author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    John HAGGARD, Jr., d/b/a Haggard Heavy Hauling, Plaintiff-Respondent, v. MID-STATES METAL LINES, INC., a Corporation, and St. Joseph Structural Steel Company, a Corporation, Defendants-Appellants, and Sharp/Kidde/Webb, a Joint Venture, Defendants.
    No. 29821.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Harry D. Dingman, Kansas City, W. Raleigh Gough, Independence, for Mid-States Metal Lines, Inc.
    R. A. Brown, Brown, Douglas & Brown, St. Joseph, for St. Joseph Structural Steel.
    Robert L. Shirkey, Kansas City, for plaintiff-respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by defendants Mid-States Metal Lines, Inc. and St. Joseph Structural Steel Company from judgment for plaintiff for $120,276.75, for extra work. The questions are whether plaintiff made a case under any of his pleaded theories for recovery; and, if so, the damages recoverable. Affirmed in part and reversed in part.

This dispute arose from construction of the Truman Sports Complex in Kansas City. Jackson County, Missouri, sponsored the idea of the complex, acquired land on which to build football and baseball stadiums, and secured approval of the bond issue necessary for the land purchase and the construction. The Jackson County Sports Authority was formed to supervise the project for Jackson County; Kivett & Myers was retained as the architect, Campbell and Associates was retained as the engineer.

In early 1968 the architect provided architectural drawings which showed the general outline, design, and overall dimensions for both the football and baseball stadiums. Bids for work shown by the drawings were solicited and a number of general contractors responded. All were rejected because they exceeded the county’s budget.

At the direction of the owner, the architect and engineer eliminated and reduced some items to bring the project within the budget. A second round of bidding was opened in 1969 and a general contract for approximately $29 million was awarded to a joint venture, Sharp/Kidde/Webb, sponsored by Sharp Brothers Contracting Company.

Prior to making its first bid, S/K/W asked Mid-States to furnish a substantial part of the structural steel. Mid-States, in turn, consulted Haggard, a heavy hauler, with the view that he would haul some of the steel from the Mid-States fabrication plant in Grandview and unload and erect it at the jobsite. Based upon the original architectural drawings furnished him by Mid-States, Haggard made a preliminary bid to Mid-States. With Haggard’s bid in hand, Mid-States then made its bid to S/K/W.

After the plans were pared by the architect and engineer, a new set of architectural drawings was made. This second set' was made available to Haggard and he made an oral bid to Mid-States of $95 per ton. He based his bid in part on two considerations: that the architectural drawings showed the bents and hammerheads all in one piece requiring no field assembly other than to attach the entire assembly to the embedded base in the stadiums’ foundations; and that he was told by Mid-States that the fabricated pieces would come “in as large a pieces as I could haul.”

Written acceptance of Haggard’s proposal occurred sometime after when he received purchase orders 9 and 10 from St. Joseph. Although Haggard made his oral bid to Mid-States to haul, unload, and erect at a rate of $95 per ton, Mid-States sublet a portion of its contract to St. Joseph. In furtherance, Mid-States sent its purchase order 1330 to St. Joseph which then sent purchase orders 9 and 10 to Haggard requesting that he perform the hauling, unloading, and erecting originally called for in purchase order 1330 from Mid-States.

Upon receipt of purchase orders 9 and 10 from St. Joseph, Haggard called Mid-States and discussed them with. Winston Apple who had initially invited Haggard to make the bid. Apple explained that Mid-States had sublet that part of the contract to St. Joseph and assured Haggard that his bid had been transferred directly to St. Joseph. Advised of no changes from the original understanding, Haggard signed and returned purchase orders 9 and 10 to St. Joseph on the assumption that his arrangement with St. Joseph would be the same as it would have been with Mid-States.

The chain of command was S/K/W as the general contractor, responsible for the overall job; Mid-States as a first tier subcontractor; St. Joseph as a second tier subcontractor; and Haggard as a third tier subcontractor.

Purchase orders 9 and 10 contained the terms of agreement between Haggard and St. Joseph. They provided that Haggard was to “furnish and erect” for the football stadium:

“sound system supports and catwalks, lighting and catwalks”;

and for the baseball stadium:

“outfield lighting support and catwalks, infield lighting supports and catwalks, weather canopy supports, excluding roof deck and accessories”.

After signing purchase orders 9 and 10, Haggard secured a performance bond as required and waited for St. Joseph to advise him.when the shipments of fabricated steel were ready at St. Joseph’s plant in St. Joseph, Missouri. Because of a general construction strike, the first load was not hauled until April, 1971.

The items hauled and erected by Haggard consisted of:

(1) “bents,” pieces of steel from 25 to 100 feet in length, 28 in the football field and 40-odd in the baseball field;
(2) “hammerheads,” “L” shaped assemblies of steel attached to the outward end of the bents designed to hold the light and sound cages;
(3) “light cages” which held the floodlights;
(4) “sound cages,” one for each stadium holding the public'7 address system; and
(5) “catwalks,” steel railings connecting the bents designed to allow maintenance of the lights.

Apart from the original architectural drawings which showed general outlines and design, each subcontractor was required to prepare “shop drawings” showing the details of his particular work. St. Joseph prepared such refined drawings, submitted them to Mid-States who submitted them to S/K/W who had them approved by the owner, architects, and engineer. The plans then made their way back down the chain of command, returning to St. Joseph who had drawn them in the first place.

These shop drawings or blueprints were prepared as the job progressed. It was the custom of St. Joseph to deliver the shop drawings applicable to any shipment along with that shipment so Haggard would know how to erect the materials on the jobsite.

Unlike the architectural drawings on which Haggard had based his bid, the shop drawings showed the hammerheads to be fabricated separate and apart from the bents, and that the bents and hammerheads were to be assembled in the field.

When he discovered that more field assembly and welding would be required of him than originally anticipated, Haggard complained to St. Joseph. St. Joseph replied that under the plans and specifications, the shop drawings, and his contract, the amount of assembly required of Haggard was proper, and insisted he do the work.

Haggard continued to complain to St. Joseph and also to Don Sharp, the project supervisor. On several occasions he threatened to walk off the job. It was made clear to him, however, that if he did so, he would be sued on his performance bond which covered, among other things, his home and company assets. Haggard thereafter completed the work required of him despite the dispute over terms and price.

The general assembly, essentially, went this way: the bents were attached to the foundation of the stadiums; to these were welded the “L” shaped hammerheads, and fitted inside the “L” of the hammerheads was a light or sound cage. The light cages came in a “knocked down” condition in small bundles to be assembled at the job-site. Before the light cages or sound cages could be installed and erected, some electrical wiring had to be performed by the electrical contractor. This wiring was done while the bents, hammerheads, and cages were on the ground, then the whole assembly was hoisted in one piece.

Another controversy surrounded Haggard’s use of a so-called “Skyhorse” crane. Haggard owned and used his own cranes in doing much of the erection work called for under his contract. For some of the taller and heavier pieces, however, he was unable to do that work with the cranes he owned and used. He had to rent instead S/K/W’s “Skyhorse” crane for which he paid $249.50 per hour for crane and crew. Haggard contended that were it not for the increased weight caused by the preassembly of certain electrical work on the ground, his rental of the “Skyhorse” would have been unnecessary as his own cranes would have sufficed. Appellants contended that Haggard’s own machinery was inadequate in any event.

Plaintiff’s suit against S/K/W, Mid-States, and St. Joseph contained four counts. Important to this appeal is Count II which alleged: that St. Joseph furnished plaintiff with plans and specifications on behalf of itself and other defendants which “implied, warranted and/or represented” that the list of materials which were to be installed would require plaintiff to “haul, unload and erect” the items shown on purchase order 1330, which were represented to be a “true picture of the quantity and type of material that was to be hauled, unloaded and erected.” It further alleged that plaintiff relied upon the “implied warranties” made by St. Joseph and “accepted, confirmed and condoned” by the other defendants, and agreed to do the work at an agreed price in reliance thereon; that said “warranties and/or representations” were “false, either intentionally or mistakenly,” they were “grossly inaccurate and recklessly made,” in that plaintiff was required to do additional work, “constituting a breach by the defendants” of their agreement with plaintiff; that the types of materials to be hauled, unloaded and erected were unknown to plaintiff but were known or “should have been known” to defendants; that plaintiff was damaged by the defendants “breaching said contract” in the sum of $100,723.63, for which judgment was prayed.

Plaintiff’s prayer was for extras which resulted from (a) the field assembly and welding of hammerheads to bents made necessary because these did not come in one piece as promised; (b) the field assembly and welding of catwalks, also made necessary because these came in more pieces than promised; (c) rental of the “Skyhorse” crane made necessary by the increased weight caused by preattaching the light cages to the hammerheads before erection; (d) refabrication of channel purlins and,, bent plates; (e) additional welding because some “straps” on the backg of some cages did not pull up against the “Nelson stud” embedded in the base to receive them; (f) extra welding necessary because outfield light support bents needed more welds because they were shipped in more pieces than promised; (g) the added weight of hoisting the light cages which resulted from the electricians’ installation of the lights before hoisting of the cages; and (h) expense of six days delay in setting the light cages which occurred because the light had been installed on the ground causing additional weight thereby making it impossible to hoist them in high winds.

The trial judge, sitting without a jury, issued a memorandum opinion, findings of fact, and conclusions of law in favor of plaintiff. The trial court concluded that Haggard’s acceptance of the offer from St. Joseph to haul, unload, and erect at a rate of $95 per ton was induced by Mid-States thereby embracing the negotiations between Mid-States and Haggard. The court found the conduct of Mid-States and St. Joseph constituted fraud and deceit practiced on Haggard and the expenses of any added assembly and welding required of Haggard by reason of the misrepresentation were due and owing.

In addition, the court found that the word “erect” as used in purchase orders 9 and 10 between St. Joseph and Haggard did not include, as contended by defendants, all field assembly necessary to placement in the upright position. Rather, the court found that field assembly was not included in the term “erect” which meant only “to set upright” and any field assembly required of Haggard was not within the terms of his contract and therefore constituted additional work for which payment was due and owing. More specifically, this applied to the bents and hammerheads, catwalks and light cages which came in pieces requiring assembly before erection. The court also found that it was not part of Haggard’s contract to hoist the light cages with the added weight of the lights already installed by the electricians and such added weight gave rise to extra charges not covered by the contract for (a) rental of a larger crane; (b) delay in hoisting the added weight in high winds, and (c) the added weight itself.

The court found the total of extra charges not covered by Haggard’s contract together with interest computed to date of judgment, August 19, 1977, to be $120,-276.75 and entered judgment accordingly against both. St. Joseph and Mid-States. The judgment absolved S/K/W.

Appellants contend that plaintiff’s petition did not sufficiently plead a count of fraud and deceit, and even so, there is no evidence in the record to support such a finding, in particular, the required element of intent. Absent a supportable theory of liability, they argue the judgment must be reversed.

This judgment is for affirmance if plaintiff' stated a cause of action in his pleadings and adduced evidence to support that cause of action; it need not be the same as that found by trial court. In this court-tried case, review is on the law and evidence giving due regard to the trial court’s judgment as to credibility of witnesses, with this court to enter such judgment as the trial court should have entered. Rule 73.01, as construed, Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Richter v. Richter, 532 S.W.2d 903 (Mo.App.1976); City-Wide Asphalt Co., Inc., v. City of Independence, 546 S.W.2d 493 (Mo.App.1976).

Plaintiff pleaded a cause of action as defined in 76 ALR 268, 269, adopted in Clark v. City of Humansville, 348 S.W.2d 369 (Mo.App.1961):

“that where plans or specifications lead a public contractor reasonably to believe that conditions indicated therein exist, and may be relied upon in making his bid, he will be entitled to compensation for extra work or expense made necessary by conditions being other than as so represented.”

In Clark v. City of Humansville, supra, defendant city had solicited bids for a sewage disposal project which it advertised as requiring “approximately” 18,000 cubic yards of earthwork. The contractor which had been the successful low bidder brought an action for damages as a result of having to move 36,000 cubic yards of earth to complete the project. The trial court granted the City’s motion to dismiss for failure to state a cause of action. The judgment of dismissal was reversed because “cases, such as the instant one, are not suits which properly may .be fit or forced into the mold for conventional fraud and deceit actions and in which sufficiency of the petition depends upon averment of all essential elements in such actions * * * (j)n many instances there is liability for business loss caused by misrepresentations which are not fraudulent, i. e., when‘scienter’is not present * * * the basis of a suit such as this is that ‘there was a deceptive representation and it misled’ ” 348 S.W.2d 372, 373. See also Rock Hill Asphalt Construction Co. v. State Highway Commission of Missouri, 452 S.W.2d 810 (Mo. banc 1970); Denton Construction Co. v. Missouri State Highway Commission, 454 S.W.2d 44 (Mo.1970).

The court recognized that the cases are not in agreement as to the theory upon which recovery is permitted in actions of this character and adopted the view “that this is not an action on the contract but rather one ‘to recover damages for the misrepresentation by which the contract was induced’.” 348 S.W.2d 371. “In final, it appears that actions of this character are sui generis in nature and sound in tort.” 348 S.W.2d 373; Samuel Kraus Co. v. Kansas City, Mo., 315 S.W.2d 758 (Mo.1958).

Plaintiff proved a cause of action under the foregoing rule. He adduced evidence that Mid-States, in securing the bid from Haggard, affirmatively represented via the architectural drawings that the bents and hammerheads would come in one piece requiring only one weld to erect each; that Haggard was told by Mid-States that other items would come in larger pieces than they ultimately did; that Haggard bid to Mid-States on the basis of such representations; that Mid-Sates transmitted Haggard’s bid to St. Joseph along with Mid-States’ purchase order 1330 which had been the basis on which Haggard had made his bid to Mid-States; that St, Joseph adopted the representations of Mid-States upon its offer of purchase orders 9 and 10 with purchase order 1330 attached; that St. Joseph showed nothing new or different to Haggard on the basis of which he should change the bid already made to Mid-States; that Haggard signed and thereby accepted the terms of purchase orders 9 and 10 undertaking a contract which required more of him than had been required at the outset; that Haggard performed all work required of him in a good and workmanlike manner; and that Haggard was thereby damaged.

It is also contended that the trial court violated the parol evidence rule in that it found that certain oral statements made by Mid-States to Haggard were transmitted to St. Joseph and were incorporated by St. Joseph into the contract with Haggard. The parol evidence rule provides that extrinsic evidence is inadmissible to vary, alter, or contract a written instrument where the instrument is complete, unambiguous, and valid, or there is no fraud, accident, or mistake, or claim or allegation thereof, with respect to the instrument. See, Sullivan v. United States, 363 F.2d 724 (8th Cir. 1966) citing, 3 Corbin, Contracts, § 373 (1960) and 32A CJS Evidence § 851 (1964). The pleadings and evidence demonstrate that this suit involved a claim or fraud. In such a case, the parol evidence rule does not operate to exclude the circumstances surrounding the agreement. Smith v. Tracy, 372 S.W.2d 925 (Mo.1963).

Appellants charge the court erred in its findings, “The word ‘erect’ in its clearest context based upon the testimony herein reflected means to ‘set upright,’ ‘to rear,’ ‘to cause to stand up’ and ‘to set up’.” They argue that everyone at trial with the exception of the plaintiff agreed that included in the meaning of ‘erect’ is all assembly required to put something up, i. e., to put together any component parts necessary to erect.

In ascribing meaning to the word “erect” in the context of this suit, the trial court properly considered the circumstances surrounding the making of that contract. E. O. Dorsch Electric Co. v. Plaza Construction Co., Inc., 413 S.W.2d 167 (Mo.1967). Haggard agreed to “erect” certain items based upon plans furnished him by Mid-States which showed those items to be in one piece. Irrespective of the many meanings this word could have, based upon the representations made to plaintiff during the pre-contract negotiations, the judge could properly find that “erect” for the purposes of this contract did not include such field assembly as plaintiff ultimately was required to do.

Appellant Mid-States argues that any finding based on a warranty theory is necessarily erroneous as to it because it entered into no contract with plaintiff and cannot be held liable on that basis. It has been demonstrated that this cause of action sounds in tort, and contract cases and their requirements of privity do not govern. Clark v. City of Humansville, supra, at 374.

The trial court enumerated what it found as damages in its “findings of fact” 8 through 21. Appellants contend that the court’s findings of damages are not supported by the evidence even if a theory of liability does exist.

Generally, damages need not be established with absolute certainty, but reasonable certainty is still required as to both existence and amount and the evidence must not leave the matter to speculation. Sides Construction Co., Inc. v. Arcadia Valley R—II School Dist., 565 S.W.2d 761 (Mo.App.1978).

Findings nos. 11 and 12 involved Haggard’s refabricating channels, purlins, and bent plates. It was not proved with any certainty who was responsible for those charges. Plaintiff himself testified he was not sure what had caused the difficulties, whether it was the original design, or whether the bases had been set improperly by the general contractor, or whether St. Joseph had fabricated the items improperly. Findings nos. 11 and 12 must, therefore, be reversed.

Finding no. 13 dealt with “overtime welding bents and assembling cages.” Plaintiff testified that this charge was not called for in his contract with St. Joseph nor in the original purchase order 1330 from Mid-States and that if anyone was responsible for payment of this extra bill, it would be S/K/W. Accordingly, finding no. 13 must be reversed.

Finding no. 15 was for expenses to Haggard in welding bracing straps on the near side of baseball cages because the Nelson stud kept them apart. As in the case of nos. 11, 12, and 13, responsibility of Mid-States and St. Joseph for this problem was not established by plaintiff. Plaintiff testified that either the architect or the project supervisor complained that the flat straps were not up against the back of the cage and ordered them redone. Haggard was not sure who was responsible for this problem but testified he felt that St. Joseph should have caught it in the shop. At best, responsibility for this expense is speculative and cannot be allowed under Sides Const. Co. v. Arcadia Valley, supra. Finding no. 15, therefore, must be reversed.

Findings 14, 16, 18, and 19 were made because lights were installed in the light cages before Haggard hoisted them. The damages found were based on additional expenses to Haggard resulting from the added weight. The directive to install the lights while the cages were still on thé ground came from the project director, S/K/W. These added expenses, therefore, cannot be charged as flowing from the misrepresentation, and findings nos. 14, 16, 18, and 19 must be reversed.

The additional charges claimed by Haggard reflected in findings 8, 9,10, 20, and 21 resulted from additional welding and assembly required of Haggard as a result of the misrepresentation made by Mid-States and adopted by St. Joseph. These findings in total sum $52,025.70 are affirmed.

Accordingly, the judgment is affirmed in part and reversed in part, and the cause is remanded with direction to enter judgment for plaintiff against defendant Mid-States Metal Lines, Inc., and St. Joseph Structural Steel Company in sum $52,025.70, together with interest from date of original judgment in the trial court (August 19, 1977).

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge. PRITCHARD, Judge, SOMERVILLE, Presiding Judge,

license: Public Domain

text:
    Ann ENGMAN and Walter Engman and Nora Engman, by and through their next friend, Ann Engman, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent.
    No. KCD 29921.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Tom B. Kretsinger, Kansas City, for appellants.
    Thomas E. Allen, Liberty, J. Curtis Net-tels, James E. Taylor, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and TURNAGE, JJ.
   TURNAGE, Judge.

Ann Engman filed suit individually and as next friend for her children Nora and Walter against Southwestern Bell Telephone Company for invasion of privacy. The Engmans and Bell filed motions for summary judgment and the court sustained Bell’s motion and overruled the Engman motion. Engman appeals the granting of Bell’s motion. The Engmans now contend their petition stated a cause of action for invasion of privacy and the tariff relied upon by Bell was not a defense as a matter of law. Reversed and remanded.

Engman first filed suit in 1975, and filed an amended petition in two counts in 1977. The first count alleged that Ann Engman was a subscriber of Bell and received telephone service for a number of years, that in March, 1975, Ann became delinquent in the payment of her bills to Bell and her service was discontinued. Bell notified her that her telephone equipment would be removed if the bills were not paid by a day certain. The petition continued that about 9:30 A.M. on April 7, 1975, Nora Engman missed school and was at home sick in bed when an employee of Bell appeared at her bedroom door and stated he was there to take out the telephones. It was alleged the employee had not attempted to advise Engman that he was coming nor did he knock at the front door of the Engman apartment before he entered. The petition alleged the entry of the Bell employee constituted a trespass and an invasion of the privacy of the Eng-man home and caused Nora and Ann Eng-man humiliation, embarrassment, annoyance and exposed them to public contempt and ridicule. The petition alleged the acts of the Bell employee were willful, wanton, reckless and malicious and prayed for actual and punitive damages.

The second count in the Engman petition made the same allegations with reference to Ann Engman subscribing to telephone service from Bell. It was alleged the Eng-man telephone service was suspended in May, 1977, for non-payment of her bill and she was notified in early May that if her bill was not paid by a date certain the telephone equipment would be removed from her premises. The petition continued that on May 12, 1977, Walter Engman was in bed in the family apartment when he was awakened at 2:30 P.M. by an employee of Bell who informed him he was there for the purpose of removing the telephone equipment. It was alleged the Bell employee did not attempt to advise Ann Engman of his intent to enter the apartment nor did he knock on the door before entering. It alleged the first Walter knew of the presence of the Bell employee was when he was touched sharply on the foot by the employee and he awoke. It was alleged the Bell employee committed a trespass and invaded the privacy of the Engman home. It was alleged the entry by the Bell employee invaded the privacy of both Walter and Ann and caused both humiliation, embarrassment, annoyance, disgrace and exposed both to public ridicule. The conduct of Bell was termed unwarranted, willful, intentional, malicious, without just cause or excuse, and the prayer was for both actual and punitive damages.

Bell’s answer relied principally upon a tariff filed with the Public Service Commission which Bell alleged granted to it a license coupled with an interest to enter the Engman apartment for the purpose of removing its telephone equipment. The tariff relied upon by Bell was as follows:

Ownership-Equipment, instruments and lines on customers premises, furnished by the Telephone Company, shall be and remain the property of the Telephone Company, whose agents and employees have the right to enter said premises at any reasonable hour for the purpose of installing, inspecting, maintaining or repairing the equipment, instruments and lines for the purpose of making collections from coin boxes and, upon termination of service, for the purpose of removing such equipment, instruments and lines.

Depositions of all the Engmans and Thomas Singleton, the Bell employee who entered the Engman apartment on both occasions to remove the telephone equipment, were taken and filed. There is no doubt Singleton entered the Engman apartment and removed the telephone equipment in both 1975 and 1977. The parties apparently felt the primary issue to be resolved was whether the tariff gave Singleton the right to enter the apartment even if the Engman version that he did not knock or obtain permission to enter on either occasion be accepted. The Engmans took the position the tariff did not authorize Singleton’s entry, but even if it did, he committed a trespass under § 560.447, RSMo 1975 Supp. Bell contended the tariff raised a bar to the Engman action with the result the respective motions for summary judgment were presented for the purpose of resolving the tariff defense. The court overruled the Engmans’ motion and sustained Bell’s motion without elaboration.

On this appeal the parties continue to maintain the positions they assumed in the trial court. The effect of the tariff was decided in Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596 (Mo.1968). In that case the court considered the defense of a tariff limitation on the amount of damages which could be recovered for erroneous listings in the directory. The court held the Public Service Commission has the authority to determine the reasonableness of the rates and regulations and limitations promulgated by Bell and its determination in that regard may only be reviewed in the method provided by statute. The court held, however, that “[t]he courts have jurisdiction of a suit for damages based on negligence in which a determination of the legal validity and the applicability of such provisions to a given state of facts is required.” 428 S.W.2d 602[9-11], Under this holding the legal validity and applicability of the tariff raised as a bar to the Engman action by Bell is to be determined by the courts. Warner further held “ ‘[a] bargain for exemption from liability for the consequences of a willful breach of duty is illegal, * * * and “[w]e conclude that the limitation of defendant’s liability was and is effective if defendant’s conduct was merely negligent, but that it does not constitute an exemption for willful and wanton conduct.” 428 S.W.2d 603[12—14].

It is clear from Warner that Bell’s tariff in this case would exempt it from liability for negligence but not for willful and wanton conduct. “Willfulness implies intentional wrongdoing. A wanton act is a wrongful act done on purpose, or in malicious disregard of the rights of others.” Evans v. Illinois Cent. R. Co., 289 Mo. 493, 233 S.W. 397, 400[3] (banc 1921). Thus, willful and wanton conduct as used in Warner refers to an intentional act.

The question in this case hinges on whether the conduct of Singleton in entering the apartment may be termed willful and wanton or in other words intentional, or merely negligent. This question was answered in Gonzales v. Southwestern Bell Telephone Company, 555 S.W.2d 219 (Tex.Civ.App.1977), where the court held a Bell employee’s entry into a private residence without the occupant’s permission in order to remove telephones was a willful tort of invasion of privacy. Gonzales had become delinquent in his telephone bill and a Bell employee was dispatched to remove the telephone equipment from the Gonzales home. When the employee arrived, no one was home, so he opened the front door and entered the home where he removed a telephone from the hallway and one from the bedroom. The employee stated he was in the house approximately three minutes. Gonzales filed suit for invasion of privacy and the court held the entry by the Bell employee into the Gonzales home without permission was a willful tort of invasion of privacy.

This court agrees with Gonzales. Here the Engmans’ allegation that the telephone employee entered their apartment without permission is a sufficient allegation of intentional conduct or willful invasion of privacy. Thus the tariff in this case, which protects Bell only against negligent conduct, did not constitute a bar to the Eng-mans’ action because the petition alleged a willful or intentional invasion of privacy.

Gonzales cannot be distinguished from the present case on the basis of disputed testimony as to whether the employee broke the Gonzales door to gain entry. Gonzales testified the employee did not have permission and that issue was submitted. The issue in that case was whether the employee had the owner’s permission to enter, the method of entry being only incidental.

Summary judgment is not appropriate if there is any theory within the scope of the pleadings or in the broad scope of probable evidence as revealed by the depositions filed which, if believed by the trier of fact, would authorize a recovery. Scott v. Thornton, 484 S.W.2d 312, 314[5, 6] (Mo.1972). In this case the Engmans relied principally upon a theory of invasion of privacy. This theory was recently recognized by this court in Corcoran v. Southwestern Bell Tel. Co., 572 S.W.2d 212, 215[6] (Mo.App.1978). This court recognized an unreasonable intrusion upon the seclusion of another constitutes an invasion of privacy. This court held “[t]o make a submissi-ble case of intrusion upon seclusion, plaintiff must prove three elements: (1) the existence of a secret and private subject matter; (2) a right possessed by plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter by defendant through some method objectionable to the reasonable man.”

Engman’s petition did state a cause of action for invasion of privacy for unreasonable intrusion upon the seclusion of another. The existence of the Engman apartment and the right of the Engmans to keep that place of abode private satisfies the first two elements. The obtaining of information about the abode by Singleton when he entered was held by Gonzales to satisfy the third element when the court stated, “[tjhere is no question that the telephone company’s employee saw whatever there was to see in the plaintiff’s bedroom and the other áreas of their home. Whatever there was to see was the private property of the plaintiffs.” 555 S.W.2d 222[2]. The petition pleaded facts sufficient to demonstrate the method employed to invade the Engman privacy was objectionable to the reasonable person.

Because the petition stated a cause of action for invasion of privacy there is no need to explore the alternate theory that Singleton was guilty of trespass.

One further question remains concerning punitive damages. It is well settled that punitive damages may be awarded upon a showing that a party intentionally committed a wrongful act without just cause or excuse. Murski v. Sportsman Cycles, Inc., 559 S.W.2d 67, 68[2, 3] (Mo.App.1977). The tariff does not protect Bell against punitive damages because it does not protect against intentional acts.

The court was correct in overruling Eng-man’s motion for summary judgment because they must now prove the cause of action alleged. The court erred in sustaining the motion for summary judgment filed by Bell, and, therefore, that judgment is reversed and the cause remanded.

PRITCHARD, J., concurs in separate concurring opinion.

SOMERVILLE, P. J., dissents in separate dissenting opinion.

PRITCHARD, Judge,

concurring.

I concur fully in the opinion of Turnage, J., in its holding that plaintiffs stated a cause of action for the tort of willful invasion of their privacy by defendant in entering their home for the purpose of removing telephones. What the dissenting opinion herein does is to grant defendant an absolute defense of a license to enter plaintiffs’ abode in violation of their well established right of privacy — the right to be free of physical intrusion into their premises. See the discussion of this right, Hofstadter and Horowitz, “The Right of Privacy,” § 9.1, p. 95, and the case examples there set forth. See also 77 C.J.S. Right of Privacy, § 1, et seq., p. 396, et seq.; and the numerous examples of “Privacy Inhering in the Place”, p. 31, et seq., “The Right to Privacy”, Dionisopoulos and Ducat.

Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942), was a case involving violation of plaintiff’s right of privacy in the publishing of an article. The court went on to discuss that right, saying at page 294[6], “The basis of the right of privacy is the right to be let alone”, and the court further went on to say that the right grows out of a constitutional right, to be weighed against the defendant’s claim of the constitutional right of freedom of the press. See Corcoran v. Southwestern Bell Tel. Co., 572 S.W.2d 212 (Mo.App.1978), holding that there was no submissible case against Bell because there was no publication by it, but holding that a submissible case was made against defendant Corcoran upon the basis of intrusion upon seclusion, which requires no publication to establish the tort.

In the posture of this case, plaintiffs had the right of privacy, of seclusion, in their own home. The tariff provision which the dissent would hold grants a license (could it be an unlimited license?) to defendant to enter a private residence to remove an unpaid-for telephone, cannot supersede the private constitutional right to privacy in one’s abode. The right of defendant to enter a home to remove a telephone must be tempered upon reasonableness of time of entry, upon reasonable notification, and if permission to enter is denied, upon defendant’s resort to other remedies at law to secure to it the repossession of its property. Note the case of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), holding that buyers under conditional sales contracts are entitled to notice and an opportunity to be heard before seizure of property in their possession, the Florida and Pennsylvania prejudgment replevin statutes (struck down), allowing summary seizure of a person’s possessions when no more than private gain is at stake. The matters postulated by plaintiffs’ pleadings require submission of the issue to the trier of the fact.

Weber v. Indiana Bell Telephone Company, 343 N.E.2d 786 (Ind.App.1976), relied upon in the dissent as creating a license to enter a subscriber’s premises, did not involve facts of entry without permission into one’s private residence, where it might be expected that one would be safe from intrusion, but only upon entry upon the land for the purpose of installing underground cable service to Weber’s telephone. The suit was brought in trespass and for negligence, not for the tort of invasion of privacy, and it is notable that the court remanded the case for a determination of the damages to the land, a situation not unlike plaintiffs’ claims for damages for the alleged willful invasion of their right of privacy of their abode. The Weber case is thus no authority for defendant’s summary exercise of a purported unlimited license to remove its telephones from the residences of unpaying subscribers.

SOMERVILLE, Presiding Judge,

dissenting.

I respectfully dissent.

As pointed out in the majority opinion, both counts of Engmans’ amended petition are posited upon the theory that in entering the apartment to remove the telephone equipment (for non-payment of service) Bell’s serviceman committed a trespass, and that doing so constituted a willful and wanton invasion of the Engmans’ right of privacy.

Notwithstanding the existing tariff provision, the majority opinion, as best comprehended, concludes that since Bell’s serviceman intentionally entered the apartment, doing so constituted a willful and wanton trespass, and, relying upon Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596 (Mo.1968), that the tariff provision did not insulate Bell from the willful and wanton conduct committed by its serviceman as opposed to insulation from negligent conduct. In support of its conclusion that the conduct of Bell’s serviceman in “entering” the apartment should be legally characterized as willful and wanton conduct, the majority opinion drew heavily upon Gonzales v. Southwestern Bell Telephone Company, 555 S.W.2d 219 (Tex.Civ.App.1977). Suffice it to say, no tariff provision was involved in Gonzales, much less a tariff provision similar to the one at hand.

Warner v. Southwestern Bell Telephone Company, supra, heavily relied upon in the majority opinion, holds at p. 601, with respect to a general tariff provision appertaining to customer contracts, that such “when . . . filed under authority of law, and unless found to be unreasonable become a part of the law . [and] [i]n this view it makes no difference whether the customer knows of the limitation [tariff provision] or not.” Engmans have failed to cite any Missouri cases judicially denouncing the instant tariff provision as being “unreasonable”.

It is the opinion of this writer that the tariff provision at hand granted Bell a license to enter the Engman apartment for the purpose of removing its equipment upon Engmans’ failure to pay for telephone services rendered. This opinion finds legal support in the remarkably analogous case of Weber v. Indiana Bell Telephone Company, 343 N.E.2d 786 (Ind.App.1976), wherein the Court of Appeals of Indiana, First District, construed a substantially similar tariff provision as granting a telephone utility a license to enter a customer’s premises for purposes delineated in the tariff provision there under judicial scrutiny.

This state has long been committed to the legal principle that an action for trespass will not lie if the alleged trespasser has a license to enter the premises. Seifert v. Withington, 63 Mo. 577, 579 (1876). A recognized exception exists, and properly so, if a licensee exceeds or abuses the scope of his license, Griesenauer v. Emsco Corporation, 399 S.W.2d 147, 151 (Mo.App.1965), an un-pleaded theory insofar as the instant case is concerned.

In the ordinary course of events it is quintessential to the exercise of a license to enter the premises of another that the entry be intentional. It defies legal imagination to characterize such intentional entry as willful and wanton conduct within concepts of tort law addressing intentionally inflicted injuries.

I would affirm the judgment of the trial court.

      . “Ownership-Equipment, instruments and lines on customers premises, furnished by the Telephone Company, shall be and remain the property of the Telephone Company, whose agents and employees have the right to enter said premises at any reasonable hour for the purpose of installing, inspecting, maintaining or repairing the equipment, instruments and lines for the purpose of making collections from coin boxes and, upon termination of service, for the purpose of removing such equipment, instruments and lines.”

      . Engmans do not contend that Bell’s serviceman entered the apartment at an unreasonable hour.


author: MANFORD, Judge.

text:
    Larry L. LANGTON and Marlys M. Langton, Appellants, v. Irwin BROWN, William Harrin and Ira Smith, Respondents.
    No. KCD 30248.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Count Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Elwyn L. Cady, Jr., Independence, for appellants.
    Thomas W. Wagstaff and Benjamin F. Mann, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for Brown and Harrin.
    Ernest H. Fremont, Jr. and William Dirk Vandever, Popham, Conway, Sweeny, Fremont & Bundschu, P. C., Kansas City, for Smith.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

This is an action for damages upon an alleged medical malpractice. The trial court sustained respondents’ motions for directed verdict at the close of appellants’ evidence. Such action is a final judgment for purposes of this appeal. A motion for new trial was timely filed. This direct appeal followed the overruling of the motion for new trial.

This appeal includes a motion to award damages for frivolous appeal, filed by separate respondent Ira Smith. This court has authority to entertain such motion and in its judgment, to make such an award pursuant to Rule 84.19. This motion is taken up and overruled.

Before addressing the main contention of appellants, it must be.pointed out that in their brief, appellants raise two points. The second point is as follows: “The court erred in dismissing plaintiffs at the close of their case since a prima facie case of negligence had been established.”

At the time of oral argument, appellants conceded the relief sought under point two of their brief was a matter for our State Supreme Court, since it called for the overruling of prior decisions. Point II is not formally abandoned by appellants, but by virtue of its inherent nature, it is disposed of herein as if abandoned by appellants and is considered no further in this opinion.

The evidence reveals that appellant, Larry L. Langton, suffered severe bodily injuries on the job on April 25, 1966. These injuries included permanent paralysis from the waist down. This paralysis left him without normal control of his urinary functions. This particular injury is not at issue in this litigation, but reference is made to it to better understand why and under what conditions he sought and came under the care and treatment of respondents.

After Mr. Langton sustained these injuries, he went to the Craig Institute in the State of Colorado. He spent some six months in rehabilitation at the institute. This program was designed to assist him in learning how to adjust to his serious physical circumstances. While at the institute, he suffered from an infection caused by residual urine in his urinary bladder. Residual urine would stay in his bladder due to a motor sensory incapability to discharge the urine. To treat this continual problem, a device called a catheter was inserted in him and as called for, the catheter was periodically removed and another inserted.

Upon Mr. Langton’s return home, it was necessary for him to continue to use the catheter. Craig Institute recommended that he contact respondents for his continued care, which he did. He first contacted respondent Harrin. An examination was made and Mr. Langton was diagnosed as having a neurogenic bladder.

A cystoscopic examination was made by respondents. This examination revealed some obstructing body tissue in the urinary canal. Respondents resected the apical tissue of Mr. Langton’s prostate and performed a sphincterotomy.

Respondents testified this procedure would not be recommended for persons with average urinary function, but for a person in Mr. Langton’s physical condition who has no motor sensory control over his urinary function, it is an acceptable procedure to permit drainage and passage of body urine.

Respondents testified they did not recall one way or another if Mr. Langton’s urinary system had a false passage. The testimony was that if there had been a false passage of any significance, it would, in respondent’s opinion, have been noted. No false passage was noted by respondents.

The evidence revealed Mr. Langton was hospitalized on two occasions. The first such instance was in the emergency room of Research Hospital, when respondent Harrin changed the catheter. Following this event, Mr. Langton and his brother went fishing and drank some beer. While fishing, Mr. Langton complained of not being able to pass urine and was taken home. Later that same evening, respondent Har-rin was contacted by Mr. Langton’s wife and at the suggestion and instruction of respondent Harrin, Mrs. Langton removed the catheter.

The evidence further reveals Mrs. Lang-ton, who worked for a physician, discussed her husband’s problem with her employer. At the employer’s suggestion, Mr. Langton went to the Mayo Clinic in Rochester, Minnesota, which accounts for his second hospitalization. There were no witnesses from the Mayo Clinic at trial, but appellants were permitted to introduce a letter from Dr. Charles R. Rife of the Mayo Clinic, the pertinent part of which reads as follows:

“The patient was cystoscoped on December 27th and found to have a markedly trabeculated bladder which was quite irritable. There were numerous cellules and rather marked chronic inflammatory changes at the base of the bladder. It appeared that the prostatic urethra had been previously well resected and there was no evidence of obstruction at that time. There was, however, evidence of a false passage in the bulbus urethra.”

Also, a suprapubic cystotomy was performed on Mr. Langton while he was at the Mayo Clinic. -

Upon the above-referred-to notation of a false passage, appellants filed this action, alleging that by respondents’ failure to observe, and the negligent and improper use of instruments, respondents produced a resultant false passage to the urological organs of Mr. Langton.

Since the trial court sustained respondents’ motions for directed verdict, review of the matter must be predicated upon a review of the evidence “. . .in the light most favorable to appellants giving them the benefit of all reasonable inferences to be drawn therefrom . . . ”, Kreutz v. Wolff, 560 S.W.2d 271, 278 (Mo.App.1977). Also see Moore v. General Motors Corp., 558 S.W.2d 720 (Mo.App.1977); Grossman Iron & Steel Co. v. Bituminous Cas. Corp., 558 S.W.2d 255 (Mo.App.1977); Lesser v. Rubin, 548 S.W.2d 860 (Mo.App.1977); Cato v. Modglin, 545 S.W.2d 307 (Mo.App.1976) and Russell v. Russell, 540 S.W.2d 626 (Mo.App.1976). Also see Rule 73.01.

In summary, appellants’ evidence consisted of testimony from Mr. Langton’s brother, who stated that he took his brother to Research Hospital. He did not witness the work performed by respondent Harrin in the emergency room. In addition, Mrs. Langton testified to talking with respondent Harrin about her removal of the catheter and the general disposition and condition of her husband. Mr. Langton testified admitting to th<e serious physical injury and the infectious status of his bladder.

Appellants failed to offer any direct expert medical evidence to establish that the false passage was caused by improper or negligent instrumentation. They offered no expert testimony as to whether respondents failed to meet proper medical standards in the care and treatment of Mr. Langton.

Appellants were permitted, over objection, to read the following definition of false passage from the 1952 edition of Blak-iston’s New Gould Medical Dictionary, Illustrated:

“a false channel, especially one made by the unskillful introduction of an instrument into the urethra.”

Since the permission to read the above definition was objected to, the record reveals a directed discussion on the issue. The court permitted the reading of the definition subject to the definition being related to the overall issue of a submissible case. Appellants argued the court could require and was required to take judicial notice of the definition. Respondents argued that the definition was not of such common knowledge as to justify judicial notice. Reference to this point in the final analysis is not determinative of the disposition of the matter, but the reference is made to show the sum total of appellants’ evidence.

Appellants called respondents individually to the stand and when quizzed about the matter of false passage, each one stated he did not know one way or the other whether Mr. Langton had a false passage. However, respondents stated that if in fact he did, it was not of sufficient significance to even warrant a notation in their medical case history of Mr. Langton.

Respondents testified that although the physicians at the Mayo Clinic observed a false passage, reference thereto did not clarify whether the false passage was caused by disease or improper instrumentation. They testified that a false passage could be produced by an infected bladder,, improper instrumentation, self-instrumentation or straddle type injuries. A straddle type injury was described as a situation when one’s foot slips from the pedal of a bicycle and trauma occurs, crushing the urethra between the arch of the symphysis and the bar of the bicycle.

In other words, and in summary, respondents testified there are a number of causes which could produce a false urinary passage. They maintained that Mr. Langton suffered from a neurogenic bladder, and other evidence in the record supports that conclusion. There was no expert testimony which eliminated or even appreciably reduced the multiple reasons which could cause a false passage.

Appellants offered no evidence to establish any act or omission by any individual respondent, or any act or omission by respondents collectively, as the causal relationship of the false passage.

Appellants contend, on this appeal, that a prima facie case of negligence had been established by the unskilled introduction of an instrument into Mr. Langton’s urethra, that such negligence resulted in physical damage to Mr. Langton and impaired Mr. Langton’s consortium, and that respondents made no definitive efforts to detect and identify the false passage and to treat the condition.

In support of their argument, appellants cite for the court I Wigmore on Evidence, § 26 (1940); VII Wigmore on Evidence § 2081 (1978); Fed.R.Evid. 803 (18) Notes of Advisory Committee; Kan.Civ.Pro. Code Ann. § 60-460 and Collister, Expertise: The Expert and the Learned Treatise, 17 U.Kan. L.Rev. 167, 175 — 178 (1968), all of which are well thought out reflections upon the issue before this court but none of which are decisive of the issue before this court.

Appellants were content to stand upon their claim of mandatory judicial notice of the above-referred-to definition of false passage. As has been pointed out, the court permitted the reading of that definition only as one element of proof toward the making of a submissible case.

The remainder of appellants’ evidence leads merely to the conclusion that there are multiple causes of false passage, that Mr. Langton suffered from an infected bladder and that Mr. Langton, aside from his trip to the Mayo Clinic, was under the care and treatment of respondents.

Appellants fail on this appeal, because on the face of the record and under the law of our state, appellants failed to make a submissible case.

In a suit for malpractice, it has long been established that in order to make a prima facie case, three elements must be established by the evidence. These three elements are a causal connection between act or omission of a physician to the claimed injury or condition, proof that the act or omission was performed negligently and proof that the act or omission failed to meet the requisite medical standard of care, see Swope v. Printz, 468 S.W.2d 34 (Mo.1971); Williams v. Chamberlain, 316 S.W.2d 505 (Mo.1958) and Odum v. Cejas, 510 S.W.2d 218 (Mo.App.1974).

The courts have held that these elements are a necessary and requisite part of a prima facie case and have gone further to declare what is or is not standard practice must be established by expert medical testimony. Hart v. Steele, 416 S.W.2d 927 (Mo.1967); Fisher v. Wilkinson, 382 S.W.2d 627 (Mo.1964).

Our courts have long held in malpractice cases that an action will not lie if in absence of proper evidence, jurors are permitted to speculate and their conclusions can be reached only by conjecture. Rauschelbach v. Benincasa, 372 S.W.2d 120 (Mo.1963).

Negligence amounting to malpractice can be proved by circumstantial evidence if that evidence, because of its character and circumstances, permits the trier of facts to draw rebuttable inferences based upon common knowledge or experience of nonprofessional or lay persons. Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962).

There is no presumption of negligence in medical malpractice cases merely arising from or by reason of an adverse result from medical treatment and the claimant in such cases has the burden in proving negligence. Piel v. Galbol, 559 S.W.2d 38 (Mo.App.1977).

Medical practitioners are held to a standard of skill and proficiency by our society. Any plaintiff claiming that by act or omission these practitioners fail to meet that standard, has, under our law, the burden of showing a failure to meet that standard as a necessary integral element of a submissible case. In those instances where this question turns upon medical treatment beyond the scope of laymen, plaintiff carries the burden of proving such by expert testimony. Piel v. Galbol, supra.

In the instant case, appellant (Mr. Lang-ton), although seriously impaired by a previous physical injury and an individual who must face the remainder of his life in such a debilitating condition, simply failed to make a submissible case in that he failed to establish, by sufficient evidence, that the respondents, by act or omission, caused or produced the false passage, that by any act or omission, respondents failed to meet the requisite standard of care required of medical practitioners or that any act or omission of respondents was negligent.

The action by the trial court, in sustaining respondents’ motions for directed verdict, was proper as no submissible case was made by appellants. The judgment entered therein was without error and is hereby in all respects affirmed.

All concur.

      . Defined as any condition of dysfunction of the urinary bladder caused by a lesion of-the central or peripheral nervous system.

        Dorland’s Illustrated Medical Dictionary (25th ed. 1974).

      . A cystoscope is an endoscope for visual examination of the bladder.*

      . A sphincterotomy is the division of a sphincter. A sphincter is a ring-like band of muscle fiber that constricts a passage or closes a natural orifice.*

      . A false passage is an unnatural channel, or meatus (natural body passage) in a body structure created by trauma or disease.*

      . A suprapubic cystotomy is the operation of cutting into the bladder by an incision just above the pubic symphysis. Dorland’s Illustrated Medical Dictionary (25th ed. 1974).

      . Internal masturbation, often by the use of a broomstraw or spark plug wire.


author: TURNAGE, Judge.

text:
    Willie GARRETT, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30264.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Clifford A. Cohen, Public Defender, Kevin R. Locke and Gary L. Gardner, Asst. Public Defenders, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Hope E. Thurrott, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Willie Garrett’s 27.26 motion was denied without an evidentiary hearing. On this appeal he contends he was entitled to a hearing and the appointment of counsel.

Garrett was convicted of robbery and sentenced to imprisonment for twenty years under the Second Offender Act. That conviction was affirmed by this court in State v. Garrett, 564 S.W.2d 51 (Mo.App.1978). In his 27.26 motion, Garrett claimed he was denied effective assistance of counsel because counsel filed a motion for new trial out of time. He contends this untimely filing deprived him of his right to appeal and mandated that his appeal be reviewed under the more rigid standard of plain error. Affirmed.

This court noted in State v. Garrett, supra, that the motion for new trial was untimely filed. However, this court considered the single point briefed by counsel that the trial court erred in refusing to strike lineup and in-court identification testimony in which Garrett was identified as one of two robbers. This court fully considered the facts involved in the identification and further recited at length the other testimony which directly traced Garrett from the scene of the robbery to a nearby apartment where he was found with items taken in the robbery. This court found no prejudice could have occurred to Garrett through the admission of the identification testimony on the facts and even if it had been reviewed as preserved the same result would have obtained because this court found no prejudice to Garrett.

The sole point raised by Garrett in his pro se brief in his prior appeal related to the application of the Second Offender Act for failure to allege incarceration. This court stated Garrett himself had testified extensively concerning his incarceration in a federal penal institution. Thus, the failure to file a timely motion for new trial had no bearing on the determination of that point.

The records in this case indicate no prejudice resulted to Garrett from the untimely filing of the motion for new trial and the denial of his 27.26 motion was proper. Brown v. State, 589 S.W.2d 368 (Mo.App.1979). There was no issue of fact raised by the motion and when the only issue is one of law, an evidentiary hearing is not required. Jackson v. State, 558 S.W.2d 816, 818[1] (Mo.App.1977). Further, when an evidentiary hearing is not required there is no necessity that counsel be appointed. Winston v. State, 533 S.W.2d 709, 715[6-8] (Mo.App.1976).

The judgment is affirmed.

All concur.

      . This case was decided by the trial court prior to the decision in Fields v. State, 572 S.W.2d 477 (Mo.banc 1978).


author: ROBERT R. WELBORN, Special Judge.

text:
    Kenneth C. RHODES and Charlene T. Rhodes, His Wife, Plaintiffs-Respondents, v. Albert TANNER and Geri Tanner, His Wife, Defendants-Appellants.
    No. KCD 30290.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.

      John A. Sanders, Clinton, for defendants-appellants.
    Belisle & Baker, John M. Belisle, J. D. Baker, Osceola, for plaintiffs-respondents.
    Before WASSERSTROM, C. J., Presiding, and WELBORN and MURPHY, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Injunctive proceeding to enforce real estate subdivision restrictions. Trial court found for plaintiffs.

R L C Investments, Inc., was the owner of a 1500-acre tract of land, located three miles north of Warsaw, Missouri, fronting on U.S. Highway 65. On October 25, 1972, R L C filed a plat of the area in the Benton County Recorder’s office, showing the subdivision of the tract into some 146 lots, to be known as “Cedargate.” The plat showed roads in the subdivision, described as 60 feet in width. It also showed a lake. The plat recited that “all roads and lake plus 30 feet horizontally from water line are dedicated to use of the owners.”

On December 29, 1972, R L C filed “Protective Covenants” for Cedargate. Among the covenants were the following:

“2. All lots are hereby subject to an easement for ingress and egress over all the roads, streets and drives shown on the plat of CEDARGATE.

“3. All. lots are hereby granted an easement for ingress and egress over all of the roads, streets and drives shown on the plat of CEDARGATE.

“13. No sheep, swine, goats or poultry shall be raised, bred, or kept upon any lot. Dogs, cats, or other household pets may be kept provided they are not kept, bred, or maintained for any commercial purposes.”

On January 1, 1973, plaintiffs-respondents Kenneth C. Rhodes and Charlene T. Rhodes, his wife, purchased Lot 8 of Cedar-gate. Apparently, however, demand for Cedargate lots was not great. As of February, 1976, 13 lots had been sold. Beginning in 1974, a portion of the subdivision had been leased for a cattle operation.

On February 4,1976, R L C sold all of the unsold lots in the subdivision to defendants-appellants Albert Tanner and Geri Tanner, his wife. Tanner purchased the property for the purpose of using it as a cattle ranch. Following the purchase, he built permanent fences around the land owned by him and kept several hundred cattle on the land.

In constructing the fences, Tanner placed gates across the roads in the subdivision which had been laid out and graveled.

On September 12, 1977, the Rhodeses filed action for a mandatory injunction, complaining that the Tanners had erected gates and fences on the subdivision roads and that they had converted the property to agricultural purposes and were running cattle in the subdivision.

At a trial, Tanner admitted that he had constructed gates across the subdivision roads. The trial court rejected plaintiffs’ complaint about using the land for a cattle operation, noting that, although the restrictions limited the keeping and raising of certain animals, cattle were not mentioned. Plaintiffs do not complain of the trial court’s construction of the restrictions in this regard.

The court made a “Judgment Entry” on April 21, 1978, in which it found that defendants had erected “certain barriers, gates, and fences in and upon and across [the] dedicated streets in [the] subdivision.” Defendants were directed to remove “any and all fences, gates or other obstructions in and upon the dedicated roads on said subdivision including the area around [the] lake * * Defendants appeal.

In this court, appellants first contend that the trial court’s decree, captioned “Judgment Entry,” was not responsive to plaintiffs’ petition which prayed for a mandatory injunction. Regardless of the caption of the court’s decree, it is a mandatory injunction in that it directs appellants to remove the obstructions they have placed upon the roads. There is no merit to this complaint.

Appellants’ second point complains that the trial court’s findings “did not reflect that appellants had erected any barriers, gates or fences in violation of any protective covenants of Cedargate Subdivision.” The court found that all roads in the subdivision had been dedicated to the use of the property owners and that appellants had erected barriers on such roads. That is a finding of violation of the protective covenants. Appellants’ argument is premised on the theory that landowners obtained only the right of access to their lots. Clearly the plat and the covenants extended to all lot owners the right recognized by the trial court.

Appellants next contend that respondents had waived or were estopped from claiming benefit of the restrictive covenants. The argument in support of this point is based upon the evidence showing that “the premises of the subdivision had been used for pasturing cattle extensively prior to and subsequent to appellants’ acquisition * * * ” of the property owned by them. The argument does not attempt to demonstrate that such activity would give rise to estoppel against or waiver by respondents of their right to enforce the covenants insofar as the roads were concerned. Appellants were not enjoined from conducting a cattle operation.

Appellants next contend that the trial court erred in considering the plat of Cedargate as evidence because it was not shown to have been prepared in accordance with Section 60.150, RSMo 1969. Section 60.150 provides:

“No survey or resurvey, hereafter made by any person, except that of the county surveyor or his deputy, shall be considered legal evidence in any court in this state, except such surveys as are made by the authority of the United States or by mutual consent of the parties.”

Appellants made no objection to the plat when it was placed in evidence at the trial. The absence of objection precludes appellate relief on this ground. In any event, the statute relied upon does not render inadmissible in evidence surveys made by private persons. Chostner v. Schrock, 64 S.W.2d 664, 666[5-7] (Mo.1933). The exact location of the land was not an issue here.

Appellants finally complain that in-junctive relief should have been denied because respondents had an adequate remedy at law by way of monetary damages. Respondents had the right to injunctive relief to prevent violation of the covenants without regard to the damages sustained by them. Greenberg v. Koslow, 475 S.W.2d 434, 437[5, 6] (Mo.App.1971).

Judgment affirmed.

All concur.