author: BROADDUS, Judge.

text:
    W. D. BAKER, Appellant, v. STEWART SAND & MATERIAL COMPANY, a Corporation, Respondent.
    No. 23312.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.

      Warren S. Earhart, Loeb H. Granoff, Kansas City, for appellant.
    Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Charles F. Lamkin, Jr., Kansas City, for respondent.
   BROADDUS, Judge.

This is an action for damages for personal injuries sustained in the use of ready-mixed concrete. Plaintiff recovered a verdict and judgment against defendant Stewart Sand & Material Company in the amount of $5000. The trial court set aside the verdict and entered judgment for defendant in accordance with its motion to set aside the verdict, and in the alternative, the trial court sustained defendant’s alternative motion for a new trial. Plaintiff has appealed.

Plaintiff is a real estate salesman. He is a high school graduate and also took a business course in a college at Minneapolis, Minnesota. His testimony was that in July, 1958, he decided to rebuild a concrete patio adjacent to his house and built forms and poured a concrete base with ready-mixed concrete. His previous experience with concrete had been as a boy to assist his father, with concrete mixed by himself and brother, in building a foundation for a house; in 1950 building with ready-mixed concrete the original patio; in 1952 building some steps with ready-mixed concrete; and in 1953 or 1954 purchasing two sacks of cement, of which he used only part for patching. Plaintiff stated that he did not know that cement contains lime, understands that lime has a caustic effect, but does not know whether it has a poisonous effect. He did not know that cement contains material which is harmful on prolonged contact.

On August 2nd, 1958, defendant delivered two cubic yards of ready-mixed topping concrete to plaintiff, which plaintiff had ordered on advice of a friend. Plaintiff did not tell defendant how he wanted the material mixed. Plaintiff when using the concrete was dressed in a short sleeved T-shirt, blue jeans, cotton socks and rubber hunting boots and wore leather gloves. The defendant’s truck unloaded the concrete topping and a friend of plaintiff hauled it to the patio in a wheel-barrow. Plaintiff spread the concrete on the patio, using a shovel and rake, leveled with a two by four board, putting one and one-half inches on the top of the concrete base. Plaintiff had to stand in the material in order to level it, and, in unloading and spreading, the material splashed on him and his clothing, so that parts of his clothing became saturated with the concrete topping, and some of the material dripped into his boots. It took about two hours to do the work.

After placing and smoothing the topping concrete plaintiff took a bath and laid down to rest and fell asleep for an hour or longer. When he awoke his legs itched and red spots on his legs were oozing a brown substance. He then changed his clothes and spread the top of the concrete with a trowel by kneeling on a piece of plywood with an old piece of rug under it. This took about three hours.

Around five o’clock plaintiff’s legs began to get sore and by ten p. m. began to hurt. His legs and feet were red and swollen and draining the next day and very sore, and his feet and legs hurt when he put his weight on them. Monday, August 4, 1958, he couldn’t stand on his feet and he dressed and consulted Dr. Robert H. Hodge. The doctor prescribed moist applications and other treatment. Plaintiff was confined to bed for five or six days. He returned to work August 21 but only worked half days until October 1st. It was September or October before he could take the bandages off and when he did his legs were scarred and discolored. His legs and feet were still scarred at the time of the trial and the scars itched and bled if scratched. Dr. Hodge found plaintiff’s condition to be as above described and diagnosed it as contact (caused by something with which he came in contact) dermatitis, and expressed the expert opinion it was caused by exposure to the concrete mixture.

Plaintiff contends that the trial court erred in setting aside the verdict in his favor and rendering judgment for defendant in accordance with its motion for a directed verdict.

The theory of the plaintiff was that the cement and concrete were dangerous and unsafe because of the caustic material contained therein, and that the defendant knew it would be dangerous to the plaintiff, but failed to warn him. The facts showed that the concrete was a standard mixture, and that the cement contained therein met all standard specifications. There was no probative evidence to the contrary. The question is whether the defendant, under the circumstances, should have reasonably contemplated that the plaintiff’s injuries would naturally and probably follow from the furnishing by defendant to the plaintiff of a building material in universal use down through the years, unless it warned him that prolonged exposure without proper clothing in hot weather might irritate his skin — a warning shown by the undisputed evidence never given in the industry.

We have found no Missouri case directly in point. However, the question has been before the courts of other states and in all of those cases a recovery was denied.

'The case of Katz v. Arundel-Brooks Concrete Corporation, 220 Md. 200, 151 A.2d 731, 78 A.L.R.2d 692 (1959) involved practically the same facts as those appearing in the instant case. Plaintiff wanted to put down a concrete floor in the basement of a building. He ordered four cubic yards of ready-mixed concrete. Plaintiff, with a helper, spread the concrete with rakes and other tools to a depth of four inches. He had never worked with concrete before and made no inquiries of anyone as to the proper precautions to be taken. Plaintiff spent five hours on his hands and knees in and around the concrete. He wore no gloves, pads or protective clothing except ordinary work trousers. The knees of his trousers were thoroughly saturated with the liquid mixture. When he finished the spreading job, he found that he had sustained third degree burns on his knees. He suffered no injury to his bare hands.

Plaintiff in that case sued on a negligence theory. He alleged that the concrete was unfit for the purpose intended, and that the defendant gave no warning of the dangerous, or potentially dangerous, properties of the concrete, which were known and should have been known to the defendant. Plaintiff’s main witness was a chemical engineer who qualified as an expert on cement (30 years with the U. S. Bureau of Standards). This witness testified as to the chemical properties of cement, as follows:

“That all cement contains some alkaline ingredients such as sodium and potassium hydroxides in amounts up to 1% and some small amounts of calcium oxide which on prolonged contact with the skin can produce a chemical burn, particularly if the skin is sensitized by cuts, bruises, or chafing as by the sand in a concrete mix. Among people who work with cement, these properties are well known and it is customary to use some protection, such as boots, pads or burlap wrappings. Some wear gloves, however, the palms of the hands are not particularly sensitive to injury. There has never been any government directive requiring sellers of mixed concrete to post a warning notice on the product or to warn of its chemical properties or caustic action when wet.”

The court, in holding that the defendant had no duty to warn, stated: “We take it that this is not a claim for breach of warranty of fitness. There was no showing that the concrete delivered was defective, that it contained anything unusual, or that it was not safe to use in the usual and customary manner. The buyer got precisely what he ordered, wet concrete mixed according to specifications. * * *

“An action for negligence will lie against a supplier of a commodity for failure to warn of a latent danger attendant upon a proper use of the commodity supplied, at least where injury is foreseeable and probable * * * knowledge of dangerous properties may be imputed to the manufacturer or supplier.

“The authorities indicate that the test is one of reasonableness under the circumstances; that a supplier is under a duty to make his product reasonably safe for its intended use with ordinary care; but a duty to warn of inherent dangers only arises when there is a reasonable probability of injury unless warning is given. Most of the cases in which liability has been found are cases where there was a serious defect in the commodity supplied, or where the commodity was so new that its dangerous properties could not reasonably be known or ascertained by the user. ■Concrete is certainly not a new product, since it has been in consumer use in every hind of construction project for at least fifty years. Moreover, it is perfectly safe to use if normal precautions are taken against prolonged application to sensitive portions of the skin. The caustic properties of lime, and lime products, have been known for centuries. In considering the extent of the duty to warn, it may be noted that ready-mixed concrete is customarily sold to builders who are thoroughly familiar with its properties, not to a casual user without prior experience. Thus warnings in most cases would only dilate upon the obvious. We think it would be as unreasonable to require every supplier of concrete to warn of its caustic properties as to require an electric company to warn of the danger of touching uninsulated wires. If the danger is not patent, it is at least in the realm of common knowledge which the supplier may take for granted.” (Emphasis ours.)

In Imperial v. Central Concrete, 1 A.D.2d 671 (1955), 146 N.Y.S.2d 307, affirmed without opinion, 2 N.Y.2d 939, 162 N.Y. S.2d 35, 142 N.E.2d 209 (1957), there was a nonsuit at the close of the plaintiff’s case in the trial court. The appellate division affirmed in a memorandum opinion, one justice dissenting, and the court of appeals unanimously affirmed without opinion. The court held that:

“Even if it be assumed that (plaintiff) proved that his injuries were caused by lime or some other substance improperly present in the concrete delivered by (defendant), it is our opinion that th.ere is no proof that (defendant) had actual or constructive knowledge of the presence of such harmful substance in the concrete or was in any way negligent in selling or delivering the concrete. There is no evidence that concrete is commonly considered to be a dangerous commodity or that tests were usual or customary before it was sold or that injuries from its use was within the range of reasonable apprehension.” (Emphasis ours.)

Also in Dalton v. Pioneer Sand and Gravel Company, 37 Wash.2d 946, 227 P.2d 173 (1951), the trial court dismissed the action at the close of plaintiff’s case. The Supreme Court affirmed the dismissal in a unanimous decision. The plaintiff tried his case on breach of warranty under the Uniform Sales Act. His theory was that the cement was not of merchantable quality. There was no evidence that the cement contained any unusual substance or differed from any ordinary cement in any way. The court noted that the “merchantable quality” means that the substance sold is reasonably suited for the ordinary uses it was manufactured to meet. No contention was made there by the plaintiff that the cement was not satisfactory for the laying of a basement floor. The court held that this is the only purpose for which the test of merchantability can be applied, and there was, therefore, no breach of warranty of quality.

Plaintiff there also advanced the theory that the cement had a concealed or hidden danger unknown to plaintiff, and that the defendant should have warned him that it would burn him, and that failure to do so was negligent. With respect to this the court held that:

"The injury occurred in the handling of a standard and common commodity; no attempt was made to show that knowledge of its nature is limited to experts and is beyond the ken of laymen, generally. The duty appellant seeks to invoke does not arise unless there is a showing of inherent danger in the material, known only to experts, which the seller knows or ought to know would likely produce injury to a handler of ordinary knowledge and prudence.” (Emphasis ours.)

In Simmons v. Rhodes & Jamieson, Ldt., 46 Cal.2d 190, 293 P.2d 26 (1956), plaintiff asserted both breach of warranty and negligence as a basis for his cause of action. The court disposed of the breach of warranty claim in much the same manner as in the Dalton case, supra:

“It is conceded that the cement was fit for the purpose of laying the basement floor. This is the only purpose for which the test of merchantability could be applied under the facts of the present case. There is likewise no merit in the proposition that the cement had a concealed or hidden danger unknown to plaintiff and that defendant should have warned him that it would burn his skin. The injury occurred in the handling of a standard and common commodity(Emphasis ours.)

Plaintiff in the Simmons case also alleged negligence and presented his case under the res ipsa theory. The court held that res ipsa loquitur in this case was not applicable because “in the absence * * * of evidence of feasible means of discovering the defects or danger in the commodity sold, the seller is not liable for an injury resulting from the use of the commodity.” The court went on to note:

“The only evidence of any testing was that defendant * * * had its product tested for proper proportions of materials to be used for various types of construction. * * *

“It is a matter of common knowledge that water activates the lime in cement [citing the Dalton case, also, ‘Lime’ Webster’s International Dictionary, 6 Encyclopedia Britannica].

“A street superintendent testified that lime does not give off heat until it becomes wet. Obviously, thinning the solution would allow it to soak through the plaintiff’s clothes more quickly.” (Plaintiff had apparently added additional water in order to thin out the mixture.)

Plaintiff in the Simmons case had had some previous experience with laying cement. He was never bothered before except by the roughening of the skin of his hands. The court noted that it is a matter of common knowledge that cement contains lime. Plaintiff there knew that lime is caustic and that exposure to it irritates the skin. Plaintiff there also knew that cement workers customarily wore boots and worked from boards, although he testified that he thought that the purpose of this was to keep from getting dirty, not to keep from getting burned.

Plaintiff relies upon the cases of Haberly v. Reardon, 319 S.W.2d 859 (Mo.Sup.) and Bean v. Ross Manufacturing Co., 344 S.W.2d 18 (Mo.Sup.) These cases involved Bondex, a patented house paint, and Ros-site, a patented drain cleaner, both new products, containing a high percentage of strong chemicals (Bondex is 44% lime, and 47% Portland cement, 319 S.W.2d 1. c. 861), and presenting obvious dangers to users which the manufacturers recognized and attempted to avoid by warning labels. These cases involve a product where “the supplier knows or should know that its use is or is likely to be dangerous.” 344 S.W.2d 1. c. 25. The question in each case was the sufficiency of the warning under the circumstances. These cases are obviously not analogous to the instant case.

Under the circumstances of the instant case, we think there was no* duty to warn, and hence the trial court did not err in setting aside the verdict.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: MAUGHMER, Commissioner. PER CURIAM.

license: Public Domain

text:
    Ernest Herbert LAWSON (Employee), Respondent, v. The VENDO COMPANY (Employer) and the Hartford Accident and Indemnity Company (Insurer), Appellants.
    No. 23418.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.

      Leo T. Schwartz, Kansas City, Ned B. Bahr, Roland D. Gidney, Kansas City, of counsel, for appellants.
    Alder & Morrison, John J. Alder, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Under the Missouri Workmen’s Compensation Law an employee claiming a compen-sable injury must give timely notice thereof to his employer. Failure, without justification, to do so may result in avoidance of the claim. Determination of this appeal requires consideration of such notice requirements and their application to the facts here.

Ernest Herbert Lawson, plaintiff, a long time employee of defendant The Vendo Company, Kansas City, Missouri, claims that on February 12, 1958, while moving a “steel skid” loaded with material, “it slipped and jerked me down”, resulting in an injury to his back He worked on the following day, but said he was unable to go to work on the 14th because of pain in his back and legs. He was “off work” thereafter for 21 weeks. He called Dr. James W. Downey, M.D., who came to plaintiff’s home on February 14th and gave him treatment, consisting of local heat, liniment and rest. Dr. Downey came to the home again on ■February 19, and then called Dr. Robert Drisko, an orthopedic surgeon, into consultation. On March 11, 1958, plaintiff was admitted to St. Mary’s Hospital. A myelo-gram was done and on March 14, an operation was performed in which one spinal disc was removed and a stabilization of the spine was inserted where the disc had been. He remained in the hospital until March 23, 1958.

Plaintiff testified that after the injury he suffered immediate pain for_ two or three minutes and then continued working that day and the next. He said he did not report the accident or injury to the foreman because “I didn’t think I was injured”. It is conceded that plaintiff never did notify any company representative of his alleged injury either personally or through some other person at his specific request. He returned to work for The Vendo Company on June 23, 1958.

Gus L. Anderson, shop foreman, stated that plaintiff worked on February 13th and 14th, 1958, and did the-work without complaint; that neither plaintiff nor any one else ever reported to him that plaintiff had sustained an accident or suffered an injury.

Dr. James W. Downey, M.D., testified that he treated plaintiff in his home on February 14th' and February 19th; that he found “acute spasm of the back with pain radiating down the right leg”; that after consultation with Dr. Drisko the man was hospitalized and operated. He said that plaintiff told him he had injured his back while working at The Vendo Company. Dr. Downey stated that since, in his opinion, hospitalization was necessary he became concerned as to the source of payment for the hospital and medical bills. Plaintiff told him he did not know if Vendo had insurance. Dr. Dowhey- declared that on the 17th or 18th of February, 1958, he called Vendo Company to inquire if it was prepared, through insurance or otherwise, to meet these expenses. His telephone call was referred to the personnel office. He talked to someone there whose name he did not recall. Dr. Downey said he told that person “that I was treating Mr. Lawson and that hi was side at home and I wanted to know if they had any insurance, that he was going to have to go to the hospital * * * but I wanted to know if they had any insurance to cover a man that was hurt that worked for them that went to the hospital”. The doctor said they asked how he got hurt and “I told them this same thing that he told me”; “that he was moving a steel skid off of a box and that it slipped and he twisted his back”. The doctor said the company personnel man told him “We have no record of Mr. Lawson being hurt here”. “He is going to have to take care of himself”, “he’d have to get a lawyer to help him see that it was taken care of”.

Mr. George P. Luger, Vendo Company employee, and during February and March, 1958, in charge of the personnel office, testified. He said that Dr. Downey called and talked with him over the telephone about “the hospital bills of Mr. Lawson”; that he told him the company had no knowledge of Lawson having suffered a back injury at Vendo; that “if it did happen at Vendo, it would be handled through the Workmen’s Compensation; if it was away from work, nonoccupational, it woud be handled through group insurance”. Mr. Luger stated that as best he could recall this conversation with Dr. Downey took place on March 11, 1958, (26 days after the alleged accident). Mr. Luger also stated that Dr. Drisko telephoned him two or three days later about the same matter and he told Dr. Drisko substantially the same as he had told Dr. Downey.

A claim for compensation was duly filed and a hearing held before a referee which resulted in a finding for claimant with an award in his favor. An application for review by the Industrial Commission of Missouri led to a two to one decision denying compensation. The Commision found: (1) Claimant sustained an accident on February 12, 1958, arising out of and in the course of his employment with The Vendo Company; (2) the employee failed to give the employer notice of the time, place and nature of the injury, failed to show good cause for failure to give such notice and failed to prove that the employer was not prejudiced by the failure to receive the same; (3) that the conversation between Dr. Downey and Mr. Luger occurred on March 11,1958; (4) that Dr. Downey in -his telephone conversation with the employer was not acting as the agent or attorney in fact of employee, nor had the employee requested him to advise the company of the injury but rather the doctor was acting on his own initiative and for his own purposes; that the doctor’s conversation with Mr. Luger concerning the accidental injury was that of an interloper or mere volunteer and “information garnered from extraneous scuttle-butt and rumor does not constitute the notice envisioned by Section 287.420, R.S.Mo., 1949 [V.A.M.S.] ”; (5) good cause was not shown for failure to give notice; (6) the employee did not prove that the employer was not prejudiced by the failure to give notice.

Plaintiff appealed to the Circuit Court. The Circuit Court in its judgment recited that the principal issue on appeal concerned that portion of the Commission's award holding that the employee failed to give employer notice of the time, place and nature of the injury, failed to show good cause for such failure, and failed to prove that the employer was not prejudiced by such failure. The Circuit Court then found “the employer had ‘notice’ within the meaning” of the statute, reviewed the evidence, pointed out that the Commission found that there was an accident arising out of Lawson’s employment from which finding defendant did not appeal and concluded by reversing the award and remanding the cause “to the Industrial Commission for a rehearing on the sole issue of the evaluation of the nature and extent of disability”.

Defendants perfected a timely appeal from the Circuit Court judgment, asserting ■error because (1) the Commission award was supported by competent and substantial evidence and was not clearly contrary to the overwhelming weight of the evidence; (2) the court judgment erroneously holds that the Dr. Downey telephone call constituted “notice” and (3) the court erred in remanding on the sole issue of disability evaluation rather than for a rehearing de novo.

The actual facts as to notice are not really disputed except as to the date of Dr. Downey’s telephone conversation with Mr. Luger — Downey saying it occurred on February 17th or 18th, five or six days after the alleged accident, and Luger saying it occurred on March 11th, 26 days thereafter. In either event this conversation which admittedly took place, was within the statutory 30 day limitation for notice. The Commission found it took place on March 11th, and there is substantial, credible evidence supporting such finding. We shall consider it as having been on the latter date.

The Commission found no good cause was shown for plaintiff’s failure to personally give notice and that plaintiff “did not attempt to prove that the employer was not prejudiced by failure to give notice”. We have here a claimant employed by Vendo for more than six years who had reported and received treatment for prior injuries, but who never did personally report this one. We agree no good cause ■for such failure was shown and the Circuit Court did not find otherwise. The crux •of this case — the issue upon which both the Commission and the Circuit Court decided the controversy- — is whether or not the Downey-Luger telephone conversation amounted to notice as required by the statute. The Commission said it did not. The Circuit Court held that it did. Where, as here, the fact that a conversation actually took place is conceded and the substance of it is not really disputed, determination if it amounted to legal “notice”, poses primarily a legal question for the courts, rather than a weighing of the evidence, a function which rests essentially with the Commission.

Workmen’s Compensation is a type of social insurance designed to insure prompt payment of benefits to injured employees regardless of who was at fault in the accident. The cost of such work injuries is regarded as a part of the expense of production. It is universally understood that both the adjective and substantive law of Workmen’s Compensation take their tone from the beneficent and remedial character of the legislation.

Section 287.420 RSMo 1949, V.A.M.S., Workmen’s Compensation, provides:

“No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, shall have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the commission shall find that there was good cause for failure to give such notice, or that the employer was not prejudiced by failure to receive such notice. No defect or inaccuracy in such notice shall invalidate the same unless the commission shall find that the employer was in fact misled and prejudiced thereby”.

We include three quotations from Larson, Workmen’s Compensation Law, Vol. 2, Chapter 15, Notice and Claim Periods: “Since the purpose of the notice requirement is to enable the employer to protect himself by prompt investigation and treatment of the injury, failure to give formal notice is usually no bar if the employer had actual knowledge or informal notice sufficient to indicate the possibility of a compensable injury, * * *” (p. 251). “The purpose is dual: first, to enable the employer to provide immediate medical diagnosis and treatment with a view to minimizing: the seriousness of the injury; and, second, to facilitate the earliest possible investigation of the facts surrounding the injury”. (253). “The present tendency is to excuse lack of notice whenever the employer acquired actual knowledge of the accident, no matter how he acquired it.” (p. 254). The footnote to the last quotation refers to the opinions in Swift & Company v. Rolling, 252 Ala. 536, 42 So.2d 6, holding that where the injury occurred “under the eye” of employer’s foreman, the employer had sufficient actual notice even though the statute required written notice within five days after the injury, and to Miller v. Peterson Const. Co., 229 Minn. 22, 38 N.W.2d 48, ruling that where .a carpenter, at time he suffered paralysis of vertebral disc while lifting a staging, told his foreman that he had such a pain in his right leg that he would have to quit and go home, the foreman knew as much about the occurrence as the carpenter himself at the time of injury and that the statutory requirement as to knowledge or notice to employer had been complied with.

Appellants in their brief lean heavily on the opinion of this court in Brown v. Douglas Candy Co., Mo.App., 277 S.W.2d 657. But in that case the injury occurred December 15, 1952, and the employer was not notified until March 25, 1953, exactly 100 days later, 70 days in excess of the 30 ■days’ maximum provided by the statute. Therefore for claimant to prevail it was necessary for her to show (a) there was good cause for failure to give such notice or (b) the employer was not prejudiced thereby. The Commission found for claimant, the Circuit Court affirmed, but this •court reversed outright, ruling that neither (a) nor (b) was established. However, this court on page 662, said: “It is the well established law in this state that the requirement of written notice is a reasonable provision for the benefit of the employer, but the giving of such notice is not an unconditional prerequisite to recovery. The purpose of the statute is designed to .give the employer timely opportunity to investigate the facts pertaining to whether an accident occurred, and if so, to give the employee medical attention in order to minimize the disability. However, if the employer had actual notice or knowledge of the accident, then he could not be prejudiced by failure to receive written notice; or if there is an affirmative showing of ‘good cause’ for failure to give the notice, then the claimant will not be denied relief, (citing numerous cases)”. Also in this case it was squarely ruled that claimant carried the burden of showing defendant was not prejudiced by the failure to give notice.

Defendants have invited our attention to various opinions which they say hold, first, whether or not notice was given is a question of fact. We agree this is true respecting evidence as to what events or occurrences actually took place and if there is a disagreement thereon, requires weighing the evidence. But once the facts are established, a determination if statutory notice results is a question of law. Second, the facts here do not result in a “notice” within the requirement of the statute. In Moscicki v. American Foundry Mfg. Co. et al., Mo.App., 103 S.W.2d 491, relied upon by appellants, hearsay evidence was admitted to the effect that the claimant told his fellow workman to report his injury to the foreman and he did so. However, the foreman denied that any such report had been made. The court, on page 493, observed that if this evidence of a report “had been believed by the commission, it would unquestionably have served to show actual notice to the company. * >⅜ ⅜»

In Basil v. Cyr et al., D.C., 130 F.Supp. 642, the employee’s wife, two days after the alleged accident, called the foreman and notified him that her husband was sick, had to have a doctor and would not be at work. This was ruled no notice.

In Good Impressions, Inc. et al. v. Britton, D.C., 169 F.Supp. 866, the claimant’s wife called the employer on the following morning, reported that her husband had been ill the night before, that the doctor said he had a heart attack and that he was in the hospital. Both the commission and the court held (we think properly) that such report was neither legal nor actual notice of an accident or injury sustained on the job. These cases are clearly distinguishable from our case on the facts.

In Littleton v. Grand Trunk Ry. Co., 276 Mich. 41, 267 N.W. 781, also cited by appellants, the court commented on the essential elements of notice and said: “He gave no details of the accident or how or where he was bumped. It was not such a notice as would reasonably put an employer on inquiry. The provision of the law that timely notice must be given is purposeful, and, while no niceties of expression are required and the notice may be oral or written, it must be of such a nature so as to reasonably inform the employer that the employee has sustained a compensable accident”. (Italics added).

We agree with appellants’ statement as to the scope of appellate review in this case. If there is competent and substantial evidence supporting the Commission’s award, including all reasonable inferences deducible therefrom, it should be affirmed. A court may not substitute its own judgment on the evidence, including questions of credibility for that of the Commission. But the court may set aside or modify any award which is clearly contrary to the overwhelming weight of the evidence, or where the award is without substantial evidentiary support or results in a misinterpretation and misapplication of the law to facts which are substantially uncontroverted.

We shall now endeavor to apply these principles to our case. The statute says written notice shall be given as soon as practicable, but not later than 30 days after the accident. However, it has long been held and quite universally, that the notice need not be in writing, nor need it be given personally by the claimant. The statute then provides in effect that an untimely notice, that is, notice given more than 30 days after the occurrence, will be effective if (a) good cause for such failure was shown or (b) the employer was not prejudiced thereby. The Commission found, we agree and the Circuit Court did not disagree, that no good cause was shown for claimant’s failure to personally give the notice. That leaves two further questions. First, did the Downey-Luger conversation of March 11, 1958, the date on which the Commission, as trier of the facts found it took place, amount to notice within legal purview of the statute? If it did, then timely notice was given. Second, even if this Downey-Luger discussion did not measure up to all the requirements of notice, iá it, nevertheless, sufficient because the employer was not prejudiced?

We do not believe it is required that the notice be given personally and directly by the employee. The statute does not so state. Suppose claimant’s attorney had notified the company. The attorney probably would have prepared and submitted a written notice, specifically giving the date and describing the slipping and falling. Was the notice given by the doctor any less effective in reasonably informing the company that the employee had sustained a compensable injury? The notification given was by the claimant’s own doctor, it described the accident as plaintiff had' described it to the doctor, the diagnosis, of the injury was given, the company was informed that hospitalization was required and an operation was about to be performed. The record does not show that the doctor gave Mr. Luger the exact date of the accident, but the company made no attempt at the time to secure this information. Would a report by plaintiff or by his lawyer have given any further or additional information except that such notice might have been in more technical compliance with the statute and would have been by plaintiff personally or by his legal rather than by his medical representative. The statute specifically declares: “No defect or inaccuracy in such' notice shall invalidate the same unless the commission shall find that the employer was in fact misled or prejudiced thereby”. Larson says the purposes of the notices are two-fold: (1) to enable the employer to provide medical diagnosis and treatment, thereby minimizing the injury, and (2) to facilitate an early investigation of the facts surrounding the injury. Plaintiff here promptly sought and secured medical attention. So far as the record is concerned it was competent medical attention. The employer, although notified within the statutory 30 days, made no effort to furnish medical attention, for either examination or treatment. The company apparently investigated the matter. In any event their foreman and plaintiff’s fellow employee testified at the hearing before the referee. We find that the evidence shows rather overwhelmingly that defendant suffered no prejudice in either of these respects. In addition, the notice was within the required 30 days.

We are in agreement with the Commission’s statement that “information garnered from extraneous scuttle-butt and rumor does not constitute the notice envisioned” by the statute, but in our opinion that statement is not applicable to the facts here. In this case the notice was to a competent, responsible employee who was in charge of personnel. The report was made by the claimant’s own doctor and not by a neighbor or distant relative. It was not based on rumor but came after a medical examination, treatment and diagnosis. It was not an extraneous or incidental report but specific, purposeful and concerned this certain employee and this specific injury. We hold that the Downey-Luger telephone conversation, as to both timeliness and substance, constituted notice within the meaning of Section 287.420, supra, and rule further that defendants’ rights and opportunities to act in the premises were neither impaired nor prejudiced by any technical defects in the notice.

Appellants say that even if this case is reversed, it should be remanded for a hearing de novo rather than “for a rehearing on the sole issue of the evaluation of the nature and extent of disability”, as directed by the Circuit Court.

Missouri Rules of Civil Procedure — Appellate Courts — Procedure, 83.13(c), V.A. M.R. provides: “The appellate court shall examine the transcript on appeal and, subject to the provisions of paragraphs (a) and (b) of this Rule, award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as such court ought to have given, as to the appellate court shall seem agreeable to law. Unless justice requires otherwise, the court shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears”.

At the referee’s hearing it was admitted that on February 12, 1958, The Vendo Company was a major employer, operating under and subject to the Missouri Workmen’s Compensation Law, that on said date its liability was fully insured by the defendant Hartford Accident & Indemnity Company, that on said date plaintiff was an employee covered by such law, that a claim had been timely filed but no compensation or medical aid had been furnished. It was disputed that due and timely notice had been filed, and that any accident or injury arose out of and in the course of such employment. Evidence was fully heard on these disputed issues. Both the Referee and the Commission found that plaintiff, on February 12, 1958, sustained a compensable injury arising out of and in the course of his employment. The only issue appealed to the Circuit Court was on the notice question. The only other essential issue not admitted was whether or not plaintiff sustained a com-pensable injury arising out of and in the course of his employment. There was no appeal on this point nor did defendants assign any error arising out of the presentation of this issue. Defendants say that since they prevailed as to the ultimate result before the Commission, they were not aggrieved by the result and hence, could not appeal. While this may be so, they could, in their brief filed in response to plaintiff’s appeal, have alleged any error which it was thought might have been committed in adjudicating whether or not an injury occurred on February 12, 1958, and if so, if it arose out of the employment. Since no error on these issues was alleged and none found by the court and since the same were fully litigated and decided, the controversy as to such issues should end. The comment of the Supreme Court en banc in Hughes v. St. Louis Nat. League Baseball Club, Inc., 359 Mo. 993, 224 S.W.2d 989, seems to rule this point. There the court said: “We further hold that when, as here, the motion to set aside is sustained and the motion for new trial overruled (or if it is sustained in the alternative) and the plaintiff appeals from the judgment entered against him, then the defendant may in his brief allege error in instructions or other procedural matters raised in his motion for new trial. This is because the appellate court may consider everything preserved in the record to determine the proper disposition to be made of the case. * * * Section 847.140 gives the appellate court complete authority to consider all of these questions (raised in either motion) and to decide them as it concludes the trial court should have decided them for the purpose of giving or directing the entry of the correct judgment required to properly dispose of the case. This gives effect to the spirit of the Code, by construing it ‘to secure the just, speedy, and inexpensive determination of every action’ ”.

The only live and undetermined issue in this case is the one on which the Circuit Court remanded the case and directed further action by the Commission, namely “for a rehearing upon the sole issue of the evaluation of the nature and extent of the disability”. We believe that order in this case was proper.

The judgment of the Circuit Court reversing the Award and remanding to the Industrial Commission with directions to evaluate the nature and extent of plaintiff’s disability and enter an Award accordingly is affirmed

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: BRADY, Commissioner. PER CURIAM.

text:
    Robert C. REIS, Administrator c.t.a., d.b.n. of the Estate of John F. Knoepfler, deceased, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, a corporation, Home Indemnity Company, a corporation, and John F. Mulligan, Administrator of the Estate of Robert M. Zeppenfeld, deceased, Defendants-Respondents.
    No. 30921.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1962.

      Robert C. Reis, St. Louis, for appellant.
    John F. Evans, Evans & Dixon, John F. Mulligan, St. Louis, for respondents.
   BRADY, Commissioner.

The plaintiff filed this action in the circuit court, naming as defendants Travelers Indemnity Company, Home Indemnity Company, and John F. Mulligan. Travelers and Home are the sureties upon the bond of one Zeppenfeld as executor of Knoepfler’s estate. During the probate process of Knoepfler’s estate, Zeppenfeld died and Mulligan was appointed administrator of Zeppenfeld’s estate under a special purpose statute, section 473,603 RSMo 1959, V.A.M. S., for the sole purpose of making settlement and accounting for all assets belonging to Knoepfler’s estate in Zeppenfeld’s possession at the latter’s death. The plaintiff is the duly appointed administrator cum testa-mento annexo de bonis non of Knoepfler’s estate. The purpose of the action was to set aside the final settlement Zeppenfeld filed prior to his death in the Knoepfler estate, to recover from Zeppenfeld’s estate and his sureties for certain items which it was alleged were improperly incurred or lost to Knoepfler’s estate by reason of Zeppenfeld’s alleged improper actions while executor, and to recover the compensation allowed to Zeppenfeld as executor, which it is alleged Zeppenfeld forfeited by his improper acts.

Mulligan made a special appearance for the purpose of filing a motion to dismiss and thereafter, some fourteen days later, Travelers and Home filed their joint motion to dismiss. The trial court entered its order, referred to in the transcript as “ * * * its judgment and decree * * * ”, as follows:

“The Court having seen and examined, and duly considered the defendants Travelers Indemnity Company and Home Indemnity Company’s motion to dismiss plaintiff’s petition, and to quash writs of summons and service thereon, heretofore filed and submitted herein, and being fully advised thereof, doth order that said motion be and the same is hereby sustained.”

The notice of appeal filed by the plaintiff is solely and specifically directed to this above order. Home and Travelers have filed their joint motion to dismiss this appeal and suggestions in support thereof and, as this court’s rules provide, the motion was not argued but was taken with the case and is for decision now. Mulligan’s motion alleged as grounds for dismissal that: (1) because he was appointed for a special purpose only and was not Zeppenfeld’s general administrator, he was not a proper party to the action; (2) the petition fails to state a cause of action against “this defendant” upon which relief could be granted; and (3) the court had no jurisdiction over the subject matter. Travelers and Home based their motion to dismiss upon the grounds that: (1) the petition fails to state a claim against “these defendants” upon which relief could be granted; (2) the court did not have j uris-diction over the subject matter of the alleged claims, “ * * * jurisdiction being vested exclusively in the Probate Court of the City of St. Louis, Missouri”; (3) all the allegations of matters found in the petition had been adjudicated in the Probate Court and since no timely exceptions were made nor appeals taken, the order of the Probate Court was final and not subject to review by the circuit court; (4) the petition improperly unites claims seeking the setting aside of final orders of the Probate Court with claims for recovery against the sureties on the bonds; (5) insofar as the claims on the bonds are concerned no copy of them was attached to the petition and “ * * * said written instruments are not pleaded according to legal effect or recited at length in said pleading * * * ”; (6) the plaintiff does not have legal capacity to sue; and (7) plaintiff has not furnished security for costs.

It is obvious from the very language of the court’s order sustaining the motion to dismiss filed by Travelers and Home that the court was ruling only upon that motion. The court refers to “ * ⅜ * the defendants Travelers Indemnity Company and Home Indemnity Company’s motion to dismiss * * In effect, the plaintiff admits this but urges that under the provisions of section 510.150 RSMo 1959, V.A.M.S., any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the order specifies otherwise, and then argues that since this dismissal must be one with prejudice it “ * * * terminated this cause of action. The petition was dismissed with prejudice and the cause was no longer pending. Therefore, defendant Mulligan was no longer a defendant in this cause and there was no reason to act upon his motion.” The fallacy of this argument is that it fails to consider as to whom the cause was dismissed with prejudice. Of course, the cause was dismissed with prejudice as to the movants of the motion ruled upon; i. e., Home and Travelers. There is no doubt but that the trial court’s action, as plaintiff puts it, terminated this cause of action as to them, but their motion cannot be extended to cover Mulligan, who never participated in it and who specially appeared and filed his own motion to dismiss.

The trial court’s order is final and appeal-able only when it reaches the status of a judgment and “A judgment is the final determination of the right of the parties in the action.” Section 511.020 RSMo 1959, V.A.M.S.; Rule 74.01, V.A.M.R. “The parties” in this action have not had a final determination of their rights. That has only been achieved by Travelers and Home. In Dillen v. Remley, Mo.App., 327 S.W.2d 931, and in all of the cases relied upon by plaintiff, all the defendants joined in the motion and so the court’s order was a judgment for it disposed of the rights of the parties- — all of the parties. As was said in Madison v. Sheets, Mo., 236 S.W.2d 286 at loc. cit. page 288, cases are not to be brought to appellate ■courts by appeal in detached portions

In 1947 this court specifically ruled upon this very matter in a case where the identical argument now presented by the plaintiff was presented. In W. T. Rawleigh Co. v. Rouse et al., Mo.App., 204 S.W.2d 438, an action was brought for the balance owing on a written contract of purchase signed by one-defendant as purchaser and by three other defendants as his sureties. One of the sureties filed a motion in the trial court to dismiss plaintiff’s petition as to her, and the-trial court sustained that motion. The plaintiff thereupon filed after trial motions and. sought to appeal from the action of the trial-court in dismissing its petition as to the-defendant Snead. This court there held at loe. cit. page 438:

“Section 1236, R.S.Mo.1939, Mo.R.S. A., defines a judgment as follows: ‘A judgment is the final determination of the right of the parties in the action.’ There is in an action of this nature no-final judgment from which an appeal can be taken when there is no final determination of the cause as to all the parties. Harrison v. Missouri-Kansas-Texas R. Co., Mo.Sup., 87 S.W.2d 169; Ray v. Missouri Christian College et al.,. Mo.App., 93 S.W.2d 1030; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614; Bueker v. Aufderheide et al., Mo.Sup., 111 S.W.2d 131; Webster v. Sterling Finance Co., Mo.Sup., 165 S.W.2d 688; Mansfield v. Meade, Mo.App., 194 S.W.2d 544, 545; S. S. Kresge Co. v. Shankman, Mo.App., 194 S.W.2d 716.”

The appeal is premature and the motion to dismiss should be sustained and the appeal be dismissed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The motion to dismiss is therefore sustained, and the appeal is'dismissed.

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


author: McDowell, judge.

text:
    LOCAL ACCEPTANCE COMPANY, Plaintiff-Appellant, v. David E. KINKADE and Bonnie Kinkade, Defendants-Respondents, v. Ted LAIS, d/b/a Melody Sewing Center, Defendant-Respondent.
    No. 7994.
    Springfield Court of Appeals. Missouri.
    Dec. 29, 1961.
    Douglas & Douglas, Neosho, for appellant.
    Johnson, Johnson & Landis, Neosho, for respondents.
   McDowell, judge.

This is an action for balance of $285.00 due on a promissory note, dated January 13, 1959, in the original sum of $360.00, payable in 24 equal monthly instalments of $15.00 each, executed by the defendants, David E. Kinkade and Bonnie Kinkade, payable to the order of “Mortgagee or holder hereof”, and indorsed: “WITH RECOURSE TO Local Accept. Co., “Dealer Melody Sewing Center. Address Joplin, Mo.

Ted Lais.”

Defendants, David E. Kinkade and Bonnie Kinkade, filed answer denying that plaintiff is a holder in due course of the note sued on.

Second — that the note and chattel mortgage sued on is not the entire contract entered into between defendants and third party defendant (seller) acting for himself and for plaintiff herein; that the promissory note and mortgage were executed concurrently with an additional agreement whereby third party defendant and plaintiff agreed that if these defendants purchased a sewing machine, to be paid for in monthly instalments of $15.00 each, they would be furnished pre-cut materials to be sewn on said sewing machine and would be paid $15.00 per month for 60 garments so sewn; that for several months such garments were furnished according to the agreement but thereafter neither the third party defendant nor plaintiff delivered additional material to the defendants to be sewn and thus the contract was breached.

Third — that the plaintiff, Local Acceptance Company, knew that Ted Lais was making the agreement concerning the sewing with defendants when it received said promissory note and chattel mortgage and that to such extent Ted Lais was acting as agent for plaintiff.

Fourth — that no payments are due on the note sued on.

Defendants filed a third party petition against Ted Lais, d/b/a Melody Sewing Center alleging that if defendants were liable to plaintiff, third party defendant was, in turn, liable to the defendants.

Plaintiff filed reply to answer of defendants denying allegations of new matter contained therein.

Ted Lais, third party defendant, filed answer to defendants’ petition denying the allegations therein.

The cause was submitted to a jury resulting in a verdict and judgment for defendants. Plaintiff appealed. (Unless otherwise indicated all statutory references are to RSMo 1959, V.A.M.S.)

Plaintiff, Local Acceptance Company, is a Missouri corporation with a branch office in Joplin, Missouri. Bob Rapp testified that he had been employed by Local Acceptance Company and Local Finance1 Company for nine years and had been in charge of the Joplin branch of the Local' Acceptance Company for almost five years.. The note sued on (in evidence as plaintiff’s-exhibit 1) was purchased from the Melody-Sewing Center and endorsed by Ted Lais. on January 15, 1959. The transaction was-handled by Mr. Rapp for the company who testified he paid Lais $209.00 immediately, put $60.00 in a reserve fund for him and discounted the note $90.00 and $1.00 for credit investigation. Witness stated that: the makers of the note admitted they signed it; that at the time of the purchase there-were no payments due; that the company had no notice of any defects and purchased' it in the regular course of business, in. good faith.

Some three or four years prior to the-execution of the note and chattel mortgage-by the defendants for the purchase of a sewing machine, Keith Wilkerson, d/b/a Keith’s Sewing Center, instituted a plan for selling sewing machines for $360.00 each on-the instalment plan, which involved entering into a sewing agreement with the purchaser whereby the seller obligated himself to pay to the purchaser $15.00 per month for sewing garments so the purchaser could meet instalments due on the note.

The evidence is that Mr. Rapp, manager of the Local Acceptance Company, had this plan of selling the machines explained to him and thought it was a good idea. Plaintiff handled the notes received for machines sold by Mr. Wilkerson until Wilkerson sold the business to one of his salesmen, Ted Lais, who continued the business under the name “Melody Sewing Center.”

Lais testified that, prior to the giving of the note and chattel mortgage in question, he asked Mr. Rapp if he would handle the paper for him the same as he had done for Wilkerson and that Rapp stated he would have to see his District Supervisor about the matter, and, later, told Lais he would handle the business. Lais testified that these sales were to be made on the “Sew Plan” by which the “customer would sew the garments to earn the money to make the payments on the machine”. He testified that Rapp agreed to the plan; that he was without funds to carry on the business unless the Local Acceptance Company handled the paper. Lais testified that Rapp repeatedly asked about the outlet for the garments, prior to the time he sold any machines on his own account.

Lais called on defendants, Kinkades, in their home and had with him the sewing machine in question. In making the sale he used the note and chattel mortgage form furnished him by plaintiff, and, at time of sale, filled in the handwritten portion thereof. He testified that the sale to Kinkades was made on the strength of the representation by him, as contained in the written agreement made at the time and signed by Mrs. Kinkade and the Melody Sewing Center, whereby it was agreed that the Melody Sewing Center furnish garments to be sewn by the purchaser to meet the instalments due on the note and chattel mortgage. This agreement is in evidence as defendants’ exhibit (A).

The evidence is that Ted Lais, d/b/a Melody Sewing Center, furnished materials to be sewn into garments by defendants according to the written agreement for the first five months and paid defendants $15.00 per month for such work. These payment checks were turned over to plaintiff and applied on the instalment note. The evidence is that Bonnie Kinkade finished sewing garments for the sixth month and returned them to the Melody Sewing Center. Lais could not pay in cash but gave her a receipt showing the work had been done; that thereafter, only 20 garments were furnished under the contract by Melody Sewing Center and the “Sew Contract” was breached.

Defendants admitted that they signed the note and chattel mortgage sued on but testified that at the time of signing the same Melody Sewing Center entered into the written agreement to pay $15.00 a month for sewing 60 garments so that the payments could pay the instalments on the note. Mrs. Kinkade testified that she had to go to-the Melody Sewing Center in Joplin to get the garments and after she had completed sewing the same she took them back to the Melody Sewing Center.

Lais admitted that the business operated as the Melody Sewing Center was broke; that that was the reason he failed to furnish the pre-cut garments to defendants as agreed.

Defendants testified that they at all times were ready and willing to carry out their part of the “Sew Contract”.

On cross examination, defendant-Bonnie Kinkade testified that at the time the promissory note and chattel mortgage and the “Sew Agreement” were signed, she understood she was buying a sewing machine to be paid for by sewing garments; that the machine described in the mortgage was delivered to her and that she has had possession of the same for the past 25 months and still has. She gave this testimony:

“Q. At the time that you purchased this sewing machine did Mr. Lais misrepresent anything to you? A. No, sir.”

She testified that the “Sew Contract” was an agreement between Melody Sewing Center and herself. Her husband did not sign this contract. She admitted that plaintiff had made demand for payment of the note and that she refused such payment.

In our opinion we will refer to appellant as plaintiff and to respondents as defendants.

Under the first alleged error plaintiff complains of the action of the trial court in failing to direct a verdict for it at the close of all of the evidence, as against both David E. Kinkade and- Bonnie Kinkade, for the reason that under the evidence plaintiff met all of the requirements of being a holder in due course of the note sued on.

It is defendants’ contention that under § 401.008 the note sued on is nonnegotiable because it is payable to order and the payee is not named or otherwise indicated therein with reasonable certainty.

Negotiability or nonnegotiability of securities must be determined by the provisions of the Negotiable Instruments Law and not by custom or usage. The law fixes the character and status of instruments regardless of form, intention or purpose to use. Lorimer v. McGreevy, 229 Mo.App. 940, 84 S.W.2d 667.

Section 401.001 provides:

“Form of negotiable instrument. An instrument to be negotiable must conform to the following requirements :
“(1) It must be in writing and signed by the maker or drawer;
“(2) Must contain an unconditional promise or order to pay a sum certain in money;
“(3) Must be payable on demand, or at a fixed or determinable future time;
“(4) Must be payable to order or to bearer; and
“(5) Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.”

Section 401.002. Certainty as to sum, what constitutes. — provides:

“ * * * (2) By stated installments ; or
“(3) By stated installments, with a provision that upon default in payment of any installment or of interest, the whole shall become due; or * *

Section 401.003. When promise is unconditional. — provides:

“1. An -unqualified order or promise to pay is unconditional within the meaning of this chapter though coupled with; * * *
“(2) A statement of the transaction which gives rise to the instrument. * * ⅜»

Section 401.008 — When payable to order. —provides:

“ * * * 2. Where the instrument is payable to order, the payee must be named or otherwise indicated therein with reasonable certainty.”

Section 401.009. When payable to bearer. — The instrument is payable to bearer:

“(1) When it is expressed to be so payable; or
“(2) When it is payable to a person - named therein or bearer; or
“(3) When it is payable to the order of a fictitious or nonexisting person or to a living person not intended or entitled to have any interest in it and such fact was known to the person making it so payable or was known to his employee or other agent who supplies or causes to be inserted the name of such payee; or
“(4) When the name of the payee does not purport to be the name of any person; or
“(5) When the only or last indorsement is an indorsement in blank.”

Section 401.026. What constitutes holder for value. — “Where value has at any time been given for the instrument, -the holder is deemed a holder for value in respect to all parties who became such prior to that time.”

Section 401.030. What constitutes negotiation. “ * * * If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder completed by delivery.”

Section 401.191. — Definitions and meaning of terms.

“ * * * (4) ‘Bearer1 means the person in possession of bill or note which is payable to bearer; * * *
“(7) ‘Holder’ means the payee or in-dorsee of a bill or note, who is in possession of it, or the bearer thereof;
“(8) ‘Indorsement’ means an in-dorsement completed by delivery; ⅜ ⅜⅞ ⅜ fJ

The instrument sued on herein is a combined note and chattel mortgage. The first part of the instrument is in the form of a note and the second part a chattel mortgage. The note is headed “Negotiable Promissory Note”, is dated 1-13-59, and reads:

“For value received the undersigned, Mortgagor, promises to pay to the order of Mortgagee or holder hereof the TIME CONTRACT BALANCE of $360.00 payable in 24 installments of $15.00 on the 15 day of each succeeding month for a period of 24 months, beginning Feb 24,1959, together with additional payments as follows -- at the office of Local Accept. Co. located in the city of Joplin, Mo. with interest after maturity at the highest lawful rate, together with a reasonable cost of collection and attorney’s fee if placed in the hands of an attorney for collection. All parties, including the makers and endorsers, waive presentment, protest and notice of protest in the event of nonpayment and agree to any renewal or extension of the time of payment after maturity without notice to them.”

Then follows the description of the mortgaged property and, at the bottom of the first page, the instrument is signed.

“Witness Ted Lais “Purchaser
Mortgagor. David E. Kinkade “Purchaser
Mortgagor. Bonnie Kinkade
“Address Route # 2, Neosho, Mo.”
On the back thereof appears the following indorsement:
“WITH RECOURSE TO Local Accept Co.__
“Dealer Melody Sewing Center. Address Joplin, Mo. Ted Lais.”

Nowhere in the note or chattel mortgage does there appear the name of the mortgagee.

In Morgan v. Mulcahey, Mo.App., 298 S.W. 242, 244, the law is declared that where a single instrument combined note and chattel mortgage, each portion was to be construed as separate instruments and a provision appearing in the chattel mortgage and not in the note which would make the note nonnegotiable is not to be considered. It must appear in the note and provisions of the chattel mortgage cannot be read into the note to render it uncertain or convert it into a nonnegotiable instrument, it being otherwise negotiable.

Considering the note sued on in the light of the provisions of the Negotiable Instrument Act, § 401.001, we find, (1) that the note sued on is in writing and signed by the makers; (2) it contains an unconditional promise or order to pay a sum certain in money; (3) it is payable at a fixed or determinable future time.

The difficult question presented is: Is the note payable to order or to bearer ? Section 401.009 of the Negotiable Instrument Act provides that the instrument is payable to bearer when it is payable to a person named therein or bearer, or when it is payable to the order of a fictitious or nonexisting person and such fact was known to the person making it so payable.

In the instant case the note is made payable to the order of Mortgagee or holder hereof. Section 401.010 provides: “The instrument need not follow the language of this chapter, but any terms are sufficient which clearly indicate an intention to conform to the requirements hereof.”

Webster’s New International Dictionary, Second Edition, defines:

“Bearer — One who holds a check, note, draft, or other order for the payment of money; specif., the person in possession of a check payable to bearer, whether so drawn or having become so by being last endorsed in blank.”

and "Holder — The person in possession of, and legally entitled to receive payment of, a bill, note, or check, that is, the payee or endorser in possession, or the bearer. A bona fide holder for value without notice is often called a holder in due course.”

The law declared in 10 C.J.S. Bills and Notes § 123(a), page 573 is: “The general rule, as embodied in the Negotiable Instruments Act, is that an instrument is not negotiable unless made payable to a person or his ‘order,’ or to ‘bearer,’ or unless words of similar or equivalent legal import are used, such as ‘assigns’ or ‘assignees,’ or ‘holder’.”

Under § 123(b), page 575, the law is stated: “ * * * Independently of statute, or without reference thereto, the words ‘to bearer’ may be sufficient to make an instrument payable to bearer, and ‘holder’ has been regarded as equivalent to ‘bearer;’ ⅜ ⅜ ⅜»

In 7 Am.Jur., § 79, page 833, this law is stated: “When an instrument is payable to bearer, it is prescribed by the Uniform Act as follows: “The instrument is payable to bearer: (1) When it is expressed to be so payable; or (2) when it is payable to a person named therein or bearer; or (3) when it is payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable; or (4) when the name of the payee does not purport to be the name of any person; or (5) when the only or last in-dorsement is an indorsement in blank. It has been already stated that words equivalent in meaning to words of negotiability are permissible. Therefore, since ‘holder’ is a word of the same import as ‘bearer’, a promissory note payable to a particular person or ‘holder’ is negotiable the same as if the word ‘bearer’ had been used.”

Under the law as set out in our opinion we find that the note sued on is a negotiable instrument under section 401.-001, being made payable to holder which is equivalent in meaning to the word bearer. We find against defendants on their theory that the note is nonnegotiable under the law as declared in section 401.008 of the Negotiable Instrument Act. Defendants urge that, under this section, because the note is payable to order of mortgagee, the payee must be named or otherwise indicated with reasonable certainty. They fail to consider that this note is payable to the holder hereof. The authority cited by defendants to sustain their contention herein, to-wit, Am.Jur., Vol. 7, pp. 835, 836, does not support their contention. The law stated therein is as follows:

“ * * * Also, the rule is, with certain exceptions hereinafter mentioned, that in instruments for the payment of money, if no one is designated as payee, either by name or as bearer, the instrument is not a promissory note.”

Under this rule of law we find that the instrument sued on is payable to holder which has an equivalent meaning to bearer. Defendants argue that the statute provides the note must be payable to bearer and Shat to meet the test as to negotiability only the word bearer is used and only that word in a note will meet the statutory requirement. We find this contention erroneous.

Under section 401.010 it is provided: “The instrument need not follow the language of this chapter, hut any terms are sufficient which clearly indicate an intention to conform to the requirements hereof.”

Defendants further urge that even though the note sued on is not subject to their first criticism, plaintiff failed to make a case of being a holder in due course. They set out the requirements necessary to be a holder in due course as provided in section 401.052, that is: (1) That it is complete and regular upon its face; (2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) That he took it in good faith and for value; and, (4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

The note sued on was offered in evidence. Mr. Rapp testified that he was manager of plaintiff-company; that he handled the transaction of purchasing the note sued on; that it was purchased two days after the date thereof and he testified as to the value paid for said note. He testified that the note was not overdue and that his company took it without notice of any infirmities as to title and that it took it in good faith. We find from the record that there is no merit in this contention made by defendants.

Defendants cite authorities where holder of negotiable instruments, payable to order, is not a holder in due course where instrument does not show any indorsement from payee, and such holder takes subject to any equities existing between original parties. This law is declared in Metropolitan Discount Co. v. Lyman, Mo.App., 266 S.W. 489, and Fitzgibbon Discount Corporation v. Windisch, Mo.App., 271 S.W.2d 226, and the other authorities cited by defendants on the question of holder in due course.

We agree with this law but such law is not controlling where the instrument is payable to bearer or holder.

To constitute notice of an infirmity in the instrument or defect in the title of a person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such fact that his action in taking the instrument amounted to bad faith. Section 401.056; Local Finance Company v. Charlton, Mo.App., 289 S.W.2d 157.

In the instant case there is a complete lack of evidence as to any fraud connected with the sale of the sewing machine for which purchase price the promissory note in question was executed.

The answer of defendants raises two questions. First, it denies that plaintiff is a holder in due course, and, secondly, it alleges a breach of contract between seller and the defendants as to the manner of payment, which contract is a separate written instrument from the note and chattel mortgage. Defendant (wife) testified that there was no misrepresentation made to secure the sale and note but that, later, the seller went broke and failed to carry out his contract to furnish pre-cut garments according to his contract with defendants. There is no contention that there was any fraud practiced nor does the record disclose any evidence of fraud. Ted Lais’ testimony does not establish any facts which would give actual knowledge to plaintiff of any infirmity, defect or knowledge of any such facts that its action in taking the instrument amounted to bad faith.

A holder in due course holds the instrument free from any defects of title of prior parties, and free from defenses available to prior parties among themselves and may inforce payment of the instrument for the full amount thereof against all parties liable thereon. Section 401.057 RSMo 1959, V.A.M.S.

Under our findings herein it is unnecessary to pass upon other alleged errors in plaintiff’s brief. The cause is reversed and remanded with directions to enter a judgment for plaintiff and against defendants, Kinkades, in accordance with its motion for directed verdict at the close of all of the testimony. We further order that under the pleadings the court try the issue raised by defendants in their petition against third party defendant, Ted Lais, for breach of contract.

Reversed and remanded.

STONE, P. J., concurs.

RUARK, J., dissents.


text:
    K-V BUILDERS, INC., a corporation, Plaintiff-Appellant, v. Jefferson C. THOMAS et al., Defendants-Respondents.
    No. 30522.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1962.

      Robert O. Snyder, Henderson, Heagney & Snyder, St. Louis, for appellant.
    Dalton W. Schreiber, Kerth, Thies & Schreiber, Clayton, for respondents.
   BRADY, Commissioner.

This is a suit to establish a mechanic’s lien. Mr. Thomas and his wife were the owners of a house upon which the plaintiff contracted to put aluminum siding. Also named as defendants were J. Harvey Bennett, a workman on the house, and Ralph Hunsche and J. C. Lister, who were the holder of the note and the named trustee under a deed of trust and note which Mr. and Mrs. Thomas had previously executed to secure an indebtedness on their property. Mr. and Mrs. Thomas denied the allegations of the plaintiff’s petition and counterclaimed, alleging that by reason of the failure of the plaintiff to do this work in a good and workmanlike manner the Thomases’ house was damaged and lessened in value in the amount of $3,500.00, and prayed for judgment in that amount. Bennett filed a counterclaim against the plaintiff and a crossclaim against the other defendants in the amount of $180.69, and, of course, denied the allegations of plaintiff’s petition. Plaintiff filed its answer to Bennett’s counterclaim. Hunsche and Lister filed a separate answer of a general denial of plaintiff’s petition and joined with the Thomases in denying the cross-claim of Bennett and also asserted therein an affirmative defense that Bennett’s work “ * * * was not done in a good and workmanlike manner, but the same was done in an inferior manner to the detriment of the value of the property * *

' The pleadings are of importance to a proper consideration of this appeal. The .petition alleges that the Thomases were “ * * * justly indebted to the plaintiff in the sum of $2,479.46 for certain materials and labor furnished by this plaintiff at the special instance and request of and under contract with the defendants * * * ” to be used on their property in St. Louis County which the petition goes on to describe with particularity, and further alleges that while the plaintiff was doing this work and furnishing the material to be used upon this property it was owned by the Thomases. A photostatic copy of the contract between the plaintiff and the Thomases was attached to the petition, marked “Exhibit A” and made a part of the petition by specific reference thereto. The pertinent parts of the contract, a copy of which was attached to the petition as Exhibit A and which was later identified and admitted into evidence, provides that the plaintiff was to

“ * * * strip out entire above home preparatory to remainder of work. Insulated aluminum Korer Lum, color white, will then be placed over all outer walls of building boxing in around all windows and doors. Gables will have vertical aluminum color optional at owners’ discretion. Caulk around all windows and doors painted wood molding around all windows and doors. * * * ”

The price for the job was stated therein to be $2,680.00, and the contract also provided that the * * * Contractor will do all said work in a good and workmanlike manner * * By leave of court, the plaintiff later amended to allege that the Thomases had ordered plaintiff’s workmen off of the premises and to stop work and had thereby prevented completion of the contract, and the Thomases amended their answer to place this allegation at issue. The petition went on to also allege that an itemized account of “All of said materials and labor so furnished by the plaintiff are fully set out in detail, fully itemized, showing the prices charged therefor, the amount still due, in the itemized account filed herewith and attached hereto and marked ‘Exhibit B\” This account was then alleged to be a continuous and running account, the date the account accrued and became due was set forth. It was further alleged that this date was within six months prior to the filing of the plaintiff’s lien, that all of the items shown on the account became a part of the billings on this property, that the price charged for each item was the reasonable value of that item, that the total due after allowing for all credits and setoffs was $2,479.46, that this amount was the reasonable worth of the total of the items, and that demand had been made upon the defendants on a date specified and within six months thereafter the plaintiff had filed the mechanic’s lien verified by affidavit. Plaintiff prayed for judgment in the amount of $2,479.46, with interest at 6% from August 1, 1957, together with costs of suit and lien, and “ * * * for a special judgment and decree on mechanic’s lien * * * ”; for a special execution against the property to satisfy the judgment, interest and costs; for an adjudication that this lien was superior to that of the deed of trust; that the rights of other claimants on said land be determined; that a sale be had and the proceeds thereof distributed according to the rights of the parties; and for any and all other “ * * * proper and equitable relief to which the plaintiff and all other parties herein may be entitled.”

The trial was by the court, which entered its judgment for all the defendants on plaintiff’s petition and for Mr. and Mrs. Thomas on their counterclaim against the plaintiff in the amount of $500 and further found in favor of the other defendants as to Bennett’s crossclaim against them, but found for that defendant on his counterclaim against the plaintiff in the amount of $180.69 with interest. The trial court refused to allow or grant the establishment of any liens, and costs were assessed against the plaintiff. No request was made of the trial court for specific finding of fact or conclusions of law.

The plaintiff’s main contention on this appeal deals with its allegations, variously stated, that the evidence was insufficient to support the verdict. In considering this point, this court’s review is to be upon both the law and the evidence, as in suits of an equitable nature, that is, de novo, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, and while we will reach our own conclusion on the weight of the evidence, we are not to disturb the judgment unless it is clearly erroneous. Our final duty is to affirm the judgment or enter or direct such judgment as justice requires, Section 510.310 RSMo 1959, V.A.M.S.; Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824; Beckemeier v. Baessler, Mo., 270 S.W.2d 782. Plaintiff also alleges prejudicial error in the trial court’s ruling upon the exclusion of certain evidence and the admission of certain testimony.

Since we have determined that the plaintiff’s contention that the evidence was insufficient to support the judgment is without merit, our recitation of the evidence will be limited to the testimony that, in our opinion, is of such probative value as to substantiate the trial court’s verdict. The defendant Jefferson C. Thomas testified that the house in question is 67 x 28 ft. and has seven rooms including three bedrooms and a bath, and a two-car garage; that the stripping was nailed to the concrete blocks, and that one night when he came home he found a dent in one of the pieces of siding and upon inspection found that the siding was loose and the furring strips were as much as two to three cement blocks apart, each of the cement blocks being 16" long; that he talked to Perkins who was then working on the job about this matter, and also showed him where there were some spaces behind the blocks where there was no furring strip, and after this discussion he told Perkins not to come back, and called up the plaintiff and told them to send a man out who knew what he was doing; that when these other men appeared they tore down what Perkins had put up and began to put in furring strips that would correspond to where the aluminum strips would come together; that when these men got the material out of the carton it was delivered in, they were not careful in doing so and scratched it up, with the result that there were kinks in the panels where they snapped together; that they finished the windows by cutting wood to fit and nailing it in with cement nails which could not be counterset in order to be puttied over, and left hammer bruises on the wood; that none of the frame around the windows was mitered but it was all rough cut; that the result was that it is impossible to take the screen in and out of the window they framed; that at the corner one of the strips was about ⅛" from being level with the strip coming from the other side of the house, and that there were spaces where a person could lay his finger in behind those strips at the corner; that the back doorsill that Bennett put in is higher on the outside than it is on the inside by over an inch, and it will have to be chiseled down or done all over. He further testified that he asked a representative of the plaintiff to get the material that they had left at the job out of the weather, and that when they did not do so he took the lumber and put it in a place where it was protected and that it is as good now as it ever was; that the material plaintiff’s men took down, they reused, although they were requested to use new material; that clips are nailed to the furring strips and this aluminum is attached to the furring strips by means of these clips but in one particular area the clips are not hooked on to the siding.

On cross-examination, Mr. Thomas admitted that the stripping was corrected so that it is now on 16" centers on “Most parts of the house”; that he finally refused to let the plaintiff do any more work on this job; that Foglesong told him he could not box in the windows; that Bennett told him he never did this type of work before; that one window was left so that rain and snow had been getting in and the whole wall is going to have to “* * * have something done to it when this is settled”; that four gables on his house, one at each end and one at each end of the garage, the east side of the house, and the other three sides above the trim board just below the eaves have not had siding applied; that there were metal awnings that had to be taken down or loosened from the building to get the stripping and siding on that have not been replaced; and that the value of the house before the work started was $20,000 as compared to $19,000 immediately after the work was stopped.

Mrs. Thomas testified that the work started on the 29th of May and she tried to be home while the work was going on until she went to the hospital on June 7th, that Perkins began by taking down or loosening the awnings and then applying the stripping about 48 inches apart; that Perkins and a helper then began to apply siding; that she didn’t remember how long it was before she asked him not to come back; that the work was all dented and marked where the men missed with the hammer; that Foglesong and a helper then worked applying siding to the back of the house and did four of the windows on the house and three on the garage; that Foglesong said he could not box the windows; that the wood around the windows was not mitered but was cut square and applied with concrete nails that could not be sunk into the wood; that the water runs into the house from the concrete sill built and can also get in around the window where spaces were left an inch below the framing; that the window screens cannot now be taken out or put in; that the corner pieces Foglesong put up were at least partially removed by Bennett and those that are still up do not come together at the bottom because the siding is one height on one side of the garage and another height bn the other; and that about one-third of the house has not been done. With respect to the concrete sills, she testified that these sills were slanted and very rough. Mrs. Thomas further testified that the same material taken off the house was reused, and that the workmen called the window framing a completed job. On cross-examination she testified that Perkins left at her request; that most of her conversation with Foglesong was with regard to the window framing; that the contract said nothing about the concrete sills, but the plaintiff offered to do this; and that Halpern asked her to let the plaintiff finish the house but she refused.

The defendants then offered the testimony of Mr. Goebel, who testified that he has been a registered architect for thirty years, that he also makes appraisals of houses; that in February or March of 1959 he examined this house and found the furring strips as far as 32 inches on center, which left the siding without a firm base, and by touching it you could push the siding into the wall; that in many places there was no backing where two pieces of siding met; that the concrete sills for the windows were substantial and properly installed, but the wood frame around the windows was “ * * a very flimsy structure, not properly put up * * * ”, and were so constructed that you could not remove the screens to wash the windows; that a cement sill was “ * * an inch or so higher * * * ” than the floor; that the siding did not meet properly at the corners of the building, the siding on one wall being a half to three-quarters of an inch higher than the siding at the same level on the other wall, so that when the corner strips were applied there was a crevice or hole left; and that in his opinion furring strips should not be more than 16 inches apart with a piece of furring behind each place where the aluminum strips abut. The witness further testified over the objection of the plaintiff’s counsel that the value of this house was $18,000 in May, 1957, and that in the condition he saw it in •February or March of 1959, the value was $17,500. He also testified that the awnings were not attached to the building when he inspected it, and that there was material lying around in the weather without any protection. It was his opinion that the work was not done in a good, workmanlike manner. On cross-examination Goebel testified that he had never used aluminum siding in designing a house or remodeling one; that he had inspected three or four houses with such siding; that where siding was applied and the job not finished weathering conditions would cause the insulation to deteriorate; that the fact that the wood framing for the windows was not painted would not cause the wood to swell so much that the screens could not be removed; that he made two measurements to determine the width of the stripping and found none 16 inches or less apart; that the corner situation he described could have been corrected.

The witness Rosenbaum testified that he is the vice president of the Better Business Bureau of St. Louis, Inc., and that at the request of the defendants he wrote to the plaintiff and received a letter in reply which he identified as Exhibit F. In that letter Halpern, president of the plaintiff, admitted that “ * * * the workmanship was poor * * * ” and stated that Mrs. Thomas “ * * * has lost faith in our company because she has become very fussy and seems to be looking for fault. * * * While we admit that some of our workmanship was poor, we are doing everything in our power to correct this and give her a good job, as you can see. * * * ”

The defendant Bennett was called by the plaintiff and testified that he was hired by plaintiff to work on the Thomas job in August of 1957; that he removed the siding in the front of the house and replaced it almost to the top; that he installed the concrete sills and “ * * * There is nothing wrong with them * * * ”; but he never got to finish them, being asked to leave the job by the Thomases, and that’s why the sills were rough; that plaintiff was to pay him by the hour for the siding and by contract for the sills; that he worked 24 hours on the siding and two days on the sills and hired another man to help him with them whom he had to pay; and that the total for the work he did was $180.69 which he has not been paid. On cross-examination Bennett testified that he had never put on aluminum siding before, and that he built the sill for the door higher on the outside because the ground is higher and this kept the water from coming in.

The pleadings have been set forth in some detail because of the disagreement that permeated the entire trial as to the basis for and theory of the plaintiff’s petition; contract or quantum meruit. Since the contract contained a definite lump sum price agreed upon between the plaintiff and the Thomases for a completed job, the plaintiff could merely have stated the lump sum provided by the contract as a statement of account, State ex rel. St. Francois County Building & Loan Association v. Reynolds, 288 Mo. 522, 232 S.W. 1035. Had it done so, plaintiff would not have had to set out the various items of various materials furnished and labor performed, Mississippi Woodworking Company v. Maher et al., Mo.App., 273 S.W.2d 753. On the other hand, the contractor may recover for the materials it furnished and the work its employees did upon the house upon the theory of quantum meruit. Oliver L. Taetz v. Groff, supra. In a lien claim based upon this theory, it is not only proper but necessary to itemize the account, Fuhler v. Gohman & Levine Construction Co., Mo., 142 S.W.2d 482; Schroeter Bros. Hardware Co. v. Croatian “Sokol” Gymnastic Association et al., 332 Mo. 440, 58 S.W.2d 995. Since the plaintiff pleaded that the plaintiff was prevented from completing this contract by the actions of the Thomases, and itemized the account, we believe the plaintiff’s petition proceeded upon the theory of quantum meruit, but it is actually immaterial because whether it be a theory of contract or of quantum meruit, the defense of improper or unskillful workmanship or, stated another way, that the efforts of the plaintiff resulted in no increase in value to the property, was available to the defendants.

To bear its burden of proof, the plaintiff produced evidence establishing the contract which afforded prima facie evidence of the reasonable value of the services, John O’Brien Boiler Works Co. v. Sievert, Mo.App., 256 S.W. 555, at loe. cit. page 557 [1-5]; Cabool School District v. United States Fidelity & Guaranty Co., Mo.App., 9 S.W.2d 103, at loc. cit. page 105 [5, 6] ; Oliver L. Taetz, Inc. v. Groff, supra, [5]; Beckemeier v. Baessler, supra. The defendants had pleaded that the work was unskillfully performed, and by their counterclaim alleged that it was not only worthless but actually resulted in the property being of less value than before the work began. Of course, such a theory of defense and counterclaim was available to the Thomases, Fitzgerald v. Schaefer, Mo.App., 216 S.W.2d 939 at loc. cit. pp. 940-941 [2,3]; John O’Brien Boiler Works Co. v. Sievert, supra and cases cited at 256 S.W., page 557. Whether or not the materials furnished and work done by the plaintiff resulted in value being added to the property of the defendants was the crucial issue, and it is on that issue that the plaintiff’s case fails. This is for the reason that there is no testimony in the plaintiff’s case or anywhere in the record as to any increase in value in the Thomases’ premises because of the work the plaintiff did, and the materials it furnished. To the contrary, the only evidence on this point is that the house was worth $1,000 less at the time work was stopped than it was when work began, according to Mr. Thomas’ testimony, and $500 less, according to the expert witness Goebel’s testimony. The plaintiff’s contentions with regard to the admission of this testimony and the alleged exclusion of the lien can be disregarded as allegations of prejudicial error. Under our de novo review, this court considers such of the evidence as it deems admissible and excludes from consideration evidence improperly admitted. We are not required to rule upon the alleged errors of the trial court with respect to the admission or exclusion of certain evidence, Section 510.310 RSMo 1959, V.A.M.S.; Rule 73.01(d), V.A.M.R.; Hussey v. Robison, Mo., 285 S.W.2d 603; Thumm v. Lohr, Mo.App., 306 S.W.2d 604. In any event, with respect to the alleged exclusion of the lien, an examination of the transcript discloses that the trial court reserved its ruling upon the defendant’s objection to admission when it was offered and never did rule. The lien was filed as an exhibit and is part of this record. Moreover, the plaintiff’s objection to the testimony of Goebel as to the value of the house was based upon the witness’s admission that he had first examined the house in February or March of 1959, although he was asked and gave his opinion of the value as of May, 1957. The evidence was that Goebel had been engaged in his profession of architect for thirty years, and that he was also an appraiser, although he was never asked for how long he had been so. However, immediately following the objection Goebel was asked, “You have been making appraisals all through the years?” and answered, “Yes, sir.” It is true that a number of questions intervened between his statement of thirty years experience as an architect and the question of “ * * * making appraisals all through the years * * * ”, yet we think a fair inference is that each related to the other, and that he was making appraisals in May, 1957. As the summary of his evidence discloses, he gave factual basis for his opinion as to value by reciting in some detail what he found upon that inspection. He could therefore give his opinion as to value in 1957 based upon correlating what he saw upon inspection in 1959 with his knowledge of property values gained from making appraisals in 1957. When confronted with this evidence, the plaintiff’s prima facie case of reasonable value arising from the introduction of the contract fails.

This transcript discloses ample evidence to substantiate the trial court’s finding the work was not properly done. The evidence that the aluminum stripping did not meet at the corners and was dented and marked, that the screens could not be removed, that the furring strips were too far apart and not placed behind each point where the aluminum strips abutted, and the opinion by the expert witness Goebel that the work was not done in a good and workmanlike manner all substantiate the judgment. Moreover, in the face of diametrically opposed evidence, the solution would depend upon the credibility of the witnesses and thus present a factual situation that upon review calls strongly for the application of the rule of due deference, Fitzgerald v. Schaefer, supra; Spitcaufsky v. Guignon, Mo., 321 S.W.2d 481 at loc. cit. page 492 [12].

The trial court must have believed Goebel and Bennett when they testified that Bennett’s work was properly done and on that basis awarded Bennett a judgment against the plaintiff who hired him. It could do so and at the same time believe the rest of the work was improperly done, and thus award judgment to the Thomases. These findings are not necessarily inconsistent, and are supported by the evidence.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is therefore affirmed.

ANDERSON, P. J., WOLFE, J., and HARRY A. HALL, Special Judge, concur.

RUDDY, J., not participating.