A change of venue was taken in each case; the first mentioned case was sent to Saline county; the second to Randolph county. The first case tried, Schneider vs. Prentzler, Administrator, resulted in a judgment for Mrs. Schneider for $25,000. Defendant, Prentzler, as administrator, appealed and the judgment was affirmed by this court. See Schneider v. Prentzler, Mo., 391 S.W.2d 307. The compulsory counterclaim rule, Civil Rule 55.45 (a) V.A.M.R., was not applicable to this plaintiff when the two cases were filed in Chariton county, because she was not a party defendant and was not required to and could not plead in the other action.
Sigmund v. Lowes, Mo.App., 236 S.W.2d 14, 16; Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825, 832. Secondly, since the submissibility of plaintiffs' case is in issue, this court must consider the facts supporting plaintiffs' theory in a light most favorable to plaintiffs. Schneider v. Prentzler, Mo., 391 S.W.2d 307, 309. Plaintiffs' evidence, so viewed, is as follows:
, 304 S.W.2d 825; Chester v. Shockley, Mo.Sup., 304 S.W.2d 831; Duncan v. Pinkston, Mo.Sup., 340 S.W.2d 753; Williams v. Cavender, Mo.Sup., 378 S.W.2d 537; Schneider v. Prentzler, Mo.Sup., 391 S.W.2d 307; Kratzer v. King, Mo.Sup., 401 S.W.2d 405. In Hamre this Court said, 209 S.W.2d, l.c. 249: "Whatever value the location of the debris or the center of the debris falling from two motor vehicles upon impact may have upon determining the point of impact is not, in our opinion, a proper subject for expert or opinion evidence.
Judgment was for defendants on a directed verdict at the close of plaintiffs' case. Plaintiffs' evidence, then, circumstantial and direct, viewed in its most favorable light, Schneider v. Prentzler, Mo., 391 S.W.2d 307, 309[1, 2], established these facts: On January 9, 1962, Oval Janis, age 49, father of plaintiffs, died as a result of carbon monoxide poisoning.
The significance of such evidence may be enhanced by evidence pertaining to its location with reference to "gouge" marks and skid or tire marks. Schneider v. Prentzler, Mo.Sup., 391 S.W.2d 307, 310 [3]; Martin v. Sloan, Mo.Sup., 377 S.W.2d 252, 258 [7]. On the other hand, the circumstances may detract from the significance of the location of debris (Schoen v. Plaza Express Co., Mo.Sup., 206 S.W.2d 536, 538-539 [2]), or the evidence may be equivocal (Berry v. Harmon, Mo.Sup., 323 S.W.2d 691, 695 [2]; Zeigenbein v. Thornsberry, Mo.Sup., 401 S.W.2d 389, 391 [2]). Furthermore, the site of the impact which the debris may indicate may not be the significant factor on the issue of negligence (Williams v. Cavender, Mo.Sup., 378 S.W.2d 537, 543 [6]).
Indeed, a case may be established by circumstantial evidence alone. Schneider v. Prentzler, 391 S.W.2d 307, 309-10 (Mo. 1965). Where a finding essential to recovery is based upon circumstantial evidence, the shown circumstances must be such that the facts necessary to support the findings may be inferred and reasonably must follow; the existence of such facts may not depend upon guesswork, conjecture or speculation but rather the evidence must tend to exclude every reasonable conclusion other than that sought.
In our view, neither Fidelity Deposit Co. v. John Gill Sons Co., supra, 270 S.W. at 703; Herrman v. Daffin, supra, 302 S.W.2d at 317; C. A. Burton Machinery Co. v. National Surety Co., supra, 182 S.W. at 804, nor any of the other precedents cited to us purports to lay down an exclusive method by which a plaintiff materialman must show which parts of his account with the contractor are chargeable to the bond. The facts necessary to sustain a recovery or a defense in a civil action may be established by circumstantial evidence, Schneider v. Prentzler, 391 S.W.2d 307, 309-310[2] (Mo. 1965); Hall v. St. Louis Public Service Co., 248 S.W.2d 33, 36[2] (Mo.App. 1952), and such evidence need not have the quality of absolute certainty; it is sufficient if it affords a substantial basis for the inferences or conclusions necessary to establish the case or defense. McCarthy v. Wulff, 452 S.W.2d 164, 168[5] (Mo. 1970); Van Brock v. First Nat. Bank in St. Louis, 349 Mo. 425, 431-432, 161 S.W.2d 258, 260-261[1-3] (1942).
The graphic location of debris aided the jury in understanding Officer Gaugh's testimony and was properly admitted for that purpose. Schneider v. Prentzler, 391 S.W.2d 307, 310-311 (Mo. 1965). The admission of an opinion on the relative location of vehicles at impact and plaintiff's "failure to yield," is generally erroneous, but on this record any such error was harmless.
Mayer v. Orf, 404 S.W.2d 733, 735(4) (Mo. 1966); Robinson v. St. John's Medical Center, Joplin, 508 S.W.2d 7, 11(3) (Mo.App. 1974). The only eyewitness testimony concerning the speed of the eastbound Plymouth when it reached the point at which defendant could have initially sighted the Cope automobile "parked" crosswise of the two-lane blacktop roadway and blocking both traffic lanes was that of defendant himself who, upon trial, testified that he "might have been going up to 59, 60" but did not "think" he was traveling faster than that. Of course, the jury was not obliged to accept this hesitant, uncertain testimonial offering by defendant [ Schneider v. Prentzler, 391 S.W.2d 307, 309(1) (Mo. 1965); Haymes v. Swan, 413 S.W.2d 319, 324(3) (Mo.App. 1965)]; and, as we shall proceed to point out, in our appellate view of the case the highest speed of 60 miles per hour suggested by defendant did not fit into, and was not harmonious with, the remainder of the evidential mosaic developed upon trial. By unqualified affirmative answers of "Yes" to leading questions on direct examination, defendant unequivocally confirmed the interrogative summation of his counsel that "[a]s soon as it [the Cope Ford] was visible you [defendant] saw it" and "[a]s quick as you could react you got on the brakes."
It is well established law that a case may be proved by circumstantial evidence alone. Schneider v. Prentzler, Mo., 391 S.W.2d 307, 309 [1, 2]. On the question as to whether the plaintiff made a submissible case against the defendants with circumstantial evidence, we again review the facts as to the nature of the relationship between plaintiff and the defendants. Plaintiff was injured when he was getting out of a taxicab owned by the defendant taxicab company and operated by the defendant driver.