Bethell v. Porter
| Citation | 595 S.W.2d 369 |
| Decision Date | 04 February 1980 |
| Docket Number | No. KCD,KCD |
| Parties | William C. BETHELL, d/b/a Bethell Plumbing and Heating Co., Respondent, v. Thomas A. PORTER and Lilly M. Porter, Appellants, and Bartlow-Hope Electrical Corp., Respondent. 30427. |
| Court | Missouri Court of Appeals |
Kranitz & Kranitz, St. Joseph, for appellants.
Bauman & Liles, St. Joseph, for respondent William C. Bethell.
R. Dan Boulware, Watkins, Boulware & Lucas, St. Joseph, for respondent Bartlow-Hope Electrical Corp.
Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
This is an action to enforce mechanics liens pursuant to a building contract. The jury entered judgment for respondents upon their liens and against appellants on their counterclaims. This appeal followed the overruling of a timely filed motion for new trial. The judgment is affirmed.
Appellants allege six points of error. These allegations are (1) the trial court erred in giving the verdict directing instructions because the instructions omitted the element of workmanlike manner of performance; (2) the court erred in its failure to instruct the jury to find that charges for work outside the contract, referred to as "extras" were reasonable; (3) the trial court erred in giving the form of the verdict instruction that it gave; (4) the trial court committed additional error in giving the verdict directing instructions because the term "agreements" within the wording of these instructions assumed the requirement of a certain sum to be paid for the extra work; (5) the trial court erred in giving a verdict directing instruction, which related to separate respondent Bartlow-Hope Electrical Corp., 1 because recovery by Bartlow was barred by its admission that the work had not been completed; and (6) the trial court abused its discretion in sustaining respondents' objection to the testimony of appellants' witness upon appellants' failure to answer the interrogatory concerning the expert status of the witness.
The evidence reveals respondents performed plumbing, heating and electrical work in the construction of appellants' home. A Mr. Stanley Dymond was the general contractor. Respondents had direct contact with appellants concerning the work to be performed, and each respondent separately entered into an oral contract with appellants regarding the work to be performed and the price to be paid. Plans and specifications for the work were provided by Mr. Dymond.
In addition to the original contracts, the evidence revealed appellants orally requested other work be done, and this was performed by respondents. This became known as the "extras", and a dispute between the parties regarding what constituted the extras developed.
Respondent Bethell Plumbing and Heating Co., (hereinafter referred to as Bethell) filed its lien under date of March 30, 1976. Respondent Bartlow filed two liens under the dates of April 16, 1976 and May 7, 1976. In addition to its claim against appellants, respondent Bethell joined respondent Bartlow as a separate defendant, claiming a superior lien over and against respondent Bartlow. Bartlow filed its separate answer to Bethell's petition and a cross-petition against Bethell and appellants. Bethell filed its answer to the cross-petition of Bartlow. 2
Appellants filed their answer to Bartlow's cross-petition and filed a counterclaim against Bartlow. Appellants also filed their answer to Bethell's petition and a counterclaim against Bethell. There followed an amendment of the counterclaim, to which both respondents timely filed responsive pleadings. The issues were joined.
Following the submission of the evidence, instructions to the jury were given. Since four of appellants' alleged errors attack three of the instructions specifically, these instructions are set forth verbatim:
Your verdict must be for plaintiff William C. Bethel (sic) on William C. Bethel's (sic) claim against defendants Thomas A. Porter and Lilly M. Porter, if you believe:
Your verdict must be for defendant Bartlow-Hope on Bartlow-Hope's claim against defendants Thomas A. Porter and Lilly M. Porter, if you believe:
You are instructed that nine or more jurors may return a verdict for any party in this case. If all of you agree upon a verdict, the foreman alone will sign it, but if your verdict is returned by nine or more and less than twelve jurors, your verdict must be signed by all the jurors who agreed to it.
Forms of Verdict
If all of you agree upon a verdict in favor of plaintiff Bethel (sic) on his claim against the defendants Thomas A. Porter and Lilly M. Porter, it may be in the following form:
'We, the jury, find the issues in favor of the plaintiff Bethel (sic) against Thomas A. Porter and Lilly M. Porter and assess his damages as follows: On original agreement $"""""" (here insert the amount or if none write the word "none"). For extra work $"""""" (here insert the amount or if none write the word "none").
"""""""""" Foreman.'
If all of you agree upon a verdict in favor of the defendants Thomas A. Porter and Lilly M. Porter on plaintiff Bethel's (sic) claim against them, it may be in the following form:
'We, the jury, find the issues in favor of defendants Thomas A. Porter and Lilly M. Porter on plaintiff Bethel's (sic) claim against them.
"""""""""" Foreman.'
If all of you agree upon a verdict in favor of defendant Bartlow-Hope on their claim against the defendants Thomas A. Porter and Lilly M. Porter, it may be in the following form:
'We, the jury, find the issues in favor of the defendant Bartlow-Hope against the defendants Thomas A. Porter and Lilly M. Porter and assess their damages as follows: On original agreement $"""""" (here insert the amount or if none write the word "none"). For extra work $"""""" (here insert the amount or if none write the word "none").
"""""""""" Foreman.'
If all of you agree upon a verdict in favor of the defendants Thomas A. Porter and Lilly M. Porter on defendant Bartlow-Hope's claim against them, it may be in the following form:
'We, the jury, find the issues in favor of defendants Thomas A. Porter and Lilly M. Porter on defendant Bartlow-Hope's claim against them.
"""""""""" Foreman.'
If all of you agree upon a verdict in favor of defendants Thomas A. Porter and Lilly M. Porter on their claim against the plaintiff Bethel (sic), it may be in the following form:
'We, the jury, find the issues in favor of defendants Thomas A. Porter and Lilly M. Porter against the plaintiff Bethel (sic) and assess their damages at $"""""" ( the amount).
"""""""""" Foreman.'
If all of you agree upon a verdict in favor of plaintiff Bethel (sic) on defendants Thomas A. Porter and Lilly M. Porter's claim against him, it may be in the following form:
'We, the jury, find the issues in favor of plaintiff Bethel (sic) on defendants Thomas A. Porter and Lilly M. Porter's claim against him.
"""""""""" Foreman.'
If all of you agree upon a verdict in favor of the defendants Thomas A. Porter and Lilly M. Porter on their claim against the defendant Bartlow-Hope, it may be in the following form:
'We, the jury, find the issues in favor of defendants Thomas A. Porter and Lilly M. Porter against the defendant Bartlow-Hope and assess their damages at $"""""" ( the amount).
"""""""""" Foreman.'
If all of you agree upon a verdict in favor of defendant Bartlow-Hope on defendants Thomas A. Porter and Lilly M. Porter's claim against them, it may be in the following form:
'We, the jury, find the issues in favor of defendant Bartlow-Hope on defendants Thomas A. Porter and Lilly M. Porter's claim against them.
"""""""""" Foreman.' "
Appellants' first point of error attacks the wording of instruction no. 4 and instruction no. 7 for the failure of those instructions to contain the essential element that the work performed by respondents was performed in a workmanlike manner.
Respondents counter this first argument by pointing out that appellants did not preserve the point for appeal upon failure to object to the omission for workmanlike manner, either at trial or in their motion for new trial.
Appellants cite Vic Koepke Excav. & Gr. Co. v. Kodner Dev. Co., 571 S.W.2d 253 (Mo. banc 1978) and Forsythe v. Starnes, 554 S.W.2d 100 (Mo.App.1977). It is necessary to consider these two cases although, as will be seen, neither is dispositive of this point. As is contended by respondents, the instructions in the instant case parallel the Forsythe v. Starnes, supra, decision. In the Forsythe v. Starnes case, the court concluded that the failure of plaintiff's instructions to include an essential element could be cured by an instruction given by the opposing party.
Appellants also cite Vic Koepke Excav. & Gr. Co. v. Kodner Dev. Co., supra, and more detailed consideration must be given this case because of the uniqueness in timing that occurred between the instant case and the Koepke decision.
The jury returned its findings on the issue of damages in favor of respondents on the lien claims and against appellants on their counterclaims. Appellants filed their motion for new trial on June 7, 1978. The court overruled appellants' motion for new trial and entered judgment on August 21, 1978. On September 12, 1978, the State Supreme...
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...vested with wide discretion in determining if prejudice exists as the result of improper actions used in discovery. Bethell v. Porter, 595 S.W.2d 369, 377(10) (Mo.App.1980); Hilmer v. Hezel, 492 S.W.2d 395, 397(4) (Mo.App.1973). As plaintiff has not alleged an abuse of discretion this court......
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