McMahon v. Charles Schulze, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: CLEMENS; BRADY, C.J., and WEIER
• Citation: McMahon v. Charles Schulze, Inc., 483 S.W.2d 666 (Mo. App. 1972)
• Decision Date: 18 July 1972
• Docket Number: No. 34218,34218
• Parties: V. Lee McMAHON and Annetta L. McMahon, Plaintiffs-Appellants, v. CHARLES SCHULZE, INC., and Charles Schulze Motor Company, Inc., Defendants-Respondents. . Louis District, Division One

Page 666

483 S.W.2d 666

V. Lee McMAHON and Annetta L. McMahon, Plaintiffs-Appellants, v. CHARLES SCHULZE, INC., and Charles Schulze Motor Company Inc., Defendants-Respondents.

No. 34218.

Missouri Court of Appeals, St. Louis District, Division One.

July 18, 1972.

McMahon & Berger by Thomas M. Hanna, Clayton, for plaintiffs-appellants.

Holtkamp & Amelung by Robert A. Wulff, St. Louis, for defendants-respondents.

CLEMENS, Judge.

Plaintiff Lee McMahon had a $356.05 judgment in magistrate court based on negligent repair of an automobile. Defendant appealed and on a jury trial the circuit court directed a verdict for defendant. Plaintiffs ¹ appeal from the adverse judgment.

The critical issue: When a plaintiff sues in magistrate court for negligent repair of an automobile, can he on appeal to the circuit court amend his petition to allege breach of warranty? We say no.

In the magistrate court Lee McMahon alleged defendant contracted to service and repair his car but did so negligently, requiring further repairs costing $356.05. On trial judgment went against defendant who appealed to the circuit court. There plaintiff Lee McMahon moved to add Annetta L. McMahon as a party, which motion was granted, and to amend the petition filed in the magistrate court by deleting the allegation of negligence and adding 'in lieu thereof' allegations that after the original repair work had been done defendant warranted the car to be properly repaired, upon which warranty plaintiff relied, ut that in fact defendant's work had been improperly done, causing the car to break down. The trial court denied the motion to amend and trial proceeded on the original negligence allegation.

At the close of plaintiffs' evidence, consisting wholly of Lee McMahon's testimony and several repair invoices, the trial court directed a verdict for defendant. We look first to the scope of our review.

Plaintiffs did not move for a new trial after the directed verdict and no 'Point Relied On' in their brief falls within an exception to Rule 79.03 ² which requires such a motion to preserve alleged errors for appellate review. An erroneously directed verdict is an error which must be raised in a motion for new trial to be preserved for review. C & O Distributing Company v. Milner Hotels, Mo.App., 305 S.W.2d 737(1, 2). If we are to review plaintiffs' alleged errors we can do so only under the plain error rule, Rule 79.04. In considering this rule in a directed verdict case, the supreme court said 'if plaintiff made a submissible case it would be a plain error affecting substantial rights and a manifest injustice for the court to direct a verdict against plaintiff. . . .' Williams v. Southern Pacific Railroad Company, Mo., 338 S.W.2d 882(4). We examine the evidence to determine if plaintiffs did make a submissible case.

Before reaching that question we must determine if it was 'plain error' to disallow the plaintiffs' proposed amendment to allege breach of warranty. We hold it was not. The relevant statutes are §§ 512.280 and 512.300. 'The same cause of action, and no other, that was tried before the magistrate, shall be tried before the appellate court upon the appeal; provided, that new parties, plaintiff or defendant, . . . may be added . . .' and 'in all cases of appeal, the bill of items of the account sued on or filed as a counterclaim or set-off . . . may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment. . . .' Plaintiffs contend the proposed amendments raise no new 'cause of action' within the meaning of these sections; defendant claims they do.

We consider the meaning of 'cause of action' within the context and purpose of §§ 512.280 and 512.300. These statutes insure fair notice to adverse parties by the original petition of all issues sought to be litigated and insure the orderly administration of justice by refusing to allow new claims to be heard for the first time on appeal. A case will not be heard on appeal on a theory different from that on which it was tried below. Snyder v. Gericke, 101 Mo.App. 647, 74 S.W. 377(4). Amendments are allowed by the statute only 'to supply any deficiency or omission' in the original statement, not to inject a 'new item or cause of action not embraced or intended to be included in the original account or statement.' See Gregory v. Wabash, St. Louis and Pennsylvania Railway Company, 20 Mo.App. 448, and Evans v. St. Louis and Santa Fe Railway Company, 67 Mo.App. 255.

In Riddle v. Foreman, Mo.App., 178 S.W. 227, plaintiff sought recovery in a justice court for money had and received and properly was not allowed to amend in the circuit court by adding a clause for goods sold and delivered, even though both the original claim and the amendment were based on the same account. See also Engle v. Ferrell, 126 Mo.App. 577, 105 S.W. 23, where plaintiff sued in a justice court on the theory defendant had not maintained a proper fence, allowing defendant's bull to impregnate plaintiff's heifers. On appeal the circuit court properly denied a...