*1 G84 requirements satisfy Law as Evidence
Uniform Business Records identifying competency the
than However, to proof. to furnish
witness
the extent that a exists as conflict qualification of
intent of the Law and the it, over- Lockhart case is
records under longer be followed.
ruled should no Appellant, MILLER,
Esther COMPANY,a Cor-
F. W. WOOLWORTH poration, Bates, and Richard M. Respondents.
No. 46031.
Supreme Missouri, Court of
En Banc.
Nov. 1959. *2 final appealed Plaintiff from
ruled. has judgment favor defendants. in entered petition purported While the upon the claim based to state a for relief failing alleged negligence in of defendants plaintiff furnish with a safe place petition in which further “ * ** that, defendants, whol- charged duty ly neglecting disregarding their behalf, un- in that did furnish her with an place over work in that counter high work so from the floor so wide compelled unreasonably stretch and extend * * performing in herself duties resulting injuries in com- “* * * .of; plained and that defend- ants her that said assured en- tirely safe and she could there safety personal with risk and without harm, and ordered con- her to * * tinue her said Godfrey, Weiss, Busse, & Thomas, Cullen Plaintiff’s tended evidence to show that Louis, appellant. for Godfrey, E. St. James saleslady forty-six old, years employee became an at defendants’ store MacGreevy, M. & Hocker, Goodwin John on Olive Street St. 1949. She Louis respondents. Louis, for Goodwin, St. assigned “salesgirl duties aof be- the counter” at the greeting hind Judge. LEEDY, counter the store. was her wait keep on customers the counter adopt por- modification We some time, filled. At the greeting card case, opinion divisional tions of the top, counter was flat on like a table, similarly recites that glass partitions separating the various prepared portons anof earlier one display. classes of cards There were Quo- in, rejected by, (I). but the division openings or at both aisles ends of the omitted. tation marks are permitting counter salesgirl to move in per- damages for The action one out to and -from the aisle'back of the by plaintiff, an em- injuries sonal sustained counter. Woolworth defendant F. W. ployee of negli- spring a rack with alleged tiers Company, account In the display company its sections for of cards glass defendant gence of said Bates, top on the counter. Richard M. manager, defendant installed constructed to slant or The rack was failing to slope up from the front of the counter place in which to Verdict work. back, $12,500, enabling customers, who toward judgment front, along separate passed the aisle after- “see but court sustained height judg- better.” trial motions of the defendants for cards counter level prior at the accordance with their mo- varied front to ment high (above inches verdict. The four three tions for directed alterna- feet back. The counter floor) at the was some tive motions for a new trial were' over- top of upper underside arm on the approximately length and fifteen feet hand palm of the opening .rack with in width. There one three feet upwardly. used turned sometimes top She through the card rack on hun- “anyhow two arm. There were occupied by a left opening was counter. The *3 course dred” in the sales consummated its back set register, which cash was counter, day, thirty worth eighty or the dollars portion front of the high or time consumed five and ten cent The be cards. and it faced back that sales could so awas consummating probably a sale The registered counter. from behind the she (Plaintiff few testified higher seconds. top register was portion the cash top of the guessed rested her arm on she and the card top the than the a making seconds in opening the counter for two effectively occupied register the sale.) about Plaintiff was through the rack. height five inches in feet feet two —five the after counter Four or months five three, inches feet three and one-half or five pain altered, plaintiff felt and strain was when the Plaintiff testified that shoes. reaching when She over the counter. was altered in defendant- installation supervisor the formed her immediate would
manager advised
that she
her
difficulty.
the
supervisor,
was
(The
who
you
platform
raise
a
in the back
“built
height
plaintiff,
frequently re-
same
as
had
up also.”
and
lieved
the lunch hour
during
the
standing behind
at
had sold
the counter. She “could
when
cards
making sales
In
usually
customer
counter.”)
“Well,
reaching
feel
over
strain
counter —
times,
supervisor
turn,
where
(plaintiff)
The
two or
ask me
three
would
other,
were, this,
defendant-manager
that or
informed
sympathy cards
where
show them
“difficulty
out and
back
point
at
coun-
having
would
and I
pick several
they would
suggested
platform
ter” and
that a
they
and then
were
little
them to
and hand
up
from them
built “back there that would
up
choose
raise us
they were and
much
we
how
ask me
wouldn’t have
much trouble
me
[so]
money
I
reach for
counter,”
reaching
over
but
man-
give me
a
put it in
money,
card,
for the
ager
reach
said “he didn’t think
needed it.”
change.”
back, and the
manager
hand
The
bag and
also told
“I don’t
expressly directed
you
platform.”
not
think
will
a
Plaintiff
need
waiting
counter
behind
stand
employ
defendants’
continued in
Plaintiff
occasionally
customers;
she could and
27, 1953,
prior
but
to that time
March
until
counter;
of the
at the ends
sales
did makes
begun getting
sorer
arm
right
her
busy I
run
couldn’t
was so
“T
but when
numb,
sorer,
and then the
fingers
her
numb-
* * * ”;
back
stay in
around,
had to
I
her
She
neck
shoulder.
affected
ness
was set in the
moreover,
register
the cash
physicians
treated
and was
consulted
and, normally, the sales-
the counter
rear of
suffering from “trau-
testified she was
who
Plaintiff’s
the counter.
girl
behind
stood
neuropathy,
a
neuritis,”
degenera-
matic
proper
superior testified that “the
immediate
by trauma,
nerves caused
of the
tion
behind the counter
way
to stand
do” was
doing
thing
the same
constant
over
“a
wait
customers
and to
the time
all of
time,”
period
resulting
inflammation
counter,
register
and “the
from behind
degeneration
men-
of the nerves
said that
She
there.”
back
They were of
tioned.
behind that counter.”
“had to stand
the continual
due to
trauma
condition was
counter,
experienced
the strain of the
making sale from behind the
awkward
In
the arm and
shoulder in
raised her shoulder
ex- movement
salesgirl
halfway”
occupation
a saleslady reaching
arm
right
“about
over the
tended
counter,
half
in defendants’ store.
foot and
over
counter
condi-
across
usually
getting
Plaintiff
rested the
been
tion
arm has
counter.
worse
store,
and was
known that said condition existed
leaving
since
than better
rather
not
to cause
likely
safe and
permanent.
appears to be
condition
sustain
reason of
pain.
arm
causes
Use
repeated stretching
her arm
shoul-
to show
tending
no evidence
There
der, and that
said
inform-
itself
inwas
that the counter
altered
existed;
ed and advised that said situation
plain-
inherently dangerous, and it
contended
theory
it is
now
tiff's
“(5) That the
in the
said defendants failed
any specific
defect
shown
exercise
prudence to
inor
of the installation
construction
remedy
plain-
said condition and
furnish
thereof
materials used
construction
*4
place
tiff a
work,
safe
and
suppose
constitute
as one would
would
in so
negli-
failing said defendants were
injury.
a hazard of
There was
show-
gent ;
counter,
and
display
ing that the
and
apart
setting,
from
considered
their
proximate re-
and
“(6) That as
direct
materially
design
different in
or construc-
negligence plaintiff
caused
of such
sult
racks
tion
from
counters with
the
injury,
that at all times
to sustain
generally
installed
stores.
herein mentioned
exercised ordi-
nary
safety,
you
if
for her own
then
in sub-
principal instruction
Plaintiff’s
true, you
find
are instruct-
finding as
such facts
case submitted
mitting
“ * * *
ed that
recover from
the
is entitled to
you
if
find from
follows:
your
defendants
verdict should be
evidence:
plaintiff.”
of
favor
employee
plaintiff became an
“(1) That
Appellant assigns
Company
error on the action of
defendant,
Woolworth
of
F. W.
sustaining
court in
after-trial mo-
the
April,
the
day
1948 and worked
18th
of
of the
tions
entering
defendants
continuously
a sales-
for
defendant as
said
Appellant
judgment
defendants.
mentioned
lady
store
said defendant’s
that,
aon
sists
favorable view
all the
until the
the evidence
said date
evidence and
1953;
the reasonable favorable in-
day
26th
March
therefrom,
arising
ferences
M.
during said
Richard
time
That
“(2)
made a
jury.
submissible
She
manager
said store
Bates
says
also
that the
owed
defendants
her a
Wool-
authority from
F. W.
the said
nondelegable duty to furnish her a reason-
direct,
instruct
su-
Company to
worth
ably
place
work;
in which to
that she
working
conditions
pervise
contributory
guilty
therein,
particular
employees
of the
law;
a matter of
her claim
plaintiff; and
of said
by
Compensation
covered
Workmen’s
Law,
seq.
Section 287.010 et
RSMo
put
un-
That
“(3)
occupational
V.A.M.S.,
disease sec-
re-
circumstances
she
der such
thereof;
assumption
and that
of risk
tions
performance
duties
of the
quired, in the
case,
defense
the instant
since an
is no
employment,
her said
imposed
employee never assumes the risk of the
repeatedly
over and across
to reach
employer’s negligence. Appellant
nu-
cites
counter,
top
a three-foot-wide
sloping
duty
employ-
where the
cases
merous
above the
was 51
inches
rear
employee with a
reason-
furnish
toer
right
doing
in so
to stretch
floor, and
place to work
ably
was considered causing
shoulder,
thereby
thus and
arm and
particularly
relies
She
McDaniel
ruled.
thereto; and
629;
Kerr,
258 S.W.2d
Wil-
v.
knew,
Light
Union
v.
Electric
&
or in liamson
Power
defendants
That said
“(4)
902;
care,
have
219 S.W.
Row
should
v.
the exercise
Cape
Mo.App.,
precautions
Foundry Co.,
part.
Girardeau
able
on his
true
other
master is not an
S.W.2d
cases.
insurer of the
servant’s
safety, and, within the limits of reasonable
the evi
held that
The divisional
care,
liberty
is at
to conduct his business in
in
clearly
dence
showed
way,
his own
nor
he bound to furnish the
juries
any
failure
did not result from
appliances
best or safest
or instrumentali-
reasonably safe
to furnish a
ties,
adopt
the best
safest
methods
work,
last
place
cases
rendering
thus
doing
duty
but it
in
and the safe
work doctrine
cited
exercise
care to see that
those
judgment,
applicable
here in
facts
furnished or
are
safe.
complete ac
holding
are
* * *
which the law casts
proceed
opinion then
cord. The divisional
upon the
pre-
master is to
all
use
reasonable
situation
premise factual
ed on the
cautions which ordinary prudence in with
developed
evidence which came
dictate, under the circumstances,
to avoid
objection brought
within
out
the trial
subjecting
injury.”
the servant
to risk of
purview
509.500, V.A.
RSMo
§
Wilborn Desloge
Lead
Consolidated
M.S.,
(Trial of
not raised
issues
Mo.App.,
268 S.W.
657.
pleadings to
pleadings
to amend
*5
—failure
result
to evidence not to affect
conform
duty
As to the
to select safe
issues),
the law
trial
examined
of those
and
work,
methods of
see
v. Terminal
Williams
situation,
with
to such
reference
factual
Louis,
594,
St.
R. Ass’n of
339 Mo.
98 S.W.
plaintiff had
submissible
and held
made a
655-656;
651,
Ross
2d
v. W. A.
Kelso
upon a
defendants’
case based
violation of
Co,
202,
527,
337
85 S.W.2d
Const.
duty
ordinary care
common-law
to exercise
535;
v.
Bell Tele
Schaum
Southwestern
adopted and
with reference to the method
phone Co, 336 Mo.
78 S.W.2d
employed
the
transaction of defendants’
445;
Co,
v. Bambrick Bros. Const.
Sustar
pause
to determine
business. We do
495, 513,
730;
Mo.App.
162
56
179
S.W.
this,
respondents’
whether
as
contended
260, p.
Master and Servant
1013.
§
C.J.S.
banc,
supplemental brief en
amounts to
Further,
liability
“the test of a master’s
is
appellant’s
permitting
cause to be deter
or not
a better or
not whether
there is
less
theory
mined here on a
from that
different
way,
dangerous
but whether or
the
on which it was tried in the circuit court.
reasonably safe,
employed
method
present purposes,
propriety
For
the
of ad
negligent
not the
whether or
master
judicating
negligent
the case on the
work
per
ordering
directing
to
theory
assumed,
con
will be
so we
method
in which
form the work
the manner
he
opinion’s
tinue
discus
with
divisional
perform
was ordered
directed to
it.”
principles applicable thereto:
sion of the
Welty
Mo.App.
221
v. S. H. Kress &
501, 503;
Independ
Luff
S.W.
v.
295
duty
the master not
“It is
596;
Foundry Co., Mo.App., 204
ence
S.W.
ordinary care to furnish
only
exercise
to
Co., Mo.App.,
272
Orth
General Const.
reasonably
to
servant
duty in
1078. The master’s
S.W.
appliances with which
reasonably safe
respects
delegated
mentioned cannot be
work,
likewise exer
but
perform
liability
employer
relieve
as to
respect
to the
with
ordinary care
cise
with
thereto.
Eng
reference
performing
employed-in
methods
means
Roberts,
&
lish v.
Rand Shoe
Johnson
danger to
reference to the
Mo.App.
;
747
S.W.
duty
anticipated.
is
266, p.
Master and Servant
103L
§
C.J.S.
is not
the servant
see
master
opinion.
much for
divisional
So
which, as an
risks
subjected
hazards
very simplest
person,
must know
Plaintiff’s
was of
he
prudent
ordinarily
imaginable
aof
sales
character
clerk
reason-
avoided-by the exercise of
maybe
—that
stated, work, “reasonably
As
safe accord-
retail.
safe” means
cards at
selling greeting
ordinary
display-
ing
usages
and habits and
showing
no
there was
safety is
materially
risks of the
different
business. Absolute
rack or counter
unattainable,
employers
are not
counters
design
construction
stores,
consequences
They
surers.
are liable for
generally
racks
installed
by
danger,
negligence,
not of
but of
illustrated
graphically
and this is
methods,
ques- unbending
negligence in
and rack
test of
photograph of the counter
machinery,
appliances
is the
portion
the store
tion as located
usage
man
held
business. No
plaintiff worked.
higher
the law a
skill than
degree
required to
is not
trade,
That a master
fair
average
profession
of his
conducting
adopt any particular method of
standard of
care is
conduct
due
adopt usual
business,
required
but is
neg-
prudent
the average
man. The test of
employed
customary
and,
methods
ordi
ligence
same,
how-
employers is the
persons in like work under
narily prudent
strongly they may
ever
convinced
circumstances,
by such
illustrated
way,
similar
dangerous
there
a better or less
Bell Tele
Schaum v. Southwestern
permitted
say
cases as
usual
can be
that the
there
Co., supra,
phone
and the cases cited
commonly
way
in,
regard
controlling
under the
negligent
those in
is a
the same business
”
way
imposed.’
case.
liability
facts
for which
shall be
Schaum,
(336
loc.
In
the court said
Schaum,
here, liability
turned
In
442): “Like
235 and 78
loc.
cit.
S.W.2d
cit.
question
of whether defendant
wise,
provide
safe methods of
method
failed to
*6
employees
in
en
doing
work which
are
having also elimi-
of
there
gaged
require
or
does not
the best methods
of
charge
nated from consideration the
devised,
protective
might be
devices which
reasonably
place of
failure to
safe
furnish a
only reasonably
‘The test
but
safe methods.
work and that unsafe instrumentalities
reasonably
is
is what
found
be
safe
telephone com-
been furnished. There the
commonly
ordinarily
usage and is
used
eye in-
pany’s employee
an
had sustained
places, occupations, and
in
similar
other
jury
brick
of
removing
while
sides
Electric
businesses.’ Pevesdorf v. Union
question
manhole,
crucial
Co.,
1155,
Light &
S.W.
Power
333 Mo.
64
re-
protection
goggles was
whether
of
939,
cited;
948,
Knott
2d
and cases
v. Mis
in
quired
safe the work
to make
order
Works,
&
souri Boiler
Sheet Iron
299 Mo.
engaged. The court
which
cited;
613,
749,
253
cases
Wil
S.W.
care of
“Did the standard of
ordi-
said:
Joseph
liams v. St.
Artesian
& Cold
Ice
prudent
narily
persons
reasonable and
385;
Co.,
Storage
Mo.Sup., 214 S.W.
duty of
employer the affirmative
Spindler
Co.,
Express
Mo.Sup.,
v. American
for
protective device
furnishing such a
690;
232 S.W.
Coin v.
Talge
H.
John
prove
respondent
work? How
such
could
Lounge
488,
5,
222
1,
121 S.W.
except by showing
it did
that
that
the or-
L.R.A.,N.S., 1179,
25
888;
17 Ann.Cas.
see
employers
dinary usage of other
towas
also,
Adm’r,
O’Brien & Co. v. Shelton’s
provide
in that kind
goggles
of woik?
537,
Ky.
352;
246
55 S.W.2d
see discussion
evidence in this record on that
There is no
of authorities in note
691 Moreover, theory, method of pointed work or some other result of such work. division, apparent if is opinion in hereinafter mentioned. dissenting out in the employees whose record shows a misadventure had two defendants unusually part cards, acting one counsel to sell duties were unusually part upon theory. legal No other a mistaken and the short in stature question required strategy in tall, be of intentional legal the defendants would Coleman, counters, designed See 358 Mo. volved. v. one Blaser have two 157, 423; 420, other 213 v. and the McClanahan S.W.2d employee of short stature 500, The St. be 363 Mo. happened to tall. Louis Public Service one agree, 704; City 251 McGaugh which we S.W.2d of Ful opinion, with v. dissenting 552; ton, requirement would concludes, 356 205 S.W.2d Mo. “Such a impose Caruthersville, City an undue Cantrell v. unreasonable 480; v. Mav industry.” S.W.2d O’Neal burden on Candy Co., rakos 263 S.W.2d 364 Mo. affirmed. judgment 430, 432 in Smith discussed cases St. Louis Public Service from the dissent S.W.2d 692. We WESTHUES, EAGER HYDE, principal conclusions in the reached STORCKMAN, JJ., concur.
to the effect fails to that the record show in the reversal event separate opin- DALTON, J., dissents remand, reasonably expect could ion filed. negligent make out a submissible case of adopt failure safe method HOLLINGSWORTH, J.,C. dissents for the transaction of defendants’ business. dissenting opinion separate we statement agree concurs While with the DALTON, majority opinion effect that “there J. was no showing display that the card counter, apart considered from their DALTON, (dissenting). Judge setting, materially in design different necessary find that we regret It with or construction from the counters with majority opinion in to dissent stores”, generally racks installed in agree judgment this case. We disagree assumption because must reversed the evidence in this case or em clearly plaintiff’s injuries did shows that ployed customary the usual and method any defend- failure not result from employed by ordinarily prudent person an plaintiff a ants furnish to in like work under similar circumstances. work. also which to We No appears such evidence in the record. *8 respondents’ that contention agree with only The evidence we find on that issue prejudicially is No. I Instruction directly contrary. Plaintiff’s wit However, we think the facts erroneous. Audrey testified, ness I. Staat as follows: to make a out sufficient in evidence “Q. you any Have ever seen of these upon a of based violation case submissible similar counters to this in Famous-Barr? duty to exercise common-law defendants’ They A. have in them the middle of to reference the method with You can walk around floor. all sides of employed for the transaction adopted and them, you get can’t behind them and wait business, all as hereinafter of defendants’ If on them.” similar counters are We think cause fully out. set more against in the center of floor or located that, in the event remanded so be should place of the of business no walls advised, may properly she plaintiff is so adopted by the that method as defendants upon negli- case her try and submit plead, employed. be adopt reasonably or could a to failure gent plaintiff’s petition, persons The of similar allegations engaged in like or work. by However, submission that evidence where the evidence offered shows (see paragraphs adopted I danger- Instruction No. method and used was that clearly causing ous Instruction) of the demonstrate and unsafe was in fact plaintiff pleaded, damage submitted un- tried and it was theory negligence part necessary plaintiff in on the for to show that work, but adopted adopting in an unsafe method method different from ordi- was erroneously nary submitted designated “injury it and usage, she that such would failing in reasonably anticipated it and it with a confused as result a adopted her with such work.” If the method her evidence in which while used defendants wholly any negligence in usage, employer failed show have could made respect. latter thereof defense of the action. jury presented From the a evidence em- The that defendants evidence shows propriety could find that the method greeting ployed plaintiff saleslady at its established and maintained defendants con- counter was and that the counter requiring, the sale of its merchandise majority opinion. in the structed as stated did, as it stand behind two inches five feet Plaintiff was andi counter and card rack and reach over placed behind counter height and she was making waiting customers high. four feet three inches a dangerous and unsafe de- sales facts the these knowledge full With method; exposed plaintiff an of work which adopted a method fendants ap- unreasonable risk of harm. further trade behind required wait her to pears sales, from the evidence that there were re- that, making this counter so perfectly handling sales safe methods of money giving change, she ceiving from in front The of the rack over low top counter. over the reach An counter. inference can drawn required continue her to manager well knew that defendant method with said said work in accordance adopted impose an method unreason- that the knew method after the defendants able required reaching risk of harm to adopted they had work which over high evi- such a rack. There extend herself unduly stretch and a platform dence that he had said that knew her duties and performing built raise pain to would be back of counter to causing strain the method was plaintiff up compensate in- discharge of her duties. height in the of the rack. that the method crease knew the defendants After causing adopted them of work Liability imposed upon cannot be the de- didn’t need they her that she assured merely they to em- because chose fendants she in effect that could platform, and ploy carrying one method of oh their busi- adopted with there and use method another, ness rather than unless the method personal harm. safety risk of without selected was hot In this safe. majority law, say, in the case we cannot a matter cited authorities law sufficiently put that under the show into effect method required employer discharge an state duties of this *9 work reasonably method of a safe method. adopt a And it is not employees. plaintiff’s It is recovery of protection ap- his essential to the that it opinion, pear in that, the there as stated that defendants could reasonably true have adopted by plaintiff anticipated the method de- that injured that would be plaintiff’s precise to em- with reference manner in which fendants she was injured. the It ployment different from is sufficient if it appears, from employees all and respect evidence, to the facts usage other circumstances in of
@93 perform Brown to such work. And see defendant, of the exercise that in 225, v. Scullin Steel 260 S.W. foreseen 364 Mo. have prudence, ought to care and 518, to 2d case was where the Hamilton likely to result injury was that some thus the distinguished its facts from method by plaintiff reason the evi Brown case. In the Hamilton case adopted the work. On for doing “Therefore, court if the defendants think reasonable said: presented that we dence in case either actual determining knowledge, whether this may in minds differ constructive, physical plaintiff’s or con negligence of guilty of the defendants were physical her capacity dition to perform and of his do plaintiff to requiring labor, knew Timmerman should have known that manner shown. or 174, 181, plaintiff Mo.App. safely el, 157 S.W. could not v. Frank 172 do, plaintiff they do him that the work ordered 1051. The indicates record of he seriously a submissible case and that in might likely well make out jured it, they attempted guilty if a remand. he were negligence in event of such of him ordering to do Further, facts clear that the it is not work, regardless knowledge of their developed, fully nor this case have been plaintiff what knew not know. The or did plaintiff appearing (under that the facts facts, petition alleges these we it hold some on could recover record) 19 a cause of action.” S.W.2d states theory negligence. cannot other We 683, 684. say cause in the event the remanded, properly might
reversed a favorable On view of evidence plead upon negligence presented by plaintiff cause submit in the trial per directing plaintiff ordering pleaded properly case we think that in a form work the defendants knew jury and submitted a could reason- case by the known ably exercise of should have manager’s find direction to plaintiff safely perform. plaintiff could not shown in was tanta- evidence fully is clear that the defendants were mount an order to continue her work height plaintiff with adopted by advised as to the (using defendant) the method height relation at the to the of the counter irrespective effect its and on time she was to work pain directed behind employment loss of her the event according carry counter the work proceed. she to so Further, refused Further, prescribed. method present think that the facts would physical physical stature and condition question as to whether defendants were they were known knew negligent ordering to work at physical resulting effect using adopted method or from method of work they knew when have should known that by In the Ham dered defendants. case of procedure would cause Indiana, ilton v. Co. Standard Oil plaintiff. damage to 19 S.W .2d was held employee’s petition remanding an In case new stated a cause of trial with amend, against employer Doty action leave to this court in and foreman v. Amer- injuries (latent ican National Ins. tuberculosis to become 862, 870, active) employee when A.L.R. sustained S.W.2d said: driving heavy authority hammer, “We this on rivets do the rule employer. appears directed In that where it record that petition rights alleged growing has the defendants out of the had full but has knowledge physical transaction misconceived his rem- jurisdiction condition capacity physical edy appellate to do court an has injuries petition and that permit cause remand the occasioned *10 negligence defendants’ directing be amended cause retried.” re- judgment and reverse We would to the trial with directions
mand'the cause aside and judgment
court set defendants-respondents a new
grant giving ground error
trial on the so I, plaintiff, if that the Instruction pleadings
advised, may amend her cause try submit plead,
properly appropriate ground more some failing to negligence than to work.
provide a
HOLLINGSWORTH, J., concurs C. DALTON,
dissenting J.
Strubinger, Wion, Tudor, Tombrink & Louis, Jay White, St. White, White & Rol- la, appellant. WHITE, Sr., Appellant, B. Clifford Dewey Routh, Rolla, A. Gerald Bran- F. Franklin, Ind., igin, respondent. Respondent. Boyd LEMLEY, 47238. No. WESTHUES, Judge. Missouri,
Supreme Court Phelps Plaintiff filed this suit No. Division 1. County Circuit Court to recover from Nov. 1959. $65,000 defendant the sum of reason-
able value of services rendered the de- fendant at his verbal request. instance and A before trial the court without judgment and a was entered defend- Plaintiff, favor. after being ant’s unsuc- trial, in obtaining appealed a new cessful this court. theory, defendant’s trial as it
here, may not recover on a quantum meruit basis because relationship the defendant’s was that of a partnership joint adventure. Defendant says agreement concerning compen- his sation to receive expenses profits; plain- 50% paid expense tiff has been account profits. that there were no may that he says Plaintiff waive the con- quantum meruit. tract and sue He claims