author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Reginald SANDERS, Defendant-Appellant.
    No. 36897.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 27, 1976.
    Motion for Rehearing or Transfer to Court En Banc Denied June 15, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      William J. Shaw, Public Defender, Timothy A. Braun, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted of first degree robbery. On appeal defendant raises three points of alleged error: 1) that his counsel impermissibly waived defendant’s presence at a pre-trial motion to suppress defendant’s oral confession; 2) that the prosecutor was erroneously permitted to define the term “reasonable doubt” during his closing argument; 3) that the trial court erred in permitting testimony regarding a weapon allegedly used in the robbery. We find no reversible error and affirm the judgment.

Shortly after its 11 p. m. closing, a hamburger restaurant in Kirkwood was robbed by three men. The robbers entered the restaurant, displaying a sawed-off shotgun and an unsheathed machete, and forced one of the employees to turn over the cash register money. Officer Wade Franklin, of the Kirkwood Police Department, was cruising nearby and observed the incident taking place in the brightly lighted restaurant. The robbers also saw Officer Franklin and made their evacuation from the restaurant with great celerity. Other police officers were summoned, and a search for the robbers was conducted. The defendant was soon discovered lying doggo on the bank of a shallow creek a short distance from the robbery scene. He was positively identified by one of the restaurant employees as the machete bearing robber. Officer Franklin, who had observed the robbery, also positively identified defendant as one of the three robbers. Officer Franklin testified that he assisted in the arrest of the defendant and advised him of his Miranda rights; that subsequently defendant fully admitted his complicity in the robbery. Defendant’s admission to his involvement in the crime was verified by the restaurant employee who had identified the defendant.

The first point which we consider is defendant’s oral confession. The trial before the jury commenced on October 1, 1974. Prior to trial, on May 14, 1974, defendant’s counsel filed a motion to suppress defendant’s oral confession. Hearing on the motion was set for June 6,1974, at which time State and defendant’s counsel appeared before the circuit judge hearing the motion to suppress. The following dialogue took place at the June 6 hearing:

“MR. WESTFALL: [prosecutor] Reginald Sanders [defendant] is not here, he is appearing in the City on another matter. The State would have two witnesses and we will recall them at a later date in the event he says something.
* * * * *
MR. WESTFALL: It is also my understanding that Mr. Braun will waive the presence of his client.
THE COURT: All right.
MR. BRAUN: [defendant’s counsel] If I can do it, I will do it. I am not sure I am absolutely allowed to waive the client’s presence. He is in the City in a hearing and when I talked to him last night—
MR. WESTFALL: Was last night the first time you talked to him about this hearing?
THE COURT: Where is he now?
Mr. BRAUN: City Court, Division Number 18.
THE COURT: Mr. Oldani, call and see if Reginald Sanders is there. Off the record.
* * * * ⅜ ⅜:
MR. BRAUN: The defense stipulates the defendant’s presence is waived for the purpose of the testimony the State wishes to present right now. I would preserve (sic) calling the defendant.
THE COURT: All right. We will hear it piecemeal. Call your first witness.”

At the June 6 hearing, the restaurant employee identifying defendant as participating in the robbery testified that the defendant had acknowledged in the witness’ presence that he had wielded a machete during the course of the robbery. Officer Franklin also testified that defendant, after being given his Miranda warnings, had admitted his part in the robbery. After hearing the State’s evidence regarding the oral confession, the hearing was continued by agreement to June 13, 1974. On June 13, the hearing was again continued “because the defendant’s presence today [June 13] was required in Division 16 (Criminal Assignment) in the Circuit Court of the City of St. Louis where the defendant is awaiting jury trial on another matter.” On June 24, when the defendant did not appear, the circuit judge said he would issue a capias to bring the defendant before the court. The defendant’s counsel, by specific written memorandum filed by him with the court, again waived defendant’s presence at the hearing. With no further evidence on the motion to suppress or request for further hearing on the motion, the court overruled the motion to suppress based on the June 6, testimony.

Trial was held on October 1 and 2, 1974, with defendant present but not testifying. The jury found the defendant guilty of first degree robbery, and he was sentenced by the trial court under the Second Offender Act to ten years imprisonment.

On appeal, defendant argues that he did not authorize the waiver of his presence at the motion to suppress, and that, hence, he was deprived of his constitutional and statutory right to be present during his trial. We first note that the defendant does not object to the June 6 or June 13 hearing dates, and it was at the June 6 hearing that the State presented the testimony of the two witnesses giving evidence as to defendant’s confession and the fact that it was not in any manner coerced. Defendant’s challenge goes only to the June 24 hearing, where, after waiver of defendant’s presence, no evidence was presented, the State’s evidence having been given on June 6. The defendant argues that he had an unqualified right to be present at the pre-trial motion to suppress, and there could be no waiver of his presence without his express authority. Defendant relies on Article I, § 18(a) of the Missouri Constitution which provides:

“That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; .”

Defendant also asserts § 546.030 RSMo. 1969, declaring that:

“No person indicted for a felony can be tried unless he be personally present, during the trial; . . . .” (Supreme Court Rule 29.02 repeats this statutory tenet).

First, we find that the broader Missouri constitutional right to be present has no application in this case as there was a waiver of defendant’s presence by his counsel. And we find no deprivation of defendant’s constitutional or statutory rights by his counsel’s waiver of his appearance at the motion to suppress the oral confession. It is manifest that the decision to file the motion to suppress the oral confession was a matter of pre-trial strategy. Whether or when the particular legal maneuver of filing a motion to suppress is to be exercised is a matter for the counsel’s determination. State v. Brownridge, 506 S.W.2d 466 (Mo.App.1974). It was within the defense counsel’s discretion whether to file the motion to suppress the oral confession. It was also within the counsel’s discretion whether the motion to suppress should be vigorously pursued, or, as in this case, after hearing the State’s evidence from two witnesses as to the voluntariness of the confession, whether further pursuit of the motion would be unavailing. Defendant’s counsel, thus, had the option of filing or not filing the pre-trial motion to suppress the confession, or, once having filed the motion, of discontinuing it at anytime — all within his own discretion as part of his own strategy in the conduct of the case. Waiving defendant’s appearance at this particular pre-trial motion — which was done — was within the defense counsel’s discretion.

There is no Missouri case specifically relating to the right of counsel to waive his client’s right of presence at trial under § 546.030, or whether a pre-trial motion to suppress is part of the “trial” within § 546.-030. But there is ample precedent from other jurisdictions holding that such a waiver by counsel without his client’s consent may properly be made. We choose to follow such precedent. In State v. Williams, 19 Ohio App.2d 234, 250 N.E.2d 907 (1969), the court specifically upheld the defense counsel’s unilateral waiver of his client’s constitutional and statutory right to be present at a pre-trial motion to suppress evidence. People v. Colombani, 22 A.D.2d 956, 255 N.Y.S.2d 906 (1964), aff’d, 16 N.Y.2d 1055, 266 N.Y.S.2d 129, 213 N.E.2d 460 (1965), and People v. Brighenti, 22 A.D.2d 956, 255 N.Y.S.2d 905 (1964), aff’d, 16 N.Y.2d 753, 262 N.Y.S.2d 119, 209 N.E.2d 733 (1965), also hold that a defendant’s attorney can, by his unilateral action, waive the defendant’s appearance at a hearing on a motion to suppress. In Williams, Colom-bani and Brighenti, constitutional and statutory provisions similar to the Missouri constitutional and statutory provisions relied on by defendant here were applicable and interpreted by the courts. Our ruling here is also congruent with Poteat v. United States, 330 A.2d 229 (D.C.App.1974), which holds that a defendant’s counsel can deliberately bypass or waive the defendant’s right to be present at a hearing on a motion to suppress evidence — all without consultation with his client.

In People v. Colombani, supra, the court said, 255 N.Y.S.2d at 907:

“While it is true that ‘a defendant in a felony case has an absolute constitutional and statutory right to be present at all stages of the trial’ [cites omitted], such right, in a noncapital case, may be waived by an absent defendant whose counsel voluntarily proceeds without him in the apparent belief that his absence will not prejudice his position or his defense.” (cites omitted).

Likewise, in People v. Brighenti, supra, it was said, 255 N.Y.S.2d at 906:

“Even if it be assumed that he [defendant] was entitled to be present at the hearing [hearing on motion to suppress], his attorney’s failure to arrange to have him produced at the hearing constituted an effective waiver of the defendant’s right to be present and an unequivocal election to proceed through the attorney alone, without the defendant.”

Poteat v. United States, supra, was based on an interpretation of Federal Rule 43, which embodies all the provisions of Rule 29.02 V.A.M.S. and § 546.030, upon which defendant relies for his right to be present. The Poteat decision goes so far as to emphasize that the matter of counsel’s forfeiture or waiver without consultation with his client of a defendant’s right to appear at a motion to suppress hearing is a matter of trial strategy to be made by counsel. In Poteat the court said, 330 A.2d at 231:

“The refined issue here presented then is whether the failure of appellant’s counsel, at or before trial, to challenge the pretrial motion proceeding as defective due to the absence of the accused is governed by the rule which recognizes that a party, may deliberately decide for tactical reasons to bypass an available objection. Such a deliberate decision is distinguishable from an inadvertent failure to object in that it is binding and may not be challenged even by way of collateral attack.”

The factual status of the foregoing cases are apposite to this case, and we believe the holdings to be a fair and proper statement of the law regarding the validity of a counsel to unilaterally waive his client’s presence at a pre-trial hearing on motion to suppress evidence.

We thus find, based on the precedent established in other jurisdictions ruling on the issue, that defendant’s counsel’s waiver of the defendant’s appearance at the motion to suppress the oral conviction was not dissonant with or in violation of § 546.030 or Rule 29.02.

We also find State v. Bizzle, 500 S.W.2d 259 (Mo.App.1973), to be apposite regarding defendant’s argument that he had a constitutional right to be present at the hearing on the motion to suppress. We emphasize that we are not confronted with the situation where the defendant has requested the right to be present at the hearing with that request being refused. We deal only with the issue whether defendant’s counsel has unilaterally and positively waived defendant’s appearance. In State v. Bizzle, supra, defendant was not present at the time of the hearing on his motion for new trial, with one of the grounds of the motion being that the defendant had personal knowledge of alleged jury misconduct during the trial. The important feature of the motion for new trial was that only the defendant was aware of the misconduct and could personally testify in that regard. Although the court found that the defendant had a right to be present at the time of submission of the motion for new trial based on the allegations alleged, it was held that defendant’s counsel could and did waive defendant’s appearance at the post-trial motion for new trial, although such waiver was accomplished without defendant’s authority. In finding no deprivation of defendant’s constitutional right to appear at the hearing by the waiver effected by counsel, it was said, 500 S.W.2d at 262:

“Undeniably, a defendant in a criminal prosecution has a right to appear and defend, both in person and by counsel. Mo.Const., Art. 1, § 18(a), V.A.M.S. A defendant in a felony case also has a statutory right to be personally present during the trial. § 546.030, RSMo.1969, Y.A.M.S.; see also Rule 29.02, V.A.M.R. In this case, however, the defendant is not basing his claimed right to appear and defend in person upon either the statute or the rule, but rather upon the more broadly worded constitutional provision, Mo.Const., Art. 1, § 18(a), supra. The constitution gives the defendant the right to appear and defend in person in a criminal prosecution rather than the narrower right, contained in both the Missouri Statute and the Missouri Supreme Court Rule, to be personally present during the felony trial. The defendant’s statutory right to be personally present at the trial has been construed not to encompass a hearing on the motion for a new trial. State v. Brown, 63 Mo. 439, 445 (1876); State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 692-693[7-9] (1943). The defendant’s constitutional right to appear and defend in person in criminal prosecutions, however, has been held to have no such restricted meaning as ‘trial’ in the technical narrow sense of the statute, but extends to and includes the right to appear and defend in person when a motion for new trial is submitted to the trial court.”

We believe that it logically follows from Bizzle that if there is no violence to an accused’s constitutional right to be present at a post-trial hearing based on matters peculiarly within the defendant’s knowledge where the defendant’s presence is waived by counsel, there is no violence to such right to be present at a pre-hearing motion to suppress.

We are also unimpressed by defendant’s argument that his counsel was coerced into waiving defendant’s presence at the June 24 hearing by the trial court’s suggestion that a capias would be issued to ensure defendant’s presence at a subsequent hearing date. The transcript is clear that the counsel’s waiver of defendant’s presence for the June 24 hearing was voluntary, and there was no effort to obtain defendant’s voluntary appearance at another date. The matter of his waiver of defendant’s appearance and terminating further hearing was a matter of strategy and discretion for defendant’s counsel. Poteat v. United States, supra.

Defendant also suggests that the record is lacking in a specific finding by the trial court that the defendant’s confession was voluntary. This issue, for whatever merit it may have in view of the overwhelming evidence of the voluntariness of the confessions, was not objected to or raised in the motion for new trial. Accordingly, we do not consider it. State v. Thomas, 526 S.W.2d 393 (Mo.App.1975).

Defendant’s second point concerns the prosecutor’s comment on MAI-CR 2.20. In his closing argument the prosecutor made the following comment on MAI-CR 2.20, which is the “reasonable doubt” instruction:

“I think we all have a grasp for what reasonable means. It means a substantial doubt, not just a mere possibility of innocence. The mere fact there was some doubt — ” [objection]

The comment given by the prosecutor was improper, as the Notes on Use under MAI-CR 2.20 permit no further definition as to reasonable doubt other than that set forth in the instruction. But we find no prejudicial error. Defendant’s point is poignantly answered as follows in State v. Belleville, 530 S.W.2d 392, 395 (Mo.App.1975), where an almost identical prosecutorial comment was made.

“Although the prosecutor’s argument was improper, we cannot say here as a matter of law that a jury of reasonably intelligent men and women were confused and misled by the reasonable doubt definition in returning their verdict against this defendant. First, the prosecutor’s definition of reasonable doubt was only one sentence long and not unduly dwelt on. The prosecutor then properly discussed reasonable doubt in relation to the evidence in the case. Secondly, this case furnished strong evidence of defendant’s guilt.”

So we find, as in State v. Belleville, supra, that after consideration of this record, the prosecutor’s comment did not result in the denial of defendant’s substantial rights or a fair trial.

Finally, defendant contends that a motion for mistrial should have been granted because of the following testimony of a police officer regarding the recovery of the shotgun used in the robbery:

“Q. Do you know if any of the weapons were ever recovered?
A. Yes, one weapon was recovered.
Q. Which one?
A. The sawed-off shotgun.
Q. When was it recovered?
A. I don’t know the exact date.
Mr. Braun: I object, your Honor. It’s not the best evidence. I think it’s hearsay and beyond the competence of this officer.
The Court: I’ll reserve my ruling, and you can ask a preparatory question to that.
Q. (By Mr. Westfall) Did you personally find the shotgun?
A. No, I did not.
Mr. Westfall: No further questions.
The Court: The question is withdrawn?
Mr. Westfall: Yes, your Honor.
Mr. Braun: Your Honor, on that objection, I‘d like to make a motion for a mistrial.
The Court: Overruled. Proceed, Mr. Braun.”

The objection related only to the question of hearsay, yet, on appeal the defendant argues that there was no foundation laid for the reference to the shotgun. The reasons of rejecting the defendant’s third point of appeal are twofold: 1) The point raised on appeal and in the motion for new trial must be based upon the same theory of objection as made at trial, and this was not done here. State v. Jones, 515 S.W.2d 504 (Mo.1974); 2) the granting of a mistrial is a drastic remedy which should be used only in extraordinary circumstances when the prejudicial effect is so grievous that it can be removed by no other means. State v. Pickens, 527 S.W.2d 29 (Mo.App.1975). Here, there was no prejudice to the defendant by the reference to the shotgun, since the fact that a shotgun was used in the robbery was mentioned throughout the trial. The motion for mistrial was properly overruled.

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . The phrase “criminal prosecution” as used in the Missouri Constitution is broader in scope than the word “trial” in § 546.030. State v. Neal, 350 Mo. 1002, 169 S.W.2d 686 (1943). See State v. Bizzle, 500 S.W.2d 259 (Mo.App.1973). For a discussion on procedural and administrative aspects not considered as part of the “trial," see State v. Durham, 416 S.W.2d 79 (Mo.1967).

      . A defendant may, of course, waive his constitutional right to be present at any stage of the trial proceedings. State v. Neal, supra.

      . Fed.R.Crim.P. 43.

      . Redman v. State, 26 Md.App. 241, 337 A.2d 441 (1975), can be interpreted as being contrary to the Williams, Colombani, Brighenti and Poteat decisions as to an attorney’s right to waive his client’s presence at a motion to suppress hearing. But the precise issue of whether counsel could waive an accused’s right to be present was not specifically raised, and there is some indication in Redman that such waiver could be made. In Redman, the court relied on the following language of Collins v. State, 12 Md.App. 239, 278 A.2d 311 (1971), aff’d, 265 Md. 70, 288 A.2d 163 (1972): “Clearly, to conduct such a hearing [motion to suppress] in the absence of an accused, unless his presence was effectively waived, would violate his constitutional right of confrontation.” (emphasis added). Implicit in the foregoing language is the fact that a waiver may be made — the decision simply does not state whether such waiver must be with the consent of the defendant or may be made alone by counsel.

      . State v. Glenn, 429 S.W.2d 225 (Mo.banc 1968), requires a finding of voluntariness of the confession.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    TRACTOR-TRAILER SUPPLY COMPANY, a corporation, Plaintiff-Appellant, v. WILBUR WAGGONER EQUIPMENT RENTAL AND EXCAVATING CO., INC., Defendant-Respondent.
    No. 36499.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 27, 1976.
    Motion for Rehearing or Transfer Denied June 15, 1976.
    Application to Transfer Denied Sept. 13, 1976.
    Zimbalist, Schramm & Walker, Clayton, Harvey I. Feldman, St. Louis, for plaintiff-appellant.
    Kenney, Leritz & Reinert, Joseph L. Ler-itz, Frank C. Mansfield, St. Louis, for defendant-respondent.
   NORWIN D. HOUSER, Special Judge.

Tractor-Trailer Supply Company appeals from an adverse judgment rendered on a jury verdict for Wilbur Waggoner Equipment Rental & Excavating Company in Tractor-Trailer’s suit for damages to its building and contents when a wall of an adjacent old brewery building collapsed during demolition and fell upon plaintiff’s main store building.

Appellant’s first two points assign error in the giving and refusal of jury instructions but we need not consider alleged procedural errors because appellant did hot make a submissible case of liability for the jury to consider.

The damage occurred when a headache ball, suspended from a crane, while being used to knock out inside partitions and break up inside floors of the 6-story brewery building, broke off a column in the middle, causing a floor to fall and strike the next lower floor, which put pressure on the outside wall, causing it to fall' outward and down onto appellant’s building. . The crane was owned by and the crane operator was in the general employ of respondent. One Willard Hart, who had a contract to demolish the building, rented the crane from respondent company, which also furnished its own employees as operators of the crane and other rented equipment.

Appellant relies upon the doctrine of re-spondeat superior, and the cases of Parlow v. Dan Hamm Drayage Co., 391 S.W.2d 315 (Mo.1965); Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), adopted in such Missouri cases as Schepp v. Mid City Trucking Co., 291 S.W.2d 633 (Mo.App.1956); Wills v. Belger, 357 Mo. 1177, 212 S.W.2d 736 (1948), and O’Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085 (1934). According to appellant the vital question is not who controlled the crane but rather who controlled or had the right to control the operator of the crane . who was the master? Appellant says the answer to the question “Whose servant was the crane operator at the time the accident occurred?” fixes liability under the principle of respondeat superior; that the crane operator was respondent's employee; that he was under the exclusive control of respondent; that there was no probative evidence to support the verdict.

Contrarily, respondent contends the undisputed facts show without question that appellant has no cause of action against respondent. Respondent seeks to distinguish Parlow on the facts and claims this case is governed by McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67 (1941); Wright v. Habco, Inc., 419 S.W.2d 34 (Mo.1967); Reichert v. Jerry Reece, Inc., 504 S.W.2d 182 (Mo.App.1973), and Ballard v. Leonard Bros. Transport Co., Inc., 506 S.W.2d 346 (Mo.1974).

Willard Hart went to respondent’s heavy equipment rental place of business, looked over their equipment, selected and rented what he wanted. Respondent delivered the machinery to the job, and rented or furnished to Hart its employees Flougher, a crane operator; Fitzpatrick, a caterpillar tractor operator and Smith, a truck crane driver and oiler. Respondent’s employees were on the demolition job one and a half to two months prior to the accident. In all they stayed on the job 8-12 weeks. These men were hired by, paid by and assigned to the job by respondent. On various jobs respondent’s president Waggoner would give respondent’s employees instructions as to whom they were going to work for, location of the job, what they were going to do, type of work, and to whom they were to report. In this case Waggoner told them they were going to a wrecking job for Hart and to report to Hart at the job site, but Waggoner did not give them any instructions on the details of the work they were to do for Hart; this was handled by Hart and Hart’s employees. Respondent’s employees kept their own time books, turned them into respondent weekly, and picked up their paychecks from respondent’s office. Each working day they went directly to the job site. When day’s work was done they went directly home, without checking in at respondent’s office. During occasional visits to the job site Waggoner heard Hart give these employees instructions and observed them carry out Hart’s instructions; heard Hart instruct the highlift operator with respect to loading brick into the dump trucks ■ and instruct crane operators to “knock this wall down” or “knock this piece down.” Hart would “direct them on the details of the work.” Waggoner did not interfere in any way with Hart’s instructions because he had “nothing to say” with respect to what Hart was doing. Waggoner told Smith to take instructions from Hart. Smith reported to Hart; took instructions from Hart. Hart would point out what work he wanted done. Smith also took instructions from Hart’s foreman, who would tell him to knock down a certain wall, or column, or “Drop the ball on the floor and knock this one floor down,” etc. Smith testified, “In other words we more or less just worked as directed by [Hart’s] foreman.” Fitzpatrick confirmed that he took directions from Hart or Hart’s foreman on what to do; what bricks to load onto trucks with the highlift and “which ones not to mess with”; that they would point out what he was to do and what he was not to do, and that Waggoner never gave him any instructions on how he was to work on that job. Flougher testified he always asked Hart what he wanted done and how he wanted it done — “what he thought would be the best way to go about doing it and that’s what I done”; that he also followed instructions given him by Hart’s foreman; that Waggoner never gave him any instructions “on how to operate that job.” Flougher never disagreed with Hart or his foreman in the matter of taking orders from them. He always agreed “and went along with what they wanted to do. I didn’t contradict them because they were there doing the job and they were telling us what to do. We weren’t telling them what to do.”

On the day of the casualty respondent’s employees Smith and Flougher were on duty. Fitzpatrick was not on the job that day (a Saturday), having been told by Hart that he did not want to have to pay him double time. Hart’s original plan was to tighten a 25-foot steel beam against the outside wall to put pressure on the wall and thereby keep it from falling while knocking out the inside walls and floors but Hart abandoned this plan due to the absence of caterpillar operator Fitzpatrick. Smith suggested they not proceed without the caterpillar operator but Hart’s foreman said they would go ahead and do the best they could. Hart’s foreman then gave Flougher, the crane operator, detailed instructions on how the crane and headache ball should be used to demolish the building, viz: knock the inside wall down, beat the floor a little bit to crack and break it up by bouncing the headache ball on the floor, then drop down to the next floor and knock down a certain upright beam or column and let the floor drop down. Flougher followed what he was told to do by Hart’s foreman. He knocked down the inside wall, bounced the ball on the floor a dozen times until the floor was broken up, then dropped the ball down and knocked the column loose. The floor descended, the column fell toward the outside wall, and the falling debris forced the outside wall to collapse. Flougher verified the fact that the operations on the day the wall collapsed were done according to Hart’s foreman’s instructions — “according to what he wanted done.” Flougher “worked the way [Hart’s foreman] wanted it done.” Respondent could remove Flougher, Fitzpatrick and Smith from the job and reassign them to a different job. After the collapse Hart suspended crane operations while the insurance company investigated and Waggoner did remove the men and equipment from the job and reassigned them to other work during this period.

“The essential elements constituting a ‘borrowed servant’ relationship have been stated several times. Essentially, they are: ‘(a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special master pursuant to an express or implied contract so to do; and (c) power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.’ Ellegood v. Brashear Freight Lines, Inc., 236 Mo.App. 971, 162 S.W.2d 628 (1942); Feldmann v. Dot Delivery Service, 425 S.W.2d 491 (Mo.App.1968).” Ballard v. Leonard Brothers Transport Co., Inc., supra, 506 S.W.2d 1. c. 350[2]. Other principles governing this type of case were developed on page 351 of the report of Ballard. All of the essential elements necessary to show that at the time in question Flougher and his associates were special employees of Hart under the borrowed servant doctrine, and that they had been severed from their general employer insofar as this operation was concerned, as developed through the years in the case law of this State, appear in this case. Without a laborious review and comparison it is sufficient to say that the cases cited by appellant are distinguishable on the facts.

The consent of Flougher, et al. to work for Hart may be implied from their acts and conduct in assuming the role of employee of Hart over a period of several weeks, their general acceptance of the employment and their deliberate and informed submission and obedience to orders. Wright v. Habco, Inc. supra. That this consent was given pursuant to an implied contract to work for the special master inheres in the relationship shown. Hart’s power to control the details of the work and whether it should stop or continue was made clearly evident, and stands without contradiction in this transcript.

The undisputed evidence demonstrates that respondent surrendered and relinquished its control over its employees for the time being in the performance of the demolition operations and yielded to Hart and Hart’s foreman full authoritative direction and control over its employees, not only as to the result to be accomplished but also as to the details of the work and the method of performing it. Hart and Hart’s foreman had the sole and exclusive right, during working hours on the job, to order and direct the physical activities and movements of Smith, Fitzgerald and Flougher, and of the machinery they were operating, in doing the demolition work, and to specify the methodology, tactics and strategy to be employed in applying the necessary force to accomplish their purpose. Furthermore, in case of a conflict of judgment between Hart or Hart’s foreman and respondent’s crane operator as to the advisability of a certain proposed course of action the former had the power to overrule the latter’s judgment and enforce their own judgment. Hart and his foreman not only had the right to exercise their own judgment in such matters, but actually put the right into practice. This is not a case of the rental of machinery and operators for a short time to perform a specific job or a few specific jobs; the equipment and operators were rented to do generally the work in which Hart was engaged, for an extended period of time— from eight to twelve weeks. During this entire time Hart personally or through his foreman was the boss, the master, the man in charge. Respondent’s president Wag-goner neither reserved nor exerted any control or right to direct respondent’s employees in any manner, not even partially, in the performance of the work. In fact he took no part whatever in the operation. Wag-goner’s only control was his right to withdraw the men from the premises or discharge them from further employment, but as long as the employees were on the job Waggoner had no say-so with respect to their performance of the work. Doubtless Flougher and the other two men remained in the general employ of respondent throughout the entire time, but on the day the wall collapsed and with respect to the act which precipitated the casualty (knocking out the upright support column) Flougher was in the special employ of Hart, performing services essentially for Hart; services which Hart and his foreman had the full, complete and exclusive right to control and direct, Reichert v. Jerry Reece, Inc., supra, 504 S.W.2d 1. c. 186[8]; services actually controlled by Hart’s foreman. With respect to that act there is no room for the application of the doctrine of re-spondeat superior as between Flougher and respondent; Flougher was Hart’s special employee, and there was a complete severance of Flougher from his general employment, in the performance of that act. The decision to knock out the support column was that of Hart’s foreman alone; not Flougher’s. In fact Flougher expressed the view that the inside demolition should not be done unless the outside wall was beam-supported, but in this he was overruled by Hart’s foreman and ordered to proceed without the support. It cannot fairly be said, under these circumstances, that in knocking out the column, thereby causing the outer wall to collapse, Flougher was “performing the business entrusted to him by his general employer,” so as to honor the inference referred to in Restatement of Agency 2d § 220, Comment c, pp. 486-487, that the actor remains in the employ of the general employer.

As in Wright v. Habco, Inc., and Ballard, supra, we find no factual issue which should have been submitted to a jury.

Accordingly, the judgment is affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: SIMEONE, Presiding Judge.

text:
    NORTH COUNTY SCHOOL DISTRICT R-1, Plaintiff-Respondent, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, a corporation, and Lead Belt Steel Erection Company, a corporation, Defendants-Appellants.
    Nos. 36807 and 36783.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 27, 1976.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied June 15, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Geoffrey L. Pratte, Roberts & Roberts, Farmington, Richard 0. Funsch, St. Louis, for defendants-appellants.
    R. A. Wegmann, Richeson, Roberts, Weg-mann, Gasaway, Stewart & Schneider, Hillsboro, David L. Colson, Colson & Wagner, Farmington, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

These cases involve consolidated appeals by defendants-appellants, Lead Belt Steel Erection Company (Lead Belt) and Fidelity & Deposit Company of Maryland (F & D), from a judgment in favor of the plaintiff-respondent, North County School District R-l, entered upon a jury verdict by the circuit court of St. Francois County. The judgment in favor of North County was for damages in the sum of $8,492.41, allegedly' sustained because of the faulty construction and installation of a metal roof on one of the School District’s buildings. The appellants raise several points on these appeals, some of which we believe to be meritorious, and, hence, for reasons hereinafter stated, we reverse the judgment and remand for further proceedings.

In September, 1968, North County School District desired to build a multi-purpose lunchroom building on its Bonne Terre Campus situated between the North County Junior High School building and the Bonne Terre Elementary School. The board members and the superintendent of schools, Mr. Floyd L. Wilson, “worked up the specifications” for the construction of a metal building without the aid of an architect. The specifications were decided upon after the board members had visited similar buildings. The building was of the “Inland-Ryerson” type and was to be constructed of metal. The building was intended “to feed approximately 350 students” and was approximately 120 feet by 40 feet. The specifications were “approved and authorized by the School Board.” Bids were let and eventually the bid of Lead Belt Steel and Erection Company, a dealer of Inland-Ryerson, was accepted. On October 14, 1968, a contract was entered into between appellant Lead Belt and the School District to construct the building. Mr. Donald E. Maxson was the president of Lead Belt.

The contract signed by the School board and Mr. Maxson provided that “[t]he work to be performed under the terms of this Specification shall consist of furnishing all labor and materials to erect and completely finish a pre-engineered steel panel building for North County School District R-l.” The original contract price was $65,888.65. Because of some change orders requested by the District, there were additional costs amounting to $5,324.70, making a total of $71,213.35. All this amount was paid to Lead Belt except $1,951.42 for which Lead Belt counterclaimed against the School District.

On November 5, 1968, Fidelity & Deposit Company entered into a surety performance bond binding the contractor and surety to the North County School District for the performance of the construction contract.

In due time, construction of the lunchroom began. The construction of the metal roof, the subject of this controversy, was to be installed by a process of laying metal sheets. The roof sheets were to overlap six inches and were sealed with caulk tape. The sheets were to be attached to the “pur-lins” (steel rafters) with tech screws and neoprene washers. Insulation was to be placed on top of the purlins before the roof was fastened down, and a drop ceiling with ceiling tiles was to be placed in metal webbing under the roof. Where the roof sheets overlapped a piece of caulk tape was placed on the bottom sheet and the top sheet laid over that. A screw was then inserted through the high rib of the corrugation to seal it and the screws were inserted through the flat part of the sheet to seal and hold it to the purlins.

After some initial delays caused by circumstances beyond the control of Lead Belt, the roof was constructed and installed by January or February, 1969, but there was much interior work to be done. When the building was first put under roof, Mr. Wilson noticed that it “started leaking.” One of the leaks was in the storage area and was caused by the omission of a downspout done at the request of Mr. Wilson because it would cause ice to form on the sidewalk. When the downspout was put in, this leak was corrected. The second leak, according to Mr. Maxson, was caused by a “piece of flashing that was just lapped the wrong way.” This leak was repaired by Mr. Maxson personally. According to Mr. Wilson, “shortly” after the roof was put on the roof leaked- — “It was, it was coming — I don’t know how it was coming through because like I said it wasn’t up on the top part, but it was dripping through ruining the drop ceiling.”

On April 14, 1969, the School District submitted to Lead Belt a “punch list” which indicated in two portions thereof that the roof was leaking. On May 14,1969, the School District submitted to Lead Belt a second “punch list,” which made no reference to the roof leaking. However, during a long period of time — as early as April 22, 1969, running through October 16, 1970— Mr. Wilson made complaints in the form of letters to Mr. Maxson of Lead Belt and to Inland-Ryerson concerning the leaking roof. On October 14, 1969, a year to the day from the making of the contract, Mr. Wilson wrote to Maxson that “[d]ue to roof still leaking as of October 11th, 1969, Board still withholds final payment until they [sic] are satisfied that the roof will not leak.”

Between January and September, Mr. Maxson made attempts to correct the situation. As to the two leaks which showed up initially, one was repaired after “we put the down spout in.” The second leak was repaired by Mr. Maxson personally. After this, Mr. Maxson made two inspections of the building following two rains and found no leaks. After the complaints by Mr. Wilson, however, and after the June 22 letter, Mr. Maxson went to the building to “check about those leaks.” He found that there were several roof sheets that were “kinked due to improper walking.” He repaired these “kinks” by putting in “stitch screws” and pulling the sheets back together “thereby getting the seal again. The caulk tape that is used in there will seal back if you got some stitching in there to pull it back. It’s similar to sewing thread, you know, you have to stitch it back together. So, I stitched it back together to stop the leaks.” This was done several times. Sometime in August, 1969, when Mr. Maxson went to the building, he “found the children, there was three children playing on the roof just a runnin’ up there just havin’ a ball.” He again put in some “lap screws” and informed Mr. Wilson that the children were playing on the roof. Once when he was at the school building he also found four custodians up on the roof “supposed to be cleaning out the gutters.” He noticed they were not walking on the roof properly and “so I instructed them at that time.” Sometime later, he again saw children on the roof and “thought, oh, well, what’s the use and just drove on. I didn’t even stop and run ’em off the building that time.” Mr. Wilson admitted that at the time the final payment was denied, Mr. Maxson said that “the leaks were due to some kids walking on the roof.”

The metal roof was intended to be walked upon in a special manner. “If you’re going across the building . then you should walk directly over the top of the purlin,” but “if you’re going with the corrugation you should walk in the flat part of the [metal] sheet.” When a sheet is bent down it causes it to kink and when there is weight “on the lap of the sheet,” it breaks the seal.

Mr. Maxson continued to repair the leaks until about September, 1969, when the School District declined to make the final payment. Mr. Maxson stated that he installed the roof according to the plans and specifications and that the installation was done in a workmanlike manner.

At the time of trial in 1974, the building still leaked — it had “gotten worse,” and “it just leaks through so bad now all over the entire building that kids move back and forth; it leaks on the tables. . . . On the lunchroom tables through the block ceiling now.”

Mr. John F. Rodgers, the school custodian who came to work at the District in September, 1969, told of the leaks. “. Back in the ladies toilet room even when it rains right now bad or it don’t have to leak bad, it leaks so bad the ladies can’t get in the bathroom. I have gallon buckets all over the back, all over the whole building where it leaks.”

Mr. Ronald Evans, the assistant superintendent who came to the District in July, 1971, made several attempts with Mr. Rodgers to stop the leaks by using a “caulking compound.” He did not see any children on the roof or any “vandalism” and was not informed how to walk on the roof.

After several complaints to Inland-Ryer-son, the sales supervisor of Inland at that time, Mr. William H. West, inspected the building in October, 1969. “From all appearances it was constructed in all the proper manner. I looked for the alinement [sic] of the panels, the [alignment] of the purlins across to see they were in line. There were at that time two or three leaks in the building . . ..” “[T]he roof was dented. And it appeared to have been where someone had stepped and bent the roof; stepped on the roof.” He corroborated the manner of walking on the roof. If walking does not occur in the flat or on the purlins, “. . . you dent or crimp the sheets, it breaks the seal and it allows for water to come in, either blowing in or capillary attraction.”

In July or August, 1973, a building adjacent to the lunchroom was torn down, as the result of which debris were dropped onto the canopy portion of the roof causing indentations thereon. Although this was on the canopy portion of the roof, it was explained that the roof was all one system and “it still effects [sic] the whole side of the roof and the building. . . .” Mr. West explained that the “structural system of this building is what they call a ‘continuous system’ and when the sheets are put on it becomes one unit.”

The impasse concerning the responsibility for the leaks in the roof finally resulted in this litigation. Although there were many pleadings and counter-pleadings, the principal pleadings upon which this cause was tried were: (1) The “First Claim” petition of North County as a real plaintiff against Lead Belt and F & D, (2) the answer of F & D and cross-claim against Lead Belt, and (3) the answer of Lead Belt to the “First Claim” petition and counterclaim by Lead Belt against North County praying for $1,951.42 still due upon the contract.

The allegations of breach of contract in the “First Claim” petition filed on January 30, 1974, alleged that Lead Belt “has failed and defaulted in the performance of the contract aforesaid [October 14, 1968] in that it constructed the building aforesaid, in a careless, improper and unworkmanlike manner, in that the roof was installed wrong and backward, and in that the roof has caused the building to leak water and has leaked water ever since its construction.”

Lead Belt counterclaimed for the sum allegedly due under the contract, and F & D cross-claimed against Lead Belt praying for any judgment against Lead Belt that might be adjudged against it.

Trial was finally held in November, 1974, during which the above facts were elucidated. During the trial, Mr. Rudolph H. Gentges testified for the plaintiff-North County. He was requested in September, 1972, to inspect the roof and make a recommendation to the Board. He had been in the “roofing and sheet metal business” since 1939. After inspecting the roof, he recommended “taking and putting insulation over the existing metal, filling the channels and then putting a rigid insulation over the top of that and then put a built-up roof over it.”

In 1972, the cost of a built-up roof would have been $6,631.00, but at the time of trial that figure would increase by “around” 55 to 60 percent, or approximately $10,000.00. He believed his recommendation would solve the leakage. He acknowledged that a built-up roof is more expensive than a metal roof. Mr. Maxson and Mr. West also indicated that a built-up roof is more expensive, but that the lunchroom building was not designed to support such a roof without additional structural support.

At the close of the evidence, Lead Belt and F & D each moved for a directed verdict, which was overruled.

The court submitted Instructions Nos. 2 and 3 — the plaintiffs verdict directors. Instruction No. 2 read as follows:

“Your verdict must be for plaintiff North County School District R-l on its claim for damages against defendant Lead Belt Steel Erection Company, if you believe:
First, defendant Lead Belt Steel Erection Company did not construct and install the roof so that the building would not leak, and
Second, because of such failure, defendant Lead Belt Steel Erection Company’s contract obligations were not substantially performed, and
Third, Plaintiff North County School District R-l was thereby damaged.”

The court also submitted a damage instruction — Instruction No. 7. Instruction No. 7 was MAI 4.01 verbatim.

During the argument of plaintiff’s counsel, counsel attempted to explain to the jury the meaning of a performance bond. In doing so, he stated: “[Ijt’s something where a company, a big insurance company — ” Objection was made. The trial court sustained the objection but denied a request to discharge the jury. No request was made for the jury to disregard the comment.

Also during the argument, North County’s counsel requested the jury “. to come up with a verdict of $8492.31 [sic] ..” This figure was reached by reducing the amount of $10,443.83 (damages for the built-up roof) by $1,951.42 sought by Lead Belt on the unpaid balance of the contract under its counterclaim. At another point in closing argument, plaintiff’s counsel again stated that the “verdict I’m asking for is in the amount of $8,492.41, and that gives credit for the amount of money Mr. Maxson is claiming on his counterclaim.”

During its deliberation, the jury requested the document that plaintiff’s counsel had used in closing argument to determine the amount of plaintiff’s damages. Shortly thereafter [fifteen minutes later], the jury returned the following verdict:

“We, the jury, find the issues for the plaintiff and against both defendants and assess plaintiff’s recovery at $8492.41 (stating the amount), and we further find the issues for defendant Fidelity and Deposit Company of Maryland and against defendant Lead Belt Steel Erection Company, Inc. and assess defendant Fidelity and Deposit Company of Maryland’s recovery at $8492,41 (stating the amount).”

The jury, however, did not formally enter a verdict on Lead Belt’s counterclaim, although they were provided with a verdict form. Judgment was entered on the jury verdict for the plaintiff, North County, and this appeal followed.

Appellants Lead Belt and F & D raise five points of alleged error on this appeal. It is contended that the trial court erred (1) in giving Instructions Nos. 2 and 3, plaintiffs verdict directing instructions; (2) in failing to grant the appellants’ motions for directed verdict at the close of all the evidence; (3) in giving Instruction No. 7, plaintiff’s damage instruction [MAI 4.01]; (4) in failing to declare a mistrial after plaintiff’s counsel’s reference to Fidelity & Deposit as a “big insurance company”; and (5) in accepting the verdict of the jury, because such verdict made no reference to Lead Belt’s counterclaim and was thus not responsive to all issues.

Initially, we are confronted with the issue of whether the case is in a posture for disposition on appeal, since the jury did not formally enter a verdict on Lead Belt’s counterclaim for the amount due on the contract — $1,951.42. Appellants contend that the court erred in accepting the verdict, since the verdict made no reference to the counterclaim. We are of the opinion, however, that the matter is ripe for appeal. The law is well settled that an appeal can be taken only from a final judgment, and that to be final and appealable, the judgment must dispose of all parties and all issues in the case. Ordinarily, where there is a counterclaim pleaded and relied upon, the verdict must state the finding of the jury on the counterclaim. However, there are certain exceptions to this general principle. One exception is found in those cases where the finding upon the plaintiff’s cause of action necessarily carries with it a finding upon defendant’s counterclaim, in which event the judgment should be sustained, even though it makes no mention of the counterclaim. Staples v. Dent, 220 S.W.2d 791, 792 (Mo.App.1949); Commercial Nat. Bank of Kansas City, Kan. v. White, 254 S.W.2d 605, 609 (Mo.1953). Another is that, although the verdict makes no mention of the counterclaim, it does not follow that the trial court erred in accepting the verdict. Although the verdict does not mention the counterclaim,

“. . . [w]here, from the whole record, the conclusion is irresistible that the jury did consider and determine the issues presented by the counterclaim, the verdict should be regarded as responsive to the issues, although it does not mention the counterclaim by name. . . ” United Iron Works v. Twin City Ice & Creamery Co., 317 Mo. 125, 295 S.W. 109, 115-116 (1927).

In the posture of this case, we are convinced that from the whole record the conclusion is irresistible that the jury did consider and determine the issue presented by Lead Belt’s counterclaim, and hence the verdict was responsive to the issues although the jury did not return a verdict on the counterclaim. The figure of $1,951.42— Lead Belt’s counterclaim — was used throughout the trial. In closing argument, plaintiff’s counsel twice referred to the amount of damages North County might be entitled to should the verdict be reduced by the amount due Lead Belt. Counsel quoted verbatim from the form of the verdict which was subsequently returned. During deliberation, the jury requested and received the figures which demonstrated how plaintiffs damages were computed. The amount of the verdict for North County— $8,492.41—is exactly equal to the damage figures suggested by plaintiff’s counsel— $10,443.83—reduced by the amount of Lead Belt’s counterclaim—$1,951.42. We thus believe that the verdict effectively disposed of Lead Belt’s counterclaim and that, contrary to appellant’s contention, the trial court did not err in accepting the verdict of the jury. Furthermore, we believe that under these unique circumstances the judgment is an appealable one.

We confront a much more serious issue— i. e., whether the court erred in denying the appellants’ motions for directed verdicts.

As to this point, that the court erred in failing to grant the motions for directed verdicts, appellants contend that the evidence “established as a matter of law that the roof in question had been completed by defendant Lead Belt ... in accordance with the plans and specifications drawn up by North County School District and that the leaks were caused by persons other than Lead Belt . . . ”

Of course, in determining whether the evidence of the plaintiff makes a sub-missible case, the court must consider the evidence in the light most favorable to the plaintiff, its evidence must be taken as true, plaintiff must be given the benefit of all reasonable and favorable inferences arising from all the evidence, and the court is to disregard the defendants’ evidence except insofar as it may aid the case for the plaintiff. Buxton v. Horn, 452 S.W.2d 250, 251 (Mo.App.1970); Rule 72.01; 27 Mo.Digest, Trial

3A Mo.Digest, Appeal & Error,

Taking the evidence in the light most favorable to the plaintiff and disregarding the unfavorable evidence, the whole thrust of North County’s case consisted of: (1) it entered into a construction contract with Lead Belt to construct the metal building according to certain specifications; (2) the roof leaked from the time the building was erected and continued to leak to the time of trial; (3) many complaints were made to various parties including Lead Belt; (4) North County’s witnesses did not see children on the roof; (5) employees were not instructed as to how to walk on the roof; and (6) attempts were made to correct the situation by Mr. Maxson and others, but the situation was not fully corrected from the time the roof was put on until the time of trial.

Viewing all the evidence in the light most favorable to North County, the evidence fails to make a submissible case. There was no evidence presented by North County that the building was not erected according to the plans and specifications; there was no evidence that the roof was installed in a negligent and careless manner; and there was no evidence that the roof was installed in an unworkmanlike manner. Although the pleadings alleged a breach of contract in that the building was constructed in an improper and unwork-manlike manner and failed to conform to the specifications, no such evidence was presented at trial. The syllogism is thus: (1) the building was constructed, (2) the rook leaked, ergo (3) the roof was constructed in an unworkmanlike manner or failed to conform to specifications. This is insufficient to make a submissible case.

The law in this state as well as in other jurisdictions is settled that in actions for breach of a construction contract, the mere showing of some defect in the construction is not sufficient to establish a breach of contract absent some substantial evidence that the terms of the contract were not complied with or that the work was done in an unworkmanlike manner by the contractor.

This principle is particularly applicable in situations where the plans and specifications for construction were provided to the contractor. When the owner or another provides plans and specifications to a contractor, the contractor does not become an insurer that the plans and specifications are sufficient to obtain the result sought—the contractor does not become a guarantor. Sandy Hites Co. v. State Highway Commission, 347 Mo. 954, 149 S.W.2d 828, 833 (1941); Will v. Carondelet Savings & Loan Association, 508 S.W.2d 711, 715 (Mo.App.1974); Eveready Heating & S. H. M., Inc. v. D. H. Overmyer, Inc., 476 S.W.2d 153, 155 (Mo.App.1972).

The hurden was on North County to show that Lead Belt either did not follow the plans and specifications or failed to construct the roof in a workmanlike manner. We believe North County failed to meet this burden. Will v. Carondelet Savings & Loan Association, supra, 508 S.W.2d at 715.

As North County admits in its brief, the issue here is not any defect in the plans and specifications but whether Lead Belt performed its work without negligence and in a workmanlike manner. It is readily apparent that North County failed in its proof in this regard and, hence, failed to make a submissible case. The whole thrust of North County’s evidence was that the roof leaked, from the time it was put on until the time of trial, and that numerous complaints were made. Although North County alleged in its petitions that the roof was installed in a careless, improper and un-workmanlike manner, there was no such proof. Hence, we believe the trial court erred in not sustaining the motions for directed verdict.

However, in the posture of this appeal, we are constrained to remand the cause for a new trial on all issues. The theory of the plaintiff’s case was a breach of contract. In that the plaintiff failed in its proof. The evidence does not establish that in no event could the plaintiff make a submissible case against the appellants. Hence, under well settled rules of appellate practice, the cause should be remanded for further proceedings.

“ ‘It is the settled practice of appellate procedure that a case should not be reversed, for failure of proof, without remanding, unless the record indicates that [all] the available essential evidence has been fully presented and that no recovery could be had in any event.’ ..." Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 629 (Mo.1958), quoting from Kickham v. Carter, 314 S.W.2d 902, 907 (Mo.1958).

See also Rockett v. Pepsi Cola Bottling Company, 460 S.W.2d 737, 739 (Mo.App.1970); Green v. Ralston Purina Company, 376 S.W.2d 119, 128 (Mo.1964).

Since the cause must be reversed and remanded for a new trial, we shall examine the other alleged errors raised by the appellants. Appellants contend that the trial court erred in submitting Instructions Nos. 2 and 3, the plaintiff’s verdict directors. Appellants argue that under these instructions the jury would have to find in favor of the plaintiff if for any reason the roof leaked at any time. North County, however, argues that the instruction follows MAI 26.02 and that the jury could only find in its favor if it found thát Lead Belt “did not construct and install” the roof so that the building would not leak.

Instructions Nos. 2 and 3 required verdicts to be returned against Lead Belt if the jury found (1) that Lead Belt “did not construct and install the roof so that the building would not leak,” (2) “because of such failure, defendant Lead Belt Steel Erection Company’s contract obligations were not substantially performed,” and (3) that North County was thereby damaged.

MAI 26.02 requires that the verdict must be for the plaintiff if the jury believes (1) the defendant did not [here insert the nature of the breach] and (2) because of such failure, defendant’s contract obligations were not substantially performed, and (3) plaintiff was damaged. We believe that Instructions Nos. 2 and 3 are insufficient.

MAI 26.02 is intended for use in situations wherein the existence and terms of a contract are undisputed and the sole question for the jury to decide is whether the defendant has breached that contract, and, if so, the damage resulting. Varn Co. v. Hamiltonian Federal Savings & Loan Ass’n, 488 S.W.2d 649, 651 (Mo.1973). Prior to MAI, an instruction which informed the jury (1) that a contract had been entered into whereby defendant agreed to construct a house, (2) that the defendant failed to erect said building in a substantial and workmanlike manner so that the structure was defective was held to be proper. Pitzer v. Hercher, 318 S.W.2d 397, 398-399 (Mo.App.1958). The theory of the plaintiff’s case and the nature of the alleged breach by Lead Belt was its failure to construct and install the roof, in the words of the respondent, “without negligence and in a workmanlike manner” so that the building would not leak. We believe that the jury should have been instructed that its verdict should be for the plaintiff if it found that Lead Belt did not construct and install the roof in a workmanlike manner (or in accordance with the plans and specifications) and as a result of which the roof leaked.

The breach did not consist in failing to construct and install the roof so that the building would not leak, but in failing to construct and install the roof in a workmanlike manner so that the building would not leak. Yet, these instructions permitted the jury to find for North County if the roof was not constructed and installed so that the building would not leak. The instruction was thus deficient.

Appellants also contend that the trial court erred in giving Instruction No. 7, the damage instruction, because (1) the instruction used the word “occurrence” and the instruction did not limit or describe the word occurrence so as to exclude damages that may have been done by acts of third persons on the roof, and (2) did not limit the damages to the cost of completion of the contract or cost of repair.

Instruction No. 7 was MAI 4.01 verbatim. There is no particular damage instruction in MAI for a breach of a bilateral contract. MAI 4.01 is to be used not only in actions of tort but also in actions in contract. In Stamm v. Reuter, 432 S.W.2d 784, 786 (Mo.App.1968), this court held that it was not error to use MAI 4.01 in a breach of contract case. Our Supreme Court agreed. At least until a more detailed form is provided in MAI, “it is appropriate to use 4.01” in a contract case. Boten v. Brecklein, 452 S.W.2d 86, 93 (Mo.1970). However, in a situation such as this, where there were several occurrences that could have, under the evidence, caused the defect in the roof, we believe that the damage instruction should be modified and limited so the jury may award such damages as it believes the plaintiff sustained as a direct result of the defendant’s breach of the contract.

Appellants contend that Instruction No. 7 was erroneous because it did not limit damages to the cost of completion or the cost of repair but instead gave the jury a roving commission to award damages based on the cost of an “entirely different and more expensive type of roof . . .

The measure of damages for the nonperformance, incomplete or defective performance of a building contract has been often repeated. General rules applying the measure of damages for breach of contract are stated as “ ‘the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed * * *. Compensation is a value of the performance of the contract. . . ” Boten v. Brecklein, supra, 452 S.W.2d at 93, quoting 25 C.J.S. Damages § 74, pp. 843, 846-849 (1966).

“ ‘For a breach by defective construction, whether it is partial or total the injured party can get a judgment for damages measured by the reasonable cost of reconstruction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste (destruction of usable property). . . ’ ” Samuels v. Illinois Fire Insurance Company, 354 S.W.2d 352, 357 (Mo.App.1961), quoting from 5 Corbin on Contracts, § 1089, p. 485 (1964).

Since there is no applicable MAI instruction detailing the proper measure of damages for a breach of a building contract by defective construction, the use of MAI 4.01 has been held to be appropriate at least until a more detailed form is provided. The measure of damage therefore becomes a matter of evidence. Hence, there was no error in giving Instruction No. 7 in this regard.

In the event of a retrial, evidence as to damages should conform to the rules relating to damages by defective construction. We cannot say on this record that the damages testified to by Mr. Gentges conformed to such principles.

Lastly, North County’s reference in closing argument to a “big insurance company” may not again occur. Such comments are improper. “. . .A comparison between the size, power or wealth of the litigants is wholly extraneous and should not be made by counsel. . . Green v. Ralston Purina Company, supra, 376 S.W.2d at 127. In this case, objection was made immediately and the objection was sustained. We find no abuse of discretion under these circumstances in failing to declare a mistrial. Rohlfing v. State Farm Fire and Casualty Company, 349 S.W.2d 472, 478-479 (Mo.App.1961).

We have read the entire transcript, the briefs and authorities relief upon by the parties, and we are convinced that, in accordance with the views expressed in this opinion, the judgment rendered in favor of North County should be reversed and remanded for further proceedings on all issues.

The judgment is reversed and the cause remanded.

GUNN and RENDLEN, JJ., concur.

      .The contract also required the contractor to “[fjurnish all required designs, supervision, labor tools, equipment, materials and supplies and perform all work necessary to construct a 120' X 48' X 14' and 40' X 24' X 14' pre-engineered steel building to be used as a lunchroom for the North County School District R-l.”
      As to the type of roof, the specifications provided that “[r]oofipg shall consist of precision roll formed panels, Type AW 269A, as manufactured by Inland Steel Products Co., designed in accordance with AISI ‘Specifications for the Design of Light Gage Cold Formed Steel Structural Members.’ ”
      The specifications also called for ridge panels to be in one piece, factory curved to match roof slope and the panels “shall be applied using a minimum end lap of 6 inches and fastened together over and to structural members. . Panel side and end laps shall be sealed with an elastic type roll caulking to prevent the entry of moisture. . . ”

      . Throughout the transcript this figure varies. The amount of the change orders is sometimes shown as $5,863.29. That figure is also shown on Lead Belt’s invoice of August 19, 1969. Regardless of these discrepancies, Lead Belt’s counterclaim was for $1,951.42 — the amount due upon the contract.

      . A term used in the industry which is a list of complaints about the construction.

      . According to the terms of the contract, ten percent of the contract price was to be withheld until substantial completion of the building. All but $1951.42 was paid, according to Mr. Maxson, “just in case the roof might start leaking again . . ..”

      . For example, on April 29, 1969, Mr. Wilson, in response to a letter from Inland-Ryerson which wanted to advertise the building, indicated that they were “experiencing difficulties with the building. The roof is leaking . ..” On June 22, 1969, he wrote Mr. Maxson — “ ‘We are experiencing quite a bit of difficulty pertaining to water damage and leaks in the new lunchroom . . On July 15, 1969, he wrote to Mr. Maxson again on behalf of the Board. Another letter to Mr. Maxson was written on September 15, 1969. On the same date a letter was written to Inland-Ryer-son complaining that the “roof on the building is leaking in several places and is getting worse with each rain. This has been reported to Mr. Maxson . . On October 14, 1969, after a visit to the building by Mr. William West of Inland, he wrote that after a hard rain over the weekend, “the building leaked as it has done in the past.” He wrote again on October 30, 1969. He also wrote to F & D on October 30, 1969. In December, 1969, he wrote to Mr. Spannraft, assistant manager of Inland, complaining of the leaks. In April, 1970, he wrote to the subcontractor, Phil Crowley and Associates. On September 14, 1970, he again wrote Mr. Maxson. Finally, on October 16, 1970, he again wrote, denying Mr. Maxson’s request for final payment. The next correspondence was with the attorneys for Lead Belt.

      .Mr. West made a report on October 17, 1969, to B.L. Clair, General Manager of Inland-Ryer-son. In that report he stated: “I visited the above referenced job . . . and could find no apparent reason for the leaks. The job is well constructed and a very attractive building. I did find that the roof is badly bent and Don Maxon [sic] . . . says that was done by the school children playing on the roof.
      Lead Belt Steel Erectors are doing everything possible to correct the leaks; however, when they correct one then another pops out. . I also met with Mr. Floyd Wilson . . .. He assured me that Mr. Maxon [sic] has been very attentive to the problem, but he is concerned about the leaks.
      [But], I think a great deal of the problem stems from Mr. Williams. He says that neither he nor any of his people have been on the roof, but from my conversation with Mr. Wilson, I found this not to be true. .

      . The original petition for damages by North County against Lead Belt and F & D was in the form of a nominal plaintiff at the relation of a subcontractor. This was never dismissed and in fact Lead Belt answered the allegations therein.

      . In the first petition as nominal plaintiff, North County alleged that Lead Belt has failed “to perform and has breached the aforesaid contract in that it has failed to construct the proposed building in accordance with specifications or in a good and workmanlike manner in that said building and the roof and parts thereof does [sic] leak great quantities and sums of water into the building proper . . .(Emphasis added.)

      . There were other pleadings, e. g., a third party claim by Lead Belt against Inland-Ryer-son, but they are not within the issues presented on this appeal.

      . Instruction No. 3 was identical to Instruction No. 2, except that it was directed against Fidelity & Deposit on the performance bond.

      . Instruction No. 7: “If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe it sustained as a direct result of the occurrence mentioned in the evidence.”

      .This figure was arrived at based on the testimony of Mr. Gentges that the cost of installing a built-up roof in September, 1972, would have been $6,631.00, but that the cost would be 55% to 60% higher at the time of trial. Counsel added 57l/i% to Mr. Gentges’ figure and came up with $10,443.83.

      . This form of verdict which was requested to be returned by the jury, was quoted verbatim at the end of his closing argument and was referred to as the “first one” of the Forms of Verdict submitted by the court.

      . The respondent, North County, frankly admits in its brief that:
      “[t]he issue here is not any inherent defect in plans and specifications furnished by the owner; the issue here is whether the contractor performed its work without negligence and in a workmanlike manner, i. e. construct and install the roof so that the building would not leak. In every contract to perform there is an implied agreement that the work will be done in a skillful and workmanlike manner. 17A C.J.S. Contracts § 329, p. 292 . .

      . Cf. Burger v. Wood, 446 S.W.2d 436, 441 (Mo.App.1969)—mere showing of fractured areas in asphalt driveway not sufficient, did not establish affirmative defense of recoupment, specific defects shown; Freeman Contracting Company v. Lefferdink, 419 S.W.2d 266, 275 (Mo.App.1967)—mere fact of fireplace shoved out of line did not constitute proof of bad workmanship; Shimek v. Vogel, 105 N.W.2d 677, 684 (N.D.1960)—leaking roof.

      . Carondelet complained about cracks in the plaster and terrazzo floors, water seepage and color changes in the “marblecrete.” There was no question that the defects Carondelet complained of existed, but Carondelet presented no evidence that these defects occurred as a result of failure to follow the plans and specifications, nor was there any evidence to show that the defects occurred as a result of any negligence on the part of the contractor. See Annot., Construction Contractor’s Liability to Contrac-tee for Defects or Insufficiency of Work Attributable to the Latter’s Plans and Specifications, 6 A.L.R.3d 1394, 1397 (1966).

        .Smith v. Gerhardt, 220 S.W.2d 85 (Mo.App.1949), cited by North County in support of its contention that the trial court properly overruled the motions for directed verdict, is not controlling. In Smith, proof was offered to show failure of the builder to follow the requirements of the contract.

      . In order to properly submit the issue of breach of a construction contract, the plaintiffs verdict director must state that the breach arises from the failure to construct in a careful and workmanlike manner. See Pitzer v. Hercher, supra, 318 S.W.2d at 398-399; Clark v. Campbell, 492 S.W.2d 7 (Mo.App.1973). See the instruction in Clark, supra, at 8 — “Your verdict must be for plaintiff if you believe: First, defendant did not construct the house in a substantial and workmanlike manner, and Second, because of such failure, defendant’s contract obligations were not substantially performed. . .

      . The Notes on Use indicate that the word “occurrence” should be adequate except in cases where there is evidence that two different occurrences produced the injury with defendant being responsible for only one. In such cases, counsel will need to substitute some descriptive term which will properly limit the jury to the occurrence produced by defendant. Homm v. Oakes, 453 S.W.2d 679, 681 (Mo.App.1970); Jurgeson v. Romine, 442 S.W.2d 176, 177 (Mo.App.1969); Vest v. City

        National Bank and Trust Company, 470 S.W.2d 518, 520-521 (Mo.1971). Cf. Fletcher v. Cummings, 532 S.W.2d 890 (Mo.App.1976).

      . See the modification in Boten v. Brecklein, supra, 452 S.W.2d at 92—“ ‘. . . you believe they sustained as a direct result of the defendant’s termination of said contract.’ ”

      . See Dobbs, Remedies, § 12.21, pp. 897-903 (1973). The proper measure of damages is amount it would reasonably take to make the building conform to what it should have been under the requirements of the contract. Pitzer v. Hercher, supra, 318 S.W.2d [3]. “[T]he general rule with respect to building contracts is that the disappointed owner may recover the costs of completing the promised performance or making necessary repairs, unless under the facts it is impossible to do so or the cost of completion or repairs would constitute unreasonable economic waste, in which event reference would be made to the difference in value formula. . . . ” 525 Main Street Corp. v. Eagle Roofing Co., Inc., 34 N.J. 251, 168 A.2d 33, 35 (1961).


author: STEWART, Judge.

text:
    Elsie WOMACK, Plaintiff-Appellant, v. CRESCENT METAL PRODUCTS, INC., et al., Defendants-Respondents.
    No. 36159.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 27, 1976.
    Motion for Rehearing or Transfer Denied July 12, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Richard C. Witzel, Rosecan, Popkin & Chervitz, St. Louis, for plaintiff-appellant.
    Joseph M. Kortenhof, St. Louis, Hiram W. Watkins, Sullivan & Watkins, Clayton, for defendants-respondents.
   STEWART, Judge.

This is an action for damages upon the theory of strict liability which was brought by Elsie K. Womack, appellant, against Crescent Metal Products, Inc., respondent, and Southern Equipment Company. The jury returned a verdict of $25,000 in favor of appellant against Crescent Metal Products, Inc. and in favor of Southern Equipment Company against appellant. We shall refer to appellant as plaintiff and to respondent as Crescent.

Plaintiff, by this appeal, seeks a new trial on the measure of damages only. She contends that the court erred in failing to give a tendered instruction withdrawing from the jury any consideration of Workmen’s Compensation payments made to plaintiff in arriving at their verdict; that the court should have granted a mistrial because of references to Workmen’s Compensation payments; and that the court erred in restricting plaintiff’s final argument. Crescent did not appeal and plaintiff did not appeal from the judgment in favor of Southern Equipment Company.

Plaintiff was employed by the Lutheran Altenheim Society of Missouri as a cook’s helper. Her duties were to help prepare and serve meals. She was in the kitchen of the establishment when a serving cart with a sharp metal edge near the bottom was pushed against her, cutting her right heel and severing the Achilles’ tendon. The cart had been manufactured by Crescent and purchased by the Altenheim from Southern Equipment Company. The jury by its verdict found that the cart was defective because of the sharp metal edge near the bottom of the cart.

The issues in this case focus upon the numerous references to Workmen’s Compensation benefits, past and prospective, which were made throughout the trial of the case.

The first reference to the term Workmen’s Compensation came in during plaintiff’s case as a voluntary statement which was not responsive to any question. Plaintiff had lost considerable time from her employment. Mr. Vedder, the Assistant Administrator of the Altenheim was called to testify with respect to plaintiff’s lost wages. Plaintiff had asked Mr. Vedder if the W-2 forms would show the salary received and be an accurate reflection of the days worked in a given period. Mr. Vedder hesitated and was then asked if plaintiff was paid at a particular rate of pay. The following then occurred:

“Q: All right. And, do you remember her rate of pay in January 1970?
A: Without referring to records I would say it was probably about $1.65 an hour, something like that.
Q: All right.
A: If I may in reference to your statement about the W-2’s, the Altenheim— Lutheran Altenheim policy was that Mrs. Cook since this was an injury that was of certainly no fault,of her own we continued to in effect pay her her salary that she would have earned had she been employed by making up the difference between her salary and what the Workmen’s Compensation provided.”

On cross-examination of this witness counsel for Crescent asked:

“Q: Now, sir, you said that she was paid a certain amount of money even while she was not working to make up the difference between what she got from Workmen’s Compensation and what she would have earned had she been working on the job all the way through?”

Plaintiff’s counsel sought a conference, protesting that the witness had not mentioned Workmen’s Compensation. The court advised that Workmen’s Compensation had been mentioned. After the testimony of the witness was read back plaintiff’s counsel apologized for having misunderstood.

Crescent then asked a question in substantially the same form. The answer of the witness was not responsive and Crescent started to pursue the matter. Plaintiff, at that point, objected to any further references to Workmen’s Compensation. After a side bench conference the objection was overruled. Crescent then made two direct references to Workmen’s Compensation in the subsequent cross-examination of Mr. Vedder. On re-direct of this witness plaintiff’s counsel sought to question Mr. Vedder concerning the source of funds to pay the premium for Workmen’s Compensation. He stated that his purpose was, “. to lay a foundation to show the collateral source rule is being violated and will be further violated by any effort on the part of the defendants to show that this lady was covered by Workmen’s Compensation.” Crescent’s objection to this line of questioning was sustained.

On recross-examination Crescent continued to pursue the matter with the following line of inquiry testimony:

“Q: Mr. Vedder, so there is no confusion about this matter, Mrs. Cook was under Workmen’s Compensation at the time of her injury, was she not? You carried Workmen’s Compensation insurance?
A: Right.
Q: And, you paid a premium so that when people are injured on the job they’ll get their doctor bills paid and they also get a certain amount per week during the time they’re off, isn’t that true?
A: Correct.”

When plaintiff testified her counsel then felt it necessary to elicit the information that medical expenses in the sum of $5317.20 and temporary disability in the sum of $1908 had been paid by the compensation carrier. She also testified that she would be required to repay those sums from any recovery in this case. At Crescent’s request, it was brought out that no restitution would be required if she made no recovery in the case on trial.

On cross-examination counsel for Crescent questioned plaintiff with respect to her pending claim for permanent partial disability. In all there were at least 28 references to “Workmen’s Compensation” before the jury.

At the close of the case plaintiff sought a mistrial for the reason that the subject of Workmen’s Compensation had become so much a part of the case that plaintiff could not obtain a fair trial. After an adverse ruling plaintiff submitted a withdrawal instruction which was refused.

We shall first consider plaintiff’s contention that the court committed reversible error when it refused to give her proffered instruction A which reads as follows:

“ ‘The evidence concerning payments under Workmen’s Compensation is withdrawn from the case and you are not to consider such evidence in arriving at your verdict.’ ”

It is well settled in this state that evidence that payments made to a plaintiff under the Workmen’s Compensation Act, are not ordinarily admissible in an action for that injury against a third party as a defense to the tort action or for the purpose of mitigating the damages recoverable. Pritt v. Terminal R.R. Ass'n of St. Louis, 251 S.W.2d 622 (Mo.1952). The introduction of evidence of payments under the Workmen’s Compensation Act injects an issue foreign to those raised by the pleadings in such a case. State ex rel. Transit Casualty Co. v. Holt, 411 S.W.2d 249 (Mo.App.1967).

The office of an instruction in the nature of plaintiff’s instruction A is “to clarify what the jury is to consider in assessing damages.” MAI 34.02 Committee Comment. The same comment quotes extensively from Roberts v. Emerson Electric Manufacturing Company, 362 S.W.2d 579 (Mo.1962) which holds that where the evidence in a case is such that it may lead to the raising of a false issue it is not sufficient to merely instruct as to the issues properly raised but it is necessary to guard against the consideration of the false issue by a proper instruction.

This court in DeMoulin v. Kissir, 446 S.W.2d 162, 166[5-7] (Mo.App.1969) has held that the failure to give a proper withdrawal instruction where there is evidence which might raise a false issue is reversible error.

The only reference to the fact that the employer or insurer under Workmen’s Compensation has the right of subrogation came from the oral testimony of the plaintiff after Workmen’s Compensation had been injected into the case. The function of the jury, as they were advised, was to determine the facts from the testimony of the witnesses and in so doing they were the judges of the credibility of the witnesses. The questions of law would be given to them by the court. Without an instruction on the law to the contrary they were at liberty to find that repayment did not have to be made by plaintiff and assess her damages accordingly. Workmen’s Compensation became one of the dominant issues in the case and under the circumstances of this case it became necessary to give the tendered instruction withdrawing that issue from the jury’s consideration of the case.

Crescent does not directly seek to justify the failure of the trial court to give the withdrawal instruction. Crescent contends that the evidence once having come into the case without objection the continued admission of such evidence is harmless error. He cites us to Grantham v. Herod, 320 S.W.2d 536 (Mo.1959). In Grantham, plaintiff intentionally offered a repair bill in evidence in his case in chief. It had the notation: “Mail copy to — Elliot Ins. Agency, Buckner Mo.” Over plaintiff’s objection defendant’s cross-examination revealed that Elliot Ins. Agency wrote the insurance on plaintiff’s automobile. The court held 1. c. 538:

“Plaintiff placed the exhibit in evidence without limitation of any kind. He was, of course, subject to legitimate cross-examination concerning the complete exhibit. Cf. Young v. Sinclair Refining Co., Mo.App., 92 S.W.2d 995, 1002[10][11, 12]. The fact, standing alone, however, that the notation to mail the repair bill to a named insurance agency was on the exhibit would not justify the disclosure, over proper objection, of the further information that plaintiff had his automobile insurance with that agent if such was wholly irrelevant and immaterial under any view of the issues.” (emphasis added)

The court found that under the particular circumstances of that case the cross-examination had some relevancy to the issues.

We believe the principle sought to be invoked by Crescent is that now classified as “curative admissibility;” also sometimes referred to as “invited error.” The rule applied in Missouri has been extracted from I Wigmore on Evidence, Third Edition, § 15, p. 304 and provides that when a party has introduced illegal evidence “. . . the opponent may reply with similar evidence whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence, but in no other ease.” See Biener v. St. Louis Public Service Co., 160 S.W.2d 780 (Mo.App.1942) and Ferguson v. Missouri Pacific R. Co., 442 S.W.2d 549 (Mo.App.1969).

In the case at hand the first reference to Workmen’s Compensation was injected as an unresponsive voluntary statement by an independent witness. This evidence did not result in unfair prejudice to Crescent. As said in Ferguson v. Missouri Pacific R. Co., supra, at 555, “. . . countervailing illegal evidence ‘of the same caliber’ is not needed as no harm resulted and none need be ‘neutralized’.”

The following guideline from Wigmore seems apropos to the instant case:

“Rules of curative admissibility are not inexorable commands binding upon the courts. Accordingly, if through inadvertence of counsel it becomes manifest that a miscarriage of justice would ensue from invoking the rule, the Court should have no hesitancy in granting a new trial.” I Wigmore on Evidence, 1975 Supp., § 15 p. 309 addition to text.

Plaintiff did protest Crescent’s cross-examination of Mr. Vedder but apologized for not having heard the first reference to Workmen’s Compensation. However, when Crescent repeated the question after failing to obtain a responsive answer plaintiff interposed an objection which was overruled. This ruling would appear to be contrary to the above authority. This ruling, however, was not preserved and is therefore not specifically before us for a ruling.

The primary question at issue here is whether the jury was fully instructed. The evidence of Workmen’s Compensation benefits was wholly irrelevant to the determination of liability or of damages. Whether the evidence came in by reason of inadvertence on the part of plaintiff or whether it was erroneously before the jury, it injected a false issue in the case. The court should have given the withdrawal instruction. The failure to do so under the circumstances of this case constituted reversible error. DeMoulin v. Kissir, supra.

Crescent finally contends that the issues raised by plaintiff are not before the court because plaintiff did not raise the issue of inadequacy of the damages, citing as authority Anderson v. Bell, 303 S.W.2d 93, 100 (Mo.1957). This contention is adequately answered by State ex rel. Highway Commission v. Gravois Farmers Club, 483 S.W.2d 786, 790 (Mo.App.1972) where it is said, “. . . we refuse to extend the holding in Anderson, supra, to require allegations of inadequacy as a prerequisite to considering allegation of prejudicial error.”

In the final analysis it can not be said that inadequacy of the damages was not raised. When the only relief sought is a new trial on the issue of damages only it can hardly be said that the adequacy of damages has not been attacked.

In view of the fact that this case must be retried we do not feel it necessary to discuss the other issues raised by plaintiff as they are not likely to arise in the retrial.

Crescent did not appeal. There is no suggestion that the issue of liability was not fully developed and fairly tried. The matter upon which this case must be reversed affects only the amount of damages. Only that issue need be retried. Hufft v. Kuhn, 277 S.W.2d 552 (Mo.1955); DeMoulin v. Kissir, supra.

The judgment is reversed and the cause is remanded for a new trial on the issue of damages only.

CLEMENS, P. J., and KELLY, J„ concur.

      . Mrs. Womack will sometimes be referred to as Mrs. Cook, her former married name.

      .
      “Q. ... In other words, your claim is still open for your final rating on disability and no matter what this jury does not do you still have that claim pending in the Workmen’s Compensation Commission at this time, isn’t that correct?
      A. Yes, sir.”
      “Q. . . . Well, you have not received a lump sum of money as you’re entitled to under the law other than what you received so far? You received medical expenses and temporary weekly benefits, but you have not received a lump sum award yet, have you?
      A. No, sir.”

      . Instruction No. 1. MAI 2.01.