Watson v. Meredith Development Co.

• Decision Date: 20 December 1966
• Docket Number: No. 32418,32418
• Citation: 410 S.W.2d 338
• Parties: Roby E. WATSON, Plaintiff-Respondent, v. The MEREDITH DEVELOPMENT COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 338

410 S.W.2d 338

Roby E. WATSON, Plaintiff-Respondent, v. The MEREDITH DEVELOPMENT COMPANY, a Corporation, Defendant-Appellant.

No. 32418.

St. Louis Court of Appeals, Missouri.

Dec. 20, 1966.

Greensfelder, Hemker, Wiese, Gale & Chappelow, Mark R. Gale, St. Louis, for defendant-appellant.

Louis S. Czech, Clayton, for plaintiff-respondent.

DOERNER, Commissioner.

Plaintiff commenced this action in the Magistrate Court of St. Louis County seeking to recover the sum of $1882.00 alleged to be due for certain construction work performed for defendant. From an adverse judgment defendant appealed to the Circuit Court of the same County. Trial there was to the court, sitting without a jury, and resulted in a judgment against defendant for $1882.00, from which it appealed.

The total amount sought by plaintiff was composed of two items: First, his claim for a balance of $1345.00 alleged to be due him for his work in erecting three prefabricated houses for defendant in a subdivision named Chambers Hill; and second, his claim for $574.75 for sidewalks, driveways and other concrete work laid on Lots 206 and 198 in another subdivision named Glen Owen. ¹ As to the first item, plaintiff testified that beginning in March, 1960, he performed carpentry work for defendant on other houses on a unit or contract price. While his entire petition sounded in quantum meruit, plaintiff was permitted to testify, over objection, that upon completion of his initial work Howard Gale, defendant's president, informed him that his compensation for future work would be at the rate of $5.00 per man hour. Subsequently defendant requested plaintiff to erect the three houses in question, and plaintiff did so. It is evident that plaintiff's trial theory was that he and his employees had performed 789 hours of labor on the three houses, which at the agreed rate of $5.00 per hour amounted to $3945.00; that defendant was entitled to a credit of $2600.00 for payments made; and thus that the balance due him was $1345.00.

In an effort to prove the number of hours he and his men had worked plaintiff related that time cards were kept on the job, and that at the end of each week he entered the weekly total onto three time sheets, which he identified, and which he stated were kept in the regular course of his business. Although plaintiff testified that he still retained the original time cards in his office they were not produced, and no testimony was offered as to the manner in which they had been prepared, or the regularity and accuracy of their preparation. With that meager foundation, plaintiff offered the time sheets in evidence but the court sustained defendant's objection that no proper foundation had been laid for their admission, and they were excluded. In his brief plaintiff makes no claim that the time sheets were admissible under the Uniform Business Records as Evidence Act, § 490.660 et seq., RSMo 1959, V.A.M.S., nor does he contend that the court erred in excluding them. In fact, he has not even lodged such time sheets in this court with his other exhibits.

Having failed in his attempt to have the time sheets admitted into evidence his counsel then liquired of plaintiff whether he was able to state the number of hours he and his employees had labored on the three houses. The record shows that before plaintiff answered defendant's attorney interposed the objection that the plaintiff was referring to the time sheets preparatory to answering the question, that plaintiff was getting into evidence the evidence not otherwise admissible, and that he objected to any testimony based upon the exhibits which had been excluded. To meet the objection counsel for plaintiff then asserted that, 'If the Court please, it's a matter of refreshing his recollection with records he himself has produced and made,' and the court thereupon overruled defendant's objection. Without obtaining an answer to his prior question, plaintiff's counsel propounded another: 'Would you refer to the records that you have made relative to the hours that you and your men have put in on Lots 38, 39, and 40?' and plaintiff replied: 'On Lot 38, 345 hours; on Lot 39, 229 hours; on Lot 40, 215 hours.' Subsequently, after defendant renewed its objection to plaintiff reading from the excluded time sheets, and was overruled, plaintiff gave the total hours worked as 789. He also testified that a charge of $5.00 per man hour was a reasonable charge for carpentry work, but no testimony was offered that 789 hours was a reasonable number of hours for the work performed.

Assuming, without deciding, that plaintiff's evidence was sufficient to sustain an action based on quantum meruit as to this item, it is apparent from the record that plaintiff's foregoing testimony was the only evidence introduced regarding the number of hours he and his men had worked on the three houses. Defendant asserts that the court erred in admitting and receiving such testimony, that we must therefore disregard it in our review de novo, and that without it there is not sufficient competent evidence in the record to sustain the judgment.

The record is clear that the court permitted plaintiff to read from the time sheets on his counsel's representation that plaintiff was entitled to thereby refresh his recollection. It is, of course, a settled rule that a witness who does not recall or is uncertain about matters concerning which he is called upon to testify may, under certain circumstances and conditions, be permitted to refresh his memory by referring to a memorandum or writing. State v. Bradley, 361 Mo. 267, 234 S.W.2d 556; Voyles v. Columbia Terminals Co., Mo.App., 223 S.W.2d 870. Generally speaking, the question of whether a witness may be allowed to refresh his recollection is a matter reposing in the sound discretion of the trial court, reviewable only for abuse. Winn v. Modern Woodmen of America, 157 Mo.App. 1, 137 S.W. 292; O'Connor v. Egan, Mo.App., 274 S.W.2d 334. However, as we pointed out in Voyles v. Columbia Terminals Co., supra, a sound discretion would ordinarily dictate...