Meyers v. R. C. Greer & Sons Realty Co.

70 S.W. 914, 96 Mo. App. 625, 1902 Mo. App. LEXIS 178

• Court: Missouri Court of Appeals
• Decided: November 25, 1902
• Status: Published

Opinion

GOODE, J.

1. In this, as in many cases, the onerous task of reading a voluminous transcript has been imposed on us by the contention on the part of counsel that there was no evidence to warrant the verdict, although the bill of exceptions is loaded with evidence tending to establish the respective theories of the parties. Counsel could relieve us of much labor of this kind if they would abate their ardor sufficiently to regard dispassionately the contents of records.

As will be seen from the account set forth in the statement, the action is one in assumpsit for the reasonable value of services rendered by respondent in caring for seven flats and three storerooms in the city of St. Louis, belonging to the R. C. Greer & Sons Realty Company, for about two years, the character of her work being such as is commonly done by janitors. She testified the president of the appellant company told her she should take charge of the flats and stores, and that her duties were to rent them or see that they were rented, put up signs, clean out the cellars, cellarways and yards, look after repairs and dp whatever similar tasks needed to be done .about the premises, and also collect rents from the tenants. She further testified that she performed those duties and described the trouble and expense sbe was put to in performing them.

Much testimony was given by other witnesses in corroboration' of hers.

The theory of the defense was that Mrs. Meyers, who occupied one of the storerooms as a tenant of appellant, was getting along poorly in her business and at her request appellant reduced the rent she was to pay from twelve dollars to seven dollars per month and out of sympathy hired her to do tasks occasionally about the buildings, but had paid her in full for everything she did; and there was testimony for the jury in support of this defense.

No doubt can arise as to the propriety of the court’s action in submitting the cause to the jury.

2. The sufficiency of the account in the statement is questioned now, but there is no showing in the bill •of exceptions that it was below, and we think it was full enough to support the verdict, and by the'precedents, full enough to go to trial on even if it had been challenged. Early v. Fleming, 16 Mo. 154; Glenn v. Weary, 66 Mo. App. (K. C.) 75; Weese v. Brown, 102 Mo. 299; Butts v. Phelps, 90 Mo. 670.

3. The issues of fact between the parties narrow •down to whether or not respondent served the appellant ■constantly or occasionally and has been paid for what she did. That she was employed to perform tasks is undenied; but that she was steadily employed is denied, the defense being that she was only hired when needed and had been settled with in full.

That portion of the first instruction which told the jury what circumstances they should, consider in appraising respondent’s damages in case they found for her, is erroneous, because it fixed the amount of damages to be awarded at whatever sum would be a fair and reasonable compensation for. the plaintiff’s ■services in the judgment of the jury,' taking into consideration the nature of the services rendered and the time consumed and all the facts and circumstances connected therewith, instead of all the evidence bearing oh the issue, part o'f which was direct and positive. Respondent testified her services were worth fifteen dollars a month, assuming to speak from actual knowledge of their value, and witnesses for the appellant testified to remuneration on a lower scale for such work. If the instruction was given on the theory that the jury were entitled to disregard the testimony as to the value of that kind of service, it misstated the law (Cobb v. Railway, 149 Mo. 609) while if on the theory that they were to make up their judgment from the evidence in the case, it was misleading; because the testimony of the witnesses who spoke on the subject was not mentioned in stating the facts to be considered and might naturally be understood to be excluded from consideration. Instructions which either overlook or unduly emphasize certain parts of the testimony touching an issue” are bad. Anderson v. Kincheloe, 30 Mo. 520; Fine v. St. Louis Public Schools, 39 Mo. 59, 67; Jones v. Jones, 57 Mo. 138.

None of the testimony was expert, but even that sort of testimony must be weighed by a jury, and it is error to instruct them to the contrary, although they are not bound by it if it seems unreasonable. Kansas City v. Hill, 80 Mo. 523; Hull v. St. Louis, 138 Mo. 618.

The error in the instruction in respect to the mode of ascertaining plaintiff’s damages likely escaped attention in the hurry of the trial, as such errors are apt todn small cases, but we are forced to reverse the judgment and remand the cause to be retried on account of it. It is so ordered.

Bland, P. J., and Barclay, J., concur.