged, or about to engage, in some unlawful act as Kelley Sallee, a person. Was Sallee engaged in attempting to arrest Gene Billingsley?

An officer has the right to arrest without warrant if he has reasonable grounds to believe the arrestee has committed a felony. Except under certain circumstances, with which we are not here concerned, he has the right to arrest without warrant for a misdemeanor only when the misdemeanor is committed in his view or presence. If these conditions do not exist, the attempt to arrest (if it is an arrest) is unlawful, and the supposed ar-restee has the right, within reasonable limits, to resist; and, if the officer so engaged is using unreasonable and unnecessary force, one may go to the defense of the person so subjected to it to the extent necessary to protect against serious injury. State v. Browers, 356 Mo. 1195, 205 S.W.2d 721; Brouster v. Fox, 117 Mo.App. 711, 93 S.W. 318; see State v. McNail, Mo.App., 182 S.W. 1081.

Even if the arrest is otherwise lawful, the officer must give notice or make “reasonable disclosure adapted to the circumstances” to the person sought to be arrested so as to reasonably convey to that person the knowledge that arrest is sought and intended; and, generally, he should also inform the person sought to be arrested of the object and cause of his arrest. 5 Am.Jur.2d, Arrest, § 71, p. 757 ; 6 C.J.S. Arrest § 6e, p. 602.

The prosecuting witness did not claim or accuse then, and the state does not claim now, that Gene Billingsley had committed either a felony or a misdemeanor. Sallee did not inform Billingsley that he was arresting him. He does not claim that Bill-ingsley actually assaulted him and that he was defending himself after he came from the car and saw the tire and “it made me mad” — “well, I said I can take care of the. dirty son-of-a-b.itch that stuck that knife in my car.” Giving the prosecuting witness’s own story the benefit of every in-tendment, we find that he and Billingsley went toward each other, but Billingsley had made no overt act except, in the words of prosecuting witness, “he began to double up his fists.” The best we can make out of it from Sallee’s story is that here were two men willing to fight, one with his fists, the other with a blackjack. In State v. Clayton, 100 Mo. 516, 13 S.W. 819, 18 Am.St. Rep. 565, it was said at 13 S.W. 820:

“ * * * There was no testimony whatever that Allen was acting in his official capacity, as a peace-officer, in trying to effect the arrest of the defendant, at the time the assault was made; and, certainly, because he was such an officer gave him no greater rights than any other citizen, when engaged in a mere personal encounter. Indeed the testimony of Kinney rather seems to show that Allen himself was the assaulter, instead of the party assaulted. * * * In this latitude, at least, we have not yet reached the point where ‘there’s such divinity doth hedge’ an official that he is exempted from the operation of the ordinary laws of the country. As to those, laws, he occupies jus.t the same position as the humblest citizen, — no better and no worse. It is only where an officer is actually engaged in performing some official duty that the law throws around him its ‘special protection,’ and not otherwise or elsewhere. * * * ”

It is our conclusion that Kelley Sallee was then acting only in the position of a private citizen then engaged, or about to engage, in an affray.

Under the circumstances, was the defendant’s act in taking hold of Sallee’s arm (as Sallee says) and stating, “I’m making a citizen’s arrest for you swearing in public,” an assault? By common definition, to constitute an assault there must be an “unlawful force,” an intentional unlawful offer of bodily injury to another under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented. 6 C.J.S. Assault and Battery § 57, p. 913; State v. Higgins, Mo.App., 252 S.W.2d 641; State v. Lynn, Mo.App., 184 S.W.2d 760.

The word “arrest” comes from the French word arreter which means to stop, detain, hinder, or obstruct. One of the purposes of arrest is the restraining or detaining of a person in order to prevent the commission of a crime. Alexander, The Law of Arrest, Vol. 1, § 45, p. 353. The private citizen is limited in the power of arrest; but he does have the right, without warrant or other process, to arrest for certain crimes, such as the commission of a felony or the commission of petit larceny in the presence. But he should be sure both of the crime and of the person. Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 130 S.W. 681; see State v. Parker, 355 Mo. 916, 199 S.W.2d 338, 340. All authorities seem to agree that a private citizen has the right (where not abrogated by statute) to arrest in order to prevent a breach of peace or an affray. We know of no statute which abrogates -this right of the citizen in this state.

As we have said, Sallee was engaged, or about to engage, in a breach of the peace or an affray. Again according to his testimony, he had used the words ■“son-of-a-bitch” in an angry manner. We are not an authority on whether “swearing” is considered by the general public to consist only in taking the Lord’s name in vain. Certainly in Southern Missouri the words ■“son-of-a-bitch” when used in an angry manner are considered as “fighting words” and a breach of the peace likely to produce a more violent breach. The touching of the arm, or the taking hold of the arm, was not accompanied by any other force or threat. It was but a temporary, almost momentary, restraint which we believe the defendant had a right as a citizen to impose under the circumstances. This being true, no assault was committed. Accordingly, the judgment of conviction is reversed and the defendant is ordered discharged.

STONE and HOGAN, JJ., concur.

      . With a charge of black powder between two anvils.

      . This may have been on the occasion of “the second incident.”

      . State v. Page, 212 Mo. 224, 110 S.W. 1057; State v. Rouner, 333 Mo. 1236, 64 S.W.2d 916, 921, 92 A.L.R. 1099; Samuels v. State, 3 Mo. 68; State v. Austin, 183 Mo. 478, 82 S.W. 5; State v. McKinney, 254 Mo. 688, 163 S.W. 822; see Doran v. Ross, 240 Mo.App. 823, 221 S.W.2d 756.

      . State v. Church, 199 Mo. 605, 98 S.W. 16; Doran v. Ross, supra, 240 Mo.App. 823, 221 S.W.2d 756; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 106; State v. Garrett, 2S5 Mo. 279, 226 S.W. 4.

      .We note that it appeared on voir dire that a majority of the panel members had received a letter signed “The Reverend Doctor Merle E. Parker”; but the record does not show the content of this communication, and we cannot be concerned with it here. If it was an attempt by the defendant to influence the jury, the defendant may he subject to the imposition of procedures possibly more serious than the charge of common assault — but that is -not this case.

      . State v. Truster, Mo., 334 S.W.2d 104; State v. Emrich, Mo., 250 S.W.2d 718, 725; State v. Bowman, Mo., 12 S.W.2d 51; State v. Miller, 318 Mo. 581, 300 S.W. 765; see cases in West’s Digest, Vol. 9A Criminal Daw @=>1159(2, 3, 4).

      . King v. Kansas City Life Ins. Co. (banc), 350 Mo. 75, 164 S.W.2d 458, and cases at footnote 3, p. 464; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 51; State v. Welton, Mo., 225 S.W. 965; State v. Prendible, 165 Mo. 329, 65 S.W. 559; State v. Huff, 161 Mo. 459, 61 S.W. 900; State v. Kelsay, Mo., 228 S.W. 754.

      . State v. Dunivan, 217 Mo.App. 548, 269 S.W. 415, 417; State ex rel. Patterson v. Collins, Mo.App., 172 S.W.2d 284(15), and eases at 291; State v. McBride, 327 Mo. 184, 37 S.W.2d 423(5); State v. Jenkins, 321 Mo. 1237, 14 S.W.2d 624, 625; State v. Peters, Mo., 242 S.W. 894.

      . City of St. Louis v. Penrod, Mo.App., 332 S.W.2d 34; State ex rel. and to the Use of Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132; State v. McGehee, 308 Mo. 560, 274 S.W. 70; State v. Burnett, 354 Mo. 45, 188 S.W.2d 51, 53; 357 Mo. 106, 206 S.W.2d 345.

      . Alexander, The Law of Arrest, -Vol. 1, § 98, p. 494; State v. McGehee, supra, 308 Mo. 560, 274 S.W. 70, 72-73; City of St. Louis v. Penrod, supra, Mo.App., 332 S.W.2d 34; see State v. Burnett, supra, 354 Mo. 45, 188 S.W.2d 51; 357 Mo. 106, 206 S.W.2d 345; Satterwhite v. State, 112 Tex.Cr.B. 574, 17 S.W.2d 823; State v. Mobley, 240 N.C. 476, 83 S.E.2d 100.

      . 5 Am. Jur.2d, Arrest, § 70, p. 756; Alexander, The Law of Arrest, § 93, p. 479; 6 C.J.S. Arrest § 6e, p. 602; Gray v. Earls, 298 Mo. 116, 250 S.W. 567(2), and eases at 572; State v. Nolan, 354 Mo. 980; 192 S.W.2d 1016,1020; see State v. Bollins, 226 Mo. 524,126 S.W. 478.

      . Restatement of the Law, Torts, § 141, p. S27; 5 Am.Jur.2d, Arrest, § 34, p. 726; 6 C.J.S. Arrest § 8e, p. 607; Wharton’s Criminal Law and Procedure, Yol. 4, § 1603, p. 261; Cooley on Torts, 3d ed., § 203, p. 306; Carroll v. United States (Mich.), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, 802; Woods v. State, 152 Tex.Cr.R. 338, 213 S.W.2d 685; Rich v. Bailey, 123 Ky. 827, 97 S.W. 747, 748; Lima v. Lawler, D.C. Va., 63 F.Supp. 446, 451; Palmer v. Maine Cent. R. Co., 92 Me. 399, 42 A. 800, 803, 44 L.R.A. 673; Baltimore & O. R. Co. v. Cain, 81 Md. 87, 31 A. 801, 803, 28 L.R.A. 688.


author: HOGAN, Judge.

text:
    SERVICE CONSTRUCTION COMPANY, Plaintiff-Appellant, v. Carl NICHOLS and Eugene Nichols, d/b/a Nichols Construction Company, and L. S. Lepchenske, Defendants-Respondents.
    No. 8233.
    Springfield Court of Appeals. Missouri.
    April 24, 1964.

      George B. Scott, Jr., Poplar Bluff, for plaintiff-appellant.
    Clarence A. Powell, John W. Ringer, Powell, Jones and Ringer, Dexter, for defendants-respondents.
   HOGAN, Judge.

Plaintiff, a corporation, instituted this action to recover for labor and materials furnished in the construction of a parking area and driveway, and to establish a mechanic’s lien against the land upon which they were located. The claim for a mechanic’s lien was dismissed at the close of plaintiff’s case and only incidentally concerns us here. Upon trial to the court, plaintiff had judgment against the defendants Carl and Eugene Nichols, as the general contractors, upon their admission that they owed the sum of $503.84. After an unavailing motion for new trial, plaintiff has appealed, setting up error in the admission of certain evidence and maintaining that the trial court should have allowed the full amount of its claim, which was $3,122.15.

In April 1961 the defendants Nichols, under the name Nichols Lumber Company, or Nichols Construction Company, entered into a contract with Lepchenske and his wife for the construction of a filling station at the corner of U. S. Highway 60 and McCullen Avenue in Dexter, Missouri. Upon completion, the property was to be used as a Shell Oil Company service station, and the contract called for construction according to detailed plans and specifications provided by Shell. Though the contractual arrangements between Shell and the property owner do not appear of record and have no particular significance on this appeal, it does appear that Shell retained some measure of indirect control and supervision over the construction.

Among other things, the detailed plans called for the installation of an asphalt parking area and driveway, apparently tp cover an area somewhat in excess of 1,100 square yards. The plans and specifications called for two-inch asphaltic concrete pavement to be laid over a six-inch rock base, and elaborate directions were provided for proportioning, mixing, placing and rolling the aggregate and asphalt to be used. Whether or not literal compliance with these was required, provided the end result was satisfactory, is left in some doubt by the record.

Some time early in September, Mr. Lan-duyt, who was president of the plaintiff corporation, approached the Nichols firm with a written “proposal” concerning the pavement. The plaintiff offered to cover or pave an area of 1,143 square yards “with two inches of asphaltic mix” at a cost of $2.10 per square yard. It was provided that the plaintiff was to furnish all materials, labor and equipment, and was “to do the job in a workmanlike manner.” Upon acceptance, the proposal or offer was to constitute a contract between plaintiff and the Nichols firm.

Both parties admitted execution of the contract, and there seems to be no serious question that plaintiff did prepare the base and pave the driveway and parking area. The two principal areas of controversy upon the trial were whether, ■ in the first place, the plaintiff had agreed to use the asphalt mix prescribed by Shell in the plans and specifications but had actually substituted a cheaper and inferior preparation, and, in the second place, whether the paving material laid down by the plaintiff was suitable for use as a service station driveway and parking area, regardless of its composition.

Though we do not seek to brush aside or ignore any of the arguments advanced here by the parties, we consider the. first of these controversies or factual disputes to be largely immaterial upon this appeal. The defendants maintained that the plaintiff had represented it would use the asphalt mix called for by the specifications, but had in fact used another less expensive and less durable mix, and for that reason the pavement had proved unsatisfactory. -The plaintiff, on the other hand, took the position that both parties had understood that the materials being furnished by the plaintiff did not meet the Shell specifications. So far as we can determine from the record before us, the evidence leaves this matter largely unresolved. Though various witnesses testified at considerable length concerning the composition and qualities of different types of asphalt mix, the terms “asphaltic concrete” and “asphaltic mix” appear to be generic terms, conveying different impressions to different .minds at the same time. And though a great deal was made at thé trial of the .superior qualities of the so-called “hot mix” as compared with a “cold mix,” we cannot confidently, say that the' complexities of asphalt paving were sufficiently developed by the evidence for us to form a judgment whether plaintiff, by common custom and usage, implied that he would use one kind of mix and subsequently used another, or that the accomplishment of a' satisfactory result depended upon the plaintiff’s use of a “hot mix” as against a “'cold mix,” as contended by the defendants. ■ For that matter, the defendants’ argument that they were misled into believing that the plaintiff would use the -kind of pavement specified in the original ■contract is, .in our view, somewhat over-stated in .light of the fact that the con- ■ tract between plaintiff and defendants clearly states that it “covers all agreements between us,” and in view of the fact that defendant Carl Nichols, being pressed as to what, he actually said to the plaintiff’s representative during their contract negotiations, stated that he had told Mr. Landuyt that “as long as the Shell representatives were satisfied with the job * * * we would be tickled to death.”

Much.more to the point upon the merits -of this case is the controversy or dispute •over whether the pavement laid down by the plaintiff ever “cured out” or hardened ' sufficiently to become firm and stable enough for use as a service station driveway and parking lot. It was not seriously questioned by the defendants that the plaintiff company had done most, if not all, of 'the work which it had contracted to do. By means of a progress report or “worksheet on cost” prepared by the plaintiff in the regular course of business, and introduced in evidence, it was shown that the plaintiff 'had,' between November 2, ;1961, and May 2, 1962, furnished labor and materials somewhat in excess of the original contract price, and it is conceded that paving material of some ■ sort was put down. • What the parties are in basic disagreement about, and the principal disputed issue at the trial, is. whether the materials put down by the plaintiff ever actually became pavement.

While' the plaintiff produced no witness who was present at all times, it sufficiently appears from the testimony of its officers, and from the records produced by the plaintiff at the trial, that work was begun on the project on November 2, 1961, and continued at various times until December 2, when, as defendant Carl Nichols put it, “the weather set in bád,” and the plaintiff was obliged to suspend operation -until April 3, 1962.' Work was again resumed, and by May 6, 1962, the project was finished. If plaintiff’s somewhat arbitrary cost figures are used, the total amount^of labor, materials and equipment .furnished somewhat exceeds the original contract price.

The defendants,' who were unfamiliar with the subject of asphalt paving, did not undertake .to supervise the.plaintiff in the performance of the work and “didn’t go by during the construction period.” When the defendants did inspect the surface, a “day or two” after it had been "laid, defendant Carl Nichols observed “bicycle tracks, depressions where kids had driven over it, and it wouldn’t hold that up,” and when Mr. Nichols inspected the pavement again the following week, he found “tire tracks” “three-quarters to over ■ an inch” deep, with water standing in ■them. Mr. Nichols then contacted Mr. Landuyt and was told that “it would cure out,” and the record indicates that the plaintiff then made several attempts to correct the soft condition of the pavement.

It is enough to say that their efforts were unsuccessful and that the pavement remained soft, although it is not at all clear why. We may infer from the record that asphalt paving of this type normally “cures” or hardens over a period of two days to two weeks, and the plaintiff’s officers insisted that the “major portion” of the pavement did “cure out” and would, in time, have been serviceable. The defendants’ evidence left no doubt, however, that the pavement remained soft some six weeks after it was laid and was finally rejected by the Shell engineers as unsuitable for their purpose. Finally, the defendants were obliged to have the plaintiff’s pavement removed and replaced, at a cost of $2,530.00, and upon the trial they conceded again that they owed the difference between the contract price and this cost of replacement.

On this appeal the plaintiff develops two principal points. First, the plaintiff maintains that the trial court should have excluded evidence bearing on the reasonable value of plaintiff’s services because, as we understand, the case was submitted upon the theory that there had been a breach of an express contract, and therefore adequacy of the consideration was not in issue. In support of this argument, the plaintiff cites Young v. Hall, Mo.App., 280 S.W.2d 679, 681 [3-5], in which this court held that recovery on a counterclaim based upon a breach of an express contract could not be sustained upon evidence supporting only a recovery in quantum meruit. The plaintiff further argues the sufficiency of the evidence generally, maintaining that the trial court should have found for the plaintiff in the full amount claimed.

To discuss the plaintiff’s first point clearly, it is necessary to consider, at least briefly, the plaintiff’s theory of the case as it was pleaded and submitted to the trial court. The plaintiff’s petition is brief and, after alleging the corporate existence of the plaintiff company, sets out serially that the defendants are justly indebted to the plaintiff in the sum of $3,122.15 for materials, work and labor done by the plaintiff “at the request of said defendants,” as shown by an attached and incorporated schedule; recites that the items claimed were furnished in improving certain described real estate; states that the defendants were the original contractors; that demand had been timely made and by implication that payment had been refused ; and, after pleading compliance with the requirements of Sections 429.080, 429.-090 and 429.100, prayed judgment in the sum of $3,122.15 and for the imposition of a lien upon the property described. The attached schedule (listing the items claimed) set forth the work, labor and materials furnished under plaintiff’s contract, and it also listed two items not covered by the contract. No copy of the contract was attached, nor was the contract alleged either in haec verba or according to its effect.

The defendants, in their responsive pleading, alternatively tendered the general issue and, after pleading various matters of inducement, generally alleged breach of the plaintiff’s contract on the ground that by implication the plaintiff had agreed to comply with Shell’s specifications. As alternative defenses, the defendants pleaded further that plaintiffs had falsely represented that the pavement to be furnished would be hot asphalt mix, when in fact it was not, and also alternatively pleaded, by way of recoupment, that the work “was so constructed that it was of little or no value,” and generally pleaded damages in the sum of $2,530.00, representing the cost of replacing the allegedly defective pavement. The affirmative answer specifically admitted that defendants Nichols were indebted to the plaintiff in the sum of $492.15, with interest. By way of counterclaim, the defendants realleged the averments of their answer and additionally set out various items of incidental damage because of plaintiff’s breach of contract, then prayed judgment in the amount of $182.03. The defendants also filed an offer of judgment in the amount ■of $492.15.

In determining what a party’s theory of an action was, in the court of first instance, it is always proper to look to the pleadings, Young v. Hall, supra, 280 S.W.2d 679, 681 [2], even though they do not, in this case, fully determine the nature of the action. Aside from the averments showing compliance with the mechanic’s lien statutes, the framework of plaintiff’s petition is simply that the defendants are justly indebted to the plaintiff for services rendered and materials furnished at defendants’ instance and request. Performance and the time of performance and delivery are alleged, the character and nature of the services are stated, and by implication a promise to pay is raised. While it is unnecessary to characterize the pleading precisely, any superficial examination of the precedents will show that these allegations declare upon one of the quantum counts in general assumpsit. Of .course, it was not the pleader’s primary object to secure a money judgment against the defendants but to establish its lien claim, and it is possible in certain circumstances to establish a lien claim either by declaring upon an express contract or in quantum meruit, K-V Builders, Inc. v. Thomas, Mo.App., 353 S.W.2d 130, 135 [2-4]; Rust Sash and Door Co. v. Bryant, Mo.App., 124 S.W.2d 544, 549 [12, 13]; and strictly speaking, the forms of an action have been abolished. Rule 42.01; Section 506.040. Therefore it is probably inaccurate to say that the form of this action can be characterized from the pleadings alone. Even so, the parties must, on appeal, adhere to the theory presented below, and the parties may not now repudiate their own characterization of the action, or construction of the pleadings in the trial court.

It is true that during the course of the trial the plaintiff introduced its contract with the defendants in evidence, but this is not, as defendants maintain, inconsistent with an action upon quantum meruit; rather, it affords prima facie proof of the value of the services rendered, and as such is properly received in evidence even when recovery is sought upon quantum meruit and not upon the contract. Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 838, 253 S.W.2d 824, 829 [5]; K-V Builders, Inc. v. Thomas, supra, 353 S.W.2d at 135; American Surety Co. of New York v. Fruin-Bambrick Constr. Co., 182 Mo.App. 667, 675, 166 S.W. 333, 335 [3], Having offered the contract in evidence, the plaintiff’s counsel in this case went rather elaborately into the reasonable value of the services rendered by introducing a “worksheet” which listed, item by item, the units of labor and materials which had been furnished, and stated that he was doing so because “you can recover on a quantum meruit as well as a contract * * * and we’re showing the reasonable cost of it.” Having thus characterized his own action, we think counsel may not now renounce it here, Gover v. Cleveland, supra, n. 4, 299 S.W.2d at 243 [10, 11]; Rodgers v. Levy, Mo.App., 199 S.W.2d 79, 81 [1-3], and we conclude that plaintiff’s theory, as actually developed and presented in the trial court, was quantum meruit.

The plaintiff’s claim of error in the reception of evidence must be viewed in this light. The evidence, we take it, to which plaintiff objects consisted of a showing that the plaintiff had done comparable work in the same locality, on relatively similar projects, at a substantially lower figure. More precisely, it was shown that the plaintiff had laid pavement which one of its officers called “comparable” at Poplar Bluff for $1.00 per square yard, and had bid on somewhat similar work in Dexter for approximately 89 cents per square yard, as against the plaintiff’s charge of $2.10 per square yard for the project in question here. Considering the evidence as a whole, it must he borne in mind that the plaintiff had introduced its “worksheet” on the basis that the charges reflected therein were those customarily made in the industry; the charges shown were said to be arbitrary but standard. It is apparent to us that the force of this evidence was to show that plaintiff’s charges — and plaintiff sought recovery for extra items, for which there was no agreed price — were those customarily made by paving contractors in the area for similar work. We may concede that it was proper, in an action upon quantum meruit, to show what is usually charged for similar work in the same locality. Glover v. Henderson, 120 Mo. 367, 380, 25 S.W. 175, 178; Beebe v. Columbia Axle Co., 233 Mo.App. 212, 226-227, 117 S.W.2d 624, 634 [19]; 32 C.J.S. Evidence' § 593d, p. 452.

Generally speaking, evidence should be received subject, where appropriate, to a limiting instruction, if it is admissible for any purpose. It was essential, if plaintiff was to recover in quantum meruit, that its proof show that the charges made were fair and reasonable, Williams v. Cass, Mo.App., 372 S.W.2d 156, 161 [10, 11]; Hutchinson v. Swope, Mo.App., 256 S.W. 134, 135 [1-4], and its proof of reasonable value was properly received. However, it does not follow, as the plaintiff seems to maintain, that the defendants’ evidence concerning the actual value of the services and materials furnished bore solely upon their affirmative counterclaim. They may indeed have set up their allegations of misrepresentation by the plaintiff in the belief that plaintiff sought recovery upon an express contract, and perhaps in an attempt to avoid the parole evidence rule, but they were not limited to making proof on their counterclaim. They had pleaded a general denial and were entitled to prove matters showing that the reasonable value of plaintiff’s services were less than it claimed. Brush v. Miller, Mo.App., 208 S.W.2d 816, 819 [2, 3]; John O’Brien Boiler Works Co. v. Sievert, Mo.App., 256 S.W. 555, 557. The evidence complained of directly controverted one of the essential elements of the plaintiff’s case, that is, that the charges made were fair and reasonable. Since it was admissible for that purpose, we consider that it was properly received.

In any event, the admission or exclusion of evidence is not necessarily determinative of this appeal. The case was tried to the court without a jury, and it is our duty to try the case de novo upon the law and the evidence, deferring to the trial court’s findings upon controverted factual matters. We may set aside the judgment only if it is clearly erroneous. Rule 73.01(d); Section 510.310 (4); K-V Builders, Inc. v. Thomas, supra, 353 S.W.2d 130, 132 [1], It does not appear from this record what ground the trial court acted upon, but that is immaterial so long as the result can be justified upon any legal theory consistent with the pleadings. City of St. Louis v. Evans, Mo., 337 S.W.2d 948, 954 [2]; Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1004, 291 S.W.2d 166, 170 [1]; Holland Banking Co. v. Republic Nat’l Bank, 328 Mo. 577, 588-589, 41 S.W.2d 815, 820 [8], In bare outline, the record shows the case to be that the plaintiff sought to establish a mechanic’s lien for doing certain paving under a subcontract with the principal contractors, the defendants. The execution of the contract is admitted. Though the defendants strongly maintain that the nature of the plaintiff’s undertaking was misrepresented to them, the record is susceptible to the construction that both plaintiff and defendants knew the pavement was to be used by Shell Oil Company, and were of the opinion that Shell would probably approve something different from the type of pavement specified if it was satisfactory upon inspection. The trial court could reasonably have found that the plaintiff did lay a pavement, that a considerable amount of labor and materials were expended by the plaintiff in doing so, and that the plaintiff’s charges were reasonable. However, although the contract specified that the plaintiff would “do the job in a workmanlike manner,” the pavement failed to cure or harden properly; the reason why it remained soft is not altogether clear from this record. Both the defendants and the owner of the premises complained, and the plaintiff made some effort to correct or rectify the unsatisfactory condition of its work. The plaintiff’s officers maintained that the pavement would eventually become hard or “cure,” but a number of witnesses, some of them experts, testified that the plaintiff’s pavement would never become firm enough for use as a service station driveway and parking area. The plaintiff’s work was in fact rejected by the Shell representatives, and it seems clear that the pavement remained soft long after it should have cured or hardened. The defendants, either losing confidence or patience, had the plaintiff’s pavement removed and replaced by another contractor at a cost of $2,530.00. In dong so, they admittedly retained benefits reasonably worth $492.15. The plaintiff sued for the sum of $3,122.15, which included at least one extra item for $100.00. This extra work was shown to have been rendered at the request of the prospective lessee of the station and not at the defendants’ request. The trial court entered judgment for the plaintiff in the sum of $503.84, which the defendants admitted owing, and which was tendered after suit was commenced. The trial court also assessed costs from the date of tender against the plaintiff. The judgment represents the amount which the defendants confessed to be due, $492.15, with interest to the date of tender.

Whatever the original theory of its pleading, the plaintiff sought recovery of the sum of $3,122.15. The defendants pleaded, among other things, that the work was so constructed that it was “of little or no value.” The judgment, it will be seen, represents the difference between the amount claimed to be due by the plaintiff and the cost of replacing the pavement, less the $100.00 extra item which was admittedly done at the prospective lessee’s request. A part of the plaintiff’s contract, express or implied, was the obligation to lay the pavement in a skillful and workmanlike manner so it would be reasonably adapted to the purposes for which it was intended. Whether or not the pavement had been laid in a workmanlike manner was a fact question, Smith v. Clark, 58 Mo. 145, 146, and the conflict on this point was a matter for the tried court to resolve. Since the defendants specifically alleged that the pavement was constructed of defective materials and was “of little or no value” as constructed, they were entitled to show a lack of skillful workmanship as a purely defensive matter if the action be construed as one upon the contract, Lewis v. Oliver, Mo.App., 220 S.W.2d 748, 752 [1, 2]; Brush v. Miller, supra, 208 S.W.2d at 820-821, or they were entitled to show the same matters as purely defensive material under their general denial, if the action is viewed as one upon quantum meruit. Brush v. Miller, supra, 208 S.W.2d at 819 [2, 3]; John O’Brien Boiler Works v. Sievert, supra, 256 S.W. at 557. Proof of defective workmanship could, in either event, he considered solely in reduction of diminution of plaintiff’s claim without reference to the defendants’ counterclaim, Brush v. Miller, supra, 208 S.W.2d at 820, and upon proof that the unsatisfactory condition of the plaintiff’s pavement made its removal and replacement necessary, the trial court could properly have diminished the plaintiff’s recovery in the sum of $2,530.00, which was the cost of replacement. Upon the record presented, the court could have found that the defendants did not request performance of the $100.00 item. The offer of judgment after the action was commenced stopped the running of costs from the time of the offer. Lemaire v. Strassberger Conservatories of Music Co., Mo.App., 179 S.W. 959, 963 [4].

The judgment is therefore affirmed.

RUARK, P. J., and STONE, J., concur.

      . Warder v. Seitz, 157 Mo. 140, 149, 57 S.W. 537, 539; Klein v. Terminal R. Ass’n of St. Louis, Mo.App., 268 S.W. 660, 663 [2]; 58 Am.Jur., Work and Labor, § 57, p. 557; Shipman, Common Law Pleading, § 123, pp. 256-57 (3rd. ed. 1923).

      . All references to statutes and rules are to RSMo (1959), V.A.M.S, and V.Á.M.R., unless otherwise noted.

      . Johnson v. Fotie, Mo., 308 S.W.2d 662, 667 [4, 5]; Gilliam v. Gohn, Mo., 303 S. W.2d 101, 108 [15, 16]; Smithpeter v. Wabash R. Co., 360 Mo. 835, 852, 231 S.W.2d 135, 146 [17], 19 A.L.R.2d 950, 953; Simmons v. Friday, 359 Mo. 812, 818-819, 224 S.W.2d 90, 93-94 [5].

      . Gover v. Cleveland, Mo.App., 299 S.W.2d 239, 243 [10, 11]; Kelley v. National Lead Co., 240 Mo.App. 47, 55, 210 S.W.2d 728, 731 [1, 2]; Clardy v. Kansas City Pub. Serv. Co., 227 Mo.App. 749, 753, 42 S.W.2d 370, 372; 4 C.J.S. Appeal and Error § 241d(l), pp. 730-731,

      . Martin v. Mercantile Trust Co., Mo., 293 S.W.2d 319, 329 [14, 15]; Louis Steinbaum Real Estate Co. v. Maltz, Mo., 247 S.W.2d 652, 656 [8], 31 A.L.R.2d 1052, 1053; Scott v. Missouri Ins. Co., 361 Mo. 51, 59, 233 S.W.2d 660, 665 [9]; State ex rel. Kansas City Pub. Serv. Co. v. Shain, 345 Mo. 543, 549, 134 S.W.2d 58, 61 [3]; McCormick, Evidence, § 59, pp. 135-36.

      . Economy Fuse & Mfg. Co. v. Raymond Concrete Pile Co., 7 Cir., 111 F.2d 875, 878-79 [8-10]; Brush v. Miller, supra, 208 S.W.2d at 818 [1]; Usona Mfg. Co. v. Shubert-Christy Corp., Mo.App., 132 S.W.2d 1101, 1104 [13]; John O’Brien Boiler Works Co. v. Sievert, supra, 256 S.W. at 557 [1-5]; 4 Williston, Contracts, § 1014, pp. 2792-93 (Rev. ed. 193G).