Reid Vann Foreign Car Service, Ltd., Appellant, v. Central District Alarm,
Incorporated, Respondent
Court of Appeals of Missouri, Eastern District; 604 S.W.2d 783; 1980 Mo.
App. LEXIS 2641--August 26, 1980

PRIOR HISTORY: From the Circuit Court of the City of St. Louis
Civil Appeal
Judge James L. Sanders
DISPOSITION: Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff car company appealed a judgment from the
Circuit Court of the City of St. Louis (Missouri) that directed a verdict in
favor of defendant alarm company at the close of the car company's evidence.
The car company had sued for breach of contract and breach of warranty to
recover damages after its place of business was burglarized.
OVERVIEW: The car company alleged that the alarm company breached its
contract when it did not timely notify police and the alarm company's
security or inspect and protect the premises when the alarm system was
activated. The trial court did not allow the car company's president to
testify about oral representations made by the alarm company before the
parties executed the contracts based on the parol evidence rule. He was also
not allowed to testify about the amount of damages resulting from the
burglary because the contract provided that the alarm company was not an
insurer and was not responsible for any burglary loss. The car company then
closed its case. The car company failed to make a submissible case on the
breach of contract claim because it did not show how the alarm company
breached the contract. The car company's offer of proof on the breach of
warranty claim was also rejected because any testimony would have regarded
an alleged representation made prior to the written contracts. The car
company offered no evidence to show that the alarm company did not properly
maintain the alarm system.

OUTCOME: The judgment was affirmed.
COUNSEL: David C. Godfrey, Clayton, Missouri, Attorney for Appellant.
Jack H. Ross, Michael M. Sayers, Clayton, Missouri, Attorneys for
Respondent.
JUDGES: Dowd, P.J., Reinhard, Crist, JJ..
OPINIONBY: REINHARD

OPINION: Plaintiff appeals from an order of the trial court directing a
verdict in favor of defendant at the close of plaintiff's evidence.

[*784] The record discloses the following information. Defendant installed
an alarm system in plaintiff's place of business. Plaintiff brought this
suit to recover for damages suffered after its place of business was
burglarized. Plaintiff alleged in Count One that defendant failed to perform
certain contractual obligations regarding the alarm system, n1 and in Count
Two, that defendant had breached a warranty of fitness for the alarm system.

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n1 Plaintiff's petition alleged in this count that defendant failed to
perform its obligations in that "[defendant] negligently failed and omitted,
as agreed, to timely notify appropriate police authorities of the activation
of the security alarm system . . . to timely notify its own security forces
of the activation of the security alarm system . . . to timely inspect
plaintiff's premises upon activation of the security alarm system . . . to
timely notify plaintiff's officers of the activation of the security alarm
system . . . [and] to confer with and assist the St. Louis Police Department
in the protection of plaintiff's premises and effects after the activation
of the security alarm system . . . ."


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At trial, plaintiff's president was the only witness. After testifying about
plaintiff's business premises and the occurrence of the burglary, he
attempted to testify regarding oral representations made by defendant before
the parties entered their written agreements. n2 The written agreements of
the parties provided, however, "that the payments . . . named are based
solely upon the services herein described . . . .", and that the defendant
was not an insurer and was not responsible for any burglary loss. The court
sustained defendant's objection to such testimony on the basis of the parol
evidence rule.

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n2 Plaintiff and defendant entered into two separate but very similar
written agreements, the first dated July 26, 1974; the second dated
September 8, 1975.


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Plaintiff then made an offer of proof that the witness would have testified
that the defendant had represented that: once the system was installed and
its beam broken, a signal would be sent to defendant's main office; a
dispatcher there would call the [**3] police; defendant would send an
employee to plaintiff's premises to let the police in; this employee would
call plaintiff's agents to inform them of the alarm; and, armed guards and
radio cars would be used to provide further protection. The court sustained
defendant's objection to this offer of proof.

The trial court also sustained defendant's objections to the witness'
testimony regarding the amount of damages resulting from the burglary, and
to plaintiff's subsequent offer of proof as to damages. After the court
again refused to allow the witness to testify as to defendant's
representations prior to the written agreement, plaintiff elected to close
its case. Upon the motion of defendant, the court then granted a directed
verdict for defendant.

On appeal, plaintiff assigns as error the trial court's granting of
defendant's motion for a directed verdict, and the trial court's sustaining
of defendant's objections to testimony of oral representations preceding the
written contract.

The granting of a directed verdict at the close of plaintiff's evidence is a
harsh remedy. Therefore, in deciding whether plaintiff's evidence was
sufficient to make its case submissible to the jury, the [**4] evidence
must be viewed in the light most favorable to the plaintiff, its evidence
must be taken as true unless entirely unreasonable, and it must be given the
benefit of all favorable inferences that reasonably could be drawn from the
evidence. Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 763
(Mo.App. 1974). To make a submissible case, however, "plaintiff must produce
substantial evidence that will support each and every element of the cause
of action. No fact essential to submissibility can be inferred in the
absence of a substantial evidentiary basis. Liability cannot be based upon
speculation, conjecture or guesswork." Tri-Continental Leasing Co. v.
Neidhardt, 540 S.W.2d 210, 211 (Mo.App. 1976). Accord, Houghton v. Atchison,
T. & S.F.R.R.Co., 446 S.W.2d 406 (Mo.banc 1969).

Plaintiff's cause of action for breach of contract fails because of
insufficiency of [*785] evidence. In order to establish a cause of action
under Count One, one of the elements that plaintiff had to show was
defendant's breach of the contract. Veterans Linoleum & Rug, Inc. v. Tureen,
432 S.W.2d 372, 378 (Mo.App. 1968). We have carefully examined the evidence
adduced [**5] by plaintiff at trial, and, even considering each of
plaintiff's offers of proof, we find no evidence whatsoever supporting the
allegations of breach of contract made by plaintiff in Count One, see
footnote 1 supra. Thus, plaintiff failed to make a submissible case on this
count.

Plaintiff's evidence also falls short as to Count Two. The only support in
the transcript for plaintiff's theory of warranty arose during an offer of
proof in which plaintiff's counsel stated that plaintiff's president would
have testified that defendant represented "that they would protect his
business from any losses by burglary." n3 Even assuming that the offered
evidence had been admissible, however, plaintiff still failed to present any
evidence on the sole allegation in its petition regarding the breach of
warranty. There, plaintiff alleged that "[defendant] breached its warranty
in that it did not properly maintain the security alarm system as it had
agreed to do." On the basis of the transcript before us, there is no
evidence that defendant did not properly maintain the alarm system.

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n3 We believe the trial court properly sustained defendant's objection to
this offer of proof since such testimony would have regarded an alleged
representation prior to the written agreements and would have contradicted
provisions of the written agreements stating that defendant was not an
insurer. This would have clearly violated the parol evidence rule. See
Frimel v. Blake, 360 S.W.2d 258, 260-61 (Mo.App. 1962).


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Thus, on both counts, plaintiff failed to produce the admissible evidence
needed to make a submissible case, and the trial court acted correctly in
granting defendant's motion for a directed verdict.

Judgment affirmed.

All Concur