Weindel v. DeSoto Rural Fire Protection Ass'n, Inc.

• Decision Date: 28 February 1989
• Docket Number: No. 54613,54613
• Citation: Weindel v. DeSoto Rural Fire Protection Ass'n, Inc., 765 S.W.2d 712 (Mo. App. 1989)
• Parties: Thomas and Debra WEINDEL, Plaintiffs/Respondents, v. DeSOTO RURAL FIRE PROTECTION ASSOCIATION, INC., Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 712

765 S.W.2d 712

Thomas and Debra WEINDEL, Plaintiffs/Respondents, v.DeSOTO RURAL FIRE PROTECTION ASSOCIATION, INC., Defendant/Appellant.

No. 54613.

Missouri Court of Appeals,

Eastern District,

Division Two.

Feb. 28, 1989.

Robert J. Wulff, St. Louis, for defendant/appellant.

John D. Rayfield, Crystal City, for plaintiffs/respondents.

GARY M. GAERTNER, Judge.

Appellant, DeSoto Rural Fire Protection Association, Inc., (hereinafter referred to as the Association) appeals from a jury verdict in favor of respondents, Thomas and Debra Weindel, and against the Association in the amount of $17,500.The Association raises three claims of error on appeal.The Association maintains the Weindels failed to prove the damages attributable to negligence on the part of the Association.The Association also alleges Thomas Weindel waived all negligence claims against the Association when he signed an alleged release upon purchasing a fire tag.Finally, the Association argues it has a right to a credit against the final judgment due to an advance payment allegedly made pursuant to RSMo§ 490.710(1986).Finding the Association's contentions to be without merit, we affirm.

The evidence reveals that in November of 1985, the Association provided volunteer firefighting services for the rural DeSoto area.Residents of the area served by the Association became entitled to firefighting services upon purchasing a metal fire tag at Mueller Electric in DeSoto for a fee of $12.50.These tags were sold on a year to year basis.Upon paying $12.50 one received a tag, which tag had the appearance of a license plate and varied in color from year to year.The purchaser was to post the tag on his property.In addition to receiving the tag, the purchaser also received a paper receipt.Two copies of this receipt were generated at the time of purchase with one going to the Association and the other to the DeSoto Police Department.The police department served as the Association's dispatcher.Thus, whenever one would call in a fire the dispatcher at the police department would request the name of the person who owned the particular residence which was on fire, and would then look through the receipts to ascertain if that individual had purchased a fire tag.If the records showed a tag had been purchased, the dispatcher would contact the volunteer firefighters in order to fight the fire; if the records indicated a tag had not been purchased firefighters would not be dispatched.

On November 28, 1985, a fire occurred in the Weindels' mobile home while they were away.It is not disputed that Thomas Weindel had purchased a fire tag which was valid on November 28, 1985, and that the tag was posted on the residence so as to be visible from the road, which was named Fox Farm Road.No written instruction on the use or display of a tag was given when one purchased a tag.As well, the persons who sold the tags were not employees of the Association.At 9:23 p.m. on the night of November 28th, someone called the dispatcher as to a fire at the Weindel mobile home.This individual identified the property as being on Fox Farm Road and belonging to an E.M. Moss.As no receipt was found for property owned by an E.M. Moss on Fox Farm Road, the dispatcher did not notify the firefighters.A second and third call were also received by the dispatcher as to a fire on Fox Farm Road with neither caller identifying the owner of the property.Finally, at 9:34 p.m. a fourth call was made to the dispatcher by Dennis Farris, an adjoining property owner to the Weindel property.Although Dennis Farris did not identify the owner of the property which was on fire, he requested protection because the fire had the potential to endanger his property.Because the dispatcher located a receipt for the Farris property, she dispatched firefighters.The firefighters arrived at 9:46 p.m.They did not attempt to approach the Weindels' home to look for a fire tag.The firefighters' first notification that the house on fire was the Weindel residence occurred when Thomas Weindel's parents arrived and informed the fire chief that it was their son's residence and that he had a fire tag.However, by this point the mobile home was "practically level," according to the fire chief.

In the Association's first point, it claims there was insufficient evidence to allow submission to the jury of the issue of whether the Association's negligence was the proximate cause of the Weindel's damages.The law is clear that it was the Weindel's obligation to make their case so as to remove the issue of the amount of damages from the field of conjecture, and to establish the amount of damages attributable to the Association's negligence by substantial evidence of probative value, or by inferences reasonably drawn from the evidence.New Style Homes, Inc. v. Fletcher, 606 S.W.2d 510, 513(Mo.App., W.D.1980).For, speculative results are not a proper element of damages.Wise v. Sands, 739 S.W.2d 731, 734(Mo.App., S.D.1987).However, where it is certain that damage resulted, uncertainty as to the amount will not preclude recovery.Blackburn v. Carlson Seed Co., 321 S.W.2d 520, 523(Mo.App., S.D.1959).Thus, even if one cannot measure the damages exactly, the law only requires that the evidence, with such certainty as the evidence will permit, lay a foundation to enable the jury to make a fair and reasonable estimate.Id.A plaintiff need only produce the best evidence available such that it is sufficient to afford a reasonable basis for estimating the damages.Id.See alsoSides Construction Co. v. Arcadia Valley R-II School District, 565 S.W.2d 761, 768(Mo.App., E.D.1978).

The evidence showed that firefighters would have been sent at least ten minutes earlier if after the first report of a fire the Association's system had shown the Weindel home was protected.Thus, the evidence showed that ten minutes was lost in fighting the fire due to the Association's negligence.Thomas Weindel testified that the family's total actual damages due to the fire were approximately $57,065.The jury returned a verdict in the amount of $17,500, and found the Association to be 100% negligent.It is clear that the jury found the Association totally responsible for the delay in fighting the fire and made a fair and reasonable estimate that the Weindels incurred $17,500 in damages as a...