Kunkle Water & Electric, Inc. v. Nehai Tonkayea Lake Ass'n

ON MOTION FOR REHEARING OR TRANSFER

PER CURIAM:

In its motion for rehearing or transfer to the Supreme Court, respondent is correct in stating that the foregoing opinion is incorrect in the statement that the jury did not return a verdict including amounts of hotel bills and meals for employees, and mileage charges on vehicles. An examination of the itemization of appellant’s account rendered to respondent shows that these items were included therein, and the jury returned a verdict for exactly the total of the account, $18,029.07, the same amount prayed for in the petition to which the itemized account was attached. The account was received into evidence as an exhibit.

Other documents received into evidence establish, as the jury could determine, that the agreement between the parties included reimbursement to appellant for mileage, expenses, and travel time (Plaintiff’s Exhibit 2). Respondent Marion W. Clark, in Plaintiff’s Exhibit 3, acknowledged that installation cost included travel, shipping, expenses and labor, and in another letter, Plaintiff’s Exhibit 9, remarked that “the mileage seems a bit high” as included in a bill.

The matter of any omission in Instruction No. 9 to include any damages occasioned by the failure to reimburse appellant for meals, lodging and mileage was not presented to the trial court in respondent’s motion for new trial, and thus was not ruled at all below. The first time it is mentioned is in the argument portion of respondent’s brief. It is only where the trial court has ruled an issue and it is contended that the ruling is erroneous that a successful respondent may urge the matter as an additional ground on appeal to sustain the judgment. In Higgins v. Higgins, 243 Mo. 164, 147 S.W. 962, 963[l-4] (1912), it is said, “[F]or it is within the rights of respondent to call attention to any other errors than those referred to by the trial court, contained in the motion for new trial, as a sufficient ground to sustain the ruling appealed from.” [Italics added.] This rule has been reiterated in a long line of cases: St. Charles Sav. Bank v. Denker, 275 Mo. 607, 205 S.W. 208, 212[10, 11] (1918); Adams v. Kansas City Southern Ry. Co., 83 S.W.2d 913, 915[2-4] (Mo.App.1935) [quashed on the preserved ground of contributory negligence as a matter of law, State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915 (banc 1937)]; O’Connell v. Dockery, 102 S.W.2d 748, 750[5, 6] (Mo.App.1937); Oertel v. John D. Streett & Company, 285 S.W.2d 87, 99[12] (Mo.App.1955) [the trial court made *180no ruling with respect to interest entitlement]; and much later cases: Silvey v. Missouri Pac. R. Co., 445 S.W.2d 354, 361[7] (Mo.1969) [* * * “[A] respondent may show error not relied upon by the trial court (if raised in his motion for new trial) to support the judgment, but not to modify or change it. Citing cases.”]; Stahlhut v. Sirloin Stockade, Inc., 568 S.W.2d 269 (Mo.App.1978); Cascio v. Garrett, 535 S.W.2d 272 (Mo.App.1976). It appears that the jury could and did find that appellant was entitled to the full amount of its account. Respondent is precluded from presenting on this appeal the matter of omission from Instruction No. 9 the elements of damages for appellant’s claim for meals, lodging and mileage because it was not presented to and ruled by the trial court.

The motion for rehearing is overruled, and the motion to transfer to the Supreme Court is denied.