Hoevelman v. Reorganized School Dist. R2 of Crawford County, 8887

• Decision Date: 26 February 1970
• Docket Number: No. 8887,8887
• Parties: Jack O. HOEVELMAN, Plaintiff-Respondent, v. REORGANIZED SCHOOL DISTRICT R2 OF CRAWFORD COUNTY, Missouri, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 298

452 S.W.2d 298

Jack O. HOEVELMAN, Plaintiff-Respondent, v. REORGANIZED SCHOOL DISTRICT R2 OF CRAWFORD COUNTY, Missouri Defendant-Appellant.

No. 8887.

Springfield Court of Appeals, Missouri.

Feb. 26, 1970.

Motion for Rehearing or to Transfer Stricken March 17, 1970.

Morton K. Lange, St. Louis, for plaintiff-respondent.

G. C. Beckham, Steelville, for defendant-appellant.

TITUS, Presiding Judge.

Defendant school district's first appeal in this case was dismissed because it appealed from the unappealable 'order and judgment overruling defendant's motion for summary judgment.' Hoevelman v. Reorganized Sch. D. R2 of Crawford Co., Mo.App., 430 S.W.2d 753. This second appeal by defendant is from a $580 verdict-judgment returned and entered for plaintiff in his suit to collect the balance allegedly due him under a nine-month school bus briver's contract. Defendant contends the contract was void because it did not meet the requirements of § 432.070. ¹

Irrespective of the validity of the contract, defendant also asserts that 'the greater weight of the evidence proved' plaintiff was properly discharged for incompetency by defendant's six-director school board. This smacks of an invitation (R.S.V.P.) for us to weigh the evidence and reply via a reversal because the verdict is against the greater weight of the evidence. But, '(t) here is, perhaps, no more firmly established doctrine than that on appeal from a judgment rendered on a verdict of a jury an appellate court is not authorized to weigh the evidence. Whether a jury's verdict is against the weight of the evidence is a question for the trial court alone' (Kells v. Pevely Dairy Company, Mo.App., 393 S.W.2d 61, 65(4)), and an appellate court may not reverse a case on the ground that the verdict is against the greater weight of the evidence. Catanzaro v. Duzer, Mo.App., 329 S.W.2d 257, 260(1). Moreover, '(i) t has for a long time been held that such an assignment presents nothing for appellate review in a jury case. Connor v. Temm, Mo.App., 270 S.W.2d 541, 547.' Grubbs v. Myers, Mo.App., 407 S.W.2d 43, 44(2).

Another point raised by defendant is that the trial court erred in overruling its motion for a directed verdict at the close of plaintiff's case because plaintiff had no contract in writing with defendant as required by § 432.070. However, when defendant proceeded to introduce evidence of its own after denial of the motion, it waived any complaint that the trial court erred in this respect. Veterans Linoleum & Rug, Inc. v. Tureen, Mo.App., 432 S.W.2d 372, 375(3). Nevertheless, defendant did renew the motion for a directed verdict at the close of all the evidence, and while no post-trial motion was submitted as authorized by Civil Rule 72.02 and § 510.290, defendant again presented this issue to the trial court in its motion for new trial (Civil Rule 79.03; Millar v. Berg, Mo., 316 S.W.2d 499, 502(1)) and has continued the complaint into its appeal brief. Therefore, the question of whether plaintiff made a case for the jury (described in proper circumstances as being 'basic' or 'inherent in every case that comes to an appellate court') will be considered (Gibbs v. Bardahl Oil Company, Mo., 331 S.W.2d 614, 620(1); Hart v. Midkiff, Mo., 321 S.W.2d 500, 505(4)) by 'reviewing the evidence in a light most favorable to the plaintiff and giving him the benefit of all inferences reasonably to be drawn therefrom.' Anderson v. Maneval, Mo.App., 410 S.W.2d 578, 581(2).

During the school year of interest, 1966--67, Al West, Jr., was president of defendant's school board and Fred Shafferkoetter was its secretary. 'There never has been any authority given to' the secretary 'by the board authorizing (him) to sign any kind of a contract on behalf of the school board.' Whatever school contracts Mr. Shafferkoetter did sign were for the purpose of 'witnessing the signature of the president.' E. M. (Elza) West was employed by the defendant as transportation supervisor and his 'job actually was to handle the mechanics of employing the (bus) drivers.' If he got a driver that 'suited (the school board's) need we would approve him. * * * (T)he bus drivers could have been put to work, and they would have been paid for the time that they worked * * * but it is not necessarily true that they were hired and given a contract for nine months until it was approved by the board. * * * These contracts (for bus drivers) could have been approved by the superintendent, the president and secretary, prior to the (school board) meeting and then could have been thrown out at the meeting by the majority of the board.'

Plaintiff contacted the transportation supervisor for employment and testified that Elza West 'told me he was legally authorized to talk to men and hire them on his own recommendations (and) he would like for me to drive.' Two printed contract forms were given to plaintiff that had not 'been signed by anybody on behalf of the school board' and there was no 'conversation about how long (plaintiff) would be employed.' Plaintiff signed the two forms as 'Driver,' secured execution of the required bond (§ 167.251) and returned the papers to Elza West. The transportation supervisor, according to plaintiff, 'went through with the proper procedure, I presume, and took (the contract) to the school. * * * After two or three days * * * I had the contract returned to me * * * and (although nothing was said) I presumed I was hired, being as he gave (a copy of the contract) back to me.' The contract now reads:

'This agreement, made and entered into the 21st day of July, 1966 by and between (plaintiff and defendant), WITNESSETH:

'That the said (plaintiff) agrees to operate a school bus . . .. In consideration of such services properly rendered, . . . (defendant) agrees to pay to the bus driver, monthly, the sum of 145 dollars for a term of nine months, commencing on the 29th day of August, 1966. . . . Done by order of the Board of Directors, this 21st day of July, 1966.

_ _

President of Board

Attest: /s/ Fred Shafferkoetter

/s/ JACK O. HOEVELMAN

Driver'

The copy of the contract not returned to plaintiff had been kept 'in the office of the (school) superintendent, in our files of state records * * * with other bus driver's and teacher's contracts' until produced at trial. Nine or ten bus drivers, in addition to plaintiff, had been employed in the school year 1966--67 and their contracts were in the exact form as plaintiff's, supra, except their contracts bore the signature of Al West, Jr., as board president, which plaintiff's contract did not.

Plaintiff drove the bus from August 29, 1966, until February 1, 1967, when he was informed 'my time would be terminated.' The $580 sued for and awarded represents what plaintiff would have been paid had he continued driving the bus for the balance of the school year.

The minutes of the regular school board meeting of July 21, 1966, were signed by Al West, Jr., as president, and Fred Shafferkoetter as secretary, and admittedly 'contain no reference to the employment of any bus drivers.' Corroborated by his fellow school board members and without contradiction, Mr. Shafferkoetter testified that the records and minutes of the school board and the defendant school district for 1966--67 were devoid of any mention of an order, motion, resolution or discussion relative to the employment of plaintiff as a bus driver; he flatly asserted that plaintiff 'had never been approved by the school board' as a bus driver. Mr. Shafferkoetter and other members of the school board were aware that plaintiff was driving a school bus but none of them had any recollection that the board had ever authorized plaintiff's employment on a contract. Though admitting the two contract forms with plaintiff's name bore his signature, the secretary stated 'I knew of no contract * * * I don't remember even signing it * * * So, my only thought is, I inadvertently signed these amongst other documents. That is the only way it could be.' Al West, Jr., the school board president, said that he had never signed a written contract with the plaintiff. The minutes of the regular board meeting held January 19, 1967, contain this recitation: 'Motion by Mr. Shuey, seconded by Mr. Jones that (plaintiff's) contract as bus driver be terminated as of January 31, 1967. Vote: 6 yes.'

The requirements of § 432.070 (quoted in footnote 1, supra) that contracts with school districts must be in writing and subscribed by the parties thereto is mandatory and not merely directory (City of North Kansas City, Missouri v. Sharp, 8 Cir., 414 F.2d 359, 364(1); Donovan v. Kansas City, 352 Mo. (banc) 430, 445(3), 175 S.W.2d 874, 881(10), 179 S.W.2d 108, appeal dismissed, 322 U.S. 707, 64 S.Ct 1049, 88 L.Ed. 1551; Thies v. St. Louis County, Mo., 402 S.W.2d 376, 380(1)), and anything short of the writing required is not a contract. Metz v. Warrick, 217 Mo.App. 504, 512(3), 269 S.W. 626, 627(3). Plaintiff is charged with knowing the extent and limitation of defendant school district's powers, the authority of its officers, and the manner prescribed by law for the exercise thereof. Board of Public Works of Rolla v. Sho-Me Power Corp., 362 Mo. (banc) 730, 737, 244 S.W.2d 55, 60(6); Grauf v. City of Salem, Mo.App., 283 S.W.2d 14, 17(4). Therefore, he is not only held to know the requirements of § 432.070, but is also charged with knowledge that 'no contract shall be let (by defenda...